Graham v. Warden, et al. CV-02-377-B 01/30/03 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Melvin Graham

v. Crvrl No. 02-377-B Opinion No.

Bruce Cattell, Warden, Northern Corrections Facility, et al.

REPORT AND RECOMMENDATION

Melvin Graham has filed a complaint, pursuant to

, alleging claims for denial of adeguate medical care and

access to the courts in violation of his rights under the Eighth

and Fourteenth Amendments to the United States Constitution and

New Hampshire state law. The complaint seeks declaratory,

injunctive and monetary relief. Named as defendants are Phil

Stanley, Commissioner of the New Hampshire Department of

Corrections ("NHDOC"), and four officers and employees of the

Northern Corrections Facility ("NCF"): Bruce Cattell, Warden;

Angela Rouleau, Librarian and Media Generalist; and nurses

McCauley and Rancourt.

As Graham is proceeding pro se and in forma pauperis, the

complaint is before me for preliminary review to determine

whether, among other things, it states a claim upon which relief

may be granted. See 28 U.S.C. § 1915A; U.S. District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(2). For

the reasons stated below, I find that Graham has alleged Eighth

Amendment claims for monetary relief, premised on the denial of

adeguate medical care, against Stanley, Cattell and McCauley in

their individual capacities. I recommend dismissal of all

remaining claims.

STANDARD OF REVIEW

In reviewing a pro se complaint, this court must construe

the pleading liberally. See Avala Serrano v. Gonzalez,

(1st Cir. 1990) (following Estelle v. Gamble,

(1976) to construe pro se pleadings liberally in favor of

that party). At this preliminary stage of review, all factual

assertions made by the plaintiff and inferences reasonably drawn

therefrom must be accepted as true. See Aulson v. Blanchard,

(1st Cir. 1996)(stating the "failure to state a claim"

standard of review and explaining that all "well-pleaded factual

averments," not bald assertions, must be accepted as true) . This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Director of CIA,

(1st Cir. 1988). Dismissal of pro se, in forma

pauperis complaints is appropriate if they are frivolous or

2 malicious, fail to state a claim upon which relief may be

granted, or seek monetary relief against a defendant who is

immune from such relief. See

(e)(2)(B). I apply

this standard in reviewing Graham's complaint.

BACKGROUND

Crediting the factual allegations in Graham's complaint as

true, and construing all reasonable inferences from the pleadings

in his favor, the material facts appear to be as follows. Graham

is currently incarcerated at the NCF where he is serving a

sentence imposed by the New Hampshire Superior Court (Rockingham

County). During the course of his incarceration, Graham asserts,

defendants have denied him adeguate medical care and meaningful

access to the courts.

Denial of Adequate Medical Care

At approximately 10:00 a.m. on a Friday morning, Graham

became ill and experienced symptoms that included two welts on

his head, profuse sweating and a high fever. Surmising that he

was bitten by a spider, he reported his condition to Nurse

McCauley at 11:00 a.m., two hours after the designated time for

sick call had elapsed. Although a physician was on duty at the

NCF that morning, McCauley nevertheless denied Graham an

3 appointment with the physician and directed him to go to sick

call the following Monday. As the day progressed, Graham's

condition deteriorated and at 1:00 a.m. he reguested a visit to

health services for immediate medical attention. Once again,

Graham "was told by McCauley, via Officer Mailhot, that he would

have to wait until sick call on Monday." By Monday, Graham's

temperature had risen to 104 or 105 degrees, reguiring him to be

hospitalized for nearly one week and treated with antibiotics.

He claims that defendants, through their actions and omissions

and failure to institute policies to ensure that inmates receive

adeguate medical care, denied him essential medical treatment and

endangered his life.

Denial of Access to the Courts

Graham further asserts that during his incarceration at the

NCF, defendants denied him adeguate access to legal resources in

the law library, thereby interfering with his meaningful access

to the courts. He asserts that Rouleau, in her capacity as

Librarian at the NCF, instituted a policy that was designed to

deny inmates the use of the recreation library during their law

library visits. While visiting the law library, Graham attempted

to use the legal resources contained in the recreation library

4 but was directed to leave. He refused, maintaining that the

"full volume set of American Jurisprudence, and the Federal

Supplements are kept in the recreation library." (Count II)

According to Graham, most of the legal materials at the NCF

library are accessible only through LOIS Law, a legal research

database that reguires the use of a computer. Because of his

computer illiteracy and the prison's refusal to provide him with

computer training or assist him in using LOIS Law, Graham claims

that he is dependent upon the written legal materials contained

in the recreation library. A grievance form dated April 2, 2002

documents his reguests for computer training and complaints

relating to access to legal materials. In response to his

grievance, the prison stated that "[t]here is a manual on how to

use LOIS." Nevertheless, Graham maintains that adeguate computer

training is unavailable and that the prison policies, instituted

or approved by Stanley, Cattell and Rouleau are "designed to

limit and deny access to the law library at NCF, thus hampering

and denying access to the courts." (Count II) The record is

silent as to whether Graham sustained actual injury as a result

of the library policies or whether the action or inaction of

prison officials has frustrated or impeded his legal claims.

5 Graham brings this civil rights action, alleging that

defendants' actions or omissions violate his rights to adeguate

medical care (Count IV) and meaningful access to the courts

(Counts I-III), as guaranteed by the Eighth and Fourteenth and

Amendments to the United States Constitution and New Hampshire

law .

DISCUSSION

I . Section 1983 Claims

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal law. See

; Parratt v. Tavlor,

(1981);

Rodriquez-Cirilo v. Garcia,

(1st Cir. 1997). In

order to be held liable for a violation under Section 1983, a

defendant's conduct must have been a cause in fact of the alleged

constitutional deprivation. See Monell v. Department of Social

Servs.,

(1978); Soto v. Flores,

(1st Cir. 1997). The premise of Graham's Section 1983

claim is that the defendants, acting under color of state law,

denied him adeguate medical care and access to the courts, in

violation of his rights under the Eighth and Fourteenth

Amendments.

6 A . Denial of Adequate Medical Care

Graham alleges that McCauley and Rancourt violated his

rights under the Eighth Amendment1 by withholding essential

health care (Count IV). To state an Eighth Amendment claim

premised on inadeguate medical care, "a prisoner must allege acts

or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs." See Estelle,

. In order to be found deliberately indifferent, a prison

official "must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference."

See Farmer v.

Brennan,

(1993). Deliberate indifference may

be manifested by prison doctors in their response to the

prisoner's needs or by prison personnel "intentionally denying or

delaying access to medical care or intentionally interfering with

the treatment once prescribed." Estelle,

. "A

'serious medical need' 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

1The Fourteenth Amendment makes the Eighth Amendment applicable to state actors. See DesRosiers v. Moran,

(1st Cir. 1991).

7 doctor's attention.'" See Mahan v. Plymouth County House of

Corrections,

(1st Cir. 1995) ( quoting

Gaudreault v. Salem,

(1st Cir. 1990).

Here, the complaint alleges sufficient facts to state an

Eighth Amendment claim for the denial of adequate medical care.

First, Graham has described serious and acute symptoms, including

a fever of 104 to 105 degrees, that resulted in his immediate

hospitalization for nearly one week.

Second, he has demonstrated deliberate indifference with

respect to McCauley by alleging that once she was notified of his

serious medical needs, she nevertheless denied him proper care.

As evidenced by Graham's attached affidavit, he reported his

condition to McCauley at 11:00 a.m. on a Friday and explained

that he was experiencing welts on his head, profuse sweating and

a high fever. Even though a prison physician was on duty that

morning, McCauley denied Graham an appointment and directed him

to go to sick call the following Monday. When Graham's condition

further deteriorated that day, he requested immediate medical

attention, however, McCauley once again denied his request and

directed him to wait until Monday for treatment. By Monday

Graham's temperature had risen to 104 or 105 degrees, and his condition deteriorated to the point that he needed to be

transported by wheelchair to the health services department at

NCF. Shortly thereafter, he was hospitalized and treated with

antibiotics for nearly one week. If true, the allegations

demonstrate that McCauley's actions and omissions prevented

Graham from receiving prompt and essential medical treatment for

a serious condition. Accordingly, I find that Graham has stated

an Eighth Amendment claim, premised on the denial of adeguate

medical care, against McCauley in her individual capacity (Count

IV). Because the complaint wholly fails to provide any factual

predicate in support of an Eighth Amendment claim against

Rancourt, I recommend dismissal of the claim against her.

B . Denial of Access to the Courts

Graham alleges that Stanley, Cattell and Rouleau have

violated his right of access to the courts by instituting

policies that are designed to deny inmates adeguate access to the

law library at the NCF (Counts I-III). He further alleges that

the prison failed to provide him with computer training that

would have enabled him to access a computerized legal research

database and conduct legal research. Defendants' actions, he

contends, violate his rights to meaningful access to the courts. as guaranteed by the Fourteenth Amendment to the United States

Constitution and Article 14 of the New Hampshire Constitution.2

It is undisputed that inmates have a constitutionally

protected right of meaningful access to the courts. See Bounds

v. Smith,

(1977); Wolff v. McDonnell,

(1974); Boivin v. Black,

(1st Cir.

2000). "This right 'reguires prison authorities to assist inmates

in the preparation and filing of meaningful legal papers by

providing prisoners with adeguate law libraries or adeguate

assistance from persons trained in the law.'" Carter v. Fair,

(1st Cir. 1986)(guoting Bounds,

)).

While a prison inmate retains a right of access to the

courts, to establish a claim he must allege that he suffered

actual injury as a result of defendants' actions. See Lewis v.

Casev,

(1996). An inmate cannot establish

relevant actual injury simply by alleging that "his prison's law

2Construed liberally, the complaint alleges a claim for denial of meaningful access to the courts, as guaranteed by Article Fourteen of the New Hampshire Constitution. The purpose of Article Fourteen is "to make civil remedies readily available, and to guard against arbitrary and discriminatory infringements on access to the courts." Trovato v. DeVeau, 143 H.H. 523, 525,

(1999).

10 library or legal assistance program is subpar in some theoretical

sense." Id. at 351. He must demonstrate that the alleged

shortcomings in the law library or legal assistance program

"hindered his efforts to pursue a legal claim." Id. ("He might

show, for example, that a complaint he prepared was dismissed for

failure to satisfy some technical reguirement which, because of

deficiencies in the prison's legal assistance facilities, he

could not have known. Or that he had suffered arguably

actionable harm that he wished to bring before the courts, but

was so stymied by inadeguacies of the law library that he was

unable even to file a complaint.")

Here, Graham has failed to allege any relevant actual injury

that resulted from the library policies in effect at the NCF.

While he has alleged that a disciplinary report was filed when he

violated the library policy, he has not alleged that the report

was retaliatory in nature or that any constitutional harm ensued.

Nor has he alleged that any action or inaction of prison

officials has frustrated or impeded a specific legal claim. See

Lewis,

(stating that a prisoner must assert that

an actionable claim regarding his sentence of condition of

confinement 'has been lost or rejected, or that the presentation

11 of such a claim is currently being prevented'). Rather, as the

record reflects, Graham has succeeded in presenting his

constitutional claims to this court. Without demonstrating that

the absence of legal resources has prevented him from

participating meaningfully in the legal process, he fails to

allege any constitutional deprivation. Accordingly, I recommend

dismissal of Graham's Fourteenth Amendment claims for denial of

access to the courts as he fails to state a claim upon which

relief may be granted (Counts I-III). I further recommend

dismissal of his parallel state law claims under Article Fourteen

of the New Hampshire Constitution and his related claims for

prospective injunctive relief (Counts I-III).

II. Supervisory Liability

Construed liberally, the complaint names Stanley and Cattell

in their respective supervisory capacities as Commissioner of the

NHDOC and Warden of the NCF. While defendants were not directly

involved in the alleged deprivations, they allegedly instituted

prison policies that denied inmates, like Graham, adeguate

medical care. Further, they tacitly approved the conduct of

subordinate officers who denied Graham prompt and adeguate

medical care.

12 Under Section 1983, respondeat superior cannot serve as a

basis for liability. See County Comm'rs of Bryan County v.

Brown,

(1997). A supervisor may be held liable

only on the basis of his own acts or omissions which must rise to

the level of reckless or callous indifference to the

constitutional rights of others. See Febus-Rodriquez v.

Betancourt-Lebron,

(1st Cir. 1994) . In

addition, there must be an affirmative link between a

subordinate's misconduct and the supervisor's action or inaction,

whether through direct participation or through conduct that

amounts to condonation or tacit authorization. See Carmona v.

Toledo,

(1st Cir. 2000)(quoting Cam!lo-Robles

v. Zapata,

(1st Cir. 1999)). A supervisor

"may be liable under section 1983 if he formulates a policy or

engages in a practice that leads to a civil rights violation

committed by another." Camilo-Robles v. Hovos,

, 6-7

(1st Cir. 1998) .

Here, the complaint alleges that Stanley and Cattell

instituted and enforced prison policies that deprived Graham of

prompt and adeguate medical care. Construed liberally, the

complaint alleges that defendants tacitly approved of McCauley's

13 conduct, her purposeful delay in rendering care to Graham and her

actions in forcing him to wait more than two days to be treated

for a serious condition that reguired hospitalization. A liberal

reading of the complaint suggests that defendants were aware of

the conduct of their subordinates but failed to intervene or

correct the alleged deprivations. If true, these allegations may

well give rise to viable claims against Stanley and Cattell for

their tacit condonation of the actions and omissions of the

subordinate officers. Accordingly, I find that Graham has

alleged the minimum facts necessary to state Eighth Amendment

claims, premised on the denial of adeguate medical care, against

Stanley and Cattell in their supervisory capacities (Count IV).

III. Official Capacity

Construed liberally, the complaint seeks injunctive and

monetary relief for wrongs committed by the defendants as state

actors in their official capacities. It is well-settled that the

Eleventh Amendment bars suits against state entities and state

agents working in their official capacities unless the state has

expressly waived immunity, which has not been done by New

Hampshire for actions brought under Section 1983. See Puerto

Rico Aqueduct and Sewer Auth. v. Metcalfe & Eddy, Inc.,

(1993) (absent waiver, neither a State nor agencies

acting under its control may be subject to suit in federal

court); Will v. Michigan Dep't of State Police,

(1989)(holding that neither a state nor its officials acting in

their official capacities are "persons" under Section 1983).

Official capacity suits against officers of an agency are simply

"another way of pleading an action against an entity of which an

officer is an agent." Monell,

n.55. To the

extent Graham brings official capacity claims for monetary relief

against the defendants, all of whom are NHDOC and NCF officials

or employees, I recommend such claims be dismissed.

On the other hand, official capacity actions against state

actors for prospective injunctive relief are not treated as

actions against the state and may be considered under Section

1983. See Will,

n.10; Ex parte Young,

(1908). Thus, Graham is not barred from bringing

viable claims for prospective injunctive relief against the

defendants in their official capacities. The prospective

injunctive relief sought, however, relates solely to Graham's

claims for denial of access to the courts, none of which claims

are viable. Accordingly, I recommend dismissal of his claims for

15 prospective injunctive relief.

CONCLUSION

For the reasons stated above, I find that Graham has alleged

Eighth Amendment claims, premised on the denial of adeguate

medical care, against Stanley, Cattell and McCauley in their

individual capacities. I recommend dismissal of all remaining

claims. Accordingly, by separate order issued simultaneously

with this report and recommendation, I authorize the above viable

claims to proceed.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the complaint. If the

plaintiff disagrees with the identification of the claims herein,

he must do so by objection filed within ten (10) days of receipt

of this report and recommendation, or he must properly move to

amend the complaint.

Any further objection to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court's order. See

(b)(1);

see also Unauthorized Practice of Law Committee v. Gordon, 979

, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

792 F .2d 4, 6 (1st Cir. 1986).

James R. Muirhead United States Magistrate Judge

Date: January 30, 2003

cc: Melvin Graham, pro se

17