Dionne v. Brodeur CV-94-125-JD 11/08/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Dionne

v. Civil No. 94-12 5-JD

Paul Brodeur, et a l .

O R D E R

The plaintiff, Richard Dionne, has brought this pro se

action against the Commissioner of the New Hampshire Department

of Corrections and various administrators and doctors at the New

Hampshire State Prison ("NHSP") in Concord. The plaintiff

alleges that the defendants have failed to provide him with

adequate medical care in violation of the Eighth Amendment and,

pursuant to

, seeks monetary and injunctive

relief. Before the court is the defendants' motion for summary

judgment (document no. 56).

Background1

The plaintiff, who is approximately fifty years old, is an

inmate at NHSP, where he has been incarcerated since 1986. In

January 1987 and again in June 1990, the plaintiff was diagnosed

1The court's recitation of the facts relevant to the instant motion are either not in dispute or have been alleged by the plaintiff. with Hepatitis B. Further testing also revealed cirrhosis of the

plaintiff's liver, as well as damage to his spleen and gall

bladder. In 1991, the plaintiff was referred to Dr. Robert

Cimis, a liver specialist at the Dartmouth-Hitchcock Medical

Center. In May 1991, Dr. Cimis recommended that the plaintiff

undergo experimental alpha interferon therapy for at least three

months. In his recommendation. Dr. Cimis noted that the only

other treatment for the plaintiff's potentially terminal

condition was a liver transplant. Dr. Cimis expressed doubt that

the plaintiff would be eligible for such a procedure.

Plaintiff's Objection to Motion for Summary Judgment, Ex. A-17

(Letter from Dr. Cimis to Dr. Stefan Eltgroth, Senior Medical

Officer, NHSP, May 6, 1991) .2

In July 1991, following the administration of a battery of

tests. Dr. Nathan Sidley, a board-certified psychiatrist and the

director of the Department of Correction's division of medical

and forensic services, asked Dr. Cimis to review his previous

recommendations in light of the results. Dr. Cimis, in turn,

recommended a "middle-of-the-road course" that did not mention

2In a letter to the plaintiff's attorney dated May 16, 1991, Dr. Cimis stated that a "[1]iver transplant is the only other therapy and I guess that is not considered feasible since [the plaintiff] has no resources and the cost for that therapy is around $160,000." Plaintiff's Objection to Motion for Summary Judgment, Ex. A - 6.

2 alpha interferon treatment and included monitoring the

plaintiff's enzymes "over the next few months." Appendix to

Defendant's Memorandum of Law in Support of Summary Judgment, Ex.

F. In August 1991, after learning about direct communication

between the plaintiff and Dr. Cimis, Dr. Sidley urged Dr. Cimis

to refer the plaintiff's questions to the prison medical staff.

Plaintiff's Objection to Motion for Summary Judgment, Ex. A-46.

(Letter from Dr. Sidley to Dr. Cimis, August 20, 1991).

In December 1991, Dr. Cimis examined the plaintiff and again

recommended alpha interferon treatment, stating that "if we are

going to try the alpha interferon, now is the time." Appendix to

Defendant's Memorandum of Law in Support of Summary Judgment, Ex.

I (Letter from Dr. Cimis to Dr. Eltgroth, December 16, 1991).

In January 1992, the plaintiff signed an "informed request" in

which he acknowledged that alpha interferon was still considered

experimental for his condition, and began receiving alpha

interferon therapy. The treatment was terminated after three

months because the plaintiff apparently showed no signs of

improvement. Plaintiff's Objection to Motion for Summary

Judgment, Ex. A-24 (Concord Hospital History and Physical Exam

Record, July 21, 1992).

In July 1992, the plaintiff was admitted to Concord Hospital

to treat a sudden onset of upper gastrointestinal bleeding. His

3 discharge summary includes the opinion of a Dr. Scheinbaum that

the plaintiff was not a candidate for a liver transplant.

Ex. A-24.

In early 1993, the plaintiff initiated correspondence with

the Deaconess Hospital in Boston, Massachusetts, in an effort to

schedule an examination to determine his eligibility for a liver

transplant. After reviewing the records that the plaintiff had

sent to the Deaconess, Dr. David Lewis responded in writing that

in his opinion the plaintiff suffered from a "significant degree

of liver disfunction." However, Dr. Lewis also stated that he

could not determine from the information that the plaintiff had

provided whether the plaintiff's condition was severe enough to

warrant a liver transplant.

Ex. A-l. (Letter from Dr.

Lewis to Richard Dionne, February 5, 1993). Accordingly, Dr.

Lewis instructed the plaintiff to seek a referral from the prison

medical staff for an evaluation for a transplant.

Dr. Lewis

forwarded a copy of his reply to the plaintiff's correspondence

to Dr. Sidley, and in a separate letter communicated to Dr.

Sidley the hospital's inability to treat the plaintiff without a

referral.

Ex. A-2 (Letter from Dr. Lewis to Dr. Sidley,

February 5, 1993).

On May 25, 1993, the plaintiff completed an "inmate request

slip," seeking an MRI examination of his liver and a referral for

4 an evaluation in Boston with Dr. Lewis. Appendix to Defendant's

Memorandum of Law in Support of Summary Judgment, Ex. 0. On June

2, 1993, Dr. Sidley denied the request, stating, "I regret to

inform you that after a review of your case, it has been

concluded that a referral for liver transplantation is not

indicated."

Dr. Sidley denied to elaborate upon this

opinion after, on two separate occasions, an attorney

representing the plaintiff requested a more complete explanation.

See Plaintiff's Objection to Motion for Summary Judgment, Ex. A-

11 (Letter from Alan Linder, Staff Attorney, New Hampshire Legal

Assistance, to Dr. Sidley, June 14, 1993);

Ex. A-12 (Letter

from Alan Linder to Dr. Sidley, July 7, 1993). However, Dr.

Sidley since has testified that a liver transplant would not be

appropriate for the plaintiff given his "functional capabilities,

his age, his hepatitis B, his diabetes, and his history of drug

use." Affidavit of Dr. Sidley, June 13, 1995, 5 12. Dr. Sidley

also has testified that recent quarterly medical evaluations have

not revealed the need for the plaintiff to consult another liver

specialist.

5 11.

Discussion

The plaintiff contends that the defendants' delay in

administering alpha interferon therapy and their refusal to grant

5 a referral for an evaluation at the Deaconess constitutes willful

indifference to the plaintiff's serious medical needs in

violation of the Eighth Amendment. The defendants argue, inter

alia, that the level of care provided to the plaintiff forecloses

a finding of willful indifference, and that the plaintiff has no

evidence to support his allegations of willful indifference.

The role of summary judgment is "to pierce the boilerplate

of the pleadings and assay the parties' proof in order to

determine whether trial is actually required." Snow v.

Harnischfeqer Corp.,

(1st Cir. 1993) (quoting

Wynne v. Tufts Univ. Sch. of Medicine,

(1st

Cir. 1992), cert. denied, 113 S. C t . 1845 (1993)), cert, denied,

115 S. C t . 56 (1994). The court may only grant a motion for

summary judgment where 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 bears the initial burden of establishing the

lack of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986); Quintero de Quintero v.

Aponte-Rogue,

(1st Cir. 1992) . The court

must view the entire record in the light most favorable to the

6 plaintiff, "'indulging all reasonable inferences in that party's

favor.'" Mesnick v. General Elec. Co.,

(1st

Cir. 1991) (quoting Griqqs-Rvan v. Smith,

(1st

Cir. 1990), cert, denied, 112 S. C t . 2965 (1992)). However, once

the defendants have submitted a properly supported motion for

summary judgment, the plaintiff "may not rest upon mere

allegation or denials of his pleading, but must set forth

specific facts showing that there is a genuine issue for trial."

Anderson v. Liberty Lobby, Inc.,

(1986) (citing

Fed. R. Civ. P. 56(e)). The plaintiff bears this burden even

where, as here, he appears before the court pro se. United

States v. Michaud,

(1st Cir. 1991).

Prison officials and doctors violate the Eighth Amendment by

exhibiting "deliberate indifference to serious medical needs."

Estelle v. Gamble,

(1976); see also Watson v.

Caton,

(1st Cir. 1993) . Mere negligence is not

enough to establish deliberate indifference. Estelle,

. Rather, a prisoner must demonstrate that prison

officials acted with a "culpable state of mind and intended

wantonly to inflict pain." DesRosiers v. Moran,

(1st Cir. 1991) (citing Wilson v. Seiter,

,

(1991)). Such a state of mind may be manifested by

a criminally reckless response to medical needs or by the denial

7 or delay of, or interference with, prescribed health care.

(state of mind requirement requires knowledge and disregard of an

easily preventable and impending harm). Mere "disagreement about

the proper course of treatment," even where prison doctors act

negligently in devising a course of treatment, "does not rise to

the level of a constitutional violation." Watson,

.

The plaintiff has responded to the instant motion by

submitting a variety of documents including correspondence and

various medical reports. Consistent with Rule 56 and mindful of

the plaintiff's pro se status, the court has reviewed the

evidence without the benefit of a supporting memorandum. The

undisputed facts indicate that the plaintiff's medical condition

is serious and potentially life-threatening. Thus, the only

issue to be resolved is whether the plaintiff has adduced any

evidence from which it reasonably can be inferred that the

defendants have acted or are continuing to act with a

constitutionally culpable state of mind.

Considering first the plaintiff's allegation of delay in the

administration of alpha interferon therapy, the court recognizes

that Dr. Cimis recommended that the plaintiff undergo therapy as

early as May 1991, and that the treatment did not begin until

early 1992. However, the interval between Dr. Cimis's initial

8 recommendation and the beginning of the alpha interferon therapy

cannot be characterized as a delay in administering prescribed

health care. Rather, the undisputed facts indicate that Dr.

Cimis recommended an alternate course of action in July 1991 in

light of information that came to his attention subsequent to his

initial recommendation. The defendants followed Dr. Cimis's

advice on a "middle-of-the-road course" until Dr. Cimis concluded

in December 1991, that the time was right to commence the

experimental therapy. The plaintiff's conclusory allegations of

a conspiracy to delay treatment through excessive "blood work"

are not sufficient to undermine this conclusion.3

Similarly, the allegation that the defendants have acted and

are continuing to act with deliberate indifference to the

plaintiff's serious medical needs by refusing to schedule an

evaluation for a liver transplant is unsupported by the evidence.

The undisputed evidence indicates that over the last four years

three physicians have concluded that the plaintiff is not a

likely candidate for a liver transplant. Moreover, no doctor has

suggested that the plaintiff should consult with another outside

specialist at this time. The plaintiff has pointed to no

3Because the plaintiff has adduced no evidence to suggest that the defendants delayed the administration of alpha interferon therapy, the court need not reach the issue of whether the defendants ever had an obligation in the first instance to furnish the plaintiff with an experimental treatment.

9 evidence beyond his own conclusory allegations that in any way

undermines the defendants' medical conclusions or otherwise gives

rise to an inference that the defendants have acted with a

constitutionally impermissible state of mind. See Crooks v. Nix,

(8th Cir. 1989) (plaintiff's uncorroborated

statement that he needed bone marrow transplant insufficient to

support claim of deliberate indifference to serious medical need

for purposes of Eighth Amendment). Accordingly, the court must

grant summary judgment to the defendants.

Conclusion

The defendants' motion for summary judgment (document no.

56) is granted. The clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge November 8, 1995

cc: Richard Dionne, pro se Stephen J. Judge, Esquire

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