Fortune v. NH Department of Corrections, Medical Director et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Fortune
v. 	Case No. 23-cv-286-LM
New Hampshire Department of
Corrections Director of Medical Services
and Director of Dental Services
REPORT AND RECOMMENDATION
Before the court is New Hampshire Department of Corrections
(“DOC”) prisoner John Fortune’s filing (Doc. No. 1), construed
to be the complaint in this action, which is here for
preliminary review under 28 U.S.C. § 1915A and LR 4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of complaints filed
by prisoners seeking relief from government agents. 	See LR
4.3(d)(1); see also 28 U.S.C. § 1915A. 	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) (citation omitted). 	Claims may
be dismissed, sua sponte, 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
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U.S.C. § 1915A(b); LR 4.3(d)(1)(A). 	Because Mr. Fortune is
proceeding pro se, the court construes his filings liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
Mr. Fortune asserts that he is a prisoner with dental
health problems at the Northern New Hampshire Correctional
Facility (“NCF”), where there is no regular dentist. 	Mr.
Fortune asserts he has twice had an infection in the same tooth
over the last several months and that he suffers severe pain.
He has been told that his tooth must come out. 	He asserts that
his appointments have been cancelled, and he has received no
notice of new appointments, and that the delay in treating his
tooth has resulted from the lack of a regular dentist at NCF.
The defendants named here are supervisory prison officials
who are responsible for medical and dental health services for
NCF prisoners. 	The Complaint asserts that Mr. Fortune grieved
his claim to them about his painful, infected tooth, his
prescribed need for an extraction, and the delay in scheduling
that procedure for him. 	Construed liberally, the complaint
alleges that the defendants knew about his serious dental health
needs and have not taken the steps needed to ensure he is seen
by a dentist who can perform the extraction that has been
prescribed, resulting in continuing pain and recurrent
infections in that tooth.
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Mr. Fortune’s complaint asserts the following Eighth
Amendment claim for relief under 42 U.S.C. § 1983:
1. 	The Defendant prison officials have violated Mr.
Fortune’s Eighth Amendment rights, in that -- with
deliberate indifference to the delay in treating Mr.
Fortune’s serious dental health needs -- they have failed
to ensure that a dentist is available to extract his
diseased tooth or otherwise provide him with treatment for
his serious dental health needs, relating to that tooth.
The relief requested includes an injunction, directing
defendants (in their official capacities) to arrange for dental
surgery for Mr. Fortune’s diseased tooth or other necessary
treatment for his serious dental health needs relating to that
tooth. 	The court construes the complaint liberally as also
requesting damages.
Discussion
I. 	Eighth Amendment
A. 	Standard
“[T]he treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny
under the Eighth Amendment.” 	Abernathy v. Anderson, 984 F.3d 1,
6 (1st Cir. 2020) (citations omitted). 	The Eighth Amendment
requires prison officials to provide humane conditions of
confinement, including medical services and dental health care.
See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Board v.
Farnham, 394 F.3d 469, 480 (7th Cir. 2005) (“‘dental care is one
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of the most important medical needs of inmates’” (citation
omitted)).
An Eighth Amendment claim challenging the adequacy of
prison health care services, including dental care, has both an
objective and a subjective component. 	See Wilson v. Seiter, 501
U.S. 294, 298 (1991). 	“[T]he deprivation alleged must be,
objectively, ‘sufficiently serious.’” 	Farmer, 511 U.S. at 834
(citations omitted). 	The objective component may be established
by evidence of a health 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.” 	Miranda-Rivera v. Toledo-Dávila, 813 F.3d
64, 74 (1st Cir. 2016). 	“[D]ental pain accompanied by various
degrees of attenuated medical harm may constitute an objectively
serious medical need.” 	Board, 394 F.3d at 480 	(citing cases
regarding, among other things, “deterioration of teeth due to
lack of treatment”)).
To prevail on an Eighth Amendment claim, a prisoner must
also present evidence of the defendant’s culpable state of
mind. 	See Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir.
2014). 	A showing of 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, the prisoner must demonstrate that
defendants were aware of facts that gave rise to an inference
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that a substantial risk of serious harm existed; defendants drew
the inference that such a risk existed; and defendants, by act
or omission, did not take reasonable steps to ameliorate the
risk. 	See id. at 828-29; Leite v. Bergeron, 911 F.3d 47, 52–53
(1st Cir. 2018).
“‘Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.’” 	Kosilek,
774 F.3d at 83 (citation omitted). 	A showing of a defendant’s
inadvertence or negligence is insufficient to satisfy the
subjective component of an Eighth Amendment claim. 	See
id.; Ruiz–Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007)
(“substandard 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” (internal citations and quotation marks omitted)).
B. 	Supervisory Liability & Claim 1
A federal civil rights statute, 42 U.S.C. § 1983, provides
a cause of action for Mr. Fortune’s Eighth Amendment
claim. 	“Generally, a supervisor cannot be held liable under
§ 1983 on a respondeat superior theory.” 	Justiniano v. Walker,
986 F.3d 11, 20 (1st Cir. 2021). 	In other words, Ҥ 1983
liability cannot rest solely on a defendant’s position of
authority.” 	Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 19
(1st Cir. 2014). 	The liability of a supervisor must be based on
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his or her own actions or inactions that caused the violation,
or on a showing that his or her conduct “‘led inexorably to’” a
subordinate’s violation of the plaintiff’s constitutional
rights. 	Justiniano, 986 F.3d at 20 (citation omitted).
“‘Deliberate indifference alone does not equate with supervisory
liability,’ but rather ‘causation is also an essential element,
and the causal link between a supervisor’s conduct and the
constitutional violation must be solid.’” 	Id. (internal
citations and brackets omitted).
Here, Claim 1 premises defendants’ liability on their
alleged deliberate indifference to the delay in treating Mr.
Fortune’s serious dental health needs. 	The facts alleged in the
Complaint, including Mr. Fortune’s allegations concerning his
diagnosed condition, his grievances, the delayed treatment, and
the lack of a regular dentist at NCF, appear sufficient to state
an Eighth Amendment deliberate indifference claim upon which
relief can be granted as to the supervisory defendants
responsible for arranging for dental services. 	Accordingly, in
the Order issued this date, the court directs service upon the
defendants and directs them to file an answer or other response
to the Complaint, with respect to Claim 1, as summarized in this
Report and Recommendation.
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II. 	Eleventh Amendment
The Complaint does not specify whether and to what extent
damages are requested in this action. 	In the Order issued this
date, the court has directed service upon defendants in their
official capacities as to the claim for injunctive relief and in
their individual capacities as to the claim for damages. 	The
Eleventh Amendment precludes a claim for damages against
defendants in their official capacities. 	See Davidson v. Howe,
749 F.3d 21, 27-28 (1st Cir. 2014). 	Accordingly, the district
judge should dismiss any request for damages asserted against
defendants in their official capacities, to the extent such
damages are sought.
Conclusion
For the foregoing reasons, the district judge should
dismiss the official capacity claims for damages in this action.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	Fed. R. Civ. P.
72(b)(2). 	The fourteen-day period may be extended upon motion.
Failure to file any objection 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). 	Only those issues raised in the written objections to
this Report and Recommendation “‘are subject to review in the
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district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” 	Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
May 25, 2023
cc: 	John Fortune, pro se
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