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Stow v. McGrath

United States District Court, D. New Hampshire

March 14, 2019

Weston J. Stow
v.
Robert P. McGrath et al.[1]

          Weston Stow, pro se, Lynmarie C. Cusack, Esq., Seth Michael Zoracki, Esq.

          ORDER

          Landya McCafferty, United States District Judge.

         Pro se plaintiff Weston J. Stow, a New Hampshire Department of Corrections (“DOC”) inmate, asserts a No. of claims against defendant DOC employees. Defendant New Hampshire State Prison (“NHSP”) Unit Manager Robert McGrath has filed a motion (doc. no. 150) to dismiss several of the claims against him. For the reasons that follow, McGrath's motion to dismiss is denied.

         Background [2]

         Stow alleges that in early 2016, he was incarcerated at the NHSP Special Housing Unit (“SHU”), and that McGrath was the SHU Unit Manager. At that time, Stow was taking daily prescription heart medicine. In February 2016, Stow's heart medication ran out. Stow has alleged that the medication was not timely refilled because no SHU officer picked up the prescription from the NHSP on the weekend.

         Stow complained about the failure to timely refill his prescription through the DOC's administrative grievance process. Stow alleges that McGrath was offended by Stow's pursuit of administrative complaints concerning his prescription refills.

         Stow states that as a result of his administrative complaints, NHSP Maj. Jon Fouts investigated the issue and instituted procedures to ensure that no further lapse in necessary daily medication would occur at SH U.Shortly thereafter, McGrath told Stow: “You made a big mistake, if I get a clean shot at you I'm going to take it.” Stow believes that McGrath made that statement in response to what Stow presumes were negative consequences McGrath suffered for having allowed Stow's medication to lapse.

         Stow further claims that, shortly after that incident, McGrath and other DOC officers arranged to have Stow transferred from the NHSP in Concord to the Northern New Hampshire Correctional Facility (“NCF”) in Berlin. Stow alleges that his transfer to NCF was made in retaliation for his administrative complaints about his untimely medication refills and his complaints about other conditions of his confinement, including complaints about the ventilation system at SHU.

         As to those facts, Stow has asserted the following claims against McGrath, which are set forth in the October 13, 2017 Report and Recommendation (doc. no. 65) (“October 2017 R&R”) as the following subparts of Claim 2:

2. Defendant McGrath threatened Stow with bodily harm by stating “You've made a big mistake, if I get a clean shot at you I'm going to take it, ” in retaliation for Stow's administrative complaints about medication refill procedures and inadequate ventilation on his housing unit, in violation of:
a. Stow's First Amendment rights to free speech and to petition the government for a redress of grievances, rendering defendant liable for damages and injunctive relief under 42 U.S.C. § 1983;
c. state common law, rendering defendant liable for damages for:
ii. malfeasance in public office, and
iii. misfeasance in public ...

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