UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Alexander Parks

v. Civil No. 07-cv-173-PB

Town of Hampton Falls,

New Hampshire, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff William Alexander Parks brings this civil

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

under the Fourth and Fourteenth Amendments to the United States

Constitution (document no. 1). Named as defendants are the Town

of Hampton Falls, New Hampshire (“Town of Hampton Falls”), the

Rockingham County Department of Corrections (“RCDOC”) and Albert

J. Wright, Superintendent of the RCDOC.

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 find that

Parks has alleged Fourth and Fourteenth Amendment claims for

false arrest against the unnamed arresting officer employed by

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the Town of Hampton Falls. I further find that he has alleged a

Fourth and Fourteenth Amendment claim for false imprisonment

against Wright. I recommend dismissal of all remaining claims.

Standard of Review

Under this Court’s local rules, when a nonincarcerated

plaintiff commences an action both pro se and in forma pauperis,

the magistrate judge is directed to conduct a preliminary review

and to prepare a report and recommendation determining whether

the complaint or any portion thereof should be dismissed because:

the allegation of poverty is untrue, the action is 

frivolous, malicious, or fails to state a claim upon 

which relief may be granted, or seeks monetary relief 

from a defendant who is immune from such relief under 28 

U.S.C. § 1915(e)(2); or it fails to establish subject 

matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(1)(B). In conducting the preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following Estelle v.

Gamble, 429 U.S. 97, 106 (1976) 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.” Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), cert. denied,

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Ahmed v. Greenwood, 522 U.S. 1148 (1998).

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,” but not “bald assertions” or “unsupportable

conclusions,” 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).

Background

 Parks is an individual who resides in Uncasville,

Connecticut. This action stems from an incident on June 15, 2005

that occurred in Hampton Falls, New Hampshire and allegedly

resulted in his false arrest and false imprisonment. On that

evening at 7:00 p.m., Parks was driving through the Town of

Hampton Falls and allegedly was falsely arrested for felony

stalking. During the arrest, Parks claims, he was assaulted at

gunpoint, even though it was obvious that he was not possession

of any weapon or contraband. He further claims that he was manCase 1:07-cv-00173-JL Document 3 Filed 10/17/07 Page 3 of 18
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handled by the arresting officer and that he hit his head and

sustained a large bruise on his upper left arm while being placed

into the police car. His injuries allegedly were documented by

medical personnel at the RCDOC. 

Following the arrest, Parks was transported to the RCDOC

where he was detained for six months. During Parks’ detention,

prison officials allegedly failed to protect him on numerous

occasions when he was assaulted by other inmates with urine and

feces. Parks further alleges that he was placed in the punitive

housing unit where he was permitted only two hours of out-of-cell

time each day. He allegedly was denied recreational privileges

afforded to prisoners in the general prison population, who

received several hours of out-of-cell time and recreation each

day.

On December 16, 2005, the New Hampshire Superior Court

(Rockingham County) dismissed the charges of felony stalking and

resisting arrest issued against Parks. As a result of his false

arrest and false imprisonment that lasted six months in duration,

Parks allegedly sustained physical injuries and emotional trauma,

including severe anxiety and depression for which he continues to

receive comprehensive treatment from the State of Connecticut and

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1The Fourth Amendment provides:

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

5

Department of Veterans Affairs. He also sustained financial

harm, including lost wages from June 15, 2005 through December

2005. Parks 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,

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 Parks’ Section 1983 action is

that defendants subjected him to false arrest and false

imprisonment in violation of his rights under the Fourth1

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probable cause, supported by Oath or affirmation, 

and particularly describing the place to be 

searched, and the persons or things to be seized.

2To the extent that Parks intends to cite the lack of

probable cause for his arrest as the reason for a constitutional

violation, his allegations are appropriately viewed as stating a

claim for a violation of his right to be free from an

unreasonable seizure. Pena-Borrero v. Estremeda, 365 F.3d 7, 12

n.8 (1st Cir. 2004) (citing Camilo-Robles v. Hoyos, 151 F.3d 1, 6

(1st Cir. 1998)) (“The right to be free from unreasonable seizure

(and, by extension, unjustified arrest and detention) is clearly

established in the jurisprudence of the Fourteenth Amendment

6

Amendment to the United States Constitution, as applied to the

States through the Fourteenth Amendment. He further alleges that

during his detention, prison officials denied him certain

recreational privileges and failed to protect him from assaults

by other inmates.

A. False Arrest

Parks alleges that he was falsely arrested in violation of

his constitutional right to be secure in his person as guaranteed

by the Fourth and Fourteenth Amendments. Construed liberally,

the complaint appears to allege that Parks was arrested without a

warrant and without probable cause and that his arrest and

subsequent detention, therefore, violated his rights under the

Fourth and Fourteenth Amendments. Parks alleges claims of false

arrest and false imprisonment.2 

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(through which the Fourth Amendment constrains state action).”).

7

Claims of false arrest and false imprisonment are cognizable

under the Fourth Amendment’s guarantee of an individual’s “right

‘to be secure in their persons . . . against unreasonable . . .

seizures’ of the person.” Pena-Borrero, 365 F.3d at 12; see

Graham v. Connor, 490 U.S. 386, 394 (1989). “The

constitutionality of a warrantless arrest ‘depends . .. upon

whether, at the moment the arrest was made, the officer . . . had

probable cause to make it.’” Logue v. Dore, 103 F.3d 1040, 1044

(1st Cir. 1997) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). 

Probable cause to make an arrest exists if the facts and

circumstances of which the arresting officer is aware “are

sufficient to lead an ordinarily prudent officer to conclude that

an offense has been, is being, or is about to be committed” by

the arrestee. Logue, 103 F.3d at 1040. 

Here, Parks alleges that on June 15, 2005, he was stopped by

the police while driving through the Town of Hampton Falls and

was falsely arrested for felony stalking. During the arrest,

Parks allegedly was assaulted at gunpoint and man-handled, even

though it was obvious that he was not possession of any weapon or

contraband. He further alleges that he was arrested for simply

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3If Parks wishes to pursue claims against the unnamed

arresting officer, he will have to obtain the defendant’s full

name through discovery and appropriately move to amend the

complaint. He can serve the named defendants with

interrogatories to obtain the full name of the unnamed 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.

Parks is further instructed to forward a summons to this Court

with the unnamed defendant’s proper name.

8

driving through the Town of Hampton Falls. While the precise

facts surrounding Parks’ arrest are unclear, construed liberally

the complaint alleges that no timely and appropriate

determination of probable cause was made in his case. The

complaint further alleges that when an impartial judicial officer

finally reviewed his case, she determined that no charge had been

stated against Parks and dismissed his case. If true, these

allegations may state a cognizable Fourth Amendment claim for

false arrest against the unnamed arresting officer.3

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B. False Imprisonment

Parks alleges that due to his unconstitutional arrest, he

was incarcerated for six months before the charges against him

were dismissed. As a result of being detained for that period,

he allegedly was falsely imprisoned in violation of his Fourth

and Fourteenth Amendment rights. 

The Fourth Amendment requires that the States provide “a

fair and reliable determination of probable cause as a condition

for any significant pretrial restraint of liberty . . . probablecause determination ‘must be made by a judicial officer either

before or promptly after arrest.’” Baker v. McCollan, 443 U.S.

137, 142-43 (quoting Gerstein v. Pugh, 420 U.S. 103, 125 (1975)). 

Here, Parks alleges that due to his unconstitutional arrest, he

was held in custody by the RCDOC for six months before the

charges against him were dismissed. To the extent he intends to

state a false imprisonment claim based on allegations of improper

detention, I find that he has alleged the minimum facts necessary

to state a claim against Wright.

C. Failure to Protect

Because Parks was a pretrial detainee at all times relevant

to this action, his claims challenging the conditions of his

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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 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 v.

Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002)). 

Construed liberally, the complaint alleges that the RCDOC

abridged Parks’ Fourteenth Amendment rights by failing to protect

him from attacks by other inmates. Prison officials have an

obligation to protect prisoners from violence at the hands of

other prisoners. See Farmer v. Brennan, 511 U.S. 825, 833 (1994)

(citation omitted). “It is not, however, every injury suffered

by one prisoner at the hands of another that translates into

constitutional liability for prison officials responsible for the

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victim’s safety.” Id. “Rather, liability attaches only when two

requirements are met”. Espaillat v. Mousseau, Civ. No. 03-338-

SM, 2004 WL 2915287, slip op. at *2 (D.N.H. Dec. 16, 2004). 

First, the alleged deprivation must be objectively serious, that

is, showing that the inmate is incarcerated under conditions

posing a substantial risk of serious harm. See Burrell, 307 F.3d

at 7-8 (citation omitted). Second, the official involved must

have had a sufficiently culpable state of mind, described as

“deliberate indifference” to inmate health or safety. Id. “[A]

prison official ‘cannot be found liable . . . for denying an

inmate humane conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.’” Espaillat, Civ. No. 03-

338-SM, 2004 WL 2915287, slip op. at *2 (citing Farmer, 511 U.S.

at 837).

Here, Parks alleges that while detained at the RCDOC, 

prison officials failed to protect him on numerous occasions when

he was assaulted by other inmates with urine and feces. First,

Parks has not identified any conditions posing a substantial risk

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of serious harm, and the record is silent as to the nature and

extent of the injuries, if any, sustained by him during each

attack. Second, Parks has not alleged that he reported the

attacks or that any defendant had knowledge of the risk of

attack. He has not identified any defendant that failed to

protect him or failed to provide adequate supervision to ensure

his safety. Accordingly, I conclude that Parks has failed to

allege sufficient predicate facts to state a cognizable

Fourteenth Amendment claim premised upon the failure to protect

and therefore recommend that this claim be dismissed in its

entirety.

D. Equal Protection

Construed liberally, the complaint alleges that Parks, a

pretrial detainee housed in the punitive unit, was denied the

same amount of recreational time as that afforded to inmates in

the general prison population. This difference in treatment

allegedly violated his right to equal protection under the

Fourteenth Amendment.

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.

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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

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). However, “[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). 

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The complaint in this action alleges that Parks, a pretrial

detainee housed in the punitive unit, was given less out-of-cell

and recreation time than that afforded to inmates in the general

prison population. Parks concedes that he was placed in punitive

segregation and has not alleged that the RCDOC lacked a

reasonable basis or any justification for placing him there. 

There is no indication that the alleged difference in treatment

was not based on a legitimate penological concern. In addition,

there is no indication that Parks reported the alleged difference

in treatment to any prison official employed by the RCDOC. Nor

is there any indication that the defendants were aware of his

complaints or failed to remedy the problem. Accordingly, for

purposes of preliminary review, I conclude that Parks 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.

II. Municipal Liability and Official Capacity

Construed liberally, the complaint names the RCDOC and Town

of Hampton Falls as defendants 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

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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

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).

If Parks intends to pursue claims against the RCDOC and the

Town of Hampton Falls he must, at a minimum, allege that his

constitutional deprivations were the product of a municipal

custom or policy. Even liberally construing the complaint, I

cannot reasonably conclude that the wrongful conduct ascribed to

the defendants was the product of any unconstitutional municipal

custom or policy. Instead, the complaint plainly alleges that

the wrongful conduct to which Parks was subjected resulted from

the actions taken by individual defendants and not as the result

of a policy statement, ordinance, regulation or officially

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adopted decision. See Monell, 436 U.S. at 690. Nothing in the

complaint demonstrates how either defendant was the “moving

force” behind the actions or omissions the defendants. 

Accordingly, I conclude that the complaint fails to state a

viable claim premised upon municipal liability and, therefore,

recommend dismissal of the federal claims against the RCDOC and

the Town of Hampton Falls.

Construed liberally, the complaint names Wright in his

official capacity as an employee of the RCDOC. 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, 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). Because I

find no municipal liability as to the RCDOC, I extend that

reasoning to Wright and conclude that any official capacity

claims against him must fail.

Conclusion

For the reasons stated above, I find that Parks has alleged

Fourth and Fourteenth Amendment claims for false arrest against

the unnamed arresting officer employed by the Town of Hampton

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Falls. I further find that he has alleged a Fourth and

Fourteenth Amendment claim for false imprisonment against Wright. 

I recommend dismissal of all remaining claims. By separate order

issued simultaneously with this report and recommendation, I

authorize the above viable claims to proceed.

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. §

636(b)(1); Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

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792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: October 17, 2007

cc: William Alexander Parks, pro se

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