Sweeney v. NH State Prison

Filing 8

ORDER 1 Complaint, 7 Motion for Reconsideration. The motion to reconsider (doc. no. 7) is denied without prejudice to renewal. The request for a preliminary injunction in the complaint (doc. no. 1) is held in abeyance pending the expiration of the time for Sweeney to file an amended complaint. ( Amended Pleadings due by 11/26/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John J. Sweeney, Jr.
v.

Civil No. 12-cv-276-PB

New Hampshire State Prison1

O R D E R
John J. Sweeney, Jr., an inmate at the New Hampshire State
Prison (“NHSP”) has commenced this action, alleging violations
of his First and Eighth Amendment rights.

Sweeney’s pleadings

(doc. nos. 1 and 7) also assert a request for preliminary
injunctive relief.

The matter is before the court for

preliminary review to determine whether it states any claim upon
which relief might be granted.

See 28 U.S.C. § 1915A(a); United

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

Also before the court are Sweeney’s motion to

reconsider (doc. no. 7), seeking reversal of this court’s
designation of this action as a civil case, and the request for
1

The New Hampshire State Prison (“NHSP”) is the only
defendant specifically named in the caption of Sweeney’s
complaint (doc. no. 1). Sweeney’s pleadings, consisting of the
complaint (doc. no. 1) and a motion to reconsider (doc. no. 7),
however, indicate that Sweeney also intends to assert claims
against NHSP Corrections Officer Stephen Sullivan, NHSP Nurse
Brad Bowden, NHSP Nurse Donna (last name unknown (“LNU”)), NHSP
Nurse Maria LNU, and NHSP Mental Health professional Cathy
Fontaine.

preliminary injunctive relief contained in Sweeney’s complaint
(doc. no. 1).

See Order (doc. no. 6) (referring request for

preliminary injunctive relief to the magistrate judge for a
report and recommendation).
Motion to Reconsider (Doc. No. 7)
Sweeney initially titled this action: “Writ of Mandamus for
Services/Motion for Immediate-Emergency Medical Treatment and
Care by Speicialist(s) [sic]” (doc. no. 1).

The court has

construed this document as a complaint in a civil action filed
pursuant to 42 U.S.C. § 1983, containing a request for a
preliminary injunction.
designation.

Sweeney seeks reconsideration of this

Alternatively, Sweeney asks the court either to

dismiss this action with prejudice or to allow him a 200-day
continuance to prepare to litigate this matter.
A petition for a writ of mandamus is pursued via the
Mandamus and Venue Act, 28 U.S.C. § 1361 (“MVA”), which provides
that “the district courts shall have original jurisdiction of
any action in the nature of mandamus to compel an officer or
employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.”

By its terms, the MVA only

authorizes this court to issue writs of mandamus to compel
federal employees or officers to perform certain duties.

The

defendants in this case are all state actors, and the MVA does

2

not provide this court with the authority to direct or compel
state actors to perform any act.
To the extent a plaintiff seeks a court order directing
state defendants to act, or refrain from acting, in a particular
matter, such a request is ordinarily made by plaintiff moving
for a preliminary injunction pursuant to Fed. R. Civ. P. 65(a).
Here, the court has construed the complaint (doc. no. 1), to
include such a request.
Civil actions, such as this one, seeking relief against
state actors for alleged violations of a plaintiff’s
constitutional rights, are cognizable under 42 U.S.C. § 1983.
The court has evaluated Sweeney’s pleadings (doc. nos. 1 and 7),
which seek relief for alleged violations of Sweeney’s
constitutional rights by state actors, and construed his action
to have been properly characterized as one raised pursuant to
§ 1983.2
The request to reconsider (doc. no. 7), is denied.

The

denial is without prejudice to renewal should Sweeney still wish
not to proceed with prisoner civil rights claims asserted under
§ 1983 at this time.
2

Because Sweeney asserts facts and claims in his motion to
reconsider (doc. no. 7) not included in the initial complaint
(doc. no. 1), the court construes the motion to reconsider to
include an addendum to the complaint. The court will consider
both documents (doc. nos. 1 and 7), in the aggregate, to
comprise the complaint in this matter for all purposes.
3

Preliminary Review
I.

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

magistrate judge conducts a preliminary review of pro se in
forma pauperis 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(b); LR 4.3(d)(2).
In determining whether a pro se prisoner complaint states a
claim, the court must construe the complaint liberally.

See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

To

survive preliminary review, the complaint must contain
“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).

To determine

plausibility, the court treats as true all well-pleaded factual

4

allegations, and construes all reasonable inferences drawn
therefrom in the plaintiff’s favor.

See Ocasio-Hernández v.

Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
II.

Background
A.

Beating

Sweeney alleges that on October 4, 2011, he was badly
beaten by NHSP Corrections Officer Stephen Sullivan.

Sweeney

states that Sullivan “smashed” Sweeney twice in the chest while
holding handcuffs in his fist.

Eight hours later, Sweeney was

taken to the NHSP’s Health Services Center (“HSC”). Sweeney has
not specified or described the nature of any injury he may have
sustained as a result of the alleged beating.
Sweeney immediately reported the beating to an unnamed NHSP
official.

Sweeney claims that since making his report, he has

been followed, harassed, and assaulted by unnamed NHSP officers.
Sweeney also claims that Sullivan assaulted him again on October
9, 2012, but does not describe that assault.
B.

Skin Condition

Sweeney states that he is a Vietnam veteran who was exposed
to Agent Orange, an herbicide used as a weapon during the
Vietnam War.

As a result, Sweeney suffers from “chloracne.”

Chloracne is “[a]n acnelike eruption due to occupational
contact, by inhalation or ingestion through the skin, with

5

certain chlorinated compounds . . . used as insulators,
insecticides, fungicide, and herbicides, including Agent
Orange.”

Stedman’s Medical Dictionary, at 361 (28th ed. 2006).

Sweeney also states that he has a bacterial skin infection, and
that he believes he may have been exposed to methicillinresistant staphylococcus aureus (“MRSA”) in the HSC.

Sweeney

states that his head, neck, shoulders, face, and arms are
covered with “bubbles” filled with foul-smelling pus.
On November 6, 2011, Sweeney went to sick call for
treatment of his skin condition.

Nurse Brad Bowden refused to

treat Sweeney, stating that there was nothing wrong with him,
and accusing him of trying to build a case against Sullivan.
Two days later, on November 8, 2011, Sweeney was seen by Dr.
Celia Englander, who identified eleven infected areas in or on
Sweeney’s ears.
antibiotics.

Dr. Englander prescribed a ten-day course of

Sweeney claims the medication did not help to

alleviate his condition.
On April 8, 2012, Sweeney requested medication because the
skin on his right forearm was infected.

Sweeney states that an

unnamed medical provider gave Sweeney foot cream for his arm.
On June 18, 2012, Sweeney submitted a request slip for
antibiotics to treat a skin infection.
request.

6

Nurse Bowden denied his

On June 19, 2012, Sweeney saw Nurse Donna at sick call.
Nurse Donna saw the infected area on Sweeney’s forearms, which
Sweeney told her was chloracne, but she did not know what
chloracne was.

Sweeney was denied any medical treatment at that

time, but was given an appointment to see a nurse practitioner
the next day.

When Sweeney arrived for the appointment,

however, Nurse Bowden told Sweeney that he had cancelled the
appointment because there was nothing wrong with Sweeney.
On July 12, 2012, Sweeney complained about his skin
condition to Cathy Fontaine, a mental health worker.

Sweeney

told Fontaine that as of July 1, 2012, he had resorted to using
his own urine (in an unspecified manner) to try to treat his
skin infection.

Fontaine told Sweeney that she would arrange

for him to see a medical provider, but no appointment was
scheduled.
At some point during the summer of 2012, Sweeney saw Nurse
Maria at the HSC concerning his skin condition, but she did not
give him any medication, cream, or other treatment.

Sweeney

states that he was scheduled for an appointment with Nurse
Practitioner Savage, but does not state what occurred at that
appointment.
Sweeney asserts that due to not receiving appropriate
treatment for his skin condition, the condition has worsened and

7

spread.

Sweeney states that he has suffered scarring and facial

disfigurement as a result.

Sweeney further asserts that he has

been denied medical care for his skin condition in retaliation
for reporting the October 4, 2011, assault by Sullivan.
III. Discussion
A.

Excessive Force

Sweeney claims that Sullivan used excessive force against
him on October 4, 2011, and assaulted him again on October 9,
2012.

The applicable Eighth Amendment standard for an excessive

force claim is “whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and
sadistically to cause harm.”
(1992).

Hudson v. McMillian, 503 U.S. 1, 7

The relevant factors for the court to consider in

evaluating an excessive force claim are: the need for force; the
relationship between that need and the amount of force applied;
the extent of any injury inflicted; the “threat ‘reasonably
perceived by the responsible officials’” and; the “‘efforts made
to temper the severity of a forceful response.’”
Whitley v. Albers, 475 U.S. 312, 321 (1986)).

Id. (quoting

An officer’s use

of excessive force may constitute an Eighth Amendment violation
even where the inmate suffers no serious injury.

See Wilkins v.

Gaddy, 130 S. Ct. 1175, 1178-79 (2010) (per curiam) (citing
Hudson, 503 U.S. at 7).

8

Here, Sweeney has not asserted any facts concerning the
circumstances surrounding the alleged assaults by Sullivan.
Sweeney has not, at this time, stated sufficient facts to allow
the court to reasonably infer that the force used by Sullivan on
either occasion was malicious and intended to cause harm, or an
appropriate manner of achieving institutional discipline and
security under the circumstances which gave rise to the alleged
use of force.

Accordingly, Sweeney is granted leave to amend

his complaint, as directed in the conclusion of this order, to
assert facts demonstrating that the force Sullivan used against
him was excessive under the circumstances.
B.

Medical Care

Sweeney, has asserted that Nurse Brad Bowden, Nurse Donna,
Nurse Maria, and Cathy Fontaine acted with deliberate
indifference and violated his Eighth Amendment right not to be
deprived of adequate medical care for a serious medical need.
Sweeney states generally that the nurses and Fontaine were aware
of Sweeney’s serious medical condition and need for treatment,
disregarded that knowledge, and improperly denied Sweeney
necessary treatment, causing his condition to worsen.
“To succeed on an Eighth Amendment claim based on
inadequate or delayed medical care, a plaintiff must satisfy
both a subjective and objective inquiry.”

9

Leavitt v. Corr. Med.

Servs., 645 F.3d 484, 497 (1st Cir. 2011).

Specifically, an

inmate must allege that a defendant has committed “acts or
omissions . . . sufficiently harmful to evidence deliberate
indifference to serious medical needs.”

Id.

“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.”
Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007) (internal
quotation marks and citation omitted).

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.’”

Leavitt, 645 F.3d at 497; (quoting Farmer v.

Brennan, 511 U.S. 825, 837 (1994)).
Second, plaintiff must assert sufficient facts to show that
the deprivation of medical care alleged was “‘objectively,
sufficiently serious.’”

Id. (quoting Burrell v. Hampshire

Cnty., 307 F.3d 1, 3 (2002)).

A serious medical need “‘is 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.

The

seriousness of an inmate’s needs may also be determined by
reference to the effect of the delay of treatment.’”

10

Leavitt,

645 F.3d at 497-98 (quoting Gaudreault v. Municipality of Salem,
923 F.2d 203, 208 (1st Cir. 1990)) (other internal quotation
marks and citation omitted).
Here, Sweeney asserts facts sufficient to allege that he
suffers from a serious skin condition, that would be apparent to
anyone who saw him, as he describes his face, head, neck,
shoulders, and forearms as being covered with pus-filled
“bubbles.”

Sweeney also states that he told medical personnel

of his condition and need for treatment, but they failed to
provide him with treatment adequate to treat his condition.
The assertions in Sweeney’s complaint are not sufficient to
demonstrate that the defendants were actually aware of the
severity of Sweeney’s skin condition as well as his need for
treatment, or that they actually drew the inference that there
was a substantial risk of serious harm likely to follow a denial
or delay of adequate medical treatment.

Although Sweeney makes

the conclusory assertion that the defendants denied him medical
care with subjective awareness of the seriousness of his
condition and need for treatment, he has failed to allege
sufficient specific facts to support that assertion, and thus
has failed at this time to state an Eighth Amendment claim.
Accordingly, Sweeney is granted leave to amend his complaint, as
specified in the conclusion of this order, to name individual

11

defendants to this claim, and to demonstrate that each named
defendant: 1) was aware of Sweeney’s serious medical condition,
2) was aware of Sweeney’s need for treatment and the risk of
harm Sweeney faced without treatment, and 3) denied Sweeney
treatment in disregard of that knowledge.
Should Sweeney file an amended complaint as directed, he
should update the court regarding any medical care he has
received for his skin condition since July 2012, including any
care provided in or after the appointment scheduled with Nurse
Practitioner Savage.

Sweeney should also clarify which type of

medical condition he alleges is still in need of treatment, as
it is unclear from the facts alleged whether he believes his
chloracne still requires treatment, or whether a bacterial skin
infection (possibly related to chloracne) still needs treatment.
C.

Retaliation

Sweeney asserts that he was denied medical care and was
otherwise harassed in retaliation for reporting to a prison
official that he was assaulted by Sullivan.

To assert a

retaliation claim, Sweeney must state facts sufficient to show
that: (1) the conduct which led to the alleged retaliation was
protected by the First Amendment; (2) he was subjected to some
adverse action by prison officials; and (3) a causal link
between the exercise of his First Amendment rights and the

12

adverse action.

See Hannon v. Beard, 645 F.3d 45, 48 (1st Cir.

2011), cert. denied, 132 S. Ct. 1105 (2012).

As to the “adverse

act” requirement, de minimis adverse acts will not support a
retaliation claim.

See Pope v. Bernard, No. 10-1443, 2011 WL

478055, at *2 (1st Cir. Feb. 10, 2011), cert. denied, 132 S. Ct.
261 (2011).

A defendant’s reaction to an exercise of an

inmate’s First Amendment rights is not de minimis if it would
deter an individual of ordinary firmness from exercising such
rights.

See id.

Sweeney asserts that both medical providers and unnamed
officers assaulted or otherwise harassed him, or denied him
medical care.

Sweeney also asserts that he reported to prison

officials that he had been assaulted by Sullivan.

Sweeney has

failed, as yet, to assert specific facts to demonstrate that the
adverse actions he alleges the defendants took against him were
more than de minimis.

Further, Sweeney has failed to assert

specific facts to allow the court to draw a reasonable inference
that the acts alleged were taken in order to retaliate against
Sweeney for making the report.

Accordingly, Sweeney will be

given the opportunity to amend his complaint to identify by name
each defendant who retaliated against him, what acts they took
in retaliation, including facts to indicate that the acts were
more than de minimis, and specific facts demonstrating that the

13

acts were in fact retaliatory, and taken in response to his
report of the Sullivan assault.
Request for Preliminary Injunction (Doc. No. 1)
Sweeney seeks preliminary injunctive relief, pursuant to
Fed. R. Civ. P. 65(a).

“A plaintiff seeking a preliminary

injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).

Because the court, in this order, grants Sweeney leave

to amend his complaint, and the amendment, if any, may affect
this court’s recommendation as to the necessity of an
evidentiary hearing or the propriety of granting a preliminary
injunction, Sweeney’s request for a preliminary injunction will
be held in abeyance pending receipt of Sweeney’s amended
complaint in this matter.
Conclusion
Sweeney is granted leave to amend his complaint within
thirty days of the date of this order.

In the amended

complaint, Sweeney must:
1.
Name each individual that he seeks to include as a
defendant to any of the claims in this action.

14

2.
State, with specificity, what each defendant did to
violate his constitutional rights. In particular, Sweeney
must state, with specificity, facts to demonstrate that:
a. each defendant named as to his medical care claim
acted with deliberate indifference in denying him
adequate treatment for his serious skin condition;
b. Sullivan used force against him on October 4, 2011,
and/or on October 9, 2012, that was excessive in light
of the surrounding circumstances;
c. each defendant named as to his retaliation claim
took actions or failed to take actions, which were
retaliatory and not insignificant or slight; and
d. such acts were taken with the intent to retaliate
against Sweeney for reporting to an NHSP official that
Sullivan had beaten him.
Sweeney’s failure to comply with this order may result in
the court’s recommendation that the complaint be dismissed, and
that the request for preliminary injunctive relief be denied.
The motion to reconsider (doc. no. 7) is denied without
prejudice to renewal.

The request for a preliminary injunction

in the complaint (doc. no. 1) is held in abeyance pending the
expiration of the time for Sweeney to file an amended complaint.
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
October 26, 2012
cc:

John J. Sweeney, Jr., pro se

LBM:jba

15