1In addition to naming Richard Van Wickler as a defendant to

this action, Hall names the Cheshire County House of Corrections

Medical Department. Because no specific individuals in the

Medical Department have been named, or identified as committing

specific constitutional violations, in this matter, I will

construe this action as naming only Van Wickler as a defendant. 

If Hall identifies, during the discovery process, other

individuals responsible for the harms alleged, he may move to

amend his complaint to add those individuals as defendants to

this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin D. Hall

v. Civil No. 07-cv-343-JL

Richard Van Wickler,

Superintendent, Cheshire County

Department of Corrections, et al.1

O R D E R

Before the Court is Kevin Hall’s complaint (document no. 1),

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

violated his constitutional right to confidentiality in his

medical records. Because Hall is a prisoner, this matter is

before me for preliminary review to determine, among other

things, whether or not the complaint states any claim upon which

relief might be granted. See 28 U.S.C. § 1915A; United States

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District Court for the District of New Hampshire Local Rule

(“LR”) 4.3(d)(2).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

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

construes pro se pleadings liberally, however inartfully pleaded. 

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

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

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

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

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

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

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

inferences reasonably drawn therefrom must be accepted as true. 

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

and meaningful consideration. 

Background

Between October 2004 and February 2005, Hall was

incarcerated at the Cheshire County House of Corrections

(“CCHC”), awaiting trial on misdemeanor phone harassment charges. 

While he was at the CCHC, Hall was suffering from severe mental

health and medical problems. Hall repeatedly slashed himself

with sharp metal, glass, and other objects, and ate metal and

glass, injuring his internal organs. Hall was placed in

isolation on suicide watch for 43 days. During that time, Hall

ripped up sections of his cell, using the pieces of his cell to

cut himself, and to cause further damage to the walls of the

cell. After that, Hall was transferred to a different jail and

treated for his life-threatening self-inflicted injuries.

When Hall ultimately survived his injuries, CCHC

Superintendent Richard Van Wickler sought a criminal prosecution

against Hall for the damage he did to the CCHC facility. As part

of preparing for the prosecution of Hall, Van Wickler handdelivered Hall’s medical records to the prosecutor in the case. 

Upon examination, however, it was determined that Hall’s medical

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2The claim as identified herein will be considered to be the

claim raised in this action for all purposes. If Hall disagrees

with this identification of the claim, he must properly move to

amend his complaint.

4

records included records from other CCHC inmates. Hall claims

that this mix-up revealed that the CCHC was allowing all of the

CCHC inmates’ medical records to be kept mixed together in a box

in an unsecured location. Hall alleges that his medical records

were mixed into other inmates’ files, and that his confidential

and sensitive medical and mental health information was

accessible to a variety of unauthorized people.

Discussion2

People have a constitutional right to privacy which protects

“the individual interest in avoiding disclosure of personal

matters.” See Whalen v. Roe, 429 U.S. 589, 599 (1977). Although

the right to privacy in one’s medical information is well

established, see Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001),

the precise contours of that right have not been clearly defined

in this Circuit. See Borucki v. Ryan, 827 F.2d 836, 848 (1st

Cir. 1987) (approving an approach that balances the privacy

rights of the individual seeking to protect information against

the governmental interest in dissemination). Hall alleges that

his medical records were not secured at the CCHC and were stored

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without regard to his privacy or confidentiality rights as any

number of unauthorized people could gain access to them. Hall

claims that Van Wickler, as Superintendent of the CCHC, failed to

establish a system for maintaining medical records that would

protect his confidentiality. Hall’s allegations suffice to state

a claim that his rights to confidentiality and to privacy in his

personal information were compromised.

Hall sues Van Wickler as the individual responsible for the

management of the CCHC and its policies and practices. Hall does

not allege that Van Wickler himself placed his medical files in

an accessible location, but that Van Wickler, as the CCHC

supervising officer, was responsible for creating policies and

ensuring practices at the CCHC that are protect Hall’s

constitutional rights. “Supervisory liability under § 1983

cannot be predicated on a respondeat theory, but only on the

basis of the supervisor’s own acts or omissions.” Aponte Matos

v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998) (internal

citations omitted). A supervisor must be “either was a primary

actor involved in, or a prime mover behind, the underlying

violation.” Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st

Cir. 1999). There must be “an affirmative link, whether through

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direct participation or through conduct that amounts to

condonation or tacit authorization” to the violation alleged. 

Id. at 44. 

Hall claims that Van Wickler violated his right to

confidentiality by omission, as he did not ensure that of a

secure system for medical record management was in place. For

purposes of preliminary review, this allegation creates a

sufficient link between Van Wickler’s omission, as the supervisor

of the CCHC, and the violation alleged, to allow this action to

proceed against Van Wickler in his supervisory capacity. 

Conclusion

Without commenting further on the merits of the complaint, I

find that plaintiff has stated a claim upon which relief may be

granted. Accordingly, I order that the complaint be served on

defendant. My review of the file indicates that Hall has filed a

summons form for Van Wickler. The Clerk’s office shall issue the

summons against defendant and forward to the United States

Marshal for the District of New Hampshire (the “U.S. Marshal’s

office”) the summons and a copy of the complaint (document no.

1), and this Order. Upon receipt of the necessary documentation, 

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the U.S. Marshal’s office shall effect service upon defendant. 

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

Defendant is instructed to answer or otherwise plead within

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

Plaintiff is instructed that all future pleadings, written

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

the defendant 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: May 15, 2008

cc: Kevin D. Hall, pro se

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