1In addition to Ron White, Palermo names the following

Merrimack County Department of Corrections employees as

defendants to this action: Corrections Officer Jim Lewko,

Chaplain Bill Plenge, Corrections Officer Dan Wells, Kitchen

Officer Kevin Austin, and Physician’s Assistant Paul Sylvester.

2Although Palermo does not specifically cite the RLUIPA as

grounds for relief in this matter, I find that, construed

liberally, the complaint alleges a claim under the RLUIPA and I

will consider that claim, as described in this Order, to have

been raised in the complaint.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher M. Palermo

v. Civil No. 08-cv-126-JL

Ron White, Superintendent,

Merrimack County Department

of Corrections, et al.1

O R D E R

Before the Court is Christopher Palermo’s complaint

(document no. 1), filed pursuant to 42 U.S.C. § 1983 and the

Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §

2000cc (“RLUIPA”).2 Palermo filed this action while housed at

the Merrimack County Department of Corrections (“MCDC”), alleging

that the defendants, employees of the MCDC, have violated his

federal constitutional and statutory rights to freely exercise

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2

his religion, and his constitutional rights to equal protection

of the laws, adequate vision care, meaningful access to the

courts, and not to be placed in danger during his incarceration. 

The complaint is before me for preliminary review to determine

whether, among other things, it 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. 

Id. In conducting the preliminary review, the Court construes

pro se pleadings liberally, 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). “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

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3

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 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. 

Background

1. Facts Relating to Religious Practice Claims

Christopher Palermo entered the MCDC in March of 2008. Upon

his intake at the MCDC, Palermo notified MCDC staff that he

required a vegetarian religious diet because he follows the Wicca

religion. Palermo provided MCDC staff with copies of paperwork

showing that chaplains in other jails had approved his request

for a religious diet. For the first four days that Palermo was

at the MCDC, he was supplied with a vegetarian diet. After four

days, MCDC Kitchen Officer Kevin Austin denied Palermo’s

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4

religious diet because the MCDC Chaplain had not yet assessed

Palermo’s need for such a diet. Palermo was then provided with a

non-vegetarian diet, forcing him to either violate his religious

beliefs or to go hungry.

When Palermo arrived at the MCDC, he also requested that the

Chaplain obtain certain religious items, religious texts, and

literature that were necessary for him to be able to effectively

and meaningfully practice his religion. For two weeks, Palermo

was denied these items, or any items related to his religious

practice. As a result, Palermo was not able to observe a

religious holiday that fell during that time period. Palermo

claims that members of other religions are routinely provided

with religious items and writings that are necessary for the

effective practice of their religion, and that he was denied

access to these items because the MCDC failed to recognize his

religious practice as legitimate.

2. Facts Relating to Vision Care Claim

On March 5, 2008, Palermo asked Paul Sylvester, an MCDC

physician’s assistant, to arrange an eye examination so that he

could replace his glasses. Palermo explained to Sylvester that

his glasses were lost during his arrest, and that he has an

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5

astigmatism, and without corrective lenses, his eyesight will

worsen. Sylvester advised Palermo that an eye examination would

cost Palermo $200, and that he didn’t care about whether or not

Palermo’s eye condition would worsen. When threatened with legal

action for a lack of adequate vision care, Sylvester told Palermo

“Go ahead, I’m above the law.”

3. Facts Relating to Law Library Claim

Palermo claims that the only legal research materials

available to inmates is a single Lexis/Nexis database terminal. 

Palermo requested access to this database to prepare for his

pending criminal case. For two weeks of his incarceration at the

MCDC, Palermo was not given access to any means of conducting

legal research, and was told that he might have to wait up to two

months to get access to the Lexis/Nexis database. Palermo

identifies MCDC Officer Jim Lewko as the official responsible for

denying him access to legal research at the jail.

Palermo claims that his efforts to pursue his criminal case

have been hindered by his inability to conduct legal research at

the MCDC in a timely fashion. Specifically, Palermo was delayed

in making certain court filings, was unprepared for hearings on 

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3The claims as identified herein will be considered for all

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

disagrees with this identification of the claims, he must

properly move to amend his complaint.

442 U.S.C. § 1983 provides that:

Every person who under color of any statute, 

6

motions, and missed filing deadlines altogether in his criminal

case. 

4. Facts Relating to Toothpaste Claim

Palermo states that the MCDC has provided him with

toothpaste that has been imported from a foreign country and has

not received approval from the United States Food and Drug

Administration (“FDA”) or the American Dental Association

(“ADA”). This toothpaste, he alleges, has caused the enamel on

his teeth to wear off, creating a painful dental issue. In

addition, Palermo alleges that he feels sick every time he uses

the toothpaste. Palermo sought relief from MCDC Officer Dan

Wells who failed to remedy the situation.

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

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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

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

Palermo’s claims allege violations of federal constitutional and

statutory law by state actors, his suit arises under § 1983.

II. Pretrial Detainee Status

Palermo was a pretrial detainee at the MCDC at the time the

events he describes occurred. Detainees have a constitutional

right under the due process clause of the Fourteenth Amendment to

be free of punishment. See Surprenant v. Rivas, 424 F.3d 5, 15

(1st Cir. 2005) (citing O’Connor v. Huard, 117 F.3d 12, 15 (1st

Cir. 1997)). However, challenged conditions or restrictions

which can be rationally related to some legitimate administrative

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8

goal or security concern generally will not be deemed

unconstitutional “punishment.” O’Connor, 117 F.3d at 15. 

Because the Due Process Clause prohibits the infliction of

punishment on a person prior to a judgment of conviction, the

issue in evaluating claims by a pretrial detainee is ultimately

whether the conditions of confinement were reasonably related to

a legitimate state interest or were intended instead as

punishment. See Surprenant, 424 F.3d at 13; Collazo-Leon v. U.S.

Bureau of Prisons, 51 F.3d 315, 317 (1st Cir. 1995).

III. Claims Regarding Religious Practice

A. The First Amendment/Free Exercise Clause

The First Amendment of the United States Constitution

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof.” The first religion clause of the First Amendment, the

Establishment Clause, mandates the separation of church and

state. The second religion clause of the First Amendment, the

Free Exercise Clause, requires that government respect and not

interfere with the religious beliefs and practices of those

protected by the United States Constitution. See Cutter v.

Wilkinson, 544 U.S. 709, 719 (2005).

Case 1:08-cv-00126-JL Document 8 Filed 09/05/08 Page 8 of 19
9

A prisoner “retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” 

Pell v. Procunier, 417 U.S. 817, 822 (1974). The retained rights

include the right to the free exercise of religion. Cruz v.

Beto, 405 U.S. 319, 322 (1972). Prisons must provide all inmates

reasonable opportunities to exercise religious freedom. Id. at

322, n.2. When a prisoner raises a Free Exercise Clause claim,

he must “establish that a challenged policy restricts the

inmate’s free exercise of a sincerely held religious belief.” 

Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Barnett v.

Comm’r, N.H. Dep’t of Corr., No. Civ. 98-305-JD, 2000 WL 1499490

at *2 (D.N.H. Apr. 26, 2000).

The Supreme Court has held that a prisoner’s sincerely held

religious beliefs must yield, however, if contrary to prison

regulations that are “reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987); see O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-352

(1987) (finding that the Constitution does not require the prison

to sacrifice legitimate penological objectives to satisfy an

inmate’s desire to exercise his religion so long as an inmate is

Case 1:08-cv-00126-JL Document 8 Filed 09/05/08 Page 9 of 19
10

not deprived of all forms of religious exercise). A prison

regulation must have a logical connection to the legitimate

governmental interests invoked to justify it. Turner, 482 U.S.

at 89-90. That connection may not be “so remote as to render the

policy arbitrary or irrational.” Id. Prisons must provide all

inmates reasonable opportunities to exercise their religious

freedom. See Cruz, 405 U.S. at 322 n.2. Free exercise claims

brought by prisoners are “judged under a ‘reasonableness’ test

less restrictive than that ordinarily applied to alleged

infringements of fundamental constitutional rights.” Ford v.

McGinnis, 352 F.3d 582, 588 (2d Cir. 2003) (quoting O’Lone, 482

U.S. at 349); see also Shaw v. Murphy, 532 U.S. 223, 227-229

(2001). 

B. The RLUIPA

Palermo’s allegation that he was denied access to a

religious diet and religious items can also be construed as a

claim brought under the RLUIPA which, in certain circumstances,

prohibits government infringement on the practice of religion. 

See Mayweathers v. Newland, 314 F.3d 1062, 1065 (9th Cir. 2002). 

Under the RLUIPA, governmental imposition of a “substantial

burden on the religious exercise” of a prisoner is prohibited,

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11

unless the burden “(1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C. §

2000cc-1(a). The phrase “religious exercise” is to be construed

liberally to include belief and professing of one’s faith as well

as the performance of physical acts, such as assembling with

others to worship. See Cutter, 544 U.S. at 720. 

C. Wicca

“‘Wicca is a polytheistic faith based on beliefs that

prevailed in both the Old World and the New World before

Christianity.’” Kay v. Bemis, 500 F.3d 1214, 1219 n.5 (10th Cir.

2007) (quoting O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400

(7th Cir. 2003)). As such, Wicca is a religion that has been

practiced and recognized for thousands of years. Palermo asserts

that the MCDC chaplain and administration have refused to

recognize Wicca as his religion, and, therefore, his

constitutionally protected right to practice his religion. As a

result, Palermo was not provided with a religious diet, religious

ritual items, or religious literature. For purposes of

preliminary review I find that nothing in the complaint indicates

any reason to disbelieve the sincerity of Palermo’s religious

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12

belief. Further, I find that religious diets, ritual items, and

religious texts can be important aspects of religious practice or

expression. 

I find, therefore, that the complaint adequately alleges

that defendants Plenge, Austin, and MCDC Superintendent Ron

White, who is responsible for the administration of MCDC policy,

have acted to substantially burden Palermo’s religious practice

by denying him a religious diet, religious ritual items, and

religious texts. Nothing in the facts alleged indicates or

implies that denying Palermo access to these opportunities to

practice his religion furthered any compelling governmental

interest, or was the least restrictive means of furthering such

an interest. Accordingly, Palermo’s allegations suffice to state

claims against Plenge, Austin, and White, under both the Free

Exercise Clause of the First Amendment and the RLUIPA.

IV. Equal Protection Claim

“The essence of the Equal Protection Clause is that

government should treat similarly situated persons alike.” 

Street v. Maloney, 991 F.2d 786, at *4 (1st Cir. 1993) (citing

Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)); see also

Feeley v. Sampson, 570 F.2d 364, 371 (1st Cir. 1978) (explaining

Case 1:08-cv-00126-JL Document 8 Filed 09/05/08 Page 12 of 19
13

that prison authorities' decisions in differentiating the

treatment between similarly situated inmates cannot be

arbitrary). Where accommodations that are made for inmates to

practice one religion, such as the provision of a vegetarian diet

or particular religious item, but are denied to a member of

another religion arbitrarily, and the difference in treatment

cannot be attributed to a legitimate penological interest, the

failure to provide the accommodation may be unduly restrictive of

the religious practice of the inmate denied the accommodation. 

See Street, 991 F.2d at *4 (discussing that allowing rosary beads

to Catholic inmates while denying prayer beads to inmates of

other religions may violate equal protection).

Here, Palermo alleges that he sought a vegetarian diet as

well as religious texts and items. Palermo claims that such

items are routinely provided to inmates who practice other

religions, but were denied to him based on the arbitrary failure

to recognize Wicca as a religion by the MCDC. Accordingly, I

find that Palermo has stated the minimum facts necessary to

allege that he was discriminated against on the basis of his

religious beliefs, rather than treated differently on the basis

of legitimate penological concerns that distinguished his

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14

situation, and that he was therefore denied equal protection of

the laws. I will therefore direct that this claim be served on

defendants Austin, Plenge, and White.

V. Inadequate Vision Care Claim

To state a cause of action under § 1983 premised on

inadequate medical care, a plaintiff must allege facts which

demonstrate that the defendant acted with deliberate indifference

to the prisoner’s serious medical needs. Estelle, 429 U.S. at

106; Bean v. Cunningham, 650 F. Supp. 709, 713 (D.N.H. 1986). 

Deliberate indifference may be manifested by prison medical

personnel in their response to prisoners’ needs or by prison

personnel “intentionally denying or delaying access to medical

care or intentionally interfering with the treatment once

prescribed.” Estelle, 429 U.S. at 104-05. As to the second

essential element, “[a] medical need is ‘serious’ if it is 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.” Gaudrealt v.

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

inadequate vision care can support a valid § 1983 action 

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15

challenging the improper denial of medical care. See Koehl v.

Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). 

Palermo has demonstrated that he had a diagnosed need for

vision correction for his astigmatism, which is a serious medical

condition, and that Sylvester nevertheless refused to provide him

with an eye examination or eyeglasses. Palermo has alleged

sufficient facts, therefore, to state a claim for inadequate

vision care to allow this claim to proceed against Sylvester. 

Additionally, to the extent that Palermo challenges the policy of

requiring inmates to pay $200 to have an eye examination for

evaluation and treatment of a diagnosed vision problem, I find

that Palermo has stated a claim against defendant White. 

VI. Denial of Access to the Courts Claim

Although not entitled to all of the constitutional rights

guaranteed to nonincarcerated people, prisoners maintain a

constitutional right of access to the courts that affords them

access to the tools necessary to challenge their criminal cases,

criminal convictions and sentences directly or collaterally, to

file habeas petitions, or to challenge the conditions of their

confinement through civil rights actions. Lewis v. Casey, 518

U.S. 343, 345 (1996). In order to state a claim for denial of

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16

access to the courts under § 1983, a prisoner must demonstrate

that the prison officials’ actions “hindered his efforts to

pursue a legal claim” that he is constitutionally entitled to

pursue during his incarceration. Id. at 351. 

Here, Palermo claims that the only access inmates at the

MCDC have to legal research is by way of a single terminal

accessing the Lexis/Nexis system, which he claims is inadequate

to timely meet the research needs of the inmates who use it. 

This dearth of access to legal research causes significant delays

in the inmates’ access to legal research which, according to

Palermo, have hindered the pursuit of his legal claims, resulting

in the deprivation of his right to meaningfully access the

courts. I find that Palermo has stated the minimum facts

necessary to allege a violation of his right to access the

courts, and I will direct that this claim be served. Palermo

claims that defendant Lewko is the individual at the MCDC who

refused to provide him with adequate access to legal research

materials. I also find that White, as the Superintendent of the

MCDC can be reasonably inferred to be aware of the MCDC’s lack of

law library facilities, and is therefore also an appropriately

named defendant to this claim. 

Case 1:08-cv-00126-JL Document 8 Filed 09/05/08 Page 16 of 19
5Palermo characterizes his claim as a violation by

defendants of consumer protection laws as the toothpaste in

question was not approved by the FDA or the ADA. There is no

constitutional right to FDA or ADA approved toothpaste. See

e.g., Demeter v. Prison Med. Dep’t, No. CIV.A. 01-3720, 2002 WL

59352, at *3 (E.D. Pa. 2002). I therefore construe this as an

endangerment claim. 

6According to the FDA website, that organization warned

consumers in the fall of 2007 that potentially poisonous

toothpaste was being imported from China. The toothpaste brands

at issue were those containing a poisonous chemical called

diethylene glycol. In addition, the FDA has identified that

certain toothpastes are manufactured overseas and counterfeited

17

VII. Endangerment Claim

Palermo alleges that his safety was endangered when MCDC

officials provided him with toothpaste that wore the enamel off

of his teeth and made him sick.5 The safety and security of all

prisoners is protected by the constitution. See DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 190 (1989);

Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). To state a

constitutional claim that the defendants endangered him, Palermo

must allege that the defendants were aware of and deliberately

indifferent to a serious risk to his safety. See Burrell v.

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

claims that he suffered significant and painful damage to his

teeth, as well as his health, from the toothpaste provided by the

MCDC.6 Palermo states that MCDC officials were aware of the

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for sale in this country and Canada as recognizable brand names,

such as Colgate. See http://www.fda.gov/oc/opacom/hottopics/

toothpaste.html. Palermo has not indicated, and may not know,

the specific brand of toothpaste provided by the MCDC, or the

specific ingredient or ingredients in the toothpaste causing

harm.

18

problem, as he complained to Officer Dan Wells about it. Wells

refused to remedy the situation. Additionally, defendant White,

as the Superintendent, is the administrator responsible for

providing safe hygiene items to inmates. Accordingly, I find

that Palermo has alleged an endangerment claim upon which relief

might be granted against both Wells and White.

Conclusion

For the reasons stated herein, I find that Palermo has

sufficiently stated claims alleging violations of his rights to

adequate medical care, to practice his religion, to equal

protection of the laws, to meaningfully access the courts, and to

have his safety protected, to allow this action to proceed

against defendants White, Lewko, Plenge, Wells, Austin, and

Sylvester. Accordingly, I order that the complaint be served on

those defendants. 

My review of the file indicates that Palermo has completed

summons forms for each defendant. The Clerk’s office shall issue

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19

the summonses against defendants and forward to the United States

Marshal for the District of New Hampshire (the “U.S. Marshal’s

office”) the summonses and copies of the complaint (document no.

1), and this Order. Upon receipt of the necessary documentation,

the U.S. Marshal’s office shall effect service upon Defendants. 

See Fed. R. Civ. P. 4(c)(2). 

Defendants are instructed to answer or otherwise plead

within twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A). 

Palermo is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the Defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: September 5, 2008

cc: Christopher M. Palermo, pro se

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