UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Timothy M. O’Mara

v. 08-cv-51-SM

Superintendent, Hillsborough County

Department of Corrections, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Timothy M. O’Mara brings this civil rights

action, pursuant to 42 U.S.C. § 1983, alleging various

constitutional deprivations in violation of his rights under the

First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution (document nos. 1 and 8). Named as

defendants are William Wrenn, Commissioner of the New Hampshire

Department of Corrections (“NHDOC”), Toni Pappas, Commissioner of

Hillsborough County, the Hillsborough County Department of

Corrections (“HCDOC”), and the following HCDOC employees: James

M. O’Mara, Jr., Superintendent; Linda Norman, bookkeeper; C.

Beaudon, mail agent; and corrections officers D. Dionne, Robbins,

Pinciaro, Riley, Brown, Granville, W. Raymond, W. Scurry, William

McDougall, Tony Sawer and Menic.

 

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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 conclude that

O’Mara has alleged the following claims: 

(1) Fourteenth Amendment claims arising from inhumane cell

conditions against O’Mara, Dionne, Brown and Menic;

(2) Sixth and Fourteenth Amendment claims arising from

interference with the right to attorney-client

communications and the right to access the courts

against Norman, Beaudon, Pinciaro and Robbins; and

(3) Fourteenth Amendment due process claims arising from

O’Mara’s confinement in administrative segregation

against Raymond, McDougall, Scurry and Sawer; and

(4) related municipal liability claims against the HCDOC. 

I recommend dismissal of all remaining claims.

Also filed is a motion to appoint counsel (document no. 3), 

motion for transfer (document no. 7) and motion to be released

from administrative segregation (document no. 4) which, for the

reasons stated below, I recommend be denied. I further recommend

that a preliminary injunction hearing be scheduled with regard to

O’Mara’s claims arising from his administrative segregation.

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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

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

complaint.

Background

O’Mara, a pretrial detainee confined at the HCDOC, alleges

that during the course of his confinement prison officials

subjected him to various constitutional deprivations. Defendants

allegedly denied him adequate and equal out-of-cell time,

recreational time and exercise equipment. Defendants also

allegedly subjected O’Mara to inhumane conditions of confinement,

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including inadequate and nutritionally deficient meals, serving

him meals on contaminated trays, and confining him to a cell

where he was exposed to inadequate ventilation and “poisonous

gases.” In addition, defendants allegedly classified O’Mara

under protective custody status but housed him with inmates who

were assigned higher security classifications, thereby placing

him at risk of harm. 

O’Mara further alleges that defendants transferred him to a

different unit without transferring his legal documents and

subsequently denied him access to those documents, thereby

interfering with his meaningful access to the courts. In

addition, defendants allegedly deprived him of property without

due process of law, subjected him to unreasonable cell searches

and interfered with his mail. Lastly, O’Mara alleges that

defendants confined him to administrative segregation and imposed

restrictive conditions upon him without due process of law. He

now brings this action pursuant to Section 1983, alleging that

defendants’ acts and omissions rise to the level of

constitutional deprivations.

Discussion

I. Section 1983 Claims

Section 1983 creates a cause of action against those who,

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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

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 O’Mara’s Section 1983 claim is

that the defendants, acting under color of state law, have

violated his rights under the First, Fourth, Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution.

A. Conditions of Confinement

O’Mara’s complaint raises several challenges to the

constitutionality of his conditions of confinement. Because he 

was a pretrial detainee at all times relevant to this action, his

claims challenging the conditions of his confinement are analyzed

under the Due Process Clause of the Fourteenth Amendment rather

than the Eighth Amendment. See Burrell v. Hampshire County, 307

F.3d 1, 7 (1st Cir. 2002) (holding that pretrial detainees are

protected under the Fourteenth Amendment Due Process Clause,

rather than the Eighth Amendment, but are afforded the same

Eighth Amendment standards). “A pretrial detainee’s claim that

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he has been subjected to unconstitutional conditions of

confinement implicates Fourteenth Amendment liberty interests.” 

Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir. 2005). “The

parameters of such an interest are coextensive with those of the

Eighth Amendment’s prohibition against cruel and unusual

punishment.” Id. (citing Burrell, 307 F.3d at 7). 

In order to establish a constitutional violation under the

Eighth Amendment standards, a prisoner must meet both objective

and subjective criteria. Id. (citing Farmer v. Brennan, 511 U.S.

825, 832-34 (1994)). First, he must establish that, from an

objective standpoint, “the conditions of his confinement deny him

the minimal measure of necessities required for civilized

living.” Id. Second, he must show that, from a subjective

standpoint, the defendant was deliberately indifferent to his

health or safety. Id.

1. Out-of-Cell and Recreation Time

Here, O’Mara alleges that while he was housed in the

protective custody unit, defendants denied him adequate out-ofcell and recreation time. On June 20, 2007, he was classified to

protective custody because of physical threats made against him

by other inmates. From that day to the present, he allegedly was

afforded only two hours a day of out-of-cell time, which

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purportedly was allocated into less-than-one-hour intervals. He

adds that from June 20, 2007 to November 11, 2007, he lost nine

to eleven hours of out-of-cell time each week. He further

alleges that when he was confined on Unit 1C for a period of

thirty days, he was denied any opportunity to exercise. Lastly,

O’Mara complains that his out-of-cell time is scheduled

simultaneously with other activities, including religious

services, educational programs, mail call, medical pass, laundry,

hair cuts, visitation and law library use. He allegedly reported

the deprivations to Superintendent O’Mara and Dionne, however,

they failed to remedy the problem or take adequate corrective

action.

Lack of exercise and recreation “may rise to a

constitutional violation in certain limited circumstances ‘where

movement is denied and muscles are allowed to atrophy [and] the

health of the individual is threatened.’” Thomas v. Ramos, 130

F.3d 754, 763 (1997)(quoting French v. Owens, 777 F.2d. 1250,

1255 (7th Cir. 1985)); Hosna v. Groose, 80 F.3d 298, 306 (8th

Cir. 1996); Redden v. Ricci, No. 07-3712 (JAP), 2008 WL 111266 at

*4 (D.N.J. Jan. 10, 2008). “Thus, a constitutional violation

will occur when the deprivation of exercise extends for a

prolonged period of time and tangible physical harm resulting

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from the lack of exercise is demonstrated.” Redden, 2008 WL

111266 at *6. 

Here, O’Mara’s allegations are insufficient to state a

cognizable constitutional claim. His complaint that he was

afforded only two hours of out-of-cell time a day does not state

a claim of constitutional dimension. See Wishon v. Gammon, 978

F.2d 446, 449 (8th Cir. 1992)(forty-five minute out-of-cell

recreation time per week did not violate the Eighth Amendment

rights of inmate in protective custody); Gann v. Schriro, No. 08-

8017-PCT-DGC (LOA), 2008 WL 898081 at *2 (D. Ariz. Mar. 31,

2008)(three two-hour recreation periods per week insufficient to

state an Eighth Amendment violation). Nor does his complaint of

being completely denied exercise for thirty days state a claim of

constitutional dimension. See Phillips v. Norris, 320 F.3d 844,

847 (8th Cir. 2003)(thirty-seven days without being allowed to

exercise did not constitute an atypical and significant hardship

in the context of normal prison life); Pearson v. Ramos, 237 F.3d

881, 994-85 (7th Cir. 2001)(denial of yard privileges for ninety

days did not constitute cruel and unusual punishment). 

Furthermore, O’Mara has not identified any injury resulting

from the alleged deprivations. He has not alleged that the

denial of adequate out-of-cell and recreation time has threatened

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or adversely affected his mental well being or that it has caused

him to suffer psychological or physical problems. His

complaints, without any allegations of resulting psychological or

physical stress, do not constitute deprivations sufficiently

extreme to establish a cognizable constitutional claim. 

Moreover, it appears that valid institutional reasons

existed to warrant the restrictions imposed. O’Mara concedes

that he was placed in protective custody because of physical

threats made against him by other inmates. The record also

indicates that defendants offered to transfer him to the general

prison population where he would be afforded more out-of-cell and

recreation time. For purposes of preliminary review, therefore,

I find that O’Mara has failed to allege a cognizable

constitutional claim premised on the denial of adequate out-ofcell and/or recreation time. Accordingly, I recommend dismissal

of this claim in its entirety.

2. Cell Conditions

O’Mara alleges that defendants subjected him to inhumane

cell conditions, including lack of ventilation and exposure to

poisonous gases, inadequate and nutritionally deficient meals,

contaminated serving trays and monotonous meals and menu

selections. He further alleges that defendants classified him as

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a protective custody inmate but housed him with inmates who were

assigned higher security classifications, thereby placing him at

risk of harm.

The Eighth Amendment imposes duties on prison officials,

“who must provide humane conditions of confinement; prison

officials must ensure that inmates receive adequate food,

clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Farmer, 511

U.S. at 832-34 (quoting Hudson v. McMillian, 503 U.S. 1 (1992)). 

As mentioned above, a plaintiff must first establish that from an

objective standpoint, “the conditions of his confinement deny him

the minimal measure of necessities required for civilized

living.” Id. Second, he must show that from a subjective

standpoint, the defendant was deliberately indifferent to his

health or safety. Id.

“[C]onditions of confinement, ‘alone or in combination,’ may

deprive prisoners of the minimal civilized measure of life’s

necessities.” Wilson v. Seiter, 501 U.S. 294, 304 (1991)

(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). See also

Murray v. Edwards County Sheriff’s Dept., No. 06-3376, 2007 WL

2827723, slip op. at *5 (10th Cir. 2007) (holding that “numerous

inhumane conditions of confinement may be actionable if in

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combination they ‘produce[ ] the deprivation of a single,

identifiable human need.’”)(quoting Mitchell v. Maynard, 80 F.3d

1433, 1442 (10th Cir. 1996)). Thus, a constitutional violation

may be found where “overcrowded conditions are accompanied by

other substandard factors, such as ‘poor repair and functioning

of basic physical [prison] facilities such as plumbing,

ventilation and showers, . . . food, medical care, sanitation,

control of vermin, lighting, heating, ventilation, noise level,

bedding, furniture, education and rehabilitation programs, safety

and security staffing.” Moore v. Cumberland County Board of

Freeholders, Civil Action 06-4516 (RMB), 2006 WL 3359625, slip

op. at *3 (D.N.J. Nov. 16, 2006) (quoting Tillery v. Owens, 907

F.2d 418, 427 (3d Cir. 1990) (considering the totality of

circumstances relevant to finding whether conditions of

confinement fell below minimal standards of decency)). 

Here, O’Mara alleges that defendants subjected him to

various unconstitutional conditions of confinement at the HCDOC. 

First, he alleges that defendants confined him to a cell with

inadequate ventilation where he was exposed to “poisonous gases”

and noxious fumes. The gases allegedly came out of the vent in

his cell on Unit 2B during January 2007. O’Mara allegedly was

exposed to the gases and fumes for at least two days, all of

Case 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 11 of 37
1O’Mara defines “sack lunches” to include: two bologna and

cheese sandwiches; one half-ounce bag of potato chips; one apple;

carrot sticks; and two cups of juice.

12

which caused him to experience nausea, migraine headaches and

dizziness. Although O’Mara reported the problem to Brown and

Menic, defendants allegedly failed to remedy the problem or

transfer him to another cell. 

O’Mara further alleges that on a daily basis, defendants

served him “sack lunches” that were nutritionally deficient and

inadequate in servings, all of which caused him to suffer a

weight loss of more than twenty pounds in one month.1 Defendants

allegedly served him sack lunches on a daily basis from June 2007

to the present. They also allegedly served him meals on food

trays that were rusted, cracked and filled with contaminated

water, mold and mildew. After eating food served on these trays,

O’Mara allegedly experienced digestive problems, stomach pain,

diarrhea and headaches. Lastly, he alleges that while he was

classified as a protective custody inmate and for a duration of

at least 288 days, defendants housed him with inmates who were

assigned higher security classifications, thereby placing him at

risk of harm. According to O’Mara, other inmates have subjected

him to verbal abuse and threats of physical harm. He allegedly

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reported the problems to Wrenn, Superintendent O’Mara, Dionne,

Brown and Pappas, however, they failed to remedy the problems or

take any corrective action.

If true, the totality of the conditions described in the

complaint may demonstrate that defendants’ acts and omissions

subjected O’Mara to inhumane conditions of confinement. 

Accordingly, for purposes of preliminary review, I find that

O’Mara has stated cognizable Fourteenth Amendment claims against 

O’Mara, Dionne, Brown and Menic. Because he has failed to

identify any personal involvement or sufficient predicate facts

regarding Wrenn and Pappas, I recommend that the claims against

them be dismissed. 

With regard to O’Mara’s remaining claims concerning his cell

conditions, I conclude that he has failed to identify a

deprivation, or combination of deprivations, that are

“sufficiently serious.” Wilson, 501 U.S. at 298-99; Hudson, 503

U.S. 9 (“extreme deprivations are required to make out a

conditions-of-confinement claim”). O’Mara alleges that the menu

selection and meals served at the HCDOC are monotonous. He

further alleges that defendants served him at least 240 meals

while he was confined in his cell and complains that his food

trays were passed under his cell door. Even construing O’Mara’s

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allegations liberally, it does not appear that the conditions of

confinement he was forced to endure were beyond the bounds of

human decency. Accordingly, I conclude that he has not alleged

any deprivation sufficiently extreme to establish a cognizable

claim and, therefore, recommend dismissal this claim. 

B. Equal Protection

While housed as a pretrial detainee in the protective

custody unit, O’Mara allegedly was denied the same amount of outof-cell and recreational time and equipment as inmates in the

general prison population. The difference in treatment allegedly

violated O’Mara’s Fourteenth Amendment right to equal protection.

The Equal Protection Clause of the Fourteenth Amendment

mandates that similarly situated persons be treated alike absent

a rational basis for doing otherwise. See City of Cleburne v.

Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)(citations

omitted); accord Village of Willowbrook v. Olech, 528 U.S. 562,

564 (2000)(recognizing equal protection claim where plaintiff

alleges that [he] has been intentionally treated differently from

others similarly situated and there is no rational basis for the

difference in treatment). In the prison context, the Equal

Protection Clause of the Fourteenth Amendment forbids a state

from arbitrarily treating one group of prisoners worse than

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another. Anderson v. Romero, 72 F.3d 518, 526 (7th Cir. 1995);

see also Young v. King County, 70 Fed. Appx. 939, 941 (9th Cir.

2003) (unpublished) (holding that the Equal Protection Clause

“does not allow pretrial detainees to be unjustifiably held in

conditions worse than those under which convicted prisoners are

held.”). The Equal Protection Clause “requires inmates to be

treated equally, unless unequal treatment bears a rational

relation to a legitimate penal interest.” May v. Sheahan, 226

F.3d 876, 882 (7th Cir. 2000); accord Phillips v. Girdich, 408

F.3d 124, 129 (2d Cir. 2005)(citing Shaw v. Murphy, 532 U.S. 223,

225 (2001)). 

Thus, “[p]rison officials may differentiate based on

legitimate penological concerns, such as security, and are

accorded substantial deference in such matters.” Davis v.

Milwaukee County, 225 F. Supp. 2d 967, 980 (E.D. Wis. 2002)

(citations omitted). Even “[p]unitive restrictions or conditions

may be constitutionally placed on pre-trial detainees, provided

that the restrictions further some legitimate governmental

objective (such as addressing a specific institutional violation,

ensuring a detainee’s presence at trial, or maintaining safety,

internal order, and security within the institution) and are not

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excessive in light of the seriousness of the violation.” Evans

v. Phelps, No. 06-10078-Civ-KING, 2006 WL 3667138 at *2 (S.D.

Fla. Nov. 6, 2006)(citing Rapier v. Harris, 172 F.3d 999, 1006-07

(7th Cir. 1999) and Collazo-Leon v. United States Bureau of

Prisons, 51 F.3d 315, 318 (1st Cir. 1995).

The complaint in this action alleges that while housed as a

pretrial detainee in the protective custody unit, O’Mara was

given less out-of-cell and recreation time and equipment than

inmates in the general prison population. He concedes that he

was placed in protective custody because of physical threats made

against him by other inmates. It appears that defendants placed

him there to ensure his safety and, therefore, had a legitimate

penological justification for their actions. When he reported

the alleged difference in treatment to O’Mara and Dionne, the

record defendants offered to transfer him to the general prison

population where he would have more out-of-cell and recreational

time. Thus, it appears that when defendants were notified of

O’Mara’s complaints, they took corrective action and attempted to

remedy the problem. Accordingly, for purposes of preliminary

review, I conclude that O’Mara has failed to allege sufficient

facts to state a cognizable Fourteenth Amendment equal protection

claim and recommend that this claim be dismissed in its entirety.

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C. Meaningful Access to the Courts

Construed liberally, the complaint alleges that defendants

interfered with O’Mara’s effective communications with his

attorney and his legal documents, in violation of his Sixth

Amendment right to counsel and First and Fourteenth Amendment

right to meaningful access to the courts.

 1. Interference with Attorney-Client

Communications

It is undisputed that inmates have a constitutionally

protected right of meaningful access to the courts. See Bounds

v. Smith, 430 U.S. 817, 828 (1977); Wolff v. McDonnell, 418 U.S.

539, 556 (1974); Boivin v. Black, 225 F.3d 36, 42 (1st Cir.

2000). See also Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir.

2004)(“Prisoners, including pretrial detainees, “have a

constitutional right of access to the courts”)(citing Bounds, 430

U.S. at 821)). 

This right is one of the privileges and immunities

accorded citizens under article 4 of the Constitution

and the Fourteenth Amendment. It is also one aspect of

the First Amendment right to petition the government

for redress of grievances. Finally, the right of

access is founded on the due process clause and

guarantees the right to present to a court of law

allegations concerning the violation of constitutional

rights.

Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)(citing

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Nordgren v. Milliken, 762 F.2d 851, 853 (10th Cir. 1985)). 

“[T]he right to counsel and the right of access to the

courts are interrelated, since the provision of counsel can be a

means of accessing the courts.” Benjamin v. Fraser, 264 F.3d

175, 186 (2d Cir. 2001). In challenging regulations which

adversely affect the Sixth Amendment right to counsel by impeding

attorney visitation, a pretrial detainee is not required to

demonstrate actual injury. Id. “[I]n the context of the right

to counsel, unreasonable interference with the accused person’s

ability to consult counsel is itself an impairment of the right.” 

Id. at 185. See also Maine v. Moulton, 474 U.S. 159, 170

(1985)(“to deprive a person of counsel during the period prior to

trial may be more damaging than denial of counsel during the

trial itself); Johnson-El v. Schoemehl, 878 F.2d 1043, 1051 (8th

Cir. 1989)(when pretrial detainee’s interest in effective

communication with attorney is inadequately respected during

pretrial confinement, the ultimate fairness of eventual trial can

be compromised); Wolfish v. Levi, 573 F.2d 118, 133 (2d Cir.

1978)(“[O]ne of the most serious deprivations suffered by a

pretrial detainee is the curtailment of his ability to assist in

his own defense.”).

Here, O’Mara alleges that on January 27, 2008, he requested

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prison officials to forward legal mail to his attorney. He

further requested Linda Norman, the HCDOC bookkeeper, to deduct

the respective cost of postage from his account. Although O’Mara

had sufficient funds in his account to pay the postage costs, his

mail allegedly was returned to him and marked “request denied.” 

When, on January 29, 2008, he submitted a second request to

Norman, and provided her with supporting documents demonstrating

that he was deprived of stamps and stamped envelopes, Norman

again denied his request. On January 31, 2008, O’Mara submitted

his legal mail with a request to Beaudon, the HCDOC official mail

agent, requesting her to send it C.O.D. Pinciaro allegedly

returned the mail to O’Mara and denied his request on the basis

that he failed to address it to the HCDOC official mail agent. 

The following day, O’Mara informed Granville of the problem who,

in turn, notified Robbins and Beaudon. Both Robbins and Beaudon

allegedly denied O’Mara’s request and failed to ensure that he

would be provided with stamps and postage. As a result, O’Mara

claims, he was denied effective communications with his attorney

for thirty days and, therefore, denied meaningful access to the

courts. 

If true, O’Mara’s allegations may demonstrate that Norman,

Beaudon, Pinciaro and Robbins have interfered with his attorneyCase 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 19 of 37
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client communications and his right to access the courts. 

Accordingly, I conclude that for pursposes of preliminary review,

he has alleged cognizable Sixth and Fourteenth Amendment claims

against Norman, Beaudon, Pinciaro and Robbins.

Without identifying any particular defendant, O’Mara further

alleges that defendants confiscated a letter sent to his attorney

on November 13, 2007. He concedes, however, that defendants

returned the letter to him on November 26, 2007 and explained

that it was inadvertently given to another inmate. O’Mara also

alleges that on January 9, 2007, all of his legal work was

confiscated and not returned to him until January 29, 2007. 

Because he has not alleged that defendants’ actions interfered

with his attorney-client communications or otherwise caused him

injury, I conclude that O’Mara has failed to allege cognizable

Sixth and Fourteenth claims and, therefore, recommend dismissal

of those claims.

2. Interference with Legal

and Other Documents

O’Mara further alleges that defendants interfered with and

confiscated certain legal and other documents, in violation of

his First and Fourteenth Amendment right to meaningful access to

the courts. 

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While inmates have a constitutionally protected right of

meaningful access to the courts, see Bounds, 430 U.S. at 828,

this right only “‘requires prison authorities to assist inmates

in the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.’” Carter v. Fair,

786 F.2d 433, 435 (1st Cir. 1986)(quoting Bounds, 430 U.S. at

828)). To establish a claim for denial of the right to access

the courts, an inmate must allege that he suffered actual injury

as a result of defendants’ actions. See Lewis v. Casey, 518 U.S.

343, 351-52 (1996). A plaintiff has not shown actual injury

unless he shows that a “nonfrivolous legal claim had been

frustrated or was being impeded” due to the actions of prison

officials. Id. at 351-52. 

Here, O’Mara alleges that defendants read his legal

documents and confiscated and withheld other documents and

property while transferring him to another unit. In addition,

while conducting searches of O’Mara’s cell, defendants allegedly

confiscated his property, including legal papers and “notes of

incidents, names, dates and times.” Lastly, O’Mara alleges that

he was forced to attend court proceedings without his necessary

legal documents and that defendants did not return the documents

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until two days after his court proceedings.

Absent actual injury, there is no indication that

defendants’ actions violated O’Mara’s right to access the courts.

While O’Mara claims that defendants withheld legal documents and

interfered with his legal mail, he has not identified any ensuing

constitutional harm related to their acts or omissions. Nor has

he alleged that any actions by defendants that frustrated or

impeded a specific legal claim. Without demonstrating that

defendant’s interference prevented him from participating

meaningfully in the legal process, O’Mara has failed to allege

any constitutional deprivation. Accordingly, I recommend

dismissal of this claim in its entirety. 

3. Interference with Mail

Construed liberally, the complaint alleges that Riley and

Robbins interfered with O’Mara’s legal or privileged mail in

violation of his First and Fourteenth Amendment rights.

A claim of interference with legal mail may implicate a

pretrial detainee’s right of access to the courts and free speech

as guaranteed by the First and Fourteenth Amendments. See Davis

v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). In order to state a

claim for denial of access to the courts due to interference with

legal mail, “a plaintiff must allege that the defendant took or

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was responsible for actions that hindered [a plaintiff’s] efforts

to pursue a legal claim.” Id. 

It is well-settled that prison officials may only open an

inmate's legal mail in his or her presence. See Wolff, 418 U.S.

at 576-77. With regard to an inmate’s privileged mail, an

isolated incident involving the inadvertent opening of mail,

without any evidence of improper motive or resulting interference

with the right to counsel or to access to the courts, does not

give rise to a constitutional violation. See Gardner v. Howard,

109 F.3d 427, 431 (8th Cir. 1997). Rather, an inmate must show

that prison officials regularly and unjustifiably interfered with

his legal mail. Davis, 320 F.3d at 351 (citations omitted). 

Here, O’Mara alleges that on August 27, 2007, Riley and

Robbins approached him in his cell on Unit 2A and questioned him

regarding mail he had recently sent to a state agency in which he

reported abuse of a mentally ill inmate. When O’Mara asked why

defendants were reading his mail, they replied that it was county

property and that it belonged to them. Although O’Mara alleges

that defendants’ actions were unauthorized and improper, he has

identified only one incident of improper conduct. See Davis, 320

F.3d 346 (holding that allegations that prison official on two

occasions opened his legal mail outside his presence were

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24

insufficient to state claim for denial of access to courts where

inmate did not allege that such interference constituted an

ongoing practice of unjustified censorship or caused him to miss

court deadlines or in any was prejudice his legal actions). 

Accordingly, I conclude that he has failed to allege cognizable

First and Fourteenth Amendment claims against Riley and Robbins

and, therefore, recommend dismissal of the claims against them. 

D. Unreasonable Search and Seizure

O’Mara alleges that defendants searched his cell on a daily

basis and in his absence. While conducting the searches,

defendants allegedly confiscated his property, including

correspondence, legal papers and documents, in violation of his

Fourth and Fourteenth Amendments.

The Supreme Court has found that an inmate’s status as a

pretrial detainee does not entitle him to the full expectation of

privacy in his prison cell that he would have in his home, and

that his expectation of privacy is “diminished” by his

incarceration. Hudson v. Palmer, 468 U.S. 517, 524 n.6 (1984)

(citing Bell v. Wolfish, 441 U.S. 520, 556-57, 560-61 (1979)

(searches of pretrial detainees’ cells did not violate the Fourth

Amendment and did not constitute punishment violative of the Due

Process Clause)). The facts presented in O’Mara’s complaint are

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25

insufficient to state a claim that the searches were

unreasonable, or that he had an expectation of privacy in his

cell. Accordingly, I conclude that he has failed to allege a

Fourth and Fourteenth Amendment claims and, therefore, recommend

dismissal of those claims in their entirety.

E. Deprivation of Property

O’Mara alleges that while conducting searches of his cell

and while transferring him to another unit, defendants

confiscated and/or withheld certain property, including

documents, correspondence, blank writing paper and envelopes. 

Construed liberally, the complaint alleges that defendants

deprived O’Mara of property without due process of law and in

violation of his Fourteenth Amendment rights. 

Even assuming that O’Mara possesses a property interest

sufficient to warrant protection under the Due Process Clause, he

fails to state a claim upon which relief may be granted. “[A]n

unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural

requirements of the Due Process Clause of the Fourteenth

Amendment if a meaningful postdeprivation remedy for the loss is

available.” Hudson, 468 U.S. at 533; see also Watson v. Caton,

984 F.2d 537, 541 (1st Cir. 1993)(holding that there is no legal

Case 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 25 of 37
2O’Mara characterizes his claim as violative of his Fifth,

Sixth, Eighth and Fourteenth Amendment rights, however, he has

26

basis for a Section 1983 action where the allegation is that the

action was derivation from, and not a reflection of, an

established state procedure). Here, the complaint is void of any

allegation that New Hampshire affords no post-deprivation remedy. 

See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 33 (1st Cir.

1996) (declining to address whether an adequate post-deprivation

remedy is available under state law absent any allegation by the

plaintiff). See also Barr v. Knauer, Civil Action No. 07-2888,

2008 WL 2389472, slip op. at *3 (E.D. Pa. June 11, 2008) (holding

that plaintiff failed to state a Fourteenth Amendment due process

claim based on the deprivation of personal property where prison

grievance procedures provided an adequate post-deprivation

remedy.) Accordingly, I conclude that O’Mara has failed to state

a claim under Section 1983 as to the alleged deprivation of

property and, therefore, recommend dismissal of this claim in its

entirety.

F. Administrative Segregation

O’Mara alleges that while he was confined at the HCHOC as a

pretrial detainee, defendants abridged his Fourteenth Amendment

rights by subjecting him to discipline without due process2. He

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failed to identify a Fifth, Sixth or Eighth Amendment violation

or any predicate facts in support of such claims. Accordingly, I

construe his claim solely as a due process claim under the

Fourteenth Amendment. 

27

has also filed a motion to be released from administrative

segregation (document no. 4). 

A pretrial detainee has a Fourteenth Amendment 

right to be free from punishment prior to 

conviction. While a pretrial detainee may be 

disciplined for a specific institutional infraction 

committed during the period of his detention, the 

discipline imposed must be roughly proportionate to 

the gravity of the infraction. An arbitrary, or 

disproportionate sanction, or one that furthers no 

legitimate penological objective, constitutes 

punishment (and, thus, is proscribed by the 

Fourteenth Amendment).

Surprenant, 424 F.3d at 13 (citing Bell, 441 U.S. at 535, 538-9

and Collazo-Leon v. U.S. Bureau of Prisons, 51 F.3d 315, 318 (1st

Cir. 1995)). Accordingly, I find that O’Mara’s complaints

pertaining to the denial of due process arise under the

Fourteenth Amendment.

Ordinarily, when a prisoner is subjected to disciplinary

sanctions, he must prove that the sanction itself was so atypical

of the normal incidents of prison life, and imposed such a

hardship, that he was entitled to due process in order for the

sanction to be constitutionally effected. Sandin v. Conner, 515

U.S. 472, 483-84 (1995). Sandin, however, only applies to

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28

convicted inmates who might expect a certain amount of punishment

as typical of the normal incidents of prison life. Pretrial

detainees, to the contrary, have a constitutionally-protected

liberty interest in avoiding any punishment. Surprenant, 424

F.3d at 17.

In Wolff, the Supreme Court identified the due process

requirements for a disciplinary hearing in a prison. See Wolff, 

418 U.S. at 564. Those requirements include written notice of

the charges at least twenty-four hours in advance of the hearing,

the ability to call witnesses and present evidence, and that the

hearing be presided over by an impartial decision maker. Id. at

566, 570-71; Surprenant, 424 F.3d at 16. It follows that a pretrial detainee cannot be placed in administrative segregation as

a punishment without a due process hearing and the protections

guaranteed by Wolff. Mitchell v. Dupnik, 75 F.3d 517, 524-25

(9th Cir. 1996)).

Because O’Mara was a pretrial detainee at the HCDOC, he was

entitled to the protections of the due process clause if the

disciplinary sanctions imposed were at all punitive. He clearly

alleges that following the hearing, defendants imposed punitive

restrictions upon him. Accordingly, I find that he was entitled

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29

to due process protections as outlined by Wolff at his

disciplinary hearing. 

O’Mara alleges that following his disciplinary hearing in

February 2008, during which Raymond, McDougall, Scurry and Sawer

were present, defendants caused him to be placed in

administrative segregation for an extended period of time. The

hearing and processes employed by defendants allegedly failed to

provide O’Mara with due process prior to being classified to

administrative segregation. Afterwards, O’Mara allegedly was

denied any right to appeal. He further claims that defendants

placed him in administrative segregation in reprisal for his

filing of a civil action against them and, therefore, that their

actions were not impartial. 

As result of defendants’ actions, various restrictive

conditions were imposed on O’Mara, including, one-hour out-ofcell time each day, restricted recreation time, no visitation

privileges and restricted commissary privileges and writing

supplies. The restrictions allegedly were comparable to those

imposed on inmates in punitive segregation. O’Mara maintains

that for a period of at least seven months, he was denied any

opportunity to exercise out of his cell and was forced to eat

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30

every meal in his cell. He further claims that he was confined

to a cell with boarded-up windows and, therefore, was denied any

exposure to natural light. 

O’Mara’s pretrial status entitled him to due process

protections during his hearing and prior to the imposition of

sanctions and punitive segregation. For purposes of preliminary

review, I conclude that he has alleged cognizable due process

claims against Raymond, McDougall, Scurry and Sawer. I further

recommend that a preliminary injunction hearing be scheduled with

regard to those claims. I recommend that O’Mara’s motion to be

released from administrative confinement (document no. 4) be

denied.

II. Request for Transfer

O’Mara requests a transfer from the HCDOC to another New

Hampshire county facility where the conditions of confinement are

more favorable and less restrictive (document no. 7). I

liberally construe his request to raise a Fourteenth Amendment

due process claim. 

“The Due Process Clause does not protect every change in the

conditions of confinement having a substantial adverse impact on

the prisoner.” Bazzetta v. McGinnis, 423 F.3d 557, 566 (6th Cir.

Case 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 30 of 37
31

2005)(citing Sandin, 515 U.S. at 478). See also Moody v.

Daggett, 429 U.S. 78, 88 n.9 (1976)(stating that not every prison

action that adversely affects the prisoner requires due process,

such as transfer to a substantially less agreeable prison). It

is well-settled that a prisoner has no constitutional right to be

incarcerated in a particular prison and that he may be

transferred for any reason or for no reason at all, regardless of

differing conditions. See Meachum v. Fano, 427 U.S. 215, 225-28

(1976). Even a transfer to a more restrictive facility with more

burdensome conditions is within the normal limits or range of

custody which the conviction has authorized the State to impose. 

Id. at 225 (transfer of an inmate from one correctional facility

to another, without more, does not violate the inmate’s

constitutional rights, even where conditions in one facility are

more disagreeable). 

For the foregoing reasons, I conclude that O’Mara’s request

to be transferred to a less restrictive or more amenable facility

does not rise to the level of a constitutional claim. I

therefore recommend that his motion to transfer (document no. 7)

be denied. To the extent he alleges a Fourteenth Amendment due

process claim arising from defendants’ failure to transfer him to

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32

another facility, I recommend that his claim be dismissed in its

entirety.

III. Appointment of Counsel

O’Mara moves for appointment of counsel (document no. 3),

asserting that he is unable to effectively represent himself in

this civil proceeding. An indigent litigant must show that

exceptional circumstances exist to justify appointment of

counsel, such that without counsel the litigant most likely would

be unable to obtain due process of the law. See DesRosiers v.

Moran, 949 F.2d 15, 23-24 (1st Cir. 1991). “In determining

whether the circumstances are ‘exceptional,’ courts have

considered such factors as the merits of the case, the litigant’s

capability of conducting a factual inquiry, the complexity of the

legal and factual issues, and the ability of the litigant to

represent [himself].” Weir v. Potter, 214 F. Supp. 2d 53, 54 (D.

Mass. 2002)(citing Cookish v. Cunningham, 787 F.2d 1, 2 (1st Cir.

1986)).

While O’Mara maintains that he is unable to represent

himself effectively, he has not demonstrated an inability to

litigate or other exceptional circumstances to justify the

appointment of counsel. He has filed an articulate complaint, an

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33

amendment thereto, and several motions in which he has presented

his claims clearly and effectively. At this preliminary stage in

the proceedings, appointment of counsel does not appear to be

necessary. Having considered his circumstances and the

applicable law regarding his rights to legal representation, I

recommend that his motion to appoint counsel (document no. 3) be

denied, but without prejudice to it being renewed at a later date

should circumstances warrant renewal.

IV. Municipal Liability

Construed liberally, the complaint names the HCDOC, a

municipal entity, as a defendant in this action. Municipalities

and local government entities are “persons” within the meaning of

Section 1983. See Monell, 436 U.S. at 690. A municipal entity

cannot be held liable under Section 1983 on a theory of

respondeat superior or vicarious liability; rather the

municipality itself must proximately cause the constitutional

injury, through promulgation or tacit approval of a policy or

custom. See City of Canton v. Harris, 489 U.S. 378, 385 (1989). 

To state a viable Section 1983 claim, a plaintiff must allege in

substance that the challenged municipal custom or policy was the

“moving force” behind the constitutional violations. See Board

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34

of the County Comm’rs v. Brown, 520 U.S. 397, 404 (1997); McCabe

v. Life-Line Ambulance Serv., 77 F.3d 540, 544 (1st Cir. 1996)

(citations omitted). Supervisors similarly can be held liable

only on the basis of their own acts or omissions, amounting to

reckless or callous indifference to the constitutional rights of

others. See Gaudreault v. Salem, 923 F.2d 203, 209 (1st Cir.

1990).

In this action, if O’Mara intends to pursue claims against

the HCDOC, he must, at a minimum, allege that his constitutional

deprivations were the product of a municipal custom or policy. 

Liberally construing the complaint, I conclude that the wrongful

conduct ascribed to the HCDOC was the product of an

unconstitutional municipal custom or policy. The alleged

deprivations stem from HCDOC policy governing the treatment of

pretrial detainees. Construed liberally, the complaint suggests

that HCDOC was the “moving force” behind the acts or omissions

allegedly taken by its subordinate officers. Accordingly, I

conclude that the complaint states a viable claim premised upon

municipal liability against the HCDOC.

The complaint also names O’Mara in his official capacity as

the Superintendent of the HCDOC. Official capacity suits against

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35

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. See also Brandon v. Holt, 469 U.S.

464, 471 (1985)(suits against parties in their official

capacities treated as suits against the municipality). As an

employee of the HCDOC, Superintendent O’Mara had knowledge of the

municipal policy that allegedly caused the underlying

deprivations. Because I find municipal liability as to the

HCDOC, I extend that reasoning to O’Mara and conclude that the

official capacity claims against him are cognizable for purposes

of preliminary review.

Conclusion

For the reasons stated above, I conclude that O’Mara has

alleged the following claims: 

(1) Fourteenth Amendment claims arising from inhumane cell

conditions against O’Mara, Dionne, Brown and Menic;

(2) Sixth and Fourteenth Amendment claims arising from

interference with the right to attorney-client

communications and the right to access the courts

against Norman, Beaudon, Pinciaro and Robbins; 

(3) Fourteenth Amendment due process claims arising from

O’Mara’s confinement in administrative segregation

against Raymond, McDougall, Scurry and Sawer; and

(4) related municipal liability claims against the HCDOC. 

Case 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 35 of 37
36

I recommend dismissal of all remaining claims. I further

recommend that O’Mara’s motion to appoint counsel (document no.

3), motion for transfer (document no. 7) and motion to be

released from administrative segregation (document no. 4) be

denied. Lastly, I recommend that a preliminary injunction

hearing be scheduled with regard to O’Mara’s claims arising from

his administrative segregation. 

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 further 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 28 U.S.C. § 

Case 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 36 of 37
37

636(b)(1); 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: July 17, 2008

cc: Timothy M. O’Mara, pro se

Case 1:08-cv-00051-SM Document 10 Filed 07/17/08 Page 37 of 37