1Nagle has filed two related actions, civil nos. 08-cv-413-

JL and 08-cv-432-SM, in which he alleges similar claims against

additional defendants.

2Named as defendants are the following NHSP employees:

Warden Richard M. Gerry; and corrections officers Schofield,

First Name Unknown (“FNU”) and Pellitier, FNU.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Adam H. Nagle

v. Civil No. 08-cv-445-JL1

Warden, New Hampshire State Prison, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Adam H. Nagle has filed a complaint,

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

violated his rights under the First, Eighth and Fourteenth

Amendments to the United States Constitution and New Hampshire

law (document no. 1). Seeking injunctive and monetary relief, he

brings this action against William L. Wrenn, Commissioner of the

New Hampshire Department of Corrections (“NHDOC”), and three

employees of the New Hampshire State Prison (“NHSP”).2 The

complaint is before me for preliminary review to determine

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 1 of 19
2

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

might be granted. See 28 U.S.C. § 1915A; United States District

Court for the District of New Hampshire Local Rule (“LR”)

4.3(d)(2). 

For the reasons stated below, I find that Nagle has stated

the following claims against Gerry, Schofield and Pellitier: (1)

Eighth Amendment claims alleging use of excessive force; (2)

First Amendment retaliation claims alleging denial of the right

to petition the government for redress of grievances; and (3)

related state law claims alleging intentional infliction of

emotional distress. I recommend dismissal of all remaining

claims. Also filed is a request for injunctive relief (document

no. 1). I recommend that a preliminary injunction hearing be

scheduled with regard to Nagle’s claims alleging use of excessive

force, retaliation and intentional infliction of emotional

distress. 

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

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3

liberally construes pro se pleadings, 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). See also

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). “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.” Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997).

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.

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 3 of 19
3I construe Nagle’s reference to “occupant” to mean

cellmate(s).

4

Background

This action stems from Nagle’s confinement in the secured

housing unit (“SHU”) at the NHSP and corrections officers’

alleged use of excessive force against him while he was

experiencing seizures. Upon entering SHU, Nagle notified

officers that he suffered from a medical condition that caused

him to experience seizures. He previously suffered two seizures

while confined at the NHSP, and during one episode he sustained

injuries to his head and neck and required hospitalization. 

While confined in a cell on “A” tier, Nagle and corrections

officers informed his cellmate(s)3 of his medical condition and

instructed them to notify officers by flagging for assistance

when Nagle was experiencing a seizure. The officers allegedly

explained that “flagging” was waiving a white sheet or towel

outside a cell door to alert officers of the need for emergency

assistance. On several occasions, Nagle’s cellmates on “A” tier

flagged officers for emergency assistance when he was

experiencing seizures, however, fifteen to thirty minutes elapsed

before officers responded.

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5

The incident at issue in this action occurred in June 2008,

while Nagle was confined in SHU and was awaiting available bed

space in the Hancock Building. During that time, Parent

allegedly was in charge of SHU, and all other officers reported

to him. While Nagle was experiencing a seizure, officers

allegedly entered his cell and ordered his cellmate to leave. 

Several other officers, were standing at the cell door. At that

time, witnesses allegedly recounted, Nagle was actively in a

seizure and experiencing convulsive muscle movement along with

clenched hands and eyes rolling into the back of his head. He

allegedly was nonresponsive.

Parent allegedly held Nagle by the wrists and, when his arms

convulsively pulled away, ordered Jorgenson and the other

officers to “take him down.” The officers and Parent pulled

Nagle off of his bed and onto the floor, face first. Parent then

ordered the officers to flip Nagle onto his back while he was

still actively seizing. Parent further ordered the officers to

pin Nagle down by the arms, legs and head while Parent strattled

him. At that point, while Jorgenson was kneeling on Nagle’s

right wrist with both knees and attempting to pin down his arm,

Nagle experienced a seizure-induced muscle spasm and lifted the

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6

officer off of the ground. The other officers knelt with full

weight on Nagle’s arms, legs, head, neck and groin, and Parent

continued to strattle Nagle and began slapping his chest and

face. Within a few minutes, the seizure allegedly faded, and

Nagle was checked by a nurse and given ice for a large purple

lump on his head. As a result of defendants’ actions, Nagle

allegedly sustained injuries to his head, forehead, neck, right

elbow, left shoulder and groin. He also allegedly sustained

injuries to his joints from hyperextension and endured

unnecessary pain and suffering.

Over a period of approximately four to five months, Nagle

allegedly repeatedly reported the deprivations and resulting

injuries to Gerry, Schofield and Pellitier, however, they failed

to adequately remedy the problem or take sufficient corrective

action. In grievances submitted to Gerry, Nagle explained his

fear of retaliation and his fear of further physical abuse by

corrections officers for his filing of complaints. Gerry

allegedly refused to investigate his claims of mental and

physical abuse, and Gerry and Schofield refused to transfer him

to another facility. 

Nagle further alleges that defendants interfered with and/or

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4The claims as identified herein will be considered for all

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

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

by proper objection to this report and recommendation or by

properly moving to amend his complaint.

7

thwarted his attempts to file administrative grievances “on

multiple occasions.” His confidential requests to the warden

allegedly were intercepted and his grievances filed “through the

chain of command” and with “the Commissioner and Warden [were]

returned to no avail.” In addition, he allegedly was “harassed,

browbeaten and run in circles” with regard to his attempts to

exhaust his administrative remedies. Lastly, Nagle alleges that

defendants subjected him to disciplinary actions and sanctions in

retaliation for his filing of administrative grievances. He now

brings this civil rights action, alleging that defendants’ acts

and omissions violate his rights under Section 1983 and New

Hampshire law.

Discussion4

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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8

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. 

A. Use of Excessive Force

In June 2008, Schofield and Pellitier allegedly used

excessive force against Nagle while he was experiencing a

seizure, thereby violating his Eighth Amendment right to be free

from cruel and unusual punishment. Construed liberally, the

complaint further alleges that Wrenn and Gerry condoned the

actions by Schofield and Pellitier.

In a prison setting, the use of excessive force against a

prisoner is analyzed under the Eighth Amendment prohibition

against cruel and unusual punishment. See Whitley v. Albers, 475

U.S. 312, 319-20 (1986). See also See Davis v. Rennie, 264 F.3d

86, 98 n.9 (1st Cir. 2001) (citing Hudson v. McMillian, 503 U.S.

1, 4 (1992)(“A convicted prisoner may bring a claim for use of

excessive force under the Eighth Amendment.”) To state an Eighth

Amendment claim for the use of excessive force by prison guards,

an inmate must demonstrate “unnecessary and wanton infliction of

pain.” Whitley, 475 U.S. at 319-20. “[T]he core judicial

inquiry is . . . whether force was applied in a good-faith effort

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 8 of 19
9

to maintain or restore discipline, or maliciously and

sadistically to cause harm.” See Hudson, 503 U.S. at 7 (citing

Whitley, 475 U.S. at 320-21). To prevail on an excessive force

claim, a plaintiff must show that the alleged use of force is

“objectively sufficiently serious or harmful enough” to be

actionable. Hudson, 503 U.S. at 8; accord United States v.

Walsh, 194 F.3d 37, 50 (2d Cir. 1999). An excessive force claim

may be established even if the plaintiff does not suffer serious

or significant injury, if he can demonstrate that the amount of

force used is more than de minimis, or otherwise involves force

“repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-

10.

Here, Nagle alleges that in June 2008 while he was confined

in SHU, Schofield and Pellitier entered his cell and used

excessive force against him while he was experiencing a seizure

and while he was nonresponsive. Parent allegedly restrained

Nagle and ordered Schofield and Pellitier to “take him down.” 

Nagle appears to allege that Schofield and Pellitier were among

the corrections officers who pulled him off of his bed and onto a

concrete floor, face first, and who flipped him onto his back

while he was still actively seizing. Nagle appears to further

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10

allege that Schofield and Pellitier were among the officers who

pinned him down and knelt with full weight on his right wrist,

arms, legs, head, neck and groin, while Parent strattled Nagle

and began slapping his chest and face. The actions by Schofield

and Pellitier allegedly demonstrated deliberate indifference to

Nagle’s safety. 

As a result of defendants’ actions, Nagle allegedly

sustained injuries to his head, forehead, neck, right elbow, left

shoulder, joints and groin and endured unnecessary pain and

suffering. Nagle claims that because he was on a secure mattress

with blankets and padding to protect his head, it was unnecessary

for defendants to move him. Defendants allegedly are trained in

basic emergency response and should have been able to understand

the possibility of injury. Nothing in the record suggests that

Nagle provoked the incident or otherwise posed an immediate

threat to the safety of the corrections officers or the security

of the prison. Nor is there any indication that excessive force

was used by the officers in a good-faith effort to maintain or

restore discipline. Through a series of inmate requests slips

filed over a period of four months, Nagle allegedly reported the

deprivations and resulting injuries to Gerry, Schofield and

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 10 of 19
11

Pellitier, however, they failed to remedy the problem or take any

corrective action. For purposes of preliminary review, I find

that Nagle has alleged Eighth Amendment excessive force claims

against Gerry, Schofield and Pellitier.

In addition, Nagle broadly alleges that his “grievances from

as high as the Commissioner and Warden [have been] returned to no

avail, as well as requests going through the chain of command.” 

To the extent he alleges a claim against Wrenn, Commissioner of

the NHDOC, I conclude that he has failed to state a cognizable

claim against him. There is no indication in the record that

Wrenn was adequately informed of the incident or that he condoned

the actions by the subordinate officers. Because Nagle has

failed to allege sufficient predicate facts to state a cognizable

Eighth Amendment excessive force claim against Wrenn, I recommend

dismissal of the claim against him.

B. Retaliation

Construed liberally, the complaint alleges that defendants

retaliated against Nagle in reprisal for his First Amendment

right to file administrative grievances. I liberally construe

this claim to be brought against Gerry, Schofield and Pellitier.

To prevail on a First Amendment retaliation claim, a

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12

plaintiff must show “(1) that the speech or conduct at issue was

protected, (2) that the defendant took adverse action against the

plaintiff, and (3) that there was a causal connection between the

protected speech and the adverse action.” Davis v. Goord, 320

F.3d 346, 352 (2d Cir. 2003). It is well-established that

prisoners have a First Amendment right to petition the government

for redress of grievances, and prison officials may not retaliate

against prisoners for exercising that right. See Shabazz v.

Cole, 69 F. Supp. 2d 177, 197 (D. Mass. 1999). See also Fogle v.

Pierson, 435 F.3d 1252, 1264 (10th Cir. 2006) (noting that

“[s]everal circuits have held that a prisoner’s first amendment

right to petition the government for redress of grievances

encompasses the filing of inmate administrative appeals.”);

Walker v. Thompson, 288 F.3d 1005, 1008-09 (7th Cir. 2002)

(holding that inmates are entitled under the First Amendment to

file grievances and lawsuits, and officers may not retaliate

against them for exercising that right).

Construed liberally, the complaint in this action alleges

that Nagle engaged in constitutionally protected conduct through

the filing of administrative grievances. Defendants allegedly

thwarted his attempts to exhaust administrative remedies and

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 12 of 19
13

intercepted his confidential requests to the warden. Nagle

further alleges that Pellitier witnessed a NHSP employee

intercept his sealed inmate request slip, which was marked

“confidential” and “warden” and which was placed in the outgoing

mailbox. Pellitier allegedly denied Nagle’s request to

investigate the incident and issued a disciplinary report against

him in retaliation for filing the administrative grievance.

In addition, Nagle alleges that he has been “harassed, browbeaten

and run in circles for these attempts at remedy.” Lastly, Nagle

alleges that defendants retaliated by subjecting him to

disciplinary actions and sanctions, including confinement to his

cell during afternoon recreation time for a period of twenty

days, loss of canteen privileges for twenty-five days (suspended)

and five days of punitive segregation (suspended). He appears to

allege that defendants’ retaliatory actions were motivated by his

filing of administrative grievances and therefore were taken

against him in reprisal for his exercise of First Amendment

freedoms. 

As a result of defendants’ actions, Nagle allegedly was

denied the right to petition the government for redress of

administrative grievances. Nagle allegedly reported the

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14

deprivations and resulting injuries to Gerry, Schofield and

Pellitier, however, they failed to remedy the problem or take any

corrective action. Accepting Nagle’s allegations as true, which

I must do at this preliminary stage of the proceedings, I

conclude that he has stated cognizable First Amendment

retaliation claims against Gerry, Schofield and Pellitier.

C. Request for a Transfer

Construed liberally, the complaint alleges that Gerry and

Schofield violated Nagle’s Fourteenth Amendment right to due

process by denying his request to be transferred to another

facility. In addition, Nagle renews his request for a transfer

from the NHSP to another facility on the basis that he fears

further retaliation and abuse by the defendants.

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. 2005)(citing Sandin v. Conner, 515 U.S. 472, 478 (1995)). 

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). A prisoner has no constitutional right to be

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 14 of 19
15

incarcerated in a certain facility, even if life in one prison is

much more disagreeable. See Olim v. Wakinekona, 461 U.S. 238,

245 (1983). See also Meachum v. Fano, 427 U.S. 215, 225-28

(1976)(holding that 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).

Here, although Nagle allegedly fears further abuse and

retaliation by corrections officers, he has not identified any

direct threat; nor has he shown that he requested Gerry or

Schofield to provide him with protective custody or that any such

request was denied. See Armstrong v. Fittje, 2008 WL 686142, No.

4:07cv547-RH/WCS, slip op. at *1 (N.D. Fla. March 9, 2008). 

There is no indication that efforts to protect his safety could

not be made by Gerry, Schofield or other prison officials at the

NHSP. Id. For the foregoing reasons, I conclude that the

refusal by Gerry and Schofield to transfer Nagle to another

facility does not rise to the level of a constitutional

violation. I therefore recommend that the claims against them be

dismissed. I further conclude that Nagle’s instant request to be

transferred to another facility does not rise to the level of a

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 15 of 19
16

constitutional violation. I therefore recommend that his request

for a transfer be denied.

II. State Law Claims

Nagle alleges that the same conduct that violated his

federally protected rights to be free from use of excessive force

and retaliation also violated his right to be free from

intentional infliction of emotional distress under New Hampshire

law. He appears to allege that by using excessive force against

him while he was suffering a seizure, or by condoning such

actions, Gerry, Schofield and Pellitier caused him to experience

severe emotional distress and harm. Nagle further alleges that

as a result of defendants’ actions, he experiences emotional

distress and fears further retaliation.

Nagle’s state law claims allegedly stem from the injuries he

sustained as a result of defendants’ use of excessive force and

as a result of defendants’ retaliation for his filing of

administrative grievances and/or complaints. Nagle’s state law

claims, therefore, appear to be so related that they form part of

the “same case or controversy” of the Eighth Amendment excessive

force claim and the First Amendment retaliation claim. See 28

U.S.C. § 1367(a) (providing for supplemental jurisdiction over

Case 1:08-cv-00445-JL Document 4 Filed 12/24/08 Page 16 of 19
17

claims that are so related they form part of the same case or

controversy). Accordingly, I conclude that this court may

exercise supplemental jurisdiction over Nagle’s state law claims

for intentional infliction of emotional distress against Gerry,

Schofield and Pellitier.

III. Official Capacity

Construed liberally, the complaint seeks injunctive and

monetary relief for wrongs committed by the defendants as state

actors in their official capacities. It is well-settled that the

Eleventh Amendment bars 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 Section 1983. See Puerto

Rico 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. Michigan 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 Section 1983). 

Official capacity suits against officers of an agency are simply

“another way of pleading an action against an entity of which an

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18

officer is an agent.” Monell, 436 U.S. at 690 n.55. To the

extent Nagle brings official capacity claims for monetary relief

against the state defendants, who are employees of the NHSP, I

recommend that those claims be dismissed. 

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will, 491 U.S. at 71 n.10. Thus, Nagle is not barred

from bringing claims for prospective injunctive relief against

the defendants in their official capacities.

Conclusion

For the reasons stated above, I find that Nagle has stated

the following claims against Gerry, Schofield and Pellitier: (1)

Eighth Amendment claims alleging use of excessive force; (2)

First Amendment retaliation claims alleging denial of the right

to petition the government for redress of grievances; and (3)

related state law claims alleging intentional infliction of

emotional distress. I recommend dismissal of all remaining

claims. Accordingly, by separate order issued simultaneously

herewith, I authorize the above viable claims to proceed. 

With regard to Nagle’s request for injunctive relief

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19

(document no. 1), I recommend that a preliminary injunction

hearing be scheduled pertaining to his claims of excessive force,

retaliation and intentional infliction of emotional distress. 

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,

he must do so by objection filed within ten (10) days of receipt

of this report and recommendation, or he must properly move to

amend the complaint.

Any further objection 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. § 636(b)(1);

see also 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: December 24, 2008

cc: Adam H. Nagle, pro se

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