GAGNON v. CORRECT CARE SOLUTIONS
REPORT AND RECOMMENDED DECISION re 41 MOTION for Summary Judgment filed by CORRECT CARE SOLUTIONS. Objections to R&R due by 10/6/2017. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SCOTT GAGNON, a/k/a
CORRECT CARE SOLUTIONS,
RECOMMEDED DECISION ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff Scott Gagnon, also known as Missy Gagnon, alleges that
Defendant Correct Care Solutions acted with deliberate indifference to Plaintiff’s serious
medical needs while Plaintiff was incarcerated at the Maine Correctional Center.
The matter is before the Court on Defendant’s motion for summary judgment. (ECF
No. 41.) Defendant filed its motion on July 17, 2017. Plaintiff has not filed a response to
Following a review of the summary judgment record, and after consideration of
Defendant’s motion,2 I recommend the Court grant the motion.
Court mail sent to Plaintiff in July and August to Plaintiff’s last known address has been returned as
undeliverable. Plaintiff has not contacted the Court to update her contact information or for any other
purpose since March 2017.
Although Plaintiff has not filed a response in opposition to Defendant’s motion as required by Local
Rules 7 and 56, the Court “may not automatically grant a motion for summary judgment simply because
the opposing party failed to comply with a local rule requiring a response within a certain number of days.”
NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 – 8 (1st Cir. 2002). Instead, courts must assess whether the
The record establishes that beginning in 2012, Defendant has maintained a Gender
Identity Disorder/Gender Dysphoria Policy. The Gender Dysphoria Policy J-G-02a is
intended to ensure that individuals who are experiencing gender dysphoria issues are
appropriately treated. (Id. ¶ 2.)
Defendant follows the World Professional Association for Transgender Health
guidelines regarding the treatment of gender dysphoria. (Id. ¶ 3.) The guidelines provide
standards for the health care of transgender individuals. The standards are designed to
provide clinical guidance for health care professionals in treating transgender individuals.
(Id. ¶ 4.)
Pursuant to the policy, when a transgender individual requests an evaluation or
medical accommodation, Defendant begins an evaluation process. (Id. ¶ 5.) The process
initially involves the review of records from community providers and the completion of a
psychological evaluation, which could include a clinical interview, mental status exam,
psychological assessment, cognitive assessment and the development of treatment
recommendations. (Id. ¶ 6.)
Defendant also has a Gender Dysphoria Committee that provides consultation
regarding treatment available for individuals with gender dysphoria. (Id. ¶ 7.) Defendant
has a multidisciplinary team that develops an initial treatment plan for discussion with the
Gender Dysphoria Committee. (Id. ¶ 8.) After the implementation of an individualized
moving party has shown “that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
treatment plan, the multidisciplinary team meets periodically to assess the effectiveness of
the treatment. (Id. ¶ 10.)
Upon intake at the Maine State Prison on January 29, 2013, Plaintiff identified as a
transgender person. (Defendant’s Statement of Material Facts ¶ 11, ECF No. 43.) Plaintiff,
however, did not notify Defendant until April 2015 that she wished to be treated for issues
related to gender identity. (Id. ¶ 13.) A mental health care provider met with Plaintiff on
April 16 and 23, 2015, during which meetings the clinician and Plaintiff discussed issues
related to Plaintiff’s gender identity. (Id. ¶ 14.) On June 2, 2015, Plaintiff requested an
evaluation for gender dysphoria. (Id. ¶ 16.) Plaintiff was seen and evaluated in June 2015,
and subsequently, she began counseling with Dr. Sarah Miller. (Id. ¶ 17.) Dr. Miller
conducted an extensive clinical interview and follow-up testing, which resulted in a
diagnosis of gender dysphoria on July 22, 2015. (Id. ¶¶ 19, 20, 23.) Following the
diagnosis, Defendant convened a multidisciplinary team to develop a treatment plan. (Id.
On October 8, 2015, when the treatment team met with Plaintiff to discuss the
treatment plan and objectives, Plaintiff agreed to participate. (Id. ¶¶ 33 – 34.) Through a
dialogue in November and December, Plaintiff expressed her objectives, including a desire
to move slowly with transitioning her appearance and with a change in housing. At the
same time, Defendant and the Department of Corrections conferred to discuss the
appropriate place for Plaintiff to reside as she progressed with the treatment. (Id. ¶ 43.)
Plaintiff commenced hormone therapy on July 14, 2016. (Id. ¶ 48.) In September
2016, the Department of Corrections transferred Plaintiff to the Maine Correctional Center,
to reside with the female population in a single cell. (Id. ¶ 60.) Care providers monitored
Plaintiff’s hormone levels and adjusted her therapy to ensure steady progress. (Id. ¶¶ 62,
66.) During this process, the team declined a request for laser hair removal treatment, but
other options were offered to address facial hair removal. (Id. ¶¶ 64, 69, 72.) Plaintiff was
not exhibiting emotional symptoms of gender dysphoria, suggesting her course of
treatment was responsive to that condition. (Id. ¶ 71.) While at the Correctional Center,
Plaintiff received mental health care approximately two to four times each month, until her
release on May 5, 2017. (Id. ¶ 88.)
Plaintiff filed her verified complaint on October 28, 2016, shortly after she was
transferred to the Correctional Center. (ECF No. 1.) Plaintiff alleged she had fought “for
years” with Defendant to assess her as a transgendered individual, but acknowledged that
she was seen and assessed after she filed a grievance. (Id. at 4.) Plaintiff asserted that even
after she filed the grievance, progress with her treatment was slow and “several months”
passed before hormone therapy began. (Id.)
Plaintiff filed a verified amended complaint on November 25, 2016. In the amended
complaint, Plaintiff asserted various allegations regarding the lack of appropriate
treatment. (Verified Amended Complaint, ECF No. 11.) When Plaintiff was released in
May 2017, the Department of Corrections provided Plaintiff with a 14-day supply of
hormone medication to facilitate her transition to the community. (Id. ¶ 90.)
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir.1998)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If the court’s review
of the record reveals evidence sufficient to support findings in favor of the non-moving
party on one or more of his claims, a trial-worthy controversy exists, and the court must
deny summary judgment on the supported claims. Unsupported claims are properly
dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal
purposes of the summary judgment rule is to isolate and dispose of factually unsupported
claims or defenses.”).
Defendant argues summary judgment is appropriate because the record does not
support a finding that any of its agents was deliberately indifferent to Plaintiff’s serious
medical needs and because, even if the record could support such a finding, the record does
not support a finding that any such conduct was the product of an unconstitutional custom,
policy, or procedure maintained by Defendant. (Motion for Summary Judgment at 15 –
Defendant’s obligation to Plaintiff regarding medical services is governed by the
Due Process Clause of the Fourteenth Amendment. Specifically, the Due Process Clause
imposes on the states the “substantive obligation” not to treat prisoners in their care in a
manner that reflects “deliberate indifference” toward “a substantial risk of serious harm to
health,” Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011), or “serious medical
needs,” Feeney v. Corr. Med. Servs., 464 F.3d 158, 161 (1st Cir. 2006) (quoting Estelle v.
Gamble, 429 U.S. 97, 105 – 106 (1976)). To be actionable, a deliberate indifference claim
must satisfy both an objective and a subjective standard. Leavitt v. Corr. Med. Servs., 645
F.3d 484, 497 (1st Cir. 2011).
The objective standard evaluates the seriousness of the risk of harm to one’s health.
For a medical condition to be objectively “serious,” there must be “a sufficiently substantial
‘risk of serious damage to [the inmate’s] future health.’” Farmer v. Brennan, 511 U.S.
825, 843 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). A medical need
is serious if it has been diagnosed by a physician as mandating treatment, or is so obvious
that even a lay person would recognize a need for medical intervention. Leavitt, 645 F.3d
at 497; Gaudreault v. Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990), cert. denied, 500
U.S. 956 (1991).
The subjective standard concerns the culpability of the defendant. There must be
evidence that a particular defendant possessed a culpable state of mind amounting to
“deliberate indifference to an inmate’s health or safety.” Farmer, 511 U.S. at 834 (internal
quotation marks omitted).
Deliberate indifference is akin to criminal recklessness,
“requiring actual knowledge of impending harm, easily preventable.” Feeney, 464 F.3d at
162 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)). The focus of the
deliberate indifference analysis “is on what the jailers knew and what they did in response.”
Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002).
Deliberate indifference must be distinguished from negligence. As the First Circuit
A finding of deliberate indifference requires more than a showing of
negligence. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that
“[m]edical malpractice does not become a constitutional violation merely
because the victim is a prisoner”); Sires v. Berman, 834 F.2d 9, 13 (1st Cir.
1987). A plaintiff claiming an eighth amendment violation with respect to
an inmate’s serious mental health or safety needs must allege “acts or
omissions sufficiently harmful to evidence deliberate indifference.” Estelle,
429 U.S. at 106; see also Cortes-Quinone v. Jimenez-Nettleship, 842 F.2d
556, 558 (1st Cir.), cert. denied, 488 U.S. 823 (1988). Although this court
has hesitated to find deliberate indifference to a serious need “[w]here the
dispute concerns not the absence of help, but the choice of a certain course
of treatment,” Sires, 834 F.2d at 13, deliberate indifference may be found
where the attention received is “so clearly inadequate as to amount to a
refusal to provide essential care.”
Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991).
Defendant does not contest that Plaintiff has alleged a serious medical condition that
requires medical attention. Instead, Defendant argues that the record will not support a
finding of deliberate indifference on the part of any of its agents, or that Plaintiff
experienced a constitutional deprivation pursuant to a policy, custom, or practice
maintained by Defendant.
Plaintiff asserted her deliberate indifference claim exclusively against the corporate
entity, Correct Care Solutions, and not against any individual involved in her health care.
Because Defendant can act only through its agents, if Plaintiff cannot demonstrate that one
or more individual agents violated her constitutional rights, Defendant cannot be liable as
a matter of law, either in a policy-making capacity or in a supervisory capacity. Morales
v. Chadbourne, 793 F.3d 208, 221 (1st Cir. 2015) (supervisory official’s liability for the
acts of subordinates depends on supervisor’s own action or inaction being affirmatively
linked to the behavior of the subordinate, such as where supervisor is a primary violator or
direct participant, or fails to act despite notice of a deficiency that may contribute to a
constitutional deprivation); Rodriguez v. Mun. of San Juan, 659 F.3d 168, 181 (1st Cir.
2011) (“Liability only attaches where the municipality causes the deprivation through an
official policy or custom[, such as where] a person with final policymaking authority
caused the supposed constitutional injury.” (internal quotation marks and citation
omitted)); Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 504 (1st Cir. 2011) (“An
underlying constitutional tort is required to proceed under a municipal liability theory.
Where, as here, there is no constitutional violation by the employees of the municipality,
there can be no liability predicated on municipal policy or custom.”); Sanchez v. PereiraCastillo, 590 F.3d 31, 49 n.9 (1st Cir. 2009) (“Because we find there to be no underlying
constitutional violation ..., the claims of supervisory liability ... must fail.”).3
Recently, in Glisson v. Indiana Department of Corrections, 849 F.3d 372 (7th Cir. 2017) (en banc) (6-4),
the Seventh Circuit reviewed the entry of summary judgment in favor of a private prison health care entity
and considered whether “an organization might be liable even if its individual agents are not.” Id. at 378.
The court held that a genuine issue existed for trial where a state directive had long called for
implementation of a policy of coordinated care for chronically ill prisoners; there is an obvious need for
The record does not support a finding that anyone involved in Plaintiff’s care,
through his or her individual actions, violated Plaintiff’s constitutional rights. To the
contrary, the record evidence establishes that in accordance with Defendant’s policy,
Defendant, through its agents, developed and implemented an appropriate treatment plan
for Plaintiff. More specifically, the record reflects that Defendant’s agents diagnosed
Plaintiff’s condition and provided Plaintiff with care reasonably designed to address
Based on the foregoing analysis, I recommend the Court grant Defendant’s Motion
for Summary Judgment (ECF No. 41), and enter judgment in favor of Defendant.
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum within fourteen (14)
days of being served with a copy thereof. A responsive memorandum shall
be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to
de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 22nd day of September, 2017.
coordinated care in some circumstances, as exemplified by the plaintiff’s circumstances; the defendant was
on notice that the absence of a coordinated care policy would result in the occasional violation of the
constitutional rights of chronically ill inmates; and the defendant made a deliberate choice not to promulgate
a coordinated care policy. Id. at 378 – 82. In this case, even if the First Circuit were to adopt the reasoning
of the Seventh Circuit in a similar situation, there is no basis for entity liability, given that Defendant
promulgated its Gender Dysphoria Policy before Plaintiff came into its care.
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