Lawlor v. Lee et al

Filing 9

ORDER Directing US Marshal to Make Service. So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Gary Lawlor
v.

Civil No. 12-cv-55-PB

Trish Lee et al.

O R D E R
Before the court for preliminary review is a complaint
(doc. no. 1) filed by pro se plaintiff Gary Lawlor, who is
currently detained at the Merrimack County House of Corrections
(“MCHC”).

See 28 U.S.C. § 1915A(a); United States District

Court District of New Hampshire Local Rule (“LR”) 4.3(d)(2)(A).
Because Lawlor has alleged a plausible claim for relief, the
court orders that the complaint be served on defendants.
Discussion
I.

Standard of Review
Pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915A, the

magistrate judge conducts a preliminary review of prisoner
complaints before defendants have an opportunity to respond to
the claims.

The magistrate judge may direct service of the

complaint, or, as appropriate, recommend to the district judge
that one or more claims be dismissed if: the court lacks subject

matter jurisdiction, a 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 28 U.S.C. § 1915A(a); LR

4.3(d)(2).
In determining whether to dismiss claims asserted in a pro
se plaintiff’s complaint for failure to state a claim upon which
relief can be granted, the court decides whether the complaint,
construed liberally, contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));
Sepúlveda-Villarini v. Dep’t of Educ., 628 F.3d 25, 29 (1st Cir.
2010); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (pro se pleadings are construed liberally).

To make

this determination, the court treats as true all well-pleaded
factual allegations, and construes all reasonable inferences
drawn therefrom in the plaintiff’s favor, to determine if the
claim is plausible.

See Ocasio-Hernández v. Fortuño-Burset, 640

F.3d 1, 12 (1st Cir. 2011).

“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

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(even if doubtful in fact).”

Twombly, 550 U.S. at 555

(citations and footnote omitted)).
II.

Background
Lawlor alleges that in May 2007, prior to his incarcera-

tion, he was diagnosed with “post herpetic trigeminal
neuralgia,”1 a chronic condition which causes extreme facial
pain.

Lawlor had been under the care of Dr. O’Connell, a pain

management doctor, who had prescribed a combination of
medications to treat Lawlor’s pain: Percocet, Oxycodone,
Nortriptyline, and Klonopin.

Lawlor alleges that he had been

taking this suite of medications since 2010.
Lawlor was incarcerated at the MCHC from October 26, 2011,
until January 19, 2012.

During this period of detention, Lawlor

received the same combination of prescription drugs that Dr.
O’Connell prescribed for him.
Lawlor was released from the MCHC on January 19, 2012, but
was arrested again four days later.
1

Lawlor alleges that upon

Trigeminal neuralgia is a chronic pain condition that
causes episodes of “extreme, sporadic, sudden burning or shocklike face pain.” National Institute of Neurological Disorders
and Stroke, http://www.ninds.nih.gov/disorders/trigeminal_
neuralgia/detail_trigeminal_neuralgia.htm (last visited June 13,
2012). The modifier “posterherpetic” refers to a condition that
occurs after an attack of herpes zoster, such as shingles. See
Dorland’s Illustrated medical Dictionary, 863, 1524 (31st ed.
2007).
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his January 23, 2012, return to the MCHC an intake nurse there
said she would pass along the medication orders prescribed by
Dr. O’Connell to defendant Trish Lee (“Lee”), a physician’s
assistant with the MCHC medical department.

Lawlor asserts that

neither Lee nor anyone else provided him with the combination of
medications prescribed by Dr. O’Connell, and that had previously
been given to him at the MCHC.

Instead, Lawlor has only been

given Nortriptyline,2 which he claims does not alleviate his
pain.

Lawlor asserts that Lee told him that she intended to

wean him off of the four medications for “ethical reasons.”
Lawlor submits that when he complained to a nurse, she opined
that the medication changes were “probably due to the budget.”
Lawlor now contends that he is in constant pain because the
Nortriptyline is ineffective alone, and the MCHC refuses to give
him the combination of medications that Dr. O’Connell had
prescribed.

Lawlor alleges that as a result, he experiences

pain that interferes with his ability to sleep and function
normally.
Lawlor claims he has submitted requests slips and two
grievance forms to Lee, plus two grievance forms to defendant

2

“Nortriptyline” is “a tricyclic antidepressant . . . used
to treat panic disorder and to relieve chronic, severe pain.”
Dorland’s Illustrated Dictionary, 1311 (31st ed. 2007).
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Ron White (“White”), the Superintendent of the MCHC, but their
replies do not address his pain management issues.

Based on

these allegations, Lawlor asserts inadequate medical care claims
against defendants Lee and White, and seeks injunctive relief
and damages.
III. Analysis
As a pretrial detainee, Lawlor’s claim for the denial of
adequate medical care arises under the Fourteenth Amendment’s
due process clause.

Ruiz-Rosa v. Rullán, 485 F.3d 150, 155 (1st

Cir. 2007) (citing Burrell v. Hampshire Cnty., 307 F.3d 1, 7
(1st Cir. 2002)).

The protection afforded pretrial detainees

under the Fourteenth Amendment is at least as great as that
afforded convicted inmates under the Eighth Amendment.

See

Burrell, 307 F.3d at 7 (citing Bell v. Wolfish, 441 U.S. 520,
545 (1979)).

The standard applied to the treatment of pretrial

detainees is the same as that applied to convicted inmates’
claims under the Eighth Amendment.

Burrell, 307 F.3d at 7; see

also Ramos v. Patnaude, 640 F.3d 485, 489 (1st Cir. 2011).
To state a claim for unconstitutionally inadequate medical
care, Lawlor must first assert facts to demonstrate that he was
deprived of adequate care for a serious medical need; a serious
medical need “is one that has been diagnosed by a physician as

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mandating treatment, or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s
attention.”

Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484,

497 (1st Cir. 2011) (internal quotation marks and citation
omitted).

Next, Lawlor must demonstrate that defendants were

deliberately indifferent to his serious medical need by
demonstrating that defendants were “‘aware of facts from which
the inference could be drawn that a substantial risk of serious
harm’” to plaintiff’s health and safety existed that required
medical treatment, that defendants actually drew the inference,
and that defendants failed to take reasonable steps to remedy or
alleviate the risk.
825, 837 (1994)).

Id. (quoting Farmer v. Brennan, 511 U.S.
The standard for deliberate indifference:

encompasses a narrow band of conduct: subpar care
amounting to negligence or even malpractice does not
give rise to a constitutional claim, rather, the
treatment provided must have been so inadequate as to
constitute an unnecessary and wanton infliction of
pain or to be repugnant to the conscience of mankind.
Leavitt, 645 F.3d at 497 (internal quotation marks and citations
omitted).

Deliberate indifference occurs when medical care is

“so inadequate as to constitute an unnecessary and wanton
infliction of pain, . . . shown by the denial of needed care as
punishment and by decisions about medical care made recklessly

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with actual knowledge of the impending harm, easily
preventable.”

Id. (internal citations omitted).

By alleging that he has postherpetic trigeminal neuralgia
that has been diagnosed and treated by a physician, and that
causes extreme, on-going pain, Lawlor has stated facts to
demonstrate an “objectively, sufficiently serious” medical
condition to support a claim for inadequate medical care.

Id.

The decision to limit Lawlor’s prescription medication to just
Nortriptyline can plausibly be construed as deliberate
indifference to his serious medical needs.

Lawlor alleges that

this single medication failed to alleviate his severe pain.
Lawlor also alleges that he filed several requests slips with
Lee and submitted four grievance slips complaining about the
medication:

two each to both Lee and White.

Defendants are

aware, according to Lawlor, that Lawlor’s pain was relieved by
the combination of drugs he was taking during his prior
incarceration.

The complaint, therefore, sufficiently alleges

that defendants were aware that the medication they were
prescribing was not alleviating Lawlor’s severe pain, that the
pain would have been easily prevented by the defendants’
prescribing of medication they had recently provided to him, and
yet they failed to act to address Lawlor’s ongoing pain.

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While

this case may ultimately reveal nothing more than a
“disagreement as to the appropriate course of treatment” not
constituting deliberate indifference, Ruiz-Rosa, 485 F.3d at
156, at this early stage of the proceedings, Lawlor has alleged
the minimal facts necessary to state a claim for deliberate
indifference to his serious medical needs, in violation of the
constitution.
Conclusion
Because Lawlor has stated a claim for the violation of his
Fourteenth Amendment rights against defendants Lee and White,
the complaint must be served.
4.3(d)(1)(B)(iii).

See 28 U.S.C. § 1915(d); LR

The Clerk’s office is instructed to complete

and issue a summons for each defendant and to forward the
summonses, along with copies of the complaint (doc. no. 1), and
this order, to the U.S. Marshal’s office to complete service in
accordance with this order and Fed. R. Civ. P. 4(c)(3).
4.3(d)(1)(B)(iii).

See LR

Service may be effected on defendants Lee

and White either by delivering copies of the above-referenced
documents to each of them personally, or by leaving those same
documents at the respective defendant’s abode, pursuant to N.H.
Rev. Stat. Ann. § 510:2 (1997).

See Fed. R. Civ. P. 4(e)

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(providing for service on individuals within the federal
judicial district).
Defendants are instructed to answer or otherwise plead
within twenty days of service.

See Fed. R. Civ. P. 12(a)(1)(A).

Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
defendants by delivering or mailing the materials to them or
their attorney(s), pursuant to Fed. R. Civ. P. 5(b).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
June 13, 2012
cc:

Gary Lawlor, pro se

LBM:jkc

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