Tompson v. NH, State of

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Judith Tompson
v. Civil No. 15-cv-293-JL
State of New Hampshire
REPORT AND RECOMMENDATION
Before the court is petitioner Judith Tompson’s motion
(doc. no. 10) seeking release from the Hillsborough County House
of Corrections, based on the conditions of her confinement,
which she asserts endanger her health. Tompson alleges that she
has not received an appropriate diet or the opportunity to wash
her hands with soap immediately before eating, which she asserts
are necessary to avoid complications relating to her Crohn’s
Disease and perirectal disease. She seeks injunctive relief
relating to those claims, including an order directing that she
serve the remainder of her 60-day House of Corrections sentence
at home.
An action for federal habeas relief lies where a petitioner
is challenging the fact or duration of her confinement on the
ground that it violates her federal rights. See 28 U.S.C.
§ 2254(a). In general, this court cannot adjudicate inadequate
Eighth Amendment medical care/endangerment claims in a § 2254
Case 1:15-cv-00293-JL Document 11 Filed 08/20/15 Page 1 of 3

2
petition. See Crooker v. Grondolsky, No. CIV.A. 12-12024-RGS,
2012 WL 5416422, at *1, 2012 U.S. Dist. LEXIS 156760, at *3-*4
(D. Mass. Nov. 1, 2012) (“habeas can be utilized to challenge
the ‘fact, duration or degree’ of confinement but not a
condition of confinement, such as inadequate medical care”
(quoting Kamara v. Farquharson, 2 F. Supp. 2d 81, 89 (D. Mass.
1998)). Such claims are generally litigated through civil
rights actions filed under 42 U.S.C. § 1983, where relief may be
narrowly tailored to the injury. Even if all of Tompson’s
allegations were presumed true, injunctive relief in the form of
a release order would not be required, as a damage award or
other forms of injunctive relief available in an action brought
pursuant to 42 U.S.C. § 1983 may suffice.
For the foregoing reasons, the district judge should deny
the ex parte motion (doc. no. 10), without prejudice to
Tompson’s ability to refile the same claims in a separately-
docketed civil case seeking relief under 42 U.S.C. § 1983.
Additionally, as there are appear to be no grounds for sealing
the motion, the district judge should order that the provisional
seal on Document No. 10 be lifted. Any objections to this
Report and Recommendation must be filed within fourteen days of
receipt of this notice. See Fed. R. Civ. P. 72(b)(2). Failure
Case 1:15-cv-00293-JL Document 11 Filed 08/20/15 Page 2 of 3

3
to file objections within the specified time waives the right to
appeal the district court’s order. See United States v. De
Jesús-Viera, 655 F.3d 52, 57 (1st Cir. 2011); Sch. Union No. 37
v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 20, 2015
cc: Judith Tompson, pro se
Case 1:15-cv-00293-JL Document 11 Filed 08/20/15 Page 3 of 3