1In addition to naming Roger Zerba individually as a

defendant to this action, Hall names the County Commissioners of

Cheshire County, collectively, as defendants to this action. 

Hall has sued these defendants in their official capacities as

officials of Cheshire County. “A suit against a public official

in his official capacity is a suit against the governmental

entity itself.” Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir.

2005). The claims against Zerba and the County commissioners,

therefore, are claims against Cheshire County. Id. 

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin D. Hall

v. Civil No. 07-cv-332-SM

Roger Zerba, Cheshire County

Commissioners, et al.1

O R D E R

Before the Court is Kevin Hall’s complaint (document no. 1),

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

by failing to create policies providing for and ensuring safe and

adequate housing conditions, adequate medical and mental health

care, and privacy in medical records in the Cheshire County House

of Corrections (“CCHC”), were deliberately indifferent to his

health and safety, causing violations of his Eighth Amendment

rights. Because Hall is a prisoner, this matter is before me for

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2

preliminary review to determine, among other things, whether or

not the complaint states any claim upon which relief might be

granted. See 28 U.S.C. § 1915A; United States District Court for

the 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

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, ___ U.S. ___, 127 S. Ct. 2197, 2200

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

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

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

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3

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

In this action, Hall challenges conditions of his

confinement during his incarceration at the CCHC between October

2004 and February 2005. Hall alleges that when he entered the

CCHC, the officials there were aware that he had mental health

problems. Despite this knowledge, Hall claims he was deprived of

conditions of confinement that were consistent with his mental

health needs. Specifically, he alleges that he was held in an

“isolation chamber” known as “The Closet” during a 43-day suicide

watch. Hall claims that, while in the isolation chamber, he was

infrequently checked on, his requests for medical and mental

health assistance were ignored or denied, the water and lights

were turned off in the isolation chamber, and he was deprived of

a mattress and clothing for weeks at a time. Once, Hall asserts

he was left naked and unconscious in a large pool of his own

blood from self-inflicted injuries, and then, when he regained

consciousness, CCHC personnel gave him a razor and told him to

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4

shave. Hall states that after 40 days in the isolation chamber,

he used a long and heavy piece of metal, that he ripped from the

cell’s structure, to smash and tunnel through the cinderblock

walls of the isolation chamber into cells inhabited by other

inmates. This activity was not noticed for three days due to the

lack of adequate supervision in the isolation chamber. In

addition, Hall states that he had very serious medical problems

while he was at the CCHC that were not attended to. Hall claims

his condition at that time was so dire that, when he was

transferred, after 43 days, to another county jail, he was

immediately rushed to the hospital, as the severity of his

medical condition was obvious. At the hospital, he was operated

on for life-threatening internal injuries, and spent several

weeks in the intensive care unit. Hall claims that he has

suffered serious and permanent damage as a result of the lack of

medical care he received at the CCHC. Finally, Hall also

complains that the CCHC systems for managing inmate medical

records was inadequate to protect his privacy, as the CCHC had no

medical unit and no secure place to store records.

Hall now charges that the defendant, Cheshire County, is

responsible for causing the unconstitutional deprivations he

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5

suffered at the CCHC because it failed to create and maintain

policies and practices in the management of the CCHC. That

failure created the following conditions of confinement which

caused the constitutional violations of Hall’s constitutional

rights: (1) failure to maintain a medical unit at the CCHC; (2)

failure to provide video or personal surveillance as necessary to

ensure the safety of suicidal inmates; (3) failure to ensure

adequate staff at the CCHC to protect the health and safety of

the inmates; (4) failure to adequately train staff in medical

response; (5) failure to adequately train staff in suicide

prevention and response; (6) failure to adequately address the

mental health treatment needs of mentally ill inmates; (7)

failure to maintain privacy in inmate medical records; (8)

failure to segregate mentally ill inmates as appropriate; and (9)

failure to prevent harm to Hall by holding him in a cell where he

had access to materials and potential weapons that he was able to

use to injure himself.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

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242 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

ordinance, regulation, custom, or usage, of any 

State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of

the United States or other person within the 

jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party 

injured in an action at law . . . .

6

or statutory law. See 42 U.S.C. § 19832; Parratt v. Taylor, 451

U.S. 527, 535 (1981) (overruled on other grounds by Daniels v.

Williams, 474 U.S. 327, 330-331 (1986)); Wilson v. Town of

Mendon, 294 F.3d 1, 6 (1st Cir. 2002). In order to be held

liable under § 1983, a defendant’s conduct must have caused the

alleged constitutional or statutory deprivation. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v. Flores,

103 F.3d 1056, 1061-62 (1st Cir. 1997). Because Hall has alleged

that Cheshire County, acting pursuant to authority granted by

state law, caused violations of his federal constitutional

rights, this action arises under § 1983.

II. Eighth Amendment Claims

A. Conditions of Confinement

To state a claim that the conditions of his incarceration

were in violation of the Eighth Amendment’s guarantee against

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7

cruel and unusual punishment, Hall must demonstrate that he was

subjected to conditions that resulted in a deprivation of his

right to humane treatment that was objectively serious, and that

the official who caused the deprivation was “deliberately

indifferent” to his needs. See Farmer v. Brennan, 511 U.S. 825,

841 (1994) (citing Canton v. Harris, 489 U.S. 378, 390 (1989));

Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 63-64 (1st Cir.

2002); Giroux v. Somerset County, 178 F.3d 28, 32 (1st Cir.

1999). A challenged condition of confinement is objectively

serious, standing alone or in combination with other conditions,

if it deprives the inmate of an identifiable, human need. See

Wilson v. Seiter, 501 U.S. 294, 304 (1991). A prison official is

“deliberately indifferent” if he is “aware of facts from which

the inference could be drawn that a substantial risk of serious

harm exists,” and also draws the inference. Farmer, 511 U.S. at

837 (1994). Thus, an Eighth Amendment claim arises only if an

official inflicts “cruel and unusual punishment” by knowing of

and disregarding “an excessive risk to inmate health or safety.” 

Id. at 837, 838; see Giroux, 178 F.3d at 32 (explaining how the

official must have “an actual, subjective appreciation of risk”). 

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Hall states that during his time in the isolation chamber,

he was often deprived of clothing and bedding for weeks at a

time, and was denied access to water and lights. Further, his

cell was often left covered in blood after Hall had injured

himself. Hall states that despite the CCHC personnel’s knowledge

of his mental health issues and history of self-mutilation and

self-injurious behavior, he was held in a cell that was in such

poor condition that he was able to rip it apart, not only causing

damage to the cell, but giving him access to weapons and

materials that he could use to injure himself. These facts

suffice to state a claim for a denial of adequately humane

conditions of confinement upon which relief might be granted.

B. Medical and Mental Health Care

To assert a viable cause of action for inadequate medical

care under the Eighth Amendment, an inmate must first state facts

sufficient to allege that the plaintiff had a serious medical

need for which adequate care was not provided. Farmer, 511 U.S.

at 832; 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

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treatment. Id. 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 v. Mun’y

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

person would easily recognize the necessity for a doctor’s

attention.”). The Eighth Amendment applies to a prison’s

administration of medical care, including mental health care. 

See DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991); Torraco

v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991) (recognizing

deliberate indifference to an inmate’s mental health needs

violates the Eighth Amendment). 

“Adequate medical care” is treatment by qualified medical

personnel who provide services that are based on medical

considerations and are of a quality acceptable to the prudent

professional standards in the community, tailored to an inmate’s

particular medical needs. United States v. DeCologero, 821 F.2d

39, 42-43 (1st Cir. 1987). This does not mean that an inmate is

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entitled to the care of his or her choice, simply that 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. Seiter, 501

U.S. at 302.

Hall asserts that he suffered from a number of serious

medical conditions, as a result of mutilating himself externally,

and of eating metal and glass objects that severely damaged his

internal organs. Hall advised CCHC personnel of his need for

medical care, and CCHC staff were aware of his mental illness and

inclination to harm himself, as evidenced by the fact that Hall

had been placed on a suicide watch for a period of 43 days. Even

if CCHC personnel were not specifically made aware of his

condition, however, Hall claims that his need for medical care

was obvious, and that CCHC personnel witnessed him engaging in

dangerous behavior and causing significant harm to himself. 

Additionally, Hall states that when, after 43 days in the

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isolation chamber, he was transferred to another county jail, the

staff there immediately recognized his need to be hospitalized. 

I find that these facts suffice to allege a claim that Hall was

denied adequate medical and mental health care for a serious

medical need, of which CCHC officials were aware.

C. Privacy in Medical Records

People have a constitutional right to privacy which protects

“the individual interest in avoiding disclosure of personal

matters.” See Whalen v. Roe, 429 U.S. 589, 599 (1977). Although

the right to privacy in one’s medical information is well

established, see Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001),

the precise contours of that right have not been clearly defined

in this Circuit. See Borucki v. Ryan, 827 F.2d 836, 848 (1st

Cir. 1987) (approving an approach that balances the privacy

rights of the individual seeking to protect information against

the governmental interest in dissemination). Hall alleges that

his medical records were not secured at the CCHC and were stored

without regard to his privacy or confidentiality rights as any

number of unauthorized people could gain access to them. 

Accordingly, while the claim, at present, is sparsely alleged, 

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Hall has stated sufficient facts to allow the claim to proceed at

this time.

III. Municipal Liability

Hall has named Roger Zerba, in his official capacity as the

Commissioner of Cheshire County, as a defendant to this action,

which is another way of naming the County as the defendant to

this action. Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir.

2005). Municipalities and local government entities are

“persons” within the meaning of § 1983. See Monell, 436 U.S. at

690. Under New Hampshire law, counties, such as Cheshire, are

considered local governmental units. See N.H. Rev. Stat. Ann.

(“RSA”) 507-B:1 (defining “governmental unit” as “any political

subdivision within the state including any county, city, town . .

. but [not including] the state or any department or agency

thereof.”). In New Hampshire, “[t]he county commissioners shall

establish polices and procedures for the management of the county

department of corrections” and “. . . shall adopt any necessary

rules and regulations for the fulfillment of the powers and

duties of the superintendent.” RSA 30-B:6. Therefore, Cheshire

County is the appropriate defendant to a claim challenging 

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municipal policies or practices creating and causing

unconstitutional conditions of confinement at the CCHC.

In order to maintain an official capacity suit against

Cheshire County, two requirements must be met. “First, the

custom or practice must be attributable to the municipality,

i.e., it must be ‘so well settled and widespread that the

policymaking officials of the municipality can be said to have

either actual or constructive knowledge of it yet did nothing to

end the practice.’” Miller v. Kennebec County, 219 F.3d 8, 12

(1st Cir. 2000) (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156

(1st Cir. 1989)). Second, the custom must have been the cause of

and “the moving force” behind the deprivation of constitutional

rights. See Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404

(1997); Wood v. Hancock County Sheriff’s Dep’t, 354 F.3d 57, 64

(1st Cir. 2003) (citing Miller, 219 F.3d at 12).

Liberally construing Hall’s claims, as I must at this stage

of the proceedings, I find that he has alleged that defendant

Cheshire County, as the governmental entity in charge of managing

the CCHC, failed to create policies to adequately manage the

facilities, staffing, and services provided for inmates at the

CCHC. Hall further alleges specific facts demonstrating that

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these failures have created a custom and practice of deprivation

and mismanagement which has caused violations of his Eighth

Amendment rights to medical and mental health care, humane

conditions of confinement, and privacy in his medical records. 

See Surprenant, 424 F.3d at 20-21. Accordingly, I find that Hall

has stated the minimum facts necessary to sufficiently state a

claim for a violation of his Eighth Amendment rights against

Cheshire County.

Conclusion

Without further comment on the merits of the complaint, I

order that it be served on defendant Roger Zerba, in his official

representative capacity for Cheshire County. My review of the

file indicates that Hall has completed a summons form for Zerba. 

The Clerk’s office is directed to issue the summons against the

defendant and forward to the office of the United States Marshal

for the District of New Hampshire (the “U.S. Marshal’s office”),

to the defendants, by delivering to Zerba, as the chief executive

officer of Cheshire County, a copy of the summons, complaint

(document no. 1), and this Order. See Fed. R. Civ. P. 4(j)(2). 

Upon receipt of the necessary documentation, the U.S. Marshal’s 

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office shall effect service upon defendant Cheshire County. See

Fed. R. Civ. P. 4(c)(2). 

Defendant is instructed to answer or otherwise plead within

twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendant by delivering or mailing the materials to defendant

or to defendant’s attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 14, 2008

cc: Kevin D. Hall, pro se

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