1Graham names the following defendants to this action: NHSP

Warden Bruce Cattell, NHSP employees Todd Conner, Frank Bergmann,

Kevin Valente, Jeff Sweeney, Ann McCoole, Robert MacLeod, First

Name Unknown (“FNU”) Howland, FNU Susca, FNU Marshall, FNU Lemay,

FNU Goulette, and New Hampshire Department of Corrections

Commissioner William Wrenn.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Graham

v. Civil No. 06-cv-453-JD

Bruce Cattell, Warden, New

Hampshire State Prison, et al.

REPORT AND RECOMMENDATION

Proceeding pro se, William Graham has filed this action

pursuant to 42 U.S.C. § 1983 against a number of employees of the

New Hampshire State Prison (“NHSP”).1 The complaint is before me

for preliminary review to determine whether, among other things,

it states any claim upon which relief might be granted. See 28

U.S.C. § 1915A; United States District Court for the District of

New Hampshire Local Rule (“LR”) 4.3(d)(2). For the reasons

stated herein, I direct, in an Order issued simultaneously with

this Report and Recommendation, that the claim alleging excessive

force proceed against defendant NHSP Corporal Kevin Valente in

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2

his individual capacity, the claim alleging a deprivation of the

right to petition the government for a redress of grievances

through the administrative grievance procedure be served on

Sweeney, Howland, Bergmann, Susca, and Conner, in their

individual capacities, and the retaliation claim be served on

Marshall, Lemay, Goulette, Cattell, Wrenn, and Macleod in their

individual capacities. I recommend that all of the official

capacity claims, the claim alleging denial of access to the

courts, the excessive force claim against any NHSP employee other

than Valente, and defendant McCoole, be dismissed from this

action.

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation determining whether the

complaint or any portion thereof should be dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state 

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

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3

LR 4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988).

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4

Background

On January 14, 2006, Graham was sitting in a dayroom at the

NHSP with several other inmates watching a movie on television. 

Valente came onto the tier and announced to the inmates that he

was going to change the channel so that he could watch football. 

The inmates tried to convince Valente to allow them to watch the

end of the movie, but Valente refused. Valente then announced

that any further inmate complaints about the choice of television

programming would result in the complaining inmate being locked

in his cell. The inmates then left the area. Valente, however,

when he did rounds of the housing unit, verbally taunted and

antagonized the inmates about the television issue. When Valente

taunted Graham, Graham alleges that he called Valente on his

taunting behavior, and that the two men then began to challenge

each other with physical posturing. Valente then locked Graham

into his cell for the night. Graham reports that when he got

locked in, he “went off,” kicking the door repeatedly. 

Eventually, a number of NHSP officers, identified by Graham as

correctional officers Conners, Bergmann, Valente, Sweeney and

NHSP Nurse McCoole, arrived at Graham’s cell to restrain him in

handcuffs and escort him to the infirmary. After the officers

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5

entered Graham’s cell and restrained him, Valente called Graham a

“punk-ass bitch” and punched Graham in the forehead. Graham

reports that he has ongoing pain and migraine headaches that

started as a result of Valente punching him.

` On January 20, 2006, Graham sent a request slip to NHDOC

Commissioner Wrenn’s office requesting that the assault by

Valente be investigated. Graham claims that the prison engaged

in an “inquiry” rather than conducting a full-fledged

investigation, and that although he gave a statement, he has

heard nothing at all since making his report. Graham further

claims that since complaining about the January 2006 assault, he

has been denied food in retaliation for reporting the incident,

by defendants Marshall, Lemay, Goulette, Cattell, Wrenn, and

MacLeod. Graham claims that he has requested grievance forms to

grieve these matters administratively, but that defendants

Sweeney, Howland, Bergmann, Susca, and Conner have refused to

provide Graham with grievance forms.

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2The claims as identified herein will be considered for all

purposes to be the claims raised in the complaint. If Graham 

disagrees with this identification of the claims, he must do so

by proper objection to this Report and Recommendation or by

properly moving to amend his complaint.

342 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory of the District of Columbia, 

subjects, or causes to be subjected, any citizen of

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law . . . .

6

Discussion2

1. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19833; Parratt v. Taylor, 451

U.S. 527, 535 (1981); Wilson v. Town of Mendon, 294 F.3d 1, 6

(1st Cir. 2002). In order to be held liable for a violation

under § 1983, a defendant’s conduct must have caused the alleged

constitutional deprivation. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 692 (1978); Soto v. Flores, 103 F.3d 1056, 1061-62

(1st Cir.), cert. denied, 522 U.S. 819 (1997). 

2. Excessive Force

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7

To state a claim for the use of excessive force by a prison

official under the Eighth Amendment, an inmate must demonstrate

“unnecessary and wanton infliction of pain.” Whitley v. Abers,

475 U.S. 312, 319-20 (1986). The main inquiry in determining

whether prison officials used excessive physical force turns on

“whether force was applied in a good faith effort to maintain or

restore discipline, or maliciously and sadistically to cause

harm,” whether or not significant injury is evident. Hudson v.

McMillian, 503 U.S. 1, 6-8, 10 (1992) (citing Whitley, 475 U.S.

at 320-21). “That is not to say that every malevolent touch by a

prison guard gives rise to a federal cause of action.” Hudson,

503 U.S. at 9. “Not every push or shove, even if it may later

seem unnecessary . . . violates a prisoner’s constitutional

rights.” Id. (internal citations omitted). The Eighth

Amendment excludes from constitutional recognition de minimis

uses of physical force, provided that the force is “not repugnant

to the conscience of mankind.” Id. at 9-10 (citing Whitley, 475

U.S. at 327) (quoting Estelle, 429 U.S. at 106).

In determining whether a plaintiff has stated a claim for

unconstitutionally excessive force, the court should look to the

following four factors: (1) “the need for application of force,”

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8

(2) “the relationship between the need and the amount of force

that was used,” (3) “the extent of injury inflicted,” and (4)

“whether the force was applied in good faith to maintain or

restore discipline or maliciously and sadistically for the very

purpose of inflicting harm.” Garcia v. City of Boston, 115 F.

Supp. 2d 74, 81 (D. Mass. 2000), aff’d, 253 F.3d 147 (1st Cir.

2001).

Applying the Hudson standard, and the factors set out in

Garcia to this case, I find that Graham alleges that excessive

force was used against him when he was punched in the head by

Valente after he was restrained in handcuffs. Nothing in the

pleadings suggests that a post-restraint punch to the head that

was hard enough to cause persistent pain and migraine headaches

was warranted under the circumstances. Graham has alleged that

force was used against him by Valente disproportionately to any

need that may have existed for such an action, and that as a

result, he may well have sustained significant injury. Graham’s

description of Valente’s taunting and threatening behavior prior

to the assault is sufficient to allow for the reasonable

inference that the assault by Valente was malicious and conducted

with the intent to harm Graham. 

Case 1:06-cv-00453-JD Document 9 Filed 01/31/07 Page 8 of 16
4In an Order issued simultaneously with this Report and

Recommendation, I direct that the excessive force claim be served

on defendant Valente.

9

Graham’s own allegations raise little question that Graham’s

conduct prior to the assault likely justified his being

restrained by the officers. Accordingly, to the extent that

Graham intended an excessive force claim against the officers who

restrained him on January 14, 2006, I find that he has not stated

any facts which give rise to an inference that the officers acted

maliciously to inflict pain. Instead, Graham describes a scene

where he was out of control and physically aggressive, and

officers had to restrain him physically in order to restore

discipline and maintain institutional order. While I find that

Graham has alleged sufficient facts to state an excessive force

claim against Valente for his conduct after Graham was physically

restrained4, I find that he has not alleged that force used by

any other individual was unwarranted, and I accordingly recommend

that any intended excessive force claims against any officers

other than Valente be dismissed.

3. Right to Petition the Government for a Redress of 

Grievances/Right of Access to the Courts

Graham alleges that his rights have been violated because

his administrative complaint and request for an investigation

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10

regarding the assault was not appropriately investigated by the

prison administration, and also that defendants Sweeney, Howland,

Bergmann, Susca, and Conner have refused to provide him with

grievance forms so that he may avail himself of prison grievance

procedures. The First Amendment’s guarantee of a right to

petition the government for a redress of grievances has been

characterized as “among the most precious of the liberties

safeguarded by the Bill of Rights.” United Mine Workers v. Ill.

State Bar Ass’n, 389 U.S. 217, 222 (1967). The right of

petition, in the prison context, means that inmates must be

“permit[ted] free and uninhibited access . . . to both

administrative and judicial forums for the purpose of seeking

redress of grievances against state officers.” Sostre v.

McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (en banc), cert.

denied, Sostre v. Oswald, 404 U.S. 1049 (1972) and Oswald v.

Sostre, 405 U.S. 978 (1972), overruled on other grounds by

Davidson v. Scully, 114 F.3d 12, 13 (2d Cir. 1997). 

The First Amendment right to petition the government for a

redress of grievances includes redress under established prison

grievance procedures. See Sprouse v. Babcock, 870 F.2d 450, 452

(8th Cir. 1989); Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir.

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11

1988). Graham’s claims are not detailed, but for purposes of

preliminary review, they suffice to allege the minimum facts

necessary to state a claim for a violation of the right to

petition the government through available prison grievance

procedures. Accordingly, in an Order issued simultaneously with

this Report and Recommendation, I direct that the claim alleging

a denial of access to grievance procedures be served on

defendants Sweeney, Howland, Bergmann, Susca, and Conner.

The Constitution further guarantees a right of access to the

courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). This right

is derived from a number of sources, including the First

Amendment, the Due Process Clause, and the Privileges and

Immunities Clause of the Constitution. See Simmons v. Dickhaut,

804 F.2d 182, 183 (1st Cir. 1986) (collecting cases). Although

prisoners are not granted all of the constitutional rights

guaranteed to nonincarcerated people, they maintain a

constitutional right of access to the courts that affords them

access to the tools necessary to challenge their criminal cases,

criminal convictions and sentences directly or collaterally, to

file habeas petitions, or to challenge the conditions of their 

Case 1:06-cv-00453-JD Document 9 Filed 01/31/07 Page 11 of 16
12

confinement through civil rights actions. See Lewis v. Casey,

518 U.S. 343, 354-55 (1996). 

In order to state a claim for denial of access to the

courts, a prisoner must “demonstrate that the alleged

shortcomings in the library or legal assistance program hindered

his efforts to pursue a legal claim.” Lewis, 518 U.S. at 351. 

Therefore, a prisoner seeking relief under § 1983 for such a

violation must allege that the inadequacies of the legal

materials and services available to him have hampered his ability

to assert an actual legal claim that he is constitutionally

entitled to pursue during his incarceration. Id. 

Graham alleges generally that his right of access to the

courts has been denied. However, Graham has not alleged or

demonstrated that he has been hindered in pursuing any legal

action in any court that he is constitutionally entitled to

pursue. Accordingly, I recommend that Graham’s claim of a denial

of a right to access the courts be dismissed.

4. Retaliation

A prisoner’s right to petition the government for a redress

of grievances under the First Amendment precludes prison

officials from retaliating against a prisoner by punishing him

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13

for actions he takes in the exercise of those rights. See

Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). While

prison officials may make policy that is reasonably related to

legitimate penological interests, even at the expense of certain

constitutional rights, Beard v. Banks, ___ U.S. ___, 126 S. Ct.

2572, 2579 (2006) (citing Turner v. Safley, 482 U.S. 78, 89-90

(1987)), “actions otherwise supportable lose their legitimacy if

designed to punish or deter an exercise of constitutional

freedoms.” Ferranti v. Moran, 618 F.2d 888, 892 n.4 (1st Cir.

1980) (citing McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979));

see also Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert.

denied, 512 U.S. 1209 (1994) (prison officials cannot lawfully

impose a disciplinary sanction against a prisoner in retaliation

for the prisoner’s exercise of his constitutional right).

Graham alleges that he was subjected to retaliation in

return for exercising his right to file a grievance regarding the

January 2006 assault. Specifically, Graham alleges that

defendants Marshall, Lemay, Goulette, Cattell, Wrenn, and MacLeod

denied Graham food in retaliation for his formal accusations

against Valente. While this claim is lacking in details, I find

that by alleging that defendants punished him for exercising his

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14

First Amendment rights by withholding food, Graham has stated the

minimum facts necessary to establish a retaliation claim and, in

my Order issued this date, I direct service of this claim.

5. Official Capacity Claims

Section § 1983 authorizes suits against state actors

operating to deprive citizens of their constitutional rights. 

Because I have found that Graham has alleged constitutional

violations against a number of NHSP employees sufficient to state

a cause of action under § 1983, those individuals, defendants

Valente, Marshall, Lemay, Goulette, Cattell, Wrenn, MacLeod,

Sweeney, Howland, Bergmann, Susca, and Conner, will be defendants

to this suit in their individual capacities.

Graham also sued the defendants in their official

capacities. It is well-settled that the Eleventh Amendment bars

suits against state entities and state agents working in their

official capacities unless the state has expressly waived

immunity, which has not been done by New Hampshire for actions

brought under § 1983. See P.R. Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 139, 144 (1993) (absent waiver, neither a

State nor agencies acting under its control may be subject to

suit in federal court); Will v. Mich. Dep’t of State Police, 491

Case 1:06-cv-00453-JD Document 9 Filed 01/31/07 Page 14 of 16
5As previously stated, the remaining claims will be directed

served on the appropriate defendants in an Order issued

simultaneously with this Report and Recommendation.

15

U.S. 58, 71 (1989) (holding that neither a state nor its

officials acting in their official capacities are “persons” under

§ 1983). Official capacity suits against officers of an agency

are simply “another way of pleading an action against an entity

of which an officer is an agent.” Monell, 436 U.S. at 690 n.55. 

Accordingly, I recommend dismissal of all of the official

capacity claims against the defendants to this action.

Conclusion

For the foregoing reasons, I recommend that the excessive

force claim be dismissed against all of the named defendants with

the exception of Valente, that the claim alleging denial of

access to the courts, that defendant McCoole, and that all of the

official capacity claims be dismissed from this action.5 Any

objections to this Report and Recommendation must be filed within

ten (10) days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

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16

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 31, 2007

cc: William Graham, pro se

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