Brown v . Englander, et a l . 10-CV-257-SM 11/24/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Bruce Brown
v. Civil N o . 10-cv-257-SM Opinion N o . 2010 DNH 201
Dr. Celia Englander, et a l .
O R D E R
Bruce Brown brings this civil rights action pursuant to
42 U.S.C. § 1983, asserting that defendants have violated his
Eighth Amendment right to adequate medical care. Brown also
asserts pendent state tort claims. Because Brown is a prisoner,
the matter is before me for preliminary review to determine,
among other things, whether the complaint states any claim upon
which relief might be granted. See 28 U.S.C. § 1915A.
Standard of Review
In conducting the preliminary review of a prisoner case, as
required by 28 U.S.C. § 1915A, the Court construes all of the
factual assertions in the pro se pleadings liberally, however
inartfully pleaded. See Erickson v . Pardus, 551 U.S. 8 9 , 94
(2007) (per curiam) (following Estelle v . Gamble, 429 U.S. 9 7 ,
106 (1976), to construe pro se pleadings liberally in favor of
the pro se party). “The policy behind affording pro se
plaintiffs liberal interpretation is that if they present
sufficient facts, the court may intuit the correct cause of action, even if it was imperfectly pled.” Ahmed v . Rosenblatt,
118 F.3d 886, 890 (1st Cir. 1997); see also Castro v . United
States, 540 U.S. 375, 381 (2003) (courts may construe pro se
pleadings to avoid inappropriately stringent rules and
unnecessary dismissals). This review ensures that pro se
pleadings are given fair and meaningful consideration.
To determine if a pro se complaint states any claim upon
which relief could be granted, the Court must consider whether
the complaint, construed liberally, Erickson, 551 U.S. at 9 4 ,
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v . Iqbal, ___ U.S. ___, ___, 129 S . C t . 1937, 1949
(2009) (citation omitted). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. Inferences reasonably drawn from
the plaintiff’s factual allegations must be accepted as true, but
the Court is not bound to credit legal conclusions, labels, or
naked assertions, “devoid of ‘further factual enhancement.’” Id.
(citation omitted). Determining if a complaint sufficiently
states such a claim for relief is a “context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 1950 (citation omitted).
2 Background
Brown is a seventy-two year old inmate at the New Hampshire
State Prison. He is approximately fifteen years into a 20-40
year sentence for a 1995 sexual assault.
In late 2006 and early 2007, Brown began to experience
intermittent lower back pain. Brown reported his pain to the
nursing staff at the New Hampshire State Prison’s Health Services
Center (“HSC”). The pain persisted, and on May 2 5 , 2007, Brown
was sent for an MRI at Catholic Medical Center in Manchester, New
Hampshire. The MRI showed a variety of lumbar abnormalities.
The medical staff at the prison prescribed steroids and a muscle
relaxant.
On May 2 8 , 2007, Dr. Celia Englander, Medical Director for
the New Hampshire Department of Corrections (“DOC”), told Brown
that his MRI showed only mild disease, and referred him to
physical therapy for evaluation. On June 7 , 2007, Brown received
notification that he would receive pain management treatment for
his back. The following month, Brown was taken to the Elliot
Hospital in Manchester, New Hampshire, to see Dr. Hyatt who gave
him a cortisone shot in his spine. Dr. Hyatt told Brown that an
appointment for another shot should be scheduled after
approximately three months. Dr. Hyatt also told Brown that the
shots were a temporary fix to relieve pain, but that he needed
3 back surgery to fuse his perforated discs (the medical condition
causing his pain) to fix the underlying problem.
Brown states that the shot worked reasonably well in
relieving his pain for about three months. Brown was scheduled
to return to see Dr. Hyatt for a second shot on November 5 , 2007.
That appointment was cancelled by a corrections officer. An
appointment was rescheduled, but Brown did not receive a second
shot for several months after the first shot stopped working.
Second and third cortisone shots effectively reduced Brown’s pain
for approximately three months each. Brown has not received any
further cortisone shots.
In early June 2008, Brown’s pain became unbearable. Brown
submitted multiple request slips to prison medical staff pleading
for treatment that would relieve his pain. On June 1 2 , 2008,
Brown was told by a nurse that he was going to have another
cortisone shot. On June 1 7 , 2008, DOC physician’s assistant Gail
Spelman told Brown she had put in for a transport for him to
receive another shot. She prescribed Indocin to assist in
reducing inflammation and the resulting pain until his shot.
Brown was denied the Indocin, however, as a committee at the
prison decided to temporarily discontinue distributing non-
steroidal anti-inflammatory drugs (“NSAIDs”) to inmates.
On June 1 9 , 2008, Brown sent an Inmate Request Slip (“IRS”)
to Spelman about not having received the Indocin she prescribed.
4 The IRS was answered by a non-medical corrections officer stating
that Spelman was no longer employed at the prison and that if he
had medical issues he would need to go to sick call.
On July 1 , 2008, Brown sent an IRS to Dr. Englander asking
for help in relieving his pain, and advising her that Spelman had
said she was setting up an appointment for a cortisone shot for
Brown, and that she had prescribed Indocin for him that he had
not received. Another individual responded to Brown’s request,
stating that his consult was “in,” that he would be notified when
his appointment was set, and that there would be “no NSAIDS until
after July 2 1 , 2008.”
On July 2 1 , 2008, and August 1 4 , 2008, Brown again sent
inmate requests to Dr. Englander complaining that he was in
terrible pain and requesting pain relief. On August 1 4 , 2008,
Dr. Englander responded to Brown that a pain management consult
had been ordered by Spelman and approved on August 4 , 2008.
On August 2 2 , 2008, Brown received an answer to his last IRS
to Dr. Englander from another individual, advising him that a
consult referral had been made to the pain management program at
the Dartmouth Hitchcock Medical Center (“DHMC”), and that an
appointment was going to be scheduled for him to have a consult
there. Dr. Englander then told Brown that, according to his
original MRI report, and as Dr. Hyatt had stated to Brown in June
2007, his back pain was caused by perforated and damaged discs
5 that required surgical repair. She promised Brown he would see a
“specialist.”
During August or September 2008, Brown was examined by Dr.
Jenkins at Concord Hospital. Dr. Jenkins stated that Brown was
suffering from three damaged discs that required correction by
surgery.
In December 2008, Brown was taken to the DHMC Pain
Management Clinic for a consult with Dr. Beasley, a pain
management specialist, for diagnostic testing. At that time,
Brown was taking medications provided to him by the prison
medical staff. Unbeknownst to Brown, DHMC had advised the prison
that Brown’s medications had to be discontinued prior to the
consult. Dr. Beasley refused to conduct the consultation because
Brown was still on medications.
On December 1 6 , 2008, Brown was taken back to Dr. Jenkins.
Dr. Jenkins refused to see Brown because he had already seen and
diagnosed him, and had nothing additional to offer.
On that date, Brown was called to the HSC by a woman named
Cindy who identified herself as an intermediary who helps inmates
get early medical release from prison. Cindy told Brown that she
was unable to assist him in obtaining an early release because of
the nature of his offense. Cindy said that Brown needed back
surgery and surgery to correct an abdominal aortic aneurism that
had been seen on his 2007 MRI. Cindy told Brown that the back
6 surgery was very expensive and asked him if he had Medicare or
other outside financial resources, ostensibly to help pay for the
surgery. Brown told Cindy he could not get Medicare while
incarcerated, and that he did not have money to pay for his own
On December 2 2 , 2008, Brown saw Campbell who told him that
she believed the only problem with his back was mild arthritis.
Brown believes that all orthopedic surgery conducted at the
prison requires her approval, and that she has thus far not given
her approval for his surgery.
On December 2 8 , 2008, Brown sent an IRS to Dr. Englander
complaining about his excruciating pain and inquiring as to the
status of his surgery. Dr. Englander responded that Dr. Jenkins
had not suggested surgery for his back, that Dr. Jenkins had
decided that Brown did not then need surgery, and that Dr.
Jenkins had instead suggested that Brown receive another
cortisone injection. Brown had received no such injection.
Due to his ongoing debilitating pain, the DOC medical staff,
by early 2009, had treated Brown’s symptoms with a myriad of pain
drugs, including Vicodin. None worked very well, which Brown had
repeatedly told the medical staff. Some of the drugs made Brown
nauseous or dizzy. Brown later refused to take Vicodin because,
on one occasion, his Vicodin prescription, which had not expired,
was not refilled when he ran out, and he was forced to go through
7 a painful withdrawal in addition to his excruciating back pain.
After that, Brown refused to take narcotic medications for his
pain because he was concerned, based on the prison’s track record
of not refilling his prescriptions in a timely manner, that he
would again be subjected to narcotic withdrawal. Brown asserts
that narcotics were the only treatment he has refused, and he has
never refused treatment altogether.
On January 2 6 , 2009, Dr. Englander told Brown he would be
sent to the Pain Management Clinic at DHMC for additional tests.
At around this time, Brown told Dr. Englander about a new
orthopedic and spine clinic that had opened in Bedford, New
Hampshire. Dr. Englander said she would look into i t .
On February 1 5 , 2009, Brown sent an IRS to Dr. Englander
stating that he was still in tremendous pain and requesting
additional treatment and testing at DHMC. Brown reiterated what
he had heard from Drs. Jenkins and Hyatt and asked for surgery,
not additional drugs, as he was worried about having the
medication suddenly withdrawn again by a failure to timely refill
his prescription. Dr. Englander responded that Brown was
“seriously distorting the record” concerning his treatment and
about what Dr. Jenkins had said.
On March 1 6 , 2009, Brown was taken to DHMC to see Dr.
Beasley. Dr. Beasley inserted needles into his back which gave
him relief for approximately two hours, but worsened his pain
8 after that. On April 5 , 2009, Brown sent Dr. Englander an IRS
telling her that the treatment he received at DHMC had made his
pain worse. Brown complained again that the “band aids” he had
been receiving for his serious back problems in lieu of surgery
were insufficient. Donna Timulty responded to Brown that an
appointment with Dr. Jenkins would be scheduled within the month.
On April 9, 2009, Brown filed a grievance with New Hampshire
State Prison Warden Richard Gerry. In his grievance, Brown
complained that for more than two years he had suffered
excruciating pain which had been, in the year prior to the filing
of the grievance, untreated or treated ineffectively, as the pain
relief measures were not particularly helpful, and the medical
staff had refused to arrange for him to have surgery. Brown told
Gerry that he was having difficulty walking, sleeping, and eating
due to the pain in his back which had also affected his legs and
other parts of his body. Gerry responded: “You have been
informed that you are being scheduled for an appointment to an
outside provider. I have been informed that you refuse to take
medication to manage the pain you are experiencing.” Gerry also
told Brown to forward future grievances to Dr. McLeod, the
Director of Medical and Forensic Services at the prison.
On April 2 6 , 2009, Brown appealed the denial of his
grievance to DOC Commissioner William Wrenn. In that appeal he
explained that he had taken narcotics with difficult side effects
9 and that his refusal to take morphine was based on a brutal
withdrawal experience. Dr. McLeod responded to Brown’s grievance
to Wrenn, stating that Dr. Jenkins would not see Brown until Dr.
Beasley saw him at DHMC, and that an appointment would be
scheduled at DHMC. Dr. McLeod told Brown to go to sick call to
address his pain issues.
Brown states that sick call exacerbates, rather than helps,
his difficulties. At sick call, he says, dozens of inmates cram
into a waiting room with too few chairs. Inmates at sick call
wait, for up to several hours, to see a nurse who can do no more
than provide a small amount of ibuprofen and schedule an
appointment with a doctor for a week or more later. Inmates,
such as Brown, who can’t move quickly are seen last as sick call
operates on a “first come, first served” basis.
Between June 2009 and June 2010, Dr. Englander repeatedly
promised Brown he would be going to DHMC for his spinal surgery.
In September 2009, she told him he would be going “soon.” On
October 2 7 , 2009, Brown submitted an IRS to Dr. Englander to
inquire about his appointment and to complain that the pain in
his back and legs had spread to his groin. Timulty responded and
said that Brown had seen Dr. Mahn on October 1 9 , 2009, although
Brown does not recall this appointment occurring, and that he had
prescribed Neurontin and Prednisone. Brown states he got some
temporary relief from those medications.
10 In December 2009, Dr. Englander told Brown he had been
approved for back surgery at DHMC. Although an appointment was
scheduled for March 5 , 2010, Brown was not given notice of that
date in advance. On the date of the appointment, Brown was at
his work site and, due to a failure of the security staff to
effectively communicate with one another, he was not returned to
his unit to be transported to the appointment. He was told later
by the staff on his housing unit that he had missed the
appointment.
When Brown requested an update on the status of his
appointment from Dr. Englander, she told him that she was
disappointed he “did not show up for the consult” when the doctor
was expecting him. Dr. Englander told Brown that the appointment
would be rescheduled. Later, Dr. Englander told Brown that his
appointment had been with a “neurosurgeon” who was upset about
the missed appointment because the surgery had already been
scheduled.
On April 1 0 , 2010, Brown went to sick call because his pain
was so bad he couldn’t sleep. The nurse scheduled an appointment
with a doctor a week later. On April 2 0 , 2010, Brown’s pain was
so bad he had to be brought to the HSC in a wheelchair. Dr.
Englander told Brown his surgery had been rescheduled. Dr.
Englander prescribed “knock out” medications so that Brown could
11 sleep. The “knock out” medications were alternating Trazodone
and Oxazepam.
On May 1 2 , 2010, Brown was incapacitated with pain. Another
inmate told Dr. Englander that he was in too much pain to attend
sick call, and asked for an appointment for Brown. No
appointment was made.
In early June 2010, Brown’s “knock out” medications were
removed from his housing unit medicine cabinet and not replaced
with anything. On June 1 4 , 2010, Brown went to the HSC in a
wheelchair. The nursing staff arranged for him to receive
Flexoril and Trazodone, but the combination didn’t work as well
as Trazodone and Oxazepam. Since June 1 4 , 2010, Brown states he
has not been able to sleep more than an hour at a time due to
pain.
On June 1 8 , 2010, Brown was taken to DHMC for what he
believed would be surgery. When Brown arrived, Dr. Beasley
explained that he had not been expecting him. Further, Dr.
Beasley told Brown that he is not a neurosurgeon, and was
confused as to why the prison would think that Brown had been
scheduled for surgery. Dr. Beasley told Brown that he needed
spinal surgery. Dr. Beasley contacted the Surgery Department at
DHMC, but they were unable to fit Brown into the schedule for
that day.
12 Brown continues to suffer from extreme and persistent pain.
He has experienced only incomplete and temporary pain relief from
various treatments intended to treat pain. Brown raises the
following claims for relief 1 :
1. The defendants have violated his Eighth Amendment right to adequate medical care by failing to consistently provide him with adequate pain medication and other pain treatment and allowing his prescriptions to lapse, causing him to experience serious withdrawal symptoms.
2. The defendants have violated his Eighth Amendment right to adequate medical care for his damaged lumbar discs.
3. The defendants have violated Brown’s state law rights under tort law by engaging in medical malpractice, negligence, and the intentional infliction of emotional distress.
Discussion
I. Section 1983
Section 1983 creates a cause of action against those who,
acting under color of state law, violate federal constitutional
or statutory law. See 42 U.S.C. § 1983 2 ; City of Okla. City v . 1 The claims, as identified herein, will be considered to be the claims raised by Brown in his complaint for all purposes. If Brown disagrees with the claims, as identified, he must do so by properly objecting to this Report and Recommendation or properly moving to amend the complaint. 2 42 U.S.C. § 1983 provides that:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .
13 Tuttle, 471 U.S. 808, 829 (1985); Wilson v . Town of Mendon, 294
F.3d 1 , 6 (1st Cir. 2002). In order for a defendant to be held
liable under § 1983, his or her conduct must have caused the
alleged constitutional or statutory deprivation. See Monell v .
Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Soto v . Flores,
103 F.3d 1056, 1061-62 (1st C i r . ) , cert. denied, 522 U.S. 819
(1997). Here, Brown claims that the defendants, all state
actors, have violated his rights under the Eighth Amendment to
the United States Constitution. As such, his claims arise under
§ 1983.
Inadequate Medical Care
“[T]he treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.” Helling v . McKinney, 509 U.S. 2 5 ,
31 (1993); Giroux v . Somerset County, 178 F.3d 2 8 , 31 (1st Cir.
1999). The pertinent Eighth Amendment prohibition on cruel and
unusual punishment applies to the States through the Due Process
Clause of the Fourteenth Amendment. See Robinson v . California,
370 U.S. 660, 666-67 (1962).
The Supreme Court has adopted a two-part test for reviewing
medical care claims under the Eighth Amendment. See Farmer v .
Brennan, 511 U.S. 825, 834 (1994). A court must first determine
if the prisoner has alleged facts sufficient to show that he or
she has not been provided with adequate care for a “serious
14 medical need.” Second, the court must determine if the complaint
contains sufficient allegations to show deliberate indifference.
See id. at 834. Allegations that simply show “substandard care,
malpractice, negligence, inadvertent failure to provide care, and
disagreement as to the appropriate course of treatment are all
insufficient to prove a constitutional violation.” Ruiz-Rosa v .
Rullan, 485 F.3d 150, 156 (1st Cir. 2007).
A serious medical need is one that involves a substantial
risk of serious harm to the prisoner if it is not adequately
treated. See Barrett v . Coplan, 292 F. Supp. 2d 281, 285 (D.N.H.
2003); see also Gaudreault v . Municipality of Salem, 923 F.2d
203, 208 (1st Cir. 1990) (defining serious medical need as 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”). To be found
deliberately indifferent, a prison official subjectively must
both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he or she
must also draw the inference. See Farmer, 511 U.S. at 837.
Deliberate indifference “may be shown by the denial of needed
care as punishment and by decisions about medical care made
recklessly with ‘actual knowledge of impending harm, easily
preventable.’” Ruiz-Rosa, 485 F.3d at 156 (citation omitted).
“‘In order to establish deliberate indifference, the complainant
15 must prove that the defendants had a culpable state of mind and
intended wantonly to inflict pain.’” Braga v . Hodgson, 605 F.3d
5 8 , 61 (1st Cir. 2010) (citation omitted). Deliberate
indifference may be found “in ‘wanton’ decisions to deny or delay
care, where the action is reckless, ‘not in the tort law sense
but in the appreciably stricter criminal-law sense, requiring
actual knowledge of impending harm, easily preventable.’” Watson
v . Caton, 984 F.2d 537, 540 (1st Cir. 1993) (citations omitted).
Deliberate indifference is not demonstrated by an inmate’s
disagreement with his treatment, by an allegation that better
treatment than what was provided is available, or by a difference
of opinion among medical professionals regarding diagnosis and
treatment. See Feeney v . Corr. Med. Servs., 464 F.3d 158, 162
(1st Cir. 2006) (“When a plaintiff’s allegations simply reflect a
disagreement on the appropriate course of treatment, such a
dispute with an exercise of professional judgment may present a
colorable claim of negligence, but it falls short of alleging a
constitutional violation” (internal citations omitted)).
A. Serious Medical Need: Perforated Discs
Here, Brown has alleged facts showing that he suffers from
perforated lumbar discs, diagnosed by physicians as requiring
surgery, and causing him severe pain while uncorrected. Brown
has also alleged facts showing that his condition has worsened
since 2007 -- that the pain is now excruciating and debilitating,
16 making it difficult at times for him to walk -- suggesting that
the underlying condition may be degenerative in the absence of
surgical repairs. Liberally construing the facts alleged in the
complaint, I find that Brown has stated sufficient facts to
assert a claim that the worsening state of the perforated discs
in his back constitutes a serious medical need, directly related
to the severe and chronic back pain he alleges.
B. Deliberate Indifference
The critical issue here is whether the prison’s failure to
ensure that Brown’s condition was treated surgically, or that he
continued to receive other effective modes of treatment,
constitutes “deliberate indifference” to his serious medical
need, and not “simply . . . a disagreement on the appropriate
course of treatment.” Id. For the reasons that follow, I
conclude that, liberally construing his complaint in his favor,
and accepting all facts pled and all reasonable inferences
arising as true, Brown has stated a viable claim that the
defendants were deliberately indifferent to his serious medical
needs. I also find, however, that Brown cannot assert a claim
for deliberate indifference to his pain based on difficulties
with his medication.
17 1. Surgery
Brown has alleged that every physician he has seen in an
effort to treat or diagnose his back problems — four in all,
including Dr. Hyatt, Dr. Jenkins, Dr. Englander, and Dr. Beasley
— has told him that his perforated discs require surgery. In
July 2007, Dr. Hyatt told Brown that he needed surgery in order
to repair his perforated discs. In August or September 2008, Dr.
Jenkins at Concord Hospital reported to both Brown and the prison
medical staff that Brown needed surgery. While Dr. Englander, in
late December 2008, told Brown that Dr. Jenkins had recommended
cortisone shots, not surgery (at that time) her understanding of
Dr. Jenkins’s opinion conflicted with her earlier interpretation
of his findings, and the statements Jenkins made to Brown.
Further, Dr. Englander told Brown he had been “approved” for back
surgery at DHMC in December 2009, which, it can reasonably be
inferred, suggested her agreement that Brown needed surgery. As
recently as April 2010, Dr. Englander told Brown that he would be
scheduled for surgery “soon,” and in June 2010, Dr. Beasley
confirmed that Brown’s back condition required surgical
correction.
I find, for purposes of preliminary review, that Brown has
stated sufficient facts to assert a plausible claim that he has a
serious medical need that requires surgical correction, and that
the prison defendants have refused to provide, or delayed in
18 providing, necessary treatment, being fully aware that failure to
do so would result in Brown’s continuing to suffer serious, but
avoidable, pain. Service of this claim shall be made on
defendants Englander, McLeod, Gerry, and Wrenn.3
2. Medication Difficulties
Brown alleges that the provision of medication constituted
deliberate indifference in that prescriptions were routinely
allowed to lapse between refills, even for medications that
should not be abruptly withdrawn. Further, Brown takes issue
with some of the medication choices offered to him.
There is no indication in Brown’s complaint that, if true,
the failure to consistently maintain prescriptions was
intentional or designed to cause pain or distress to Brown. At
best, Brown has made out a case for negligence with respect to
the failure of prison staff to refill prescriptions on time. No
claim arises under § 1983 for an act of negligence, however, and
I find that the facts asserted here are insufficient to describe
a violation of Brown’s federal constitutional rights related to
the provision of medication. Brown’s other medication complaints
amount to mere disagreements with medical staff about which
medications should be administered or prescribed. No
constitutional claim arises out of such disagreements absent a
3 As explained below, I find that Brown has failed to state any cognizable claim against defendant Bernice Campbell; the complaint is dismissed with respect to Bernice Campbell.
19 showing that the prescribing doctor was deliberately indifferent
to Brown’s serious medication needs. The claims asserting
deliberate indifference with regard to administering medications
to plaintiff are dismissed.
II. State Law Claims
Where, as here, there is no diversity of citizenship,
jurisdiction over plaintiffs’ state law claims is supplemental or
pendant. See 28 U.S.C. § 1367(a) (allowing court to exercise
supplemental jurisdiction over state law claims that are “so
related to the claims in the action within the original
jurisdiction that they form part of the same case or
controversy”); see also United Mine Workers v . Gibbs, 383 U.S.
715, 725 (1966). Plaintiff’s state law negligence, medical
malpractice, and intentional infliction of emotional distress
claims arise out of the same facts and circumstances asserted in
his federal claims. Accordingly, at this juncture, there is no
good reason not to exercise this Court’s supplemental
jurisdiction, see 28 U.S.C. § 1367(a). Brown’s state claims may
proceed against defendants Englander, McLeod, Gerry, and Wrenn.
III. Supervisory Liability
Brown has alleged that defendants McLeod, Gerry, and Wrenn
are responsible for developing and applying policies or practices
that violate Brown’s constitutional rights, and for failing to
adequately respond to Brown’s grievances about his surgery and
20 medical care needs. In their capacities as supervisors,
defendants are responsible for responding to inmate requests,
administering grievance procedures, developing prison policies as
they relate to the provision of and payment for medical care,
including care that must be received from outside medical
providers, and supervising prison staff.
There is no supervisory liability in § 1983 actions based on
a respondeat superior theory of liability. See Ashcroft, ___
U.S. at ___, 129 S . C t . at 1949. “Supervisory liability under
§ 1983 cannot be ‘predicated on a respondeat theory, but only on
the basis of the supervisor’s own acts or omissions.’” Aponte
Matos v . Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998)
(citation omitted). 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 (1st Cir. 1999). In
other words, “supervisory liability lies only where an
affirmative link between the behavior of a subordinate and the
action or inaction of his supervisor exists such that the
supervisor’s conduct led inexorably to the constitutional
violation.” Maldonado v . Fontanes, 568 F.3d 263, 275 (1st Cir.
2009).
“[S]upervisory liability under a theory of deliberate
indifference will be found only if it would be manifest to any
reasonable official that his conduct was very likely to violate
21 an individual’s constitutional rights.” Id. A supervisor is not
deliberately indifferent, for purposes of § 1983 liability, if he
or she is alleged merely to have been present for, or otherwise
obtains knowledge o f , the wrongdoing of a subordinate, or if the
supervisor promulgated a policy that does not, on its face,
direct or condone the wrongful conduct of subordinates. Id.
Here, plaintiff alleges that each named defendant
participated in the unconstitutional deprivations alleged, by
condoning their subordinates’ failure to insure that Brown
received the surgery he needed and attempting to lessen his pain
while denying or delaying the treatment of his physical back
problems. Defendants refused to remedy, and to have continued to
support, the practices brought to their attention through the
inmate request and grievance processes. Accordingly, these
defendants can be sued in their supervisory capacities under
section 1983.
IV. Defendant Bernice Campbell
Brown asserts that Bernice Campbell improperly interpreted
certain medical information that had been provided her,
concluding that he was suffering only from mild arthritis. There
are no facts pled, however, that would support the contention
that Campbell’s statement was anything more than a mistaken
medical assessment or an inadvertent error. Nothing in Brown’s
complaint suggests that Campbell was “deliberately indifferent”
22 to his medical needs or even that she acted negligently.
Further, to the extent Brown claims that Campbell’s signature is
necessary for him to obtain orthopedic surgery, and she failed to
provide such a signature, it appears that Brown is asserting only
an unsupported belief. Neither the notion that a doctor at the
prison could not order surgery without the signature of a
physical therapist, nor that a physical therapist could arrange
for surgery without a doctor’s order, are plausible. Brown has
not otherwise asserted that Campbell provided any substandard,
negligent, or improper care to him, or injured or damaged him in
any way. Because Brown has failed to state any claim against
Campbell upon which relief might be granted, I dismiss the
complaint as it pertains to her.
Request for Preliminary Injunctive Relief
Brown’s complaint includes a request for preliminary
injunctive relief. Because that request was filed several months
ago, and the Court has received no separate motion or request for
injunctive relief from plaintiff, the request is denied without
prejudice to refiling as a Motion for Preliminary Injunction if
circumstances warrant.
Conclusion
For the foregoing reasons, I find that Brown’s complaint
adequately asserts an Eighth Amendment claim relating to the
denial of surgery, and state law claims against defendants
23 Englander, McLeod, Gerry, and Wrenn, including supervisory
capacity claims against McLeod, Gerry, and Wrenn. The claims
alleging improper medical care for medication difficulties, and
the claims against defendant Campbell are dismissed.
Plaintiff has submitted summons forms for Wrenn, McLeod,
Gerry, and Englander, all listing a New Hampshire State Prison
address. The Clerk’s Office is directed to issue the summonses
for Wrenn, McLeod, and Gerry to plaintiff’s counsel, who must
effect service according to Fed. R. Civ. P. 4. Defendant
Englander is not a state employee, but an employee of MHM
Services, Inc., and therefore Dr. Englander must be served as
would any non-prison-employee. Plaintiff’s counsel is directed
to provide a summons with a correct address for defendant
Englander to the court for issuance within fourteen (14) days of
the date of this Order. Counsel must then effect service on
defendant Englander in compliance with Fed. R. Civ. P. 4.
Brown is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the defendants by delivering or mailing the materials to them or
their attorney(s), pursuant to Fed. R. Civ. P. 5(b).
SO ORDERED.
^ St/even J. _ McAuliffe Chief Judge November 24, 2010
cc: Nancy Sue Tierney, Esq.