Contino v. Hillsborough County Department of Corrections
/// ORDER dismissing the 1 Complaint without prejudice. The Clerk shall enter judgment in accordance with the Order and close the case. So Ordered by Judge Steven J. McAuliffe.(jab)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Case No. 14-cv-113-SM
Opinion No. 2014 DNH 082
Department of Corrections,
O R D E R
Pro se Plaintiff Dominic Contino’s complaint (doc. no. 1) is
before the court for preliminary review.
28 U.S.C. § 1915(e).
See L.R. 4.3(d)(2);
Dismissal is appropriate if the complaint
fails to state a claim or if the court lacks subject matter
L.R. 4.3(d)(2); 28 U.S.C. § 1915.
The court construes the pro se complaint liberally.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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 to
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st
Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
From September of 2013 until sometime in March of 2014,
Contino was a pretrial detainee at the Hillsborough County jail.
In December, Contino tore his Achilles tendon while playing
He sought and received medical treatment at the
jail, but alleges that two months went by before he was properly
He alleges that he should have been given a leg brace
immediately and that, because of the delay in diagnosis and
treatment, he now needs surgery.
Having filled out a standard form entitled “Complaint Under
the Civil Rights Act, 42 U.S.C. § 1983,” Contino alleges that the
defendant, Hillsborough County Department of Corrections,
committed “medical malpractice” in its diagnosis of his torn
Complt., doc., no. 1, at 2.
He seeks monetary
compensation for the additional testing and surgery he now
requires to properly repair the tendon.
As a pretrial detainee, Contino’s “right to adequate medical
. . . care during his incarceration arises under the Fourteenth
Amendment’s Due Process Clause.”
Fox v. Clancy, 2013 WL 3245332,
at *2 (D.N.H. June 26, 2013) (citing Suprenant v. Rivas, 424 F.3d
5, 18 (1st Cir. 2005)).
In general, “the standard applied under
the Fourteenth Amendment is the same as the Eighth Amendment
standard” for convicted inmates.
150, 155 (1st Cir. 2007).
Ruiz-Rosa v. Rullan, 485 F.3d
“In order to state a constitutional
claim for the denial of medical . . . care,” therefore, Contino
“must allege that defendants have committed ‘acts or omissions
. . . sufficiently harmful to evidence deliberate indifference to
serious medial needs.’”
Fox, 2013 WL 3245332, at *2 (quoting
Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir. 2011)).
A claim of medical malpractice, that is, a claim “that a
physician has been negligent in diagnosing and treating a medical
condition,” does not constitute “a valid claim of medical
mistreatment” under the constitution.
Estelle v. Gamble, 429
U.S. 97, 106 (1976) (applying Eighth Amendment standard).
Even read liberally, the complaint alleges that prison
medical personnel were merely negligent, not that they acted or
failed to act in a constitutionally significant manner.
court will assume, without deciding, that a torn Achilles tendon
is a serious medical condition.
See Zeigler v. PHS Correctional
Health Care, Inc., 2012 WL 1971149, at *4 (W.D. Pa. June 1, 2012)
(finding that a ruptured Achilles tendon is a serious medical
condition and collecting cases).
The facts alleged, however, do
not support an inference that the prison personnel were
deliberately indifferent to this serious medical need.
was seen five times by medical personnel from December of 2013 to
the beginning of March, 2014: he was diagnosed with a sprain on
the first two visits, and a torn Achilles tendon was correctly
diagnosed on the third; x-rays were taken on the forth visit;
and, on March 4, 2014, he was taken to Elliot Hospital for
Contino was released from the jail sometime
within the next three weeks.
He does not allege that prison
personnel refused to treat him, or wantonly caused him
For these reasons, Contino does not state a claim arising
under federal law.
This court does not, therefore, have federal
question subject matter jurisdiction over Contino’s claim.
28 U.S.C. § 1331.
The court could hear Contino’s apparent state
law medical malpractice claim under the court’s diversity of
citizenship jurisdiction if the parties were citizens of
See 28 U.S.C. § 1332.
But, they are not.
Dismissal, without prejudice, therefore, is necessarily
warranted, and plaintiff may seek to redress this medical
negligence claim in the available state courts.
The complaint is dismissed without prejudice.
shall enter judgment in accordance with this Order and close the
Steven J. McAuliffe
United States District Judge
April 23, 2014
Dominic Contino, pro se
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