1Johnson has named the following defendants to this action:

Northern New Hampshire Correctional Facility (“NCF”) Media

Generalist Angela Poulin, NCF Hearings Officer Paul Fortier, NCF

Unit Manager Robert Thyng, NCF Maintenance Supervisor Joseph

Bachofer, NCF Major Dennis Cox, NCF Warden Larry Blaisdell, and

New Hampshire Department of Corrections (“DOC”) Commissioner

William Wrenn. In addition, I find that, while they are not

listed in the caption of his action, Johnson also intended to

name the following people as defendants to this action: DOC

employee Christopher Kench, NCF Sargeant Wilson (first name

unknown (“FNU”)) and NCF Corporal FNU Mailhot.

2Johnson has filed a complaint (document no. 1) and several

amendments to the complaint (document nos. 5, 8, 10 & 12-15). 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Gary DeWayne Johnson

v. Civil No. 07-cv-161-PB

Angela Poulin, et al.1

REPORT AND RECOMMENDATION

Before the Court is Gary DeWayne Johnson’s civil rights

complaint, filed pursuant to 42 U.S.C. § 1983 and the Americans

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

alleges that the defendants violated a number of his

constitutional and statutory rights and retaliated against him

for having exercised his constitutional rights.2 The matter is

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 1 of 52
These documents, in the aggregate, will be construed to comprise

the complaint in this matter for all purposes. Johnson is

advised, however, that future amendments to his complaint should

comply with Local Rule 15.1, which states, in relevant part:

(a) A party who moves to amend a filing shall (i) 

attach the proposed amended filing to the motion 

to amend, (ii) identify in the motion or a 

supporting memorandum any new factual allegations, 

legal claims, or parties, and (iii) explain why 

any new allegations, claims, or parties were not 

included in the original filing.

(b) Any amendment to a pleading, whether filed as 

a matter of course or upon a motion to amend, 

shall reproduce the entire filing as amended and 

may not incorporate any prior filing by reference, 

except by leave of court.

2

before me for preliminary review to determine, among other

things, whether or not plaintiff has stated any claim upon which

relief might be granted. See United States District Court for

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

For the reasons explained fully herein, in an Order issued

simultaneously with this Report and Recommendation (the

“Simultaneous Order”), I direct that the following claims be

served against the following defendants: (1) a denial of the

right of access to the courts claim for disallowing Johnson’s

research of “inappropriate” phrases, against Thyng, Blaisdell,

Wrenn, Kench, Wilson, Poulin, and Mailhot; (2) a due process

violation claim for banning Johnson from the NCF law library,

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 2 of 52
3

against Thyng; (3) a denial of access to the courts claim based

on the denial of access to legal research materials or a legal

assistant proficient in the law against defendants Thyng, Cox,

and Blaisdell; (4) an endangerment claim against defendant

Bachofer; (5) a failure to protect claim against Thyng; (6) a

denial of adequate mental health care claim and an ADA claim

against Thyng; (7) a denial of hygiene items claim against Thyng

and Blaisdell; and (8) a state law defamation claim against

Bachofer. I also recommend the following claims be dismissed:

(1) the official capacity claims; (2) the violation of due

process in disciplinary proceedings claim; (3) the denial of a

right of access to attorney disciplinary hearing claim; (4) the

denial of access to the courts based on the denial of typewriter

ribbons claim; (5) the equal protection claim; and (6) the loss

of prison employment claim.

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. 

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 3 of 52
4

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)

(same). 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.

Background

Allegations Related to Johnson’s Use of the Law Library

Johnson is an inmate at the Northern New Hampshire

Correctional Facility (“NCF”). On March 6, 2007, Johnson was

researching legal issues relative to challenging his criminal

conviction on the NCF law library’s “Lexis” computerized legal

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3The disciplinary report charged Johnson with disobeying a

posted order that the use of “inappropriate terminology” was

forbidden. The order was deemed “posted” because it was stated

on a sign-in sheet in the library.

5

research system. To conduct legal research with Lexis, users

enter certain keywords or, if known, identifying citations, to

search for legal cases and other legal writings related to the

subject matter the user seeks to research. On March 6, Johnson

was researching the definition of sexual penetration. To that

end, and in reference to the facts of his own criminal case,

Johnson entered the search term “licked her anus,” presumably to

determine whether statutory definitions of penetration included

that act. Johnson was approached by Micah Fullerton, an inmate

employed as a law library clerk. Fullerton told Johnson that

both Fullerton and Angela Poulin, the NCF librarian, monitored

the legal searches done on the Lexis system. Fullerton further

advised Johnson that the term he was searching would be

considered inappropriate by Poulin, and that Johnson should

discontinue the use of such terminology. Johnson alleges that

Fullerton went on to report Johnson’s search to Poulin. Poulin

wrote a disciplinary report against Johnson concerning the

incident.3

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4A “rape-shield” law prevents a criminal defendant from

inquiring into an alleged rape victim’s consensual sexual history

absent a particularized showing that the information sought is

relevant and material, and that admission of that evidence is

necessary to protect the defendant’s constitutional right to

confront the evidence against him and to a fair trial. See

Black’s Law Dictionary 1410-11 (8th ed. 2004) (“Shield Law”).

5The case in question, State v. Howard, 121 N.H. 53, 426

A.2d 457 (1981) is a case explaining New Hampshire’s rape-shield

statute. The Howard case contains the phrase “masturbating a

bull.” Id. at 55.

6

Several days after the March 6 incident in the library,

Johnson was discussing the New Hampshire rape-shield statute4

with another inmate, Christopher Cremeans. Cremeans told Johnson

that there was a specific case on the topic that Johnson was

researching. Cremeans could not remember the name of the case,

but he did remember that the case included the term “masturbated

a bull.”5 Johnson searched for the case by entering that phrase

as a search term in the library’s Lexis system. Again, Fullerton

saw the phrase that Johnson was using and reported the incident

to Poulin. Johnson explained to Poulin that the phrase was used

in order to identify a specific case in furtherance of

permissible legal research. Poulin, however, had Johnson removed

from the library by NCF Corporal Mailhot. Poulin then wrote up a

second disciplinary infraction report for Johnson concerning this

incident. 

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7

As a result of the two disciplinary charges, and before any

hearing was held on the charges, Johnson was barred from using

both the law library and the recreational library, and was

prohibited from using the law library to receive copies of legal

documents or to have documents notarized. On March 13, 2007,

defendant Thyng, Johnson’s Unit Manager, told Johnson that this

restriction was in place because Johnson’s conduct had identified

Johnson as a security risk to the institution. Thyng further

informed Johnson, as a convicted sex offender, he should not be

using a computer at all. Thyng also accused Johnson of signing

onto the library computer under other inmates’ names and

searching for inappropriate materials. 

Johnson denies those accusations and asserts that no

evidence or other documentation to substantiate them has ever

been produced, despite his numerous requests for such

information. Johnson asserts he has not been charged with any

such act. Finally, Johnson contends that despite Thyng’s claims

that he is a security risk, he has remained classified as a

medium custody, “C-3," inmate. Johnson grieved the pre-hearing

denial of access to the libraries to both NCF Warden Larry

Blaisdell and DOC Commissioner William Wrenn. Both Blaisdell and

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8

DOC employee Christopher Kench, acting for Wrenn, upheld the

restrictions.

On March 14, 2007, NCF Sargeant Wilson, acting on Thyng’s

directive, did not allow Johnson to go to the library to have

documents copied that had to be mailed to the New Hampshire

Supreme Court by March 14 in order to be timely filed. Johnson

also requested that the appendix to his notice of appeal be

bound, as required by New Hampshire Supreme Court rule. The

request was denied. 

In addition, Poulin refused to notarize documents that had

to be notarized and mailed to the Superior Court by March 18,

forcing Johnson to file an emergency motion for an expansion of

time in order to be able to file a motion to reconsider in the

Superior Court. Johnson’s complaint indicates that he was

provided with an alternative method of having something notarized

by someone other than Poulin. It appears, however, that this

process was time-consuming and did not satisfy Johnson’s time

sensitive filing requirements. The motion for an expansion of

time was denied, and Johnson claims he was, therefore, unable to

file a meritorious motion to reconsider in his Superior Court

action. Poulin also refused to notarize a document Johnson

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9

needed sent to the New Hampshire Attorney Discipline office,

where Johnson had a petition pending. The petition was denied

because Johnson did not file timely notarized paperwork.

On March 21, 2007, a disciplinary hearing was held on

Johnson’s charged violations of the legal research policy. 

Poulin testified against Johnson at the hearing. She stated that

even if Johnson was conducting legitimate legal research, that

the use of the particular search terms in question was

unnecessary to retrieve the cases he sought. Poulin testified

that Johnson failed to use alternative search terms, and failed

to get advance permission to use the search terms in question.

Johnson requested that he be permitted to call Fullerton and

Cremeans as witnesses at the hearing. Although the NCF

investigators, Corporals Primo and Massey and Sargeant Newton,

interviewed those individuals, NCF Hearing Officer Fortier denied

Johnson’s request for their live testimony at the hearing. 

Fortier refused the request for witnesses because Johnson would

not divulge in advance of the hearing what testimony he sought

from the witnesses, which Fortier required to assure that the

testimony would be relevant.

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10

Johnson has attached to his complaint an affidavit written

by Cremeans stating that the statement he gave to Newton was

misrepresented at the disciplinary hearing. Cremeans’ affidavit

says that while Newton reported that Cremeans had personal

knowledge of Johnson’s use of allegedly inappropriate search

terms, Cremeans actually told the investigator that Johnson had

discussed the March 6 incident, but that he did not have personal

knowledge of what had transpired. Cremeans also told Fullerton,

at the time Johnson received the second disciplinary report

alleging the use of inappropriate terminology, that he had told

Johnson what phrase to use to search for the rape-shield case,

and that Johnson was conducting legal research regarding the

rape-shield law. On March 12, 2007, Cremeans was questioned by

NCF Corporal Primo and NCF Sargeant Massey. Primo and Massey

asked Cremeans why Johnson had wanted him as a witness at his

disciplinary hearing. Cremeans told the officers that he had

suggested Johnson search for the phrase “masturbated a bull” in

order to find a specific case , which he believed would be

relevant to Johnson’s research, but the name of which he could

not remember. Primo responded that the use of the phrase was

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 10 of 52
11

inappropriate. Cremeans was not called as a witness at the

hearing.

Johnson further asserts that he was told by NCF Major Dennis

Cox that he would have to prove his innocence at the disciplinary

hearing and on appeal. Johnson argues that this requirement was

imposed in violation of his due process rights. In fact, Johnson

was found guilty of the disciplinary infractions charged. He was

sanctioned with five days of punitive segregation, suspended for

a period of ninety days, fifteen days loss of recreation time,

ten days loss of canteen, and fifteen hours of extra duty. 

Following the hearing, Johnson filed an appeal in which he

argued that the research terms were not offensive because they

were terms that had been used in court opinions. Additionally,

Johnson argued, the terms used were all terms found in the

dictionaries sold to inmates at the NCF canteen. Johnson also

argued that Poulin’s rules about library usage are not official

policy, and that Poulin herself was violating prison rules by

allowing Fullerton, an inmate, to act in a supervisory position

over other inmates. The hearing officers’s findings and

sanctions were affirmed, however, and Johnson was advised that he

had a right to appeal the denial to NCF Warden Blaisdell.

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 11 of 52
12

Johnson asserts that, in addition to the disciplinary

sanctions imposed by Fortier, on March 26, 2007, Thyng formally

barred Johnson from using the recreational and law libraries

until May 21, 2007. Johnson was warned that future violations

could result in an indefinite restriction on Johnson’s

“privilege” to use the NCF libraries. Johnson was told, however,

that because he had litigation pending in the state courts, he

could make a request for legal material by identifying in a

request slip what document or specific case he needed, and

attaching to that request both a request for photocopying and a

cash withdrawal slip. No provision was made to allow Johnson to

conduct legal research in order to be able to identify what

material he needed, or to otherwise have research conducted on

his behalf.

Because he was barred from the law library, on March 28,

2007, Johnson requested that a person proficient in the law be

appointed to assist him in conducting his legal research and

preparing his cases. Thyng responded on April 2 and asked

Johnson to request a specific individual to assist him before

Thyng would rule on the request. On April 26, Johnson renewed

his nonspecific request for a legal assistant to be provided by

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 12 of 52
13

the institution. Cox, however, denied the request on April 27,

stating that it was not the DOC’s responsibility to provide

Johnson with legal assistance.

Johnson asserts that his litigation efforts were thwarted

because Cox denied him access to typewriter ribbons, which he

needed to type documents submitted to the New Hampshire Supreme

Court. Cox responded that the deprivation was due to the canteen

restriction that had been imposed, and that if he wanted canteen

privileges, he would have to “control [his] behavior and act like

an adlut [sic].” 

Johnson also claims that, as a result of the disciplinary

charges against him and the rumors that he used the identities of

other inmates to search for child pornography on the library

computer, he lost his job in the Maintenance department at NCF. 

Johnson held the job for three years prior to his termination,

and had performed the job well. The NCF Maintenance Supervisor,

Joseph Bachofer, however, told a number of inmates that Johnson

had been fired for “looking up child pornography” in the law

library. Johnson denies engaging in the uncharged acts, noting

that inmates have no internet access other than the Lexis legal

research system, which does enable someone to search for child

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 13 of 52
6Johnson claims that the statement is unsigned and unsworn

because NCF staff intimidated Kidd so that he would not provide

Johnson with a sworn statement.

14

pornography. Johnson has submitted a signed statement from

inmate Stephen Quartarone and an unsigned and unsworn statement

written by inmate Kerry Kidd6, confirming that Bachofer was

spreading the “child pornography” rumor among the inmates. 

On May 23, 2007, Johnson was allowed back into the law

library to have something notarized. Johnson alleges that in an

act of retaliation, Poulin had Mailhot again remove him forcibly

from the library and taken to “the hole.” According to incident

reports submitted by Johnson with his complaint, Poulin reported

that she had asked him nicely to sit down and not to stand over

her shoulder while she notarized his documents, but Johnson

refused. Johnson then ignored at least one direct order from

her, and one direct order from Mailhot, to sit down. Only after

that refusal, Poulin and Mailhot claim, was Johnson removed. 

Poulin then wrote up a disciplinary infraction report charging

that Johnson had failed to follow a staff person’s order by

refusing to sit down, and had disrupted the library’s operations

when his behavior necessitated his forcible removal from the

library.

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15

Johnson claims that as a result of Cox, Poulin, Thyng and

Bachofer promulgating rumors about him searching for child

pornography, his safety on his housing unit, where he had

previously felt safe for several years, was compromised. Johnson

reports being threatened or warned to “watch his back” by inmates

who had heard the rumors. On June 11, 2007, Johnson was badly

beaten by another inmate in the chow line. Johnson was treated

at the infirmary for a head laceration, a black eye, and a

concussion. 

After the June 11 incident, Johnson tried to request

protective custody status. Johnson claims, however, that when he

attempted to file a request for protective custody with the

Warden by submitting it to Thyng, that Thyng threatened to have

him handcuffed and lugged to “the tank” if he did not sign a

statement saying that he felt safe on Thyng’s housing unit. As a

result, Johnson signed the statement. On June 13, Johnson was

denied protective custody status, because the Warden was confused

by Johnson’s conflicting assertions that he needed to be placed

into custody for his own safety, and that he felt safe on his

current housing unit.

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16

Allegations Relating to Johnson’s Mental Health

Johnson has been treated at the prison for mental illness

for several years and had been placed on medication for

depression, anxiety, and insomnia. After the June 11 beating,

Johnson’s mental condition deteriorated as a result of the stress

and anxiety caused by the incident, as well as the other events

described above that preceded it. Johnson requested to be fed in

his cell, but NCF Sargeant Morin denied his request. 

On July 16, 2007, Johnson’s mental health provider, Judy

Figueroa, prescribed him medication and authorized cell feeds for

thirty days, because his mental condition had deteriorated. 

Figueroa’s prescription for cell feeds was intended to treat his

mental illness by reducing the stress Johnson experienced

following the June 11 assault in the chow hall. On July 17,

2007, Thyng cancelled the cell feed pass prescribed by Figueroa. 

Thyng also wrote a disciplinary infraction report accusing

Johnson of manipulating the system in order to get a cell feed

pass. Johnson was also written up for a disciplinary infraction

by NCF Lieutenant Loven, who accused Johnson of lying about the

reason Figueroa had prescribed the cell feed pass. Loven’s

reported basis for the infraction was that a woman named Heidi

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17

who worked at the NCF infirmary, with whom Johnson was not

familiar, reported to Loven that Johnson had gone to the

infirmary with the sole purpose of getting a cell feed pass. 

Johnson claims that these disciplinary write-ups were taken

in retaliation for Johnson’s pending litigation against the

defendants in this Court. Johnson further claims that his mental

illness qualifies him as a disabled person, and that allowing

cell feeds to help treat his mental illness was a reasonable

accommodation to make for his disability.

Allegations Regarding Hygiene Products

On June 21 and 27, 2007, Johnson requested that the prison

provide him with a supply of hygiene products, including

toothpaste, soap, shampoo, and razors. Johnson’s written request

explained that he had no money to purchase hygiene products from

the canteen, because his inmate account was entirely depleted by

the cost he incurred making copies of legal documents. Johnson’s

request for hygiene products was denied. In his June 22 denial,

Thyng stated that Johnson had already received hygiene items. 

Johnson claims that at that time, all he had received was a

single disposable razor. Thyng again denied Johnson’s June 27

request, stating that a hygiene bag had been provided to him a

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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 . . . .

18

week earlier. Johnson claims, however, that he had been without

these items since June 21, and continued to be deprived of the

items entirely until Thyng provided him with two razors on July

6. On July 11, Blaisdell responded to Johnson’s grievance

regarding hygiene items, denying the request on the grounds that

a hygiene bag should last more than one week and accusatorily

inquiring whether Johnson had thrown the items away. Johnson

developed sores and a rash because he was denied soap. On July

17, 2007, Johnson received a disciplinary infraction report for

not shaving. 

Discussion

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; City of Okla. City v.

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 18 of 52
8The claims identified in this Order will be considered for

all purposes to be the claims raised in this action. If Johnson

disagrees with this identification of claims, he must properly

move to amend his complaint.

9The right of access to the Courts in the prisoner context

has been limited to certain types of lawsuits. See Thaddeus-X v.

Blatter, 175 F.3d 378, 391 (6th Cir. 1999) (limiting a prisoner’s

right to access the courts to direct appeals, habeas petitions,

and civil rights claims taken on prisoner’s own behalf). Here,

Johnson alleges that, among the legal cases interfered with, were

an action or actions challenging his underlying conviction, and a

19

Tuttle, 471 U.S. 808, 829 (1985); 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. 1997). Here, Johnson claims

that the defendants, all state actors, have violated his federal

constitutional and statutory rights.8 Such claims, therefore,

arise under § 1983.

II. Denial of Right to Meaningful Access to the Courts

Under the Due Process Clause of the Fourteenth Amendment,

prison inmates enjoy a right of access to the courts. See Bounds

v. Smith, 430 U.S. 817, 828 (1977); Lewis v. Casey, 518 U.S. 343,

350-51 (1996); Carter v. Fair, 786 F.2d 433, 435 (1st Cir.

1986).9 States have an affirmative duty to ensure that inmates

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 19 of 52
matter before the state’s attorney disciplinary committee. 

Although I find that Johnson cannot maintain an action premised

on a denial of access to attorney disciplinary proceedings,

Johnson can base a denial of access to the courts claim on an

allegation that his efforts to bring a state court challenge to

his incarcerating conviction were adversely impacted by

defendants’ actions.

20

have meaningful access to the courts. Bounds, 430 U.S. at 832-

34; Wolff v. McDonnell, 418 U.S. 539 (1974), Johnson v. Avery,

393 U.S. 483, 485 (1969); Germany v. Vance, 868 F.2d 9, 14 (1st

Cir. 1989) (internal quotations omitted). In order to assert a

denial of meaningful access to the courts, an inmate must allege

that he has suffered injury or prejudice to an underlying

nonfrivolous legal action. Lewis, 518 U.S. at 351; Christopher

v. Harbury, 536 U.S. 403, 415 (2002). Without such an injury, no

claim lies for a denial of access to the courts. Lewis, 518 U.S.

at 351; Christopher, 536 U.S. at 415.

The right of access “requires prison authorities to assist

inmates in the preparation and filing of meaningful legal papers

by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.” Bounds, 430 U.S. at

828. While a prison is not required to provide both an adequate

law library and persons knowledgeable in the law to assist

inmates, the institution must provide access to resources that,

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 20 of 52
21

in the aggregate, suffice to insure that inmates are not denied

the ability to conduct legal research, or prepare legal filings. 

Bounds, 430 U.S. at 828; Cepulonis v. Fair, 732 F.2d 1, 6 (1st

Cir. 1984). Although the right to meaningfully access a law

library is not absolute, for example, it may be restricted on

occasion when it might contravene an important security concern

of the prison, “when a state chooses to fulfill its Bounds

obligation . . . solely or primarily by providing access to a law

library, such access cannot be so attenuated as to be

meaningless.” Cepulonis, 732 F.2d at 4. A procedure wherein an

inmate is not provided the opportunity to conduct research, but

is required to provide, in advance of receiving legal materials,

the specific case citation or publication sought, is “suspect,”

because “when inmates are unassisted by persons trained in the

law and must specify in advance the books which they wish to use

. . . [i]t is unrealistic to expect a prisoner to know in advance

exactly what materials he needs to consult.” Id. at 3-5. 

Accordingly, where a prison restricts or eliminates access to an

adequate law library, the prison must provide adequate access to

some means by which an inmate can both conduct legal research to 

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 21 of 52
22

identify necessary materials, and then obtain those materials. 

Id. at 6. 

Prison administrators may regulate inmates’ legal research

and preparation of legal papers, as long as those restrictions do

not frustrate the inmates’ ability to pursue legal claims. 

Johnson, 393 U.S. at 486; Turner v. Safley, 482 U.S. 78, 89

(1987). Regulations impacting the exercise of an inmate’s

constitutional rights must be reasonable. Turner, 482 U.S. at

89. To be considered reasonable, a regulation must not be an

exaggerated response to a situation for which a more narrowly

tailored regulation would serve the same end. Id. at 89-91. In

Turner, the Supreme Court set out a four-factor test for courts

to use in determining whether a particular prison policy serves

legitimate penological objectives or is an exaggerated response

by prison officials: (1) whether the regulation is rationally

related to a legitimate and neutral government objective; (2)

whether the inmate has other avenues available to exercise the

right in question; (3) the impact that accommodating the asserted

right will have on prison guards, other prisoners, and the

allocation of prison resources; and (4) whether there is any

ready alternative to the regulation that will fully accommodate

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23

the prisoners’ rights at de minimus cost. Id. at 87, 89-90. 

Applying this test, I will examine the restrictions on Johnson’s

right of access to the courts to determine whether or not an

actionable deprivation has been stated.

The policy in question here required that all inmates

conducting legal research must not transgress a rule prohibiting

the use of “inappropriate terminology” in the library. 

Significantly, what constitutes “inappropriate terminology” is

not defined, but rather is left to the librarian’s discretion to

determine whether a research term was “appropriate” or not. The

regulation further authorizes the librarian to censor an inmate’s

research if she determines that a term is “inappropriate” and to

initiate disciplinary action against the inmate for employing

such terminology. Johnson asserts that he attempted to conduct

research into whether or not particular acts, relevant to his

conviction, satisfied the definition of sexual penetration. To

that end, he searched for legal cases including the phrase

“licked her anus,” presumably on the basis that there was a

factual connection between that phrase and his criminal

conviction, which, in turn, Johnson presumably needed to either

actually litigate or in anticipation of potential litigation of

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24

challenges to his conviction. Poulin’s second charge, based on

Johnson’s use of the phrase “masturbated a bull,” also

misunderstood his need to use that terminology. Johnson

attempted to find a specific case relevant to his underlying

conviction, that he knew could be found by using that specific

phrase, to efficiently conduct his legal research in light of his

limited time in the law library. Poulin denied Johnson’s legal

searches using those terms and, in both cases, filed disciplinary

charges against Johnson for violating the “inappropriate

terminology” regulation. 

When confronted with the relevance of the search terms to

research in furtherance of Johnson’s pending litigation, Poulin

opined that there were other ways to obtain the information

sought. It does not appear, however, that Poulin made any

attempt to educate Johnson in conducting complex computerized

legal research or in finding or providing him with the services

of a person proficient in legal research, in order to conduct the

research without the use of what she considered to be

“inappropriate terminology.” 

The first Turner factor assesses whether or not the

challenged regulation is rationally related to a valid

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25

penological interest. Id. at 89. Prohibiting inmates from using

certain language may be rationally related to the legitimate

correctional goal of assuring that an inmate conducts himself in

a manner that is consistent with rehabilitation. It may also hel

ensure that an inmate does not exploit the opportunity to use

computerized legal research to obtain cases whose fact patterns

might satisfy their prurient interests, or for anything other

than legitimate legal research. This is particularly true in

instances where sex offenders might have access to potentially

sexually charged information. Accordingly, I find that the

regulation in question, which requires the use of “appropriate

terminology” in conducting library research, to be rationally

related to a legitimate penological concern, satisfying the first

Turner factor.

The second Turner factor requires the Court to determine

whether Johnson had other means by which he could exercise his

right to access the courts. Based on the facts alleged here, I

find that he did not. While Poulin asserted at Johnson’s

disciplinary hearing that other searches would yield the same

results, it does not appear that any instruction or assistance in

conducting such an alternative search was provided, or even

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26

offered, to Johnson. To the contrary, when Johnson made a

specific request for a person knowledgeable in the law to assist

him, the request was denied on the basis that the prison does not

offer assistance to inmates in conducting legal research. 

Further, to the extent that the prison’s regulations, and the

restrictions imposed here, resulted in the removal of Johnson

from any direct access to the law library, he also was denied

access to any alternative means of obtaining information

regarding his legal claims.

The third and fourth Turner factors are concerned with the

impact of accommodating the asserted right on the prison’s

personnel, inmates, and resources, and with whether or not some

less restrictive alternative to the regulation in question exists

that would satisfy the penological objectives furthered by the

challenged regulation. Here, I find that accommodating the right

of an inmate to meaningfully access the courts, and the

concomitant right to conduct legal research, even by entering the

crude phrases at issue here, would not necessarily impact the

prison’s operations, inmates, or employees. 

To the extent that accommodating Johnson’s right to conduct

research by entering these phrases into the Lexis system could,

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 26 of 52
27

however, impact prison operations, I find that with minimal

monitoring of an inmate’s activities or gathering information

from the inmate regarding his litigation efforts, that impact

could be effectively eliminated. In this case, for instance,

Johnson’s explanation of why he was searching for these

particular terms, the nature of his underlying conviction, and

the fact that he had state court litigation pending challenging

that conviction, should suffice to demonstrate that Johnson was

not using the terms for an improper purpose. Otherwise, Poulin

could determine that certain words, in and of themselves, were

always “inappropriate.” That amount of discretion enables

arbitrary decision making with no predictability of results or

assurance of reasonable policies being advanced. I find that a

better definition of “inappropriate,” as applied to terminology

used in legal research, takes into account not just the specific

phrase used, but the context in which it is employed. 

It is worth noting that had Johnson obtained the cases in

some other manner, in furtherance of his litigation, he would

still be in possession of exactly the same document, terminology

and all. Prison officials would be hard-pressed to justify a

policy that prohibited sex offenders from researching cases

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 27 of 52
28

because they involved the facts of the offenses underlying those

cases. The application of law to particular facts is, in fact,

the essence of legal research and advocacy. To broadly restrict

inmates from researching cases containing certain kinds of facts,

therefore, will undoubtedly result in an improper limitation on

legal research for some inmates whose underlying convictions

involved less than wholesome facts. It is likely that the only

difference in prison operations that would result in a rule less

prohibitive of explicit search terms, but that would serve to

stop inappropriate use of the computer, is that Poulin, or

another NCF employee, would have to ask an inmate a few questions

to determine if the suspect terminology was being legitimately

and appropriately utilized. Accordingly, I find that the

regulation here, as alleged, may well be an exaggerated response

to a rational and legitimate penological concern, rendering the

regulation itself unreasonable. 

Johnson has also adequately alleged that he was prejudiced

by the denial of access to the courts. Johnson states that on

more than one occasion, he was denied relief in the state courts

as a result of his inability to make timely filings in cases

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 28 of 52
10I except from my finding of adequately alleged prejudice

Johnson’s claim that the denial of typewriter ribbons by Cox

resulted in actual injury to a pending action. Johnson has

alleged no such injury resulting specifically from the denial of

typewriter ribbons. Accordingly, I recommend dismissal of that

discreet claim.

29

challenging his conviction.10 I find, therefore, that Johnson

has stated a claim upon which relief may be granted for denial of

meaningful access to the courts. In my Order issued

simultaneously with this Report and Recommendation, I direct that

this claim be served on defendants Poulin, Thyng, Mailhott,

Blaisdell, Wrenn, Kench, and Wilson. 

III. Endangerment and Failure to Protect

The safety and security of all prisoners is protected by the

Constitution. See DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 190 (1989); Youngberg v. Romeo, 457 U.S.

307, 315-16 (1982). To state a claim upon which relief might be

granted alleging that the defendants failed to protect him,

Johnson must allege that the defendants were aware of and

deliberately indifferent to a serious risk to his safety at the

hands of other inmates. See Burrell v. Hampshire County, 307

F.3d 1, 7 (1st Cir. 2002).

Here, Johnson claims that Bachofer told a number of inmates

that Johnson had been involved in attempting to retrieve child

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30

pornography on the library computer. Johnson has submitted

statements from two other inmates who report that Bachofer told

them and other inmates that Johnson was looking for child

pornography. These types of rumors, in a prison setting, could

readily put an inmate at risk for his personal safety, and a

prison employee who engages in that type of rumor mongering is

most likely ignoring a known serious risk to the inmate about

whom he is spreading the information. Accordingly, I find that

Johnson has stated a claim against Bachofer for endangering his

safety. Johnson also claims that he believes these rumors were

passed to Bachofer by Cox, Thyng, and Poulin. Johnson’s

supposition, however, unsupported by facts, is insufficient to

state a claim and I recommend dismissal of the endangerment claim

against any defendant other than Bachofer.

Johnson continues by claiming that as a result of these

rumors, he received many threats and, on one occasion, was badly

beaten by an inmate who had heard the rumors. The prison staff

was aware of the beating, as Johnson required medical attention

for a laceration, a black eye, and a concussion. Johnson

attempted to request protective custody status after he was

beaten up. Johnson claims that Thyng denied him that status by

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31

threatening to have him placed in punitive segregation if he did

not withdraw his request and state that he felt safe on Thyng’s

unit. Accordingly, I find that Johnson has stated a claim

against Thyng for Thyng’s intentional failure to protect Johnson

from a known risk to his safety. 

To the extent that Johnson intends to press this claim

against Blaisdell, Wrenn, or any other supervisory individual, I

find that he has failed to do so. The papers submitted by

Johnson indicate that the supervisory personnel at NCF were

willing to place Johnson into protective custody, but that they

were confused by the lack of a clear request for a transfer. 

Accordingly, I cannot find that they, personally, denied Johnson

protection from a known risk, or that they had a policy that

prevented Johnson from receiving safe housing. I recommend that

the failure to protect claim be dismissed, therefore, against any

defendant other than Thyng.

IV. Due Process Violations

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

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32

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). Ordinarily,

however, when a prisoner is subjected to a disciplinary sanction,

he must first demonstrate that the sanction itself was so

atypical of the normal incidents of prison life, and thus imposed

such a hardship, that he was entitled to due process in order for

the sanction to be constitutionally effected. Sandin v. Conner,

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

Here, Johnson was charged with disciplinary violations for

his library searches on two separate occasions. Even accepting

as true, as I must at this stage of proceedings, that Johnson was

improperly denied the ability to call witnesses and present

evidence at his hearing, I cannot find that the sanctions he

received, extra duty time, a loss of recreation and canteen time,

and five days in segregation suspended for ninety days, were

atypical of the normal incidents of prison life. Accordingly, I

recommend dismissal of the claim alleging that the failure to

allow Johnson to call witnesses at a disciplinary hearing

violated his due process rights. 

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33

Johnson goes on to claim, however, that in response to the

disciplinary finding, and in addition to the sanctions imposed by

Fortier after the hearing, Thyng created an additional sanction

for the library incident, as well as in response to uncharged and

unproven allegations of other misconduct. Thyng’s additional

sanction was to ban Johnson from the law and recreational

libraries prior to the disciplinary hearing held, and then,

without conducting any additional due process hearing, or

participating in the first hearing, extending the ban for two

months. Thyng also threatened Johnson with a threat of

indefinite suspension for any future misbehavior. This was not a

sanction imposed pursuant to a due process hearing by a hearings

officer who heard and decided the matter, but a restriction

independently imposed on Johnson by his unit manager. This

restriction denied Johnson access to legal research, copies, and

timely notarization of materials for its duration. I find that

denying Johnson the ability to conduct legal research and engage

in a state court challenge to his conviction may well be a

hardship that exceeds the normal incidents of prison life, much

as it exceeded the sanctions imposed by the disciplinary hearings

officer after a hearing. Accordingly, I find that Johnson has

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34

stated a due process claim against Thyng for denying him adequate

process prior to rescinding his law library privileges, and I

will direct service of this claim against Thyng in my

Simultaneous Order.

V. Denial of Adequate Mental Health Care

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

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

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

an inmate must first state facts sufficient to allege that the

plaintiff has a serious medical need for which adequate care has

not been provided. Farmer, 511 U.S. at 831; Rhodes v. Chapman,

452 U.S. 337, 347 (1981); 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

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

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

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 34 of 52
35

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.’”). The Eighth

Amendment guarantee of adequate medical care applies to a

prison’s provision of mental health care. See DesRosiers v.

Moran, 949 F.2d 15, 19 (1st Cir. 1991); Torraco v. Maloney, 923

F.2d 231, 234 (1st Cir. 1991) (recognizing deliberate

indifference to an inmate’s mental health needs violates the

Eighth Amendment). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

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

based on medical considerations. See 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,

but simply that the care must meet minimal standards of adequacy. 

Deliberate indifference occurs where the medical care provided is

“so clearly inadequate as to amount to a refusal to provide

essential care.” Torraco, 923 F.2d at 234. Constraints inherent

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36

in a prison setting may affect the choice of care provided, and

may be relevant to whether or not prison officials provided

inadequate care with a deliberately indifferent mental state. 

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

Johnson has alleged a serious mental health condition that

was identified by professional mental health personnel at the NCF

as requiring both medication and cell feeds. Johnson has also

alleged that defendant Thyng was aware of Johnson’s need for cell

feeds and denied them to him nonetheless. I find, therefore,

that Johnson has adequately alleged a claim of deprivation of

adequate mental health care against Thyng which I will direct to

be served in my Simultaneous Order.

VI. Equal Protection

Johnson asserts that defendants violated his Fourteenth

Amendment right to the equal protection of the laws when they

denied him services discriminatorily because he is a convicted

sex offender, and because he is disabled by a mental illness. 

The Equal Protection Clause requires states to treat similarly

situated persons alike. Plyler v. Doe, 457 U.S. 202, 216 (1982);

Toledo v. Sanchez, 454 F.3d 24, 33 (1st Cir. 2006), cert. denied,

Univ. of P.R. v. Toledo, ___ U.S. ___, 127 S. Ct. 1826 (2007). 

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 36 of 52
37

The disabled are not a suspect class for equal protection

purposes. Toledo, 454 F.3d at 33 (citing City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). As such, “if

special accommodations for the disabled are to be required, they

have to come from positive law and not through the Equal

Protection Clause.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531

U.S. 356, 368 (2001). The ADA is such a positive law, which

requires states to provide special accommodations for the

disabled, and, therefore, is the more appropriate avenue for the

relief sought here than the Equal Protection Clause. Tennessee

v. Lane, 541 U.S. 509, 549 (2004). 

Additionally, Johnson has proffered no facts which would

indicate that his status as a sex offender warrants membership in

a protected class of persons, nor that he was treated differently

than other similarly situated persons. Therefore, I find that

Johnson has not alleged any facts that state a claim for an Equal

Protection Clause violation, and I recommend that Johnson’s equal

protection claim be dismissed from this action.

VII. ADA Claim

Title II of the ADA provides that “no qualified individual

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

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38

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

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, Johnson asserts that his mental illness renders him a

qualified individual with a disability. Accepting this assertion

as true for purposes of preliminary review, I must determine

whether or not Johnson has alleged that he was denied some

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39

service, program or activity, “or was otherwise discriminated

against” by virtue of his disability. Specifically, Johnson

alleges here that the removal of cell feeds prescribed by his

mental health professional deprived him of a benefit or service

that was prescribed for him in order to accommodate his mental

illness. Johnson has stated sufficient facts to demonstrate

that, in fact, a cell feed was a reasonable means of

accommodating his mental health needs. Johnson has further

related that cell feeds were denied to him by his unit manager,

defendant Thyng, who was not a mental health professional, after

being prescribed for him by his treating mental health

professional. Accordingly, in addition to stating an Eighth

Amendment violation on these facts, I find that Johnson has

stated sufficient facts to assert a claim under the ADA, and I

direct, therefore, that the ADA claim be served against defendant

Thyng.

VIII.Loss of Job and Pay

Johnson claims that he was denied due process when he was

fired from his prison job. He alleges that Bachofer improperly

terminated his employment based on a false allegation that

Johnson was perusing child pornography on the library computers. 

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40

“[I]t is clear that unless state laws or regulations are to the

contrary, prisoners have no vested property or liberty rights to

either obtain or maintain prison jobs.” Dupont v. Saunders, 800

F.2d 8, 10 (1st Cir. 1986). New Hampshire law does not create

any property or liberty interest in employment for prisoners. 

See Brennan v. Cunningham, 126 N.H. 600, 605, 493 A.2d 1213, 1216

(1985) (holding that no liberty interest implicated by Warden’s

exercise of discretion in transferring a prisoner that results in

his inability to work). Johnson, therefore, lacks any federal

due process claim with respect to being denied employment while

incarcerated, and I recommend this claim be dismissed. 

IX. Defamation

Johnson has also alleged a state law claim for defamation. 

Under New Hampshire law, "to establish defamation, there must be

evidence that a defendant published a false and defamatory

statement of fact about the plaintiff to a third party." Moss v.

Camp Pemigewassett, Inc., 312 F.3d 503, 507 (1st Cir. 2002)

(quoting Indep. Mech. Contractors, Inc. v. Gordon T. Burke &

Sons, Inc., 138 N.H. 110, 118, 635 A.2d 481, 492 (1983)) (other

internal citations omitted). “A statement is defamatory if it

‘tends to lower the plaintiff in the esteem of any substantial

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 40 of 52
41

and respectable group of people.’” Moss, 312 F.3d at 507 (citing

Nash v. Keene Publ’g Corp., 127 N.H. 214, 219, 498 A.2d 348, 351

(1985)). Johnson alleges that he was falsely accused of looking

at child pornography. Further, Johnson alleges that the

accusations were repeated by Bachofer to other inmates, which

constitutes publication to a third party. While it is not clear

whether the inmates who heard the rumors would ultimately be

deemed to be a “respectable group of people,” for purposes of

preliminary review, I will accept that they are and find,

therefore, that he has alleged the minimal facts necessary to

state a claim against Bachofer for defamation. Because Johnson

sets out the basic elements of a defamation suit and this court

has original federal question jurisdiction of Johnson’s related

federal claims against the defendants pursuant to 28 U.S.C. §

1331, I will exercise jurisdiction over the state law defamation

claim as I find it may form part of the same case or controversy. 

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

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

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

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 41 of 52
42

direct this claim to be served on defendant Bachofer in my

Simultaneous Order. 

X. Denial of Hygiene Items

“The Constitution ‘does not mandate comfortable prisons,’

but neither does it permit inhumane ones.” Farmer, 511 U.S. at

832 (quoting Rhodes, 452 U.S. at 349). Under the Eighth

Amendment, prisoners are entitled to the “minimal civilized

measure of life’s necessities.” Farmer, 511 U.S. at 834; Rhodes,

452 U.S. at 347. As stated previously, to successfully allege an

Eighth Amendment violation, a plaintiff must first plead facts

which, if true, establish that a “sufficiently serious”

deprivation occurred. Seiter, 501 U.S. at 298-99. A plaintiff

must show that the conditions he was forced to endure were beyond

the bounds of human decency, and that the prison officers

intentionally or recklessly subjected him to those conditions. 

See Hudson v. McMillian, 503 U.S. 1, 9 (1992) (“extreme

deprivations are required to make out a conditions-of-confinement

claim”); Seiter, 501 U.S. at 298-301 (same).

Here, Johnson alleges that he made repeated requests for

hygiene items because he had none. Both Thyng and Blaisdell

refused him items necessary to maintain basic hygiene, either

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 42 of 52
43

because they felt that his money should have been used for the

hygiene items rather than for making copies of legal documents,

or because they believed he should still have items previously

issued to him. The facts related to the actual deprivation of

needed items, however, as alleged by Johnson, are that he was

deprived of both soap and razors for a period of time long enough

for him to develop sores and a rash from the lack of soap, and

for him to grow enough of a beard to be charged with a

disciplinary action for failing to shave. As such, I find that

Johnson has alleged the minimum facts necessary to state a claim

for a deprivation of a “minimal civilized measure of life’s

necessities” to violate the Eighth Amendment guarantee of humane

conditions of confinement. I will direct, therefore, in my

Simultaneous Order, that his claim be served on defendants Thyng

and Blaisdell.

XI. Retaliation

Johnson alleges that a number of the adverse actions taken

against him were a result of retaliation on the part of prison

officials. Johnson’s complaint is not entirely clear, however,

as to whether he makes the distinction between an action taken

against him that retaliates against him for the exercise of his

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11Johnson denies looking at child pornography. To the

extent that he alleges that he was retaliated against because the

defendants’ believed that he was looking at child pornography and

were retaliating against him for that behavior, the claim is

subsumed by his due process claim that alleged that Thyng barred

him from the NCF libraries for that uncharged conduct as well as

for conduct that was charged as a disciplinary violation.

44

First Amendment right to petition the government for a redress of

grievances by engaging in litigation against prison employees, or

whether he is claiming that he was retaliated against for

allegedly engaging in the viewing of child pornography in the law

library.11 As best I can, construing the allegations generally,

I will address Johnson’s claim that he was retaliated against for

exercising his First Amendment right to access the courts, which

gives rise to a retaliation claim cognizable under § 1983. 

Beauchamp v. Murphy, 37 F.3d 700, 710 (1st Cir. 1994); see also

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (“[G]overnment

actions, which standing alone do not violate the Constitution,

may nonetheless be constitutional torts if motivated in

substantial part by a desire to punish an individual for exercise

of a constitutional right.”); Oropallo v. Parrish, No. 93-1953,

1994 WL 168519, at *3 (D.N.H. May 5, 1994), aff’d, 23 F.3d 394

(1st Cir. 1994) (citing Ferranti v. Moran, 618 F.2d 888, 892 n.4

(1st Cir. 1980) (“[A]ctions otherwise supportable lose their

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45

legitimacy if designed to punish or deter an exercise of

constitutional freedoms.”) (citation omitted)); see Goff v.

Burton, 7 F.3d 734, 738 (8th Cir. 1993), cert. denied, 512 U.S.

1209 (1994) (prison officials cannot lawfully impose a

disciplinary sanction against a prisoner in retaliation for the

prisoner’s exercise of his constitutional right). 

As previously noted, prison officials may make policy that

is reasonably related to legitimate penological interests, even

at the expense of certain constitutional rights. See Beard v.

Banks, ___ U.S. ___, 126 S.Ct. 2572, 2579 (2006) (citing Turner,

482 U.S. at 89-90). In order to state a retaliation claim for an

exercise of First Amendment rights, an inmate must allege: (1)

the conduct which led to the alleged retaliation was protected by

the First Amendment, (2) some adverse action at the hands of the

prison officials, and (3) a causal link between the exercise of

the inmate’s First Amendment rights and the adverse action. See

Price v. Wall, 464 F. Supp. 2d 90, 96 (D.R.I. 2006); see also

LaFauci v. N.H. Dep’t of Corr., No. Civ. 99-597-PB, 2005 WL

419691, at *7 (D.N.H. Feb. 23, 2004) (Unpublished Order). I

consider each of these elements of a retaliation claim in turn.

Here, Johnson has alleged either that he was engaged in

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46

litigation against employees of NCF, including some or all of the

defendants, or that he threatened such litigation, on the basis

that the treatment and conditions of his confinement at NCF

violated his constitutional rights. Because Johnson’s prior and

future litigation is protected by the First Amendment as an

exercise of his right to petition the government to redress

grievances, Johnson has alleged sufficient facts to satisfy the

first requirement for stating a retaliation claim.

To state an adverse action, plaintiff must allege that the

defendants subjected him to “conduct that would deter a similarly

situated individual of ordinary firmness from exercising his or

her Constitutional rights.” Dawes v. Walker, 239 F.3d 489, 493

(2d Cir. 2001), overruled in part on other grounds by Phelps v.

Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002); see Thaddeus-X v.

Blatter, 175 F.3d 378, 398 (6th Cir. 1999). Even if a particular

inmate is not chilled in his expression, a claim for retaliation

may still arise if the retaliatory behavior alleged is

objectively sufficient and onerous to deter an ordinary person

from exercising his rights. Gay v. Shannon, No. Civ.A. 02-4693,

2005 WL 756731, at *8 (E.D.Pa. 2005) (citing Allah v. Seiverling,

229 F.3d 220, 225 (3d Cir. 2000)). 

Case 1:07-cv-00161-PB Document 19 Filed 09/12/07 Page 46 of 52
47

Johnson alleges that, as acts of retaliation, the defendants 

(i) banned him from the law and recreational libraries, (ii)

severely limited or eliminated his ability to conduct legal

research, obtain photocopies, and notarize documents, (iii)

pursued disciplinary actions against him for using the library’s

legal and copy services, (iv) spread rumors about him that

endangered his safety and then failed to adequately protect him

from the dangerous environment they created, (v) removed him from

cell feeds that had been prescribed to treat his mental illness,

and (vi) denied him access to necessary hygiene items. I find

that an inmate of ordinary firmness might well be chilled in his

efforts to litigate his grievances against the prison,

administratively and in the courts, if his efforts to do so were

expected to be rewarded with such acts in response. Johnson,

therefore, has stated sufficient facts to allege that adverse

actions were taken against him that would chill an ordinary

inmate in his situation from exercising his First Amendment right

to petition the government for a redress of grievances,

satisfying the second element of a retaliation claim.

Finally, Johnson must allege facts that, if true, would

demonstrate that the adverse actions alleged were taken in order

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to retaliate against Johnson for the exercise of his First

Amendment rights. Circumstantial evidence is often enough to

support a claim that an adverse action was taken with retaliatory

intent, as intentions are often difficult to prove through direct

evidence. See Beauchamp, 37 F.3d at 711; Ferranti, 618 F.2d at

892 (chronology of events provided support for inference of

retaliation); McDonald, 610 F.2d at 18 (same).

While the allegations in the complaint may fall short of

assuring that Johnson will succeed in proving the causal link

between his litigation and the acts alleged, he has sufficiently

connected the retaliatory acts with the knowing undermining of

his litigation efforts for the claim to survive this preliminary

review. All the acts alleged followed in short order the

original library incidents of March 2007. I find that these

events, considered together, allege sufficient circumstantial

evidence of an intent to retaliate against Johnson for the

exercise of his First Amendment rights to meet the third

requirement for a retaliation claim. Accordingly, I find that

Johnson has stated a retaliation claim upon which relief may be

granted, and I direct that this action be served on defendants

Thyng, Poulin, Mailhot, Cox, Bachofer, and Blaisdell.

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XII. Choice of Defendants

A. Official Capacity Suits

Section § 1983 authorizes suits against state actors

operating to deprive citizens of their constitutional rights. 

Because I have found that Johnson has alleged constitutional

violations against a number of the state defendants sufficient to

state a cause of action under § 1983, those individuals --

defendants Thyng, Blaisdell, Wrenn, Kench, Wilson, Poulin, Cox,

Bachofer, and Mailhot -- will be defendants to this suit in their

individual capacities.

Johnson also sued the defendants 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 § 1983. See P.R. 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. Mich. 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 “persons” under

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§ 1983). Official capacity suits against officers of an agency

are simply “another way of pleading an action against an entity

of which an officer is an agent.” Monell, 436 U.S. at 690 n.55. 

Accordingly, I recommend dismissal of all of the official

capacity claims against the defendants to this action.

B. Supervisory Liability

“Supervisory liability under § 1983 cannot be predicated on

a respondeat [superior] 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, to be liable for the acts of those who

serve underneath him, must have been either “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” of the violation alleged. Id. at 44. 

Johnson has named Blaisdell, Wrenn, Kench, Thyng, and Cox as

defendants to this action in their supervisory capacities. 

Johnson bases his allegation of supervisory liability on the fact

that, through Johnson’s grievances and appeals, the supervisory

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defendants were aware of violations of Johnson’s constitutional

and statutory rights, and yet they failed to remedy those

violations. Instead, the supervisory defendants lack of remedial

response either explicitly or implicitly approved and supported

their subordinates’ actions that caused the deprivations at issue

here. Johnson has, therefore, sufficiently alleged that

Blaisdell, Wrenn, Kench, Thyng, and Cox were responsible for the

right of access, due process, inadequate mental health, and

denial of hygiene items claims, and I direct that those claims be

served against those defendants in their individual supervisory

capacities.

Conclusion

For the foregoing reasons, I recommend dismissal of the

denial of the right of access to attorney disciplinary

proceedings claim, the denial of procedural due process at a

disciplinary hearing claim, the denial of access to the courts

based on the denial of typewriter ribbons claim, the equal

protection claim, the loss of prison job claim, and the

endangerment claim as alleged against Cox, Poulin, and Thyng be

dismissed from this action. In the Simultaneous Order, I direct 

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that the remaining claims be served on defendants as set forth in

detail above.

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: September 12, 2007

cc: Gary DeWayne Johnson, pro se

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