1Nagle has filed two related actions, civil nos. 08-cv-432-

SM and 08-cv-445-JL, in which he alleges similar claims against

additional defendants.

2I liberally construe the claim against the NHSP to be

brought against Gerry in his representative capacity as Warden of

the NHSP.

3The body of the complaint refers to Jorgenson and unnamed

“multiple defendants.” Because Nagle names Jorgenson and four

unnamed corrections officers as defendants in a separate action,

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Adam H. Nagle

v. Civil No. 08-cv-413-JL1

New Hampshire State Prison, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Adam H. Nagle has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that defendants have

violated his rights under the Eighth Amendment to the United

States Constitution and New Hampshire law (document no. 1). 

Seeking injunctive and monetary relief, he brings this action

against two employees of the New Hampshire State Prison (“NHSP”):

Warden Richard M. Gerry2; and corrections officer Parent (first

name unknown).3 

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 1 of 12
civil no. 08-432-SM, in which he alleges similar claims against

them, I construe this action to be brought solely against Gerry

and Parent.

2

The complaint is before me for preliminary review to

determine whether, among other things, it states a claim upon

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

States District Court for the District of New Hampshire Local

Rule (“LR”) 4.3(d)(2). For the reasons stated below, I find that

Nagle has stated the following claims against Parent in his

individual capacity: (1) Eighth Amendment claim alleging use of

excessive force; and (2) related state law claim alleging

intentional infliction of emotional distress. I recommend

dismissal of all remaining claims.

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

liberally construes pro se pleadings, 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

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 2 of 12
3

pleadings liberally in favor of the pro se party). See also

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). “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.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997).

At this preliminary stage of review, all factual assertions

made by the 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

This action stems from Nagle’s confinement in the secured

housing unit (“SHU”) at the NHSP and corrections officers’

alleged use of excessive force against him while he was

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 3 of 12
4I construe Nagle’s reference to “occupant” to mean

cellmate(s).

4

experiencing seizures. Upon entering SHU, Nagle notified

corrections officers that he suffered from a medical condition

that caused him to experience seizures. He previously suffered

two seizures while confined at the NHSP, and during one episode

he sustained injuries to his head and neck and was hospitalized. 

While confined in a cell on “A” tier, Nagle and corrections

officers informed his cellmate(s)4 of his medical condition and

instructed them to notify the officers by flagging for assistance

when Nagle was experiencing a seizure. The officers allegedly

explained that “flagging” was waiving a white sheet or towel

outside a cell door to alert officers of the need for emergency

assistance. On several occasions, Nagle’s cellmates on “A” tier

flagged officers for emergency assistance when he was

experiencing seizures, however, fifteen to thirty minutes elapsed

before officers responded.

The incident at issue in this action occurred in June 2008,

while Nagle was confined in SHU and was awaiting available bed

space in the Hancock Building. During that time, Parent

allegedly was in charge of SHU, and all other officers reported

to him. While Nagle was experiencing a seizure, officers

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 4 of 12
5

allegedly entered his cell and ordered his cellmate to leave. 

Several other officers, including Parent, were standing at the

cell door. At that time, witnesses allegedly recounted, Nagle

was actively in a seizure and experiencing convulsive muscle

movement along with clenched hands and eyes rolling into the back

of his head. He allegedly was nonresponsive.

Parent allegedly held Nagle by the wrists and, when his arms

convulsively pulled away, ordered Jorgenson and the other

officers to “take him down.” The officers and Parent pulled

Nagle off of his bed and onto the floor, face first. Parent then

ordered the officers to flip Nagle onto his back while he was

still actively seizing. Parent further ordered the officers to

pin Nagle down by the arms, legs and head while Parent strattled

him. At that point, while Jorgenson was kneeling on Nagle’s

right wrist with both knees and attempting to pin down his arm,

Nagle experienced a seizure-induced muscle spasm and lifted the

officer off of the ground. The other officers knelt with full

weight on Nagle’s arms, legs, head, neck and groin, and Parent

continued to strattle Nagle and began slapping his chest and

face. Within a few minutes, the seizure allegedly faded, and

Nagle was checked by a nurse and given ice for a large purple

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 5 of 12
5The claims as identified herein will be considered for all

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

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

by proper objection to this report and recommendation or by

properly moving to amend his complaint.

6

lump on his head. As a result of defendants’ actions, Nagle

allegedly sustained injuries to his head, forehead, neck, right

elbow, left shoulder and groin. He also allegedly sustained

injuries to his joints from hyperextension and endured

unnecessary pain and suffering.

On September 27, 2008, Parent ordered Nagle to report to him

for purposes of answering a request form and at that time

questioned Nagle for twenty to thirty minutes about this action. 

Parent allegedly tried to manipulate Nagle into “changing time

frames of the occurrences and downplayed his role in the abuse.” 

Nagle now brings this civil rights action, alleging that

defendants’ acts and omissions violate his rights under Section

1983 and New Hampshire law.

Discussion5

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 6 of 12
7

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional deprivation. 

A. Use of Excessive Force

In June 2008, Parent allegedly used excessive force against

Nagle while he was experiencing a seizure, thereby violating his

Eighth Amendment right to be free from cruel and unusual

punishment. 

In a prison setting, the use of excessive force against a

prisoner is analyzed under the Eighth Amendment prohibition

against cruel and unusual punishment. See Whitley v. Albers, 475

U.S. 312, 319-20 (1986). See also See Davis v. Rennie, 264 F.3d

86, 98 n.9 (1st Cir. 2001) (citing Hudson v. McMillian, 503 U.S.

1, 4 (1992)(“A convicted prisoner may bring a claim for use of

excessive force under the Eighth Amendment.”) To state an Eighth

Amendment claim for the use of excessive force by prison guards,

an inmate must demonstrate “unnecessary and wanton infliction of

pain.” Whitley, 475 U.S. at 319-20. “[T]he core judicial

inquiry is . . . whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 7 of 12
8

sadistically to cause harm.” See Hudson, 503 U.S. at 7 (citing

Whitley, 475 U.S. at 320-21). To prevail on an excessive force

claim, a plaintiff must show that the alleged use of force is

“objectively sufficiently serious or harmful enough” to be

actionable. Hudson, 503 U.S. at 8; accord United States v.

Walsh, 194 F.3d 37, 50 (2d Cir. 1999). An excessive force claim

may be established even if the plaintiff does not suffer serious

or significant injury, if he can demonstrate that the amount of

force used is more than de minimis, or otherwise involves force

“repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-

10.

Here, Nagle alleges that in June 2008 while he was confined

in SHU, Parent and several unnamed NHSP corrections officers

entered his cell and used excessive force against him while he

was experiencing a seizure and while he was nonresponsive. 

Parent allegedly demonstrated deliberate indifference to Nagle’s 

safety by ordering corrections officers to forcefully pull him

off of his bed and onto a concrete floor, face first, and pin him

down while he was experiencing a seizure. Parent allegedly

further demonstrated indifference to Nagle’s safety by

restraining Nagle and ordering the officers to flip him onto his

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 8 of 12
9

back while he was still actively seizing and pin him down by the

arms, legs and head. Nagle further alleges that Parent permitted

or ordered the officers to kneel with full weight on his right

wrist, arms, legs, head, neck and groin; at that same time,

Parent strattled Nagle and began slapping his chest and face. 

As a result of Parent’s actions, Nagle allegedly sustained

injuries to his head, forehead, neck, right elbow, left shoulder,

joints and groin and endured unnecessary pain and suffering. 

Nagle claims that because he was on a secure mattress with

blankets and padding to protect his head, it was unnecessary for

him to be moved. Parent allegedly is trained in basic emergency

response and should have been able to understand the possibility

of injury. After the incident, Parent allegedly questioned Nagle

about this civil rights action, tried to manipulate him into

“changing time frames of the occurrences”, and “downplayed his

role in the abuse.” 

Nothing in the record suggests that Nagle provoked the

incident or otherwise posed an immediate threat to the safety of

the corrections officers or the security of the prison. Nor is

there any indication that excessive force was used by the

officers in a good-faith effort to maintain or restore

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 9 of 12
10

discipline. For purposes of preliminary review, I find that

Nagle has alleged an Eighth Amendment excessive force claim

against Parent. 

To the extent Nagle alleges an excessive force claim against

Gerry, I find that he has failed to state a cognizable claim. 

Nagle has not alleged that Gerry was present during the incident,

that he was informed of the incident or that he condoned the

actions by the subordinate officers. Because Nagle has failed to

allege sufficient predicate facts to state a cognizable Eighth

Amendment excessive force claim against Gerry, I recommend

dismissal of the claim against him.

II. State Law Claim

Nagle alleges that the same conduct that violated his Eighth

Amendment right to be free from use of excessive force also

violated his right to be free from intentional infliction of

emotional distress under New Hampshire law. Nagle appears to

allege that by using excessive force against him while he was

suffering a seizure, Parent caused him to experience severe

emotional distress and harm. 

Nagle’s state law claim allegedly stems from the injuries he

sustained as a result of Parent’s actions and, therefore, appears

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 10 of 12
11

to be so related that it forms part of the “same case or

controversy” of the Eighth Amendment excessive force claim. See

28 U.S.C. § 1367(a) (providing for supplemental jurisdiction over

claims that are so related they form part of the same case or

controversy). Accordingly, I conclude that this court may

exercise supplemental jurisdiction over Nagle’s state law claim

for intentional infliction of emotional distress against Parent.

Conclusion

For the reasons stated above, I find that Nagle has alleged

the following claims against Parent in his individual capacity:

(1) Eighth Amendment claim alleging use of excessive force; and

(2) related state law claim alleging intentional infliction of

emotional distress. I recommend dismissal of all remaining

claims. Accordingly, by separate order issued simultaneously

herewith, I authorize the above viable claims to proceed against

Parent. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

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

plaintiff disagrees with the identification of the claims herein,

he must do so by objection filed within ten (10) days of receipt

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 11 of 12
12

of this report and recommendation, or he must properly move to

amend the complaint. 

Any further objection 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 28 U.S.C. § 636(b)(1);

see also Unauthorized Practice of Law Committee 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: December 18, 2008

cc: Adam H. Nagle, pro se

Case 1:08-cv-00413-JL Document 5 Filed 12/18/08 Page 12 of 12