UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard LaRiviere

v. Civil No. 14-cv-405-JD Opinion No.

Lynda Wheeler and Mattew Masewic

O R D E R

Richard LaRiviere, proceeding pro se and in forma pauperis,

brings civil rights claims under

against

employees of the Hillsborough County Department of Corrections

(“HCDOC”). Claims against several defendants have been

dismissed, leaving Lynda Wheeler and Matthew Masewic as the

remaining defendants. Wheeler and Masewic have moved for

summary judgment on all claims against them.

Procedural Background

After Wheeler moved for summary judgment, LaRiviere moved

for appointment of counsel to represent him. In support of his

motion, LaRiviere represented that he was being held in the

special housing unit of the prison where he was incarcerated and

that his mental health had deteriorated to the extent that he

was no longer able to proceed pro se. The defendants objected

to the motion to appoint counsel. The court required LaRiviere to provide psychiatric

treatment records and his own sworn affidavit to support his

representations of an inability to proceed pro se. After

LaRiviere was moved to a different facility, the court ordered

the medical staff there to send LaRiviere’s current psychiatric

treatment records to the court under seal. The court also

stayed all deadlines in the case, including the deadline for

LaRiviere to respond to the pending motions for summary

judgment.

After receiving and reviewing LaRiviere’s records, the

court concluded that LaRiviere is capable of proceeding pro se

and denied his motion for appointment of counsel. The stay was

terminated, and the court set a deadline for LaRiviere to

respond to the motions for summary judgment. LaRiviere did not

file a response.

Standard of Review

Summary judgment is appropriate when the moving party

“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party

and a material fact is one that could affect the outcome of the

case.” Flood v. Bank of Am. Corp.,

(1st Cir.

2015). The facts and reasonable inferences are taken in the

2 light most favorable to the nonmoving party. McGunigle v. City

of Quincy, --- F.3d ---,

(1st Cir. Aug.

21, 2016). “On issues where the movant does not have the burden

of proof at trial, the movant can succeed on summary judgment by

showing ‘that there is an absence of evidence to support the

nonmoving party’s case.’” OneBeacon Am. Ins. Co. v. Commercial

Union Assurance Co. of Canada,

(1st Cir. 2012)

(quoting Celotex Corp. v. Catrett,

(1986)).

“All properly supported material facts set forth in the

moving party’s factual statement may be deemed admitted unless

properly opposed by the adverse party.” LR 56.1(b). Because

LaRiviere failed to respond to the motions for summary judgment,

the properly supported material facts provided in support of the

motions are taken as true. Even when a motion for summary

judgment is unopposed, the court must review the motion on the

merits based on the undisputed facts, but the court is not

obligated to develop arguments or search for evidence to oppose

the motion on behalf of the nonmoving party. Alberti v. Carlo-

Izquierdo,

(1st Cir. 2013).

Factual Background

LaRiviere’s claims in this case arise from events that

occurred during his incarceration as a pretrial detainee at

HCDOC in 2014 and focus on his suicide attempt on June 17, 2014.

3 Lynda Wheeler was a nurse at the jail while LaRiviere was held

there. Matthew Masewic was a medical doctor who contracted with

the HCDOC to provide medical services at the jail.

Following preliminary review, LaRiviere’s claims in Counts

I and II, alleging inadequate medical care, were allowed to

proceed against Wheeler and Masewic, along with others who are

no longer in the case. Those claims are based on allegations

that the defendants denied LaRiviere medication for his severe

depression, declined to refer him for mental health care despite

repeated requests and knowledge of his severe depression, denied

him pain medication that had been ordered by the Elliot Hospital

doctor who treated LaRiviere’s self-inflicted injury to his leg

in a suicide attempt, and failed to properly care for

LaRiviere’s wound, causing it to become infected and painful.

Wheeler has established through her own affidavit and the

affidavit of Denise Ryan, the Health Services Administrator for

HCDOC, that she was not authorized to prescribe medication or

adjust prescriptions for medication. Wheeler shows that

although LaRiviere had contact with many members of the HCDOC

medical staff, Wheeler had only limited contact with him.

Wheeler also shows that LaRiviere could have requested mental

health care and that other medical care providers cared for his

wound.

4 Masewic provides undisputed evidence that the jail had a

mandatory grievance procedure to address complaints by inmates

and detainees. While incarcerated at HCDOC, LaRiviere filed

only one grievance form. On that form, LaRiviere stated that he

needed to speak to a doctor about a rash and chronic lower back

pain. He also charges that Wheeler has a grudge against him.

Ryan responded to the grievance, explaining that LaRiviere was

on restrictions because of a detox watch and a history of

seizures and that the doctor would review blood test results

aimed at the rash and would contact LaRiviere. LaRiviere never

filed a grievance against Masewic and never complained about a

lack of mental health care.

Discussion

Wheeler moves for summary judgment in her favor on the

claims against her on the grounds that LaRiviere cannot show

that she was deliberately indifferent to his medical needs and

that she is entitled to qualified immunity. Masewic moves for

summary judgment on the ground that LaRiviere did not exhaust

available administrative remedies before bringing his claims

against him. LaRiviere did not respond to either motion.

5 I. Wheeler

As determined on preliminary review, LaRiviere alleges that

medical providers at HCDOC, including Wheeler, failed to provide

adequate health care. The Fourteenth Amendment protects a

pretrial detainee from unconstitutional conditions of

confinement. Surprenant v. Rivas,

(1st Cir.

2005). The Fourteenth Amendment right provides as least as much

protection as the “Eighth Amendment’s prohibition against cruel

and unusual punishment.”

Prison employees violate the

Fourteenth Amendment, therefore, if they act with deliberate

indifference to a detainee’s serious medical needs. Feeney v.

Corr. Med. Servs.,

(1st Cir. 2006).

Deliberate indifference is a subjective inquiry which

requires proof that the defendant knew of a substantial risk of

harm or knew of facts from which he or she could infer that risk

existed and did draw that inference. Leavitt v. Corr. Med.

Servs.,

(1st Cir. 2011). Stated in other

terms, deliberate indifference occurs when care is denied as

punishment or when medical decisions are made recklessly with

knowledge of a risk of harm that could be prevented.

Negligence, however, is not evidence of deliberate indifference.

Whether a detainee’s medical need is serious is an

objective inquiry.

A medical need is objectively

6 sufficiently serious if the condition is diagnosed by a doctor

as requiring treatment or if it is so obvious that even someone

without medical training would recognize the need.

In

addition, “[t]he seriousness of an inmate’s needs may also be

determined by reference to the effect of the delay of

treatment.”

(internal quotation marks omitted).

Wheeler contends that LaRiviere cannot prove that she was

deliberately indifferent to his serious medical needs.

Alternatively, Wheeler contends that she is entitled to

qualified immunity. Because the claim is resolved on the

merits, it is not necessary to consider qualified immunity.

The undisputed facts show that Wheeler was part of the

medical staff at HCDOC when LaRiviere was held there and that

she treated LaRiviere on several occasions. After LaRiviere

attempted suicide on June 17, 2014, he was put on a special

watch, and Wheeler checked him during that time. LaRiviere did

not ask for additional mental health services during any of

Wheeler’s interactions with him. Wheeler provided LaRiviere’s

medications to him, as ordered by the doctor or other staff.

When LaRiviere complained of acid reflux and constipation

and asked for reading glasses, Wheeler assessed him and noted

the doctor’s examination two weeks previously. Wheeler

recommended that he receive Colace and reading glasses and gave

him other instructions to deal with constipation. On three

7 following occasions, Wheeler again ordered over the counter

treatments for LaRiviere’s complaints.

The record does not support LaRiviere’s allegations that

Wheeler was deliberately indifferent to his serious medical

needs. Instead, the record shows that Wheeler treated LaRiviere

based on his prescriptions and doctor’s orders and also

addressed LaRiviere’s complaints of other issues. Even if

LaRiviere objects to the course of treatment provided by

Wheeler, that is not enough in this case to show deliberate

indifference. See Ruiz-Rosa v. Rullan,

(2st

Cir. 2007); Sires v. Berman,

(1st Cir. 1987).

Therefore, Wheeler is entitled to summary judgment in her

favor on all claims against her.

II. Masewic

LaRiviere claims that Masewic was part of the medical staff

at HCDOC that denied him adequate medical care for his serious

medical needs. Masewic moves for summary judgment on the ground

that LaRiviere failed to exhaust administrative remedies at the

HCDOC by filing a grievance against him to raise the medical

care issues.

A prisoner is prohibited from bringing a claim challenging

prison conditions under § 1983 “until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

8 To satisfy the requirements of § 1997e(a), the prisoner must

exhaust the administrative remedies properly, which includes

“compliance with an agency’s deadlines and other procedural

rules.” Woodford v. Ngo,

(2006). Failure to

exhaust is an affirmative defense to the claim brought by the

prisoner. Jones v. Bock,

(2007).

Masewic provides undisputed evidence that HCDOC had a

mandatory grievance procedure in 2014 when LaRiviere was

detained there. The court previously addressed the grievance

procedure at HCDOC in the context of a motion to dismiss filed

by another defendant, Adam Rosario. See Doc. no. 71. Masewic

also shows that LaRiviere did not file a grievance about the

medical treatment provided by Masewic. Because LaRiviere did

not respond to the motion for summary judgment, he provides no

contrary evidence or argument.

Therefore, Masewic has met his burden of showing that

LaRiviere failed to exhaust the administrative remedies that

were available to him before he filed suit. Therefore, Masewic

is entitled to summary judgment on LaRiviere’s claims in Counts

I and II.

Conclusion

For the foregoing reasons, the defendants’ motions for

summary judgment (documents 73 and 87) are granted.

9 Because all claims in the case are now resolved in favor of

the defendants, the clerk of court shall enter judgment

accordingly and close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

October 6, 2016

cc: Richard LaRiviere, pro se John A. Curran, Esq. Sarah S. Murdough, Esq.

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