UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher Palermo

v. Civil No. 08-cv-109-JL

Suzanne Collins, Superintendent,

Coos County Department of

Corrections, et al.

O R D E R

Christopher Palermo filed a complaint pursuant to 42 U.S.C.

§ 1983, which came before Magistrate Judge Arenas for preliminary

review. On August 14, 2008, Judge Arenas issued an Order

(document no. 11), directing service of Palermo’s retaliatory

transfer claim against defendant Collins and his inadequate

medical care claims against defendants Eastman and Soucey, and a

Report and Recommendation (document no. 10) recommending

dismissal of the remaining claims in the complaint. Judge

Arenas’ Report and Recommendation is presently pending approval

before District Judge Laplante. 

Since the issuance of the August 14, 2008 Report and

Recommendation and Order, Palermo has filed two addenda to the

complaint (document nos. 12 & 13). In each of these addenda,

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1The three CCHC officers not previously named to this

action, who Palermo now seeks to add, are Officer Shannon (no

first name provided), Officer Champagne (no first name provided),

and Officer Michelle Hyde.

2

Palermo seeks to add retaliation claims against three defendants

at the Coos County House of Corrections (“CCHC”) not previously

named in this action. For the reasons explained herein, I direct

that these claims be served on the defendants named.1 I further

direct that these addenda (document nos. 12 & 13) be construed as

part of the complaint for all purposes.

Background

1. Retaliation Claim Against CCHC Officer Shannon

Palermo alleges that during the afternoon of August 6, 2008,

he went to the recreation room at the CCHC. Two inmates reported

to Palermo that while he was out of his housing unit, CCHC

Officer Shannon entered Palermo’s cell and was alone in there for

approximately five minutes. During that time, Shannon went

through a stack of Palermo’s legal paperwork that contained

information about Palermo’s pending civil and criminal cases,

including cases Palermo had filed against the CCHC. Upon

returning to his cell, Palermo noticed that his paperwork was in

disarray, that all of the papers in a file marked “Evidence Coos

Jail Grievances and Requests” had been opened, and that all of

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the paperwork in the file was missing. Ten postage stamps were

also missing. The inmate who witnessed Shannon going through

Palermo’s property told Palermo that he had seen Shannon take the

missing items, fold them, and place them into his back pocket

before leaving Palermo’s cell. 

Palermo contacted Shannon to ask about the incident. 

Shannon told Palermo to “keep [his] mouth shut,” or “it would get

a lot worse.” When Palermo requested the return of his property,

Shannon told him “put on your orange shirt you’re going upstairs

now you’ll lose everything this is my favorite time of day.” 

Shannon then took Palermo to a holding cell and locked the door,

telling Palermo “you don’t know when to stop.” Ten minutes

later, Shannon returned Palermo to the housing unit and told him

“we’ve got what we want, and I advise you to keep your mouth shut

from here on out” as the situation “could get a whole lot worse”

for Palermo. 

Palermo alleges that Shannon took papers from Palermo’s cell

that were intended to be used in his civil action against the

CCHC. Palermo states that his pending civil action against the

CCHC, as well as the location of his legal paperwork, was well

known among by CCHC staff members, and that Shannon’s actions and

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comments should be construed to indicate that the treatment he

received was in direct retaliation for the filing of civil

lawsuits against the CCHC. Palermo seeks to include a

retaliation claim against Shannon in this action. 

2. Retaliation Claims Against CCHC Officers Champagne and Hyde

On August 12, 2008, Palermo was served with a major

disciplinary write-up alleging that he was improperly in

possession of five dyed washcloths. When he was served with the

write-up, Palermo was advised that the hearing on the alleged

disciplinary violation would be held on the following day, August

13, 2008. Palermo requested that the inmates who had witnessed

the ransacking of his cell on August 6, and his legal counsel, be

present for the hearing. Palermo’s attorney contacted the CCHC

and asked that the hearing be continued to allow him to attend. 

Those requests were denied and the hearing was held on August 13,

2008.

The hearing officer, CCHC Officer Champagne, is also the

respondent in a civil action brought by Palermo that was then

pending in the state Superior Court. Palermo requested that an

unbiased hearing officer hear the matter and that the hearing be

audio recorded. Palermo also renewed his requests for witnesses,

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his attorney, and a continuance. All of Palermo’s requests were

denied by disciplinary board chairperson Michelle Hyde. Hyde

responded to Palermo’s requests for due process, and Palermo’s

explanation that a denial of his rights would subject the CCHC to

further civil litigation, by saying “I don’t give a damn about

your rights,” that if Palermo sued her she would be immune

because inmates “didn’t have civil rights,” and by telling

Palermo “just keep your mouth shut, we do things different up

here.” Approximately one half hour after the hearing ended,

Palermo was advised that he had been found guilty and that he had

been sanctioned with an order to pay restitution for the

destruction of the washcloths, and a loss of all of his

privileges for a period of two weeks.

The next day, August 14, 2008, Palermo attempted to go to

the law library to conduct research in his pending criminal case,

but was told that the restriction on his privileges would prevent

him from accessing the law library. When Palermo objected to law

library access being treated as a privilege, rather than a right,

he was told: “Palermo when are you going to get it through your

head we can do whatever we want to?” 

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2I do not construe the addenda as seeking to bring any

additional claim based purely on the denial of access to a law

library, as Palermo has not alleged any harm to any pending legal

matter as a result of the two-week denial of law library access

which is an assertion necessary to minimally state a cause of

action for denial of access to the courts. See Lewis v. Casey,

518 U.S. 343, 351 (1996) (finding that in order to state a claim

for denial of access to the courts under § 1983, a prisoner must

demonstrate that the denial of access to the courts “hindered his

efforts to pursue a legal claim.”). 

3As the standard of review set out in the August 14, 2008

Report and Recommendation has not changed since that

recommendation was issued, I again apply that standard of review

to this matter.

6

Palermo now seeks to add retaliation claims against

Champagne and Hyde to his complaint. Palermo alleges that the

denial of his rights at the disciplinary hearing, and imposition

of sanctions that restricted his law library use, were actions

taken in retaliation for his pending and threatened civil

litigation against the CCHC.2

Discussion3

As fully explained in the August 14, 2008 Report and

Recommendation, “an otherwise legitimate and constitutional

government act can become unconstitutional when an individual

demonstrates that it was taken in retaliation for his exercise of

First Amendment speech.” Anderson v. Davila, 125 F.3d 148, 161

(3d Cir. 1997); see Oropallo v. Parrish, No. 93-1953, 1994 WL

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7

168519, at *3 (D.N.H. May 5, 1994), aff’d, 23 F.3d 394 (1st Cir.

1994) (Conduct on the part of prison officials that is “not

otherwise constitutionally deficient is actionable under § 1983

if done in retaliation for the exercise of constitutionally

protected first amendment freedoms.”). A retaliation claim has

three elements: (1) the plaintiff was engaged in protected

conduct; (2) the defendants took an adverse action against the

plaintiff that would deter a person of ordinary firmness from

engaging in the protected conduct; and (3) that there is a causal

connection between the adverse action and the protected conduct. 

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999); Soto v.

Iacavino, No. 01 Civ. 5850 (JSM), 2003 WL 21281762 at *2

(S.D.N.Y. June 4, 2003). 

Here, Palermo has alleged that certain adverse actions, to

wit, the ransacking of his belongings and removal of his legal

papers from his cell by Shannon, the disciplinary hearing in

front of a biased hearing officer, the denial of due process at

the disciplinary hearing, the denial of relief by Hyde, and the

disciplinary sanctions resulting in loss of the use of the law

library, were taken in direct retaliation for the exercise of his

first amendment right to engage in civil rights litigation

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against the CCHC. Palermo has stated facts sufficient to allege

that these acts by Shannon, Champagne, and Hyde were motivated by

his litigation against the CCHC, were retaliatory and intended to

punish him for the exercise of his First Amendment rights. 

Accordingly, I find that Palermo has stated claims upon which

relief might be granted, and I direct that these claims proceed

against defendants Shannon, Champagne, and Hyde.

Conclusion

For the reasons stated herein, the claims alleging that

Shannon, Champagne, and Hyde engaged in improper and

unconstitutional retaliation may proceed. I direct, therefore,

that this action be served on those defendants. 

My review of the file indicates that Palermo has completed

summons forms for each of the defendants named in the addenda to

the complaint (documents no. 12 & 13). The Clerk’s office is

directed to issue the summonses against defendants and forward to

the United States Marshal for the District of New Hampshire (the

“U.S. Marshal’s office”) the summonses and copies of the

complaint (document nos. 1, 3, 6, 9, 12 & 13), the August 14,

2008 Order and Report and Recommendation, and this Order. 

Further, the newly filed addenda (document nos. 12 & 13), as well

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as this Order, are to be served upon defendants Collins, Eastman,

and Soucey, whom I have previously directed be served in this

action. Upon receipt of the necessary documentation, the U.S.

Marshal’s office shall effect service upon Defendants. See Fed.

R. Civ. P. 4(c)(2). 

Defendants are instructed to answer or otherwise plead

within twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A). 

Palermo is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: August 29, 2008

cc: Christopher Palermo, pro se

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