1I liberally construe O’Mara’s request for reconsideration

as an objection to my report and recommendation of July 17, 2008.

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 moves for reconsideration 

(document no. 13)1 of my report and recommendation (document no.

10), recommending dismissal of certain claims raised in his civil

rights action filed pursuant to 42 U.S.C. § 1983. 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.

O’Mara challenges the dismissal of the following claims: (1)

Case 1:08-cv-00051-SM Document 29 Filed 10/21/08 Page 1 of 6
2The factual background and analysis of O’Mara’s claims are

discussed in my report and recommendation of July 17, 2008. 

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Fourteenth Amendment claim arising from the denial of adequate

out-of-cell and recreation time; (2) Fourteenth Amendment claim

arising from the manner and condition in which he was served

food; (3) First and Fourteenth Amendment claims arising from the

alleged interference with his mail, legal documents and access to

the courts; and (4) Fourth and Fourteenth Amendment claims

arising from unreasonable searches and seizures and the

deprivation of personal property. 

I find O’Mara’s objection to be meritorious with regard to

one claim: the Fourteenth Amendment claim premised upon the

denial of out-of-cell and recreation time. Accordingly, for the

reasons stated below and by separate order issued simultaneously

herewith, I order that claim to be answered by defendants O‘Mara

and Dionne. With regard to the remaining claims, nothing in

O’Mara’s motion has altered the analysis set forth in my previous

report and recommendation. I therefore recommend that his motion

be denied as to the remaining claims.

Discussion2

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I. Denial of Adequate Out-of-Cell

Time and Recreation Time

In his original complaint, O’Mara alleged that while he was

housed in the protective custody unit as a pretrial detainee,

defendants denied him adequate out-of-cell and recreation time. 

From June 20, 2007 to the present, he allegedly was afforded only

two hours a day of out-of-cell time, which purportedly was

allocated into less-than-one-hour intervals. From June 20, 2007

to November 11, 2007, he allegedly lost nine to eleven hours of

out-of-cell time each week. He further alleged that when he was

confined on Unit 1C for a period of thirty days, he was denied

any opportunity to exercise. He allegedly reported the

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

failed to remedy the problem or take adequate corrective action.

In his motion for reconsideration of the report and

recommendation, O’Mara clarifies that from November 11, 2007 to

June 23, 2008, he was denied any opportunity to exercise out of

his cell. He further clarifies that he was “locked in a cell 22

hours a day” and was subjected to double-celling for a period of

seven months. In addition, he alleges that the denial of

adequate out-of-cell and recreation time has adversely affected

his mental well being and has caused him to suffer psychological

or physical problems, including headaches, muscle soreness, skin

Case 1:08-cv-00051-SM Document 29 Filed 10/21/08 Page 3 of 6
3To the extent O’Mara intends to allege a claim premised

upon the denial of adequate medical care and/or mental health

care, he should amend his complaint to identify the medications

and care denied, the period of time at issue and the defendants

responsible for the alleged deprivations.

4

infections, dizziness, weight loss and loss of vision and hair. 

He adds that the deprivations have exacerbated his pre-existing

and diagnosed bipolar disorder and suicidal tendencies. Lastly,

he broadly alleges that he has been denied medication.3

O’Mara’s complaints of being denied adequate out-of-cell

time and recreation time for a significant period of time,

combined with his allegations of resulting psychological and

physical problems, allege deprivations sufficiently extreme to

establish a cognizable constitutional claim. See Thomas v.

Ramos, 130 F.3d 754, 763 (7th Cir. 1997) (holding that lack of

exercise may rise to an Eighth Amendment violation in limited

circumstances where movement is denied, muscles are allowed to

atrophy and the inmate’s health is threatened); Antonelli v.

Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996)(holding that “[l]ack

of exercise may rise to a constitutional violation in extreme and

prolonged situations where movement is denied to the point that

the inmate’s health is threatened” (inmate denied recreation for

periods of up to seven weeks in succession)); Keenan v. Hall, 83

F.3d 1083, 1089-91 (9th Cir. 1996)(holding that denial of all

Case 1:08-cv-00051-SM Document 29 Filed 10/21/08 Page 4 of 6
4Because O’Mara 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 

5

out-of-cell exercise time and denial of personal hygiene items

states a constitutional violation); Anderson v. Romero, 72 F.3d

518, 527 (7th Cir. 1995) (identifying the denial of all

opportunity for out-of-cell exercise as a possible Eighth

Amendment violation); Conyers v. Michigan Department of

Corrections, No. 5:06-CV-100, 2006 WL 2644990, at *6 (W.D. Mich.

Sept. 14, 2006)(holding that “Eighth Amendment standards entitle

prisoners to exercise sufficient to maintain reasonably good

physical and mental health.”). Accordingly, I conclude that he

has alleged cognizable Fourteenth Amendment claims premised on

the denial of out-of-cell and recreation time against O’Mara and

Dionne.4

Conclusion

For the reasons stated above, I find O’Mara’s motion to be

meritorious with regard to one claim: the Fourteenth Amendment

claim premised upon the denial of out-of-cell and recreation

time. Accordingly, by separate order issued simultaneously

herewith, I direct that claim to be answered by defendants O‘Mara

Case 1:08-cv-00051-SM Document 29 Filed 10/21/08 Page 5 of 6
6

and Dionne. With regard to the remaining claims, nothing in

O’Mara’s motion has altered the analysis set forth in my previous

report and recommendation. I therefore recommend that his

objection be denied as to the remaining claims. 

If this recommendation is approved, the claims as identified

in this and my prior report and recommendation will be considered

for all purposes to be the claims raised in 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. §

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: October 21, 2008

cc: Timothy M. O’Mara, pro se

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