UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cheryl Donlon
v. Civil No. 18-cv-549-LM Opinion No. 2019 DNH 081 Hillsborough County, et al.
O R D E R
Cheryl Donlon sued Hillsborough County and five of its
employees alleging claims arising out of injuries she suffered
while in their custody and care. Defendants Hillsborough
County, Xina Barnes, Flavia Martin, Denise Ryan, and Lynda
Wheeler (“County Defendants”), move for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) as to all
Donlon’s claims.1 Doc. nos. 12, 12-1. Donlon objects and moves
for leave to amend her complaint (doc. nos. 16-17), to which the
County Defendants object (doc. no. 20). For the following
reasons, the court grants in part and denies in part Donlon’s
motion to amend. The court will postpone ruling on the motion
for judgment on the pleadings until Donlon files the amended
complaint.
1 The sixth defendant, Matthew Masewic, M.D., is represented by separate counsel. Masewic did not join in the County Defendants’ motion. STANDARD OF REVIEW
Because allowing Donlon’s proposed amended complaint would
moot the County Defendants’ motion for judgment on the
pleadings, the court must first consider Donlon’s motion to
amend. See McCusker v. Lakeview Rehab. Ctr., Inc., No. CIV. 03-
243-JD, 2003 WL 22143245, at *1 (D.N.H. Sept. 17, 2003); LR
15.1(c) (providing that, when a plaintiff files an amended
complaint with leave of the court after the filing of a motion
to dismiss for failure to state a claim, the motion to dismiss
shall be automatically denied without prejudice). Under Federal
Rule of Civil Procedure 15(a), the court should freely give
leave to amend “when justice so requires.” This liberal
standard does not mean that every request for leave to amend
should be granted. See Manning v. Boston Med. Ctr. Corp., 725
F.3d 34, 60 (1st Cir. 2013). Rather, a court may deny a request
for leave to amend when “the request is characterized by undue
delay, bad faith, futility, or the absence of due diligence on
the movant’s part.” Id. at 61 (internal quotation marks and
brackets omitted).
The County Defendants object to the requested amendment in
part on futility grounds. A “futile” amendment is one that
“would fail to state a claim upon which relief could be
granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623
2 (1st Cir. 1996). When, as here, a plaintiff files a motion to
amend in response to a motion to dismiss and discovery is not
yet complete, the futility inquiry mirrors the analysis applied
under Federal Rule of Civil Procedure 12(b)(6). Id. That is,
the court applies the same standard in considering whether a
motion to amend is futile as it does when deciding a motion to
dismiss for failure to state a claim. See id.
Under Rule 12(b)(6), the court must accept the factual
allegations in the complaint as true, draw all reasonable
inferences from those facts in the plaintiff’s favor, and
“determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71, 75
(1st Cir. 2014) (internal quotation marks omitted). A claim is
facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
BACKGROUND
The following facts are derived from Donlon’s proposed
amended complaint (doc. no. 17-1), which provides slightly more
detail than the original complaint (doc. no. 1). Donlon was
3 incarcerated as a pre-trial detainee at the Hillsborough County
House of Corrections, also known as the Valley Street Jail
(“Jail”), from July 11 to August 8, 2015. Hillsborough County
operates the Jail. Defendants Barnes, Martin, Ryan, and Wheeler
were all employees of Hillsborough County and worked as medical
care personnel at the Jail during the time Donlon was detained
there. Defendant Masewic also worked at the Jail during that
time as a medical doctor pursuant to a contract with
Hillsborough County.
Prior to Donlon’s detention, she was diagnosed with “major
depression disorder[,] generalized anxiety disorder, and
borderline personality disorder.” Doc. no. 17-1 at 3. Upon her
arrival to the Jail on July 11, medical personnel evaluated
Donlon and learned that she experienced depression and anxiety
and that she took several medications prior to being detained,
including Xanax. Medical personnel then prescribed Donlon
several medications, but not Xanax. Xanax falls within a class
of drugs known as benzodiazepines. Medical staff also did not
prescribe Donlon an alternative benzodiazepine, or anything to
treat her for benzodiazepine withdrawal.
On July 16, Donlon complained to medical staff that she was
experiencing increased anxiety, lack of sleep, and sweats, which
are well-known signs of withdrawal. Medical personnel altered
4 her prescriptions slightly but did not add anything to address
benzodiazepine withdrawal. On July 18, Donlon again complained
of these symptoms and requested that she be put back on Xanax.
Over the following week, there were several incidents during
which medical and correctional staff observed Donlon to be
disorientated, belligerent, uncooperative, and unable to control
her bowels.
On July 27, correctional officers found Donlon naked in her
cell with feces spread throughout the cell. The officers
observed that Donlon appeared delirious and was unable to comply
with their demands. The officers physically subdued her using
pepper spray and strapped her into a restraint chair, which
caused five of her ribs to fracture. That same day, medical
staff entered a note stating that Donlon may have had “delirium
due to prolong[ed] benzodiazepine . . . withdrawal.” Doc. no.
17-1 at ¶ 23. Medical staff then ordered blood work, which
revealed that Donlon was experiencing kidney failure.
On July 29, the Jail transferred Donlon to Elliot Hospital
for emergency medical care. The hospital records demonstrate
that Donlon “gradually returned to baseline after treatment for
benzodiazepine withdrawal and dehydration.” Id. at ¶ 32. She
was discharged with a prescription for Klonopin, a long-acting
benzodiazepine.
5 In June 2018, Donlon filed this suit asserting five claims
based on her allegations that defendants caused her to suffer
withdrawal from Xanax, failed to recognize her symptoms of
withdrawal, and failed to administer proper treatment. Count I
alleges a civil rights claim under 42 U.S.C. § 1983 and the
Fourteenth Amendment against all of the individually named
defendants stating that they acted with deliberate indifference
in failing to provide her adequate medical care. Count II
asserts a civil rights claim under 42 U.S.C. § 1983 and the
Fourteenth Amendment against Hillsborough County, alleging that
it had de facto policies that resulted in the provision of
inadequate medical care to Donlon. Count III asserts that
Hillsborough County discriminated against Donlon in violation of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101
et seq., and the Rehabilitation Act, 29 U.S.C. § 794. Count IV
alleges a negligence claim against Hillsborough County and Count
V asserts that Hillsborough County is vicariously liable for the
misconduct of its employees.2 The complaint also references a
violation of Donlon’s rights under the Fourth and Eighth
Amendments to the United States Constitution as well as “rights
2 This last count is titled Count “VIII,” but this appears to be a scrivener’s error.
6 secured under the laws and constitution of the State of New
Hampshire.” Doc. no. 1 at ¶ 1. Donlon requests compensatory
and punitive damages, equitable relief, and an award of
attorney’s fees and costs.
The County Defendants moved for judgment on the pleadings.
Donlon objected and moved to amend her complaint, asserting that
the amendment was aimed at curing the deficiencies highlighted
by the County Defendants. The amended complaint asserts largely
the same claims as the original complaint with some alterations
and additions. Count I remains essentially the same. Donlon
changed the title of Count II to a “Monell” claim and added
allegations that Hillsborough County knew of its employees’
unconstitutional conduct and failed to discipline them, which
reinforced the policies leading to Donlon’s injuries. In Count
III, Donlon dropped any reference to the Rehabilitation Act.
She also modified her ADA claim to assert that Hillsborough
County discriminated against her by refusing to allow the
reasonable accommodation of prescribing her Xanax. Finally, the
amended complaint combines Counts IV and V into one count of
negligence against Hillsborough County on the basis of direct
and vicarious liability. Donlon has dropped all references to
the Fourth and Eighth Amendments to the United States
Constitution and appears to have removed her request for
7 equitable relief. The County Defendants object on futility
grounds to the motion to amend.
DISCUSSION
As explained above, the court will first address Donlon’s
motion to amend. Donlon asserts that she should be permitted to
amend her complaint because the amended complaint cures the
deficiencies pointed out by the County Defendants in their
motion for judgment on the pleadings. The County Defendants
raise two objections to her motion to amend: (1) amendment
should be permitted only to the extent that her new claims
“relate back” to the original complaint because the statute of
limitations on her claims has run; and (2) amendment is futile
because the amended complaint still fails to state valid claims
for relief.3
3 Although the County Defendants object to the motion to amend, they assent to specific differences between the complaint and the amended complaint, including plaintiff’s: removal of a request for injunctive relief and references to the Fourth and Eighth Amendments, modification of certain headings, and description of plaintiff as “a pretrial detainee.” See doc. no. 20-1 at 2-3.
8 I. Timeliness of Amended Complaint
The County Defendants first argue that, because the statute
of limitations on Donlon’s claims had run at the time she moved
to amend, her amended complaint should be allowed only to the
extent that it “relates back” to her original complaint. The
court agrees that Donlon’s claims are time-barred unless they
relate back under Federal Rule of Civil Procedure 15(c).
A three-year statute of limitations applies to all Donlon’s
claims. See Owens v. Okure, 488 U.S. 235, 250-251 (1989)
(holding that § 1983 claims borrow the state statute of
limitations for general personal injury claims); Trovato v. City
of Manchester, N.H., 992 F. Supp. 493, 499 (D.N.H. 1997)
(recognizing that the ADA borrows analogous state statute of
limitations, which is the three-year statute governing personal
actions); New Hampshire Revised Statutes Annotated (“RSA”)
§ 508:4, I (providing three-year statute of limitations for all
personal actions). It is undisputed that the alleged misconduct
occurred between July 11 and August 8, 2015. Donlon filed her
complaint in June 2018, within the three-year statute of
limitations. However, she filed her request to amend the
complaint in October 2018, outside of the limitations period.
The claims asserted in the amended complaint are thus time-
9 barred unless the amended complaint “relates back” to the
original complaint under Federal Rule of Civil Procedure 15(c).
The purpose of Rule 15(c) “is to allow a plaintiff to avoid
the preclusive effect of a statute of limitations so long as
certain conditions are satisfied.” Connectu LLC v. Zuckerberg,
522 F.3d 82, 94 (1st Cir. 2008). Under Rule 15(c)(1), an
amended complaint adding additional claims relates back to the
original complaint if either: “(A) the law that provides the
applicable statute of limitations allows relation back”; or “(B)
the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be
set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(A)-
(B).
Although the County Defendants contend that Donlon’s
amended complaint should be allowed “only to the extent she is
able to relate back the additional facts and theorem,” doc. no.
20-1 at 4, defendants do not develop an argument as to why
Donlon cannot meet the Rule 15(c) standard. After comparing the
complaint with the proposed amended complaint, the court finds
that the proposed amended complaint relates back under Rule
15(c)(1)(B).
Relation back is warranted under Rule 15(c)(1)(B) if “the
original and amended [complaints] state claims that are tied to
10 a common core of operative facts.” Frederick v. State of N.H.,
No. 14-CV-403-SM, 2016 WL 4382692, at *7 (D.N.H. Aug. 16, 2016)
(quoting Mayle v. Felix, 545 U.S. 644, 664 (2005)) (brackets
omitted). Consequently, courts should focus on whether “the
alteration of the original statement is so substantial that it
cannot be said that defendant was given adequate notice of the
conduct, transaction, or occurrence that forms the basis of the
claim or defense . . . .” O’Loughlin v. Nat’l R.R. Passenger
Corp., 928 F.2d 24, 26 (1st Cir. 1991) (internal quotation marks
omitted). The court’s analysis should be directed to conduct
rather than causes of action, and new legal theories may relate
back if there is a shared basis in factual circumstances. See
Ornelas v. City of Manchester, No. 14-cv-394-LM, 2017 WL
2423512, at *4 (D.N.H. June 5, 2017). Applying these
principles, courts will typically deny amendments that “assert a
claim which was not even suggested in the original complaint,”
but routinely permit amendments that “merely make[] more
specific what has already been alleged.” Id. (internal
quotation marks omitted).
The claims asserted in both the original complaint and the
proposed amended complaint plainly arise out of a common core of
operative facts: Jail medical staff’s treatment, or lack
thereof, of Donlon’s purported benzodiazepine withdrawal.
11 Further, the proposed amended complaint does not add any new
claims. Rather, the amendment aims to refine and clarify the
counts previously alleged and bolster those claims with
additional facts. Donlon’s theory of relief in Count I remains
the same and, as to Counts II, III, and IV, the amended
complaint shifts Donlon’s theory of relief minimally. The court
concludes that the original complaint put the County Defendants
on notice of the operative facts and alleged misconduct
underlying the claims in the amended complaint. Donlon’s
amended claims therefore properly relate back to the original
complaint under Rule 15(c)(1)(B) and are not time-barred.
II. Futility
Next, the County Defendants argue that Donlon should not be
permitted to amend her complaint because any amendment is
futile. They assert that, even with the added material,
Donlon’s amended complaint fails to state claims upon which
relief may be granted. See doc. no. 20-1 at 8-15. The court
discusses each claim below.4
4The County Defendants also object to the addition or modification of several paragraphs in the “Facts” section of the proposed amended complaint. Doc. no. 20-1 at 8-9. The court permits the proposed amendments to the “Facts” section of the amended complaint.
12 A. Section 1983 Claim against Individual Defendants
In Count I of the proposed amended complaint, Donlon
alleges that certain Jail medical staff violated her
constitutional rights through their deliberate indifference to
her serious medical condition—benzodiazepine withdrawal.
Specifically, she alleges that nurses Ryan, Martin, Barnes, and
Wheeler “individually and collectively” responded with
deliberate indifference to her “life-threatening” withdrawal
from Xanax by failing to adequately monitor, treat, and promptly
obtain emergency medical care for her. Doc. no. 17-1 at ¶ 55,
59.
Section 1983 “creates a remedy for violations of federal
rights committed by persons acting under color of state law.”
Sanchez v. Pereira-Castillo, 590 F.3d 31, 40 (1st Cir. 2009)
(internal quotation marks omitted). The statute provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. A claim under § 1983 consists of three
elements: “deprivation of a right, a causal connection between
13 the actor and the deprivation, and state action.” Sanchez, 590
F.3d at 40. As to the first element, Donlon claims that her
right to due process under the Fourteenth Amendment was violated
by the deliberate indifference of Jail medical staff to her
benzodiazepine withdrawal.
“A state and its subdivisions are under a substantive
obligation imposed by the Due Process Clause of the Fourteenth
Amendment to refrain . . . from treating a pretrial detainee
with deliberate indifference to a substantial risk of serious
harm to health.” Coscia v. Town of Pembroke, Mass., 659 F.3d
37, 39 (1st Cir. 2011); see also Burrell v. Hampshire Cty., 307
F.3d 1, 7 (1st Cir. 2002) (recognizing that claims of deliberate
indifference by pretrial detainees are governed by the same
standard applied to prisoners under the Eighth Amendment). A
claim that a state actor treated a pretrial detainee’s serious
medical condition with deliberate indifference has two
components: one objective and one subjective. See Zingg v.
Groblewski, 907 F.3d 630, 635 (1st Cir. 2018). As to the
objective component, the plaintiff must show that she had “a
medical need 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.”
Id. (internal quotation marks omitted). Second, she must
14 establish that defendants subjectively “possessed a sufficiently
culpable state of mind” when treating her. Id. Evidence
demonstrating the requisite state of mind may take many forms,
including evidence that a defendant had actual knowledge of an
easily preventable impending harm, but failed to take action
that would have averted the harm. See id.
The County Defendants argue that Count I is deficient in
that it fails to set out specific misconduct attributable to
each named nurse. See doc. nos. 20-1 at 10. The defendants
assert that, although Donlon alleges wrongdoing by the medical
staff in general, she does not particularize her allegations
with misconduct attributable to each individual. Donlon does
not respond to this specific argument. See doc. nos. 16-17.
The court agrees with defendants that the allegations are
insufficient.
A complaint must “give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted).
This requirement is typically met when the allegations identify
each defendant’s role in the wrongdoing or what each defendant
allegedly did to wrong the plaintiff. See, e.g., Cordell v.
Howard, 879 F. Supp. 2d 145, 156 (D. Mass. 2012) (finding
sufficient facts alleged to state claim of deliberate
15 indifference where plaintiff described each defendant’s role in
the unconstitutional conduct).
In their motion for judgment on the pleadings, the County
Defendants raise the same argument: that Count I must be
dismissed because it fails to give each individual nurse notice
of the specific allegations against her. Doc. no. 12-1 at 3-4.
Thus, despite having notice of this argument, Donlon did nothing
to cure this deficiency in the proposed amended complaint. The
proposed amended complaint alleges that the nurses, along with
others, were “responsible for providing skilled nursing care to
the inmates at” the Jail, including Donlon. Doc. no. 17-1 at
¶ 11, 55. It further makes general allegations of misconduct,
such as the “defendants and other medical staff” were aware
Donlon was suffering a serious medical condition, and
“defendants” failed to adequately monitor her. Id. at ¶¶ 57-58.
But there are no allegations regarding any specific
interactions, observations, evaluations, or medical care each
individual nurse provided, or failed to provide, to Donlon.5
5 This lack of specificity as to each nurse’s conduct stands in contrast to Donlon’s allegations against Masewic. Donlon alleges that: Masewic received multiple requests from other medical staff to address Donlon’s withdrawal symptoms; he examined Donlon on at least three occasions; Donlon “begged” him to allow her to resume taking Xanax; and he was later advised of her worsening condition but did nothing to address her withdrawal symptoms. Doc. no. 17-1 at ¶¶ 47-48.
16 Donlon’s general allegations are insufficient to put each
individual nurse on notice of the specific conduct underlying
the claims against her. See Andreozzi v. Grondolsky, No. CIV.A.
11-11813-RWZ, 2013 WL 3984593, at *4 (D. Mass. Aug. 2, 2013)
(granting motion to dismiss deliberate indifference claim where
pleadings made it “difficult to identify what each defendant
ha[d] allegedly done with respect to [plaintiff’s] medical
treatment and how it harmed him”). The proposed amended
complaint also fails to set out facts underlying the subjective
component of a deliberate indifference claim: the requisite
culpable state of mind. See Zingg, 907 F.3d at 635. There are
no factual allegations particular to each defendant
demonstrating, for example, that each person had knowledge of
Donlon’s condition and knew that it was easily preventable but
did nothing.6 Accordingly, as amendment of Count I would be
futile, Donlon’s motion to amend as to that Count is denied.7
6 Because Donlon is represented by counsel, she is not entitled to the “latitude” afforded to pro se parties. Cf. White v. Ortiz, No. 13-CV-251-SM, 2015 WL 5331279, at *5 (D.N.H. Sept. 14, 2015) (“Additionally, it probably bears noting that [plaintiff] is proceeding pro se and is, therefore, entitled to a bit more latitude than a party who is represented by counsel.”). 7 The County Defendants also contend that amendment of Count I is futile because the nurses are entitled to qualified immunity. Because the court dismisses Count I on futility grounds, the court need not address this argument.
17 B. Monell Claim against Hillsborough County
In Count II of the proposed amended complaint, Donlon
asserts a “Monell” claim against Hillsborough County under 42
U.S.C. § 1983, alleging that the county had certain policies,
practices, or customs that caused the deprivation of her
constitutional rights. In Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978), the Supreme
Court held that municipalities may be held liable under § 1983
for monetary, declaratory, or injunctive relief, id. at 690.
Like natural persons, a municipality or other local government
may be liable under § 1983 if it subjects a person to a
deprivation of rights or causes a person to be subjected to a
deprivation of rights. Connick v. Thompson, 563 U.S. 51, 60
(2011). However, municipalities may only be held responsible
for “their own illegal acts.” Id. (internal quotation marks and
emphasis omitted). They may not be held vicariously liable for
their employees’ misconduct. Id.
To prove a Monell claim, a plaintiff must show that “action
pursuant to official municipal policy caused her injury.” Id.
(internal quotation marks omitted). “Official municipal policy
includes the decisions of a government’s lawmakers, the acts of
its policymaking officials, and practices so persistent and
18 widespread as to practically have the force of law.” Id. at 61.
While a “policy” originates from a “top-down affirmative
decision of a policymaker,” a more informal custom or practice
“develops from the bottom-up.” Baron v. Suffolk Cty. Sheriff’s
Dep’t, 402 F.3d 225, 236 (1st Cir. 2005)(internal quotation
marks omitted), abrogation on other grounds recognized in
Jennings v. Jones, 587 F.3d 430, 438 n.10 (1st Cir. 2009); see
also Monell, 436 U.S. at 691 (observing that claim may be based
on custom that “has not received formal approval through the
[municipal] body’s official decisionmaking channels”).
When a Monell claim is based on an informal custom or
practice, the court must determine whether the custom is “fairly
attributable to the municipality.” Baron, 402 F.3d at 236.
“This standard is met when a custom is so well settled and
widespread that the policymaking officials of the municipality
can be said to have either actual or constructive knowledge of
it yet did nothing to end the practice.” Id. at 236-37
(internal quotation marks omitted). In addition to showing that
the practice is fairly attributable to the municipality, a
plaintiff must show that the practice was “the cause of and the
moving force behind the deprivation of constitutional rights.”
Id. at 237 (internal quotation marks omitted).
19 In the proposed amended complaint, Donlon alleges that
Hillsborough County had the following de facto policies that
resulted in deliberate indifference to her serious medical
condition: “denying medication that had been legally prescribed”
prior to the inmate’s incarceration; “denying inmates needed
medical care and treatment pending approval by the Hillsborough
County Commissioners”; and “denying inmates appropriate
withdrawal medication.” Doc. no. 17-1 at ¶¶ 62-63. Because
Donlon alleges that “de facto” policies, not an official policy,
caused her harm, the court must consider whether her
allegations, viewed in the light most favorable to her, are
sufficient to show the existence of a custom attributable to the
municipality. See Baron, 402 F.3d at 236-37. The County
Defendants argue that her allegations are insufficient to show
the requisite link between the de facto policies and the
municipality.
Accepting all factual allegations as true and drawing all
reasonable inferences in Donlon’s favor, there are sufficient
facts in the amended complaint supporting her Monell claim based
on the Jail’s alleged custom of denying appropriate withdrawal
medication and treatment. The proposed amended complaint
alleges that medical staff requested that defendant Masewic
address Donlon’s withdrawal symptoms on at least five occasions,
20 but he refused to do so. Doc. no. 17-1 at ¶ 47; see Howard v.
Wilkinson, 305 F. Supp. 3d 1327, 1336 (M.D. Fla. 2018) (finding
complaint plausibly alleged a “custom” supporting municipal
liability based on facts that four separate jail nurses visited
plaintiff as he lay dying but provided no medical care).
Further, the amended complaint alleges that the Jail has
received “numerous prior complaints involving inadequate medical
care and inattention to inmates, including inadequate care given
during drug withdrawal.” Doc. no. 17-1 at ¶ 52. She also
alleges that, after her discharge, Hillsborough County learned
of the individual defendants’ unconstitutional conduct towards
her but failed to discipline its employees, thereby reinforcing
the de facto policy. Though sparse, taken as true and viewed in
the light most favorable to Donlon, these facts raise the
inference that Hillsborough County policymakers had actual or
constructive knowledge of the custom of denying care to inmates
for withdrawal from certain drugs, but did nothing to rectify
that custom.
Donlon also alleges that this custom caused the harm she
suffered. This allegation is sufficient to allege causation
when viewed in light of the facts in the proposed amended
complaint that describe Donlon’s benzodiazepine withdrawal, lack
of treatment, and hospitalization. Construed generously,
21 Donlon’s proposed amended complaint provides enough facts to
state a viable Monell claim. As to Count II, Donlon’s motion to
amend is allowed.
C. ADA Claim against Hillsborough County
In Count III of the proposed amended complaint, Donlon
asserts that Hillsborough County violated her rights under Title
II of the ADA. She contends that she suffered from disabling
mental illnesses (major depression, anxiety, and borderline
personality disorder), that she requested the accommodation of
prescription Xanax to enable her to function, and that
Hillsborough County refused her accommodation. Hillsborough
County argues that, even as amended, this count fails to set out
all the elements of an ADA claim and essentially makes out a
claim for inadequate medical treatment, which is not actionable
under the ADA.
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.” 42 U.S.C. §
12132. The Supreme Court has held that state and local prisons
qualify as “public entities” under the ADA. See Pa. Dep’t of
22 Corr. v. Yeskey, 524 U.S. 206, 213 (1998). A plaintiff seeking
relief under Title II must show “(1) that [s]he is a qualified
individual with a disability; (2) that [s]he was excluded from
participating in, or denied the benefits of a public entity’s
services, programs, or activities or was otherwise discriminated
against; and (3) that such exclusion, denial of benefits, or
discrimination was by reason of [her] disability.” Kiman v.
N.H. Dep’t of Corr., 451 F.3d 274, 283 (1st Cir. 2006) (internal
A plaintiff can pursue several different theories of
disability discrimination. See Nunes v. Mass. Dep’t of Corr.,
766 F.3d 136, 144-45 (1st Cir. 2014). Donlon raises an
“accommodation” claim here. Under an accommodation theory, a
plaintiff may claim “that a public entity has refused to
affirmatively accommodate his or her disability where such
accommodation was needed to provide meaningful access to a
public service.” Id. at 145 (internal quotation marks omitted).
Donlon has alleged sufficient facts supporting her ADA
claim to survive a motion to dismiss. She alleges that she had
several mental impairments—depression, anxiety, and borderline
personality disorder—that substantially limited her ability to
perform daily tasks, such as taking care of herself. Doc. no
17-1 at ¶ 8; see Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st
23 Cir. 2002) (explaining that one way to prove disability is to
demonstrate a mental or physical impairment that substantially
limits one or more of plaintiff’s major life activities); 42
U.S.C. § 12102(2)(A) (defining “major life activities” as
including “caring for oneself”). She alleges that she was
otherwise qualified to participate in all programs and services
at the Jail, including receipt of medical treatment. Doc. no.
17-1 at 8, 76.
Medical care is “one of the services, programs, or
activities covered by the ADA.” Kiman, 451 F.3d at 284
(internal quotation marks omitted). Donlon claims that she was
denied the benefits of the Jail's medical care in that medical
staff caused her to undergo benzodiazepine withdrawal, refused
her requested accommodation of putting her back on Xanax, and
failed to treat her in any way for the withdrawal. Doc. no. 17-
1 at ¶¶ 16, 18-27, 40, 47-49.
Finally, Donlon alleges that this denial of medical care
was because of her disability. ADA claims involving medical
care “must be framed within some larger theory of disability
discrimination.” Kiman, 451 F.3d at 284 (internal quotation
marks omitted). Specifically, a plaintiff must show either
that: (1) the medical decision or treatment “was so unreasonable
. . . as to imply that it was a pretext for some discriminatory
24 motive;” or (2) that the decision or treatment “was
discriminatory on its face, because it rested on stereotypes of
the disabled rather than an individualized inquiry into the
patient’s condition.” Id. at 284-85 (internal quotation marks
omitted).
The facts alleged raise a plausible inference of such
unreasonable care that would imply pretext for a discriminatory
motive. Donlon brought her withdrawal symptoms to the attention
of medical staff on multiple occasions. Doc. no. 17-1 at ¶¶ 16,
18, 48. Jail staff then observed her acting disoriented,
confused, and unable to maintain personal hygiene over the
course of the week prior to her hospitalization. Id. at ¶¶ 19-
23, 26-27. After Jail staff found Donlon naked and delirious in
her cell with feces smeared throughout, they waited two days
before transferring her to the hospital. See id. at ¶¶ 25-28.
Additionally, Donlon alleges that defendants’ refusal to
accommodate her disability was “the result of their perception
and stereotyping of her as a woman suffering from a mental
disability” rather than the result of “an individualized inquiry
into [her] genuine medical needs.” Id. at ¶¶ 81, 84. There are
some facts in the record to support the notion that defendants
negatively stereotyped Donlon because of her disability. Donlon
claims that while subduing her, correctional staff “teased her
25 and ridiculed her” and that Masewic “made light” of the
withdrawal symptoms Donlon was suffering. Id. at ¶¶ 48, 80.
Viewed generously, these allegations are sufficient, at this
early stage, to state a claim of discrimination under Title II
of the ADA. See Smith v. Aroostook Cty., ___ F. Supp. 3d ___,
2019 WL 1387684, at *9-10, *12 (D. Me. Mar. 27, 2019) (granting
preliminary injunction and finding likelihood of success on
merits of plaintiff’s ADA claim that jail discriminated against
her by denying her medication to treat her opioid use disorder
and prevent painful withdrawal symptoms), aff’d ___ F.3d ___,
2019 WL 1922847, (1st Cir. Apr. 30, 2019) (per curiam).
Donlon’s motion to amend as to Count III is allowed.
D. Negligence Claim against Hillsborough County
In Count IV of the proposed amended complaint, Donlon
claims that Hillsborough County should be held directly liable
for its negligence and vicariously liable for its employees’
negligence in failing to adequately monitor her, treat her for
benzodiazepine withdrawal, and promptly obtain her emergency
medical care. Hillsborough County argues that amendment of this
claim is futile because, even as amended, such claim is barred
by New Hampshire’s municipal immunity statute, RSA chapter 507-
B.
26 Under RSA 507-B:5, “[n]o governmental unit shall be held
liable in any action to recover for bodily injury, personal
injury or property damage except as provided by this chapter or
as is provided or may be provided by other statute.” A
“governmental unit” is “any political subdivision within the
state including any county . . . or departments or agencies
thereof.” RSA 507-B:1, I. The term “personal injury” includes
“[a]ny injury to the feelings or reputation of a natural person,
including but not limited to . . . mental injury [and] mental
anguish.” RSA 507-B:1, III(a). And “bodily injury” holds its
plain language meaning under the statute. See RSA 507-B:1, II.
Donlon’s claims plainly fall within the reach of the
municipal immunity statute. First, Hillsborough County, as a
political subdivision of the state of New Hampshire, is a
“governmental unit.” Second, Donlon’s claims are for bodily
injury and personal injury as defined by RSA 507-B:1. She
alleges that, as a result of Hillsborough County’s employees’
conduct, she “was injured and suffered extreme pain and mental
anguish.” Doc. no. 17-1 at ¶ 99. Under RSA 507-B:5,
Hillsborough County is therefore immune from Donlon’s negligence
claim unless a specific statutory exception applies. See RSA
507-B:5; Martineau v. Antilus, No. 16-CV-541-LM, 2017 WL
2693491, at *3 (D.N.H. June 22, 2017).
27 Donlon does not cite any exception to municipal immunity
provided in RSA chapter 507-B that would apply to her claim.
See, e.g., RSA 507-B:2 (waiving immunity for actions to recover
for injuries caused by a governmental unit’s “fault or by fault
attributable to it, arising out of ownership, occupation,
maintenance or operation of all motor vehicles, and all
premises”). Nor does she cite an exception to municipal
immunity provided by any other statute.
Instead, Donlon appears to argue that granting Hillsborough
County immunity would violate her rights under the Equal
Protection Clauses of the Federal and State Constitutions. See
doc. nos. 17 at 4, 17-1 at ¶¶ 96-97. Donlon cites no authority
in support of this argument. To the extent Donlon seeks to
raise an equal protection claim, she has done so in a manner
that is insufficient and unpersuasive. See Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999)
(“The district court is free to disregard arguments that are not
adequately developed . . . .”); Pukt v. Nexgrill Indus., Inc.,
No. 14-CV-215-JD, 2016 WL 4444719, at *1 n.1 (D.N.H. Aug. 23,
2016) (refusing to consider party’s insufficiently developed
argument); United States v. $572,204 in U.S. Currency, More or
Less, 606 F. Supp. 2d 153, 155 n.1 (D. Mass. 2009) (declining to
28 address claims raised in motion to suppress but not developed in
supporting memorandum).
Donlon has not identified any exception to the municipal
immunity granted under RSA 507-B:5. The court concludes that
Hillsborough County is immune from Donlon’s negligence claims.
Donlon’s motion to amend Count IV is therefore denied as futile.
CONCLUSION
For the foregoing reasons, Donlon’s motion to amend (doc.
no. 17) is granted as to Counts II and III, amendments made to
the “Facts” section, and amendments to which the County
Defendants assent. The motion to amend is otherwise denied,
specifically as to Counts I and IV. On or before May 23, 2019,
Donlon shall file an amended complaint that conforms with this
order (i.e., asserting Counts II and III, and Count I insofar as
it asserts a claim against Masewic). Once the amended complaint
is filed, the court will deny as moot the motion for judgment on
the pleadings (doc. no. 12).
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
May 9, 2019 cc: Counsel of Record