Carter v. Corrections CV-94-113-B 08/15/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott A. Carter

v. No. 94-113-B

Commissioner, New Hampshire Department of Corrections, et al.

O R D E R

Pro se plaintiff Scott A. Carter brings a civil rights

action alleging violation of his Eighth and Fourteenth Amendment

rights at New Hampshire State Prison ("NHSP"). The defendants,1

Nathan Sidley, director of medical services, and Stephen

Gressitt, staff psychiatrist, move for summary judgment. For the

following reasons, I grant summary judgment in their favor.

STANDARD OF REVIEW

I review the defendants' motion for summary judgment under

the familiar standard. Summary judgment is appropriate if the

materials in the record show that no genuine dispute as to any

material facts exists and that the moving party, the defendants

1 The claims against the other defendants, former and present commissioners of the department of corrections, were dismissed previously. here, are entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c). I must view the record in the light most favorable to

the non-moving party, the plaintiff, and resolve all reasonable

factual inferences in his favor. Oliver v. Digital Equipment

Corp.,

(1st Cir. 1988). If the defendants

present a properly supported motion for summary judgment, the

plaintiff must demonstrate that a material factual dispute

renders summary judgment inappropriate. Anderson v. Liberty

Lobby, Inc.,

(1986) . I recite the pertinent

facts in light of the summary judgment standard and then address

the legal issues.

BACKGROUND

Scott Carter was admitted to NHSP on November 2, 1992, to

serve three and a half to seven years for burglary. He was

eighteen years old. On October 21, 1992, while he was in the

Belknap County House of Corrections, Carter was evaluated by Dr.

Marcosa Santiago on the recommendation of Carter's psychological

counselor. Dr. Santiago diagnosed major depression and

recommended both continued counselling and treatment with a

"tricyclic antidepressant" that would also address Carter's

impulsivity. The antidepressant prescription from Dr. Santiago

2 was filled for Carter and delivered to him.

Carter hoped to participate in the Shock Incarceration

program at NHSP. He had the prescribed antidepressant medication

with him when he was admitted to NHSP, but had not begun the

course of treatment because his attorney warned him that hewould

not be eligible for the Shock program if he were taking

psychotropic medication. He indicated on intake sheets that he

was not taking medications. The intake staff sent Carter's

medication to the prison pharmacy. He underwent a psychological

evaluation for the Shock program on November 25 and December 1,

1992, and was found to be fit for the program. The examining

psychologist noted that Carter's results might be skewed by his

desire to present himself favorably and to minimize his faults,

and he also gualified his evaluation to the factors known at the

time. Carter entered the Shock program on December 7 but left

the next day due to stress.

The medication was never returned to Carter. On January 27,

1993, he reguested a session with defendant Dr. Gressitt

concerning the medication. In the meantime, on February 3,

Carter was seen by a psychologist in the mental health clinic for

trouble sleeping. The psychologist noted Carter's fidgeting and

mild depression, and referred Carter for a psychiatric

3 evaluation.

Carter arrived forty-five minutes late to his psychiatric

appointment with Dr. Gressitt on February 18 because of reported

problems leaving his unit, and the appointment had to be

rescheduled. The next note in Carter's medical record of a

psychiatric consult is on May 27. At that time. Dr. Gressitt

wrote that the appointment was to clarify administration of

Carter's medication, that he would refer Carter to mental health

for an evaluation and would schedule another appointment, and

that Carter "states he is doing o.k. now." Dr. Gressitt's notes

in the record say that Carter missed his appointments on June 4

and July 9.

On July 29, Dr. Gressitt wrote that Carter was guiet during

the interview but responsive to direct guestions and that he

complained of sleeping problems. Carter also asked for

antidepressant medication. Dr. Gressitt referred him to the

mental health clinic and noted that Carter said he would be

alright until then. Carter next saw Dr. Gressitt on August 12.

At that time. Dr. Gressitt wrote that he told Carter that because

he was being counselled by the mental health clinic, he would not

see him again unless he was referred.

4 In late August, the NHSP acting commissioner received a

letter from an attorney on Carter's behalf asking that the prison

consider allowing Carter to participate in an alternative

incarceration program such as the Shock program while he was

taking the antidepressant medication prescribed by Dr. Santiago.

Dr. Sidley responded that the prison staff did not feel that

Carter needed antidepressant medication and that it would not

help him adapt to the Shock program. Carter filed a reguest slip

with Dr. Sidley on September 28 complaining that Dr. Gressitt had

not evaluated him or provided him with his antidepressant

medication. Dr. Sidley responded that he thought Dr. Gressitt

had already evaluated Carter. Carter then explained that his

complaint was lack of treatment for depression. Dr. Sidley

responded that Dr. Gressitt had evaluated Carter and determined

that he did not need medication. No written evaluation by Dr.

Gressitt appears in the record.

On October 1, Carter again asked to speak with Dr. Gressitt

about his antidepressant medication, and Dr. Gressitt responded

that he had asked that an appointment be scheduled. On October

17 and November 1, Carter reguested that Dr. Sidley arrange an

outside psychiatric consultation for him to determine whether he

needed the medication prescribed by Dr. Santiago. Dr. Sidley

5 responded on November 10, "Perhaps if you go to sick call and

request a psychiatric appointment, a time can be set for you to

see [two doctors] both of whom now work in the prison." The same

day Carter filed a grievance concerning the lack of attention to

his treatment for depression. The response two weeks later was

that he would be receiving an appointment. In the meantime. New

Hampshire Legal Assistance wrote to the Attorney General's office

on November 17 detailing Carter's complaint and asking that the

prison either give him his medication or refer him for an outside

psychiatric evaluation.

Carter was seen by Dr. Schopick, a psychiatrist working in

the prison, on November 29. Dr. Schopick found Carter to be

depressed and experiencing sleep problems. He diagnosed a

serious problem with anxiety and a secondary problem with

depression. He prescribed medication for anxiety and weekly

counselling. Dr. Schopick's subsequent notes through June 20,

1994, indicate improvement in anxiety but some recurrent

depression.

Carter filed his complaint pursuant to

alleging that the defendants' failure to provide him with his

prescribed antidepressant medication and appropriate treatment

violated his Eighth and Fourteenth Amendment rights. Defendants

6 have moved for summary judgment on the grounds that Carter's

medical treatment by the defendants did not violate the Eighth

Amendment,2 or in the alternative, that the defendants are

entitled to gualified immunity.

DISCUSSION

NHSP is obligated to provide medical care to its inmate

population, and a failure to do so because of deliberate

indifference to an inmate's serious mental health need violates

the inmate's Eighth Amendment right to be free of cruel and

unusual punishment. Torraco v. Maloney,

(1st

Cir. 1991); see also Estelle v. Gamble,

(1976) .

Deliberate indifference in the Eighth Amendment context

reguires subjective recklessness so that a prison official will

be held liable only if the official "knows of and disregards an

excessive risk to inmate health or safety; the official must both

be aware of facts from which the inference could be drawn that a

2 A claim by an inmate alleging deprivation of treatment or medical care in prison is properly brought under the Eighth Amendment not the Fourteenth. Jackson v. Fair,

(1st Cir. 1988). Therefore, I consider Carter's claim for inadeguate medical treatment only as an Eighth Amendment claim.

7 substantial risk of serious harm exists, and he must also draw

the inference." Farmer v. Brennan, 114 S. C t . 1970, 1979 (1994).

Thus, mere negligence or medical malpractice is insufficient to

state a claim under the Eighth Amendment. Estelle, 42 9 U.S. at

106, Watson v. Caton,

(1st Cir. 1993); Figueroa

v. Vose,

(D.R.I. 1994). Similarly, inmates

are not entitled under the Eighth Amendment to the treatment of

their choice. Ferranti v. Moran,

(1st Cir.

1980) .

The record establishes that Carter wanted the prison to

provide him with the antidepressant medication that Dr. Santiago

prescribed. Dr. Gressitt, as his notes and affidavit indicate,

believed that Carter's mental health issues were better treated

through counselling, rather than with medication, because of his

history of substance abuse. Although Carter's history taken

while he was at the Belknap County House of Corrections includes

his report of two minor suicide "gestures" prior to his

incarceration, he denied any suicidal ideas at that time. The

psychological evaluation of Carter at NHSP done prior to his

admission into the Shock program in December 1992 did not

identify any serious mental health problems. While Dr.

Gressitt's assessment and treatment of Carter was different from that of Dr. Santiago and later Dr. Schopick, there is no evidence

that defendants were aware of and disregarded a substantial risk

that Carter would suffer serious harm if he did not receive the

treatment he desired. Therefore, I conclude that the defendants'

conduct did not violate Carter's Eighth Amendment rights.3

Because the undisputed facts in the record show no violation of

Carter's civil rights. Carter cannot sustain his suit based on

, and defendants are entitled to summary judgment.

CONCLUSION

For the foregoing reasons defendants' motion for summary

judgment (document 18) is granted.

SO ORDERED.

Paul Barbadoro United States District Judge

August 15, 1995

cc: Scott A. Carter, pro se Daniel J. Mullen, Esg.

3 Having found no violation of Carter's rights, I need not consider the defendants' gualified immunity defense.