Carey v. Ward 06-CV-239-SM 09/07/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

William J. Carev, Plaintiff

v. Civil No. 06-CV-293-SM Opinion No.

Charles Ward, M.D., and Denise Rvan, L.P.N., Defendants

O R D E R

Pro se plaintiff, William Carey, is an inmate at New

Hampshire's Northern Correctional facility and no stranger to

federal litigation.1 He brings this action seeking damages for

alleged violations of his constitutionally protected rights. See

generally

. Specifically, Carey claims that

while he was a pre-trial detainee at the Hillsborough County

House of Corrections (also known as "Valley Street"), Dr. Charles

Ward and Nurse Denise Ryan violated his Eighth and Fourteenth

1 Carey has been the plaintiff in at least nine suits filed in this court, nearly all of which appear to relate in some way to his multiple periods of incarceration in the state prison system and/or Hillsborough County House of Corrections. He has sued Dr. Ward (one of the defendants in this case) at least three times for allegedly showing deliberate indifference to his serious medical needs - all of which relate to the same period covered by Carey's current complaint. Whether the claims raised in this proceeding might be barred by the doctrines of res judicata and/or collateral estoppel is not clear. Amendment rights by displaying deliberate indifference to his

serious medical needs.

Pending before the court are defendants' motions for summary

judgment. For the reasons set forth below, those motions are

granted.

Standard of Review

When ruling on a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party's favor." Griqqs-Rvan v. Smith.

(1st Cir. 1990). Summary judgment is appropriate

when the record reveals "no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In this context, "a fact is

■'material' if it potentially affects the outcome of the suit and

a dispute over it is 'genuine' if the parties' positions on the

issue are supported by conflicting evidence." Int'l Ass'n of

Machinists & Aerospace Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

2 Nevertheless, if the non-moving party's "evidence is merely

colorable, or is not significantly probative," no genuine dispute

as to a material fact has been proved, and "summary judgment may

be granted." Anderson v. Liberty Lobby. Inc..

, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the non­

movant's ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore bald

assertions, unsupported conclusions, and mere speculation. See

Serapion v. Martinez.

(1st Cir. 1997).

Here, in support of their respective motions for judgment as

a matter of law, defendants have submitted affidavits as well as

copies of Carey's prison records (including both medical request

slips and medical records). In his two-page objection (and his

three-page "motion to object," which the court has treated as a

supplemental objection), Carey merely asserts that defendants are

not credible and advances entirely unsupported claims of medical

malpractice. Although Carey is proceeding pro se, he is a

frequent litigant in this court and, given his substantial

3 litigation experience, is presumed to fully understand that more

is necessary to overcome a properly supported motion for summary

judgment.

Background

The factual background is set forth in detail in defendants'

memoranda. Carey's history of medical treatment at Valley Street

is chronicled in the affidavits submitted by defendants and

attached to their respective memoranda of law. Because Carey has

not offered any affidavits, depositions, or records that

contradict defendants' recitation of the relevant facts, the

court will assume that they are accurate. See Local Rule

7.2(b)(2) ("All properly supported material facts set forth in

the moving party's factual statement shall be deemed admitted

unless properly opposed by the adverse party.").

Defendants' statement of material facts are part of the

record. Those facts relevant to the disposition of this matter

are discussed as appropriate.

4 Discussion

I. Deliberate Indifference to Serious Medical Needs.

In order to prove a section 1983 claim for medical

mistreatment, an inmate or detainee must show that prison

officials demonstrated "deliberate indifference to [his] serious

medical needs." Estelle v. Gamble.

(1976).

This test has both subjective (state-of-mind) and objective

components. See DesRosiers v. Moran.

(1st Cir.

1991). In Farmer v. Brennan.

(1994), Justice Souter

explained the state-of-mind element of deliberate indifference in

the context of an Eighth Amendment claim. Ri. at 834-847. In

short, a prison official is liable "only if he knows that inmates

face a substantial risk of serious harm and disregards that risk

by failing to take reasonable measures to abate it." Ri. at

847 .2

2 While Carey was housed at Valley Street, he was a pretrial detainee. Accordingly, the constitutional obligations owed to him by defendants flow from the provisions of the Fourteenth, rather than the Eighth Amendment. Nevertheless, the protections available to detainees under the Fourteenth Amendment "are at least as great as the Eighth Amendment protections available to a convicted prisoner." City of Revere v. Massachusetts Gen. H o s p .,

(1983) (citing Bell v. Wolfish.

(1979)).

5 Accordingly, an Eighth (or Fourteenth) Amendment medical

mistreatment claim cannot be premised upon a theory of simple

negligence or medical malpractice; a medical care provider's

conduct must go beyond negligence in diagnosing or treating a

prisoner's medical condition. Similarly, a constitutional

violation does not occur merely because a prisoner happens to

disagree with a nurse's or physician's decision regarding the

proper course of medical treatment. See Watson v. Caton.

(1st Cir. 1993) ("The courts have consistently

refused to create constitutional claims out of disagreements

between prisoners and doctors about the proper course of a

prisoner's medical treatment, or to conclude that simple medical

malpractice rises to the level of cruel and unusual

punishment.").

With regard to the objective component of the deliberate

indifference test, the inmate must show that he or she has

suffered a serious deprivation of a fundamental right or basic

human need. See DesRosiers.

. As the Supreme

Court has observed, the Constitution "does not mandate

comfortable prisons, and only those deprivations denying the

minimal civilized measure of life's necessities are sufficiently

grave to form the basis of an Eighth Amendment violation."

6 Wilson v. Seiter,

(1991) (citation and internal

quotation marks omitted). See also Rhodes v. Chapman.

(1981) ("Conditions must not involve the wanton and

unnecessary infliction of pain, nor may they be grossly

disproportionate to the severity of the crime warranting

imprisonment. . . . But conditions that cannot be said to be

cruel and unusual under contemporary standards are not

unconstitutional. To the extent that such conditions are

restrictive and even harsh, they are part of the penalty that

criminal offenders pay for their offenses against society.").

II. Plaintiff's Medical Treatment.

Carey claims that defendants violated his constitutional

rights by having been deliberately indifferent to his serious

medical needs. He says both Dr. Ward and Nurse Ryan were aware

that he suffered from an umbilical hernia (a condition that pre­

dated his initial detention at Valley Street) and,

notwithstanding his repeated complaints, knowingly and

deliberately denied him appropriate treatment. The record does

not, however, support such a claim.

Although both Ward and Ryan were, indeed, aware that Carey

suffered from an umbilical hernia, it was both small and

7 asymptomatic. In fact, during one visit with Nurse Ryan in

December of 2004, Carey mentioned the hernia but, when asked

whether it caused him any pain or discomfort, he said it did not

He then added that, "This stuff is years old. I just like to

remind them for the hell of it." Carey made no specific request

for treatment. In March of 2005, when Carey submitted a sick

slip in which he complained that his hernia had not yet been

surgically repaired. Nurse Ryan put restrictions on his

activities and referred him to Dr. Ward for evaluation. When Dr

Ward examined Carey, he noted the existence of the hernia, but

observed that it was "asymptomatic at this time."

Subsequently, in January of 2006, Carey submitted a sick

slip in which he complained that his hernia had become worse.

Carey was again referred to Dr. Ward, who noted that the hernia

was approximately 1.5 centimeters in size. Ward reported that

Carey's condition should be monitored and he instructed Carey to

report any changes. Later that day, Carey submitted a grievance

in which he alleged that "Dr. Frankenstein" and "Igor" (i.e.. Dr

Ward and Nurse Ryan) were not properly treating his hernia. The

following day, Ryan provided Carey with a written response, in

which she reminded him that "you were seen and assessed. The

doctor noted no change to the hernia which you have had since approximately 11/20/03 ... As Dr. Ward documented, we will

continue to observe and you were instructed to report any

changes."

Carey did not report any subsequent changes to the hernia.

He did, however, undergo a physical examination in July of 2006,

during which Dr. Ward again noted the presence of the hernia, as

well as the fact that it was easily reducible. Carey was

transferred to the state prison facility the following month and

underwent surgery to repair the hernia at some point in 2007. In

support of his claim that defendants were deliberately

indifferent to his serious medical needs, Carey points to a

medical report dated January 17, 2007 (i.e., six months after his

last physical from Dr. Ward), in which the examining physician

noted that his umbilical hernia was (at least as of that date)

"nontender [and] partially reducible but not completely so."

Carey seems to believe that because his hernia eventually

developed to the point that it was not completely reducible and

because he eventually had surgery to repair it. Ward and Ryan

were necessarily deliberately indifferent to his condition when

he was previously housed at Valley Street. He has not, however,

provided any evidence or expert testimony to support such a

9 claim. And, even if he could demonstrate that Ward and/or Ryan

was negligent in failing to arrange for surgery, more would be

necessary to support a claim of deliberate indifference.

As noted above, mere negligence or simple medical

malpractice does not rise to the level of cruel and unusual

punishment, nor does it constitute deliberate indifference to

serious medical needs. Instead, an inmate/plaintiff must point

to some evidence from which a trier of fact might reasonably

conclude that the treating physician or nurse knew that he faced

a substantial risk of serious harm and, nevertheless, disregarded

that risk by failing to take reasonable measures to abate it.

Farmer,

. Here, Carey has completely failed to

demonstrate that there is any genuinely disputed material fact on

that essential point.

The record supports a different view altogether — that,

while Ward and Ryan were aware of Carey's hernia, they both

believed that it was asymptomatic, had not grown in size during

Carey's various detentions at Valley Street, and did not require

prompt surgery. When Carey complained of the hernia's existence

(though not of any related pain or discomfort), he was

specifically instructed to limit his physical activity and to

10 report any changes. When he subsequently complained of changes

to the hernia, he was immediately seen by Dr. Ward, who

concluded, once again, that there had been no noticeable changes

(and, at least implicitly, that Carey was exaggerating his claims

that the hernia had grown in size).

The only bit of evidence presented by Carey that is even

remotely supportive of his claim is a statement of general

information on umbilical hernias, which he obtained from an

online resource.3 That document (no. 47-3) provides a general

description of umbilical hernias, states how they are diagnosed,

discusses the potential risks of untreated umbilical hernias, and

explains how they are treated. Presumably, Carey relies on the

latter section of that document, which provides:

How is an umbilical hernia treated? Most adults with umbilical hernias will need surgery to fix their hernias. Until surgery can be done, medicines such as acetaminophen or ibuprofen may help decrease discomfort from your hernia. Ask your caregiver which over-the- counter pain medicine is right for you. Always tell your caregiver if you have new or worsening pain in the

3 Defendants object to Carey's reliance on that document and move the court to strike it from the record. See document no. 45. Among other things, defendants point out that the statements contained in that document are hearsay and of questionable accuracy and reliability. The court need not address defendants' arguments because, even if the document were admissible, it would not help Carey avoid summary judgment.

11 area of your hernia. You may need surgery right away (emergency surgery) if a loop of intestine becomes trapped in the hernia.

I d . at 2 (emphasis supplied). Here, however, Carey has failed to

point to anything in the record suggesting that he suffered any

pain or discomfort as a result of his hernia. Nor has he pointed

to any medical resources suggesting that, despite the absence of

any symptoms or pain, prompt surgery is medically necessary (or

even appropriate) for a small and easily reducible hernia like

his .

In short, nothing in the record suggests that either Dr.

Ward or Nurse Ryan provided sub-standard care to Carey, much less

were indifferent to his medical needs. When he raised the issue

of his hernia, medical staff at Valley Street (including Ward and

Ryan) always immediately asked if he was experiencing any

symptoms or pain. He was not. Accordingly, the medical staff

instructed him to monitor the condition and report any changes he

might observe. It is difficult to imagine how such medical

advice might even be construed as malpractice.

To prevail on his constitutional claim, Carey must point to

some evidence which, if credited, would support the conclusion

12 that: (1) he had a "serious medical need" - that 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. Mass..

(1st Cir. 1990);

(2) defendants knew or should have known that the failure to

treat his condition surgically would result in "an unnecessary

and wanton infliction of pain" or to be "repugnant to the

conscience of mankind." Estelle,

; and (3)

despite such knowledge, defendants were deliberately indifferent

to his situation and knowingly denied him access to appropriate

medical treatment (i.e., surgery). He has failed to do so. In

fact, the undisputed material facts suggest that Carey received

more than adequate medical care during his various detentions at

Valley Street.

Conclusion

For the foregoing reasons, as well as those set forth in

defendants' memoranda, defendants have demonstrated that they are

entitled to judgment as a matter of law as to Carey's claim that

they were deliberately indifferent to his serious medical needs.

Accordingly, defendant Ryan's motion for summary judgment

13 (document no. 37) and defendant Ward's motion for summary

judgment (document no. 41) are granted.

Plaintiff's motions for subpoena ad testifcandum (documents

no. 43 and 51) are denied. Defendant Ward's motion to strike

(document no. 45) is denied as moot, as is Defendant Ryan's

motion to join (document no. 46). Finally, although defendants

have yet to respond to plaintiff's motion for summary judgment

(as the time for doing so has not yet run), that motion (document

no. 47) is, for the reasons set forth above, denied as well.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

St/even J./McAuliffe Chief Judge

September 7, 2007

cc: William J. Carey, pro se Jonathan A. Lax, Esq. Elizabeth L. Hurley, Esq. John A. Curran, Esq.

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