UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Bryan Bernard

v. Civil No. 07-cv-341-JL

New Hampshire Department

of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Bryan Bernard brings this action, pursuant

to 42 U.S.C. § 1983, alleging that defendants have abridged his

rights under the First and Fourteenth Amendments to the United

States Constitution (document nos. 1, 3-4 and 6). Named as

defendants are William L. Wrenn, Commissioner of the New

Hampshire Department of Corrections (“NHDOC”) and the following

employees of the New Hampshire State Prison (“NHSP”): James P.

Daly, Chaplain; Christopher Kench, Administrator; and corrections

officers Danny Shaw, Clay LeGault, Kingsbury, Duffin, Strople,

Knieriemen and Mosher.

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

which relief may be granted. See 28 U.S.C. § 1915A; U.S.

District Court for the District of New Hampshire Local Rule

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1Bernard appears to refer to the Nazarite Vow, which forbids

the cutting of hair and beard. See Smith v. Ozmint, 444 F. Supp.

2d 502, 506 (D.S.C. 2006); Holley v. California Dep’t of

Corrections, 2007 WL 586907, slip op. at *3 (E.D. Cal. Feb. 23,

2007).

2

(“LR”) 4.3(d)(2). For the reasons stated below, I find that

Bernard has alleged the following claims: (1) First Amendment

claims based on the denial of free exercise of religion against 

LeGault, Kingsbury, Strople, Mosher, Wrenn, Kench and Shaw; and

(2) First Amendment retaliation claims against Strople,

Knieriemen and Shaw. I recommend dismissal of all remaining

claims.

Background

Bernard is an inmate at the NHSP and a practicing member of

the Nazarite faith. He allegedly is required to abstain from

shaving his beard during “religious separation,” a period of time

deemed holy under the Nazarite faith.1 He explained his

religious beliefs and practices to the defendants and informed

them of his wish to abstain from shaving. He further explained

that the NHSP shaving policy infringed on his religious

practices. Although defendants granted Bernard a religious

shaving pass, he allegedly was only permitted to grow his beard

to a length of 1/8 of an inch.

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3

Bernard now brings this action, alleging that during the

course of his incarceration, defendants denied him free exercise

of religion, retaliated against him for the exercise of his First

Amendment freedoms and denied him due process during the course

of disciplinary proceedings arising from his refusal to shave. 

He further alleges that defendants denied due process by

withholding canteen items and interfered with his meaningful

access to the courts. In support of his claims, Bernard alleges

a lengthy chronology of events, as follows.

On September 25, 2007, Duffin harassed Bernard regarding his

beard length, and Bernard responded by explaining his religious

beliefs and practices. Afterwards, Duffin complained to LeGault

that Bernard’s beard length exceeded the 1/8-inch shaving pass

allowance. Subsequently, Bernard met with LeGault and explained

that during the last four months he abstained from shaving

because he was in Areligious separation”, a period deemed holy

under the Nazarite Faith. Bernard added that he would continue

to abstain and that requiring him to shave would infringe on his 

religious practice known as “Nazarite Separation.” LeGault

explained the NHSP shaving policy and informed Bernard that he

would be disciplined and sanctioned for noncompliance. In an

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2Bernard characterizes the CCU as a violent and dangerous

unit that lacks sufficient handicap accommodations and follows

the same NHSP shaving policy. 

3In Vaillancourt v. Campbell, Civil No. 06-cv-438-JD,

Bernard filed a petition for injunctive relief, alleging that he

4

attempt to avoid disciplinary action, Bernard filed inmate

request slips on September 26, 2007, requesting LeGault and Shaw

to transfer him to the secured housing unit (ASHU@) or another

facility with a less restrictive shaving policy. His requests

were denied.

On September 26, 2007, Bernard was called to the office of

Kingsbury and, in his presence, entered into a discussion with

LeGault regarding the NHSP shaving policy and the possibility of

being transferred to a unit or facility with a less restrictive

shaving policy. Bernard’s request for a transfer was denied. He

was informed that he would not be transferred to the SHU and that

pursuant to disciplinary actions he would be upgraded to the

Close Custody Unit (ACCU@)

2. Kingsbury told Bernard to shave, and

Bernard objected on the basis that it would violate his religious

beliefs. Kingsbury then ordered Bernard to shave and threatened

him with disciplinary action for noncompliance. Bernard

responded that he would file a federal lawsuit, and Kingsbury

encouraged him to file.3 Kingsbury issued a disciplinary report

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had been harassed, disciplined and prevented from practicing his

religion in violation of his First Amendment rights. On October

5, 2007, this Court denied the petition on the basis that his

First Amendment claims were not related to the underlying

lawsuit. Bernard was instructed to file a new action in this

Court by separate complaint.

5

against Bernard for failure to follow a direct order. The

disciplinary report indicates that Bernard’s beard length

exceeded the 1/8 inch limit permitted by NHSP policy.

On October 2, 2007, Strople allegedly denied Bernard canteen

items, including stamps, and demanded that he return to his unit

and shave before collecting the items. Bernard refused on the

basis of his religious beliefs and departed without the items. 

Strople allegedly closed his register, followed Bernard outside

the canteen and subjected him to harassment, intimidation, verbal

abuse and threats of disciplinary action for noncompliance with

the NHSP shaving policy. Mosher allegedly was present and

demanded that Bernard shave in compliance with the NHSP shaving

policy. Bernard responded that he had no intention of violating

his religious beliefs. Knieriemen allegedly overheard the above

exchange between Strople and Bernard. In addition, during

September and October 2007, Knieriemen allegedly denied Bernard

stamps and interfered with his mail.

On October 9, 2007, Duffin again harassed Bernard by

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demanding to see his shaving pass and asking whether he was

written-up for his beard growth and placed on canteen

restriction. He also accused Bernard of trimming or manicuring

his beard. Duffin then issued Bernard his canteen items. 

On that same day, Bernard testified at his disciplinary

hearing with regard to the disciplinary report issued by

Kingsbury. The hearing was continued to afford the hearings

officer an opportunity to conduct an investigative interview with

Daly, the NHSP Chaplain. At the continuation of the hearing on

October 11, 2007, Daly testified but allegedly “omitted testimony

pertaining to Nazarite Religious Separation.” Bernard was found

guilty and subjected to sanctions. Later that day, he reduced

his beard length in accordance with the hearing officer’s

request. On October 12, 2007, Bernard confronted Daly about the

alleged omission of testimony, and Daly responded by instructing

him to follow the NHSP shaving policy. 

On October 12, 2007, Kingsbury again ordered Bernard to

shave. Bernard refused, explaining that he had trimmed his

facial hair on October 11, 2007 in accordance with the hearing

officer’s request. Kingsbury allegedly approached Bernard within

10 to 12 inches of his face and stated that some of his facial

hair exceeded the limit allowed under the NHSP shaving policy.

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When Bernard informed Kingsbury that he intended to file a

lawsuit, Kingsbury encouraged him to file.

Bernard allegedly filed a complaint with Wrenn with regard

to the above infringements on his religious beliefs and practices

and the violations arising from the NHSP shaving policy. In

addition, he requested a transfer to a unit or facility with a

less restrictive shaving policy. Acting on behalf of Wrenn,

Kench advised Bernard that religious shaving passes are governed

by the NHSP policy and denied his request for a transfer. 

Bernard allegedly filed a second complaint in which he notified

Shaw of the infringements on the his religious beliefs and

practices. 

Nearly six months have elapsed since Bernard first informed

defendants of the alleged deprivations, however, to date he has

not received an adequate response. He now brings this civil

rights suit, alleging that defendants’ actions rise to the level

of constitutional violations.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. ' 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

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4The relevant provision of the Constitution provides that

ACongress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.@ U.S. Const.

Amend. I.

8

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant=s conduct must have been a cause in fact of 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. 1997). The premise of Bernard=s Section 1983 action is

that prison officials subjected him to the following

constitutional deprivations in violation of his rights under the

First and Fourteenth Amendments to the United States

Constitution. 

A. Denial of Free Exercise of Religion

Bernard alleges that defendants violated his rights under

the First Amendment=s Free Exercise Clause4, as applied to the

states through the Fourteenth Amendment, by denying him free

exercise of religion.

It is well-established that convicted prisoners do not

forfeit all constitutional protections by reason of their

incarceration. See Bell v. Wolfish, 441 U.S. 520, 545 (1979). 

AIn the First Amendment context . . . a prison inmate retains

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those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological

objectives of the corrections system,@ Pell v. Procunier, 417

U.S. 817, 822 (1974), including the right to free exercise of

religion, see O=Lone v. Estate of Shabazz, 482 U.S. 342, 348

(1987) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972)); accord

Moorish Science Temple, Inc. v. Smith, 693 F.2d 987, 990 (2d Cir.

1982) (A[A] prisoner retains those First Amendment guarantees,

including the right to participate in practices which are an

integral part of his religious faith . . ..@). Prisons must

provide all inmates reasonable opportunities to exercise their

religious freedom. See Cruz, 405 U.S. at 322 n.2. 

Free exercise claims brought by prisoners are Ajudged under

a >reasonableness= test less restrictive than that ordinarily

applied to alleged infringements of fundamental constitutional

rights.@ Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003)

(quoting O=Lone, 482 U.S. at 349). See also Shaw v. Murphy, 532

U.S. 223, 227-229 (2001). The Supreme Court has held that a

prisoner=s sincerely held religious beliefs must yield if

contrary to prison regulations that are Areasonably related to

legitimate penological interests.@ Turner v. Safley, 482 U.S.

78, 89 (1987); see also, Washington v. Harper, 494 U.S. 210, 224

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(1990) (prison restrictions that implicate constitutional rights

are judged by the reasonableness standard); O=Lone, 482 U.S. at

351-352 (the Constitution does not require the prison to

sacrifice legitimate penological objectives to satisfy an

inmate=s desire to exercise his religion so long as an inmate is

not deprived of all forms of religious exercise).

Here, Bernard claims that as a practicing member of the

Nazarite faith, he is required to abstain from shaving his beard

during a holy period known as “religious separation.” He

allegedly explained his beliefs to LeGault, Kingsbury, Strople

and Mosher and informed them of the restrictions placed on his

religious practices and his wish to abstain from shaving. In

addition, he informed the defendants that the NHSP shaving policy

“violate[s] his religious practices of Nazarite Separation.” 

Through a series of inmate request slips and meetings, Bernard

repeatedly informed the defendants of the infringements on his

religious practices. Despite Bernard’s requests, defendants

ordered him to shave, and/or threatened him with disciplinary

action for refusing to comply with the NHSP shaving policy,

thereby interfering with his free exercise of religion and

observance of the Nazarite faith.

Bernard reasons that because his hair is “nearly waist

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length” and not considered a security risk, his beard length

similarly should not be considered a security risk. At this

stage of preliminary review, the record is silent as to whether

the shaving policy at issue is justified by legitimate

penological interests. Bernard reported the alleged deprivations

to Wrenn, Kench and Shaw, however, they failed to remedy the

problem or take any correction action. Nearly six months have

elapsed since Bernard first informed defendants of the alleged

deprivations but to date he has not received an adequate

response. Accordingly, for purposes of preliminary review, I

conclude that Bernard has stated cognizable First Amendment

claims against LeGault, Kingsbury, Strople, Mosher, Wrenn, Kench

and Shaw. Because Bernard has failed to allege sufficient

predicate facts against Knieriemen and Daly, I recommend that the

claims against them be dismissed. 

B. Retaliation

Bernard alleges that Strople and Knieriemen denied him

stamps and that Knieriemen interfered with his mail, all in

retaliation for his exercise of First Amendment rights. I

liberally construe the complaint to allege that defendants

retaliated against Bernard in reprisal for his right to freely

exercise his religion and his right to file administrative

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grievances and civil actions with regard to his free exercise of

religion. 

To prevail on a retaliation claim, an inmate must show: (1)

conduct which led to the alleged retaliation was constitutionally

protected; (2) that he suffered some adverse action at the hands

of prison officials; and (3) that his constitutionally protected

conduct was a substantial or motivating factor in the decision to

discipline him. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001). As explained previously, Aa prison inmate retains those

First Amendment rights that are not inconsistent with his status

as a prisoner or with the legitimate penological objectives of

the corrections system,@ Pell, 417 U.S. at 822, including the

right to free exercise of religion, see O=Lone, 482 U.S. at 348

(citation omitted). Prisoners also have a First Amendment right

to petition the government for redress of grievances, and prison

officials may not retaliate against prisoners for exercising that

right. See Shabazz v. Cole, 69 F. Supp. 2d 177, 197 (D. Mass.

1999). See also Walker v. Thompson, 288 F.3d 1005, 1008-09 (7th

Cir. 2002) (holding that inmates are entitled under the First

Amendment to file grievances and lawsuits, and officers may not

retaliate against them for exercising that right).

Here, Bernard alleges that Strople and Knieriemen retaliated

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5Bernard claims that the disciplinary report issued by

Kingsbury failed to follow due process, because Aany write-up

13

against him by denying him stamps. He further alleges that

Knieriemen interfered with his mail and denied him “three

official letters, with a cash slip attached for postage, and

approved by [LeGault].” According to Bernard, defendants’

actions interfered with his incoming and outgoing mail. Bernard

further claims that defendants’ actions were motivated by his

religious beliefs and by his filing of administrative and legal

proceedings and, therefore, were taken against him in reprisal

for his exercise of First Amendment freedoms. Bernard reported

the deprivations to Shaw, who allegedly failed to remedy the

problem or take any corrective action. Accepting Bernard’s

allegations as true, which I must do at this preliminary stage of

the proceedings, I conclude that he has stated cognizable

retaliation claims against Strople, Knieriemen, and Shaw. 

C. Denial of Due Process

1. Disciplinary Proceedings

Construed liberally, the complaint alleges that Kingsbury

abridged Bernard’s Fourteenth Amendment right to due process by

issuing a disciplinary report without having it first approved by

Shaw5, and by subjecting Bernard to disciplinary proceedings and

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submitted for a hearing must be approved by the major of the

facility. . . [t]his process was not properly followed.@ 

14

sanctions after he refused to shave his beard. In addition, the

complaint broadly alleges that Chaplain Daly abridged Bernard’s

due process rights by failing to testify about Nazarite Religious

Separation at the disciplinary hearing.

The Fourteenth Amendment guarantees that no State shall

Adeprive any person of life, liberty, or property, without due

process of law.@ U.S. Const. amend. XIV. In order to assert a

Fourteenth Amendment due process claim, a plaintiff must allege

that he was deprived of a liberty interest protected by the

Constitution or by state law. Wolff v. McDonnell, 418 U.S. 539,

556 (1974) (citing Haines v. Kerner, 404 U.S. 519 (1972); 

Dominique v. Weld, 73 F.3d 1156, 1158 (1st Cir. 1996).

In Wolff, the Supreme Court identified the due process

requirements for a disciplinary hearing in a prison. 418 U.S. at

564. Those requirements include written notice of the charges at

least twenty-four hours in advance of the hearing, the ability to

call witnesses and present evidence, and that the hearing be

presided over by an impartial decisionmaker. Id. at 566, 570-71;

Surprenant v. Rivas, 424 F.3d 5, 16 (1st Cir. 2005). Where, as

here, a prisoner alleges a due process claim arising from the

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imposition of disciplinary sanctions, he must first demonstrate

that the sanctions imposed presented “an atypical and significant

hardship on [him] in relation to the ordinary incidents of prison

life” and that he was entitled to due process in order for the

sanctions to be constitutionally effected. Sandin v. Conner, 515

U.S. 472, 483-84 (1995). 

In this action, Bernard refused to shave his beard, and

Kingsbury charged him with a 39B disciplinary infraction, which

is described in the record as “failure to obey any written rule.” 

The record indicates that Bernard received advance notice of the

hearing and that he waived the right to call witnesses. While 

Daly allegedly failed to testify about Nazarite Religious

Separation during the hearing, Bernard does not allege that he

was denied the opportunity to cross-examine Daly. 

Subsequently, Bernard was found guilty and subjected to

sanctions. The sanctions included a suspension of certain

privileges for 90 days, a loss of 20 hours of recreational time

and an imposition of 20 hours of extra duty. There is no

indication that the sanctions imposed upon Bernard were so severe

that they were not a typical and reasonably foreseen part of

prison life. Nor has Bernard alleged that any of the sanctions

imposed significant hardship on him. Accordingly, I find that

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Bernard has not alleged a liberty interest of which he was

deprived and, therefore, conclude that he has failed to state a

cognizable Fourteenth Amendment due process claim. I therefore

recommend that the due process claims against Kingsbury and Daly

be dismissed. 

2. Canteen Items

Bernard broadly alleges that Strople denied him various

canteen items without due process of law by demanding that he

shave before the items would be issued. The canteen items

included stamps, writing materials, cosmetics, hygiene items and

health items.

Even assuming that Bernard possesses a property interest

sufficient to warrant protection under the Due Process Clause, he

fails to state a claim upon which relief may be granted. “[A]n

unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth

Amendment if a meaningful postdeprivation remedy for the loss is

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

Watson v. Caton, 984 F.2d 537, 541 (1st Cir. 1993)(holding that

there is no legal basis for a Section 1983 action where the

allegation is that the action was derivation from, and not a

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reflection of, an established state procedure). Here, the

complaint is void of any allegation that New Hampshire affords no

postdeprivation remedy. See Romero-Barcelo v. Hernandez-Agosto,

75 F.3d 23, 33 (1st Cir. 1996) (declining to address whether an

adequate postdeprivation remedy is available under state law

absent any allegation by the plaintiff). I therefore conclude

that Bernard has failed to state a claim under Section 1983 as to

the alleged deprivation of canteen items. Accordingly, I

recommend that the claim against Strople be dismissed.

D. Denial of Meaningful Access to the Courts

Bernard broadly alleges that Strople denied him postage

stamps and that Knieriemen interfered with and/or withheld mail,

thereby denying him “access to Merrimack County Superior Court,

for a filing fee, via NECU, (see attached E, E-1, E-2).” I

liberally construe the complaint to allege Fourteenth Amendment

claims arising from the denial of meaningful access to the

courts. 

AThere is a fundamental constitutional right of access to

the courts, founded both in the First Amendment guarantee of

[the] right to petition for redress of grievances, and in the due

process clause which assures that no person will be denied the

opportunity to present to the courts their claims concerning

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violations of fundamental constitutional rights. McDuffy v.

Koval, 226 F. Supp. 2d 541, 548 (D. Del. 2002)(citations

omitted). The right of access to the courts is strongest in the

context of constitutional claims and other civil rights actions. 

See BreMiller v. Cleveland Psychiatric Inst., 898 F. Supp. 572,

582 (N.D. Ohio 1995). To establish a claim for denial of access

to the courts, a plaintiff must show that he was denied access to

the courts and suffered actual injury, such as interference with

his efforts to pursue a claim. See McDuffy, 226 F. Supp. 2d at

548.

Accepting Bernard’s allegations as true, I conclude that he

has failed to state any relevant actual injury that resulted from

the alleged denial of meaningful access to the courts. While he

claims that defendants interfered with and withheld his mail and

denied him stamps, he has not alleged any ensuing constitutional

harm. Nor has he identified any actions by the defendants that

frustrated or impeded a specific legal claim. While defendants’

actions may have interfered with Bernard’s payment of a filing

fee to the superior court, he has not alleged that any legal

claim was actually impeded or thwarted. Nor has Bernard alleged

that any other legal claims have been impeded; rather, he

concedes that he has filed several civil actions in the state and

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federal courts, three of which are pending in this Court. 

Without demonstrating that defendants’ actions prevented him from

participating meaningfully in the legal process, Bernard fails to

allege any constitutional deprivation. Accordingly, I recommend

dismissal of this claim in its entirety.

II. Official Capacity

Construed liberally, the complaint seeks injunctive and

monetary relief for wrongs committed by defendants as state

actors 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 Section 1983. See Puerto

Rico 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. Michigan Dep=t of State Police, 491 U.S. 58, 71

(1989)(holding that neither a state nor its officials acting in

their official capacities are Apersons@ under Section 1983). 

Official capacity suits against officers of an agency are simply

Aanother way of pleading an action against an entity of which an

officer is an agent.@ Monell, 436 U.S. at 690 n.55.

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To the extent Bernard brings official capacity claims for

monetary relief against the state defendants, all of whom are

officials of the NHDOC and NHSP, I recommend that those claims be

dismissed. On the other hand, official capacity actions against

state actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will, 491 U.S. at 71 n.10. Thus, Bernard is not

barred from bringing claims for prospective injunctive relief

against the defendants in their official capacities.

Conclusion

For the reasons stated above, I find that Bernard has

alleged the following claims: (1) First Amendment claims based on

the denial of free exercise of religion against LeGault,

Kingsbury, Strople, Mosher, Wrenn, Kench and Shaw; and (2) First

Amendment retaliation claims against Strople, Knieriemen and

Shaw. I recommend dismissal of all remaining claims.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

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

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

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moving to amend the complaint. 

Any further 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 28 U.S.C. '

636(b)(1); Unauthorized Practice of Law Committee 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: April 1, 2008

cc: Bryan Bernard, pro se

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