Gillespie v. Wall et al

Filing 4

MEMORANDUM AND ORDER dismissing 1 COMPLAINT against Michele Auger, Nancy Bailey, Robert Dennette, Brian Duaray, Pauline Marcussen, Eddie Sousa, Ashbel T. Wall, James Weeden, filed by Clyde James Gillespie, Jr. for failure to state a claim on which relief may be granted; denying as moot 2 Motion for Leave to Proceed in forma pauperis; denying as moot 3 Motion to Appoint Counsel. So Ordered by Judge William E. Smith on 8/1/11. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
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:
:
:
:
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:
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CLYDE JAMES GILLESPIE, JR.,
Plaintiff,
v.
A.T. WALL, et al.,
Defendants.

C.A. No. 10-188 S

- - - - - - - - - - - - - - MEMORANDUM AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before this Court is a complaint (the “Complaint”, ECF No.
1) filed pro se by plaintiff Clyde James Gillespie, Jr., an
inmate at the Adult Correctional Institutions (the “ACI”) in
Cranston,

Rhode

Island,

seeking

declaratory

and

injunctive

relief and damages pursuant to 42 U.S.C. § 1983 and related
statutes, based on certain conditions of his confinement.
Court

has

screened

the

Complaint

pursuant

to

28

This

U.S.C.

§

1915(e)(2) and 28 U.S.C. § 1915A.

This Court finds that the

Complaint

upon

fails

to

state

a

claim

granted and should be dismissed.

which

relief

may

be

In view of this, Plaintiff’s

application for leave to proceed in forma pauperis (ECF No. 2)
and his motion for appointment of counsel (ECF No. 3) will be
denied as moot.

I.

BACKGROUND
A.

Named Defendants.

The following defendants are named in the Complaint:

A.T.

Wall, Director of the Rhode Island Department of Corrections
(“RIDOC”);

Nancy

Bailey,

RIDOC

Operations

Director;

James

Weeden, Warden for the High Security Center (“HSC”), the maximum
security unit of the ACI; Michelle Auger, Deputy Warden for the
HSC;

Paulina

Marcussen,

RIDOC

Director

of

Medical

Services;

Eddie Souza, a Correctional Officer in charge of the prison
library services; and Correctional Officers Robert Dennette and
Brian Duaray.

Plaintiff alleges that at all relevant times all

Defendants acted under color of state law.
B.

Allegations1

The

Complaint

alleges

that

Defendants

James

Weeden

and

Michele Auger have permitted the following:


Plaintiff has been "subjected to very bad unsanitary
living conditions," including shower areas "smelling
of

bodily

ventilation

human
and

waste"
broken

and

urine,

showerheads

inadequate
in

air

showers.

(Compl. 10, 16, 19.)2

1

  Unless otherwise stated, the conditions allegedly existed
while Plaintiff was housed in the HSC from August 18, 2008
through the filing of his Complaint.
2

Complaint page number references are to docket pagination.
2



Inadequate

heat

and

chipped

vents in his prison cell.


lead

paint

on

the

air

(Id. at 10.)

Plaintiff has been housed under unsafe fire conditions
and building code violations in the HSC and officials
have

"no

proper

plaintiff;”

prompt

there

are

remedy

no

fire

for

the

saf[e]ty

of

systems

or

sprinkler

chemical smoke detectors in the living quarters; and
Defendants Wall and Bailey have permitted these unsafe
fire

conditions

continue.
Plaintiff

and

building

code

violations

to

(Id. at 10-11, 15, 19.)

alleges

that

he

complained

of

the

foregoing

conditions numerous times but has not received any response or
relief.

(Id. at 16-17.)

Plaintiff further alleges that Defendant Paulina Marcussen
has allowed her medical subordinates to deny Plaintiff proper
medical services without interruption, delay, or input by nonmedical prison personnel.
Defendants

Wall,

(Id. at 8, 11, 17.)

Bailey,

Weeden

and

Auger

permitted

the

denial of proper food services as follows:


Food portions served at the prison are “child-size[d]
portions”

and

insufficient

for

Plaintiff’s

personal

needs; the undersized portions are served in order to
keep the inmates underweight and weak and thus easier
to discipline.
3



The food handling is unsanitary, as the serving trays
have cracks in which dishwashing chemicals are trapped
during washing and cleaning, potentially contaminating
the food.



(Id. at 9, 11, 18.)

Defendants

Duaray

and

Dennette

have

unreasonably

obstructed, destroyed and delayed Plaintiff’s incoming
mail

and

have

“obstructed

and

open[ed]”

retaliatory fashion his outgoing mail.
18, 21.)

in

a

(Id. at 9-10,

Further, Defendants Wall, Bailey, Weeden and

Auger have allowed their subordinates to tamper with
Plaintiff’s mail despite his complaints regarding the
same.


(Id. at 12, 18.)

Defendants Wall, Bailey, Weeden and Auger have allowed
their subordinates to deprive Plaintiff of “access to
the courts or court officials” and denied him “proper
prompt legal services and proper materials to petition
the courts."

(Id. at 10, 20.)

Defendant Souza has

deprived Plaintiff of proper access to available legal
materials

and

typewriters.


Defendants

supplies,

including

photocopiers

and

(Id. at 10, 20-21.)
Wall,

Bailey

and

Weeden

have

denied

Plaintiff access to religious privileges and religious
services

on

C-status

or

4

solitary

status,

while

HSC

prisoners

on

B-status

privileges.


Wall,

allowed

religious

(Id. at 13.)

Defendants

are

Bailey

and

Weeden

have

denied

Plaintiff, while on solitary status, phone privileges,
including calls to attorneys or government officials,
and

visits

from

friends

and

relatives,

even

though

other similarly-situated inmates have such phone and
visiting privileges.


(Id. at 13, 14.)

Plaintiff

been

services

has

also

(unspecified)

denied

and

the

proper
same

recreation

recreation

other prisoners “when [the] weather is bad.”

as

(Id. at

13, 15.)
C.

Exhaustion
Sought

of

Administrative

Remedies

and

Relief

Plaintiff alleges that he complained to prison authorities
concerning the above conditions on September 21 and 28, 2009 and
March 9, 2010 but prison officials refused to remedy them.
at 11, 12, 22.)

(Id.

He alleges that Defendants have violated his

rights under the First, Sixth, Eighth and Fourteenth Amendments
to the United States Constitution as well as his rights under
the

Rhode

Island

Constitution.3

3

(Id.

at

22.)

He

seeks

For purposes of this § 1915 screening, the Court assumes
that Plaintiff’s rights under the Rhode Island Constitution are
co-extensive
with
his
rights
under
the
United
States
Constitution.
See Olsen v. Town of Westerly, No. 03-245, 2006
WL 997716, at *3 (D.R.I. Apr. 17, 2006) (“Rhode Island's
5

declaratory and injunctive relief and compensatory and punitive
damages against all Defendants.
II.

DISCUSSION
A.

Screening under § 1915(e)(2) and § 1915A

In

connection

with

proceedings

in

forma

pauperis,

§

1915(e)(2) instructs courts to dismiss a complaint at any time
if it fails to state a claim on which relief may be granted.

28

U.S.C.

§

to

screen

complaints

1915(e)(2).

Similarly,

filed

by

§

1915A

prisoners

directs

against

a

courts

governmental

entity, officer or employee and to dismiss the complaint, or any
portion thereof, for reasons identical to those set forth in §
1915(e)(2).

28 U.S.C. §§ 1915A (a) and (b).

The legal standard for dismissing a complaint for failure
to state a claim pursuant to § 1915(e)(2)(B) and § 1915A is
identical

to

the

12(b)(6) motion.

legal

standard

used

when

ruling

on

a

Rule

Fridman v. City of New York, 195 F. Supp. 2d

534, 538 (S.D.N.Y. 2002); Pelumi v. Landry, No. 08-107, 2008 WL
2660968,

at

*2

(D.R.I.

June

30,

2008).

In

making

this

determination, the Court must accept Plaintiff’s allegations as
true and construe them in the light most favorable to Plaintiff;
although

the

Court

need

not

credit

bald

assertions

or

constitutional protections of due process and equal protection
are similar to those provided under the Fourteenth Amendment of
the United States Constitution.”) (citing Kleczek v. Rhode
Island Interscholastic League, Inc., 612 A.2d 734, 740 (R.I.
1992)).
6

unverifiable conclusions.
1949-50 (2009).

Ashcroft v. Iqbal, 129 S. Ct. 1937,

Further, the Court must review pleadings of a

pro se plaintiff liberally.

Estelle v. Gamble, 429 U.S. 97, 106

(1976).
A complaint fails to state a claim for which relief may be
granted

if

the

factual

allegations

fail

to

“raise

[the

plaintiff’s] right to relief above the speculative level.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
complaint

must

allege

sufficient

facts

to

That is, the

show

plaintiff has a plausible entitlement to relief.

that

the

Iqbal, 129 S.

Ct. at 1949-51.
B.

Legal Standard Under Section 1983

Section

1983

requires

“three

elements

for

liability:

deprivation of a right, a causal connection between the actor
and the deprivation, and state action.”

Sanchez v. Pereira-

Castillo, 590 F.3d 31, 41 (1st Cir. 2009).
C.

Denial of Religious Privileges

Gillespie claims that Defendants Wall, Bailey and Weeden
have

denied

him

“relig[i]ous

privileges”

and

“relig[i]ous”

services while he was in solitary confinement in cell block C
and that inmates in cell block B are permitted such services.
(Compl. 13.)
In O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987),
the

Supreme

Court

affirmed

that,

7

although

prisoners

do

not

abandon

their

constitutional

rights

at

the

prison

door,

“[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified
by

the

considerations

underlying

our

penal

system.”

Accord

Turner v. Safley, 482 U.S. 78, 84 (1987).
Here,

Plaintiff

simply

alleges

the

denial

of

religious

services and privileges and nothing more. He provides no details
as to the nature and scope of these religious “privileges” or
“services,” how often they have been denied, and what, if any,
reasons were given for that denial.

His allegation that Cell B

inmates have religious privileges likewise provides no details
or supporting facts.
Plaintiff’s
conclusory

and

substantially

barebones
fail

to

burdens

his

allegations
show

how

sincerely

on
“the

held

this

claim

disputed
religious

are

conduct
beliefs.”

Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006).

Put

another way, the allegations fail to state “sufficient facts to
show that he has a plausible entitlement to relief.”
590 F.3d at 41 (citing Iqbal, 129 S. Ct. at 1949).

Sanchez,
Thus, they

fail to state a claim on which relief may be granted.4

4

In view of this determination, this Court need not engage
in the four-prong analysis set forth in Turner to evaluate
whether a prison regulation or practice is reasonably related to
legitimate penological interests.
See Turner v. Safley, 482
U.S. 78, 89-91 (1987). Here, Plaintiff has not alleged that the
denial of religious services was pursuant to any specific prison
8

D.
The

Conditions of Confinement
Eighth

punishments.”
that

‘the

Amendment

prohibits

“cruel

U.S. Const. amend. VIII.

treatment

a

prisoner

and

unusual

“[I]t is now settled

receives

in

prison

and

the

conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.’”

Farmer v. Brennan, 511 U.S. 825,

832

v.

(1994)

(1993)).

(quoting

Helling

McKinney,

509

U.S.

25,

31

Prison officials must provide humane conditions of

confinement by “ensur[ing] that inmates receive adequate food,
clothing, shelter, and medical care.”

Id. (citation omitted).

To state an Eighth Amendment claim, a plaintiff must plead facts
which establish both an objective component, that he was forced
to endure “extreme deprivations,” and a subjective component,
that the defendant acted with “deliberate indifference” to such
conditions.
With

Hudson v. McMillian, 503 U.S. 1, 8-9 (1992).
respect

to

the

objective

component,

“[t]he

Constitution . . . ‘does not mandate comfortable prisons,’ and
only those deprivations denying ‘the minimal civilized measure
of life’s necessities,’ are sufficiently grave to form the basis
of an Eighth Amendment violation.”

Wilson v. Seiter, 501 U.S.

regulation or policy. Similarly, the complaint fails to state a
claim under section 3 of the Protection of Religious Exercise of
Institutionalized Persons, 42 U.S.C. § 2000cc-1 et seq., as
Plaintiff’s sparse allegations do not show how Defendants have
imposed “a substantial burden” on the exercise of his religious
rights.
9

294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347,
349

(1981)).

With

respect

to

the

subjective

element,

the

plaintiff must plead facts indicating that the defendant was
aware

of

and

consciously

disregarded

substantial harm to the plaintiff.
Here,

plaintiff

alleges

a

serious

risk

of

Farmer, 511 U.S. at 826.

several

distinct

conditions-of-

confinement claims, which are discussed seriatim.
1.

Fire Safety and Building Code Violations

Plaintiff alleges that Maximum and High Security housing
units do not have sprinkler systems or smoke detectors in or
around inmate cells.

He further alleges that the prison is in

violation of the Rhode Island fire safety code and building code
(although he does not identify specific provisions).

Plaintiff

names Defendants Weeden and Auger as being responsible for fire
safety

and

alleges

conditions

that

throughout

these

Defendants

Plaintiff’s

period

knew
of

of

these

confinement.

(Compl. 19.)
Here,

although

Plaintiff

states

that

the

High

Security

Center does not have sprinkler systems or smoke detectors, he
does not allege facts showing that the alleged inadequacies in
the prison’s fire prevention system amounted to anything more
than a “deviation from ideally safe conditions.”
Collazo, 714 F.2d 1172, 1183 (1st Cir. 1983).
does

not

allege

that

the

prison

10

lacks

a

Santana v.

For example, he

comprehensive

fire

safety plan, fire extinguishers, proper fire escapes, a fire
alarm system, evacuation plans, fire drills, locking devices on
cell doors, fire walls, or smoke containment capabilities in the
ventilation systems.

See, e.g., Hadix v. Johnson, 367 F.3d 513,

528-29 (6th Cir. 2004) (reviewing cases dealing with prison fire
safety); Sowell v. Fair, 915 F.2d 1557, at *5 (1st Cir. 1990)
(Table)

(stating

that

prisoner’s

claim

regarding

inoperative

smoke detectors failed to state Eighth Amendment claim).
In addition, his conclusory allegations that the HSC fails
to follow fire code procedures are not supported by any specific
facts showing substantial deviations from ideal conditions that
amount to a constitutional violation.

See Hadix, 367 F.3d at

529 (noting the need to show “the point at which certain fire
safety deficiencies ceased being mere deficiencies and, instead,
became constitutional violations”).
As such, his allegations in this respect fall short of
stating a viable claim.
2.

Unsanitary Shower Conditions

Plaintiff’s allegations concerning the overall cleanliness
of the facility, including claims that the showers smelled of
urine and human bodily waste, the shower heads were broken and
the ventilation was inadequate are not sufficiently serious to
satisfy the objective component of the Eighth Amendment test.
Plaintiff does not allege that he suffered, or imminently will

11

suffer, any injury as a result of the conditions.

See, e.g.,

Shrader v. White, 761 F.2d 975, 983-84 (4th Cir. 1985) (holding
that

prisoners’

shower

area

allegations
covered

including

in

rust,

leaking

mold,

ceilings

and

mildew

and

a

were

constitutionally insignificant); Flaherty v. Cunningham, No. 93216, 1994 WL 485751, at *2 (D.N.H. Sept. 2, 1994) (dismissing
inmates’ Eighth Amendment claims regarding poor air quality and
absence of fresh fruit, where inmates did not aver sufficient
facts demonstrating present or potential future harm).
3.
Similarly,

Building conditions
Plaintiff's

allegations

concerning

inadequate

heating and chipped lead paint on the vents in prison cells fail
to warrant relief.

The allegations regarding cold temperatures

do not show what harm, if any, he has suffered as a result.
See, e.g., Nelson v. Hill, 211 Fed. App’x 88, 91 n.6 (3d Cir.
2006)

(denying

recovery

where

plaintiff

complained

of

cold

temperatures but failed to show that he was deprived of blankets
or adequate clothing).
Nor does Plaintiff allege that he suffered, or imminently
will suffer, any injury as a result of the vent conditions.
See, e.g., Hunnewell v. Warden, Me. State Prison, 19 F.3d 7, at
*3

(1st

Cir.

1994)

(Table)

(holding

that

complaints

that

ventilation system blew dust and fibers into plaintiff’s cell
causing him to have headaches and a bloody nose did not allege

12

deprivations

sufficiently

serious

to

establish

a

cognizable

Eighth Amendment claim); Oliver v. Powell, 250 F. Supp. 2d 593,
604

(E.D.

Va.

2002)

(holding

that

allegations

that

cell

contained roaches, leaky toilets, peeling paint, and writing on
the wall did not state a claim under the Eighth Amendment);
Flaherty,

1994

WL

485751,

at

*2

(dismissing

inmates’

Eighth

Amendment claims regarding poor air quality, where inmates did
not

aver

sufficient

future harm).

facts

demonstrating

present

or

potential

Thus, these allegations are insufficient to state

a claim warranting relief.
4.

Food Services

Plaintiff’s

allegations

that

his

food

portions

are

too

small and that his food is at risk of contamination due to the
chemical
Compare

residue
Chase

v.

in

the

food

Quick,

596

trays
F.

fail

Supp.

to

33,

state

34

a

(D.R.I.

claim.
1984)

(prisoner’s Eighth Amendment claim alleging unsanitary eating
conditions

failed

because

plaintiff

did

not

assert

specific

instances of hunger, food-poisoning, or malnutrition resulting
from consumption of the food at ACI), with Day v. Norris, 219
Fed. App’x 608, at *1 (8th Cir. 2007) (plaintiff alleged loss of
weight, fatigue and hunger pangs and mental anguish as a result
of inadequate diet).
‘serious

deprivation

Eighth Amendment.”

Plaintiff’s claim “does not rise to the
of

basic

human

needs’

that

offends

the

Muniz v. Richardson, 371 Fed. App’x 905, at

13

*2 (10th Cir. 2010) (quoting Rhodes v. Chapman, 452 U.S. 337,
347 (1981)).
5.

Recreation

Similarly,
Bailey,
fails

and

to

Plaintiff’s

Weeden

state

a

denied

allegations
him

claim.5

“proper

The

that

Defendants

recreational

Complaint

provides

Wall,

services”
no

detail

supporting Plaintiff’s conclusory allegation that the recreation
he was permitted was not “proper,” and he does not state that
his health suffered or was threatened as a result of Defendants’
actions.
1985)

Cf. French v. Owens, 777 F.2d 1250, 1255 (7th Cir.

(holding

that

lack

of

exercise

may

rise

to

a

constitutional violation in certain limited circumstances “where
movement is denied and muscles are allowed to atrophy [and] the
health of the individual is threatened”).
E.

Medical Services

Plaintiff claims that Defendant Marcussen has allowed her
medical staff to deny proper medical attention for Plaintiff’s
specific needs and allowed non-medical correctional officers to
invade doctor-patient confidentiality and delay treatment “in a
retalition [sic] manner.”

(Compl. 11, 17.)

He further alleges

that Defendant Marcussen has been made aware of this but has
failed to address the issue.

(Id. at 17.)

5

Plaintiff couches this as a due process claim rather than
an Eighth Amendment claim.
This does not change the analysis
given the paucity of Plaintiff’s factual allegations.
14

To succeed on a § 1983 claim for inadequate medical care in
violation of the Eighth Amendment, a prisoner must show that (1)
he

has

an

objectively

serious

medical

need,

involving

a

substantial risk of serious harm if not properly treated, and
(2) the prison official had subjective awareness of his need and
consciously disregarded the substantial risk of serious harm.
Farmer, 511 U.S. at 837; Estelle, 429 U.S. at 106.

Here, the

Complaint does not identify the medical condition or conditions
for

which

Plaintiff

treatment sought.

sought

treatment

nor

the

nature

of

the

Plaintiff also fails to name the individuals

who allegedly acted in a retaliatory manner or describe the
retaliatory actions of any Defendant.

As such, his allegations

on this point are conclusory and insufficient “to show that he
has a plausible claim for relief."

Sanchez, 590 F.3d at 41

(citing Iqbal, 129 S. Ct. at 1949).
F.

Denial of Access to Legal Materials and Phone Calls

Plaintiff complains that he has been denied proper access
to legal services and materials.

Specifically, he asserts that

Defendants

and

Wall,

Bailey,

Weeden

others

have

denied

him

prompt legal services and proper materials to petition the court
(Compl. 20), as well as the right to make telephone calls to
attorneys and other government officials (id. at 14).

Plaintiff

further complains that Defendant Eddie Souza has not allowed him
to

access

“proper

available

legal

15

materials

and

supp[l]ies,

legal

machines

such

as

photo

copy

[sic]

and

typewriter[s].”

(Id. at 21.)
Prisoners

have

a

constitutional

right

of

access

to

the

court that requires “prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners

with

adequate

law

libraries

from persons trained in the law.”

or

adequate

assistance

Bounds v. Smith, 430 U.S.

817, 828 (1977).

However, in order to recover, a plaintiff must

demonstrate

he

that

suffered

an

actual

injury,

such

as

the

frustration of a nonfrivolous legal claim, as a result of the
shortcomings in access to legal assistance.
U.S. 343, 351-52 (1996).

Lewis v. Casey, 518

Thus, it “follows that the underlying

cause of action . . . is an element that must be described in
the complaint, just as much as allegations must describe the
official

acts

frustrating

the

litigation.”

Christopher

v.

Plaintiff

was

Harbury, 536 U.S. 403, 415 (2002).6
As

the

Complaint

fails

to

allege

that

hindered in his efforts to pursue a valid legal claim or to
defend himself with respect to a criminal charge, the access to
court and right to counsel claims fail.

6

The Sixth Amendment right to counsel does not apply in
civil actions.
Boivin v. Black, 225 F.3d 36, 42 (1st Cir.
2000).
16

G.

Mail Tampering

The Complaint alleges that Defendants Duaray and Dennette
have

“delayed

unreasonably

or

and

destroyed”

that

unnamed

Plaintiff’s

persons,

incoming

presumably

mail

Duaray

and

Dennette, have obstructed and opened his outgoing mail in a
retaliatory manner, in violation of the First and Fourteenth
Amendments.

(Compl. 9-10, 21.)

Plaintiff also claims that

Defendants Wall, Bailey, Weeden and Auger have permitted these
correctional officers to tamper with Plaintiff’s mail (and that
of other HSC prisoners).

(Id. at 12, 18.)

It is well established that “inspection of an inmate’s mail
may implicate First Amendment rights.”
F.

Supp.

2d

226,

242-43

(D.

Mass.

Felton v. Lincoln, 429
2006)

(citing

Stow

Grimaldi, 993 F.2d 1002, 1003-04 (1st Cir. 1993)).

v.

However,

prison officials may impose a restriction on incoming mail if
the

restriction

is

reasonably

related

to

a

legitimate

penological interest, Thornburgh v. Abbott, 490 U.S. 401, 413
(1989),

and

on

outgoing

mail

if

the

restriction

is

in

furtherance of a substantial governmental interest unrelated to
the suppression of expression and no greater than necessary to
achieve such goal, Procunier v. Martinez, 416 U.S. 396, 413,
(1974), overruled on other grounds by Thornburgh, 490 U.S. at
413.

The Supreme Court has recognized “security, order, and

rehabilitation” of inmates as substantial governmental interests

17

justifying “restraints on inmate correspondence.”

Procunier,

416 U.S. at 413; see also Stow, 993 F.2d at 1004.
Here, although Plaintiff states that Duaray and Dennette’s
delay or destruction of his incoming mail was “unreasonable” and
that their screening of his outgoing mail was “in a retaliatory
manner,”

he

fails

to

identify

any

specific

pieces

of

mail

affected or to allege any specific facts supporting such bald
assertions or otherwise suggesting that the Defendants’ actions
were

not

related

to

the

legitimate

penological

concerns

of

security, order and rehabilitation of inmates.
Moreover,
inspection

of

to
his

the
legal

extent
mail

Plaintiff
interfered

contends
with

his

that

the

access

to

courts, as discussed above, he fails to state that such action
impeded any viable legal claim.

See Lewis, 518 U.S. at 351-52;

Jutras v. Graham, No. 09-151, 2009 WL 1744588, at *5 (D.N.H.
June 19, 2009) (holding that prisoner’s allegations regarding
tampering with legal mail failed to state a claim because, in
part, “[he] has not indicated that he was harmed in any way by
the

actions

alleged”).

Accordingly,

Plaintiff’s

allegations

regarding mail tampering fail to state a claim.
H.

Equal Protection Claims -- Phone Privileges and Visits

Plaintiff alleges that Defendants Wall, Bailey and Weeden
allow

other

greater

High

phone

Security

privileges,

inmates
more

18

(in

Modules

visits

from

A,

B

and

friends

C)
and

relatives, and more recreational privileges when the weather is
bad than Plaintiff in solitary confinement.

(Compl. 13-15.)

These allegations constitute an attempt to state a Fourteenth
Amendment Equal Protection claim.
“The

essence

government

of

should

the

treat

Equal

Protection

similarly

situated

Clause

is

persons

that

alike.”

Street v. Maloney, 991 F.2d 786, at *4 (1st Cir. 1993) (Table).
In the prison context, to establish an Equal Protection claim
not

based

on

a

suspect

classification,

an

inmate

must

demonstrate that the differential treatment was arbitrary and
capricious rather than based on a rational relationship to a
legitimate state goal.

See Nadeau v. Helgemoe, 561 F.2d 411,

416 (1st Cir. 1977) (“The state’s power to draw distinctions
between

[protective

population

.

requirement

.

.

that

custody]
is

always

the

prisoners
subject

distinction

and

to

be

the

the

general

constitutional

rational

rather

than

arbitrary and capricious.”).
Plaintiff’s
services,

allegations

visits

and

concerning

recreation

do

his

not

access

set

forth

to

phone

actionable

violations.

By his own admission, he is being held in solitary

confinement

in

23-hour

lockdown,

and

thus

is

not

similarly

situated to prisoners not held in solitary confinement.
Further, it is clear that stricter restrictions on phone,
visitation

and

recreation

privileges

19

of

inmates

in

solitary

confinement compared to their fellow inmates in the general HSC
population

are

rationally

related

to

legitimate

penological

concerns, see Street, 991 F.2d at *4, and the Complaint sets
forth no allegations suggesting otherwise.

See Parks v. Town of

Hampton Falls, N.H., No. 07-173, 2007 WL 3101358, at *5 (D.N.H.
Oct.

17,

2007)

(holding

that

prisoner’s

allegations

that

affording pretrial detainees housed in the punitive unit less
out-of-cell

and

recreation

time

than

inmates

in

the

general

prison population failed to state a claim where there were no
allegations that the difference in treatment was not based on a
legitimate

penological

concern).

Therefore,

Plaintiff’s

allegations regarding disparate phone, visitation and recreation
privileges

do

not

state

a

claim

upon

which

relief

may

be

granted.
III. CONCLUSION
In view of the foregoing considerations, this Court finds
that none of the allegations in the Complaint state a claim on
which

relief

may

be

granted.

Accordingly,

hereby DISMISSED as against all Defendants.

20

such

claims

are

Plaintiff’s IFP application and his motion for appointment
of counsel are DENIED as moot.
IT IS SO ORDERED:

/s/ William E. Smith
William E. Smith
United States District Judge
Date: August 1, 2011

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