1The named defendants to this action are Hillsborough County

Department of Corrections (“HCDC”) employees: Corrections Officer

(“C.O.”) Granville (first name unknown (“FNU”)), C.O. FNU

Williams, HCDC Sgt. FNU Lacerte, HCDC Cpt. FNU Dion, and HCDC

Superintendent James O’Mara.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joshua J. Hurd

v. Civil No. 07-cv-165-SM

FNU Granville, et al.1

O R D E R

Pro se plaintiff Joshua Hurd has filed a complaint, pursuant

to 42 U.S.C. § 1983, alleging that the defendants subjected him

to unconstitutional punishment and unconstitutionally punishing

conditions of confinement, in violation of his Fourteenth

Amendment rights (doc. no. 1). The complaint is before me for

preliminary review to determine whether, among other things, it

states a claim upon which relief may be granted. See 28 U.S.C. §

1915A; United States District Court for the District of New

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

below, I find that Hurd has sufficiently alleged a denial of his 

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Fourteenth Amendment rights to allow his complaint to proceed

against the named defendants to this action.

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)

(same). All of the factual assertions made by a pro se plaintiff

and inferences reasonably drawn therefrom must be accepted as

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true. See id. This review ensures that pro se pleadings are

given fair and meaningful consideration.

Background

1. The June 16, 2004 Incident

Between February 21, 2004 and January 7, 2005, Hurd was a

pretrial detainee incarcerated at the Hillsborough County

Department of Corrections (“HCDC”). On June 16, 2004, Hurd was

being held in Unit 2B at the HCDC when Corrections Officer

(“C.O.”) Granville and another officer came to his cell in order

to temporarily transfer Hurd to a new cell. Granville and the

other officer directed Hurd to move to the back of his cell. 

Hurd stated that he wanted an HCDC Sargeant to be present during

his cell move. The officers ignored Hurd’s request. Consistent

with HCDC policy, Hurd moved to the back of his cell and faced

the wall while the officers entered his cell. Hurd complied with

all of the officers’ directions. Granville placed Hurd in

handcuffs. Granville then lifted Hurd’s arms forward,

intentionally “forcing his face to bounce off the wall” and then

struck Hurd in the face with his hand. Hurd states that at the

time Granville assaulted him, he was being entirely compliant, he 

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was handcuffed, and the assault was therefore entirely

unprovoked.

Hurd was transported to his temporary cell by Granville and

the other officer. During the transport, Granville used a joint

manipulation technique on Hurd’s wrists, designed to cause pain,

called a “double ninety.” Hurd claims that during the transport,

he did nothing to provoke that action and nothing that merited a

forceful response by the officers. As a result of the force

inflicted upon him during his cell move, Hurd suffered cuts,

bruises, and substantial pain to his lip, his face, and the back

of his head.

Once Hurd was placed in his temporary cell, he asked to see

a sargeant and for medical attention for his injuries. Granville

responded by telling Hurd: “Don’t be a baby. Deal with it.” 

Granville did not call a sargeant or request medical attention

for Hurd. Eventually, another inmate caused a problem on the

unit and Sargeant Lacerte responded. Hurd was then able to speak

to Lacerte, who secured medical attention for Hurd.

2. The August 9, 2004 Incident

On August 9, 2004, Granville, Lacerte, and C.O. Williams

entered Hurd’s cell to again transfer him to a new cell. Once

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again, Hurd complied with all of the directions the officers gave

him, and moved to the back of his cell and faced the wall. 

During the transport, Granville and Williams both used the

“double ninety” pain compliance technique on Hurd, even though he

had already complied with all of their orders. In order to

maximize the pain of the technique, Hurd claims, the officers

actually lifted him off the floor and carried him in the

manipulated position. 

Once Hurd was in his new cell, Granville ordered him to face

the wall, which he did. Granville then placed his hand on the

back of Hurd’s head and pushed his head into the wall. Lacerte

was still present during this incident, and did nothing to

intervene to protect Hurd from the unnecessary assault. 

Hurd requested medical attention. Lacerte said that she

would call the medical department, but the medical personnel at

the HCDC were never notified of Hurd’s request. Hurd asserts

that he suffered injuries including cuts, marks, swelling, and

numbness as well as pain in his right wrist for months after the

August 9 cell move.

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2Hurd actually uses the term “official capacity” to describe

O’Mara’s liability as a supervisor. Official capacity suits

against county employees are actually suits brought against the

municipality itself, and must allege that the harms asserted were

the result of a municipal policy or custom. See Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690 (1978). Hurd makes no such

allegation. Generously construing the complaint, I find that

Hurd’s intention was to sue O’Mara in his individual capacity in

his role as a supervisory officer at the HCDC and I will consider

the claim accordingly. 

6

3. Post-Incident Allegations

Hurd filed grievances regarding both incidents with HCDC

Cpt. Dion. Dion met with Hurd and discussed the incidents. Dion

told Hurd that at least one of the incidents had been captured on

videotape and agreed to keep a copy of the tape for Hurd to use

in a future lawsuit. Dion, however, to Hurd’s knowledge, took no

corrective action after either incident. Instead, Dion blamed

Hurd for the assaults. Further, Hurd indicates that he was

placed in punitive segregation as a result of the two incidents.

In grieving these incidents, Hurd indicates that HCDC

Superintendent James O’Mara was notified of the incidents and did

nothing to remedy the situation. As such, Hurd asserts that

O’Mara, as the supervisor of the HCDC, bears responsibility for

the harm alleged.2

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342 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 . . . .

7

Discussion

I. Section 1983

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. § 19833; City of Okla. City v.

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, Hurd claims that

defendant HCDC employees are state actors, and that they violated

his federal constitutional right not to be subjected to

punishment during his pretrial confinement. Hurd’s claims arise,

therefore, under § 1983.

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II. Fourteenth Amendment 

Detainees have a constitutional right under the due process

clause of the Fourteenth Amendment to be free of punishment. See

Surprenant v. Rivas, 424 F.3d 5, 15 (1st Cir. 2005) (citing

O’Connor v. Huard, 117 F.3d 12, 15 (1st Cir. 1997)). “‘[T]he

State does not acquire the power to punish . . . until after it

has secured a formal adjudication of guilt in accordance with due

process of law.’” Martinez-Rivera v. Ramos, ___ F.3d ___, 2007

WL 2254586, *4 (1st Cir. 2007) (quoting Ingraham v. Wright, 430

U.S. 651, 671-72 n.40 (1977)). However, challenged conditions or

restrictions which can be rationally related to some legitimate

administrative goal or security concern generally will not be

deemed unconstitutional “punishment.” O’Connor, 117 F.3d at 15. 

The issue in evaluating claims by a pretrial detainee, therefore,

is whether the conditions of confinement were reasonably related

to a legitimate state interest or were intended instead as

punishment. See Surprenant, 424 F.3d at 13; Collazo-Leon v. U.S.

Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995).

Hurd alleges that, in violation of his Fourteenth Amendment

rights, he was: (1) subjected to unprovoked excessive force by

HCDC employees, (2) denied his right to be protected by HCDC

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4The claims, as identified herein, shall be considered to be

the claim raised in the complaint for all purposes. If Hurd

disagrees with the identification of the claims in this Order, he

must file a motion to amend his complaint.

9

employees who were present when he was subjected to excessive

force, (3) denied medical care, and (4) subjected to punitive

conditions of confinement without cause. I will address each of

these claims in turn.4

A. Excessive Force

The Fourteenth Amendment protects a pretrial detainee from

excessive force that amounts to punishment. See O’Connor, 117

F.3d at 16; Garcia v. City of Boston, 115 F. Supp. 2d 74, 81 (D.

Mass. 2000), aff’d, 253 F.3d 147 (1st Cir. 2001). In determining

whether a plaintiff has stated a claim for unconstitutionally

excessive force, the court should look to the following four

factors: (1) “the need for application of force,” (2) “the

relationship between the need and the amount of force that was

used,” (3) “the extent of injury inflicted,” and (4) “whether the

force was applied in good faith to maintain or restore discipline

or maliciously and sadistically for the very purpose of

inflicting harm.” Garcia, 115 F. Supp. 2d at 81. 

Hurd alleges that on June 16, 2004, defendant Granville used

excessive force when he hit his face on the cell wall, struck him

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in the head, and used a “double ninety” compliance technique on

him. At the time, Hurd was handcuffed, was following orders, and

was not resisting the officers or provoking the attack in any

way. Hurd further alleges that on August 9, 2004, Granville and

Williams assaulted him without provocation. While Hurd has not

alleged extreme or life-threatening injuries from these assaults,

he has alleged that he was cut and bruised, and suffered from

months of pain and numbness. Hurd alleges that the physical

attacks by Granville and Williams were malicious and intended to

cause him pain rather than to satisfy any legitimate penological

goal or respond to any provocation on Hurd’s part. To support

this, he cites, in addition to the facts concerning the use of

significant force recounted above, a cavalier attitude on the

part of defendant Granville toward Hurd’s medical needs, and a

refusal by defendants Granville and Lacerte to obtain medical

care for Hurd after the attacks.

I find that Hurd has stated valid excessive force claims

against Granville and Williams for assaulting him in his cell on

two occasions and utilizing joint manipulation techniques

designed to cause him pain without provocation. Accordingly, I 

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direct service of the excessive force claims against Granville

and Williams. 

B. 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). A state actor has a duty to protect

incarcerated prisoners from harm by another state actor. See

DeShaney, 489 U.S. at 199, Davis v. Rennie, 264 F.3d 86, 98 (1st

Cir. 2001). An officer may be held liable under § 1983 “for his

failure to intervene in appropriate circumstances to protect an

arrestee from the excessive use of force by his fellow officers.” 

See Gaudreault v. Municipality of Salem, 923 F.2d 203, 207 n.3

(1st Cir. 1990); see also McHenry v. Chadwick, 896 F.2d 184, 188

(6th Cir. 1990) (prison guard has a duty to protect a prisoner

from the use of excessive force by another prison guard). The

obligation of law enforcement officers to protect arrestees

encompasses a requirement that pretrial detainees be protected by

prison employees. See Gaudreault, 923 F.2d at 207 n.3.

Hurd alleges that he was physically assaulted by Granville

and Williams in the presence of Lacerte. Hurd claims that

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although Lacerte witnessed the attack and the fact that it was

unprovoked, she did nothing to intervene or protect Hurd in any

way. Accordingly, I find that Hurd has alleged sufficient facts

to state a failure to protect claim against Lacerte and I will 

direct the claim to be served upon her accordingly.

C. Conditions of Confinement

In examining Hurd’s allegations that he was denied nonpunitive conditions of confinement, I consider whether the

questioned conditions were reasonably related to a legitimate

state interest or were intended instead as punishment. See

Collazo-Leon, 51 F.3d at 317. Hurd alleges that, after the

assaults, he was subjected to punitive conditions of confinement

at the HCDC, even though he was a pretrial detainee and had not

committed any act while at the jail which was deserving of

punishment. 

First, Hurd alleges that he was denied immediate medical

attention after the assaults. Hurd claims there was no reason

for Granville or Lacerte to deny his requests for medical

attention, and that they did it, therefore, only to punish him. 

Second, Hurd alleges that Dion wrongly held him responsible for

the incidents resulting in Hurd being assaulted, and that, as a

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result, Hurd was placed in punitive segregation which is, by

definition, punishment. I find that Hurd has alleged

sufficiently punitive conditions of confinement, that were not

occasioned by any provocation on his part, to state a claim for

unconstitutionally punitive prison conditions against Granville,

Lacerte and Dion. 

IV. Supervisory Liability

Hurd alleges that he filed grievances with Dion regarding

the incidents alleged. Hurd claims that through these

grievances, both Dion and HCDC Superintendent James O’Mara were

put on notice of the unconstitutional treatment Hurd received at

the HCDC, and failed to take any remedial action. Dion, to the

extent he is responsible for investigating allegations of staff

misconduct, and O’Mara, as the chief officer of the HCDC, are the

individuals responsible for remedying unconstitutional

occurrences and conditions at the HCDC, including, among other

things, the improper treatment of inmates by staff, the provision

of medical care, and the classification and disciplinary systems. 

Accordingly, I direct that the complaint be served on defendants

Dion and O’Mara in their supervisory capacities.

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Conclusion

For the foregoing reasons, I find that Hurd has sufficiently

alleged the minimum facts necessary to state the following

claims: (1) excessive force claims against defendants Granville

and Williams, (2) a failure to protect claim against Lacerte, and

(3) unconstitutional conditions of confinement claims against

Granville, Lacerte, Dion, and O’Mara. Without further comment on

the merits of the complaint, I order that it be served on

defendants Granville, Williams, Lacerte, Dion, and O’Mara. My

review of the file indicates that Hurd has completed a summons

form for each of the defendants. The Clerk’s office is directed

to issue the summonses against defendants and forward to the

office of the United States Marshal for the District of New

Hampshire (the “U.S. Marshal’s office”), for each defendant, the

summonses, copies of the complaint (document no. 1), and copies

of this Order. Upon receipt of the necessary documentation, the

U.S. Marshal’s office shall effect service upon defendants. See

Fed. R. Civ. P. 4(c)(2). 

Defendants are instructed to answer or otherwise plead

within twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A). 

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Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 2, 2007

cc: Joshua J. Hurd, pro se

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