UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Steven J . Roy

v . CivilNo . 07-cv-353-PB

William Wrenn . Commissioner,

New Hampshire Department of

Corrections, et al .2

REPORT AND RECOMMENDATION

Before the Court is New Hampshire State Prison("NHSP" )

nmate Steven Roy's complaint and addenda thereto (document nos .

1Liberally construed, Roy's complaint can be read to assert

that he is purporting to representing the interests of other

inmates as well as himself . Parties to a federal lawsuit cannot

be represented by anyone other than themselves or a member of the

bar . See 28 U .S .C . § 1654 ; see also LR 83 .2(d) ("Persons who are

not members of the bar . . . will be allowed to appear before

this court only on their own behalf .") ; LR 83 .6(b) ("Pro se

parties must appear personally . . . . A pro se party may not

authorize another person who is not a member of the bar of this

court to appear on his or her behalf .") . For that reason, Roy,

proceeding pro se and not as a member of the bar of this Court,

cannot represent anyone but himself in this action . I will

construe this complaint as filed solely by plaintiff on his own

behalf .

2In addition to William Wrenn, Roy also names New Hampshire

State Prison ("NHSP") Warden Richard Gerry, former NHSP Warden

Bruce Cattell, NHSP Medical Director Dr . Robert McLeod, NHSP

Dental Director Dr . Karen Anderson, NHSP Unit Manager Lucie

Bilodeau, and NHSP Lt . Tony Kingsbury as defendants to this

action .

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1, 13, 16 & 17),' filed pursuant to 42 U .S .C . § 1983 . The matter

is before me for preliminary review to determine whether the

complaint states any claim upon which relief might be granted .

See United States District Court District of New Hampshire Local

Rule ("LR") 4 .3(d)(2)(A) (authorizing magistrate judge to

preliminary review pro se prisoner complaints) .

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 . "

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

3The complaint and addenda, in the aggregate, will be

considered to be the complaint in this matter for all purposes .

2

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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 .

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

and meaningful consideration .

Backaround

A . Facts Relatina to Inadeauate Dental Car e

On October 10, 2005, Roy had a dental cleaning conducted by

either a dental hygienist/technician, at the NHSP . Roy alerted

the hygienist/technician to a hole in one of his teeth (tooth

#259) . The hygienist noted the problem and stated that #25 was

in need of dental attention in order to remain viable .

On October 18, 2005, Roy sent an Inmate Request Slip (^IRS")

to the NHSP Dental Department ("Dental") as a reminder that he

needed an appointment to repair tooth #25 . Roy did not hear back

from Dental, and so, on November 13, 2005, he sent an additional

IRS to NHSP Medical Director Dr . McLeod regarding his need for an

°Roy uses a tooth numbering system that he claims is the

same as that utilized by the dental profession to identify teeth .

For purposes of ease and clarity, I will refer to the teeth by

the numbers Roy has given them .

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 3 of 38
appointment to repair tooth #25 . On November 15, 2005, Dental

answered Roy's October 18, 2005 IRS, stating that appointments

were not being scheduled until January or February of 2006, and

that Roy would be notified when his "name comes up ." On November

18, 2005, Dental Director Dr . Anderson responded to the November

13, 2005 IRS stating :

You were put on our waiting list on 10/10[/05] .

Based on current staffing, I project you will have

an appointment in February . We will not know when

it will be until we start booking February . I am

not aware this is an urgent problem . If it is,

you should attend dental sick call .

Roy sent an additional IRS to Anderson on November 21, 2005,

questioning her assessment of the lack of urgency to have tooth

#25 repaired, as no x-ray of the tooth had been taken . Anderson

responded on November 28, 2005, by advising Roy to report to sick

call .

On December 2, 2005, Roy reported to sick call to have tooth

#25 re-examined, and to report that one of his molars, tooth #2,

was chipped . The sick call dentist gave Roy a December 7, 2005,

emergency appointment, stating that #25 needed immediate work

because it was a large cavity in a small tooth .

On December 7, 2005, tooth #25 was filled . The dentist Roy

saw on that day said that the decay was deep into the tooth, an d

4

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that Roy's tooth #24 needed a similar repair . Dr . Anderson was

present on December 7, 2005, and advised Roy that there were no

appointments available for three months .

On February 8, 2006, Roy sent an IRS to Dental stating that

the filling in #25 that had been installed on December 7, 2005,

was loose, and that he therefore needed repairs in teeth #2, #24,

and #25 . On February 13, 2006, Roy received a response stating

that he had been on the filling list since October of 2005, and

that an appointment would be scheduled soon .

On March 2, 2006, Roy received an appointment for April 14,

2006, six months after his initial dental cleaning had identified

the need for dental care, to fix only tooth #2 . On March 6,

2006, however, the loose filling in Roy's tooth #25 fell out .

Additionally, a small filling in tooth #24 had fallen out . Roy

began to experience pain in both of these teeth as a result . Roy

reported to dental sick call on March 6, 2006 . Dr . Anderson

examined Roy, but did not take x-rays, and stated that there was

no decay in either tooth #24 or #25 . Dr . Anderson filled #25,

and stated that #24 was better off without a filling .

The pain in teeth #24 and #25 increased until March 17,

2006, when Roy again went to dental sick call . The dentist on

5

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duty determined that both teeth were dying, and rescinded the

appointment that had been scheduled on April 14 for #2, replacing

it with an appointment for March 27, 2006 to treat #24 and #25

with root canals . Roy was told that his appointment for #2 would

also be rescheduled, but that only one repair appointment could

be pending for an individual inmate at any given time .

On March 27, 2006, Roy had his first of appointments needed

to do two root canals, on teeth #24 and #25 . The second

appointment was scheduled on June 6, 2006, to complete the root

canals . At the second appointment, the dentist stated that Roy

might have problems with the root canal in tooth #25 since there

was a "side pocket" in the canal . The dental technician told Roy

that an appointment would be scheduled to repair the chip on #2,

which had gotten larger as another piece of the tooth had broken

off in May 2006 .

On July 14, 2006, Roy went to dental sick call because he

had a crown on tooth #4 that was loose and needed to be reglued .

Roy reports that since his arrival at the NHSP in 1993, the crown

on tooth #4 had been routinely reglued every couple of years .

However, during his incarceration, Roy had work done on a crown

that was disintegrating on tooth #3 . A composite crown was pu t

6

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in place for tooth #3 which made the crown on tooth #4 come loose

more rapidly than it had prior to the placement of the composite

crown . As a result, in 2004 or 2005, the NHSP dentist made a

new, inferior, plastic crown for tooth #4, and discarded the

porcelain crown that had previously been in place . However, on

July 14, 2006, when Roy reported to sick call for regluing of the

loose crown on tooth #4, Dr . Anderson advised Roy that Dental

usually does not repair crowns, but instead pulls the tooth .

When Roy pressed Dr . Anderson to reglue the crown rather

than pull his tooth, Dr . Anderson refused, stating that a piece

of tooth had chipped off inside the crown and that the crown

could therefore not be reglued securely . Roy states that there

were no chips on tooth #4, and that there was a tiny piece of

metal, perhaps from the pin in his mouth, inside the crown, which

he easily removed at his appointment . Dr . Anderson still refused

to fix anything at that time that wasn't painful, bleeding or

swollen . When Roy told her that it was, in fact, painful for him

to eat on the side of his mouth where the crown was gone, Dr .

Anderson advised him to chew on the other side of his mouth, and

did not reglue the crown . Dr . Anderson advised Roy that he would

receive an appointment in October 2006 .

7

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On July 17, 2006, Roy sent Dr . Anderson an IRS, appealing to

her to reconsider her refusal to treat teeth #2 and #4 . The IRS

stated :

I am appealing the DENIAL of treatment I received

on 7/14/2006 . I feel that the attached chronology

brings into sharp relief the neglect that I have

suffered in my dental care : What should be routine

procedures are delayed until they become

emergencies . My broken upper-right molar has been

awaiting repair since 12/2/2005 ; but when it

becomes an emergency (due to lack of timely

treatment), you will not doubt advise its

extraction . My expensive crown was replaced with

plastic, and now that only a plastic crown is at

issue, it can wait until the tooth is rotted

beyond repair . Waking each morning with the stink

and taste of rotting teeth in my mouth only serves

to remind me of this cruel treatment . I request

you reconsider neglect of my dental health .

(emphasis in original) . Dr . Anderson responded :

You have had 3 scheduled appointments since

12/2/05 and have been seen at sick call 3 times

after that date . You lost your porcelain crown,

we are not responsible . The prognosis for #4 is

questionable, but we will try .

Roy reports that he has not received any reparative treatment for

tooth #4 since July 14, 2006 .

on July 24, 2006, tooth #25 broke off at the gumline . Roy

glued tooth #25 back on himself, and also glued the crown back

onto #4 himself, as he believed, based on the experiences he had

already had with Dental, that Dental would not repair the teeth .

8

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On August 7, 2006, tooth #25 disintegrated, the crown on

tooth #4 came off, and the composite crown held in with a pin

came off of tooth U . It appears that Roy again reglued these

crowns himself, Two days later, on August 9, 2006, an

appointment to fix these teeth was scheduled for October 16,

2006 .

Roy had, on August 1, 2006, appealed the dernial of adequate

dental care to NHSP Medical Director Dr . Robert McLeod .

Receiving no satisfactory response, on August 22, 2006, Roy filed

a grievance with then-NHSP Warden Bruce Cattell which was never

answered . On September 27, 2006, Roy sent an IRS to Warden

Cattell following up on his August 22 grievance . Warden Cattell

answered, confirming that Roy's grievance had been received and

forwarded to Dr . McLeod . Having received no satisfactory

response to his grievance, on October 5, 2006, Roy filed a

further grievance with New Hampshire Department of Corrections

("DOC") Commissioner William Wrenn .

On October 10, 2006, the crown on tooth #4 again came off,

as did the crown on #3 . Roy kept both crowns, but did not reglue

them at that time .

9

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On October 16, 2006, Roy went to his scheduled dentist

appointment . The dentist told Roy that he needed even more

dental work than had previously been anticipated . The dentist

examined the damage to teeth #2, #3, and #4, and stated that Roy

would have to return for another appointment to have those teeth

repaired and to get new crowns .

While the dentist set out to work on teeth #24, #25 and #26

at the October 16, 2006 appointment, due to time constraints, he

was unable to repair the teeth, and so he created a three-tooth

bridge for teeth #24, #25 (which was missing) and #26, using

composite material and three pins to replace tooth #25 . During

the appointment, the dentist also advised Roy that tooth #26 also

needing additional work because it was decaying .

On October 29, 2006, Roy sent an IRS to Wrenn notifying him

that only one out of his four ongoing dental problems had been

addressed . The response to the IRS, written by Deputy DOC

Commissioner Greg Crompton, advised Roy to contact Dr . Anderson .

On November 2, 2006, Roy sent an IRS to Dr . Anderson,

advising her he still had three outstanding dental problems . Dr .

Anderson responded that Roy was on a waiting list for a dental

appointment . On November 2, 2006, Roy also wrote to Crompton ,

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asking if Wrenn would step in to correct the problems with dental

care at the NHSP . Crompton responded to Roy that discussions had

occurred with Dr . McLeod about the problems with dental care at

the NHSP but did not provide further information .

On November 12, 2006, while Roy was flossing his teeth, a

filling he had in tooth #5 broke in half . Roy glued the filling

back in himself on November 14, 2006, but it was not secure and

came loose again soon afterward .

On November 17, 2006, Dr . McLeod responded to Roy's October

5, 2006 grievance to Commissioner Wrenn . Dr . McLeod stated that

he would direct that a complete dental evaluation of Roy be

performed .

On November 21, 2006, Roy received a full dental examination

from Dr . Anderson, with x-rays . At that time, Roy advised her of

two loose fillings, one in #5 and one in #13, but neithe r

Anderson nor Roy could make them move at that time . Roy asked

for an appointment to treat all of his outstanding dental

problems . Dr . Anderson told Roy that he was on the waiting list

for an appointment, but that appointments were being scheduled

nine months out .

11

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On December 5, 2006, the loose filling in tooth #13 broke in

two, and one piece of the filling fell out . Roy filled the

resulting hole with glue himself . The remaining piece came out

on December 21, 2006 . Roy again tended to it himself until he

went to dental sick call on January 22, 2007 . Roy insisted that

he be given a temporary filling, which was done, but no x-ray was

taken and the tooth was not drilled .

On January 25, 2007, Roy submitted an IRS requesting a

dental cleaning and was scheduled for an appointment on February

26, 2007 . On February 26, both the hygienist and her supervisor

advised Roy that teeth #2, #3, and #4 would not be worked on at

all during the cleaning, to "avoid stirring up bacteria" because

of the extensive decay in those teeth .

On April 9, 2007, the front composite layer of tooth #25

snapped off . This was the third time that Dental's work on tooth

#25 had failed since Roy initially sought treatment for the tooth

in October of 2005, as a filling had come out of the tooth on

February 8, 2006, two months after it was installed, and the

entire tooth snapped off on July 24, 2006, six weeks after a root

canal was done on the tooth .

12

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On April 30, 2007, Roy was seen by a dentist named Dr . Bryan

to fill tooth #13 . Dr . Bryan also stated that teeth #2, #3, #4,

and #5 needed immediate attention, but that he could not work on

those teeth as the scheduled appointment was only for tooth #13 .

Dr . Bryan told Roy not to eat on the side of his mouth that was

repaired for twenty-four hours, but Dental denied Roy a soft meal

pass .

On May 1, 2007, and May 8, 2007, Roy sent IRS forms to

dental requesting immediate treatment for teeth #2, #3, #4, and

#5, and also advised Dental that the filling on tooth #13 was

squeaking when Roy ate . Dr . Anderson responded, denying that Dr .

Bryan had told Roy that his teeth needed immediate attention, and

stating that Roy was on the ^call list" and would be called in

"when possible . "

On May 14, 2007, Roy sent an IRS to NHSP Warden Richard

Gerry, advising him of his ongoing problems with Dental, as Roy's

prior complaints had gone to then-Warden Cattell . Warden Gerry

responded :

I have received an update from Dr . Anderson . Due

to staffing levels in Dental, there is a lengthy

delay between appointments . In Jan 2007 you were

added to the call list for matters that cannot

wait for an appointment . You had a cleaning on

2/26/07 . On 4/30/07 treatment was done for a

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tooth . You remain on the call list and services

provided [sic] as time and staff permit .

Roy reports that inmates were not called off of work shifts

for cancellations and that "call list" appointments were shorter

than regular appointments . On May 16, 2007, and May 23, 2007,

Roy learned that he had been called to Dental while he was at

work, and so he was not able to avail himself of the open

appointment .

On May 24, 2007, however, Roy was called off of his work

shift from the call list . At that time, the broken filling on

tooth #5 was replaced with a composite filling .

From August 10, 2007 through August 14, 2007, Roy reports

that he suffered from pain in his ear and jaw, but that dental

sick call was cancelled all that week . Roy instead got

antibiotics to medicate himself for the pain . Roy continued to

have intermittent pain through September of 2007, and attempted

to go to dental sick call four times during that month, but each

time, dental sick call was cancelled . 5

51t is worth noting at this juncture that Roy is not the

first plaintiff to file a compliant in this Court against Dr .

Anderson and the NHSP administration addressing these issues . In

Chambers v . Gerry, et al . , Civ . No . 07-CV-326-JL (D .N .H .), an

inmate plaintiff filed similar claims alleging inadequate dental

care . On November 2, 2007, a hearing on plaintiff's motion for a

preliminary injunction was held before me in that case . The

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Roy alleges that the following issues remained at the time

he filed this action :

Tooth #2 : massive deterioration and decay from unrepaired

chips since November 2005 ;

Tooth #3 : crown missing, exposed tooth interior decaying

since October 2006, tooth probably no longer

alive ;

Tooth #4 : crown missing, dead tooth, exposed interior

decaying since July 2006, abscess in root earlier

"solved" by having Roy periodically pop blister on

gum;

Tooth #11 : damaged, chipped ;

Tooth #12 : missing (extracted by NHSP) ;

Tooth #13 : possible loose filling, intermittent squeaking

since installation ;

Tooth #22 : decay or stain visible, chip ;

evidence at the hearing demonstrated a pattern similar to that

presented here : plaintiff had to go to sick call to seek urgent

dental care, where ineffective temporary or stop-gap measures

were taken, while a lengthy delay ensued in scheduling

appointments for permanent repairs, despite ongoing pain and risk

of exacerbating the damage in the affected area . In that case,

like here, plaintiff persistently complained about the inadequacy

of the dental care, until he was placed on a cancellation list,

which still did not result in prompt and adequate treatment . Dr .

Anderson testified at the November 2, 2007 hearing that dental

care at the NHSP was prioritized by the severity of the

presenting issue . Dr . Anderson also stated that because of a

contract dispute during at least part of the time at issue in

Roy's complaint, the prison dental department was seriously

short-staffed, causing protracted delays in treatment that were

not consistent with good dental care and fell below the ordinary

standard of care .

15

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Tooth #24 : dead (root canal) ;

Tooth #25 : dead (root canal) and supported by adjacent

teeth, missing front ;

Tooth #27 : damaged, decayed or chipped ;

Teeth #29-#32 : intermittently loose fillings detected during

flossing .

B . Facts Relating to Retaliation Claim

During the pendency of this action, Roy claims that he has

been retaliated against at the prison for providing legal

assistance to other inmates, and because he filed this action in

the first place . Roy asserts that he has been assisting other

inmates at the NHSP with their legal work for more than ten

years . Roy claims that the staff at the prison are aware of the

assistance he has provided to other inmates, that staff members

have referred other inmates to Roy for legal help and that, on

four occasions, staff members themselves have sought Roy's help

in legal matters . Roy reports that he has received minimal

negative feedback from NHSP staff over the last ten years

concerning his provision of legal assistance to other inmates .

The only specific negative staff reaction Roy discusses in

his complaint is that his unit manager, Lucie Bilodeau, told him

on June 20, 2006, that he was not allowed to discuss the law wit h

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any other inmate, either in the context of specific cases or

generally, and that providing inmates with legal assistance

violated NHSP policy forbidding inmates from providing services

to one another . Roy argued to Bilodeau that because he offers

his advice freely, and without any kind of compensation or quid

pro quo, that his legal advice does not constitute a "service,"

within the meaning of NHSP policy . Roy also asserted that he has

a right to express himself, and that his provision of legal

opinions and advice is simply an exercise of that right .

Roy states that on October 28, 2007, he wrote a letter to

the attorney of Derek Farnsworth, an inmate, outlining litigation

strategies for pursuing civil rights claims against NHSP staff

members Lt . James Brown and Counselor Robert McGrath, both of

whom were under the supervision of Bilodeau . On October 30,

2007, Farnsworth sent the letter to the library to be copied . At

the library, the letter was seen by a "confidential informant"

who identified the letter as Roy's handiwork . On November 1,

2007, which was the day after the New Hampshire Attorney

General's office received notice of this lawsuit, the

confidential informant gave the letter to Lt . Tony Kingsbury, who

shared it with Brown and Bilodeau . When asked, Roy admitted t o

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typing the letter to the attorney in an effort to provide the

attorney with legal advice, pursuant to what he believed was his

right to do so . Roy was written up for a disciplinary

infraction, and Kingsbury approved the infraction report on

November 7, 2007, which recommended having Roy send his word

processor out of the institution . Roy was served with the writeup on November 9, 2007 and filed a grievance with Warden Gerry

the same day . On November 12, 2007, having received an

unsatisfactory response to his grievance, Roy filed a further

grievance with Commissioner Wrenn .

On November 13 and 14, 2007, Roy prepared further documents

in contemplation of continuing and adding to the instant lawsuit

and sent them to be copied at the library . A disciplinary

hearing was held on November 15, 2007 . The hearings officer,

Beau Hickman, found Roy guilty of providing legal advice to

inmates without the permission of the Warden . As sanctions for

the infraction, Hickman imposed extra duty, as well as five days

in punitive segregation, which was suspended, but declined to

order the removal of Roy's word processor from his possession .

Hickman also advised Roy to seek the Warden's permission prior to

giving any further legal advice to inmates . That day, Roy wrot e

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an IRS to Warden Gerry seeking permission to give legal advice to

eight inmates, who he named in the IRS .

On November 16, Roy was transferred to the Special Housing

Unit ("SHU") without any further infraction, imposition of

sanction, or reclassification . The SHU unit manager promised to

place Roy on the protective custody tier of SHU, but instead, Roy

was placed in the SHU's maximum security general population tier .

Roy was advised after his transfer that he was on "pending

administrative review" status pursuant to an undisclosed charge .

Roy later learned that he was being investigated for threatening

Anderson . Roy denies threatening any staff member with anything

except litigation, and says the evidence of threatening amounted

to evidence that a blade was found taped to a bottle of tattoo

ink under a pool table in a recreation room . Roy claims that he

does not have tattoos, does not play pool, never uses that

recreation room and has no institutional history of threatening

or violent behavior . Roy was quickly cleared of the charge . Roy

also claims that an unnamed prison official admitted to him that

his transfer to SHU was retaliatory, either for this lawsuit or

for assisting Farnsworth with a civil rights action against NHSP

staff .

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Roy was released from the SHU on December 20, 2007 . Roy

found that some of his personal property, including legal work,

was missing at that time, and that he had lost his job . Further,

his word processor had been seized, On January 6, 2008, Roy sent

an IRS appealing the seizure of his word processor, but the

forfeiture was affirmed .

On January 11, 2008, Roy was moved back to SHU, again on

suspicion of threatening . According to the complaint, a

confidential informant reported to a prison official that he

overheard Roy saying to another inmate, "You're dead . "

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 . § 19836 ; Parratt v . Taylor, 45 1

642 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 . . . .

20

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U .S . 527, 535 (1981) ( v rruled on other r un by Daniels v .

Williams , 474 U .S . 327, 330-331 (1986)) ; 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 . Den't of Soc . Servs . , 436 U .S . 658, 692 (1978) ; Soto v .

Flores , 103 F .3d 1056, 1061-62 (1st Cir .), cert . denied, 522 U .S .

819 (1997) . Because Roy's claims allege violations of federal

constitutional law by state actors, they arise under § 1983 .

A . The Eiahth Amendment Inadeauate Dental Care Claim

Plaintiff's § 1983 complaint asserts a claim that his Eighth

Amendment rights have been violated by the MxSP's denial of

necessary medical care . Denial of dental care is considered a

denial of medical care, which can constitute an Eighth Amendment

violation when prison authorities are deliberately indifferent to

a prisoner's serious medical needs . See Estelle , 429 U .S . at 104

(explaining the government's obligation to provide medical care

to inmates to comply with the proscription against "unnecessary

and wanton infliction of pain") ; see also Hunt v . Dental Den't ,

865 F .2d 198, 200 (9th Cir . 1989) ("'Dental care is one of the

most important medical needs of inmates .'" (quoting Ramos v .

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Lamm , 639 F .2d 559, 576 (10th Cir . 1980))) . "Accordingly, the

eighth amendment requires that prisoners be provided with a

system of ready access to adequate dental care ." Hunt , 865 F .2d

at 200 ; see also Chance v . Armstrong , 143 F .3d 698, 702 (2d Cir .

1998) (cognizable claim regarding inadequate dental care can be

based on various factors including pain suffered by plaintiff) ;

Dean v . Coughlin , 623 F . Supp . 392, 399 (S .D .N .Y . 1985) (failure

to provide routine dental care violates Eighth Amendment rights) ;

Laaman v . Helaemoe , 437 F . Supp . 269, 313 (D .N .H . 1977) ("Inmates

are entitled to reasonable dental care .") .

Deliberate indifference is manifested by prison officials

who "intentionally deny[] or delay[] access to medical care or

intentionally interfer[e] with the treatment once prescribed ."

Estelle , 429 U .S . at 104-05 . "A medical need is `serious' if it

is 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 ."

Gaudreault v . Municipalitv of Salem , 923 F .2d 203, 208 (1st Cir .

1990) . Although a mere delay in needed dental care will not

violate the Eighth Amendment, when that delay causes or gives

rise to a substantial risk of serious harm to a prisoner, the

22

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requisite deliberate indifference to a serious medical need is

found . See Farrow v . west , 320 F .3d 1235, 1243-44 (11th Cir .

2003) (need for dental care combined with the effects of not

receiving it may give rise to an Eighth Amendment claim) ; see

also Boyd v . Knox , 47 F .3d 966, 969 (8th Cir . 1995) (delay in

dental care coupled with knowledge of patient's pain can support

Eighth Amendment claim) .

Plaintiff alleges that he sought out dental care

consistently, utilizing proper administrative channels, and

received substandard, ineffective treatment, no treatment at all,

or treatment so delayed that his condition worsened considerably .

The worsening of his condition between the setting of the

appointment and the appointment itself resulted in further delays

in treatment, because, at the time of his appointment, his dental

needs would exceed what could be treated int eh appointment time

that head been allotted for the lesser problem . Roy also alleges

that he made each of the defendants aware of his pressing need

for reparative dental treatment, and yet they did nothing to

assure the timely provision of such treatment .

I find that these allegations are sufficient to a claim for

deliberate indifference to Roy's dental needs by the defendants .

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In an Order issued simultaneously with this Report and

Recommendation, I will direct service of this Eighth Amendment

claim on defendants Wrenn, Gerry, Cattell, Anderson, and McLeod .'

B . Retaliation Claims

Conduct on the part of prison officials that is "not

otherwise constitutionally deficient is actionable under § 1983

if done in retaliation for the exercise of constitutionally

protected first amendment freedoms ." Oropallo v . Parrish , No .

93-1953, at *3, 1994 WL 168519 (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)) ; see Goff v . Burton , 7 F .3d 734, 738

(8th Cir . 1993) (prison officials cannot lawfully impose a

disciplinary sanction against a prisoner in retaliation for the

prisoner's exercise of his constitutional right) . "[G]overnment

actions, which standing alone do not violate the Constitution,

may nonetheless be constitutional torts if motivated i n

'Roy also attempts to state claim regarding the inadequacies

in his medical care by alleging that such a deficincy violates

the Laaman Consent Decree, Laaman v . Helaemoe , 437 F . Supp . 269,

326-31 (D .N .H . 1977) . The decree, however, has been vacated .

Furthermore, an inmate may not bring an individual Section 1983

action for injunctive or declaratory relief based on consent

decree violations . See Martel v . Fridovich , 14 F .3d 1, 3 n .4

(lst Cir . 1993) . Accordingly, I recommend that Roy's claim of a

violation of the Laaman Consent Decree be dismissed, as it fails

to state any claim upon which relief might be granted .

24

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substantial part by a desire to punish an individual for exercise

of a constitutional right ." Mitchell v . Horn , 318 F .3d 523, 530

(3d Cir . 2003) .

Of course, 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

v . Safley, 482 U .S . 78, 89-90 (1987)) . However, "actions

otherwise supportable lose their legitimacy if designed to punish

or deter an exercise of constitutional freedoms ." Ferranti , 618

F .2d at 892 n .4 (citing McDonald v . Hall , 610 F .2d 16, 18 (1st

Cir . 1979)) .

In order to state a claim for retaliation for an exercise of

his 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 .

Price v . Wall , 428 F . Supp . 2d 52, 55 (D .R .I . 2006) ; see also

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

419691, at *7 (D .N .H . Feb . 23, 2005) (Unpublished Order) . Roy

25

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claims that the defendants have retaliated against him by

subjecting him to certain adverse conditions of confinement

because he a) filed this lawsuit against the NHSP defendants and

b) assisted another inmate in litigating a lawsuit against NHSP

employees . Roy alleges the following specific acts were taken

with retaliatory motive by defendants : (1) he was moved to the

SHU twice, "pending administrative review" on suspicion that he

had threatened another individual, and that as a result he (2)

lost his prison job and pay status, (3) lost property, including

legal work and materials, and (4) had his word processor seized

and removed from his possession . I consider each of these

elements of a retaliation claim in turn .

1 . Conduct Protected by the First Amendment

Incarceration brings about necessary limits on certain

aspects of an inmate's constitutional rights . Turner , 482 U .S .

at 84 . The First Amendment rights of prisoners may be abridged

to the extent that the exercise of those rights is "inconsistent

with his status as a prisoner or with the legitimate penological

objectives of the corrections system ." Jones v . N .C . Prisoners'

Labor Union, Inc . , 433 U .S . 119, 129 (1977) (internal citations

omitted) .

26

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a . Free Sneech

The First Amendment protects an individual's right to speak

freely . See U .S . Const . amend . 1 .8 Prison inmates, however, do

not possess a special First Amendment right to provide legal

advice or assistance, orally or in writing, to other inmates,

that exceeds their right to speak or write freely on nonlegal

topics . Shaw v . Murphv , 532 U .S . 223, 228 (2001) . Accordingly,

as no special privilege attaches to expression or speech that

takes the form of inmate-to-inmate legal assistance, such

expression may be constitutionally limited by prison policy that

serves a valid penological objective . Here, according to the

pleadings filed by Roy, inmates may not provide legal assistance

to one another at the NHSP because it violates the prison's

proscription against inmates providing services for one another,

even if it is not done on a fee-for-service basis . Here, Roy's

own pleadings demonstrate that the restriction on his right to

provide legal advice was reasonably related to the penological

objective of not allowing inmates to provide services to one

another, as that practice could create obligation or coercion i n

8U .S . Const . amend . I states that "Congress shall make no

law . . . abridging the freedom of speech, or of the press ; or

the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances . "

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a prison context . Therefore, I find that Roy has not alleged a

sustainable retaliation claim, or other First Amendment claim,

based on his right to provide legal assistance or advice to other

inmates . Accordingly, I recommend that any such claim be

dismissed .9

b . Petitioning the Government for a Redress of

Grievances

The right to petition the government for a redress of

grievances has been characterized as "among the most precious of

the liberties safeguarded by the Bill of Rights ." United Mine

Workers v . Ill . State Bar Ass'n , 389 U .S . 217, 222 (1967) . In

9To the extent that Roy relies on the attorney-client

privilege to protect his right to correspond with Farnsworth's

attorney, his reliance is misplaced . "The [attorney-client]

privilege springs from the attorney-client relationship ." FDIC

v . Ogden Corp . , 202 F .3d 454, 461 (1st Cir . 2000) . In New

Hampshire, such a relationship comes into being "'when (1) a

person seeks advice or assistance from an attorney, (2) the

advice or assistance sought pertains to matters within the

attorney's professional competence, and (3) the attorney

expressly or impliedly agrees to give or actually gives the

desired advice or assistance .'" State v . Gordon , 141 N .H . 703,

705, 692 A .2d 505, 507 (1997) (quoting McCabe v . Arcidv , 138 N .H .

20, 25, 635 A .3d 446, 449 (1993)) . Roy claims that he gave

inmate Farnsworth a letter to send to Farnsworth's attorney

offering advice on legal strategy . None of the three factors

listed above are met by this transaction, and therefore no

attorney-client relationship was established between Roy and

Farnsworth's attorney . Accordingly, no attorney-client privilege

existed in Roy's letter to Farnsworth's attorney . I recommend

the dismissal of any claim intended to rely on the assertion of

the attorney-client privilege .

28

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the prison context, this means that inmates must be "permit[ted ]

free and uninhibited access . . . to both administrative and

judicial forums for the purpose of seeking redress of grievances

against state officers ." Sostre v . McGinnis , 442 F .2d 178, 200

(2d Cir . 1971) (en banc) .

Roy exercised his First Amendment right to petition the

government for a redress of grievances by filing this lawsuit .

Accordingly, I find that Roy has alleged a First Amendment right

sufficient to meet the first requirement for stating a

retaliation claim .

2 . Adverse Action

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, 492

(2d Cir . 2001), overruled in bart on other arounds by Phelbs v .

Kabnolas , 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 an inmate is

not chilled in his expression, he may still state a claim for

retaliation if it is arguable that the retaliatory behavior

alleged is sufficient and of the type to deter an ordinary perso n

29

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 29 of 38
from exercising his rights . Gay , 2005 WL 756731, *8 ( citing

Allah v . Seiverlina , 229 F .3d 220, 225 (3d Cir . 2000)) . Roy

alleges that he was twice transferred to SHU under suspicion of

threatening first Dr . Anderson, and then an inmate . While in

SHU, Roy alleges that he was stripped of his prison job, his

prison pay status, and his property . There is no doubt that, to

an inmate of ordinary firmness, these constitute adverse actions

with important implications for the quality of an inmate's

institutional life . Further, it is reasonable to conclude that

ordinary inmates, faced with potential penalties for filing a

lawsuit might well choose not to file a lawsuit in order to

minimize negative consequences to himself . Roy, therefore, has

stated sufficient facts to allege that adverse actions were taken

against him that would chill an ordinary inmate in Roy's

situation from exercising his First Amendment rights to satisfy

the second prong of a retaliation claim .

3 . Retaliatory Action Caused by First Amendment

yiolation

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 .

Beauchamb v . Murphv , 37 F .3d 700, 711 (1st Cir . 1994) ; Ferranti ,

30

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618 F .2d at 892 (chronology of events provided support for

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

also Woods v . Smith , 60 F .3d 1161, 1166 (5th Cir . 1995) . Here,

Roy alleges that within a day of the Attorney General's office

being advised of his civil rights lawsuit regarding dental

claims, he was transferred to SHU on suspicion that he had

threatened the NHSP dentist . This sequence of events,

demonstrating that adverse actions against Roy followed closely

on the heels of the filing of this lawsuit, presents sufficient

evidence of an adverse act specifically taken in response to

Roy's exercise of his First Amendment rights to meet the third

requirement for a retaliation claim . Accordingly, I find that

Roy has stated sufficient facts to allege an action for

retaliation upon which relief may be granted, and I direct that

this claim be served on each of the defendants named in the

complaint .

II . Liability of Defendants

In this 9 1983 action, plaintiff seeks both injunctive and

monetary relief, and has named the following individuals as

defendants : Dr . Anderson, Dr . McCleod, Warden Gerry, Warden

Cattell, Commissioner Wrenn, unit manager Bilodeau, and Lt .

31

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 31 of 38
Kingsbury .

Liberally construing the complaint in plaintiff's favor, a s

I am required to do at this preliminary stage of review, because

he seeks both injunctive and monetary relief, I find he intends

to bring this action against each of the defendants in both their

official and individual capacities .10 Since each defendant works

for the DOC, a suit against them in their official capacities is

a suit against the DOC, which cannot be held liable for money

damages under § 1983 because of the immunity afforded state

agencies under the Eleventh Amendment . See P .R . Aaueduct & Sewer

Auth . v . Metcalf & Eddy, Inc . , 506 U .S . 139, 144 (1993) (absent

waiver, neither a state nor its agencies 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) .

Yet, to obtain the prospective injunctive relief plaintiff seek s

10Roy has sued each defendant in both their individual and

official capacities, except defendant Warden Gerry, who has been

sued only in his official capacity . However, I find that Roy

alleged sufficient facts to demonstrate that Warden Gerry may

also bear responsibility for the constitutional deprivations

alleged in his individual capacity, and I will construe the

complaint, therefore, as naming each of the defendants in their

individual as well as official capacities .

32

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 32 of 38
here, he must bring this action against defendants in their

official capacities . See id . at 71 n .10 ; see also Brandon v .

Holt , 469 U .S . 464, 471-72 (1985) (suing an officer in his or he r

official capacity is another way of suing the public entity that

the official represents) ; Ex parte Young , 209 U .S . 123, 159-60

(1908) . On the other hand, in order to obtain the monetary

relief plaintiff seeks, he must pursue his claims against

defendants in their individual capacities .

Defendants Wrenn, Cattell, McLeod, Anderson and Gerry serve

a supervisory function within the DOC . Although there is no

supervisory liability in § 1983 actions based on a respondeat

superior theory of liability, see Bd . of County Comm'rs v . Brown ,

520 U .S . 397, 403 (1997) ; City of Canton v . Harris , 489 U .S . 378,

385 (1989), a defendant supervisor can be held liable based on

the defendant's actual notice of facts sufficient to render the

official responsible for reasonable inquiry into the complaint .

See Feliciano v . DuBois , 846 F . Supp . 1033, 1045 (D . Mass . 1994)

(citing Lavne v . Vinzant , 657 F .2d 468 (1st Cir . 1981)) . A

supervisor also may be held liable for his own acts, or

omissions, if they rise to the level of reckless or callous

indifference to the constitutional rights of others . See Febus33

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 33 of 38
Rodriguez V . Betancourt-Lebron , 14 F .3d 87, 91-92 (lst Cir .

1994) . Finally, a supervisor may be held liable under § 1983 if

he or she "formulates a policy or engages in a practice that

leads to a civil rights violation committed by another ." CamiloRobles v . Hovos , 151 F .3d 1, 7(lst Cir . 1998) .

Defendants Anderson, McLeod, Gerry, Cattell, and Wrenn are

each alleged to have been aware of plaintiff's need for dental

care, and nevertheless failed to take any steps to ensure the

requisite care would be provided within an appropriate or

reasonable time period . These allegations state the minimal

facts necessary to allow plaintiff's Eighth Amendment claim to

proceed against these defendants in their supervisory capacities .

In an order issued simultaneously herewith, I will order the

clerk's office to serve the complaint on these defendants .

Conclusion

For the foregoing reasons, I recommend dismissal of : (1)

Roy's claims alleging retaliation or a First Amendment violation

based on the asserted right to provide legal assistance to other

inmates, (2) claims attempted to be brought on behalf of other

inmates, (3) the claim based on a violation of the Laaman Consent

Decree, and (4) the claim based on an alleged violation of the

34

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 34 of 38
attorney-client privilege . In an Order issued simultaneously

with this Report and Recommendation, I direct that the remaining

claims in the complaint be served on the named defendants .

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 (lst Cir . 1992) ;

United States v . Valencia-Cobete , 792 F .2d 4, 6 (1st Cir . 1986) .

Date : February 2 9, 200 8

cc : Steven J . Roy, pro se

35

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 35 of 38
UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Steven J . Roy

v . CivilNo . 07-cv-353-PB

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al . l

O R D E R

Before the Court is New Hampshire State Prison("NHSP")

inmate Steven Roy's complaint and addenda thereto (document nos .

1, 13, 16 & 17),Z filed pursuant to 42 U .S .C . § 1983 . The matter

is before me for preliminary review to determine whether the

complaint states any claim upon which relief might be granted .

See United States District Court District of New Hampshire Local

Rule ("LR") 4 .3(d)(2)(A) (authorizing magistrate judge to

preliminary review pro se prisoner complaints) .

'In addition to William Wrenn, Roy also names New Hampshire

State Prison ("NHSP") Warden Richard Gerry, former NHSP Warden

Bruce Cattell, NHSP Medical Director Dr . Robert McLeod, NHSP

Dental Director Dr . Karen Anderson, NHSP Unit Manager Lucie

Bilodeau, and NHSP Lt . Tony Kingsbury as defendants to this

action .

ZThe complaint and addenda, in the aggregate, will be

considered to be the complaint in this matter for all purposes .

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 36 of 38
For reasons fully explained in the Report and Recommendation

issued simultaneously with this Order, I direct that the Eighth

Amendment claim alleging a denial of adequate dental care be

served on defendants Anderson, McLeod, Gerry, Cattell, and Wrenn .

I further direct that the claim alleging retaliation for Roy's

exercise of his First Amendment right to petition the government

for a redress of grievances be filed on all of the defendants

named in this action .

I order the complaint (document nos . 1, 13, 16 & 17) be

served on Defendants . The Clerk's office is directed to serve

the New Hampshire Office of the Attorney General (AG), as

provided in the Agreement On Acceptance Of Service, copies of

this order, the Report and Recommendation, and the complaint

(document nos . 1, 13, 16 & 17) . See LR 4 .3 ( d)(2)(C) . Within

thirty days from receipt of these materials, the AG will submit

to the court an Acceptance of Service notice specifying those

defendants who have authorized the AG's office to receive service

on their behalf . When the Acceptance of Service is filed,

service will be deemed made on the last day of the thirty-day

period .

2

Case 1:07-cv-00353-PB Document 18 Filed 02/29/08 Page 37 of 38
As to those defendants who do not authorize the AG's office

to receive service on their behalf or whom the AG declines to

represent, the AG shall, within thirty days from receipt of the

aforementioned materials, provide a separate list of the last

known addresses of such defendants . The Clerk's office is

instructed to complete service on these individuals by sending to

them, by certified mail, return receipt requested, copies of

these same documents .

Defendants are instructed to answer or otherwise plead

within twenty days of acceptance 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 Defendants by delivering or mailing the materials to them or

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

SO ORDERED .

R . Mui rhead

States Magistrate Judge

Date : February 11 , 200 8

cc : Steven J . Roy, pro se

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