Wilson v. NH State Prison, Warden

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jarrell Wilson
v. 	Case No. 19-cv-00786-JL
Michelle Edmark, Warden, New Hampshire
State Prison for Men, Thomas Groblewski,
Mary T. Skinner, Stephanie Donahue,
Jennie Hennigar, Amanda Currier, Celia
Englander, Helen Hanks
REPORT AND RECOMMENDATION
Before the court is pro se plaintiff Jarrell Wilson’s
amended complaint (Doc. No. 13) and addendum (Doc. No. 14) to
the amended complaint (collectively “amended complaint”), filed
pursuant to 42 U.S.C. § 1983. 	The amended complaint is before
this magistrate judge for preliminary review, pursuant to 28
U.S.C. § 1915A and LR 4.3(d)(1).
Standard of Review
The court may dismiss claims asserted in an inmate’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	To
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 1 of 16

2
determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
plaintiff has stated a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
Wilson is a prisoner of the State of New Hampshire. 	At all
relevant times he was housed at the New Hampshire State Prison
for Men (“NHSP”).
Wilson filed a complaint (Doc. No. 1) pursuant to 42 U.S.C.
§ 1983, in this court on July 23, 2019, raising an Eighth
Amendment claim against Michelle Edmark, the Warden of NHSP. 	He
filed an addendum (Doc. No. 5) to the complaint on September 24,
2019. 	After conducting an initial review of the complaint and
addendum, the court determined that Wilson had failed to state a
claim for relief against Edmark. 	See Oct. 30, 2019 Order (Doc.
No. 9), approving Oct. 15, 2019 Report and Recommendation
(“R&R”) (Doc. No. 6). 	The court did not dismiss the complaint,
however, but provided Wilson the opportunity to amend it. 	See
Oct. 15, 2019 Order (Doc. No. 7). 	Wilson filed this amended
complaint (Doc. No. 13) on November 18, 2019, and the addendum
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 2 of 16

3
(Doc. No. 14) on November 21, 2019.
Wilson alleges that on April 4, 2019, an unidentified
inmate “sucker-punched” him, that is, struck him without warning
or provocation, during breakfast in the prison cafeteria.
Wilson initially was examined by a prison nurse who noted a
visual deformity to Wilson’s jaw and that the jaw was uneven;
the nurse ordered x-rays of Wilson’s jaw. 	See Progress Notes,
Am. Compl., Ex. 1 (Doc. No. 13-1). 	The radiologist who reviewed
the x-rays detected no fracture but stated that “[i]f clinical
concern continues to exist, further workup with CT may be
beneficial for imaging.” 	Radiology Rpt., Am. Compl., Ex. 3
(Doc. No. 13-3).
An evaluation of Wilson’s jaw was ordered and categorized
as “Urgent.” 	See Eval. Notes, Am. Compl., Ex. 4 (Doc. No. 13-
4). 	At around 10:19 a.m., defendant Jennie Hennigar, an NHSP
dental provider, evaluated Wilson’s jaw and noted that Wilson
reported that his teeth were loose and bleeding and that they
did not come together when he bit down. 	See id. 	Hennigar
observed that Wilson’s face had an asymmetrical distortion and
right-side protrusion and that palpation of Wilson’s right jaw
elicited a pain response. 	See id. 	She also noted that the x-
ray was “not very diagnostic. 	Unable to see a fracture[.]” 	Id.
Wilson also was evaluated by defendant Stephanie Donahue,
an NHSP nurse practitioner, who observed that while there did
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 3 of 16

4
not appear to be a jaw fracture, Wilson’s jaw was visibly
displaced. 	See id. 	She ordered that Wilson be placed on a
liquid diet and given liquid Tylenol and Oxycodone for severe
pain. 	See id.
Donahue and Hennigar conferred and recommended that Wilson
be referred to an off-site oral surgeon for a diagnostic
evaluation. 	See Eval. Notes, Am. Compl., Ex. 4 (Doc. No. 13-4).
Defendant Mary Skinner, an NHSP prison doctor, reviewed
Donahue’s and Hennigar’s evaluation notes and recommendation
that Wilson see an oral surgeon. 	See id. 	She referred the
recommendation to defendant Tom Groblewski, the NHSP Chief
Medical Officer (“CMO”), for review, noting that “there is no IQ
criteria for this scenario and per Centurion NH business rules
Dental Director or CMO review is required for off-site consult
for oral maxillofacial related conditions.” 	Id. 	Defendant
Groblewski approved the referral for evaluation by an off-site
oral surgeon, and at around 3:54 p.m. on April 4, 2019, Traci
Guillemette, who is not named as a defendant, faxed the referral
to the New Hampshire Department of Corrections’ Medical &
Forensic Services Division (“NHDOC-MFSD”). 	See id. 	She also
requested that “MobileX[ ] send disc of images,” id., which the
court infers is a reference to the x-ray images of Wilson’s jaw.
Roughly five and a half hours elapsed between defendant
Hennigar’s evaluation and Guillemette’s fax to the NHDOC-MFSD.
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 4 of 16

5
Wilson was housed in the medical department for five (5) weeks
following the incident in the cafeteria.
On April 10, 2019, Wilson had an appointment with an oral
surgeon, identified by Wilson as Dr. Chin, who is not named as a
defendant in this action, for a diagnostic evaluation. 	Dr. Chin
was unable to make a diagnosis, however, because he did not have
the x-rays of Wilson’s face that had been taken at the NHSP on
April 4, 2019. 	Wilson was returned to the NHSP without a
diagnosis.
Defendant Amanda Currier, identified by Wilson as a NHSP
physician/APRN, ordered a CT scan for Wilson, which was
performed on April 19, 2019. 	Thereafter, defendant Groblewski
again approved a diagnostic evaluation, which was performed on
May 7, 2019 by Dr. Chin. 	Dr. Chin told Wilson that he had two
fractures, that surgical repair would be more complicated
because more than 14 days had passed since the breaks, and that
post-surgery, Wilson’s bite still might be off, and he might
need dental work to make his bite more comfortable.
Wilson’s jaw was wired shut on May 13, 2019, and the wires
were removed and replaced with rubber bands on May 28, 2019. 	On
June 27, 2019, the screws and rubber bands were removed.
Post-surgery, Wilson’s jaw remains misaligned and every
time he eats, he suffers excruciating pain. 	He has informed the
NHSP medical department of the pain. 	During the six months
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 5 of 16

6
after the screws and bands were removed, the defendants
scheduled medical or dental appointments for him related to his
jaw, but defendant Currier canceled all of them. 	Wilson has
been denied any post-surgery treatment for his misaligned jaw
except the grinding down of his teeth to make his bite more
comfortable.
Wilson seeks $180,000 in compensatory damages for pain and
suffering and $180,000 in punitive damages. 	He also seeks
injunctive relief in the form of an order that he receive
reconstructive surgery on his jaw.
Claims
The court identifies the claims for damages and injunctive
relief asserted by Wilson as follows:
1. 	Defendants Jennie Hennigar and Stephanie Donahue
were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment when they
failed to comply with NHDOC Policy and Procedure
Directive (“PPD”) 6.47 and treat his jaw injury as a
medical emergency.
2. 	Defendants Helen Hanks, Commissioner of NHDOC,
Michelle Edmark, Thomas Groblewski, and Mary T.
Skinner violated Wilson’s Eighth Amendment right
against cruel and unusual punishment by failing to
ensure NHSP medical staff were trained to respond to
medical emergencies as required by PPD 6.47.
3. 	Defendants Hennigar, Donahue, Skinner,
Groblewski, Amanda Currier, and Celia Englander,
identified as the NHSP chief physician, were
deliberately indifferent to his serious medical needs
in violation of the Eighth Amendment when they failed
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 6 of 16

7
to immediately order a CT scan, as recommended by the
radiologist.
4. 	Defendants Henniger, Donahue, Skinner,
Groblewski, Currier, and Englander were deliberately
indifferent to Wilson’s serious medical needs in
violation of the Eighth Amendment when they failed to
order a CT scan prior to a first appointment with an
oral surgeon.
5. 	Defendant Currier was deliberately indifferent to
Wilson’s serious medical needs in violation of the
Eighth Amendment when she canceled all his post-
surgery medical/dental appointments related to his
misaligned jaw.
6. 	Defendants Hennigar, Donahue, and Skinner
misdiagnosed Wilson.
7. 	Defendants Groblewski and Englander failed to
ensure Wilson was properly diagnosed.
Discussion
I. 	Eighth Amendment Elements
“Government officials violate the Eighth Amendment if they
display ‘deliberate indifference’ to a prisoner’s ‘serious
medical needs.’” 	Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64,
74 (1st Cir. 2016) (quoting Gaudreault v. Muni. of Salem, 923
F.2d 203, 208 (1st Cir. 1990)). 	“[T]o prove an Eighth Amendment
violation, a prisoner must satisfy both of two prongs: 	(1) an
objective prong that requires proof of a serious medical need,
and (2) a subjective prong that mandates a showing of prison
administrators’ deliberate indifference to that need.” 	Kosilek
v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014) (citing Estelle v.
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 7 of 16

8
Gamble, 429 U.S. 97, 106 (1976); Sires v. Berman, 834 F.2d 9, 12
(1st Cir. 1987)).
“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.’” 	Miranda-Rivera, 813 F.3d at 74 (quoting
Gaudreault, 923 F.2d at 208). 	As to the subjective prong5, an
inmate must allege that defendants committed “acts or omissions
. . . sufficiently harmful to evidence deliberate indifference
to serious medical needs.” 	Leavitt v. Corr. Med. Servs., 645
F.3d 484, 497 (1st Cir. 2011) (quoting Gamble, 429 U.S. at 106)
(internal quotation marks omitted). 	“Deliberate indifference
requires (1) that ‘the official . . . be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists,’ and (2) that he draw that inference.” 	Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
II. 	Failure to Comply with Prison Policy (Claim 1)
Wilson claims defendants Jennie Hennigar and Stephanie
Donahue were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment when they failed to
comply with PPD 6.47, which sets forth policy and procedures for
staff to respond to a medical emergency at the prison. 	See PPD
6.47, Am. Compl., Ex. 2 (Doc. No. 13-2), at 1. 	Specifically,
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 8 of 16

9
Wilson contends that PPD 6.47 requires that a medical emergency
be declared when an inmate presents with “[c]omplaints
associated with a heart attack (chest pain with or without
nausea, sweating, and pain from chest to jaw or down either or
both arms).” 	Am. Compl. (Doc. No. 13), at ¶9 (quoting PPD
6.47(IV)(A)(2)(d) (2014), Am. Compl. Ex. 2 (Doc. No. 13-2), at
1).
As an initial matter, Wilson does not allege any facts from
which an inference can be drawn that he complained to either
Hennigar or Donahue of symptoms associated with a heart attack.
PPD 6.47 does not list either “broken jaw” or “jaw injury” as a
symptom associated with a heart attack.
Next, an allegation that prison officials failed to follow
prison rules or policies does not set forth a constitutional
claim. 	McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012);
see also Querido v. Wall, C.A. No. 10–098 ML, 2010 U.S. Dist.
LEXIS 139201, at *14, 2010 WL 5558915, at *3 (D.R.I. Dec. 8,
2010), R&R adopted, 2011 U.S. Dist. LEXIS 1882, 2011 WL 63503
(D.R.I. Jan. 7, 2011). 	Accordingly, Wilson cannot state a
viable Eighth Amendment claim against Hennigar and Donahue for
violation of prison policies, and the district judge should
dismiss Claim 1 for failure to state a claim upon which relief
may be granted, see 28 U.S.C. § 1915A(b).
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 9 of 16

10
II. 	Supervisory Liability (Claim 2)
Wilson claims that defendants Hanks, Edmark, Groblewski,
and Skinner violated his Eighth Amendment right against cruel
and unusual punishment by failing to ensure NHSP medical staff
were trained, as required by PPD 6.47(III), to respond to
medical emergencies. 	Wilson contends that had NHSP medical
staff been trained in the emergency medical responses outlined
in PPD 6.47, he would have received proper surgical care within
fourteen (14) days, and his jaw would not have remained
misaligned after the surgery. 	He contends further that
defendant Skinner’s assertion that “there is no IQ criteria for
this scenario,” see Eval. Notes, Am. Compl., Ex. 4 (Doc. No. 13-
4),” is evidence that the NHSP medical staff were not trained in
the emergency medical responses required by PPD 6.47.
Under § 1983, courts have treated claims for failure to
train under the general category of supervisory liability.
“Supervisory liability can be grounded on either the
supervisor's direct participation in the unconstitutional
conduct, or through conduct that amounts to condonation or tacit
authorization.” 	Whitfield v. Melendez–Rivera, 431 F.3d 1, 14
(1st Cir.2005) (citing Camilo–Robles v. Zapata, 175 F.3d 41, 44
(1st Cir.1999)). 	While a supervisor cannot be held liable for
the unconstitutional actions of his or her subordinates on a
respondeat superior theory, liability can attach if those
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 10 of 16

11
actions resulted from a supervisor’s failure to train or to
supervise his or her subordinates. 	See City of Canton, Ohio v.
Harris, 489 U.S. 378, 388–89 (1989).
Wilson does not allege any facts from which an inference
can be drawn that the defendants failed to train Hennigar and
Donahue, the only other defendants Wilson alleges examined him
on April 4, 2019, in the emergency medical responses outlined in
PPD 6.47. 	First, Wilson does not allege any facts from which an
inference can be drawn that Hanks, Edmark, Groblewski, or
Skinner was responsible for ensuring NHSP medical staff were
trained to respond to medical emergencies as set forth PPD 6.47.
Next, PPD 6.47 requires that, when any staff member
encounters a person that requires emergency medical attention,
the staff member will . . . declare a medical
emergency . . . for the following reason(s):
a. 	Unconscious person;
b. 	No breathing;
c. 	Severe bleeding;
d. 	Complaints associated with a heart attack .
. .;
e. 	Seizures that last more than 5 minutes,
return or result in injury
PPD 6.47(IV)(A)(2) (Doc. No. 13-2), at 1. 	Other than
frivolously asserting that a jaw injury is a complaint
associated with a heart attack, Wilson does not allege that he
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 11 of 16

12
met any of the above criteria. 	Nor has he identified any
provision in PPD 6.47 requiring that a jaw injury be treated as
a medical emergency.
Where injuries cannot be assessed by visual examination,
PPD 6.47(IV)(D)(6) requires that nursing staff consult with the
physician or advanced practice registered nurse on site to
determine the need to send the inmate to the emergency room.
See (Doc. No. 13-2), at 2. 	Wilson was examined by an advanced
practice registered nurse (Donahue), who consulted with the on-
site dental provider (Hennigar) and a medical doctor (Skinner)
about how to proceed in Wilson’s case. 	See Eval. Notes, Am.
Compl., Ex. 4 (Doc. No. 13-4).
For the reasons stated, Wilson has failed to state an
Eighth Amendment claim for failure to train against defendants
Hanks, Edmark, Groblewski, and Skinner. 	Accordingly, the
district judge should dismiss Claim 2.
III. CT Scan (Claims 3 & 4)
A. 	Defendants Hennigar, Donahue, Skinner, and Groblewski
Applying the relevant factors to the facts alleged in the
amended complaint, the court concludes that Wilson has stated
sufficient facts for Claims 3 and 4 against Hennigar, Donahue,
Skinner, and Groblewski to survive initial review. 	In the Order
issued this date, the court has directed those defendants to
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 12 of 16

13
answer, or otherwise plead, with respect to Claims 3 and 4.
B. 	Defendants Currier and Englander
“It is well-settled that only those individuals who
participated in the conduct that deprived the plaintiff of his
rights can be held liable” under § 1983. 	Velez–Rivera v.
Agosto–Alicea, 437 F.3d 145, 146 (1st Cir.2006) (quotation marks
omitted). 	Wilson has failed to allege any facts from which it
can be inferred that defendant Englander had any role in
Wilson’s care, or decisions regarding Wilson’s care, related to
his broken jaw.
Wilson also has failed to allege any facts from which it
can be inferred that defendant Currier had any role in Wilson’s
care, or decisions regarding Wilson’s care, until after Wilson’s
April 10, 2019 appointment with the oral surgeon. 	Claims 3 and
4, however, allege Eighth Amendment violations that occurred
prior to that appointment with the oral surgeon.
In sum, Wilson has failed to state Eighth Amendment claims
against either defendant Englander or defendant Currier for
failure to order that Wilson have a CT scan before his April 10,
2019 appointment with the oral surgeon. 	Consequently, the
district judge should dismiss Claims 3 and 4 against defendants
Englander and Currier.
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 13 of 16

14
IV. 	Post-Surgery Care (Claim 5)
Applying the relevant factors to the facts alleged in the
amended complaint, the court concludes that Wilson has stated
sufficient facts for Claim 5 against defendant Currier to
survive initial review. 	In the Order issued this date, the
court has directed Currier to answer, or otherwise plead, with
respect to Wilson’s claim that she was deliberately indifferent
to his serious medical needs when she cancelled all his jaw-
related medical and/or dental appointments scheduled in the
first six months after his surgery.
V. 	Negligence (Claims 6 & 7)
Wilson claims defendants Hennigar, Donahue, and Skinner
misdiagnosed him, see Am. Compl. Add. (Doc. No. 14), at 1, and
that defendants Groblewski and Englander failed to ensure that
he was properly diagnosed, see Am. Compl. (Doc. No. 13), at 15 ¶
(2). 	Construing the complaint, liberally, as it must, see
Erickson, 551 U.S. at 94, the court considers Claims 6 and 7 as
alternative claims of medical negligence.
A plaintiff states a viable claim of medical negligence
under New Hampshire law by alleging that he suffered a medical
injury, proximately caused by a medical care provider’s failure
to provide care consistent with the standard of reasonable
professional practice at the time the care was rendered. 	See
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 14 of 16

15
Beckles v. Madden, 160 N.H. 118, 124, 993 A.2d 209, 214 (2010)
(citing RSA § 507-E:2).
Wilson alleges that because the defendants failed to order
a CT scan when the x-ray proved to be diagnostically
inconclusive, treatment of his jaw was delayed, making surgery
more difficult and the outcome less favorable. 	He alleges that
because of the delay and difficulty of the surgery, his jaw
remains misaligned and he continues to suffer from pain when he
eats.
Applying the relevant factors to the facts alleged in the
amended complaint, the court concludes that Wilson has stated
sufficient facts for Claim 6 against defendants Hennigar,
Donahue, and Skinner, and Claim 7 against defendant Groblewski
to survive initial review. 	In the Order issued this date, the
court has directed those defendants to answer, or otherwise
plead, with respect to Wilson’s claims that they were medically
negligent under state law.
Wilson has failed to allege any facts from which it can be
inferred that defendant Englander had any role in Wilson’s care,
or decisions regarding Wilson’s care, or that she owed him a
duty of care related to his jaw injury. 	As such, Wilson has
failed to state a medical negligence claim against Englander.
Consequently, the district judge should dismiss Claim 7 against
defendant Englander.
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 15 of 16

16
Conclusion
For the foregoing reasons, the district judge should
dismiss: 	Claim 1; Claim 2; Claims 3 and 4 against defendants
Amanda Currier and Celia Englander; and Claim 7 against
defendant Celia Englander. 	The district judge also should order
that defendants Helen Hanks, Michelle Edmark, and Celia
Englander be terminated as defendants in 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); Fed. R.
Civ. P. 72(b)(2).
________________________________
Andrea K. Johnstone
United States Magistrate Judge
July 17, 2020
cc: 	Jarrell Wilson, pro se
Case 1:19-cv-00786-JL Document 21 Filed 07/17/20 Page 16 of 16