Griffin v. Hillsborough County Department of Corrections, Superintendent et al
ORDER Directing US Marshal to Make Service. Clerk's office shall issue the summonses for Superintendent Dionne, Dr. Masewic and Nurse Ryan, and complete and issue a summons for Hillsborough County; and forward same with co pies of Complaint, complaint addenda and this order to US Marshal's Office to be served on each individual defendant. All claims will be dismissed against Omni Health Care Co. unless plaintiff files an amended complaint as outlined in this order. Defendants may file an objection to plaintiff's request for preliminary injunctive relief w/i 30 days of the date of this order. So Ordered by Judge Steven J. McAuliffe.(jab)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
John R. Griffin, Jr.
Case No. 13-cv-539-SM
Opinion No. 2014 DNH 019
Hillsborough County Department of
Corrections, Superintendent, et al.1
O R D E R
Before the court is John Griffin’s complaint (doc. no. 1),
and complaint addenda (doc. nos. 7, 11, and 13).
Griffin is a
pretrial detainee at the Hillsborough County House of Corrections
(“HCHC”), awaiting trial in a state criminal matter.
alleges that defendants have denied him constitutionally adequate
medical care for persistent swelling in his right knee and for
recurrent kidney stone attacks.
In the complaint and in a
complaint addendum (doc. nos. 1 and 13), Griffin has requested
preliminary injunctive relief with respect to both conditions.
The complaint is before the court for preliminary review
pursuant to 28 U.S.C. § 1915A, to determine if plaintiff has
stated any claim upon which relief can be granted.
Plaintiff names the following defendants: Hillsborough
County Department of Corrections (“HCDC”) Superintendent David
Dionne, HCDC Health Services Administrator Nurse Denise Ryan, Dr.
Matthew Masewic, Hillsborough County, and Omni Health Care Co.
for preliminary injunctive relief, set forth in the pleadings,
are before the court to determine if further proceedings are
Since Griffin’s arrival at the HCHC in September 2013, he
alleges he has suffered three kidney stone attacks, most recently
on January 16, 2014.
The most recent attack, Griffin alleges,
caused agonizing, intense pain, and also involved nausea,
vomiting, chills, fever, blocked urinary output, and blood in
Griffin’s urine when he passed the stone eight hours later.
Griffin further asserts that the failure to provide him with
treatment for the January 16 kidney stone attack, other than a
small cup of Advil and Tylenol (which he vomited up), for the
eight-hour duration of the attack, caused him to suffer
excruciating pain unnecessarily, and put him at a heightened risk
of a urinary tract infection.
Griffin alleges that he has a history of right knee
swelling, and that the problem has recurred and persisted at the
HCHC, without adequate treatment, since October 2013.
asserts that the HCHC physician, Dr. Masewic, examined his knee
in October 2013, and ordered that it be treated only by wrapping
with a tight bandage, which Griffin asserts worsened his pain.
When Griffin asked the defendant doctor to aspirate excess joint
fluid — a procedure Griffin characterizes as standard, effective,
and inexpensive — Dr. Masewic refused to do so, citing a need for
prior approval by the Hillsborough County Board of Commissioners.
Griffin claims that HCHC Nurse Denise Ryan has delayed his
receipt of adequate treatment, and deemed Griffin’s decision to
loosen the over-tight bandage as evidence of noncompliance with
Griffin alleges that defendants have not
provided any follow-up diagnostic procedures or treatment for
Griffin’s knee since October 2013, which has caused him to suffer
from persistent swelling, an increased risk of joint infection,
loss of function, and permanent joint damage, in his knee.
Griffin further alleges that Ryan and HCHC Superintendent
David Dionne told Griffin that his health and pain complaints
could not be treated until the HCHC received records from outside
providers to substantiate that Griffin has a history of kidney
stones and knee problems.
Griffin alleges that the HCHC has not
been diligent in obtaining his past medical records, and he
further alleges that such records were in his HCHC file on
January 16, 2014, when his most recent attack was treated only
with ineffective pain relievers that he could not hold down.
characterizes the missing records rationale as elevating a
clerical concern over proper patient-specific treatment
considerations for serious health problems.
Griffin asserts the following claims in this action:
Defendants violated Griffin’s right to humane
conditions of pretrial confinement, under the
Fourteenth Amendment Due Process Clause, in that, with
deliberate indifference to Griffin’s serious medical
A. interfered with medical decision-making and/or
interposed non-medical reasons, including an
interest in cost-savings, for delaying or denying
care for Griffin’s swollen knee and kidney stones,
by invoking –
(i) the policy of requiring inmate health
and pain complaints to be substantiated by
outside medical records before treatment is
(ii) the policy of requiring prior approval
by the Hillsborough County Board of
Commissioners before an inexpensive,
effective diagnostic and treatment procedure
would be provided for Griffin’s knee;
B. failed diligently to acquire Griffin’s medical
records from outside providers, thereby delaying
Griffin’s receipt of care for his knee and kidney
C. refused to allow Griffin to see outside care
providers, thereby delaying or denying Griffin
care for his knee and kidney stones;
D. used cursory sick call procedures and nurse
visits when Griffin complained of health and pain
problems, thereby delaying his receipt of care for
his knee and kidney stones;
E. responded perfunctorily to Griffin’s grievance
about the lack of treatment for his knee since
October 2013, thereby delaying or denying
Griffin’s receipt of care for his knee problem;
F. delayed or denied adequate treatment for
Griffin’s recurrent kidney stone attacks; and
G. delayed or denied adequate diagnostic or
treatment procedures for Griffin’s swollen right
Defendants are liable for medical malpractice
under state law, based on the same allegations giving
rise to Griffin’s federal inadequate medical care
Preliminary Review Standard
The court undertakes a preliminary review of Griffin’s
complaint, pursuant to 28 U.S.C. § 1915A, to determine whether
the action may proceed.
In determining whether a pro se
complaint states a claim, the court construes the complaint
See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Disregarding any legal conclusions, the court considers whether
the factual content in the complaint and inferences reasonably
drawn therefrom, taken as true, state a facially plausible claim
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st
Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Fourteenth Amendment Medical Care Claim
“[T]he standard applied under the Fourteenth Amendment
[governing the claims of pretrial detainees],” concerning
inadequate medical care, “is the same as the Eighth Amendment
standard [governing the claims of convicted inmates].”
v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 n.21 (1st Cir.
2011) (internal quotation marks and citation omitted).
to state such a claim, an inmate must allege that defendants have
committed “acts or omissions . . . sufficiently harmful to
evidence deliberate indifference to serious medical needs.”
To act, or fail to act, with deliberate indifference,
“‘the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.’”
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
The facts alleged
in the complaint as to defendant Dr. Masewic warrants service of
the Fourteenth Amendment inadequate medical care claim, relating
to Griffin’s knee and kidney stones.
Accordingly, the court
directs service of those claims as to that defendant in his
To state a plausible claim of liability under 42 U.S.C.
§ 1983, with respect to Nurse Ryan and Superintendent Dionne in
their supervisory capacities, Griffin must allege facts to show
that each supervisory official’s own acts or omissions
constituted “‘supervisory encouragement, condonation or
acquiescence[,] or gross negligence . . . amounting to deliberate
indifference’” to his constitutional rights.
Grajales v. P.R.
Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012) (citation omitted).
The facts alleged in the complaint as to those defendants warrant
service of the Fourteenth Amendment inadequate medical care
claims, relating to Griffin’s knee and kidney stones.
“[A] plaintiff who brings a section 1983 action against a
municipality bears the burden of showing that, through its
deliberate conduct, the municipality was the moving force behind
the injury alleged.
Such a plaintiff must identify a municipal
policy or custom that caused the plaintiff’s injury.”
City of Boston, 657 F.3d 39, 51 (1st Cir. 2011) (citations,
emphasis, and internal quotation marks omitted).
alleged by Griffin as to the policies interposed by defendants to
delay or deny treatment of Griffin’s knee and kidney stones
warrant service of his claims against Hillsborough County, and
Dr. Masewic, Nurse Ryan, and Superintendent Dionne, all in their
III. Medical Malpractice
This court has supplemental jurisdiction over the state law
claims that arise out of the same case or controversy as the
section 1983 claims.
See 28 U.S.C. § 1367.
Under state law, a
plaintiff states a viable claim of medical malpractice in
alleging that he suffered injuries proximately caused by a doctor
or nurse’s failure to provide care consistent with the standard
of reasonable professional practice at the time the care was
See Beckles v. Madden, 160 N.H. 118, 124, 993 A.2d
209, 214 (2010) (citing N.H. Rev. Stat. Ann. 507-E:2). Taking as
true all facts alleged in the complaint and the reasonable
inferences drawn therefrom, the court finds that Griffin has
stated sufficient allegations of medical malpractice to warrant
service of that claim upon Nurse Ryan and Dr. Masewic, and their
employer, Hillsborough County, with respect to the delay or
denial of adequate treatment for his kidney stone attacks and
persistent swollen knee.
Omni Health Care Co.
Griffin has named “Omni Health Care Co.” as a defendant but
has failed to allege any facts establishing a basis upon which it
may be held liable on any claim in this case.
The complaint and
complaint addenda (doc. nos. 1, 11 and 13) thus fail to state any
plausible claim for relief against that defendant.
The clerk’s office shall issue the summonses in the record
for Superintendent David Dionne, Dr. Matthew Masewic, and Nurse
Denise Ryan, using the HCHC’s address for service, and the
clerk’s office shall also complete and issue a summons for
The clerk’s office shall forward to the
United States Marshal for the District of New Hampshire (“U.S.
Marshal’s office”): the summonses; the complaint (doc. no. 1);
the complaint addenda (doc. nos. 7, 11, and 13); and this order.
Upon receipt of the necessary documentation, the U.S. Marshal’s
office shall serve each individual defendant, pursuant to Fed. R.
Civ. P. 4(c)(3) and 4(e), and the county pursuant to Fed. R. Civ.
For the foregoing reasons, the court issues the following
The complaint shall be served against Hillsborough
County and Defendants Superintendent Dionne, Nurse Ryan, and
Dr. Masewic, in their individual and official capacities, in
accordance with this order.
All claims against Omni Health Care Co. will be
dismissed, and that defendant will be dropped from this
lawsuit, unless Griffin, within the time allowed for filing
an amended complaint in this lawsuit, alleges facts to state
a plausible claim for relief against Omni Health Care Co.,
arising out of the same case or controversy as the remaining
claims in this lawsuit.
The remaining defendants, Hillsborough County,
Superintendent Dionne, Nurse Ryan, and Dr. Masewic, shall
answer or otherwise plead within twenty-one days of service.
See Fed. R. Civ. P. 12(a)(1)(A).
No later than the date on which Defendant
Superintendent Dionne files his response to the complaint,
defendants shall serve upon Griffin a complete copy of
Griffin’s HCHC medical file, including all medical records
obtained from outside providers.
Defendants may file an objection to Griffin’s
request for preliminary injunctive relief, set forth in the
complaint (doc. no. 1) and in the complaint addendum (doc.
no. 13), within thirty days of the date of this order.
Along with any such objection, defendants shall file:
An affidavit indicating the date on which HCHC
requested and received medical records, if any, from
outside providers, relating to Griffin’s kidney stone
and swollen right knee complaints;
Affidavits of responsible HCHC health care
providers, detailing the steps taken to diagnose and
treat Griffin’s knee and kidney stone complaints; and
Affidavits of responsible HCHC officials and
health care providers detailing — (i) the care Griffin
is currently receiving for his kidney stone complaints
and knee problems; and (ii) the plan, if any, for
further diagnostic procedures or treatment to be
implemented at or upon the direction of the HCHC, to
address those issues, specifying the time frame during
which such procedures or treatment will be provided.
Griffin may file a reply to defendants’ objection
within fourteen days from the date of service of that
objection, addressing only those issues raised in
defendants’ objection, affidavits, and exhibits, and citing,
where appropriate, documents from Griffin’s medical records.
The court will determine whether to schedule a
hearing on Griffin’s request for preliminary injunctive
relief upon receipt of the parties’ submissions.
Steven J. McAuliffe
United States District Judge
January 30, 2014
John R. Griffin, Jr., pro se