UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Todd M. Horstkotte

v. Civil No. 08-cv-61-JL

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Todd Horstkotte, currently incarcerated at

the New Hampshire State Prison (“NHSP”), brought this 42 U.S.C. §

1983 action to complain about the inadequate medical care he has

received for his hepatitis C (“HCV”) infection, asserting claims

based on constitutional, federal statutory, and state law. In

the complaint, plaintiff requested a preliminary injunction to

release him from “unlawful incarceration.” Compl. (document no.

1) at 31. That claim was dismissed following preliminary review

of the complaint, because claims of unlawful detention must be

brought under the habeas corpus statute, 28 U.S.C. § 2254, not

under § 1983. The complaint was construed, however, to be

seeking injunctive relief to obtain urgently needed medical care. 

See 28 U.S.C. § 1915A(a); United States District Court for the

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District of New Hampshire Local Rule (“LR”) 4.3(d)(2). 

Defendants objected (document no. 13). The matter was referred

to me for a recommendation of disposition, see 28 U.S.C. § 636

(b)(1)(b), and a hearing was held on May 22, 2008. 

Since the hearing, plaintiff has filed two motions for a

preliminary injunction (document nos. 34 and 42). Plaintiff

moved to dismiss the first motion (document no. 34), which

request was granted on July 29, 2008. The second motion

(document no. 42) seeks an injunction to have the NHSP infirmary

inspected. That motion, and defendants’ objection thereto

(document no. 48), are currently before the court. Pursuant to

this court’s order of May 27, 2008, defendants filed a Notice of

Compliance to inform the court of plaintiff’s classification

status (document no. 20). Also pursuant to that same order,

defendants filed a report on the results of plaintiff’s June 19,

2008, parole hearing (document no. 30). These documents, along

with the several exhibits filed by both parties in support of

their respective positions on the preliminary injunction

requests, comprise the current record before the court. After

carefully considering the facts and arguments presented in

support of the relief sought, I find that plaintiff has failed to

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meet the substantial burden necessary to justify a preliminary

injunction and recommend his requests for injunctive relief be

denied. 

Background

On June 27, 2007, plaintiff arrived at the NHSP to begin

serving a 1-3 year sentence. As part of the routine intake

evaluation process, blood tests were performed, which revealed

that plaintiff’s liver enzyme levels (“ALT”) were 171. See

Defs.’ Obj. to Pl.’s Request for Inj. Relief (document no. 13)

(“Defs.’ Obj.”), Ex. A., Aff. of Celia Englander, M.D., ¶¶ 4-5. 

That ALT level, combined with plaintiff’s history of substance

abuse, indicated that plaintiff may have HCV, so further testing

was ordered in July 2007 which confirmed the presence of that

virus. See id. ¶¶ 6-7; see also Defs.’ Exs. for the Prelim. Inj.

Hrg. (“Defs.’ Ex.”), H & J. Pursuant to standard procedure,

plaintiff was also tested for hepatitis A and B and subsequently

vaccinated against both diseases in the fall of 2007. See Defs.’

Obj. ¶ 9; Defs.’ Ex. I. 

Because plaintiff has HCV, NHSP medical director, defendant

Dr. Celia Englander (“Dr. Englander”), evaluated his records to

determine whether he was a candidate for treatment. See Defs.’

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Obj., Ex. A, ¶ 10. Plaintiff’s minimum parole date (“MPD”) was

January 16, 2008, which automatically excluded him from treatment

under the prison’s HCV treatment protocol. NHSP policy provides

that an inmate must remain incarcerated for at least two and a

half years after the time of diagnosis to qualify for treatment. 

See id.; see also Defs.’ Obj., Ex. B, Aff. of Robert Macleod,

M.D., ¶ 9. That policy factors in a period of time to evaluate

the progression of the disease and perform diagnostic testing,

then approximately 12 months to fully administer the drug

treatment program if it is warranted, followed by another six

months for the patient to be monitored post-treatment because of

the lingering toxicity of the drugs used. See id., Ex. A, ¶ 11;

Ex. B, ¶ 9. The MPD baseline enables the NHSP to ensure that the

patient receives the complete course of treatment while in

custody and avoids the potential health risks that interrupting

treatment can cause. See id., Ex. A, ¶ 11; Ex. B., ¶¶ 11-12. 

Because plaintiff’s MPD was only six months away, and plaintiff’s

sentence was only 1-3 years, he did not qualify for treatment,

eliminating the need for further diagnostic testing. See id.,

Ex. A, ¶ 12. 

Dr. Englander knew plaintiff had been incarcerated at the

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1During that previous incarceration, blood tests performed

on plaintiff in November 2005 showed no evidence of HCV, with an

ALT level at 10, which is considered normal for an uninfected

person. 

5

NHSP previously and released in June 2006. Based on his records,

she also knew plaintiff had contracted the disease sometime

between November 2005, when plaintiff’s ALT levels were normal,

and June 2007, when he was readmitted to the NHSP, and that it

was most likely he had contracted HCV after June 2006 when he was

last released from the NHSP.1 Given the onset time frame and

plaintiff’s highly elevated ALT levels, Dr. Englander deduced 

that plaintiff’s illness was in its early stages, indicating that

drug therapy would be inadvisable. See id., ¶¶ 10-11. 

In August 2007, plaintiff inadvertently discovered he had 

HCV when he saw a medical record that reflected the diagnosis. 

Plaintiff was upset and sought medical attention to determine the

extent of his liver damage. To provide plaintiff with more

definitive information, in October 2007 Dr. Englander ordered

another blood test, the fibrosure test, which measures fibrosis

in the liver to help determine the disease’s progression. See

id., ¶ 12; see also Defs.’ Ex. K. Plaintiff’s fibrosure test

results measured at .32, which indicated his HCV had progressed

to stage “F1-F2.” Id. The range for stage F1-F2 is .31 to .48;

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results below .31 fall into stage F0-F1. Because the fibrosure

test is highly sensitive and can “over read” fibrosis damage, and

because plaintiff had only recently contracted the disease, Dr.

Englander believed plaintiff’s HCV was most likely no greater

than stage F1. See Defs.’ Obj., Ex. A, ¶¶ 13-15.

On December 10, 2007, Dr. Englander met with plaintiff to

explain his test results and treatment options. See id., Ex. A,

¶ 16. She advised plaintiff that drug therapy generally is not

recommended for patients at the early stages of the disease,

which plaintiff was at stage F1-F2. That recommendation was

based both on the prison’s HCV treatment protocol and National

Institute of Health studies that demonstrated the reduced

efficacy of treatment at the early stages of the disease. 

See id. She also explained to plaintiff that his MPD precluded

him from treatment because his drug therapy could be interrupted

if he were released, which could cause him to be resistant to any

subsequent drug treatment at a future time when it might be more

strongly medically indicated. See id. Finally, Dr. Englander

told plaintiff that HCV progresses very slowly, which meant it

could be several years before plaintiff might need treatment. 

Plaintiff did not accept Dr. Englander’s assessment of his

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medical needs. On January 4, 2008, plaintiff filed a complaint

with the New Hampshire Board of Medicine about the prison’s

policy not to treat inmates with an MPD of less than two and one

half years. See Defs.’ Ex. O. In that letter, plaintiff stated

he did not want to be released on parole and intended to serve

out his maximum sentence, which expires in January 2011. As

plaintiff explained, “I am a ward of the State and in their

custody therefore the NHSP is completely responsible for every

aspect of my care.” Id. Among other things in that complaint,

plaintiff argued he needed a liver biopsy to determine the

severity of his liver damage because the ALT levels could not

adequately assess that damage. See id. Plaintiff’s complaint

was investigated by the Board, which concluded on April 2, 2008,

that “no further action [was] warranted.” Defs. Obj., Ex. A,

Attachment A-4 (document no. 13-5) (letter from N.H. Board of

Medicine to Dr. Englander).

On January 16, 2008, plaintiff’s MPD, he was not granted

parole; in fact, he did not have a parole hearing until January

31, 2008, due to administrative errors at the prison. He was

denied parole because he was classified at a security level of

“C4,” and parole requires that an inmate be classified at no

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greater than a “C3" security status. See Defs.’ Obj., Ex. C,

Aff. of John Eckert, ¶ 6. 

During the spring of 2008, plaintiff filed several inmate

request slips for documents regarding the NHSP’s various medical

care policies and its HCV treatment protocol. See e.g. Pl.’s

Suppl. Compl. (document no. 23) (attaching multiple inmate

request slips). Plaintiff had additional blood tests to monitor

his HCV, which showed his ALT levels were falling, to 75 on April

10, 2008, and to 72 on May 22, 2008. See Defs.’ Obj., Ex. A., ¶

21; see also Defs.’ Response to Court’s May 27, 2008, Order

regarding Pl.’s Parole Hearing Results (document no. 30) (“Defs.’

Parole Hrg Response”), Ex. A, Aff. of Dr. Englander, ¶ 21 & Exs.

A-3 & F. Despite those results, plaintiff has continued to

believe he needs immediate treatment for this “deadly disease.” 

Suppl. Compl., Ex. 7, Horstkotte Decl. (attaching 4/1/08 IRS as

ex. 26.1). Plaintiff also has continued to request a liver

biopsy to better define the stage of his HCV, but that request

has been denied. 

In May 2008, the classification board recommended that

plaintiff be reclassified as C3, but plaintiff rejected that

recommendation and refused to sign the classification document. 

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See Defs.’ Obj., Ex. C, ¶ 7. A few weeks later, on May 29, 2008,

plaintiff’s classification was reconsidered again and he was

reclassified as C3. See Defs.’ Notice of Compliance (document

no. 20) (“Compliance Notice”), ¶ 2. On June 19, 2008, plaintiff

had a second parole hearing and again was denied parole. At the

hearing, plaintiff told the parole board that he did not know

where he would be paroled to because his primary purpose was to

get treatment for his HCV, and he was concerned about how the

side effects of the treatment would impair his ability to work. 

See Defs.’ Parole Hrg Response, Ex. A (transcript of hearing). 

Because he did not have a residence in place, plaintiff was

denied parole. See Defs.’ Parole Hrg Response ¶¶ 2, 5-7 & 18;

see also id., Ex. A & I (results of parole hearing).

Plaintiff asserts that he needs a preliminary injunction to

obtain necessary medical care. He complains that he needs an

antibiotic treatment plan and a liver biopsy, which the NHSP has

refused to provide him because of his MPD. He also argues the

NHSP meal plan aggravates his medical condition by failing to

provide him the balanced diet he needs. He contends these

decisions are based on monetary considerations rather than

medical needs. He claims defendants’ failure to appropriately

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treat his HCV violates the Eighth Amendment, the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12132, et seq, and state

tort law. 

Discussion

I. Standard of Review

As the moving party, plaintiff bears the burden of

demonstrating that an injunction is needed to prevent irreparable

harm and to preserve the status quo, to enable a meaningful

disposition of his claims. See CMM Cable Rep. v. Ocean Coast

Props., 48 F.3d 618, 620-21 (1st Cir. 1995) (enjoining certain

conduct permits the court “more effectively to remedy discerned

wrongs”). Such a situation arises when some harm from the

challenged conduct cannot be adequately redressed with

traditional legal or equitable remedies following a trial. See

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); Acierno v. New Castle County, 40 F.3d 645, 653

(3d Cir. 1994) (explaining irreparable harm). To carry this

burden, plaintiff must demonstrate: “(1) the likelihood of

success on the merits; (2) the potential for irreparable harm [to

the movant] if the injunction is denied; (3) the balance of

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relevant impositions, i.e., the hardship to the nonmovant if

enjoined as contrasted with the hardship to the movant if no

injunction issues; and (4) the effect (if any) of the court’s

ruling on the public interest.” Esso Standard Oil Co. v.

Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (internal quote

omitted); see also Ross-Simons of Warwick, Inc., 102 F.3d at 18-

19 (explaining the burden of proof for a preliminary injunction). 

If plaintiff is not able to show a likelihood of success on

the merits, the remaining factors “become matters of idle

curiosity,” id., insufficient to carry the weight of this

extraordinary relief on their own. See Esso Standard Oil Co.,

445 F.3d at 18 (the “sine qua non . . . is likelihood of success

on the merits”) (internal quotation omitted)). Although success

on the merits is critical, a preliminary injunction will not

issue unless plaintiff will be irreparably harmed without the

requested relief. See Ross-Simons of Warwick, Inc., 102 F.3d at

19 (“the predicted harm and the likelihood of success on the

merits must be juxtaposed and weighed in tandem”). Because

likelihood of success on the merits is the touchstone of the

preliminary injunction inquiry, I begin by analyzing the merits

of his claims.

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II. Likelihood of Success

A. § 1983 Claims for Inadequate Medical Care

The Eighth Amendment guarantees that prisoners are not

subject to cruel and unusual punishment. See U.S. Const. amend.

VIII. That protection has been construed to require that prison

officials are not deliberately indifferent to an inmate’s serious

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

Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Surprenant v.

Rivas, 424 F.3d 5, 18-19 (1st Cir. 2005). The medical need must

be objectively serious, involving a substantial risk of serious

harm if not properly treated. See Rhodes v. Chapman, 452 U.S.

337, 347 (1981); Farmer, 511 U.S. at 832; Mahan v. Plymouth

County House of Corr., 64 F.3d 14, 18 (1st Cir. 1995); Barrett v.

Coplan, 292 F. Supp. 2d 281, 285 (D.N.H. 2003). Deliberate

indifference relates to the prison official’s subjective

awareness of the inmate’s need and his intentional failure to

ensure the needed treatment is provided. Farmer, 511 U.S. at 837

(describing subjective intent requirement); Estelle, 429 U.S. at

105-06 (inflicting unnecessary and wanton pain violates the

Eighth Amendment, not medical negligence); Barrett, 292 F. Supp.

2d at 285 (finding deliberate indifference “where the medical

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2Plaintiff produced multiple exhibits that documented the

seriousness of the disease and that showed the complications,

including cirrhosis, liver cancer and death, that can result if

HCV is not adequately treated. 

13

care provided is so clearly inadequate as to amount to a refusal

to provide essential care” (internal quotation omitted)).

1. Adequacy of Plaintiff’s Medical Treatment 

Plaintiff argues his treatment plan, specifically the

decisions to deny him the drug treatment therapy and a liver

biopsy based on his MPD, constitutes deliberate indifference to

his serious medical needs. While it is undisputed that plaintiff

suffers from HCV, which is an objectively serious infection that

involves a substantial risk of significant harm if not properly

treated2, the evidence demonstrated that the NHSP’s HCV treatment

protocol is based on legitimate medical criteria that consider a

host of factors, including health risks pertinent to the

individual inmate’s situation. Plaintiff’s argument that the

care he has received reflects an arbitrary, callous policy of

deliberate indifference to his serious medical needs fails, for

the following several reasons. 

First, the evidence established that plaintiff’s HCV is at a

very early stage, when it would be medically inadvisable to

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3Though plaintiff argues he needs the liver biopsy to

determine what stage his HCV is at, the evidence showed that the

fibrosure test provides similarly accurate readings of liver

fibrosis to determine the disease’s progression.

14

commence treatment. Plaintiff’s highly elevated initial ALT

levels, in July 2007, indicated the disease was at the acute

stage of infection, which presumption was validated by the

significant reduction in ALT levels in April and May 2008. 

Plaintiff’s fibrosure test results in October 2007 further

demonstrated that his infection was only in its incipiency,

approximating stage F1.3 Dr. Englander testified, both by

affidavit and at the hearing, that HCV is an extremely indolent

disease, typically taking decades to progress to the advanced

stages in which liver complications arise and when treatment

would be needed. She explained that patients can live with HCV

at its early stages for years, and that approximately 15% of

patients are able to fight off the virus and become cured of the

disease without any treatment. She also explained that at the

early stages of the disease, where plaintiff is now, the body’s

immune system can impede the efficacy of the drug treatment

therapy. Yet another factor against giving plaintiff the drug

therapy now is that it has many negative side-effects, which

present serious medical risks independent of the hepatitis C

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problems and render the treatment inadvisable unless absolutely

necessary. Based on these considerations, defendants concluded

plaintiff’s current condition did not justify treatment,

regardless of his MPD. 

Second, the NHSP policy not to consider treatment if an

inmate’s MPD is less than two and a half years away reflects

careful decision-making based on both medical and institutional

considerations. The evidence showed that it takes several months

to ascertain an inmate’s need for drug treatment, then once the

decision is made to begin the treatment program, it takes about

12 months to run its course, and then an additional six months

for the patient to rid himself of the residual toxins. The

evidence also demonstrated that if the treatment is interrupted

once it has begun, resuming treatment in the future can be

ineffective and, as a result, potentially fatal for the patient. 

These are medically based parameters to the NHSP MPD policy, that

were derived from multiple independent, credible medical sources. 

See Defs.’ Obj., Ex. B, MacLeod Aff., ¶ 8 (listing references

used to develop the prison’s HCV protocol). Dr. Englander

testified that the treatment protocol is also very expensive,

which factors against administering the drugs unless medically

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necessary. In plaintiff’s case, where his disease is in its

early stages and he has no serious complications from the virus,

there was no compelling reason to depart from the NHSP protocol

that is based on plaintiff’s MPD.

Third, nothing in the current record indicates plaintiff

needs a liver biopsy at this time, either to identify the stage

of his HCV or to make an informed decision about his treatment

plan. Although the literature plaintiff proffered stated that a

liver biopsy “provides a unique source of information on fibrosis

and assessment of histology,” Pl.’s Exs. for the Prelim. Inj. Hrg

(“Pl.’s Ex.”), Ex. 21 at 15, according to plaintiff’s own

information, the biopsy is usually done only when necessary to

determine treatment options and is not always required to make

that decision. See id. The record here indicates the defendants

acted in a manner that was consistent with the conclusions of

that literature. Dr. Englander testified that the NHSP algorithm

also requires a biopsy to determine treatment options, but only

when a patient’s symptoms, such as persistently abnormal levels

of ALT and other physical impairments not exhibited by plaintiff,

indicate the disease has advanced beyond stage F2. At that

point, to better determine the appropriate course of treatment,

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either a liver biopsy or a fibrosure test is done, because both

provide qualitatively similar information. See Suppl. Compl.,

Ex. 8 (NHDOC HCV Treatment Algorithm). 

Here, plaintiff was given a fibrosure test, even though it

was not clinically indicated, and he knows definitively his HCV

is at the very low range of stage F1-F2. Dr. Englander opined

she believes plaintiff is only at F0-F1, given his complete

medical profile. He currently has the information he claims only

a liver biopsy can give him, to enable him to make an informed

decision about his treatment. He also knows the treatment

recommendations for a patient with HCV at his stage of F1-F2. As

discussed above, at this early stage of the disease, it is

medically inadvisable to begin drug therapy. The record reflects

that a liver biopsy would not provide any additional information

to help plaintiff manage his disease at this time, to justify

either its associated health risks or financial costs. 

Fourth, the NHSP’s HCV treatment protocol and the

explanations Dr. Englander provided to justify the treatment

decisions that have been made about plaintiff are consistent with

medical standards, see Defs.’ Obj., Ex. B, ¶ 8, as well as the

medical literature that plaintiff himself adduced in support of

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his request for injunctive relief. See e.g. Pl.’s Exs. 2 at 8

(stating between 15-45% of people spontaneously clear Hepatitis

C), 14 (confirming blood test for HCV viral load positively

detects infection), 16 (ALT levels indicate the fact, but not the

extent, of liver cell damage), 17-18 (biopsy is the only test

that reveals the grade and stage of the disease, but is painful

and not always necessary), & 18-23 (“Balancing Pros & Cons of

treating HCV” because not everyone needs to be treated and the

side effects are “intense”); see also Pl.’s Ex. 21 at 21-22

(recommending HCV patients be vaccinated against hepatitis A and

B but advising the risks and benefits of antiviral therapy must

be assessed on an individual basis), 10-11 (explaining disease

progression is correlated to host-specific factors rather than

virologic factors); Pl.’s Ex. 4 (describing the slow advancement

of HCV). This evidence supports a finding that the NHSP

treatment protocol is consistent with standard medical care for

the disease. 

Finally, the evidence demonstrates that the medical care

plaintiff has received exceeds the NHSP treatment protocol. 

Plaintiff received the standard blood work and recommended

immunizations after his elevated ALT levels were first detected.

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Dr. Englander also orde red a fibrosure test to appease

plaintiff, even though he was ineligible for treatment and

neither a fibrosure test nor a liver biopsy were clinically

indicated based on plaintiff’s medical profile. He was counseled

about his disease and prognosis. And he continues to be

monitored, as evidenced by the April and May 2008 blood test

results. 

This record shows that plaintiff is not likely to succeed on

his claim for a denial of adequate medical care in violation of

the Eighth Amendment. Nothing in the record indicates he should,

or would, be receiving the drug treatment therapy or a liver

biopsy but for his MPD. The evidence does not support

plaintiff’s claim that his treatment plan is arbitrarily and

callously based on administrative and financial considerations. 

To the contrary, the evidence demonstrates that defendants have

evaluated plaintiff’s current health and have followed a

treatment plan based on the risks HCV presents to plaintiff at

this time. While plaintiff may prefer more aggressive treatment

or a more pro-active approach to assessing his HCV status, he

certainly is receiving adequate medical care, which is all, as an

incarcerated plaintiff, he has a right to receive. See Torraco

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

indifference found where “the attention received is so clearly

inadequate as to amount to a refusal to provide essential care”);

cf. Burke v. N.D. Dep’t of Corr., 294 F.3d 1043, 1044 (8th Cir.

2002) (citing gross incompetence and intentional maltreatment as

examples of deliberate indifference); see also Barrett, 292 F.

Supp. 2d at 285.

2. Adequacy of Plaintiff’s Diet

Plaintiff also complains that the food served at the NHSP

violates the Eighth Amendment by being so non-nutritious as to

constitute deliberate indifference to his serious medical needs. 

He testified, both by affidavit and at the hearing, that the NHSP

misrepresents the quantity of fresh foods and whole grains it

serves. Plaintiff contends that his diet is so lacking in

essential ingredients that it is hindering his ability to combat

his HCV. This claim also is not supported by the record.

Plaintiff failed to proffer any evidence of any special

dietary needs he now has because of his HCV status. The

pamphlets on which he relied discuss a balanced diet similar to

that which any health-conscious adult would eat. See Pl.’s Ex.

5, Ex. 7 at 11-12, & Ex. 8 (advising that the balanced diet “that

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an average, healthy person gets will work just as well for people

with hepatitis C”). Defendants proffered the menu for the week

of May 18 to May 24, 2008, as an example of the meals served at

the NHSP. See Defs.’ Ex. S. The menu reflects a standard

balanced diet, with fruit, juices, vegetables, breads and

cereals, various forms of protein, including eggs, beans and

meat, and dairy products. Defendants also proffered an invoice

reflecting 1,770 pounds of frozen vegetables purchased for the

prison on May 20, 2008. Both the sample menu and invoice reflect

average weekly food consumption at the NHSP. See Defs.’ Ex. T,

Aff. of Jeff Perkins, ¶ 4. Plaintiff contends the sample menu

and invoice do not reflect was is actually served. His purported

concern about a healthy diet and his credibility were undermined

by the canteen purchases he has made since being diagnosed with

HCV, which include processed snacks and candy. See Defs.’ Obj.,

Ex. 10. Without commenting on the quality of the food served or

the individual choices plaintiff makes at the canteen, these

exhibits demonstrate that an average, balanced diet is served.

Although plaintiff claims he has lost weight since arriving at

the NHSP, he did not appear at the hearing to be malnourished. 

While plaintiff may not like the food served, he has not

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demonstrated how the NHSP diet is so inadequate that it reflects

deliberate indifference to his serious medical needs, in

violation of the Eighth Amendment’s guarantee against cruel and

unusual punishment. Accordingly, I find that plaintiff has

failed to demonstrate a likelihood of success on this claim. 

While I recognize that plaintiff is genuinely concerned

about his HCV status and justifiably wants to treat his disease

aggressively, the preliminary record before me reflects that

defendants are providing plaintiff with appropriate care given

his current medical condition. In order for a denial of medical

care to rise to the level of an Eighth Amendment violation, the

care must constitute “unnecessary and wanton infliction of pain”

or “deliberate indifference to the serious medical needs” of

plaintiff. Estelle, 429 U.S. at 106. Defendants here have not

disregarded the “substantial risk of serious harm” HCV presents,

by “failing to take reasonable measures to abate it.” Farmer,

511 U.S. at 847. Defendants have developed and followed a

protocol that reflects considered medical judgment, which factors

in regular monitoring of plaintiff’s HCV status and corresponding

adjustments to his treatment plan. They also serve plaintiff a

regular diet. Given the latitude afforded prison officials

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regarding the administration of their prisons and the substantial

medical evidence supporting the medical decisions made here, I

find plaintiff is unlikely to succeed on his claims that the

failure to give him the drug treatment therapy or the liver

biopsy, or to change his diet violate the Eighth Amendment.

3. Quality of the Infirmary

After the hearing, plaintiff filed a preliminary injunction

motion seeking an order requiring the NHSP infirmary to comply

with rules that mandate semi-annual inspections (document no.

42). Plaintiff states that he received confirmation on July 16,

2008, that the N.H. Department of Health and Human Services does

not inspect the infirmary, and he filed the motion two days later

on July 18, 2008. Whether or not this complaint could be

subsumed by his inadequate medical care claims, plaintiff has not

shown that the claim has been exhausted, as required by 42 U.S.C.

§ 1997e(a), and has not otherwise developed any evidence that

suggests how the infirmary inspections are related to a violation

of his Eighth Amendment rights. Accordingly, I find plaintiff is

unlikely to succeed on his Eighth Amendment claim based on a lack

of infirmary inspections.

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B. The ADA Claim

Plaintiff contends that he has been denied the benefit of

the NHSP’s medical care because he has HCV, in violation of Title

II of the ADA. See 42 U.S.C. § 12132 (proscribing public

entities from denying the benefits of services or programs to

qualified individuals). The ADA requires defendants, as public

officials, to accommodate inmates with disabilities. See Pa.

Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998); see also

Jones v. Smith, 109 Fed. Appx. 304, 2004 WL 2053280, *3 (10th

Cir. 2004). Based on the facts here, to succeed on his ADA

claim, plaintiff must show that (1) he is a “qualified individual

with a disability,” (2) that he was either excluded from or

denied the benefits of NHSP medical services, and (3) that such

exclusion, denial of benefits, or discrimination was because of

his HCV status. See Toledo v. Sanchez, 454 F.3d 24, 31 (1st Cir.

2006) (discussing claims under 42. U.S.C. § 12132). For the

following reasons, I find plaintiff is not likely to succeed on

his ADA claim. 

As a preliminary matter, an ADA claim, like all federal

prison-conditions claims asserted by inmates, must be exhausted

before it can be brought to federal court. See 42 U.S.C. §

Case 1:08-cv-00061-JL Document 57 Filed 08/18/08 Page 24 of 29
4Plaintiff’s reliance on Sch. Bd. of Nassau County v.

Arline, 480 U.S. 273, 282-86 (1987) is misplaced, as that case

involved a person with tuberculosis who readily satisfied the

requirements for being disabled, because she had a physical

25

1997e(a); see also Jones, 2004 WL 2053280 at *2 (citing authority

that applies § 1997e(a)’s exhaustion requirement to any prison

condition claim alleged under federal law). Nothing in the

record suggests plaintiff first pursued his discrimination claim

in the NHSP grievance process to satisfy this exhaustion

requirement.

The current record also fails to satisfy any of the elements

of an ADA claim. First, plaintiff has not proffered any evidence

that he has become disabled since contracting HCV. The evidence

shows that patients with HCV can live normal lives for many, many

years while carrying the virus. Plaintiff did not even know he

had the disease when it was diagnosed, and did not produce any

evidence that showed he has been inhibited in any of his major

life activities, as is required to be a qualified individual with

a disability. See Rolland v. Potter, 492 F.3d 45, 47-48 (1st

Cir. 2007) (citing Toyota Motor Mfg., Ky., Inc. v. Williams, 534

U.S. 184, 196-98 (2002) and defining disability as substantially

impairing the ability to do activities that are of “central

importance to most people’s daily lives”)4. Second, plaintiff

Case 1:08-cv-00061-JL Document 57 Filed 08/18/08 Page 25 of 29
impairment that substantially limited a major life activity. See

id. at 281 (citing 45 C.F.R. § 84.3(j)(2)(i) and 29 U.S.C. § 706

(7)(B)(ii)). The issue there was whether someone who was

handicapped and also contagious could be denied the protection of

the Rehabilitation Act requiring accommodation in employment. 

Arline does not stand for the proposition that anyone with a

contagious disease has a disability. 

26

has not been denied medical care. In fact, his HCV was

discovered because he was receiving medical care. Third, despite

plaintiff’s claim, as discussed at length above, plaintiff is

receiving medical care for his HCV. The NHSP treatment protocol

is evenly administered to all inmates with HCV, and a significant

reason the MPD is used as a baseline for treatment decisions is

to ensure that treatment is fairly and consistently available to

the entire inmate population. Simply because plaintiff’s illness

has not progressed to the stage that requires treatment does not

mean plaintiff is being discriminated against because he has HCV. 

Plaintiff is entitled to receive medical care like all other

inmates, but he is not entitled to demand his treatment of

choice. Defendants’ decisions with respect to the care plaintiff

has received reflect judgment calls, not discriminatory conduct. 

Though plaintiff may believe he is being denied medical care

because he has HCV, that claim founders on the facts. I find

plaintiff is unlikely to succeed on his ADA claim and recommend

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27

that his request for an injunction to require defendants to

provide the treatment options plaintiff wants be denied. 

C. Remaining Claims

In his complaint, plaintiff asserts a due process claim

based on alleged parole procedure violations and a negligence

claim based on the allegedly inadequate medical care. Given the

above analysis, it appears that plaintiff is unlikely to succeed

on the merits of these claims. 

Although plaintiff contends his due process right to a

parole hearing was violated, the current record is, at best,

confusing about this claim. The two week delay from plaintiff’s

January 16 MPD to his January 31, 2008, parole hearing is not a

deprivation of due process. Though plaintiff claims he wants to

be released on parole to seek treatment for his HCV, the record

contains at least two statements where plaintiff admits he has no

intention of being paroled and wants to stay incarcerated so

defendants can provide him with the care he needs. Whether or

not plaintiff can develop this claim later in the proceedings,

after discovery perhaps better clarifies why he is not qualifying

for parole, I find no basis in the current record to recommend

that his request for injunctive relief on his due process claim

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28

be granted.

Finally, plaintiff asserts that the NHSP’s HCV treatment

protocol constitutes medical malpractice. As a factual matter,

plaintiff’s January 4, 2008, complaint to the N.H. Board of

Medicine was investigated and resolved with the Board determining

that no further action was warranted. This resolution strongly

suggests that plaintiff is unlikely to succeed in his medical

negligence claim. As a jurisdictional matter, since plaintiff

appears unlikely to succeed on the federal claims raised here,

there would be no reason for the court to exercise its

supplemental jurisdiction over his state law claims even if

plaintiff were able to show some basis for the negligence claims

asserted here. See 28 U.S.C. § 1367(a) (allowing a federal court

to hear state law claims arising out of the same case or

controversy as a federal claim over which it has jurisdiction). 

I, therefore, recommend that any request for injunctive relief

based on negligent medical care be denied.

Conclusion

For the reasons set forth above, I recommend that

plaintiff’s requests for a preliminary injunction set forth in

the complaint (document nos. 1 and 23) and in the Motion for

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29

Injunctive Relief (document no. 42) be denied. I also recommend

that defendants’ Motion to Strike (document no. 48) be granted.

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: August 18, 2008 

cc: Deborah B. Weissbard, Esq.

 Todd M. Horstkotte, pro se

Case 1:08-cv-00061-JL Document 57 Filed 08/18/08 Page 29 of 29