1In addition to the New Hampshire Department of Corrections

(“DOC”) and DOC Commissioner William Wrenn, Ellison names the

following New Hampshire State Prison employees as defendants to

this action: H-Building Unit Manager Marguis (first name unknown

(“FNU”)), Warden Bruce Cattell, Deputy Warden Greg Crompton, Head

of Security Mjr. FNU Cunningham, South Unit Manager Lucie

Biledeau, South Unit Counselor Robert McGrath, Head of

Classification Rick Manseau, Hancock Building Head of Security

Lt. FNU Whittan, Sgt. C. Pelletier, Sgt. FNU Lirette, Lt. FNU

Boyajian, Lt. FNU Hogan, and Hearings Officers Lt. FNU Guimond,

and Sgt. FNU Hickman.

2I recognize that Ellison does not believe that he is

proceeding pro se, but that he is representing himself as his own

sovereign entity, entitled to file complaints on behalf of his

sovereignty. Ellison’s complaint has, however, been filed pro

se, which means that he is representing himself in this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Tony L. Ellison

v. Civil No. 07-cv-131-SM

New Hampshire Department

of Corrections, et al.1

REPORT AND RECOMMENDATION

Before the Court is pro se2 plaintiff Tony Ellison’s

complaint, filed pursuant to 42 U.S.C. § 1983, alleging that the

defendants have violated rights guaranteed to him by both federal

and state law. The matter is before me for preliminary review to

determine, among other things, whether the complaint has stated

any claim upon which relief might be granted. See United States

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 1 of 25
2

District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2)(A). For the reasons explained herein, I

recommend dismissal of all of the claim alleged except Ellison’s

claim that defendants Biledeau, McGrath, Marquis, Whittan,

Cunningham, Cattell, Crompton and Wrenn placed him in danger and

then failed to protect him. In an Order issued simultaneously

with this Report and Recommendation (the “Simultaneous Order”), I

direct that the endangerment and failure to protect claim be

served against those defendants. 

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

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 2 of 25
3

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

Tony Ellison is serving a lengthy sentence in the New

Hampshire State Prison (“NHSP”). Ellison pleaded guilty to three

counts of aggravated felonious sexual assault for engaging in

sexual acts with his three children, aged 5, 7 and 10. 

For the four years prior to the events that gave rise to

this complaint, Ellison was housed at the NHSP’s South Unit, a

medium custody unit where he was generally of good behavior and

where he felt safe from physical harm. In August of 2006,

Ellison was scheduled for a hearing before the Classifications

Board. Ellison was told that his attendance at that hearing was

not mandatory. Ellison opted not to attend the hearing. After

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 3 of 25
4

the hearing, defendants Biledeau, the South Unit Manager and

South Unit Counselor McGrath issued a Classification report

finding that Ellison was a “sexual predator” and had not

completed certain programming. 

Ellison claims that the categorization of “sexual predator”

is misleading and prejudicial to him and to his security status. 

Ellison states that he has never acted out sexually during his

incarceration, and that, although he committed sex offenses

against his children, he confessed to the police and entered

guilty pleas to spare the children from having to testify at

trial. Ellison claims that the label “sexual predator,” based

solely on the facts of his underlying conviction, unfairly

characterizes his security risk at the prison. 

Ellison further asserts that at the time the

reclassification report was issued, he had, in fact, completed a

number of rehabilitative programs, and was not yet eligible to

apply for the sexual offender treatment program, as he is not yet

close enough to his minimum release date to be eligible for

admission to that program. 

Ellison claims that the NHSP’s rehabilitative programs are

voluntary in that inmates are not required to participate in

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 4 of 25
5

them. He asserts, however, that inmates who fail to participate

in certain programming are sanctioned by being moved to a more

dangerous housing unit within the NHSP, or by being transferred

to NCF. Ellison’s reclassification report recommended that he be

transferred either to the NHSP’s Hancock Building, or the

Northern New Hampshire Correctional Facility (“NCF”) in Berlin,

New Hampshire. Ellison was transferred to the Hancock building,

to “C-pod,” nicknamed the “Gladiator Pod” or the “Little Gangster

Pod” by inmates. These nicknames derive from C-pod’s reputation

for housing young aggressive inmates. Ellison alleges that

inmates on C-pod are known to target sexual offenders for

harassment and violence.

In addition to a predisposition toward committing violence

against sex offenders in their midst, Ellison alleges that the

conditions and staffing on C-pod enable and promote such

violence. Ellison alleges that in the Hancock Building, officers

are individually assigned to supervise 288 inmates located on

four separate pods. The officer assigned to that position is

usually stationed in an observation room, from which the officer

is unable to observe all of the pods at one time, and who can’t,

therefore, attend to or prevent violent altercations that occur

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 5 of 25
3See Pratt v. N.H. Dep’t of Corrs., D.N.H. No. 05-cv-367-SM

(filed Oct. 17, 2005).

4While Ellison did assert a claim based on retaliation

against him for exercising his right not to attend a

classification board hearing, even liberally construing the

allegation, I find that Ellison has not stated any specific facts

which would indicate a causal link between his failure to attend

the hearing and his transfer to the Hancock Building. 

Accordingly, I will not consider Ellison’s passing reference to

the defendants’ alleged retaliation for Ellison’s failure to

attend the reclassification hearing as a claim to this action. 

If Ellison intended to state a retaliation claim, he must do so

by amending his complaint to include some facts to support his

bald allegation that he was retaliated against.

6

on the pods. Ellison also claims that NHSP officials have failed

to adequately staff Hancock building and C-pod, and have failed

to properly train and supervise the correctional officers

stationed there, and have thus created and maintained an

institution that is unsafe. Ellison claims that the supervising

officials in charge of Hancock building, defendants Marquis,

Whittan, Cunningham, Cattell, Crompton, and Wrenn, had specific

notice of the danger to sex offenders on C-pod because of a 2005

lawsuit filed by another inmate, Harvey Pratt, complaining of the

violence that sexual offenders suffered there.3

In his complaint, Ellison initially alleges that he was

ordered moved to the Hancock Building in retaliation for his

failure to attend the reclassification hearing.4 Ellison later

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 6 of 25
7

asserts, however, that he was transferred to the Hancock Building

because the classification board members wanted to make a

statement to the other inmates in the South Unit that they would

be moved to the Hancock Building if they acted out

inappropriately. Later still, Ellison claims that his transfer

to Hancock was motivated by the defendants’ discriminatory bias

against him because he is a sexual offender.

On September 12, 2006, after his transfer to Hancock,

Ellison was assaulted by another inmate on C-pod. Although he

tried to defend himself after he was struck by the inmate, he was

unable to do so and suffered serious injury, including a three

inch long and very deep laceration to his temple that required

eighteen stitches to repair. 

After Ellison was assaulted, he claims that he went to the

pod door to buzz the corrections officer on duty in order to

receive medical attention. No officer responded to Ellison for

seven minutes, when the officer on duty opened the pod door in

order to let the officer delivering mail onto the pod. At that

point, Ellison was discovered injured and given medical

attention. 

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 7 of 25
5Ellison’s complaint contains speculation as to whether or

not Marquis may have been an accessory or contributing influence

in the attack against him. Because this claim is based on

totally unsupported speculation, I will not consider it as a

claim in this action.

8

On September 14, 2006, Ellison was recovering from his head

wound in the infirmary. Marquis and Whittan went to the

infirmary to question Ellison about the assault. Ellison tried

to explain to them that he was not safe on C-pod and that he had

been inappropriately transferred to that unit. Marquis told

Ellison, however, that the assault was not the result of his

housing placement, but was his own fault because he had committed

the sexual offenses that made him a target. Marquis further

stated that Ellison should take responsibility for his actions. 

Ellison then told Marquis that he felt Marquis was acting in an

unprofessional manner and that Marquis’ comments indicated his

condonation of a violent crime that had been motivated by

prejudice against Ellison because he is a sexual offender.5

On September 15, 2006, Ellison was returned to C-pod from

the infirmary. He was immediately taken to see Marquis, and was

again questioned about the September 12 incident by Marquis and

Whittan. Again, Ellison states, Marquis was abrasive and

intimidating in his questioning. Ellison questioned Marquis as

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 8 of 25
9

to why he had blamed Ellison for the assault. Marquis and

Whittan directed Ellison to provide a written account of the

incident. Ellison did the best he could, but had some difficulty

writing the statement because he had a severe headache and

lingering dizziness from his injury. Despite his injuries,

Ellison says that Marquis screamed at Ellison throughout the

interchange between them, and eventually screamed at Ellison to

get out of Marquis’ office.

Within minutes of his return to C-pod, four corrections

officers arrived, ordered Ellison to stand, placed him in

handcuffs, and transported him to the NHSP’s Secure Housing Unit

(“SHU”). Ellison was not told why he was being moved to the SHU

and he was not given a hearing prior to his move. Between

September 15, 2006 and September 27, 2006, Ellison was held at

SHU without being told the reason for his transfer. During that

time, he was denied the property and privileges he had previously

been afforded on C-pod. 

On September 27, 2006, Ellison was told that he had been

moved to the SHU on “Pending Administrative Review” status

(“PAR”). The SHU Unit Manager, defendant Moquin, told Ellison

that he should have received a copy of the PAR slip that was

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 9 of 25
6Ellison alleges that certain internal procedures were not

followed in bringing the disciplinary report. Because I find

that these allegations are immaterial to any cognizable claim in

this action, I will not detail the facts Ellison has asserted in

support of those allegations.

742 U.S.C. § 1983 provides that:

10

issued on September 15, 2006. Ellison claims that he did not

receive it until September 27, 2006. On September 29, 2006,

disciplinary charges were brought against Ellison.6 Ellison

claims that the defendants charged him with a disciplinary

infraction, and that he was denied an impartial hearings officer,

in an effort to cover up the defendants’ responsibility for the

September 12 assault against him. Ellison claims that he told

Marquis and Whittan that he pushed his assailant away from him in

self defense and that this statement was used to improperly find

him guilty of a disciplinary action for fighting. Ellison, upon

being found guilty of that disciplinary charge, was ordered to

reimburse the NHSP for half of the cost of his medical bills. 

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. § 19837; City of Okla. City v.

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 10 of 25
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 . . . .

11

Tuttle, 471 U.S. 808, 829 (1985); Wilson v. Town of Mendon, 294

F.3d 1, 6 (1st Cir. 2002). “To state a claim under § 1983, a

plaintiff must make two showings: the existence of a federal

constitutional or statutory right; and a deprivation of that

right by a person acting under color of state law.” BarriosVelazquez v. Asociacion de Empleados del Estado Libre Asociado,

84 F.3d 489, 491 (1st Cir. 1996). Ellison’s claims allege that

state employees at the NHSP violated his federal constitutional

rights. Accordingly, this action arises under § 1983.

II. 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 constitutional claim that the

defendants endangered or failed to protect him, Ellison must

allege that the defendants were aware of and deliberately

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 11 of 25
12

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, Ellison claims that he was transferred into a pod

populated by young and aggressive inmates, who were known by the

defendants to target sex offenders for harassment and violence. 

Ellison points to an inmate lawsuit filed almost two years ago,

and still being actively litigated, by an inmate who was

transferred into C-pod and was severely beaten because he was a

sexual offender. That lawsuit, Pratt v. N.H. Dep’t of Corrs.,

D.N.H. No. 05-367-SM, specifically alleges that the pod in

question was called the “Gladiator Pod” and had a reputation for

being a dangerous place for sex offenders. Ellison claims,

therefore, that the defendants here were aware of and disregarded

the serious risk to his safety that accompanied his transfer to

C-pod. I find that Ellison has stated sufficient facts to state

a claim for endangering him, and failing to protect him, against

defendants Biledeau, McGrath, Marquis, Whittan, Cunningham,

Cattell, Crompton, and Wrenn. Specifically, Ellison alleges that

defendants Biledeau and McGrath placed him in harm’s way by

recommending his transfer to the Hancock building, and that

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 12 of 25
8Ellison names Head of Classifications Rick Manseau as an

intended defendant to this claim. Ellison has not alleged any

facts here to indicate that Manseau was either directly or

indirectly responsible for endangering or failing to protect

Ellison. Accordingly, I recommend that he be dismissed from this

action. Further, while Ellison names defendants Pelletier,

Lirette, Boyajian and Hogan as Hancock building officers, he has

not alleged any specific facts indicating how they are

responsible for failing to protect him. I therefore recommend

that they, too, be dismissed from this action.

13

defendants Marquis, Whittan, Cunningham, Cattell, Crompton, and

Wrenn, either directly, or indirectly as supervisory prison

officials, failed to protect him from harm once he was on C-pod.8

They are, therefore, appropriate defendants to this claim and I

will direct that this complaint be served against them in my

Simultaneous Order.

III. Due Process Violations

A. Classification and Housing

Ellison claims that the defendants violated his due process

rights when he was reclassified and transferred to a dangerous

housing unit. Ellison does not deny that he was afforded a

classification hearing, which he opted not to attend. Ellison’s

claim arises, instead, out of his allegation that he was

improperly reclassified on the basis of the nature of his

underlying criminal conviction, and an incorrect statement that

he had failed to participate in certain voluntary programming. 

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 13 of 25
14

Ellison claims a further deprivation of due process when he was

transferred from Hancock to the more restrictive SHU without

receiving a written notice that his classification status had

been changed.

An inmate has no liberty interest in being housed or

classified in a particular facility or in a particular security

status. Meachum v. Fano, 427 U.S. 215, 225 (1976); Montanye v.

Haymes, 427 U.S. 236, 242 (1976) (discussing that the holding in

Meachum dictates that “[a]s long as the conditions or degree of

confinement to which the prisoner is subjected is within the

sentence imposed upon him and is not otherwise violative of the

Constitution, the Due Process Clause does not in itself subject

an inmate’s treatment by prison authorities to judicial

oversight.”). “[A]n increase in burdensome conditions does not

in itself implicate the due process clause.” Sisbarro v. Warden,

Mass. State Penitentiary, 592 F.2d 1, 3 (1st Cir. 1979) (citing

Meachum, 427 U.S. at 224-25). As prison inmates do not have any

liberty interest in where they are housed, transfers within the

prison are well within the discretion of prison officials, and

inmates are not protected from such transfers by the

constitution. See Olim v. Wakinekona, 461 U.S. 238, 244-45

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 14 of 25
15

(1983) (citing Meachum, 427 U.S. at 224-25, to support the

conclusion that prisoners have no liberty interest protecting

them from housing transfers). Accordingly, I recommend that

Ellison’s claims based on his disagreement with decisions of the

defendants regarding his classification and housing assignment be

dismissed as they fail to allege a liberty interest protected by

the constitution upon which relief might be granted.

B. Administrative Code Violations

Ellison argues that his due process rights were violated by

the defendants’ failure to follow the New Hampshire Code of

Administrative Regulations by not immediately notifying him in

writing of his PAR status. An inmate is placed on PAR status,

which is a temporary suspension of his classification status, to

allow prison officials to investigate certain issues, including

an inmate’s involvement in an altercation or other incident that

implicates his safety, or that of another individual in the

institution. See N.H. Admin Code Cor. (“COR”) 404.04(c). The

administrative code instructs DOC staff to prepare a PAR slip and

file it on the day the staff member places the inmate on PAR

status, and that an inmate should promptly receive a copy of the

slip, and be advised of his right to appeal his placement on that

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 15 of 25
16

status to the Warden within 48 hours. COR 404.04(d). In

addition, the administrative code directs that a classification

hearing is to be held within seven days of an inmate’s placement

on PAR status, and every seven days thereafter if the inmate

remains in PAR status. COR 404.04(f), (h) & (I). 

In Sandin v. Conner, the United States Supreme Court held

that where, as here, an alleged due process violation is based on

a failure to follow a state regulation ostensibly creating a

liberty interest, the Court, instead of focusing on the language

of the regulation to determine whether a liberty interest was

created, should look to the deprivation to determine whether or

not it resulted in “the type of atypical, significant deprivation

. . . in which a State might conceivably create a liberty

interest.” 515 U.S. 472, 486 (1995). The regulations that

Ellison claims were violated governed the notice and appellate

rights afforded to those inmates placed on PAR status. Even

assuming that the regulations were violated, however, they

resulted in Ellison spending a total of 12 days in the SHU

without knowing why he was there. Twelve days in a higher

security classification, without more, is not a restraint that is

so significant or atypical that it deprives Ellison of his

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17

constitutional due process rights. See Skinner v. Cunningham,

430 F.3d 483, 486-87 (1st Cir. 2005) (finding that confinement in

segregation for forty days with no pre-segregation process was

not a hardship sufficient to give rise to a due process violation

where inmate was being investigated for killing another inmate,

possibly in self defense, and where prison officials determined

that isolation was necessary to protect both the segregated

inmate and other people in the institution); see also Jordan v.

Fed. Bureau of Prisons, 191 Fed.Appx. 639, 650-51 n.8-10 (10th

Cir. 2006) (recognizing a split in the Circuit Courts regarding

how to define hardship in making a determination of

constitutionality under Sandin, and collecting cases indicating

that time in segregation in the amounts of ninety days to more

than two years did not establish atypical and significant

hardship sufficient to create a cognizable liberty interest if

conditions of confinement were not dramatically different from

those in general population). Ellison points to no condition

present in his twelve days of segregated confinement that

indicates a dramatic departure from the conditions of confinement

to which he could have been subjected outside of the unit to 

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 17 of 25
18

raise a liberty interest cognizable in a § 1983 action. 

Accordingly, I recommend that this claim be dismissed.

IV. Unprofessional and Disrespectful Treatment

Ellison alleges that the defendants, on a number of

occasions, behaved unprofessionally and treated him with

disrespect. Ellison alleges that this treatment violated the

defendants’ obligation to treat him with dignity and respect

under the guidelines for corrections workers adopted by the

American Correctional Association and the internal Policy and

Procedure Directives (“PPDs”) maintained by the DOC. The

violation of these behavioral guidelines, however, do not give

rise to a private cause of action in this Court because

disrespectful treatment, however, unprofessional, is not

prohibited by the constitution. See Shabazz v. Cole, 69 F. Supp.

2d 177, 201 (D. Mass. 1999) (holding that verbal threats and

verbal abuse, while unprofessional and indefensible, do not, in

the prison context, violate an inmate’s constitutional rights and

therefore, no § 1983 action will lie for such behavior).

V. Disciplinary Finding and Sanction

Ellison claims that he was found guilty of a disciplinary

infraction and sanctioned with a restitution order for half of

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 18 of 25
19

his medical bills because the defendants were trying to cover up

their own failure to protect him from being attacked. To the

extent that he challenges the disciplinary process, however, his

claim arises under the Due Process Clause of the Fourteenth

Amendment. Once again, Ellison fails to allege that the sanction

imposed, restitution, constitutes an atypical and significant

hardship in the context of prison life. The fact that the prison

wants reimbursement for medical services does not restrain

Ellison’s liberty in any fashion, much less to a degree that

renders it excessive, as is required to state a due process

violation under Sandin. See Sandin, 515 U.S. at 486. 

Accordingly, I recommend that this claim be dismissed.

VI. Forced Programming

Ellison alleges that his rights have been violated because

the DOC requires inmates to participate in and complete certain

rehabilitative programming prior to being granted parole. 

Ellison argues that rehabilitative programming is supposed to be

voluntary, and that requiring inmates to complete programming in

order to be considered for release on parole is actually forcing

programming on inmates. Ellison’s argument depends on his

presumption that inmates have a right to be paroled if he is

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 19 of 25
20

simply of good behavior, even without engaging in any affirmative

act toward achieving rehabilitation. Under both federal and

state law, inmates have no protected liberty interest in being

granted parole at all. See Greenholtz v. Inmates of Neb. Penal &

Corr. Complex, 442 U.S. 1, 7 (1979); Brooker v. Warden, No. 98-

466-JD, 1999 WL 813893, at * 2 (D.N.H. June 22, 1999). Because

Ellison has no protectible liberty interest in being granted

parole, he can allege no constitutional violation against prison

officials who condition the release on parole upon the inmate

meeting some benchmark of rehabilitation. Accordingly, I

recommend that this claim be dismissed from this action.

VII. Equal Protection

Ellison 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. 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). Ellison has proffered no facts which would

indicate that his status as a sex offender either warrants

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 20 of 25
21

membership in a protected class of persons, or that he was

treated differently than other similarly situated persons. 

Therefore, I find that Ellison has not alleged any facts that

state a claim for an Equal Protection Clause violation, and I

recommend that the claim be dismissed from this action.

VIII. Defamation

 Ellison attempts to allege a state law claim for defamation

based on the notation on his classification sheet that he is a

“sexual predator.” 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 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)). Ellison’s complaint does not

allege that this comment was published to any third party by the

NHSP defendants. It appears that this was an internal document,

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 21 of 25
22

of which a copy was provided to plaintiff, that was used only for

classification purposes. Further, to the extent that Ellison

claims that he is not a “sexual predator,” and that such a label

is therefore false for purposes of classification decisions, he

cites no authority, and I know of none, that supports the notion

that classification decisions cannot, or should not, be made

based, at least in part, on the nature of an inmate’s

incarcerating offense. As I can find no support for Ellison’s

allegation that he was defamed, even generously construing

Ellison’s claim, I recommend that it be dismissed.

IX. Choice of Defendants

A. Official Capacity

Section § 1983 authorizes suits against state actors

operating to deprive citizens of their constitutional rights. I

have found that Ellison has alleged a constitutional failure to

protect claim against a number of state defendants sufficient to

state a cause of action under § 1983. Those individuals will be

defendants to this suit in their individual capacities.

Ellison 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

Case 1:07-cv-00131-JL Document 17 Filed 10/09/07 Page 22 of 25
23

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

§ 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 v. Dep’t of Soc.

Servs., 436 U.S. 658, 690 n.55 (1978). Accordingly, I recommend

dismissal of all of the official capacity claims against the

defendants to this action. I also recommend that the DOC, as a

state agency, be dismissed from 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

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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. 

Ellison has named Marquis, Whittan, Cunningham, Cattell,

Crompton, and Wrenn as defendants to his endangerment and failure

to protect claim in their supervisory capacities. Ellison bases

his allegation of supervisory liability on the fact that the

supervisors created and supported a policy of inadequate staffing

in the Hancock building, knowing that the building, and in

particular C-pod, were particularly dangerous places for a sexual

offender to be housed. The policies underlying the provision of

security in the Hancock building were made or continued after the

prison had been sued by another inmate alleging the same

dangerous environment on C-pod of which Ellison complains here. 

Because he has alleged not only that they knew of and disregarded

a serious risk to his safety, but that their policies were

unresponsive to the known security needs of sexual offenders and

were even designed to allow the targeting and victimization of

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sexual offenders, Ellison has alleged sufficient facts to state a

claim against Marquis, Whittan, Cunningham, Cattell, Crompton,

and Wrenn in their supervisory capacities.

Conclusion

In my Simultaneous Order, I direct that the endangerment and

failure to protect claims be served on defendants Biledeau,

McGrath, Marquis, Whittan, Cunningham, Cattell, Crompton, and

Wrenn. For the reasons explained above, I recommend dismissal of

the remaining claims and defendants from this action. 

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: October 9, 2007

cc: Tony L. Ellison, pro se

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