Fiorentino v. SSA CV-96-236-B 09/27/96

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bobbie S. Fiorentino

v. Civil No. 96-236-B

Commissioner, New Hampshire Department of Corrections, et al.

O R D E R

Bobbie Fiorentino, proceeding pro se and in forma pauperis,

challenges the magistrate judge's recommendation to dismiss her1

civil rights claims for money damages against New Hampshire

prison officials and employees. The magistrate conducted a

preliminary review of Fiorentino's pleadings pursuant to

(d) (as amended by Pub.L . 104-134,

(U.S. April 26, 1996)). In an order dated July 2, 1996, the

magistrate determined that Fiorentino's First Amendment freedom

of expression and Eighth Amendment claims alleging denial of

1 As the magistrate judge has noted, the plaintiff uses female pronouns to refer to herself in her pleadings, and therefore the magistrate judge refers to the plaintiff as a female. For consistency only, and without making any finding as to the plaintiff's gender or sexual identity, I too will refer to the plaintiff as a female. necessary medical care were not frivolous or meritless, but her

claims for money damages should be dismissed because the

defendants were entitled to qualified immunity. Fiorentino

argues that the magistrate judge overlooked the fact that the

defendants have been sued in both their official and individual

capacities. She also objects to the dismissal of her individual

capacity claims, alleging an Eighth Amendment violation. I

review de novo those issues that a party specifically objects to

in a magistrate judge's report and recommendation,

(b)(1), and modify the magistrate judge's recommendation as

follows.

A. Official Capacity Claims

Fiorentino argues that her damage claims against prison

officials in their official capacities are unaffected by

defendants' qualified immunity claim. Although her contention is

correct, monetary claims against state officials in their

official capacities are barred by Eleventh Amendment immunity.

See Will v. Michigan Pep't of State Police,

, 70-71 &

n.10 (1989). Therefore, Fiorentino's official capacity claims

for money damages are dismissed.

B. Eighth Amendment Claims

Public officials performing discretionary functions are

2 entitled to qualified immunity from suit for violations of

federal law "insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Harlow v. Fitzgerald,

(1982). The magistrate judge identified

Fiorentino's asserted Eighth Amendment rights as rights to

treatment for transsexuality and for a sinus condition. However,

Fiorentino alleges more generally that she has been deliberately

deprived of her right to treatment for a psychiatric condition

involving her sexual drive, her obsessive aggressive sexual

fantasies and behavior, her anger, anxiety, depression, and sleep

deprivation and for her sinus condition. These allegations state

a claim that the defendants violated her Eighth Amendment rights

by being deliberately indifferent to her need for treatment of

her serious medical and mental health needs. See Anderson v.

Creighton,

(1987).

By October 1995, when Fiorentino arrived at the New

Hampshire State Prison, it was clearly established that the

Eighth Amendment prohibits prison officials from being

deliberately indifferent to an inmate's serious mental health or

medical needs. Torraco v. Maloney,

(1st Cir.

19 91); see also Estelle v. Gamble,

(1976).

3 Deliberate indifference in the Eighth Amendment context requires

subjective recklessness so that a prison official will be held

liable if the official knows of and disregards an inmate's

serious medical (or mental health) needs. Farmer v. Brennan, 114

S. C t . 1970, 1979 (1994). A serious medical or mental health

need exists if it is one "'that has been diagnosed by a physician

as mandating treatment, or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor's

attention.'" Mahan v. Plymouth County House of Corrections,

(1st Cir. 1995) (quoting Gaudreault v. Municipality

of Salem, Mass.,

(1st Cir. 1990), cert, denied,

(1991)).

Fiorentino alleges2 that when she arrived at the New

Hampshire State Prison, she brought two medications that had been

prescribed and provided by the Maine State Prison. She alleges

that Naldecon was prescribed to treat headaches and eye strain

from a partial nasal blockage caused by an injury, which would

otherwise need surgery. She alleges that Medroxyprogesterone

Acetate (Depo-Provera) was prescribed to reduce her sexual drive.

2 In evaluating Fiorentino's allegations, I consider both her original complaint and the amplification included in her amended complaint filed on July 19, 1996.

4 control her inappropriate obsessive aggressive sexual fantasies

and behavior, and to relieve her anger, anxiety, depression, and

sleep deprivation. On the day of her arrival at the New

Hampshire State Prison, she alleges nurses told her that a New

Hampshire Prison doctor had discontinued all of her prescription

medications. She alleges that she was asked about her

medications by prison personnel; that she named and spelled the

medications, that she discussed her transsexualism; that she

described her nasal injury, the resulting sinus condition, and

her need for surgery or medication; that she explained the

reasons for taking the psychiatric medications, as described

above; and that she explained the effects of not taking the

medications and that she was feeling the effects of not having

her medications. Thus, Fiorentino's allegations construed

broadly show that the prison was aware that she suffered from

diagnosed mental health and sinus conditions that reguired

prescribed treatment.

Fiorentino alleges that when a nurse made rounds on her

tier, guards in riot gear held riot shields over the screening of

her cell and that when she was taken out of her cell, she was

handcuffed behind her back and escorted by guards in riot gear

with shields. She also alleges that a guard told her that the

5 reason she was kept under strict security was because the prison

was concerned that she would "go off" without her prescribed

medications. Therefore, she has alleged facts that, if true,

would support a finding that the defendants were aware that

Fiorentino was likely to suffer serious injury if her psychiatric

condition was left untreated.

She also has alleged facts showing that the prison failed to

treat her for her psychiatric condition. She alleges that a

prison doctor told her that there was no reason to take

medication for her psychiatric condition. She alleges the

medical staff prescribed and provided a reduced dosage of a

generic form of the female hormone, which had been prescribed by

the Maine State Prison medical staff as a psychiatric medication,

to wean her from the medication because the New Hampshire Prison

medical staff had determined that treatment to be in the best

interest of Fiorentino's physical health without treating her

psychiatric condition. Fiorentino's allegations sufficiently

allege that the defendants were aware of her diagnosed

psychiatric condition, knew of the substantial risk of harm if

the condition were not treated, but nevertheless did not provide

treatment. This is sufficient to state a claim alleging a

violation of Fiorentino's clearly established rights under the

6 Eighth Amendment. Therefore, I do not adopt the magistrate

judge's recommendation that this claim be dismissed. The

defendants are free, however, to move for summary judgment based

on gualified immunity at a later time if they can produce

sufficient evidence to support such an assertion.

Fiorentino's allegations that the defendants were aware of

serious risk to her health if her sinus condition were not

treated with the prescribed medication are less clear.

Fiorentino alleges that she told the medical staff that she had

partial nasal blockage caused by an injury that the Maine prison

medical staff had diagnosed as reguiring surgery or treatment

with prescribed medication. She alleges that the medical staff

at the New Hampshire State Prison told her that she did not need

medication or surgery, and instead provided a salt water nasal

spray and suggested that she buy Tylenol to take for headaches.

She informed them that their recommended regimen had been tried

and did not work to alleviate her symptoms. It is unclear from

her allegations what the defendants knew of the severity of her

sinus condition or the risk attendant to the treatment they

prescribed. See Estelle,

(intentional

interference with prescribed treatment that causes unnecessary

pain is sufficient for Eighth Amendment claim). Inmates are not entitled under the Eighth Amendment to the treatment of their

choice, Ferranti v. Moran,

(1st Cir. 1980),

nor to be protected from mere negligence or medical malpractice,

Estelle v. Gamble,

(1976); Watson v. Caton,

(1st Cir. 1993); Figueroa v. Vose,

(D.R.I. 1994), aff'd ,

(1995). Nevertheless

because Fiorentino's claim is not clearly frivolous or meritless

and similarly because the defendants' are not clearly entitled t

gualified immunity on the pleadings, I also reject the

recommendation to dismiss Fiorentino's Eighth Amendment claim

based on her sinus condition. As I noted above, the defendants

may assert gualified immunity in a motion for summary judgment.3

C. Effect of Transfer

Since the magistrate issued his report and recommendation.

Fiorentino also alleges in the context of her Eighth Amendment claim that the defendants violated the Laaman Consent Decree in their treatment of her. As a civil rights suit is not the appropriate means of enforcing a consent decree, to the extent she intends to bring such a claim, it is dismissed, and instead she must seek relief through an action for contempt before Senior Judge Devine. See, e.g. Martel v. Fridovich,

, 3 n.4 (1st Cir. 1993). As is discussed below, however, because Fiorentino is no longer an inmate at the New Hampshire State Prison, such a claim is now likely to be moot. Fiorentino has been transferred back to the Maine State Prison.4

As a result, her claims for declaratory and injunctive relief

aimed at the conditions of her confinement at the New Hampshire

State Prison are moot. See, e.g. Hiqqason v. Farley,

(7th Cir. 1996); Prins v. Coughlin,

(2d

Cir. 1996); Dillev v. Gunn,

(9th Cir. 1995).

Accordingly, Fiorentino's requests for a temporary restraining

order and preliminary injunction are denied.

D. Summary

I adopt the magistrate judge's recommendation to dismiss

Fiorentino's First Amendment claim for money damages against

individual defendants as barred by qualified immunity. As I have

dismissed Fiorentino's First Amendment claims against the

defendants in their official capacities and her request for

injunctive relief, her First Amendment claims are dismissed

entirely. Fiorentino's Eighth Amendment claims against the

defendants in their official capacities are dismissed. I do not

4 Fiorentino has filed "Plaintiff's Response to Defendants Notice of Inmate Transfer" in which she contends that the defendants transferred her to Maine because of her demands and this legal action. To the extent Fiorentino intends to challenge her transfer to the Maine State Prison, she must amend her complaint to state this claim. adopt the magistrate judge's recommendation to dismiss

Fiorentino's Eighth Amendment claims against defendants in their

individual capacities.

CONCLUSION

For the foregoing reasons, the plaintiff's objection to the

magistrate judge's report and recommendation (document no. 10) is

granted in part and the report and recommendation (document no.

9) is adopted as modified in this order.

SO ORDERED.

Paul Barbadoro United States District Judge

September 27, 1996

cc: Bobbie S. Fiorentino, pro se

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