United States District Court, D. New Hampshire
Weston J. Stow
Robert P. McGrath et al.
Stow, pro se, Lynmarie C. Cusack, Esq., Seth Michael Zoracki,
McCafferty, United States District Judge.
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.
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.
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
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.
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.
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
ii. malfeasance in public office, and
iii. misfeasance in public ...