Dominic Contino v. HC DOC

2014 DNH 082

• Court: District Court, D. New Hampshire
• Decided: April 23, 2014
• Docket: 14-CV-113-SM
• Status: Published

Opinion

Dominic Contino v. HC DOC 14-CV-113-SM 4/23/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Dominic Contino, Plaintiff

v. Case No. 14-cv-113-SM Opinion No. 2014 DNH 082 Hillsborough County Department of Corrections, Defendant

O R D E R

Pro se Plaintiff Dominic Contino’s complaint (doc. no. 1) is

before the court for preliminary review. See L.R. 4.3(d)(2);

28 U.S.C. § 1915(e). Dismissal is appropriate if the complaint

fails to state a claim or if the court lacks subject matter

jurisdiction. L.R. 4.3(d)(2); 28 U.S.C. § 1915.

The court construes the pro se complaint liberally. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding any

legal conclusions, the court considers whether the factual

content in the complaint and inferences reasonably drawn

therefrom, taken as true, state a facially plausible claim to

relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st

Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

From September of 2013 until sometime in March of 2014,

Contino was a pretrial detainee at the Hillsborough County jail.

In December, Contino tore his Achilles tendon while playing

basketball. He sought and received medical treatment at the jail, but alleges that two months went by before he was properly

diagnosed. He alleges that he should have been given a leg brace

immediately and that, because of the delay in diagnosis and

treatment, he now needs surgery.

Having filled out a standard form entitled “Complaint Under

the Civil Rights Act, 42 U.S.C. § 1983,” Contino alleges that the

defendant, Hillsborough County Department of Corrections,

committed “medical malpractice” in its diagnosis of his torn

Achilles tendon. Complt., doc., no. 1, at 2. He seeks monetary

compensation for the additional testing and surgery he now

requires to properly repair the tendon.

As a pretrial detainee, Contino’s “right to adequate medical

. . . care during his incarceration arises under the Fourteenth

Amendment’s Due Process Clause.” Fox v. Clancy, 2013 WL 3245332,

at *2 (D.N.H. June 26, 2013) (citing Suprenant v. Rivas, 424 F.3d

5, 18 (1st Cir. 2005)). In general, “the standard applied under

the Fourteenth Amendment is the same as the Eighth Amendment

standard” for convicted inmates. Ruiz-Rosa v. Rullan, 485 F.3d

150, 155 (1st Cir. 2007). “In order to state a constitutional

claim for the denial of medical . . . care,” therefore, Contino

“must allege that defendants have committed ‘acts or omissions

. . . sufficiently harmful to evidence deliberate indifference to

serious medial needs.’” Fox, 2013 WL 3245332, at *2 (quoting

Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir. 2011)).

2 A claim of medical malpractice, that is, a claim “that a

physician has been negligent in diagnosing and treating a medical

condition,” does not constitute “a valid claim of medical

mistreatment” under the constitution. Estelle v. Gamble, 429

U.S. 97, 106 (1976) (applying Eighth Amendment standard).

Even read liberally, the complaint alleges that prison

medical personnel were merely negligent, not that they acted or

failed to act in a constitutionally significant manner. The

court will assume, without deciding, that a torn Achilles tendon

is a serious medical condition. See Zeigler v. PHS Correctional

Health Care, Inc., 2012 WL 1971149, at *4 (W.D. Pa. June 1, 2012)

(finding that a ruptured Achilles tendon is a serious medical

condition and collecting cases). The facts alleged, however, do

not support an inference that the prison personnel were

deliberately indifferent to this serious medical need. Contino

was seen five times by medical personnel from December of 2013 to

the beginning of March, 2014: he was diagnosed with a sprain on

the first two visits, and a torn Achilles tendon was correctly

diagnosed on the third; x-rays were taken on the forth visit;

and, on March 4, 2014, he was taken to Elliot Hospital for

additional x-rays. Contino was released from the jail sometime

within the next three weeks. He does not allege that prison

personnel refused to treat him, or wantonly caused him

unnecessary suffering.

3 For these reasons, Contino does not state a claim arising

under federal law. This court does not, therefore, have federal

question subject matter jurisdiction over Contino’s claim. See

28 U.S.C. § 1331. The court could hear Contino’s apparent state

law medical malpractice claim under the court’s diversity of

citizenship jurisdiction if the parties were citizens of

different states. See 28 U.S.C. § 1332. But, they are not.

Dismissal, without prejudice, therefore, is necessarily

warranted, and plaintiff may seek to redress this medical

negligence claim in the available state courts.

Conclusion

The complaint is dismissed without prejudice. The Clerk

shall enter judgment in accordance with this Order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 23, 2014

cc: Dominic Contino, pro se