Chambers v . Gerry, Warden, et a l . CV-07-326-JL 11/09/07 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randolph Chambers

v. Civil N o . 07-cv-326-JL Opinion N o .

.P Richard Gerry, Warden New Hampshire State Prison, et a l .

REPORT AND RECOMMENDATION

Pro se plaintiff Randolph Chambers is before the court

seeking relief from the New Hampshire State Prison’s (“NHSP”)

alleged refusal to provide him necessary dental care. He filed a

civil rights complaint pursuant to

and a motion

for preliminary injunctive relief. (Document nos. 1 and 8 ,

respectively.) A hearing on plaintiff’s preliminary injunction

motion was held on November 2 , 2007. For the reasons set forth

below, I find plaintiff has demonstrated both a likelihood of

success on the merits of his underlying civil rights claim and a

substantial risk of irreparable harm, and recommend, therefore,

that the preliminary injunction be granted. In a separate order

issued simultaneously herewith, I will have the complaint served to enable this action to proceed.

Discussion

1. Standard of Review

To justify the extraordinary relief of a preliminary

injunction, plaintiff bears the burden of establishing that an

injunction is necessary to prevent irreparable harm and to

preserve the status quo, to enable a meaningful disposition upon

full adjudication of his claims. See Ross-Simons of Warwick,

Inc. v . Baccarat, Inc.,

2 , 18 (1st Cir. 1996) (finding

irreparable harm where legal remedies are inadequate); see also

CMM Cable Rep. v . Ocean Coast Props.,

1 8 , 620-1 (1st

Cir. 1995) (enjoining certain conduct permits the court “more

effectively to remedy discerned wrongs”); Acierno v . New Castle

County,

(3rd Cir. 1994) (explaining irreparable

harm and its effect the contours of preliminary injunctive

relief). To carry this burden, plaintiff must demonstrate: “(1)

the likelihood of success on the merits; (2) the potential for

irreparable harm [to the movant] if the injunction is denied; (3)

the balance of relevant impositions, i.e., the hardship to the

nonmovant if enjoined as contrasted with the hardship to the

2 movant if no injunction issues; and (4) the effect (if any) of

the court’s ruling on the public interest.” Esso Standard Oil

C o . v . Monroig-Zayas,

3 , 18 (1st Cir. 2006); see also

Ross-Simons of Warwick, Inc.,

(explaining the

burden of proof for a preliminary injunction). If plaintiff is

not able to show a likelihood of success on the merits, the

remaining factors “become matters of idle curiosity,”

insufficient to carry the weight of this extraordinary relief on

their own. See Esso Standard Oil Co., 445 F.3d at 18 (the “sine

qua non . . . is likelihood of success on the merits”) (internal

quotation omitted). While likelihood of success is the critical

factor, a preliminary injunction will not issue even if plaintiff

is likely to succeed, unless plaintiff also demonstrates he will

suffer irreparable harm without the requested injunctive relief.

See Ross-Simons of Warwick, Inc.,

(“the predicted

harm and the likelihood of success on the merits must be

juxtaposed and weighed in tandem”).

Since plaintiff must demonstrate his likelihood of success

on the merits, the preliminary issue of whether he has stated a

claim upon which relief may be granted arises. When, as is the

case here, an incarcerated plaintiff commences an action pro se

3 and in forma pauperis, the complaint is reviewed to determine

whether, among other things, it states a cognizable claim for

relief. See 28 U.S.C. § 1915A (requiring the court to review as

soon as practicable complaints filed by prisoners against

governmental entities and employees to determine whether the

action may proceed); see also U.S. District Court for the

District of New Hampshire Local Rule 4.3(d)(2). Pro se pleadings

must be construed liberally, so “that if they present sufficient

facts, the court may intuit the correct cause of action, even if

it was imperfectly pled.” Ahmed v . Rosenblatt,

(1st Cir. 1997); see also Ayala Serrano v . Lebron Gonzales,

, 15 (1st Cir. 1990) (following Estelle v . Gamble,

7 , 106 (1976) to construe pro se pleadings liberally in favor of

the pro se party). All factual assertions and inferences

reasonably drawn therefrom must be accepted as true. See Aulson

v . Blanchard,

, 3 (1st Cir. 1996) (stating the “failure

to state a claim” standard of review). This ensures that pro se

pleadings are given fair and meaningful consideration. See

Eveland v . Dir. of C.I.A.,

6 , 49 (1st Cir. 1988).

2. Plaintiff’s Showing

Plaintiff’s § 1983 complaint asserts a single claim for a

4 violation of the Eighth Amendment, based on the NHSP’s refusal to

fill a cavity that was diagnosed in May 2007. Denial of dental

care is considered a denial of medical care, which can constitute

an Eighth Amendment violation when prison authorities are

deliberately indifferent to a prisoner’s serious medical needs.

See Estelle,

(explaining the government’s

obligation to provide medical care to inmates to comply with the

proscription against “unnecessary and wanton infliction of

pain”); see also Hunt v . Dental Dep’t,

9 8 , 200 (9th

Cir. 1989) (“‘Dental care is one of the most important medical

needs of inmates.’” (quoting Romas v . Lamm,

(10th Cir. 1980))). “Accordingly, the eighth amendment requires

that prisoners be provided with a system of ready access to

adequate dental care.” Hunt,

; see also Chance v .

Armstrong,

9 8 , 702 (2d Cir. 1998) (cognizable claim

regarding inadequate dental care can be based on various factors

including pain suffered by plaintiff); Dean v . Coughlin,

9 2 , 399 (S.D.N.Y. 1985) (failure to provide routine

dental care violates Eighth Amendment rights); Laaman v .

Helgemoe,

(D.N.H. 1977) (“Inmates are

entitled to reasonable dental care.”).

5 Deliberate indifference is manifested by prison officials

who “intentionally deny[] or delay[] access to medical care or

intentionally interfer[e] with the treatment once prescribed.”

Estelle,

. “A medical need is ‘serious’ 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.”

Gaudreault v . Municipality of Salem,

(1st Cir.

1990). Although a mere delay in needed dental care will not

violate the Eighth Amendment, when that delay causes or gives

rise to a substantial risk of serious harm to a prisoner, the

requisite deliberate indifference to a serious medical need is

found. See Farrow v . West,

(11th Cir.

2003) (need for dental care combined with the effects of not

receiving it may give rise to an Eighth Amendment claim); see

also Boyd v . Knox,

(8th Cir. 1995) (delay in

dental care coupled with knowledge of patient’s pain can support

Eighth Amendment claim).

At the hearing, plaintiff testified that he went to sick

call on May 9, 2007, at which time he received a temporary

filling and was put on the waiting list for an appointment to

6 receive a permanent filling. Within the hour the filling had

fallen out. Plaintiff testified that he continues to suffer pain

from the tooth, caused either by food or cold liquids that come

in contact with the cavity. While the evidence indicated the

pain has not been severe, and plaintiff showed no signs of

infection, he testified that every time food or liquid touched

the cavity he endured at least fifteen minutes of pain, which

sometimes lasted longer and which has caused him to avoid

exposing the tooth to these irritants. Most notably, however,

plaintiff amply demonstrated that the prison has known of his

pain and yet has not even scheduled him for the permanent filling

he has needed since at least May 2007. See Boyd,

(finding delayed dental care combined with knowledge of pain

supports Eighth Amendment claim).

The evidence demonstrated that plaintiff has consistently

complained about his tooth, following proper prison procedures,

from the initial sick call visit on May 9 until the hearing on

November 2 . Plaintiff orally complained in June, and filed

grievance forms, often bimonthly, about his need for a filling in

June, July, August, September and October, before commencing this

action. See Pl.’s Exs. 1-6; Def.’s Exs. B-G. Plaintiff filed

7 his complaints with the NHSP Dental Office, NHSP Chief Dentist

Karen Anderson, Warden Richard Gerry, who responded by referring

the matter to Medical Director Robert McLeod, and with

Commissioner William Wrenn. On August 8 , 2007, plaintiff was

advised:

We now have even less staff because the dentists are out until October. We have one D r . for 3 prisons. We cannot possibly see everyone and we still can’t put you ahead of others who have been waiting since November. You will need to wait your turn and we will see you when we can. It will be at least 8 months. (looking at your charts you have had 3 fillings/3 appointments in the last 8 months - you have been seen a lot more than most people)

Pl.’s Ex. 3 (emphasis in original). After continued persistence,

plaintiff managed to get on the “short notice call list,” which

enables an inmate to be seen if someone cancels or an appointment

suddenly becomes available. See Pl.’s Ex. 5 . Despite his “short

list” status, plaintiff’s tooth remains untreated.

Dr. Anderson explained that prison policy required that

inmate dental care be evaluated and prioritized based on the

severity of the problem, so that emergencies could be attended to

immediately, and routine dental care would be taken care of on a

first come, first serve basis, as time allowed. She testified

that plaintiff’s condition was not urgent, as he exhibited no

8 signs of swelling, fever, or his condition otherwise worsening.

She also explained that plaintiff could have come to sick call

again and have waited to be seen; however, plaintiff declined

that option.1 She stated that because of a contract dispute, she

was the sole dentist for the prison in July, August and September

2007. For understandable and obvious reasons, the work

presumably accumulated faster than she could attend to i t . She

concluded her testimony by opining that, while plaintiff’s need

was not urgent, the protracted delay in getting his cavity filled

was not consistent with good dental care and fell below the

ordinary standard of care.

I find this evidence demonstrates a deliberate indifference

on the part of the New Hampshire Department of Corrections

(“NHDOC”) to take care of the dental needs of its inmates. The

undisputed evidence showed that just one dentist, D r . Anderson,

was responsible for all the inmates in the entire state prison

system for at least July, August and September 2007. There was

no evidence that during that time period the NHSP made other

arrangements to obtain the requisite dental care for inmates, by

1 The evidence showed that inmates pay $3.00 for a sick call visit, but are not denied care if they do not have available funds.

9 outsourcing the work or otherwise. Instead, the official

response was simply to wait, unless an emergency was occurring.

Based on common experience, which was substantiated by D r .

Anderson’s professional opinion, waiting nearly a year, or

longer, to have a cavity filled is substandard care. While

plaintiff may not have an emergent need today, the extended delay

in providing him dental care creates a substantial risk of a

serious medical need arising.

Whatever financial or policy considerations may have

affected the NHDOC’s negotiations with its dentists is not an

excuse for its complete failure to provide routine dental care.

Based on the evidence before m e , I find plaintiff repeatedly

informed defendants of his pain, which they consistently

dismissed, apparently because of lack of resources. I readily

find defendants have failed to provide plaintiff with “a system

of ready access to adequate dental care,” Hunt,

0 0 ,

in violation of the Eighth Amendment. See Laaman,

(finding prisoners “need not await the inevitable harm”

caused by staff shortages, which “render medical services below

constitutional muster” when the lack of coverage endangers the

health of the inmate population).

10 3. Defendants’ Liability

In this § 1983 action, plaintiff seeks both injunctive and

monetary relief, and has named the following individuals as

defendants: D r . John Doe, D r . Anderson, Director McCleod, Warden

Gerry and Commissioner Wrenn.2 Plaintiff alleges D r . John Doe

saw him at the May 9, 2007, sick call and placed a temporary

filling in his cavity. Since plaintiff makes no other allegation

pertaining to the care received by D r . John Doe, he has failed to

state an actionable § 1983 claim against D r . John Doe, and I

recommend that he be dismissed from this action. Plaintiff has,

however, alleged sufficient facts to state claims against the

remaining defendants.

Plaintiff has not specified whether defendants Anderson,

McLeod, Gerry and Wrenn are being sued in their official or

individual capacities. Liberally construing the complaint in

plaintiff’s favor, as I am required to do at this preliminary

2 Plaintiff also named the “Medical Department ‘Dental’” as a defendant. The claims against Anderson, the Chief Dentist at the NHSP, and McLeod, the Medical Director of the NHSP, subsume any claim plaintiff asserts against the Medical Department. See Monell v . NYC Dep’t of Soc. Servs.,

5 8 , 690 n.55 (1978) (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”).

11 stage of review, because he seeks both injunctive and monetary

relief, I find he intends to bring this action against the

defendants in both their official and individual capacities.

Since each defendant works for the NHDOC, a suit against them in

their official capacities is a suit against the NHDOC, which

cannot be held liable for money damages under § 1983 because of

the immunity afforded state agencies under the Eleventh

Amendment. See P.R. Aqueduct & Sewer Auth. v . Metcalf & Eddy,

Inc.,

(1993) (absent waiver, neither a state

nor its agencies may be subject to suit in federal court); Will

v . Mich. Dep’t of State Police,

8 , 71 (1989) (holding

that neither a state nor its officials acting in their official

capacities are “persons” under § 1983). Yet, to obtain the

prospective injunctive relief plaintiff seeks here, he must bring

this action against defendants in their official capacities. See

id. at 71 n.10; see also Brandon v . Holt,

6 4 , 471-72

(1985)(suing an officer in his or her official capacity is

another way of suing the public entity that the official

represents); Ex Parte Young,

(1908).

On the other hand, in order to obtain the monetary relief

plaintiff seeks, he must pursue his claims against defendants in

12 their individual capacities. Each defendant named here serves a

supervisory function within the NHDOC. Although there is no

supervisory liability in § 1983 actions based on a respondeat

superior theory of liability, see Bd. of the County Comm’rs v .

Brown,

9 7 , 403 (1997); City of Canton v . Harris,

7 8 , 385 (1989), a defendant supervisor can be held liable

based on the defendant’s actual notice of facts sufficient to

render the official responsible for reasonable inquiry into the

complaint. See Feliciano v . DuBois,

(D.Mass. 1994) (citing Layne v . Vinzant,

(1st Cir.

1981)). A supervisor also may be held liable for his own acts,

or omissions, if they rise to the level of reckless or callous

indifference to the constitutional rights of others. See Febus-

Rodriguez v . Betancourt-Lebron,

7 , 91-92 (1st Cir.

1994). Finally, a supervisor may be held liable under § 1983 if

he or she “formulates a policy or engages in a practice that

leads to a civil rights violation committed by another.” Camilo-

Robles v . Hoyos,

, 7 (1st Cir. 1998).

Based on the current record, defendants Anderson, McLeod,

Gerry and Wrenn each knew of plaintiff’s pain and need for a

filling, and nevertheless failed to take any steps to ensure the

13 requisite care would be provided within a time period even

approaching the standard of ordinary care. These allegations

state the minimal facts necessary to allow plaintiff’s Eighth

Amendment claim to proceed against defendants Anderson, McLeod,

Gerry and Wrenn. Accordingly, plaintiff’s § 1983 action may

proceed against defendants Anderson, McLeod, Gerry and Wrenn in

both their official and individual capacities. In an order

issued simultaneously herewith, I will order the clerk’s office

to serve the complaint on these defendants.

Conclusion

As explained fully above, I recommend that plaintiff’s

motion for a preliminary injunction (document n o . 8 ) be granted.

I recommend that defendants be ordered to provide plaintiff with

the dental care needed to properly fix his cavity within 30 days

of the date of this Report and Recommendation. I also recommend

that defendants D r . John Doe and “Medical Department ‘Dental’” be

dismissed from this action.

Any objections to this report and recommendation must be

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

14 file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v . Gordon,

1 , 13-14 (1st Cir. 1992);

United States v . Valencia-Copete,

, 6 (1st Cir. 1986).

__________________ James>R. Muirhead Jnited States Magistrate Judge

Date: November 9, 2007

cc: Laura E.B. Lombardi, Esq. Randolph Chambers, pro se

15