Vaillancourt v. Campbell, et a l . 06-CV-438-JD 08/14/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Vaillancourt, a/k/a Bryan Bernard
v. Civil No. 06-CV-438-JD Opinion No. 2008 DNH 156
Bernadette Campbell. Celia Englander. Brett Mooney, and Donna Timultv
O R D E R
Joseph Vaillancourt, a/k/a Bryan Bernard, was incarcerated
until recently in New Hampshire.1 He is now proceeding pro se
and is also proceeding in forma pauperis.2 As construed by the
magistrate judge, Bernard brings a claim under Title II of the
Americans with Disabilities Act ("ADA") and a claim alleging
constitutionally inadequate medical care, pursuant to 42 U.S.C. §
1983, against Bernadette Campbell, Celia Englander, Brett Mooney,
and Donna Timulty. The defendants move for summary judgment, and
Bernard objects.
1Although his complaint uses the name "Joseph Vaillancourt A/K/A Bryan Bernard," the plaintiff asserts that his real name is Bryan Bernard. Therefore, the court uses the name Bryan Bernard in this order.
Bernard's counsel withdrew in January of 2007. Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See i d . at 255.
In this district, the moving party must support a motion for
summary judgment with a statement of material facts that cites to
evidence in the record. LR 7.2(b)(1). A party opposing summary
judgment must also include a statement of material facts
supported by record citations. LR 7.2(b)(2). In addition,
"[a]11 properly supported material facts set forth in the moving
party's factual statement shall be deemed admitted unless
properly opposed by the adverse party." I d .; see also Fed. R.
2 Civ. P. 56(e)(2); CMI Cap. M k t . Inv., LLC v. Gonzalez-Toro. 520
F .3d 58, 62-63 (1st Cir. 2008).
Bernard filed an objection to the motion to dismiss but did
not include a factual statement or provide his own affidavit or
affidavits from others to support his objection. See Fed. R.
Civ. P. 56(e)(2). He mistakenly relies on the allegations in his
complaint and the results of preliminary review to support his
claims. See Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.
2007). In the absence of a properly supported opposition to
summary judgment, all of the facts provided in the defendants'
factual statement that are properly supported with citations to
the record are deemed admitted.
Background
Bernard was returned to prison on July 14, 2004. He was
housed at the New Hampshire State Prison in Concord until October
19, 2005, when he was moved to the State Prison in Berlin. He
returned to the Concord facility on September 6, 2006, where he
completed his sentence on March 13, 2008, and was released.
During his incarceration, Bernard complained of a long list
of medical issues, including back and neck pain, high blood
pressure. Hepatitis C, mental illness and depression, ulcers,
asthma, and coronary disease. He was examined by medical
3 personnel, referred to outside medical providers for additional
medical examinations, and treated for his complaints. He was
offered but refused treatment for Hepatitis C and discontinued
medications prescribed for other conditions against the medical
advice he was given. In addition, he has received accommodations
for a variety of issues including passes to be assigned a bottom
bunk, for extra blankets to assist him in positioning while
seated, for slow movement, for use of an elevator, for use of a
walker, for use of a cane, for no work, and for use of a
wheelchair.
Bernard's complaints of arm pain, excessive weakness, and
neck and back pain have never been substantiated by the many
medical tests and consultations he has received. Although
examinations and testing have shown that he has mild degenerative
changes in his spine, that condition did not correlate to the
symptoms Bernard claimed to experience while he was in prison.
When he claimed to have nasal and rectal bleeding, blood tests
confirmed no unusual bleeding had occurred.
Discussion
Bernard's claims, as allowed by the magistrate judge's
report and recommendation, are that the defendants provided
inadequate medical care in violation of the Eighth Amendment and
4 denied him benefits and services in violation of Title II of the
ADA. The defendants contend that the record establishes that
Bernard received constitutionally adequate medical care and that
he cannot prove his ADA claim.
A. Medical Care
To prove a claim of constitutionally inadequate medical
care, a prisoner must show that prison personnel were
deliberately indifferent to his serious medical needs. Erickson
v. Pardus. 127 S. C t . 2197, 2198 (U.S. 2007). A serious medical
need is a condition that has been "diagnosed by a physician as
mandating immediate treatment, or one that is so obvious that a
layman would easily recognize the necessity of medical
treatment." Mahan v. Plymouth County House of Corrs., 6 4 F.3d
14, 18 (1st Cir. 1995) (internal quotation marks omitted).
"Deliberate indifference means that a prison official
subjectively must both be aware of facts from which the inference
could be drawn that substantial risk of serious harm exists, and
he must also draw the inference." Ruiz-Rosa. 485 F.3d at 156
(internal quotation marks omitted). Negligence, inadvertence,
and disagreement about treatment do not rise to the level of
deliberate indifference. Id.
Despite a lack of medical evidence to support at least some
5 of Bernard's complaints of medical conditions, the defendants do
not contest for purposes of this claim that Bernard has serious
medical conditions. Instead, each defendant provides an
affidavit and cites to the record to show that Bernard received
extensive medical attention for his claimed medical issues. The
medical records that Bernard submitted with his objection to
summary judgment also show that he has received appropriate
medical attention for his complaints. He offers no other support
for his claim.
In the absence of any evidence that the defendants were
deliberately indifferent to Bernard's serious medical needs, the
defendants are entitled to summary judgment on that claim.
Free access — add to your briefcase to read the full text and ask questions with AI
Vaillancourt v. Campbell, et a l . 06-CV-438-JD 08/14/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph Vaillancourt, a/k/a Bryan Bernard
v. Civil No. 06-CV-438-JD Opinion No. 2008 DNH 156
Bernadette Campbell. Celia Englander. Brett Mooney, and Donna Timultv
O R D E R
Joseph Vaillancourt, a/k/a Bryan Bernard, was incarcerated
until recently in New Hampshire.1 He is now proceeding pro se
and is also proceeding in forma pauperis.2 As construed by the
magistrate judge, Bernard brings a claim under Title II of the
Americans with Disabilities Act ("ADA") and a claim alleging
constitutionally inadequate medical care, pursuant to 42 U.S.C. §
1983, against Bernadette Campbell, Celia Englander, Brett Mooney,
and Donna Timulty. The defendants move for summary judgment, and
Bernard objects.
1Although his complaint uses the name "Joseph Vaillancourt A/K/A Bryan Bernard," the plaintiff asserts that his real name is Bryan Bernard. Therefore, the court uses the name Bryan Bernard in this order.
Bernard's counsel withdrew in January of 2007. Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party
opposing a properly supported motion for summary judgment must
present competent evidence of record that shows a genuine issue
for trial. See Anderson v. Liberty Lobby. Inc.. 477 U.S. 242,
256 (1986). All reasonable inferences and all credibility issues
are resolved in favor of the nonmoving party. See i d . at 255.
In this district, the moving party must support a motion for
summary judgment with a statement of material facts that cites to
evidence in the record. LR 7.2(b)(1). A party opposing summary
judgment must also include a statement of material facts
supported by record citations. LR 7.2(b)(2). In addition,
"[a]11 properly supported material facts set forth in the moving
party's factual statement shall be deemed admitted unless
properly opposed by the adverse party." I d .; see also Fed. R.
2 Civ. P. 56(e)(2); CMI Cap. M k t . Inv., LLC v. Gonzalez-Toro. 520
F .3d 58, 62-63 (1st Cir. 2008).
Bernard filed an objection to the motion to dismiss but did
not include a factual statement or provide his own affidavit or
affidavits from others to support his objection. See Fed. R.
Civ. P. 56(e)(2). He mistakenly relies on the allegations in his
complaint and the results of preliminary review to support his
claims. See Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.
2007). In the absence of a properly supported opposition to
summary judgment, all of the facts provided in the defendants'
factual statement that are properly supported with citations to
the record are deemed admitted.
Background
Bernard was returned to prison on July 14, 2004. He was
housed at the New Hampshire State Prison in Concord until October
19, 2005, when he was moved to the State Prison in Berlin. He
returned to the Concord facility on September 6, 2006, where he
completed his sentence on March 13, 2008, and was released.
During his incarceration, Bernard complained of a long list
of medical issues, including back and neck pain, high blood
pressure. Hepatitis C, mental illness and depression, ulcers,
asthma, and coronary disease. He was examined by medical
3 personnel, referred to outside medical providers for additional
medical examinations, and treated for his complaints. He was
offered but refused treatment for Hepatitis C and discontinued
medications prescribed for other conditions against the medical
advice he was given. In addition, he has received accommodations
for a variety of issues including passes to be assigned a bottom
bunk, for extra blankets to assist him in positioning while
seated, for slow movement, for use of an elevator, for use of a
walker, for use of a cane, for no work, and for use of a
wheelchair.
Bernard's complaints of arm pain, excessive weakness, and
neck and back pain have never been substantiated by the many
medical tests and consultations he has received. Although
examinations and testing have shown that he has mild degenerative
changes in his spine, that condition did not correlate to the
symptoms Bernard claimed to experience while he was in prison.
When he claimed to have nasal and rectal bleeding, blood tests
confirmed no unusual bleeding had occurred.
Discussion
Bernard's claims, as allowed by the magistrate judge's
report and recommendation, are that the defendants provided
inadequate medical care in violation of the Eighth Amendment and
4 denied him benefits and services in violation of Title II of the
ADA. The defendants contend that the record establishes that
Bernard received constitutionally adequate medical care and that
he cannot prove his ADA claim.
A. Medical Care
To prove a claim of constitutionally inadequate medical
care, a prisoner must show that prison personnel were
deliberately indifferent to his serious medical needs. Erickson
v. Pardus. 127 S. C t . 2197, 2198 (U.S. 2007). A serious medical
need is a condition that has been "diagnosed by a physician as
mandating immediate treatment, or one that is so obvious that a
layman would easily recognize the necessity of medical
treatment." Mahan v. Plymouth County House of Corrs., 6 4 F.3d
14, 18 (1st Cir. 1995) (internal quotation marks omitted).
"Deliberate indifference means that a prison official
subjectively must both be aware of facts from which the inference
could be drawn that substantial risk of serious harm exists, and
he must also draw the inference." Ruiz-Rosa. 485 F.3d at 156
(internal quotation marks omitted). Negligence, inadvertence,
and disagreement about treatment do not rise to the level of
deliberate indifference. Id.
Despite a lack of medical evidence to support at least some
5 of Bernard's complaints of medical conditions, the defendants do
not contest for purposes of this claim that Bernard has serious
medical conditions. Instead, each defendant provides an
affidavit and cites to the record to show that Bernard received
extensive medical attention for his claimed medical issues. The
medical records that Bernard submitted with his objection to
summary judgment also show that he has received appropriate
medical attention for his complaints. He offers no other support
for his claim.
In the absence of any evidence that the defendants were
deliberately indifferent to Bernard's serious medical needs, the
defendants are entitled to summary judgment on that claim.
B. Title II, 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. A "qualified individual with a disability" under Title II
is "an individual with a disability who, with or without
reasonable modifications to rules, policies, or practices, . . .
or the provision of auxiliary aids and services, meets the
6 essential eligibility requirements for the receipt of services of
the participation in programs or activities provided by a public
entity." § 12131(2). Title II provides a private cause of
action for damages against public entities that violate its
provisions, including states at least to the extent the state's
conduct actually violated the Constitution. Toledo v. Sanchez.
454 F .3d 24, 31 (1st Cir. 2006).
1. Individual Defendants
The only defendants remaining in this action are individuals
sued in their personal capacities. Title II of the ADA provides
a cause of action against "public entities" but not against
individuals sued in their personal capacities. Kiman v. N.H.
Dept. of Corrs., 2007 WL 2247843, at *8 (D.N.H. Aug. 1, 2007);
see also Alston v. Dist. of Columbia. -- F. Supp. 2d --- , 2008
WL 2461034, at *4 (D.D.C. June 19, 2008). Therefore, the
individual defendants are entitled to summary judgment.
2. Statutory Requirements
Even if the Department of Corrections were a defendant,
Bernard could not prove his claim.3 The defendants contend that
3Bernard also sued the individual defendants in their official capacities, but the magistrate judge construed those
7 Bernard cannot show that he is disabled as defined by the ADA,
that he was excluded from participating in or denied the benefits
of the Department's services, programs, or activities, or that
any exclusion or denial of benefits was because of his
disability. In response, Bernard provides a list of what he
considers to be evidence of his physical limitations.
The defendants amply support their argument that Bernard was
not physically disabled by the minor issues that his medical
examinations and testing showed. The medical records, generated
in response to his repeated complaints of back, neck, and arm
pain and numbness, show that he had mild to moderate changes in
his spine that would not account for the degree of pain and
disability that he claimed and did not require additional
treatment. He refused to attend some of the appointments set up
for him and did not follow the medication regimens prescribed.
In addition, he was provided a host of accommodations for his
claimed ailments and disabilities, including, among other things,
passes to avoid walking, to have a lower bunk, and to be excused
from work, and he was allowed to use an elevator, a cane, a
walker, and a wheelchair.
claims under § 1983 and dismissed them as barred by sovereign immunity. Therefore, the Department of Corrections is not a party in this action. Therefore, Bernard has not shown that a trialworthy issue
exists to support a claim under Title II of the ADA against the
Department of Corrections.
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 264) is granted, which resolves
the plaintiff's claims in favor of the defendants. The Clerk of
Court shall enter judgment accordingly and close the case.
SO ORDERED.
/s/ Joseph A. DiClerico, Jr. Joseph A. DiClerico, Jr. United States District Judge
August 14, 2008
cc: Bryan Bernard, pro se Nancy Smith, Esq.