UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Blackmer

v. Civil No. 08-cv-292-SM

Sweat, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Paul Blackmer has filed a complaint,

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

abridged his right to free speech as guaranteed by the First

Amendment to the United States Constitution (document no. 1). 

Named as defendants are the following employees of the Northern

New Hampshire Correctional Facility (“NCF”): Dwayne Sweat;

Emerson; Lamberton; Fortier; Robert Thyng; and Gagnon. The

complaint is before me for preliminary review to determine

whether, among other things, it states a claim upon which relief

may be granted. See 28 U.S.C. § 1915A; U.S. District Court for

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

the reasons stated below, I recommend that the complaint be

dismissed. 

Also filed is a motion for injunctive relief in which

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Blackmer alleges that defendants denied him meaningful access to

the courts, in violation of his First and Fourteenth Amendment

rights (document no. 9). In addition, Blackmer has filed a

motion for reconsideration in which he requests this Court to

reconsider its order of September 8, 2008 denying his motion to

stay the proceedings (document no. 8). For the reasons stated

below, I recommend that the motion for injunctive relief and

motion for reconsideration be denied.

Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally and in favor of the pro se litigant. See

Ayala Serrano v. Gonzalez, 909 F.2d 8, 15 (1st Cir. 1990)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)). At this

preliminary stage of review, all factual assertions made by the

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. See Eveland v. Director of CIA, 843 F.2d 46, 49

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(1st Cir. 1988). I apply this standard in reviewing Blackmer’s

complaint.

Factual Background

Blackmer is an inmate who is incarcerated at the NCF. This

action stems from an incident that occurred on June 10, 2008,

when he was ordered to refrain from speaking with a corrections

officer. With a copy of the New Hampshire Constitution in hand,

Blackmer approached the guards’ desk where Sweat was stationed

“to advise Sweat of New Hampshire constitutional law” and request

that he read the book. Sweat replied, “No”, and repeatedly

ordered Blackmer to leave. When Blackmer started to leave, he

walked approximately twenty-five feet and decided to again

approach the desk. At that juncture, Sweat allegedly ordered him

to “shut up and go away.” 

The record reveals that Blackmer was complaining about an

extra duty assignment that Sweat required him to perform. 

Blackmer does not, however, allege that he was denied any

opportunity to file grievances with regard to the extra duty

assignment or that he was otherwise denied any right to petition

the government for redress. That same day, a disciplinary report

was issued against Blackmer for his failure to obey a corrections

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officer’s orders and for attempting to become unruly. Following

a disciplinary hearing held on June 18, 2008, Blackmer was found

guilty of violating Rule 39B (failing to obey an officer’s

orders). As a result, he was subjected to the following

sanctions: (1) five days punitive segregation, suspended for

ninety days; (2) twenty hours of extra duty; and (3) fifteen days

loss of recreation. Blackmer alleges that Sweat’s actions

violate his First Amendment right to free speech. He further

alleges that by condoning Sweat’s actions, the remaining

defendants violated his First Amendment rights. 

Lastly, Blackmer alleges that defendants withheld his legal

documents and typewriter in violation of his First and Fourteenth

Amendment rights to meaningful access to the courts. He now

brings this action, alleging that defendants’ actions rise to the

level of constitutional deprivations.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See 42

U.S.C. § 1983; Parratt v. Taylor, 451 U.S. 527, 535 (1981);

Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997). In

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order to be held liable for a violation under Section 1983, a

defendant’s conduct must have been a cause in fact of the alleged

constitutional 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). The premise of Blackmer’s Section 1983 action

is that defendants subjected him to the following constitutional

deprivations in violation of his First and Fourteenth Amendment

rights.

A. Denial of Free Speech

Blacker alleges that Sweat violated his First Amendment

right to free speech by refusing to discuss New Hampshire

constitutional law and by ordering him to “shut up and go away.” 

He further alleges that Emerson, Lamberton, Fortier, Thyng, and

Gagon violated his First Amendment rights by condoning Sweat’s

actions.

While a prisoner does not completely sacrifice his right to

free speech, this right is necessarily diminished by his

incarceration. Jones v. N.C. Prisoners’ Labor Union, Inc., 433

U.S. 119, 125 (1977). Prison inmates retain First Amendment

rights not inconsistent with their status as prisoners or the

legitimate penological objectives of the corrections system. 

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Pell v. Procunier, 417 U.S. 817, 822 (1974). “This is because

certain privileges and rights must necessarily be limited in the

prison context.” Johnson v. California, 543 U.S. 499, 510 (2005)

(“‘[L]awful incarceration brings about the necessary withdrawal

or limitation of many privileges and rights, a retraction

justified by the considerations underlying our penal system’”

(quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). 

“The right of officials to control inmate speech and behavior

through the imposition of measures reasonably calculated to

preserve the safety and security of a prison facility, its

employees and its inmates, is well established, even though such

measures may impinge upon an inmate’s ability to speak freely or

to associate with others.” Escalara v. Charwand, No. 9:04-cv0983 (FJS/DEP), 2008 WL 699273, slip op. at *6 (N.D.N.Y. March

12, 2008)(citing Auleta v. LaFrance, 233 F. Supp. 2d 396, 399

(N.D.N.Y. 2002)(noting that restrictions on inmate communication

are constitutional if reasonably related to legitimate

penological interests)). Restrictions, however, may be no more

intrusive than reasonably necessary in order to effectuate

legitimate policies and objectives. Procunier v. Martinez, 416

U.S. 396, 412 (1974).

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Here, Blackmer does not allege, nor does the record

disclose, that he was engaged in protected activity when

disciplined for violating NCF rules. Blackmer concedes that he

was approaching Sweat with a copy of the New Hampshire

Constitution solely to “advise [him] of New Hampshire

constitutional law.” Sweat’s response, ordering Blackmer to

“shut up and go away,” does not rise to the level of a First

Amendment violation. With regard to the imposition of extra

duty, Blackmer does not allege that he was denied the opportunity

to file an appeal or otherwise seek redress through an

established grievance process. Nor does he allege that either

administrative regulation with which he was charged is

unconstitutional on its face or that defendants’ actions were

retaliatory. Lastly, he does not challenge the disciplinary

proceedings or sanctions imposed. See Clark v. Nelson, No. 93-

3391-SAC, 1996 WL 596735 at *5 (D. Kan. Sept. 20, 1996) (holding

that an inmate’s limited First Amendment rights do not include

any purported right to disobey an officer’s orders). For the

foregoing reasons, I conclude that Blackmer has failed to state a

cognizable First Amendment claim arising from the denial of free

speech. Accordingly, I recommend that this claim be dismissed in

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its entirety against Sweat, Emerson, Lamberton, Fortier, Thyng

and Gagnon. 

B. Denial of Meaningful Access to the Courts

In his request for injunctive relief, Blackmer alleges that

defendants seized his legal documents and typewriter in violation

of his First and Fourteenth Amendment rights to meaningful access

to the courts.

“There is a fundamental constitutional right of access to

the courts, founded both in the First Amendment guarantee of

[the] right to petition for redress of grievances, and in the due

process clause which assures that no person will be denied the

opportunity to present to the courts their claims concerning

violations of fundamental constitutional rights.” McDuffy v.

Koval, 226 F. Supp. 2d 541, 548 (D. Del. 2002) (citations

omitted). The right of access to the courts is strongest in the

context of constitutional claims and other civil rights actions. 

See BreMiller v. Cleveland Psychiatric Inst., 898 F. Supp. 572,

582 (N.D. Ohio 1995). To establish a claim for denial of access

to the courts, a plaintiff must show that he was denied access to

the courts and suffered actual injury, such as interference with

his efforts to pursue a claim. See Lewis v. Casey, 518 U.S. 343,

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351 (1996). 

Accepting Blackmer’s allegations as true, I conclude that he

has failed to identify any actual injury that resulted from the

alleged denial of access to the courts. While Blackmer claims

that defendants seized his legal documents and typewriter, he has

not alleged any ensuing constitutional harm related to

defendants’ actions. Nor has he identified any action by a 

defendant that has frustrated or impeded a specific legal claim

pursued by Blackmer. Without demonstrating that defendants

prevented him from participating meaningfully in the legal

process, Blackmer fails to allege any constitutional deprivation. 

Accordingly, I recommend that his request for injunctive relief

be denied.

II. Habeas Corpus Claims

Blackmer alleges that he is unlawfully incarcerated and

makes various references to the alleged unconstitutionality of

his conviction and confinement. To the extent he challenges the

fact or duration of his state court confinement, his claims may

only be brought in a habeas corpus petition pursuant to 42 U.S.C.

§ 2254. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973)

(holding that a prisoner cannot use a Section 1983 action to

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challenge the fact or duration of his confinement). Further,

many of the habeas corpus claims to which he refers are similar

to the claims raised by Blackmer in a previous action filed with

this court. See Blackmer v. Warden, No. 05-cv-340-PB, 2008 WL

227267 (D.N.H. Jan 28, 2008). Accordingly, I recommend that his

claims be dismissed. 

Conclusion

For the reasons stated above, I recommend that the complaint

(document no. 1) be dismissed. I further recommend that the

motion for injunctive relief (document no. 9) and motion for

reconsideration (document no. 8) be denied. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

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

plaintiff disagrees with the identification of the claims herein,

plaintiff must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the complaint. 

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

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appeal the district court’s order. See Unauthorized Practice of

Law Committee 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: October 16, 2008

cc: Paul Blackmer, pro se

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