Cheney v. Carroll County HOC, et al. 10-CV-202-JD 09/29/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael G. Chenev

v. Civil No. lO-cv-202-JD Opinion No. 2 010 DNH 17 0

Carroll County House of Corrections, et a l .

O R D E R

Michael G. Cheney, proceeding pro se and in forma pauperis,

brought suit against the Carroll County House of Corrections

("CCHOC"), where he is a pretrial detainee, alleging that the

CCHOC, its former superintendent, and a former corrections

officer violated his constitutional rights by failing to provide

a residential program to treat his alcoholism. On preliminary

review, the magistrate judge determined that Cheney did not

allege a cognizable claim and recommended dismissal. Cheney

objects to the magistrate judge's report and recommendation and

moves to amend his complaint, to compel discovery, and to seal

the entire case.

I. Report and Recommendation

When an objection is filed to a magistrate judge's report

and recommendation, " [a] judge of the court shall make a de novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made."

(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). The

objecting party bears the burden of identifying those parts of

the report and recommendation that are the subject of the

objection, and " [c]onclusory objections that do not direct the

reviewing court to the issues in controversy do not comply with

Rule 7 2 (b)." Velez-Padro v. Thermo King de P.R., Inc., 4

(1st Cir. 2006).

On preliminary review of a civil action brought by a

prisoner, the court must identify any cognizable causes of action

or dismiss the complaint if it is "frivolous, malicious, or fails

to state a claim upon which relief may be granted: or [] seeks

monetary relief from a defendant who is immune from such relief."

28 U.S.C. § 1915A(b). In determining whether a complaint states

a claim, the court accepts as true the well-pleaded allegations

in the complaint and takes reasonable inferences in the

plaintiff's favor. Martino v. Forward Air, Inc.,

(1st Cir. 2010). To avoid dismissal, "a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face." Bell Atl. Corp. v.

Twomblv,

(2007). The plausibility standard

does not require a probability but is more than a mere

2 possibility. Ashcroft v. Iqbal, 129 S. C t . 1937, 1949 (2009)

The plaintiff must allege more than legal conclusions,

unsupported accusations, and "'formulaic recitation[s] of the

elements of a cause of action.'"

(quoting Bell,

) .

Cheney states that he strongly objects to the magistrate's

report and recommendation but does not specify which parts he

contests. Instead, Cheney offers additional explanation for his

claim. He states that he has not been able to obtain a copy of

his state court sentence, which he alleges recommended that he

receive treatment for alcoholism in a residential treatment

facility, and further explains that the sentence issued in the

mid-1990s. He argues that his long history of incarceration

supports his claim that his constitutional rights have been

violated by the defendants' failure to provide residential

treatment for his alcoholism.1 He also states that his counselor

1Cheney attached documents to his objection that begin with a form letter to "Attorney," requesting representation in a civil suit to show that his criminal conduct was due to his alcoholism. Cheney also included copies of a "Discharge Instruction Plan" dated September 29, 2008; a letter from New Hampshire Hospital Human Resources, stating that facility could not meet his request; a New Hampshire "Driver Record Report"; a "Program Completion Report"; an order of commitment dated December 7, 1993; an order dated May 11, 1994, pertaining to his deferred sentences; page 4 of a chemical dependency evaluation; a letter to the New Hampshire Public Defender from a pastor; a Carroll County work release form; several newspaper articles; CCDOC

3 told him that the Phoenix House provided alcoholism treatment,

although the Phoenix House stated that the Farnum Center was the

only fully equipped program. Cheney asserts that the "confusion"

was due to "an intentional and deliberate lie."

Cheney's objection does not provide the specificity required

under § 636(b)(1)(C) and Rule 72(b)(3). Nevertheless, the court

construes Cheney's objection to challenge the magistrate judge's

conclusion that he failed to allege a violation of his

constitutional rights. Because Cheney is a pretrial detainee,

his claim arises under the Fourteenth Amendment. Surprenant v.

Rivas,

(1st Cir. 2005). The standard under the

Fourteenth Amendment generally is the same as the Eighth

Amendment standard. Ruiz-Rosa v. Rullan,

(1st

Cir. 2007 ) .

Cheney alleges that the defendants violated his

constitutional rights by failing to provide him with alcoholism

treatment in a residential facility. "For medical treatment in

prison to offend the Constitution, the care must involve acts or

omissions sufficiently harmful to evidence deliberate

inmate request forms asking for copies of Cheney's sentence with an alcohol rehabilitation provision; letters from the Concord Police Department about Cheney's requests for documents; and letters from the New Hampshire Attorney General about Cheney's charges of assaults and theft committed against him.

4 indifference to a serious medical need."

(internal

quotation marks omitted). Deliberate indifference means that the

jail officer or employee was subjectively aware of facts that

support an inference of a substantial risk of serious harm and

drew the inference.

Deliberate indifference in the context

of a jail may be demonstrated "by the denial of needed care as

punishment and by decisions about medical care [that] are made

recklessly with actual knowledge of impending harm, easily

preventable."

(internal quotation marks omitted).

A "serious medical need" is a condition that is diagnosed by

a physician as requiring immediate treatment or a condition that

is so obvious that a layman would recognize the need for medical

treatment. Gaudreault v. Salem,

(1st Cir.

1990). Although alcoholism might constitute a serious medical

need in some circumstances, Cheney alleges that he required

treatment to avoid recidivism, not because of any particular

medical problem while he was incarcerated. Cheney did not allege

that his alcoholism had been diagnosed by a medical care

provider. Instead, he alleges that a sentence imposed in the

1990s included a recommendation for residential treatment for

alcoholism and that his criminal record was caused by his

alcoholism. As such, Cheney does not allege that he was

suffering from a serious medical need while housed at the CCHOC.

5 Cheney also fails to meet the deliberate indifference

requirement. Cheney's allegations do not show that the

defendants were aware that he was an alcoholic or that his

alcoholism presented a significant risk of harm to him while he

was being detained.

In addition, Cheney does not allege that the defendants

failed to provide adequate treatment. The Constitution does not

require a particular medical treatment and "disagreement about

the proper course of treatment [] does not rise to the level of a

constitutional violation." Watson v. Caton,

(1st Cir. 1993); Fiallo v. DeBatista,

(1st Cir.

1981). Cheney does not allege that he was denied all treatment

for alcoholism; he contends only that he was not provided

residential treatment.2

Therefore, Cheney fails to state a claim upon which relief

may be granted and his complaint must be dismissed. The court

approves and adopts the magistrate judge's report and

recommendation.

2In his objection, Cheney refers to a conversation with "L.A.D.A.C. counselor Pauline Duran," who advised him about treatment centers, suggesting that he was receiving counseling while detained.

6 II. Motion to Amend

Cheney also moves to amend his complaint. He states: "My

claim and proposed suit now is directed at the Carroll County

Superior Court presiding Justice Steven M. Houran and person's

[sic] employed at the Carroll County H.O.C. jail, as well as the

Carroll County district court. The presiding justice Robert C.

Varney, of which has had countless and numerous past dealings

with me." Cheney also refers to Pauline Duran as a counselor at

the jail.

To the extent Cheney intends to maintain his claim against

jail officers and employees, including his counselor, he fails to

state a claim as is discussed above. As alleged in his motion,

it is not clear what claim Cheney intends to pursue against the

judges he names. To the extent he alleges that the judges failed

to properly address his alcoholism, which is far from clear from

his motion, that claim is not supported by any factual

allegations and is also precluded by judicial immunity.3 See

Pulliam v. Allen,

(1970); Pierson v. Rav,

(1967); see also Phelps v. O'Toole,

, at *1 (D. Mass. Apr. 1, 2010) . No other claim is

sufficiently alleged to allow review.

3Cheney seeks $3 million in damages.

7 Therefore, Cheney's motion to amend is denied.

III. Discovery

Cheney filed two "Motion[s] for Consideration" in which he

seeks the defendants' personnel files and other information and

information about grievances filed against the judges named in

his motion to amend. Because the claim against the defendants is

dismissed and his motion to amend is denied, the discovery Cheney

seeks is moot, and the motions are denied.

IV. Motion to Seal

Cheney asks the court to seal his entire case. In support,

he argues that he has paid the filing fee of $350 and, as a

result, the filings in the case are his property.4 Cheney is

mistaken.

A case filed in federal court and the documents filed in the

case are presumed to be public. See In re Providence Journal

C o ., Inc.,

, 13-14 (1st Cir. 2002); In re Auerhahn,

(D. Mass. 2009). Cheney offers no

persuasive reason to seal this case. Therefore, the motion is

denied.

4Contrary to his representation, Cheney is proceeding in forma pauperis and has paid only a small part of the filing fee. Conclusion

For the foregoing reasons, the court approves and adopts the

report and recommendation (document no. 7), which dismisses the

complaint. The plaintiff's motion to amend (document no. 11),

motion for consideration (document no. 16), motion for

consideration (document no. 17), and motion to seal (document no.

18) are denied.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

VJJoseph CyJitCiWu>, Ijoseph A. DiClerico, Jr. Jf\ United States District Judge

September 29, 2010

cc: Michael G. Cheney, pro se

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