1

In addition to James O’Mara, O’Neil has named several other

Hillsborough County Department of Corrections employees as

defendants to this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jeffrey C. O’Neil

v. Civil No. 09-cv-006-SM

James O’Mara, et al.1

REPORT AND RECOMMENDATION

Before the Court is Jeffrey O’Neil’s complaint (document no.

1), filed pursuant to 42 U.S.C. § 1983, alleging that the

defendants have violated his rights under the United States

Constitution during his incarceration at the Hillsborough County

Department of Corrections (“HCDOC”). The matter is before me for

preliminary review to determine, among other things, whether the

complaint states any claim upon which relief might be granted. 

See 28 U.S.C. § 1915A(a); United States District Court District

of New Hampshire Local Rule (“LR”) 4.3(d)(2).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 1 of 11
2

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

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

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

On November 26, 2008, Jeffrey O’Neil was a pretrial detainee

at the HCDOC. On that date, he was in the sally port at the

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 2 of 11
3

HCDOC waiting to be escorted to the law library. HCDOC Officer

Higgins saw O’Neil standing there, and intentionally slammed a

door into him, causing injury to O’Neil’s toe. After that,

O’Neil claims, Higgins said “What the fuck are you looking at?” 

O’Neil asserts that, although Higgins knew that he was injured,

he did not do anything proactively to obtain medical attention

for O’Neil. As it appears that O’Neil did not, at that time, ask

for medical assistance, none was immediately rendered.

Later, O’Neil’s toe hurt, and he asked HCDOC Officer Fonnier

if he could see a nurse. At 5:00 p.m. that day, nine hours after

his toe was hit by a door, O’Neil saw Nurse Joshua Plant from the

HCDOC medical department. Nurse Plant diagnosed O’Neil with a

swollen toe, gave him ibuprofen, and told him that he would bring

ice for him later that day. Plant did not bring the ice until

the next day, approximately twenty-four hours after the injury.

O’Neil spoke to HCDOC Sgt. Williams and stated that he

wanted to press criminal charges against Higgins for assault. 

HCDOC Lt. Martineau contacted dispatch at the Manchester Police

Department. Manchester Police Officer Jajuga came to the HCDOC

to speak with O’Neil. Upon speaking with O’Neil and Higgins, who

admitted to accidentally hitting O’Neil with a door, Jajuga made

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 3 of 11
2

See O’Neil v. O’Mara, Civ. No. 08-cv-396-SM (D.N.H.) (filed

Sept. 23, 2008).

3The claims as identified herein will be considered for all

purposes to be the claims raised in the complaint. If O’Neil

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

by properly objecting to this Report and Recommendation.

4

a determination that no assault had occurred and declined to

charge Higgins with a crime.

The internal HCDOC investigation of this matter resulted in

a finding that O’Neil’s accusation of intentional assault, as

well as his accusation that Higgins had used profanity or made

derogatory comments to O’Neil, were unfounded. O’Neil accuses

Higgins of criminal assault, and other HCDOC employees of

engaging in a criminal conspiracy to cover up the assault. 

O’Neil attributes the cover-up to retaliation for a lawsuit he

filed against HCDOC Superintendent James O’Mara.2

Discussion3

I. Excessive Force Claim

O’Neil asserts that by intentionally hitting him with a

door, Higgins used excessive force against him. The Fourteenth

Amendment protects a pretrial detainee from excessive force that

amounts to punishment. See Ruiz-Rosa v. Rullan, 485 F.3d 150,

155 (1st Cir. 2007); Surprenant v. Rivas, 424 F.3d 5, 18 (1st

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 4 of 11
5

Cir. 2005). In determining whether a plaintiff has stated a

claim for unconstitutionally excessive force, the court should

look to the following four factors: (1) the need for the use of

force, (2) the relationship between the need and the amount of

force that was used, (3) the extent of injury inflicted, and (4)

“whether the force was applied in good faith to maintain or

restore discipline or maliciously and sadistically to cause

harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Not “every

malevolent touch by a prison guard gives rise to a federal cause

of action.” Id. at 9. Whether a use of force is objectively

“harmful enough” to establish a constitutional violation is

“contextual and responsive to ‘contemporary standards of

decency.’” Id. at 2 (quoting Estelle, 429 U.S. at 103)). While

a plaintiff need not allege extensive injuries to state a

constitutional claim, the Eighth Amendment protection against

cruel and unusual punishment is not reached by de minimus uses of

physical force. See Hudson, 503 U.S. at 2. The First Circuit

has applied this standard to a case where an arrestee, rather

than a convicted inmate, alleged excessive force. See Bastion v.

Goddard, 279 F.3d 10, 15 n.7 (1st Cir. 2002) (injury of an

arrestee “must be more than a de minimus injury and must be

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 5 of 11
6

evaluated in the context in which the force was deployed.”

(internal quotations omitted)). I find that a swollen toe

constitutes de minimus injury for purposes of constitutional

analysis. See Calabria v. Dubois, 23 F.3d 394, *2 (1st Cir.

1994) (finding that a single blow caused by a thrown object and

resulting only in a bloody lip was “clearly de minimus” for

Eighth Amendment purposes).

As O’Neil describes the incident, Higgins hit him with a

door, for no reason and without provocation, on a single

occasion, causing swelling to one of his toes. Although Higgins

reported that he hit O’Neil accidentally, I must credit O’Neil’s

version of events with the truth at this stage of the

proceedings. Accordingly, I will presume, for the purpose of

conducting this preliminary review, that Higgins struck O’Neil

intentionally. Even so, I can find neither that the alleged use

of force was significant enough, nor that the resulting injury

was serious enough, to amount to punishment, and the allegations

in the complaint do not, therefore, give rise to a constitutional

claim. Accordingly, I recommend that the excessive force claim

be dismissed.

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 6 of 11
7

II. Inadequate Medical Care

O’Neil claims that the denial of ice for a period of 24-

hours after his toe was injured constitutes constitutionally

inadequate medical care. The constitution protects prisoners

from prison officials acting with deliberate indifference to

their serious medical needs. See Farmer v. Brennan, 511 U.S.

825, 831 (1994). To assert a viable cause of action for

inadequate medical care, a prisoner must first state facts

sufficient to allege that he has not been provided with adequate

care for a serious medical need. Id. at 831; Rhodes v. Chapman,

452 U.S. 337, 347 (1981); Estelle, 429 U.S. at 106. The inmate

must then allege that a responsible prison official was aware of

the need, or of the facts from which the need could be inferred,

and still failed to provide treatment. Estelle, 429 U.S. at 106. 

A serious medical need is one that involves a substantial risk of

serious harm if it is not adequately treated. Barrett v. Coplan,

292 F. Supp. 2d 281, 285 (D.N.H. 2003); Kosilek v. Maloney, 221

F. Supp. 2d 156, 180 (D. Mass. 2002) (citing Farmer, 511 U.S. at

835-47); see also Gaudreault, 923 F.2d at 208 (defining a serious

medical need as one “that has been diagnosed by a physician as

mandating treatment, or one that is so obvious that even a lay

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 7 of 11
8

person would easily recognize the necessity for a doctor’s

attention.”) (internal citations omitted). 

“[A]dequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

tailored to an inmate’s particular medical needs, and that are

based on medical considerations. United States v. DeCologero,

821 F.2d 39, 42-43 (1st Cir. 1987). This does not mean that an

inmate is entitled to the care of his or her choice, simply that

the care must meet minimal standards of adequacy. Deliberate

indifference may be found where the medical care provided is “so

clearly inadequate as to amount to a refusal to provide essential

care.” Torraco, 923 F.2d at 234. Constraints inherent in a

prison setting may affect the choice of care provided, and may be

relevant to whether or not prison officials provided inadequate

care with a deliberately indifferent mental state. Wilson v.

Seiter, 501 U.S. 294, 302 (1991). 

Here, O’Neil states that, when he requested medical care he

was given access to a nurse who diagnosed him and treated him

with ibuprofen. O’Neil was provided with ice for his swollen

toe, but not until the following day. I find that the injury was

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 8 of 11
9

not sufficiently serious to give rise to a constitutional right

to medical care or to oblige the HCDOC defendants to do more than

they did. As these allegations do not suffice to allege a

violation of O’Neil’s constitutional rights, even considering his

pretrial status at the time of the incidents alleged, I recommend

that this claim be dismissed.

III. Failure to Bring Criminal Charges

O’Neil alleges that his rights have been violated by the

failure of the Manchester Police Department to bring criminal

charges against Higgins. O’Neil has sued only HCDOC defendants,

however, and not Officer Jajuga, who opted against initiating a

criminal prosecution in this matter. Even if Jajuga had,

however, been sued by O’Neil for failing to bring criminal

charges against a third party, no claim would lie. There is no

cause of action under § 1983 for the failure to prosecute a

crime, as there is no federal constitutional right to have

criminal wrongdoers brought to justice. See Leeke v. Timmerman,

454 U.S. 83, 87 (1982); Nieves-Ramos v. Gonzalez-De-Rodriguez,

737 F. Supp. 727, 728 (D.P.R. 1990) (citing Linda R.S. v. Richard

D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a

judicially cognizable interest in the prosecution or non

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 9 of 11
10

prosecution of another.”)). I therefore recommend that any

intended claim for the failure to prosecute Higgins be dismissed. 

IV. Retaliation

O’Neil loosely asserts that the HCDOC is improperly

retaliating against him, by covering up the alleged assault by

Higgins, in response to a lawsuit plaintiff has previously filed

against O’Mara. O’Neil alleges no facts, however, which support

the suggestion of a causal connection between the actions of

defendants and any retaliatory intent, except the existence of

another lawsuit. Accordingly, I find that insufficient facts are

stated to assert this claim and I recommend it be dismissed.

Conclusion

I find that O’Neil has failed to state any claim upon which

relief might be granted. Accordingly, I recommend that the

complaint be dismissed in its entirety. See LR 4.3(d)(2)(A)(i). 

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

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 10 of 11
11

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: March 18, 2009 

cc: Jeffrey C. O’Neil, pro se

Case 1:09-cv-00006-SM Document 6 Filed 03/18/09 Page 11 of 11