Johnson v. Englander et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jacob William Johnson
v. Case No. 20-cv-398-SE
Dr. Celia Englander et al.
REPORT AND RECOMMENDATION
Jacob William Johnson, a Florida prisoner currently being
housed by the New Hampshire Department of Corrections (“DOC”),
filed this action pursuant to 42 U.S.C. § 1983, alleging that
the defendants violated his rights under federal and state law
while he was housed at the New Hampshire State Prison for Men
(“NHSP”).1 Defendant Tina Crissfulli, who Mr. Johnson describes
as a registered nurse, moves for dismissal of the single claim
asserted against her, under Federal Rule of Civil Procedure
12(b)(6). See Doc. No. 95. Mr. Johnson objects. See Doc. No.
99.
1 At the time of the events underlying this action, Mr.
Johnson was a Florida Department of Corrections (“FDOC”)
prisoner serving his sentence at the NHSP. The FDOC website
indicates that Mr. Johnson was placed on supervised release, in
Florida, on April 27, 2022. See FDOC Supervised Population
Information Search, www.dc.state.fl.us/offenderSEarch/
detail.aspx?Page=Detail&DCNumber=Q61472&TypeSearch=AO, last
visited Sept. 11, 2023.
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 1 of 10

2
The motion to dismiss has been referred to the undersigned
Magistrate Judge for a recommendation as to disposition. See
Order, Aug. 25, 2023. For the reasons that follow, the District
Judge should deny the motion to dismiss.
Motion to Dismiss Standard
To survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), “a complaint must provide ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,’” with “enough factual detail to make the
asserted claim ‘plausible on its face.’” Legal Sea Foods, LLC
v. Strathmore Ins. Co., 36 F.4th 29, 33 (1st Cir. 2022)
(quoting, inter alia, Fed. R. Civ. P. 8(a)(2) and Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
The court’s assessment of plausibility “is ‘a context-
specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Cebollero-Bertran v.
P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 70 (1st Cir. 2021)
(quoting Iqbal, 556 U.S. at 679). To make the plausibility
determination, the court “accept[s] as true all well-pleaded
facts alleged in the complaint and draw[s] all reasonable
inferences therefrom in the [plaintiff]’s favor,” but “credit[s]
neither conclusory legal allegations nor factual allegations
that are too meager, vague, or conclusory to remove the
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 2 of 10

3
possibility of relief from the realm of mere conjecture.” Legal
Sea Foods, 36 F.4th at 33 (quotations omitted). Because Mr.
Johnson is representing himself in this matter, the court
construes his pleadings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam).
Background
I. Factual Allegations
Mr. Johnson has a urological condition known as a “false
passage” in his penis. Doc. No. 1 at 14 (capitalization
omitted). As a result, “[t]he primary passage in [his] urethra
is prone to frequent blockage which requires that [he] use a
catheter to empty [his] bladder.” Id. Mr. Johnson asserts
that, if left unresolved, urinary retention can become acute and
result in a medical emergency and/or a urinary tract infection
(“UTI”).
During the time relevant to this matter, Mr. Johnson
initially used a Foley catheter which had to be changed by
medical personnel at least once every thirty days, according to
Mr. Johnson’s urologist’s instructions. Improper administration
of his Foley catheter “can lead to acute urinary retention
(overfull bladder) and urinary tract infection.” Id. At some
point during his incarceration, Mr. Johnson stopped using a
Foley catheter and instead used disposable catheters which
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 3 of 10

4
allowed him to empty his bladder without medical assistance.
Mr. Johnson claims that, according to his urologist, he needed
six disposable catheters per day while at the NHSP.
Germane to the pending motion, Mr. Johnson alleges that
NHSP medical staff members, including Nurse Crissfulli, failed
to treat his urinary tract issues properly and adequately,
causing aggravation of his urinary tract conditions, infections,
and extreme pain. Mr. Johnson asserts that on August 26, 2017,
he went to the NHSP medical department for an emergency with his
Foley catheter, as it was plugging up and causing leakage. Mr.
Johnson saw Nurse Crissfulli at the NHSP medical department.
Nurse Crissfulli would not allow Mr. Johnson to demonstrate how
his catheter was leaking and did not provide him with any care
for his urinary tract problem, which was diagnosed the following
day as a UTI. Also present was Nurse Brad Bowden, who assisted
Nurse Crissfulli and physically examined Mr. Johnson.
II. Claims Asserted Against the Defendant
The undersigned Magistrate Judge conducted a preliminary
review of the original, pre-supplemented version of Mr.
Johnson’s complaint (Doc. No. 1), see 28 U.S.C. § 1915A(a) and
LR 4.3(d)(1), and identified the following claim as having been
asserted against Nurse Crissfulli in her individual capacity:
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 4 of 10

5
[O]n August 26, 2017, when Mr. Johnson went to the NHSP
medical department for “an emergency with [his] Foley
catheter which was plugging up resulting in leakage,”
Compl. at 25, [DOC/NHSP Nurse Crissfulli] would not let
Mr. Johnson demonstrate how his catheter was leaking or
provide adequate care for his urinary tract problem,
which was diagnosed the following day as a UTI.
Dec. 15, 2021 Report and Recommendation (Do. No. 7, at 8),
approved by Jan. 11, 2023 Order (Doc. No. 71); see also Dec. 15,
2021 Order (directing service of the complaint upon defendants,
including Nurse Crissfulli).2
Nurse Crissfulli moves for dismissal under Fed. R. Civ. P.
12(b)(6), asserting that Mr. Johnson has failed to state a claim
against her upon which relief may be granted. Specifically,
Nurse Crissfulli argues that the complaint does not allege that
she acted or failed to act in a manner which violated Mr.
Johnson’s Eighth Amendment rights. Instead, Nurse Crissfulli
alleges, she was simply present during an exam performed by
another healthcare provider.
Discussion
2 In his original complaint, Mr. Johnson also alleged
conduct by Nurse Crissfulli that, he argued, violated his Eighth
Amendment right not to be subjected to cruel and unusual
punishment by verbally abusing and harassing him. The Court
dismissed that claim by Order dated January 11, 2023. See Doc.
No. 71 (approving Dec. 19, 2022 R&R (Doc. No. 68)).
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 5 of 10

6
To state an Eighth Amendment claim upon which relief may be
granted based upon a prisoner’s alleged denial of adequate
medical care, the plaintiff must assert facts to demonstrate
that he has a serious medical need requiring treatment, and that
he was denied such treatment by a defendant acting with
deliberate indifference to his serious medical need. See
Abernathy v. Anderson, 984 F.3d 1, 3 (1st Cir. 2020). This
standard has both an objective and a subjective prong. Zingg v.
Groblewski, 907 F.3d 630, 635 (1st Cir. 2018).
To satisfy the objective prong, a plaintiff must allege
that he had a serious medical need. A serious medical need is
one that is diagnosed by a physician as mandating treatment, or
that is “so obvious that a lay person would easily recognize the
necessity for a doctor’s attention.” Snell v. Nelville, 998
F.3d 474, 495 (1st Cir. 2021) (quotation omitted).3
As to the subjective prong, “[d]eliberate indifference
appears when defendants had a ‘sufficiently culpable state of
mind’ by ignoring (or worsening) the inmate’s serious medical
3 While Nurse Crissfulli challenges Mr. Johnson’s allegation
that he suffered injury as a result of her omissions, as alleged
by Mr. Johnson, Nurse Crissfulli does not argue that Mr. Johnson
failed to state facts showing that he had a serious medical
need, per the applicable standard set forth below. In
particular, Nurse Crissfulli does not contest that Mr. Johnson
requires the use of a catheter or that he experienced leakage on
the date alleged. Accordingly, the Court focuses on the
subjective prong of the Eighth Amendment deliberate indifference
standard.
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 6 of 10

7
need.” Id. at 497 (quoting Farmer v. Brennan, 511 U.S. 825 834
(1994)). Deliberate indifference is “more than negligence, . .
. yet it need not be intentional harm. The defendants must have
known of the risk of harm to the plaintiff and disregarded it.”
Id. (quotation and citation omitted).
A showing of a defendant’s deliberate indifference to a
substantial risk of serious harm satisfies the subjective prong
of an Eighth Amendment claim. See Farmer, 511 U.S. at 834. To
establish deliberate indifference, an inmate must assert facts
which demonstrate that: the defendant was aware of facts that
gave rise to an inference that a substantial risk of serious
harm existed; the defendant drew the inference that such a risk
existed; and the defendant, by act or omission, failed to take
reasonable steps to reduce or eliminate the risk. See id. at
828-29.
Liberally construing Mr. Johnson’s filings, the Court finds
that he asserts facts to demonstrate that, on August 26, 2017,
he went to the NHSP medical department for an emergency with his
Foley catheter. Mr. Johnson has asserted that Nurse Crissfulli,
despite being aware of his urinary tract problems, and having
been informed by Mr. Johnson that his Foley catheter was
“plugging up resulting in leakage,” Doc. No. 1 at 25, refused to
allow him to demonstrate leakage from his catheter, and
consequently failed to provide him with adequate care for his
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 7 of 10

8
condition. Indeed, Mr. Johnson was diagnosed with a UTI the
following day. At this stage of the proceedings, those facts
state an Eighth Amendment claim upon which relief might be
granted alleging that Nurse Crissfulli was deliberately
indifferent to Mr. Johnson’s serious medical needs when she
denied him medical care for those needs on August 26, 2017.
Mr. Johnson’s complaint sufficiently details that Mr.
Johnson informed Nurse Crissfulli that his catheter was
“plugging up resulting in leakage.” Indeed, Mr. Johnson
indicates that he begged Nurse Crissfulli to allow him to
demonstrate the problem. Mr. Johnson alleges that Nurse
Crissfulli refused any demonstration or additional detail from
Mr. Johnson and did not provide further medical care. Rather,
Nurse Crissfulli conferred with Nurse Bowden and affirmed his
dismissal of Mr. Johnson’s concerns. While brief, Mr. Johnson’s
account adequately pleads a claim alleging that Nurse Crissfulli
was deliberately indifferent to his medical emergency by failing
to provide adequate care. See Leite v. Bergeron, 911 F.3d 47,
52 (1st Cir. 2018) (“Deliberate indifference … is satisfied by …
omissions … with knowledge that harm will result.” (quotations
omitted)).
Nurse Crissfulli relies on the fact that Nurse Bowden
examined Mr. Johnson on the date in question to argue that her
presence during the examination does not amount to an Eighth
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 8 of 10

9
Amendment violation. Mr. Johnson, however, alleged in his
complaint that Nurse Bowden, in Nurse Crissfulli’s presence,
denied him adequate medical care for his serious medical
condition. The fact that another nurse is also alleged to have
denied Mr. Johnson adequate medical care does not mitigate, at
this stage of the proceedings, Nurse Crissfulli’s alleged
indifference to Mr. Johnson’s request for medical care for his
serious medical need.
Conclusion
For the foregoing reasons, the District Judge should deny
Nurse Crissfulli’s motion to dismiss (Doc. No. 95). 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.
Only those issues raised in the objection(s) to this Report
and Recommendation are subject to review in the district court.
See Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554,
564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
specific written objections to the Report and Recommendation
within the specified time waives the right to appeal the
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 9 of 10

10
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
September 11, 2023
cc: Jacob William Johnson, pro se
Pamela L.P. Eaton, Esq.
Stephen J. Soule, Esq.
Lawrence Gagnon, Esq.
Nathan W. Kenison-Marvin, Esq.
Case 1:20-cv-00398-SE-AJ Document 103 Filed 09/11/23 Page 10 of 10