1On March 21, 2008, Palermo filed his complaint in this

matter (document no. 1). On May 12, 2008, Palermo filed an

“additional complaint” (document no. 3). On May 21, 2008,

Palermo filed another “additional complaint” (document no. 6). 

ON August 4, 2008, he filed an untitled addendum (document no.

9). I construe the latter three filings as addenda to the

original complaint, and will consider the four documents, in the

aggregate, to be the complaint in this matter.

2In addition to Collins, Palermo names CCHC Nurse Sherill

Eastman and CCHC Dr. Robe Soucy as defendants to this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher Palermo

v. Civil No. 08-cv-109-JL

Suzanne Collins, Superintendent,

Coos County Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Before the Court is Christopher Palermo’s complaint

(document nos. 1, 3, 6 & 9),1 filed pursuant to 42 U.S.C. § 1983. 

Palermo brings this action against Suzanne Collins,

Superintendent of the Coos County House of Corrections (“CCHC”),

and other CCHC employees,2 alleging that the defendants have

violated his federal constitutional rights during his

incarceration. The complaint is before me for preliminary review

Case 1:08-cv-00109-JL Document 10 Filed 08/14/08 Page 1 of 20
2

to determine whether, among other things, it states any claim

upon which relief might be granted. See 28 U.S.C. § 1915A;

United States District Court 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. 

Id. 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). 

Case 1:08-cv-00109-JL Document 10 Filed 08/14/08 Page 2 of 20
3

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

inferences reasonably drawn therefrom must be accepted as true. 

See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (stating

the “failure to state a claim” standard of review and explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true.” This review ensures that pro se

pleadings are given fair and meaningful consideration. 

Background

1. Facts Relating to Conditions of Confinement at the CCHC

Palermo alleges that the CCHC administration has covered all

of the external windows in the pretrial housing side of the jail. 

As a result, the unit gets no natural light, which creates undue

psychological stress. Palermo further alleges that the CCHC is

overcrowded and that the overcrowding creates a firehazard.

2. Facts Relating to the CCHC Canteen

Palermo claims that the CCHC is supposed to use money from

inmate canteen purchases to purchase items for the benefit of the

inmates, such as recreation items, books, and religious items. 

Instead, the CCHC is keeping the money to use in supporting the

jail operations. Further, Palermo claims that the CCHC is 

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4

improperly reselling bulk items that are not labelled for

individual sale.

3. Facts Relating to Retaliation

On November 6, 2007, Palermo alleges that he was transferred

from the CCHC, where he was being detained pretrial on charges

that occurred in Coos County, to the New Hampshire State Prison. 

Palermo claims that Collins transferred him in response to

Palermo’s threat to take legal action against the CCHC for

violations of his right to humane conditions of confinement. 

Palermo claims that, in further retaliation, Collins moved him to

the Belknap County House of Corrections for three weeks in late

January of 2008, followed by short-term transfers to the

Rockingham County House of Corrections and the Merrimack County

House of Corrections. These frequent transfers made it difficult

for Palermo’s family to visit him, and difficult to meet with his

attorneys to prepare for his criminal trial, as his attorneys

were never sure of where Palermo was being held.

4. Facts Relating to Grievance Procedures

On April 23, 2008, Palermo, who was apparently back at the

CCHC at that time, filed a grievance with the CCHC complaining

that the jail was overcrowded and that jail conditions created a

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3Palermo does not name Eastman in the narrative of the

complaint, but has named “Sherill Eastman” as a defendant to this

action. I presume that Eastman is the nurse referred to who

allegedly required Palermo to treat his own blood blister, as

that is the only nurse against whom Palermo brings suit.

5

fire hazard. Collins responded to Palermo that his complaints

were not redressable through the grievance process, and he would

have to seek relief by filing a lawsuit. On May 2, 2008, Palermo

filed a grievance complaining about Collins’s repeated attempts

to circumvent Palermo’s right to seek relief through the

grievance process. No action was taken on this grievance except

that Collins again told Palermo he would have to seek relief in

the courts.

5. Facts Relating to Medical Care

On May 15, 2008, Palermo reported a painful blood blister on

his upper left thigh to CCHC Officer Trafell. Trafell brought

Palermo to CCHC nurse Sherill Eastman.3 Eastman gave Palermo a

three inch hollow needle, rubbing alcohol, hydrogen peroxide, two

rubber gloves, and a roll of toilet paper. Eastman then placed

Palermo in a dirty holding cell on a dirty and unsanitary

mattress, and told him “Pop it yourself. I don’t want nothing to

do with it.” Eastman left Palermo, with a corrections officer

and no medical training, to pop his own blood blister. Palermo

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6

attempted to drain his own blister for fifteen minutes by

repeatedly sticking himself with the needle. He was then

returned to his living area.

At 9:00 p.m. the same evening, Palermo returned to the

nurse’s station, as the blister had gotten larger and become more

painful. The area surrounding the blister had also become bright

red and sore. Palermo was again sent to a dirty cell with

medical supplies and told to pop the blister himself.

By the next day, May 16, the blister had become infected and

so painful that Palermo was unable to walk. Another nurse

examined Palermo and then called the doctor. She also covered

and dressed the blister and said to leave it alone, and that it

was improper for the other nurse to have had Palermo attempt a

medical procedure on himself. That night, a third nurse applied

ointment to the wound and dressed it. She told Palermo to return

the following day to receive an antibiotic medication the doctor

had ordered for him.

On May 17, at the noon medical call, Palermo attempted to go

to the nurse’s station to get his medication and have his

dressing changed. Two corrections officers, Officer Blias and 

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4Palermo has not alleged any claims against Blias and

Gagnon. If he intends to do so, he must properly move to amend

his complaint.

7

Corporal Gagnon, refused to let him go and refused to allow him

to receive any medical care other than a band-aid.4

On May 20, Palermo was examined by CCHC physician Robe

Soucey. Dr. Soucey told Palermo that the area around the blister

had become so infected that the infection had to be remedied

surgically. Dr. Soucey then made arrangements for Palermo to be

transported to the hospital for the procedure. 

On May 27, Palermo was transported to the hospital where Dr.

Soucey performed surgery. Dr. Soucey removed a portion of tissue

that left a wound in Palermo’s leg 2 inches wide and three inches

deep. The wound was closed with five surface stitches and no

internal stitches. Palermo was then returned to the CCHC.

On June 7, 2008, Palermo went to the CCHC nurse and advised

her that his stitches were hurting him. The nurse examined

Palermo and said that the stitches had been left in for several

days longer than they should have been, and had thus become

imbedded in the skin. On June 8, 2008, the stitches were removed

by the CCHC nurse on duty pursuant to Dr. Soucey’s orders.

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8

On June 9, Palermo was being returned to the CCHC from court

when the wound on his leg reopened, soaking his boxer shorts in

blood and causing Palermo to experience a great deal of pain. 

Upon his arrival at the CCHC, Palermo was seen by a nurse who, on

Dr. Soucey’s orders, did not restitch the wound, but packed it

and covered it. The nurse on duty advised Palermo that she was

surprised that no internal stitches had been used, as a wound of

that size would ordinarily warrant the use of internal

dissolvable stitches. The nurse also told Palermo that such

internal stitches would have prevented the reopening of the

wound.

Palermo alleges that, as a result of the lack of treatment

for his blister, the infection resulting from being made to pop

the blister himself, and the inadequate surgical and postsurgical care he received, he has been permanently disfigured as

he has a large “hole” in his leg near his groin. Further, he

states that he is in constant pain since the wound reopened,

which makes it difficult for him to walk, sit, stand or sleep.

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5The claims as identified herein will be considered for all

purposes to be the claims raised in the complaint. If Palermo

disagrees with this identification of the claims, he must do so

by objecting to this Report and Recommendation or properly moving

to amend his complaint.

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 . . . .

9

Discussion5

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. § 1983;6 Parratt v. Taylor, 451

U.S. 527, 535 (1981) (overruled on other grounds 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. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v.

Flores, 103 F.3d 1056, 1061-62 (1st Cir. 1997). Because 

Case 1:08-cv-00109-JL Document 10 Filed 08/14/08 Page 9 of 20
10

Palermo’s claims allege violations of federal constitutional law

by state actors, his suit arises under § 1983.

II. Pretrial Detainee Status

Palermo was a pretrial detainee at the CCHC at the time the

events he describes occurred. Detainees have a constitutional

right under the due process clause of the Fourteenth Amendment to

be free of punishment. See Surprenant v. Rivas, 424 F.3d 5, 15

(1st Cir. 2005) (citing O’Connor v. Huard, 117 F.3d 12, 15 (1st

Cir. 1997)). However, challenged conditions or restrictions

which can be rationally related to some legitimate administrative

goal or security concern generally will not be deemed

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

Because the Due Process Clause prohibits the infliction of

punishment on a person prior to a judgment of conviction, the

issue in evaluating claims by a pretrial detainee is ultimately

whether the conditions of confinement were reasonably related to

a legitimate state interest or were intended instead as

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

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

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11

III. Conditions of Confinement Claims

A. Overcrowding

Palermo alleges that the overcrowding and deprivation of

natural light at the CCHC constitute punishment and, therefore,

violate his due process rights. The Supreme Court has found that

simple overcrowding of a correctional facility does not, in and

of itself, constitute unconstitutional punishment. See Lyons v.

Powell, 838 F.2d 28, 30 (1st Cir. 1988) (citing Bell v. Wolfish,

441 U.S. 520, 541 (1979) for the proposition that “doublebunking” or placing two inmates in a cell intended for one inmate

does not constitute punishment). I recommend that the

overcrowding claim, therefore, be dismissed.

B. Inadequate Natural Light

While courts have held that the constitutional requirement

that an inmate be provided with adequate shelter includes the

provision of adequate lighting, see Hoptowit v. Spellman, 753

F.2d 779, 783 (9th Cir. 1985), I can find no legal authority for

the proposition that light must be natural light to be considered

constitutionally adequate. Palermo baldly alleges that the

denial of natural light will cause “undue psychological stress.” 

Palermo has not, however, alleged that he has suffered any

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12

physical injury or damage as a result of being deprived of

natural light. Prisoners cannot recover damages for mental or

emotional injury in the absence of physical injury. 42 U.S.C. §

1997d(d). Palermo has failed to state a claim for

unconstitutional conditions of confinement upon which relief

might be granted for inadequate natural light, and I recommend

that this claim be dismissed.

IV. Retaliation Claim

Palermo seeks injunctive relief and monetary damages for

Collins’ alleged retaliatory decisions to transfer him to

numerous county jails rather than keeping him at the CCHC. It

appears that Palermo is currently housed at the CCHC, and has

been for at least the last several months. Accordingly, rather

than address the necessity of injunctive relief in the context of

alleged retaliatory transfers, I recommend that the claim for

injunctive relief be dismissed as it is currently moot. The

dismissal, if this recommendation is approved, will be without

prejudice to refiling the request for an injunction should

circumstances warrant.

Palermo also alleges that he is entitled to damages for the

retaliatory transfers. A prisoner has no right to be housed in

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13

any particular institution. Montanye v. Haymes, 427 U.S. 236

(1976). Therefore, a prisoner may be transferred without a

hearing, and without being provided with a reason. McDonald v.

Hall, 618 F.2d 16, 18 (1st Cir. 1979). However, while CCHC

officials could transfer Palermo between correctional facilities

without infringing any interest protected by the constitution,

they may not do so to punish Palermo for engaging in conduct

protected by the First Amendment. McDonald, 610 F.2d at 18; see

also Mitchell v. Horn, 318 F.3d 523, 530 (3rd Cir. 2003);

Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) (“[A]n

otherwise legitimate and constitutional government act can become

unconstitutional when an individual demonstrates that it was

taken in retaliation for his exercise of First Amendment

speech.”); 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)

(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.”). 

A retaliatory transfer claim has three elements: (1) the

plaintiff was engaged in protected conduct; (2) the defendants

Case 1:08-cv-00109-JL Document 10 Filed 08/14/08 Page 13 of 20
14

took an adverse action against the plaintiff that would deter a

person of ordinary firmness from engaging in the protected

conduct; and (3) that there is a causal connection between the

adverse action and the protected conduct. Thaddeus-X v. Blatter,

175 F.3d 378, 394 (6th Cir. 1999); Soto v. Iacavino, No. 01 Civ.

5850 (JSM), 2003 WL 21281762 at *2 (S.D.N.Y. June 4, 2003). 

As to the first element, Palermo contends that he was

engaged in protected First Amendment speech by advising Collins

of his intention to file a civil rights lawsuit complaining about

conditions at the CCHC. 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 the prison context, this right 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). Because

the First Amendment protects an individual’s freedom of speech in

both oral and written form, see U.S. Const. amend. I; Palmigiano

v. Travisono, 317 F. Supp. 776, 786 (D.R.I. 1970), I find that

Case 1:08-cv-00109-JL Document 10 Filed 08/14/08 Page 14 of 20
15

expressing an intent to file a lawsuit complaining about prison

conditions is speech protected by the First Amendment. 

Accordingly, Palermo was exercising a legitimate First Amendment

right when he threatened to sue the CCHC to redress allegedly

inhumane prison conditions.

As to the second element of a retaliation claim, Palermo

alleges that adverse action was taken against him by CCHC

officials in the form of transfers to distant jails that made

family and attorney visits burdensome or impossible. Such an

assertion alleges an adverse action by the CCHC.

Finally, Palermo must ultimately demonstrate that there is a

causal connection between the transfers and Palermo’s exercise of

his First Amendment rights. Although I find that Palermo has not

yet provided significant factual details to prove that element of

a retaliation claim, for purposes of preliminary review, I find

that Palermo has alleged the minimum facts necessary for me to

draw the inference that the transfers were made in response to

Palermo’s threats to sue. Accordingly, in an Order issued

simultaneously with this Report and Recommendation, I will direct

that the retaliatory transfer claim be served on defendant

Collins.

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16

V. Inadequate Grievance Procedures Claim

Prisoners have the constitutional right to petition the

Government for redress of their grievances. Hudson v. Palmer,

468 U.S. 517, 523 (1984). That right includes the right to

access to established prison grievance procedures. See Sprouse

v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); Franco v. Kelly,

854 F.2d 584, 589-90 (2d Cir. 1988). Palermo has not alleged,

however, that defendants have failed to afford him redress under

established grievance procedures. Instead, he has alleged that

he was advised by Collins that there are simply no established

grievance procedures available to redress his complaints. 

There is no constitutional or statutory entitlement to the

existence of grievance procedures. Mann v. Adams, 855 F.2d 639,

640 (9th Cir. 1988); Lim v. Stanley, 2005 WL 1712202, *4 n.13.

(D.N.H. 2005). The failure to provide such procedures,

therefore, will not ordinarily constitute a deprivation of a

constitutional right so long as alternative means, such as a

lawsuit, are open to an inmate to present his grievances. See

Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994); Lim, 2005 WL

1712202 at *4, n.13. Accordingly, as Palermo has not alleged the

violation of a cognizable constitutional right, I recommend that

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17

the inadequate grievance procedures claim be dismissed from this

action.

VI. Inadequate Medical Care Claim

To state a cause of action under § 1983 premised on

inadequate medical care, a plaintiff must allege facts which

demonstrate that the defendant or defendants acted with

deliberate indifference to the prisoner’s serious medical needs. 

Estelle, 429 U.S. at 106; Bean v. Cunningham, 650 F. Supp. 709,

713 (D.N.H. 1986). Deliberate indifference may be manifested by

prison medical personnel in their response to prisoners’ needs or

by prison personnel “intentionally denying or delaying access to

medical care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. As to the second

essential element, “[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.” Gaudrealt v.

Salem, 923 F.2d 203, 208 (1st Cir. 1990).

Palermo alleges here that he had a painful blood blister

which later resulted in a serious infection requiring surgery. 

Because a blood blister, which may or may not be serious at its

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18

inception, if not properly treated can quickly progress to a

serious condition, I find that it constitutes a serious medical

condition for purposes of requiring the attention of prison

medical personnel. Palermo alleges that Eastman denied him

proper medical care by simply handing him medical supplies and

telling him to pop and drain his blister himself, and then

placing him in unsanitary conditions to do so. Palermo alleges

that his surgical wound was improperly stitched by Dr. Soucey,

resulting in pain, bleeding, and permanent damage to Palermo’s

leg. These claims are sufficient to state a cause of action

against defendants Eastman and Soucey for the denial of adequate

medical care. In the Order issued simultaneously with this

Report and Recommendation, I will direct service of the

inadequate medical care claim against these defendants. 

VII. Canteen Claims

A. Canteen Proceeds

Palermo asserts a cause of action based on the alleged

funneling of canteen purchase proceeds from a fund to benefit

inmates to the general operating fund of the CCHC. Except for

asserting that such funds are supposed to be directed to items

that directly benefit the inmates, such as recreation items,

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19

books, and religious items, Palermo does not state what gave rise

to the requirement that the canteen proceeds be applied in a

particular manner. Even assuming that such a misappropriation of

inmate funds existed, and that Palermo, as an inmate, was damaged

by that misappropriation, Palermo fails to state a constitutional

due process claim. Palermo’s interest in the proceeds, or items

derived therefrom, is a property interest. Claims alleging the

theft, damage, loss or other misappropriation of property are not

actionable under 42 U.S.C. § 1983 where, as here, there is an

adequate post-deprivation state remedy available. Hudson, 468

U.S. at 533; see N.H. Rev. Stat. Ann. 541-B:9(II) & (IV), and

541-B:14 (1997) (providing a post-deprivation means of recouping

property loss attributable the state). Therefore, I recommend

that this claim be dismissed from this action.

B. Sale of Bulk Items

Palermo alleges that the CCHC canteen sells items that are

“not labeled for individual sale.” It is entirely unclear what

cause of action Palermo seeks to raise by this complaint. 

Because I cannot find that Palermo has a federal constitutional

right to canteen items labeled for individual sale, I recommend

that this claim be dismissed.

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20

Conclusion

For the foregoing reasons, I will direct, in an Order issued

simultaneously with this Report and Recommendation, that the

retaliatory transfer claim proceed against defendant Collins and

the inadequate medical care claims proceed against defendants

Eastman and Soucey. I recommend the dismissal of all of the

other claims in 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). 

/s/Justo Arenas

Justo Arenas

United States Magistrate Judge

Date: August 14, 2008

cc: Christopher Palermo, pro se

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