2004 | Cited 0 times | D. Maine | May 6, 2004


Patrick Alexandre is incarcerated at the Maine State Prison and isthe plaintiff in this 42 U.S.C. § 1983 action seeking remedy for theallegedly inadequate medical attention he received when he was at thePenobscot County Jail. (Docket No. 1.) He alleges that the defendants, incontravention of the Eighth Amendment prohibition against cruel andunusual punishment, were deliberately indifferent to his need fortreatment of a shoulder injury sustained when he slipped when exiting theshower at the jail. Currently pending are three motions for summaryjudgment on behalf of the three defendants, Penobscot County SheriffGlenn Ross (Docket No. 32), and physician assistants Al Cichon (DocketNo. 38) and Jonathan Coggeshall (Docket No. 36). In this decision Iaddress Cichon's motion (Docket No. 38) and, concluding that he isentitled to summary judgment, I recommend that the Court GRANTthe motion.


While at the jail Alexandre was entitled to `"the minimal civilizedmeasure of life necessities.'" Wilson v. Seiter, 501 U.S. 294,298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347(1981)). One such necessity is treatment of medical conditions and, accordingly, the denial of necessary medical care can rise to thelevel of a constitutional violation, see generally Farmer v.Brennan, 511 U.S. 825 (1994); Estelle v. Gamble,429 U.S. 97(1976).1

However, deliberate indifference liability attaches only when a stateactor "knows of and disregards an excessive risk to inmate health orsafety." Farmer, 511 U.S. at 837. The state actor "must both beaware of facts from which the inference could be drawn that a substantialrisk of serious harm exists, and he must also draw the inference."Id. at 837. In other words, a plaintiff with such a claim mustnot only demonstrate inadequate care, he or she must demonstrate thedefendant(s) who deprived the inmate of care did so with a culpable stateof mind. Id. at 834.

Related to this state-of-mind requirement are the tenets that inmatesdo not have a right to limitless doctor visits or their choice ofmedications, and negligence and medical malpractice are not actionable in42 U.S.C. § 1983 suits. Daniels v. Williams, 474 U.S. 327 (1986)(noting that 42 U.S.C. § 1983 provides a right of action for civilrights violations and cannot be used to sue correctional officials fornegligence). "[A] complaint that a physician has been negligent indiagnosing or treating a medical condition does not state a valid claimof medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutionalviolation merely because the victim is a prisoner." Estelle,429 U.S. at 106.

Cichon is entitled to summary judgment on Alexandré's EighthAmendment claim only "if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact and that[Cichon] is entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). A fact is material if its resolution would "affect the outcome ofthe suit under the governing law," Anderson v. Liberty Lobby,Inc., 477 U.S. 242, 248 (1986), and the dispute is genuine "if theevidence is such that a reasonable jury could return a verdict for thenonmoving party," id. I view the record in the light mostfavorable to Alexandré and I indulge all reasonable inferences inhis favor. See Savard v. Rhode Island, 338 F.3d 23, 25 —26 (1st Cir. 2003). However, to the extent that Alexandré hasfailed to place Cichon's facts in dispute, I deem the properly supportedfacts as admitted, see Faas v. Washington County, 260 F. Supp.2d 198,201 (D. Me. 2003).2

Cichon Material Facts

Al Cichon is a physician assistant under contract to Allied Resourcesfor Correctional Health (Allied) and supervised by Robert Abrahamson,M.D. Pursuant to a contract, Allied provides primary medical care toinmates at the Penobscot County Jail. (Cichon SMF ¶ 1.)Alexandré, an inmate at the jail from May 2002 through October 3,2003, accumulated a voluminous medical record of his complaints andtreatment for various ailments, including psychiatric issues, skinconditions, and food allergies. (Id. ¶ 2.) Pursuant to Allied's contractwith the jail, Allied maintains medical records for all inmates. Recordsof treatment are made at or near the time of treatment by, or frominformation transmitted by, a person with knowledge of the treatment;they are kept in the course of regularly conducted activities as aregular practice. (Id. ¶ 3.) Allied does not providemedical care to inmates at the Maine State Prison, so Allied's treatmentof Alexandré and medical records of Alexandré's treatmentterminate with Alexandré's transfer to the Maine State Prison onOctober 3, 2003. (Id. ¶ 4.)

Alexandré claims he injured his right shoulder in a fall in theshower on March 10, 2003, but he did not report the injury or any pain tohis shoulder at that time. (Id. ¶ 5.) Alexandré'sfirst complaint about his shoulder was not made until more than threeweeks after the alleged injury, when on March 27, 2003, he completed anInmate Medical Request (IMR) seeking treatment for a painful shoulder.(Id. ¶ 6.) In response to that IMR, Alexandré wasseen the following day, March 28, 2003, by Jonathan Coggeshall, P.A., whois also contracted to Allied to provide patient care to inmates.(Id. ¶ 7.) Coggeshall examined the shoulder, finding itnontender on palpation and tender to rotation. He diagnosed rightshoulder tendinitis and prescribed rest. (Id. ¶ 8.)

Alexandré next sought treatment for his shoulder on April 9,2003, when he filed an IMR seeking treatment for right shoulder pain andunrelated abdominal pain. (Id. ¶ 9.) In response to thatIMR, Alexandré was seen two days later by Coggeshall on April 11,2003. Coggeshall's diagnosis remained right shoulder tendinitis and heprescribed further rest. (Id. ¶ 10.) On April 14, 2003,Alexandré filed another IMR seeking additional treatment for hisshoulder pain, which he said was more severe. In response, Coggeshallprescribed Ibuprofen and Lortab, a painkiller. (Id. ¶ 11.)On April 29, 2003, Alexandré filed another IMR seeking additional treatment forhis shoulder pain, specifically requesting a consultation with a shoulderspecialist. (Id. ¶ 12.) In response, Coggeshall arrangedfor an x-ray of Alexandré's shoulder. The x-ray revealed no acutefracture or dislocation, but did find some chronic deformity consistentwith an old, healed clavicle fracture, as well as degenerative changesconsistent with arthritis. The right shoulder was otherwise negative.(Id. ¶ 13.)

On May 11, 2003, and May 15, 2003, Alexandré filed additionalIMR's seeking an MRI test and suggesting that he might have a tornrotator cuff injury. (Id. ¶ 14.) In response, Coggeshallagain examined Alexandré on May 16, 2003. He noted that a newrotator cuff injury would not be consistent with the original falldescribed by Alexandré, and he noted that Alexandré has along history of shoulder injuries. He recommended a conservative courseof physical therapy for treatment and prescribed non-steroidal,anti-inflammatory drugs. (Id. ¶ 15.)

On May 18, 2003, Alexandré filed another IMR and complained to anurse, whose progress note indicates Alexandré's complaints werereported to Coggeshall, who prescribed a pain medication, Hydrocone.(Id. ¶ 16.) On May 23, 2003, Coggeshall again examinedAlexandré, who seemed set on seeing an orthopedic specialist andperhaps having surgery. Coggeshall referred Alexandré to theEastern Maine Medical Center (EMMC) Orthopedic Clinic. (Id.¶ 17.) On May 27, 2003, an appointment was made for Alexandréat the EMMC Orthopedic Clinic for June 2, 2003. (Id. ¶ 18.)On June 2, 2003, Alexandré was seen at the EMMC Orthopedic Clinic,where Rajendra Tripathi, M.D. diagnosed tendinitis of the long head ofthe biceps tendon, as well as bursitis of the shoulder. (Id.¶ 19.) The doctor gave Alexandré an injection of Depo-Medrol and Xylocaine, but the injection afforded no relief. (Id.¶ 20.) As a result, Tripathi referred Alexandré for an MRIexam and prescribed a four-day course of Percocet for pain relief.(Id. ¶ 21.) The MRI exam was performed the same dayand revealed a small rotator cuff tear. (Id. ¶ 22.)

On June 9, 2003, Alexandré was seen by Patricia Griffith, Orthopedic Associates, on a referral from Dr. Tripathi, for afollow-up visit. (Id. ¶ 23.) Dr. Griffith noted thatAlexandré was due to be released or transferred in one month andthat his treatment would best be deferred until that time, when he wouldbe in a stable situation where one provider could provide ongoingtreatment. (Id. ¶ 24.) On June 13, 2003, Alexandréwas again examined by Coggeshall for his continuing shoulder pain andCoggeshall prescribed a 10-day course of Ultran, as well as Percocet foruse at night. (Id. 1125.)

On July 4, 2003, Al Cichon examined Alexandré for the first timesince his shoulder complaints began, but this exam was for a skinirritation. (Id. ¶ 26.) Alexandré did not raise theissue of his shoulder at this examination, but he was wearing a sling soCichon reviewed his chart and found the notation of the small rotatorcuff tear. (Id. ¶ 27.) Upon questioning, Alexandréreported that he had discontinued the exercises he was doing for hisshoulder and Cichon strongly recommended that he resume those exercisesto avoid a stiff or frozen shoulder. (Id. ¶ 28.)

On July 16, 2003, Alexandré filed another IMR seeking treatmentfor his continuing shoulder pain. (Id. ¶ 29.) In responseto that request, Cichon met with Alexandré on July 18, 2003.(Id. ¶ 30.) During the July 18 meeting Alexandré wasvery focused on obtaining treatment for his shoulder and pointed out thateven though Dr. Griffith had recommended deferring treatment, she had believed hewould be released or transferred in one month. (Id. ¶ 31.)At this point, about five weeks had passed since that recommendation andno transfer was planned for the immediate future. (Id. ¶32.) In light of the above facts, Cichon agreed to review the case.(Id. ¶ 32.)

On July 22, 2003, Alexandré filed another IMR seeking treatmentfor his continuing shoulder pain. (Id. ¶ 33.) In responseto that request, Cichon examined Alexandré on July 25, 2003.(Id. ¶ 34.) Cichon prescribed a series of improvedexercises to increase Alexandré's range of motion, recommended hecontinue other treatments — including medications — anddecided to look further at a referral for physical therapy. (1135.)

Per Cichon's referral, Alexandre had his first visit August 7, 2003, atHealthSouth for physical therapy, where he was also assigned exercises todo each day on his own. (Id. ¶ 36.) Alexandré hadadditional physical therapy appointments at HealthSouth on August 15 and22, 2003 and on September 4, 2003. (Id. ¶ 37.) On September12, 2003, after the four scheduled physical therapy visits, Cichonconsulted with the physical therapist at HealthSouth and examinedAlexandré. In consultation with the physical therapist he decidedto extend the physical therapy for several additional sessions to includeiontophoresis (ultrasound with steroids to decrease inflammation).(Id. ¶ 39.) Alexandré reported during his visit onthat day that his shoulder was improving. (Id. ¶ 40.)

Prior to his October 3, 2003, transfer to the Maine State Prison,Alexandré was on a course of three times weekly physical therapywith iontophoresis, and he was seen at HealthSouth for physical therapyon September 12, 16 and 22, 2003. (Id. ¶ 41.) At the time of his transfer to the Maine State Prison the Alexandréhad multiple conditions of his right shoulder, including arthritis,tendinitis/bursitis, and a small rotator cuff tear. (Id. ¶42.) Given his progress in physical therapy, surgical intervention didnot appear to be in his best interest at that point. (Id. ¶43.)

Alexandré's Response to Cichon's Motion for SummaryJudgment

In his comprehensive response to the three motions for summary judgment(Docket No. 41), Alexandré states, hyperbolically, that the threedefendants have filed untrue statements in their motion for summaryjudgment and in their affidavits and refers to many inconsistencies intheir pleadings that he has not addressed.

As to specific discontents, he asserts that he never suffered injuriesto his shoulder while working as a logger, although he did injure hisshoulder when he was a child when he fell off his bike and broke hiscollar bone. This childhood accident resulted in the only injury ofAlexandré's shoulder prior to the slip and fall at the jail.

Alexandré further complains about the cancellation of thefollow-up appointment with the orthopedist. On this score,Alexandré also disputes Coggeshall's claims that the orthopedicsurgeon continued to recommend conservative treatment, asserting that theorthopedic surgeon had recommended a follow-up treatment but that thistreatment was cancelled by Coggeshall (and never reinstituted by Cichon),in a deliberate indifference to Alexandré's medical needs.

With respect to Alexandré response as it targets Cichon inparticular, Alexandré takes Cichon to task for the assertion inhis memorandum that there is no allegation or evidence that Cichon hadany input in the diagnosis or treatment of Alexandré's shouldercomplaints (prior to July 4, 2004). Alexandré claims that he hasevidence that Cichon made decisions on his course of treatment on June 7, 2003, but hasnot identified what it is or supplied it to the Court. Alexandréalso criticizes Cichon for his allegation that Alexandré wasreceiving physical therapy three times a week. Alexandré claimsthat his record shows that he only had physical therapy once a week andtwice a week for two weeks.

Resolution of Summary Judgment Motion

Based on the supported material facts presented by Cichon, that remainalmost entirely uncontested by Alexandré, I conclude that, therebeing no genuine dispute as to any of the material facts,Cichon is entitled to judgment as a matter of law. SeeFed.R.Civ.P. 56(c) (emphasis added). It is evident, from the material factsproperly before me, that beginning on July 4, 2003, Cichon responded toAlexandré's request for care promptly, undertook evaluations,prescribed prescriptions, and arranged outside physical therapy.Alexandré articulated his discontent with some of the medicalchoices made at the jail at the time and the medical staff responded,although not always in a manner to his liking.

Even crediting the unsworn (first-hand) factual assertions byAlexandré in response to Cichon's motion, Alexandré has notgenerated a genuine dispute of material fact. Alexandré statesthat he did not injure his shoulder logging, however the root cause ofthe shoulder injury is not material in light of the other undisputedmaterial facts. Cichon does not contest that Alexandré was injuredat the jail and experienced shoulder pain during his detention at thejail. Cichon is not arguing that he did not need to treat the injurybecause it was preexisting. Rather, the undisputed facts demonstrate apersistent effort to diagnose (including the use of x-rays) the shoulderand to treat it with medication and physical therapy. And there is absolutely no fact,supported by record evidence, that surgery, which seems to be whatAlexandre was after, was a preferable intervention while Cichon was onwatch.

In addition, there is no factual dispute that Coggeshall canceled thefollow-up visit with Doctor Griffith. What is important (and undisputed)is that this visit was cancelled because of the note received fromGriffith recommending a hiatus in orthopedic treatment untilAlexandré's "social situation" was settled. Cichon reviewed thisissue when Alexandré requested he do so and determined that it wasappropriate to try physical therapy rather than pursue a follow-up withGriffith.

With respect to Alexandré's Cichon-specific concernsAlexandré has not specified the nature of the evidence he claimsto have of Cichon's pre-July involvement. See Rosenfeld v. Egy,346 F.3d 11, 17, (1st Cir. 2003). Without more on Alexandré's part,I decline to use my imagination to identify a hypothetical factualassertion that might generate a genuine dispute of material fact onAlexandra's behalf. Finally, vis-a-vis Alexandré's disagreementwith the assertion by Cichon that Alexandré was receiving physicaltherapy three times a week, as I read the record, Cichon is not claimingthat there were three-times-a-week outpatient visits to HealthSouth. Asthere is no dispute about the dates of those outpatient visits, thequestion of whether there were additional in-house therapy sessions ontop of the cell exercises is not one that has to be answered given theother facts on this subject that are not in dispute.3 Alexandré clearly believed at the time and believes now thatsomething different, something more should have been done to treat hisshoulder condition.4 However, even if Alexandré hadestablished a factual basis for concluding that Cichon made a mistake injudgment in treating his shoulder, this would not form a factual basisfor concluding that this was deliberately indifferent care within themeaning of Farmer. Giving Alexandré the benefit of allreasonable inferences, Alexandré has not generated agenuine dispute of material fact to form the bases for a conclusion thatCichon acted with a culpable state of mind. Farmer, 511 U.S. at834. Viewed within the four corners of the summary judgment pleadings,Cichon's treatment decisions (the most prominent being the pursuit ofphysical therapy rather than ordering a follow-up with the orthopedicspecialist) amounts, at the most, to no more than negligence, seeDaniels, 474 U.S. at 335-36; Estelle, 429 U.S. at 105-06.


For the reasons stated above I recommend that the Court GRANTCichon's (Docket No. 38) motion for summary judgment.


A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.

1. In terms of the applicable Constitution standard, there is atwist in this case, in that Alexandré was both a convictedprisoner and a pre-trial detainee while at the jail. However, the FirstCircuit stated in Burrell v. Hampshire County that: "Pretrialdetainees are protected under the Fourteenth Amendment Due Process Clauserather than the Eighth Amendment; however, the standard to be applied isthe same as that used in Eighth Amendment cases." 307 F.3d 1, 7 (1st Cir.2002) (citing Bell v. Wolfish 441 U.S. 520, 545(1979) (the DueProcess Clause protections are at least as great as those under theEighth Amendment); 1 M.B. Mushlin, Rights of Prisoners §2.02 (2d ed. Supp.2001)"); accord Calderon-Ortiz v.Labov-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002); Elliott v.Cheshire County, 940 F.2d 7, 10 (1st Cir. 1991); Gaudreault v.Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990);McNally v. Prison Health Servs., Inc., 28 F. Supp.2d 671, 673(D. Me. 1998).

2. Alexandré's pro se status does not relieve himof his duty to respond, see Parkinson v. Goord, 116 F. Supp.2d 390,393 (W.D.N.Y. 2000) ("[P]roceeding pro se does nototherwise relieve a litigant of the usual requirements of summaryjudgment"), nor does it mitigate this Court's obligation to fairlyapply the rules governing summary judgment proceedings, seeFed.R.Civ.P. 56; Dist. Me. Loc. R. Civ. P. 56.

3. One need only reference the recommended decisions issued on theother two defendants' motions in which this three-time-a-week allegationis absent, to verify this point.

4. Not surprisingly as a pro se incarcerated litigant,Alexandré has provided no record evidence in the nature of aprofessional medical opinion that the course of treatment afforded himwas inadequate or misguided.

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