UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Adam Nagle

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

Richard M. Gerry, 

Warden, New Hampshire

State Prison, et al.

Adam Nagle

v. Civil No. 08-cv-432-SM

Richard M. Gerry, 

Warden, New Hampshire

State Prison, et al.

Adam Nagle

v. Civil No. 08-cv-445-JL

Richard M. Gerry, 

Warden, New Hampshire

State Prison, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Adam Nagle is an inmate at the New

Hampshire State Prison (“NHSP”), who brought these 42 U.S.C. §

1983 actions to complain about his treatment while incarcerated. 

Although plaintiff commenced three separate actions, the facts

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1In civil action no. 08-413, plaintiff names as a defendant

NHSP Sergeant Robert Parent; in civil action no. 08-432, he names

NHSP Correctional Officer (“CO”) Erik Jorgensen and four unnamed

CO defendants; and in civil action no. 08-445, plaintiff names

NHSP Warden Richard Gerry, Lieutenant Michael Schofield and

Sergeant Christopher Pelletier as defendants. Because all three

complaints involve the same challenged conduct and assert

overlapping allegations against the same defendants (in fact the

same complaint was simply copied and used to commence two of the

three actions), and because plaintiff seeks to consolidate the

cases, the three actions were treated as one suit for purposes of

the factual findings at the preliminary injunction hearing. 

2

underlying the claims in each complaint are the same; only the

named defendants differs.1 Plaintiff contends defendants have

failed to properly care for his seizure disorder, in violation of

his Eighth Amendment right to be free from cruel and unusual

punishment, and have retaliated against him for complaining about

the care received, in violation of his First and Fourteenth

Amendment rights to pursue the prison grievance process and to

access the courts. Plaintiff also asserts related state tort law

claims and seeks preliminary injunctive relief. After a two day

evidentiary hearing on his request for a preliminary injunction,

and careful consideration of the facts and arguments presented by

both sides, I find that plaintiff is not likely to succeed on the

merits of his claims and is not suffering, nor is he likely to

suffer, irreparable harm. I recommend, therefore, that the

injunctive relief sought be denied.

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Discussion

 1. Background

Plaintiff came to the NHSP after violating parole in April

2008. The evidence showed that plaintiff has a history of panic

attacks and an anxiety disorder, which can cause him to behave

like he is having a seizure. These episodes, however, have been

described as “seizure like” or “pseudo seizures,” because the

electrical activity in the brain typically associated with a

seizure has not been recorded or otherwise detected in plaintiff. 

Whatever the medical basis for his behavior may be, plaintiff

suffers from seizure-like activity that he apparently cannot

control. Plaintiff was aware of his seizure disorder when he

arrived at the NHSP and informed staff of this problem. In

response, staff directed any cell mate of plaintiff to alert them

if plaintiff began to have a seizure, by waving a white towel or

sheet through the cell bars to flag for help. 

The incident giving rise to the instant action occurred on

June 14, 2008. On that day plaintiff was housed in the Secured

Housing Unit (“SHU”) of the NHSP, awaiting placement in another

part of the prison. He began to have a seizure, and his cell

mate flagged the prison guards. Within minutes COs arrived at

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4

plaintiff’s cell, where they found him on the floor, apparently

having a seizure. Defendant Parent was one of the first guards

to arrive on the scene, with two more guards, including defendant

Jorgensen, following closely. The call to plaintiff’s cell was

for a medical emergency, so NHSP nurse Frances Lufkin also

arrived on the scene a few minutes later.

When Sergeant Parent arrived, he ordered plaintiff’s cell

mate cuffed outside the cell and quickly knelt down on the floor,

placing plaintiff’s head in his lap. Within minutes plaintiff

calmed down and regained enough consciousness to get up on the

bunk. Testimony at the hearing varied about the positions of

plaintiff and defendants in the cell, but consistently showed

that plaintiff sat up on his bed and then moved to the edge of

the bunk, with his feet on the floor, next to Sergeant Parent,

who held plaintiff’s wrists in an effort to subdue him. 

While plaintiff was sitting on the bunk, Nurse Lufkin began

asking him questions to evaluate his condition, because his

behavior was like nothing she had ever seen before and did not

present like a normal seizure. Although plaintiff was able to

answer her questions correctly, and even asked for Valium, he

Case 1:08-cv-00413-JL Document 16 Filed 02/17/09 Page 4 of 23
2Nurse Lufkin believed plaintiff was not having seizure, but

instead knew what he was doing, both because of his behavior that

day and because he identified her a days later as the nurse who

assisted him that day. Despite her suspicion of plaintiff’s

motives, she decided to give him the requested Valium because his

records did not indicate he was drug-seeking and because he was 

so upset. 

5

seemed to drift in and out of lucidity.2 He suddenly ripped his

arms loose from Sergeant Parent’s control and began flailing them

in a violent, combative manner. At that point, Sergeant Parent

ordered Nurse Lufkin out of the cell as another CO, Randy Inman,

stepped in to block plaintiff from Nurse Lufkin and help control

the situation. Plaintiff lashed out, striking CO Inman in the

abdomen. CO Inman immediately ordered plaintiff “taken down,”

and defendants Parent and Jorgenson, along with CO Inman, pinned

plaintiff to the floor in an effort to control him. As many as

three or four other COs were in and out of the cell, trying to

assist with the situation.

The evidence was unclear whether plaintiff was placed on a

mattress or a blanket once brought to the floor, but was

consistent that every effort was made to prevent plaintiff from

banging his head or otherwise hurting himself. Force was used to

hold plaintiff down, and a blanket or pillows were placed around

his head. After several minutes, the episode ended, and

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3Testimony at the hearing showed that, after the June 14

episode, plaintiff did not think he had been mistreated. During

a phone call with his mother on June 19, plaintiff told her he

had been hurt by the officers only because he had been out of

control, and that he had not gotten into any trouble despite his

violence, because the officers understood he could not control

his behavior. Plaintiff testified that he was referring to

several different seizures, not just the June 14 seizure, when he

was speaking to his mother.

6

plaintiff lay down on his bunk. Nurse Lufkin gave him the

requested Valium, and he eventually fell asleep. Plaintiff

sustained a large hematoma on his forehead from the incident and

received medical care for it again on June 17. The evidence

demonstrated that he did not complain of any other pain and

sought no further medical attention. The records also showed

that plaintiff never complained to any mental health care staff

members about how the seizure was handled.3 

A second seizure incident occurred on August 25, 2008. 

Plaintiff was found at the bottom of some stairs, but could not

recall whether he fell down the stairs or fell once at the bottom

of them. Plaintiff hit his head and complained of pain on his

right side, headache and blurred vision, but he suffered no

dizziness, nausea or double vision. There was little testimony

regarding this incident, but plaintiff had stopped taking his

anti-seizure medication two weeks prior to the episode because he

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believed it provoked nightmares. It was unclear how long he had

been lying there before help came; however, the medical records

show he was seen by Dr. Eppilito at the NHSP and was taken to

Concord Hospital for a neurological evaluation and treatment. 

There was no evidence that plaintiff sustained any serious or

permanent injuries from the fall or otherwise received inadequate

medical care for this incident.

Plaintiff testified that he suffers from seizures regularly,

but that he stopped complaining about them because of how poorly

he was treated by NHSP staff when having one. This testimony was

contradicted by both the consistent testimony of many NHSP COs,

as well as Nurse Lufkin, who praised how carefully plaintiff had

been handled. The evidence showed that defendants understood

plaintiff has a medical problem, and that his violence and

combativeness were beyond his control. He has received no

disciplinary reports for his behavior during any seizure. The

medical records introduced at the hearing also contradicted

plaintiff’s claim, which document the care plaintiff continued to

receive throughout 2008 and early 2009, specifically for his

seizure episodes and anxiety. Plaintiff’s medical file reflects

many visits to the medical staff, adjustments to his medication,

Case 1:08-cv-00413-JL Document 16 Filed 02/17/09 Page 7 of 23
4Although defendant Parent testified he did not know about

plaintiff’s tactile sensitivity, the medical records and other

testimony indicated that NHSP staff understood the safest way to

handle anyone having a seizure, including plaintiff, was to get

them prostrate on the ground and leave them alone until the

activity ended. 

8

and discussions with plaintiff about his problems and how best to

deal with them. 

The evidence also demonstrated the precautionary measures

defendants have taken to care for plaintiff. NHSP staff ordered

a mattress be placed on the floor in plaintiff’s cell, to provide

him with a safe place to lie while having a seizure episode. 

Another NHSP nurse, Pat Keon, testified that he understood

plaintiff was particularly tactile sensitive, which causes him to

lash out if touched when having a seizure. Nurse Keon testified

that he has advised staff to leave plaintiff alone on the floor

until the episode ends. Nurse Lufkin corroborated that

testimony, explaining it was standard policy to leave a person

alone until the seizure ended.4 The evidence readily

demonstrated that plaintiff has been handled consistent with this

standard procedure. Finally, as recently as December 2008,

plaintiff was transferred to SHU, where he was placed in the only

cell with a video camera specifically so defendants could monitor

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5Plaintiff asked to be transferred from the cell and his

request was granted.

6Based on my review of the record, it appears that plaintiff

may have intended to state that the retaliation claim was limited

to Sergeant Pelletier, not Sergeant Parent. If plaintiff in fact

erroneously named the defendant against whom he intends to pursue

this claim, the mistake is wholly irrelevant, because the record 

fails to demonstrate that plaintiff was retaliated against by

anyone at the NHSP. 

9

him and respond quickly if an episode began.5 

Plaintiff testified that when he was moved to the NHSP’s

Close Custody Unit (“CCU”) in October 2008, the mistreatment

during his seizures finally stopped. Plaintiff further

testified, however, that at that time he began to be harassed by

defendants for having filed complaints about the care he had

received for his seizures. The evidence surrounding the alleged

harassment was confusing and inconsistent. Although plaintiff

originally asserted his retaliation claim against several

defendants, at the hearing plaintiff stated that he was only

pursuing the claim against Sergeant Parent, and that he agreed to

dismiss the claim against all other defendants.6 

Testimony at the hearing indicated that plaintiff first

complained about the June 14 episode in September 2008, when he

wrote a confidential letter to the warden. Plaintiff believed

that his confidential mail to the warden was being intercepted by

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NHSP employees and complained about that to Sergeant Pelletier,

asking him to begin an investigation into plaintiff’s claims and

asking him to copy all incident reports pertaining to him. 

Sergeant Pelletier advised plaintiff to fill out an Inmate

Request Slip (“IRS”) to grieve his complaint, which would then be

handled pursuant to the standard NHSP grievance procedure. On

October 3, 2008, plaintiff filed an IRS form and attached a

fourteen page narrative detailing his complaints of abuse and

neglect and recommending changes to improve the handling of his

seizures. See Pl.’s Ex. 1. 

Among his complaints, both in the IRS and at the hearing,

was that Sergeant Pelletier refused to investigate, correct or

punish any NHSP CO, even if he witnessed some malfeasance. The

evidence, though, did not support this claim. Sergeant Pelletier

explained that he enforces the rules of the prison against

everyone, staff and inmates alike, and would only refuse to

investigate an officer if he were from another unit and,

therefore, not under Pelletier’s authority. Sergeant Pelletier

further testified that he explained to plaintiff that complaints

against officers outside his purview needed to be reported to the

appropriate commanding officer and formalized by filing an IRS

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form. Sergeant Pelletier denied ever telling plaintiff he would

not punish COs who violated prison rules. 

In fact, Sergeant Pelletier gave plaintiff a disciplinary

report for making that false statement in the October 3 IRS form.

See Def.’s Ex. E-2. At the hearing on that disciplinary report,

plaintiff was found guilty of having lied about Sergeant

Pelletier in the October 3 IRS. Plaintiff then claimed that this

disciplinary report further evinced the retaliatory treatment he

was enduring. On October 22, 2008, plaintiff filed another IRS

form, complaining that an officer’s word was accepted over his

word, simply because of their relative positions at the prison. 

See Pl.’s Ex. 3. In plaintiff’s view:

That officer only had to deny my accusation

and write me a d-report. That is retaliation

plain and simple. Now your officer again did

the same thing and if I report his actions he

need only deny it and write another d-report.

Regardless of how you feel about me personally

you know I have a constitutional right to administrative redress without retaliation by your

office. I am asking that you rectify this issue

in some way please.

Id. This claim was undermined by the guilty finding of the

hearing officer. It was further undermined by Sergeant

Pelletier’s credible testimony, which explained how he enforces

NHSP rules and regulations and clarified in detail how he had

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handled plaintiff’s grievances. 

Plaintiff introduced three more exhibits in support of his

retaliation claim. First, on September 27, 2008, he requested a

copy of Sergeant Parent’s incident report for the June 14

seizure. See Pl.’s Ex. 5. Sergeant Parent replied that he had

only one copy and was not sure if he could provide it to

plaintiff at that time. See id. Plaintiff also proffered his

October 23, 2008 IRS form complaining that Lieutenant Schofield

was “losing” his mail and not properly responding to his

complaints. See Pl.’s Ex. 4. This IRS form was answered by

Lieutenant Schofield, who denied the allegations and explained

the efforts he was making to assist plaintiff in processing his

grievances. The form was also reviewed by Unit Manager Thyng,

who explained to plaintiff that Lieutenant Schofield had given

plaintiff the opportunity to combine all the complaints he had

grieved in the “lost” IRS forms and resubmit them for processing. 

Plaintiff apparently accepted that offer, because he gave

Lieutenant Schofield many IRS forms on November 4, 2008. See

Pl.’s Ex. 2. One of the IRS forms plaintiff gave Lieutenant

Schofield on November 4 accused Sergeant Pelletier of ripping his

pictures off the wall. Lieutenant Schofield wrote a disciplinary

Case 1:08-cv-00413-JL Document 16 Filed 02/17/09 Page 12 of 23
7Sergeant Pelletier explained at the hearing that during a

routine inspection of more than 800 cells in CCU, he ripped a

corner of one of plaintiff’s pictures that plaintiff had refused

to take down, in violation of prison rules.

13

report on plaintiff for lying about an officer; however,

following a hearing on the incident, plaintiff was found not

guilty of the charged infraction.7 

Finally, the testimony at the hearing was that plaintiff had

sent many confidential letters to the warden throughout the

summer and fall of 2008, and had received several replies. The

evidence introduced at the hearing consistently demonstrated that

plaintiff has successfully used the prison grievance system,

despite his belief that his mail and IRS forms were being

intercepted to deter him from seeking redress for his alleged

injuries. The evidence also showed that plaintiff has been

fairly treated by the grievance system, having been punished only

after being found guilty of the first disciplinary report and

having been found not guilty of the second disciplinary report. 

Testimony at the hearing also discredited plaintiff’s claim

that as recently as December 2008, CO Michael Byron threatened to

physically harm plaintiff for having pursued his complaints. 

Although CO Byron yelled at plaintiff, the evidence showed

plaintiff instigated the run-in by not following orders and by

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inciting the tier. Plaintiff admitted that he had resolved the

conflict with CO Byron and, in fact, had never been harmed by

him. One NHSP inmate testified that plaintiff admitted he was

pursuing the lawsuits not because he had been injured but because

he wanted to win a $400,000 verdict, which he would use to buy a

house with his girlfriend upon his release. A second inmate

testified that plaintiff told him he was suing for a lot of money

and had offered to “take care of him” if he would write a

statement corroborating the alleged threat from CO Byron. The

evidence proffered at the hearing consistently undermined and

discredited plaintiff’s perception of his treatment at the NHSP. 

2. Standard of Review

As the moving party, plaintiff bears the burden of

demonstrating that an injunction is needed to prevent irreparable

harm and to preserve the status quo, to enable a meaningful

disposition of his claims. See CMM Cable Rep. v. Ocean Coast

Props., 48 F.3d 618, 620-21 (1st Cir. 1995) (enjoining certain

conduct permits the court “more effectively to remedy discerned

wrongs”). Irreparable harm occurs when the challenged conduct

causes some harm that cannot be adequately redressed with

traditional legal or equitable remedies following a trial. See

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15

Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18

(1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); Acierno v. New Castle County, 40 F.3d 645, 653

(3d Cir. 1994) (explaining irreparable harm). To carry this

burden, plaintiff must demonstrate: “(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 Standard Oil Co. v.

Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (internal quote

omitted); see also Ross-Simons of Warwick, Inc., 102 F.3d at 18-

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

If plaintiff is not able to show a likelihood of success on

the merits, the remaining factors “become matters of idle

curiosity,” id., insufficient to carry the weight of this

extraordinary relief on their own. See Esso Standard Oil Co.,

445 F.3d at 18 (the “sine qua non . . . is likelihood of success

on the merits”) (internal quotation omitted)). Although success

on the merits is critical, a preliminary injunction will not

Case 1:08-cv-00413-JL Document 16 Filed 02/17/09 Page 15 of 23
16

issue unless plaintiff will be irreparably harmed without the

requested relief. See Ross-Simons of Warwick, Inc., 102 F.3d at

19 (“the predicted harm and the likelihood of success on the

merits must be juxtaposed and weighed in tandem”). As explained

below, I find the current record demonstrates that plaintiff is

unlikely to succeed on the merits of his claims and will not

suffer irreparable harm unless an injunction issues. 

3. Eighth Amendment Claims

Plaintiff claims that defendants have abused him, used

excessive force on him, and denied him adequate medical care, in

violation of his Eighth Amendment right to be free from cruel and

unusual punishment. See U.S. Const. amend. VIII. He requested

injunctive relief in the form of a transfer from the NHSP, and I

assume he seeks it generally to stop the alleged abuse.

An Eighth Amendment violation contains both an objective

component, that the challenged conduct is sufficiently egregious

that it offends evolving standards of decency and denies

plaintiff “the minimal civilized measure of life’s necessities,”

Rhodes v. Chapman, 452 U.S. 337, 347 (1981), and a subjective

component, that prison officials acted with deliberate

indifference to the plaintiff’s serious needs, which results in

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the “unnecessary and wanton infliction of pain.” Ingraham v.

Wright, 430 U.S. 651, 670 (1977) (quoting Estelle v. Gamble, 429

U.S. 97, 102-03 (1976)); see also Wilson v. Seiter, 501 U.S. 294,

298-99 (1991); Farmer v. Brennan, 511 U.S. 825, 832-34 (1994);

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

protection has been construed to require that prison officials

are not deliberately indifferent to an inmate’s serious medical

needs. See Farmer, 511 U.S. at 831; Rhodes v. Chapman, 452 U.S.

337, 347 (1981); Surprenant v. Rivas, 424 F.3d 5, 18-19 (1st Cir.

2005); Barrett v. Coplan, 292 F. Supp. 2d 281, 285 (D.N.H. 2003). 

Deliberate indifference relates to the prison official’s

subjective awareness of the inmate’s need and his intentional

failure to ensure the needed treatment is provided. Farmer, 511

U.S. at 837 (describing subjective component of the violation);

Estelle, 429 U.S. at 105-06 (inflicting unnecessary and wanton

pain violates the Eighth Amendment, not medical negligence);

Barrett, 292 F. Supp. 2d at 285 (finding deliberate indifference

“where the medical care provided is so clearly inadequate as to

amount to a refusal to provide essential care” (internal

quotation omitted)).

Plaintiff has failed to carry his burden here on either the

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18

objective or the subjective component of his Eighth Amendment

claim. Nothing in the record supports his claim that he suffered

from excessive force or abuse, either while he had a seizure or

independent of those episodes. Throughout the two days of

testimony, plaintiff’s claims were repeatedly undermined and

contradicted by the many witnesses who testified, including two

other inmates, two nurses and several COs. The record was

replete with evidence that the force used against plaintiff was

in response to his own violent, combative behavior and was done

in a good-faith effort to diffuse tension and prevent physical

harm. 

The two incidents where plaintiff was restrained -- during

transport to the infirmary and during the June 14 seizure --

lasted only as long as plaintiff’s medical condition seemed to

require. The several witnesses who described the events of June

14 were extremely credible, explaining the urgency of the

situation and their intention to minimize any injury plaintiff

might have inflicted either on himself or others. The evidence

was consistent and substantial that defendants understood

plaintiff’s violent behavior was caused by a medical condition

and should be dealt with as a medical emergency, not a

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8Sergeant Parent admitted at the hearing he did not

understand previously that plaintiff was tactile sensitive and,

therefore, should not be touched while having an episode. Yet

there was also no evidence that Sergeant Parent was involved in

responding to any of plaintiff’s seizures besides the June 14,

2008 incident. The evidence surrounding the handling of the June

14 incident overwhelming demonstrated the chaos of an emergency

and the compassion and care taken to respond to the situation. 

19

disciplinary infraction. The evidence also showed that a

standard protocol was both in place and in fact implemented to

deal with plaintiff’s seizures, including having a mattress in

his cell and leaving plaintiff alone until the episode ended.8

Nothing in the record remotely supports plaintiff’s claim

that defendants acted with callous and reckless disregard of his

serious medical needs. To the contrary, I find that plaintiff

has received immediate and appropriate care as soon as defendants

have realized he is having a seizure-like episode, as evidenced

by both the testimony at the hearing and plaintiff’s medical

records. Cf. Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir.

1991) (deliberate indifference found where “the attention

received is so clearly inadequate as to amount to a refusal to

provide essential care”); Burke v. N.D. Dep’t of Corr., 294 F.3d

1043, 1044 (8th Cir. 2002) (citing gross incompetence and

intentional maltreatment as examples of deliberate indifference);

Rather than disregarding a substantial risk of serious harm or

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unnecessarily and wantonly inflicting pain, see Estelle, 429 U.S.

at 106, Farmer, 511 U.S. at 847, the record here amply supports

the conclusion that defendants have been attentive to plaintiff’s

condition and responsive to his needs for medical care. Based on

the substantial evidence justifying the decisions made here, I

find plaintiff is unlikely to succeed on his Eighth Amendment

claims for either excessive force or denial of adequate medical

care.

4. Retaliation Claims

Plaintiff’s claim that defendants have retaliated against

him for complaining about how his seizures have been handled is

similarly baseless, as he has failed to adduce evidence to

support any part of a retaliation claim. To demonstrate

retaliation, there must be “(1) constitutionally protected

conduct, (2) an adverse action by prison officials sufficient to

deter a similarly situated person of ordinary firmness from

exercising his [constitutional] rights, and (3) a causal link

between the exercise of his constitutional rights and the adverse

action taken against him.” Mitchell v. Horn, 318 F.3d 523, 530

(3d Cir. 2003) (internal quotation omitted)). The chronology of

events is critical, because “a retaliatory state of mind

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typically is not susceptible to proof by direct evidence that can

be averred in a complaint.” Ferranti v. Moran, 618 F.2d 888, 892

(1st Cir. 1980) (citing McDonald v. Hall, 610 F.2d 16, 18 (1st

Cir. 1979)). Retaliatory intent can be inferred, however, from

the chronology of the cited events. See id.; see also Oropallo

v. Parrish, No. 93-1953, 1994 WL 168519, at *4 (1st Cir. May 5,

1994) (explaining how the challenged event must follow the

exercise of the constitutional right).

The evidence here shows no suggestion of retaliatory

treatment. As described at length above, plaintiff suffered no

adverse consequences for having pursued his complaints through

the prison’s grievance system to the instant lawsuits. The

record demonstrates that his IRS forms have been responded to,

and that the disciplinary procedure has been properly followed. 

The testimony at the hearing overwhelmingly stated that plaintiff

is argumentative, disobedient and violent, and those privileges

he has lost were justified by his own conduct and not done in

retaliation for his having exercised his right to seek redress

for his grievances. Testimony at the hearing also showed that

plaintiff has violated several NHSP rules, including bartering

and inciting the tier, and received no disciplinary action. 

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22

Finally, plaintiff admitted, consistently with the testimony of

all the other witnesses, that despite his violent, combative

behavior during his seizure-episodes, he has never been punished. 

I find, based on the record before me, that plaintiff simply

has not been adversely treated by defendants since his arrival at

the NHSP. There is nothing that even gives rise to an inference

that defendants’ treatment of plaintiff was motivated by a

retaliatory intent to deter him from exercising his

constitutional right to seek redress for his complaints. The

record points to the inevitable conclusion, that plaintiff is

unlikely to succeed in his retaliation claim.

Conclusion

For the reasons set forth above, I find that plaintiff is

unlikely to succeed in either his Eighth Amendment claims or his

First and Fourteenth Amendment retaliation claims. To the

contrary, the evidence suggests that plaintiff’s complaints may

be less than genuine, and he is advised that representations to

the court must be made in good-faith and supported by factual

evidence. See Fed. R. Civ. P. 11(b).

Because I find that plaintiff is unlikely to succeed on the

merits of his claims, further analysis of the factors justifying

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a preliminary injunction is not warranted. I recommend that

plaintiff’s request for preliminary injunctive relief be denied.

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). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: February 17, 2008 

cc: Adam H. Nagle, pro se

Deborah B. Weissbard, Esq.

 

 

 

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