1In addition to naming the Nashua Police Department as a

defendant in this action, Picard has named Nashua Police Officer

Lisa Treem and Nashua Police Officer Garneaus as defendants to

this action.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Warren Picard

v. Civil No. 09-cv-025-SM

Nashua Police Department, et al.1

REPORT AND RECOMMENDATION

Before the Court is Warren Picard’s complaint (document no.

1), filed pursuant to 42 U.S.C. § 1983, alleging that defendants

violated his federal constitutional rights. The matter is before

me for preliminary review to determine, among other things,

whether the complaint states any claim upon which relief might be

granted. See 28 U.S.C. § 1915A(a); 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

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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). 

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

On July 1, 2008, Nashua Police Officer Lisa Treem arrested

Warren Picard and transported him to the Nashua Police Station

for booking. While being booked by Nashua Police Officer

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Garneaus, Picard was apparently talking more than Treem

preferred. Treem told Picard that if he did not “shut up,” she

would punch him. Picard told Treem that he could say what he

liked. In response, Treem punched Picard, with a closed fist,

above the left eye, while Garneaus looked on. The punch caused

an open cut on Picard’s head which began to bleed profusely, and

would not stop bleeding. Picard asserts that during the course

of the night, which he spent detained in the police station

booking area, he asked both Treem and Garneaus repeatedly to take

him to the hospital so that he could receive medical attention

for the cut above his eye, as it would not stop bleeding. Picard

states that neither Treem nor Garneaus ever responded to his

request at all or assisted him in obtaining medical attention.

Discussion

I. Excessive Force Claim

Picard asserts that by intentionally hitting him in the head

with a closed fist while he was detained at the Nashua Police

Department (“NPD”), Treem used excessive force against him. The

Fourteenth Amendment protects a detainee from excessive force

that amounts to punishment. See Ruiz-Rosa v. Rullan, 485 F.3d

150, 155 (1st Cir. 2007); Surprenant v. Rivas, 424 F.3d 5, 18

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(1st Cir. 2005). In determining whether a plaintiff has stated a

claim for unconstitutionally excessive force, the court should

look to the following four factors: (1) the need for the use of

force, (2) the relationship between the need and the amount of

force that was used, (3) the extent of injury inflicted, and (4)

“whether the force was applied in good faith to maintain or

restore discipline or maliciously and sadistically to cause

harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). Not “every

malevolent touch by a prison guard gives rise to a federal cause

of action.” Id. at 9. Whether a use of force is objectively

“harmful enough” to establish a constitutional violation is

“contextual and responsive to ‘contemporary standards of

decency.’” Id. at 2 (quoting Estelle, 429 U.S. at 103)). 

As Picard describes the incident, Treem punched him once in

the head because she wanted him to stop talking, causing a large

gash on his forehead. Accepting Picard’s allegations as true, as

I must at this stage of the proceedings there are no facts in the

complaint which suggest that Picard was physically threatening to

Treem or even unruly in any nonverbal way. Under those

circumstances, I can find neither that the use of force in this

case was necessary nor that it was a proportionate response to

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Picard talking. Further, the use of force was significant enough

to cause a large gash and extensive bleeding. None of the facts

asserted indicate that the force was used in a manner designed to

maintain or restore discipline. Instead, it appears that Treem

used force in order to cause harm to Picard because he would not

stop talking. As I find that the force used, as alleged, was

excessive for the circumstances described, I will direct, in an

Order issued simultaneously with this Report and Recommendation

(the “Simultaneous Order”) that Picard’s excessive force claim

proceed against Treem.

II. Inadequate Medical Care

Picard claims that the denial of medical attention for his

injury constitutes constitutionally inadequate medical care. The

constitution protects detained arrestees from their custodians

acting with deliberate indifference to their serious medical

needs. See Farmer v. Brennan, 511 U.S. 825, 831 (1994). To

assert a viable cause of action for inadequate medical care, a

detainee must first state facts sufficient to allege that he has

not been provided with adequate care for a serious medical need. 

Id. at 831; Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Estelle,

429 U.S. at 106. The plaintiff must then allege that a

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responsible official was aware of the need, or of the facts from

which the need could be inferred, and still failed to provide

treatment. Estelle, 429 U.S. at 106. A serious medical need is

one that involves a substantial risk of serious harm if it is not

adequately treated. See Barrett v. Coplan, 292 F. Supp. 2d 281,

285 (D.N.H. 2003); Kosilek v. Maloney, 221 F. Supp. 2d 156, 180

(D. Mass. 2002) (citing Farmer, 511 U.S. at 835-47); Gaudreault

v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)

(defining a serious medical need as one “that has been diagnosed

by a physician as mandating treatment, or one that is so obvious

that even a lay person would easily recognize the necessity for a

doctor’s attention.”) (internal citations omitted). 

Here, Picard states that when he requested medical care, he

was ignored by both Treem and Garneaus, although he was bleeding

profusely from a large cut to his head and the officers were both

aware of his injury and his requests for medical attention. 

Picards has alleged the minimum facts necessary to state a claim

for the denial of adequate medical care against Treem and

Garneaus, the officers responsible for his care during his

detention. Accordingly, in my Simultaneous Order, I will direct

that this claim be served on Treem and Garneaus.

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III. Municipal Liability

Picard has named the NPD as a defendant to this action. 

Municipalities and local government entities, including city

police departments are “persons” amenable to suit within the

meaning of § 1983. See Monell, 436 U.S. at 690. Under New

Hampshire law, cities, such as Nashua, as well as City

departments, are local governmental units. See N.H. Rev. Stat.

Ann. § 507-B:1(I) (defining “governmental unit” as “any political

subdivision within the state including any county, city, town,

precinct, school district, chartered public school, school

administrative unit, or departments or agencies thereof, or any

other body corporate and politic within the state, but does not

include the state or any department or agency thereof”). 

Under 42 U.S.C. § 1983, a municipal police department may be

liable for damages to a plaintiff “who is subjected to a

deprivation of his constitutional rights as a result of official

action taken pursuant to a ‘custom or usage’ of the

municipality.” Mahan v. Plymouth County House of Corrs., 64 F.3d

14, 16 (1st Cir. 1995) (citing Monell v. N.Y. City Dep’t of Soc.

Servs., 436 U.S. 658, 691 (1978)). Although in some instances a

single incident of constitutional deprivation may provide “some

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proof” of a municipal policy, “a single incident is insufficient,

in and of itself, to establish a municipal ‘custom or usage.’” 

Mahan, 64 F.3d at 16; see also City of Oklahoma City v. Tuttle,

471 U.S. 808, 823 (1985) (proof of single incident by lower level

employees does not establish official policy or custom). In this

instance, where Picard has only alleged a single incident of

police misconduct, and where he alleges no facts at all that

suggest that the acts challenged were made pursuant to any policy

or custom of the Nashua Police Department, I find that Picard has

failed to allege any facts to support an allegation that a

widespread policy, custom or practice of the NPD has violated

Picard’s constitutional rights, and I recommend, therefore, that

the Nashua Police Department be dismissed from this action.

Conclusion

For the foregoing reasons, I recommend that the Nashua

Police Department be dismissed from this action. In my

Simultaneous Order I will direct service of the excessive force

and inadequate medical care claims against Treem and Garneaus. 

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

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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: April 20, 2009

cc: Warren Picard, pro se

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