Lariviere v. Hillsborough County Department of Corrections, Superintendent et al

Filing 97

///ORDER granting 73 Motion for Summary Judgment; granting 87 Motion for Summary Judgment. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Richard LaRiviere
v.

Civil No. 14-cv-405-JD
Opinion No. 2016 DNH 180

Lynda Wheeler and Mattew Masewic

O R D E R
Richard LaRiviere, proceeding pro se and in forma pauperis,
brings civil rights claims under 42 U.S.C. § 1983 against
employees of the Hillsborough County Department of Corrections
(“HCDOC”).

Claims against several defendants have been

dismissed, leaving Lynda Wheeler and Matthew Masewic as the
remaining defendants.

Wheeler and Masewic have moved for

summary judgment on all claims against them.
Procedural Background
After Wheeler moved for summary judgment, LaRiviere moved
for appointment of counsel to represent him.

In support of his

motion, LaRiviere represented that he was being held in the
special housing unit of the prison where he was incarcerated and
that his mental health had deteriorated to the extent that he
was no longer able to proceed pro se.
to the motion to appoint counsel.

The defendants objected

The court required LaRiviere to provide psychiatric
treatment records and his own sworn affidavit to support his
representations of an inability to proceed pro se.

After

LaRiviere was moved to a different facility, the court ordered
the medical staff there to send LaRiviere’s current psychiatric
treatment records to the court under seal.

The court also

stayed all deadlines in the case, including the deadline for
LaRiviere to respond to the pending motions for summary
judgment.
After receiving and reviewing LaRiviere’s records, the
court concluded that LaRiviere is capable of proceeding pro se
and denied his motion for appointment of counsel.

The stay was

terminated, and the court set a deadline for LaRiviere to
respond to the motions for summary judgment.

LaRiviere did not

file a response.
Standard of Review
Summary judgment is appropriate when the moving party
“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).

“A genuine dispute is one that a

reasonable fact-finder could resolve in favor of either party
and a material fact is one that could affect the outcome of the
case.”

Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir.

2015).

The facts and reasonable inferences are taken in the
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light most favorable to the nonmoving party.

McGunigle v. City

of Quincy, --- F.3d ---, 2016 WL 4570420, at *7 (1st Cir. Aug.
21, 2016).

“On issues where the movant does not have the burden

of proof at trial, the movant can succeed on summary judgment by
showing ‘that there is an absence of evidence to support the
nonmoving party’s case.’”

OneBeacon Am. Ins. Co. v. Commercial

Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st Cir. 2012)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
“All properly supported material facts set forth in the
moving party’s factual statement may be deemed admitted unless
properly opposed by the adverse party.”

LR 56.1(b).

Because

LaRiviere failed to respond to the motions for summary judgment,
the properly supported material facts provided in support of the
motions are taken as true.

Even when a motion for summary

judgment is unopposed, the court must review the motion on the
merits based on the undisputed facts, but the court is not
obligated to develop arguments or search for evidence to oppose
the motion on behalf of the nonmoving party.

Alberti v. Carlo-

Izquierdo, 548 F. App’x 625, 635 (1st Cir. 2013).
Factual Background
LaRiviere’s claims in this case arise from events that
occurred during his incarceration as a pretrial detainee at
HCDOC in 2014 and focus on his suicide attempt on June 17, 2014.

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Lynda Wheeler was a nurse at the jail while LaRiviere was held
there.

Matthew Masewic was a medical doctor who contracted with

the HCDOC to provide medical services at the jail.
Following preliminary review, LaRiviere’s claims in Counts
I and II, alleging inadequate medical care, were allowed to
proceed against Wheeler and Masewic, along with others who are
no longer in the case.

Those claims are based on allegations

that the defendants denied LaRiviere medication for his severe
depression, declined to refer him for mental health care despite
repeated requests and knowledge of his severe depression, denied
him pain medication that had been ordered by the Elliot Hospital
doctor who treated LaRiviere’s self-inflicted injury to his leg
in a suicide attempt, and failed to properly care for
LaRiviere’s wound, causing it to become infected and painful.
Wheeler has established through her own affidavit and the
affidavit of Denise Ryan, the Health Services Administrator for
HCDOC, that she was not authorized to prescribe medication or
adjust prescriptions for medication.

Wheeler shows that

although LaRiviere had contact with many members of the HCDOC
medical staff, Wheeler had only limited contact with him.
Wheeler also shows that LaRiviere could have requested mental
health care and that other medical care providers cared for his
wound.

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Masewic provides undisputed evidence that the jail had a
mandatory grievance procedure to address complaints by inmates
and detainees.

While incarcerated at HCDOC, LaRiviere filed

only one grievance form.

On that form, LaRiviere stated that he

needed to speak to a doctor about a rash and chronic lower back
pain.

He also charges that Wheeler has a grudge against him.

Ryan responded to the grievance, explaining that LaRiviere was
on restrictions because of a detox watch and a history of
seizures and that the doctor would review blood test results
aimed at the rash and would contact LaRiviere.

LaRiviere never

filed a grievance against Masewic and never complained about a
lack of mental health care.
Discussion
Wheeler moves for summary judgment in her favor on the
claims against her on the grounds that LaRiviere cannot show
that she was deliberately indifferent to his medical needs and
that she is entitled to qualified immunity.

Masewic moves for

summary judgment on the ground that LaRiviere did not exhaust
available administrative remedies before bringing his claims
against him.

LaRiviere did not respond to either motion.

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I.

Wheeler
As determined on preliminary review, LaRiviere alleges that

medical providers at HCDOC, including Wheeler, failed to provide
adequate health care.

The Fourteenth Amendment protects a

pretrial detainee from unconstitutional conditions of
confinement.
2005).

Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir.

The Fourteenth Amendment right provides as least as much

protection as the “Eighth Amendment’s prohibition against cruel
and unusual punishment.”

Id.

Prison employees violate the

Fourteenth Amendment, therefore, if they act with deliberate
indifference to a detainee’s serious medical needs. Feeney v.
Corr. Med. Servs., 464 F.3d 158, 161-62 (1st Cir. 2006).
Deliberate indifference is a subjective inquiry which
requires proof that the defendant knew of a substantial risk of
harm or knew of facts from which he or she could infer that risk
existed and did draw that inference.

Leavitt v. Corr. Med.

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

Stated in other

terms, deliberate indifference occurs when care is denied as
punishment or when medical decisions are made recklessly with
knowledge of a risk of harm that could be prevented.

Id.

Negligence, however, is not evidence of deliberate indifference.
Id.
Whether a detainee’s medical need is serious is an
objective inquiry.

Id.

A medical need is objectively
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sufficiently serious if the condition is diagnosed by a doctor
as requiring treatment or if it is so obvious that even someone
without medical training would recognize the need.

Id.

In

addition, “[t]he seriousness of an inmate’s needs may also be
determined by reference to the effect of the delay of
treatment.”

Id. at 497-98 (internal quotation marks omitted).

Wheeler contends that LaRiviere cannot prove that she was
deliberately indifferent to his serious medical needs.
Alternatively, Wheeler contends that she is entitled to
qualified immunity.

Because the claim is resolved on the

merits, it is not necessary to consider qualified immunity.
The undisputed facts show that Wheeler was part of the
medical staff at HCDOC when LaRiviere was held there and that
she treated LaRiviere on several occasions.

After LaRiviere

attempted suicide on June 17, 2014, he was put on a special
watch, and Wheeler checked him during that time.

LaRiviere did

not ask for additional mental health services during any of
Wheeler’s interactions with him.

Wheeler provided LaRiviere’s

medications to him, as ordered by the doctor or other staff.
When LaRiviere complained of acid reflux and constipation
and asked for reading glasses, Wheeler assessed him and noted
the doctor’s examination two weeks previously.

Wheeler

recommended that he receive Colace and reading glasses and gave
him other instructions to deal with constipation.
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On three

following occasions, Wheeler again ordered over the counter
treatments for LaRiviere’s complaints.
The record does not support LaRiviere’s allegations that
Wheeler was deliberately indifferent to his serious medical
needs.

Instead, the record shows that Wheeler treated LaRiviere

based on his prescriptions and doctor’s orders and also
addressed LaRiviere’s complaints of other issues.

Even if

LaRiviere objects to the course of treatment provided by
Wheeler, that is not enough in this case to show deliberate
indifference.

See Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (2st

Cir. 2007); Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987).
Therefore, Wheeler is entitled to summary judgment in her
favor on all claims against her.
II.

Masewic
LaRiviere claims that Masewic was part of the medical staff

at HCDOC that denied him adequate medical care for his serious
medical needs.

Masewic moves for summary judgment on the ground

that LaRiviere failed to exhaust administrative remedies at the
HCDOC by filing a grievance against him to raise the medical
care issues.
A prisoner is prohibited from bringing a claim challenging
prison conditions under § 1983 “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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To satisfy the requirements of § 1997e(a), the prisoner must
exhaust the administrative remedies properly, which includes
“compliance with an agency’s deadlines and other procedural
rules.”

Woodford v. Ngo, 548 U.S. 81, 91 (2006).

Failure to

exhaust is an affirmative defense to the claim brought by the
prisoner.

Jones v. Bock, 549 U.S. 199, 211 (2007).

Masewic provides undisputed evidence that HCDOC had a
mandatory grievance procedure in 2014 when LaRiviere was
detained there.

The court previously addressed the grievance

procedure at HCDOC in the context of a motion to dismiss filed
by another defendant, Adam Rosario.

See Doc. no. 71.

Masewic

also shows that LaRiviere did not file a grievance about the
medical treatment provided by Masewic.

Because LaRiviere did

not respond to the motion for summary judgment, he provides no
contrary evidence or argument.
Therefore, Masewic has met his burden of showing that
LaRiviere failed to exhaust the administrative remedies that
were available to him before he filed suit.

Therefore, Masewic

is entitled to summary judgment on LaRiviere’s claims in Counts
I and II.
Conclusion
For the foregoing reasons, the defendants’ motions for
summary judgment (documents 73 and 87) are granted.

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Because all claims in the case are now resolved in favor of
the defendants, the clerk of court shall enter judgment
accordingly and close the case.
SO ORDERED.

__________________________
Joseph DiClerico, Jr.
United States District Judge
October 6, 2016
cc:

Richard LaRiviere, pro se
John A. Curran, Esq.
Sarah S. Murdough, Esq.

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