UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cheryl Donlon

v. Civil No. 18-cv-549-LM Opinion No.

Hillsborough County, et al.

O R D E R

Cheryl Donlon sued Hillsborough County and five of its

employees alleging claims arising out of injuries she suffered

while in their custody and care. Defendants Hillsborough

County, Xina Barnes, Flavia Martin, Denise Ryan, and Lynda

Wheeler (“County Defendants”), move for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) as to all

Donlon’s claims.1 Doc. nos. 12, 12-1. Donlon objects and moves

for leave to amend her complaint (doc. nos. 16-17), to which the

County Defendants object (doc. no. 20). For the following

reasons, the court grants in part and denies in part Donlon’s

motion to amend. The court will postpone ruling on the motion

for judgment on the pleadings until Donlon files the amended

complaint.

1 The sixth defendant, Matthew Masewic, M.D., is represented by separate counsel. Masewic did not join in the County Defendants’ motion. STANDARD OF REVIEW

Because allowing Donlon’s proposed amended complaint would

moot the County Defendants’ motion for judgment on the

pleadings, the court must first consider Donlon’s motion to

amend. See McCusker v. Lakeview Rehab. Ctr., Inc., No. CIV. 03-

243-JD,

, at *1 (D.N.H. Sept. 17, 2003); LR

15.1(c) (providing that, when a plaintiff files an amended

complaint with leave of the court after the filing of a motion

to dismiss for failure to state a claim, the motion to dismiss

shall be automatically denied without prejudice). Under Federal

Rule of Civil Procedure 15(a), the court should freely give

leave to amend “when justice so requires.” This liberal

standard does not mean that every request for leave to amend

should be granted. See Manning v. Boston Med. Ctr. Corp.,

(1st Cir. 2013). Rather, a court may deny a request

for leave to amend when “the request is characterized by undue

delay, bad faith, futility, or the absence of due diligence on

the movant’s part.”

(internal quotation marks and

brackets omitted).

The County Defendants object to the requested amendment in

part on futility grounds. A “futile” amendment is one that

“would fail to state a claim upon which relief could be

granted.” Glassman v. Computervision Corp.,

, 623

2 (1st Cir. 1996). When, as here, a plaintiff files a motion to

amend in response to a motion to dismiss and discovery is not

yet complete, the futility inquiry mirrors the analysis applied

under Federal Rule of Civil Procedure 12(b)(6).

That is,

the court applies the same standard in considering whether a

motion to amend is futile as it does when deciding a motion to

dismiss for failure to state a claim. See

Under Rule 12(b)(6), the court must accept the factual

allegations in the complaint as true, draw all reasonable

inferences from those facts in the plaintiff’s favor, and

“determine whether the factual allegations in the plaintiff’s

complaint set forth a plausible claim upon which relief may be

granted.” Foley v. Wells Fargo Bank, N.A.,

(1st Cir. 2014) (internal quotation marks omitted). A claim is

facially plausible “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal,

(2009).

BACKGROUND

The following facts are derived from Donlon’s proposed

amended complaint (doc. no. 17-1), which provides slightly more

detail than the original complaint (doc. no. 1). Donlon was

3 incarcerated as a pre-trial detainee at the Hillsborough County

House of Corrections, also known as the Valley Street Jail

(“Jail”), from July 11 to August 8, 2015. Hillsborough County

operates the Jail. Defendants Barnes, Martin, Ryan, and Wheeler

were all employees of Hillsborough County and worked as medical

care personnel at the Jail during the time Donlon was detained

there. Defendant Masewic also worked at the Jail during that

time as a medical doctor pursuant to a contract with

Hillsborough County.

Prior to Donlon’s detention, she was diagnosed with “major

depression disorder[,] generalized anxiety disorder, and

borderline personality disorder.” Doc. no. 17-1 at 3. Upon her

arrival to the Jail on July 11, medical personnel evaluated

Donlon and learned that she experienced depression and anxiety

and that she took several medications prior to being detained,

including Xanax. Medical personnel then prescribed Donlon

several medications, but not Xanax. Xanax falls within a class

of drugs known as benzodiazepines. Medical staff also did not

prescribe Donlon an alternative benzodiazepine, or anything to

treat her for benzodiazepine withdrawal.

On July 16, Donlon complained to medical staff that she was

experiencing increased anxiety, lack of sleep, and sweats, which

are well-known signs of withdrawal. Medical personnel altered

4 her prescriptions slightly but did not add anything to address

benzodiazepine withdrawal. On July 18, Donlon again complained

of these symptoms and requested that she be put back on Xanax.

Over the following week, there were several incidents during

which medical and correctional staff observed Donlon to be

disorientated, belligerent, uncooperative, and unable to control

her bowels.

On July 27, correctional officers found Donlon naked in her

cell with feces spread throughout the cell. The officers

observed that Donlon appeared delirious and was unable to comply

with their demands. The officers physically subdued her using

pepper spray and strapped her into a restraint chair, which

caused five of her ribs to fracture. That same day, medical

staff entered a note stating that Donlon may have had “delirium

due to prolong[ed] benzodiazepine . . . withdrawal.” Doc. no.

17-1 at ¶ 23. Medical staff then ordered blood work, which

revealed that Donlon was experiencing kidney failure.

On July 29, the Jail transferred Donlon to Elliot Hospital

for emergency medical care. The hospital records demonstrate

that Donlon “gradually returned to baseline after treatment for

benzodiazepine withdrawal and dehydration.” Id. at ¶ 32. She

was discharged with a prescription for Klonopin, a long-acting

benzodiazepine.

5 In June 2018, Donlon filed this suit asserting five claims

based on her allegations that defendants caused her to suffer

withdrawal from Xanax, failed to recognize her symptoms of

withdrawal, and failed to administer proper treatment. Count I

alleges a civil rights claim under

and the

Fourteenth Amendment against all of the individually named

defendants stating that they acted with deliberate indifference

in failing to provide her adequate medical care. Count II

asserts a civil rights claim under

and the

Fourteenth Amendment against Hillsborough County, alleging that

it had de facto policies that resulted in the provision of

inadequate medical care to Donlon. Count III asserts that

Hillsborough County discriminated against Donlon in violation of

the Americans with Disabilities Act (“ADA”),

et seq., and the Rehabilitation Act,

. Count IV

alleges a negligence claim against Hillsborough County and Count

V asserts that Hillsborough County is vicariously liable for the

misconduct of its employees.2 The complaint also references a

violation of Donlon’s rights under the Fourth and Eighth

Amendments to the United States Constitution as well as “rights

2 This last count is titled Count “VIII,” but this appears to be a scrivener’s error.

6 secured under the laws and constitution of the State of New

Hampshire.” Doc. no. 1 at ¶ 1. Donlon requests compensatory

and punitive damages, equitable relief, and an award of

attorney’s fees and costs.

The County Defendants moved for judgment on the pleadings.

Donlon objected and moved to amend her complaint, asserting that

the amendment was aimed at curing the deficiencies highlighted

by the County Defendants. The amended complaint asserts largely

the same claims as the original complaint with some alterations

and additions. Count I remains essentially the same. Donlon

changed the title of Count II to a “Monell” claim and added

allegations that Hillsborough County knew of its employees’

unconstitutional conduct and failed to discipline them, which

reinforced the policies leading to Donlon’s injuries. In Count

III, Donlon dropped any reference to the Rehabilitation Act.

She also modified her ADA claim to assert that Hillsborough

County discriminated against her by refusing to allow the

reasonable accommodation of prescribing her Xanax. Finally, the

amended complaint combines Counts IV and V into one count of

negligence against Hillsborough County on the basis of direct

and vicarious liability. Donlon has dropped all references to

the Fourth and Eighth Amendments to the United States

Constitution and appears to have removed her request for

7 equitable relief. The County Defendants object on futility

grounds to the motion to amend.

DISCUSSION

As explained above, the court will first address Donlon’s

motion to amend. Donlon asserts that she should be permitted to

amend her complaint because the amended complaint cures the

deficiencies pointed out by the County Defendants in their

motion for judgment on the pleadings. The County Defendants

raise two objections to her motion to amend: (1) amendment

should be permitted only to the extent that her new claims

“relate back” to the original complaint because the statute of

limitations on her claims has run; and (2) amendment is futile

because the amended complaint still fails to state valid claims

for relief.3

3 Although the County Defendants object to the motion to amend, they assent to specific differences between the complaint and the amended complaint, including plaintiff’s: removal of a request for injunctive relief and references to the Fourth and Eighth Amendments, modification of certain headings, and description of plaintiff as “a pretrial detainee.” See doc. no. 20-1 at 2-3.

8 I. Timeliness of Amended Complaint

The County Defendants first argue that, because the statute

of limitations on Donlon’s claims had run at the time she moved

to amend, her amended complaint should be allowed only to the

extent that it “relates back” to her original complaint. The

court agrees that Donlon’s claims are time-barred unless they

relate back under Federal Rule of Civil Procedure 15(c).

A three-year statute of limitations applies to all Donlon’s

claims. See Owens v. Okure,

(1989)

(holding that § 1983 claims borrow the state statute of

limitations for general personal injury claims); Trovato v. City

of Manchester, N.H.,

(D.N.H. 1997)

(recognizing that the ADA borrows analogous state statute of

limitations, which is the three-year statute governing personal

actions); New Hampshire Revised Statutes Annotated (“RSA”)

§ 508:4, I (providing three-year statute of limitations for all

personal actions). It is undisputed that the alleged misconduct

occurred between July 11 and August 8, 2015. Donlon filed her

complaint in June 2018, within the three-year statute of

limitations. However, she filed her request to amend the

complaint in October 2018, outside of the limitations period.

The claims asserted in the amended complaint are thus time-

9 barred unless the amended complaint “relates back” to the

original complaint under Federal Rule of Civil Procedure 15(c).

The purpose of Rule 15(c) “is to allow a plaintiff to avoid

the preclusive effect of a statute of limitations so long as

certain conditions are satisfied.” Connectu LLC v. Zuckerberg,

(1st Cir. 2008). Under Rule 15(c)(1), an

amended complaint adding additional claims relates back to the

original complaint if either: “(A) the law that provides the

applicable statute of limitations allows relation back”; or “(B)

the amendment asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out—or attempted to be

set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(A)-

(B).

Although the County Defendants contend that Donlon’s

amended complaint should be allowed “only to the extent she is

able to relate back the additional facts and theorem,” doc. no.

20-1 at 4, defendants do not develop an argument as to why

Donlon cannot meet the Rule 15(c) standard. After comparing the

complaint with the proposed amended complaint, the court finds

that the proposed amended complaint relates back under Rule

15(c)(1)(B).

Relation back is warranted under Rule 15(c)(1)(B) if “the

original and amended [complaints] state claims that are tied to

10 a common core of operative facts.” Frederick v. State of N.H.,

No. 14-CV-403-SM,

, at *7 (D.N.H. Aug. 16, 2016)

(quoting Mayle v. Felix,

(2005)) (brackets

omitted). Consequently, courts should focus on whether “the

alteration of the original statement is so substantial that it

cannot be said that defendant was given adequate notice of the

conduct, transaction, or occurrence that forms the basis of the

claim or defense . . . .” O’Loughlin v. Nat’l R.R. Passenger

Corp.,

(1st Cir. 1991) (internal quotation marks

omitted). The court’s analysis should be directed to conduct

rather than causes of action, and new legal theories may relate

back if there is a shared basis in factual circumstances. See

Ornelas v. City of Manchester, No. 14-cv-394-LM,

, at *4 (D.N.H. June 5, 2017). Applying these

principles, courts will typically deny amendments that “assert a

claim which was not even suggested in the original complaint,”

but routinely permit amendments that “merely make[] more

specific what has already been alleged.”

(internal

quotation marks omitted).

The claims asserted in both the original complaint and the

proposed amended complaint plainly arise out of a common core of

operative facts: Jail medical staff’s treatment, or lack

thereof, of Donlon’s purported benzodiazepine withdrawal.

11 Further, the proposed amended complaint does not add any new

claims. Rather, the amendment aims to refine and clarify the

counts previously alleged and bolster those claims with

additional facts. Donlon’s theory of relief in Count I remains

the same and, as to Counts II, III, and IV, the amended

complaint shifts Donlon’s theory of relief minimally. The court

concludes that the original complaint put the County Defendants

on notice of the operative facts and alleged misconduct

underlying the claims in the amended complaint. Donlon’s

amended claims therefore properly relate back to the original

complaint under Rule 15(c)(1)(B) and are not time-barred.

II. Futility

Next, the County Defendants argue that Donlon should not be

permitted to amend her complaint because any amendment is

futile. They assert that, even with the added material,

Donlon’s amended complaint fails to state claims upon which

relief may be granted. See doc. no. 20-1 at 8-15. The court

discusses each claim below.4

4The County Defendants also object to the addition or modification of several paragraphs in the “Facts” section of the proposed amended complaint. Doc. no. 20-1 at 8-9. The court permits the proposed amendments to the “Facts” section of the amended complaint.

12 A. Section 1983 Claim against Individual Defendants

In Count I of the proposed amended complaint, Donlon

alleges that certain Jail medical staff violated her

constitutional rights through their deliberate indifference to

her serious medical condition—benzodiazepine withdrawal.

Specifically, she alleges that nurses Ryan, Martin, Barnes, and

Wheeler “individually and collectively” responded with

deliberate indifference to her “life-threatening” withdrawal

from Xanax by failing to adequately monitor, treat, and promptly

obtain emergency medical care for her. Doc. no. 17-1 at ¶ 55,

59.

Section 1983 “creates a remedy for violations of federal

rights committed by persons acting under color of state law.”

Sanchez v. Pereira-Castillo,

(1st Cir. 2009)

(internal quotation marks omitted). The statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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, suit in equity, or other proper proceeding for redress . . . .

. A claim under § 1983 consists of three

elements: “deprivation of a right, a causal connection between

13 the actor and the deprivation, and state action.” Sanchez,

. As to the first element, Donlon claims that her

right to due process under the Fourteenth Amendment was violated

by the deliberate indifference of Jail medical staff to her

benzodiazepine withdrawal.

“A state and its subdivisions are under a substantive

obligation imposed by the Due Process Clause of the Fourteenth

Amendment to refrain . . . from treating a pretrial detainee

with deliberate indifference to a substantial risk of serious

harm to health.” Coscia v. Town of Pembroke, Mass.,

(1st Cir. 2011); see also Burrell v. Hampshire Cty.,

(1st Cir. 2002) (recognizing that claims of deliberate

indifference by pretrial detainees are governed by the same

standard applied to prisoners under the Eighth Amendment). A

claim that a state actor treated a pretrial detainee’s serious

medical condition with deliberate indifference has two

components: one objective and one subjective. See Zingg v.

Groblewski,

(1st Cir. 2018). As to the

objective component, the plaintiff must show that she had “a

medical need 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.”

(internal quotation marks omitted). Second, she must

14 establish that defendants subjectively “possessed a sufficiently

culpable state of mind” when treating her.

Evidence

demonstrating the requisite state of mind may take many forms,

including evidence that a defendant had actual knowledge of an

easily preventable impending harm, but failed to take action

that would have averted the harm. See

The County Defendants argue that Count I is deficient in

that it fails to set out specific misconduct attributable to

each named nurse. See doc. nos. 20-1 at 10. The defendants

assert that, although Donlon alleges wrongdoing by the medical

staff in general, she does not particularize her allegations

with misconduct attributable to each individual. Donlon does

not respond to this specific argument. See doc. nos. 16-17.

The court agrees with defendants that the allegations are

insufficient.

A complaint must “give the defendant fair notice of what

the claim is and the grounds upon which it rests.” Bell Atl.

Corp. v. Twombly,

(2007) (ellipsis omitted).

This requirement is typically met when the allegations identify

each defendant’s role in the wrongdoing or what each defendant

allegedly did to wrong the plaintiff. See, e.g., Cordell v.

Howard,

(D. Mass. 2012) (finding

sufficient facts alleged to state claim of deliberate

15 indifference where plaintiff described each defendant’s role in

the unconstitutional conduct).

In their motion for judgment on the pleadings, the County

Defendants raise the same argument: that Count I must be

dismissed because it fails to give each individual nurse notice

of the specific allegations against her. Doc. no. 12-1 at 3-4.

Thus, despite having notice of this argument, Donlon did nothing

to cure this deficiency in the proposed amended complaint. The

proposed amended complaint alleges that the nurses, along with

others, were “responsible for providing skilled nursing care to

the inmates at” the Jail, including Donlon. Doc. no. 17-1 at

¶ 11, 55. It further makes general allegations of misconduct,

such as the “defendants and other medical staff” were aware

Donlon was suffering a serious medical condition, and

“defendants” failed to adequately monitor her. Id. at ¶¶ 57-58.

But there are no allegations regarding any specific

interactions, observations, evaluations, or medical care each

individual nurse provided, or failed to provide, to Donlon.5

5 This lack of specificity as to each nurse’s conduct stands in contrast to Donlon’s allegations against Masewic. Donlon alleges that: Masewic received multiple requests from other medical staff to address Donlon’s withdrawal symptoms; he examined Donlon on at least three occasions; Donlon “begged” him to allow her to resume taking Xanax; and he was later advised of her worsening condition but did nothing to address her withdrawal symptoms. Doc. no. 17-1 at ¶¶ 47-48.

16 Donlon’s general allegations are insufficient to put each

individual nurse on notice of the specific conduct underlying

the claims against her. See Andreozzi v. Grondolsky, No. CIV.A.

11-11813-RWZ,

, at *4 (D. Mass. Aug. 2, 2013)

(granting motion to dismiss deliberate indifference claim where

pleadings made it “difficult to identify what each defendant

ha[d] allegedly done with respect to [plaintiff’s] medical

treatment and how it harmed him”). The proposed amended

complaint also fails to set out facts underlying the subjective

component of a deliberate indifference claim: the requisite

culpable state of mind. See Zingg,

. There are

no factual allegations particular to each defendant

demonstrating, for example, that each person had knowledge of

Donlon’s condition and knew that it was easily preventable but

did nothing.6 Accordingly, as amendment of Count I would be

futile, Donlon’s motion to amend as to that Count is denied.7

6 Because Donlon is represented by counsel, she is not entitled to the “latitude” afforded to pro se parties. Cf. White v. Ortiz, No. 13-CV-251-SM,

, at *5 (D.N.H. Sept. 14, 2015) (“Additionally, it probably bears noting that [plaintiff] is proceeding pro se and is, therefore, entitled to a bit more latitude than a party who is represented by counsel.”). 7 The County Defendants also contend that amendment of Count I is futile because the nurses are entitled to qualified immunity. Because the court dismisses Count I on futility grounds, the court need not address this argument.

17 B. Monell Claim against Hillsborough County

In Count II of the proposed amended complaint, Donlon

asserts a “Monell” claim against Hillsborough County under

, alleging that the county had certain policies,

practices, or customs that caused the deprivation of her

constitutional rights. In Monell v. Department of Social

Services of City of New York,

(1978), the Supreme

Court held that municipalities may be held liable under § 1983

for monetary, declaratory, or injunctive relief, id. at 690.

Like natural persons, a municipality or other local government

may be liable under § 1983 if it subjects a person to a

deprivation of rights or causes a person to be subjected to a

deprivation of rights. Connick v. Thompson,

(2011). However, municipalities may only be held responsible

for “their own illegal acts.”

(internal quotation marks and

emphasis omitted). They may not be held vicariously liable for

their employees’ misconduct.

To prove a Monell claim, a plaintiff must show that “action

pursuant to official municipal policy caused her injury.”

(internal quotation marks omitted). “Official municipal policy

includes the decisions of a government’s lawmakers, the acts of

its policymaking officials, and practices so persistent and

18 widespread as to practically have the force of law.”

.

While a “policy” originates from a “top-down affirmative

decision of a policymaker,” a more informal custom or practice

“develops from the bottom-up.” Baron v. Suffolk Cty. Sheriff’s

Dep’t,

(1st Cir. 2005)(internal quotation

marks omitted), abrogation on other grounds recognized in

Jennings v. Jones,

, 438 n.10 (1st Cir. 2009); see

also Monell,

(observing that claim may be based

on custom that “has not received formal approval through the

[municipal] body’s official decisionmaking channels”).

When a Monell claim is based on an informal custom or

practice, the court must determine whether the custom is “fairly

attributable to the municipality.” Baron,

.

“This standard is met when a custom is so well settled and

widespread that the policymaking officials of the municipality

can be said to have either actual or constructive knowledge of

it yet did nothing to end the practice.”

(internal quotation marks omitted). In addition to showing that

the practice is fairly attributable to the municipality, a

plaintiff must show that the practice was “the cause of and the

moving force behind the deprivation of constitutional rights.”

(internal quotation marks omitted).

19 In the proposed amended complaint, Donlon alleges that

Hillsborough County had the following de facto policies that

resulted in deliberate indifference to her serious medical

condition: “denying medication that had been legally prescribed”

prior to the inmate’s incarceration; “denying inmates needed

medical care and treatment pending approval by the Hillsborough

County Commissioners”; and “denying inmates appropriate

withdrawal medication.” Doc. no. 17-1 at ¶¶ 62-63. Because

Donlon alleges that “de facto” policies, not an official policy,

caused her harm, the court must consider whether her

allegations, viewed in the light most favorable to her, are

sufficient to show the existence of a custom attributable to the

municipality. See Baron,

. The County

Defendants argue that her allegations are insufficient to show

the requisite link between the de facto policies and the

municipality.

Accepting all factual allegations as true and drawing all

reasonable inferences in Donlon’s favor, there are sufficient

facts in the amended complaint supporting her Monell claim based

on the Jail’s alleged custom of denying appropriate withdrawal

medication and treatment. The proposed amended complaint

alleges that medical staff requested that defendant Masewic

address Donlon’s withdrawal symptoms on at least five occasions,

20 but he refused to do so. Doc. no. 17-1 at ¶ 47; see Howard v.

Wilkinson,

(M.D. Fla. 2018) (finding

complaint plausibly alleged a “custom” supporting municipal

liability based on facts that four separate jail nurses visited

plaintiff as he lay dying but provided no medical care).

Further, the amended complaint alleges that the Jail has

received “numerous prior complaints involving inadequate medical

care and inattention to inmates, including inadequate care given

during drug withdrawal.” Doc. no. 17-1 at ¶ 52. She also

alleges that, after her discharge, Hillsborough County learned

of the individual defendants’ unconstitutional conduct towards

her but failed to discipline its employees, thereby reinforcing

the de facto policy. Though sparse, taken as true and viewed in

the light most favorable to Donlon, these facts raise the

inference that Hillsborough County policymakers had actual or

constructive knowledge of the custom of denying care to inmates

for withdrawal from certain drugs, but did nothing to rectify

that custom.

Donlon also alleges that this custom caused the harm she

suffered. This allegation is sufficient to allege causation

when viewed in light of the facts in the proposed amended

complaint that describe Donlon’s benzodiazepine withdrawal, lack

of treatment, and hospitalization. Construed generously,

21 Donlon’s proposed amended complaint provides enough facts to

state a viable Monell claim. As to Count II, Donlon’s motion to

amend is allowed.

C. ADA Claim against Hillsborough County

In Count III of the proposed amended complaint, Donlon

asserts that Hillsborough County violated her rights under Title

II of the ADA. She contends that she suffered from disabling

mental illnesses (major depression, anxiety, and borderline

personality disorder), that she requested the accommodation of

prescription Xanax to enable her to function, and that

Hillsborough County refused her accommodation. Hillsborough

County argues that, even as amended, this count fails to set out

all the elements of an ADA claim and essentially makes out a

claim for inadequate medical treatment, which is not actionable

under the ADA.

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.”

. The Supreme Court has held that state and local prisons

qualify as “public entities” under the ADA. See Pa. Dep’t of

22 Corr. v. Yeskey,

(1998). A plaintiff seeking

relief under Title II must show “(1) that [s]he is a qualified

individual with a disability; (2) that [s]he was excluded from

participating in, or denied the benefits of a public entity’s

services, programs, or activities or was otherwise discriminated

against; and (3) that such exclusion, denial of benefits, or

discrimination was by reason of [her] disability.” Kiman v.

N.H. Dep’t of Corr.,

(1st Cir. 2006) (internal

quotation marks omitted).

A plaintiff can pursue several different theories of

disability discrimination. See Nunes v. Mass. Dep’t of Corr.,

(1st Cir. 2014). Donlon raises an

“accommodation” claim here. Under an accommodation theory, a

plaintiff may claim “that a public entity has refused to

affirmatively accommodate his or her disability where such

accommodation was needed to provide meaningful access to a

public service.”

(internal quotation marks omitted).

Donlon has alleged sufficient facts supporting her ADA

claim to survive a motion to dismiss. She alleges that she had

several mental impairments—depression, anxiety, and borderline

personality disorder—that substantially limited her ability to

perform daily tasks, such as taking care of herself. Doc. no

17-1 at ¶ 8; see Carroll v. Xerox Corp.,

(1st

23 Cir. 2002) (explaining that one way to prove disability is to

demonstrate a mental or physical impairment that substantially

limits one or more of plaintiff’s major life activities);

(2)(A) (defining “major life activities” as

including “caring for oneself”). She alleges that she was

otherwise qualified to participate in all programs and services

at the Jail, including receipt of medical treatment. Doc. no.

17-1 at 8, 76.

Medical care is “one of the services, programs, or

activities covered by the ADA.” Kiman,

(internal quotation marks omitted). Donlon claims that she was

denied the benefits of the Jail's medical care in that medical

staff caused her to undergo benzodiazepine withdrawal, refused

her requested accommodation of putting her back on Xanax, and

failed to treat her in any way for the withdrawal. Doc. no. 17-

1 at ¶¶ 16, 18-27, 40, 47-49.

Finally, Donlon alleges that this denial of medical care

was because of her disability. ADA claims involving medical

care “must be framed within some larger theory of disability

discrimination.” Kiman,

(internal quotation

marks omitted). Specifically, a plaintiff must show either

that: (1) the medical decision or treatment “was so unreasonable

. . . as to imply that it was a pretext for some discriminatory

24 motive;” or (2) that the decision or treatment “was

discriminatory on its face, because it rested on stereotypes of

the disabled rather than an individualized inquiry into the

patient’s condition.”

(internal quotation marks

omitted).

The facts alleged raise a plausible inference of such

unreasonable care that would imply pretext for a discriminatory

motive. Donlon brought her withdrawal symptoms to the attention

of medical staff on multiple occasions. Doc. no. 17-1 at ¶¶ 16,

18, 48. Jail staff then observed her acting disoriented,

confused, and unable to maintain personal hygiene over the

course of the week prior to her hospitalization.

at ¶¶ 19-

23, 26-27. After Jail staff found Donlon naked and delirious in

her cell with feces smeared throughout, they waited two days

before transferring her to the hospital. See id. at ¶¶ 25-28.

Additionally, Donlon alleges that defendants’ refusal to

accommodate her disability was “the result of their perception

and stereotyping of her as a woman suffering from a mental

disability” rather than the result of “an individualized inquiry

into [her] genuine medical needs.” Id. at ¶¶ 81, 84. There are

some facts in the record to support the notion that defendants

negatively stereotyped Donlon because of her disability. Donlon

claims that while subduing her, correctional staff “teased her

25 and ridiculed her” and that Masewic “made light” of the

withdrawal symptoms Donlon was suffering. Id. at ¶¶ 48, 80.

Viewed generously, these allegations are sufficient, at this

early stage, to state a claim of discrimination under Title II

of the ADA. See Smith v. Aroostook Cty., ___ F. Supp. 3d ___,

, at *9-10, *12 (D. Me. Mar. 27, 2019) (granting

preliminary injunction and finding likelihood of success on

merits of plaintiff’s ADA claim that jail discriminated against

her by denying her medication to treat her opioid use disorder

and prevent painful withdrawal symptoms), aff’d ___ F.3d ___,

, (1st Cir. Apr. 30, 2019) (per curiam).

Donlon’s motion to amend as to Count III is allowed.

D. Negligence Claim against Hillsborough County

In Count IV of the proposed amended complaint, Donlon

claims that Hillsborough County should be held directly liable

for its negligence and vicariously liable for its employees’

negligence in failing to adequately monitor her, treat her for

benzodiazepine withdrawal, and promptly obtain her emergency

medical care. Hillsborough County argues that amendment of this

claim is futile because, even as amended, such claim is barred

by New Hampshire’s municipal immunity statute, RSA chapter 507-

B.

26 Under RSA 507-B:5, “[n]o governmental unit shall be held

liable in any action to recover for bodily injury, personal

injury or property damage except as provided by this chapter or

as is provided or may be provided by other statute.” A

“governmental unit” is “any political subdivision within the

state including any county . . . or departments or agencies

thereof.” RSA 507-B:1, I. The term “personal injury” includes

“[a]ny injury to the feelings or reputation of a natural person,

including but not limited to . . . mental injury [and] mental

anguish.” RSA 507-B:1, III(a). And “bodily injury” holds its

plain language meaning under the statute. See RSA 507-B:1, II.

Donlon’s claims plainly fall within the reach of the

municipal immunity statute. First, Hillsborough County, as a

political subdivision of the state of New Hampshire, is a

“governmental unit.” Second, Donlon’s claims are for bodily

injury and personal injury as defined by RSA 507-B:1. She

alleges that, as a result of Hillsborough County’s employees’

conduct, she “was injured and suffered extreme pain and mental

anguish.” Doc. no. 17-1 at ¶ 99. Under RSA 507-B:5,

Hillsborough County is therefore immune from Donlon’s negligence

claim unless a specific statutory exception applies. See RSA

507-B:5; Martineau v. Antilus, No. 16-CV-541-LM,

, at *3 (D.N.H. June 22, 2017).

27 Donlon does not cite any exception to municipal immunity

provided in RSA chapter 507-B that would apply to her claim.

See, e.g., RSA 507-B:2 (waiving immunity for actions to recover

for injuries caused by a governmental unit’s “fault or by fault

attributable to it, arising out of ownership, occupation,

maintenance or operation of all motor vehicles, and all

premises”). Nor does she cite an exception to municipal

immunity provided by any other statute.

Instead, Donlon appears to argue that granting Hillsborough

County immunity would violate her rights under the Equal

Protection Clauses of the Federal and State Constitutions. See

doc. nos. 17 at 4, 17-1 at ¶¶ 96-97. Donlon cites no authority

in support of this argument. To the extent Donlon seeks to

raise an equal protection claim, she has done so in a manner

that is insufficient and unpersuasive. See Higgins v. New

Balance Athletic Shoe, Inc.,

(1st Cir. 1999)

(“The district court is free to disregard arguments that are not

adequately developed . . . .”); Pukt v. Nexgrill Indus., Inc.,

No. 14-CV-215-JD,

, at *1 n.1 (D.N.H. Aug. 23,

2016) (refusing to consider party’s insufficiently developed

argument); United States v. $572,204 in U.S. Currency, More or

Less,

, 155 n.1 (D. Mass. 2009) (declining to

28 address claims raised in motion to suppress but not developed in

supporting memorandum).

Donlon has not identified any exception to the municipal

immunity granted under RSA 507-B:5. The court concludes that

Hillsborough County is immune from Donlon’s negligence claims.

Donlon’s motion to amend Count IV is therefore denied as futile.

CONCLUSION

For the foregoing reasons, Donlon’s motion to amend (doc.

no. 17) is granted as to Counts II and III, amendments made to

the “Facts” section, and amendments to which the County

Defendants assent. The motion to amend is otherwise denied,

specifically as to Counts I and IV. On or before May 23, 2019,

Donlon shall file an amended complaint that conforms with this

order (i.e., asserting Counts II and III, and Count I insofar as

it asserts a claim against Masewic). Once the amended complaint

is filed, the court will deny as moot the motion for judgment on

the pleadings (doc. no. 12).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 9, 2019 cc: Counsel of Record

29