Brown v. Englander, et al.

2012 DNH 095

• Court: District Court, D. New Hampshire
• Decided: June 1, 2012
• Docket: 10-CV-257-SM
• Status: Published

Opinion

Brown v . Englander, et a l . 10-CV-257-SM 6/1/12 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bruce Brown, Plaintiff

v. Case N o . 10-cv-257-SM Opinion N o . 2012 DNH 095 Celia Englander, M.D.; William Wrenn, Commissioner, N.H. Dept. of Corrections; Richard Gerry, Warden, N.H. State Prison; and Robert McLeod, Director of Medical and Forensic Services, N.H. Dept. of Corrections, Defendants

O R D E R

Bruce Brown, an inmate at the New Hampshire State prison,

has served approximately 15 years of a 20-40 year sentence for

sexual assault. About five years ago, he began experiencing

intermittent back pain. Over time, that pain became worse and

Brown says it is now severe (sometimes incapacitating) and can

only be alleviated through surgery to fuse damaged lumbar discs.

He claims prison officials are aware not only that he suffers

from debilitating pain, but also that several consulting

physicians have recommended surgery. And yet, says Brown, prison

officials refuse to provide him with that medically necessary

surgery.

Brown brings this action alleging that defendants have acted

with deliberate indifference to his serious medical needs and, in so doing, violated his Eighth Amendment right to be free from

cruel and unusual punishment. He also brings state law claims of

medical malpractice and intentional infliction of emotional

distress, over which he asks the court to exercise supplemental

jurisdiction. See 28 U.S.C. § 1367(a). He seeks monetary

damages for his suffering, and injunctive relief compelling

defendants to provide him with the surgery he says he needs.1

Defendants deny that they violated any of Brown’s rights

and, because they say there are no genuinely disputed material

facts, defendants claim they are entitled to judgment as a matter

of law. Brown objects.

For the reasons discussed below, defendants’ motions for

summary judgment are granted as to Brown’s Eighth Amendment

claim. As to Brown’s state law claims for negligence and

intentional infliction of emotional distress, the court declines

to exercise its supplemental jurisdiction and those claims are

dismissed without prejudice.

1 It is not entirely clear what medical treatment Brown has received since he filed his complaint or what treatment he is currently undergoing. He simply reports, somewhat cryptically, that “at this time, [he] is receiving some treatment for his spinal damage.” Plaintiff’s motion for voluntary nonsuit (document n o . 22) at 1 .

2 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.” Griggs-Ryan v . Smith, 904 F.2d 1 1 2 , 115

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

reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). 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

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. 2 4 2 , 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 admissible

evidence that conflicts with that proffered by the moving party.

3 See generally Fed. R. Civ. P. 56(c). 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 9 8 2 , 987 (1st Cir. 1997). See also Scott v .

Harris, 550 U.S. 3 7 2 , 380 (2007) (“When opposing parties tell two

different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe i t , a court

should not adopt that version of the facts for purposes of ruling

on a motion for summary judgment.”).

Background

Brown’s factual allegations are discussed in the court’s

order dated November 2 4 , 2010 (document n o . 9 ) , denying Brown’s

request for preliminary injunctive relief, but allowing him to

proceed with some of his claims against D r . Celia Englander

(Chief Medical Officer for the Department of Corrections), Robert

McLeod (former Administrative Director of Medical and Forensic

Services to the Department of Corrections), Richard Gerry (Warden

of the N.H. State Prison for M e n ) , and William Wrenn

(Commissioner of the N.H. Department of Corrections). Those

allegations need not be recounted. It is sufficient to note that

since the onset of his back pain, Brown has been seen by several

medical professionals, he has been provided with a number of

4 different pain-killers (both prescription and non-prescription),

and he has received at least one round of cortisone injections.

Nevertheless, Brown says his back pain remains and he believes

surgery is the only appropriate treatment.

Discussion

I. Deliberate Indifference to Serious Medical Needs.

To prevail on his Eighth Amendment claim for medical

mistreatment, Brown must show that prison officials demonstrated

“deliberate indifference to [his] serious medical needs.”

Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976). That test has both

an objective component and a subjective component. See

DesRosiers v . Moran, 949 F.2d 1 5 , 18 (1st Cir. 1991).

As the Supreme Court has noted, the Constitution “does not

mandate comfortable prisons, and only those deprivations denying

the minimal civilized measure of life’s necessities are

sufficiently grave to form the basis of an Eighth Amendment

violation.” Wilson v . Seiter, 501 U.S. 2 9 4 , 298 (1991) (citation

and internal quotation marks omitted). Consequently, under the

objective component of the deliberate indifference test, Brown

must show that he has suffered a serious deprivation of a

fundamental right or basic human need. See DesRosiers, 949 F.2d

at 1 8 . And, under the subjective component, he must demonstrate

5 that defendants were actually aware o f , yet consciously chose to

disregard, a substantial risk of serious harm to him. See Farmer

v . Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot

be found liable under the Eighth Amendment for denying an inmate

humane conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference.”). See also Id. at 838 (“an

official’s failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation,

cannot . . . be condemned as the infliction of punishment.”).

Having identified the type of evidence that is required for

an inmate to prevail on an Eighth Amendment claim it i s , perhaps,

appropriate to discuss what falls short of establishing a viable

constitutional claim. For example, it is well-established that

an Eighth Amendment medical mistreatment claim cannot be premised

on a theory of simple negligence or even a clear case of medical

malpractice. Rather, to constitute a violation of the Eighth

Amendment, a medical care provider’s conduct must go well beyond

negligence in diagnosing or treating a prisoner’s medical

condition. See Estelle, 429 U.S. at 105-06. Similarly, a

constitutional violation does not occur merely because a prisoner

6 disagrees with a medical professional’s decisions regarding the

proper course of medical treatment. See, e.g., Ruiz-Rosa v .

Rullan, 485 F.3d 1 5 0 , 156 (1st Cir. 2007) (“[S]ubstandard 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.”); Watson v .

Caton, 984 F.2d 5 3 7 , 540 (1st Cir. 1993) (“The courts have

consistently refused to create constitutional claims out of

disagreements between prisoners and doctors about the proper

course of a prisoner’s medical treatment, or to conclude that

simple medical malpractice rises to the level of cruel and

unusual punishment.”).

Instead, to violate the Eighth Amendment, the “care provided

must have been so inadequate as to shock the conscience,” Feeney

v . Corr. Med. Servs., 464 F.3d 1 5 8 , 162 (1st Cir. 2006)

(citations and internal punctuation omitted), or it must have

“constitute[d] an unnecessary and wanton infliction of pain or

[been] repugnant to the conscience of mankind,” Estelle, 429 U.S.

at 105-06 (citations and internal punctuation omitted).

II. Plaintiff’s Eighth Amendment Claim.

In support of his constitutional claim, Brown says D r .

Englander was aware that he suffered from severe back pain and,

7 notwithstanding his repeated complaints, she knowingly and

deliberately denied him appropriate treatment (in the form of

surgery). Brown goes on to assert that defendants Wrenn, McLeod,

and Gerry actively condoned D r . Englander’s failure/refusal to

provide Brown with what he says was medically necessary surgery.

But, of course, Brown is not qualified to determine whether the

surgery he seeks is “medically necessary.” Only a medical expert

can testify on such matters. And, without such expert testimony,

Brown cannot establish that D r . Englander’s alleged “refusal” to

arrange for surgery amounts to deliberate indifference to a

serious medical need.

As this court has previously noted in a substantially

similar case:

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 [plaintiff] was so substandard as to implicate the Eighth Amendment. Stated slightly differently, the medical care [plaintiff] did receive was not so obviously and shockingly deficient that the court can conclude, without the benefit of supporting expert medical testimony, that [plaintiff] is likely to prevail on his Eighth Amendment claim.

Boudreau v . Englander, 2010 WL 2108219, *3 (D.N.H. 2010). Here,

the medical treatment provided to Brown (prescription and non-

8 prescription medication designed to alleviate pain; steroid

injections; consultations with surgeons and pain-management

specialists) was not so obviously outrageous or malicious that a

lay trier-of-fact could reasonably conclude that it violated the

Eighth Amendment’s proscription against cruel and unusual

punishment.

S o , to prevail on his constitutional claims, Brown must

provide expert medical testimony. See, e.g., Robinson v . Hager,

292 F.3d 5 6 0 , 564 (8th Cir. 2002); Boring v . Kozakiewicz, 833

F.2d 4 6 8 , 473 (3d Cir. 1987). He has, however, failed to

disclose an expert witness. The time for doing so has passed,

and he has not sought an extension of that deadline. Absent such

expert medical testimony, defendants are entitled to judgment as

a matter of law on Brown’s constitutional claim.

Parenthetically, the court notes that it has attempted to

construe Brown’s opposition to summary judgment (and the

potential arguments available to him) in the most generous light

possible. As construed on preliminary review, Brown’s complaint

advances a single federal constitutional claim: “that he has a

serious medical need that requires surgical correction, and that

the prison defendants have refused to provide, or delayed in

providing, necessary treatment.” Order dated November 2 4 , 2010

9 (document n o . 9 ) at 18-19. Importantly, the court also held that

Brown’s complaint failed to state a viable Eighth Amendment claim

based upon problems he claims to have experienced obtaining

appropriate medications to manage his pain. See Id. at 17

(“Brown cannot assert a claim for deliberate indifference to his

pain based on difficulties with his medication.”).

Rather than addressing the medical sufficiency of the care

he received, however, Brown focuses exclusively on his claim to

have suffered excruciating pain - pain he says defendants knew

o f , yet failed to properly address. That, says Brown, is not

only enough to make out a viable Eighth Amendment claim, but it

is also sufficient to survive summary judgment - even without a

medical expert.

[Brown] believes no expert can opine on the amount of pain he suffered and how it was exacerbated by the repeated failure to follow through on promised referrals or treatment made by D r . Englander. He received treatment; he is not questioning that nor the sufficiency of the treatment; rather he believes it does not take an expert to determine the effect of years of excruciating pain as documented by D r . Englander herself, on an inmate paired with unmet promises of relief.

Plaintiff’s memorandum (document n o . 24) at 7 (emphasis

supplied).

10 Brown is incorrect. One can certainly imagine scenarios in

which a defendant’s conduct might be so outrageous and so

obviously undertaken either with intent to injure an inmate or

with deliberate indifference to the inmate’s well-being that

expert medical testimony would not be necessary. This, however,

is not one of those cases. In fact, Brown seems to concede as

much: “Mr. Brown has received mixed opinions from both treating

physicians and potential expert witnesses as to the best course

of treatment presently and in the past” and “the adequacy of his

treatment has not yet been determined.” Plaintiff’s motion for

voluntary nonsuit (document n o . 22) at 1 . The fact that even the

medical experts Brown consulted cannot agree as to the “best

course of treatment,” and the fact that none of those experts

appears to have opined that the care Brown did receive was

substandard, substantially undermine any claim that the treatment

he actually received from D r . Englander was so far below

acceptable medical norms as to shock the conscience or amount to

an unnecessary and wanton infliction of pain.

In short, while Brown may think that better or more

effective treatments were available to alleviate his pain, only a

medical expert can testify to such matters, and, in this case,

only a qualified expert can provide opinion evidence regarding

the adequacy or inadequacy of the care actually given. Absent

11 such expert medical testimony, Brown cannot prevail on his

constitutional claims.

III. Plaintiff’s State Law Claims.

Having concluded that defendants are entitled to judgment as

a matter of law on the sole federal claim in Brown’s complaint,

the court must next determine whether it is appropriate to

exercise supplemental jurisdiction over his state law claims of

distress.

Defendants urge the court to follow a somewhat unusual

course: They ask it to exercise supplemental jurisdiction over

Brown’s medical malpractice claim (and grant them summary

judgment), but decline to exercise supplemental jurisdiction over

his intentional infliction of emotional distress claim. That

invitation is rejected.

Section 1367 of Title 2 8 , United States Code, 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,

12 (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

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 dismissed the sole federal claim in

Brown’s complaint, and taking into consideration the factors

13 identified in both United Mine Workers and Camelio, the court

declines to exercise supplemental jurisdiction over the state law

claims in Brown’s complaint, which shall be dismissed without

prejudice.

Conclusion

The mere fact that Brown suffered severe pain as a result of

his back condition is not evidence of defendants’ deliberate

indifference to his serious medical needs. It is possible that

even if he had received cutting-edge, world-class medical care,

he still would have experienced substantial discomfort. Thus,

the fact that he was in pain - even if defendants were aware of

his suffering - is not dispositive. Rather, the critical

question presented by his Eighth Amendment claim is how

defendants responded to his medical condition - that i s , whether

they were deliberately indifferent to a serious medical

condition.

Under the circumstances presented in this case, only a

medical expert can opine as to whether the treatment provided to

Brown was so plainly improper, and that surgery was so obviously

the only means by which to address his pain, that defendants’

failure/refusal to provide such surgery amounted to deliberate

indifference to Brown’s serious medical needs. But, because

14 Brown has failed to identify a medical expert, he cannot prevail

on his Eighth Amendment claim. Consequently, as to that claim,

defendants are entitled to summary judgment. As to Brown’s

remaining state law causes of action, however, the court declines

to exercise its supplemental jurisdiction, and those claims are

Defendants’ motions for summary judgment (documents n o . 18

and 27) are granted in part, and denied in part, as discussed

above. The Clerk of Court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

Steven J./McAuliffe Jnited States District Judge

June 1 , 2012

cc: Nancy S . Tierney, Esq. Martin P. Honigberg, Esq. Lynmarie C . Cusack, Esq.