1In addition to Wrenn, Hazelton names New Hampshire

Department of Corrections Deputy Commissioner Christopher Kench

and Northern New Hampshire Correctional Facility employees Cpl.

Shane Mailhot, Librarian Angela Poulin, Corrections Officer

(“C.O.”) Timothy Overhoff, C.O. Lemieux, C.O. Trevor Dube, Unit

Manager Robert Thyng, C.O. Walter Westbury, Cpl. Edward

MacFarland, and Warden Larry Blaisdell as defendants to this

action.

2I further construed the action as alleging a violation of

Hazelton’s rights under the Americans with Disabilities Act, 42

U.S.C. 12132, et seq. (“ADA”).

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Timothy W. Hazelton, Sr.

v. Civil No. 08-cv-419-JL

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.1

REPORT AND RECOMMENDATION

Timothy Hazelton brought this action, pursuant to 42 U.S.C.

§ 1983, complaining that his Eighth Amendment right to humane

conditions of confinement have been violated by defendants

(document no. 1).2 Upon preliminary review of this matter, I

construed the complaint as containing a request for preliminary

injunctive relief. The matter was referred to me (document no.

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 1 of 31
3Hazelton has submitted a document to the Court entitled

“Closing Argument” (document no. 12). It appears from that

document that Hazelton believes that the hearing held was, in

fact, a trial on his underlying action. It was not. I have

directed that his underlying action proceed, but that action has

not yet been tried. The only matter for consideration before

this Court at this time is whether or not the defendants should

be subject to an Order of this Court regarding Hazelton’s access

to the bathroom during the pendency of this matter.

2

5), and a hearing was held before me on Hazelton’s request for a

preliminary injunction on November 20 and 21, 2008.3 For the

reasons explained herein, I recommend the issuance of an

injunction requiring the defendants to, except in the event of an

institutional emergency or other exceptional circumstance: (1)

insure that Hazelton have access to the nearest inmate bathroom

no more than five minutes after he requests the use of a

bathroom, whether for urination or defecation, (2) insure that

Hazelton can immediately return to any activity or visit

interrupted by his use of the bathroom, even if returning to that

activity or visit means that Hazelton must travel from his unit

to his activity or visit outside of a scheduled “movement” time,

and (3) insure that Hazelton will not be harassed, mistreated, or

subject to any negative consequences as a result of his bathroom

needs or requests. 

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 2 of 31
3

Background

Timothy Hazelton is a forty-six year old inmate at the

Northern New Hampshire Correctional Facility (“NCF”), where he

has been housed by the New Hampshire Department of Corrections

(“NHDOC”) since February 23, 2006. Hazelton suffers from an

enlarged prostate and from irritable bowel syndrome. As a

consequence of his medical issues, Hazelton has to urinate and

defecate more frequently than the average person, and when he

feels the urge to either urinate or defecate, he is not able to

“hold it,” but must get to a bathroom right away in order to

avoid soiling his clothing.

When Hazelton arrived at NCF, he fully apprised medical

personnel there of his medical issues, including his bathroomrelated needs. Judy Baker, a nurse practitioner on the NCF

medical staff, subsequently issued him a permanent “medical

pass,” which advises NCF staff of his medical needs and entitles

him to a waiver of certain prison policies and procedures, to the

extent they interfere with his ability to use the bathroom as

necessitated by his medical conditions. Specifically, the passes

issued to Hazelton direct prison staff that he is to be allowed

to use the bathroom when needed without 

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 3 of 31
4Both plaintiff and defendants have submitted post-hearing

pleadings outlining their summations on the question of whether

or not a preliminary injunction should issue in this matter

(document nos. 12 - 15). Both plaintiff and defendants have

presented additional factual information in these pleadings that

they did not present at the hearing. I will not accept new

evidence at this time that is not subject to cross-examination. 

Even if accepted, however, the factual information presented in

the post-hearing pleadings would not alter my determination of

this matter.

4

terminating his activities or visitation when they are

interrupted by his bathroom needs. 

Evidence at the hearing came from a number of witnesses,

including Hazelton, NCF Major Dennis Cox, Baker, NCF C.O.s Masse,

Westbury, Dube, Overhoff, NCF Media Generalist Angela Poulin, NCF

Cpl. Shane Mailhot, NCF Sgt. Edward McFarland, Jr., NCF Unit

Manager Robert Thyng, and NCF inmates Andrew Parker, Richard

Castine, Kerry Kidd, Christopher Cremeans, Alexander Gagnon, Jr.,

and Mark Holt.4 A number of exhibits were also accepted in

evidence at the time of the hearing. Based on the evidence

presented, I find the relevant facts as follows.

Hazelton has two serious medical conditions, irritable bowel

syndrome and an enlarged prostate, which are known to the NCF

staff. Baker testified that, on average, Hazelton would likely

be able to wait five minutes before his need to void or defecate

would overcome his ability to control those functions. Baker

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 4 of 31
5

testified that in some circumstances, this time period could be

slightly more or less than five minutes. Baker also testified

that this is not a condition Hazelton relishes and that he is

working with the NCF medical department as well as a urologist to

find a treatment or medication that might alleviate or ameliorate

the symptoms at issue here.

Evidence Concerning Visiting Room

Hazelton testified that he receives approximately three

visits a year, and that his family has to travel several hours to

see him. He further testified that on one or more occasions, he

was forced to choose between early termination of his visits and

defecating in his clothing. While Hazelton appears to have

chosen to terminate his visits early most of the time, he stated

that on at least one occasion he defecated in his clothing during

his visit, because he was not allowed to use the inmate bathroom

and did not want to return to his unit and terminate his visit.

Witnesses Masse and Westbury testified that NCF security

regulations allow inmates to use the inmate bathroom located near

the visiting room, but only to urinate. If an inmate needs to

defecate during a visit, he must either wait until the end of the

visit, or terminate his visit and return to his housing unit to

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 5 of 31
6

use the toilet there. Westbury specifically testified that he

would not alter this procedure, even if an inmate possessed a

medical pass directing him to allow the visits to continue after

the inmate is allowed to use the bathroom. 

The justification offered by defendants’ witnesses for the

visiting room bathroom policy is that inmate visitation provides

an opportunity for inmates to receive contraband from visitors,

and that such contraband might be placed by an inmate into his

own rectum if he were allowed to use the bathroom in the visiting

area to defecate. The officers testified that for an inmate to

use the bathroom to urinate, an additional officer has to be

called to the visit room to accompany the inmate to the bathroom. 

The inmates enter the bathroom and, it appears, an officer stands

outside. What prevents a urinating inmate from inserting

contraband into his rectum while urinating is unclear, although

the officers seemed to think that was unlikely to occur while an

inmate was standing up to urinate. None of the officers

testified as to whether any other measures, such as stationing an

officer inside the bathroom while an inmate defecates, or having

an officer conduct a search of an inmate prior to allowing him to 

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 6 of 31
7

defecate, would impose any sort of undue burden on the

institution or would undermine institutional security efforts. 

The officers testified that inmates undergo a strip search

prior to returning to their housing unit after a visit. No

cavity searches are routinely conducted, although there is a

procedure available for conducting such a search. Specifically,

a cavity search must be authorized, and a nurse or other medical

professional must be contacted to conduct the search. While a

cavity search clearly imposes a greater burden on the institution

than a non-cavity strip search, it is unclear whether such a

search would be unduly burdensome if conducted only on Hazelton

on those occasions when he needs to defecate during a visit. Any

burden the accommodation might place upon the institution is

minimal compared to the benefit to Hazelton, who would, if

accommodated, be able to fully enjoy his visitation time with his

family.

Testimony from the visitation room officers also included

speculation that, were Hazelton allowed to use the inmate

bathroom in the visitation room to defecate, he would be targeted

by other inmates to be a “mule.” Specifically, the officers

expressed concern that inmates would pressure Hazelton to smuggle

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 7 of 31
8

contraband in his rectum for them from people in the visitation

area. While I believe this concern is legitimate, it is also

speculative. The officers presented no testimony that this has

actually occurred, or that no other adequate means, such as

cavity searches for inmates who have defecated in the inmate

visiting room bathroom or strip searches conducted prior to

bathroom use, exist. This concern was also undermined by the

fact that one of the officers testified that on several occasions

he had allowed inmates to defecate in the inmate visitation area

bathroom.

While the officers testified that an early termination of a

visit by an officer would generate a report, and that no such

report existed for Hazelton, the testimony also revealed that if

an inmate voluntarily terminated his visit in order to return to

his housing unit to defecate, that no report would be generated. 

Accordingly, there is no written record available to either prove

or disprove Hazelton’s account of events in the visitation room. 

I find, that there is no reason to disbelieve Hazelton’s

testimony regarding what has occurred during his visitation. 

Hazelton testified credibly and, I believe, quite openly about

embarrassing and humiliating events. Additionally, Hazelton’s

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 8 of 31
9

testimony on this point was corroborated by Mark Holt, Hazelton’s

cellmate at NCF. Holt testified that on one occasion he actually

saw Hazelton return to his cell with his clothing soiled as a

result of not being able to reach a bathroom in time. 

Additionally, Holt testified that he was aware of other occasions

when Hazelton had soiled his clothing, disposed of it on his own,

and reported the clothing lost in the laundry. 

Hazelton’s testimony regarding his experiences in the

visitation room was not adequately countered by the correctional

officers, who could only state that they did not recall Hazelton

being forced to choose between his family visit and using the

bathroom, and that they were not aware of any instance in which

Hazelton defecated in his clothing during a visit. The officers’

testimony that Hazelton was not provided with any special

consideration for his medical condition, considered in

conjunction with Nurse Baker’s testimony regarding the effects of

those conditions, actually strengthen Hazelton’s testimony that

he was forced to choose between risking defecating in his pants

and cutting his visits short. 

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 9 of 31
10

Evidence Concerning Education Department at NCF

The NCF Education Department (“ED”) includes the

institution’s chapel, classrooms, and libraries. Hazelton works

in the chapel five mornings a week, Monday through Friday, for

approximately three and a half hours a day. Hazelton also

regularly visits the chapel on all days of the week for religious

services. Hazelton attends classes and piano lessons in the ED,

and uses the law library as necessary. The ED is equipped with

two inmate bathrooms which are kept locked at all times, except

between 9:00 and 9:30 each morning when they are cleaned. Cpl.

Mailhot is the officer in charge of the ED and its security. In

that capacity, he is the person to whom a request to use the

bathroom, and to unlock the bathroom first, must be made. 

Inmates do not have unimpeded access to bathrooms in the ED, but

must request that the bathrooms be unlocked or, in the event that

the bathrooms are already unlocked for cleaning, must alert NCF

staff that they are going to use the bathroom.

Hazelton alleges that the NCF staff members who work at NCF

generally and in the ED specifically, and named as defendants to

this action, have not allowed him to use the bathroom as

necessary. Instead, defendants have significantly delayed

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 10 of 31
11

granting, or altogether denied, his requests to use inmate

bathrooms, or effectively terminated his activities in the ED if

he has to return to his housing unit to use the bathroom during

those events. Hazelton testified that he and other inmates often

have to wait fifteen minutes to use a bathroom, and that it is

not uncommon for an inmate to have to wait thirty to forty

minutes or more for Mailhot to unlock an inmate bathroom in the

ED. Hazelton also testified that he is rarely allowed to use the

bathroom more than once a morning, and never more than twice. 

Hazelton stated that frequent inmate requests to use the bathroom

“upset” Mailhot. Sometimes, Hazelton testified, Mailhot simply

denies him the use of the bathroom in the ED, requiring him to

return to his housing unit to use the bathroom prior to

completing his activity.

Hazelton is then prevented from returning to the ED to

complete his activity unless he happens to use the housing unit

bathroom during a “movement” period, when inmates are permitted

to move to different locations within the institution. Such

movements occur for ten minutes once, or sometimes twice during

an hour. Accordingly, returning to his housing unit to use the

bathroom often results in Hazelton being unable to return to

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 11 of 31
12

chapel services, being forced to terminate his class or lesson

early, or being made to leave the library before his work there

is done.

Mailhot testified at the hearing that it takes approximately

three to four minutes to respond to an inmate’s request to use an

inmate bathroom, and that no inmate has ever had to wait longer

than that to use a bathroom on his watch. Mailhot further

testified that he has never limited the number of times a day an

inmate can use the inmate bathrooms in the ED, and has never

required an inmate to leave the ED and return to his housing unit

to use the bathroom. Mailhot testified that he had only required

Hazelton to leave work and go to his housing unit once, and that

was due to Hazelton being ill that day. 

In addition to Mailhot, Hazelton reports that on at least

one occasion, he was prevented from timely use of the inmate

bathrooms in the ED by Angela Poulin, NCF’s librarian, who

questioned him as to why he had to use the bathroom and, when he

explained his medical pass, Poulin became irritated, summoned

Mailhot, and advised him that Hazelton was giving her a hard

time. Mailhot sent Hazelton back to his housing unit to use the 

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 12 of 31
13

bathroom, causing Hazelton to terminate his trip to the library,

where he was waiting for legal copies to be made. 

Mailhot testified that he had no memory of this incident. 

Poulin testified that she did have a conversation with Hazelton

in the library about bathroom use. While Poulin did not remember

specifics of the conversation, she said she follows a securitybased policy that prohibits inmates from using the bathrooms in

the ED unless they are in the library for more than two hours. 

Poulin stated that, because plaintiff claimed that he had medical

issues and needed to use the bathroom for that reason, she

referred him to Mailhot. Poulin testified she did not recall

being upset by Hazelton’s behavior during this incident, and that

she did not write a disciplinary incident report regarding this

incident. 

Hazelton reported that other officers participate in making

this an ongoing issue and problem for inmates, particularly those

with medical needs that cause them to use the bathroom more

frequently than average, or with more urgency than average. 

Hazelton names NCF officers Dube, Westbury, Overhoff, and Lemieux

as participating in creating and maintaining impediments to

adequate bathroom use for himself and other inmates.

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 13 of 31
14

Several inmates other than Hazelton testified to counter

Mailhot’s assertion that no one ever waited more than a few

minutes to use the bathroom in the ED, or was denied the use of a

bathroom at the ED and instead sent back to their unit. Inmate

Kerry Kidd stated that he too has been refused bathroom use by

Mailhot in the ED, and that he has had to wait up to forty

minutes for Mailhot to unlock the bathroom while he was using the

law library. Kidd further testified that even though he had

complained to the NCF Warden in writing and at an inmate-warden

meeting, the situation had not improved. Kidd stated that he had

stopped going to the library or spending any length of time in

the ED at all, when possible, in order to avoid the “headache” of

obtaining access to a bathrooms there. Kidd also testified he

had seen other inmates wait for more than a few minutes to use

the bathroom in the ED. In the library in particular, Kidd

stated, delays in gaining access to a bathroom are significant,

as an inmate first must notify Poulin that he needs a bathroom,

who then notifies Mailhot, who then “takes his time” in opening

the bathroom. Kidd stated that instead of waiting for a bathroom

to be opened, he has opted in the past to cut his library time

short in order to return to his housing unit on a movement.

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 14 of 31
15

Inmate Alexander Gagnon testified that he has prostate

cancer and, therefore, has to use the bathroom with some

frequency. He also goes to the chapel frequently. Gagnon

testified that on at least three occasions Mailhot refused to let

him use the bathroom if he requested to go more than once during

a visit to ED. Instead, Mailhot would send him to his unit,

preventing him from returning to the chapel because it was not a

movement period. In order to avoid missing religious services,

Gagnon testified he has waited for Mailhot to unlock the door for

up to an hour, and once waited for two and a half hours. Gagnon

testified that although it causes him to miss time in the chapel,

he often returns to his housing unit to use the bathroom because

it is easier than waiting for Mailhot to open a bathroom.

Inmate Andrew Parker testified that he is diabetic and takes

water pills, which causes him to have to use a bathroom

frequently. Although Parker advised Mailhot of his medical

condition, he has had to wait for up to forty-five minutes for

Mailhot to unlock a bathroom for him, and that twice Mailhot

denied him the use of an inmate bathroom in the ED and sent back

to his housing unit to use the bathroom there instead. Parker

reports he has had to leave his GED class to go to his housing

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 15 of 31
16

unit to use the bathroom. Parker reports that Mailhot told him

that if he had medical problems, he should just stay on his unit

and not come to the ED. Parker stated that he would attend more

chapel activities if it were not for the difficulties he has

faced gaining access to the ED bathrooms. Parker also testified

to having seen Hazelton being made to wait more than a few

minutes for the bathroom, and being denied access to the ED

bathrooms. 

After considering the testimony of all of the witnesses, as

well as the evidence presented, I find that neither Mailhot nor

Poulin presented credible testimony in this matter, particularly

with regard to the issue of inmates’ access to bathrooms in the

ED. I find that the testimony proffered by Hazelton and the

other inmate witnesses on this topic was consistent and worthy of

belief.

Hazelton testified that on weekends, while in the chapel

attending services, he often needs to use the bathroom. Hazelton

has to ask an official to open the inmate bathroom near the

chapel so that he does not have to return to his housing unit and

miss the services. On February 24, 2008, Cpl. McFarland was

summoned to the chapel area to unlock the bathroom for Hazelton. 

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 16 of 31
17

McFarland responded, but refused to open the bathroom, first

because it was not a movement time, and then because it was too

busy during movement. Hazelton had to return to his housing unit

to use the bathroom, but, on that occasion, returned to the

chapel for the remainder of his religious service because he was

able to use the bathroom before the movement period ended. After

this incident, Hazelton asked a woman who witnessed it to write

down McFarland’s name for purposes of filing a grievance. 

McFarland would not let her write his name down for Hazelton. 

McFarland admitted at the hearing that he told her not to write

his name down for Hazelton, as he did not believe that it was

necessary. 

Hazelton testified he takes piano lessons in the chapel from

inmate Richard Castine once a week. Castine testified that

Hazelton nearly always has to use the bathroom during his hourlong lesson, and that Mailhot has refused to unlock the bathroom

for him during his lessons, or made him wait for up to fifteen

minutes. Castine has also seen Hazelton forced to miss chapel

services to return to his housing unit to use the bathroom.

Unit Manager Robert Thyng testified at the hearing. At

first Thyng admitted he recalled that, while making rounds, he

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 17 of 31
18

had had several discussions with Hazelton about his issues with

bathroom use. Thyng then stated, however, that he had never

discussed any issues relating to Hazelton’s medical pass not

being honored, did not recall any specific instances discussed,

and that he had no conversations with Hazelton before receiving a

grievance on February 24, 2008, that he had no discussion with

Hazelton between February 2008 and April 2008, and that he has

had no discussions with Hazelton regarding this issue since April

2008. I find that Thyng’s initial admission that Hazelton

discussed this issue with him many times, immediately followed by

his insistence that they essentially never had discussions on the

subject, renders Thyng’s testimony incredible. 

On May 16, 2008, Hazelton filed a final appeal of the denial

of his grievances, by both Thyng and the NCF Warden, with NHDOC

Commissioner William Wrenn. Hazelton reiterated his complaints

and stated that he had been unable to resolve these issues with

staff, despite repeated efforts to do so. Specifically, Hazelton

complained that, despite his medical condition and his medical

pass, NCF staff continued to send Hazelton to his housing unit to

use the bathroom, rather than allowing him to use a closer inmate

bathroom, and that this resulted in the termination of his

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 18 of 31
19

activities and visitation. Christopher Kench, Wrenn’s assistant,

responded on behalf of Wrenn. Kench’s response was: “This has

been policy and practice for some time now, and we believe that

it will withstand discussion.” The testimony at the hearing

demonstrated that the NCF defendants followed this policy, which

caused them to disregard Hazelton’s medical situation and his

medical pass. This has resulted in the denial of educational and

religious activities, library usage, and visitation time that

Hazelton would have enjoyed were he not afflicted with his

particular medical conditions.

Discussion

I. Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the underlying action. See Jean v. Mass. State Police, 492 F.3d

24, 26-27 (1st Cir. 2007). Such a situation arises when some

harm from the challenged conduct could not be adequately

redressed with traditional legal or equitable remedies following

a trial. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102

F.3d 12, 18 (1st Cir. 1996) (finding irreparable harm where legal

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 19 of 31
20

remedies are inadequate); see also Acierno v. New Castle County,

40 F.3d 645, 653 (3d Cir. 1994) (explaining irreparable harm and

its effect on the contours of preliminary injunctive relief). 

Absent irreparable harm, there is no need for a preliminary

injunction. The need to prevent irreparable harm, however,

exists only to enable the court to render a meaningful

disposition on the underlying dispute. See CMM Cable Rep., Inc.

v. Ocean Coast Props., 48 F.3d 618, 620-21 (1st Cir. 1995)

(explaining the purpose of enjoining certain conduct as being to

“preserve the ‘status quo’ . . . to permit the trial court, upon

full adjudication of the case’s merits, more effectively to

remedy discerned wrongs”); see also Stenberg v. Cheker Oil Co.,

573 F.2d 921, 925 (6th Cir. 1978) (“The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.”).

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish the need for such

relief. See Esso Std. Oil Co. v. Monroig-Zavas, 445 F.3d 13, 17-

18 (1st Cir. 2006) (discussing the requisite showing to obtain a

preliminary injunction); see also Ross-Simons, 102 F.3d at 18-19

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 20 of 31
21

(explaining the burden of proof for a preliminary injunction). 

Those factors are: “(1) the likelihood of success on the merits;

(2) the potential for irreparable harm [to the movant] if the

injunction is denied; (3) the balance of relevant impositions,

i.e., the hardship to the nonmovant if enjoined as contrasted

with the hardship to the movant if no injunction issues; and (4)

the effect (if any) of the court’s ruling on the public

interest.” Esso Std. Oil, 445 F.3d at 18. If the plaintiff is

not able to show a likelihood of success on the merits, the

remaining factors “become matters of idle curiosity,”

insufficient to carry the weight of this extraordinary relief on

their own. See id. (the “sine qua non of the four-part inquiry

is likelihood of success on the merits”). Yet, “the predicted 

harm and the likelihood of success on the merits must be

juxtaposed and weighed in tandem.” Ross-Simons, 102 F.3d at 19. 

Applying this standard, I will assess plaintiff’s claims and

request for injunctive relief.

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 21 of 31
5In both their objection to the issuance of a preliminary

injunction and their post-hearing memorandum, defendants argue

that Hazelton is unlikely to succeed on the merits of his

underlying claims, in part, because he has failed to demonstrate

complete exhaustion of administrative remedies. A claim of

failure to exhaust is an affirmative defense. See Jones v. Bock,

549 U.S. 199, 212 (2006). At this stage in the proceedings,

where discovery has not yet been conducted and the record is

undeveloped, I decline to require plaintiff to provide further

proof of exhaustion than his submissions to date already

demonstrate. Further, at the hearing, defendants agreed to

reserve the issue of exhaustion until summary judgment.

6Hazelton’s complaint also asserts a claim under the ADA. 

Because I find that Hazelton has sufficiently demonstrated

likelihood of success on the merits of his Eighth Amendment

claim, it is not necessary for me to determine whether he is

likely to prevail on his ADA claim for purposes of making a

decision on the preliminary injunctive relief sought.

22

2. The Preliminary Injunction Factors

A. Likelihood of Success on the Merits5

Hazelton’s civil action raises claims alleging that he was

subject to inhumane conditions of confinement in violation of the

Eighth Amendment.6 The crux of Hazelton’s underlying claims is

that the failure to provide Hazelton with prompt and frequent

access to a nearby bathroom when he needs one violates rights

guaranteed to him by the federal constitution and laws. While

defendants have interpreted Hazelton’s complaint as challenging

three instances where a bathroom was denied, the complaint is

more accurately read to allege an ongoing series of frequent

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 22 of 31
23

violations of Hazelton’s Eighth Amendment right to humane

conditions of confinement, using three instances of such

violations of examples. “[T]he treatment a prisoner receives in

prison and the conditions under which he is confined are subject

to scrutiny under the Eighth Amendment.” Helling v. McKinney,

509 U.S. 25, 33 (1993); see Giroux v. Somerset County, 178 F.3d

28, 31 (1st Cir. 1999). Hazelton’s claim that he was wrongfully

denied access to necessary sanitary facilities implicates the

Eighth Amendment’s proscription against the imposition of cruel

and unusual punishment. 

The Supreme Court has adopted a two-part test for reviewing

claims under the Eighth Amendment’s cruel and unusual punishment

clause. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);

Helling, 509 U.S. at 25; Hudson v. McMillian, 503 U.S. 1, 7

(1992). “First, the deprivation alleged must be, objectively,

‘sufficiently serious,' a prison official's act or omission must

result in the denial of 'the minimal civilized measure of life's

necessities.'" Farmer, 511 U.S. at 834 (internal citations to

Wilson v. Seiter, 501 U.S. 294, 298 (1991), Hudson, 503 U.S. at

5, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981) omitted). 

"The Constitution 'does not mandate comfortable prisons,' but

Case 1:08-cv-00419-JL Document 18 Filed 12/30/08 Page 23 of 31
24

neither does it permit inhumane ones.” Helling, 509 U.S. at 31

(citing Rhodes, 452 U.S. at 349). The Eighth Amendment imposes

duties on prison officials to ensure that inmates receive

adequate food, clothing, shelter, and medical care, and must take

reasonable measures to guarantee the safety of the inmates. See

Farmer, 511 U.S. at 832–33; Hudson v. Palmer, 468 U.S. 517,

526-527 (1984); Helling, 509 U.S. at 31-32; Washington v. Harper,

494 U.S. 210, 225 (1990); Estelle, 429 U.S. at 103. Conditions

of confinement which do not lead to deprivations of essential

food, medical care, or sanitation do not amount to an Eighth

Amendment violation. See Williams v. McWilliams, 20 F.3d 465

(5th Cir. 1994) (citing Rhodes, 452 U.S. at 348). 

To satisfy the second prong of an Eighth Amendment claim, a

prisoner must allege that prison officials “have a ‘sufficiently

culpable state of mind.’ In prison-conditions cases, that state

of mind is one of ‘deliberate indifference’ to inmate health or

safety.” Farmer, 511 U.S. at 834 (internal citations omitted). 

Treating a disabled inmate without regard for “the basic concept

of human dignity at the core of the Eighth Amendment,” can

suffice to create a constitutional violation. Schmidt v. Odell,

64 F. Supp. 2d 1014, 1031 (D. Kan. 1999) (internal citations

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omitted). This is particularly true where the challenged

conditions of confinement “'shock the conscience,' are

'barbarous,' or 'result in a deprivation of the minimal civilized

measures of life's necessities.'" Boland v. Coughlin, 622 F.

Supp. 736, 737 (E.D.N.Y. 1985) (citing Rhodes, 452 U.S. at 347)

Here, by demonstrating a pattern of denying him access to

necessary sanitary facilities, Hazelton has shown a sufficiently

serious deprivation to satisfy the first prong of the Eighth

Amendment violation test. Hazelton has also established that

defendants were aware of his medical situation, his need for

quick access to a bathroom, and knew he had received a medical

pass exempting him from the normal policies of the institution

regarding bathroom use by inmates. Despite this knowledge, the

evidence showed that defendants denied him adequate access to

toilet facilities, which often either interrupted religious or

educational activities he was engaged in, or visits with his

family. Additionally, Hazelton adduced evidence that showed he

was denied any modicum of human dignity when he was made to soil

himself on the way to the bathroom because he was denied quick

access to a nearby bathroom, or was made to soil himself in front

of other people, including visiting family members, when he was

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refused the use of a nearby bathroom. While not every defendant

admitted to being specifically apprised of the pass, the

testimony at the hearing made clear that Hazelton had advised

people of his medical situation and his medical needs, including

his need to use the bathroom. Mailhot and others specifically

testified that they were made aware of the issue. Rather than

deny knowledge of Hazelton’s frequent need for bathroom

facilities, defendants simply denied that Hazelton was ever

delayed in going to the bathroom or ever refused the use of a

nearby bathroom. This testimony, however, defies credibility. 

All of the inmates who testified stated that they had experienced

and witnessed delays in gaining access to a bathroom in the ED

for much longer than the three to four minute wait Mailhot claims

to always provide. Witnesses testified that the wait was

frequently fifteen minutes and sometimes was more than two hours. 

Nurse Baker testified that normally Hazelton would not be able to

wait more than five minutes to use a bathroom. Accordingly, as

his need for quick bathroom use was not honored, he would be

forced to either soil himself or return to his housing unit.

The defendants all testified that Hazelton’s choice to

return to his housing unit would essentially terminate the

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activity he was involved in as, despite the instructions in his

medical pass not to terminate activities for allowing bathroom

use, defendants testified they would follow established security

procedures. This evidence is sufficient to demonstrate at this

preliminary stage in the proceeding that Hazelton was deprived of

adequate sanitary facilities, and that this deprivation falls

below the standard of a “minimal civilized measure of life’s

necessities.” See Rhodes, 452 U.S. 347. Accordingly, Hazelton

has demonstrated that he is likely to succeed on the merits of

his Eighth Amendment claim.

B. Irreparable Harm

The evidence before the Court demonstrates that, if no

injunction is granted, Hazelton will continue to be subject to

the inhumane treatment evidenced by the testimony at the hearing. 

The evidence demonstrated that NCF officials have acted in

accordance with what they perceive to be NCF policy, and that

they intend to continue to do so without regard for the

exceptions or allowances necessitated by Hazelton’s genuine and

serious medical conditions and required by his medical pass. 

While I find that Hazelton has not, at this time, demonstrated

that he has suffered physical injury as a result of the

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defendants’ actions, I do find that he has alleged that he is

being subjected to repeated and frequent indignities that are

beneath the level of civilized and non-barbaric conduct to which

the defendants are constitutionally bound to adhere. 

Accordingly, I find that this conduct, and continued deprivation

of basic human dignity suffered by Hazelton, is demonstrably

likely to cause irreparable harm if allowed to continue.

C. Balance of Hardships

 The injunction Hazelton seeks is an order for defendants to

act in a manner strikingly similar to what the defendants

testified already occurs at NCF. Defendant Mailhot testified

that (1) inmates are always granted access to the bathroom in the

ED in three to four minutes, without regard to the number of

times they have used the bathroom on a particular day, (2)

inmates are never required to return to their housing units to

avoid a delay in gaining access to an ED bathroom, (3) inmates

are, on occasion, allowed to use the visitation area inmate

bathroom to defecate, and (4) security measures exist that would

assist in preventing the introduction of contraband in visitation

area inmate bathrooms. While I do not find the defendants’

testimony regarding past events to be credible regarding the

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conduct they actually engaged in, I do find credibility in

defendants’ apparent assertion that adherence to the practices

they described would not cause significant hardship to prison

operations. To the extent that increasing security procedures in

the visitation area, on occasions when Hazelton uses the inmate

bathroom to defecate, would increase the burden on NCF staff, I

find that such a burden, given the infrequency of Hazelton’s

family visits and the existence of established procedures for

assuring institutional security, does not outweigh the 

substantial burden that would be placed on Hazelton by allowing

the current inhumane practices to continue.

D. Public Interest

The public interest is well-served by assuring adherence to

the Eighth Amendment prohibition against cruel and unusual

treatment that includes subjecting human beings to severe

indignities during their incarceration. There is no public

interest served by failing to provide sanitary facilities, as

needed, to inmates in accordance with their documented medical

needs, without disrupting the inmate’s educational, legal or

religious activities and practices. For that reason, I find the

public interest weighs in favor of issuance of this injunction.

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Conclusion

Because I find that Hazelton is likely to succeed on the

merits of his underlying claims, that he will likely be

irreparably harmed in the absence of an injunction, that the

balance of hardships weighs in favor of the plaintiff, and that

the public interest is best served in this matter by granting the

requested relief, I recommend that the following injunction

issue:

1. Each of the defendants, and those acting under their

direction, are enjoined from denying Hazelton prompt access to

the nearest inmate bathroom. Specifically, absent exceptional or

emergency circumstances:

A. Hazelton must be allowed to use a bathroom within

five minutes of a request to do so;

B. Hazelton must be allowed to use the inmate

bathroom closest to him at the time of his request;

C. Hazelton must be allowed to return immediately to

the activity in which he was participating (i.e. library use,

chapel work, chapel services, visitation and other educational

programming or lessons) upon completion of his use of the 

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31

bathroom, whether or not it is a scheduled “movement” time in the

institution.

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/ James R. Muirhead

James R. Muirhead

United States Magistrate Judge

Date: December 30, 2008

cc: Timothy W. Hazelton, pro se

Danielle Pacik, Esq.

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