Rand v. Simonds

Rand v . Simonds                       CV-04-382-JD   03/22/06   P
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE


James E . Rand
     v.                             Civil N o . 04-cv-382-JD
                                    Opinion N o . 

Henry Simonds et a l .


                             O R D E R


     James E . Rand, proceeding pro s e , has sued three present or

former employees of the Merrimack County House of Corrections

(the “MCHC”), alleging that they were deliberately indifferent to

his medical needs during his prior detention in that facility.

One of the defendants, Henry Simonds, has moved for summary

judgment on the ground that Rand failed to exhaust administrative

remedies as required by the Prison Litigation Reform Act, 42

U.S.C. § 1997e (“the PLRA”).   Through separate motions, Simonds

also seeks dismissal of Rand’s case (1) as a sanction for his

failure to provide certain interrogatory responses despite a

court order and (2) for failing to disclose an expert witness to

testify in support of his claim.

     The other defendants, Carole Anderson and Richard Doucet

(the “supervisory defendants”), have separately moved for summary

judgment on the basis of Rand’s failure to exhaust administrative

remedies.   They also seek summary judgment on the independent

grounds that Rand cannot prove they were deliberately indifferent
to any serious medical need on his part and that they enjoy
qualified immunity.    Finally, the supervisory defendants have
filed a “supplemental motion for summary judgment” arguing that
Rand cannot succeed on his claim without expert testimony, which
he has failed to disclose by the court-imposed deadline.      Rand
has not responded to any of the defendants’ motions, despite
having been granted an extension of time to do so. 1



                              Background

         Rand entered the MCHC on February 1 3 , 2004, following “a

high speed car chase that ended with [his] losing control of his

vehicle [and] crashing into trees.”     Compl. ¶ 7 .   At that time,

as well as during all of the events at issue here, Anderson was

the superintendent of the MCHC, while Doucet was the assistant

superintendent.    Before going to the MCHC, Rand was transported

from the scene of the accident to Concord Hospital, where he

underwent x-rays and other testing.     As a result of this “very

brief exam,” Rand was diagnosed as being “in good medical

health,” aside from some minor cuts and bruises. Id. ¶ 9.



     1
      Although Rand’s time to respond to Simonds’s motion to
dismiss for failing to disclose an expert witness, and the
supervisory defendants’ supplemental motion for summary judgment,
has yet to run, those motions are moot, for reasons which will
appear.

                                   2
       Phyllis Butler, a nurse at the MCHC who also serves as the

head of its health services department, first examined Rand on

February 1 4 , 2004.   She noted that he complained of muscle

soreness in his neck and back as a result of the accident but

otherwise described his “General Health” as “good.”     Butler Aff.

¶ 9.    Consistent with the orders he received upon his discharge
from Concord Hospital, Rand continued to treat his soreness with

Tylenol for a few days.    On February 1 7 , 2004, however, he

requested medical attention for swelling he noticed in his back

near his right shoulder. The nurse who examined Rand found no

swelling, but prescribed ibuprofen and a muscle relaxant.        The

next day, Simonds, a physician’s assistant at the MCHC, added

Ultram, an analgesic, to Rand’s drug regimen.

       Rand asked for further medical attention on February 2 3 ,

2004.    Simonds, who saw Rand the next day, told him “that the
soreness and pain was normal after getting involved in a car

accident” and suggested that he continue to treat those symptoms

with Ultram.    Compl. ¶ 2 2 . In a follow-up appointment on

February 2 7 , 2004, Rand reiterated his complaints of pain in the

area of his right shoulder. Noting “no external sign of injury”

and a “full range of motion,” Simonds diagnosed Rand with a

muscle strain secondary to the accident and renewed his

prescriptions for ibuprofen, Flexeril, and Ultram.     Butler Aff.

                                  3
¶ 1 2 . Rand alleges that Simonds “couldn’t provide an explanation

for the problems [Rand] was having” and should have referred him

to a specialist at that point. Compl. ¶ 3 1 .

     Just over a week later, on March 8 , 2004, Rand again sought

medical attention, complaining that he could not raise his right

arm and that he had heard a popping noise in his right shoulder.
Patricia Lee, the physician’s assistant at the MCHC who saw Rand

at this time, observed that he could not lift his right arm more

than ninety degrees or extend it behind his back.   She diagnosed

Rand with a rotator cuff tear and ordered him to continue taking

Tylenol and Ultram.   According to Rand’s medical chart, Lee also

“suggested” that he consult with an orthopedist with a view

toward possible surgery.   Butler Aff. ¶ 1 4 .

     Anderson subsequently discussed Lee’s “recommendation” with

Butler, “who believed a more conservative approach, with use of
prescriptions and passage of time, would better assess the

complaints.”   Anderson Aff. ¶ 12. 2 Although both Anderson and

Butler have submitted detailed affidavits in support of the

supervisory defendants’ summary judgment motion, neither claims

to have spoken to Lee about her “recommendation” that Rand see an



     2
      All citations to “Anderson Aff.” refer to the amended
affidavit she filed in support of the supervisory defendants’
motion for summary judgment.

                                 4
orthopedist, or the reasons for i t . Furthermore, Anderson

recalls that she and Butler “discussed having D r . Rodd, the

jail’s physician and medical director, review the case,” id., but

neither Anderson nor Butler indicates whether this in fact

occurred.3   On March 1 1 , 2004, however, Butler entered a note

into Rand’s chart stating, “Will hold off on surgical consult for
now–-awaiting court rulings/court dates.”    Butler Aff. ¶ 1 5 .

     Butler saw Rand again on March 1 9 , 2004, when he sought

attention for complaints of increased pain in his right shoulder,

accompanied by occasional pain and numbness in his right arm and

hand.    Butler “told him per jail policy this pre-existing

condition will not be authorized for surgical intervention” and,

in response to his requests for “at least an x-ray or [to] have

the shoulder scoped to find out if it is a rotator cuff tear,

told him he would have to write directly to Carole Anderson for
authorization . . . .”   Id. ¶ 1 6 . Butler encouraged Rand to keep

taking the prescribed drugs for his pain, but he protested that

they were ineffective and expressed concern over “liv[ing] on

pain medications the whole time I’m here.”    Id.

     Anderson attests that Rand never made a “formal request” to


     3
      Doucet recalls that Anderson “advised [him] to confirm for
the medical department that M r . Rand would not be transported for
an outside consultation at that time,” which Doucet did. Doucet
Aff. ¶¶ 7-8. Doucet provides no further details in this regard.

                                  5
her to authorize the treatment he desired.    Anderson Aff. ¶ 1 3 .

He had, however, submitted a medical request slip on March 1 2 ,

2004, “about discomfort in his right arm and whether he would be

referred to a specialist for examination (as mentioned by PA

Lee).”   Id. ¶ 1 5 . In addition, on June 1 0 , 2004, Patricia Moyer,

an investigator for the public defender representing Rand on the
criminal charges against him, telephoned Doucet, the MCHC’s

assistant superintendent, “about M r . Rand’s medical care at the

jail,” specifically his complaints of pain in his shoulder.

Doucet Aff. ¶ 1 1 . Doucet summarized his conversation with Moyer

in a letter he sent her later that day, stating:
     As I explained to you, this is a pre-existing condition
     and if [Rand] has insurance or funds to cover the cost
     of the exam he is requesting, we will make the
     necessary arrangements. There is no doctor’s order for
     a surgical consult with orthopedics; there is only a
     recommendation by Physician Assistant Patricia Lee.

Id. ¶ 1 2 . Moyer wrote to Anderson on both July 2 6 , 2004, and

December 8 , 2004, requesting, inter alia, “a copy of the jail’s

policy for non-treatment of pre-existing conditions.”     Mot. J.

Defs.’ Ans. Admis., Ex. F, at INM 000111, MED000055; see also

Anderson Aff. ¶¶ 2 0 , 2 2 . Meanwhile, Rand commenced this action

on October 7 , 2004.   On December 1 3 , 2004, Anderson sent a letter

to Rand, with a copy to Moyer, stating, “[o]ur policy regarding

medical occurrences is that we do not treat conditions that do



                                  6
not require treatment. However, we do treat any condition that

needs treatment.”   Anderson Aff. ¶ 2 4 .

       Neither Anderson nor Doucet had explained the MCHC’s

medical care policy with reference to the language set forth in

the inmate handbook then in effect. Under that policy, “[n]o

inmate [could] be refused necessary medical treatment for
financial reasons.”   Anderson Aff. ¶ 7 , Ex. A , at 7 .   The

handbook defined “necessary medical treatment” as
      [a] professional judgment made by a Physician Assistant
      that the requested service or medication is medically
      appropriate and cannot be safely and humanely postponed
      until after the inmate’s period of incarceration ends.
      Treatment that the Staff Physician deems to be elective
      may be refused on the grounds that it is not medically
      necessary.

Id.   Notably, this policy gave neither the administration nor the

head of the health services department any role in deciding what

constituted “necessary medical treatment,” but left that

determination to a physician’s assistant, subject to the approval

of the staff physician.   Nor did it mention, as a factor in

determining whether care for a condition was medically necessary,

whether it predated the inmate’s arrival at the MCHC.

      In any event, when Lee examined Rand on November 1 1 , 2004,

she noted that his “rotator cuff tear [was] much improved” and

that his right shoulder showed “no crepitus and a much more




                                  7
flexible range of motion.”4   Butler Aff. ¶ 2 9 . This was the only

time Rand sought medical attention for his shoulder between March

1 9 , 2004, and December 9, 2004.   By that time, Rand had provided

Lee with additional records of his visit to Concord Hospital on

the night of his arrest, which indicated a possible cervical

injury.   Lee then scheduled a CT scan of Rand’s cervical spine

and, upon getting the results, made an appointment for Rand for

evaluation by an orthopedic surgeon.

     On January 1 4 , 2005, Rand saw D r . Russell Brummett, who

diagnosed him with “[p]osttraumatic cervical strain with previous

C5 injury.”   Butler Aff. ¶ 4 4 . Noting that “this is something

that should be treated very conservatively” and that Rand did

“not present with any particular risk for any neurologic injury,”

Brummett “recommend[ed] a physical therapy regimen . . . .”        Id.

Rand subsequently received physical therapy from an outside

provider on a number of occasions in January and February, 2004.

Through this regimen, Rand “made good progress with increas[ing]

mobility and strength,” but “minimal progress with decreasing

pain/discomfort,” in his right shoulder. Id. ¶ 5 6 .

     Rand saw a different orthopedist, D r . FitzMorris, on


     4
      Crepitus, in the relevant sense, is “the grating sensation
caused by the rubbing together of the dry synovial surfaces of
joints.” Dorland’s Illustrated Medical Dictionary (30th ed.
2003), at 433.

                                    8
February 2 3 , 2004.   FitzMorris did not “appreciate any acute

cervical spine injury related to [Rand’s] motor vehicle

accident,” adding that Rand’s “insight [was] poor” and that

“[s]urgery [was] certainly not the answer.”          Butler Aff. ¶¶ 58-

59.   Instead, FitzMorris suggested a decrease in Rand’s Ultram

intake and additional exercises.
      On March 3 1 , 2004, Rand discussed increasing his medications

and getting a “possible third opinion” with a nurse at the MCHC.

Butler Aff. ¶ 6 4 . Lee, following a consultation with Rodd, the

jail’s medical director, referred Rand to FitzMorris for another

evaluation of his right shoulder and cervical vertebrae.           Rand

underwent an MRI on the shoulder on April 2 7 , 2005, which did

“not suggest a complete tear” or “recent bony injury” but rather

“[a]rthritic changes.”    Id.   Upon review of the results, Lee

concluded that the “MRI show[ed] no obvious injuries including
tears.”   Id. ¶ 7 1 . After FitzMorris examined Rand again on May

1 8 , 2005, the doctor agreed that Rand “had essentially a normal

MRI scan” and no “significant rotator cuff tear.”          Id. ¶ 7 5 .

FitzMorris again “recommended that [Rand] wean himself from any

analgesic medication and start using the shoulder more and more,”

but did “not recommend surgery or any other significant

orthopaedic intervention.”      Id.       Thus, while Rand continued to

receive treatment for his shoulder pain from the MCHC medical

                                      9
staff over the next several months, it consisted primarily of

tinkering with his medications, without further testing or

consultation from outside providers.5

     After reviewing the complaint in this matter under 28 U.S.C.

§ 1915A and L.R. 4.3(d)(2), the magistrate ordered that Rand be

allowed to proceed on his claim (1) that Simonds was deliberately
indifferent to Rand’s “severe shoulder injury and related pain”

by failing to refer him to a specialist or other physician in

February, 2004, Order (Feb. 1 0 , 2005), at 8-9, and (2) that

Anderson and Doucet were similarly indifferent in their “tacit

condonation” of Simonds’s alleged misfeasance and their refusal

to authorize the treatment Lee had recommended.      Id. at 1 1 . None

of the parties objected to the magistrate’s order.


                          Standard of Review

         On a motion for summary judgment, the moving party has the

burden of showing the absence of any genuine issue of material

fact.    See Celotex Corp. v . Catrett, 

 1 7 , 323 (1986).

If the movant does s o , the court must then determine whether the

non-moving party has demonstrated a triable issue. Anderson v .



     5
      Rand did, however, resume physical therapy with an outside
provider on November 3 0 , 2005, though it is unclear for how long.


                                   10
Liberty Lobby, Inc., 

 4 2 , 256 (1986).   In ruling on a

motion for summary judgment, the court must view the facts in the

light most favorable to the non-moving party, drawing all

reasonable inferences in that party’s favor. E.g., J.G.M.C.J.

Corp. v . Sears, Roebuck & Co., 

 6 4 , 368 (1st Cir. 2004);

Poulis-Minott v . Smith, 

 5 4 , 361 (1st Cir. 2004).   The
court must enter summary judgment, “after adequate time for

discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which the party will bear

the burden of proof at trial.”    Celotex, 

.

     Although Rand has not filed any objection to the defendants’

summary judgment motions, the court cannot grant them on that

basis alone. Instead, “it must assure itself that the moving

party’s submission shows that ‘there is no genuine issue as to
any material fact and the moving party is entitled to judgment as

a matter of law.’”   NEPSK, Inc. v . Town of Houlton, 

 , 7

(1st Cir. 2002) (quoting Fed. R. Civ. P. 56(c)).


                             Discussion

I.   Whether Rand Exhausted His Administrative Remedies

     Both Simonds and the supervisory defendants move for summary

judgment on Rand’s claim on the ground that he failed to exhaust

                                 11
his administrative remedies as required by the PLRA.     The PLRA

provides that “[n]o action shall be brought with respect to

prison conditions under . . . any . . . Federal law, by a

prisoner . . . until such administrative remedies as are

available have been exhausted.”    42 U.S.C. § 1997e(a).     The

Supreme Court has held that this requirement “applies to all
inmate suits about prison life, whether they involve general

circumstances or a particular episode, and whether they allege

excessive force or some other wrong.”    Porter v . Nussle, 

 (2002).   Rand’s claim therefore falls within the ambit

of the PLRA’s exhaustion requirement. See, e.g., Witzke v .

Femal, 

 4 4 , 751 (7th Cir. 2004).

     Where section 1997e(a) applies, but the plaintiff has

nevertheless failed to exhaust available administrative remedies

prior to bringing suit, his or her claims must be dismissed
without prejudice. Medina-Claudio v . Rodriguez-Mateo, 

 1 , 36 (1st Cir. 2002).   The First Circuit follows the majority

rule treating nonexhaustion as an affirmative defense, placing

the burden on the defendant to prove that a plaintiff failed to

exhaust available administrative remedies. Casanova v . Dubois,

 5 , 77 & n.3 (1st Cir. 2002); Goodrich v . Rouleau, 

 8 , 

, at *2 (D.N.H. Mar. 2 0 , 2003).   Whether

an inmate has done so presents a question of law, although the

                                  12
answer may depend on disputed factual issues. Snider v .

Melindez, 

 0 8 , 113 (2d Cir. 1999); see also Mitchell v .

Horn, 

 (3d Cir. 2003).

     The defendants point out that Rand never complained about

their alleged indifference to his serious medical need by filing

a grievance as contemplated by the inmate handbook.     Under the
heading “Grievance Procedures,” the handbook in effect during the

events at issue here stated:
          Inmate’s [ s i c ] incarcerated at the Merrimack
     County Department of Corrections have the right and
     opportunity to submit grievances to the county
     authorities as well as other officials of the State of
     New Hampshire without fear of adverse actions. The
     inmate grievance procedure is a formal method for
     resolving “misinterpretations” and/or “misapplications”
     of rules or alleged violations of Department Policy &
     Procedures.

          Officers will supply the necessary paperwork or
     information to any inmate that seeks to submit a
     grievance. The Assistant Superintendent will then
     assign the appropriate personnel to the investigation
     of the grievance and respond back in writing to the
     inmate.

Anderson Aff. ¶ 7 , Ex. A , at 2 7 . The defendants read this

passage as giving “instructions” with which Rand was “required to

comply” in order to exhaust the administrative remedies available

to him within the meaning of the PLRA.    Mem. Supp. Super. Defs.’

Mot. Summ. J. at 6-7.   The court disagrees.

      It is generally true that “[t]o exhaust remedies, a



                                 13
prisoner must file complaints and appeals in the place . . . the

prison’s administrative rules require.”       Pozo v . McCaughtry, 

 (7th Cir. 2002).        Here, however, the “rules” on

grievance procedures set forth in the inmate handbook did not

appear to “require” that a grievance take any particular form.

Instead, the handbook described the inmate grievance procedure as
“a formal method” of resolving complaints and informed inmates

that they “have the right and opportunity to submit grievances to

the county authorities . . . .” (emphasis added).       The handbook,

then, did not fairly suggest that the grievance procedure was the

only way, or even the correct way, for inmates to complain about

their treatment at the MCHC.6

     Furthermore, in the “Medical Procedures” section, the

handbook in effect at the relevant time stated simply that “[a]n

inmate requesting medical services shall submit a signed Medical
Request Form” and that “[a]ny disputed charges may be appealed in

writing to the superintendent within three days, excluding

weekends and holidays,” without making clear how these

requirements intersect with the grievance policy.       Anderson Aff.

¶ 7 , Ex. A , at 8 .   Rand did submit a medical request form, on


     6
      Similarly, the grievance form itself simply contains spaces
for the inmate to write his name, the date, and the “Nature of
Grievance,” together with additional blanks to be filled in by
prison officials. Mem. Supp. Simonds Mot. Summ. J., Ex. E .

                                   14
March 1 2 , 2004, asking to be referred to a specialist in

accordance with Lee’s advice.

     Courts have not held inmates to the purported requirements

of prison grievance procedures which are not clearly spelled out

in the applicable regulations or elsewhere. See Spruill v .

Gillis, 

 1 8 , 233-34 (3d Cir. 2004) (ruling that inmate’s
failure to request monetary relief in grievance did not

constitute non-exhaustion where prison regulation stated that

grievance “may” include such a request; “[n]othing in the

Grievance System Policy would have put [him] on notice that he

had to ask for money damages–-or any particular form of relief at

all”); In re Bayside Prison Litig., 

(D.N.J. 2002) (denying motion to dismiss for non-exhaustion,

though inmate did not file grievance in accordance with prison

procedure, where “handbook creates the clear impression that use
of . . . procedure is optional, not mandatory”); accord Giano v .

Goord, 

 7 0 , 678-79 (2d Cir. 2004) (treating inmate’s

failure to file grievance over allegedly unfair disciplinary

proceeding as “justified” where prison directive described

outcome as non-grievable).   Relatedly, this court and others have

recognized that prison officials may prevent an inmate from

utilizing an administrative remedy–-making the remedy not

“available” within the meaning of section 1997e(a)–-by telling

                                15
the inmate that his complaint can be grieved only through another

avenue.   See Beltran v . O’Mara, 

 4 0 , 154 (D.N.H.

2006) (citing cases).

     Here, when Butler told Rand that his shoulder injury would

“not be authorized for surgical intervention,” she did not refer

him to the grievance procedure, but “told him he would have to
write directly to Carole Anderson for authorization . . . .”

Butler Aff. ¶ 1 6 . Although Rand did not explicitly request

“authorization” from Anderson in response, Moyer, the

investigator for Rand’s criminal defense attorney, subsequently

challenged the MCHC’s refusal to refer him to an outside provider

in a telephone conversation with Doucet, the assistant

superintendent.   Moyer also wrote directly to Anderson, on Rand’s

behalf, questioning the MCHC’s stated policy of refusing to treat

inmates for pre-existing conditions.
     The overarching purpose of the PLRA’s exhaustion requirement

is to “afford[] corrections officials time and opportunity to

address complaints internally before allowing the initiation of a

federal case.”    Porter, 

. Moyer’s

communications questioning the denial of outside care to Rand

gave the supervisory defendants just such an opportunity.

Moreover, they took advantage of the opportunity, responding to

Moyer with explanations of the decision, rather than rejecting

                                 16
her inquiries as improper because they did not take the form

envisioned by the inmate grievance policy.7   In light of these

circumstances, and the conflicting guidance found in the inmate

handbook and Butler’s advice as to how Rand should have

complained about his medical treatment, the fact that he did not

file a formal grievance on the subject is irrelevant.    To
paraphrase the Third Circuit, section 1997e(a) did not require

Rand to “jump through any further administrative hoops to get the

same answer” to his complaint from the very same administrators.

Camp v . Brennan, 

 (3d Cir. 2000).   The court

concludes that Rand administratively exhausted his claim of

inadequate medical care against the supervisory defendants.

     Simonds, however, separately argues that the claim against

him could not have been exhausted through Moyer’s communications

with Anderson and Doucet. Rand alleges that Simonds was
deliberately indifferent in failing to refer him to a specialist

outside the jail for his shoulder injury in February 2004.     As

Simonds points out, this occurred before Lee’s recommendation

     7
      Some courts have held that an inmate’s failure to comply
with applicable grievance procedures in complaining about his
treatment amounts to non-exhaustion only if his grievance is
rejected on that basis. E.g., Conyers v . Abitz, 

 8 0 ,
585 (7th Cir. 2005); Griswold v . Morgan, 

(W.D.N.Y. 2004). Given the other reasons not to hold Rand to the
requirements of the MHCH grievance policy in this case, the court
need not decide whether to take such an approach here.

                                17
that Rand receive outside care for his shoulder and the

subsequent decision against providing that care. It was that

decision, rather than Simonds’s alleged failure to recommend

outside care at an earlier time, which Moyer challenged in her

correspondence with the supervisory defendants.

     As this court recently observed, while section 1997e(a) does
not itself require inmates to “‘lay out the facts, articulate

legal theories, or demand particular relief,’” in registering

their complaints at the administrative level, they must

nevertheless “‘provide enough information about the conduct of

which they complain to allow prison officials to take appropriate

responsive measures.’”    Beltran, 

 (quoting

Strong v . David, 

 (7th Cir. 2002), and Johnson

v . Testman, 

 9 1 , 697 (2d Cir. 2004)).   Moyer’s

complaints to the supervisory defendants about the denial of
outside care for Rand’s shoulder injury, insofar as the summary

judgment record indicates, did not allege any misfeasance on

Simonds’s part, or even mention him, by name or otherwise.       Those

complaints, then, did not provide the defendants “sufficient

notice of [Rand’s] concerns [over Simonds’s treatment] to have

been able to deal with them administratively.”       Braham v . Clancy,

 7 7 , 184 (2d Cir. 2005).   Because Rand did not

administratively exhaust his claim against Simonds as required by

                                  18
the PLRA, that claim is dismissed without prejudice.    Similarly,

Rand’s claim against the supervisory defendants is dismissed

without prejudice insofar as it arises out of their “tacit

condonation” of Simonds’s actions. Order (Feb. 1 0 , 2005), at 1 1 .


II.   Whether There is a Factual Issue as to Rand’s Claim

      The supervisory defendants also seek summary judgment on the

ground that the record demonstrates, as a matter of law, that

they were not deliberately indifferent to any serious medical

need on Rand’s part. “[C]laims by pretrial detainees alleging

denials of medical assistance essentially turn on whether the

challenged official action constituted deliberate indifference to

a serious medical need.”    Mahan v . Plymouth County House of

Corrs., 

 4 , 17 (1st Cir. 1995) (internal quotation marks

omitted); see also Gaudreault v . Municipality of Salem, 

 (1st Cir. 1990).   This test “has both an objective

component (was there a sufficiently serious deprivation?) and a

subjective component (was the deprivation brought about in wanton

disregard of the inmate’s rights?).”    Desrosiers v . Moran, 

 5 , 18 (1st Cir. 1991) (discussing test in Eighth Amendment

context); see also Mahan, 

 8 .

      The supervisory defendants argue that Rand cannot establish

either the objective or subjective elements of his claim, i.e.

                                 19
(1) that he had any “serious medical problem” or (2) that they

were deliberately indifferent to i t . Super. Defs’ Mot. Summ. J.

¶¶ 4-5.   As to the second point, the supervisory defendants argue

in their summary judgment motion that they simply “deferred to

medical providers” when they initially denied Rand outside care

for his shoulder injury.     

 ¶ 5 .   But Anderson pointedly did
not defer to Lee’s advice that the MCHC provide such care.

     Relying on the fact that Lee wrote “surgical consult/

orthopedic suggested,” rather than ordered, on Rand’s chart,

Butler Aff. ¶ 14 (emphasis added), Anderson maintains that she

“never overruled any doctor’s or physician’s order to transport

Mr. Rand for outside care.”     Anderson Aff. ¶ 3 3 . It should be

noted at the outset that this distinction does not have the legal

significance the supervisory defendants have attributed to i t .

As this court has observed, “[e]ven elective treatment
recommended by a physician but not ‘necessary’ in life or health

saving sense, may be constitutionally mandated upon a prisoner’s

election.”   Laaman v . Helgemoe, 

 (D.N.H.

1977) (Bownes, J . ) .   Thus, the fact that Lee only “suggested”

that Rand receive an orthopedic consultation for his shoulder did

not give the supervisory defendants the prerogative to reject

that suggestion outright. Indeed, “a deliberate indifference

claim can lie where prison officials deliberately ignore the

                                   20
medical recommendations of a prisoner’s treating physicians.”

Johnson v . Wright, 

 9 8 , 404 (2d Cir. 2005); accord

DesRosiers, 

 (“deliberate defiance of prison

doctor’s express orders, solely for purpose of causing prisoner

unnecessary pain, could transgress the Eighth Amendment”).

     Anderson claims that, rather than ignoring Lee’s suggestion,
she and Butler “determined that conservative treatment would be

pursued inside the jail, prior to any orthopaedic consultations.”

Anderson Aff. ¶ 3 2 . The events surrounding the decision,

however, suggest that this is less of an honest explanation for

the decision than a post hoc justification of i t . First, neither

Anderson nor Butler claims to have asked Lee about the suggested

treatment before deciding that it did not amount to an “order”

and therefore could be disregarded.    Second, while Anderson

acknowledges that she and Butler “discussed having D r . Rodd, the
jail’s physician and medical director, review the case,” Anderson

Aff. ¶ 1 2 , they apparently did not, even though the MCHC’s

medical policy at the time gave Rodd–-and not Anderson, Butler,

or any other administrator–-the ultimate authority to decide

whether a treatment was medically necessary.

     Third, Butler’s notations on Rand’s chart do not reflect the

choice of “a more conservative course of treatment” for Rand.

Instead, on March 1 1 , 2004, just after her conference with

                                 21
Anderson, Butler wrote, “Will hold off on surgical consult for

now-awaiting court rulings/court dates.”   Butler Aff. ¶ 1 5 .

Fourth, and most importantly, when Butler saw Rand on March 1 9 ,

2004, she did not tell him that “a more conservative course of

treatment” had been chosen for his shoulder injury.    To the

contrary, she said that “this pre-existing condition will not be
authorized for surgical intervention” and that “he would have to

write directly to Carole Anderson for authorization for outside

consult.”   

 ¶ 1 6 . Finally, in explaining the MCHC’s decision

to Moyer, Doucet also relied on the fact that Rand’s injury was a

pre-existing condition and, as a result, the MCHC would not

provide treatment unless Rand could pay for i t .

     “Prison officials may not, with deliberate indifference to

the serious medical needs of an inmate, opt for an easier and

less efficacious treatment of the inmate’s condition.    Nor may
they condition provision of needed medical services on the

inmate’s ability or willingness to pay.”   Monmouth County Corr.

Inst. Inmates v . Lanzaro, 

, 347 (3d Cir. 1987)

(internal quotation marks and citation omitted).    At a minimum,

the evidence just surveyed creates an issue of fact as to whether

the supervisory defendants denied outside care to Rand on these

prohibited bases. See Johnson, 

 (reversing

summary judgment for the defendants on deliberate indifference

                                22
claim arising out of refusal to allow medication recommended by

plaintiff’s treating physician where, inter alia, they failed to

investigate whether it would be “medically appropriate” to

disregard recommendation). The court therefore cannot grant

summary judgment on the ground that the supervisory defendants

did not act with the requisite degree of indifference.
     The supervisory defendants also argue, however, that Rand

cannot show that he had a “serious medical need,” because the

eventual examination of his shoulder by medical providers outside

the prison showed that he did not have the rotator cuff tear

diagnosed by Lee, o r , in fact, any other significant injury.    The

First Circuit has instructed that “[t]he ‘seriousness’ of

inmate’s needs may . . . be determined by reference to the effect

of the delay of treatment.”     Gaudreault, 

 (citing

Monmouth County, 834 F.2d at 3 4 7 ) .   Under this test, a medical
need is considered “serious” when the delay in treating it causes

“unnecessary and wanton infliction of pain” or “a life-long

handicap or a permanent loss . . . .”      Monmouth County, 834 F.2d

at 347 (internal quotation marks omitted).

     Here, although the supervisory defendants initially refused

to send Rand to an orthopedic surgeon in accordance with Lee’s

suggestion of March 1 1 , 2004, he was ultimately examined by

specialists outside the jail on January 1 4 , 2005, February 2 3 ,

                                   23
2005, and May 1 8 , 2005.   These specialists concluded that Rand

had neither a serious cervical injury nor a significant rotator

cuff tear. They also did not believe that surgery was an

appropriate intervention, recommending physical therapy and a

decrease in Rand’s pain medication instead.    Even these measures,

however, did not appreciably reduce Rand’s pain and discomfort,
so implementing them earlier would not have measurably improved

his physical condition.

       The delay in getting examined by an orthopedic surgeon,

then, did not cause Rand any additional pain or permanent injury.

Cf. Monmouth County, 834 F.2d at 347. In fact, between March 1 9 ,

2004, when Butler told Rand that he could not undergo surgery or

any other outside treatment on his shoulder without Anderson’s

say-so, and December 9, 2004, when Lee ordered a CT scan of

Rand’s spine, Rand sought medical care for his shoulder only
once, on November 1 1 , 2004.   Even on that date, Lee reported that

Rand’s symptoms appeared to have improved.    Because the summary

judgment record demonstrates that Rand suffered no ill effects

from the delay in receiving outside care for his shoulder, his

injury did not amount to a “serious medical need” as a matter of

law.   See Gaudreault, 

 (affirming summary

judgment for defendants on deliberate indifference claim arising

out of delay in providing medical care when doctor who eventually

                                  24
examined inmate “saw no need for immediate treatment,” including

surgery, and “counseled patience”).     The supervisory defendants

are therefore entitled to summary judgment on that basis.


                            Conclusion

      For the foregoing reasons, Simonds’s motion for summary

judgment for Rand’s failure to exhaust administrative remedies

(document no. 52) is GRANTED; Rand’s claim against Simonds is

dismissed without prejudice.   The supervisory defendants’ motion

for summary judgment (document no. 54) is also GRANTED as

follows:   Rand’s claim against the supervisory defendants, to the

extent it arises out of Simonds’s actions, is dismissed without

prejudice; the supervisory defendants are otherwise granted

summary judgment as to Rand’s claim.     The remaining pending

motions (document nos. 53, 65, and 66) are DENIED as moot.       The

clerk shall enter judgment accordingly and close the case.

      SO ORDERED.




                                         'eph A. DiClerico, Jr.
                                      United States District Judge

March 22, 2006

cc:   James E. Rand, pro se
      Kenneth C. Bartholomew, Esquire
      John A. Curran, Esquire
      Michael A. Pignatelli, Esquire

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