Johnson names the following defendants: NCF Media 1

Generalist (Law Librarian) Angela Poulin, NCF Unit Manager Robert

Thyng, NCF Maintenance Supervisor Joseph Bachofer, NCF Major

Dennis Cox, NCF Warden Larry Blaisdell, New Hampshire Department

of Corrections (“NHDOC”) Commissioner William Wrenn, NHDOC

employee Christopher Kench, NCF Sergeant David Wilson, and NCF

Corporal Shane Mailhot.

 Johnson stated in his response to defendants’ cross-motion 2

for summary judgment (Doc. No. 65) that he wished to withdraw his

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Gary DeWayne Johnson

v. Civil No. 07-cv-161-PB

Opinion No. 2008 DNH 086

Angela Poulin, et al.1

MEMORANDUM AND ORDER

Plaintiff, Gary DeWayne Johnson, an inmate at Northern New

Hampshire Correctional Facility (“NCF”), brings a civil rights

action pursuant to 42 U.S.C. § 1983 against various NCF prison

officials. Johnson asserts violations of the Eighth and

Fourteenth Amendment and the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12132. Defendants have moved for summary

judgment on all of Johnson’s claims. For the reasons discussed

below, I grant defendants’ motion in part and deny it in part.2

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 1 of 26
motion for summary judgment (Doc. No. 56). In defendants’ reply

to Johnson’s objection (Doc. No. 67), the defendants assented to

withdrawal of plaintiff’s motion. Therefore, I address only

defendants’ motion for summary judgment (Doc. No. 62).

-2-

I. BACKGROUND

A. Law Library Incidents

Johnson is incarcerated as a result of sexual assaults

involving a minor under thirteen years of age. At NCF, each time

prisoners come to use the law library they are asked to sign an

agreement stating, with respect to computer use: “Use of

inappropriate terminology or terms is strictly forbidden and

violators will be asked to leave at that time and will be subject

to disciplinary action . . . [b]y signing below, the inmate

agrees to adhere to all policies listed above and any facility

rules, guidelines, and regulations along with common sense and

decency.” 

On March 6, 2007, Johnson visited the NCF law library and

entered the search terms “licked her anus” into the LexisNexis

search engine on a law library computer. A law library clerk

reported this search to the law librarian, Angela Poulin, who

charged Jackson with a disciplinary infraction for performing a

search using inappropriate terminology. Johnson argues that he

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 2 of 26
 The case is 3 State v. Howard, 121 N.H. 53 (1981).

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ran this search because his conviction related to penetration of

the victim’s vagina with his tongue. On March 12, 2007, Johnson

searched for the term “masturbated a bull.” Johnson argues that

he searched for this term because another inmate had told him

that there was a case involving that term that dealt with the New

Hampshire rape-shield statute, an issue relevant to Johnson’s

conviction. Johnson was again charged with a disciplinary 3

infraction. Unit Supervisor Robert Thyng suspended Johnson from

the law library for thirty days pending disciplinary hearings for

the March 6 and March 12 incidents. 

Johnson grieved this pre-hearing ban of law library access

to NCF Warden Larry Blaisdell and NHDOC Commissioner William

Wrenn. Wrenn and NHDOC employee Christopher Kench, acting for

Wrenn, upheld the denial of access. On March 14, 2007, Sergeant

David Wilson, an NCF official, did not allow Johnson to go to the

law library to have documents copied at the library. 

On March 21, 2007, a disciplinary hearing was held, and

Johnson was found guilty of the disciplinary infractions. He was

sanctioned with five days of punitive segregation and a ninetyCase 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 3 of 26
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day suspension, a fifteen-day loss of recreation time, a ten-day

loss of canteen privileges, and fifteen hours of extra duty. 

Johnson appealed the decision but his appeal was denied. On both

March 28, and April 26, 2007, Johnson requested that NCF provide

a legal assistant to assist him with filing his legal documents. 

Thyng and Major Dennis Cox, an NCF official, denied Johnson’s

requests.

Johnson’s suspension ended on May 21, 2007, and he returned

to the library on May 23, 2007 to have photocopies made for him

by Poulin. Poulin asked Johnson to sit down while she was

copying the documents, but Johnson refused. Poulin consulted

prison official Corporal Shane Mailhot, who ordered Johnson to

sit down. Johnson again refused. Poulin filed a disciplinary

report, and Thyng suspended Johnson from the law library for

ninety days. 

A disciplinary hearing was held on May 30, 2007 and Johnson

was found guilty of failing to obey orders and engaging in

disruptive conduct. He was sentenced to ten days of punitive

segregation and a ninety-day suspension, twenty-five hours of

extra duty, twenty-five days of loss of recreational library

access, and twenty-five days loss of recreation time. Johnson

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was permitted to return to the library on July 31, 2007, and he

has been permitted access since that date.

During both periods of suspension from the law library,

Johnson was able to access law library materials by filling out

inmate request slips with the names of cases or with instructions

for legal research to be carried out on his behalf. Johnson

utilized this process to research the Confrontation Clause, as

well as cases relevant to the civil rights claims presented in

this case.

B. Child Pornography Rumors, Safety Concerns, and Assault

On March 29, 2007, Joseph Bachofer, Johnson’s work

supervisor on the prison maintenance crew, fired Johnson from his

job of three years. Johnson alleges that Bachofer fired him

because of a rumor at the prison that Johnson had been

disciplined for using other inmates’ identities to look for child

pornography in the law library. Bachofer says that he fired

Johnson for two main reasons: first, because of Johnson’s poor

work performance beginning in late January 2007, and second,

because Johnson failed to show up for work from February 28, 2007

to March 16, 2007 due to a medical “no work” pass, about which

Johnson had failed to notify Bachofer.

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On May 22, 2007, Johnson complained to Sergeant John Masse

that Bachofer was spreading a rumor that Johnson was fired for

looking at child pornography in the law library. Johnson also

submitted a written statement from inmate Kerry Kidd in which

Kidd stated that Bachofer told him that Johnson was fired because

he got caught trying to look up child pornography in the law

library.

Bachofer admits that he had a conversation with Kidd and

says that Kidd asked him whether Johnson was fired for looking up

“stuff” in the library. Bachofer told Kidd that Johnson was

terminated for poor work performance, disciplinary infractions,

and failure to notify him of the disciplinary infractions. 

Bachofer says Kidd then asked whether Johnson was looking up

“kiddy porn,” and Bachofer responded “no” and stated that the

discipline related to the research of “inappropriate material.” 

Bachofer states that one other inmate, Gary York, may have

overheard the conversation.

On May 31, 2007, Johnson submitted a grievance to the

Warden, Larry Blaisdell, stating that, while he felt safe on his

cell block, he did not feel safe outside or in the chow hall,

especially in the hallway during chow times. The Warden

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 6 of 26
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responded on June 13, 2007 stating that he was concerned for

Johnson’s safety and asking Johnson what steps he wanted the

prison to take to keep him safe. 

On June 5, 2007, Johnson met with Thyng regarding his safety

concerns. Thyng says that he explained the protective custody

policy to Johnson, stating that Johnson would need to name the

specific threats and individuals that were threatening him, and

that Thyng would need to handcuff Johnson and escort him to a

holding cell until a protective custody board hearing could be

conducted. Thyng states that Johnson then said that he felt safe

on his block. Johnson signed a statement saying that he wished

to remain on his block and did not wish to seek protective

custody.

On June 8, 2007, Johnson submitted an inmate request form to

the Warden stating that when he told Thyng that he felt his life

was in danger, Thyng made him sign a paper saying that he didn’t

want protective custody, and that “if I didn’t he would have Lt.

Loven cuff me and throw me in the tank a few days and I would

probably lose my belongings.” Johnson then stated in his

request: “I’m telling you Warden, I want to be on PC [protective

custody], and I still feel harm could come to me.” The Warden

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-8-

responded on June 13, 2007, asking Johnson to specify what he

wanted, and clarifying that if Johnson wanted protective custody,

it could be done if the criteria were met.

After Johnson made his complaints to Blaisdell but before

Blaisdell responded, Johnson was assaulted by another inmate,

Carl Bickham, at the chow hall on June 11, 2007. Incident

reports regarding the assault indicate that Johnson reported to

prison officials that the dispute related to a seat in the chow

hall. Johnson now alleges, however, that the dispute related to

the child pornography rumor. Johnson says that he first

encountered Bickham in the chow hall on June 10, 2007, when

Bickham said to him “I hear you like little kids bitch, don’t be

sitting at this table tomorrow.” 

Johnson alleges that this scared him and that he immediately

requested cell feeds from the officer in charge. According to

Johnson, the officer in charge called Sergeant Morin, who denied

Johnson’s request. When Johnson went to the chow hall on June

11th, he tried to eat quickly and leave before Bickham’s block

was called to the chow hall, but Bickham’s block was called

earlier than usual. Bickham assaulted Johnson when Johnson was

returning his tray and Bickham was in line for food. As a result

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of the assault, Johnson suffered a serious injury to his eye

resulting in loss of vision and requiring multiple surgeries.

C. Hygiene Items

Beginning in late June 2007 and continuing throughout the

summer of 2007, Johnson had no money in his inmate account and,

as an indigent prisoner, he requested prison officials to provide

him with hygiene items. Johnson alleges that the prison

officials were not responsive to his requests and provided him

with an inadequate supply of items. At the preliminary

injunction hearing held on October 4, 2007, Thyng testified that

he provided Johnson with hygiene items “whenever he needed them

and we could verify that he was out of his materials.” 

Johnson alleges that Thyng denied his requests, such that,

at one point, he was without hygiene items such as soap and

razors for sixteen days. Johnson alleges that because he did not

have soap, he developed a rash between his thighs and sores on

his body, and that, because he did not have razors, he was

disciplined for having a beard. Johnson admits that he received

hygiene items periodically from prison officials, but that the

items were not sufficient to meet his needs.

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 9 of 26
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D. Mental Health Treatment

Johnson received treatment from mental health professionals

throughout his incarceration at NCF. On July 16, 2007, Judy

Figueroa, a mental health professional at NCF, prescribed cell

feeds for Johnson. When Thyng learned that Johnson had received

a cell feed pass, he contacted Heidi Guinen, the Senior

Psychiatric Social Worker at NCF, to determine whether Johnson

obtained the pass for mental health reasons. Guinen discovered

that Figueroa, a new mental health worker, had prescribed the

cell feed pass based on security reasons rather than mental

health reasons. Johnson’s cell feed pass was then terminated,

and Thyng filed a disciplinary report against Johnson, stating

that Johnson had manipulated the system by going to the mental

health department to obtain a cell feed pass for security

reasons. A disciplinary hearing was held on the charges and

Johnson was not disciplined for this conduct.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 10 of 26
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together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for it; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v. Bristol Myers-Squibb Co., 95

F.3d 86, 94 (1st Cir. 1996); see Celotex, 477 U.S. at 323.

III. ANALYSIS

Johnson brings the following claims: (1) denial of right of

access to the courts claim against Thyng, Blaisdell, Poulin,

Mailhot, Wrenn, Kench, and Wilson for disallowing Johnson’s

research of inappropriate phrases; (2) due process violation

claim against Thyng for banning Johnson from the NCF law library;

(3) denial of right of access to the courts claim against Thyng,

Blaisdell, and Cox for denying Johnson access to legal research

materials or a legal assistant proficient in the law; (4) Eighth

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 11 of 26
 Johnson’s other claims were dismissed when I adopted the 4

Magistrate Judge’s Report and Recommendations dated September 12,

2007. See Order, Johnson v. Poulin, Case No. 07-cv-161-PB, Dec.

10, 2007 (Doc. No. 52).

-12-

Amendment endangerment claim against Bachofer; (5) Eighth

Amendment failure to protect claim against Thyng; (6) Eighth

Amendment and ADA claims against Thyng and Blaisdell for denial

of adequate mental health care; (7) Eighth Amendment claim

against Thyng and Blaisdell for denial of personal hygiene items;

and (8) state law defamation claim against Bachofer.4

A. Right of Access to the Courts and Due Process Claims

In Bounds v. Smith, 430 U.S. 817 (1977), the U.S. Supreme

Court recognized that prisoners’ constitutional right of access

to the courts requires prisons “to assist inmates in the

preparation and filing of meaningful legal papers by providing

prisoners with adequate law libraries or adequate assistance from

persons trained in the law.” Bounds, 430 U.S. at 828. In both

Bounds and Lewis v. Casey, 518 U.S. 343 (1996), the Court

confirmed that no particular methodology for accommodating this

right is constitutionally required. Lewis, 518 U.S. at 356;

Bounds, 430 U.S. at 830. All that is required is that prisoners

be provided the tools needed to bring direct and collateral

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 12 of 26
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attacks to their sentences and challenges to the conditions of

their confinement. Lewis, 518 U.S. at 355. The Constitution

requires only that prisoners “be able to present their grievances

to the courts,” not that they be able to conduct generalized

research. Id. at 360. 

The Court also confirmed in Lewis that in order to allege a

constitutional violation, the prisoner must show that denial of

his right of access to the courts resulted in actual injury. Id.

at 349. Because there is no right to a law library or legal

assistance in the abstract, the prisoner must “go one step

further and demonstrate that the alleged shortcomings in the

library or legal assistance program hindered his efforts to

pursue a legal claim.” Id. at 351.

1. Right of Access to Legal Materials

Johnson has failed to demonstrate that he suffered an actual

injury from his alleged denial of access to legal research

materials. First, Johnson argues that he did not fully

understand the implications of filing for summary judgment (i.e.,

that the case could be decided without a trial) because he was

not allowed time in the library or help from a legal assistant. 

As the defendants have assented to withdrawal of Johnson’s

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 13 of 26
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motion, however, his lack of knowledge did not result in actual

injury. 

Second, Johnson argues that he suffered an actual injury

because denial of access to the law library caused him to miss a

filing deadline for a motion for reconsideration in Hillsborough

Superior Court in April 2007. Johnson filed a pro se motion for

extension of time in which to file for reconsideration, arguing

that his ban from the law library prevented him from filing the

motion, in which he planned to assert ineffective assistance of

counsel claims. Although the Superior Court denied this motion

for extension of time, the court ordered, on January 23, 2007,

that Johnson’s case be remanded for consideration of Johnson’s

ineffective assistance of counsel claims as well as other issues

that Johnson’s previous defense counsel failed to raise. 

Therefore, Johnson’s lack of physical access to the library did

not hinder his ability to bring these claims. 

Third and finally, Johnson argues that, because he was

banned from the library, he was unable to notarize a professional

conduct complaint that he wished to submit to the New Hampshire

Supreme Court’s Attorney Discipline Office within the required

time frame. Johnson has failed to demonstrate that his ban from

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the law library caused him to miss this deadline, as he could

have requested notarization services via an inmate request slip. 

In addition, Johnson was filing a professional misconduct

complaint with a state agency, not a legal claim for relief;

therefore, his inability to file the claim could not have

satisfied the actual injury requirement. See Lewis, 518 U.S. at

354-55 (holding that the injury requirement is only satisfied by

frustrated legal claims that deal with direct or collateral

attacks to a sentence or conditions of confinement).

I also note that it is undisputed that, while he was banned

from physically coming to the library and utilizing computer

research programs himself, Johnson was able to access library

resources via inmate request slips. It is also undisputed that

Johnson utilized the request slip process to obtain copies of

numerous cases and also to have Lexis searches run on his behalf

by law library personnel. This method of providing access to

legal research materials has been upheld as constitutionally

sufficient by other courts. See, e.g., Brooks v. Buscher, 62

F.3d 176, 182 (7th Cir. 1995) (holding that a prison’s system of

providing photocopies of requested legal materials to a prisoner

who was banned from physically visiting the law library was

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 15 of 26
-16-

constitutionally sufficient).

Because Johnson has failed to demonstrate actual injury

arising from his ban from the law library, I grant defendants’

motion as to his claim for denial of access to legal research

materials or a proficient legal assistant against Thyng, Cox, and

Blaisdell.

2. Prohibition on Search for Inappropriate Phrases

Johnson argues that disallowing his research of the

allegedly inappropriate phrases “licked her anus” and

“masturbated a bull” constituted a denial of his right of access

to the courts. Again, Johnson has failed to demonstrate that he

has suffered an actual injury from the prison’s policy against

“inappropriate terminology.”

Johnson has failed to allege that the prohibition against

running searches with the terms described above made him unable

to bring claims challenging his conviction or the conditions of

his imprisonment. The prison library staff at NCF recognizes

that inmates convicted for sex crimes must be permitted to

research legal materials that may contain sexual terms or themes. 

Poulin states in her affidavit that, had Johnson notified her

that the search terms were for the purpose of researching the law

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 16 of 26
-17-

regarding his sexual assault conviction, she would have assisted

him with the search or permitted the search. Poulin Aff. at ¶ 5. 

In addition, although Johnson was banned from the library for

periods of time, he was permitted to request research to be

performed for him at the law library via inmate request slips. 

Just as he utilized this process to research issues with respect

to the Confrontation Clause and civil rights matters, he could

have used this process to research the New Hampshire rape-shield

statute and cases involving penetration by the tongue. 

Because Johnson cannot demonstrate actual injury as a result

of the NCF prison officials’ refusal to allow him to enter these

types of search terms, this portion of his claim for denial of

his right of access to the courts fails as a matter of law.

3. Due Process Claim

Johnson argues that Thyng violated his constitutional right

to due process of law when Thyng banned him from the law and

recreational libraries prior to a disciplinary hearing and when

Thyng extended the ban for two months without conducting a due

process hearing. It is undisputed that Johnson’s ban from the

library was imposed by Thyng, not as part of his sentence

resulting from the disciplinary hearings. Thyng argues that he

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banned Johnson for security reasons.

“[T]he Due Process Clause does not protect every change in

the conditions of confinement having a substantial adverse impact 

on the prisoner.” Sandin v. Conner, 515 U.S. 472, 478 (1995)

(citing Meachum v. Fano, 427 U.S. 215, 224 (1976)). A due

process liberty interest is only implicated when the state

imposes a sanction that is atypical and constitutes a significant

hardship in relation to the normal incidents of prison life. Id.

at 484; DeWitt v. Wall, 121 Fed. Appx. 398, 399 (1st Cir. 2004)

(unpublished opinion).

In this case, the ban on Johnson’s physical presence from

the law library did not constitute an atypical sanction imposing

a significant hardship. Prisoners cannot come to the NCF law

library at will; they must follow prison policies regarding

hourly limitations and requests for access. As the Court

recognized in Lewis, prisoners have no freestanding

constitutional right of access to law libraries or legal

assistants trained in the law, see Lewis, 518 U.S. at 351, and no

New Hampshire statute or regulation requires access for prisoners

to prison law libraries or legal assistants trained in the law. 

In this case, Johnson remained able to access legal materials and

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to have research conducted on his behalf, despite the fact that

he was unable to physically go to the library. Therefore,

Thyng’s suspension of Johnson from the library for 30 and then 90

days did not constitute a deprivation of a liberty interest

requiring due process of law.

B. Endangerment, Defamation, and Failure to Protect Claims

The Eighth Amendment imposes a duty on prison officials to

protect inmates from violence at the hands of other prisoners. 

Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citing CortesQuinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.

1988)). This duty does not require prison officials to prevent

every altercation between prisoners; it requires only that the

prison official not be “deliberately indifferent to the risk to

prisoners of violence at the hands of other prisoners.” Burrell

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

The “deliberate indifference” standard has two components. 

First, the deprivation alleged by the prisoner “must be, 

objectively, sufficiently serious.” Farmer, 511 U.S. at 834

(internal quotation omitted). Second, the prison official must

have a culpable state of mind; he must subjectively be aware of a

substantial risk of serious harm, and he must fail to take

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 19 of 26
 Johnson has submitted fellow inmate Kidd’s unsworn written 5

statement, which was later retracted by Kidd. He has also

submitted an affidavit from inmate Christopher Creameans, where

Creameans reported that he heard Kidd say that Bachofer told the

work crew that Johnson was fired for looking up child

pornography. Because Johnson offers Creameans’s statement as

proof that Bachofer made such statements to Kidd, it is

inadmissible hearsay. Johnson also submits an unsworn written

statement from inmate Robert Rabe, where Rabe states that

Johnson’s ex-boss spread rumors about Johnson. The statement

does not name Bachofer and does not establish that Rabe had

personal knowledge that Bachofer said anything about Johnson.

-20-

reasonable measures to avert the potential harm. Burrell, 307

F.3d at 8; see also Farmer, 511 U.S. at 834-35.

1. Endangerment and Defamation Claims against Bachofer

In this case, Johnson argues that Bachofer endangered his

safety by spreading a rumor that Johnson was looking up child

pornography on a law library computer. Bachofer denies that he

spread this rumor. Johnson has failed to proffer admissible

evidence from which a reasonable fact-finder could conclude that

Bachofer started a rumor that Johnson looked up child pornography

in the law library.5

Bachofer admits that he told Kidd that Johnson was

disciplined for research of “inappropriate material.” Based on

the evidence presented, however, a reasonable fact-finder could

not conclude that Bachofer acted with deliberate indifference to

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Johnson’s health and safety when he made this statement. Johnson

has not presented evidence to show that Bachofer was subjectively

aware that his statement would create a substantial risk of

serious harm to Johnson. Bachofer made the statement in response

to Kidd’s question about child pornography in an attempt to

dispel the rumor regarding child pornography, and there is no

evidence to suggest that he made the statement for any other

reason or that he knew that his statement would create a

substantial risk of harm to Johnson. 

For the same reason, because Johnson cannot demonstrate

evidence that Bachofer “published a false and defamatory

statement of fact” about him to a third party, Johnson’s state

law defamation claim against Bachofer fails as a matter of law. 

See Thomas v. Tel. Publ’g Co., 155 N.H. 314, 321 (2007).

2. Failure to Protect Claim against Thyng

Johnson also claims that Thyng intentionally failed to

protect Johnson from a known risk to his safety. As discussed

above, Johnson made numerous attempts to communicate his safety

concerns to prison officials in late May and early June 2007,

prior to the assault on June 11, 2007. Viewing the facts in the

light most favorable to Johnson, a reasonable fact-finder could

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conclude that Thyng acted with deliberate indifference to

Johnson’s health and safety needs because, if Johnson’s version

of events is to be believed, Thyng pressured Johnson into making

a written statement that he felt safe on his block and did not

want protective custody, despite the fact that Johnson approached

Thyng to request protective custody. Johnson’s version of events

is supported by the fact that he submitted a statement to the

Warden on June 8th, three days prior to the assault, stating that

he wanted to seek protective custody and that Thyng prevented him

from asserting his request at their June 5th meeting.

Because there are genuine issues of material fact with

respect to this claim, I deny defendants’ motion for summary

judgment as to this claim.

C. Denial of Hygiene Items Claim

The Eighth Amendment requires that prison officials provide

humane conditions of confinement. Farmer, 511 U.S. at 832.

Prisoners must be provided with “the minimal civilized measure of

life’s necessities.” Id. at 834 (quoting Rhodes v. Chapman, 452

U.S. 337, 349 (1981)). Deprivation of basic personal hygiene

items can constitute a violation of the Eighth Amendment. See,

e.g., Gillis v. Litscher, 468 F.3d 488, 492 (7th Cir. 2006);

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 22 of 26
Johnson also submits unsworn written statements from fellow 6

inmates Armand Desmarais and Kenneth Morand, who both state that

they witnessed the fact that the prison did not provide adequate

hygiene items to Johnson and that Johnson’s appearance

deteriorated.

-23-

Palmer v. Johnson, 193 F.3d 346, 354 (5th Cir. 1999).

Johnson alleges that as of July 6, 2007, when he submitted

his allegation as an amendment to the complaint, he had been

without toothpaste, soap, shampoo, and razors for ten days. At

the preliminary injunction hearing before Magistrate Judge

Muirhead on October 4, 2007, Johnson alleged that, at one time,

he had been without hygiene items for sixteen days. Johnson also

alleges that, due to this deprivation, he developed sores and a

rash from lack of soap, and was cited for a disciplinary

violation for failure to shave. Defendants Thyng and Blaisdell 6

argue that they provided Johnson with adequate hygiene materials. 

Defendants argue that, even if Johnson were deprived of hygiene

items for sixteen days, the deprivation did not violate the

Eighth Amendment because it did not constitute a reckless

disregard of a substantial risk of harm.

Viewing the facts in the light most favorable to Johnson, 

a reasonable fact finder could not conclude that the defendants

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acted “with deliberate indifference to a substantial risk of

serious harm.” See Farmer, 511 U.S. 836. An alleged deprivation

must be “sufficiently serious” to constitute a violation of the

Eighth Amendment. Id. at 834 (quoting Wilson v. Seiter, 501 U.S.

294, 298 (1991)). In this case, the alleged denial of hygiene

items was temporary and prison officials were not completely

unresponsive to Johnson’s requests. Johnson admits that he

periodically received hygiene items, although not in the

quantities he desired. Although Johnson has alleged that the

lack of soap caused him to have a rash and sores on his body, he

has not presented evidence to substantiate the claim or to show

that this constituted serious harm. Therefore, the alleged

deprivation of hygiene items did not constitute cruel and unusual

punishment. Accordingly, I grant defendants’ motion with respect

to this claim.

D. Denial of Adequate Mental Health Care Claims

Johnson brings claims under the Eighth Amendment and the ADA

against Thyng and Blaisdell for failure to provide him with cell

feeds after cell feeds were prescribed by mental health

professionals.

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To state a cognizable Eighth Amendment claim based on

medical mistreatment, “a prisoner must allege acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106

(1976); Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007).

In this case, the mental health professional who prescribed the

cell feed for Johnson confirmed that the cell feed was prescribed

for safety reasons, not for medical reasons. Therefore, revoking

Johnson’s cell feeds did not give rise to an Eighth Amendment

violation because he did not have a medical need for the cell

feeds.

Under the ADA, “no qualified individual with a disability

shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. Johnson

alleges that because of his mental illness, he is a qualified

individual with a disability, and that cell feeds are a

reasonable means of accommodating his mental health needs. As

discussed above, however, Johnson’s mental heath provider did not

prescribe cell feeds for mental health reasons, but for safety

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reasons. Johnson has failed to demonstrate that he has mental

health needs warranting cell feeds; therefore, his ADA claim

fails as a matter of law.

IV. CONCLUSION

For the reasons stated above, I grant in part and deny in

part defendant’s motion for summary judgment (Doc. No. 62). 

Plaintiff’s motion for summary judgment (Doc. No. 56) is

withdrawn by agreement of the parties, supra note 2, at 1-2.

SO ORDERED.

________________________

Paul Barbadoro

United States District Judge

April 24, 2008

cc: Gary Dewayne Johnson, pro se

Danielle Leah Pacik, Esq.

Case 1:07-cv-00161-PB Document 72 Filed 04/24/08 Page 26 of 26