O'Mara v. NH State Prison for Men, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy O’Mara
v. 	Case No. 22-cv-380-SM
New Hampshire State Prison for Men,
Commissioner, et al.
REPORT & RECOMMENDATION
Before the court is the complaint (Doc. No. 1) and several
complaint addenda (Doc. Nos. 4, 8-11) filed by pro se plaintiff,
Timothy O’Mara, a prisoner at the New Hampshire State Prison for
Men in Concord, New Hampshire (“NHSP”). 	The complaint is before
this Magistrate Judge for preliminary review under LR 4.3(d)(1)
and 28 U.S.C. § 1915A(a). 	Also before the court is Mr. O’Mara’s
motion (Doc. No. 12) to “compel,” which the court construes as a
motion for class certification. 	See Federal Rule of Civil
Procedure 23(a).
Preliminary Review Standard
The court may dismiss claims asserted in a prisoner’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	To
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determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
plaintiff has stated a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
The court draws the following facts from Mr. O’Mara’s
complaint documents (Doc. Nos. 1, 4, 8-11), which are construed
liberally. 	See Erickson, 551 U.S. at 94. 	Mr. O’Mara’s claims
relate to the following issues: (1) a NHSP substance abuse
treatment program known as the “Focus Program”; (2) injuries Mr.
O’Mara suffered during a work assignment; and (3) conditions at
the “Transitional Work Center.”
I. 	Allegations Relating to the NHSP’s Focus Program
Mr. O’Mara alleges that he was transferred to a restrictive
housing unit for the Focus Program on December 29, 2019, against
his wishes. 	See Compl. (Doc. No. 1) at 1. 	The transfer caused
Mr. O’Mara’s work in the NHSP kitchen to be terminated, and it
also made him ineligible for continuing education programs.
However, the factual allegations surrounding this transfer are
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unclear because most of Mr. O’Mara’s allegations relate to a
period of incarceration between February 2021 and early 2023.
Specifically, Mr. O’Mara alleges that he was paroled from
the NHSP to a community-housing program in February 2021. 	In
October 2021, however, Mr. O'Mara violated the terms of his
parole and was arrested. 	On November 29, 2021, he was referred
for a substance abuse screening with a licensed substance abuse
counsellor, but the screening does not appear to have occurred
at that time.1
In February 2022, a court sentenced Mr. O’Mara to at least
six months’ imprisonment for the parole violation. 	Mr. O’Mara
alleges that, as part of this ruling, the court ordered that all
Department of Corrections programs be “waived,” which Mr. O’Mara
asserts means that he could not be required to participate in
them.
In May and August 2022, the NHSP denied requests from Mr.
O'Mara for reduction in his custody level, from “C-3” (medium
security) to “C-2” (minimum security).2 	In October 2022,
1 In his complaint, Mr. O’Mara appears to refer at least
once to a screening that occurred prior to his October 2021
parole violation, but the circumstances of that screening are
unclear. 	Specifically, Mr. O’Mara alleges that on March 17,
2020, NHSP Director of Medical Forensics Heidi Guinen told him
that a high score he had received from a substance-abuse
counsellor was “improper.” 	Doc. No. 1 (Compl.) ¶ 43.
2 Although Mr. O’Mara does not explain the differences
between C-3 and C-3 custody levels in his pleadings, prior
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however, the prison granted Mr. O’Mara’s request to reduce his
custody level to C-2. 	The next day, however, Mr. O’Mara was
told that he needed to undergo a substance abuse screening
before the prison could reduce his custody level to C-2. 	The
screening was conducted, and it was recommended that Mr. O’Mara
undergo intensive substance abuse treatment in the NHSP’s Focus
Program. 	Community-based treatment was not recommended.
Mr. O’Mara declined to participate in the Focus Program.
Mr. O’Mara asserts that substance abuse treatment is unnecessary
because he has never been convicted of any substance abuse
offense and has never failed a drug test while in prison.
On December 21, 2022, a prison staff member asked Mr.
O’Mara to waive a 48-hour notice period so that he could be
transferred to the housing unit for the Focus Program. 	Mr.
O'Mara declined to waive the notice period. 	On December 29,
2022 Mr. O’Mara was reduced to a C-2 custody level. 	See Doc.
No. 8, at 5.
decisions from this court do. 	At the NSHP, “C-3” status is
considered medium security. 	Fernandez v. Nevada, No. 17-cv-226-
LM, 2017 U.S. Dist. LEXIS 216587, at *2, 2017 WL 11501884, at *1
(Dec. 4, 2017), R&R approved, 2018 U.S. Dist. LEXIS 16297, at
*1, 2018 WL 10436633, at *1 (D.N.H. Jan. 31, 2018), aff’d, No
18-1142, 2019 U.S. App. LEXIS 40020, at *4, 2019 WL 11863644, at
*1 (1st Cir. Jan. 17, 2019). 	“C-2” status is minimum security.
Id. 	Inmates classified at the C-2 custody level are eligible
for placement in a halfway house.
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In January 2023, Mr. O’Mara asked a NHSP staff member to
help him find housing to which he could be paroled. 	The staff
member refused to help, telling Mr. O’Mara that he must complete
the Focus Treatment program before he could be paroled. 	Mr.
O’Mara again declined to participate in that program. 	Mr.
O’Mara alleged that a NHSP staff member told him that he would
“max out” -- presumably be deemed ineligible for parole and be
required to serve the entirety of his sentence -- if he did not
participate in the Focus Program.
Later in January, the NHSP approved Mr. O’Mara’s request to
be reduced from the C-2 custody level to the C-1 custody level.
However, the NHSP refused to grant Mr. O’Mara’s request to be
released to community housing because Mr. O’Mara refused to
participate in the Focus Program.
Then, on January 30, Mr. O’Mara was told he was being
transferred back to the C-3 level. 	Mr. O’Mara asked for 48-hour
notice of the transfer. 	Mr. O’Mara asserts that such notice was
denied, although he also alleges that he was not transferred
until February 1. 	After the transfer, Mr. O’Mara alleges that
he was read a letter from New Hampshire Department of
Corrections (“DOC”) Commissioner Helen Hanks which stated that
she could remove anyone from a housing unit who she felt
presented a threat to institutional security and that he had
been recommended for Focus Treatment. 	See Doc. No. 11. 	Mr.
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O’Mara alleges that the defendants have a financial motive to
demand his participation in the Focus Program because they stand
to profit from his participation.
II. 	Allegations Relating to Injuries Suffered During a Work
Assignment
Next, Mr. O’Mara alleges that he was forced to perform
difficult manual labor despite certain physical limitations.
The timeframe for these allegations is not indicated in Mr.
O’Mara’s filings.
Specifically, Mr. O’Mara alleges that prison staff required
him to carry 45-gallon buckets heavy-laden with landfill through
the woods behind the prison. 	Mr. O’Mara, who is 56 years old,
alleges that he has arthritis in his knee and uses a cane to
walk. 	He also alleges that, at the time he was required to
perform the manual labor, he wore an orthopedic wrist band
because he had recently broken his arm. 	Mr. O’Mara adds that he
has a serious mental health diagnosis, although his filings
contain limited detail about that diagnosis or its relationship
to his work assignments.
In light of these conditions Mr. O’Mara requested an “in-
house light duty job.” 	Doc. No. 1, at 17. 	He also alleges that
prison staff assigned him to manual labor as part of an
“ultimatum,” which was related to his grievances about the
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conditions at the “Transitional Work Center,” which are
discussed below. 	See id. at 22.
Finally, Mr. O’Mara alleges that the same individuals
responsible for forcing him to engage in difficult manual labor
also prevented him from taking certain medication which was
prescribed to treat his mental illness.
III. Conditions at the “Transitional Work Center”
Lastly, Mr. O’Mara alleges that he was held, at some point
in his incarceration, in a facility known as the “Transitional
Work Center.”3 	He alleges that the conditions at the
Transitional Work Center were deplorable in that the water from
the showers and faucets was scalding hot; the bathrooms had mold
and mildew; there was no ventilation; there was a rodent
infestation; there was raw sewage from a backed-up sewer line;
there was severe overcrowding such that beds blocked emergency
exits; and many residents had MRSA and Staph infections to which
all of the residents were therefore exposed.
3 According to the DOC website, “[t]here are three
Transitional Housing Units, formerly called halfway houses
(THU), and one Transitional Work Center (TWC) - formerly known
as MSU. 	These facilities help forge better relationships
between DOC, the courts, and the community. 	The Division of
Rehabilitative Services is the final stage of an offender's
incarceration as they prepare to transition back into the
community.” 	N.H. Dep’t of Corr., Div. Cmty. Corr.,
https://www.nh.gov/nhdoc/divisions/community/index.html (last
visited Nov. 20, 2023).
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Mr. O’Mara alleges that as a result of those conditions, he
suffered: a skin rash and irritation; breathing difficulty;
fatigue; and first- and second-degree burns from the excessively
hot water. 	He also alleges that the overcrowded conditions
placed him at greater risk of contracting COVID-19. 	He states
that he voiced concerns and filed grievances about the
conditions, but that defendants retaliated against him for his
complaints by forcing him to engage in manual labor.
IV. 	Claims4
Throughout his pleadings, Mr. O’Mara identified various
legal grounds for his claims against the defendants, including
the Eighth Amendment, the Fourteenth Amendment’s Due Process and
Equal Protection Clauses, the Americans with Disabilities Act,
the Rehabilitation Act, informed consent, and retaliation. 	Mr.
O’Mara, however, only occasionally connected those grounds to
his factual allegations. 	Considering the alleged facts and
legal grounds raised in Mr. O’Mara’s pleadings, the court has,
liberally construing the complaint, made its best efforts to
identify the claims that Mr. O’Mara intended to raise, see Ahmed
4 Mr. O’Mara seeks money damages from the defendants (who
are named in both their individual and official capacities, see
Doc. No. 1, at 13; Doc. No. 9, at 1), and assorted injunctive
relief.
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v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997), which are as
follows:
1. 	Defendants failed to provide Mr. O’Mara
with due process: (a) prior to his
transfer to a more restrictive housing
unit for participation in the “Focus
Program,” or (b) prior to rejecting Mr.
O’Mara’s request to be placed on a less
restrictive custody level, in violation
of the Fourteenth Amendment.
2. 	Defendants subjected Mr. O’Mara to
cruel and unusual punishment by placing
him in the “Focus Program,” depriving
him of the ability to participate in
work and education programs, in
violation of the Eighth Amendment.
3. 	Defendants discriminated against Mr.
O’Mara by recommending he participate
in the Focus Program and by denying his
transfer to other, less-restrictive
units, in violation of the Fourteenth
Amendment.
4. 	Defendants failed to obtain Mr.
O’Mara’s informed consent before
subjecting him to medical treatment in
the Focus Program, in violation of the
Fourteenth Amendment.
5. 	Defendants discriminated against Mr.
O’Mara based on his physical and mental
disabilities by refusing his request
for a light-duty work assignment in
violation of the Fourteenth Amendment.
6. 	Defendants acted with deliberate
indifference to a serious risk to Mr.
O’Mara’s health and safety: (a) by
forcing him to engage in difficult
manual labor, and (b) by prohibiting
him from taking prescribed medication
despite knowing Mr. O’Mara suffered
from physical and mental disabilities,
in violation of the Eighth Amendment.
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7. 	Defendants violated: (a) Title II of
the Americans with Disabilities Act
(“ADA”), 	and (b) Section 504 of the
Rehabilitation Act, by denying Mr.
O’Mara’s request for a light-duty work
assignment and forcing him to engage in
manual labor despite of his physical
and mental disabilities.
8. 	Defendants retaliated against Mr.
O’Mara for expressing concerns about
Transitional Work Center conditions by:
(a) forcing him to engage in manual
labor, and (b) by prohibiting him from
taking prescribed medication; in
violation of the First Amendment.
9. 	Defendants subjected Mr. O’Mara to
cruel and unusual punishment due to the
prison conditions at the Transitional
Work Center, namely, overcrowding, an
uncleanly environment, and excessively
hot water temperature, in violation of
the Eighth Amendment.
10. 	Defendants failed to provide Mr. O’Mara
with a remedy for his complaints
through the NHSP grievance procedure,
in violation of the Fourteenth
Amendment.
For the following reasons, the District Judge should dismiss
Claims 1-5 and 10, as well as all of the claims for money
damages Mr. O’Mara asserted against defendants in their official
capacities. 	The remainder of Mr. O’Mara’s claims will be served
in an Order issued simultaneously with this Report and
Recommendation.
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Discussion
I. 	Sovereign Immunity
Mr. O’Mara asks for money damages from the defendants in
his complaint. 	The Eleventh Amendment generally precludes a
plaintiff from suing the state, its agencies, or state employees
in their official capacities, unless the state has waived its
Eleventh Amendment immunity, or a federal law provides the
requisite waiver or abrogation of that immunity. 	See Town of
Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir. 2015);
Davidson v. Howe, 749 F.3d 21, 27-28 (1st Cir. 2014). 	No waiver
or abrogation of the state’s Eleventh Amendment immunity applies
to Mr. O’Mara’s § 1983 claims for damages asserted against the
defendants in their official capacities. 	See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 65-66 (1989) (“Congress, in
passing § 1983, had no intention to disturb the States’ Eleventh
Amendment immunity” (citation omitted)). 	Accordingly, the
district judge should dismiss all of Mr. O’Mara’s § 1983 claims5
against state officials in their official capacities to the
extent he seeks money damages for those claims.
5 The court does not intend to express any opinion at this
stage as to whether or to what extent defendants might be
entitled to sovereign immunity as to Mr. O’Mara’s ADA and
Rehabilitation Act claims.
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II. 	Focus Program (Claims 1-4)
Mr. O’Mara’s first set of claims relates to the NHSP’s
recommendation that he participate in the Focus Program. 	As to
these claims, Mr. O’Mara identifies the defendants as
Commissioner Helen Hanks; Warden Michelle Edmark; Warden
Michelle Proventure; Director of Medical Forensics Heidi Guinen;
Glenn Matthews; Jay Mackay; “other Classification personnel”;
Pat Perkins; “Ms. Thompson”; Diane York; “[a]ll LADAC
personnel”; “[a]ll case management”; and all members of the
“adult parole board.” 	Doc. No. 1 at 3.
A. 	Claim 1: Whether, in violation of the Fourteenth
Amendment, the defendants failed to provide Mr. O’Mara
with due process prior to increasing his custody level
and/or rejecting his request for a decreased custody
level.
Mr. O’Mara contends that defendants failed to provide him
with due process prior to his transfer to a more restrictive
housing unit, in violation of the Fourteenth Amendment’s due
process clause. 	He also alleges that defendants failed to
provide him with due process before rejecting his request for a
reduction in custody level.
“No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” 	U.S.
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Const. Amend. XIV § 1. 	To succeed on a procedural due process
claim under the Fourteenth Amendment, a plaintiff must
demonstrate (1) that he has been deprived of a protected
interest and (2) that the deprivation was accomplished without
due process of law. 	Pérez-Acevedo v. Rivero-Cubano, 520 F.3d
26, 30 (1st Cir. 2008).
In the prison context, a protected liberty interest is
defined as a change that “imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” 	Sandin v. Conner, 515 U.S. 472, 484 (1995). 	If a
change in a prisoner’s conditions of confinement is not “a
dramatic departure from the basic conditions” of his sentence,
the prisoner does not have a constitutional right to remain in
general prison population (or in any specific prison housing
unit) or to be free from any kind of administrative segregation.
Rodi v. Ventetuolo, 941 F.2d 22, 25 (1st Cir. 1991). 	Usually
then, “an inmate does not possess a protected liberty interest
in preventing a transfer to a more restrictive form of
confinement.” 	See Benner v. Alves, No. 21-12080-WGY, 2022 U.S.
Dist. LEXIS 12980, at *7, 2022 WL 220314, at *3 (D. Mass. Jan.
25, 2022).
First, to the extent Mr. O’Mara alleges that defendants’
recommendation or requirement that he participate in the Focus
Program caused him to be transferred to a more restrictive form
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of confinement without due process, the claim fails. 	Mr. O’Mara
does not allege facts that suggest the conditions to which he
was subjected (or to which he would have been subjected, had he
acquiesced to the recommendation or requirement) constituted a
dramatic departure from the basic conditions of his sentence.6
Rather, Mr. O’Mara appears to have been kept at the same
custody level (C-3) as the general population at the NHSP. 	Mr.
O’Mara’s inability (or potential inability)7 to utilize certain
prison programs while participating in the Focus Program does
not constitute a dramatic departure from the basic conditions of
his sentence. 	See Rivera v. Mici, No. 1:22-cv-10654-IT, 2023
U.S. Dist. LEXIS 171347, at *15, 2023 WL 6282911, at *6 (D.
Mass. Sept. 26, 2023) (“[C]ourts have found that inmates do not
6 Mr. O’Mara cites Clonce v. Richardson, 379 F. Supp. 338
(W.D. Mo. 1974), to support his claim that his assignment to the
Focus Program violated his due process rights. 	In Clonce,
however, the court found that the federal behavioral-
modification program at issue in that case involved several
severe restrictions that substantially curtailed prisoners’
rights. 	379 F. Supp. at 349 (finding that program participants
had “all their activities and speech continuously monitored,”
were not permitted to attend religious services, and were
limited to reading “a Bible and a hometown newspaper”). 	Mr.
O’Mara does not allege that these or similar features are
present in the Focus Program.
7 The allegations are unclear about whether defendants in
fact limited Mr. O’Mara’s access to these programs or whether he
merely would have temporarily lost access to them had he agreed
to participate in the Focus Program. 	The Court need not resolve
the distinction, however, as in neither case would Mr. O’Mara’s
assertions state a Fourteenth Amendment due process claim upon
which relief might be granted.
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have a protected liberty interest even when their relocation
results in the loss of access to vocational, educational,
recreational, and rehabilitative programs.”) (citing Howell v.
O’Malley, No. 09-11407-DJC, 2011 U.S. Dist. LEXIS 90299 at *15-
*16, 2011 WL 3563159, at *4 (D. Mass. Aug. 12, 2011)).
Mr. O’Mara likewise cannot prevail on a due process claim
to the extent his theory is based on the prison’s refusal to
reduce his custody level. 	See Fernandez v. Nevada, No. 17-cv-
226-LM, 2017 U.S. Dist. LEXIS 216587, at *2, 2017 WL 11501884,
at *1 (Dec. 4, 2017) (“Fernandez has not pleaded allegations
sufficient to state a claim that keeping him in medium
custody/C-3 status, or revoking his conditional reclassification
to minimum custody/C-2 status, resulted in any ‘atypical and
significant hardship’ in relation to ‘the ordinary incidents of
prison life,’ or ‘exceed[ed] the sentence’ in any ‘unexpected
manner.’”), R&R approved, 2018 U.S. Dist. LEXIS 16297, at *1,
2018 WL 10436633, at *1 (D.N.H. Jan. 31, 2018), aff’d, No 18-
1142, 2019 U.S. App. LEXIS 40020, at *4, 2019 WL 11863644, at *1
(1st Cir. Jan. 17, 2019). 	In short, “[c]lassification decisions
by prison officials, without more, do not give rise to a
cognizable” due process claim. 	Id., 2017 U.S. Dist. LEXIS
216587, at *20-*21, 2017 WL 11501884, at *7 (citing Olim v.
Wakinekona, 461 U.S. 238, 245-46 (1983), Moody v. Daggett, 429
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U.S. 78, 88 n.9 (1976), and Meachum v. Fano, 427 U.S. 215, 225
(1976)).
For those reasons, the District Judge should dismiss Mr.
O’Mara’s Fourteenth Amendment due process claim, identified in
this Report and Recommendation as Claim 1, to the extent it is
based on the defendants’ recommendation or requirement that he
participate in the Focus Program; his transfer to a more
restrictive housing unit or custody level; or the defendants’
denial of Mr. O’Mara’s requested transfer to a less restrictive
housing unit or custody level.
B. 	Claim 2: Whether Mr. O’Mara’s placement in the “Focus
Program” was cruel and unusual punishment in violation
of the Eighth Amendment.
Claim 2 relates to Mr. O’Mara’s allegations that the
defendants’ recommendation or requirement that he participate in
the “Focus Program” violated his Eighth Amendment right to be
free from cruel and unusual punishment because it resulted in
the loss of his ability to participate in work and education
programs. 	The Eighth Amendment prohibits the imposition of
“‘cruel and unusual punishments.’” 	Rivera, 2023 U.S. Dist.
LEXIS 171347, at *17, 2023 WL 6282911, at *7 (quoting U.S.
Const. amend. VIII). 	An Eighth Amendment claim that challenges
the conditions of a prisoner’s confinement requires proof of two
elements: (1) an objective requirement that the prisoner was
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incarcerated under conditions that posed a “substantial risk of
serious harm,” and (2) a subjective requirement that defendants
acted or failed to act with “‘deliberate indifference’ to inmate
health or safety.” 	Farmer v. Brennan, 511 U.S. 825, 834 (1994).
To establish deliberate indifference, a prisoner must show that
defendants knew about the substantial risk to his health or
safety and disregarded that risk, amounting to a wanton or
reckless failure to prevent harm. 	See Zingg v. Groblewski, 907
F.3d 630, 635 (1st Cir. 2018). 	Stated in other terms, to meet
the subjective component, a prisoner must show that the
defendant official’s mental state was equivalent to criminal
recklessness, which is “‘characterized by obduracy and
wantonness, not inadvertence or error in good faith.’” 	Mateo v.
Warden, No. 20-cv-1012-PB, 2021 U.S. Dist. LEXIS 98383, at *7,
2021 WL 2109748, at *3 (D.N.H. May 24, 2021) (quoting Leite v.
Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018)).
Placement in segregated or even isolated custody even for
“very lengthy periods,” without more, does not violate the
Eighth Amendment. 	See Jackson v. Meachum, 699 F.2d 578, 583
(1st Cir. 1983); Rivera, 2023 U.S. Dist. LEXIS 171347, at *17,
2023 WL 628911, at *7; Homo v. Merrimack Cty. Dep’t of Corr.,
No. Civ. 01-260-JD, 2003 U.S. Dist. LEXIS 441, at *9, 2003 WL
79026, at *3 (D.N.H. Jan. 10, 2003); see also Santana v.
Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983) (“[The Supreme
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Court] has . . . indicated that the Eighth Amendment prevents
only conditions of confinement that involve the wanton and
unnecessary infliction of pain, that deny basic human needs or
that are grossly disproportionate to the severity of the crime
warranting imprisonment.”). 	Mr. O’Mara’s allegations do not
indicate that any restrictions imposed on him because of the
“Focus Program” recommendation were nearly as restrictive as
segregated or isolated custody. 	Hence, the more limited
restrictions that may have been imposed on him here likewise do
not violate the Eighth Amendment.
Additionally, to the extent that Mr. O’Mara claims that
defendants violated the Eighth Amendment by failing to aid him
in finding housing to which he could be released because he
refused to participate in the Focus Program, such claim
necessarily fails. 	“A convicted person serving a valid sentence
of incarceration has no federal constitutional right to release
from incarceration, on parole or otherwise, ‘before the
expiration of a valid sentence.’” 	Griffin v. Wrenn, No. 17-cv-
161-LM, 2018 U.S. Dist. LEXIS 115325, at *6, 2018 WL 3421391, at
*3 (Apr. 3, 2018) (quoting González-Fuentes v. Molina, 607 F.3d
864, 886 (1st Cir. 2010)), R&R approved, 2018 U.S. Dist. LEXIS
114402, at *1, 2018 WL 3421347, at *1 (D.N.H. July 5, 2018).8
8 Though it is unclear whether Mr. O’Mara intended to bring
a due process claim on the same premise, such a claim would
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For those reasons, the District Judge should dismiss Mr.
O’Mara’s Eighth Amendment claim premised on the conditions of
his custody level in relation to the Focus Program.
C. 	Claim 3: Whether defendants discriminated against Mr.
O’Mara by recommending he participate in the Focus
Program and by denying him work and education
opportunities as well as transfer to other, less-
restrictive units, in violation of the Fourteenth
Amendment.
Claim 3 relates to Mr. O’Mara’s assertion that the
Fourteenth Amendment’s Equal Protection Clause provides a legal
basis for his claims as to the Focus Program. 	“The Fourteenth
Amendment’s Equal Protection Clause prohibits a state from
treating similarly situated persons differently because of their
classification in a particular group.” 	Mulero-Carillo v. Román-
Hernández, 790 F.3d 99, 105-06 (1st Cir. 2015). 	To establish a
claim, the plaintiff must demonstrate that the person was
selectively treated, compared to other similarly-situated
individuals, and that the “selective treatment was based on
impermissible considerations such as race, religion, intent to
inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.” 	Latimore v.
Trotman, 651 F. Supp. 3d 366, 375 (D. Mass. 2023).
likewise fail. 	See Griffin, 2018 U.S. Dist. LEXIS 115325, at
*3-*6, 2018 WL 3421391, at *2-*4 (rejecting due process claim
premised on state officials’ “failure to find housing” for a
state prisoner as part of a transitional housing program).
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Mr. O’Mara did not allege facts indicating that any
prisoner, similarly situated to him in all relevant respects,
was treated any differently than him. 	Therefore, the District
Judge should dismiss Mr. O’Mara’s claim alleging a violation of
the Fourteenth Amendment’s Equal Protection Clause.
D. 	Claim 4: Whether defendants failed to obtain Mr.
O’Mara’s informed consent before subjecting him to
medical treatment in the Focus Program, in violation
of the Fourteenth Amendment.
Mr. O’Mara references a right to informed consent in his
pleadings in relation to his assignment to the Focus Program.
The Fourteenth Amendment may provide prisoners with a right to
informed consent to medical treatment. 	See Knight v. Grossman,
942 F.3d 336, 342 (7th Cir. 2019) (“We now join all other
circuits to have considered the question in holding that
prisoners have a Fourteenth Amendment right to informed
consent.”).9 	“The right to refuse medical treatment carries with
it an implied right to the information necessary to make an
informed decision about whether to refuse the treatment.” 	Id.
To establish such a claim, the prisoner must show that he would
have refused treatment had he been provided the information that
a reasonable patient would view as necessary to make an informed
9 The First Circuit does not appear to have determined
whether the Fourteenth Amendment provides a right to informed
consent. 	For purposes of addressing Mr. O’Mara’s claim here,
the court assumes that it would.
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decision. 	Id. 	The prisoner must also show that the defendant
acted with deliberate indifference to the prisoner’s right to
refuse medical treatment. 	Id. at 343.
Here, Mr. O’Mara has not asserted facts which demonstrate
that he was denied any information necessary to make the
decision to refuse treatment or that any defendant acted with
deliberate indifference to his right to refuse treatment by
failing to provide him with such information. 	Instead, he
alleges that he refused any medical treatment related to the
Focus Program, notwithstanding the information that he was or
was not provided about it. 	Accordingly, the District Judge
should dismiss Mr. O’Mara’s Fourteenth Amendment informed
consent claim.
III. Work Assignment (Claims 5-8)
Mr. O’Mara’s next set of claims relates to his allegations
that he was forced to engage in difficult manual labor despite
certain physical and mental disabilities. 	Mr. O’Mara identifies
the defendants with respect to this set of claims as “Lt.
Honeman,” “Cpt. Newcomb,” “Sgt. Johnson,” “Cpl. Davis,” and
Scott Bungay. 	Doc. No. 1, at 17.
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A. 	Claim 5: Whether defendants discriminated against Mr.
O’Mara based on his physical and mental disabilities
by refusing his request for a light-duty work
assignment, in violation of the Fourteenth Amendment’s
Equal Protection Clause.
As with his allegations related to the Focus Program, Mr.
O’Mara references the Fourteenth Amendment’s Equal Protection
Clause in relation to his work assignment. 	As before, Mr.
O’Mara fails to allege that he was treated differently from any
other similarly-situated prisoner. 	Accordingly, the District
Judge should dismiss this claim.
B. 	Claim 6: Whether defendants acted with deliberate
indifference to a serious risk to Mr. O’Mara’s health
and safety by forcing him to engage in difficult
manual labor and by prohibiting him from taking
prescribed medication despite knowing Mr. O’Mara
suffered from physical and mental disabilities, in
violation of the Eighth Amendment.
Mr. O’Mara has alleged a claim that defendants acted with
deliberate indifference to his health and safety, in violation
of the Eighth Amendment, by assigning him to perform physically
difficult labor despite his disabilities and by prohibiting him
from taking certain prescribed medication. 	Considering the
standard for Eighth Amendment claims, discussed above, the Court
directs service of this claim on the defendants in an Order
issued this date.
C. 	Claim 7: Whether defendants violated the ADA or
Rehabilitation Act by denying Mr. O’Mara’s request for
a light-duty work assignment and by forcing him to
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engage in manual labor because of his physical and
mental disabilities.
Mr. O’Mara identified the ADA and Rehabilitation Act as
legal bases for his claims in relation to his work assignment.
Under Title II of the ADA,10 “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 	42 U.S.C. § 12132. 	To
establish a violation of Title II, a plaintiff must establish
that: (1) [the plaintiff] is a qualified individual with a
disability; (2) . . . he was either excluded from participation
in, or denied the benefits of a public entity’s services,
programs, or activities or was otherwise discriminated against;
and (3) . . . such exclusion, denial of benefits, or
discrimination was by reason of [his] disability.” 	Snell v.
Neville, 998 F.3d 474, 499–500 (1st Cir. 2021) (internal
quotation marks and citations omitted). 	A public entity must
make a reasonable accommodation to the plaintiff’s disability
where such accommodation is needed to provide meaningful access
10 Generally, and as they are relevant to this order, the
standards under the ADA and § 504 of the Rehabilitation Act are
effectively the same. 	See Enica v. Principi, 544 F.3d 328, 338
n.11 (1st Cir. 2008).
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to a public service. 	Nunes v. Mass. Dep’t of Corr., 766 F.3d
136, 145 (1st Cir. 2014).11
The court assumes, for purposes of preliminary review, that
Mr. O’Mara is a qualified individual with a disability under the
ADA because of his arthritic knee, wrist problems, and alleged
(but unspecified) mental illness. 	He alleges that he requested
and was denied a reasonable accommodation with respect to his
work assignment, namely, work in a light duty position. 	Such
accommodation was denied, so Mr. O’Mara was required to perform
the hard labor notwithstanding his disabilities. 	Accordingly,
Court directs service of this claim on the defendants in an
Order issued this date. 	See id. at 146 (addressing cause of
action by prisoner under ADA and Rehabilitation Act for denial
of reasonable accommodation).
D. 	Claim 8: Whether defendants retaliated against Mr.
O’Mara for filing grievances about the conditions of
his confinement, in violation of the First Amendment.
The First Amendment shields prisoners from retaliation in
response to protected speech. 	Hannon v. Beard, 645 F.3d 45, 47-
49 (1st Cir. 2011). 	To state a First Amendment retaliation
claim, the plaintiff must allege that: (1) he engaged in
activity protected by the First Amendment; (2) he suffered an
11 Courts use the terms “reasonable accommodation” and
“reasonable modification” interchangeably. 	Sosa v. Mass. Dep’t
of Corr., 80 F.4th 15, 31 n.14 (1st Cir. 2023).
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adverse action by defendants; and (3) a causal link exists
between the exercise of First Amendment rights and the adverse
action. 	See id. at 48.
Here, Mr. O’Mara alleges that defendants threatened to
assign him to hard labor and to prohibit him from taking
medications if he voiced concerns or filed grievances about his
conditions of confinement. 	Mr. O’Mara indicates that he did not
comply and as a result he was assigned to strenuous physical
labor and prohibited from taking certain prescribed medications
as punishment. 	This claim shall be served on the defendants.
IV. 	Claim 9: Whether defendants subjected Mr. O’Mara to cruel
and unusual punishment due to the conditions at the
Transitional Work Center, in violation of the Eighth
Amendment.
Mr. O’Mara alleges that the conditions at the Transitional
Work Center were unsafe and unsanitary, which violated his
Eighth Amendment right to be free from cruel and unusual
punishment. 	Mr. O’Mara states in his complaint that the
defendants as to this claim are Commissioner Hanks, Director
Nicholas Duffy, “Captain Newcomb,” “Lt. Honeman,” “Sgt.
Johnson,” “Cpl. Davis,” and “Lt. Russ.” 	Doc. No. 1 at 21. 	For
purposes of preliminary review, Mr. O’Mara has stated sufficient
facts to meet the standard for Eighth Amendment claims,
discussed above, and accordingly, this claim shall be served on
the defendants.
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V. 	Claim 10: Whether defendants failed to provide Mr. O’Mara a
remedy for his complaints through the NHSP grievance
procedure, in violation of the Fourteenth Amendment’s Due
Process Clause.
Mr. O’Mara alleges that some or all of the defendants
violated his due process rights by failing to make the NHSP
grievance procedure available to him, either by failing to
respond to grievances or by retaliating against him for filing
grievances. 	The court discussed the retaliation claim above.
Defendants’ alleged failure to respond to Mr. O’Mara’s
grievances, however, does not implicate his due process rights
as prisoners do not have a right to prison grievance procedures
or to have prison officials comply with such procedures. 	See
Gladu v. Waltz, No. 18-cv-275-GZS, 2018 U.S. Dist. LEXIS 183708,
at *3, 2018 WL 5315192, at *1 (D. Me. Oct. 26, 2018) (collecting
cases which hold that a state prisoner does not have a protected
interest as to ineffective prison grievance procedure).
Accordingly, the district court should dismiss this claim.
VI. 	Claims that defendants violated NHSP policies or procedures
Mr. O’Mara also appears to allege that some or all of the
defendants violated certain NHSP policies or procedures in
determining his custody level or in providing him notice of the
change in his custody level. 	A prison official’s violation of
jail policies or procedures does not by itself violate the
Constitution or otherwise create a cause of action under § 1983.
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See Wescott v. Martin, No. 22-cv-59-LM, 2022 U.S. Dist. LEXIS
115981, at *17-*18, 2022 WL 2374164, at *7 (June 2, 2022), R&R
approved, 2022 U.S. Dist. LEXIS 115551, at *1, 2022 WL 2358490,
at *1 (D.N.H. June 30, 2022); Unitt v. Bennett, 2018 U.S. Dist.
LEXIS 60639, at *14, 2018 WL 1732156, at *5 (D. Mass. Apr. 10,
2018). 	To the extent Mr. O’Mara intended to bring any claims
premised solely on the violation of NHSP policies, the District
Judge should dismiss such claims.
VII. Claims that defendants should have released him from
custody
In some parts of his filings Mr. O’Mara appears to suggest
that the defendants should have released him from custody or to
transitional housing. 	To the extent Mr. O’Mara seeks release
from custody or release to transitional housing, such relief
cannot be pursued through § 1983 (or the ADA), and any claim
seeking that relief should be dismissed. 	See, e.g., González-
Fuentes, 607 F.3d at 873; Heath v. Hanks, 433 F. Supp. 3d 221,
224-25 (D.N.H. 2019) (finding that neither § 1983 nor ADA are
appropriate vehicles to pursue a “quantum change” in a
prisoner’s “level of custody”); Crooker v. Grondolsky, No. 12-
12106-GAO, 2013 U.S. Dist. LEXIS 2071, at *5 n.2, 2013 WL
101588, at *2 n.2 (D. Mass. Jan. 4, 2013) (observing that a
“quantum change in the level of custody” must proceed through
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habeas corpus, not a challenge to conditions of confinement
under § 1983).
VIII. 	Class Action Claim
Lastly, in addition to bringing claims on his own behalf,
Mr. O’Mara asserts that he plans or intends to bring a claim
regarding the Transitional Work Center Conditions on behalf of
himself and for all other similarly-situated prisoners. 	See
Doc. No. 12. 	Mr. O’Mara cannot bring suit on behalf of any
person or class other than himself as he is not an attorney.
“In all courts of the United States, the parties may plead
and conduct their own cases personally or by counsel.” 	28
U.S.C. § 1654; see also LR 83.6(b) (“A pro se party may not
authorize another person who is not a member of the bar of this
court to appear on his or her behalf.”). 	“‘As a general rule
. . . an individual appearing pro se may not represent other
individuals in federal court, see 28 U.S.C. § 1654, and courts
have routinely denied a prisoner’s request to represent a class
of prisoners without the assistance of counsel.’” 	Snyder v.
Contracted Med. for the DOC, No. CV 2O-10226-RGS, 2020 U.S.
Dist. LEXIS 136237, at *3, 2020 WL 4431749, at *1 (D. Mass. July
31, 2020) (citation omitted).
Thus, to the extent Mr. O’Mara’s motion to “compel” (doc.
no. 12) is intended to be a motion to certify a class of
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plaintiffs, it should be denied without prejudice to his ability
to obtain counsel and have counsel file a new motion for class
certification.
Conclusion
For the foregoing reasons, the District Judge should
dismiss: Claims 1-5 and 10, as identified herein; any claim
premised solely on the violation of NHSP policies or procedures;
and all of the § 1983 claims seeking either money damages
against defendants in their official capacities or release from
custody. 	Further, Mr. O’Mara’s motion for class certification
(Doc. No. 12) should be denied without prejudice to Mr. O’Mara’s
ability to obtain counsel and have counsel file a new motion for
class certification.
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). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
___________ 	______________
Andrea K. Johnstone
United States Magistrate Judge
November 28, 2023
cc: 	Timothy O’Mara, pro se
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