Vaillancourt v. Campbell, et a l . 06-CV-438-JD 08/14/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph Vaillancourt, a/k/a Bryan Bernard

v. Civil No. 06-CV-438-JD Opinion No.

Bernadette Campbell. Celia Englander. Brett Mooney, and Donna Timultv

O R D E R

Joseph Vaillancourt, a/k/a Bryan Bernard, was incarcerated

until recently in New Hampshire.1 He is now proceeding pro se

and is also proceeding in forma pauperis.2 As construed by the

magistrate judge, Bernard brings a claim under Title II of the

Americans with Disabilities Act ("ADA") and a claim alleging

constitutionally inadequate medical care, pursuant to

, against Bernadette Campbell, Celia Englander, Brett Mooney,

and Donna Timulty. The defendants move for summary judgment, and

Bernard objects.

1Although his complaint uses the name "Joseph Vaillancourt A/K/A Bryan Bernard," the plaintiff asserts that his real name is Bryan Bernard. Therefore, the court uses the name Bryan Bernard in this order.

Bernard's counsel withdrew in January of 2007. Standard of Review

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,

(1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

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

(1986). All reasonable inferences and all credibility issues

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

In this district, the moving party must support a motion for

summary judgment with a statement of material facts that cites to

evidence in the record. LR 7.2(b)(1). A party opposing summary

judgment must also include a statement of material facts

supported by record citations. LR 7.2(b)(2). In addition,

"[a]11 properly supported material facts set forth in the moving

party's factual statement shall be deemed admitted unless

properly opposed by the adverse party." I d .; see also Fed. R.

2 Civ. P. 56(e)(2); CMI Cap. M k t . Inv., LLC v. Gonzalez-Toro. 520

F .3d 58, 62-63 (1st Cir. 2008).

Bernard filed an objection to the motion to dismiss but did

not include a factual statement or provide his own affidavit or

affidavits from others to support his objection. See Fed. R.

Civ. P. 56(e)(2). He mistakenly relies on the allegations in his

complaint and the results of preliminary review to support his

claims. See Ruiz-Rosa v. Rullan,

(1st Cir.

2007). In the absence of a properly supported opposition to

summary judgment, all of the facts provided in the defendants'

factual statement that are properly supported with citations to

the record are deemed admitted.

Background

Bernard was returned to prison on July 14, 2004. He was

housed at the New Hampshire State Prison in Concord until October

19, 2005, when he was moved to the State Prison in Berlin. He

returned to the Concord facility on September 6, 2006, where he

completed his sentence on March 13, 2008, and was released.

During his incarceration, Bernard complained of a long list

of medical issues, including back and neck pain, high blood

pressure. Hepatitis C, mental illness and depression, ulcers,

asthma, and coronary disease. He was examined by medical

3 personnel, referred to outside medical providers for additional

medical examinations, and treated for his complaints. He was

offered but refused treatment for Hepatitis C and discontinued

medications prescribed for other conditions against the medical

advice he was given. In addition, he has received accommodations

for a variety of issues including passes to be assigned a bottom

bunk, for extra blankets to assist him in positioning while

seated, for slow movement, for use of an elevator, for use of a

walker, for use of a cane, for no work, and for use of a

wheelchair.

Bernard's complaints of arm pain, excessive weakness, and

neck and back pain have never been substantiated by the many

medical tests and consultations he has received. Although

examinations and testing have shown that he has mild degenerative

changes in his spine, that condition did not correlate to the

symptoms Bernard claimed to experience while he was in prison.

When he claimed to have nasal and rectal bleeding, blood tests

confirmed no unusual bleeding had occurred.

Discussion

Bernard's claims, as allowed by the magistrate judge's

report and recommendation, are that the defendants provided

inadequate medical care in violation of the Eighth Amendment and

4 denied him benefits and services in violation of Title II of the

ADA. The defendants contend that the record establishes that

Bernard received constitutionally adequate medical care and that

he cannot prove his ADA claim.

A. Medical Care

To prove a claim of constitutionally inadequate medical

care, a prisoner must show that prison personnel were

deliberately indifferent to his serious medical needs. Erickson

v. Pardus. 127 S. C t . 2197, 2198 (U.S. 2007). A serious medical

need is a condition that has been "diagnosed by a physician as

mandating immediate treatment, or one that is so obvious that a

layman would easily recognize the necessity of medical

treatment." Mahan v. Plymouth County House of Corrs., 6

(1st Cir. 1995) (internal quotation marks omitted).

"Deliberate indifference means that a prison official

subjectively must both be aware of facts from which the inference

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

he must also draw the inference." Ruiz-Rosa.

(internal quotation marks omitted). Negligence, inadvertence,

and disagreement about treatment do not rise to the level of

deliberate indifference.

Despite a lack of medical evidence to support at least some

5 of Bernard's complaints of medical conditions, the defendants do

not contest for purposes of this claim that Bernard has serious

medical conditions. Instead, each defendant provides an

affidavit and cites to the record to show that Bernard received

extensive medical attention for his claimed medical issues. The

medical records that Bernard submitted with his objection to

summary judgment also show that he has received appropriate

medical attention for his complaints. He offers no other support

for his claim.

In the absence of any evidence that the defendants were

deliberately indifferent to Bernard's serious medical needs, the

defendants are entitled to summary judgment on that claim.

B. Title II, ADA

Title II of the ADA provides that "no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity."

. A "qualified individual with a disability" under Title II

is "an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices, . . .

or the provision of auxiliary aids and services, meets the

6 essential eligibility requirements for the receipt of services of

the participation in programs or activities provided by a public

entity." § 12131(2). Title II provides a private cause of

action for damages against public entities that violate its

provisions, including states at least to the extent the state's

conduct actually violated the Constitution. Toledo v. Sanchez.

454 F .3d 24, 31 (1st Cir. 2006).

1. Individual Defendants

The only defendants remaining in this action are individuals

sued in their personal capacities. Title II of the ADA provides

a cause of action against "public entities" but not against

individuals sued in their personal capacities. Kiman v. N.H.

Dept. of Corrs.,

, at *8 (D.N.H. Aug. 1, 2007);

see also Alston v. Dist. of Columbia. -- F. Supp. 2d --- ,

(D.D.C. June 19, 2008). Therefore, the

individual defendants are entitled to summary judgment.

2. Statutory Requirements

Even if the Department of Corrections were a defendant,

Bernard could not prove his claim.3 The defendants contend that

3Bernard also sued the individual defendants in their official capacities, but the magistrate judge construed those

7 Bernard cannot show that he is disabled as defined by the ADA,

that he was excluded from participating in or denied the benefits

of the Department's services, programs, or activities, or that

any exclusion or denial of benefits was because of his

disability. In response, Bernard provides a list of what he

considers to be evidence of his physical limitations.

The defendants amply support their argument that Bernard was

not physically disabled by the minor issues that his medical

examinations and testing showed. The medical records, generated

in response to his repeated complaints of back, neck, and arm

pain and numbness, show that he had mild to moderate changes in

his spine that would not account for the degree of pain and

disability that he claimed and did not require additional

treatment. He refused to attend some of the appointments set up

for him and did not follow the medication regimens prescribed.

In addition, he was provided a host of accommodations for his

claimed ailments and disabilities, including, among other things,

passes to avoid walking, to have a lower bunk, and to be excused

from work, and he was allowed to use an elevator, a cane, a

walker, and a wheelchair.

claims under § 1983 and dismissed them as barred by sovereign immunity. Therefore, the Department of Corrections is not a party in this action. Therefore, Bernard has not shown that a trialworthy issue

exists to support a claim under Title II of the ADA against the

Department of Corrections.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 264) is granted, which resolves

the plaintiff's claims in favor of the defendants. The Clerk of

Court shall enter judgment accordingly and close the case.

SO ORDERED.

/s/ Joseph A. DiClerico, Jr. Joseph A. DiClerico, Jr. United States District Judge

August 14, 2008

cc: Bryan Bernard, pro se Nancy Smith, Esq.

9