1On March 7, 2008, Palermo filed his complaint in this

matter (document no. 1). On March 11, 2008, Palermo filed an

“additional complaint” (document no. 3). I construe the second

filing as an addenda to the original complaint, and will consider

both documents, in the aggregate, to be the complaint in this

matter.

2Although Palermo does not specifically cite the RLUIPA as

grounds for relief in this matter, I find that, construed

liberally, the complaint alleges a claim under the RLUIPA and I

will consider that claim, as described in this Order, to have

been raised in the complaint.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher Palermo

v. Civil No. 08-cv-87-JD

Al Wright, Superintendent,

Rockingham County Department

of Corrections

O R D E R

Before the Court is Christopher Palermo’s complaint

(document nos. 1 & 3),1 filed pursuant to 42 U.S.C. § 1983 and

the Religious Land Use and Institutionalized Persons Act, 42

U.S.C. § 2000cc (“RLUIPA”).2 Palermo filed this action while

housed at the Rockingham County House of Corrections (“RCHC”),

alleging that the defendants, employees of the RCHC, have

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2

violated his federal constitutional and statutory rights to

freely exercise his religion, and his constitutional rights to

adequate vision care and an adequate law library. The complaint

is before me for preliminary review to determine whether, among

other things, it states any claim upon which relief might be

granted. See 28 U.S.C. § 1915A; 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

magistrate judge is directed to conduct a preliminary review. 

Id. 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

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3

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 Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (stating

the “failure to state a claim” standard of review and explaining

that all “well-pleaded factual averments,” not bald assertions,

must be accepted as true.” This review ensures that pro se

pleadings are given fair and meaningful consideration. 

Background

1. Facts Relating to Religious Practice Claims

Christopher Palermo entered the RCHC on February 26, 2008. 

Upon his intake at the RCHC, Palermo notified RCHC staff that he

required a religious diet because he follows the Wicca religion. 

The RCHC staff failed to honor his request for a religious diet,

instructing him to “starve” if he didn’t want to eat the meat

served. 

On March 4, 2008, Palermo spoke with RCHC Chaplain Kent

Threlfail, who told Palermo that in his view, Wicca is akin to

Satanism, and therefore, would not be recognized or accommodated

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4

by Threlfail or the RCHC. Also on that basis, Threlfail denied

Palermo access to certain religious ritual items.

2. Facts Relating to Vision Care Claim

On March 5, 2008, Palermo asked Debbie, an RCHC nurse, for

an eye examination and glasses. Palermo explained to Debbie that

he needed glasses because he has an astigmatism, and without

corrective lenses, his eyes will get worse. Palermo further

explained to Debbie that his glasses had been broken and disposed

of by members of the RCHC staff. Debbie refused to provide

Palermo with either an eye examination or glasses.

3. Facts Relating to Law Library Claim

Palermo claims that the law library at the RCHC is

incomplete and inadequate to meet his legal research needs. 

Specifically, Palermo asserts that the library contains no

federal caselaw, no legal research digests, and no Lexis

computerized legal research system. The library, according to

Palermo, contains only an incomplete set of New Hampshire

statutes and information on immigration law. Palermo claims that

his efforts to pursue pro se actions during his incarceration

have been hindered by his inability to conduct legal research at

the RCHC.

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3The claims as identified herein will be considered for all

purposes to be the claims raised in the complaint. If Palermo

disagrees with this identification of the claims, he must

properly move to amend his complaint.

442 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 . . . .

5

Discussion3

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

or statutory law. See 42 U.S.C. § 19834; 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 for a defendant

to be held liable under § 1983, his or her 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 

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6

Palermo’s claims allege violations of federal constitutional and

statutory law by state actors, his suit arises under § 1983.

II. Pretrial Detainee Status

Palermo was a pretrial detainee at the RCHC at the time the

events he describes occurred. Detainees have a constitutional

right under the due process clause of the Fourteenth Amendment to

be free of punishment. See Surprenant v. Rivas, 424 F.3d 5, 15

(1st Cir. 2005) (citing O’Connor v. Huard, 117 F.3d 12, 15 (1st

Cir. 1997)). However, challenged conditions or restrictions

which can be rationally related to some legitimate administrative

goal or security concern generally will not be deemed

unconstitutional “punishment.” O’Connor, 117 F.3d at 15. 

Because the Due Process Clause prohibits the infliction of

punishment on a person prior to a judgment of conviction, the

issue in evaluating claims by a pretrial detainee is ultimately

whether the conditions of confinement were reasonably related to

a legitimate state interest or were intended instead as

punishment. See Surprenant, 424 F.3d at 13; Collazo-Leon v. U.S.

Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995).

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7

III. Claims Regarding Religious Practice

A. The First Amendment/Free Exercise Clause Claim

The First Amendment of the United States Constitution

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof.” The first religion clause of the First Amendment, the

Establishment Clause, mandates the separation of church and

state. The second religion clause of the First Amendment, the

Free Exercise Clause, requires that government respect and not

interfere with the religious beliefs and practices of those

protected by the United States Constitution. See Cutter v.

Wilkinson, 544 U.S. 709, 719 (2005).

A prisoner “retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” 

Pell v. Procunier, 417 U.S. 817, 822 (1974). The retained rights

include the right to the free exercise of religion. Cruz v.

Beto, 405 U.S. 319, 322 (1972). Prisons must provide all inmates

reasonable opportunities to exercise religious freedom. Id. at

322, n.2. When a prisoner raises a Free Exercise Clause claim,

he must “establish that a challenged policy restricts the

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8

inmate’s free exercise of a sincerely held religious belief.” 

Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Barnett v.

Comm’r, N.H. Dep’t of Corr., No. Civ. 98-305-JD, 2000 WL 1499490

at *2 (D.N.H. Apr. 26, 2000).

The Supreme Court has held that a prisoner’s sincerely held

religious beliefs must yield, however, if contrary to prison

regulations that are “reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987); see O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-352

(1987) (finding that the Constitution does not require the prison

to sacrifice legitimate penological objectives to satisfy an

inmate’s desire to exercise his religion so long as an inmate is

not deprived of all forms of religious exercise). A prison

regulation must have a logical connection to the legitimate

governmental interests invoked to justify it. Turner, 482 U.S.

at 89-90. That connection may not be “so remote as to render the

policy arbitrary or irrational.” Id. Prisons must provide all

inmates reasonable opportunities to exercise their religious

freedom. See Cruz, 405 U.S. at 322 n.2. Free exercise claims

brought by prisoners are “judged under a ‘reasonableness’ test

less restrictive than that ordinarily applied to alleged

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9

infringements of fundamental constitutional rights.” Ford v.

McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (quoting O’Lone, 482

U.S. at 349); see also Shaw v. Murphy, 532 U.S. 223, 227-229

(2001). 

B. The Religious Land Use and Institutionalized Persons 

Act Claim

Palermo’s allegation that he was denied access to a

religious diet and religious items can also be construed as a

claim brought under the RLUIPA which, in certain circumstances,

prohibits government infringement on the practice of religion. 

See Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002). 

Under the RLUIPA, governmental imposition of a “substantial

burden on the religious exercise” of a prisoner is prohibited,

unless the burden “(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C. §

2000cc-1(a). The phrase “religious exercise” is to be construed

liberally to include belief and professing of one’s faith as well

as the performance of physical acts, such as assembling with

others to worship. See Cutter, 544 U.S. at 720. 

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10

C. Wicca

“‘Wicca is a polytheistic faith based on beliefs that

prevailed in both the Old World and the New World before

Christianity.’” Kay v. Bemis, 500 F.3d 1214, 1219 n.5 (10th Cir.

2007) (quoting O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400

(7th Cir. 2003)). As such, Wicca is a religion that has been

practiced and recognized for thousands of years. Threlfail’s

indication to Palermo that neither he nor any of the RCHC

administration would recognize his religion, and, therefore, that

he would not be permitted to have a religious diet or religious

ritual items, denied Palermo access to freely exercise his

religion. For purposes of preliminary review, I find that

nothing in the complaint indicates that there is any reason to

believe, at this stage, that there exists any lack of sincerity

in Palermo’s belief. Further, I find that religious diets and

ritual items can be considered to be important aspects of

religious practice or expression. Nothing in the facts alleged

in the complaint give me any reason to believe that this is not

the case here.

The complaint adequately alleges that defendant Threlfail

has substantially burdened Palermo’s religious practice by

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11

denying him a religious diet and religious ritual items. Nothing

in the facts alleged indicates or implies that denying Palermo

access to these opportunities to practice his religion furthered

any compelling governmental interest, or was the least

restrictive means of furthering such an interest. Accordingly,

Palermo’s allegations suffice to state claims against Threlfail

under both the Free Exercise Clause of the First Amendment and

the RLUIPA. Further, I find that Threlfail’s assertion that the

RCHC would not recognize Palermo’s religious practice implicates

Al Wright, who, as the RCHC Superintendent, is responsible for

the administration of policies at the RCHC. Accordingly, I will

direct that this claim be served against Threlfail and Wright.

IV. Inadequate Vision Care Claim

To state a cause of action under § 1983 premised on

inadequate medical care, a plaintiff must allege facts which

demonstrate that the defendant acted with deliberate indifference

to the prisoner’s serious medical needs. Estelle, 429 U.S. at

106; Bean v. Cunningham, 650 F. Supp. 709, 713 (D.N.H. 1986). 

Deliberate indifference may be manifested by prison medical

personnel in their response to prisoners’ needs or by prison

personnel “intentionally denying or delaying access to medical

Case 1:08-cv-00087-JD Document 6 Filed 07/24/08 Page 11 of 16
12

care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. As to the second

essential element, “[a] medical need is ‘serious’ if it is 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.” Gaudrealt v.

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

inadequate vision care can support a valid § 1983 action

challenging the improper denial of medical care. See Koehl v.

Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). 

Palermo has demonstrated that he had a diagnosed need for

vision correction for his astigmatism, a serious medical

condition, and that the defendants nevertheless failed to provide

him with an eye examination or eyeglasses. Further, Palermo

indicates that he had glasses upon his entry to the RCHC, but

that RCHC staff broke his glasses, leaving him without adequate

vision correction. Palermo has alleged the minimum facts

necessary to state a claim for inadequate vision care to allow

this claim to proceed. However, the matter cannot, at this time,

proceed against Debbie because she has not been identified by her

full name. Defendants must be named in order to be served. 

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5Upon service of this action on Threlfail and Wright,

Palermo can serve the named defendants with interrogatories to

obtain the full name of the presently unnamed defendant pursuant

to Fed. R. Civ. P. 33(a) which states in pertinent part:

Without leave of court or written stipulation, 

any party may serve upon any other party 

written interrogatories, not exceeding 25 in 

number including all discrete subparts, to be 

answered by the party served or, if the party 

served is a public or private corporation or a 

partnership or association or governmental 

agency, by an officer or agent, who shall 

furnish such information as is available to 

the party. 

13

Palermo will be able to obtain Debbie’s full name in discovery.5 

Once Palermo identifies Debbie by her full name, he must properly

move to amend his complaint to notify the Court of her name, and

request that she be served with this action. 

IV. Inadequate Law Library Claim

Palermo claims that no adequate law library is maintained at

the RCHC, and that what legal resources are available are

insufficient to meet his needs as a pro se litigant. Palermo

asserts, without citing specific details, that he has been

hampered in pursuing his pro se litigation by the lack of

adequate law library facilities at the RCHC.

Although not entitled to all of the constitutional rights

guaranteed to nonincarcerated people, prisoners maintain a

Case 1:08-cv-00087-JD Document 6 Filed 07/24/08 Page 13 of 16
6While Palermo does not specify what pro se action has been

hindered, I will presume, for purposes of preliminary review,

that Palermo may well be referring to one or more of the four

prison condition complaints that Palermo has filed in this Court. 

Such an action is one that Palermo is constitutionally entitled

to maintain.

14

constitutional right of access to the courts that affords them

access to the tools necessary to challenge their criminal cases,

criminal convictions and sentences directly or collaterally, to

file habeas petitions, or to challenge the conditions of their

confinement through civil rights actions. Lewis v. Casey, 518

U.S. 343, 345 (1996). In order to state a claim for denial of

access to the courts under § 1983, a prisoner must demonstrate

that the actions that resulted in the denial of access to the

courts “hindered his efforts to pursue a legal claim” that he is

constitutionally entitled to pursue during his incarceration. 

Id. at 351. 

Here, Palermo has stated that the library at the RCHC is

inadequate. Palermo has also asserted, albeit minimally, that

this lack of resources has diminished his ability to pursue his

pro se litigation.6 Accordingly, I find that Palermo has stated

the minimum facts necessary to allege a violation of his right to

an adequate law library, and I will direct that this claim be

served. Although he names no specific defendant in this action,

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15

I find that the Superintendent of the RCHC can be reasonably

inferred to be aware of the RCHC’s lack of law library

facilities, and, in the Order issued simultaneously with this

Report and Recommendation, I will direct this claim to be served

on Wright.

Conclusion

For the reasons stated herein, the claims alleging: (1) a

violation of Palermo’s First Amendment right to freely exercise

his religion; (2) a violation of Palermo’s rights under the

RLUIPA; and (3) a violation of Palermo’s right to adequate legal

resources, may be served on defendants Threlfail and Wright. I

further authorize service of the claim alleging a violation of

Palermo’s right to adequate vision care, but withhold an Order

directing service of that claim until such time as Palermo

properly names a defendant to that claim and amends his complaint

to include that defendant. At that time, service shall be made

against the properly named defendant.

My review of the file indicates that Palermo has completed a

single summons form listing all of the defendants to this action. 

Plaintiff must submit a separate summons form for each defendant

named. Plaintiff shall therefore prepare summonses for each

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16

defendant named herein and submit them to the Clerk’s office

within thirty (30) days of the date of this order. Upon receipt

of the completed summonses, the Clerk’s office shall issue the

summonses against defendants and forward to the United States

Marshal for the District of New Hampshire (the “U.S. Marshal’s

office”) the summonses and copies of the complaint (document nos.

1 & 3), and this Order. Upon receipt of the necessary

documentation, the U.S. Marshal’s office shall effect service

upon Defendants. See Fed. R. Civ. P. 4(c)(2). 

Defendants are instructed to answer or otherwise plead

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

Palermo is instructed that all future pleadings, written

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

the Defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 24, 2008

cc: Christopher Palermo, pro se

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