UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Jacob William Johnson
v. Civil No. 20-cv-398-SE Opinion No. 2022 DNH 113 Celia Englander et al.
ORDER
In this action, the plaintiff Jacob William Johnson filed a
complaint1 pursuant to 42 U.S.C. § 1983, asserting claims against
a number of current and former employees of the New Hampshire
Department of Corrections (“DOC”), alleging that each of the
defendants violated his federal constitutional rights, and
rights under state law, during his incarceration at the New
Hampshire State Prison for Men (“NHSP”).2 Two defendants, Wendy
1 The “complaint” is comprised of the original complaint (doc. no. 1) and Johnson’s amendments and addenda thereto (doc. nos. 11-13, 16, 39-45, 51, 54-59, 63), some of which were filed after the pending motions to dismiss. See Endorsed Order, dated Apr. 14, 2022 (Johnstone, J.); Endorsed Order, dated Mar. 15, 2022 (Johnstone, J.) (granting plaintiff’s motions to amend).
2 At the time of the events underlying this action, Johnson was a Florida Department of Corrections (“FDOC”) prisoner serving his sentence at the NHSP. The FDOC website indicates that Johnson was placed on supervised release, in Florida, on April 27, 2022. See FDOC Supervised Population Information Search, www.dc.state.fl.us/offenderSEarch/detail.aspx?Page=Detail&DCNumbe r=Q61472&TypeSearch=AO, last visited Sept. 1, 2022. Giroux3 and John Lombard, both of whom Johnson describes as
registered nurses, have filed motions to dismiss certain claims
Johnson has asserted against them under Federal Rule of Civil
Procedure 12(b)(6). Doc. no. 33 (Giroux’s motion); Doc. no. 34
(Lombard’s motion). For the reasons that follow, the court
denies both motions.
Background
Johnson has a urological condition known as a “false
passage” in his penis. Doc. no. 1 at 14 (capitalization
omitted). As a result of that condition, “[t]he primary
passage in [his] urethra is prone to frequent blockage which
requires that [he] use a catheter to empty [his] bladder.”
Id. During the times relevant to the claims addressed here,
Johnson was using a Foley catheter pursuant to the
prescription of a urologist, which had to be changed at least
every thirty days by the medical staff at the NHSP. See id.
Improper administration of his Foley catheter “can lead to
acute urinary retention (overfull bladder) and urinary tract
infection.” Id. Johnson asserts that the incidents underlying
the claims at issue here “are examples of occurrences where
3 Johnson apparently misspelled Giroux’s last name in his complaint; the court spells her name as it is spelled in her motion to dismiss.
2 denial of medical care caused pain from acute urinary
retention and urinary tract infection.” Id.
Johnson filed, as an addendum to his complaint, a
February 17, 2017 DOC “Off-Site/Consult Order.” Doc. no. 41
at 2 (“OS/CO”).4 That document indicates that on February 17,
2017, Dr. Celia Englander, a physician treating Johnson at
the NHSP, directed that an appointment be scheduled for
Johnson at Manchester Urology Association for a urodynamic
study “as recommended by Urology as evaluation of severe
urinary frequency.”5 Id. According to the OS/CO, Dr. Englander
requested that the appointment with Manchester Urology be
scheduled for March 1, 2017. See id. The record before the
court does not reveal whether that appointment occurred on
that date.
Johnson asserts that on March 2, 2017, he was in urinary
retention and therefore unable to empty his bladder. See doc.
no. 1 at 26. Johnson states that he saw Giroux about his
4 The instant motions to dismiss were filed February 16, 2022. Johnson filed the OS/CO on February 24, 2022. That document, therefore, was not available to the defendants prior to their filing of these motions. Neither defendant has supplemented their motion to dismiss in response to the OS/CO.
5 “Urodynamic testing is any procedure that looks at how well parts of the lower urinary tract – the bladder, sphincters, and urethra – work to store and release urine.” www.niddk.nih.gov/health-oinformation/diagnostic- tests/urodynamic-testing, last visited Sept. 2, 2022.
3 urinary retention that day, but she failed to identify his
urinary retention. See id. As a result, that condition
progressed to a painful acute urinary retention. See id.
Johnson alleges that on other unspecified dates, his
Foley catheter clogged and needed to be changed.6 See id. On
those occasions, when Johnson asked Giroux to change his
catheter and recatheterize him, “[s]he rudely told [him] she
didn’t feel like it and refused to help [him].” Id. Johnson
further asserts that Giroux “is responsible for many
situations that ultimately neglected [him] due to
incompetence.” Id.
According to his complaint, on March 3, 2017, Johnson
sought emergency help from Lombard because he was “experiencing
acute urinary retention.” Id. at 17. Lombard initially refused
to evaluate Johnson. See id. Johnson states that Lombard
eventually saw him, but that Lombard “wasn’t sincere about
helping [him] get catheterized” or helping him get to a hospital
or other outside medical facility for emergency care. Id.
Johnson further alleges that Lombard did not use a bladder
6 Although Johnson provides no specific dates on which he saw Giroux for assistance with his Foley catheter, he does report that he had the Foley catheter for approximately six months after he arrived at the NHSP and thereafter was given single-use catheters that he could use himself. See doc. no. 1 at 14.
4 scanner to determine the source of Johnson’s urological
symptoms. See id.
II. Claims Asserted Against the Defendants
Magistrate Judge Andrea K. Johnstone conducted a
preliminary review of the original, pre-supplemented version of
the complaint in this matter (doc. no. 1), see 28 U.S.C. §
1915(a) and LR 4.3(d)(1), and identified the following three
claims, as relevant to the pending motions, as having been
asserted against Giroux and Lombard in their individual
capacities7:
1. Defendants violated Mr. Johnson’s Eighth Amendment right to receive adequate medical care for his serious medical needs related to his false passage and urinary tract problems and are liable to him for negligence or professional malpractice under state law, in that:
. . .
(c) DOC/NHSP Nurse Wendy Gi[r]oux:
i. on March 2, 2017, failed to identify Mr. Johnson’s urinary retention, resulting in a progression of his condition to acute urinary retention; and
7In addition to the claims set forth here, Johnson asserted a claim, identified as Claim 8, against Giroux, and a claim, identified as Claim 1(d)(ii), against Lombard. In her Report and Recommendation dated December 15, 2021, Judge Johnstone recommended that both of those claims be dismissed. Doc. no. 7 at 5, 14, 21-22, 25-26. Judge Johnstone also recommended dismissal of all of Johnson’s claims asserted against any defendant in his or her official capacity. Id. at 15.
5 ii. refused, on more than one occasion, to catheterize Mr. Johnson when his Foley catheter was clogged, stating that “she didn’t feel like it,” Compl. at 26.
(d) DOC/NHSP Nurse John Lombard:
i. on March 3, 2017, delayed evaluating Mr. Johnson when Mr. Johnson was experiencing a medical emergency due to acute urinary retention and, when he eventually saw Mr. Johnson, failed to catheterize him, failed to have Mr. Johnson seen at a hospital, and failed to use a bladder scanner to evaluate Mr. Johnson’s condition[.]
Doc. no. 7 at 5. Judge Johnstone directed service of Claims
1(c)(i)-(ii) upon Giroux and Claim 1(d)(1) upon Lombard. Doc.
no. 8. Giroux and Lombard each filed a motion to dismiss
pertaining to the above-listed claims.
Discussion
I. Rule 12(b)(6) Standard
To survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), “a complaint must provide ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,’” with “enough factual detail to make the
asserted claim ‘plausible on its face.’” Legal Sea Foods, LLC v.
Strathmore Ins. Co., 36 F.4th 29, 33 (1st Cir. 2022) (quoting,
inter alia, Fed. R. Civ. P. 8(a)(2) and Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). The court’s assessment of plausibility
6 “is ‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’”
Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 70
(1st Cir. 2021) (quoting Iqbal, 556 U.S. at 679). To make the
plausibility determination, the court “accept[s] as true all
well-pleaded facts alleged in the complaint and draw[s] all
reasonable inferences therefrom in the [plaintiff]’s favor,” but
“credit[s] neither conclusory legal allegations nor factual
allegations that are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture.”
Legal Sea Foods, 36 F.4th at 33 (quotations omitted). Because
Johnson is representing himself in this matter, the court
construes his pleadings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam).
“Affirmative defenses may be raised on a motion to dismiss
under Rule 12(b)(6) so long as the facts establishing the
defense are clear from the face of the complaint as supplemented
by matters fairly incorporated within it and matters susceptible
to judicial notice.” Monsarrat v. Newman, 28 F.4th 314, 318 (1st
Cir. 2022) (quotation omitted). “Dismissal based on an
affirmative defense is appropriate only where there is no doubt
that the plaintiff’s claim is barred by the raised defense.” Id.
(quotation omitted).
7 II. Statute of Limitations–Claims 1(c)(i) and 1(d)(i)
A. Length, Accrual, and Tolling of Limitations Period
In general, claims arising under § 1983 borrow the statute
of limitations applicable to personal injury claims in the state
in which the events underlying the claims occurred. See Fincher
v. Town of Brookline, 26 F.4th 479, 485–86 (1st Cir. 2022). In
New Hampshire, such claims are subject to a three-year
limitations period. See McNamara v. City of Nashua, 629 F.3d 92,
95 (1st Cir. 2011) (citing N.H. Rev. Stat. Ann. § 508:4, I).
While state law controls the length of the limitation period,
“federal law controls when the cause of action accrues.”
Fincher, 26 F.4th at 486. Ordinarily, a § 1983 claim accrues
“when a plaintiff knows or has reason to know of his injury.”
Id. (quotation omitted). Additionally, when the court applies
the limitations period dictated by state law to a § 1983 claim,
the court also borrows the state’s rules for tolling the
limitations period. See Ouellette v. Beaupre, 977 F.3d 127, 135
(1st Cir. 2020).
B. Analysis
1. Accrual Date and Filing Deadline
In this case, Johnson had reason to know of the injuries he
alleges resulted from the incidents underlying Claims 1(c)(i)
and 1(d)(i) on the dates they occurred, March 2 and 3, 2017.
8 Therefore, those claims accrued on those dates. Absent equitable
tolling, Johnson’s deadline to file Claim 1(c)(i) against Giroux
was March 2, 2020, and his deadline to file Claim 1(d)(i)
against Lombard was March 3, 2020.
The defendants each contend that Johnson’s complaint should
be deemed filed on the date that it was received by the court,
March 31, 2020, which is almost thirty days after the
limitations period expired as to Claims 1(c)(i) and 1(d)(i).
However, in a § 1983 action, the “mailbox rule” provides that a
pro se prisoner’s court filing is deemed filed on the date he
delivered it to prison authorities to be mailed. See Casanova v.
Dubois, 304 F.3d 75, 79 (1st Cir. 2002). Accordingly, for the
purposes of ruling on the instant motions, the court deems
Johnson’s original complaint to have been filed on the date it
was signed, March 19, 2020,8 which still exceeds the three-year
limitations period ordinarily applicable to a § 1983 claim by
seventeen days. If, however, New Hampshire law could equitably
toll his claims at issue here for at least seventeen days,
Johnson’s claims would not be time-barred.
8 Each defendant’s motion states that the original complaint was signed on March 17, 2020. To the court’s eye, the original complaint was signed on March 19, 2020. Doc. no. 1 at 11. The distinction does not affect the court’s ruling on these motions.
9 2. Equitable Tolling
In New Hampshire, the limitations period for a claim is
tolled “during a pending administrative proceeding if that
proceeding is a prerequisite to a civil action.” Chase Home for
Child. v. N.H. Div. Child., Youth & Fams., 162 N.H. 720, 729
(2011). Under the Prison Litigation Reform Act (“PLRA”), a
prisoner is required to exhaust all the administrative remedies
available to him with regard to a particular incident before
filing a § 1983 action concerning that incident. See 42 U.S.C. §
1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.”); Ross v. Blake, 578 U.S. 632,
639 (2016) (exhaustion of administrative grievances is mandatory
under the PLRA); Porter v. Nussle, 534 U.S. 516, 524, 532 (2002)
(“the PLRA’s exhaustion requirement applies to all inmate suits
about prison life”).
The administrative grievance procedures in effect at the
DOC in March of 2017 were set forth in Policy and Procedure
Directive (“PPD”) 1.16 (eff. May 1, 2016).9 PPD 1.16 described a
9 The DOC’s PPDs were renumbered sometime after March of 2017.
10 three-tiered grievance system in which a DOC prisoner is
afforded thirty days from the date of an incident to file his
first-level complaint concerning that incident. See PPD
1.16(IV)(A)(1). Prison officials then had up to thirty days to
respond to that complaint. See id., ¶ (A)(5). If that complaint
were denied, the prisoner had thirty days from the date of
denial to file a second-level grievance with the warden of his
facility, see id., ¶ (B)(1), who then had up to forty-five days
to respond, see id., ¶ (B)(5). If the warden denied the
prisoner’s second-level grievance, the prisoner had thirty days
from the date of that denial to file his third-level grievance
to the DOC Commissioner, see id., ¶ (C)(1), who then had up to
forty-five days to respond, see id., ¶ (C)(5).
Here, Johnson has indicated in his complaint that he fully
exhausted the claims asserted in this action—an assertion that
neither defendant challenges. Complete exhaustion of the DOC’s
grievance procedures was a prerequisite to bringing this suit,
and therefore, the three-year limitations period applicable to
this lawsuit may be equitably tolled for the period of time
during which Johnson was exhausting the DOC’s administrative
remedies, a process which, as described above, could have taken
significantly longer than seventeen days. Because Johnson’s
exhaustion of the DOC’s administrative grievances could well
have been pending for more than seventeen days, the court finds
11 that Johnson may be entitled to equitable tolling of the three-
year limitations period applicable here, such that Claims
1(c)(i) and 1(d)(i) would be deemed timely filed. The
defendants, therefore, have failed to demonstrate, as to Claims
1(c)(i) and 1(d)(i), that there is “no doubt that the
plaintiff’s claim is barred” by the statute of limitations.
Monsarrat, 28 F.4th at 318 (quotation omitted). Accordingly,
Giroux’s motion to dismiss Claim 1(c)(i) is denied, and
Lombard’s motion to dismiss Claim 1(d)(i) is denied. The court
now turns to the only remaining claim at issue—Claim 1(c)(ii)
against Giroux—which Giroux seeks to have dismissed for failure
to state a claim for relief under the Eighth Amendment.
III. Sufficiency of Complaint’s Allegations–Claim 1(c)(ii)
A. Eighth Amendment Standard
To state an Eighth Amendment claim upon which relief may be
granted based upon a prisoner’s alleged denial of adequate
medical care, the plaintiff must assert facts to demonstrate
that he has a serious medical need requiring treatment, and that
he was denied such treatment by a defendant acting with
deliberate indifference to his serious medical need. See
Abernathy v. Anderson, 984 F.3d 1, 3 (1st Cir. 2020). A serious
medical need is one that is diagnosed by a physician as
mandating treatment, or that is “so obvious that a lay person
12 would easily recognize the necessity for a doctor’s attention.”
Snell v. Nelville, 998 F.3d 474, 495 (1st Cir. 2021) (quotation
omitted).
“Deliberate indifference appears when defendants had a
‘sufficiently culpable state of mind’ by ignoring (or worsening)
the inmate’s serious medical need.” Id. at 497 (quoting Farmer
v. Brennan, 511 U.S. 825 834 (1994)). Deliberate indifference is
“more than negligence, . . . yet it need not be intentional
harm. The defendants must have known of the risk of harm to the
plaintiff and disregarded it.” Id. (quotation and citation
1. Serious Medical Need and Deliberate Indifference
In Claim 1(c)(ii), Johnson alleges that Giroux failed to
provide him with adequate medical care for a serious medical
need when, on more than one occasion, she refused to catheterize
Johnson when his Foley catheter was clogged, and that she did so
with deliberate indifference to his serious medical need. Giroux
asks the court to dismiss that claim “because the plaintiff
failed to allege a cognizable injury, failed to identify when
the alleged events occurred, and failed to allege that Nurse
Giroux acted with deliberate indifference to his medical
13 needs.”10 Doc. no. 33 at 2. Giroux also asserts that Claim
1(c)(ii) is subject to dismissal because Johnson has failed to
assert facts which demonstrate either that a urologist diagnosed
his medical condition, or that Giroux is herself a urologist or
otherwise has “the license or training to engage in the practice
of urology” such that she should be considered able to diagnose
Johnson’s medical condition. Id. at 5.
In his complaint, Johnson asserted that during the time
period relevant to Claim 1(c)(ii), he had a urological condition
which was known to the NHSP medical department, and which
required that he use a Foley catheter to empty his bladder, a
fact also known to the NHSP medical department. He further
asserted that if he was not properly catheterized, he could, and
did, develop acute urinary retention and/or a urinary tract
infection requiring emergency care. Johnson has also, in the
OS/CO, demonstrated that he was being treated by an outside
urologist as well as a DOC physician for that condition.
Johnson’s complaint is also rife with assertions that in the
time he spent at the NHSP during which he had a Foley catheter,
numerous nurses attended to his catheterization needs.
10Giroux states, without any developed argument, that Johnson’s failure to specify the dates on which Giroux refused to catheterize him is fatal to his claim. The court disagrees that Johnson has to do so here to satisfy the relevant pleading standard.
14 Johnson further alleges that while he was catheterized, his
catheter sometimes clogged, and that on at least two of those
occasions, he sought assistance from Giroux to resolve that
problem by catheterizing him. The court can reasonably infer
that Giroux, as a medical care provider at the NHSP, would have
been aware of Johnson’s medical conditions and would have had
access to his NHSP medical records, which showed that he was
being treated for urological conditions diagnosed by a urologist
and a DOC physician, at least in part, with the use of a Foley
catheter. Even if she was not specifically aware of Johnson’s
prior treatment, the fact that he was catheterized allows the
court to reasonably infer that, upon presentation of his
situation to Giroux and report to her that his catheter was
clogged, that, as a registered nurse, Giroux would be aware that
a clogged Foley catheter would constitute a serious medical
need.
With regard to the issue of deliberate indifference,
Johnson alleges that, when he went to Giroux and made her aware
that his Foley catheter was clogged by asking her to help him
resolve that issue, she refused to assist him. Johnson also
alleges that on those occasions, Giroux’s stated reason for
refusing to change his catheter was that she “didn’t feel like
it.” Doc. no. 1 at 26. Such statements are sufficient, at this
stage of the case, to support a reasonable inference that
15 Giroux’s refusal to change Johnson’s catheter was deliberately
indifferent to his serious medical need.
Therefore, the court finds that Johnson’s Claim 1(c)(ii)
plausibly states an Eighth Amendment claim upon which relief may
be granted to survive Giroux’s motion to dismiss.
2. Statements Regarding Negligence and Incompetence
Lastly, Giroux asserts that Johnson’s statement, in his
complaint, that “Registered Nurse Wendy Gi[r]oux is responsible
for many situations that ultimately neglected me due to
incompetence,” doc. no. 1 at 26, constitutes a concession that
he cannot state an Eighth Amendment claim against her, as an
Eighth Amendment claim requires more than negligence. See doc.
no. 33 at 4-5. The court is not persuaded.
Considering all of the assertions in the complaint, and
construing the complaint liberally as the court must, the court
finds that Johnson’s above-quoted statement does not evince an
intent to disavow any Eighth Amendment claim arising from the
events underlying Claim 1(c)(ii). Additionally, the court will
not dispense with an otherwise sufficiently stated Eighth
Amendment claim because Johnson’s complaint also includes a
statement that a defendant was negligent and incompetent. See
Carter v. Baker, No. 17-cv-052-LM, 2020 WL 4605228, at *4
(D.N.H. Aug. 10, 2020) (“The purpose motivating liberal
16 construction of a pro se party’s pleadings is to avoid outcomes
in which the court fails properly to consider the merits of a
claim or defense simply because it was imperfectly pled or
presented.” (citing Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st
Cir. 1997)). Giroux’s motion to dismiss Claim 1(c)(ii) is
therefore denied.
Conclusion
For the foregoing reasons, Giroux’s motion to dismiss
Claims 1(c)(i)-(ii) (doc. no. 33), and Lombard’s motion to
dismiss Claim 1(d)(i) (doc. no. 34) are denied without prejudice
to each defendant’s ability to reassert their arguments in a
properly supported motion for summary judgment at an appropriate
time in this matter.
SO ORDERED.
______________________________ Samantha D. Elliott United States District Judge
September 15, 2022
cc: Jacob William Johnson, pro se Counsel of Record.