Perfetto v. Hanks, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jonathan Andrew Perfetto
v. 	Case No. 18-cv-554-JL
New Hampshire Department of Corrections
Commissioner Helen Hanks et al.1
1Plaintiff names the following individuals as defendants to
this action: New Hampshire Department of Corrections (“DOC”)
Commissioner Helen Hanks; (former) DOC Commissioner William
Wrenn; DOC Director Chris Kench; DOC Special School District
(“SSD”) Principal Davis, whose first name is unknown (“FNU”);
SSD Director Kim McKay; DOC Medical and Forensics Services
(“MFS”) Director Paula Mattis; MFS Deputy Director Heidi
Guinnen; DOC Interstate Compact Coordinator Jane Doe; DOC Secure
Psychiatric Unit (“SPU”) Unit Manager (“UM”)/Capt. FNU Marshall;
SPU Acting Lt./Sgt. FNU Barboro; SPU Sgt. FNU Carver; SPU Cpl.
FNU Murry; SPU Cpl. Stacie LaMontagne; SPU Nursing Supervisor
Ann-Marie, whose last name is unknown; SPU Administrator Debbie
Robinson; New Hampshire State Prison (“NHSP”) Residential
Treatment Unit Mental Health Clinician Lindsey Jordon; (former)
NHSP Warden Michael Zenk; NHSP UM Robert McGrath; NHSP Capt. FNU
Edmark; NHSP Lt. Jim Brown; NHSP Cpl. Mark Kimball; NHSP Cpl.
FNU Kratovil, NHSP Cpl. John/Jane Doe; NHSP Sgt. FNU Williams;
NHSP Sgt. FNU Bettens; NHSP Sgt. FNU Wilcox; NHSP Corrections
Officer FNU LaMontagne; NHSP Mailroom Officer FNU McLoud; NHSP
Librarian John Perkins; NHSP Career and Technology Programs
Director Jay Nagy; NHSP Classifications Case Counselor/Case
Manager (“CC/CM”) Glenn Matthews; NHSP CC/CM FNU Irizzary; NHSP
Medical Records Supervisor Traci Guilemette; NHSP Medical
Records Clerk Amy M.; NHSP Medical Records Clerk John/Jane Doe;
NHSP Inmate Accounts Clerk John/Jane Doe; NHSP Offender Records
Clerk Cindy Crompton; NHSP Offender Records Clerk FNU Drury;
NHSP Offender Records Clerk John/Jane Does #1 & #2; NHSP
Warehouse Supervisor John/Jane Doe; (former) Northern New
Hampshire Correctional Facility (“NCF”) Warden Michelle Edmark
(née Goings); NCF Chief of Security Capt. Jeff Smith; NCF Lt.
John Doe; NCF Sgt. FNU Swett; NCF Hearings Officer FNU Fortier;
NCF Media Generalist Angela Poulin; NCF Program Administrator
John/Jane Doe; NCF Psychiatrist Dr. Garrett Graves; NCF Mental
Health Clinician Charlene Nickerson; Montana Department of
Corrections Director Reginald Michael; and Montana State Prison
Warden Lynn Guyer.
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REPORT AND RECOMMENDATION
Plaintiff Jonathan Andrew Perfetto asserts in this action
that the defendants have violated his rights under the United
States Constitution and New Hampshire Department of Corrections
(“DOC”) policy. 	Before the court is Mr. Perfetto’s amended
complaint (Doc. No. 5-1), which was filed along with a motion
(Doc. No. 5) seeking to amend that amended complaint, which the
court granted. 	See Mar. 4, 2020 Order. 	The court construes the
assertions in the motion to amend (Doc. No. 5) as part of the
amended complaint for all purposes. 	The court deems the amended
complaint (Doc. Nos. 5, 5-1), to be the operative complaint in
this matter for all purposes. 	The amended complaint is here for
preliminary review pursuant to 28 U.S.C. § 1915A(a) and LR
4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of prisoners’
complaints seeking relief from government agents. 	See 28 U.S.C.
§ 1915A(a); LR 4.3(d)(1). 	In considering whether a pro se
complaint states a claim, the court construes the pleading
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	The court then determines whether, stripped of legal
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conclusions, and with all reasonable inferences construed in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court may dismiss claims, sua sponte, if the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. § 1915A(b); LR 4.3(d)(1)(A).
Background and Claims
Mr. Perfetto is a DOC inmate presently serving his New
Hampshire sentence in the Montana State Prison (“MSP”). 	Mr.
Perfetto has asserted multiple claims against DOC officers,
officials, and medical and mental health care providers, arising
from events that took place between 2015 and 2017, while Mr.
Perfetto was incarcerated at the New Hampshire State Prison
(“NHSP”) and the Northern New Hampshire Correctional Facility
(“NCF”), and interactions with DOC officials since his August 1,
2017 transfer to the MSP. 	Seeking damages,2 Mr. Perfetto asserts
2In addition to damages, Mr. Perfetto seeks an order from
the court directing that the DOC clarify and codify certain
prison policies. 	Because the court recommends dismissal of the
claims to which those requests relate, the court declines to
further address that request.
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the following claims for relief3:
1. 	The NHSP officers that passed out mail, including one
or more of the following individuals: Sgt. Bettens, Cpl.
Williams, Cpl. Murry, Cpl. Stacie LaMontagne, Cpl.
John/Jane Doe, and Mailroom Officer McLoud, violated Mr.
Perfetto’s Sixth Amendment rights by failing to send and/or
deliver Mr. Perfetto’s incoming and outgoing legal mail,
and delayed sending and/or delivering Mr. Perfetto’s
incoming and outgoing legal mail, as follows:
a. 	Mr. Perfetto did not receive legal mail that was
sent to him from the New Hampshire Supreme Court
(“NHSC”) in May 2015;
b. 	a motion Mr. Perfetto mailed to the Merrimack
County Superior Court (“MCSC”) on June 7 or 8, 2016,
was not listed as outgoing mail on any NHSP legal mail
log and was not delivered to that court;
c. 	two letters Mr. Perfetto attempted to mail to the
MCSC, on August 27 and 29, 2016, were not received by
that court;
d. 	on seven occasions between March 10, 2016 and
July 22, 2017, legal mail sent to Mr. Perfetto by
opposing counsel in Perfetto v. Cusson, No. 14-cv-556-
AJ (D.N.H.), was delayed in reaching Mr. Perfetto by
1-4 days;
e. 	on fourteen occasions between March 2, 2016 and
May 22, 2017, legal mail sent to Mr. Perfetto from the
United States District Court for the District of New
Hampshire was delayed in reaching Mr. Perfetto by 1-7
days.
2. 	Mr. Perfetto’s requests to retain the portion of his
incoming legal mail envelopes containing the return address
and the postmark were denied, in violation of his Sixth
Amendment rights:
3In his amended complaint, Mr. Perfetto asserted a claim,
identified therein as Allegation II, alleging that he was
improperly denied good conduct time, see Doc. No. 5-1, at 13-16;
in his motion to amend the amended complaint, Mr. Perfetto
withdrew that claim, see Doc. No. 5, at 2.
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a. 	in June 2015, by DOC Director Chris Kench; and
b. 	in October 2016, by Lt. Jim Brown.
3. 	Defendants violated Mr. Perfetto’s First and Sixth
Amendment rights to meaningfully access the courts and to
petition the government for a redress of his grievances, in
that:
a. 	one or more of the following NHSP officials: Lt.
Jim Brown, Sgt. Bettens, Sgt. Murry, Cpl. Williams,
Cpl. Stacie Lamontagne, Cpl. John/Jane Doe, and
Mailroom Officer McLoud, caused a civil case Mr.
Perfetto filed in state court, Perfetto v. Cascio, No.
217-2015-CV-397 (N.H. Super. Ct., Merrimack Cty.), to
be dismissed for failure to prosecute on August 30,
2016, due to the defendants’ failure to send a motion
Mr. Perfetto wrote in that case to the MCSC on June 7
or 8, 2016;
b. 	one or more of the following NHSP officials: Lt.
Jim Brown, Sgt. Bettens, Sgt. Murry, Cpl. Williams,
Cpl. Stacie Lamontagne, Cpl. John/Jane Doe, and
Mailroom Officer McLoud delayed delivering to Mr.
Perfetto his copy of the MCSC’s August 30, 2016 notice
of dismissal in Perfetto v. Cascio, No. 217-2015-CV-
397 (N.H. Super. Ct., Merrimack Cty.) for twelve days,
causing Mr. Perfetto to receive that notice too late
to allow him to file a timely motion to reconsider the
dismissal of his case, resulting in the denial of Mr.
Perfetto’s October 14, 2016 motion to reconsider, at
least in part because the motion was untimely filed;
c. 	NHSP Medical Records Clerk Traci Guilemette
failed to properly preserve all of Mr. Perfetto’s
medical records, in that the records concerning Mr.
Perfetto’s August 2012 emergency room visit to the
Concord Hospital emergency room and subsequent
hospitalization, which had been present in Mr.
Perfetto’s file in 2013 and 2014, were no longer in
his medical file in May 2015, resulting in the
dismissal of his civil case, Perfetto v. N.H. Dep’t of
Corr. Comm’r, No. 15-cv-244-JL (D.N.H.), as he was
unable in that case to counter adequately information
contained in his DOC medical records;
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d. 	between March 1 and March 13, 2017, NCF Media
Generalist Angela Poulin improperly cancelled Mr.
Perfetto’s law library appointments for March 2017,
which necessitated his filing a motion to continue a
deadline in Perfetto v. Cusson, No. 14-cv-556-AJ
(D.N.H.);
e. 	in November 2016, when Mr. Perfetto was
transferred from the NHSP to NCF, defendants failed to
transfer some of his legal materials to the NCF with
him, as NHSP officers Sgt. Wilcox, Cpl. Kimball, and
Cpl. Kratovil lost or stole those documents, impairing
Mr. Perfetto’s ability to litigate a civil case,
Perfetto v. Cusson, 14-cv-556-AJ (D.N.H.), by forcing
him to settle the case because he did not have his
legal materials with him.
4. 	Unnamed prison officials and/or medical providers at
the NHSP violated Mr. Perfetto’s Eighth Amendment right to
receive medical care for a serious medical need by failing
to provide Mr. Perfetto with a hearing test, after the NHSP
Secure Psychiatric Unit (“SPU”) Nursing Supervisor Ann-
Marie (whose last name is unknown) determined that he
qualified for the test, as he was having difficulty hearing
out of his left ear, and DOC Medical and Forensic Services
(“MFS”) Director Paula Mattis told him that an appointment
would be made for him.
5. 	In August 2016, when the temperature in his cell
dropped into the 40s, an unspecified prison official failed
to provide Mr. Perfetto with a jacket, although (former)
NHSP Warden Michael Zenk told Mr. Perfetto that a jacket
would be ordered for him, in violation of Mr. Perfetto’s
Eighth Amendment right to humane conditions of confinement.
6. 	NHSP Inmate Accounts Clerk John/Jane Doe violated DOC
policy by improperly deducting from Mr. Perfetto’s inmate
account the full amount of Mr. Perfetto’s disciplinary
restitution obligation, although DOC policy limits a
restitution deduction to 50% of an inmate’s account
balance.
7. 	Ms. Poulin and NCF Sgt. Swett, NCF Hearings Officer
Fortier, and NCF Capt. Jeff Smith: improperly charged Mr.
Perfetto with a disciplinary offense for failing to return
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a book to the NCF library, found him guilty of that
disciplinary offense, and imposed sanctions on Mr.
Perfetto, without properly identifying Mr. Perfetto as
“Severely and Persistently Mentally Ill” (“SPMI”),
resulting in Mr. Perfetto being subject to sanctions of a
ten-day loss of canteen and a ten-day loss of library,
which were later vacated on appeal, in violation of:
a. 	DOC Policy and Procedure Directive 5.25 by
failing to follow procedures established for
processing and handling disciplinary charges for
inmates identified as SPMI; and
b. 	Mr. Perfetto’s Eighth and Fourteenth Amendment
rights.
8. 	NCF Mental Health Clinician Charlene Nickerson and NCF
Psychiatrist Dr. Garret Graves violated Mr. Perfetto’s
Eighth Amendment right to receive adequate treatment for
his serious mental health needs, in that:
a. 	Dr. Graves failed to reschedule Mr. Perfetto’s
November 2016 medication review appointment, which was
cancelled when Mr. Perfetto was transferred from the
NHSP to NCF, until February 2017, and failed to renew
Mr. Perfetto’s anxiety medication prior to the
February 2017 appointment, although Dr. Graves was
aware of Mr. Perfetto’s serious mental health issues,
his need for medication to treat those issues, and
that Mr. Perfetto’s mental illnesses, and their
symptoms, were worsening; and
b. 	on April 12, 2017, when, due to not receiving
adequate attention or treatment for his mental health
problems, Mr. Perfetto twice threatened to assault an
NCF staff member, Ms. Nickerson, after evaluating Mr.
Perfetto, failed to place him in housing appropriate
for his mental health condition, and instead allowed
security officials to determine his placement.
9. 	NHSP Residential Treatment Unit (“RTU”) Mental Health
Clinician Lindsey Jordon, NHSP Case Counselor/Case Manager
(“CC/CM”) Irrizary, SPU Unit Manager (“UM”)/Capt. Marshall,
MFS Director Mattis, MFS Deputy Director Heidi Guinnen,
NHSP Offender Records Supervisor Cindy Crompton, NHSP
Offender Records Clerk John/Jane Doe, NHSP Programs
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Administrator John/Jane Doe, and DOC Interstate Compact
Coordinator Jane Doe, failed to enter Mr. Perfetto’s 2016
completion of the RTU six-month program into CORIS, the
DOC’s record-keeping system, resulting in the denial of Mr.
Perfetto’s March 2019 application for Earned Time Credit
under N.H. Rev. Stat. Ann. § 651-A(2), I(a)-(d), in
violation of:
a. 	DOC policy; and
b. 	Mr. Perfetto’s Eighth and Fourteenth Amendment
rights.
10. 	DOC Commissioner Helen Hanks, (former) DOC
Commissioner William Wrenn, DOC Director Chris Kench, MFS
Director Mattis, MFS Deputy Director Guinnen, (former)
Warden Zenk, UM Robert McGrath, SPU Administrator Debbie
Robinson, SPU UM/Capt. Marshall, SPU Sgt. Barboro, NHSP
Warehouse Supervisor John Doe, NHSP Librarian John Perkins,
NHSP Career and Technology Programs Director Jay Nagy, DOC
Special School District (“SSD”) Principal Davis, and SSD
Director Kim McKay, acting in their capacities as
supervisory prison officials, were aware of the facts
underlying the claims Mr. Perfetto has asserted in this
action, which are identified and summarized here as Claims
1-9, as Mr. Perfetto filed requests slips and/or grievance
forms advising those officials of those facts, and the
officials failed to remedy Mr. Perfetto’s complaints, in
violation of Mr. Perfetto’s First, Sixth, Eighth Amendment,
and Fourteenth rights.
Discussion
I. 	Interference with Legal Mail (Claims 1 and 2)
Mr. Perfetto’s claims about the denial or delay of his
legal mail amount to allegations that, between May 2015 and June
2017: 1) Mr. Perfetto did not receive a mailing from the NHSC;
2) one motion Mr. Perfetto sent to the MCSC was not sent out of
the prison; 3) two letters Mr. Perfetto sent to the MCSC were
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not received by that court; and 4) Mr. Perfetto’s receipt of
legal mail from opposing counsel or this court was routinely
delayed by a few days. 	Mr. Perfetto also alleges that
defendants interfered with his legal mail by not allowing him to
retain the parts of incoming legal mail envelopes showing the
return address and postmark.
Courts have afforded greater protection to incoming legal
mail than to other types of incoming mail, because such mail may
impact “‘prisoner’s legal rights, the attorney-client privilege,
or the right of access to the courts.’” 	Donovan v. Magnusson,
No. Civ. 04-102-B-W, 2005 WL 757585, at *10 n.17, 2005 U.S.
Dist. LEXIS 9756, at *36 n.17 (D. Me. Mar. 11, 2005) (quoting
Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir. 2003)). 	To state
a Sixth Amendment claim for interference with legal mail, an
inmate must demonstrate that prison officials “‘regularly and
unjustifiably interfered with the incoming legal mail.’” 	Davis
v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citation
omitted). 	“Negligent interference with legal mail is not
actionable under section 1983.” 	Murphy v. Grenier, 406 F. App’x
972, 976 (6th Cir. 2011).
Mr. Perfetto’s allegations concerning the May 2015, June
2016, and August 2017 instances of Perfetto’s incoming and
outgoing legal mail not being delivered, do not amount to a
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regular or frequent denial of his legal mail. 	Further, to the
extent he alleges that his incoming legal mail was often delayed
by several days, he has not explained how he was harmed by those
delays or how the delays violated his constitutional rights.
Moreover, except as to the alleged failure of prison officials
to send his motion to the MCSC in June 2016, Mr. Perfetto has
not stated facts to demonstrate that any of the named
defendants, rather than the United States Postal Service, was
responsible for the events underlying his legal mail claims.
Accordingly, without more, those claims do not demonstrate an
actionable claim for the denial or delayed delivery of legal
mail, and the district judge should dismiss Claims 1(a)-(e).
In Claim 2, Mr. Perfetto complains that he was not allowed
to keep the parts of the envelopes in which legal mail was sent
to him at the prison showing the return address and postmark.
Mr. Perfetto has not alleged that he was harmed by that denial,
or that he had no other way to obtain the information at issue.
As Mr. Perfetto has failed to assert facts demonstrating that
his lack of access to those parts of the envelopes violated his
constitutional rights, the district judge should dismiss Claim
2.
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II. 	Denial of Access to the Courts at NHSP (Claims 3(a)-(d))
A. 	Legal Standard
The First Amendment protects a prisoner’s right “to
petition the Government for a redress of grievances,” U.S.
Const. amend. I, and “[t]he right of access to the courts is an
established aspect of this right.” 	Fabiano v Hopkins, 352 F.3d
446, 453 (1st Cir. 2003). 	In addition, denial of access to the
courts for a pro se litigant may implicate the Sixth and
Fourteenth Amendments. 	A prisoner asserting a claim for the
denial of access to the courts must show that he suffered an
actual injury to a non-frivolous legal proceeding which arose
from the defendants’ alleged conduct. 	See Lewis v. Casey, 518
U.S. 343, 351 (1996).
B. 	Claims 3(a) and 3(b)
In the claims identified here as Claims 3(a) and 3(b), Mr.
Perfetto has asserted sufficient facts to allow the claims to
proceed. 	Accordingly, in an Order issued simultaneously with
this Report and Recommendation (“R&R”), the court directs
service of Claims 3(a) and 3(b) on the defendants named therein.
B. 	Claim 3(c)
In Claim 3(c), Mr. Perfetto alleges that a civil action he
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filed in this court, Perfetto v. N.H. Dep’t of Corr. Comm’r, No.
15-cv-244-JL (D.N.H.), challenging the adequacy of his medical
care in prison, was dismissed because the prison did not keep
records from Mr. Perfetto’s July 2012 Concord Hospital Emergency
Room visit and subsequent hospitalization, and therefore, he was
not able to counter adequately the DOC’s medical records in that
case. 	Nothing in the record of this case or his previous civil
case indicates that Mr. Perfetto was unable to obtain the
records in question directly from Concord Hospital.
Furthermore, Mr. Perfetto is mistaken in concluding that
the lack of access to those records prevented him from
challenging evidence produced by defendants in his previous
civil case. 	The court dismissed that case at preliminary
review, before Mr. Perfetto was required to counter evidence
produced by the defendants. 	At preliminary review, the court
credited as true Mr. Perfetto’s assertions concerning what had
occurred at the Concord Hospital, and his assertions concerning
the actions of the DOC medical provider defendants to that
action. 	The court found that Mr. Perfetto’s description of the
medical care he received at the DOC prior to going to the
Concord Hospital Emergency Room alleged a medical negligence
claim, and not an Eighth Amendment claim, and dismissed the
claim without prejudice to Mr. Perfetto’s ability to assert his
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negligence claim in state court. 	See Dec. 4, 2015 R&R (ECF No.
4, at 10-11), Perfetto v. N.H. Dep’t of Corr. Comm’r, No. 15-cv-
244-JL (D.N.H.), approved by Dec. 29, 2015 Order, id. (ECF No.
6).
Accordingly, Mr. Perfetto has not shown that he suffered
any actual injury in a non-frivolous civil rights action, caused
by defendants’ management of his medical records. 	Mr. Perfetto
cannot demonstrate that the failure to maintain his Concord
Hospital Emergency Room records in his DOC medical record
violated his right to access the courts, and the district judge
should dismiss Claim 3(c).
C. 	Claim 3(d)
In Claim 3(d), Mr. Perfetto states that Ms. Poulin, who was
responsible for scheduling law library time for NCF inmates,
improperly cancelled his March 2017 law library time, forcing
him to file a motion to extend the March 2, 2017 deadline for
responding to a summary judgment motion filed by the defendants
in Perfetto v. Cusson, No. 14-cv-556-AJ (D.N.H.). 	In that case,
Mr. Perfetto did file a motion to continue his summary judgment
deadline, see Mar. 2, 2017, Pl.’s Mot. to Extend Deadline to
Respond to Defs.’ Mot. for Summ. J., Perfetto v. Cusson, No. 14-
cv-556-AJ (D.N.H.) (ECF No. 99), which was granted by the court,
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see May 8, 2017 Order, id. 	Therefore, no harm came to Mr.
Perfetto’s case as a result of the cancellation of his March
2017 law library time. 	Accordingly, the district judge should
dismiss Claim 3(d).
III. Denial of Warm Jacket (Claim 5)
The Eighth Amendment prohibits prison officials from
denying inmates “the minimal civilized measure of life’s
necessities.” 	Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 	A
plaintiff asserting an Eighth Amendment prison conditions claim
must allege objectively “extreme” deprivations. 	Hudson v.
McMillian, 503 U.S. 1, 9 (1992). 	Further, the plaintiff must
show that the responsible defendants acted with deliberate
indifference to the plaintiff’s health or safety. 	See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). 	“‘[A] prison official cannot
be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety.’”
Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)
(citations omitted).
Mr. Perfetto states in his complaint that in August 2016,
the temperature in his cell dipped into the 40s, and that
therefore he requested, but was not provided with, a jacket.
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Mr. Perfetto states that he had to wrap a blanket around himself
to stay warm. 	Mr. Perfetto does not state that he suffered any
harm from the lack of a jacket. 	Further, Mr. Perfetto has
failed to assert any facts that show that having to use a
blanket to keep warm presented any risk to his health or safety.
Even if he could show such a risk, however, he has failed to
state any facts demonstrating that any prison official was aware
of such a risk and failed to take reasonable steps to address
it. 	Accordingly, Mr. Perfetto has failed to state an Eighth
Amendment claim for the denial of a warm jacket and the district
judge should dismiss Claim 5.
IV. 	Violation of Prison Policy (Claims 6, 7(a), and 9(a))
In Claims 6, 7(a), and 9(a), Mr. Perfetto alleges that his
constitutional due process rights were violated by the failure
of the defendants to those claims to follow DOC policy. 	To
establish that his due process rights have been violated, a
plaintiff must demonstrate that he has suffered a deprivation of
a protected interest in life, liberty, or property. 	See Mathews
v. Eldridge, 424 U.S. 319, 332 (1976).
An inmate has no freestanding liberty interest in, and thus
no constitutional due process right to, prison officials
following prison policies if the officials’ actions are
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otherwise constitutional. 	See Querido v. Wall, C.A. No. 10–098
ML, 2010 U.S. Dist. LEXIS 139201, at *14, 2010 WL 5558915, at *3
(D.R.I. Dec. 8, 2010), R&R adopted, 2011 U.S. Dist. LEXIS 1882,
2011 WL 63503 (D.R.I. Jan. 7, 2011). 	Accordingly, Mr. Perfetto
cannot state a claim based on the failure of the defendants to
Claims 6, 7(a), and 9(a) to follow prison polices, and the
district judge should dismiss those claims.
V. 	Disciplinary Proceedings (Claim 7(b))
Mr. Perfetto complains that being subject to disciplinary
proceedings and disciplinary sanctions, and having those
sanctions effected while he was appealing his disciplinary
finding and sanctions, violated his Fourteenth Amendment rights.
He also alleges that being subject to ten days loss of canteen
and ten days loss of library use, when those sanctions were
overturned based on Perfetto being identified as SPMI, violated
his Eighth Amendment right not to be subject to cruel and
unusual punishment.
A. 	Eighth Amendment
To state an Eighth Amendment claim, as discussed above, Mr.
Perfetto must allege facts to show he was subject to objectively
“extreme” deprivations. 	Hudson, 503 U.S. at 9. 	Mr. Perfetto’s
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amended complaint does not include any facts to show that, even
with regard to a mentally ill inmate, a ten-day loss of canteen
or library time, imposed as a disciplinary sanction, amounts to
an extreme deprivation. 	Accordingly, Mr. Perfetto has failed to
state an Eighth Amendment claim based on the imposition of those
sanctions.
B. 	Fourteenth Amendment
Mr. Perfetto, in Claim 7(b), further asserts that, with
regard to the disciplinary proceedings at issue here, he was
denied procedural due process under the Fourteenth Amendment to
which he was entitled under prison policies and regulations
concerning disciplinary proceedings for SPMI inmates. 	Protected
liberty interests may arise from prison regulations, subject to
the limitations set forth in Sandin v. Conner, 515 U.S. 472
(1995). 	Under Sandin, the court considers whether the
restrictions at issue impose an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life.” 	Id. at 484.
Mr. Perfetto has failed to show that the ten-day loss of
canteen and library access to which he was subject, imposed any
atypical and significant hardship upon him, in relation to the
ordinary incidents of prison life, even when considering Mr.
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Perfetto’s mental illness. 	Mr. Perfetto has failed to state a
Fourteenth Amendment due process claim upon which relief might
be granted. 	For these reasons, the district judge should
dismiss Claim 7(b).
VI. 	Denial of Grievances by Supervisory Officials (Claim 10)
In Claim 10, Mr. Perfetto alleges that prison officials UM
McGrath, SPU UM/Capt. Marshall, SPU Lt. Sgt. Barboro, SPU
Administrator Robinson, (former) NHSP Warden Zenk, DOC Director
Kench, (former) DOC Commissioner Wrenn, DOC Commissioner Hanks,
MFS Director Mattis, MFS Deputy Director Guinnen, NCF Librarian
Mr. Perkins, NHSP Technology Programs Director Mr. Nagy, SSD
Principal Davis, SSD Director McKay, NHSP Medical Records
Supervisor John/Jane Doe, and NHSP Warehouse Supervisor John
Doe, acting in their supervisory and administrative capacities,
violated his First and Sixth Amendment rights, concerning the
facts and circumstances underlying Claims 1-9.
A claimed constitutional violation must be based upon
active unconstitutional behavior. 	The acts of one’s
subordinates are not enough . . . . 	For the same
reason that a supervisory relationship is insufficient
to establish liability for the misconduct of a
subordinate, denying a grievance or failing to act
based on information contained in a grievance is
insufficient to establish § 1983 liability.
Moore v. Mich. Dep’t of Corr., No. 1:17-cv-615, 2017 WL 3431602,
at *7, 2017 U.S. Dist. LEXIS 126885, at *17 (W.D. Mich. Aug. 10,
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2017), aff’d, No. 17-6107, 2018 U.S. App. LEXIS 25325 (6th Cir.
Sept. 5, 2018); see also Carter v. Englander, No. 17-cv-52-LM,
2018 U.S. Dist. LEXIS 211168, at *20, 2018 WL 6593934, at *7
(D.N.H. Aug. 22, 2018) (denial of grievance is not a
constitutional violation (citing cases)), R&R approved, No. 17-
cv-52-LM, 2018 U.S. Dist. LEXIS 210843, at *2, 2018 WL 6591227,
at *1 (D.N.H. Dec. 11, 2018).
Mr. Perfetto does not allege that, to the extent they are
sued in their supervisory or administrative capacities, the
defendants he names in Claim 10 had any direct role in the
events underlying Claims 1-9. 	As Mr. Perfetto cannot allege a
constitutional claim against those defendants based on their own
actions, or on the basis that they denied his grievances, the
district judge should dismiss Claim 10 from this action, and
dismiss the individual defendants named therein from this case.
VII. Potentially Cognizable Claims (Claims 3(e), 4, 8, and 9(b))
Without comment on the merits of the claims identified and
summarized in this R&R as Claims 3(e), 4, 8, and 9(b), the court
finds that those claims are potentially cognizable. 	However, as
set forth in an Order issued simultaneously with this R&R, the
court finds that those claims are not properly joined in this
action with Claims 3(a) and 3(b), as they arise out of entirely
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separate transactions, which occurred on different dates, and
are each asserted against defendants not named in any other
cognizable claim.4 	See Fed. R. Civ. P. 18(a) (“[a] party
asserting a claim . . . may join, as independent or alternative
claims, as many claims as it has against an opposing party”);
Fed. R. Civ. P. 20(a)(2) (defendants may be joined in one action
only if the claims in the action are asserted against them
“jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
transactions or occurrences,” and the claims involve one or more
common questions of law or fact); see also Roy v. Wrenn, No. 12-
CV-303-JD, 2013 DNH 113, 2013 WL 4541389, at *2, 2013 U.S. Dist.
LEXIS 121740, at *7 (D.N.H. Aug. 27, 2013) (different defendants
may not be joined in one action where the claims asserted
against the defendants are unrelated).
In an “Order on Severance” issued this date, the court
directs that the Clerk’s office sever the potentially cognizable
claims remaining in Mr. Perfetto’s amended complaint, Claims
4To the extent that Mr. Perfetto, in his amended complaint
(Doc. Nos. 5, 5-1), has asserted claims against supervisory and
administrative prison officials for their failure to remedy the
facts and circumstances underlying to Claims 3(e), 4, 8, and
9(b), as well as in Claim 3(a) and 3(b), the undersigned
magistrate judge, in this R&R, has recommended dismissal of
those claims, and those supervisory defendants, from this
action.
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3(e), 4, 8, and 9(b), from this case and from each other, and
open four new cases, one concerning each of those claims.
Accordingly, the district judge should dismiss those four claims
from this action as duplicitous of the claims asserted in the
four new cases, without prejudice to Mr. Perfetto’s ability to
litigate those claims in the new cases opened pursuant to this
court’s Order on Severance issued this date.5
VIII. Defendants Against Whom No Claims are Asserted
Mr. Perfetto has named the following defendants in the
caption of his amended complaint, but has not identified them as
a defendant to any claim in the narrative of the amended
complaint: NHSP Capt. Edmark, NHSP Corrections Officer FNU
LaMontagne, CC/CM Glenn Matthews, NHSP Medical Records Clerk Amy
M., NHSP Offender Records Clerk FNU Drury, NHSP Offender Records
Clerk John/Jane Does #1 & #2, NCF Warden Michelle Edmark (née
Goings); NCF Lt. John Doe; NCF Program Administrator John/Jane
Doe; Montana Department of Corrections Director Reginald
5In his motion to amend (Doc. No. 5) his amended complaint
(Doc. No. 5-1), Mr. Perfetto has notified the court that he may
seek to file an additional claim concerning his 2019 efforts to
obtain his DOC medical records. 	The court declines to rule on
that motion before it is filed, but notes that a misjoinder
issue may arise if Mr. Perfetto seeks to join an unrelated claim
to this action.
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Michael; and MSP Warden Lynn Guyer.6 	Mr. Perfetto has not
asserted facts demonstrating that these defendants engaged in
any act or omission that violated his rights, the district judge
should dismiss them from this action.
Conclusion
For the foregoing reasons, the district judge should
dismiss, for failure to state a claim, the claims identified in
this R&R as Claims 1, 2, 3(c), 3(d), 5-7, 9(a), and 10. 	Claims
3(e), 4, 8, and 9(b) should be dismissed without prejudice to
Mr. Perfetto’s ability to litigate those claims in separate
actions opened pursuant to this court’s Order on Severance,
issued this date. 	Further, the district judge should drop as
parties all of the defendants named in the amended complaint
except: NHSP Lt. Jim Brown, NHSP Sgt. Bettens, NHSP Sgt. Murry,
NHSP Cpl. Williams, NHSP Cpl. Stacie Lamontagne, NHSP Cpl.
John/Jane Doe, and NHSP Mailroom Officer McLoud.
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
6To the extent Mr. Perfetto sues Director Michael and Warden
Guyer as “defendants by proxy,” that designation is not
appropriate in this case.
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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
April 27, 2020
cc: 	Jonathan Andrew Perfetto, pro se
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