1In addition to Wrenn, Hazelton names New Hampshire

Department of Corrections Deputy Commissioner Christopher Kench

and Northern New Hampshire Correctional Facility employees Cpl.

Shane Mailhot, Librarian Angela Poulin, Corrections Officer

(“C.O.”) Overhaufer (First Name Unknown (“FNU”)), C.O. FNU

Lemieux, C.O. FNU Dube, Unit Manager Robert Thyng, C.O. FNU

Westbury, Cpl. FNU MacFarland, and Warden Larry Blaisdell as

defendants to this action.

2Although Hazelton has not specifically alleged a claim

under the ADA, I find that his allegations sufficiently state

such a claim and I will therefore construe the complaint to

include an ADA claim.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Timothy W. Hazelton, Sr.

v. Civil No. 08-cv-419-JL

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.1

O R D E R

Before the Court is Timothy Hazelton, who brings this action

pursuant to 42 U.S.C. § 1983, alleging that his Eighth Amendment

right not to be subject to cruel and unusual punishment, as well

as his rights under the Americans with Disabilities Act, 42

U.S.C. 12132 et seq. (“ADA”)2, have been violated. The matter is

before me for preliminary review to determine whether the

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 1 of 20
2

complaint states any claim upon which relief might be granted. 

See United States District Court District of New Hampshire Local

Rule (”LR”) 4.3(d)(2). As explained herein, I find that Hazelton

has stated sufficient facts to assert claims for relief, and I

direct that this action proceed against defendants at this time. 

I further find that Hazelton, by virtue of his official capacity

suit against each of the defendants, and the urgent nature of his

claims, has alleged a need for preliminary injunctive relief. 

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

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3

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

Timothy Hazelton is a forty-six year old inmate at the

Northern New Hampshire Correctional Facility (“NCF”), where he

has been housed by the New Hampshire Department of Corrections

(“NHDOC”) since February 23, 2006. Hazelton was born with

cerebral palsy. As a result, he has severe mobility problems and

walks, with difficulty, with the use of crutches. Hazelton is

also blind in his right eye and partially blind in his left eye. 

As a consequence of his medical issues, Hazelton has to urinate

and defecate more frequently than the average person, and when he

feels the urge to either urinate or defecate, he is not able to

“hold it,” but must get to a bathroom right away in order to

avoid soiling his clothing.

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4

When Hazelton arrived at NCF, he fully apprised medical

personnel there of his medical issues, including his bathroomrelated needs. The medical staff issued him a “medical pass”

which advises NCF staff of his medical needs, and entitles him to

a waiver of certain prison policies and procedures, to the extent

they interfere with his ability to use the bathroom as needed. 

Specifically, the passes issued to Hazelton direct prison staff

that he is to be allowed to use the bathroom when needed without

terminating his activities or visitation when they are

interrupted by his bathroom needs. Hazelton was first issued a

number of temporary passes, but on October 15, 2007, he was

issued a permanent lifetime pass to enable him to use the

bathrooms as necessary at NCF without termination of his

activities or visits. 

 Hazelton alleges that the NCF staff members named as

defendants to this action have chosen not to honor his medical

pass. Instead, defendants have denied his bathroom requests, or

terminated his visits and activities if he has to use the

bathroom during those events. Hazelton has also been forced to

travel across the entire facility to use the bathroom in his

housing unit instead of being given access to closer inmate

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5

bathrooms. As a result, Hazelton claims that he has repeatedly

been forced to urinate or defecate in his clothing as he has not

been able to make it back to his housing unit in time to use the

bathroom.

Hazelton has been forced to terminate visits with family

members who had driven 2 1⁄2 hours to see him in order to use the

bathroom. Hazelton has also been made to soil himself in front

of his family members because he was not allowed to use an inmate

bathroom near the visiting room. Hazelton names Corrections

Officers (“C.O.s”) Lemieux, Dube, and Westbury as individual

officers who denied him access to a bathroom during his visits,

or who forced Hazelton to terminate his visits in order to use

the bathroom at all.

On October 1, 2006, Hazelton filed a request asking the NCF

nurse practitioner to insure that his medical pass stated that

his visits were not to be terminated due to his bathroom use. 

The nurse responded that Hazelton had previously been denied

access to a bathroom, or been made to choose to terminate his

visit in order to use the bathroom, because there is only one

officer on duty in the visit room, and if that officer is not 

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 5 of 20
6

available to accompany Hazelton to the bathroom, then Hazelton

will not be able to use the bathroom without waiting. 

On February 23, 2008, Hazelton was in the NCF library to get

copies of legal work from NCF librarian Angela Poulin. While he

was in the library, Hazelton asked Poulin for access to the

bathroom there. Poulin refused. Hazelton politely explained to

Poulin that he had medical conditions that necessitated access to

a bathroom, and a medical pass allowing that access. Poulin

ignored Hazelton and called Cpl. Shane Mailhot. Mailhot took

Hazelton into the hallway and questioned him as to why he was

giving Poulin a hard time. Hazelton told Mailhot that he was not

giving Poulin a hard time, but was politely explaining his

situation to her. Mailhot forced Hazelton to return to his

housing unit in order to use the bathroom rather than giving

Hazelton access to a nearby bathroom.

 On February 24, 2008, Hazelton filed a grievance with his

Unit Manager, Robert Thyng, stating that while he was in the NCF

chapel, he needed to use the bathroom during his church services. 

Hazelton asked an official at the chapel if someone could open

the inmate bathroom near the chapel so that he would not have to

return to his housing unit and miss the services. Cpl. McFarland

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 6 of 20
7

responded and Hazelton requested that he be allowed to use the

bathroom, explaining his medical situation and medical pass to

McFarland. McFarland refused to open the bathroom, and instead

told Hazelton to return to his housing unit. On March 3, 2008,

Thyng responded that the officers in the Education Department

allow him to use the bathrooms at their earliest convenience, but

that, unfortunately, due to their busy schedules, sometimes

Hazelton would have to wait for a few minutes.

On April 7, 2008, Hazelton was in the chapel for a

keyboarding lesson. During the lesson, Hazelton advised Mailhot

that he had to use the bathroom. Mailhot said that Hazelton’s

need for the bathroom was ridiculous, that he would not be

permitted to use the bathroom near the chapel, and that he would

have to return to his housing unit to use the bathroom. Hazelton

returned to his housing unit to use the bathroom, and then asked

C.O. Overhaufer to allow him to return to the chapel to complete

his scheduled keyboarding lesson. Overhaufer laughed at the

request, stating “What? Do you think you are special and entitled

to special privileges?” Overhaufer refused to let Hazelton

return to the chapel. Both Mailhot and Overhaufer, Hazelton

alleges, were well aware of his medical conditions and his

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 7 of 20
8

medical pass allowing him the frequent use of bathrooms without

detriment to his activities or visitation.

On April 7, 2008, Hazelton again filed a grievance with

Thyng, asking for assistance in resolving the ongoing issue of

NCF staff not honoring his medical pass. On April 11, 2008,

Thyng responded: “I have already addressed this issue. The Cpl.

allows you to use the restroom when he is available.” 

On April 23, 2008, Hazelton filed a grievance with NCF

Warden Larry Blaisdell, as he had been unable to resolve his

problems with his grievance to Thyng. Hazelton’s grievance

complained that the NCF staff was failing to honor Hazelton’s

medical pass. On May 8, 2008, Blaisdell denied the grievance.

On May 16, 2008, Hazelton filed a final appeal of the denial

of his grievance with NHDOC Commissioner William Wrenn. Hazelton

reiterated his complaints and stated that he had been unable to

resolve these issues with staff, despite repeated efforts to do

so. Specifically, Hazelton complained that, despite his medical

condition and his medical pass, NCF staff continued to send

Hazelton to his housing unit to use the bathroom, rather than

allowing him to use a closer inmate bathroom, and that this

resulted in the termination of his activities and visitation. 

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 8 of 20
342 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 . . . .

9

Christopher Kench, Wrenn’s assistant, responded on behalf of

Wrenn. Kench’s response was: “This has been policy and practice

for some time now, and we believe that it will withstand

discussion.” This action followed.

Discussion

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. § 19833; City of Okla. City v.

Tuttle, 471 U.S. 808, 829 (1985); 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). Here, Hazelton claims

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 9 of 20
10

that defendant NCF and NHDOC employees are state actors, and that

they violated his federal constitutional right not to be

subjected to cruel and unusual punishment, as well as his rights

under the ADA. Hazelton’s action arises, therefore, under §

1983.

A. Eighth Amendment Cruel and Unusual Punishment Claim

“[T]he treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25,

33 (1993); see Giroux v. Somerset County, 178 F.3d 28, 31 (1st

Cir. 1999). Hazelton’s claim that he was wrongfully denied

access to necessary sanitary facilities implicates the Eighth

Amendment’s proscription against the imposition of cruel and

unusual punishment. 

The Supreme Court has adopted a two-part test for reviewing

claims under the Eighth Amendment’s cruel and unusual punishment

clause. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);

Helling, 509 U.S. at 25; Hudson v. McMillian, 503 U.S. 1, 7

(1992). “First, the deprivation alleged must be, objectively,

‘sufficiently serious,' a prison official's act or omission must

result in the denial of 'the minimal civilized measure of life's

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 10 of 20
11

necessities.'" Farmer, 511 U.S. at 834 (internal citations to

Wilson v. Seiter, 501 U.S. 294, 298 (1991), Hudson, 503 U.S. at

5, and Rhodes v. Chapman, 452 U.S. 337, 347 (1981) omitted). 

To violate the Eighth Amendment prohibition against inhumane

prison conditions, an inmate must allege more than “routine

discomfort” associated with prison life. Hudson, 503 U.S. at 9

(internal citation omitted). Plaintiff instead must demonstrate

that he has suffered from a deprivation of “‘the minimal

civilized measure of life’s necessities.’” Wilson, 501 U.S. at

298 (quoting Rhodes, 452 U.S. at 347). "The Constitution 'does

not mandate comfortable prisons,' but neither does it permit

inhumane ones.” Helling, 509 U.S. at 31 (citing Rhodes, 452 U.S.

at 349). The Eighth Amendment imposes duties on prison officials

to ensure that inmates receive adequate food, clothing, shelter,

and medical care, and must take reasonable measures to guarantee

the safety of the inmates. See Farmer, 511 U.S. at 832–33;

Hudson v. Palmer, 468 U.S. 517, 526-527 (1984); Helling, 509 U.S.

at 31-32; Washington v. Harper, 494 U.S. 210, 225 (1990);

Estelle, 429 U.S. at 103. Conditions of confinement which do not

lead to deprivations of essential food, medical care, or

sanitation do not amount to an Eighth Amendment violation. See

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12

Williams v. McWilliams, 20 F.3d 465 (5th Cir. 1994) (citing

Rhodes, 452 U.S. at 348). 

To satisfy the second prong of an Eighth Amendment claim, a

prisoner must allege that prison officials “have a ‘sufficiently

culpable state of mind.’ In prison-conditions cases, that state

of mind is one of ‘deliberate indifference’ to inmate health or

safety.” Farmer, 511 U.S. at 834 (internal citations omitted). 

Treating a disabled inmate without regard for “the basic concept

of human dignity at the core of the Eighth Amendment,” can

suffice to create a constitutional violation. Schmidt v. Odell,

64 F. Supp. 2d 1014, 1031 (D. Kan. 1999) (internal citations

omitted). This is particularly true where the challenged

conditions of confinement “'shock the conscience,' are

'barbarous,' or 'result in a deprivation of the minimal civilized

measures of life's necessities.'" Boland v. Coughlin, 622 F.

Supp. 736, 737 (E.D.N.Y. 1985) (citing Rhodes, 452 U.S. at 347)

Here, Hazelton has alleged a serious deprivation in the

denial of sanitary facilities adequate to meet his needs created

by his well-documented medical problems. Hazelton further

alleges that the defendants named here were aware of his medical

situation and his need for quick access to a bathroom. The

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13

defendants were also aware that Hazelton had received a medical

pass exempting him from the normal policies of the institution

regarding bathroom use by inmates. Despite this knowledge,

Hazelton alleges, the defendants acted to deprive him of adequate

access to toilet facilities, or to provide him with access to a

bathroom in a way that either interrupted religious or

educational activities he was engaged in, or visits with his

family. Additionally, Hazelton alleges that he was denied any

modicum of human dignity when he was made to soil himself on the

way to a distant bathroom because he was denied quick access to a

nearby bathroom, or was made to soil himself in front of other

people, including visiting family members, when he was refused

the use of a bathroom. These allegations are sufficient to

allege an Eighth Amendment claim for cruel and unusual

punishment.

B. ADA Claim

Title II of the ADA provides that “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

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 13 of 20
14

subjected to discrimination by any such entity.” 42 U.S.C. §

12132. 

Pursuant to the plain language of Title II, a plaintiff

must establish: (1) that he is a qualified individual

with a disability; (2) that he was either excluded from

participation in or denied the benefits of some public

entity’s services, programs, or activities or was

otherwise discriminated against; and (3) that such

exclusion, denial of benefits, or discrimination was by

reason of the plaintiff’s disability.

Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000). 

Title II of the ADA applies to inmates in correctional

facilities. See Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206,

209-10 (1998). “[P]risons provide inmates with many recreational

‘activities,’ medical ‘services,’ and educational and vocational

‘programs,’ all of which at least theoretically ‘benefit’ the

prisoners (and any of which disabled prisoners could be ‘excluded

from participation in.’)” Id. at 210. 

Hazelton alleges that he has a disabling physical condition

and that his disabilities have been acknowledged by the medical

staff at NCF, who have provided him with medical passes that

direct the prison staff to accommodate the needs created by his

disability so that he may have access to his activities and

visitors. Hazelton alleges that he is being denied access to

appropriate sanitary facilities to accommodate needs that arise

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 14 of 20
15

out of his disabling conditions. Accordingly, Hazelton alleges

that he has been denied benefits, services, or programs because

of his disability. These allegations give rise to a cognizable

claim under the ADA, and I will direct that the ADA claim be

served on the defendants

III. Individual and Official Capacity Suits - Request for 

Injunctive Relief

Hazelton has sued the defendants in their official as well

as individual capacities. It is well-settled that the Eleventh

Amendment bars damages suits against state entities and state

agents working in their official capacities unless the state has

expressly waived immunity, which has not been done by New

Hampshire for actions brought under § 1983. See P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)

(absent waiver, neither a State nor agencies acting under its

control may be subject to suit in federal court); Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989) (holding that

neither a state nor its officials acting in their official

capacities are “persons” under § 1983). Official capacity suits

against officers of an agency are simply “another way of pleading

an action against an entity of which an officer is an agent.” 

Monell, 436 U.S. at 690 n. 55. Accordingly, I construe the

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16

damages claims raised in the complaint as claims against the

defendants in their individual capacities.

As stated above, Hazelton, has named the defendants in their

official as well as individual capacities. As official capacity

claims are only actionable against state defendants to the extent

they seek declaratory or injunctive relief, construing the

complaint liberally, I find that Hazelton seeks injunctive relief

against the defendants as well. “[I]nsofar as injunctive relief

is sought, an error of law by state officers acting in their

official capacities will not suffice to override the sovereign

immunity of the State where the relief effectively is against

it.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 113

(1984); Asociacion de Subscripcion Conjunta del Seguro de

Responsibilidad Obligatorio v. Galarza, 484 F.3d 1, 6 (1st Cir.

2007) (finding state employee defendant amenable to suit in his

official capacity for injunctive and declaratory relief, but

protected from damages in his personal capacity). Due to the

nature of the complaint here, and the immediacy of the alleged

need for attention to this matter, I construe the request for

injunctive relief as one for a preliminary injunction. 

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 16 of 20
17

IV. Supervisory Liability

“Supervisory liability under § 1983 cannot be predicated on

a respondeat theory, but only on the basis of the supervisor’s

own acts or omissions.” Aponte Matos v. Toledo Davila, 135 F.3d

182, 192 (1st Cir. 1998) (internal citations omitted). A

supervisor must “either [be] a primary actor involved in, or a

prime mover behind, the underlying violation.” Camilo-Robles v.

Zapata, 175 F.3d 41, 43-44 (1st Cir. 1999). There must be “an

affirmative link, whether through direct participation or through

conduct that amounts to condonation or tacit authorization” to

the violation alleged. Id. at 44.

Defendants Wrenn, Kench, Thyng, and Blaisdell each serve a

supervisory function within the NHDOC and/or the NCF. Although

there is no supervisory liability in § 1983 actions based on a

respondeat superior theory of liability, a defendant supervisor

can be held liable based on the defendant’s actual notice of

facts sufficient to render the official responsible for

reasonable inquiry into the complaint. See Feliciano v. Dubois,

846 F. Supp. 1033, 1045 (D. Mass. 1994) (citing Layne v. Vinzant,

657 F.2d 468 (1st Cir. 1981)). A supervisor also may be held

liable for his own acts, or omissions, if they rise to the level

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 17 of 20
18

of reckless or callous indifference to the constitutional rights

of others. See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87,

91-92 (1st Cir. 1994). Finally, a supervisor may be held liable

under § 1983 if he or she “formulates a policy or engages in a

practice that leads to a civil rights violation committed by

another.” Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). 

I find that defendants Wrenn, Kench, Thyng, and Blaisdell

each knew of plaintiff’s serious medical condition and the

related condition regarding his bathroom use, and nevertheless

denied him appropriate accommodations to his condition. These

supervisory defendants also make clear, in their responses to

Hazelton’s grievances, that not only are they aware of the

problem, but they feel that permitting it to continue, and

failing to take steps to remedy it, is consistent with policy

that they created, or are engaged in enforcing. The denials of

the grievances, coupled with the supervisors’ knowledge of

Hazelton’s circumstances, suffice to state claims against these

individuals in their supervisory capacities.

Conclusion

As I find that plaintiff has stated claims upon which relief

may be granted, I order the complaint (document no. 1) be served

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19

on defendants Wrenn, Kench, Blaisdell, Thyng, Poulin, Mailhot,

MacFarland, Overhaufer, Lemieux, Dube, and Westbury. The Clerk’s

office is directed to serve the New Hampshire Office of the

Attorney General (AG), as provided in the Agreement On Acceptance

Of Service, copies of this order and the complaint (document no.

1). See LR 4.3(d)(2)(C). Within thirty days from receipt of

these materials, the AG will submit to the court an Acceptance of

Service notice specifying those defendants who have authorized

the AG’s office to receive service on their behalf. When the

Acceptance of Service is filed, service will be deemed made on

the last day of the thirty-day period. 

As to those defendants who do not authorize the AG’s office

to receive service on their behalf or whom the AG declines to

represent, the AG shall, within thirty days from receipt of the

aforementioned materials, provide a separate list of the last

known addresses of such defendants. The Clerk’s office is

instructed to complete service on these individuals by sending to

them, by certified mail, return receipt requested, copies of

these same documents. 

Case 1:08-cv-00419-JL Document 6 Filed 11/14/08 Page 19 of 20
20

Defendants are instructed to answer or otherwise plead

within twenty days of acceptance 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 Defendants by delivering or mailing the materials to them or

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

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 14, 2008

cc: Timothy W. Hazelton, Sr., pro se

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