Chambers v . Warden, NHSP CV-02-304-JD 01/08/04 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randolph Chambers

v. Civil N o . 02-304 JD Opinion N o .

Warden, New Hampshire State Prison, et a l .

O R D E R

The plaintiff, Randolph Chambers, proceeding pro s e , brings

a civil rights claim under

, alleging that his

treatment at the New Hampshire State Prison violated the Eighth

Amendment and also alleging that the defendant doctors were

negligent in their treatment of him. The defendant doctors move

for summary judgment on the ground that in the absence of medical

experts, Chambers cannot prove his claims against them. The

warden moves for summary judgment on the alternative grounds that

Chambers did not exhaust his administrative remedies as required

by 42 U.S.C. § 1997e(a) and that he cannot prove his claims

against her. Chambers objects to summary judgment and has filed

a motion to introduce expert witness reports.

Chambers also moved for a preliminary injunction to require

the prison to send him to a pain management clinic to treat his

back pain. The magistrate judge has issued a report and

recommendation that the motion be denied. I. Motion to Introduce Expert Witness Reports

Chambers moves for leave to submit the results of a liver

biopsy he received in July of 2003. The defendants did not

object to Chambers’ motion. Although no expert opinion is

attached to the motion, Chambers apparently refers to a letter to

him, dated July 1 5 , 2003, from Marcy G. Southwell, PA-C, GI Associates of New Hampshire, which he submitted with his

objection to summary judgment. That letter provides the results

of a liver biopsy that was conducted on June 2 0 , 2003. There

being no objection, the letter dated July 1 5 , 2003, will be

considered as part of the record for purposes of deciding summary

judgment.

II. Summary Judgment

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,

1 7 , 323 (1986). A party

opposing a properly supported motion for summary judgment must

2 present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc.,

4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

Background

Randolph Chambers has been incarcerated at the New Hampshire

State Prison since September of 2001. He began receiving medical

care immediately upon his arrival and has continued to receive

medical care to the present time. He has been treated by D r .

Edward Eldridge, D r . Herb T . Myers, and D r . David M . Freedman,

who are defendants in this case, along with other medical care

providers who are not defendants.

Chambers alleges in his complaint that he was not properly

treated for the Hepatitis-C virus, lower back pain, and skin

disease. As summarized by the defendants, the treatment Chambers

has received includes physical therapy, physical examination and

consultation with staff and outside medical care providers, and

back surgery. In response to the defendants’ motion for summary

judgment, Chambers contends that the care and treatment he

received were inadequate to address his back pain and the

Hepatitis C virus and that some of the treatment was provided

only after he brought suit.

3 The defendants offer the affidavit of D r . David M . Freedman,

who identifies himself as Chambers’ primary physician beginning

late in 2002. 1 D r . Freedman gives his opinion that Chambers’

medical care and treatment since he became the attending

physician have been fully consistent with the applicable standard

of care. The defendants also submit the affidavits of Anna

Fazzina, R.N., the nurse coordinator of the prison infirmary, and

Joyce Leeka, the Administrator of Health Information Management

at the New Hampshire Department of Corrections, who provide

summaries of Chambers’ medical care and treatment.

A hearing was held on November 2 5 , 2003, to address

Chambers’ motion for a preliminary injunction to require the

prison to send him to a pain management clinic to treat his back

pain. The magistrate judge issued a report and recommendation on

the same day, recommending that the motion be denied. Chambers

requested and was granted an extension of time to file an objection to the report and recommendation, but he did not file

an objection within the time allowed. The report and

recommendation is approved.

1 It appears from the records that Freedman treated Chambers from the time he arrived at the prison, although he may not have been the primary physician.

4 A. Doctors’ Motion for Summary Judgment

The doctor defendants move for summary judgment on the

ground that expert medical opinion testimony is necessary to

prove both Chambers’ state law medical malpractice claim and his

Eighth Amendment claim. They contend that because Chambers has

not disclosed an expert witness, he cannot prove his claims. Chambers agrees that he did not disclose an expert witness within

the time allowed under the discovery plan, but he contends that

he should be allowed to submit the medical records from his liver

biopsy as his expert report. Although the court has permitted

Chambers to add the letter he submitted pertaining to his liver

biopsy to the record for summary judgment, that letter does not

constitute an expert witness opinion or disclosure. See Fed. R.

Civ. P. 26(a)(2). Therefore, Chambers has not disclosed an

expert witness who would testify in support of his claims.

1. Medical Malpractice

Under New Hampshire law, a plaintiff cannot prove medical

negligence without expert opinion testimony as to the applicable

standard of care and causation.

-E:2;

Emerson v . Bentwood,

5 1 , 256 (2001). It is undisputed

that Chambers does not have an expert witness to testify on his

behalf. Neither the letter from PA-C Marcy G. Southwell nor any

5 other medical evidence in the summary judgment record suffices as

an expert opinion. Therefore, Chambers cannot prove his medical

negligence claim under New Hampshire law.

To prove an Eighth Amendment violation, Chambers must show

that the defendants were deliberately indifferent to his serious

medical need. Estelle v . Gamble,

7 , 104 (1976). “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

doctor’s attention.” Mahan v . Plymouth County House of Corr.,

4 , 18 (1st Cir. 1995) (internal quotation marks omitted).

Neither medical negligence nor a disagreement between the medical

staff and the prisoner about which course of treatment to follow

constitutes an Eighth Amendment violation. See Watson v . Caton,

3 7 , 540 (1st Cir. 1993); Layne v . Vinzant,

(1st Cir. 1981). On the other hand, medical treatment

that falls so far below the applicable medical standard as to

deny essential care shows deliberate indifference to serious

medical needs. Moore v . Duffy,

(8th Cir.

2001); Torraco v . Maloney,

3 1 , 234 (1st Cir. 1991).

Chambers acknowledges that he received medical care from the

time he first arrived at the prison. He contends, however, that

he did not receive adequate treatment for the Hepatits-C virus,

6 back pain, or his skin condition and that some treatment was not

provided until after he filed suit on June 2 6 , 2002. Chambers’

medical records show that he has received medical attention

addressing those conditions.

Chambers’ Hepatitis-C diagnosis was documented and followed

from the time he arrived in September of 2001. Chambers does not identify what treatment was medically necessary and yet was not

provided. A medical note dated April 2 , 2002, states that the

new regimen for treating the Hepatitis C virus was not then

available. In June of 2002, D r . Freedman's note states that a

protocol was being developed for Chambers and that his test

results showed that he was doing better. A medical record dated

June 1 3 , 2002, also indicated improvement over past results.

After a hearing held in this case on June 2 8 , 2002, the court

noted that the state represented that a medical plan was in place to address Chambers’ Hepatitis-C condition.

Tests in October of 2002, showed an increase in the liver

enzyme level. Additional tests were done and a liver biopsy was

scheduled in November of 2002. The biopsy was cancelled due to

Chambers’ back surgery, and the biopsy was performed June of

2003. The only record of the results of the biopsy is a letter,

dated July 1 5 , 2003, from Marcy G. Southwell, PA-C, which reports

that Chambers had a moderate amount of inflammation and mild to

7 moderate scarring or necrosis. She recommended that he seek

treatment for the Hepatitis-C virus.

The summary judgment record does not include medical records

documenting any treatment following the recommendation in July of

2003 by the medical care provider.2 During the preliminary

injunction hearing held on November 2 5 , 2003, Chambers admitted

that he has stopped taking pegylated interferon, which he

initially sought to treat his Hepatitis-C condition and which was

prescribed and provided by the prison. He has not challenged the

treatment that was prescribed, and therefore, appears to be

satisfied with the treatment he is now receiving.

Chambers was first seen on September 2 1 , 2001, for his back

pain. Following the June 2 8 , 2002, hearing, the court noted that

Chambers was scheduled for appointments with a physical therapist

and an orthopaedist. Chambers has been treated with medication,

physical therapy, and surgery to address his back condition and pain.

Chambers primary complaint is that the defendants failed to

adequately address his back pain with medication. He also

contends that his neurosurgeon, D r . Jennifer Kernan, recommended

2 The parties’ papers relating to the present summary judgment motion were filed in July of 2003. The defendants did not have the biopsy results, and Chambers provides only the letter from PA-C Southwell.

8 that he be referred to a pain management clinic, which the prison

has not done. D r . Kernan stated in her examination note that

Chambers showed some degree of symptom magnification and that

continued narcotic treatment would not be appropriate. She

recommended a home exercise program and that pain management be

used instead of long-term narcotic medicine, if necessary. Dr. Freedman’s note of September 1 6 , 2003, shows that he

interpreted D r . Kernan’s recommendation of home exercise and pain

management in lieu of narcotic medication to suggest pain

management if the home exercise program failed. D r . Freedman

also noted that Chambers was addicted to narcotics, that he

magnified his symptoms of pain, and that he had not tried the

exercise plan. The treatment plan D r . Freedman prescribed was to

implement an exercise program to be coordinated by the physical

therapist and to taper off use of narcotic medication. At the hearing held on November 2 5 , 2003, D r . Freedman

testified that he had conferred with D r . Kernan about Chambers’

treatment. He testified that they agreed that Chambers’

medication must be changed from vicodin, which masks heroin

usage, to ultram which does not, that Chambers must engage in a

“home” exercise program, and that only after he is weaned from

medication and has engaged in the exercise program and still

experiences significant pain would a pain management clinic be

9 tried. Chambers admitted that he refuses to do the exercise

program and does not take the prescribed medication.

The medical records indicate that Chambers also received

treatment for his skin condition. He received medicated cream

for a rash beginning in December of 2001. He was also treated

with an antibiotic, Prednisone, and Atarax. When the rash persisted over a period of eight months, he was referred to a

dermatologist, who did a skin biopsy. The results of the biopsy

indicated scabies and dermatitis. Treatment was prescribed and

apparently was effective in resolving the rash.

2. Eighth Amendment

Medical expert opinion may be required to show an Eighth

Amendment violation due to deliberate indifference to a serious

medical need when the nature of the medical need is not apparent.

See, e.g., Robinson v . Hager,

6 0 , 564 (8th Cir. 2002);

Comstock v . McCrary,

(6th Cir. 2001); Campbell

v . Sikes,

, 1368-69 (11th Cir. 1999); Boring v .

Kozakiewicz,

6 8 , 473 (3d Cir. 1987). In this case, the

record does not indicate that any treatment was prescribed or

recommended for Chambers’ Hepatitis-C virus until after the

biopsy results were evaluated in July of this year. Chambers

then apparently received appropriate treatment, although he

10 refuses to take the prescribed medication. The need and

availability of treatment for Chambers’ Hepatitis-C virus before

July of this year are not apparent from the record, so that such

a determination would require medical expert opinion. In the

absence of expert opinion, Chambers cannot show that the

defendant doctors were deliberately indifferent to a serious medical need for treatment due to the Hepatitis-C virus.

Chambers has received treatment for his Hepatitis-C virus,

his back condition, and his skin disease. The record does not

indicate that any treatment was recommended or prescribed and not

provided. He has not shown that the treatment he received was so

deficient or substandard as to constitute deliberate indifference

to his serious medical needs. Therefore, he has not shown that

the defendant doctors violated his Eighth Amendment rights.

B. Warden’s Motion for Summary Judgment

The warden contends that Chambers failed to exhaust the

available administrative remedies as is required by 42 U.S.C. §

1997e(a). The warden alternatively argues that Chambers cannot

succeed on the merits of his claims. Because the record does not

support Chambers’ claims on the merits, as determined in the

context of the defendant doctors’ motion, it is not necessary to

11 consider the affirmative defense of administrative exhaustion.3

Conclusion

For the foregoing reasons, the defendants’ motions for

summary judgment (documents n o . 32 and 33) are granted. The

plaintiff’s motion to introduce expert witness reports (document

n o . 37) is granted to the extent that medical evidence pertaining

to his liver biopsy, submitted with his response to the

defendants’ motions for summary judgment, was considered. The

report and recommendation issued on November 2 5 , 2003, (document

n o . 57) is approved, denying the plaintiff’s motion for

injunctive relief (document n o . 4 0 ) .

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge January 8 , 2004

cc: Randolph L . Chambers, pro se Andrew B . Livernois, Esquire Blake M . Sutton, Esquire

3 The administrative exhaustion requirement of § 1997e(a) is an affirmative defense that must be pled and proven by the defendant. See Casanova v . DuBois,

5 , 78 n.3 (1st Cir 2002). Because the doctor defendants did not raise the issue of exhaustion in their motion, it was appropriate to consider the merits of Chambers’ claims first.

12