Gray v. Englander et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. 	Case No. 20-cv-155-PB
Celia Englander et al.
REPORT AND RECOMMENDATION
Plaintiff Jeffrey Gray filed a pro se complaint pursuant to
42 U.S.C. § 1983 against seven current and former medical staff
of the New Hampshire Department of Corrections (“DOC”) when he
was incarcerated at the New Hampshire State Prison (“NHSP”). 1
Mr. Gray alleges that the defendants failed to adequately care
for his medical conditions in violation of the Eighth Amendment.
The complaint is before this court for preliminary review,
pursuant to 28 U.S.C. § 1915A(a) and Local Rule 4.3(d)(1).
Background
Mr. Gray became incarcerated at the NHSP in September 2012.
Later that month, he was transferred to the Northern New
Hampshire Correctional Facility (“NCF”). 	At some point, he was
1 The defendants are DOC physicians Dr. Celia Englander and
Dr. Jeffrey Fetter; former DOC Physical Therapist Bernadette
Campbell; and former DOC Nurse Practitioners Corina Neculai,
Lisa Savage, Diane Desmarais, and Judy Baker.
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transferred back to the NHSP, where he was incarcerated until
April 2020.
Mr. Gray suffers from chronic lower lumbosacral back pain
owing to an active-duty injury while he served in the U.S. Army
from 1979 until 1982. 	This condition, which was diagnosed by
Army physicians in 1981, and service-related stomach ulcers, led
the Department of Veterans Affairs to award him an unspecified
disability rating in 1981, which was increased to 20% in 2011.
In 2010, physicians at the VA Medical Center in Manchester,
New Hampshire diagnosed Gray with sleep apnea. 	They prescribed
him a CPAP machine to treat this condition.
During his initial medical evaluation at the NHSP in
September 2012, defendant Lisa Savage, then an NHSP nurse
practitioner, learned from Mr. Gray about his chronic lower back
pain, ulcers, and sleep apnea. 	Nurse Savage did not provide Mr.
Gray with a CPAP machine and denied his request for a referral
to the DOC’s pain management clinic.
Over the ensuing five years, Mr. Gray requested referrals
to the pain management clinic for his back pain on multiple
occasions from the prison’s medical staff, but his requests were
invariably denied. 	Specifically, defendant Judy Baker, then a
nurse practitioner at the NCF, denied Mr. Gray’s request in
November 2012; defendants Corina Neculai, then an NHSP nurse
practitioner, and Bernadette Campbell, then a physical therapist
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at the NHSP, denied his requests in November 2014; and defendant
Diane Desmarais, then a nurse practitioner at the NHSP, denied
his request in July 2016.
With respect to his sleep apnea, Mr. Gray was not provided
with a CPAP machine until March 2016. 	In the meantime, Mr. Gray
sought treatment for this condition from Dr. Celia Englander, an
NHSP physician, in April 2013, and from Nurse Neculai in
November 2014. 	Both providers refused to treat him.
At his November 2014 medical appointment, Mr. Gray also
complained to Nurse Neculai about hearing loss and tinnitus.
She denied his request for a referral to a physician to address
those health concerns. 	The DOC eventually consulted Dr. Mark
Carwell to evaluate Mr. Gray’s hearing. 	In February 2016, Dr.
Carwell diagnosed Gray with bilateral sensorineural hearing loss
and bilateral tinnitus aurium. 	He recommended that Mr. Gray be
fitted for hearing aids and to use “washing sounds” via
headphones or a similar device to protect his ears from noise
exposure. 	Dr. Carwell’s notes and recommendations were
forwarded to the DOC and became part of Mr. Gray’s medical
records. 	Nonetheless, in July 2016, Nurse Desmarais refused to
treat Mr. Gray’s hearing impairments.
Mr. Gray was finally referred to the pain management clinic
in September 2017. 	Dr. Carey Rodd treated Mr. Gray for his
chronic back pain until March 2018, when Dr. Rodd retired. 	Mr.
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Gray later saw defendant Dr. Jeffrey Fetter, a physician at both
the NHSP and NCF, in July 2018, but Dr. Fetter refused to treat
either Gray’s back condition or his hearing impairments.
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed by inmates seeking relief from government
employees or entities. 	See 28 U.S.C. § 1915A(a); LR 4.3(d)(1).
Claims may be dismissed if the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. 	See 28
U.S.C. § 1915A(b); LR 4.3(d)(1)(A). 	In considering whether the
complaint states a claim, the court determines whether, stripped
of legal conclusions, and with all reasonable inferences
construed in the plaintiff’s favor, the complaint contains
“sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” 	Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted).
Discussion
Mr. Gray claims that the defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment by
failing to provide him with adequate medical care for his
chronic lower back pain, sleep apnea, hearing loss, and
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tinnitus. 	The only relief he seeks is damages. 	Because Mr.
Gray does not specify otherwise, the court assumes that he is
suing the defendants both in their official and personal
capacities.
“Absent an explicit waiver from the state, the Eleventh
Amendment bars official capacity suits against state actors in
federal court unless the suit seeks prospective injunctive
relief.” 	Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003)
(internal quotation marks omitted). 	Mr. Gray does not seek
prospective injunctive relief, and there is no suggestion that
New Hampshire has waived its immunity for purposes of Mr. Gray’s
§ 1983 claims. 	Accordingly, the district judge should dismiss
Mr. Gray’s Eighth Amendment claims against the defendants to the
extent they are sued in their official capacities. 	See 28
U.S.C. § 1915(e)(2).
Mr. Gray’s personal-capacity claims must be evaluated under
the Eighth Amendment. 	See Ruiz-Rosa v. Rullan, 485 F.3d 150,
155 (1st Cir. 2007). 	To state a viable claim for
constitutionally inadequate medical care in prison, a plaintiff
must allege that prison officials displayed “deliberate
indifference to serious medical needs.” 	Estelle v. Gamble, 429
U.S. 97, 106 (1976). 	This standard has both an objective and a
subjective prong. 	Zingg v. Groblewski, 907 F.3d 630, 635 (1st
Cir. 2018). 	The objective prong requires the plaintiff to
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allege that he had a serious medical need “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.” 	Kosilek v. Spencer, 774
F.3d 63, 82 (1st Cir. 2014) (en banc) (internal quotation marks
omitted). 	Under the subjective prong, the plaintiff must allege
facts showing that the defendant had “a sufficiently culpable
state of mind . . . that amounts to deliberate indifference to
[his] health or safety.” 	Zingg, 907 F.3d at 635. 	“The obvious
case would be a denial of needed medical treatment in order to
punish the inmate.” 	Watson v. Caton, 984 F.2d 537, 540 (1st
Cir. 1993). 	But “wanton” or criminal recklessness in the
treatment provided will also suffice, which requires a showing
that the defendant had “actual knowledge of impending harm,
easily preventable, and yet failed to take the steps that would
have easily prevented that harm.” 	Zingg, 907 F.3d at 635
(internal quotation marks and citation omitted). 	Such a showing
may be made by demonstrating that the defendant provided medical
care that was “so inadequate as to shock the conscience.”
Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 162 (1st Cir.
2006) (internal quotation marks omitted). 	In other words, the
care received must be “so clearly inadequate as to amount to a
refusal to provide essential care.” 	Torraco v. Maloney, 923
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F.2d 231, 234 (1st Cir. 1991) (internal quotation marks
omitted).
The court finds that Gray has stated sufficient facts to
allow the personal capacity Eighth Amendment claims Mr. Gray
asserts to proceed at the preliminary review stage. 	First,
because he has alleged that his medical conditions were
diagnosed by physicians as requiring treatment, he has plausibly
stated the objective prong of the deliberate indifference test.
Second, he has alleged facts showing that each defendant refused
to treat one or more of his conditions, such that their
treatment, or lack thereof, was “so clearly inadequate as to
amount to a refusal to provide essential care.” 	Id. at 234
(internal quotation marks omitted). 	Accordingly, in an Order
issued simultaneously with this Report and Recommendation
(“R&R”), the court directs service of the complaint with respect
to the Eighth Amendment claims asserted against the defendants
in their personal capacities.
Conclusion
For the foregoing reasons, the district judge should
dismiss Mr. Gray’s Eighth Amendment claims to the extent they
are asserted against the defendants in their official
capacities. 	Any objection to this R&R must be filed within 14
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
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The 14-day period may be extended upon motion. 	Failure to file
a specific written objection to this R&R within the specified
timeframe 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
June 24, 2021
cc: 	Jeffrey M. Gray, pro se
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