United States District Court, D. New Hampshire
Warren E. Peterson
John Masse et al.
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Before the court is the complaint (doc. no. 1) filed by New Hampshire State Prison ("NHSP") inmate Warren E. Peterson, asserting claims under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), and state criminal law. The complaint is here for preliminary review under LR 4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate'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 survive preliminary review, the complaint must contain "sufficient factual matter, accepted as true, to state a claim to relief.'" See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court treats as true all well-pleaded factual allegations, and construes reasonable inferences in plaintiff's favor. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
Peterson asserts the following federal claims in the complaint:
1. Defendants discriminated against Peterson based on his disability, violated his due process rights, and engaged in witness tampering, when, in March/April 2013, they subjected him to disciplinary proceedings resulting from Peterson's failure to provide a urine specimen for a drug test, despite his documented medical history of paruresis;
2. Defendants violated Peterson's due process rights, and subjected him to disciplinary proceedings based on an unconstitutionally vague disciplinary offense, when, in 2014, Peterson was charged with being disrespectful to NHSP Capt. Paul Cascio by calling him a "liar";
3. Defendants retaliated against Peterson for a 2005 lawsuit he filed against NHSP officials, by charging him with disciplinary offenses and/or harassing him in 2006 and 2007, by not permitting his son to visit him on Father's Day and Christmas in 2012, and by effecting housing transfers in 2013; and
4. Defendants violated Peterson's First Amendment right to access the courts by restricting Peterson's access to his legal files in February and March 2013, and losing some of his legal files.
Peterson seeks damages and injunctive relief.
I. ADA Claims
Peterson asserts that he was charged and convicted of a disciplinary offense for failing to provide a urine specimen, in a manner that constitutes disability discrimination, in violation of Title II of the ADA. Specifically, Peterson alleges that he has a history of paruresis, and that he holds a medical pass specifying that in the event of urinary retention, he is to be "give[n] 10 oz. of water and place[d] in dry tank ×1 hour with a cup." Peterson asserts that Corrections Officer ("C.O.") K. Jardine, in March 2013, ordered Peterson to produce a urine specimen, without following the procedures specified in the medical pass. Jardine charged Peterson with a major disciplinary offense when Peterson did not urinate as directed. Peterson appeared before Hearing Officer Lester ...