Boudreau v. Englander, et al.

• Court: District Court, D. New Hampshire
• Decided: May 24, 2010
• Docket: 09-CV-247-SM
• Status: Published

Opinion

Case l:09-cv-00247-SM Document 67 Filed 05/24/10 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert H. Boudreau, Plaintiff

v. Civil No. 09-cv-247-SM Opinion No. 2 010 DNH 08 8 Celia Englander, M.D., Bernadette Campbell, P.T., John Eppolito, M.D., and Robert MacLeod, M.D. Defendants

O R D E R

Robert Boudreau is serving a criminal sentence in the New

Hampshire State Prison system. In this suit, he seeks

compensatory and punitive damages, as well as declaratory and

injunctive relief, claiming defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment when

they altered the prescription medications he had been receiving

to treat chronic back pain. See generally 42 U.S.C. § 1983. He

also advances various state law claims for negligence, medical

malpractice, and intentional infliction of emotional distress.

Defendants Robert MacLeod and Bernadette Campbell (the

"State Defendants") move for summary judgment as to Boudreau's

Eighth Amendment claims, asserting that, as a matter of law, he

cannot prevail on any of those claims without a medical expert

(which Boudreau has failed to disclose). As to Boudreau's state Case l:09-cv-00247-SM Document 67 Filed 05/24/10 Page 2 of 11

common law claims, the State Defendants urge the court to decline

to exercise its supplemental jurisdiction. Invoking the same

legal theory. Defendants John Eppolito, M.D., and Celia

Englander, M.D. (the "Physician Defendants") move to dismiss

Boudreau's Eighth Amendment claims against them, reiterating that

Boudreau cannot prevail without a medical expert.1 Boudreau

obj ects.

Standard of Review

When ruling on a motion for summary judgment, the court must

"view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party's favor." Griqqs-Rvan v. Smith, 904 F.2d 112, 115

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals "no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law." Fed.

R. Civ. P. 56(c). In this context, "a fact is 'material' if it

potentially affects the outcome of the suit and a dispute over it

is 'genuine' if the parties' positions on the issue are supported

by conflicting evidence." Int'l Ass'n of Machinists & Aerospace

1 Because the Physician Defendants filed answers to Boudreau's complaint, see documents no. 44 and 45, their motion to dismiss is properly viewed as one for judgment on the pleadings. See Fed. R. Civ. P. 12(c). More appropriately, however, they should have filed a motion for summary judgment since they challenge the sufficiency of Boudreau's proof, rather than the sufficiency of the complaint's allegations.

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Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st

Cir. 1996) (citations omitted). Nevertheless, if the non-moving

party's "evidence is merely colorable, or is not significantly

probative," no genuine dispute as to a material fact has been

proved, and "summary judgment may be granted." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations

omitted).

The key, then, to defeating a properly supported motion for

summary judgment is the non-movant's ability to support his or

her claims concerning disputed material facts with evidence that

conflicts with that proffered by the moving party. See generally

Fed. R. Civ. P. 56(e). It naturally follows that while a

reviewing court must take into account all properly documented

facts, it may ignore a party's bald assertions, unsupported

conclusions, and mere speculation. See Serapion v. Martinez, 119

F .3d 982, 987 (1st Cir. 1997).

Background

The relevant facts underlying this suit are discussed in

detail in the Magistrate Judge's Report and Recommendation

(document no. 34) and the court's order denying Boudreau's

request for preliminary injunctive relief (document no. 60). In

particular, the court's prior order sets forth the details

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surrounding Dr. Eppolito's decision to begin tapering Boudreau's

daily dosage of morphine (which, at one point, was over 200

milligrams) and the various physicians and pain management

experts he consulted before beginning the tapering process.

Accordingly, those details need not be recounted. Those facts

relevant to the disposition of this matter are discussed as

appropriate.

Discussion

As construed by the Magistrate Judge, Boudreau's complaint

advances two federal constitutional claims: first, that

defendants displayed deliberate indifference to his serious

medical needs by depriving him of narcotic pain killers and,

second, that defendants retaliated against him (by depriving him

of narcotic pain killers) for having filed various internal

grievances and lawsuits. Boudreau also advances state common law

claims for medical malpractice, negligence, and intentional

infliction of emotional distress. See Report and Recommendation

(document no. 34) at 12-20. See also Plaintiff's objection

(document no. 65) at 1-2.

Although Boudreau objects to both pending dispositive

motions, he has not submitted any affidavits in support of those

objections. Accordingly, the only sworn testimony offered by

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Boudreau is his relatively brief testimony on the first day of

the hearing on his motion for preliminary injunctive relief. See

Transcript of Proceedings for Evidentiary Hearing, Day 1

(document no. 47) at 23-59. That testimony focused exclusively

on Boudreau's claim that Dr. Eppolito's decision to taper his

daily dosage of morphine constituted deliberate indifference to

his serious medical needs. Boudreau did not testify about any

(alleged) retaliation undertaken by any of the named defendants

in response to his having filed grievances or lawsuits.

I. Deliberate Indifference to Serious Medical Needs.

In denying Boudreau's request for preliminary injunctive

relief, the court made the following observations:

To succeed on [his Eighth Amendment] claim, Boudreau will have to persuade a finder of fact, by a preponderance of the evidence, that the medical care provided at the New Hampshire State Prison by the named physicians was so substandard as to constitute "deliberate indifference" to his serious medical needs.

Having carefully reviewed the record, including the transcript of the hearing held before the Magistrate Judge, it is apparent that Boudreau's Eighth Amendment claim does not rest upon facts from which a reasonable fact-finder could, or will likely, conclude that the treating physicians acted with deliberate indifference, at least not in the absence of expert medical opinion evidence. That is, this is not a case in which it is plausibly alleged that doctors, being aware of a serious medical necessity and attendant suffering, nevertheless did nothing, knowing that failure to intervene would continue and exacerbate that suffering, or result in permanent damage.

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Rather, this is a case in which Boudreau's medical condition, concededly serious chronic back pain, complicated by the comparatively high doses of opioids he was taking, was seemingly amenable to varying medical treatment strategies. Different treatment alternatives involve different potential benefits and risks that must be weighed and, in the end, professional medical judgment must be exercised in deciding upon an appropriate treatment plan. The hearing transcript discloses strong disagreement about the proper (or perhaps only the preferable) medical strategy that should have been pursued with respect to Boudreau's pain management. But, Boudreau is not medically trained, nor is his legal counsel, nor is this court, and Boudreau presented no expert medical evidence to contradict that introduced by the defendants.

The medical care provided Boudreau to address his chronic back pain may have been perfectly reasonable and well within appropriate professional norms, or it may have been plainly substandard. Perhaps it was so substandard that it rose to the level of deliberate indifference for Eighth Amendment purposes. This factual record leaves the question open, however, and it is inadequate to support a finding that Boudreau is likely to establish "deliberate indifference" at trial. Indeed, as currently developed, the record is inadequate to support a finding that he is likely to establish even medical negligence at trial.

Order (document no. 60) at 2-4. The court then went on to

conclude that:

to demonstrate that one or more defendants were deliberately indifferent to his serious medical needs, Boudreau is obligated to show more than mere negligence or even medical malpractice. He has not, as a matter of law, met even the lower standard. As the record stands. Dr. Eppolito's unrebutted testimony is that, after consulting with at least four other medical providers, he determined, as a licensed medical professional, that Boudreau's narcotic dosage should be tapered. Each medical professional he consulted concurred that tapering was an appropriate treatment

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response to Boudreau's condition. And, there was substantial testimony concerning the various medications that were prescribed during that taper to help alleviate Boudreau's pain.

For his part, and this is critical, Boudreau did not offer any expert medical opinion evidence tending to question or contradict Dr. Eppolito's professional treatment decisions. Instead, he merely produced evidence tending to show that he continued to suffer pain, notwithstanding the treatment provided, that his pain was not well-managed during the taper, or might have been better managed, or, in his opinion, managed differently. ~k ~k ~k

This court lacks the medical training and expertise necessary to determine, in the absence of expert opinion evidence, whether the medical judgment exercised by the defendant physicians fell below an acceptable standard of professional care, much less that the medical care provided to Boudreau was so substandard as to implicate the Eighth Amendment. Stated slightly differently, the medical care Boudreau did receive was not so obviously and shockingly deficient that the court can conclude, without the benefit of supporting expert medical testimony, that Boudreau is likely to prevail on his Eighth Amendment, or even his common-law tort, claims. Absent credible expert medical evidence to support Boudreau's position, the evidence he did introduce at the hearing - particularly when considered in light of the evidence produced by defendants - is simply too weak to support even a suggestion that Dr. Eppolito was "deliberately indifferent" to his serious medical needs, or that the medical care Boudreau received was "repugnant to the conscience of mankind." Estelle, 429 U.S. at 106. See also Feeney, 464 F.3d at 162 (noting that "'deliberate indifference' defines a narrow band of conduct in this setting" and substandard medical treatment, "even to the point of malpractice, is not the issue").

If Boudreau expects to prevail at trial on his constitutional and/or state tort claims in this case, he will need to present expert medical witness testimony. At the very least, Boudreau will be

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required to show that the medical care he received fell below the standard of reasonable medical practice.

Order at 14-16 (emphasis supplied).

Nothing in the factual record has changed since the court

issued that order and Boudreau still lacks essential testimony

from a medical expert. Consequently, Boudreau's Eighth Amendment

deliberate indifference claim cannot survive a motion for summary

judgment.

II. Retaliation Claim.

As this court has previously observed, to prevail on a First

Amendment retaliation claim, an inmate:

must establish: (1) that he engaged in constitutionally protected conduct, (2) that the defendants undertook an adverse action against him, and (3) that a causal connection exists between the adverse action and the prisoner's protected conduct in that the defendants intended to retaliate or were motivated to retaliate by the prisoner's protected conduct.

Chase v. Ash, No. 04-cv-386-JD, 2005 DNH 92 (D.N.H. Aug. 17,

2006) (citations omitted). Given the lack of expert medical

testimony supportive of Boudreau's view that the care he received

was substandard, he cannot, as a matter of law, carry his burden

of proof with regard to the second element. And, even if the

care Boudreau received could be viewed as "adverse," there is no Case l:09-cv-00247-SM Document 67 Filed 05/24/10 Page 9 of 11

evidence in the record to support even the inference that

defendants engaged in such conduct in order to retaliate against

Boudreau for having exercised his constitutional rights.

III. Boudreau's State Law Claims.

Finally, as to Boudreau's state common law claims for

negligence, medical malpractice, and intentional infliction of

emotional distress, the court declines to exercise its

supplemental jurisdiction. See generally 28 U.S.C. § 1367.

Section 1367 provides that the court may decline to exercise

supplemental jurisdiction over a plaintiff's state law claim

when:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(c) (emphasis supplied). To assist district

courts, the Court of Appeals for the First Circuit has identified

the following additional factors that should be considered when

determining whether to exercise supplemental jurisdiction over

state law claims: (1) the interests of fairness; (2) judicial

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economy; (3) convenience; and (4) comity. See Camelio v.

American Fed'n, 137 F.3d 666, 672 (1st Cir. 1998) . With regard

to principles of fairness and comity, the Supreme Court has

observed:

Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote

Given that the court has determined that defendants are

entitled to judgment as a matter of law as to all of Boudreau's

federal claims, it declines to exercise supplemental jurisdiction

over the state law claims in plaintiff's complaint.

Conclusion

For the foregoing reasons, as well as those set forth in the

court's prior order, the State Defendants are entitled to

judgment as a matter of law as to Boudreau's federal claims.

Accordingly, their motion for summary judgment (document no. 64)

is granted. For the same reasons, the Physician Defendants are

also entitled to judgment as a matter of law as to Boudreau's

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federal claims. Their motion (document no. 62) is, then, granted

to the extent it rests on the proposition that, absent expert

medical testimony Boudreau cannot, as a matter of law, prevail on

his federal constitutional claims.

As to Boudreau's state common law claims, the court declines

to exercise supplemental jurisdiction and those claims are

dismissed, without prejudice.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J./McAuliffe Chief Judge

May 24, 2010

cc: Michael J. Sheehan, Esq. Edward M. Kaplan, Esq. Martin P. Honigberg, Esq. Laura E. B. Lombardi, Esq.