Brown v . Englander, et a l . 10-CV-257-SM 11/24/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bruce Brown

v. Civil N o . 10-cv-257-SM Opinion N o .

Dr. Celia Englander, et a l .

O R D E R

Bruce Brown brings this civil rights action pursuant to

, asserting that defendants have violated his

Eighth Amendment right to adequate medical care. Brown also

asserts pendent state tort claims. Because Brown is a prisoner,

the matter is before me for preliminary review to determine,

among other things, whether the complaint states any claim upon

which relief might be granted. See 28 U.S.C. § 1915A.

Standard of Review

In conducting the preliminary review of a prisoner case, as

required by 28 U.S.C. § 1915A, the Court construes all of the

factual assertions in the pro se pleadings liberally, however

inartfully pleaded. See Erickson v . Pardus,

9 , 94

(2007) (per curiam) (following Estelle v . Gamble,

7 ,

106 (1976), to construe pro se pleadings liberally in favor of

the pro se party). “The policy behind affording pro se

plaintiffs liberal interpretation is that if they present

sufficient facts, the court may intuit the correct cause of action, even if it was imperfectly pled.” Ahmed v . Rosenblatt,

(1st Cir. 1997); see also Castro v . United

States,

(2003) (courts may construe pro se

pleadings to avoid inappropriately stringent rules and

unnecessary dismissals). This review ensures that pro se

pleadings are given fair and meaningful consideration.

To determine if a pro se complaint states any claim upon

which relief could be granted, the Court must consider whether

the complaint, construed liberally, Erickson,

4 ,

“contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v . Iqbal, ___ U.S. ___, ___, 129 S . C t . 1937, 1949

(2009) (citation omitted). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for

the misconduct alleged.”

Inferences reasonably drawn from

the plaintiff’s factual allegations must be accepted as true, but

the Court is not bound to credit legal conclusions, labels, or

naked assertions, “devoid of ‘further factual enhancement.’”

(citation omitted). Determining if a complaint sufficiently

states such a claim for relief is a “context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense.” Id. at 1950 (citation omitted).

2 Background

Brown is a seventy-two year old inmate at the New Hampshire

State Prison. He is approximately fifteen years into a 20-40

year sentence for a 1995 sexual assault.

In late 2006 and early 2007, Brown began to experience

intermittent lower back pain. Brown reported his pain to the

nursing staff at the New Hampshire State Prison’s Health Services

Center (“HSC”). The pain persisted, and on May 2 5 , 2007, Brown

was sent for an MRI at Catholic Medical Center in Manchester, New

Hampshire. The MRI showed a variety of lumbar abnormalities.

The medical staff at the prison prescribed steroids and a muscle

relaxant.

On May 2 8 , 2007, Dr. Celia Englander, Medical Director for

the New Hampshire Department of Corrections (“DOC”), told Brown

that his MRI showed only mild disease, and referred him to

physical therapy for evaluation. On June 7 , 2007, Brown received

notification that he would receive pain management treatment for

his back. The following month, Brown was taken to the Elliot

Hospital in Manchester, New Hampshire, to see Dr. Hyatt who gave

him a cortisone shot in his spine. Dr. Hyatt told Brown that an

appointment for another shot should be scheduled after

approximately three months. Dr. Hyatt also told Brown that the

shots were a temporary fix to relieve pain, but that he needed

3 back surgery to fuse his perforated discs (the medical condition

causing his pain) to fix the underlying problem.

Brown states that the shot worked reasonably well in

relieving his pain for about three months. Brown was scheduled

to return to see Dr. Hyatt for a second shot on November 5 , 2007.

That appointment was cancelled by a corrections officer. An

appointment was rescheduled, but Brown did not receive a second

shot for several months after the first shot stopped working.

Second and third cortisone shots effectively reduced Brown’s pain

for approximately three months each. Brown has not received any

further cortisone shots.

In early June 2008, Brown’s pain became unbearable. Brown

submitted multiple request slips to prison medical staff pleading

for treatment that would relieve his pain. On June 1 2 , 2008,

Brown was told by a nurse that he was going to have another

cortisone shot. On June 1 7 , 2008, DOC physician’s assistant Gail

Spelman told Brown she had put in for a transport for him to

receive another shot. She prescribed Indocin to assist in

reducing inflammation and the resulting pain until his shot.

Brown was denied the Indocin, however, as a committee at the

prison decided to temporarily discontinue distributing non-

steroidal anti-inflammatory drugs (“NSAIDs”) to inmates.

On June 1 9 , 2008, Brown sent an Inmate Request Slip (“IRS”)

to Spelman about not having received the Indocin she prescribed.

4 The IRS was answered by a non-medical corrections officer stating

that Spelman was no longer employed at the prison and that if he

had medical issues he would need to go to sick call.

On July 1 , 2008, Brown sent an IRS to Dr. Englander asking

for help in relieving his pain, and advising her that Spelman had

said she was setting up an appointment for a cortisone shot for

Brown, and that she had prescribed Indocin for him that he had

not received. Another individual responded to Brown’s request,

stating that his consult was “in,” that he would be notified when

his appointment was set, and that there would be “no NSAIDS until

after July 2 1 , 2008.”

On July 2 1 , 2008, and August 1 4 , 2008, Brown again sent

inmate requests to Dr. Englander complaining that he was in

terrible pain and requesting pain relief. On August 1 4 , 2008,

Dr. Englander responded to Brown that a pain management consult

had been ordered by Spelman and approved on August 4 , 2008.

On August 2 2 , 2008, Brown received an answer to his last IRS

to Dr. Englander from another individual, advising him that a

consult referral had been made to the pain management program at

the Dartmouth Hitchcock Medical Center (“DHMC”), and that an

appointment was going to be scheduled for him to have a consult

there. Dr. Englander then told Brown that, according to his

original MRI report, and as Dr. Hyatt had stated to Brown in June

2007, his back pain was caused by perforated and damaged discs

5 that required surgical repair. She promised Brown he would see a

“specialist.”

During August or September 2008, Brown was examined by Dr.

Jenkins at Concord Hospital. Dr. Jenkins stated that Brown was

suffering from three damaged discs that required correction by

surgery.

In December 2008, Brown was taken to the DHMC Pain

Management Clinic for a consult with Dr. Beasley, a pain

management specialist, for diagnostic testing. At that time,

Brown was taking medications provided to him by the prison

medical staff. Unbeknownst to Brown, DHMC had advised the prison

that Brown’s medications had to be discontinued prior to the

consult. Dr. Beasley refused to conduct the consultation because

Brown was still on medications.

On December 1 6 , 2008, Brown was taken back to Dr. Jenkins.

Dr. Jenkins refused to see Brown because he had already seen and

diagnosed him, and had nothing additional to offer.

On that date, Brown was called to the HSC by a woman named

Cindy who identified herself as an intermediary who helps inmates

get early medical release from prison. Cindy told Brown that she

was unable to assist him in obtaining an early release because of

the nature of his offense. Cindy said that Brown needed back

surgery and surgery to correct an abdominal aortic aneurism that

had been seen on his 2007 MRI. Cindy told Brown that the back

6 surgery was very expensive and asked him if he had Medicare or

other outside financial resources, ostensibly to help pay for the

surgery. Brown told Cindy he could not get Medicare while

incarcerated, and that he did not have money to pay for his own

surgery.

On December 2 2 , 2008, Brown saw Campbell who told him that

she believed the only problem with his back was mild arthritis.

Brown believes that all orthopedic surgery conducted at the

prison requires her approval, and that she has thus far not given

her approval for his surgery.

On December 2 8 , 2008, Brown sent an IRS to Dr. Englander

complaining about his excruciating pain and inquiring as to the

status of his surgery. Dr. Englander responded that Dr. Jenkins

had not suggested surgery for his back, that Dr. Jenkins had

decided that Brown did not then need surgery, and that Dr.

Jenkins had instead suggested that Brown receive another

cortisone injection. Brown had received no such injection.

Due to his ongoing debilitating pain, the DOC medical staff,

by early 2009, had treated Brown’s symptoms with a myriad of pain

drugs, including Vicodin. None worked very well, which Brown had

repeatedly told the medical staff. Some of the drugs made Brown

nauseous or dizzy. Brown later refused to take Vicodin because,

on one occasion, his Vicodin prescription, which had not expired,

was not refilled when he ran out, and he was forced to go through

7 a painful withdrawal in addition to his excruciating back pain.

After that, Brown refused to take narcotic medications for his

pain because he was concerned, based on the prison’s track record

of not refilling his prescriptions in a timely manner, that he

would again be subjected to narcotic withdrawal. Brown asserts

that narcotics were the only treatment he has refused, and he has

never refused treatment altogether.

On January 2 6 , 2009, Dr. Englander told Brown he would be

sent to the Pain Management Clinic at DHMC for additional tests.

At around this time, Brown told Dr. Englander about a new

orthopedic and spine clinic that had opened in Bedford, New

Hampshire. Dr. Englander said she would look into i t .

On February 1 5 , 2009, Brown sent an IRS to Dr. Englander

stating that he was still in tremendous pain and requesting

additional treatment and testing at DHMC. Brown reiterated what

he had heard from Drs. Jenkins and Hyatt and asked for surgery,

not additional drugs, as he was worried about having the

medication suddenly withdrawn again by a failure to timely refill

his prescription. Dr. Englander responded that Brown was

“seriously distorting the record” concerning his treatment and

about what Dr. Jenkins had said.

On March 1 6 , 2009, Brown was taken to DHMC to see Dr.

Beasley. Dr. Beasley inserted needles into his back which gave

him relief for approximately two hours, but worsened his pain

8 after that. On April 5 , 2009, Brown sent Dr. Englander an IRS

telling her that the treatment he received at DHMC had made his

pain worse. Brown complained again that the “band aids” he had

been receiving for his serious back problems in lieu of surgery

were insufficient. Donna Timulty responded to Brown that an

appointment with Dr. Jenkins would be scheduled within the month.

On April 9, 2009, Brown filed a grievance with New Hampshire

State Prison Warden Richard Gerry. In his grievance, Brown

complained that for more than two years he had suffered

excruciating pain which had been, in the year prior to the filing

of the grievance, untreated or treated ineffectively, as the pain

relief measures were not particularly helpful, and the medical

staff had refused to arrange for him to have surgery. Brown told

Gerry that he was having difficulty walking, sleeping, and eating

due to the pain in his back which had also affected his legs and

other parts of his body. Gerry responded: “You have been

informed that you are being scheduled for an appointment to an

outside provider. I have been informed that you refuse to take

medication to manage the pain you are experiencing.” Gerry also

told Brown to forward future grievances to Dr. McLeod, the

Director of Medical and Forensic Services at the prison.

On April 2 6 , 2009, Brown appealed the denial of his

grievance to DOC Commissioner William Wrenn. In that appeal he

explained that he had taken narcotics with difficult side effects

9 and that his refusal to take morphine was based on a brutal

withdrawal experience. Dr. McLeod responded to Brown’s grievance

to Wrenn, stating that Dr. Jenkins would not see Brown until Dr.

Beasley saw him at DHMC, and that an appointment would be

scheduled at DHMC. Dr. McLeod told Brown to go to sick call to

address his pain issues.

Brown states that sick call exacerbates, rather than helps,

his difficulties. At sick call, he says, dozens of inmates cram

into a waiting room with too few chairs. Inmates at sick call

wait, for up to several hours, to see a nurse who can do no more

than provide a small amount of ibuprofen and schedule an

appointment with a doctor for a week or more later. Inmates,

such as Brown, who can’t move quickly are seen last as sick call

operates on a “first come, first served” basis.

Between June 2009 and June 2010, Dr. Englander repeatedly

promised Brown he would be going to DHMC for his spinal surgery.

In September 2009, she told him he would be going “soon.” On

October 2 7 , 2009, Brown submitted an IRS to Dr. Englander to

inquire about his appointment and to complain that the pain in

his back and legs had spread to his groin. Timulty responded and

said that Brown had seen Dr. Mahn on October 1 9 , 2009, although

Brown does not recall this appointment occurring, and that he had

prescribed Neurontin and Prednisone. Brown states he got some

temporary relief from those medications.

10 In December 2009, Dr. Englander told Brown he had been

approved for back surgery at DHMC. Although an appointment was

scheduled for March 5 , 2010, Brown was not given notice of that

date in advance. On the date of the appointment, Brown was at

his work site and, due to a failure of the security staff to

effectively communicate with one another, he was not returned to

his unit to be transported to the appointment. He was told later

by the staff on his housing unit that he had missed the

appointment.

When Brown requested an update on the status of his

appointment from Dr. Englander, she told him that she was

disappointed he “did not show up for the consult” when the doctor

was expecting him. Dr. Englander told Brown that the appointment

would be rescheduled. Later, Dr. Englander told Brown that his

appointment had been with a “neurosurgeon” who was upset about

the missed appointment because the surgery had already been

scheduled.

On April 1 0 , 2010, Brown went to sick call because his pain

was so bad he couldn’t sleep. The nurse scheduled an appointment

with a doctor a week later. On April 2 0 , 2010, Brown’s pain was

so bad he had to be brought to the HSC in a wheelchair. Dr.

Englander told Brown his surgery had been rescheduled. Dr.

Englander prescribed “knock out” medications so that Brown could

11 sleep. The “knock out” medications were alternating Trazodone

and Oxazepam.

On May 1 2 , 2010, Brown was incapacitated with pain. Another

inmate told Dr. Englander that he was in too much pain to attend

sick call, and asked for an appointment for Brown. No

appointment was made.

In early June 2010, Brown’s “knock out” medications were

removed from his housing unit medicine cabinet and not replaced

with anything. On June 1 4 , 2010, Brown went to the HSC in a

wheelchair. The nursing staff arranged for him to receive

Flexoril and Trazodone, but the combination didn’t work as well

as Trazodone and Oxazepam. Since June 1 4 , 2010, Brown states he

has not been able to sleep more than an hour at a time due to

pain.

On June 1 8 , 2010, Brown was taken to DHMC for what he

believed would be surgery. When Brown arrived, Dr. Beasley

explained that he had not been expecting him. Further, Dr.

Beasley told Brown that he is not a neurosurgeon, and was

confused as to why the prison would think that Brown had been

scheduled for surgery. Dr. Beasley told Brown that he needed

spinal surgery. Dr. Beasley contacted the Surgery Department at

DHMC, but they were unable to fit Brown into the schedule for

that day.

12 Brown continues to suffer from extreme and persistent pain.

He has experienced only incomplete and temporary pain relief from

various treatments intended to treat pain. Brown raises the

following claims for relief 1 :

1. The defendants have violated his Eighth Amendment right to adequate medical care by failing to consistently provide him with adequate pain medication and other pain treatment and allowing his prescriptions to lapse, causing him to experience serious withdrawal symptoms.

2. The defendants have violated his Eighth Amendment right to adequate medical care for his damaged lumbar discs.

3. The defendants have violated Brown’s state law rights under tort law by engaging in medical malpractice, negligence, and the intentional infliction of emotional distress.

Discussion

I. Section 1983

Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional

or statutory law. See

2 ; City of Okla. City v . 1 The claims, as identified herein, will be considered to be the claims raised by Brown in his complaint for all purposes. If Brown disagrees with the claims, as identified, he must do so by properly objecting to this Report and Recommendation or properly moving to amend the complaint. 2

provides that:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

13 Tuttle,

(1985); Wilson v . Town of Mendon,

, 6 (1st Cir. 2002). In order for a defendant to be held

liable under § 1983, his or her conduct must have caused the

alleged constitutional or statutory deprivation. See Monell v .

Dep’t of Soc. Servs.,

(1978); Soto v . Flores,

(1st C i r . ) , cert. denied,

(1997). Here, Brown claims that the defendants, all state

actors, have violated his rights under the Eighth Amendment to

the United States Constitution. As such, his claims arise under

§ 1983.

Inadequate Medical Care

“[T]he treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.” Helling v . McKinney,

5 ,

31 (1993); Giroux v . Somerset County,

8 , 31 (1st Cir.

1999). The pertinent Eighth Amendment prohibition on cruel and

unusual punishment applies to the States through the Due Process

Clause of the Fourteenth Amendment. See Robinson v . California,

(1962).

The Supreme Court has adopted a two-part test for reviewing

medical care claims under the Eighth Amendment. See Farmer v .

Brennan,

(1994). A court must first determine

if the prisoner has alleged facts sufficient to show that he or

she has not been provided with adequate care for a “serious

14 medical need.” Second, the court must determine if the complaint

contains sufficient allegations to show deliberate indifference.

See

. Allegations that simply show “substandard care,

malpractice, negligence, inadvertent failure to provide care, and

disagreement as to the appropriate course of treatment are all

insufficient to prove a constitutional violation.” Ruiz-Rosa v .

Rullan,

(1st Cir. 2007).

A serious medical need is one that involves a substantial

risk of serious harm to the prisoner if it is not adequately

treated. See Barrett v . Coplan,

(D.N.H.

2003); see also Gaudreault v . Municipality of Salem,

(1st Cir. 1990) (defining 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”). To be found

deliberately indifferent, 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 or she

must also draw the inference. See Farmer,

.

Deliberate indifference “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.’” Ruiz-Rosa,

(citation omitted).

“‘In order to establish deliberate indifference, the complainant

15 must prove that the defendants had a culpable state of mind and

intended wantonly to inflict pain.’” Braga v . Hodgson,

8 , 61 (1st Cir. 2010) (citation omitted). Deliberate

indifference may be found “in ‘wanton’ decisions to deny or delay

care, where the action is reckless, ‘not in the tort law sense

but in the appreciably stricter criminal-law sense, requiring

actual knowledge of impending harm, easily preventable.’” Watson

v . Caton,

(1st Cir. 1993) (citations omitted).

Deliberate indifference is not demonstrated by an inmate’s

disagreement with his treatment, by an allegation that better

treatment than what was provided is available, or by a difference

of opinion among medical professionals regarding diagnosis and

treatment. See Feeney v . Corr. Med. Servs.,

(1st Cir. 2006) (“When a plaintiff’s allegations simply reflect a

disagreement on the appropriate course of treatment, such a

dispute with an exercise of professional judgment may present a

colorable claim of negligence, but it falls short of alleging a

constitutional violation” (internal citations omitted)).

A. Serious Medical Need: Perforated Discs

Here, Brown has alleged facts showing that he suffers from

perforated lumbar discs, diagnosed by physicians as requiring

surgery, and causing him severe pain while uncorrected. Brown

has also alleged facts showing that his condition has worsened

since 2007 -- that the pain is now excruciating and debilitating,

16 making it difficult at times for him to walk -- suggesting that

the underlying condition may be degenerative in the absence of

surgical repairs. Liberally construing the facts alleged in the

complaint, I find that Brown has stated sufficient facts to

assert a claim that the worsening state of the perforated discs

in his back constitutes a serious medical need, directly related

to the severe and chronic back pain he alleges.

B. Deliberate Indifference

The critical issue here is whether the prison’s failure to

ensure that Brown’s condition was treated surgically, or that he

continued to receive other effective modes of treatment,

constitutes “deliberate indifference” to his serious medical

need, and not “simply . . . a disagreement on the appropriate

course of treatment.”

For the reasons that follow, I

conclude that, liberally construing his complaint in his favor,

and accepting all facts pled and all reasonable inferences

arising as true, Brown has stated a viable claim that the

defendants were deliberately indifferent to his serious medical

needs. I also find, however, that Brown cannot assert a claim

for deliberate indifference to his pain based on difficulties

with his medication.

17 1. Surgery

Brown has alleged that every physician he has seen in an

effort to treat or diagnose his back problems — four in all,

including Dr. Hyatt, Dr. Jenkins, Dr. Englander, and Dr. Beasley

— has told him that his perforated discs require surgery. In

July 2007, Dr. Hyatt told Brown that he needed surgery in order

to repair his perforated discs. In August or September 2008, Dr.

Jenkins at Concord Hospital reported to both Brown and the prison

medical staff that Brown needed surgery. While Dr. Englander, in

late December 2008, told Brown that Dr. Jenkins had recommended

cortisone shots, not surgery (at that time) her understanding of

Dr. Jenkins’s opinion conflicted with her earlier interpretation

of his findings, and the statements Jenkins made to Brown.

Further, Dr. Englander told Brown he had been “approved” for back

surgery at DHMC in December 2009, which, it can reasonably be

inferred, suggested her agreement that Brown needed surgery. As

recently as April 2010, Dr. Englander told Brown that he would be

scheduled for surgery “soon,” and in June 2010, Dr. Beasley

confirmed that Brown’s back condition required surgical

correction.

I find, for purposes of preliminary review, that Brown has

stated sufficient facts to assert a plausible claim that he has a

serious medical need that requires surgical correction, and that

the prison defendants have refused to provide, or delayed in

18 providing, necessary treatment, being fully aware that failure to

do so would result in Brown’s continuing to suffer serious, but

avoidable, pain. Service of this claim shall be made on

defendants Englander, McLeod, Gerry, and Wrenn.3

2. Medication Difficulties

Brown alleges that the provision of medication constituted

deliberate indifference in that prescriptions were routinely

allowed to lapse between refills, even for medications that

should not be abruptly withdrawn. Further, Brown takes issue

with some of the medication choices offered to him.

There is no indication in Brown’s complaint that, if true,

the failure to consistently maintain prescriptions was

intentional or designed to cause pain or distress to Brown. At

best, Brown has made out a case for negligence with respect to

the failure of prison staff to refill prescriptions on time. No

claim arises under § 1983 for an act of negligence, however, and

I find that the facts asserted here are insufficient to describe

a violation of Brown’s federal constitutional rights related to

the provision of medication. Brown’s other medication complaints

amount to mere disagreements with medical staff about which

medications should be administered or prescribed. No

constitutional claim arises out of such disagreements absent a

3 As explained below, I find that Brown has failed to state any cognizable claim against defendant Bernice Campbell; the complaint is dismissed with respect to Bernice Campbell.

19 showing that the prescribing doctor was deliberately indifferent

to Brown’s serious medication needs. The claims asserting

deliberate indifference with regard to administering medications

to plaintiff are dismissed.

II. State Law Claims

Where, as here, there is no diversity of citizenship,

jurisdiction over plaintiffs’ state law claims is supplemental or

pendant. See

(a) (allowing court to exercise

supplemental jurisdiction over state law claims that are “so

related to the claims in the action within the original

jurisdiction that they form part of the same case or

controversy”); see also United Mine Workers v . Gibbs,

(1966). Plaintiff’s state law negligence, medical

malpractice, and intentional infliction of emotional distress

claims arise out of the same facts and circumstances asserted in

his federal claims. Accordingly, at this juncture, there is no

good reason not to exercise this Court’s supplemental

jurisdiction, see

(a). Brown’s state claims may

proceed against defendants Englander, McLeod, Gerry, and Wrenn.

III. Supervisory Liability

Brown has alleged that defendants McLeod, Gerry, and Wrenn

are responsible for developing and applying policies or practices

that violate Brown’s constitutional rights, and for failing to

adequately respond to Brown’s grievances about his surgery and

20 medical care needs. In their capacities as supervisors,

defendants are responsible for responding to inmate requests,

administering grievance procedures, developing prison policies as

they relate to the provision of and payment for medical care,

including care that must be received from outside medical

providers, and supervising prison staff.

There is no supervisory liability in § 1983 actions based on

a respondeat superior theory of liability. See Ashcroft, ___

U.S. at ___, 129 S . C t . at 1949. “Supervisory liability under

§ 1983 cannot be ‘predicated on a respondeat theory, but only on

the basis of the supervisor’s own acts or omissions.’” Aponte

Matos v . Toledo Davila,

(1st Cir. 1998)

(citation omitted). A supervisor must be either “a primary actor

involved i n , or a prime mover behind, the underlying violation.”

Camilo-Robles v . Zapata,

1 , 43-44 (1st Cir. 1999). In

other words, “supervisory liability lies only where an

affirmative link between the behavior of a subordinate and the

action or inaction of his supervisor exists such that the

supervisor’s conduct led inexorably to the constitutional

violation.” Maldonado v . Fontanes,

(1st Cir.

2009).

“[S]upervisory liability under a theory of deliberate

indifference will be found only if it would be manifest to any

reasonable official that his conduct was very likely to violate

21 an individual’s constitutional rights.”

A supervisor is not

deliberately indifferent, for purposes of § 1983 liability, if he

or she is alleged merely to have been present for, or otherwise

obtains knowledge o f , the wrongdoing of a subordinate, or if the

supervisor promulgated a policy that does not, on its face,

direct or condone the wrongful conduct of subordinates. Id.

Here, plaintiff alleges that each named defendant

participated in the unconstitutional deprivations alleged, by

condoning their subordinates’ failure to insure that Brown

received the surgery he needed and attempting to lessen his pain

while denying or delaying the treatment of his physical back

problems. Defendants refused to remedy, and to have continued to

support, the practices brought to their attention through the

inmate request and grievance processes. Accordingly, these

defendants can be sued in their supervisory capacities under

section 1983.

IV. Defendant Bernice Campbell

Brown asserts that Bernice Campbell improperly interpreted

certain medical information that had been provided her,

concluding that he was suffering only from mild arthritis. There

are no facts pled, however, that would support the contention

that Campbell’s statement was anything more than a mistaken

medical assessment or an inadvertent error. Nothing in Brown’s

complaint suggests that Campbell was “deliberately indifferent”

22 to his medical needs or even that she acted negligently.

Further, to the extent Brown claims that Campbell’s signature is

necessary for him to obtain orthopedic surgery, and she failed to

provide such a signature, it appears that Brown is asserting only

an unsupported belief. Neither the notion that a doctor at the

prison could not order surgery without the signature of a

physical therapist, nor that a physical therapist could arrange

for surgery without a doctor’s order, are plausible. Brown has

not otherwise asserted that Campbell provided any substandard,

negligent, or improper care to him, or injured or damaged him in

any way. Because Brown has failed to state any claim against

Campbell upon which relief might be granted, I dismiss the

complaint as it pertains to her.

Request for Preliminary Injunctive Relief

Brown’s complaint includes a request for preliminary

injunctive relief. Because that request was filed several months

ago, and the Court has received no separate motion or request for

injunctive relief from plaintiff, the request is denied without

prejudice to refiling as a Motion for Preliminary Injunction if

circumstances warrant.

Conclusion

For the foregoing reasons, I find that Brown’s complaint

adequately asserts an Eighth Amendment claim relating to the

denial of surgery, and state law claims against defendants

23 Englander, McLeod, Gerry, and Wrenn, including supervisory

capacity claims against McLeod, Gerry, and Wrenn. The claims

alleging improper medical care for medication difficulties, and

the claims against defendant Campbell are dismissed.

Plaintiff has submitted summons forms for Wrenn, McLeod,

Gerry, and Englander, all listing a New Hampshire State Prison

address. The Clerk’s Office is directed to issue the summonses

for Wrenn, McLeod, and Gerry to plaintiff’s counsel, who must

effect service according to Fed. R. Civ. P. 4. Defendant

Englander is not a state employee, but an employee of MHM

Services, Inc., and therefore Dr. Englander must be served as

would any non-prison-employee. Plaintiff’s counsel is directed

to provide a summons with a correct address for defendant

Englander to the court for issuance within fourteen (14) days of

the date of this Order. Counsel must then effect service on

defendant Englander in compliance with Fed. R. Civ. P. 4.

Brown is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendants by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b).

SO ORDERED.

^ St/even J. _ McAuliffe Chief Judge November 24, 2010

cc: Nancy Sue Tierney, Esq.

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