Seale v . Riordan CV-98-481-JD 01/19/00
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Michael A.R. Seale
v. Civil N o . 98-481-JD
Opinion N o . 2000 DNH 014
Denis Riordan, et a l .
O R D E R
The plaintiff, Michael Seale, brought claims against the
defendants under 42 U.S.C. § 1983, alleging that he received
inadequate medical care while in detention at the Hillsborough
County House of Corrections. The defendant James O’Mara,
Superintendent of the Hillsborough County Department of
Corrections, who was sued individually and in his official
capacity, moves for summary judgment (document n o . 68) and Seale
objects. PrimeCare Medical, the third-party defendant, joins in
the motion (document n o . 7 0 ) . Also before the court is third-party plaintiff James O’Mara’s motion for summary judgment
against third-party defendant PrimeCare Medical (document n o .
64).
Standard of Review
Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on file,
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 party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986). “An
issue is only ‘genuine’ if there is sufficient evidence to permit
a reasonable jury to resolve the point in the nonmoving party’s
favor . . . while a fact is only ‘material’ if it has ‘the
potential to affect the outcome of the suit under the applicable
law.’” Bourque v . FDIC,
42 F.3d 704, 708 (1st Cir. 1994)
(citations omitted). In response to a properly supported motion
for summary judgment, the nonmoving party bears the burden to
show a genuine issue for trial by presenting significant material
evidence in support of the claim. See Tardie v . Rehabilitation
Hosp.,
168 F.3d 538, 541 (1st Cir. 1999). 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). Summary judgment will not be granted as long as a
reasonable jury could return a verdict in favor of the nonmoving
party. Anderson v . Liberty Lobby, Inc.,
477 U.S. 242, 248
(1986).
2
Background1
On or about January 7 , 1998, Seale, who was in the custody
of the Immigration and Naturalization Service (“INS”), was sent
to be detained at the Hillsborough County Department of
Corrections (“HCDOC”), where he remained until August of 1998.
On January 8 , 1998, Seale completed an intake form concerning his
medical history. He reported that he took the drug coumadin, an
anticoagulant, on a daily basis.
Seale claims that the first instance of inadequate medical
care occurred when he missed his daily dose of coumadin on
January 7 , the date of his transfer to HCDOC, allegedly because
he was not given the intake form until January 8 . The medical
notes from Seale’s file indicate that on January 7 , HCDOC
officials were aware of Seale’s coumadin prescription, although
the notes do not indicate whether Seale received his daily dose
on January 7 . Seale does not say whether he verbally requested a
dose of coumadin on January 7 , nor does he specifically allege
that anyone refused to give him his medication.
Seale alleges that on a number of other occasions during his
1
The court will treat certain factual averments in Seale’s
verified pleadings as the functional equivalent of an affidavit,
to the extent they are made from personal knowledge and set forth
facts that would be admissible in evidence. See Sheinkopf v .
Stone, 927 F.2d 1259, 1262 (1st Cir. 1991).
3
stay at HCDOC he was denied his daily dose of coumadin. Seale
failed to name any individuals responsible for this action until
he submitted his objection to this motion, in which he identified
“Nurse Roy” and “Nurse Trish.”2 Seale alleges that these nurses
offered him coumadin that was crushed and contaminated by residue
that he did not recognize but believed to be from a previous
patient’s medication. Consequently, he refused on these
occasions to take the medicine, and he claims that they refused
to replace i t . In addition, Seale claims that “Nurse Trish”
sometimes forgot to bring Seale his coumadin.
The medical notes indicate that roughly once a month,
Seale’s blood was drawn and tested, after which a physician, Dr.
Stein, reviewed the lab results and indicated that Seale’s
coumadin prescription should continue. The notes do not
specifically reveal whether Seale was given coumadin on a daily
basis. On March 1 0 , 1998, the notes say that Seale refused to
take his medications, including coumadin, stating “he doesn’t
want these anymore.” The notes also say that Seale was “aware of
possible complication” resulting from his refusal to take the
drugs. On April 2 4 , 1998, the medical notes say that Seale was
to stop receiving coumadin a few days before he was scheduled to
2
Seale has not named any of the individuals who allegedly
failed to give him adequate care as defendants in this action.
4
have surgery, and was to resume after his surgery.
In addition to the alleged refusals to provide medication,
Seale claims that his requests to see a physician for rectal pain
and bleeding were ignored for approximately two months beginning
in late January of 1998. The medical notes and affidavits
indicate that the first time Seale met with a physician was
January 2 7 , 1998, for a physical. The notes make no mention of a
complaint or diagnosis of rectal pain or bleeding. The notes
reflect that on February 1 4 , 1998, a “sick slip” was recorded
that reported Seale’s rectal bleeding. Seale claims that this
was not the first time he had complained of pain and bleeding.
However, Seale does not indicate to whom he complained earlier or
who denied his earlier requests to see a physician.
Seale saw D r . Stein on February 1 7 , 1998, and was examined
and treated for his rectal distress. He had follow-up
appointments with Dr. Stein on March 6 and March 2 0 , 1998. On
April 1 3 , 1998, Seale visited a surgeon, after which he was
scheduled for rectal surgery on May 1 , 1998. Seale saw Dr. Stein
again on April 2 4 , 1998, and underwent surgery on May 1 , 1998.
Seale claims that between May 1 and June 4, 1998, and
between June 9 and July 7 , 1998, he never saw Dr. Stein. Seale
does not indicate that he requested to see a doctor during these
periods, or that anyone denied such a request. The medical
5
records indicate that D r . Stein saw him on May 5 , 8 , and 2 6 .
Seale saw the surgeon on May 14 and again on June 4 , 1998, at
which time Seale says the surgeon advised that he might need a
second surgery but that other treatments would probably obviate
the need for further surgery. On July 2 4 , 1998, Dr. Stein
examined Seale, who was still complaining of rectal pain. On
August 1 8 , 1998, Seale was discharged from HCDOC.
Discussion
I. Motion for Summary Judgment by Defendant O’Mara against
Plaintiff
Seale’s claim against O’Mara is based on the allegedly
inadequate care Seale received from O’Mara’s subordinates. It is
well established that respondeat superior liability is not
available under 42 U.S.C. § 1983. See Aponte Matos v . Toledo
Davila,
135 F.3d 182, 192 (1st Cir. 1998). A supervisor may be
held liable only “if he [or she] formulates a policy or engages
in a practice that leads to a civil rights violation committed by
another.” Camilo-Robles v . Hoyos,
151 F.3d 1 , 7 (1st Cir. 1998)
(citing City of Oklahoma City v . Tuttle,
471 U.S. 808, 823-24
(1985)). In order to establish supervisory liability under §
1983, a plaintiff must show that (1) a subordinate violated the
plaintiff’s rights under federal law, and (2) the supervisor’s
6
own acts or omissions are affirmatively linked to the
subordinate’s unlawful conduct. See Aponte Matos, 135 F.3d at
192.
A. Violation by a Subordinate
Seale alleges that individual health care providers at HCDOC
violated his constitutional right to due process by denying him
medication and access to physicians.3 To show that his right to
due process was violated, Seale must show that he had a serious
medical need, and that a subordinate showed deliberate
indifference to his medical need “tantamount to an intent to
punish.” Elliott v . Cheshire County, 940 F.2d 7 , 10 (1st Cir.
1991) (applying standard to detainee claiming due process
violation); DesRosiers v . Moran,
949 F.2d 1 5 , 19 (1st Cir. 1991)
(using same standard in Eighth Amendment context). The First
Circuit has provided clear guidance for interpreting the
3
Because Seale is a detainee and has not been convicted of a
crime, he may not be punished under the Due Process Clause of the
Fifth and Fourteenth Amendments. See Bell v . Wolfish, 441 U.S.
520, 535-37 (1979). The Eighth Amendment prohibition against
cruel and unusual punishment does not apply, since Seale may not
be punished at all. See
id. at 535 n.16; Elliott v . Cheshire
County,
940 F.2d 7 , 10 n.2 (1st Cir. 1991). But see Mahan v .
Plymouth County House of Corrections,
64 F.3d 1 4 , 17-18 (1st Cir.
1995) (analyzing pretrial detainee’s Eighth Amendment claim).
However, the deliberate indifference test is the same for alleged
violations of either the Due Process Clause or the Eighth
Amendment. See
id.
7
deliberate indifference standard:
In evaluating the quality of medical care in an
institutional setting, courts must fairly weigh the
practical constraints facing prison officials.
Moreover, inadvertent failures to provide medical care,
even if negligent, do not sink to the level of
deliberate indifference. In order to establish
deliberate indifference, the complainant must prove
that the defendants had a culpable state of mind and
intended wantonly to inflict pain. The requisite state
of mind may be manifested by the officials’ response to
an inmate’s known needs or by denial, delay, or
interference with prescribed health care.
DesRosiers, 949 F.2d at 19 (citations omitted). The court
applies this standard to the record before it on summary judgment
to determine whether a fact-finder could find that a subordinate
acted with deliberate indifference to Seale’s serious medical
needs.
1. Refusal to Provide Coumadin
Presuming that Seale had serious medical needs based on a
prescription for coumadin, the record fails to show that the
health care providers at HCDOC acted with deliberate indifference
with intent to punish Seale when they withheld his coumadin.
Seale alleges that a nurse negligently forgot to give him his
coumadin on occasion. Negligence, even if it is gross
negligence, does not rise to the level of deliberate indifference
with intent to punish. See Consolo v . George, 58 F.3d 791, 794
(1st Cir. 1995). Similarly, the failure to give Seale coumadin
8
on January 7 , 1998, fails to show deliberate indifference on
anyone’s part, particularly since Seale did not allege that any
particular individual knew of his prescription and was
responsible for withholding i t .
Seale’s allegation that nurses gave him coumadin crushed up
with other drug residue also fails to meet the deliberate
indifference standard. While this allegation, if proven, may
constitute negligence, it does not indicate that the nurses “had
a culpable state of mind and intended wantonly to inflict pain.”
DesRosiers, 949 F.2d at 1 9 . There is no evidence, for example,
that the nurses thought their actions would cause Seale any pain,
or that they intended to punish Seale by offering him adulterated
medication, or that they deliberately intended for him to suffer
ill effects from going without the coumadin. Even if the nurses’
actions were sufficient to make out a claim of negligence or
medical malpractice, without deliberate indifference there is
inadequate support for a violation of Seale’s constitutional
rights. See
id. at 2 0 .
2. Denial of Access to Physician
Seale claims that he was denied access to a physician in
January and February, when he first complained of his rectal
distress, and again in June and July after his surgery. The
record fails to show any triable issue of fact regarding the care
9
Seale received or that his care providers acted with deliberate
indifference. Seale’s failure to explain how he requested to see
a doctor, who received his request, and who denied it makes it
difficult for the court even to identify who it was that Seale
believes acted with deliberate indifference. The medical notes
show that Seale received regular attention from the medical staff
in January and February, including a physical exam by Dr. Stein
on January 2 7 , 1998. Seale saw Dr. Stein again on February 1 7 ,
1998, three days after a “sick slip” was recorded noting his
rectal bleeding. Seale proceeded to receive follow-up visits and
surgery to treat the problem. The record shows Seale received
medical care for his rectal condition, which is all that is
required to satisfy due process. “[A] claim of inadequate
medical treatment which reflects no more than a disagreement with
prison officials about what constitutes appropriate medical care
does not state a cognizable claim under the Eighth Amendment” or
under the Due Process Clause. DesRosiers, 949 F.2d at 2 0 . Based
on the record presented for summary judgment, there is no genuine
issue of fact that would lead to a conclusion that anyone acted
with deliberate indifference to Seale’s need for medical
treatment.
Similarly, Seale’s claim that he was denied access to a
physician after his surgery on May 1 , 1998, fails to raise a
10
triable issue. Seale does not provide evidence that he requested
to see a physician or that anyone deliberately denied his
request. The medical records show that he did see physicians
after his surgery, and was also monitored by the nursing staff.
While Seale alleged in his amended complaint that the surgeon
recommended a second operation on June 4 , 1998, and that this
operation was never provided, in his objection to this motion
Seale states that the surgeon said only that he might need
another operation but that it could probably be avoided.
Moreover, the medical records do not indicate that any doctor
ever recommended that a second surgical procedure be performed.
Therefore, there is no evidence in the record to show that anyone
deliberately disregarded Seale’s medical needs after his surgery.
For the foregoing reasons, Seale has failed to provide
sufficient evidence to raise a triable issue that anyone acted
with deliberate indifference to his serious medical needs.
Therefore, Seale has not presented a triable issue that his
constitutional rights were violated. The court need not proceed
further with the supervisory liability analysis or consider
whether the defendant O’Mara is entitled to qualified immunity.
11
II. Motion for Summary Judgment by Third Party Plaintiff O’Mara
against Third Party Defendant PrimeCare Medical
The defendant O’Mara filed a third-party complaint against
PrimeCare Medical, a private entity that contracted with
Hillsborough County (“the County”) to provide medical care for
inmates and detainees of HCDOC. The third-party complaint seeks
indemnification and contribution from PrimeCare. O’Mara contends
that PrimeCare is obligated under its contract with the County
(“the Contract”) to defend O’Mara in this action, which PrimeCare
has refused to d o . PrimeCare acknowledges that it is obligated
to indemnify the County in the event the County is found liable
for claims arising out of PrimeCare’s services. However,
PrimeCare asserts that the Contract does not require it to defend
against any such claims. O’Mara and PrimeCare agree that Seale’s
claims against O’Mara arise from medical care provided by
PrimeCare under the Contract, and that O’Mara is an employee of
the County.
O’Mara and PrimeCare focus their dispute on the “hold
harmless” language in the Contract. “Interpretation of a
contract . . . is ultimately a question of law for this court to
decide.” Merrimack Sch. Dist. v . National Sch. Bus Serv., 140
N.H. 9, 11 (1995). The Contract contains the following
provisions in Paragraph 7 , in relevant part:
12
a. PrimeCare Medical agrees to indemnify, and hold
harmless, Hillsborough County Department of
Corrections, its agents, servants and employees,
from any and all claims, actions, lawsuits,
damages, judgments or liabilities of any kind
whatsoever arising out of the operation and
maintenance of the medical services program
conducted by PrimeCare Medical . . . . In
litigation involving both medical care and any
other issue within the facility the County and
PrimeCare Medical shall jointly defend the action.
b. Hillsborough County Department of Corrections
agrees to indemnify, and hold harmless PrimeCare
Medical, its agents, servants, employees and
medical staff from any and all injuries, claims,
actions, lawsuits, damages, judgments or
liabilities of any kind whatsoever arising out of
non-medical related claims involving the operation
and maintenance of the FACILITY, the custody of
the inmates/detainees and all provisions for the
physical security of all such PrimeCare Medical
personnel. It is understood that PrimeCare
Medical’s operation and maintenance of the
aforesaid program is not included within the
meaning of the foregoing phrase “arising out of
non-medical related claims involving the operation
and maintenance of the FACILITY.”
O’Mara argues that the words “hold harmless” in paragraph
7 ( a ) , because they appear in addition to the word indemnify, must
mean that PrimeCare’s duties under the contract include more than
just indemnifying the County for the amount of any judgment.
O’Mara contends that PrimeCare’s contractual duty to hold the
County harmless from any claims, actions or lawsuits includes a
duty to defend the County from suit. Otherwise, the County would
suffer harm in the form of attorney’s fees and costs, as it has
13
already done by defending O’Mara thus far in the case brought by
Seale.
PrimeCare argues that the contract contains no express duty
to defend provision that requires PrimeCare to defend O’Mara
against Seale. PrimeCare also cites case law in New Hampshire
and other jurisdictions to support its proposition that a duty to
defend is not coextensive with a duty to indemnify and cannot be
implied by the words “indemnify and hold harmless.”
The duty to indemnify is separate and distinct from the duty
to defend. See Happy House Amusement, Inc. v . New Hampshire Ins.
Co., 135 N.H. 719, 721 (1992). The question in this case is
whether both duties apply to PrimeCare. The answer lies in the
contract’s plain language, including language that neither party
saw fit to discuss.
While indemnity agreements are strictly construed, their
scope need not be limited by explicit language where the parties’
intent is clearly evident. See Merrimack Sch. Dist., 140 N.H. at
12. The parties to this contract included the following sentence
at the end of paragraph 7 ( a ) , “In litigation involving both
medical care and any other issue within the facility the County
and PrimeCare Medical shall jointly defend the action.” If the
court accepted PrimeCare’s argument, then the Contract would
require PrimeCare to defend claims arising from both medical care
14
and non-medical events, but not claims arising from medical care
alone. This incongruous result suggests that the parties
intended for PrimeCare to defend claims arising from medical
care, the County to defend claims arising from non-medical
events, and both parties to defend claims arising from medical
and non-medical events.
The court construes the Contract in accordance with the
parties’ apparent intent, as evident in the Contract’s language.
The court therefore holds that the Contract unambiguously imposes
on PrimeCare the duty to defend O’Mara from Seale’s claims.
Conclusion
For the foregoing reasons, the defendant O’Mara’s motion for
summary judgment against the plaintiff (document n o . 68) is
granted. O’Mara’s motion for summary judgment against third
party defendant PrimeCare Medical (document n o . 64) is also
granted. The court directs the clerk to enter judgment for the
defendant O’Mara.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
January 1 9 , 2000
cc: Michael Adrian Ricardo Seale, pro se
T . David Plourde, Esquire
John P. Sherman, Esquire
Wilbur A . Glahn III, Esquire
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