O'Neil, Sr. v. O'Mara, Jr. 08-CV-396-SM 05/11/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jeffrey C. O'Neil, Sr., Plaintiff

v. Civil No. 08-CV-396-SM Opinion No.

James O'Mara, Jr. and Denise Rvan, Defendants and Third-Party Plaintiffs

v.

Charles Ward, M.D., Third-Party Defendant

O R D E R

Under the aegis of

, pro se plaintiff

Jeffrey O'Neil complains that while he was a pretrial detainee in

the Hillsborough County House of Corrections ("HCHC"), he was

denied his prescribed mental-health medication, in violation of

the Fourteenth Amendment to the United States Constitution.

Defendants James O'Mara and Denise Ryan, in a third-party

complaint, claim that any damages for which they may be liable

were wholly caused by Dr. Charles Ward. Before the court are a

motion for summary judgment filed by O'Mara and Ryan, seeking

judgment against the plaintiff, and a motion for summary judgment

filed by Dr. Ward seeking judgment on the indemnity claim.

O'Mara and Ryan object to Dr. Ward's motion, while their own motion remains unopposed by plaintiff. For the reasons given,

the motions filed by O'Mara, Ryan, and Dr. Ward are all granted.

A summary judgment motion should be granted 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." Fe d .

R. Civ. P. 56(c). "The object of summary judgment is to 'pierce

the boilerplate of the pleadings and assay the parties' proof in

order to determine whether trial is actually required.' " Davila

v. Corporacion de P.R. para la Diffusion Publica,

(1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc.,

(1st Cir. 2004)). "Once the moving party avers an

absence of evidence to support the non-moving party's case, the

non-moving party must offer 'definite, competent evidence to

rebut the motion.' " Meuser v. Fed. Express Corp.,

(1st Cir. 2009) (citing Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991)). When ruling on a party's motion for

summary judgment, a trial court "constru[es] the record in the

light most favorable to the nonmovant and resolv[es] all

reasonable inferences in [that] party's favor." Meuser,

(citing Rochester Ford Sales, Inc. v. Ford Motor Co., 287

F .3d 32, 38 (1st Cir. 2002)).

2 O'Neil entered the HCHC on May 20, 2008, as a pretrial

detainee. Up until February of that year, he was a patient of

the Greater Manchester Mental Health Center ("MMHC"). (O'Neil

Dep. (document no. 38-2), at 157; Ward Mot. Summ. J. (document

no. 38), Ex. 6.) In conjunction with O'Neil's treatment, MMHC

provided him with samples of Zoloft, and dispensed Trazadone.

(O'Neil Dep., at 69.) MMHC did not issue any written

prescriptions to be filled elsewhere. (Id. at 62, 65.) When

MMHC gave O'Neil the drug samples, he was provided with a thirty-

day supply. (Id. at 49.) O'Neil's last visit to MMHC prior to

his incarceration (the last time he received medication from

MMHC) took place in November or December of 2007. (Id. at 160-

62.) He was terminated as a patient by MMHC in February of 2008.

(Id. at 157.) From then until his incarceration in May, O'Neil

had no medication and had no prescriptions issued by MMHC. (Id.

at 160.)

An HCHC form, titled "Intake Mental Health Screening," dated

May 22, records O'Neil's report that he had been provided with

Zoloft and Trazadone by MMHC. (Ward Mot. Summ. J., Ex. 3.) A

second HCHC form, titled "Medical History and Screening, " also

dated May 22, records O'Neil's report that he had prescriptions

for Zoloft and Trazadone that had been filled at the Walmart

store in Manchester. (Id., Ex. 1.) Someone from the HCHC

3 medical department telephoned the Walmart pharmacy for

verification, and was told that O'Neil never had any

prescriptions filled there, or at any other Walmart store. (Id.,

Ex. 2.)

On August 14, 2008, New Hampshire Superior Court Judge

O'Neill issued a Pretrial Order for Release ("release order")

that included the following special condition: "If detained, Def.

shall receive all medication prescribed by licensed health

professionals." (Ward Mot. Summ. J., Ex. 14.) On August 31,

O'Neil submitted a Health Services Request Form with the

following request: "Enclosed is a copy of court order from

Superior Court Judge O'Neill III stating all medications should

be given to detainee for my mental health illness."1 (Id.) The

request form documented the following response: "informed

[inmate] all legal matters to [and] through his lawyer [not]

through floor nurse." (Id.) HCHC medical records indicate that

O'Neil complained of depression and Post Traumatic Stress

Disorder in late November, 2008 (id., Ex. 15), was seen by

mental-health personnel starting in early December (id.), and

1 In his deposition, O'Neil described his medical request in the following way: "[0]nce I received [Judge O'Neill's] order, I put onto the medical request slip the court order and asked for them to prescribe my medication." (O'Neil Dep., at 129.) O'Neil's request for a prescription, rather than medication already prescribed, also suggests that when O'Neil entered the HCHC, he had no prescriptions from licensed health professionals.

4 began receiving Celexa for depression and anxiety shortly

thereafter (id., Ex. 16; Ward Aff. (document no. 37-2) 5 15). In

February of 2009, O'Neil began receiving a second mental-health

medication. (O'Neil Dep., at 126.)

Based on the foregoing, O'Neil claims that O'Mara and Ryan

were deliberately indifferent to his serious medical needs, in

violation of the Fourteenth Amendment, by virtue of their alleged

failure to provide him with mental-health medication, as required

by Judge O'Neill's release order, between August 14, 2008, and

February of 2009.

As a preliminary matter, the factual basis for O'Neil's

claim - defendants' alleged failure to follow Judge O'Neill's

release order - is not supported by the undisputed factual

record. While the Magistrate Judge construed O'Neil's complaint

as alleging that he was taking prescribed medication at the time

he was detained, defendants have produced evidence - principally

O'Neil's own deposition testimony - that when he began his

detention in May of 2008, he had not been under the care of a

prescribing physician or psychiatrist for more than three months,

had no mental-health medication in his possession, and had no

prescriptions - either on file at the pharmacy he identified as

the source of his mental-health medication, or otherwise. Thus,

5 the HCHC medical department fully complied with Judge O'Neill's

release order; O'Neil was provided with all the medications

prescribed for him by licensed health professionals, which, as a

matter of undisputed fact, were none. If, as it appears,

O'Neil's claim is that O'Mara and Ryan violated his rights under

the Fourteenth Amendment by failing to follow Judge O'Neill's

order, defendants are entitled to judgment as a matter of law.

If, however, O'Neil's claim is loosely construed as one

based upon deliberate indifference to his serious mental-health

care needs, it still fails as a matter of law. The undisputed

factual record demonstrates that immediately upon O'Neil's

intake, the HCHC medical department contacted the pharmacy from

which he said he obtained Zoloft and Trazadone, and found that he

had not filled any prescriptions there. The record also

establishes that when O'Neil sought treatment for mental-health

issues from the HCHC medical department, he received prompt

attention. O'Neil, in turn, has produced no evidence that the

medical department was ever inattentive to his mental-health

needs. Thus, even when O'Neil's claim is liberally construed,

there is no trialworthy factual issue concerning the mental-

health care defendants provided him. See Estelle v. Gamble,

(1976) (explaining that to prevail on a conditions-

of-confinement claim based upon medical care, plaintiff must

6 prove that prison officials demonstrated "deliberate indifference

to [his] serious medical needs"); Feeney v. Corr. Med. Servs.,

(1st Cir. 2006) (to be unconstitutional, prison

medical care "must have been so inadequate as to shock the

conscience").

On the undisputed factual record, O'Mara and Ryan are

entitled to judgment as a matter of law on O'Neil's claim that

they were deliberately indifferent to his serious medical needs.

Because O'Mara and Ryan are not liable to O'Neil then,

necessarily. Dr. Ward cannot be liable to O'Mara and Ryan, which

entitles him to summary judgment as well.

Conclusion

For the reasons given, defendants' motion for summary

judgment (document no. 38) and Dr. Ward's motion for summary

judgment (document no. 37) are both granted. The clerk of the

court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J/McAuliffe Chief Judge

May 11, 2010

7 cc: Jeffrey C. O'Neil, pro se John A. Curran, Esq. Elizabeth L. Hurley, Esq. Jonathan A. Lax, Esq.

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