1In addition to Wrenn, Horstkotte names the following

defendants to this action: New Hampshire State Prison (“NHSP”)

Warden Richard Gerry, New Hampshire Department of Corrections

(“NHDOC”) Deputy Commissioner Christopher Kench, NHSP Corrections

Officer (“C.O.”) Brian Bernard, NHSP C.O. Luca Susca, and NHSP

Secure Housing Unit Manager Normand Marquis, as well as a John

Doe defendant who is described as the third shift officer in

charge of the Secure Housing Unit.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Todd M. Horstkotte

v. Civil No. 08-cv-285-JL

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.1

REPORT AND RECOMMENDATION

Before the Court is Todd Horstkotte’s complaint (document

no. 1), filed pursuant to 42 U.S.C. § 1983. Horstkotte brings

this action against William Wrenn, Commissioner of the New

Hampshire Department of Corrections (“NHDOC”) and other NHDOC and

New Hampshire State Prison (“NHSP”) employees, alleging that the

defendants violated his federal constitutional rights during his

incarceration at the NHSP. The complaint is before me for

preliminary review to determine whether, among other things, it

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 1 of 16
2

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, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

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

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

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

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 2 of 16
3

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

Todd Horstkotte, at the time complained of, was an inmate at

the NHSP’s Secure Housing Unit (“SHU”). On January 13, 2008, at

5:30 a.m., Horstkotte told a SHU officer he did not receive his

5:00 a.m. medication and asked the officer to check on it. At

6:30 a.m., Horstkotte had not heard what happened with his

medication. Horstkotte asked SHU Corrections Officer Brian

Bernard, who was conducting a routine health and safety check of

the inmates, to check on his medication. Bernard refused to

check on the medication because he was leaving for the day and

had not been responsible for the medication during his shift. 

Horstkotte, in response to Bernard’s refusal, asked Bernard for

his name and told Bernard that he intended to grieve the

incident. Bernard then agreed to look into the medication

situation.

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4

Five minutes later, Bernard returned to Horstkotte’s cell

with an empty medication card, which indicated that Horstkotte

had no medication left on his prescription. Bernard slammed the

card against Horstkotte’s door grate and told him that all he was

getting was an empty card. Horstkotte stated that his medication

should be available to him because he filled out the refill slip

several days prior to that and gave it to a nurse. Bernard said

that there was no refill at SHU, and that if Horstkotte ever

threatened him with a grievance again, that he would physically

harm Horstkotte. 

Horstkotte then told Bernard that he was going to file a

grievance against him for threatening him with physical harm. 

Several seconds later, the third shift Officer-in-Charge

(hereinafter “the John Doe defendant”) appeared at Horstkotte’s

cell door and ordered him to place his hands through the slot in

the cell door behind him to be handcuffed. Horstkotte complied,

and the John Doe defendant removed Horstkotte from his cell and

placed him in the dayroom. Bernard and the John Doe defendant,

when they moved Horstkotte, did not wear the standard SWAT-style

protective gear generally worn by SHU officers moving inmates. 

The John Doe defendant placed Horstkotte firmly against the wall

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 4 of 16
2Horstkotte complains that Bernard, by not filing a report

on the incident prior to the end of his shift, violated prison

administrative procedures. Even generously construing this

allegation as an assertion of a due process violation, I cannot

find that Horstkotte has alleged sufficient facts to demonstrate

that he was deprived of any constitutional right or interest by

Bernard’s delay in writing a disciplinary report, even if it was

contrary to the letter of the prison’s administrative policies. 

Accordingly, I will not construe the complaint as containing a

due process claim based on technical violations of administrative

rules.

5

in the dayroom and yelled at him about threatening officers with

grievances. Horstkotte responded by telling the John Doe

defendant that he intended to grieve the entire incident. The

John Doe defendant said, “That’s it!” and then uncuffed

Horstkotte and told him to place his hands on his head or he

would be “taken down” to the floor as an aggressor. Horstkotte

was strip searched and left in the dayroom. As Horstkotte got

dressed, he saw both of the involved officers wearing their coats

and getting ready to leave.

At the 7:00 a.m. count that morning, Horstkotte asked to

speak with Corporal Tchudin. Tchudin told Horstkotte that he

received a report that Horstkotte had threatened an officer, and

that Bernard was going to write the incident up when he returned

to duty that evening.2 Horstkotte relayed the events of the

morning to Tchudin. Tchudin then returned Horstkotte to his

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6

cell. That evening, Sgt. Luca Susca investigated the incident

and advised Horstkotte that he was being charged with a

disciplinary infraction. 

On January 18, 2008, Horstkotte grieved the issuance of the

disciplinary ticket to NHSP Warden Richard Gerry, but no action

was taken. SHU Unit Manager Normand Marquis responded to

Horstkotte with a copy of the grievance and asked Horstkotte what

action he wanted Marquis to take. Horstkotte told Marquis he

simply wanted his grievance processed according to prison policy. 

Horstkotte eventually grieved the matter to NHDOC Commissioner

William Wrenn. NHDOC Deputy Commissioner Christopher Kench

responded to the grievance but took no remedial action on it.

 A disciplinary hearing was held, and Horstkotte was found

not guilty of the infractions charged, as the charging officers

failed to demonstrate that any threat was made, or any harm done. 

Further, the officers failed to specify any actual disruption on

the unit by Horstkotte. 

Horstkotte alleges that the disciplinary report was

retaliatory, and issued to cover up Bernard’s own bad behavior

regarding the refusal to check on Horstkotte’s medication, and to

protect himself from any grievance Horstkotte might file. 

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 6 of 16
3The claims as identified herein will be considered for all

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

disagrees with this identification of the claims, he must do so

by objecting to this Report and Recommendation or properly moving

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 . . . .

7

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. § 1983;4 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 

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 7 of 16
8

Horstkotte’s claim alleges a violation of federal constitutional

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

II. Retaliation Claim

Horstkotte alleges that the strip search and disciplinary

action taken against him were retaliatory. Horstkotte claims

that these actions were not provoked by any action on his part,

and instead, were retaliatory, motivated by Horstkotte’s

statements expressing his intent to file grievances against

Bernard and the John Doe defendant.

Even assuming, arguendo, that the NHSP officials could

conduct a strip search of Horstkotte or file a disciplinary

action against him without infringing any interest protected by

the constitution, they may not do so to punish Horstkotte for

engaging in conduct protected by the First Amendment. See

McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); see also

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Anderson v.

Davila, 125 F.3d 148, 161 (3d Cir. 1997) (“[A]n otherwise

legitimate and constitutional government act can become

unconstitutional when an individual demonstrates that it was

taken in retaliation for his exercise of First Amendment

speech.”); Oropallo v. Parrish, No. 93-1953, at *3, 1994 WL

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9

168519 (D.N.H. May 5, 1994), aff’d, 23 F.3d 394 (1st Cir. 1994)

(conduct on the part of prison officials that is “not otherwise

constitutionally deficient is actionable under § 1983 if done in

retaliation for the exercise of constitutionally protected first

amendment freedoms.”). A retaliation claim has three elements:

(1) the plaintiff was engaged in protected conduct; (2) the

defendants took an adverse action against the plaintiff that

would deter a person of ordinary firmness from engaging in the

protected conduct; and (3) that there is a causal connection

between the adverse action and the protected conduct. Thaddeus-X

v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999); Soto v. Iacavino,

No. 01 Civ. 5850 (JSM), 2003 WL 21281762 at *2 (S.D.N.Y. June 4,

2003). 

As to the first element, Horstkotte contends that he was

engaged in protected First Amendment speech by advising Bernard

and the John Doe defendant of his intention to file grievances

against them. The right to petition the government for a redress

of grievances has been characterized as “among the most precious

of the liberties safeguarded by the Bill of Rights.” United Mine

Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222 (1967). In

the prison context, this right means that inmates must be

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10

“permit[ted] free and uninhibited access . . . to both

administrative and judicial forums for the purpose of seeking

redress of grievances against state officers.” Sostre v.

McGinnis, 442 F.2d 178, 200 (2d Cir. 1971) (en banc); see Hudson

v. Palmer, 468 U.S. 517, 523 (1984). Accordingly, to the extent

that Horstkotte, by telling the officers involved that he

believed they were taking grievable actions against him, was

engaged in grievance procedures, his actions were protected by

the First Amendment.

The First Amendment protects an individual’s freedom of

speech in both oral and written form. See U.S. Const. amend. I;

Palmigiano v. Travisono, 317 F. Supp. 776, 786 (D.R.I. 1970). 

Expressing an intent to file a grievance is speech, and as such,

is protected by the First Amendment. Horstkotte was exercising a

legitimate First Amendment right when he expressed an intention

to file grievances against Bernard and the John Doe officer.

As to the second element of a retaliation claim, Horstkotte

alleges that adverse action was taken against him when he was

strip searched, and then again when he was charged with

disciplinary infractions for “threatening” to file a grievance

against an officer and causing a disruption on his unit. There

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5The John Doe defendant has been identified by Horstkotte as

the third shift Officer-in-Charge of the SHU on January 13, 2008. 

As such, he should be identifiable upon Horstkotte’s receipt in

discovery of certain prison records and information. Upon

service of this action on defendants, Horstkotte can serve the

named defendants with interrogatories to obtain the full name of

11

is no question that, whether or not a strip search or

disciplinary action might be warranted in certain circumstances,

that they constitute adverse actions against an inmate at the

NHSP. Horstkotte has alleged that Bernard and the John Doe

defendant took adverse actions against him.

Finally, Horstkotte must demonstrate that there is a causal

connection between the adverse actions complained of and his

exercise of his First Amendment rights. I find that, for

purposes of preliminary review, Horstkotte has alleged sufficient

facts to enable me to draw the inference that the strip search

and disciplinary charges were made in response to Horstkotte’s

expressed intention to file grievances against Bernard and the

John Doe defendant. As the allegations in the complaint, if

true, satisfy the elements of a retaliation claim, I will direct,

in an Order issued simultaneously with this Report and

Recommendation (hereinafter the “Simultaneous Order”), that the

retaliation claim be served on Bernard and the John Doe

defendant.5

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 11 of 16
the John Doe 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. 

Once Horstkotte obtains the name of the John Doe defendant, he

may seek to add that defendant to this action. Upon the addition

of that defendant to this action, the Clerk’s office will be

directed to effect service upon him.

12

III. Official Capacity Claims

Horstkotte 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

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 12 of 16
13

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 v. Dep’t of Soc. Svcs., 436 U.S. 658, 690 n.55 (1978). 

Accordingly, I construe the claims raised in the complaint as

claims against the defendants in their individual capacities, and

I recommend that the official capacity claims against the

defendants be dismissed from this action. 

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 to provide a basis for supervisory

liability. Id. at 44. A defendant supervisor can be held liable

based on the defendant’s actual notice of facts sufficient to

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14

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 of reckless or callous

indifference to the constitutional rights of others. See FebusRodriguez 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.” CamiloRobles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). 

Defendants Wrenn, Kench, Gerry, and Marquis each serve a

supervisory function within the NHDOC and/or the NHSP. I find

that Horstkotte has sufficiently alleged that defendants Wrenn,

Kench, Gerry, and Marquis each knew of plaintiff’s retaliation

allegations, as Horstkotte fully explained his concerns to them

by using the administrative grievance process at the prison. The

supervisory defendants also make clear, in their responses to

those grievances, that they were aware of the problem but did not

feel it necessary to take any action to remedy it. The responses

to Horstkotte’s grievances, coupled with the supervisors’

Case 1:08-cv-00285-JL Document 8 Filed 01/16/09 Page 14 of 16
15

knowledge of the circumstances described in this complaint,

suffice to state claims against Wrenn, Kench, Marquis and Gerry

in their supervisory capacities. In the Simultaneous Order, I

will direct that these supervisory defendants be served with this

action.

V. Defendant Sgt. Luca Susca

Horstkotte names Susca as a defendant to this action. The

complaint, however, does not allege facts which connect Susca’s

actions in investigating and serving the disciplinary report to

any retaliatory intent. Even liberally construing the

allegations in the complaint, I cannot find that any

constitutional violation by Susca has been alleged. Accordingly,

I recommend that Susca be dismissed from this action.

Conclusion

For the foregoing reasons, I recommend that any intended due

process claim based on technical violations of administrative

policies, defendant Susca, and the official capacity claims

alleged be dismissed from this action. In my Simultaneous Order,

I direct that the retaliation claim be served on defendants

Bernard, Wrenn, Kench, Marquis, and Gerry in their individual

capacities. I also authorize service of the retaliation claim on

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16

the John Doe defendant in his individual capacity when and if

Horstkotte amends his complaint to identify him by name.

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

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

Law Comm. 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: January 16, 2009

cc: Todd M. Horstkotte, pro se

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