1Nagle has filed two related actions, civil nos. 08-cv-413-

JL and 08-cv-445-JL, in which he alleges similar claims against

additional defendants.

2I liberally construe this action to be brought against

Gerry, who is identified in the body of the complaint.

3The body of the complaint refers to Parent. Because Nagle

names Parent as a defendant in a separate action, civil no. 08-

413-JL, in which he alleges similar claims against him, I

construe this action to be brought solely against Wrenn, Gerry,

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Adam H. Nagle

v. Civil No. 08-cv-432-SM1

Jorgenson, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Adam H. Nagle has filed a complaint,

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

violated his rights under the First and Eighth Amendments to the

United States Constitution and New Hampshire law (document no.

1). Seeking injunctive and monetary relief, he brings this

action against six employees of the New Hampshire State Prison

(“NHSP”): Warden Richard M. Gerry2; corrections officer Jorgenson

(first name unknown); and four unnamed corrections officers.3 In

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 1 of 16
Jorgenson and the four unnamed corrections officers.

2

addition, I liberally construe the complaint to name as a

defendant William L. Wrenn, Commissioner of the New Hampshire

Department of Corrections (“NHDOC”). 

The complaint is before me for preliminary review to

determine whether, among other things, it states a 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 below, I find that

Nagle has stated the following claims against Gerry, Jorgenson

and the four unnamed corrections officers in their individual

capacities: (1) Eighth Amendment claims alleging use of excessive

force; (2) First Amendment retaliation claims alleging denial of

the right to petition the government for redress of grievances;

(3) and related state law claims alleging intentional infliction

of emotional distress. I recommend dismissal of all remaining

claims.

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

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 2 of 16
3

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

liberally construes pro se pleadings, 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). See also

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). “The policy behind affording pro se plaintiffs liberal

interpretation is that if they present sufficient facts, the

court may intuit the correct cause of action, even if it was

imperfectly pled.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997).

At this preliminary stage of review, all factual assertions

made by the plaintiff and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996)(stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 3 of 16
4I construe Nagle’s reference to “occupant”to mean

cellmate(s).

4

meaningful consideration.

Background

This action stems from Nagle’s confinement in the secured

housing unit (“SHU”) at the NHSP and corrections officers’

alleged use of excessive force against him while he was

experiencing seizures. Upon entering SHU, Nagle notified

officers that he suffered from a medical condition that caused

him to experience seizures. He previously suffered two seizures

while confined at the NHSP, and during one episode he sustained

injuries to his head and neck and required hospitalization. 

While confined in a cell on “A” tier, Nagle and corrections

officers informed his cellmate(s)4 of his medical condition and

instructed them to notify officers by flagging for assistance

when Nagle was experiencing a seizure. The officers allegedly

explained that “flagging” was waiving a white sheet or towel

outside a cell door to alert officers of the need for emergency

assistance. On several occasions, Nagle’s cellmates on “A” tier

flagged officers for emergency assistance when he was

experiencing seizures, however, fifteen to thirty minutes elapsed

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 4 of 16
5Nagle allegedly is unable to identify certain officers who

entered his and/or stood at the door and will attempt to identify

the unnamed officers through discovery.

5

before officers responded.

The incident at issue in this action occurred in June 2008,

while Nagle was confined in SHU and was awaiting available bed

space in the Hancock Building. During that time, Parent

allegedly was in charge of SHU, and all other officers reported

to him. While Nagle was experiencing a seizure, officers

allegedly entered his cell and ordered his cellmate to leave. 

Several other officers, including Parent and Jorgenson, were

standing at the cell door.5 At that time, witnesses allegedly

recounted, Nagle was actively in a seizure and experiencing

convulsive muscle movement along with clenched hands and eyes

rolling into the back of his head. He allegedly was

nonresponsive.

Parent allegedly held Nagle by the wrists and, when his arms

convulsively pulled away, ordered Jorgenson and the other

officers to “take him down.” The officers and Parent pulled

Nagle off of his bed and onto the floor, face first. Parent then

ordered the officers to flip Nagle onto his back while he was

still actively seizing. Parent further ordered the officers to

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 5 of 16
6

pin Nagle down by the arms, legs and head while Parent strattled

him. At that point, while Jorgenson was kneeling on Nagle’s

right wrist with both knees and attempting to pin down his arm,

Nagle experienced a seizure-induced muscle spasm and lifted the

officer off of the ground. The other officers knelt with full

weight on Nagle’s arms, legs, head, neck and groin, and Parent

continued to strattle Nagle and began slapping his chest and

face. Within a few minutes, the seizure allegedly faded, and

Nagle was checked by a nurse and given ice for a large purple

lump on his head. As a result of defendants’ actions, Nagle

allegedly sustained injuries to his head, forehead, neck, right

elbow, left shoulder and groin. He also allegedly sustained

injuries to his joints from hyperextension and endured

unnecessary pain and suffering. 

Over a period of approximately four to five months, Nagle

claims, he repeatedly reported the deprivations and resulting

injuries to Gerry and other NHSP officials, however, they failed

to adequately remedy the problem or take sufficient corrective

action. Nagle further claims that “he had his attempts at

exhausting his administrative remedy thwarted on multiple

occasions.” His confidential requests to the warden allegedly

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 6 of 16
6The claims as identified herein will be considered for all

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

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.

7

were intercepted, and grievances filed “through the chain of

command” and with “the Commissioner and Warden [were] returned to

no avail.” Lastly, Nagle alleges that he was “harassed,

browbeaten and run in circles” with regard to his attempts to

exhaust his administrative remedies. Nagle now brings this civil

rights action, alleging that defendants’ acts and omissions

violate his rights under Section 1983 and New Hampshire law.

Discussion6

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);

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. 

A. Use of Excessive Force

In June 2008, Jorgenson and four unnamed NHSP corrections

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 7 of 16
8

officers allegedly used excessive force against Nagle while he

was experiencing a seizure, thereby violating his Eighth

Amendment right to be free from cruel and unusual punishment. 

In a prison setting, the use of excessive force against a

prisoner is analyzed under the Eighth Amendment prohibition

against cruel and unusual punishment. See Whitley v. Albers, 475

U.S. 312, 319-20 (1986). See also See Davis v. Rennie, 264 F.3d

86, 98 n.9 (1st Cir. 2001) (citing Hudson v. McMillian, 503 U.S.

1, 4 (1992)(“A convicted prisoner may bring a claim for use of

excessive force under the Eighth Amendment.”) To state an Eighth

Amendment claim for the use of excessive force by prison guards,

an inmate must demonstrate “unnecessary and wanton infliction of

pain.” Whitley, 475 U.S. at 319-20. “[T]he core judicial

inquiry is . . . whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and

sadistically to cause harm.” See Hudson, 503 U.S. at 7 (citing

Whitley, 475 U.S. at 320-21). To prevail on an excessive force

claim, a plaintiff must show that the alleged use of force is

“objectively sufficiently serious or harmful enough” to be

actionable. Hudson, 503 U.S. at 8; accord United States v.

Walsh, 194 F.3d 37, 50 (2d Cir. 1999). An excessive force claim

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 8 of 16
9

may be established even if the plaintiff does not suffer serious

or significant injury, if he can demonstrate that the amount of

force used is more than de minimis, or otherwise involves force

“repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-

10.

Here, Nagle alleges that in June 2008 while he was confined

in SHU, Jorgenson and four unnamed NHSP corrections officers

entered his cell and used excessive force against him while he

was experiencing a seizure and while he was nonresponsive. 

Parent allegedly restrained Nagle and ordered Jorgenson and the

other officers to “take him down.” Jorgenson and/or the unnamed

officers allegedly demonstrated deliberate indifference to

Nagle’s safety by forcefully pulling him off of his bed and onto

a concrete floor, face first, and pinning him down while he was

experiencing a seizure. Defendants allegedly further

demonstrated indifference to Nagle’s safety by flipping him onto

his back while he was still actively seizing and pinning him down

by the arms, legs and head while Parent strattled him. In

addition, defendants allegedly knelt with full weight on Nagle’s

right wrist, arms, legs, head, neck and groin, while Parent

continued to strattle Nagle and began slapping his chest and

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 9 of 16
7If Nagle wishes to pursue claims against the unnamed

corrections officers, he will have to obtain their full names

10

face. 

As a result of defendants’ actions, Nagle allegedly

sustained injuries to his head, forehead, neck, right elbow, left

shoulder, joints and groin and endured unnecessary pain and

suffering. Nagle claims that because he was on a secure mattress

with blankets and padding to protect his head, it was unnecessary

for defendants to move him. Defendants allegedly are trained in

basic emergency response and should have been able to understand

the possibility of injury.

Nothing in the record suggests that Nagle provoked the

incident or otherwise posed an immediate threat to the safety of

the corrections officers or the security of the prison. Nor is

there any indication that excessive force was used by the

officers in a good-faith effort to maintain or restore

discipline. Nagle allegedly reported the deprivations and

resulting injuries to Gerry and other NHSP officials, however,

they failed to remedy the problem or take any corrective action. 

For purposes of preliminary review, I find that Nagle has alleged

Eighth Amendment excessive force claims against Gerry, Jorgenson

and the four unnamed corrections officers.7

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 10 of 16
through discovery and appropriately move to amend the complaint. 

He can serve the named defendants with interrogatories to obtain

the full names of the unnamed defendants pursuant to Fed. R. Civ.

P. 33(a)(1) (providing, in part, that “[u]nless otherwise

stipulated or ordered by the court, a party may serve on any

other party no more than 25 written interrogatories, including

all discrete subparts. . . . )

 

Pursuant to Fed. R. Civ. P. 33(b)(1) (A) and (B), the

interrogatories must be answered by the party to whom they are

directed or, “if that party is a public or private corporation, a

partnership, an association, or a governmental agency, by any

officer or agent, who must furnish the information available to

the party.” Nagle is further instructed to forward a separate

summons to this court with each defendant’s proper name.

11

In addition, Nagle broadly alleges that his “grievances from

as high as the Commissioner and Warden [have been] returned to no

avail, as well as requests going through the chain of command.” 

To the extent he alleges a claim against Wrenn, Commissioner of

the NHDOC, I conclude that he has failed to state a cognizable

claim against him. There is no indication in the record that

Wrenn was adequately informed of the incident or that he condoned

the actions by the subordinate officers. Because Nagle has

failed to allege sufficient predicate facts to state a cognizable

Eighth Amendment excessive force claim against Wrenn, I recommend

dismissal of the claim against him.

B. Retaliation

Construed liberally, the complaint alleges that defendants

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 11 of 16
12

retaliated against Nagle in reprisal for his First Amendment

right to file administrative grievances. I liberally construe

this claim to be brought against Gerry, Jorgenson and the four

unnamed corrections officers.

To prevail on a First Amendment retaliation claim, a

plaintiff must show “(1) that the speech or conduct at issue was

protected, (2) that the defendant took adverse action against the

plaintiff, and (3) that there was a causal connection between the

protected speech and the adverse action.” Davis v. Goord, 320

F.3d 346, 352 (2d Cir. 2003). It is well-established that

prisoners 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 Fogle v.

Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006) (noting that

“[s]everal circuits have held that a prisoner’s first amendment

right to petition the government for redress of grievances

encompasses the filing of inmate administrative appeals.”);

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

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 12 of 16
8As explained above, if Nagle wishes to pursue claims

against the unnamed corrections officers, he must obtain their

full names through discovery and appropriately move to amend the

complaint. He can serve the named defendants with

interrogatories to obtain the full names of the unnamed

defendants pursuant to Fed. R. Civ. P. 33(a)(1). 

13

against them for exercising that right).

Construed liberally, the complaint in this action alleges

that Nagle engaged in constitutionally protected conduct through

the filing of administrative grievances. Defendants allegedly

thwarted his attempts to exhaust administrative remedies and

intercepted his confidential requests to the warden. Nagle

further alleges that he has been “harassed, browbeaten and run in

circles for these attempts at remedy.” He appears to allege that

defendants’ retaliatory actions were motivated by his filing of

administrative grievances and therefore were taken against him in

reprisal for his exercise of First Amendment freedoms. He

allegedly reported the deprivations and resulting injuries to

Gerry and other NHSP prison officials, however, they failed to

remedy the problem or take any corrective action. Accepting

Nagle’s allegations as true, which I must do at this preliminary

stage of the proceedings, I conclude that he has stated a

cognizable First Amendment retaliation claim against Gerry,

Jorgenson and the unnamed corrections officers.8

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 13 of 16
14

II. State Law Claims

Nagle alleges that the same conduct that violated his

federally protected rights to be free from use of excessive force

and retaliation also violated his right to be free from

intentional infliction of emotional distress under New Hampshire

law. He appears to allege that by using excessive force against

him while he was suffering a seizure and by retaliating against

him, or by condoning such actions, Gerry, Jorgenson and the

unnamed corrections officers caused him to experience severe

emotional distress and harm. 

Nagle’s state law claim allegedly stems from the injuries he

sustained as a result of defendants’ actions and, therefore,

appears to be so related that it forms part of the “same case or

controversy” of the Eighth Amendment excessive force claim and

the First Amendment retaliation claim. See 28 U.S.C. § 1367(a)

(providing for supplemental jurisdiction over claims that are so

related they form part of the same case or controversy). 

Accordingly, I conclude that this court may exercise supplemental

jurisdiction over Nagle’s state law claims for intentional

infliction of emotional distress against Gerry, Jorgenson and the

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 14 of 16
9As explained above, if Nagle wishes to pursue claims

against the unnamed corrections officers, he must obtain their

full names through discovery and appropriately move to amend the

complaint. He can serve the named defendant with interrogatories

to obtain the full names of the unnamed defendants pursuant to

Fed. R. Civ. P. 33(a)(1). 

15

four unnamed corrections officers.9

Conclusion

For the reasons stated above, I find that Nagle has stated

the following claims against Gerry, Jorgenson and the four

unnamed corrections officers in their individual capacities: (1)

Eighth Amendment claims alleging use of excessive force; (2)

First Amendment retaliation claims alleging denial of the right

to petition the government for redress of grievances; (3) and

related state law claims alleging intentional infliction of

emotional distress. I recommend dismissal of all remaining

claims. Accordingly, by separate order issued simultaneously

herewith, I authorize the above viable claims to proceed. 

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,

he must do so by objection filed within ten (10) days of receipt

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 15 of 16
16

of this report and recommendation, or he must properly move to

amend the complaint. 

Any further objection 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);

see also 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: December 18, 2008

cc: Adam H. Nagle, pro se

Case 1:08-cv-00432-SM Document 4 Filed 12/18/08 Page 16 of 16