Perrino v. White et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Anthony M. Perrino
v. 	Case No. 20-cv-941-JL
Alexis White et al.1
REPORT AND RECOMMENDATION
Plaintiff Anthony M. Perrino, who is a prisoner at the
Northern New Hampshire Correctional Facility (“NCF”), filed a
civil rights complaint (Doc. No. 1), under 42 U.S.C. § 1983,
alleging that the defendants violated his Eighth Amendment
rights by forcing him to have his orthodontic braces removed,
and denying him treatment to relieve his pain during and after
that process. 	On initial review, the court concluded that Mr.
Perrino’s allegations were not at that time sufficient to state
Eighth Amendment claims, but gave him an opportunity to amend
the complaint to add allegations providing additional facts to
support his claims. 	See July 1, 2021 Order (Doc. No. 4). 	Mr.
Perrino has now filed an amended complaint (Doc. No. 5) which,
1 The defendants identified in the complaint (Doc. Nos. 1,
5) are New Hampshire State Prison (“NHSP”) Dental Provider
Alexis White; NHSP Lt. Morin, whose first name is unknown; NHSP
Capt. FNU Castallano; and NHSP Warden Michelle Edmark.
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along with the initial complaint (Doc. No. 1),2 is before this
Court for preliminary review.3
Background
Mr. Perrino, who was twenty-two at the time he filed this
action, alleges that when he was a teenager, prior to his
incarceration, he experienced pain in his upper and lower jaws.
His dentist at the time told him that many of his teeth were
growing sideways, which was affecting other teeth. 	The dentist
said that Mr. Perrino needed to address the problem to prevent
lifelong problems with eating, talking, infections, loss of
teeth, and other issues. 	Mr. Perrino’s dentist said that the
appropriate remedy for Mr. Perrino’s dental situation was to
have braces placed on his teeth and to keep them in place.
Without braces, the dentist said, Mr. Perrino would require
operations on his jaw, would have difficulty communicating, and
would have severe cosmetic issues. 	Based on the dentist’s
advice, Mr. Perrino had braces put on his teeth.
2 Mr. Perrino’s initial complaint (Doc. No. 1) and amended
complaint (Doc. No. 5) are construed, together, to be the
operative complaint in this matter for all purposes.
3 The Court reviews the complaint applying the standard set
forth in the July 1, 2021 Order (Doc. No. 4, at 1-2).
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When he entered the New Hampshire State Prison for Men
(“NHSP”), Mr. Perrino alleges that Alexis White, a dental
provider at the NHSP, told him that his braces were a security
issue and would have to be removed. 	Mr. Perrino told Ms. White
and Lt. Morin that he did not want the braces removed because of
his former dentist had stated that the braces must remain in
place for the required amount of time, which had not yet
expired, to avoid the serious problems and issues described
above. 	Mr. Perrino states that Ms. White, Lt. Morin, and NHSP
Capt. Castallano told him that if he did not consent to the
removal of his braces, he would be assigned to punitive
segregation in the Secure Housing Unit (“SHU”), with a “Class A
upgrade.” 	Doc. No. 1, at 3-5. 	Believing he had no choice, Mr.
Perrino allowed his braces to be removed.
Mr. Perrino asserts that the removal process was painful,
and caused chafing and bleeding of his gums. 	Mr. Perrino
asserts that since the removal of his braces, he has pain in his
teeth and jaw that makes it difficult for him to eat and to
sleep. 	Mr. Perrino alleges that he was not given any medication
to relieve the pain and discomfort during or after the removal
process. 	Mr. Perrino also alleges that he has experienced
anxiety, panic, anger, and depression because of the removal of
his braces.
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Discussion
I. 	Eighth Amendment Claims
A. 	Legal Standard
Mr. Perrino contends that the defendants’ actions, with
regard to the forceful removal of his braces, violated his
Eighth Amendment right to be provided with adequate care for his
serious medical and dental needs. 	To state an Eighth Amendment
claim of inadequate health care, the plaintiff must allege facts
to satisfy both an objective element and a subjective element of
the claim. 	See Snell v. Neville, 998 F.3d 474, 495 (1st Cir.
2021). 	The objective element requires allegations to show that
the plaintiff has a “‘serious medical need’” requiring treatment
“for which the defendants provided inadequate care.” 	See id.
(alteration and citation omitted). 	The subjective element
requires the plaintiff to assert facts to show that the
defendants were deliberately indifferent to his serious medical
need. 	See id. 	An Eighth Amendment medical care claim may arise
out of the allegation that a prisoner received inadequate dental
care. 	See Eugene v. Deville, 791 F. App’x 484, 484 (5th Cir.
2020).
B. 	Serious Medical Need
A prisoner may demonstrate a serious medical need by
asserting facts to show that he has a medical need “which [is]
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either diagnosed by physicians” as requiring treatment, or which
is “‘so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” 	Snell, 998 F.3d at
495. 	With regard to the provision of adequate care:
prison officials are not required to render ideal
care, let alone cater to an inmate's preferred
healthcare regimen. 	They simply must provide care at
“a level reasonably commensurate with modern medical
science and of a quality acceptable within prudent
professional standards.” 	Moreover, “[t]he law is
clear that where two alternative courses of medical
treatment exist, and both alleviate negative effects
within the boundaries of modern medicine, it is not
the place of [the] court to second guess medical
judgments . . ..”
Id. (internal citations omitted). 	As Mr. Perrino alleges that
his braces were prescribed and put on by his dentist to address
serious issues with his teeth and jaw, with the warning that the
braces would have to remain in place to avoid serious future
consequences, he has stated sufficient facts to demonstrate that
he has a serious medical condition in need of treatment.
2. 	Deliberate Indifference
“Deliberate indifference appears when defendants had a
‘sufficiently culpable state of mind’ by ignoring (or worsening)
the inmate's serious medical need.” 	Id. at 497 (quoting Farmer
v. Brennan, 511 U.S. 825, 834 (1970)). 	“Deliberate indifference
is therefore more than negligence, or the ‘ordinary lack of due
care for the prisoner's interests or safety,’ yet it need not be
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intentional harm. 	The defendants must have known of the risk of
harm to the plaintiff and disregarded it.” 	Snell, 998 F.3d at
497 (citations omitted). 	The denial of care to punish a
prisoner, care that was so inadequate as to shock the
conscience, or to amount to a refusal to provide any care at all
may be said to be deliberately indifferent. 	See id.
Mr. Perrino alleges that he told the defendants that he
needed braces because of the problems with his teeth and jaw,
and that, despite that knowledge, they forced him to have the
braces removed. 	In addition, a reasonable inference may be
drawn that the defendants would have known that the braces were
applied by a dentist or orthodontist, which encompasses an
inference that the defendants knew the braces were prescribed to
treat a serious dental issue, and that the defendants
nevertheless forced Mr. Perrino to have the braces removed. 	Mr.
Perrino further alleges, with regard to Ms. White, that she
failed to provide him with necessary pain medication during and
after the removal of his braces, in disregard of his pain.
The Court finds that Mr. Perrino has stated cognizable
Eighth Amendment claims for inadequate dental care, for the
removal of his braces, against defendants Ms. White, Lt. Morin,
and Capt. Castallano. 	Additionally, Mr. Perrino’s allegations
are sufficient to support a claim against Ms. White for
inadequate care for denying Mr. Perrino pain during and after
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the removal of his braces.4 	Accordingly, in an Order issued
simultaneously with this Report and Recommendation, the Court
directs service of Mr. Perrino’s Eighth Amendment claims on Ms.
White, Lt. Morin, and Capt. Castallano.
II. 	Supervisory Liability
Mr. Perrino has sued NHSP Warden Michelle Edmark in this
action, alleging that she bears responsibility for the Eighth
Amendment violations asserted against Ms. White, Lt. Morin, and
Capt. Castallano. 	A supervisory prison official, such as Warden
Edmark, is liable for a constitutional violation under § 1983
only if her own actions or inactions caused the violation, or if
her conduct “led inexorably to the constitutional violation” by
a subordinate. 	Penate v. Hanchett, 944 F.3d 358, 367 (1st Cir.
2019). 	Mr. Perrino asserts no allegations concerning any action
or failure to act by Warden Edmark which directly or indirectly
caused a violation of his constitutional rights, and her
position as the NHSP Warden, without more, is insufficient to
render her liable for the conduct of her subordinates.
4 Mr. Perrino alleges that after he was transferred to NCF
he requested pain medication. 	If he seeks to assert any claim
for the denial of pain medication against any individual at NCF,
he must do so by filing a motion to amend his complaint to add
those claims and to join defendants to this action.
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Therefore, Mr. Perrino has not stated any claim against Warden
Edmark, and she should be dismissed from this case.
Conclusion
For the foregoing reasons, any claims asserted against NHSP
Warden Edmark, and Warden Edmark herself, should be dismissed
from this action. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections to the Report and Recommendation within the
specified time waives the right to appeal the district court's
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
October 21, 2021
cc: 	Anthony M. Perrino, pro se
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