Cheney v. Carroll County HOC, et al. 10-CV-202-JD 09/29/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael G. Chenev
v. Civil No. lO-cv-202-JD Opinion No. 2 010 DNH 17 0
Carroll County House of Corrections, et a l .
O R D E R
Michael G. Cheney, proceeding pro se and in forma pauperis,
brought suit against the Carroll County House of Corrections
("CCHOC"), where he is a pretrial detainee, alleging that the
CCHOC, its former superintendent, and a former corrections
officer violated his constitutional rights by failing to provide
a residential program to treat his alcoholism. On preliminary
review, the magistrate judge determined that Cheney did not
allege a cognizable claim and recommended dismissal. Cheney
objects to the magistrate judge's report and recommendation and
moves to amend his complaint, to compel discovery, and to seal
the entire case.
I. Report and Recommendation
When an objection is filed to a magistrate judge's report
and recommendation, " [a] judge of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). The
objecting party bears the burden of identifying those parts of
the report and recommendation that are the subject of the
objection, and " [c]onclusory objections that do not direct the
reviewing court to the issues in controversy do not comply with
Rule 7 2 (b)." Velez-Padro v. Thermo King de P.R., Inc., 4 65 F.3d
31, 32 (1st Cir. 2006).
On preliminary review of a civil action brought by a
prisoner, the court must identify any cognizable causes of action
or dismiss the complaint if it is "frivolous, malicious, or fails
to state a claim upon which relief may be granted: or [] seeks
monetary relief from a defendant who is immune from such relief."
28 U.S.C. § 1915A(b). In determining whether a complaint states
a claim, the court accepts as true the well-pleaded allegations
in the complaint and takes reasonable inferences in the
plaintiff's favor. Martino v. Forward Air, Inc., 609 F.3d 1, 2
(1st Cir. 2010). To avoid dismissal, "a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v.
Twomblv, 550 U.S. 544, 570 (2007). The plausibility standard
does not require a probability but is more than a mere
2 possibility. Ashcroft v. Iqbal, 129 S. C t . 1937, 1949 (2009)
The plaintiff must allege more than legal conclusions,
unsupported accusations, and "'formulaic recitation[s] of the
elements of a cause of action.'" Id. (quoting Bell, 550 U.S. at
555) .
Cheney states that he strongly objects to the magistrate's
report and recommendation but does not specify which parts he
contests. Instead, Cheney offers additional explanation for his
claim. He states that he has not been able to obtain a copy of
his state court sentence, which he alleges recommended that he
receive treatment for alcoholism in a residential treatment
facility, and further explains that the sentence issued in the
mid-1990s. He argues that his long history of incarceration
supports his claim that his constitutional rights have been
violated by the defendants' failure to provide residential
treatment for his alcoholism.1 He also states that his counselor
1Cheney attached documents to his objection that begin with a form letter to "Attorney," requesting representation in a civil suit to show that his criminal conduct was due to his alcoholism. Cheney also included copies of a "Discharge Instruction Plan" dated September 29, 2008; a letter from New Hampshire Hospital Human Resources, stating that facility could not meet his request; a New Hampshire "Driver Record Report"; a "Program Completion Report"; an order of commitment dated December 7, 1993; an order dated May 11, 1994, pertaining to his deferred sentences; page 4 of a chemical dependency evaluation; a letter to the New Hampshire Public Defender from a pastor; a Carroll County work release form; several newspaper articles; CCDOC
3 told him that the Phoenix House provided alcoholism treatment,
although the Phoenix House stated that the Farnum Center was the
only fully equipped program. Cheney asserts that the "confusion"
was due to "an intentional and deliberate lie."
Cheney's objection does not provide the specificity required
under § 636(b)(1)(C) and Rule 72(b)(3). Nevertheless, the court
construes Cheney's objection to challenge the magistrate judge's
conclusion that he failed to allege a violation of his
constitutional rights. Because Cheney is a pretrial detainee,
his claim arises under the Fourteenth Amendment. Surprenant v.
Rivas, 424 F.3d 5, 13 (1st Cir. 2005). The standard under the
Fourteenth Amendment generally is the same as the Eighth
Amendment standard. Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st
Cir. 2007 ) .
Cheney alleges that the defendants violated his
constitutional rights by failing to provide him with alcoholism
treatment in a residential facility. "For medical treatment in
prison to offend the Constitution, the care must involve acts or
omissions sufficiently harmful to evidence deliberate
inmate request forms asking for copies of Cheney's sentence with an alcohol rehabilitation provision; letters from the Concord Police Department about Cheney's requests for documents; and letters from the New Hampshire Attorney General about Cheney's charges of assaults and theft committed against him.
4 indifference to a serious medical need." Id. at 156 (internal
quotation marks omitted). Deliberate indifference means that the
jail officer or employee was subjectively aware of facts that
support an inference of a substantial risk of serious harm and
drew the inference. Id. Deliberate indifference in the context
of a jail may be demonstrated "by the denial of needed care as
punishment and by decisions about medical care [that] are made
recklessly with actual knowledge of impending harm, easily
preventable." Id. (internal quotation marks omitted).
A "serious medical need" is a condition that is diagnosed by
a physician as requiring immediate treatment or a condition that
is so obvious that a layman would recognize the need for medical
treatment. Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir.
1990). Although alcoholism might constitute a serious medical
need in some circumstances, Cheney alleges that he required
treatment to avoid recidivism, not because of any particular
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Cheney v. Carroll County HOC, et al. 10-CV-202-JD 09/29/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Michael G. Chenev
v. Civil No. lO-cv-202-JD Opinion No. 2 010 DNH 17 0
Carroll County House of Corrections, et a l .
O R D E R
Michael G. Cheney, proceeding pro se and in forma pauperis,
brought suit against the Carroll County House of Corrections
("CCHOC"), where he is a pretrial detainee, alleging that the
CCHOC, its former superintendent, and a former corrections
officer violated his constitutional rights by failing to provide
a residential program to treat his alcoholism. On preliminary
review, the magistrate judge determined that Cheney did not
allege a cognizable claim and recommended dismissal. Cheney
objects to the magistrate judge's report and recommendation and
moves to amend his complaint, to compel discovery, and to seal
the entire case.
I. Report and Recommendation
When an objection is filed to a magistrate judge's report
and recommendation, " [a] judge of the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). The
objecting party bears the burden of identifying those parts of
the report and recommendation that are the subject of the
objection, and " [c]onclusory objections that do not direct the
reviewing court to the issues in controversy do not comply with
Rule 7 2 (b)." Velez-Padro v. Thermo King de P.R., Inc., 4 65 F.3d
31, 32 (1st Cir. 2006).
On preliminary review of a civil action brought by a
prisoner, the court must identify any cognizable causes of action
or dismiss the complaint if it is "frivolous, malicious, or fails
to state a claim upon which relief may be granted: or [] seeks
monetary relief from a defendant who is immune from such relief."
28 U.S.C. § 1915A(b). In determining whether a complaint states
a claim, the court accepts as true the well-pleaded allegations
in the complaint and takes reasonable inferences in the
plaintiff's favor. Martino v. Forward Air, Inc., 609 F.3d 1, 2
(1st Cir. 2010). To avoid dismissal, "a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v.
Twomblv, 550 U.S. 544, 570 (2007). The plausibility standard
does not require a probability but is more than a mere
2 possibility. Ashcroft v. Iqbal, 129 S. C t . 1937, 1949 (2009)
The plaintiff must allege more than legal conclusions,
unsupported accusations, and "'formulaic recitation[s] of the
elements of a cause of action.'" Id. (quoting Bell, 550 U.S. at
555) .
Cheney states that he strongly objects to the magistrate's
report and recommendation but does not specify which parts he
contests. Instead, Cheney offers additional explanation for his
claim. He states that he has not been able to obtain a copy of
his state court sentence, which he alleges recommended that he
receive treatment for alcoholism in a residential treatment
facility, and further explains that the sentence issued in the
mid-1990s. He argues that his long history of incarceration
supports his claim that his constitutional rights have been
violated by the defendants' failure to provide residential
treatment for his alcoholism.1 He also states that his counselor
1Cheney attached documents to his objection that begin with a form letter to "Attorney," requesting representation in a civil suit to show that his criminal conduct was due to his alcoholism. Cheney also included copies of a "Discharge Instruction Plan" dated September 29, 2008; a letter from New Hampshire Hospital Human Resources, stating that facility could not meet his request; a New Hampshire "Driver Record Report"; a "Program Completion Report"; an order of commitment dated December 7, 1993; an order dated May 11, 1994, pertaining to his deferred sentences; page 4 of a chemical dependency evaluation; a letter to the New Hampshire Public Defender from a pastor; a Carroll County work release form; several newspaper articles; CCDOC
3 told him that the Phoenix House provided alcoholism treatment,
although the Phoenix House stated that the Farnum Center was the
only fully equipped program. Cheney asserts that the "confusion"
was due to "an intentional and deliberate lie."
Cheney's objection does not provide the specificity required
under § 636(b)(1)(C) and Rule 72(b)(3). Nevertheless, the court
construes Cheney's objection to challenge the magistrate judge's
conclusion that he failed to allege a violation of his
constitutional rights. Because Cheney is a pretrial detainee,
his claim arises under the Fourteenth Amendment. Surprenant v.
Rivas, 424 F.3d 5, 13 (1st Cir. 2005). The standard under the
Fourteenth Amendment generally is the same as the Eighth
Amendment standard. Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st
Cir. 2007 ) .
Cheney alleges that the defendants violated his
constitutional rights by failing to provide him with alcoholism
treatment in a residential facility. "For medical treatment in
prison to offend the Constitution, the care must involve acts or
omissions sufficiently harmful to evidence deliberate
inmate request forms asking for copies of Cheney's sentence with an alcohol rehabilitation provision; letters from the Concord Police Department about Cheney's requests for documents; and letters from the New Hampshire Attorney General about Cheney's charges of assaults and theft committed against him.
4 indifference to a serious medical need." Id. at 156 (internal
quotation marks omitted). Deliberate indifference means that the
jail officer or employee was subjectively aware of facts that
support an inference of a substantial risk of serious harm and
drew the inference. Id. Deliberate indifference in the context
of a jail may be demonstrated "by the denial of needed care as
punishment and by decisions about medical care [that] are made
recklessly with actual knowledge of impending harm, easily
preventable." Id. (internal quotation marks omitted).
A "serious medical need" is a condition that is diagnosed by
a physician as requiring immediate treatment or a condition that
is so obvious that a layman would recognize the need for medical
treatment. Gaudreault v. Salem, 923 F.2d 203, 208 (1st Cir.
1990). Although alcoholism might constitute a serious medical
need in some circumstances, Cheney alleges that he required
treatment to avoid recidivism, not because of any particular
medical problem while he was incarcerated. Cheney did not allege
that his alcoholism had been diagnosed by a medical care
provider. Instead, he alleges that a sentence imposed in the
1990s included a recommendation for residential treatment for
alcoholism and that his criminal record was caused by his
alcoholism. As such, Cheney does not allege that he was
suffering from a serious medical need while housed at the CCHOC.
5 Cheney also fails to meet the deliberate indifference
requirement. Cheney's allegations do not show that the
defendants were aware that he was an alcoholic or that his
alcoholism presented a significant risk of harm to him while he
was being detained.
In addition, Cheney does not allege that the defendants
failed to provide adequate treatment. The Constitution does not
require a particular medical treatment and "disagreement about
the proper course of treatment [] does not rise to the level of a
constitutional violation." Watson v. Caton, 984 F.2d 537, 540
(1st Cir. 1993); Fiallo v. DeBatista, 666 F.2d 729, 730 (1st Cir.
1981). Cheney does not allege that he was denied all treatment
for alcoholism; he contends only that he was not provided
residential treatment.2
Therefore, Cheney fails to state a claim upon which relief
may be granted and his complaint must be dismissed. The court
approves and adopts the magistrate judge's report and
recommendation.
2In his objection, Cheney refers to a conversation with "L.A.D.A.C. counselor Pauline Duran," who advised him about treatment centers, suggesting that he was receiving counseling while detained.
6 II. Motion to Amend
Cheney also moves to amend his complaint. He states: "My
claim and proposed suit now is directed at the Carroll County
Superior Court presiding Justice Steven M. Houran and person's
[sic] employed at the Carroll County H.O.C. jail, as well as the
Carroll County district court. The presiding justice Robert C.
Varney, of which has had countless and numerous past dealings
with me." Cheney also refers to Pauline Duran as a counselor at
the jail.
To the extent Cheney intends to maintain his claim against
jail officers and employees, including his counselor, he fails to
state a claim as is discussed above. As alleged in his motion,
it is not clear what claim Cheney intends to pursue against the
judges he names. To the extent he alleges that the judges failed
to properly address his alcoholism, which is far from clear from
his motion, that claim is not supported by any factual
allegations and is also precluded by judicial immunity.3 See
Pulliam v. Allen, 466 U.S. 522, 539-40 (1970); Pierson v. Rav,
386 U.S. 547, 554 (1967); see also Phelps v. O'Toole, 2010 WL
1379810, at *1 (D. Mass. Apr. 1, 2010) . No other claim is
sufficiently alleged to allow review.
3Cheney seeks $3 million in damages.
7 Therefore, Cheney's motion to amend is denied.
III. Discovery
Cheney filed two "Motion[s] for Consideration" in which he
seeks the defendants' personnel files and other information and
information about grievances filed against the judges named in
his motion to amend. Because the claim against the defendants is
dismissed and his motion to amend is denied, the discovery Cheney
seeks is moot, and the motions are denied.
IV. Motion to Seal
Cheney asks the court to seal his entire case. In support,
he argues that he has paid the filing fee of $350 and, as a
result, the filings in the case are his property.4 Cheney is
mistaken.
A case filed in federal court and the documents filed in the
case are presumed to be public. See In re Providence Journal
C o ., Inc., 293 F.3d 1, 13-14 (1st Cir. 2002); In re Auerhahn, 650
F. Supp. 2d 107, 112 (D. Mass. 2009). Cheney offers no
persuasive reason to seal this case. Therefore, the motion is
denied.
4Contrary to his representation, Cheney is proceeding in forma pauperis and has paid only a small part of the filing fee. Conclusion
For the foregoing reasons, the court approves and adopts the
report and recommendation (document no. 7), which dismisses the
complaint. The plaintiff's motion to amend (document no. 11),
motion for consideration (document no. 16), motion for
consideration (document no. 17), and motion to seal (document no.
18) are denied.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
VJJoseph CyJitCiWu>, Ijoseph A. DiClerico, Jr. Jf\ United States District Judge
September 29, 2010
cc: Michael G. Cheney, pro se