1In addition to Wrenn, Horstkotte names the following New

Hampshire Department of Corrections employees as defendants to

this action: New Hampshire State Prison (“NHSP”) Warden Richard

Gerry, Health Services Director Robert McLeod, Chief Physician

Celia Englander, Nurse Practitioner Corina Neculai, and Health

Services Administrator Joyce Leeka. In addition, I find that

Christopher Kench, an employee in Wrenn‘s office, and Jeffrey

Perkins, NHSP Food Services Supervisor, are intended defendants

to this action as, although they are not named in the caption,

they are identified in the narrative of the complaint as

individuals who were responsible for the alleged violations of

Horstkotte’s rights.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Todd M. Horstkotte

v. 08-cv-061-JL

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.1

REPORT AND RECOMMENDATION

Before the Court is Todd Horstkotte’s complaint (document

no. 1), filed pursuant to 42 U.S.C. § 1983, the Americans with

Disabilities Act, 42 U.S.C. 12132 et seq. (“ADA”), State tort

law, the International Covenant on Civil and Political Rights, 6

I.L.M. 368 (“ICCPR”), and the Convention Against Torture and

Other Cruel, Inhuman, or Degrading Treatment or Punishment, 18

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 1 of 24
2Horstkotte also asserts a nominal claim for a writ of

habeas corpus, alleging that the conditions of his confinement

are so violative of his rights that he should be released from

incarceration. Habeas relief is only available, however, to an

inmate challenging the fact or length, rather than the

conditions, of his confinement. Preiser v. Rodriquez, 411 U.S.

475, 489-99 (1973); Wolff v. McDonnell, 418 U.S. 539, 554 (1974). 

Here, Horstkotte’s complaint challenges the constitutionality of

the conditions of his confinement at the NHSP. I will not,

therefore, consider Horstkotte’s request for habeas relief as

part of this action. 

2

U.S.C. § 2340 et seq. (“CAT”).2 Horstkotte seeks damages and

injunctive relief, alleging that his rights were violated when he

was denied adequate medical care during his incarceration at the

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

for preliminary review to determine whether, among other things,

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

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

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

stated herein, I recommend that the claims alleging violations of

international treaties be dismissed from this action. In an

Order issued simultaneously with this Report and Recommendation

(hereinafter the “Simultaneous Order”), I direct that the claims

alleging violations of the Eighth Amendment, the ADA, and State

law, proceed against defendants Wrenn, Kench, Gerry, Englander,

McLeod, Leeka, Neculai, and Perkins.

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 2 of 24
3

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. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 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.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 3 of 24
3Horstkotte alleges that there was a delay in administering

the second round of his Hepatitis A and Hepatitis B vaccinations. 

Accordingly, the series had to be restarted. While Horstkotte

seems to point to this occurrence as evidence of the HSC’s

inattention to his Hepatitis C treatment, the vaccinations are

not alleged to have actually been treatment for Horstkotte’s

4

Background 

Todd Horstkotte is a New Hampshire prisoner housed at the

NHSP. On August 15, 2007, during a chance conversation with a

phlebotomist, Horstkotte learned that he had been diagnosed with

Hepatitis C. Horstkotte confirmed his diagnosis by sending an

inmate request slip (“IRS”) to the NHSP’s Health Services Center

(“HSC”).

On August 21, 2007, HSC Physician’s Assistant Gayle Spelman

responded to Hortskotte’s IRS, apologizing for the manner in

which he learned of his diagnosis and stating that she would

arrange an appointment for Horstkotte to meet with HSC physician

Celia Englander. 

Horstkotte did not receive an appointment with Dr. Englander

until December 10, 2007. Since learning of his diagnosis four

months prior, the only medical treatment he had received related

to the Hepatitis C was the first of three rounds of vaccinations

for Hepatitis A and Hepatitis B, which were administered in

October of 2007.3 At the December 10 appointment, Dr. Englander

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 4 of 24
Hepatitis C, but instead, are a recommended prophylactic for all

Hepatitis C patients. No harm is alleged to have occurred due to

the delay and restarting of the vaccination.

4An inmate’s MPD is the date upon which he might first be

considered to be eligible for parole consideration. There is no

guarantee that an inmate will be released at or near his MPD. 

The inmate might, depending on the parole board, remain

incarcerated until he has served his maximum sentence. 

Horstkotte’s maximum sentence expires on January 2, 2011.

5

told Horstkotte that his Hepatitis C was between Stage 2 and

Stage 3 of the disease. Horstkotte immediately requested

treatment, expressing to Dr. Englander that his health was a

priority for him. Horstkotte alleges that his request for

treatment was denied on the basis that his minimum parole date

(“MPD”)4 of January 16, 2008, which rendered him ineligible to be

treated according to the Hepatitis C treatment protocol utilized

by the HSC. The Hepatitis C treatment protocol establishes

criteria by which inmates with Hepatitis C are evaluated for

treatment eligibility. These criteria include the severity of

the disease and the condition of the inmate’s liver, the age of

the inmate, other physical, mental heath and medication issues

the inmate may have, and the inmate’s minimum parole date. The

HSC’s stated reason for considering an inmate’s MPD before

providing medication treatment to an inmate, is that the course

of medication used to treat Hepatitis C requires that an inmate

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 5 of 24
6

be available for continuous treatment for a period of eighteen

months. Accordingly, inmates who are eligible to be released

within eighteen months are deemed ineligible for treatment,

without regard to the other factors relevant to application of

the treatment protocol, or other ways in which treatment might be

continued once an inmate is released. 

When Horstkotte told Dr. Englander that he wanted to receive

treatment for his disease, she advised him that Robert McLeod,

the HSC Medical Director, was responsible for the protocol and

the implementation of the protocol at the HSC. Horstkotte

alleges that McLeod is not a physician, and is not, therefore,

qualified to determine Horstkotte’s eligibility for treatment for

a medical condition. Further, Horstkotte alleges that the

consideration of the cost of treatment and his MPD were both

factors in denying him treatment.

On December 12, 2007, Horstkotte sent Dr. Englander an IRS,

following up on his request for treatment. Two days later,

Horstkotte received a response from Joyce Leeka, the HSC

Administrator, advising him that his eligibility for treatment

under the Hepatitis C protocol depends on his MPD and the stage

of fibrosis of his liver. Leeka indicated that Horstkotte’s MPD

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 6 of 24
7

was January 16, 2008, and his fibrosis was “low,” and that if

Horstkotte had further questions he should report to sick call to

make an appointment to speak with Dr. Englander. Horstkotte has

attached lab test results to his complaint which characterize his

level of fibrosis at that time as “high,” and his level of

necroinflammatory activity, another indicator of the progression

of Hepatitis C, as “severe.” In addition, other tests results

were abnormal, indicating that the disease was having an adverse

impact on his liver, and his health in general. 

Horstkotte sent Dr. Englander a sealed confidential IRS,

containing medical questions. Horstkotte states that Leeka

intercepted the IRS, and responded to it, even though she is not

a physician and not qualified to answer the questions Horstkotte

put to Dr. Englander in the IRS. Leeka responded by again

advising Horstkotte to make an appointment with Dr. Englander,

knowing that the appointment would take more than three months to

schedule, further delaying Horstkotte’s chances of receiving

effective treatment for Hepatitis C.

On December 18, 2007, Horstkotte sent a grievance to NHSP

Warden Richard Gerry, requesting that Gerry lend his

“authoritative support” to Horstkotte’s request for treatment. 

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 7 of 24
5DOC Policy and Procedure Directive 6.44(III)(C) provides

that “Medical, psychiatric and dental matters involving medical

judgement are the sole province of the physician, psychiatrist

and dentist.” 

8

On December 21, 2007, Gerry forwarded the grievance to McLeod for

a response. McLeod, although he is not a physician, denied

Horstkotte’s request for medical treatment. Horstkotte alleges

that this act violated not only his rights, but the prison’s

internal policies and procedures that require physicians to make

certain medical decisions.5 Horstkotte also requested

“authoritative support” for treatment from New Hampshire

Department of Corrections (“DOC”) Commissioner William Wrenn,

asserting in that request that his January 2008 MPD should not be

a bar to treatment, as he did not expect to be granted parole,

and that he had plenty of time to be treated prior to his maximum

sentence expiration date on January 2, 2011. On January 16,

2008, Christopher Kench, a DOC employee in Wrenn’s office,

responded to the request, stating that Horstkotte would be denied

treatment based on his MPD.

Meanwhile, on December 17, 2007, Horstkotte sent an IRS to

McLeod requesting the criteria for treatment eligibility under

the Hepatitis C protocol. McLeod did not respond.

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 8 of 24
9

On December 20, 2007, Horstkotte sent an IRS to the HSC

asking if a liver biopsy was necessary to make a proper diagnosis

and to determine the proper treatment for Hepatitis C. He did

not receive an answer from the HSC. He then filed a grievance

with Gerry. After he filed the grievance, Horstkotte received an

answer from Dr. Englander, stating that an appointment for

Horstkotte to discuss his disease with her had been set, but that

his sentence was too short to receive any treatment, and

therefore, no testing that served a diagnostic or monitoring

purpose, such as a liver biopsy, would be conducted. On January

4, 2008, during a visit to the HSC, Horstkotte discovered that no

appointment with Dr. Englander had been set.

Horstkotte requested a copy of his medical records from

McLeod. McLeod failed to provide him with the records. 

During the week of January 27, 2008, Horstkotte attended an

appointment with Spelman regarding his allergy medications. At

that appointment, he expressed his concerns over not having

received an appointment to discuss his disease with Dr.

Englander, the fact that his MPD had passed without a parole

hearing being scheduled, and that he had received no treatment 

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 9 of 24
10

for his Hepatitis C. Two days later, an appointment with Dr.

Englander was scheduled for March 11, 2008. 

On January 14, 2008, Gerry forwarded Horstkotte’s pending

grievances and medical questions to McLeod. McLeod responded to

Horstkotte with answers that Horstkotte describes as “absurd and

unqualified.” Horstkotte claims that McLeod relied on medical

conclusions and information that were not necessarily true in

making the decision to deny him treatment. 

Hortskotte has already experienced, and continues to

experience, the following symptoms of Hepatitis C: dark urine,

light-colored stool, elbow pain, leg pain, abdominal pain, and

liver pain. Horstkotte alleges that he has been given ibuprofen

by HSC Nurse Practitioner Corina Neculai to combat these

symptoms, but that ibuprofen is contraindicated for people with

liver disease. He alleges that he has been denied treatment for

the disease itself, effective and appropriate treatment for pain,

and access to medical information and records by Wrenn, Kench,

Gerry, McLeod, Dr. Englander, Leeka, and Neculai. 

Horstkotte also complains that the food provided to NHSP

inmates is consistently nutritionally deficient, and that the

deficiencies pose a risk to his health. Horstkotte attempted to

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 10 of 24
11

resolve this issue by sending an IRS to Jeffrey Perkins, the food

service supervisor at the prison, as well as to Gerry, Wrenn,

Governor Lynch, and the American Civil Liberties Union, but there

has been no change in the nutritional value of the food provided. 

Horstkotte complains that the lack of a nutritionally appropriate

diet increases his risk of ill health, a risk already heightened

by Hepatitis C.

Horstkotte claims that without treatment, his disease may

progress to a stage where medication is no longer effective as it

would be if administered at an earlier stage of the disease. 

Horstkotte further asserts that without treatment, he is at risk

of increased pain, a worsening of his current condition, and

progression to other diseases, such as liver cancer or even

death. Further, Horstkotte claims that he will not be granted

parole if he is medically unable to work, and will not be

considered for medical treatment that would render him able to

work because he is past his MPD.

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 11 of 24
6The claims as identified herein will be considered for all

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

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

by proper objection to this Report and Recommendation or by

properly moving to amend his complaint.

742 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law . . . .

12

Discussion6

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of State law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19837; Parratt v. Taylor, 451

U.S. 527, 535 (1981) (overruled on other grounds by Daniels v.

Williams, 474 U.S. 327, 330-331 (1986)); Wilson v. Town of

Mendon, 294 F.3d 1, 6 (1st Cir. 2002). In order for a defendant

to be held liable under § 1983, his or her conduct must have

caused the alleged constitutional or statutory 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.). 

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 12 of 24
13

Horstkotte alleges that the defendants, all state actors,

have denied him rights that accrue to him under federal statutory

and constitutional law. Accordingly, Horstkotte’s claims arise

under § 1983. 

A. Inadequate Medical Care

Claims of inadequate medical care in the prison context

arise under the Eighth Amendment, which protects inmates from

prison officials acting with deliberate indifference to the

inmate’s serious medical needs. See Farmer v. Brennan, 511 U.S.

825, 831 (1970); Surprenant v. Rivas, 424 F.3d 5, 18-19 (1st Cir.

2005). To assert a viable cause of action for inadequate medical

care, an inmate must first state facts sufficient to allege that

he had a serious medical need for which adequate care was not

provided. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981);

Farmer, 511 U.S. at 832; Estelle, 429 U.S. at 106. The inmate

must 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

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 13 of 24
14

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

835-47); see also Gaudreault v. Mun’y of Salem, 923 F.2d 203, 208

(1st Cir. 1990) (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.”). 

“[A]dequate medical care” is treatment by qualified medical

personnel who provide services that are based on medical

considerations and are of a quality acceptable to the prudent

professional standards in the community, tailored to an inmate’s

particular medical needs. United States v. DeCologero, 821 F.2d

39, 42-43 (1st Cir. 1987). This does not mean that an 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.” 

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

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 

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 14 of 24
15

indifferent mental State. See Wilson v. Seiter, 501 U.S. 294,

302 (1991). 

Prison inmates with Hepatitis C may state a constitutional

claim for the denial of adequate medical care when they are

denied treatment for policy reasons rather than medical reasons. 

See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004) (inmate’s

allegation that he was denied necessary treatment for Hepatitis C

based on a possible release within twelve months alleges

deliberate indifference to his serious medical needs); Ruiz v.

Heinzl, No. 06-C-478-C, 2006 WL 2882976, *3 (W.D. Wis. 2006)

(allegation that inmate was denied treatment for Hepatitis C on

the sole basis that he was within eighteen months of release date

is sufficient to state a claim under the Eighth Amendment for the

denial of adequate medical care for a serious medical need).

Here, Horstkotte has alleged that he has a very serious

medical condition, Hepatitis C, which is known to the defendants. 

Horstkotte was diagnosed with Hepatitis C at the NHSP and has

consistently requested further diagnostic testing to determine

the extent and progression of the disease, as well as an

appropriate treatment plan. Horstkotte asserts that he has been

denied diagnostic testing, medication for his Hepatitis C, an

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 15 of 24
16

appropriate diet for a person with Hepatitis C, and appropriate

and adequate treatment for the symptoms of the disease. 

Horstkotte further alleges that the denial of testing and

treatment has been based entirely on non-medical factors, such as

the cost of treatment, and his MPD, despite his having made the

defendants aware that he will be incarcerated long enough to

receive treatment. Horstkotte has even been denied all

diagnostic testing on the basis that his MPD renders him

ineligible to receive treatment, although his medical condition

and initial lab results indicate that further diagnostic testing

and treatment for his symptoms and his underlying disease is

warranted. Horstkotte has sufficiently alleged facts to assert a

claim that the denial of testing, pain medication and treatment

amounts to a knowing refusal by the defendants to provide care

and treatment for his serious medical needs. Accordingly, I find

that Horstkotte has stated an Eighth Amendment claim for the

denial of medical care, appropriate treatment, and diet, against

defendants Englander, McLeod, Leeka, Neculai, and Perkins upon

which relief might be granted, and I will direct service of this

claim against those defendants in my Simultaneous Order.

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 16 of 24
17

Horstkotte has also alleged that defendants Wrenn, Kench,

and Gerry were specifically notified of his serious medical

condition and the failure of the NHSP medical personnel to

provide him with adequate treatment, that they are the officials

ultimately responsible for assuring that inmates receive

constitutionally adequate medical care, and that they failed to

remedy this constitutional deprivation. Accordingly, I find that

Horstkotte has stated a claim for failure to provide adequate

medical care against not only the above-named defendants, but

also against Wrenn, Kench, and Gerry, upon which relief may be

granted. In my Simultaneous Order, therefore, I will also direct

that this claim be served on these defendants.

A. ADA Claim

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. §

12132.

Pursuant to the plain language of Title II, a plaintiff

must establish: (1) that he is a qualified individual

with a disability; (2) that he was either excluded from

participation in or denied the benefits of some public

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 17 of 24
18

entity’s services, programs, or activities or was

otherwise discriminated against; and (3) that such

exclusion, denial of benefits, or discrimination was by

reason of the plaintiff’s disability.

Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000). 

Title II of the ADA applies to inmates in correctional

facilities. See Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206,

209-10 (1998). “[P]risons provide inmates with many recreational

activities, . . . services, and educational and vocational

programs, all of which at least theoretically benefit the

prisoners (and any of which disabled prisoners could be excluded 

from participation in.)” Id. at 210 (internal citations

omitted). 

Here, Horstkotte asserts that his Hepatitis C renders him a

qualified individual with a disability. Accepting this assertion

as true for purposes of preliminary review, I must determine

whether or not Horstkotte has alleged that he was denied some

service, program or activity, “or was otherwise discriminated

against” by virtue of his disability. Specifically, Horstkotte

alleges here that the failure to treat his Hepatitis C denied him

access to medical care because of his particular disability. 

Medical care is unquestionably a service provided by the prison. 

Horstkotte asserts in this action that it was his specific

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 18 of 24
19

disabling condition of Hepatitis C, and the protocol employed by

the HSC to treat inmates with that disease, that caused him to be

denied medical care. Accordingly, I find that Horstkotte has

stated a claim under the ADA upon which relief may be granted. 

In my Simultaneous Order, I direct that the ADA claim be served

on defendants Wrenn, Kench, Gerry, Englander, McLeod, Leeka, and

Neculai.

C. Claims Based on International Treaties

Horstkotte claims that the defendants’ failure to provide

him with medical treatment constitutes physical and mental

torture. Horstkotte alleges that the defendants have tortured

him in violation of his rights under the ICCPR and the CAT,

international treaties with which the United States, as well as

the individual states, Horstkotte claims, are obliged to comply. 

As set out below, however, neither of these treaties provides

Horstkotte with the relief he seeks. 

1. CAT

The CAT is a federal statute that assigns criminal liability

to people who commit or conspire to commit torture “outside the

United States.” 18 U.S.C. § 2340A(a). Nothing in the statute

provides a civil right of action to an individual who alleges

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 19 of 24
20

that he was subjected to torture inside the United States. See

Hooks v. Rich, No. CV 605-065, 2006 WL 565909, *7 (S.D. Ga.

2006). In fact, the statute explicitly states that “[n]othing in

this chapter . . . shall be construed as creating any substantive

or procedural right enforceable by law by any party in any civil

proceeding.” 18 U.S.C. § 2340B; see Hooks, 2007 WL 565909 at *7

(plain language of CAT statute forecloses use of the statute as a

basis for civil liability). Accordingly, I find that Horstkotte

has failed to state a claim upon which relief might be granted

under the CAT and I recommend that the claim be dismissed from

this action.

2. ICCPR

The ICCPR is an international treaty to which the United

States is a party. “‘For any treaty to be susceptible to

judicial enforcement it must both confer individual rights and be

self-executing.’” Serra v. Lappin, No. C07-01589 MJJ, 2008 WL

929525, *6 (N.D. Cal. 2008) (quoting Cornejo v. County of San

Diego, 504 F.3d 853, 856-57 (9th Cir. 2007)). The provisions of

the ICCPR that prohibit torture were ratified by the United

States Senate, conditioned on the treaty not being selfexecuting. Serra, 2008 WL 929525 at *6 ) (citing 138 Cong. Rec.

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 20 of 24
21

S4781, 4784 (daily ed. Apr. 2, 1992)); see also Sosa v. AlvarezMachain, 542 U.S. 692, 728 (2004) (citing, in dicta, the ICCPR as

an example of a non-self-executing, and thus non-enforceable,

treaty). Accordingly, I find that the ICCPR, as a non-selfexecuting treaty, is not judicially enforceable and, therefore,

does not provide Horstkotte with a private right of action that

can be redressed by this Court. I recommend, therefore, that the

claim based on an alleged violation of the ICCPR be dismissed.

II. State Law Claims

Horstkotte has alleged that the defendants, in addition to

violating his federal constitutional and statutory rights, have

also violated his rights under State law. Horstkotte brings

State law tort claims for medical malpractice, negligence, and

the intentional infliction of emotional distress against the

defendants, based on the same facts giving rise to his § 1983

claims. I will exercise this Court’s pendant jurisdiction over

the state tort claims, as I find that those claims, arising out

of the same facts and transactions as the federal claims, form

part of the same case or controversy as the federal claims. See

28 U.S.C. § 1367(a) (allowing court to exercise supplemental

jurisdiction over state law claims that are “so related to the

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 21 of 24
22

claims in the action within the original jurisdiction that they

form part of the same case or controversy); see also United Mine

Workers v. Gibbs, 383 U.S. 715, 725 (1966). I will therefore

direct the medical malpractice, negligence, and intentional

infliction of emotional distress claims to be served on

defendants Wrenn, Kench, Gerry, Englander, McLeod, Neculai, and

Perkins in my Simultaneous Order.

III. Supervisory Liability

“Supervisory liability under § 1983 cannot be predicated on

a respondeat theory, but only on the basis of the supervisor’s

own acts or omissions.” Aponte Matos v. Toledo Davila, 135 F.3d

182, 192 (1st Cir. 1998) (internal citations omitted). A

supervisor must be “either was a primary actor involved in, or a

prime mover behind, the underlying violation.” Camilo-Robles v.

Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999). There must be “an

affirmative link, whether through direct participation or through

conduct that amounts to condonation or tacit authorization” to

the violation alleged. Id. at 44.

Defendants Wrenn, Kench, Gerry, McLeod, Englander, and

Perkins, each serve a supervisory function within the NHSP. 

Although there is no supervisory liability in § 1983 actions

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 22 of 24
23

based on a respondeat superior theory of liability, a defendant

supervisor can be held liable based on the defendant’s actual

notice of facts sufficient to render the official responsible for

reasonable inquiry into the complaint. See Feliciano v. Dubois,

846 F. Supp. 1033, 1045 (D. Mass. 1994) (citing Layne v. Vinzant,

657 F.2d 468 (1st Cir. 1981)). A supervisor also may be held

liable for his own acts, or omissions, if they rise to the level

of reckless or callous indifference to the constitutional rights

of others. See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87,

91-92 (1st Cir. 1994). Finally, a supervisor may be held liable

under § 1983 if he or she “formulates a policy or engages in a

practice that leads to a civil rights violation committed by

another.” Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). 

Crediting Horstkotte’s allegations as true, as I must, I

find that defendants Wrenn, Kench, Gerry, McLeod, Englander, and

Perkins, each knew of plaintiff’s serious medical condition,

ongoing pain, and his potential need for diagnostic testing and

prompt treatment, and nevertheless denied him care on the

nonmedical basis that he could be released from incarceration on

or after a January 2008 MPD. These allegations state the minimal

facts necessary to allow plaintiff’s Eighth Amendment claim to

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proceed against defendants Wrenn, Kench, Gerry, McLeod,

Englander, and Perkins in their supervisory capacities. 

Conclusion

For the reasons discussed above, I recommend that the claims

based on alleged violations of the ICCPR and the CAT be dismissed

from this action. In my Simultaneous Order, I will direct

service of the remaining claims on defendants Wrenn, Kench,

Gerry, McLeod, Englander, Leeka, Neculai, and Perkins

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: May 5, 2008

cc: Todd M. Horstkotte, pro se

Case 1:08-cv-00061-JL Document 4 Filed 05/05/08 Page 24 of 24