UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Carl L. Carter, Jr.

v. Civil No. 17-cv-052-LM Opinion No.

Judy Baker

O R D E R

Plaintiff Carl L. Carter, Jr., filed this action pro se1 on

February 9, 2017, asserting an Eighth Amendment deliberate

indifference claim against defendants Judy Baker, Jessica

Pelletier, Tina Pageau, Corina Neculai, and Misty Gagne.2

Carter’s claim arises out of alleged delay in medical treatment

he sought from defendants while he was incarcerated. Now before

the court is defendants’ motion for summary judgment.3

1 Carter later retained counsel, and was represented in this action from March 21, 2019, through March 5, 2020. Since March 5, Carter has proceeded without benefit of counsel.

2 Carter’s original complaint asserted five claims against seventeen defendants. With benefit of counsel, Carter withdrew four of his claims and stipulated to dismissal of twelve of the originally named defendants. His remaining claim is a single Eighth Amendment claim pled against all five of the remaining defendants.

3 Defendants filed their motion for summary judgment on January 31, 2020, while Carter was represented by counsel. Carter’s counsel withdrew following a disagreement over whether counsel remained “able to represent . . . Carter. . . consistent with Rule 11 and his ethical responsibilities” after defendants filed their motion. Doc. no. 50. STANDARD OF REVIEW

Summary judgment is proper only if the moving party can

demonstrate “that there is no evidence in the record to support

a judgment for the nonmoving party.” Celotex Corp. v. Catrett,

, 332 (1986); see also Fed. R. Civ. P. 56(a). If

the moving party succeeds in making that showing, “the burden

shifts to the nonmoving party, who must, with respect to each

issue on which []he would bear the burden of proof at trial,

demonstrate that a trier of fact could reasonably resolve that

issue in h[is] favor.” Borges ex rel. S.M.B.W. v. Serrano-

Isern,

(1st Cir. 2010). The nonmoving party’s

failure to meet that burden by reference to “significantly

probative” materials “of evidentiary quality” entitles the

moving party to summary judgment. Flovac, Inc. v. Airvac, Inc.,

(1st Cir. 2016) (citations omitted).

In evaluating a motion for summary judgment, the courts

must view the evidence in the light most favorable to the

nonmoving party, must draw all reasonable inferences in that

party’s favor, and may neither make credibility determinations

nor weigh the evidence. See, e.g., Lytle v. Household Mfg.,

Inc.,

(1990); Harris v. Scarcelli,

(1st Cir. 2016). As in other contexts, the courts

construe the pleadings of a pro se litigant liberally when

2 determining the merits of a motion for summary judgment. See

Erickson v. Pardus,

(2007) (per curiam).

UNDISPUTED FACTS

The following statement of facts is drawn exclusively from

Carter’s deposition testimony.4 Carter’s deposition is proffered

by defendants and constitutes the only evidence of record.

Carter was incarcerated at the Northern New Hampshire

Correctional Facility (“NCF”) in Berlin, New Hampshire, from

approximately October 2013 through August 2015, and in the New

Hampshire State Prison for Men (“NHSP”) from approximately

August 2015 through August 2016. Each of the defendants is a

nurse employed by the New Hampshire Department of Corrections as

medical staff at the NCF.

In February 2014, while Carter was incarcerated at NCF, a

foreign object became lodged in his left eye.5 Doc. no. 47-2 at

13:1-2, 22:4-9, 32:6. The object caused him to experience

“irritation and discomfort,” but not pain. Id. at 24:17-20,

33:20-24; but cf. id. at 79:20-22 (“the eye was more irritation

than it was pain, but there was pain that would happen once in a

4 Carter was deposed on December 9, 2019. At that time, Carter was represented by counsel. Carter’s counsel was present and defended Carter during the deposition proceeding.

5 Carter had diabetic retinopathy in his left eye, but not his right, before he was incarcerated at NCF. 3 while”). Carter concedes that the presence of the object in

Carter’s eye did not place him at any “risk of serious harm.”

Id. at 24:17-20.

Carter attempted to dislodge the object himself, and after

failing to do so began complaining about its presence to the

defendants. Id. at 33:2-7. Although he reported his symptoms

to each of the defendants, none of them ever looked in his eye

to determine whether a foreign object was visible there. Id. at

33:2-7, 37:4, 38:10-16, 40:14—42:4, 50:16—51:20, 52:27—59:8.

Instead, defendant Gagne provided him with eyedrops in the hope

of relieving his reported symptoms. The eyedrops proved

ineffective.

Carter did not believe that defendants failed to treat his

condition because they were trying to make him suffer, but

rather because they did not believe his condition was important.

Id. at 41:4-23. In addition, Carter concedes the possibility

that defendants did not believe that there was in fact an object

lodged in his eye, and that they may have believed he was

“faking trying to get something.” Id. at 59:9-13.

Over the following two years, Carter underwent numerous eye

examinations, none of which revealed the presence of a foreign

object in his eye. These included annual diabetic eye

examinations as well as quarterly head, ear, eyes, nose, and

throat examinations. In addition to these regularly scheduled

4 eye examinations, Carter was examined in August 2015 by an

outside physician who was unable to detect the object.6

On February 10, 2016, after Carter had been transferred to

NHSP, an eye specialist attempted without success to remove the

object from Carter’s eye. On February 22, 2016, Carter

underwent an X-ray study in an unsuccessful effort to locate the

object. Medical staff at NHSP nevertheless referred Carter to a

specialist who, on March 17, 2016, was able to locate and

surgically remove the object, which had been lodged under the

skin of Carter’s eye.

Since the object was removed, Carter occasionally has the

sensation that an object is stuck in his eye, and the eye

frequently waters and produces tears. However, Carter does not

base his Eighth Amendment claim on any lingering consequences of

having had the object lodged in his eye, but rather on the

quality of and purported delay in the treatment he received

while he was incarcerated at NCF.

DISCUSSION

Carter asserts that defendants are liable under

for violating his Eighth Amendment right to adequate

6 One of Carter’s fellow inmates who had been “a medic during a war” also attempted to look for the object in Carter’s eye but was unable to detect it. 5 medical care while incarcerated. 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).

A Section 1983 claim consists of three elements: “deprivation of

a right, a causal connection between the actor and the

deprivation, and state action.”

On the sole basis of

Carter’s deposition testimony regarding his underlying medical

condition and the treatment he received for it, defendants argue

that Carter cannot establish an actionable deprivation of his

Eighth Amendment rights.

It is well settled that a public official's "deliberate

indifference to a prisoner's serious illness or injury" violates

the Eighth Amendment's prohibition against cruel and unusual

punishment. Estelle v. Gamble,

(1976). To

establish an Eighth Amendment violation in the medical care

context, a prisoner must establish both (i) that he suffered an

objectively “serious medical need” while incarcerated and

(ii) that prison officials deliberately denied or delayed

medical care with actual subjective knowledge of the prisoner’s

serious need. See Kosilek v. Spencer,

(1st Cir.

2014) (citations omitted). Here, Carter cannot satisfy either

the objective or the subjective element of the test.

6 “A serious medical need is 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.” Miranda-Rivera v. Toledo-Davila,

(1st Cir. 2016) (citations, internal quotation marks

omitted). A medical need may be serious with respect either to

current health problems or to a significant risk of future harm.

See Kosilek,

. A medical need is serious,

moreover, if failure to treat it would result in the “wanton

infliction of pain.” Estelle,

(citation

omitted).

Carter testifies that the presence of the object in his eye

did not place him at any “risk of serious harm.” Doc. no. 47-2

at 24:17-20. He further testifies that the object did not cause

him to experience pain, but rather “irritation and discomfort.”

Id. at 24:17-20, 33:20-24. And although he also testifies,

somewhat to the contrary, that “there was pain that would happen

once in a while,” his testimony clearly indicates that his

primary symptom “was more irritation than it was pain.” Id. at

79:20-22. Construing Carter’s testimony in the light most

favorable to him, his medical condition falls well short of

constituting a “serious medical need” for Eighth Amendment

purposes. No physician ever diagnosed Carter with a condition

mandating treatment, and the irritating sensation of having an

7 object stuck in the eye is not so patently serious that it would

be obvious to a layman that a doctor’s attention was required.

Carter’s condition did not result in serious lasting harm or in

any lingering consequence that Carter deems sufficiently

significant to underlie his claim. Finally, although Carter

testifies to discomfort resulting from his condition, his

testimony is clear that he did not experience pain so severe,

debilitating, or protracted as to reach constitutional

proportions. In short, the record evidence does not support the

conclusion that Carter suffered from an objectively serious

medical need. See, e.g., Boardley v. Fist Corr. Med., Case No.

03-343-KAJ,

at *2 (D. Del. Dec. 21, 2004)

(infected ingrown toenails causing severe discomfort not a

serious medical need).

The record evidence similarly prevents Carter from

establishing defendants’ deliberate indifference. To establish

subjective deliberate indifference, the evidence must

demonstrate that a defendant intentionally or purposefully

denied or delayed medical treatment, notwithstanding the

defendant’s actual knowledge of the serious need for care. See

Farmer v. Brennan,

(1994); Perry v. Roy,

(1st Cir. 2015). Evidence that a defendant

negligently or inadvertently provided substandard care, or

denied necessary care due to good faith error, is insufficient

8 to establish deliberate indifference. See Ruiz-Rosa v. Rullan,

(1st Cir. 2007). Moreover, delay of treatment

does not amount to deliberate indifference for Eighth Amendment

purposes except where the delay causes actual harm. See

Estelle,

.

Carter does not testify that defendants intended to cause

him to suffer, and he concedes the possibility that defendants

did not subjectively believe he suffered from a serious medical

condition. Doc. no. 47-2 at 41:4-23, 59:9-13. He testifies

that defendants attempted, albeit unsuccessfully, to treat his

reported symptoms with eyedrops,7 and that he underwent numerous

eye examinations while he was incarcerated at NCF, none of which

was successful in detecting any foreign object in his eye.

Carter’s testimony thus establishes that defendants attempted to

treat his condition while providing no grounds for concluding

that defendants had actual knowledge of a serious medical need

underlying Carter’s symptoms. At most, Carter’s testimony

supports the conclusion that defendants lacked compassion for

Carter’s discomfort. This is insufficient to establish that

defendants purposefully withheld medical care with actual

awareness that failure to provide treatment would cause Carter

7 Although the eyedrops were ineffective in relieving Carter’s symptoms, there is no evidence of record to suggest that eyedrops were a medically inappropriate course of treatment. 9 to suffer harm. See, e.g., Leavitt v. Corr. Med. Servs., Inc.,

(1st Cir. 2011) (absent evidence of bad faith,

obduracy, or wantonness, provision of ineffective treatment does

not amount to deliberate indifference).

Carter’s pro se status and failure to support his objection

to defendants’ motion with evidence do not constitute grounds

for disturbing the analysis above. “A pro se litigant, like any

litigant, is guaranteed a meaningful opportunity to be heard.”

Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce,

(1st Cir. 1994) (citing Logan v. Zimmerman Brush Co.,

(1982)). “However, pro se status does not

insulate a party from complying with procedural and substantive

law.” Ahmed v. Rosenblatt,

(1st Cir. 1997).

The purpose motivating liberal construction of a pro se party’s

pleadings is to avoid outcomes in which the court fails properly

to consider the merits of a claim or defense simply because it

was imperfectly pled or presented. See

Here, however,

nothing in Carter’s briefing suggests that he has either a

viable argument or any evidence to counter defendants’ motion.

It follows that defendants are entitled to summary judgment

as a matter of law as to Carter’s Eighth Amendment claim.

10 CONCLUSION

For the reasons discussed above, defendants’ motion for

summary judgment (doc. no. 47) is granted. All pending motions

are denied as moot. The clerk’s office is directed to enter

judgment and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 10, 2020

cc: Carl L. Carter, Jr., pro se Francis Charles Fredericks, Esq. Anthony Galdieri, Esq. Jennifer Ramsey, Esq. Lawrence A. Vogelman, Esq.

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