Peterson v . Warden NHSP CV-05-55-PB 01/07/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Warren E . Peterson

v. Case N o . 05-cv-55-PB Opinion N o .

Jane Coplan, Former Warden, NH State Prison, et a l .

MEMORANDUM AND ORDER

Warren Peterson, an inmate at the New Hampshire State Prison

(“NHSP”), alleges that the defendants (all of whom are

correctional and medical staff at NHSP) violated his Eighth

Amendment right to be free from cruel and unusual punishment by

exhibiting deliberate indifference to his serious medical and

mental health care needs, starting with his admission to NHSP in

1999 and culminating in an incident which occurred between

February 6-11, 2002. The named defendants are former NHSP warden

Jane Coplan, corrections officer Richard E . Caouette, and former

NHSP dietician Maryann Wareing.1 The defendants have moved for

1 Two omissions from this list are noteworthy. First, in his Objection to Defendants’ Third Motion for Summary Judgment (Doc. N o . 5 7 ) , Peterson stated that he is dropping his claim against corrections officer Christian Lanman. I therefore dismiss that claim with prejudice. Second, Peterson also names a summary judgment. For the reasons described below, I grant their

motion.

I. BACKGROUND

Peterson’s original complaint and amended complaint were

unsworn, and he did not provide any separate affidavits during

discovery. His Objection to Defendant’s Motion for Summary

Judgment II (Doc. N o . 29) (“Obj. I I ” ) , however, was sworn. To

the extent that Peterson’s averments are drawn from personal

knowledge, then, the allegations contained within that objection

are of evidentiary quality. Accordingly, this summary of the

facts is drawn from Peterson’s sworn statements, the medical

records that Peterson has proffered, and the much greater volume

of evidence proffered by the defendants that Peterson does not

properly dispute.2

John Doe defendant (“Chief Medical Officer”). However, Magistrate Judge Muirhead’s second Report and Recommendation (Doc. N o . 1 2 ) , accepted by my order of July 1 8 , 2005, limited the claims to the defendants whom Peterson had identified by name. Although Peterson received instructions from Judge Muirhead on the proper procedure for doing s o , Peterson failed to obtain a name for John Doe; John Doe is therefore not a properly named defendant. 2 Peterson also made certain other unsworn allegations without any evidentiary support, many of which were described by

-2- Keeping these limitations in mind, I summarize the evidence

available to m e , drawing all reasonable inferences from that

evidence in Peterson’s favor.

A. Treatment Prior to February 6, 2002

In 1985, prior to his incarceration, Peterson underwent

surgery to repair an anal fissure. This surgery caused permanent

scarring and narrowing of his anus, which made Peterson prone to

painful constipation.

Upon his arrival at NHSP in 1999, Peterson repeatedly

requested, but did not receive, a diet higher in fiber than the

standard NHSP diet, which he believed would alleviate his anal

pain and constipation. Throughout the relevant time period,

NHSP’s medical providers examined and treated Peterson numerous

times in an effort to reduce his anal pain and constipation.

They advised him to drink more water, exercise regularly, and

supplement his diet with additional fiber sources such as

Metamucil. NHSP records suggest that Peterson disobeyed their

Magistrate Judge Muirhead in his Second Report and Recommendation (Doc. N o . 1 2 ) . In some cases, for the sake of clarity or to provide further background, I describe these unsupported allegations in footnotes or parentheticals. In general, however, I restrict my recitation of facts to what can reasonably be inferred from the evidence provided to m e .

-3- advice by skipping meals and not drinking enough water. A July

2 4 , 2000, nutritional assessment, for example, repeated earlier

recommendations that he eat all three meals, exercise more, and

drink more water, and then opined that Peterson was “unwilling to

initiate change to improve his health status.” Although Peterson

contends that NHSP’s conditions of confinement are responsible

for his failure to meet these recommendations during his first

two months at NHSP and during his various episodes of solitary

confinement, he does not provide explanations for the other

periods. Indeed, Peterson appears to concede that he was not a

fully cooperative patient. He asserts, for example (writing in

the third person), “The plaintiff said he was unwilling to drink

More [sic] water, as he was already consuming plenty of fluids

each day.” (Obj. II at 6.)

NHSP Health Services sent Peterson to a specialist, D r .

Russell Strong, for an outside consultation on May 7 , 2001. D r .

Strong recommended that Peterson receive a high-fiber diet,

receive sitz baths, receive glyceryl trinitrate, and take

Metamucil as a dietary supplement.

Peterson requested that the NHSP provide him with a modified

diet in response to D r . Strong’s recommendations. NHSP officials

-4- declined to do so because the regular prison diet contained 29 g

of dietary fiber, and the available alternative diets contained

less dietary fiber than the regular diet. After some initial

confusion regarding what diet Peterson was receiving, D r . Strong

opined that the standard NHSP diet provided sufficient fiber for

Peterson’s needs because it met or exceeded the daily requisite

25-27 g of dietary fiber.

NHSP officials provided Peterson with a sitz bath3 and

opportunities to use i t . Peterson refused the sitz bath because

he believed that “he could accomplish far better results by

simply turning his back side to a hot shower.” (Obj. II at 7.)

There appears to have been a brief delay in providing the

glyceryl trinitrate, which was not part of the NHSP infirmary’s

regular stores and had to be ordered from an outside vendor.

Peterson’s medical records do not include any notations

confirming that the infirmary had ordered glyceryl trinitrate for

him until July 1 7 , 2001, when D r . Strong called to complain that

Peterson had not yet received the medication.

3 A sitz bath is a small tub that allows the patient to submerge his or her posterior in warm water. In Peterson’s case, the purpose of the sitz bath appears to have been to irrigate his rectum.

-5- In addition to its treatment of Peterson’s anal problems,

the NHSP provided him with regular psychological evaluation and

treatment for recurring depression and suicidal ideation. NHSP

psychological staff diagnosed him as suffering from recurring

Major Depressive Disorder, as well as Mixed Personality Disorder.

Dr. Richard Fellows, who serves as Chief Psychologist for NHSP

and Peterson’s primary therapist, had numerous regular

appointments with Peterson and prescribed various anti-

depressants starting soon after Peterson’s admission to NHSP,

including Zoloft, Paxil, Dexepin, Effexor, and Remeron. Peterson

was placed on suicide watch six times between November 1999 and

February 2002. NHSP officials monitored his medications and

dosages, adjusting them multiple times in response to his suicide

threats and suicide attempts.

B. Treatment on February 6, 2002

Nurse Coordinator Donna Timulty was on duty in the infirmary

from 3:00 p.m. to 11:00 p.m. on February 6, 2002, after sick call

had ended for Peterson’s unit. Starting at approximately 4 p.m.,

Peterson repeatedly asked the corrections officer on duty to take

him to the infirmary for emergency treatment.

-6- Under NHSP policy, when an inmate requests medical

assistance after sick call is over for his unit, the nurse on

duty conducts telephone triage to determine whether the situation

requires immediate treatment. In this telephone triage, the

nurse should obtain as much information as possible from the

corrections officer or unit manager, consult the inmate’s chart,

and then determine whether immediate treatment is necessary.

The corrections officer (not a named defendant) communicated

to Nurse Timulty that Peterson was complaining of constipation.

After consulting Peterson’s chart, Nurse Timulty decided that the

situation did not require immediate treatment and recommended

that Peterson wait until the morning sick call for his unit.

Subsequently, Peterson threatened to commit suicide if he

was not immediately admitted to the infirmary, and the officer

communicated his threat to Nurse Timulty over the telephone.

Based on her prior experience with Peterson, who had previously

made manipulative threats of suicide, Nurse Timulty concluded

that he was engaging in manipulative behavior and recommended

that Peterson be transferred to the Special Housing Unit (SHU).

The officer then telephoned Nurse Timulty a third time, and she

spoke directly with Peterson over the telephone. Peterson

-7- repeated his constipation complaints, telling her that the pain

from constipation was “excruciating.” (Obj. II at 8.)

Nevertheless, Nurse Timulty determined that Peterson did not need

emergency care and again concluded that his suicide threat was

not genuine, so she instructed Peterson to drink more water and

wait until the morning sick call.

Later that evening, after lockdown, Peterson made one more

call to the corrections officer on duty, but ended the

conversation after deciding his request was futile. He then

went into the bathroom and cut himself with a razor blade.

Corrections officers discovered Peterson bleeding in the

bathroom. He told them he was shaving, but they saw no shaving

instruments and decided to take him to a holding tank. Peterson

later admitted to Catherine Fontaine, Consultant/Psychiatric

Registered Nurse, that this was not a genuine suicide attempt but

an instance of manipulative behavior to try and gain access to

the infirmary and establish that corrections officers were not

doing their jobs.

Peterson was kept in the holding tank for the rest of the

night. About half an hour after being moved to the holding tank,

Peterson repeated his earlier complaints of anal pain to the

-8- shift commander (not a named defendant), and added that his

problems now included difficulty urinating. (Obj. II at 9.)

Nothing in the record suggests that this information was ever

communicated to the infirmary or to NHSP medical staff. At 5:30

a.m., Peterson requested that corrections officer Lanman take him

to the infirmary, but Lanman refused to do so until the infirmary

opened for the morning sick call. At 7:00 a.m., Peterson was

then taken to the morning sick call in the infirmary.

C. Treatment from February 7 , 2002 through February 1 1 , 2002

Upon Peterson’s admission to the infirmary, Nurse Brad

Bowden examined Peterson and catheterized him to drain urine.

Peterson then requested an enema. After Nurse Bowden left the

room, D r . Richard Fellows, Chief Psychologist of NHSP, met with

Peterson. At 10:05 a.m., D r . Fellows ordered that Peterson be

placed on suicide watch, with instructions to check on him at

fifteen minute intervals. Peterson’s requested enema was ordered

at 10:40 a.m.4 That evening, Peterson smeared peanut butter on

4 Peterson’s amended complaint made unsworn allegations that the enema caused him to defecate on the floor, that he was ordered to clean up the resulting mess, and that he was left passed out on the floor afterward. Peterson did not, however, provide anything of evidentiary quality supporting those allegations. NHSP records indicate that the enema proceeded without incident.

-9- the camera lens in the room and was thereafter ordered to clean

the camera with paper towels.

On the morning of February 8 , the infirmary’s progress notes

indicate that Peterson “got bored & ripped mattress cover” in his

room. Nurse Fontaine met with Peterson later that morning to

conduct a psychological evaluation, determined that he should

remain on suicide watch, and made plans to reassess him on

February 1 1 .

On the morning of February 9, Peterson refused lunch and

again smeared food on the camera. He then defecated on the floor

and moved his mattress in and out of camera view. Nurse Bowden

concluded that the defecation was acting-out behavior, and

ordered Peterson to clean the room and the camera. Peterson

claims that he was “forced” to defecate on the floor because a

corrections officer or officers denied him sufficient access to

the toilet.5 (Obj. II at 10.)

5 In his amended complaint, Peterson made an unsworn allegation that defendant Richard Caouette was the corrections officer responsible for supervising Peterson’s toilet usage while in isolation. Peterson further alleged that Caouette denied him timely access to the toilet and that when Caouette took Peterson to the toilet, he did not allow Peterson enough time to have a bowel movement. Caouette, however, was out on sick leave on February 7 and did not return to work until February 1 0 , 2002, and Peterson has not submitted any evidence calling into question NHSP’s employment records.

-10- On February 10 and 1 1 , NHSP records indicate that Peterson

was again constipated and complaining of pain. NHSP personnel

supplied him with pain medications. On February 1 1 , after

another psychological evaluation, he was released back to his

unit.

II. STANDARD OF REVIEW

Defendants have moved for summary judgment. Summary

judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). Once the moving party has

properly supported her motion for summary judgment, the burden

shifts to the nonmoving party, with respect to each issue on

which he has the burden of proof, to demonstrate that a trier of

fact reasonably could find in his favor. DeNovellis v . Shalala,

9 8 , 306 (1st Cir. 1997); see Celotex,

.

“At this stage, the nonmoving party ‘may not rest upon mere

-11- allegation or denials of [the movant’s] pleading, but must set

forth specific facts showing that there is a genuine issue’ of

material fact as to each issue upon which he would bear the

ultimate burden of proof at trial.” DeNovellis, 124 F.3d at 306

(quoting Anderson v . Liberty Lobby, Inc.,

4 2 , 256

(1986)). The test is whether, as to each essential element,

there is “sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party. If the evidence is

merely colorable or is not significantly probative, summary

judgment may be granted.” Id. (quoting Anderson,

).

III. ANALYSIS

Peterson alleges that he received constitutionally

inadequate medical care, including inadequate mental health care,

at the hands of the defendants.

To succeed with such a claim, Peterson must prove “acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Feeney v . Corr. Med.

Servs., Inc.,

5 8 , 161 (1st Cir. 2006) (quoting Estelle

v . Gamble,

(1976)), cert. denied, 128 S . C t . 105

-12- (U.S. 2007). Mere negligence or malpractice is not enough to

meet this standard. Estelle,

(“[m]edical

malpractice does not become a constitutional violation merely

because the victim is a prisoner”); Feeney, 464 F.3d at 162

(“when a plaintiff’s ‘allegations simply reflect a disagreement

on the appropriate course of treatment[, s]uch a dispute with an

exercise of professional judgment may present a colorable claim

of negligence, but it falls short of alleging a constitutional

violation” (quoting Ferranti v . Moran,

8 8 , 891 (1st

Cir. 1980))). The two elements -- deliberate indifference and

the existence of a serious medical need -- set a high bar for the

plaintiff.

For a prison official to engage in deliberate indifference,

the prison official must “know[] of and disregard[] an excessive

risk” of harm to the inmate. Farmer v . Brennan,

(1994). The official must have “actual knowledge of

impending harm, easily preventable” and nevertheless disregard

that knowledge. DesRosiers v . Moran,

5 , 19 (1st Cir.

1991). “[A]n official’s failure to alleviate a significant risk

that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the

-13- infliction of punishment.” Farmer,

.

The First Circuit has defined a serious medical need as 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 Cty. House of Corr.,

4 , 18 (1st Cir. 1995)

(quoting Gaudreault v . Salem,

(1st Cir. 1990)).

A. Diet and Constipation Treatment Prior to February 6, 2002

1. High-Fiber Diet

Peterson alleges that NHSP failed to provide him with the

high-fiber diet recommended by D r . Strong, and that the prison’s

failure to provide such a diet constituted deliberate

indifference to his serious medical needs. Even assuming that a

deviation from D r . Strong’s dietary recommendations would meet

the standard for deliberate indifference for any of the named

defendants, Peterson has failed to create a genuine dispute over

whether or not the NHSP diet satisfied D r . Strong’s

recommendations.

First, Peterson has failed to create a genuine dispute over

whether the NHSP diet, as described in the menus, satisfied D r .

Strong’s recommendations. D r . Strong’s letter of July 3 0 , 2001,

-14- indicates that a diet providing 25-27 g of dietary fiber would

conform to his recommendations. The NHSP’s 2001 Regular Menu

Analysis states that the prison diet contained an average of 29 g

of dietary fiber. Peterson argues that the NHSP’s regular diet

was not sufficient because it was not specifically labeled as a

“special diet,” “high fiber diet,” or “medical diet.” In D r .

Strong’s medical judgment, however, the regular diet was

sufficient to meet Peterson’s fiber needs. Peterson’s lay

judgment that the diet contained insufficient fiber does not

trump D r . Strong’s expert medical judgment.

Second, Peterson has failed to create a genuine dispute over

whether the NHSP diet, as actually served, satisfied D r . Strong’s

recommendations. Peterson makes generalized allegations that the

food actually served often contains more processed food and less

fresh fruit and vegetables than listed on the menu. He has not,

however, provided evidence of the frequency or nature of such

substitutions during the period from 1999 to 2002 as identified

in his Amended Complaint. As a result, Peterson has failed to

create a genuine dispute over either (1) whether such

substitutions took place from 1999 to 2002, or (2) whether, if

they took place, such substitutions reduced the fiber content of

-15- his meals to a level below D r . Strong’s recommendation of 25-27 g

of dietary fiber. Accordingly, he has failed to create a genuine

issue of material fact regarding whether the food served met D r .

Strong’s stated requirements. Furthermore, he has not provided

evidence linking any of the named defendants to the alleged menu

substitutions.

Accordingly, I grant summary judgment to the defendants as

to Peterson’s dietary allegations.

2. Other Aspects of Constipation Treatment

To the extent that Peterson alleges that other aspects of

his constipation treatment regimen were inadequate, he has failed

to carry his burden. The defendants have established that NHSP

medical staff consulted with Peterson numerous times, including

referring him to an outside specialist. They provided him with

numerous treatment recommendations to reduce his constipation

problems, some of which he followed and some of which he did not.

Although Peterson evidently disagreed with the specific

recommendations provided to him by NHSP medical staff, he has

offered no evidence showing that their recommended course of

treatment reflected deliberate indifference to his serious

medical needs. See Feeney, 464 F.3d at 162 (plaintiff’s

-16- disagreement with the professional judgments made by prison

medical officials, without more, is insufficient to establish a

constitutional violation). Indeed, the only respect in which

NHSP officials failed to adhere to D r . Strong’s recommendations

was their apparent tardiness in ordering his glyceryl trinitrate

prescription. But even assuming, arguendo, that the delay was

caused by the negligence of a NHSP official, Peterson has not

proffered any evidence suggesting that any of the defendants

acted with the mental state required for deliberate indifference.

See Estelle,

(“Medical malpractice does not

become a constitutional violation merely because the victim is a

prisoner”). I therefore grant summary judgment to the defendants

as to Peterson’s non-dietary allegations.

B. Adequacy of Medical Treatment on February 6, 2002 and the Early Morning Hours of February 7 , 2002

Peterson alleges that defendants’ refusal to admit him to

the infirmary during the late afternoon and evening hours of

February 6, 2002, and their continuing refusal to admit him

during the early morning hours of February 7 , 2002, constituted

deliberate indifference to his serious medical needs in violation

of his Eighth Amendment right to be free from cruel and unusual

punishment.

-17- When Peterson alerted the corrections officer to his

constipation, sick call had already ended for his unit. Thus,

per NHSP policy, he could only be admitted to the infirmary if

his medical complaint qualified as an acute or emergency

condition. Nurse Timulty followed NHSP policy by conducting

telephone triage, speaking both with the correctional officer on

duty and with Peterson himself. According to her professional

judgment based on the information available to her, Nurse Timulty

determined that Peterson’s constipation did not justify emergency

treatment. Peterson has offered no evidence suggesting that

Nurse Timulty’s decision under this policy rose to the level of

deliberate indifference.

Nurse Timulty does note that, had she been aware that

Peterson was suffering from urinary retention, she would have

cleared him for immediate admission. Neither Peterson nor the

shift commander, however, communicated any urinary complaints to

Nurse Timulty, so she lacked any knowledge of his urinary

retention. Without actual knowledge of the retention, she could

not have been deliberately indifferent to i t . See DesRosiers,

9 . Thus, Nurse Timulty’s failure to treat

-18- Peterson’s urinary retention on an emergency basis also does not

rise to the level of deliberate indifference.6

Similarly, there is no evidence that Nurse Timulty acted

with deliberate indifference when she did not accept at face

value Peterson’s threat that he would commit suicide if he was

not immediately taken to the infirmary. Based on her prior

experience with Peterson, Nurse Timulty made a professional

judgment that the threat was an attempt at manipulation rather

than a genuine suicide threat. Peterson has offered nothing to

call her judgment on this issue into question, so he has no

evidentiary basis for claiming deliberate indifference on the

basis of that decision.

Accordingly, I grant summary judgment to the defendants as

to Peterson’s allegations of deliberate indifference to his

serious medical needs on February 6, 2002, and the early morning

hours of February 7 , 2002.

6 Peterson’s claim might also be interpreted as arguing that the shift commander’s alleged failure to communicate Peterson’s urinary complaints to Nurse Timulty constituted deliberate indifference. Regardless of whether such an argument has merit, however, the shift commander is not a named defendant and his actions cannot be imputed to others who were not aware of those actions.

-19- C. Adequacy of Medical Treatment from February 7 , 2002 through February 1 1 , 2002

Peterson alleges that once he was admitted to the infirmary

on the morning of February 7 , 2002, the defendants provided

treatment so inadequate that their actions constituted deliberate

indifference to his serious medical needs in violation of his

Eighth Amendment right to be free from cruel and unusual

punishment.

Upon admission to the infirmary, Peterson was catheterized,

his abdomen was examined, he requested and then received an

enema, and he underwent a psychological evaluation. In this way,

NHSP medical staff responded to his apparent urinary, anal, and

psychological issues. Peterson has failed to carry his burden

because he has failed to offer any evidence suggesting that any

of these procedures reflected deliberate indifference to his

identified medical needs.

After his treatment at the infirmary, Peterson was kept in

isolation, with no toilet in the cell. He says that he was

denied access to the toilet and was therefore “forced” to

defecate on the floor. Defendants, meanwhile, characterize his

defecation as acting-out behavior and a ploy to receive more

attention, not a genuine loss of control due to insufficient

-20- toilet access. Even if I assumed that Peterson defecated due to

a loss of control over his bowels rather than a desire to act

out, however, he has not provided any evidence showing that any

particular defendant knew he needed more frequent access to the

toilet and deliberately refused to provide such access, nor has

he established that such denial had serious medical consequences.

Thus, he has failed to carry his burden of showing that the

limitations on his access to the toilet constituted deliberate

indifference to his serious medical needs.

Accordingly, I grant summary judgment to the defendants as

to Peterson’s allegations of deliberate indifference to his

serious medical needs from February 7 , 2002, through February 1 1 ,

2002.

D. Supervisory Liability

Peterson alleges that Jane Coplan is liable for the actions

of her subordinates under a respondeat superior theory. However,

focuses on those who have actually abused their

positions of authority, not those who have merely been

insufficiently diligent at monitoring their subordinates.

Martinez-Velez v . Rey-Hernandez,

2 , 41 (1st Cir. 2007).

Thus, a § 1983 claim cannot be predicated on a respondeat

-21- superior theory. Barreto-Rivera v . Medina-Vargas,

2 ,

48 (1st Cir. 1999); Aponte Matos v . Toledo Davila,

8 2 ,

192 (1st Cir. 1998). Instead, “[t]here is supervisory liability

only if (1) there is subordinate liability, and (2) the

supervisor’s action or inaction was affirmatively linked to the

constitutional violation caused by the subordinate. That

affirmative link must amount to supervisory encouragement,

condonation or acquiescence, or gross negligence amounting to

deliberate indifference.” Aponte Matos,

(internal cites and quotations omitted).

In this case, Peterson has both failed to provide sufficient

evidence of constitutional violations by any of Coplan’s

subordinates, and failed to offer any evidence of “supervisory

encouragement, condonation or acquiescence, or gross negligence

amounting to deliberate indifference” by Coplan. See

Accordingly, his argument for supervisory liability must fail.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion for Summary

Judgment on the Merits (Doc. N o . 55) is granted. The clerk is

directed to enter judgment accordingly.

-22- SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

January 7 , 2008

cc: Warren E . Peterson, pro se Mary E . Maloney, Esq.

-23-