Brown v . Englander, et a l . 10-CV-257-SM 6/1/12
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Bruce Brown,
Plaintiff
v. Case N o . 10-cv-257-SM
Opinion N o . 2012 DNH 095
Celia Englander, M.D.;
William Wrenn, Commissioner, N.H. Dept.
of Corrections; Richard Gerry, Warden,
N.H. State Prison; and Robert McLeod,
Director of Medical and Forensic Services,
N.H. Dept. of Corrections,
Defendants
O R D E R
Bruce Brown, an inmate at the New Hampshire State prison,
has served approximately 15 years of a 20-40 year sentence for
sexual assault. About five years ago, he began experiencing
intermittent back pain. Over time, that pain became worse and
Brown says it is now severe (sometimes incapacitating) and can
only be alleviated through surgery to fuse damaged lumbar discs.
He claims prison officials are aware not only that he suffers
from debilitating pain, but also that several consulting
physicians have recommended surgery. And yet, says Brown, prison
officials refuse to provide him with that medically necessary
surgery.
Brown brings this action alleging that defendants have acted
with deliberate indifference to his serious medical needs and, in
so doing, violated his Eighth Amendment right to be free from
cruel and unusual punishment. He also brings state law claims of
medical malpractice and intentional infliction of emotional
distress, over which he asks the court to exercise supplemental
jurisdiction. See 28 U.S.C. § 1367(a). He seeks monetary
damages for his suffering, and injunctive relief compelling
defendants to provide him with the surgery he says he needs.1
Defendants deny that they violated any of Brown’s rights
and, because they say there are no genuinely disputed material
facts, defendants claim they are entitled to judgment as a matter
of law. Brown objects.
For the reasons discussed below, defendants’ motions for
summary judgment are granted as to Brown’s Eighth Amendment
claim. As to Brown’s state law claims for negligence and
intentional infliction of emotional distress, the court declines
to exercise its supplemental jurisdiction and those claims are
dismissed without prejudice.
1
It is not entirely clear what medical treatment Brown
has received since he filed his complaint or what treatment he is
currently undergoing. He simply reports, somewhat cryptically,
that “at this time, [he] is receiving some treatment for his
spinal damage.” Plaintiff’s motion for voluntary nonsuit
(document n o . 22) at 1 .
2
Standard of Review
When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party’s favor.” Griggs-Ryan v . Smith, 904 F.2d 1 1 2 , 115
(1st Cir. 1990). Summary judgment is appropriate when the record
reveals “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In this context, “a fact is ‘material’ if it
potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace
Workers v . Winship Green Nursing Ctr.,
103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted). Nevertheless, if the non-moving
party’s “evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.” Anderson v .
Liberty Lobby, Inc.,
477 U.S. 2 4 2 , 249-50 (1986) (citations
omitted).
The key, then, to defeating a properly supported motion for
summary judgment is the non-movant’s ability to support his or
her claims concerning disputed material facts with admissible
evidence that conflicts with that proffered by the moving party.
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See generally Fed. R. Civ. P. 56(c). It naturally follows that
while a reviewing court must take into account all properly
documented facts, it may ignore a party’s bald assertions,
unsupported conclusions, and mere speculation. See Serapion v .
Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997). See also Scott v .
Harris,
550 U.S. 3 7 2 , 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe i t , a court
should not adopt that version of the facts for purposes of ruling
on a motion for summary judgment.”).
Background
Brown’s factual allegations are discussed in the court’s
order dated November 2 4 , 2010 (document n o . 9 ) , denying Brown’s
request for preliminary injunctive relief, but allowing him to
proceed with some of his claims against D r . Celia Englander
(Chief Medical Officer for the Department of Corrections), Robert
McLeod (former Administrative Director of Medical and Forensic
Services to the Department of Corrections), Richard Gerry (Warden
of the N.H. State Prison for M e n ) , and William Wrenn
(Commissioner of the N.H. Department of Corrections). Those
allegations need not be recounted. It is sufficient to note that
since the onset of his back pain, Brown has been seen by several
medical professionals, he has been provided with a number of
4
different pain-killers (both prescription and non-prescription),
and he has received at least one round of cortisone injections.
Nevertheless, Brown says his back pain remains and he believes
surgery is the only appropriate treatment.
Discussion
I. Deliberate Indifference to Serious Medical Needs.
To prevail on his Eighth Amendment claim for medical
mistreatment, Brown must show that prison officials demonstrated
“deliberate indifference to [his] serious medical needs.”
Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976). That test has both
an objective component and a subjective component. See
DesRosiers v . Moran,
949 F.2d 1 5 , 18 (1st Cir. 1991).
As the Supreme Court has noted, the Constitution “does not
mandate comfortable prisons, and only those deprivations denying
the minimal civilized measure of life’s necessities are
sufficiently grave to form the basis of an Eighth Amendment
violation.” Wilson v . Seiter, 501 U.S. 2 9 4 , 298 (1991) (citation
and internal quotation marks omitted). Consequently, under the
objective component of the deliberate indifference test, Brown
must show that he has suffered a serious deprivation of a
fundamental right or basic human need. See DesRosiers,
949 F.2d
at 1 8 . And, under the subjective component, he must demonstrate
5
that defendants were actually aware o f , yet consciously chose to
disregard, a substantial risk of serious harm to him. See Farmer
v . Brennan, 511 U.S. 825, 837 (1994) (“[A] prison official cannot
be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”). See also
Id. at 838 (“an
official’s failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation,
cannot . . . be condemned as the infliction of punishment.”).
Having identified the type of evidence that is required for
an inmate to prevail on an Eighth Amendment claim it i s , perhaps,
appropriate to discuss what falls short of establishing a viable
constitutional claim. For example, it is well-established that
an Eighth Amendment medical mistreatment claim cannot be premised
on a theory of simple negligence or even a clear case of medical
malpractice. Rather, to constitute a violation of the Eighth
Amendment, a medical care provider’s conduct must go well beyond
negligence in diagnosing or treating a prisoner’s medical
condition. See Estelle, 429 U.S. at 105-06. Similarly, a
constitutional violation does not occur merely because a prisoner
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disagrees with a medical professional’s decisions regarding the
proper course of medical treatment. See, e.g., Ruiz-Rosa v .
Rullan, 485 F.3d 1 5 0 , 156 (1st Cir. 2007) (“[S]ubstandard care,
malpractice, negligence, inadvertent failure to provide care, and
disagreement as to the appropriate course of treatment are all
insufficient to prove a constitutional violation.”); Watson v .
Caton,
984 F.2d 5 3 7 , 540 (1st Cir. 1993) (“The courts have
consistently refused to create constitutional claims out of
disagreements between prisoners and doctors about the proper
course of a prisoner’s medical treatment, or to conclude that
simple medical malpractice rises to the level of cruel and
unusual punishment.”).
Instead, to violate the Eighth Amendment, the “care provided
must have been so inadequate as to shock the conscience,” Feeney
v . Corr. Med. Servs., 464 F.3d 1 5 8 , 162 (1st Cir. 2006)
(citations and internal punctuation omitted), or it must have
“constitute[d] an unnecessary and wanton infliction of pain or
[been] repugnant to the conscience of mankind,” Estelle,
429 U.S.
at 105-06 (citations and internal punctuation omitted).
II. Plaintiff’s Eighth Amendment Claim.
In support of his constitutional claim, Brown says D r .
Englander was aware that he suffered from severe back pain and,
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notwithstanding his repeated complaints, she knowingly and
deliberately denied him appropriate treatment (in the form of
surgery). Brown goes on to assert that defendants Wrenn, McLeod,
and Gerry actively condoned D r . Englander’s failure/refusal to
provide Brown with what he says was medically necessary surgery.
But, of course, Brown is not qualified to determine whether the
surgery he seeks is “medically necessary.” Only a medical expert
can testify on such matters. And, without such expert testimony,
Brown cannot establish that D r . Englander’s alleged “refusal” to
arrange for surgery amounts to deliberate indifference to a
serious medical need.
As this court has previously noted in a substantially
similar case:
This court lacks the medical training and expertise
necessary to determine, in the absence of expert
opinion evidence, whether the medical judgment
exercised by the defendant physicians fell below an
acceptable standard of professional care, much less
that the medical care provided to [plaintiff] was so
substandard as to implicate the Eighth Amendment.
Stated slightly differently, the medical care
[plaintiff] did receive was not so obviously and
shockingly deficient that the court can conclude,
without the benefit of supporting expert medical
testimony, that [plaintiff] is likely to prevail on his
Eighth Amendment claim.
Boudreau v . Englander, 2010 WL 2108219, *3 (D.N.H. 2010). Here,
the medical treatment provided to Brown (prescription and non-
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prescription medication designed to alleviate pain; steroid
injections; consultations with surgeons and pain-management
specialists) was not so obviously outrageous or malicious that a
lay trier-of-fact could reasonably conclude that it violated the
Eighth Amendment’s proscription against cruel and unusual
punishment.
S o , to prevail on his constitutional claims, Brown must
provide expert medical testimony. See, e.g., Robinson v . Hager,
292 F.3d 5 6 0 , 564 (8th Cir. 2002); Boring v . Kozakiewicz,
833
F.2d 4 6 8 , 473 (3d Cir. 1987). He has, however, failed to
disclose an expert witness. The time for doing so has passed,
and he has not sought an extension of that deadline. Absent such
expert medical testimony, defendants are entitled to judgment as
a matter of law on Brown’s constitutional claim.
Parenthetically, the court notes that it has attempted to
construe Brown’s opposition to summary judgment (and the
potential arguments available to him) in the most generous light
possible. As construed on preliminary review, Brown’s complaint
advances a single federal constitutional claim: “that he has a
serious medical need that requires surgical correction, and that
the prison defendants have refused to provide, or delayed in
providing, necessary treatment.” Order dated November 2 4 , 2010
9
(document n o . 9 ) at 18-19. Importantly, the court also held that
Brown’s complaint failed to state a viable Eighth Amendment claim
based upon problems he claims to have experienced obtaining
appropriate medications to manage his pain. See Id. at 17
(“Brown cannot assert a claim for deliberate indifference to his
pain based on difficulties with his medication.”).
Rather than addressing the medical sufficiency of the care
he received, however, Brown focuses exclusively on his claim to
have suffered excruciating pain - pain he says defendants knew
o f , yet failed to properly address. That, says Brown, is not
only enough to make out a viable Eighth Amendment claim, but it
is also sufficient to survive summary judgment - even without a
medical expert.
[Brown] believes no expert can opine on the amount of
pain he suffered and how it was exacerbated by the
repeated failure to follow through on promised
referrals or treatment made by D r . Englander. He
received treatment; he is not questioning that nor the
sufficiency of the treatment; rather he believes it
does not take an expert to determine the effect of
years of excruciating pain as documented by D r .
Englander herself, on an inmate paired with unmet
promises of relief.
Plaintiff’s memorandum (document n o . 24) at 7 (emphasis
supplied).
10
Brown is incorrect. One can certainly imagine scenarios in
which a defendant’s conduct might be so outrageous and so
obviously undertaken either with intent to injure an inmate or
with deliberate indifference to the inmate’s well-being that
expert medical testimony would not be necessary. This, however,
is not one of those cases. In fact, Brown seems to concede as
much: “Mr. Brown has received mixed opinions from both treating
physicians and potential expert witnesses as to the best course
of treatment presently and in the past” and “the adequacy of his
treatment has not yet been determined.” Plaintiff’s motion for
voluntary nonsuit (document n o . 22) at 1 . The fact that even the
medical experts Brown consulted cannot agree as to the “best
course of treatment,” and the fact that none of those experts
appears to have opined that the care Brown did receive was
substandard, substantially undermine any claim that the treatment
he actually received from D r . Englander was so far below
acceptable medical norms as to shock the conscience or amount to
an unnecessary and wanton infliction of pain.
In short, while Brown may think that better or more
effective treatments were available to alleviate his pain, only a
medical expert can testify to such matters, and, in this case,
only a qualified expert can provide opinion evidence regarding
the adequacy or inadequacy of the care actually given. Absent
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such expert medical testimony, Brown cannot prevail on his
constitutional claims.
III. Plaintiff’s State Law Claims.
Having concluded that defendants are entitled to judgment as
a matter of law on the sole federal claim in Brown’s complaint,
the court must next determine whether it is appropriate to
exercise supplemental jurisdiction over his state law claims of
medical malpractice and intentional infliction of emotional
distress.
Defendants urge the court to follow a somewhat unusual
course: They ask it to exercise supplemental jurisdiction over
Brown’s medical malpractice claim (and grant them summary
judgment), but decline to exercise supplemental jurisdiction over
his intentional infliction of emotional distress claim. That
invitation is rejected.
Section 1367 of Title 2 8 , United States Code, provides that
the court may decline to exercise supplemental jurisdiction over
a plaintiff’s state law claim when:
(1) the claim raises a novel or complex issue of State
law,
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(2) the claim substantially predominates over the
claim or claims over which the district court has
original jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are other
compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c) (emphasis supplied). To assist district
courts, the Court of Appeals for the First Circuit has identified
the following additional factors that should be considered when
determining whether to exercise supplemental jurisdiction over
state law claims: (1) the interests of fairness; (2) judicial
economy; (3) convenience; and (4) comity. See Camelio v .
American Fed’n,
137 F.3d 666, 672 (1st Cir. 1998). With regard
to principles of fairness and comity, the Supreme Court has
observed:
Needless decisions of state law should be avoided both
as a matter of comity and to promote justice between
the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal
claims are dismissed before trial, even though not
insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.
United Mine Workers v . Gibbs, 383 U.S. 715, 726 (1966) (footnote
omitted).
Given that the court has dismissed the sole federal claim in
Brown’s complaint, and taking into consideration the factors
13
identified in both United Mine Workers and Camelio, the court
declines to exercise supplemental jurisdiction over the state law
claims in Brown’s complaint, which shall be dismissed without
prejudice.
Conclusion
The mere fact that Brown suffered severe pain as a result of
his back condition is not evidence of defendants’ deliberate
indifference to his serious medical needs. It is possible that
even if he had received cutting-edge, world-class medical care,
he still would have experienced substantial discomfort. Thus,
the fact that he was in pain - even if defendants were aware of
his suffering - is not dispositive. Rather, the critical
question presented by his Eighth Amendment claim is how
defendants responded to his medical condition - that i s , whether
they were deliberately indifferent to a serious medical
condition.
Under the circumstances presented in this case, only a
medical expert can opine as to whether the treatment provided to
Brown was so plainly improper, and that surgery was so obviously
the only means by which to address his pain, that defendants’
failure/refusal to provide such surgery amounted to deliberate
indifference to Brown’s serious medical needs. But, because
14
Brown has failed to identify a medical expert, he cannot prevail
on his Eighth Amendment claim. Consequently, as to that claim,
defendants are entitled to summary judgment. As to Brown’s
remaining state law causes of action, however, the court declines
to exercise its supplemental jurisdiction, and those claims are
dismissed without prejudice.
Defendants’ motions for summary judgment (documents n o . 18
and 27) are granted in part, and denied in part, as discussed
above. The Clerk of Court shall enter judgment in accordance
with this order and close the case.
SO ORDERED.
Steven J./McAuliffe
Jnited States District Judge
June 1 , 2012
cc: Nancy S . Tierney, Esq.
Martin P. Honigberg, Esq.
Lynmarie C . Cusack, Esq.
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