Guitard v. NH Department of Corrections, Division of Medical and Forensic Services

Filing 5

ORDER plaintiff to file amended complaint within 30 days 1 Complaint., ( Amended Pleadings due by 6/16/2011.) So Ordered by Magistrate Judge Landya B. McCafferty. (mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jon-Paul Guitard
v.

Case No. 11-cv-194-PB

New Hampshire Department of
Corrections, Division of Medical
and Forensic Services

O R D E R
Before the court is the complaint filed by pro se
plaintiff, Jon-Paul Guitard, asserting claims that, while
incarcerated at the New Hampshire State Prison (“NHSP”) in
Concord, New Hampshire, he suffered medical malpractice and
received inadequate medical care, in violation of his rights
under the Eighth Amendment.
Medical Department.

The named defendant is the NHSP

The matter is before the court for

preliminary review, to determine if Guitard has stated a claim
upon which relief can be granted.

See 28 U.S.C. § 1915A; United

States District Court, District of New Hampshire, Local Rule
(“LR”) 4.3(d)(2).

Standard of Review
Under LR 4.3(d)(2), when an incarcerated plaintiff or
petitioner commences an action pro se, the magistrate judge
conducts a preliminary review.

Pro se pleadings are construed

liberally to avoid inappropriately stringent rules and
unnecessary dismissals.

See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97,
106 (1976), to construe pleadings liberally in favor of pro se
party); Castro v. United States, 540 U.S. 375, 381 (2003).

The

magistrate judge may issue a report and recommendation after the
initial review, recommending that claims be dismissed if the
court lacks subject matter jurisdiction, the defendant is immune
from the relief sought, the complaint fails to state a claim
upon which relief may be granted, the allegation of poverty is
untrue, or the action is frivolous or malicious.

See LR

4.3(d)(2) (citing 28 U.S.C. § 1915A & Fed. R. Civ. P. 12(b)(1)).
To determine if the complaint states any claim upon which
relief could be granted, the court applies a standard analogous
to that used in reviewing a motion to dismiss filed under Fed.
R. Civ. P. 12(b)(6).

The court decides whether the complaint

contains sufficient factual matter, accepted as true, to state a

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claim to relief that is plausible on its face.

See Ashcroft v.

Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009).
To make this determination, the court employs a two-pronged
approach.

See Ocasio-Hernández v. Fortuño-Burset, No. 09-2207,

2011 WL 1228768, *9 (1st Cir. Apr. 1, 2011).

The court first

screens the complaint for statements that “merely offer legal
conclusions couched as fact or threadbare recitals of the
elements of a cause of action.”

Id. (citations, internal

quotation marks and alterations omitted).

A claim consisting of

little more than “allegations that merely parrot the elements of
the cause of action” may be dismissed.
WL 1228768 at *9.

Ocasio-Hernández, 2011

The second part of the test requires the

court to credit as true all non-conclusory factual allegations
and the reasonable inferences drawn from those allegations, and
then to determine if the claim is plausible.

Id.

The

plausibility requirement “simply calls for enough fact to raise
a reasonable expectation that discovery will reveal evidence” of
illegal conduct.
(2007).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

The “make-or-break standard” is that those allegations

and inferences, taken as true, “must state a plausible, not a
merely conceivable, case for relief.”

Sepúlveda-Villarini v.

Dep‟t of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly,

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550 U.S. at 555 (“Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).” (citations and footnote omitted)).
Evaluating the plausibility of a claim is a “contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.”

Iqbal, ___ U.S. at ___,

129 S. Ct. at 1950 (citation omitted).

In doing so, the court

may not disregard properly pleaded factual allegations or
“attempt to forecast a plaintiff‟s likelihood of success on the
merits.”

Ocasio-Hernández, 2011 WL 1228768 at *9.

“The

relevant inquiry focuses on the reasonableness of the inference
of liability that the plaintiff is asking the court to draw from
the facts alleged in the complaint.”

Id.

Background
In a sparsely-worded form complaint signed by Guitard on
April 12, 2011, Guitard asserts claims of medical malpractice
and violations of his right to adequate medical care under the
Eighth Amendment, arising from events occurring prior to April
12, 2008.

Specifically, Guitard asserts that on March 27, 2008,

he was rushed to the Concord Hospital Emergency Department for
abdominal pain.

He underwent “exploratory” surgery, to

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determine if he was suffering from a perforated colon due to
diverticulitis, or a “more proximal perforation in the GI
tract.”

Guitard was fitted with an ostomy bag, which he must

use for the rest of his life, “due to the lack of care” he
received while at the NHSP.

Guitard had gone to sick call at

NHSP for stomach problems and reported all of his stomach issues
to the nurses, but nobody listened to him before March 27, 2008.
No one told Guitard that he need to file a grievance
regarding his medical care claim, or that his claims might be
subject to a statute of limitations.

Guitard had intended to

await parole before filing an action, so that he would not be
harshly treated in prison, but ultimately chose to file while
still incarcerated.
The claims asserted in the complaint (doc. no. 1) are:
1.

Guitard suffered a violation of his Eighth Amendment

right to receive adequate medical care when nurses in the NHSP
Medical Department, with deliberate indifference to his serious
medical needs, failed to attend to Guitard‟s stomach problems
prior to March 27, 2008.
2.

The NHSP Medical Department staff engaged in

professional negligence in failing to attend to Guitard‟s
stomach problems prior to March 27, 2008, causing Guitard to

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undergo surgery to determine the location and extent of an
apparent perforation of his gastro-intestinal tract, which
resulted in his life-long need for an ostomy bag and other
injuries.
Discussion
I.

Eleventh Amendment
Claims cannot be maintained in federal court against

unconsenting states and their agencies, absent Congressional
abrogation of the State‟s sovereign immunity.

See Fantini v.

Salem State Coll., 557 F.3d 22, 33 (1st Cir. 2009); see also
P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146 (1993).

Neither a waiver of sovereign immunity nor any

Congressional abrogation of that immunity exists as to the
claims asserted here against the NHSP Medical Department:

New

Hampshire has not waived its immunity for such claims in federal
court, and Congress did not abrogate Eleventh Amendment immunity
through 42 U.S.C. § 1983, see Will v. Mich. Dep‟t of State
Police, 491 U.S. 58, 67 (1989).
The named defendant is the NHSP Medical Department, a state
agency.

All claims asserted against that agency are subject to

dismissal under the Eleventh Amendment.

Because Guitard appears

to hold individual nurses responsible for failing to attend to

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his stomach problems prior to March 27, 2008, the court will
provide Guitard an opportunity to amend the complaint to name
individual nurses or other NHSP staff as defendants, before
recommending dismissal of this case.

In the interest of

judicial efficiency, the court shall identify in the discussion
below additional issues that require clarification through an
amended complaint, to be filed by Guitard, before the court can
find that the complaint states any claim upon which relief might
be granted.
II.

Section 1983 Claim
Section 1983 creates a cause of action against those who,

acting under color of state law, violate federal constitutional
or statutory law.

See 42 U.S.C. § 1983; Wilson v. Town of

Mendon, 294 F.3d 1, 6 (1st Cir. 2002).

Here, Guitard has

claimed that unnamed nurses in the NHSP Medical Department, all
of whom are state actors, violated rights accruing to him under
federal law when they, with deliberate indifference, failed to
provide him with adequate medical care.

As such, this action

presents a medical care claim arising under § 1983, as well as a
state law medical malpractice claim, as to those nurses.

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III. Eighth Amendment
The Eighth Amendment shields convicted prison inmates from
prison officials providing them with inadequate medical care
while acting with deliberate indifference to their serious
medical needs.

See Farmer v. Brennan, 511 U.S. 825, 831 (1994).

The Supreme Court has adopted a two-part test for reviewing
medical care claims under the Eighth Amendment.

See id. at 834.

A court must first determine if the prisoner has alleged facts
sufficient to show that he or she has not been provided with
adequate care for a “serious medical need.”

Id.

Second, the

court must determine if the complaint contains sufficient
allegations to show that defendants acted with deliberate
indifference in failing to address that serious need.

See id.

Allegations that simply show “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.”

Ruiz-Rosa v.

Rullan, 485 F.3d 150, 156 (1st Cir. 2007).
A.

Serious Medical Need

A serious medical need is one that involves a substantial
risk of serious harm to the prisoner if it is not adequately
treated.

See Barrett v. Coplan, 292 F. Supp. 2d 281, 285

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(D.N.H. 2003); see also Gaudreault v. Mun‟y of Salem, 923 F.2d
203, 208 (1st Cir. 1990) (defining serious medical need as one
“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”).

If a

medical care claim is based on delayed provision of care, the
inquiry is whether the delay caused or gave rise to a
substantial risk of serious harm to the prisoner.

See Chambers

v. N.H. Prison, 562 F. Supp. 2d 197, 200 (D.N.H. 2007).
Here, Guitard suffered stomach problems that led him to go
to sick call at NHSP.

He states that he complained about all of

his problems to nurses in the NHSP Medical Department, but they
did not listen to him.

On March 27, 2008, he was rushed to the

Concord Hospital for emergency abdominal surgery due to stomach
pain, where it was determined that he had suffered a perforation
in his gastro-intestinal tract.

As a result of the perforation,

he has to use an ostomy bag for the rest of his life.

Taking

all of the factual allegations in the complaint to be true, the
court finds that the delay in properly treating or diagnosing
Guitard‟s serious stomach problems constituted inadequate care
and gave rise to a substantial risk of serious harm.

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B.

Deliberate Indifference

To be found deliberately indifferent, a prison official
must be both subjectively aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he or she must also actually draw the inference.
See Farmer, 511 U.S. at 837.

Deliberate indifference “may be

shown by the denial of needed care as punishment and by
decisions about medical care made recklessly with „actual
knowledge of impending harm, easily preventable.‟”
485 F.3d at 156 (citation omitted).

Ruiz-Rosa,

“In order to establish

deliberate indifference, the complainant must prove that the
defendants had a culpable state of mind and intended wantonly to
inflict pain.”

Braga v. Hodgson, 605 F.3d 58, 61 (1st Cir.

2010) (internal citation and quotations omitted).

Deliberate

indifference may be found “in wanton decisions to deny or delay
care, where the action is reckless, not in the tort law sense
but in the appreciably stricter criminal-law sense.”

Watson v.

Caton, 984 F.2d 537, 540 (1st Cir. 1993) (internal citation and
quotations omitted).
Guitard has alleged in the complaint that he told the
nurses about his stomach problems, but “nobody would listen” to
him before he was rushed to the hospital for surgery on March

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27, 2008.

These allegations, as asserted, are not sufficient to

show deliberate indifference on the part of those unnamed
defendant nurses.

To clarify who knew what about his stomach

problems, and the circumstances surrounding their failure to
listen to him, Guitard would need to file an amended complaint
including supplemental information about the stomach problems he
described to the NHSP Medical Department, the dates on and
manner in which he made nurses aware of these problems, and any
treatment or medical attention he received for those problems in
response to his complaints.

Any amended complaint shall conform

with the directions set forth at the conclusion of this Order.
III. Malpractice Claims
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 the
doctor or nurse‟s failure to provide care consistent with the
standard of reasonable professional practice at the time the
care was rendered.

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

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reasonable inferences drawn therefrom, the court finds that
Guitard has stated a claim of medical malpractice against those
nurses in the NHSP Medical Department who did not listen to him
when he described his stomach problems prior to March 27, 2008.
IV.

Statute of Limitations
The statute of limitations applicable to Guitard‟s section

1983 and medical malpractice claims is three years.

See N.H.

Rev. Stat. Ann. § 508:4; see also Gilbert v. City of Cambridge,
932 F.2d 51, 57 (1st Cir. 1991) (limitation period applicable to
section 1983 claim is found in general personal injury statute
of state where claim arises).

The statute of limitations on

such claims begins to run when the plaintiff knew or should have
known of his injury.

See Cao v. Puerto Rico, 525 F.3d 112, 115

(1st Cir. 2008); see also McCollum v. D‟Arcy, 138 N.H. 285, 287,
638 A.2d 797, 798 (1994).
Here, the facts alleged by Guitard raise a substantial
question regarding whether his claims are time-barred.

Guitard

signed the complaint in this action on April 12, 2011, and the
complaint was filed on April 21, 2011, more than three years
after he suffered the injuries at issue.

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As to both the state law claim and the section 1983 claim,
the possibility exists that Guitard may show a basis for
equitably tolling the statute of limitations, which would enable
him to maintain this action.

Equitable tolling is the exception

and not the rule; it is applied only in extraordinary
circumstances.

See Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d

66, 71 (1st Cir. 2005).
Under federal law, “„excusable ignorance of the statute of
limitations caused by some misconduct of the defendant‟” may be
sufficient to toll the statute of limitations.
Cir. 2005) (citation omitted).

Id. at 72 (1st

Similarly, under New Hampshire

law, “„[c]onduct of a nature giving rise to an equitable
estoppel may be sufficient to toll the running‟ of a statute of
limitations.”

Pierce v. Metro. Life Ins. Co., 307 F. Supp. 2d

325, 333 (D.N.H. 2004) (citations omitted).

Such conduct under

state law may include fraudulent concealment of a claim, or
other affirmative conduct persuading a plaintiff from filing
suit, not including silence or inaction unless the defendant had
knowledge and a duty to make a disclosure about the statute of
limitations to the plaintiff.

See id. at 334 (citing cases).

Here, Guitard has indicated that he did not file suit
sooner for fear of a reprisal in prison, and because no one told

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him about the statute of limitations.

Without further

elaboration on the grounds upon which he based his assertion
that he feared reprisal – given that he ultimately chose to file
suit notwithstanding that fear, and unless Guitard amends the
complaint to show that defendants took steps to dissuade him
from filing suit, the court will not find a basis for equitably
tolling the statute of limitations on the claims in this action.
Guitard, in his amended complaint, should include facts that
demonstrate why he is entitled to equitable tolling of the
statute of limitations, in order to show why this action should
not be dismissed as time-barred.
Conclusion
For the foregoing reasons, the court grants Guitard leave
to file an amended complaint within 30 days from the date of
issuance of this Order.

In the amended complaint, Guitard shall

state, with specificity, the identity of any persons who may be
responsible for his injuries and the possibility of equitable
tolling of the statute of limitations, including the following
facts:
1.
The names of any nurses or other prison staff whom
Guitard considers responsible for failing to attend to his
medical needs at NHSP.

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2.
The steps Guitard took to alert the prison staff to
his need for medical care prior to March 27, 2008,
including any oral statements, medical request slips, or
grievances, relating to his stomach issues, which he
submitted to NHSP staff prior to March 27, 2008.
2.
The date Guitard was discharged from the Concord
Hospital, his discharge diagnosis, and his physical and
mental state during and immediately following his hospital
stay that began on March 27, 2008.
3.
The date when he was first made aware that he suffered
an abdominal injury as a result of care that he received at
NHSP.
4.
Any reason why Guitard failed to file a complaint in
this case prior to April 21, 2011, including the specific
grounds upon which he based a fear of harsh treatment in
prison for filing a claim in this court prior to being
paroled; and any other steps that prison staff members may
have taken to persuade him not to file a complaint sooner.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
Date:
cc:

May 17, 2011

Jon-Paul Guitard, pro se

LBM:nmd

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