1Because Peterson is proceeding pro se, and has not included

all of the information provided in his original complaint in the

amended complaint, I will accept the complaint (document no. 4)

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Warren E. Peterson

v. Civil No. 05-cv-055-PB

Donna Roe, et al.

REPORT AND RECOMMENDATION

Warren Peterson filed a complaint pursuant to 42 U.S.C. §

1983 alleging that his right to adequate medical care and his

procedural due process rights had been violated by employees of

the New Hampshire State Prison (document no. 4). On April 27,

2005, this Court issued a Report and Recommendation recommending

dismissal of the due process claim (document no. 5) and an Order

directing service of the medical care claim against Jane Coplan

(document no. 6). Rather than file an objection to the Report

and Recommendation, Peterson has now filed an Amended Complaint

(document no. 8) which has been referred to me (document no. 9)

for consideration of whether or not the Amended Complaint affects

the Report and Recommendation previously issued in this case.1

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 1 of 27
and the amended complaint (document no. 8), in the aggregate, as

the complaint in this matter.

2

For the reasons stated herein, I find that the Amended Complaint,

to the extent it was intended to adequately state a due process

claim, fails to revive that claim to allow it to proceed. The

amended complaint also seeks to add five defendants and a number

of additional claims to this action. Peterson has also requested

the appointment of counsel in this matter. 

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).

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

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3

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).

Background

1. Facts Relating to Claims Alleging Inadequate Medical Care

Warren Peterson, a NHSP inmate, alleges that in 1985, he had

surgery to repair an anal fissure. This surgery resulted in

scarring and permanent narrowing of his anus. As a result,

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4

Peterson’s doctor placed him on a strict high and whole fiber

diet that he was told he would have to follow for the remainder

of his life. 

Prior to beginning his NHSP sentence, Peterson was held in

the custody of the Rockingham County Department of Corrections,

and was provided with his medically required high/whole fiber

diet at that institution. On November 11, 1999, Peterson was

transferred to the NHSP, where his high/whole fiber diet was

discontinued. During his first two years at the NHSP, Peterson

made twenty-five requests for his high/whole fiber diet to be

reinstated. As a result of the discontinuation of his high/whole

fiber diet, Peterson began to suffer from medical problems.

On April 27, 2001, more than seventeen months after his

transfer to the NHSP, Peterson received a medical pass from the

NHSP dietician to receive cereal bran once each morning. On May

7, 2001, Peterson saw Dr. Russell Strong at Concord Surgical

Associates due to his increasing constipation and anal pain. Dr.

Strong recommended, among other things, that Peterson receive a

high fiber diet. Peterson saw Dr. Strong again on June 11, 2001

for a follow-up. Dr. Strong again recommended a high fiber diet. 

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5

On July 31, 2001, however, Peterson’s medical pass for cereal

bran expired and was not renewed.

Peterson continued to request a high/whole fiber diet, but

his requests were met with directives to report to Health

Services for sick call if he was sick, increase his water intake,

increase his exercise, and a statement that the regular diet he

received at the NHSP was sufficiently high in fiber. On

September 9, 2001, after twenty-two months at the NHSP, Peterson

was approved for a high fiber diet, but did not receive his diet

sticker allowing him a special diet for an additional two months. 

Once he received his sticker, Peterson was provided with extra

canned fruit and/or extra vegetables each day.

In December of 2001, Peterson was again prevented from

eating with the inmates receiving special diets because his name

was not on “the list.” This omission was not rectified for

several months. Again, the delay in the provision of a medically

appropriate diet resulted in Peterson suffering from constipation

and anal pain. 

On February 6, 2002, while housed at NHSP’s South Unit,

Peterson requested a pass to go to the infirmary for a medical

emergency at 4:00 p.m. because he was suffering from extreme pain

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 5 of 27
6

as a result of his constipation and needed medical attention. He

was referred by the corrections officer on duty to Sgt. Blake, to

whom he also explained his problem. Blake told Peterson the

infirmary wouldn’t see him until the next morning’s sick call. 

Peterson attempted to wait, but the situation did not resolve and

his pain intensified. 

By 6:00 p.m., Peterson’s situation was severe enough that

Blake called the infirmary to request that Peterson be seen for

an emergency visit. Although the medical staff at the infirmary

was aware of Peterson’s serious medical condition and was advised

by Blake of the severity of the situation, the infirmary nurse

told Blake over the phone that Peterson would have to wait for

the following morning’s sick call.

By 8:00 p.m., Peterson’s pain was excruciating and was not

relieved with high doses of ibuprofen. Blake again called the

infirmary and Peterson was permitted to speak on the telephone

with a nurse named Donna. Donna told Peterson he would have to

wait until the morning sick call because the infirmary had no

ability to provide emergency care. 

At 11:30 p.m., Peterson was in his cell and called the

corrections officer on the intercom to say again that he needed

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 6 of 27
7

to be seen on an emergency basis. When the corrections officer

asked Peterson what the problem was, Peterson believed that his

efforts to obtain care were futile and didn’t press his request

at that time. Instead, Peterson attempted to kill himself by

cutting his throat with a razor blade. After his suicide

attempt, two corrections officers arrived at his cell and took

Peterson to a holding tank and left him there without clothing or

cover or any relief for his pain. A captain arrived to question

Peterson, who told the captain he was in unbearable pain and

needed medical attention. Peterson explained that the intestinal

blockage he was experiencing was now putting pressure on his

kidneys and bloating his stomach so that in addition to his

constipation, he was unable to urinate. The Captain refused

Peterson’s request for emergency medical treatment, and returned

Peterson to his cell with instructions to “behave.” Peterson’s

pain continued unabated through the night.

At 5:30 a.m. on February 7, 2002, Peterson asked C.O. Lanman

if he could go to sick call early. Lanman refused the request,

stating that it made the infirmary staff angry when inmates were

sent early to sick call. Peterson was allowed to go to the

infirmary shortly after 7:00 a.m. Once at the infirmary,

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 7 of 27
8

Peterson waited an hour and a half to be seen by the medical

staff. Peterson was then catheterized and 1000cc of urine was

drained from his bladder. Peterson was returned to the waiting

room to wait to be seen by the doctor. 

Peterson was seen by Dr. Fellows from mental health

regarding his suicide attempt. Dr. Fellows moved Peterson to an

isolation tank and placed him on suicide watch with instructions

that he be checked every fifteen minutes. There was neither a

toilet nor running water in the isolation tank. Peterson was

held in the isolation tank for several hours, and only checked on

once, despite the fact that he was pleading to see a nurse and to

receive some medication for his pain.

At 1:30 p.m., Peterson was seen by nurse Brad. Brad told

Peterson he would be given an enema. After 2:00 p.m., the enema

was administered, and after twenty minutes, the blockage passed,

leaving an enormous mess. Peterson was given paper towels and

told to clean the mess himself. He subsequently passed out.

The following morning, February 8, 2002, the pressure and

anal pain began to return, but Peterson was still being held in

the isolation tank with no access to a toilet or running water. 

Corrections officer Caoutte was on duty, and although he was

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 8 of 27
9

supposed to check on Peterson every fifteen minutes, those checks

were done less frequently. Peterson attempted to get the

attention of a staff member so that he could gain access to a

toilet but received no response. The signal light he was

supposed to use to get a staff member’s attention was not

functioning. When Peterson was given access to a toilet, he was

rushed and was not able to resolve his situation. Peterson was

then left for several hours without access to a toilet. At that

time, he relieved himself on the floor, again creating a mess. 

Peterson then fell asleep but was awoken by a corrections officer

who berated Peterson and told him to clean up the mess.

Peterson filed a grievance with Warden Coplan but was

scolded for defecating on the isolation tank floor. He appealed

the grievance to the Commissioner but never received a response. 

Instead, Peterson says that he was written up for a disciplinary

violation and charged $83 to replace a plastic mat that he had

torn while clutching it in pain.

Peterson now claims that he was denied adequate medical care

for his serious medical condition in that (1) he was denied a

medically necessary diet for a period in excess of two years,

beginning on November 11, 1999 and continuing until after the

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 9 of 27
10

February 2002 incident described herein, (2) he was made to

suffer through horrible pain and lack of treatment during the

episode occurring between February 6 and February 8, 2002, (3)

that the lack of medical care at the NHSP caused him to suffer a

blocked urethra, and a worsening of his previously diagnosed

medical problems and pain, and (4) that he suffered from the

serious mental illness chronic depression which was exacerbated

by the lack of medical care he received.

2. Facts Relating to Due Process, Property Loss, Denial of 

Access to the Courts, Conditions of Confinement and Other 

Claims

Peterson alleges that he takes a prescribed drug, Effexor

XR, daily, and that as a consequence, he frequently suffers from

an impaired ability to urinate. Peterson claims that this is a

known side effect of the medication, and that the NHSP medical

staff is aware that Peterson suffers from this side effect, and

has treated him for it. 

Peterson further alleges that despite having no history of

substance abuse, and no positive urine screens during his

incarceration, he was requested to provide urine samples for drug

screening on December 13, 2002 and February 23, 2003. On both

occasions, Peterson was unable to provide a urine sample due to

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 10 of 27
11

the effects of his prescribed medication. Despite the fact that

his medical condition was documented at the NHSP, Peterson

alleges that Warden Jane Coplan, Health Services Security Officer

Caoutte and NHSP Security Lieutenant Torez subjected Peterson to

disciplinary proceedings for failing to provide urine samples on

those occasions. Peterson was eventually exonerated of the

disciplinary charges against him, but not before he served forty

days in punitive segregation for the charges.

As a result of the disciplinary procedures against him,

Peterson says that he was moved within the institution a number

of times, resulting in the loss, damage, or destruction of over

$1000 of his property. Some of the items in question were

extensive legal files that Peterson had maintained, that were

disheveled, misplaced, or damaged. Peterson claims that

Corrections Officers Scott Nachodil, Ray, and a John Doe

corrections officer, as well as Coplan, were responsible for the

improper handling of his legal documents. 

In addition to the occasions, after his suicide attempt,

where he was held in the cold with inadequate clothing or cover

and without access to a toilet, Peterson claims that when he was 

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 11 of 27
12

held at SHU between December of 2002 and January 2003, he was

held in a cell into which sewage was backing up.

Peterson also asserts that during a time when he was held at

the NHSP’s Closed Custody Unit, the correctional staff allowed

him to be threatened by other inmates. Peterson also claims that

his frequent transfers resulted in his being denied a job he had

been promised in the institution, which would have provided him

with positive facts to bring to a parole hearing. Peterson

alleges that his chances to be granted parole have been

diminished by the denial of programming, employment and other

opportunities to present positive facts to the parole board. 

Discussion

1. Inadequate Medical and Mental Health Care Claims

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

medical needs. See Farmer v. Brennan, 511 U.S. 825, 831 (1994). 

To assert a viable cause of action for inadequate medical care,

an inmate must first state facts sufficient to allege that the

plaintiff has a serious medical need for which adequate care has

not been provided. Farmer, 522 U.S. at 831; Rhodes v. Chapman,

452 U.S. 337 (1981); Estelle, 429 U.S. at 106. The inmate must

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 12 of 27
13

then allege that a responsible prison official was aware of the

need or of the facts from which the need could be inferred, and

still failed to provide treatment. Estelle, 429 U.S. at 106. A

serious medical need is one that involves a substantial risk of

serious harm if it is not adequately treated. Barrett v. Coplan,

292 F.Supp.2d 281, 285 (D.N.H. 2003); Kosilek v. Maloney, 221

F.Supp.2d 156, 180 (D.Mass. 2002) (citing Farmer, 511 U.S. at

835-47); see also Mahan v. Plymouth County House of Corr., 64

F.3d 14, 18 (1st Cir. 1995) (defining a serious medical need as

one “‘that has been diagnosed by a physician as mandating

treatment, or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor’s attention.’”). The

Eighth Amendment’s guarantee of adequate medical care applies to

both mental health and physical health needs. Torracco v.

Maloney, 923 F.2d 231, 234 (1st Cir. 1991). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

tailored to an inmate’s particular medical needs, and that are

based on medical considerations. United States v. DeCologero,

821 F.2d 39, 42-43 (1st Cir. 1987). This does not mean that an

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 13 of 27
14

inmate is entitled to the care of his or her choice, simply that

the care must meet minimal standards of adequacy. Deliberate

indifference may be found where the medical care provided is “so

clearly inadequate as to amount to a refusal to provide essential

care.” Torracco, 923 F.2d at 234. Constraints inherent in a

prison setting may affect the choice of care provided, and may be

relevant to whether or not prison officials provided inadequate

care with a deliberately indifferent mental state. Wilson v.

Seiter, 501 U.S. 294, 302 (1991). 

In this case, Peterson had a history of painful medical

conditions as well as serious psychological and psychiatric

problems that were well-known to the prison. Not only had

Peterson been treated for these conditions at Rockingham County

Department of Corrections prior to his incarceration at NHSP, but

he made all of the medical staff at the NHSP aware of his medical

needs and the severity of those needs, and he provided them

access to his medical records. Further, during his incarceration

at the NHSP, Peterson was treated a number of times for both his

medical and mental health conditions. Although Peterson’s

serious medical and mental health needs were well-documented by

treating physicians, Peterson alleges that the defendants in this

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 14 of 27
15

case denied him adequate medical care in the form of adequate

medication, diet, or other treatment to alleviate his pain and to

treat his mental health issues. I find, as I did in my April 27

Report and Recommendation, that Peterson has adequately stated a

claim for inadequate medical and mental health care in violation

of the Eighth Amendment. Accordingly, I will direct all of these

claims to be served on defendants Marie Wharing, the dietician at

the NHSP who denied Peterson a medical diet, Lanman, Caoutte and

Coplan in an Order issued simultaneously with this Report and

Recommendation.

2. Due Process

In Peterson’s initial complaint, he alleged a due process

claim arising out of what he alleges were sanctions he was made

to endure for a disciplinary violation of which he was later

exonerated. In my April 27 Report and Recommendation, I

recommended dismissal of the due process claims because Peterson

failed to state any consequence of a disciplinary proceeding that

exceeded the scope of his underlying sentence or of the

reasonable expectations of incarcerative life. See Sandin v.

Conner, 515 U.S. 472, 483-84 (1995). Nothing in Peterson’s 

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 15 of 27
16

amended complaint rescues his due process claim, however, and I

continue to recommend that it be dismissed.

3. Transfers

Peterson alleges that while his disciplinary proceedings

were pending, he was, as a result of those proceedings,

transferred forty-three times and subjected to a higher

classification level, and subjected to conditions of confinement

that were more burdensome than those in which he had previously

been held. Peterson alleges that this was in violation of his

rights. In Meachum v. Fano, the Supreme Court held that if an

inmate is transferred within the sentencing state, absent a state

law or practice that creates a right for the inmate to certain

pretransfer procedures, the inmate has no liberty interest in

being housed or classified in a particular facility or in a

particular security status. 427 U.S. 215, 225 (1976). “[A]n

increase in burdensome conditions does not in itself implicate

the due process clause.” Sisbarro v. Warden, 592 F.2d 1, 3 (1st

Cir. 1979) (citing Meachum, 427 U.S. at 224-25). This is so

because when a prisoner receives a state prison sentence, that

sentence anticipates that the inmate might be held in any of the

state prison facilities or classifications in the state and

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 16 of 27
17

authorizes the prison administration to execute the sentence in

accordance with those expectations. Meachum, 427 U.S. at 224-225

(a state is empowered to house a convicted prisoner “in any of

its prisons” and can transfer an inmate “from one institution to

another within the state prison system” because “[c]onfinement in

any of the State’s institutions is within the normal limits or

range of custody which the conviction has authorized the state to

impose.” (emphasis added)); Montanye v. Haymes, 427 U.S. 236, 242

(1976) (discussing that the holding in Meachum dictates that

“[a]s long as the conditions or degree of confinement to which

the prisoner is subjected is within the sentence imposed upon him

and is not otherwise violative of the Constitution, the Due

Process Clause does not in itself subject an inmate’s treatment

by prison authorities to judicial oversight.”). Here, Peterson

does not allege facts sufficient to state a constitutional

violation for transfers within the NHSP or the addition of

burdensome conditions of confinement occasioned by those

transfers. Therefore, I recommend that Peterson’s claims

relating to his transfers within the NHSP be dismissed.

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4. Conditions of Confinement

Peterson alleges that the conditions of his confinement

during times that he was housed at the Secure Housing Unit and

the infirmary’s isolation tank at the NHSP were unconstitutional

in that, during those times, he was either subjected to inhumane

and unsanitary sewage flowing into his cell, and was denied

access to a toilet and running water for extended periods of

time, Peterson further alleges that at times he was held in cells

with inadequate protection from the cold. 

Prison conditions for sentenced inmates are scrutinized

under the Eighth Amendment, which protects against the infliction

of cruel and unusual punishment. See Farmer v. Brennan, 511 U.S.

825, 832 (1994). The Eighth Amendment prohibits any punishment

which violates civilized standards of decency or involves the

“unnecessary and wanton infliction of pain.” Ingraham v. Wright,

430 U.S. 651, 670 (1977) (quoting Estelle, 429 U.S. at 102-03). 

An Eighth Amendment claim challenging conditions of confinement

contains both an objective and a subjective component. See

Wilson, 501 U.S. at 298. The objective component requires the

plaintiff to demonstrate that he has been subjected to specific

deprivations that are so serious that they deny him “the minimal

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19

civilized measure of life’s necessities.” Rhodes, 452 U.S. at

347. The subjective component requires the plaintiff to

demonstrate that the prison officials acted wantonly, with

deliberate indifference to the plaintiff’s serious needs. See

Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 298-99. Deliberate

indifference is the reckless disregard of a substantial risk of

serious harm. “Eighth Amendment liability requires more than

ordinary lack of due care for the prisoner’s interests or

safety.” Farmer, 511 U.S. at 835. I find that the conditions

described by Peterson regarding sewage in his cell and lack of

access to running water or toilet facilities or lack of adequate

clothing or cover to protect him from the cold state a claim for

unconstitutional prison conditions upon which relief might be

granted. Accordingly, I find that Peterson’s allegations

regarding his conditions of confinement claim are sufficient to

state a claim upon which relief might be granted. Peterson has

failed, however, to name any defendant responsible for the

conditions complained of, and so I recommend this claim be

dismissed at this time. Peterson may renew this claim if he

properly amends his complaint to name specific defendants 

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 19 of 27
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responsible for his subjection to the unconstitutional conditions

of confinement he describes.

5. Property Claim

Peterson alleges that as a result of his transfers within

the NHSP, he was deprived of over $1000 worth of property by

virtue of theft, loss, damage, or prison regulations restricting

the possession of property he was previously permitted to have. 

Claims alleging the theft, damage, loss or other misappropriation

of property are not actionable under 42 U.S.C. § 1983 where, as

here, the state has an adequate post-deprivation remedy is

available. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see N.H.

Rev. Stat. Ann. 541-B:9(II) & (IV), and 541-B:14 (1997)

(providing a post-deprivation means of recouping property loss

attributable the State). Therefore, I recommend this claim be

dismissed from this action.

6. Denial of Access to the Courts Claim

Peterson claims that his rights were violated by the loss,

destruction or intentional mishandling of his legal papers. 

Although he did not plead a claim for denial of access to the

courts, a liberal reading of the complaint indicates that

Peterson may have been attempting to claim a violation of that

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right when his legal paperwork was tampered with. 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

confinement through civil rights actions. Lewis v. Casey, 518

U.S. 343, 345 (1996). In order to state a claim for denial of

access to the courts under § 1983, a prisoner must demonstrate

that the actions that resulted in the deprivation of access to

the courts “hindered his efforts to pursue a legal claim” that he

is constitutionally entitled to pursue during his incarceration. 

Id. at 351. 

Here, Peterson has only stated that his legal paperwork was

misplaced and/or mistreated. He has not stated whether, or how,

any legal case he was constitutionally entitled to pursue has

been damaged by the removal of the paperwork from his cell. 

Therefore, I find that he has failed to state a claim for the

denial of access to the courts alleging these facts and I

recommend that this claim be dismissed from this action.

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7. Claim that Defendants Allowed Peterson to be Threatened

Peterson claims that the defendants violated his

constitutional rights by allowing him to be housed in a place

where he was threatened by other inmates. The state is required

to protect prison inmates from harm from other inmates in some

circumstances. See Rivera v. Rhode Island, 402 F.3d 27, 34 (1st

Cir. 2005) (citing DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 197, 200 (1989)). However, there is no

constitutional right to be protected from verbal threats not

associated with any actual physical harm. See Shabazz v. Cole,

69 F.Supp.2d 177, 198-201 (D.Mass. 1999) (citing authority to

explain that racial slurs and verbal threats do not violate a

prisoner’s constitutional rights). Accordingly, I find that

Peterson has not alleged a constitutional violation upon which a

viable § 1983 claim might rest and I recommend that this claim be

dismissed from this action.

8. Claim Alleging Loss of a Prison Job

Peterson alleges that as a result of the defendants’

actions, he was denied a prison job to which he was entitled. To

the extent that Peterson raises this as a constitutional

violation claim under § 1983, “it is clear that unless state laws

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23

or regulations are to the contrary, prisoners have no vested

property or liberty rights to either obtain or maintain prison

jobs.” Dupont v. Saunders, 800 F.2d 8, 10 (1st Cir. 1986). 

Peterson therefore lacks any federal constitutional claim with

respect to not being given a prison job and I recommend this

claim be dismissed. 

9. Claim Alleging Damage to Chances of Receiving Parole

Peterson alleges that by virtue of the disciplinary

proceedings against him, he lost a job, was moved several times,

was subjected to a higher classification, and was denied

programming. Although he was eventually exonerated of

disciplinary charges, Peterson alleges that these consequences of

the proceedings hurt his chances of receiving parole by depriving

him of the opportunity to present positive facts to the parole

board. 

A convicted person has no constitutional right to be

conditionally released before the expiration of a valid sentence. 

See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.

1, 7 (1979). A valid conviction, with all its procedural

safeguards, extinguishes that liberty right. Id.; see also

Meachum, 427 U.S. at 224. A right to parole under the Due

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Process Clause exists only if such right is created by state law. 

See Sandin, 515 U.S. at 483-84; Hamm v. Latessa, 72 F.3d 947,

954-55 (1st Cir. 1995); Brooker v. Warden, N.H. State Prison, No.

98-466-JD, 1999 WL 813893, at * 2 (D.N.H. June 22, 1999). Here,

it is clear that Peterson has no state-created liberty interest

in parole. See Jago v. Van Curen, 454 U.S. 14, 19-21 (1981);

Ainsworth v. Risley, 244 F.3d 209, 216-17 (1st Cir. 2001);

Knowles v. Warden, N.H. State Prison, 140 N.H. 387, 389 (1995). 

“In determining whether state law provides a protectable liberty

interest in parole, federal courts are bound by the state’s

interpretation of applicable state law unless that construction

or application violates federal law.” Brooker, 1999 WL 813893,

at * 2.

 The applicable New Hampshire parole laws are found in

Chapter 651-A of the New Hampshire Revised Statutes Annotated

(“RSA”). The statute provides the terms of release for parole:

A prisoner may be released on parole upon the expiration of the minimum term of his sentence, [as adjusted

by other statutory provisions], provided that there

shall appear to the adult parole board, after having

given the notice required in RSA 651-A:11, to be a

reasonable probability that he will remain at liberty

without violating the law and will conduct himself as a

good citizen. 

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RSA 651-A:6, I (1996) (emphasis added). Under the authority

provided by RSA 651-A:4, III, the Parole Board has adopted rules

pertaining to parole policy:

Parole shall be considered a privilege, something to be

earned rather than automatically given, and any release

prior to the maximum term shall be made only upon

careful and lawful consideration. An inmate shall not

be granted parole unless the board finds a reasonable

probability that the inmate will remain at liberty

without violating any law and will conduct himself as a

good citizen, pursuant to criteria in Par 301.02. 

N.H. Code Admin. R. Ann. 301.02 (2003). 

The New Hampshire Supreme Court has repeatedly held that the

Parole Board has broad discretion in its parole decisions and

that the Board is not mandated to grant parole to an inmate who

meets certain conditions. See Knowles, 140 N.H. at 389; Cable v.

Warden, 140 N.H. 395, 398 (1995); Baker v. Cunningham, 128 N.H.

374, 381 (1986). “The possibility of parole is not a right to

liberty conferred by New Hampshire state law.” See Brooker, 1999

WL 813893, at * 4. Peterson is a convicted prisoner, and

therefore, to the extent that he attempts to assert a claim based

on a diminished opportunity to obtain parole, he has no

constitutionally protected liberty interest in the right to

parole or any state-created liberty interest in parole. 

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 25 of 27
26

Therefore, I recommend that Peterson’s parole-based claim be

dismissed.

10. Request for Court-Appointed Counsel

Peterson’s amended complaint contains a request for courtappointed counsel. The motion is denied. There is no absolute

constitutional right to free legal representation in a civil

case. Bemis v. Kelley, 857 F.2d 14, 15 (1st Cir. 1988). Rather,

appointment of counsel in a civil case is left to the discretion

of the court. See 28 U.S.C. § 1915(d). An indigent litigant

must demonstrate that exceptional circumstances exist to justify

appointment of counsel, such that without counsel the litigant

most likely would be unable to obtain due process of the law. 

DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991); Cookish v.

Cunningham, 787 F.2d 1, 2 (1st Cir. 1986) (per curiam). In the

case at hand, Peterson has failed to establish the existence of

such circumstances. Peterson’s motion for counsel is therefore

denied without prejudice to refiling in the future should

circumstances warrant.

Conclusion

For the foregoing reasons, I recommend that all of

Peterson’s claims be dismissed, except for those claims related

Case 1:05-cv-00055-PB Document 12 Filed 06/23/05 Page 26 of 27
2As I advised Peterson in my April 27 Report and

Recommendation, he may seek to add Doe and Roe defendants to this

action once they have been identified through the discovery

process.

27

to inadequate medical and mental health care and medical diet. 

In an Order issued simultaneously with this Report and

Recommendation, I will direct service of the inadequate medical

and mental health care and medical diet claims against defendants

Coplan, Wharing, Lanman, and Caoutte.2

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 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: June 23, 2005

cc: Warren E. Peterson, pro se

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