Picard v . Descar and O’Mara, Jr. 09-CV-271-SM 12/09/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Warren Picard, Plaintiff

v. Civil N o . 09-cv-271-SM Opinion N o . 2010 D N H 208 Elizabeth Descar and James O’Mara, Jr., Defendants

O R D E R

Warren Picard brought suit against the Superintendent of the

Hillsborough County Department of Corrections, and a nurse

employed by the county, claiming they violated his Eighth

Amendment rights, by denying him adequate medical care.

Defendants move for summary judgment. Picard objects. For the

reasons given below, defendants’ motion is granted.

Summary Judgment Standard

Summary judgment 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.” FED. 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.’ ” Dávila

v . Corporación de P . R . para la Diffusión Pública,

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

, 7 (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.,

2 , 38 (1st Cir. 2002)).

Background

Because Picard’s objection includes no affidavit or other

“definite, competent evidence,” Meuser,

, the

following facts, drawn from affidavits filed by Denise Ryan and

David Dionne, are undisputed and taken as true.

Picard has served time in the Hillsborough County House of

Corrections (“Jail”) on other occasions in the past. This

lawsuit arises from a period of incarceration that began on

November 3 0 , 2008. At the outset, Picard refused to allow the

Jail’s medical staff to complete a medical assessment of his

condition. Accordingly, he was placed on quarantine status,

2 which continued for about five weeks, until January 9, 2009.

Elizabeth Descar, a nurse at the Jail, saw Picard on eight

different occasions between December 5 and December 1 4 , 2009,

presumably for the purpose of completing a medical assessment.

Picard’s initial weight was reported as 190 pounds, but

given his refusal to cooperate with the medical assessment, it is

unclear whether he was actually weighed upon intake or simply

reported his weight as 190 pounds. Picard asserts in his

complaint that his jail identification badge listed his weight,

at intake, as 202 pounds. Jail records disclose that, after a

medical examination on February 2 0 , 2009, for an alleged shoulder

injury, Picard was placed on restrictions that precluded him from

lifting weights or engaging in other similar physical activity.

On April 2 1 , Picard requested a weight check. The medical staff

reviewed his previously recorded weights,1 and he was placed on

the May list for a follow-up weight check. Picard’s Jail medical

records indicate that he weighed: 193 pounds on January 1 6 ; 184

pounds on February 2 0 ; 173 pounds on April 4 ; and 168 pounds on

May 1 3 .

1 As a part of that check, staff members examined records from Picard’s previous incarcerations and noted the following weights: 162.5 pounds on September 3 0 , 2005; 182 pounds on November 2 7 , 2006; and 192 pounds on June 3 , 2008.

3 On April 2 6 , 2009, Picard again requested a weight check via

an inmate request slip. Descar responded, informing Picard that

his weight would be checked on May 1 . Picard repeated his

request on April 3 0 , and was informed by Descar that he was on

the list to be checked in May.

On May 5 , 2009, Picard filed an Inmate Grievance Form,

stating the following: “This grievance is the lack of attention

and lack of care that I receive from the medical dept at

H.C.D.O.C. Specifically, my weight loss.” (Dionne Aff., at 5.)

On May 1 2 , the Jail’s Health Services Administrator, Denise Ryan,

responded: “You have been seen by the doctor on 1/16/09 &

2/20/09. The doctor reviewed your chart on 4/3/09 and you were

weighed by the nurse on 4/4/09. You are on the weight list for a

weight check.” (Id.) It appears that Picard was released from

the Jail on May 1 7 , 2009.

As construed by the magistrate judge, Picard’s complaint

asserts a claim that Descar denied him adequate medical care for

weight loss, and that Superintendent O’Mara knew Picard was

receiving inadequate medical care but failed to take corrective

action.

4 Discussion

Defendants move for summary judgment on grounds that Picard

has not made out a prima facie case, that he has not produced the

expert testimony necessary to allow his claims to go forward, and

that, in any event, they are entitled to qualified immunity.

“Where a prisoner claims that his Eighth Amendment rights

were violated by denial of access to proper medical care, he must

prove that the defendants’ actions amounted to deliberate

indifference to a serious medical need.” Braga v . Hodgson,

8 , 61 (1st Cir. 2010) (quoting DesRosiers v . Moran,

5 , 18 (1st Cir. 1991) and Estelle v . Gamble,

7 ,

106 (1976)) (internal quotation marks omitted); see also Feeney

v . Corr. Med. Servs.,

(1st Cir. 2006) (to be

unconstitutional, prison medical care “must have been so

inadequate as to shock the conscience”) (citations omitted).

Deliberate indifference in this context may be shown by the denial of needed care as punishment and by decisions about medical care made recklessly with “actual knowledge of impending harm, easily preventable.” [Feeney, 464 F.3d] at 162 (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 a substantial risk of serious harm exists, and he must also draw the inference.’ ” Burrell [v. Hampshire Cnty.], 307 F.3d [1,] 8 [(1st Cir. 2002)] (quoting Farmer v . Brennan,

(1994)). Therefore, substandard care, malpractice, negligence, inadvertent failure to provide care, and disagreement as to the appropriate course of treatment are all

5 insufficient to prove a constitutional violation. Feeney,

.

Ruiz-Rosa v . Rullán,

(1st Cir. 2007) (parallel

citations omitted).

Here, on the undisputed factual record, both defendants are

entitled to judgment as a matter of law. Descar saw Picard eight

times in December of 2008, shortly after he entered the facility.

At that time, the medical problem Picard now claims was ignored –

substantial weight loss – had not manifested itself. Descar’s

only other contacts with Picard occurred in April of 2009, when

she twice informed him that he was on the May weight-check list,

and so would obtain the weight check he requested. Picard’s

requests to have his weight checked were dated April 26 and 3 0 ,

and the record demonstrates that he was weighed no later than May

13.

Even construing the record in the light most favorable to

Picard, the non-moving party, Descar is entitled to judgment as a

matter of law. Rather than acting with deliberate indifference

to Picard’s medical condition (there is no expert or other

evidence in the record suggesting that his weight-loss was of a

type or degree that actually constituted a serious medical

condition), Descar responded to Picard’s requests, provided

6 exactly what he asked for, i.e., a check of his weight, and

medical review of his condition. See Ruiz-Rosa,

(“[d]eliberate indifference in this context may be shown by the

denial of needed care as punishment . . . ” ) . Descar’s conduct

cannot even be characterized as sub-standard on this record, much

less as deliberate indifference to a serious medical need.

Picard’s claim against Superintendent O’Mara is equally

meritless. The record establishes that Picard filed a single

grievance about his weight loss, on May 4 , 2009, and that the

grievance was resolved, at the highest level, by means of a

“superintendent’s action” authored and signed by David Dionne,

acting in his capacity as Assistant Superintendent. That i s , the

record establishes that Superintendent O’Mara did not personally

act on Picard’s grievance, and nothing suggests that O’Mara had

any personal knowledge of Picard’s physical condition or the

medical treatment he received. Thus, O’Mara is entitled to

judgment as a matter of law. See

(“[d]eliberate indifference

means that a prison official subjectively must both be aware of

facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the

inference”) (internal quotation marks omitted). O’Mara could not

have been deliberately indifferent to circumstances of which he

was unaware, and nothing in this record suggests that he was

7 aware of Picard’s condition (nor, again, that Picard had any

serious medical need).

Conclusion

Defendants’ motion for summary judgment (document n o . 22) is

granted. Picard’s motion for a protective order (document n o .

28) is denied as moot. The clerk of the court shall enter

judgment in accordance with this order and close the case.

SO ORDERED.

December 9, 2010

cc: Warren Picard, pro se John A . Curran, Esq. Elizabeth L. Hurley, Esq.

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