1Chambers’ initial complaint (document no. 1), his motion

for an addendum (document no. 19), motion for subpoena (document

no. 20), motion to compel/injunction request (document no. 22),

and motion to compel (document no. 23), will be considered, in

the aggregate, to be the complaint in this matter for all

purposes. As explained in this Report and Recommendation, and in

my simultaneously issued Order, Chambers’ motion for a mandatory

injunction (document no. 16), and Chambers’ motion for a subpoena

(document no. 24), raise separate claims unrelated to those

presented in the complaint here, and each will be treated as a

complaint filed in a separate action and docketed as such.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Randolph L. Chambers

v. Civil No. 08-cv-442-JL

Richard Gerry, Warden,

New Hampshire State Prison

REPORT AND RECOMMENDATION

Before the Court is Randolph Chambers’ complaint (document

no. 1) as well as other pleadings and documents filed in support

of his action (document nos. 16, 19, 20 & 22 - 24).1 This action

is brought pursuant to 42 U.S.C. § 1983, alleging that defendant

Richard Gerry, the Warden of the New Hampshire State Prison

(“NHSP”), as well as other NHSP employees, have violated

Chambers’ constitutional rights. The matter is before me for

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 1 of 14
2

preliminary review to determine, among other things, whether or

not this action 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. LR

4.3(d)(2). 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). 

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 2 of 14
3

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

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Randolph Chambers is an inmate at the NHSP. Chambers

alleges that he was placed on Pending Administrative Review

status at the prison on December 5, 2008. As a result, he was

transferred to the prison’s Secured Housing Unit (“SHU”). On

December 7, 2008, Chambers wrote to Sgt. Parent at his old unit

and requested a list of the property that was taken when he was

moved, as certain canteen items that he had purchased before the

transfer were not given to him at SHU. Chambers received a

property list dated December 5, 2008, the date of his transfer. 

The only items not itemized on the list were “misc[ellaneous]

food,” “misc[ellaneous] mail,” and “[misc]ellaneous photos.” 

Chambers specifically attempted to get an itemized list of his

food items so that he could retrieve them, but received neither

the list nor his food. As a result, he claims he lost between

$35 and $95 dollars worth of canteen expenses.

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4

On December 19, Chambers wrote to the Unit Manager at his

old unit and asked for his property. Sgt. Parent responded to

Chambers, advising him that all of his property had been sent to

SHU on December 19, 2008.

On January 28, 2009, Chambers had not yet received his

property. Instead, he received a 5-day notice advising him he

had to arrange to mail out certain items of his property that

were unauthorized in SHU within five days, or the property would

be destroyed, including: 1) a television, 2) boots, 3) sweats, 4)

sneakers, 5) a photo album, 6) personal paperwork, 7)

unauthorized canteen items, and 8) a net bag. On the day he

received the 5-day notice, Chambers wrote to Officer Nahodil, who

was in charge of property, and requested that he be given an

itemized list of all of his unauthorized canteen items so that he

could write an appeal. Chambers also requested his personal

paperwork and his TV, as he asserted that both were authorized in

SHU. Nahodil declined to give Chambers a list of unauthorized

items, advising Chambers instead to specifically request what he

wanted from his property. On January 29, 2009, Nahodil advised

Chambers that a television is not authorized property in SHU, and

that his personal paperwork would not be forwarded to him.

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5

Chambers has submitted a copy of PPD 9.02(J)(3)(e), the

portion of the PPD relevant to his complaint. The PPD states

that when an inmate has an increase in his security status, his

property will be taken and inventoried, and that property

authorized in the inmate’s new housing unit will be returned to

the inmate. The policy also states that the remaining property

will be “returned for reissue under regular supply procedures,”

presumably upon a reduction in custody level. 

The practice actually employed by prison officials, however,

varies from the policy outlined in PPD 9.02(J)(3)(e), to the

detriment, Chambers alleges, of his property rights. In

practice, Chambers agrees that an inmate’s property is taken at

the time a housing switch is made, at least partially

inventoried, and the property that is allowable in the new

housing unit is returned to the inmate. As to the unauthorized

property, however, the inmate, instead of having his property

retained and stored by the prison, and returned to him later,

receives a “5-day notice” regarding all of the unauthorized

property. This notice provides that the inmate has five days to

supply an address, along with prepaid postage, to which the

prison can send his property. If the inmate fails to comply with

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 5 of 14
2In an attempt to resolve this issue with the prison,

Chambers contacted the New Hampshire Civil Liberties Union

(“NHCLU”), which contacted prison officials about the discrepancy

between PPD 9.02(J)(3)(e) and the actual treatment of inmate

property. The prison acknowledged the conflict, and advised the

NHCLU that they are in the process of revising the pertinent

section of PPD 9.02 to conform to the existing practice described

herein. I find that the future revision of this policy is

immaterial to my preliminary review of this matter and I will not

consider it at this time.

6

this notice within five days, the property is destroyed or

otherwise disposed of.2

Chambers’ complaint alleges that the failure to provide him

with an itemized list of his canteen items, and the failure to

provide him with his television and personal papers in SHU, give

rise to constitutional violations of Chambers’ Fourteenth

Amendment rights to due process and equal protection and his

Fourth Amendment right not to have his property unreasonably

seized from him. Chambers further states that if these items,

which he purchased at the prison canteen, are sent out of the

prison or destroyed, he will be forced to repurchase them at his

own expense when his custody level is reduced. Chambers alleges

that this gives rise to illegal business practices as inmates are

required to purchase items from the canteen more than once, and

are not allowed to purchase items available at the canteen from

another source.

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3The claims as identified herein will be considered for all

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

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

by objecting to this Report and Recommendation, or by 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. § 19834; 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-00442-JL Document 28 Filed 03/12/09 Page 7 of 14
8

Chambers’ claims allege violations of federal constitutional law

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

II. Property Claims

In order to state a Fourteenth Amendment due process claim

for an improper deprivation of his property, Chambers must allege

a constitutionally grounded liberty interest in that property. 

None of the property itself gives rise to a federally protected

right, as an inmate has no right to have a television or to have

food items in excess of what is necessary to provide him with

adequate nourishment to live. "The Constitution 'does not

mandate comfortable prisons,' but neither does it permit inhumane

ones.” Helling v. McKinney, 509 U.S. 25, 31 (1993) (quoting

Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). The Eighth

Amendment imposes duties on prison officials to ensure that

inmates receive adequate food, clothing, shelter, and medical

care, and must take reasonable measures to guarantee the safety

of the inmates. See Farmer v. Brennan, 511 U.S. 825, 832–33

(1994); Helling, 509 U.S. at 31-32; Washington v. Harper, 494

U.S. 210, 225 (1990); Hudson v. Palmer, 468 U.S. 517, 526-527

(1984); Estelle, 429 U.S. at 103. Conditions of confinement

which do not lead to deprivations of essential food, medical

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 8 of 14
5Chambers refers to an Equal Protction claim in his

assertion of a deprivation of rights accruing to him under the

9

care, or sanitation do not amount to an Eighth Amendment

violation. See Williams v. McWilliams, 20 F.3d 465 (5th Cir.

1994) (citing Rhodes, 452 U.S. at 348). The fact that Chambers

may be required to purchase these items again in the future, if

he is returned to a security level where the items are

authorized, is a simple claim of property loss occasioned by the

failure of the prison officials to follow established policy. 

Claims alleging the theft, damage, loss or other

misappropriation of property are not actionable under 42 U.S.C. §

1983 where, as here, there is an adequate post-deprivation state

remedy available. Hudson, 468 U.S. at 533; see N.H. Rev. Stat.

Ann. §§ 541-B:9(II) & (IV), and 541-B:14 (providing a postdeprivation means of recouping property loss attributable to the

state). Here, if Chambers does, in fact, suffer a financial loss

due to the misappropriation or loss of his property by prison

officials in violation of prison policy, Chambers may seek

recompense through the State’s Board of Claims. See id.

Accordingly, I find that all of Chambers’ claims alleging the

loss of his recompensable property should be dismissed as not

cognizable as a federal cause of action.5

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 9 of 14
Fourteenth Amendment. Chambers provides no facts to support such

a claim, or that would justify construing this complaint to

allege such a claim. Accordingly, I will not consider this

action to contain a sufficiently raised equal protection claim to

warrant further consideration.

10

III. Fourth Amendment Claim

An inmate, due to the nature of incarceration, does not

enjoy a Fourth amendment right to be protected from unreasonable

seizures of personal effects in his jail cell. See Soldal v.

Cook County, 506 U.S. 56, 65 (1992) (citing Hudson, 468 U.S. at

528 n.8 (O’Connor, J., concurring) (“Prison officials must be

free to seize from cells any articles which, in their view,

disserve legitimate institutional interests,” although the items

seized may not necessarily be destroyed with impunity). As to

his personal paperwork, Chambers has failed to identify any

reason why possessing it inside the prison, as opposed to mailing

it to someone who can retain it for him outside of the prison

walls, deprives him of any right that is enforceable in a prison

context. Prison officials advised Chambers that his paperwork

was not authorized property at SHU. It takes little imagination

to understand that the removal of some personal property from an

inmate’s possession when an inmate is transferred to a higher

security status, may serve a variety of legitimate institutional

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 10 of 14
11

interests, including, but not limited to, the deprivation of

privileges as a punitive measure and space considerations in the

new unit. I find that Chambers has failed to state a Fourth

Amendment right that has been violated by the actions of prison

officials, and I recommend dismissal of this claim.

IV. Retaliation

Chambers loosely asserts that the prison is improperly

taking his property as an act of retaliation against him,

although he does not specifically state why they are retaliating

against him. Further, Chambers alleges no facts supporting any

causal connection between the treatment of his property and any

retaliatory intent by anyone at NHSP. Accordingly, I find that

insufficient facts are stated to support this claim and I

recommend it be dismissed.

V. Denial of Grievance Procedures

Chambers, due to the fact that none of his grievances are

being answered, suspects that some officers working on first

shift at the prison are failing to process his request slips and

other forms. While there is no constitutional right to the

existence of grievance procedures, see Lim v. Stanley, 2005 WL

1712202, *4 n.13 (D.N.H. 2005), the right to the use of

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12

established administrative grievance procedures in a prison

context is protected by the constitutional right to petition the

government for a redress of grievances. See Hudson, 468 U.S. at

523 (1984); Sprouse v. Babcock, 870 F.2d 450, 452 (8th cir.

1989); Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir. 1988). I

find that Chambers’ charge alleging that he was denied access to

grievance procedures is purely speculative. Even assuming the

truth of Chambers’ accusations, however, he has failed to name a

proper defendant to the claim. The only defendant named to this

action is NHSP Warden Richard Gerry who, Chambers states, is

unaware of his complaints. No officers responsible for the

breach of procedure amounting to a denial of access to the

grievance system has been identified. Accordingly, I recommend

dismissal of this claim.

VI. Excessive Force Claim

Chambers has attached an affidavit to his motion to compel

(document no. 23). The affidavit recounts an argument between

Chambers and four corrections officers where he claims that his

face was pushed into a wall. This affidavit, which has been

filed as part of another pleading, does not relate to any claim

in this action and, if Chambers intends to bring an action

Case 1:08-cv-00442-JL Document 28 Filed 03/12/09 Page 12 of 14
13

against any officer for excessive force, he must do so in a

separate complaint. As this action does not contain any claim

for excessive force, I will not consider those allegations

further.

VII. Claims to be Docketed as Separate Cases

Chambers has filed a motion for an injunction regarding the

lighting of the SHU unit during daytime hours (document no. 16). 

In addition, he has filed a motion complaining about the

condition of the meals served to him (document no. 24). As the

motions have nothing to do with Chambers’ property claims, and

were filed months after Chambers initiated this action, I find

that each of them should have been filed under separate cover as

the complaints in new actions and, accordingly, I will not

consider these allegations as part of this action. I will

instead direct the Clerk’s Office, in an Order issued

simultaneously with this Report and Recommendation, to docket

each of these motions as the complaint a new case. 

Conclusion

As I find that Chambers has failed to state any claim upon

which relief might be granted, I recommend that this action be

denied in its entirety. Any objections to this report and

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14

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: March 12, 2009

cc: Randolph L. Chambers, pro se

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