222 F. Supp.2d 86 (2002) | Cited 0 times | D. Maine | September 4, 2002


The United States Magistrate judge having filed with the Courton July 25, 2002, with copies to the pro se Plaintiff and tocounsel, her Recommended Decision on Motion to Dismiss42 U.S.C. § 1983 Complaint in the above-entitled matter (Docket No. 15);and the time for filing objections thereto having expiredwithout any objections having been filed; see28 U.S.C. § 636(b)(1); and this Court having reviewed and consideration theMagistrate Judge's Recommended Decision, together with theentire record; and having made a de novo determination of allmatters adjudicated by the Magistrate Judge's RecommendedDecision; and this Court concurring with the recommendations ofthe United States Magistrate Judge for the reasons set forth inher Recommended Decision, and having determined that no furtherproceeding is necessary; it is ORDERED as follows:

(1) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED;

(2) Defendant's Motion to Dismiss (Docket No. 11) is hereby DENIED.


Robert Dellairo, an inmate serving a nine-month sentence atthe Penobscot County Jail, proceeding pro se and in formapauperis, presses a 42 U.S.C. § 1983 complaint against TimothyGarland alleging that Garland violated Dellairo's constitutionalright to be free from cruel andunusual punishment promised by the Eighth Amendment. (Docket No.1.)1 Garland is a physician assistant at the jail. Thepunishment of which Dellairo complains is that Garland has beendeliberately indifferent in responding to a growth in Dellairo'sankle that causes substantial pain and threatens long-termimpairment if left untreated. Garland has responded with amotion to dismiss (Docket No. 11) arguing that Dellairo has notsufficiently alleged a deliberate indifference claim and, in thealternative, he should be spared the burdens of this suitbecause he is entitled to qualified immunity.2 For thereasons articulated below, I recommend that the Court DENY themotion to dismiss.


A. Factual Allegations

In his original handwritten complaint and a pre-answeramendment filed on April 28, 2002, which is accompanied by anaffidavit (Docket No. 8) Dellairo alleges as follows. InSeptember 2001, one week prior to his incarceration, Dellairowas seen in the emergency room of the Eastern Maine MedicalCenter by a doctor. That doctor told Dellairo that he had agrowth in his left ankle that was growing into the bone andneeded surgery. He prescribed a pain medication in the interim.The surgery was scheduled but prior to the date set for thesurgery Dellairo was incarcerated at the Penobscot County Jail.

At the jail Dellairo was seen by Garland on October 12, 2001,at which point Dellairo described the problems with his leftankle, explained that the growth was growing into his bone,complained that he was in serious pain, and reported that thedoctor he had seen just prior to his incarceration hadrecommended surgery. Garland said he would send for Dellairo'sx-rays and get back to him. Several months went by withoutaction by Garland.

During the six months prior to the filing of the complaintDellairo filled out many medical slips and lodged threegrievances. In response to his December 5, 2001, grievanceGarland stated that Dellairo's doctor was not refilling his painmedication. Dellairo explains that the pain medication referredto by Garland was for his back and not his left ankle and thatGarland should have made sure that he was clear on whether therewas an order for pain killer vis-a-vis the ankle. When Dellairowas seen on February 15, 2002, in response to his thirdgrievance Garland became agitated and asked Dellairo to leavehis office. With respect to Garland's description of Dellairo as"loud, demanding, and uncooperative" in his report on thisinteraction, Dellairo states that he was not acting in thismanner and that it was Garland who was upset because ofDellairo's efforts to press Garland for treatment.

Finally, after six-months Garland ordered x-rays and concludedthat there is a growth in the ankle. However, according toDellairo, Garland feels "that no further treatment isnecessary."

Dellairo alleges that he is in serious pain; that his ankle"hurts extremely bad." He describes shooting pains that spike upto his knee. He has a hard time walking, rotating his ankle, andlaying onhis left side where the ankle is flush with the bed. After sevenmonths the pain is getting worse. He has been given no painmedication, not even Tylenol.

With respect to his requested relief Dellairo seeks treatmentfor his ankle; specifically he wants the growth removed from hisankle. He also seeks compensatory and punitive damages.

B. Motion to Dismiss for Failure to State a Claim3

1. Standard for Motions to Dismiss in the Context of Civil Rights Claims

In reviewing this complaint to determine whether it states aclaim sufficient to survive Garland's motion to dismiss I takeall of Dellairo's allegations as true. Buckley v. Fitzsimmons,509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). SinceDellairo is proceeding pro se I subject his submissions to"less stringent standards than formal pleadings drafted bylawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,30 L.Ed.2d 652 (1972). Also in light of Dellairo's pro sestatus, I examine his other pleadings to understand the natureand basis of Dellairo's claims. Gray v. Poole, 275 F.3d 1113,1115 (D.C. Cir. 2002) (citing the holding of Richardson v.United States, 193 F.3d 545, 548 (D.C. Cir. 1999) that DistrictCourt abused its discretion when it failed to consider the prose plaintiff's complaint in light of his reply to the motion todismiss).4

In response to Garland's suggestion that prisoner complaints"should be disposed of at the earliest opportunity," I note thatFederal Rule of Civil Procedure 8(a)(2) requires no more from acomplaint than a "short and plain statement of the claim showingthat the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).Recent case law has counseled that a court must be very wary ofrequiring more than a simple notice pleading. See Swierkiewiczv. Sorema N. A., 534 U.S. 506, ___, 122 S.Ct. 992, 998,152 L.Ed.2d 1 (2002) ("Rule 8(a)'s simplified pleading standardapplies to all civil actions, with limited exceptions.");Walker v. Benjamin, 293 F.3d 1030, 1039 (7th Cir. 2002)(reversing in part a qualified immunity determination in favorof defendants premised on insufficient notice pleading,concluding that the 42 U.S.C. § 1983 plaintiff "need not set outin detail all of the facts upon which he bases his claim.Rule 8(a) requires only that thecomplaint give the defendants fair notice of what the claim isand the grounds upon which it rests"); see also Leatherman v.Tarrant County Narcotics Intelligence and Coordination Unit,507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).Swierkiewicz does not completely answer Garland's argumentthat civil rights actions "are subject to a heightened pleadingstandard," that is, it does not make it clear whether a civilrights action might be one of Swierkiewicz's limitedexceptions. This is a question open to debate under FirstCircuit and District of Maine precedent. See Dartmouth Reviewv. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989)(observing that a plaintiff has the obligation to plead factualallegations regarding each material element necessary to supporteach of the plaintiff's legal theories and suggesting that the"need is perhaps greater where allegations of civil rightsviolations lie at the suit's core"); Greenier v. Pace, LocalNo. 1188, 201 F. Supp.2d 172, 176-77 (Me. 2002) (Singal, Dist.J.) ("The approach that the Supreme Court set forth inSwierkiewicz requires the Court to treat complaints moreliberally than recently has been the practice of either thisCourt or the First Circuit."); Goodman v. Bowdoin College,135 F. Supp.2d 40, 52 (Me. 2001) (Carter, Dist. J.) ("In light of theSupreme Court's unequivocal language regarding the improprietyof judicially imposed heightened pleading standards and thedistinctions between the governmental immunity doctrine andsubstantive civil rights claims, without more explicitinstructions from the Court of Appeals to apply heightenedpleading requirements to claims that do not implicate thegovernmental immunity doctrine, the Court does not believe thatit is wise to . . . to apply a heightened pleading requirementin the instant case."). However, I conclude that I do not needto cross this particular bridge today. As explained below, thiscomplaint is not fuzzy on the facts material to an EighthAmendment deliberate indifference claim and, because of thestrength of Dellairo's allegation on the substantive claim,Garland's claim to immunity is not ripe for decision, even if Iapplied some fashion of heightened pleading requirement.

2. Stating a Claim Under the Eighth Amendment for Deliberate Indifference to a Serious Medical Condition

The United States Supreme Court has framed the broad outlinesof the deliberate indifference inquiry in two cases: Estelle v.Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) andFarmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970,128 L.Ed.2d 811 (1994). The Estelle Court identified in the EighthAmendment protection the "government's obligation to providemedical care for those whom it is punishing by incarceration."429 U.S. at 103, 97 S.Ct. 285. It observed: "An inmate must relyon prison authorities to treat his medical needs; if theauthorities fail to do so, those needs will not be met." Id.See also Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475,125 L.Ed.2d 22 (1993) ("[T]he substantive limits on state actionset by the Eighth Amendment," when it "so restrains anindividual's liberty that it renders him unable to care forhimself, and at the same time fails to provide for his basichuman needs" including food and medical care).

In Farmer the Court more precisely articulated the standarda plaintiff must meet to hold a prison official liable forEighth Amendment claims of this ilk. It identified two prongs.First, the deprivation alleged must be "objectively`sufficiently serious.'" 511 U.S. at 834, 114 S.Ct. 1970(quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321,115 L.Ed.2d 271 (1991)). I read Farmer to include within thisfirst prong a consideration notonly of the extent of illness, injury, or pain but also of whatsteps were or were not taken by the defendant without addressingmotivations. Walker, 293 F.3d at 1037 ("The deprivationsuffered by the prisoner must be objectively sufficientlyserious; that is, it must result in the denial of the minimalcivilized measure of life's necessities," emphasis added).Second, under Farmer, the defendant must have a culpable stateof mind, which means that the defendant was deliberate in hisindifference to the inmate's health or safety. Id.

I conclude that Dellairo has "allege[d] a sufficiently seriousdeprivation that is, `a condition of urgency, one that mayproduce death, degeneration, or extreme pain.'" Morales v.Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (quoting Hathaway v.Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). He meets the TenthCircuit's standard on two scores: his is a medical conditionthat has been diagnosed by a doctor and that is sufficientlyserious that a lay-person would see that doctor intervention wasrequired. Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.2002).

Dellairo alleges that prior to his entry to the jail he wasdiagnosed with the ankle growth and scheduled for surgery inshort course. He alleges that the emergency room doctor wasconcerned that the growth was growing into the bone. He statesthat he was in constant pain and that the level of painincreased as he went untreated for over seven months in thejail.5 Though Dellairo made regular complaints to Garlandregarding his pain and the need for treatment, no treatment wasprovided even after a second set of x-rays was taken whileDellairo was in the Jail that reconfirmed the presence of agrowth. Furthermore no steps were taken by Garland to remediateDellairo's pain; Dellairo alleges that he was not even providedwith Tylenol. Morales, 278 F.3d at 133 (stating that theplaintiff "arguably pleaded facts sufficient to show a seriousdeprivation by alleging that he suffered constant, unremediatedpain"); see also Reed v. McBride, 178 F.3d 849 (7th Cir. 1999)(reversing summary judgment in favor of defendants in adeliberate indifference to serious medical needs case involvingdenial of food and essential medications). Thus, viewed underFarmer's first prong, I conclude that Dellairo has plead factsthat would if proven establish a deprivation that is objectivelysufficiently serious. 511 U.S. at 834, 114 S.Ct. 1970.

With respect to Farmer's subjective second prong, this is anelement that is not so cleanly disposed of in a motion todismiss as it involves proof of a culpable state of mind.Estelle provided that the plaintiff must prove an "unnecessaryand wanton infliction of pain"; motivation by the defendant thatis "repugnant to the conscience of mankind." 429 U.S. at 105-06,97 S.Ct. 285. However, Dellairo need not prove that Garlandacted with the purpose of harming Dellairo: "It is enough toshow that [Garland] actually knew of a substantial risk of harmto [Dellairo] and acted or failed to act in disregard of thatrisk." Walker, 293 F.3d at 1037. See also Farmer, 511 842, 114 S.Ct. 1970 ("Under the test we adopt today, anEighth Amendment claimant need not show that a prison officialacted or failed to act believing that harm actually would befallan inmate; it is enough that the official acted or failed to actdespite his knowledge of a substantial risk of serious harm.").

I conclude that Dellairo's allegations that Garland knew aboutthe severityof Dellairo's condition and his ongoing pain but refused toprovide treatment or pain relief are sufficient to meet thesecond Farmer prong for purposes of surviving a motion todismiss. Contrary to Garland's characterization, this is not adispute over the adequacy of medical treatment; Dellairo iscomplaining about the out-right refusal by Garland to treat aserious and prolonged ankle condition or to alleviate theassociated pain. See Walker, 293 F.3d at 1038-39 (reversingsummary judgment in favor of two defendants who had refused totreat a bone infection that caused displacement of a bone, whofailed to carry through with post-operative instruction by anoutside physician, and who withheld pain medication in the faceof obvious pain). Dellairo has sufficiently alleged that Garland"knew facts from which [a jury] could infer that absent furthertreatment or more prompt treatment, [Dellairo] faced seriousharm." Morales, 278 F.3d at 133. Assuming Dellairo can provehis allegation this amounts to more than negligence or medicalmalpractice. See Daniels v. Williams, 474 U.S. 327,106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (noting that 42 U.S.C. § 1983provides a right of action for civil rights violations andcannot be used to sue correctional officials for negligence).

C. Qualified Immunity

Qualified immunity shields government employees performingtheir discretionary functions from civil liability "as long astheir actions could reasonably have been thought consistent withthe rights they are alleged to have violated." Anderson v.Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523(1987). See also Davis v. Rennie, 264 F.3d 86, 113 (1st Cir.2001) ("Qualified immunity protects state actors `from liabilityfor civil damages insofar as their conduct does not violateclearly established statutory or constitutional rights of whicha reasonable person would have known,'" quoting Harlow v.Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982)).

The United States Supreme Court insists that courtsundertaking the qualified immunity analysis do so in the propersequence. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151,150 L.Ed.2d 272 (2001). "A court required to rule upon thequalified immunity issue," the Court stated "must consider thisthreshold question: Taken in the light most favorable to theparty asserting the injury, do the facts alleged show theofficer's conduct violated a constitutional right? This must bethe initial inquiry." Id. at 201, 121 S.Ct. 2151 (quotingSiegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,114 L.Ed.2d 277 (1991)). My conclusion above that Dellairo hasstated a claim for a violation of his Eighth Amendment right tobe free from cruel and unusual punishment also means that theanswer to this inquiry is "yes," he has alleged facts that wouldsupport a determination that Garland violated a constitutionalright.

Next I ask if this right was clearly established at the timeof Dellairo's interactions with Garland. Saucier, 533 U.S. at201, 121 S.Ct. 2151. "This inquiry," Saucier stressed, "mustbe undertaken in light of the specific context of the case, notas a broad general proposition; and it too serves to advanceunderstanding of the law and to allow [government officials] toavoid the burden of trial if qualified immunity is applicable."Id. Garland somewhat obliquely contends that "it is notclearly established that in the absence of knowledge of thebasis for the need for medical attention, refusal to grant aninmate's request for medical attention was a constitutionalviolation." He also states that since in his view Dellairo hasnot stated a claim that a constitutional right has beeninfringed the constitutional right cannot be clearlyestablished.

As documented by the Supreme Court and Courts of Appeal casescited in my discussion of whether Dellairo stated a claim fordeliberate indifference to serious medical needs, well beforeDecember 2001 courts have recognized that inmates have a rightto receive adequate medical care for serious medical conditions.Dellairo's allegations concerning his medical condition and theassociated pain bring him squarely within the parameters ofthese precedents. See Walker, 293 F.3d at 1040-41 (swiftlyrejecting the notion that the defendants are entitled toqualified immunity on very similar facts).

Finally, I must ask "whether a reasonable, similarly situatedofficial would understand that the challenged conduct violatedthe established right." Saucier, 533 U.S. at 201,121 S.Ct. 2151. Accord Aponte Matos v. Toledo Davila, 135 F.3d 182, 186(1st Cir. 1998). In other words, it is possible that Garlandviolated Dellairo's clearly established constitutional rightsbut is immune from suit because it was objectively reasonablefor him to do so because the unlawfulness of his actions was notapparent to him. See Anderson, 483 U.S. at 640, 643-44,107 S.Ct. 3034 (observing that qualified immunity may extend toactors that violate the constitutional rights of the plaintiff).Again, with the improper state-of-mind sufficiently alleged byDellairo, I cannot but conclude that "it would be clear to areasonable officer that his conduct" — deliberately withholdingall treatment and pain medication from an inmate with a growthon his ankle that is growing into a bone and causing increasingpain — "was []lawful in the situation he confronted." Saucier,533 U.S. at 202, 121 S.Ct. 2151.

Finally I note that my conclusion at this pleading stage thatGarland is not entitled to qualified immunity does not foreclosehim from raising the defense at a later stage of this action. Atthe moment I have considered only the allegations of thecomplaint. Garland may well be able to produce evidence in asummary judgment record with respect to his treatment andinteractions with Dellairo that changes the complexion of thisdeliberate indifference claim and that would entitle himqualified immunity at a stage short of trial.6


For the reasons stated above I recommend that the Court DENYthe motion to dismiss (Docket No. 11).


A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommendeddecisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for whichde novo review by the district court is sought, together witha supporting memorandum, within ten (10) days of being servedwith a copy thereof. A responsive memorandum shall be filedwithin ten (10) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiverof the right to de novo review by the district court and toappeal the district court's order.

July 25, 2002.

1. Dellairo also initially named Penobscot County Jailofficials, Richard Clukey and Cheryl Gallant as defendants. Byletter motion filed March 27, 2002, Dellairo moved and waspermitted to amend his complaint to remove these two individualsas defendants. (Docket No. 6.).

2. Dellairo has filed a letter with the court explaining hisinability to properly respond to Garland's motion to dismiss.(Docket No. 14.) My proposed disposition of this motion mootsthe need to provide Dellairo with extra time to respond.

3. Though Garland cites the exhaustion of administrativeremedies requirement of 42 U.S.C. § 1997e(a) in footnote 2 ofhis motion to dismiss, he does so only in support of hisargument that Dellairo's complaint is subject to dismissal undersubsection (c) of § 1997e for failure to state a claim. AsGarland has not pressed non-exhaustion as a ground for dismissaland in view of Dellairo's allegations that he filed threegrievances there is no basis for a § 1997e(a) dismissal here.

4. Accordingly, I do consider the facts alleged by Dellairoin his affidavit attached to his amended complaint; Garland hasasked me to in his motion to dismiss. (Mot. Dismiss at 2.) Ialso note that Dellairo attached two reports from Eastern MaineMedical Center documenting the diagnosis of the growth andindicating it was about 50% of the way through the tibca inSeptember 2001. It notes a concern that a fracture of the tibeawas very likely and recommended, among other things, painmedication. It is well settled that "[m]aterial that has beensubmitted as part of the complaint may properly be considered bythe court in determining a motion under Fed.R.Civ.P.12(b)(6)."See Sullivan v. United States, 788 F.2d 813, 816 n. 3 (1stCir. 1986) (citing 2A Moore's Federal Practice ¶ 12.07 [2.-5] at12-68; Amfac Mtg. Corp. v. Ariz. Mall of Tempe, 583 F.2d 426,429-30 (9th Cir. 1978)). This documentation is not necessary toDellairo at this juncture, as I conclude that his bareallegations are sufficient to see him through this motion todismiss; however, presentation of this type of credible evidencemay well prove crucial when Dellairo prepares to defend asummary judgment motion should Garland file one.

5. The fact that Dellairo's condition was preexisting at thetime of his arrival at Penobscot County Jail does not defeat hisclaim. Watson v. Caton, 984 F.2d 537 (1st Cir. 1993)(reversing dismissal of the claims in the complaint that allegedthat prisoner was denied any treatment for a pre-incarcerationhand injury).

6. Garland has also addressed the viability of "implied statelaw claims." Nowhere in his pleading to date does Dellairosuggest that he is proceeding with any claim other than a § 1983deliberate indifference claim. While I am "less stringent" withpro se pleadings, Haines, 404 U.S. at 520, 92 S.Ct. 594, itis not this court's practice to look so far beyond the pleadingsfor conceivable causes of actions.

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