Ulmann v . Merr. Cty. HOC CV-02-405-JD 01/21/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Peter Ulmann
v. Civil N o . 02-405-JD Opinion N o . 2003 DNH 012 Carole A . Anderson, Superintendent, Merrimack Count House of Correction, et a l .
REPORT AND RECOMMENDATION
Before the Court is the amended complaint (document n o . 9 )
of pro se plaintiff Peter Ulmann, who has filed suit against
Carole A . Anderson, the Superintendent of the Merrimack County
House of Correction (“MCHC”), Captain Craft, the MCHC Chief of
Security, and Henry Simons, a physician’s assistant at the MCHC,
pursuant to 42 U.S.C. § 1983. Ulmann alleges violations of his
constitutional and statutory rights resulting from denial of
certain religious items, denial of an adequate kosher diet, the
use of religious and ethnic slurs against him, denial of visits
from the Israeli consulate, denial of phone contact with his
family, hazardous conditions of confinement, and denial of
adequate medical care during his incarceration at the MCHC.1 As
1 As of November 1 4 , 2002, Ulmann has been transferred to the New Hampshire State Prison. Ulmann is proceeding both pro se and in forma pauperis, the
matter is currently before me for preliminary review. See United
States District Court for the District of New Hampshire Local
Rule 4.3(d)(2). As explained fully herein, in an Order issued
simultaneously with this Report and Recommendation, I direct
Ulmann’s religious items and diet claims, Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) claim, inadequate
nutrition claim, consular visitation claim and family association
claim to be served on defendants Anderson and Craft. I recommend
that the equal protection claim, the medical care claim and the
hazardous conditions claim, as well as defendant Simons be
dismissed from this action, as the complaint does not allege
sufficient facts to state a claim upon which relief might be
granted as to those claims and that defendant.
Standard of Review
In reviewing a pro se complaint, the court is obliged to
construe the pleading liberally. See Ayala Serrano v . Lebron
Gonzales, 909 F.2d 8 , 15 (1st Cir. 1990) (following Estelle v .
Gamble, 429 U.S. 9 7 , 106 (1976) to construe pro se pleadings
liberally in favor of the pro se party). At this preliminary
stage of review, all factual assertions made by the plaintiff and
2 inferences reasonably drawn therefrom must be accepted as true.
See Aulson v . Blanchard, 83 F.3d 1 , 3 (1st Cir. 1996) (stating
the “failure to state a claim” standard of review and explaining
that all “well-pleaded factual averments,” not bald assertions,
must be accepted as true). This review ensures that pro se
pleadings are given fair and meaningful consideration. See
Eveland v . Dir. of C.I.A., 843 F.2d 4 6 , 49 (1st Cir. 1988).
Discussion
1. Claims Regarding Denial of Religious Items
Ulmann attempts to state causes of action under the First
Amendment and the RLUIPA for an alleged deprivation of the use of
a teffilin at the MCHC. I will address each cause of action in
turn, after summarizing the facts alleged which give rise to
those claims.
A. Denial of Teffilin
Ulmann alleges that he is an orthodox jew, and that part of
the practice of his religion requires that he wear teffilin every
day in order to pray. Teffilin are small black boxes that adult
orthodox Jewish men tie onto their head and arm daily while they
pray, except on shabbat and holy days. Ulmann asserts that
wearing teffilin is an essential part of his religious practice.
3 Ulmann asserts that he has worn teffilin as part of his daily
prayer ritual for more than forty years. Rabbi Shmuel Spritzer
of Brooklyn, New York, provided a letter to MCHC on Ulmann’s
behalf verifying Ulmann’s claim of a need to use teffilin as part
of his prayer ritual. Nevertheless, Anderson denied Ulmann
permission to use teffilin.
B. Free Exercise Claim
Ulmann alleges in his complaint that the defendants denied
him his right to freely exercise his religion as guaranteed by
the First and Fourteenth Amendments to the United States
Constitution. “Lawful incarceration brings about the necessary
withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal
system.” Price v . Johnston, 334 U.S. 266, 285 (1948). However,
a prisoner “retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.” Pell v .
Procunier, 417 U.S. 8 1 7 , 822 (1974); see also, Bell v . Wolfish,
441 U.S. 5 2 0 , 545 (1979) (“prisoners do not forfeit all
constitutional protections by reason of their conviction and
confinement in prison.”). The retained rights include the right
4 to the free exercise of religion. Cruz v . Beto, 405 U.S. 319,
322 (1972). “A prisoner has the right to participate in
practices which are an integral part of his religious belief.”
Moorish Sci. Temple of Am. v . Smith, 693 F.2d 9 8 7 , 990 (2d Cir.
1982); see also Barnett v . Comm’r, N.H. Dept. of Corr., N o . Civ.
98-305-JD, 2000 WL 1499490 (D.N.H. Apr. 2 6 , 2000). Prisons must
provide all inmates reasonable opportunities to exercise their
religious freedom. Cruz, 405 U.S. at 3 2 2 , n.2.
The Supreme Court has held that a prisoner’s sincerely held
religious beliefs must yield if contrary to prison regulations
that are “reasonably related to legitimate penological
interests.” Turner v . Safely, 482 U.S. 7 8 , 89 (1987); see also,
Washington v . Harper, 494 U.S. 2 1 0 , 224 (1990) (prison
restrictions that implicate constitutional rights are judged by
the reasonableness standard); O’Lone v . Shabazz, 482 U.S. 3 4 2 ,
351-352 (1987) (the Constitution does not require the prison to
sacrifice legitimate penological objectives to satisfy an
inmate’s desire to exercise his religion so long as an inmate is
not deprived of all forms of religious exercise).
Nothing in Ulmann’s complaint suggests that the religious
practice of wearing teffilin as a daily prayer ritual would
5 offend legitimate penological objectives. Further, the fact that
Ulmann has worn teffilin to pray daily for more than forty years,
indicates that he does, in fact, hold a sincere belief in the
centrality of this practice to the exercise of his religion.
Additionally, Ulmann took steps to assure the MCHC of the
religious significance of the practice of wearing teffilin by
having that practice legitimated through correspondence with a
rabbi. For these reasons, I find that Ulmann has stated the
facts necessary to state a claim upon which relief might be
granted for a violation of his First and Fourteenth Amendment
right to freely exercise his religion.
C. RLUIPA Claim
Ulmann also raises the RLUIPA as a basis for relief. 42
U.S.C. § 2000cc-1 states in relevant part:
(a) General Rule. No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person –
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
6 ( b ) Scope of application. This section applies in any case in which –
( 1 ) the substantial burden is imposed in a program or activity that receives Federal financial assistance;2 or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.
Thus, “RLUIPA protects prisoners and other institutionalized
people from government infringement on their practice of
religion.” Mayweathers v . Newland, ___ F.3d ___, 2002 WL
31875409 *1 (9th Cir. Dec. 2 7 , 2002) (upholding the
constitutionality of RLUIPA). Further, under the terms of the
RLUIPA, a religious exercise need not be “compelled by or central
to a system of religious belief” in order to be covered by the
statute. 42 U.S.C. § 2000cc-5(7)(A). Therefore, even if Ulmann
had failed to state that his religious practices are essential to
his religious belief, those practices may not be burdened by the
government unless such a burden is the least restrictive means to
achieve a compelling state interest. See Mayweathers at * 2 . In
2 Ulmann has not specifically alleged that the MCHC is an institution receiving federal funds, obliging it to comply with the RLUIPA. For the purposes of preliminary review, I find that as Ulmann has asserted that he has rights that accrue to him under this statute, that he has adequately alleged that MCHC is an eligible institution for liability under the RLUIPA.
7 order to state a claim upon which relief might be granted based
on a violation of the RLUIPA, Ulmann must only demonstrate that
the “regulation in question: (1) imposes a substantial burden;
(2) on the “religious exercise;” (3) of a person, institution, or
assembly. Grace United Methodist Church v . City of Cheyenne, ___
F.Supp.2d ___, 2002 WL 31831443 at *7 (D.Wyo. Dec. 1 6 , 2002),
citing Murphy v . Zoning Comm’n of the Town of New Milford, 148
F.Supp.2d 173, 187 (D.Conn. 2001). I find in this case that
Ulmann has sufficiently alleged that the government has burdened
his religious practices in a manner not consistent with the
requirements of the RLUIPA and I will direct this claim to be
served on the defendants.
2. Denial of Kosher Diet Claim
As part of the practice of his religion, Ulmann adheres to a
kosher diet. Ulmann claims that during his incarceration at the
MCHC, he was denied a nutritious kosher diet and was instead made
to eat a vegetarian diet that was “without any nutritious value,”
leaving him subject to “physical starvation.”
Courts have recognized that prison authorities must
accommodate the rights of prisoners to receive diets consistent
with their religious beliefs. See Kahane v . Carlson, 527 F.2d
8 492, 495 (2d Cir. 1975). In cases of a jewish inmate requiring a
religious diet, prison authorities must provide, “a diet
sufficient to sustain the prisoner in good health without
violating the Jewish dietary laws.” Id. at 496. To the extent
he has raised a claim that he is being denied the ability to
freely practice his religion for reasons other than legitimate
penological objectives, Ulmann has successfully stated a claim
that he has been denied an adequate kosher diet in violation of
his First Amendment rights and his rights under the RLUIPA to
allow that claim to proceed.
To the extent that Ulmann is objecting to the adequacy of
the nutritional value of the diet he was given, rather than a
religiously based objection to the diet MCHC provided to him,
jail officials have a duty to provide inmates with adequate food
because inmates are not in a position to provide it themselves.
See Giroux v . Somerset County, 178 F.3d 2 8 , 31 (1st Cir. 1999).
Further, there is no legitimate penological justification for
inadequate portions of food. O’Connor v . Huard, 117 F.3d 1 2 , 16
(1st Cir. 1997), cert. denied, 522 U.S. 1047 (1998). Therefore,
by alleging he was given a diet entirely devoid of nutritional
9 value, Ulmann has stated a claim for an inadequate diet in
addition to his religious diet claim.
3. Equal Protection Claim
Ulmann claims that due to earning a reputation among MCHC
personnel as a “troublemaker” he was subjected to antisemitic
remarks and slurs by correctional officers. Ulmann has not named
any individual officers, but states that the slurs were made with
the knowledge and approval of Anderson. Although verbal abuse
generally does not invoke constitutional protection, see Shabazz
v . Cole, 69 F.Supp.2d 1 7 7 , 198-201 (D.Mass. 1999) (citing
authority to explain that racial slurs and verbal threats do not
violate a prisoner’s constitutional rights), generously
construing Ulmann’s allegations it appears that he may be
attempting to state a claim under the Equal Protection Clause.
Although prisoners are protected against invidious
discrimination by the Equal Protection Clause of the Fourteenth
Amendment, see Wolff v . McDonnell, 418 U.S. 539, 556 (1974), to
prevail on such a claim, the plaintiff must show that he was
treated differently from similarly situated inmates because of
his religious views. See Rubinovitz v . Rogato, 60 F.3d 906, 910
(1st Cir. 1995). Isolated instances of name-calling and verbal
10 harassment, by themselves, will not support an equal protection
claim. See DeWalt v . Carter, 224 F.3d 6 0 7 , 612 (7th Cir.1999).
Thus, even presuming that the facts in Ulmann’s complaint are
true, these assertions, while describing unprofessional and
reprehensible conduct on the part of the offending officers, fail
to establish an Equal Protection violation. Further, Ulmann
neither alleges in his complaint, nor offers evidence to suggest,
that defendants otherwise treated him differently from other
similarly situated inmates as a result of his religion.
Accordingly, I recommend that the equal protection and verbal
harassment claims raised by Ulmann be dismissed.
4. Denial of Consular Visit Claim
Ulmann, an Israeli citizen, states that during nine months
of incarceration at the MCHC, he was only permitted one visit
from the Israeli consulate in Boston, Massachusetts, and that it
was conducted improperly, although Ulmann does not specify what
about the visit was not in accordance with applicable law.
Any right Ulmann has to consular visitation subsequent to
his arrest is cognizable under the Vienna Convention on Consular
Relations (“VCCR”), April 2 4 , 1963, 21 U.S.T. 7 7 , 101 T.I.A.S.
N o . 6820, which states, in pertinent part:
11 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending state:
(b) if [the defendant] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State i f , within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody, or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
VCCR, Art. 3 6 ; see also 28 C.F.R. § 50.5(a)(1) (“In every case in
which a foreign national is arrested the arresting officer shall
inform the foreign national that his counsul will be advised of
his arrest unless he does not wish such notification to be
given.”). Although the matter has not been decided in the First
Circuit, federal courts have held that a private right of action
exists under the VCCR for individual foreign nationals detained
12 by foreign officials that is cognizable under § 1983 as a claim
of “violation of his right to consular notification under the
VCCR.” Standt v . City of New York, 153 F.Supp.2d 4 1 7 , 427
(S.D.N.Y. 2001); see also Breard v . Greene, 523 U.S. 3 7 1 , 376
(1998) (Vienna Convention “arguably confers on an individual the
right to consular assistance following arrest.”). Although
Ulmann offers a dearth of specifics with regard to the denial of
consular visitation, generously construing his complaint I find
that he has alleged the minimum facts necessary to allow the
claim to go forward at this time.
5. Denial of Phone Contact with Family Claim
Ulmann’s wife and child live overseas. He says that he has
not been allowed to call them because the phones ordinarily used
by MCHC inmates cannot be used to place overseas collect calls.
Such calls must be placed over the MCHC’s business lines which,
Ulmann was told, “interferes with jail business.” Ulmann was
twice permitted to place overseas calls to his family on an emergency basis.3
3 Ulmann states that he has been charged for these phone calls. Although it appears that Ulmann objects to being charged for the calls, his complaint does not raise a constitutional argument against such a charge. As such, none will be considered at this time. If such a claim was intended by Ulmann, he should file an amended complaint specifying the legal and factual basis
13 Ulmann alleges that the MCHC’s policy and practice of
prohibiting overseas collect calls denied him his right to
contact his immediate family in violation of the First Amendment
and his right to intimate association. See Roberts v . United
States Jaycees, 468 U.S. 609, 617-18 (1984). Although
associational rights are “the most obvious of the First Amendment
rights that are necessarily curtailed by confinement,” see Jones
v . North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125
(1977), pretrial detainees have been recognized as having a First
Amendment right to some telephone access. See e.g., Coronel v .
Hawaii, 993 F.2d 8 8 2 , 883 (9th Cir. 1993).
In discussing the analogous issue of visitational
association with family members, the First Circuit has stated:
For detainees to receive visits at regular intervals from loved ones and friends is a commonly accepted privilege; . . . and implicates, in the case of detainees especially, communicative as well as associational values protected by the first amendment. A refusal, therefore, to allow the ordinary detainee any visitation privileges or the laying down of capricious limitations not justified by considerations of jail security and order, would be unconstitutional.
Feeley v . Sampson, 570 F.2d 3 6 4 , 372 (1st Cir. 1978) (citing
Procunier v . Martinez, 416 U.S. 396, 411-12 (1974)). Although
for such a claim.
14 the Court in Feeley declined to decide definitively that a
detainee maintained an absolute constitutional right to use the
telephone to contact his immediate family, it acknowledged that
among courts applying the appropriate standard of review to the
issue “the consensus has been in favor of at least some access.”
Id. at 374 (collecting cases).
Ulmann has alleged that he was entirely denied non-emergency
phone contact with his immediate family by the MCHC’s failure to
make it possible for him to make overseas collect calls, either
by providing an inmate telephone with such a capability, or by
allowing him access to the jail’s business phones for such calls.
As such, Ulmann has stated facts sufficient to allege a violation
of his associational rights under the First Amendment by the
defendants and I will allow this claim to go forward at this
time.
6. Denial of Adequate Medical Care Claim
Ulmann states that he is diabetic, anemic, has a chronic heart
problem, has only one kidney, has a high protein content in his
urine, has difficulty urinating due to constant genital swelling,
suffers pain in his hip and pelvis, and has constant chest pains.
During nine months of incarceration, Ulmann alleges that he saw a
15 physician only once. Instead, he was generally treated by
Simons, a physician’s assistant. Despite his ailments, Ulmann
claims that he has been denied diagnostic tests beyond basic
laboratory testing, and has been denied proper diagnosis,
treatment, and monitoring for his known and potential medical
problems, resulting in undiagnosed problems, untreated pain, and
inadequate evaluation by appropriate medical professionals.
Ulmann does not allege any specific injury as a result of the
MCHC’s failure to treat him adequately.
To state a cause of action under § 1983 premised on
inadequate medical care, a plaintiff must allege facts which
demonstrate that the defendants acted with deliberate
indifference to his serious medical needs. Estelle, 429 U.S. at
106; Bean v . Cunningham, 650 F.Supp. 709, 713 (D.N.H. 1986). 4
Deliberate indifference may be manifested by prison medical
personnel in their response to a prisoner’s needs or by prison
personnel “intentionally denying or delaying access to medical
care or intentionally interfering with the treatment once
4 Because Ulmann was a pretrial detainee while housed at the MCHC, the defendants’ constitutional obligation to provide him with adequate medical care flows from the Fourteenth Amendment’s due process clause, rather than the Eighth Amendment’s prohibition against cruel and unusual punishment. Bell v . Wolfish, 441 U.S. 5 2 0 , 555 (1979).
16 prescribed.” Estelle, 429 U.S. at 104-05. As to the second
essential element, “[a] medical need is ‘serious’ if it is one
that has been diagnosed by a physician as mandating treatment, or
one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Gaudreault v .
Salem, 923 F.2d 203, 208 (1st Cir. 1990). Deprivation of medical
care constitutes cruel and unusual punishment under the Eighth
Amendment only if the indifference to an inmate’s medical needs
was reckless or wanton in the criminal law sense, not merely
negligent. See Watson v . Canton, 984 F.2d 5 3 7 , 540 (1st Cir.
1993). In order to allege that the MCHC has failed to provide
him with constitutionally adequate medical care, therefore,
Ulmann must allege a “deliberate indifference” to his serious
medical needs. See Consolo v . George, 58 F.3d 7 9 1 , 793-95 (1st
Cir. 1995) (explaining how the “deliberate indifference” to
serious medical needs standard for an Eighth Amendment violation
applies to pretrial detainees even though they are protected by
the due process clause of the Fourteenth Amendment); Elliott v .
Cheshire County, 940 F.2d 7 , 10 (1st Cir. 1991) (“It is clearly
established . . . that ‘jail officials violate the due process
rights of their detainees if they exhibit a deliberate
17 indifference to the medical needs of the detainees that is
tantamount to an intent to punish.’”) (citations omitted)).
Here, Ulmann has not described either the requisite
seriousness of the deprivation or the requisite “deliberate
indifference” on the part of any prison official. It is clear
that Ulmann is unsatisfied with the care he received from the
MCHC medical staff, but he has not offered any evidence that the
care he received or did not receive was the result of deliberate
indifference to his health or safety or any serious medical need.
Ulmann has not alleged any injury suffered as a result of the
inadequacies he perceives in the medical care he received.
Importantly, Ulmann has not alleged that he did not receive care
or medical attention for his ailments, only that he was
dissatisfied with the type and degree of treatment he received at
the MCHC. Accordingly, I recommend this claim be dismissed
without prejudice to Ulmann’s ability to renew the claim should
he be able to allege additional facts indicating that he has been
injured by the MCHC’s inadequate medical care.
7. Hazardous Conditions Claim
Ulmann states that up until three months prior to the filing
of his complaint, the MCHC was a reasonably safe institution.
18 Three months prior to his September 2002 filing, however, the
conditions at the MCHC changed as a result of MCHC employee
apathy. Ulmann alleges that the jail was controlled by a few
tough inmates and those who took instructions from them. He
further alleges that the guards, as a result of their own job
dissatisfaction, ceased to pay attention to what occurred in the
jail and tolerated fights and other violence. Ulmann alleges
that as a result of the lack of attention to their duties, the
MCHC employees placed older and infirm inmates like Ulmann in a
situation where their lives were in danger, and they suffered
from intimidation by and fear of other inmates. Ulmann does not
allege that any specific harm came to him as a result of this
degeneration in prison conditions.
To state a constitutional prison conditions violation,
Ulmann must demonstrate that he was subjected to a deprivation
that was objectively “sufficiently serious,” and that the
official who caused the deprivation was “deliberately
indifferent” to his needs. See Wilson v . Seiter, 501 U.S. 2 9 4 ,
298, 303 (1991); Giroux, 178 F.3d at 3 2 . A challenged condition
of housing may be objectively “sufficiently serious” standing
alone or in combination with other conditions, if it deprives the
19 inmate of an identifiable, human need. See Wilson, 501 U.S. at
304. A prison official is “deliberately indifferent” if he is
“aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and also draws the
inference.” See Farmer v . Brennan, 511 U.S. 825, 836-37 (1994).
Thus, an Eighth Amendment claim arises only if an official
inflicts “cruel and unusual punishment” by knowing of and
disregarding “an excessive risk to inmate health or safety.” Id.
at 8 3 7 , 838; Giroux, 178 F.3d at 32 (explaining how the official
must have “an actual, subjective appreciation of risk”).
That Ulmann was afraid of younger stronger inmates in a jail
setting where those charged with his protection appeared to be
apathetic to their duties, without more, does not demonstrate
that MCHC officials were aware of and deliberately indifferent to
a serious risk to Ulmann’s safety. See Street v . Fair, 918 F.2d
269, 271-72 (1st Cir. 1990) (finding no Eighth Amendment claim
where plaintiff complained generally of being afraid after a
threat with no injury). Ulmann has not cited any specific facts
or described any specific circumstances which would have given
rise to a particularized duty of the corrections officials at the
MCHC to act.
20 Accordingly, nothing in the facts alleged by Ulmann
demonstrates either an objectively serious deprivation or a
subjective awareness of the risk to his health or safety on the
part of any defendant. I find, therefore, that Ulmann has failed
to state a claim upon which relief may be granted under § 1983
for being housed in an intimidating atmosphere during of his
confinement at the MCHC.
8. Choice of Defendants
A. Supervisory Liability
Ulmann has named MCHC Superintendent Carole Anderson and
MCHC Chief of Security Capt. Craft as defendants to this suit.
Because he alleges few facts describing either Anderson’s or
Craft’s involvement in the incidents alleged, I assume that
Ulmann intends to sue them in their supervisory capacities.
“Supervisory liability under § 1983 cannot be predicated on a
respondeat theory, but only on the basis of the supervisor’s own
acts or omissions.” Matos v . Toledo Davila, 135 F.3d 1 8 2 , 192
(1st Cir. 1998). A supervisor must be “either a primary actor
involved i n , or a prime mover behind, the underlying violation.”
Camilo-Robles v . Zapata, 175 F.3d 4 1 , 43-44 (1999). There must
be “an affirmative link, whether through direct participation or
21 through conduct that amounts to condonation or tacit
authorization” to the violation alleged. Id. at 4 4 . Here,
Ulmann’s claims suffice to allege that the religious items, diet,
consular visitation and phone claims he makes were committed
pursuant to MCHC policy for the treatment of inmates and with
regard to policy created ostensibly for the security of the
institution and, in some instances, by the specific authorization
of Anderson. I find that this complaint states enough to allege
that, for purposes of preliminary review, Anderson and Craft are
aware of the incidents involving religious items, diet, consular
visitation and phone use, and have refused to correct i t . Such
an allegation could amount to either explicit or tacit
condonation of such circumstances, and I find therefore that
Ulmann has sufficiently stated a claim against both Anderson and
Craft in their supervisory capacities to allow this action to
proceed against them.
B. Henry Simons
Henry Simons is the physician’s assistant who treated Ulmann
during his stay at the MCHC. The only claim raised by Ulmann
involving Simons is the inadequate medical care claim. Because I
22 recommend dismissal of that claim, I also recommend dismissal of
Simons from this action.
Conclusion
For the reasons explained herein, I recommend dismissal of
the equal protection, medical care and generally hazardous
conditions of confinement claims, as well as defendant Simons
from this action. In an Order issued simultaneously with this
Report and Recommendation, I allow the free exercise of religion
(involving teffilin and kosher diet), RLUIPA, inadequate food,
consular visitation, and phone association with family claims to
be served on defendants Anderson and Craft. See 28 U.S.C. §
1915A(b)(1).
If this recommendation is approved, the claims as identified
in this Report and Recommendation, will be considered for all
purposes to be the claims raised in the complaint. If the
plaintiff disagrees with the identification of the claims herein,
he must do so by objection filed within ten (10) days of receipt
of this Report and Recommendation, or he must properly move to
amend the complaint.
Any objections to this Report and Recommendation must be
filed within ten (10) days of receipt of this notice. Failure to
23 file objections within the specified time waives the right to
appeal the district court’s order. See Unauthorized Practice of
Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992); United
States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).
James R. Muirhead United States Magistrate Judge Date: January 2 1 , 2003
cc: Peter Ulmann, pro se