1Roberts does not explain who he intends to sue by naming

Prime Care Medical Services as a defendant in this action. For

purposes of preliminary review, I will assume that Prime Care

Medical Services is an agency that contracts with the SCDOC to

provide medical care to inmates who are in custody of the SCDOC.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Prealou J. Roberts

v. Civil No. 09-cv-34-PB

United States Marshals Service, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Prealou J. Roberts has filed a complaint,

pursuant to 42 U.S.C. § 1983, alleging that he was denied

adequate medical care and subjected to unnecessary surgery in

violation of his rights under the Fourteenth Amendment to the

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

law. Seeking injunctive and monetary relief, he brings this

action against the following individuals and entities: United

States Marshals Service; Wentworth Douglas Hospital; Prime Care

Medical Services1; Strafford County Department of Corrections

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 1 of 19
2I liberally construe the claims against the SCDOC to be

brought against Warren Dowaliby in his representative capacity as

Superintendent of the SCDOC.

2

(“SCDOC”)2; and Tracey Warren, an employee of the SCDOC. I

liberally construe the claims against the United States Marshals

Service, a federal agency, to be brought pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 397 (1971). 

The complaint is before me for preliminary review to

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

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

District Court for the District of New Hampshire Local Rule

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

Roberts has alleged the following claims: (1) Fourteenth

Amendment claims, premised upon the denial of adequate medical

care, against Warren and Prime Care Medical Services; and (2)

state law negligence claims against Prime Care Medical Services,

Wentworth Douglas Hospital and an unnamed surgeon employed by

that hospital. I recommend dismissal of all remaining claims.

Also filed is a motion to compel release of medical records

(document no. 9), motion to compel discovery (document no. 14), 

and motion to appoint counsel (document no. 10), which I

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 2 of 19
3

recommend be denied without prejudice to being renewed at a later

date should circumstances warrant renewal. As Roberts has been

granted in forma pauperis status, I recommend that his “motion to

proceed in forma pauperis for request of counsel” (document no.

11) be denied as moot.

Standard of Review

In conducting a 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

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).

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 3 of 19
3This action was transferred from the United States District

Court for the Southern District of New York on the basis that a

substantial part of the events or omissions giving rise to this

action allegedly occurred in New Hampshire.

4I liberally construe Roberts’ reference to Evail to mean

Elavil. “Elavil is a trademark for amitriptyline hydrochloride,

a tricyclic antidepressant sometimes used for the treatment of

chronic pain.” Dwyer v. Metropolitan Life INc. Co., 4 Fed. Appx.

133 (citing Dorland’s Illustrated Medical Dictionary, 1576 (28th

ed. 1994)).

4

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

Roberts is an inmate at the Otisville Federal Correctional

Institution in Otisville, New York.3 This action arises from

events that occurred in August 2007 while he was in custody of

the SCDOC in Dover, New Hampshire. At that time, Roberts

allegedly was taking a medication described as Elavil4. He

claims that prison officials followed a policy of crushing his

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 4 of 19
5

medication, which caused him to stop taking his medication. He

allegedly reported the problem to Warren, however, she failed to

remedy the problem or take any corrective action.

Roberts further alleges that while he was confined at the

SCDOC in August 2007, he was admitted to Wentworth Douglas

Hospital where he was subjected to two unnecessary surgeries that

were performed without his consent. First, he claims that he

underwent a biopsy of a growth on his spleen and discovered

afterwards that the surgeon had removed his entire spleen. 

Second, Roberts claims that a polyp was removed from his vocal

cord. He alleges that the United States Marshals Service, Prime

Care Medical Services and Warren, in her capacity as Head of the

SCDOC Medical Department, allowed Wentworth Douglas Hospital to

perform the unnecessary surgeries without Roberts’ consent. He

now brings this action, alleging that defendants’ acts and

omissions constitute a denial of adequate medical care in

violation of his rights under federal and state law. 

Discussion

I. Bivens Claims

Roberts broadly alleges that the United States Marshals

Service permitted employees of Wentworth Douglas Hospital to

perform two unnecessary surgeries without his consent. I

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 5 of 19
6

liberally construe his claims to be brought pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 397 (1971). 

The Supreme Court has declined to imply a Bivens action

against federal agencies or federal agents acting in their

official capacities. See FDIC v. Meyer, 510 U.S. 471 (1994);

accord Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214

(10th Cir. 2003) (holding that Bivens actions may not be filed

against federal agencies or federal agents acting in their

official capacities); Hatten v. White, 275 F.3d 1208, 1210 (10th

Cir. 2002) (same); Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.

2000) (“It is well settled that a Bivens action will not lie

against an agency of the federal government.”). Here, Roberts

names only a federal agency without identifying an individual

defendant. Because the United States Marshals Service is a

federal agency and, therefore, is not an appropriate defendant in

a Bivens action, see FDIC v. Meyer, 510 U.S. 471, 486-486 (1994),

I recommend dismissal of all claims against the United States

Marshals Service. 

II. Section 1983 Claims

Section 1983 creates a cause of action against those who,

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

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 6 of 19
7

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

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. 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 Roberts alleges a violation of federal

constitutional law, his suit arises under Section 1983.

A. Denial of Adequate Medical Care 

It appears that Roberts was a pretrial detainee at all times

relevant to this action. While the Fourteenth Amendment protects

pretrial detainees from denial of adequate medical care, the

analysis applied to such claims is practically identical to the

Eighth Amendment standard of deliberate indifference. See Brown

v. Budz, 398 F.3d 904, 910 (7th Cir. 2005). See also Burrell v.

Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002) (holding that

pretrial detainees are protected under the Fourteenth Amendment

Due Process Clause, rather than the Eighth Amendment, but are

afforded the same Eighth Amendment standards).

The Eighth Amendment protects convicted inmates from prison

officials acting with deliberate indifference to their serious

medical needs. See Farmer v. Brennan, 511 U.S. 825, 831 (1993). 

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 7 of 19
8

To state an Eighth Amendment claim premised on inadequate medical

care, “a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical

needs.” Estelle, 429 U.S. at 97. To be found deliberately

indifferent, a prison official “must both be aware of facts from

which the inference could be drawn that a substantial risk of

serious harm exists, and he must also draw the inference.” Id. 

See also Farmer, 511 U.S. at 837. Deliberate indifference may be

manifested by prison doctors in their response to the prisoner’s

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. “A

‘serious medical need’ 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.’” See Mahan v. Plymouth County House of

Corrections, 64 F.3d 14, 17-18 (1st Cir. 1995)(quoting Gaudreault

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

Construed liberally, the complaint in this action alleges

the minimal facts necessary to state a claim for the denial of

adequate medical care against Warren and Prime Care Medical

Services. First, Roberts has described a serious medical need,

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 8 of 19
9

namely that while confined at the SCDOC he suffered from both a

growth on his spleen that required a biopsy and a polyp on his

vocal cord. Second, he alleges deliberate indifference with

respect to the defendants by alleging that once they knew of his

medical condition they nevertheless denied him adequate medical

care and/or subjected him to unnecessary surgery. Specifically,

Roberts alleges that Prime Care Medical Services and Warren, in

her capacity as Head of the SCDOC Medical Department, allowed

Wentworth Douglas Hospital to perform two unnecessary surgeries

without his consent. The surgeries ostensibly included the

removal of Roberts’ entire spleen and the removal of a polyp from

his vocal cord. 

If true, the allegations may demonstrate that the actions by

Warren and Prime Care Medical Services prevented Roberts from

receiving adequate care for a serious medical condition and/or

that he was subjected to unnecessary surgery. Because Roberts’

allegations are sufficient to state a claim under the Eighth

Amendment, I find that his allegations are sufficient to state a

claim under the Fourteenth Amendment. Accordingly, I find that

he has stated Fourteenth Amendment claims, premised upon the

denial of adequate medical care, against Warren and Prime Care

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 9 of 19
5I presume that Prime Care Medical Services is a private

health care provider that contracts with the SCDOC to provide its

inmates with medical services. Although Prime Care Medical

Services may be a private entity and ordinarily not subject to

liability under Section 1983, I find that it may be held

accountable for constitutional deprivations arising from medical

care provided at the SCDOC by virtue of its contractual

relationship. See Lewis v. Law-Yone, 813 F. Supp. 1247, 1254

(N.D. Tex. 1993) (explaining how a private party may be so

closely aligned with a liable governmental entity that it may

fairly be accorded the liability of that entity). See also West

v. Atkins, 487 U.S. 42, 56 (1988) (finding that a private

physician who contracted to provide medical services to a state

prison on a part-time basis acted under color of state law for

purposes of Section 1983 when treating an inmate’s injury).

10

Medical Services.5 To the extent Roberts intends to allege

similar Fourteenth Amendment claims against Dowaliby and the

SCDOC, I conclude that he has failed to allege sufficient

predicate facts and, therefore, recommend dismissal of such

claims.

B. Denial of Medication

Construed liberally, the complaint alleges a Fourteenth

Amendment claim against Warren based on the denial of medication. 

While confined at the SCDOC, Roberts allegedly was prescribed a

medication identified as Elavil. He alleges that the SCDOC’s

policy of crushing his medication effectively forced him to stop

taking the medication. He further alleges that he reported the

problem to Warren but that she failed to remedy the problem or

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 10 of 19
11

take any corrective action. Even construed liberally, the

complaint fails to allege sufficient predicate facts to state a

cognizable claim against Warren. Roberts has not identified the

condition for which the medication was prescribed. Nor has he

identified any injury resulting from the denial of medication or

any other act or omission by Warren. Accordingly, I recommend

that the Fourteenth Amendment claim against Warren, premised upon

the denial of medication, be dismissed.

III. Municipal Liability

Named as a defendant in this action is the SCDOC, a

municipal entity. Municipalities and local government entities

are “persons” within the meaning of Section 1983. See Monell v.

Dep=t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipal

entity cannot be held liable under Section 1983 on a theory of

respondeat superior or vicarious liability; rather the

municipality itself must proximately cause the constitutional

injury, through promulgation or tacit approval of a policy or

custom. See Canton v. Harris, 489 U.S. 378, 385 (1989).

In this action, if Roberts intends to pursue claims against

the SCDOC he must, at a minimum, allege that the constitutional

deprivations were the product of a municipal custom or policy. 

Even liberally construing the complaint, I cannot reasonably

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 11 of 19
12

conclude that the wrongful conduct ascribed to the defendants was

the product of any unconstitutional municipal custom or policy. 

Instead, the complaint plainly alleges that the wrongful conduct

to which Roberts was subjected resulted from the actions taken by

individual defendants and not as the result of a policy

statement, ordinance, regulation or officially adopted decision. 

See Monell, 436 U.S. at 690. Accordingly, I conclude that the

complaint fails to state a viable claim premised upon municipal

liability and, therefore, recommend that the SCDOC be dismissed

from this action.

Construed liberally, the complaint also names Dowaliby, in

his representative capacity as Superintendent of the SCDOC, and

Warren, in his or her official capacity as an officer of the

SCDOC. Official capacity suits against officers of an agency are

simply “another way of pleading an action against an entity of

which an officer is an agent.” Monell, 436 U.S. at 690 n.55. 

See also Brandon v. Holt, 469 U.S. 464, 471 (1984)(suits against

parties in their official capacities treated as suits against the

municipality). Because I find no municipal liability as to the

SCDOC, I extend that reasoning to Dowaliby and Warren and

conclude that any official capacity claims against them must

fail.

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 12 of 19
13

IV. Request for Criminal Prosecution

Roberts requests this court to initiate criminal

prosecutions against the defendants, pursuant to 42 U.S.C. §

1983, for constitutional deprivations that he allegedly suffered

as a result of being denied adequate medical care and being

subjected to unnecessary and unauthorized surgeries. 

As explained above, to state a claim under Section 1983, a

plaintiff must demonstrate a violation of the United States

Constitution or federal law. See 42 U.S.C. ' 1983; Parratt, 451

U.S. at 535; Rodriguez-Cirilo, 115 F.3d at 52. 1997). There is

no constitutional right to have someone criminally prosecuted. 

See Oliver v. Collins, Civil Action No. H-09-0749, 2009 WL

960187, slip op. at *3 (S.D. Tex. April 7, 2009). “[A] private

citizen lacks a judicially cognizable interest in the prosecution

or nonprosecution of another.” Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973). Thus, Roberts’ request for criminal

prosecution is without an arguable basis in law. See Oliver,

2009 WL 960187, slip op. At 3. Accordingly, I recommend that his

claim be dismissed for failure to state a claim upon which relief

may be granted.

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 13 of 19
14

V. State Law Claims

A. Claims Against Prime Care Medical Services

Construed liberally, the complaint alleges state law

negligence claims against Prime Care Medical Services, Wentworth

Douglas Hospital and an unnamed surgeon employed by that

hospital. Roberts appears to allege that by denying him adequate

medical care and subjecting him to two unnecessary surgeries

without his consent, defendants’ actions constitute negligence

under New Hampshire law.

The state law claim against Prime Care Medical Services

allegedly stems from the injuries Roberts sustained as a result

of being denied adequate medical care. His state law claim,

therefore, appears to be so related that it forms part of the

“same case or controversy” of his Fourteenth Amendment 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 the state law negligence

claims against Prime Care Medical Services.

B. Claims Against Wentworth Douglas Hospital

and the Unnamed Surgeon

Construed liberally, the complaint invokes the diversity

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 14 of 19
15

jurisdiction of this court, pursuant to 28 U.S.C. § 1332, as an

independent basis for asserting state law negligence claims

against Wentworth Douglas Hospital and an unnamed surgeon

employed by that hospital. Where, as here, a plaintiff invokes

diversity jurisdiction, a complaint must allege complete

diversity of citizenship between plaintiff and defendants as well

as an amount in controversy in excess of $75,000, exclusive of

interest and costs. See 28 U.S.C. § 1332. See also Straughn v.

Delta Air Lines, Inc., 170 F. Supp. 2d 133, 146 (D.N.H.

2000)(citations omitted). “Diversity jurisdiction exists only

when there is complete diversity, that is, when no plaintiff is a

citizen of the same state as any defendant.” Gabriel v. Preble,

396 F.3d 10, 13 (1st Cir. 2005).

Here, Roberts alleges an amount in controversy in excess of

$75,000. He also alleges complete diversity of citizenship

between the parties. The defendants in this action appear to be

citizens of New Hampshire. Roberts is incarcerated in New York

and upon his release from prison allegedly intends to reside in

Maine. Where a prisoner intends to live in another state upon

his release from prison and is assigned to a prison in that

state, his domicile becomes that state. See Smith v. Cummings,

445 F.3d 1254, 1259-1260 (10th Cir. 2006). Factors to be

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 15 of 19
6If Roberts wishes to pursue claims against the unnamed

surgeon, he will have to obtain his or her full name through

discovery and appropriately move to amend the complaint. He can

serve the named defendants with interrogatories to obtain the

full names of the unnamed defendant pursuant to Fed. R. Civ. P.

33(a)(1) (providing, in part, that “[u]nless otherwise stipulated

or ordered by the court, a party may serve on any other party no

more than 25 written interrogatories, including all discrete

subparts. . . . )

 

Pursuant to Fed. R. Civ. P. 33(b)(1) (A) and (B), the

interrogatories must be answered by the party to whom they are

16

considered in determining domicile include the prisoner’s

declaration of his intentions, the manner in which he has ordered

his personal and business transactions and any other factors that

are relevant to the corroboration of his statements. Id. While

Roberts has not been assigned to a prison in Maine, he alleges

that upon his release from prison he intends to live in Maine

where he alleges he will have custody of his two-year-old

daughter. For purposes of preliminary review and accepting the

allegations in the complaint as true, I will presume that Roberts

is a resident of Maine.

For the foregoing reasons, I conclude that the parties to

this action are diverse. Accordingly, I find that Roberts has

pled diversity jurisdiction under 28 U.S.C. § 1332 and that this

court has jurisdiction over his state law negligence claims

against Wentworth Douglas Hospital and the unnamed surgeon.6

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 16 of 19
directed or, “if that party is a public or private corporation, a

partnership, an association, or a governmental agency, by any

officer or agent, who must furnish the information available to

the party.” Roberts is further instructed to forward a separate

summons to this court with each defendant’s proper name.

17

VI. Motion for Appointment of Counsel

Roberts moves for appointment of counsel (document no. 10).

To justify appointment of counsel, an indigent litigant must show

that exceptional circumstances exist, such that without counsel

the litigant most likely would be unable to obtain due process of

the law. See DesRosiers v. Moran, 949 F.2d 15, 23-24 (1st Cir.

1991). Both the type and complexity of the case and the ability

of the individual bringing the claim must be evaluated by a court

in determining whether exceptional circumstances exist which

warrant the appointment of counsel. Id. Here, Roberts has not

demonstrated an inability to litigate or other exceptional

circumstances to justify the appointment of counsel. To the

contrary, he has filed an articulate complaint in which he has

presented his claims clearly and effectively. At this

preliminary stage in the proceedings, appointment of counsel does

not appear to be necessary. Having considered his circumstances

and the applicable law regarding his rights to legal

representation, I recommend that his motion be denied without

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 17 of 19
18

prejudice to its being renewed at a later date should

circumstances warrant renewal.

Conclusion

For the reasons stated above, I find that Roberts has

alleged the following claims: (1) Fourteenth Amendment claims,

premised upon the denial of adequate medical care, against Warren

and Prime Care Medical Services; and (2) state law negligence

claims against Prime Care Medical Services, Wentworth Douglas

Hospital and an unnamed surgeon employed by Wentworth Douglas

Hospital. I recommend dismissal of all remaining claims.

I further recommend that Roberts’ motion to compel release

of medical records (document no. 9), motion to compel discovery

(document no. 14) and motion to appoint counsel (document no. 10)

be denied without prejudice to being renewed at a later date

should circumstances warrant renewal. As Roberts has been

granted in forma pauperis status, I recommend that his “motion to

proceed in forma pauperis for request of counsel” (document no.

11) be denied as moot. Accordingly, by separate order issued

simultaneously herewith, I authorize the above viable claims to

proceed. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

Case 1:09-cv-00034-SM Document 16 Filed 04/30/09 Page 18 of 19
19

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

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: April 30, 2009

 cc: Prealou J. Roberts, pro se

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