Rowe v. Rivera CV-99-249-JD 06/15/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
David B. Rowe
v. Civil No. 99-249-JD
Opinion No. 2000 DNH 137
Ada Rivera, et a l .
O R D E R
The plaintiff, David B. Rowe, proceeding pro se, brings a
Bivens1 action against seven federal defendants, alleging that
while he was detained by the Immigration and Naturalization
Service ("INS"), they were deliberately indifferent to his
serious medical needs for eye glasses and surgery to remove a
cataract. The defendants move for summary judgment on the
grounds that the plaintiff cannot show that they acted with
deliberate indifference or, alternatively, that they are entitled
to qualified immunity. The plaintiff objects to summary
judgment.
Standard of Review
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file.
1See Bivens v. Six Unknown Fed. Narcotics Agents, 4 03 U.S.
388 (1971) .
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c) . The record evidence is taken in the light most favorable
to the nonmoving party. See Zambrana-Marrero v. Suarez-Cruz, 172
F.3d 122, 125 (1st Cir. 1999). " [A]n issue is 'genuine' if the
evidence presented is such that a reasonable jury could resolve
the issue in favor of the nonmoving party and a 'material' fact
is one that might affect the outcome of the suit under governing
law." Fajardo Shopping Ctr. v. Sun Alliance Ins. Co.,
167 F.3d
1, 7 (1st Cir. 1999). Summary judgment will not be granted as
long as a reasonable jury could return a verdict in favor of the
nonmoving party. See Anderson v. Liberty Lobby. Inc..
477 U.S.
242, 248 (1986) .
Background
The plaintiff, David Rowe, was detained in INS custody at
the Merrimack County Department of Corrections in Boscawen, New
Hampshire, beginning on August 1, 1997. Rowe complained of eye
fatigue while he was detained in Merrimack County. The United
States Public Health Service, Division of Immigration Health
Services, authorized an eye examination for Rowe, which was
2
performed by Dr. Hogan.2 On February 27, 1998, Dr. Hogan
examined Rowe and diagnosed farsightedness in Rowe's left eye and
a dense traumatic cataract in Rowe's right eye with very poor
vision. Dr. Hogan recommended surgery to remove the cataract in
Rowe's right eye and suggested that he wear eye glasses full time
to protect and improve the vision in his left eye, but Dr. Hogan
did not prescribe glasses for Rowe.
Phyllis M. Butler, staff nurse at the Merrimack County
facility, sent Dr. Hogan's recommendation about treatment for
Rowe by facsimile transmission ("fax") to the Boston INS office
on February 27, 1998. Butler was notified on March 12 that
medical requests and information were to be sent to the INS
office in Bethesda, Maryland. Butler then sent the information
to Captain Nina Dozoretz in Maryland. In the course of another
medical request for Rowe sent on May 7, 1998, Butler noted that
Rowe asked frequently if authorization had been received for his
surgery and glasses and reminded Captain Dozoretz of the
2Under the agreement providing for detention of INS
detainees in local or state jails, the jail provides the same inhouse medical services to INS detainees as it would to its own
detainees. Medical services that cannot be provided by the local
or state jail must be pre-authorized by the Division of
Immigration Health Services. The record is conflicting as to
whether the Division or the INS pays for services that are
authorized and provided.
3
recommendation and Butler's three unanswered requests for
authorizations.
In the meantime. Nurse Butler's request for authorization
based on Dr. Hogan's recommendations had been forwarded to the
Department of Immigration Health Services. On March 17, 1998,
Dr. Ada Rivera, Chief of Clinical Operations in the Division of
Immigration Health Services, authorized the cataract surgery.
Butler faxed the estimated costs for Rowe's surgery on May 14,
1998, to Steven Wacha, a registered nurse and managed care
coordinator with the Division of Immigration Health Services. On
May 15, Wacha wrote to Butler that authorization for Rowe's
surgery was granted and that the surgery was to be performed by
Dr. Scott at the Lakes Region Hospital, Laconia, New Hampshire.
Rowe notes that his money account at the Merrimack County
jail was closed on May 15, 1998, the same day that Wacha faxed
his authorization to Butler at the jail. From that circumstance,
Rowe infers that Wacha also faxed his authorization to the INS
Boston division, and that the decision was made that day to
transfer him away from Merrimack to avoid the cost of the surgery
that had been authorized.
Early on May 18, 1998, Richard Doucet, Deputy Superintendent
of the Merrimack County jail, made a request to INS officials in
Boston to transfer Rowe out of that facility. Doucet says the
4
transfer was requested "because of concerns that he would not
follow physician's instructions or otherwise cooperate with his
care following surgery on his eye and would, as a result, cause
himself harm while in Merrimack's custody." PI. Ex. J.
When Nurse Butler arrived at work on Monday morning. May 18,
she found a fax from Wacha, approving Rowe's surgery and a note
that the INS would be transferring Rowe out of Merrimack County
that day. Because of the transfer, Butler did not schedule the
authorized surgery.
James Dupont, Supervisory Detention and Deportation Officer
of the INS for the Boston district, authorized Rowe's transfer
from Merrimack County to the Hillsborough County Department of
Corrections, in Manchester, New Hampshire, on May 20, 1998.
Despite Deputy Superintendent Doucet's stated reason for
requesting Rowe's transfer, Dupont says in his declaration that
Rowe was transferred because Merrimack no longer wanted to house
INS detainees. Dupont says that he had no knowledge of Rowe's
eye problems or the surgery authorization when Rowe was
transferred from Merrimack County. Rowe was transferred to
Hillsborough County on May 20.
As a result of Rowe's transfer to Hillsborough, Wacha
received another request for preauthorization of treatment for
Rowe's cataract. On June 4, 1998, Wacha notified Hillsborough
5
that the Division of Immigration Health Services authorized a
pre-operation consultation and surgery with Dr. Randall Brown of
New Hampshire Eye Associates in Manchester, New Hampshire. Dr.
Brown examined Rowe on June 23, 1998, and diagnosed a traumatic
cataract in the right eye caused by an injury when Rowe was hit
in the eye by a cricket ball twenty years earlier. He
recommended that Rowe could be referred to Boston for surgery
after he was out of jail. Dr. Brown found that Rowe's vision in
his left eye was 20/20. Rowe states in his declaration that Dr.
Brown told him he could not examine in the back of his eye to
determine whether there was retinal detachment and could not
perform the cataract removal surgery because he did not have the
right equipment.
On August 4, 1998, Wacha received a request from
Hillsborough County that Rowe be authorized for cataract surgery
by a specialist in Boston. Based on Dr. Brown's examination and
recommendation that the surgery could wait until Rowe was
released from jail, Wacha recommended to Ada Rivera that the
requested cataract surgery be denied. Dr. Rivera agreed with
Wacha's recommendation, and on August 20, Wacha notified
Hillsborough that the requested authorization was denied.
While in detention, Rowe continued to challenge his INS
custody status. He wrote to Steven Farquharson, INS District
6
Director in Boston, on November 20, 1997, from the Merrimack
County jail seeking to make arrangements for Rowe's wife to take
pictures at the jail to be used in his request for an adjustment
in custody status. In a letter dated August 7, 1998, sent in
response to Rowe's request for a change in custody status,
Farquharson reviewed Rowe's detention history and the previous
determinations denying him bond based on findings that Rowe posed
a danger to the community due to his propensity for violence.
Farquharson denied Rowe's request for release.3
Rowe filed suit in this court on October 13, 1998, seeking
an injunction to compel the INS to provide the cataract surgery
and eye glasses recommended by Dr. Hogan. See Rowe v. Dozoretz,
98-CV-569-JD. Rowe was examined by Dr. Barry Jacobs of New
Hampshire Eye Associates on November 11, 1998, as authorized by
Annette Kolter, a managed care coordinator with the Division of
Immigration Health Services. Dr. Jacobs reported to Kolter that
Rowe had no progressive disease in his eyes, that his left eye
3Rowe argues that it can be inferred that Farquharson and an
INS contracting officer, Roger Fregeau, knew of his need for
cataract surgery and eye glasses and ignored it. The inferential
chain Rowe asserts, however, is not supported with record
evidence and depends in large part on unsubstantiated assertions
and conclusory allegations that are not sufficient to oppose
summary judgment. See Medina-Munoz v. R.J. Reynolds Tobacco Co.,
896 F .2d 5, 8 (1st Cir. 1990).
7
would not be damaged if cataract surgery for the right eye were
delayed. Dr. Jacobs wrote: "In other words, the cataract
procedure is not urgent. It can wait for his release from jail."
Dr. Jacobs also stated that Rowe's intermittent difficulty with
reading vision in his left eye could be corrected with eye
glasses, and provided a prescription.
Hearings were held on Rowe's request for injunctive relief
on November 12 and 18, 1998. Reading glasses were provided to
Rowe on November 16, although Rowe disputes whether they were the
glasses prescribed by Dr. Jacobs.4 During the hearing on
November 18, Rowe and the defendants entered into a stipulation
to resolve the issues raised in that suit. The Division of
Immigration and Health Services agreed to authorize that Rowe
receive B-scan ultrasound testing by a sub-specialist as soon as
the test could be scheduled, and that Rowe would be scheduled for
routine follow-up eye examinations twice annually as long as he
remained in INS custody. Under the terms of the stipulation,
Rowe withdrew his requests for injunctive relief, and the case
4Rowe argues that the glasses he was given were over-thecounter magnifying glasses rather than prescription glasses. The
record is unclear as to which kind of glasses the INS provided.
Although Rowe claims that his vision has since deteriorated in
his left eye due to the lack of proper glasses while he was
detained, he provides no evidence in support of this claim.
was dismissed without prejudice.
Rowe underwent an examination and a B-scan ultrasound
procedure conducted by Dr. Bradford Shingleton of Ophthalmic
Consultants of Boston on December 10, 1998. Dr. Shingleton
reported on December 12, 1998, that Rowe had 20/20 vision in his
left eye and a traumatic membranous cataract in his right eye.
Dr. Shingleton found that the retina was attached and found no
evidence of detachment or masses. He stated that cataract
surgery would improve Rowe's vision in his right eye, although he
was not sure as to the extent of the improvement. Dr. Shingleton
also stated that the eye was "very quiet without inflammation and
there certainly is no rush for surgery. This can be performed
anytime." Defs. Ex. 3, Att. F.
Dr. Jacobs examined Rowe again on April 27, 1999. He found
that Rowe had normal vision in his left eye using eye glasses,
which were the appropriate corrective lenses he had previously
prescribed. Dr. Jacobs found no change in the condition of
Rowe's right eye and found normal pressure in both eyes.
Rowe filed the present suit in this court on June 7, 1999,
seeking damages based on allegations they he had been denied
needed medical care while in INS custody in violation of the
Fifth Amendment. Rowe also sought an injunction to require the
INS to provide him with cataract surgery and proper eye glasses.
9
A hearing was held on June 30, 1999, on Rowe's motion for
injunctive relief. Dr. Jacobs testified about the diagnoses
pertaining to Rowe's eyes, and the present status of the cataract
and his right eye. Rowe questioned Dr. Jacobs about the glasses
provided by the INS, asking whether they were the correction he
had prescribed or just over-the-counter magnifying glasses. Dr.
Jacobs explained that there was little difference between his
prescription and magnifying glasses. He examined Rowe's glasses
and said that they appeared to be prescription glasses rather
than over-the-counter magnifying glasses, although he could not
be sure.
Dr. Jacobs gave his opinion that Rowe was at some increased
risk of developing glaucoma. In his opinion, surgery to remove
the cataract would likely improve Rowe's vision, but there was no
urgency in performing the surgery, and he characterized the
surgery as "elective." Dr. Jacobs said that in the short term
there was practically no risk to the vision in Rowe's right eye
if the surgery were not performed. He agreed with Rowe that due
to the cataract, it would be difficult to detect or diagnose
retinal detachment in that eye, if it should occur. Dr. Jacobs
also agreed that surgery would improve Rowe's safety because he
could see things on his right side that he did not see with the
cataract and improve his overall functioning. He recommended
10
follow-up examinations every four to six months to rule out any
undetected increased pressure in the eye or inflammation.
On July 1, 1999, the court denied injunctive relief,
concluding that the record did not demonstrate that Rowe was
likely to suffer irreparable harm if cataract surgery were not
performed immediately. The court expressed concern, however,
about Rowe's future need for surgery if he were retained in INS
custody indefinitely and questioned the reasonableness of the
INS's efforts to avoid providing surgery in this case. Rowe was
released on bond on July 9, 1999, pursuant to the order of an
Immigration Judge after review of Rowe's custody status.
Rowe states in his declaration that he had a pre-operative
examination done by Dr. Murphy of Massachusetts Eye and Ear
Associates on March 20, 2000. Rowe says that he asked Dr. Murphy
about the glasses the INS provided and that Dr. Murphy tested the
glasses and found them to be over-the-counter glasses rather than
prescription glasses. Rowe also discussed Dr. Hogan's suggestion
that Rowe wear glasses to protect and improve his vision in his
left eye. Dr. Murphy explained, Rowe states, that to both
protect and improve his vision he would need bifocal glasses with
polycarbonate lenses, and he gave Rowe a prescription for those
glasses. Rowe included a copy of the prescription in his
materials, but did not submit any other records from his
11
examination with Dr. Murphy.
12
Discussion
The defendants move for summary judgment on the grounds that
based on the facts of record, Rowe cannot show that they were
deliberately indifferent to his serious medical needs.
Alternatively, the defendants argue that they are entitled to
qualified immunity from Rowe's claims against them. Rowe objects
to summary judgment, contending that the evidence shows the
defendants' deliberate indifference to his need for cataract
surgery and eye glasses.5
"A person may sue a federal official in his or her
individual capacity for damages arising out of a constitutional
violation." Aversa v. United States, 99 F.3d 1200, 1213 (1st
Cir. 1996) (citing Bivens,
403 U.S. 388). The due process clause
of the Fifth Amendment protects the rights of INS detainees to
medical care. See Edwards v. Johnson.
209 F.3d 772, 778 (5th
Cir. 2000). Detainees are entitled to medical assistance for
serious medical needs and a constitutional violation occurs when
an official is deliberately indifferent to such needs. See
Consolo v. George,
58 F.3d 791, 794-95 (1st Cir. 1995).
5Since Rowe is no longer detained in INS custody, his
request for injunctive relief is now moot. See, e.g., Murphy v.
Hunt, 455 U.S. 478, 481-82 (1982); Purvis v. Ponte,
929 F.2d 822,
825 (1st Cir. 1991); Garcia v. DeBatista,
642 F.2d 11, 12-13 (1st
Cir. 1981).
13
"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.'" Mahan v. Plymouth County House of
Corrections, 64 F.3d 14, 18 (1st Cir. 1995) (quoting Gaudreault
v. Municipality of Salem, Mass.,
923 F.2d 203, 208 (1st Cir.
1990). Deliberate indifference in the prison context requires
"an actual, subjective appreciation of risk," meaning that "'the
official knows of and disregards an excessive risk to inmate
health or safety.'" Giroux v. Somerset County,
178 F.3d 28, 32
(1st Cir. 1999) (quoting Farmer v. Brennan,
511 U.S. 825, 837
(1994)). The defendant official's knowledge of a substantial
risk is a factual question that may be demonstrated "'in the
ususal ways, including inference from circumstantial evidence,
and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.'"
Id. (quoting Farmer,
511 U.S. at 842). On the other hand,
officials will not be liable if they responded reasonably to a
known substantial risk. See Farmer,
511 U.S. at 844.
A. Cataract Surgery
The defendants argue that Rowe cannot show that they were
aware that Rowe's cataract condition exposed him to a serious
14
risk of harm and that they nevertheless failed to take reasonable
steps to provide him with medical assistance. Instead, the
defendants contend, the record shows that they did take
reasonable measures to address Rowe's cataract condition and
acted reasonably in deciding not to authorize surgery to remove
the cataract. Rowe relies on Dr. Hogan's diagnosis and
recommendation that he have cataract surgery to show that the
defendants knew of his need for surgery and deliberately ignored
a substantial risk to his health by failing to authorize and
provide the surgery.
If Dr. Hogan's diagnosis and recommendation were the only
medical opinion in the record, Rowe would have a strong case.
The record establishes that Rowe had a dense traumatic cataract
in his right eye caused by an accident twenty years earlier. Dr.
Hogan recommended that Rowe have surgery to prevent phacolytic
glaucoma. Dr. Brown and Dr. Jacobs agreed with the diagnosis of
traumatic cataract, but found that the eye was stable and did not
need immediate surgery. Dr. Brown and Dr. Jacobs recommended a
B-scan ultrasound test to determine the possible benefit of
surgery and monitoring of the condition of the eye. Dr.
Shingleton also found that the eye was stable and that there was
no rush for surgery. Rowe was examined as the doctors
recommended until he was released on bond.
15
The record shows that the defendants reacted appropriately
to Dr. Hogan's recommendation for surgery by authorizing surgery
and progressing toward scheduling the procedure. The delay
between Nurse Butler's initial request for authorization to the
correct address in mid-March and the authorization in mid-May
does not demonstrate the defendants' deliberate indifference to a
serious medical need. At worst, given the lack of urgency for
the health care requested, the delay in responding to Nurse
Butler's request by the Division of Immigration Health Services
might suggest negligence.
Although Rowe faults Wacha and Rivera for changing their
minds after Dr. Brown's examination and opinion that surgery was
not then necessary, and for continuing to deny authorization
based on Dr. Jacobs' and Dr. Shingleton's subsequent similar
opinions, the record does not show that their decision was due to
their deliberate indifference to a serious medical need. Wacha
states in his declaration that he sought a doctor to provide the
surgery who was closer to the Hillsborough jail where Rowe was
being held, not that he sought another opinion to avoid the
surgery recommended by Dr. Hogan, which Wacha and Rivera had
already authorized. Despite the inconsistencies in the record
pertaining to the reasons for transferring Rowe from Merrimack to
Hillsborough, the evidence does not support an inference that
16
Rowe was transferred to avoid the recommended and authorized
surgery.
Based on the evidence provided for summary judgment, it is
undisputed that Rowe received medical attention pertaining to his
cataract condition, although he did not receive surgery to remove
the cataract. The record shows a difference of opinion among the
doctors that examined Rowe as to the appropriate course of
treating the cataract. Disagreement among medical professionals
as to the proper course of treatment does not give rise to a
constitutional violation. See Watson v. Caton, 984 F.2d 537, 540
(1st Cir. 1993); Sires v. Berman,
834 F.2d 9, 13 (1st Cir. 1987).
The defendants' reliance on the opinions of the doctors who
examined Rowe after Dr. Hogan recommended surgery and who
believed that his condition was not urgent does not constitute
deliberate indifference to a substantial risk to Rowe's health.
Since Rowe has not demonstrated a trialworthy factual issue on
his claim that the defendants violated his due process rights by
not immediately authorizing surgery for his cataract, the
defendants are entitled to summary judgment.
B. Eye Glasses
Rowe also contends that the defendants were deliberately
indifferent to his serious medical need for eye glasses both to
17
correct his vision and to protect his left eye from injury. Rowe
relies on Dr. Hogan's suggestion that Rowe be provided with eye
glasses to be worn full time to improve and protect his vision in
his left eye. He faults Wacha and Rivera for not authorizing eye
glasses for him as Dr. Hogan suggested, and he argues that the
eye glasses that were eventually provided did not comply with Dr.
Hogan's suggestion or Dr. Jacobs' prescription.
A medically documented need for eye glasses that is known by
the defendants and ignored may give rise to a claim that the
defendants were deliberately indifferent to the plaintiff's
serious medical need. See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d
Cir. 1996). In this case. Dr. Hogan suggested, on February 27,
1998, that Rowe wear full-time glasses to protect and improve his
vision in his left eye, but he did not prescribe such glasses.
It appears that Nurse Butler, from Merrimack County, only
requested authorization for cataract surgery, based on Dr.
Hogan's recommendation. Since Butler is not a defendant, any
failure on her part to request an authorization for glasses is
not actionable against the defendants in this case.
Dr. Hogan's recommendation, including the suggestion for
glasses, was attached to Nurse Butler's request to the Division
for Immigration Health Services for authorization of cataract
surgery. Since Dr. Hogan did not provide a prescription for the
18
glasses, his suggestion did not show a medical need that mandated
treatment. There is no evidence that Wacha, Rivera, or any of
the defendants were subjectively aware that Rowe had a serious
medical need for glasses and deliberately ignored it. Therefore,
based on the record presented for summary judgment, the
defendants' response to Dr. Hogan's suggestion was at most
negligent, rather than deliberately indifferent.
On June 23, 1998, Rowe was examined by Dr. Brown who
determined that he had no vision deficiency in his left eye. Dr.
Brown made no recommendation that Rowe wear glasses to protect
his vision in the left eye. Since no deficiency was found and no
recommendation was made for glasses, no request was made for an
authorization for glasses. When Rowe was examined on November
11, 1998, Dr. Jacobs reported that " [h]is intermittent difficulty
with near/reading vision can be alleviated with a reading
spectacle, for which I have given him a prescription." Defs. Ex.
3, att. D. Dr. Jacobs did not recommend or prescribe full-time
glasses to protect Rowe's vision in his left eye. Later, at the
preliminary injunction hearing on June 30, 1999, Dr. Jacobs
testified that he would recommend that Rowe wear protective
goggles when engaging in hazardous activities but did not
recommend full-time prescription glasses.
On November 16, 19 98, the INS provided Rowe with reading
19
glasses that may have been over-the-counter magnifying glasses or
may have been lenses made according to Dr. Jacobs's prescription.
Dr. Jacobs testified that either type of lens would correct
Rowe's slight vision deficiency for reading. The reading glasses
could not be worn full time, but Dr. Jacobs did not recommend
full-time prescription glasses. After Rowe was released on bond,
he was given a prescription for bifocal protective lenses that
could be worn full time. Dr. Murphy's prescription, even if it
indicated a serious medical need, was provided after Rowe was
released from INS custody and, therefore, does not affect the
analysis of the information known to the defendants while Rowe
was in custody.
Since the defendants provided glasses that met the
requirements of Dr. Jacobs' prescription, and since Dr. Brown
found no vision deficiency and did not prescribe glasses in the
interim between Dr. Hogan's suggestion and Dr. Jacob's
prescription, the record evidence does not support Rowe's claim
that the defendants were deliberately indifferent to a serious
medical need for eye glasses. As Rowe has not shown a
trialworthy issue as to his Fifth Amendment claim based on his
need for eye glasses, the defendants are entitled to summary
judgment. Because the defendants are entitled to summary
judgment on the merits, it is not necessary to consider their
20
defense of qualified immunity.
Conclusion
For the foregoing reasons, the defendants' motion for
summary judgment (document no. 43) is granted. The clerk of
court shall enter judgment accordingly, and close the case.
SO ORDERED.
Joseph A. DiClerico, Jr,
District Judge
June 15, 2000
cc: David B. Rowe, pro se
T. David Plourde, Esquire
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