Carter v. Englander et al

Filing 57

///ORDER granting 47 Motion for Summary Judgment; denying as moot 41 Motion to Have Plaintiff Deposed by Alternative Methods. Clerk is directed to enter judgment and close the case. So Ordered by Chief Judge Landya B. McCafferty.(gla)

Case 1:17-cv-00052-LM Document 57 Filed 08/10/20 Page 1 of 11

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Carl L. Carter, Jr.
v.

Civil No. 17-cv-052-LM
Opinion No. 2020 DNH 139

Judy Baker

O R D E R
Plaintiff Carl L. Carter, Jr., filed this action pro se1 on
February 9, 2017, asserting an Eighth Amendment deliberate
indifference claim against defendants Judy Baker, Jessica
Pelletier, Tina Pageau, Corina Neculai, and Misty Gagne.2
Carter’s claim arises out of alleged delay in medical treatment
he sought from defendants while he was incarcerated.

Now before

the court is defendants’ motion for summary judgment.3

Carter later retained counsel, and was represented in
this action from March 21, 2019, through March 5, 2020. Since
March 5, Carter has proceeded without benefit of counsel.
1

Carter’s original complaint asserted five claims against
seventeen defendants. With benefit of counsel, Carter withdrew
four of his claims and stipulated to dismissal of twelve of the
originally named defendants. His remaining claim is a single
Eighth Amendment claim pled against all five of the remaining
defendants.
2

Defendants filed their motion for summary judgment on
January 31, 2020, while Carter was represented by counsel.
Carter’s counsel withdrew following a disagreement over whether
counsel remained “able to represent . . . Carter. . . consistent
with Rule 11 and his ethical responsibilities” after defendants
filed their motion. Doc. no. 50.
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STANDARD OF REVIEW
Summary judgment is proper only if the moving party can
demonstrate “that there is no evidence in the record to support
a judgment for the nonmoving party.”

Celotex Corp. v. Catrett,

477 U.S. 318, 332 (1986); see also Fed. R. Civ. P. 56(a).

If

the moving party succeeds in making that showing, “the burden
shifts to the nonmoving party, who must, with respect to each
issue on which []he would bear the burden of proof at trial,
demonstrate that a trier of fact could reasonably resolve that
issue in h[is] favor.”

Borges ex rel. S.M.B.W. v. Serrano-

Isern, 605 F.3d 1, 5 (1st Cir. 2010).

The nonmoving party’s

failure to meet that burden by reference to “significantly
probative” materials “of evidentiary quality” entitles the
moving party to summary judgment.

Flovac, Inc. v. Airvac, Inc.,

817 F.3d 849, 853 (1st Cir. 2016) (citations omitted).
In evaluating a motion for summary judgment, the courts
must view the evidence in the light most favorable to the
nonmoving party, must draw all reasonable inferences in that
party’s favor, and may neither make credibility determinations
nor weigh the evidence.

See, e.g., Lytle v. Household Mfg.,

Inc., 494 U.S. 545, 554-555 (1990); Harris v. Scarcelli, 835
F.3d 24, 29 (1st Cir. 2016).

As in other contexts, the courts

construe the pleadings of a pro se litigant liberally when

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determining the merits of a motion for summary judgment.

See

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

UNDISPUTED FACTS
The following statement of facts is drawn exclusively from
Carter’s deposition testimony.4

Carter’s deposition is proffered

by defendants and constitutes the only evidence of record.
Carter was incarcerated at the Northern New Hampshire
Correctional Facility (“NCF”) in Berlin, New Hampshire, from
approximately October 2013 through August 2015, and in the New
Hampshire State Prison for Men (“NHSP”) from approximately
August 2015 through August 2016.

Each of the defendants is a

nurse employed by the New Hampshire Department of Corrections as
medical staff at the NCF.
In February 2014, while Carter was incarcerated at NCF, a
foreign object became lodged in his left eye.5
13:1-2, 22:4-9, 32:6.

Doc. no. 47-2 at

The object caused him to experience

“irritation and discomfort,” but not pain.

Id. at 24:17-20,

33:20-24; but cf. id. at 79:20-22 (“the eye was more irritation
than it was pain, but there was pain that would happen once in a

Carter was deposed on December 9, 2019. At that time,
Carter was represented by counsel. Carter’s counsel was present
and defended Carter during the deposition proceeding.
4

Carter had diabetic retinopathy in his left eye, but not
his right, before he was incarcerated at NCF.
5

3

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while”).

Carter concedes that the presence of the object in

Carter’s eye did not place him at any “risk of serious harm.”
Id. at 24:17-20.
Carter attempted to dislodge the object himself, and after
failing to do so began complaining about its presence to the
defendants.

Id. at 33:2-7.

Although he reported his symptoms

to each of the defendants, none of them ever looked in his eye
to determine whether a foreign object was visible there.

Id. at

33:2-7, 37:4, 38:10-16, 40:14—42:4, 50:16—51:20, 52:27—59:8.
Instead, defendant Gagne provided him with eyedrops in the hope
of relieving his reported symptoms.

The eyedrops proved

ineffective.
Carter did not believe that defendants failed to treat his
condition because they were trying to make him suffer, but
rather because they did not believe his condition was important.
Id. at 41:4-23.

In addition, Carter concedes the possibility

that defendants did not believe that there was in fact an object
lodged in his eye, and that they may have believed he was
“faking trying to get something.”

Id. at 59:9-13.

Over the following two years, Carter underwent numerous eye
examinations, none of which revealed the presence of a foreign
object in his eye.

These included annual diabetic eye

examinations as well as quarterly head, ear, eyes, nose, and
throat examinations.

In addition to these regularly scheduled
4

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eye examinations, Carter was examined in August 2015 by an
outside physician who was unable to detect the object.6
On February 10, 2016, after Carter had been transferred to
NHSP, an eye specialist attempted without success to remove the
object from Carter’s eye.

On February 22, 2016, Carter

underwent an X-ray study in an unsuccessful effort to locate the
object.

Medical staff at NHSP nevertheless referred Carter to a

specialist who, on March 17, 2016, was able to locate and
surgically remove the object, which had been lodged under the
skin of Carter’s eye.
Since the object was removed, Carter occasionally has the
sensation that an object is stuck in his eye, and the eye
frequently waters and produces tears.

However, Carter does not

base his Eighth Amendment claim on any lingering consequences of
having had the object lodged in his eye, but rather on the
quality of and purported delay in the treatment he received
while he was incarcerated at NCF.

DISCUSSION
Carter asserts that defendants are liable under 42 U.S.C. §
1983 for violating his Eighth Amendment right to adequate

One of Carter’s fellow inmates who had been “a medic
during a war” also attempted to look for the object in Carter’s
eye but was unable to detect it.
6

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medical care while incarcerated.

Section 1983 “creates a remedy

for violations of federal rights committed by persons acting
under color of state law.”

Sanchez v. Pereira-Castillo, 590

F.3d 31, 40 (1st Cir. 2009) (internal quotation marks omitted).
A Section 1983 claim consists of three elements: “deprivation of
a right, a causal connection between the actor and the
deprivation, and state action.”

Id.

On the sole basis of

Carter’s deposition testimony regarding his underlying medical
condition and the treatment he received for it, defendants argue
that Carter cannot establish an actionable deprivation of his
Eighth Amendment rights.
It is well settled that a public official's "deliberate
indifference to a prisoner's serious illness or injury" violates
the Eighth Amendment's prohibition against cruel and unusual
punishment.

Estelle v. Gamble, 429 U.S. 97, 105 (1976).

To

establish an Eighth Amendment violation in the medical care
context, a prisoner must establish both (i) that he suffered an
objectively “serious medical need” while incarcerated and
(ii) that prison officials deliberately denied or delayed
medical care with actual subjective knowledge of the prisoner’s
serious need.

See Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir.

2014) (citations omitted).

Here, Carter cannot satisfy either

the objective or the subjective element of the test.

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“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.”

Miranda-Rivera v. Toledo-Davila, 813 F.3d

64, 74 (1st Cir. 2016) (citations, internal quotation marks
omitted).

A medical need may be serious with respect either to

current health problems or to a significant risk of future harm.
See Kosilek, 774 F.3d at 85-86.

A medical need is serious,

moreover, if failure to treat it would result in the “wanton
infliction of pain.”

Estelle, 429 U.S. at 104 (citation

omitted).
Carter testifies that the presence of the object in his eye
did not place him at any “risk of serious harm.”
at 24:17-20.

Doc. no. 47-2

He further testifies that the object did not cause

him to experience pain, but rather “irritation and discomfort.”
Id. at 24:17-20, 33:20-24.

And although he also testifies,

somewhat to the contrary, that “there was pain that would happen
once in a while,” his testimony clearly indicates that his
primary symptom “was more irritation than it was pain.”
79:20-22.

Id. at

Construing Carter’s testimony in the light most

favorable to him, his medical condition falls well short of
constituting a “serious medical need” for Eighth Amendment
purposes.

No physician ever diagnosed Carter with a condition

mandating treatment, and the irritating sensation of having an
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object stuck in the eye is not so patently serious that it would
be obvious to a layman that a doctor’s attention was required.
Carter’s condition did not result in serious lasting harm or in
any lingering consequence that Carter deems sufficiently
significant to underlie his claim.

Finally, although Carter

testifies to discomfort resulting from his condition, his
testimony is clear that he did not experience pain so severe,
debilitating, or protracted as to reach constitutional
proportions.

In short, the record evidence does not support the

conclusion that Carter suffered from an objectively serious
medical need.

See, e.g., Boardley v. Fist Corr. Med., Case No.

03-343-KAJ, 2004 WL 2980727 at *2 (D. Del. Dec. 21, 2004)
(infected ingrown toenails causing severe discomfort not a
serious medical need).
The record evidence similarly prevents Carter from
establishing defendants’ deliberate indifference.

To establish

subjective deliberate indifference, the evidence must
demonstrate that a defendant intentionally or purposefully
denied or delayed medical treatment, notwithstanding the
defendant’s actual knowledge of the serious need for care.

See

Farmer v. Brennan, 511 U.S. 825, 837 (1994); Perry v. Roy, 782
F.3d 73, 79 (1st Cir. 2015).

Evidence that a defendant

negligently or inadvertently provided substandard care, or
denied necessary care due to good faith error, is insufficient
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to establish deliberate indifference.
485 F.3d 150, 156 (1st Cir. 2007).

See Ruiz-Rosa v. Rullan,

Moreover, delay of treatment

does not amount to deliberate indifference for Eighth Amendment
purposes except where the delay causes actual harm.

See

Estelle, 429 U.S. at 106.
Carter does not testify that defendants intended to cause
him to suffer, and he concedes the possibility that defendants
did not subjectively believe he suffered from a serious medical
condition.

Doc. no. 47-2 at 41:4-23, 59:9-13.

He testifies

that defendants attempted, albeit unsuccessfully, to treat his
reported symptoms with eyedrops,7 and that he underwent numerous
eye examinations while he was incarcerated at NCF, none of which
was successful in detecting any foreign object in his eye.
Carter’s testimony thus establishes that defendants attempted to
treat his condition while providing no grounds for concluding
that defendants had actual knowledge of a serious medical need
underlying Carter’s symptoms.

At most, Carter’s testimony

supports the conclusion that defendants lacked compassion for
Carter’s discomfort.

This is insufficient to establish that

defendants purposefully withheld medical care with actual
awareness that failure to provide treatment would cause Carter

Although the eyedrops were ineffective in relieving
Carter’s symptoms, there is no evidence of record to suggest
that eyedrops were a medically inappropriate course of
treatment.
7

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to suffer harm.

See, e.g., Leavitt v. Corr. Med. Servs., Inc.,

645 F.3d 484, 503 (1st Cir. 2011) (absent evidence of bad faith,
obduracy, or wantonness, provision of ineffective treatment does
not amount to deliberate indifference).
Carter’s pro se status and failure to support his objection
to defendants’ motion with evidence do not constitute grounds
for disturbing the analysis above.

“A pro se litigant, like any

litigant, is guaranteed a meaningful opportunity to be heard.”
Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce, 20 F.3d 503,
506 (1st Cir. 1994) (citing Logan v. Zimmerman Brush Co., 455
U.S. 422, 437 (1982)).

“However, pro se status does not

insulate a party from complying with procedural and substantive
law.”

Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

The purpose motivating liberal construction of a pro se party’s
pleadings is to avoid outcomes in which the court fails properly
to consider the merits of a claim or defense simply because it
was imperfectly pled or presented.

See id.

Here, however,

nothing in Carter’s briefing suggests that he has either a
viable argument or any evidence to counter defendants’ motion.
It follows that defendants are entitled to summary judgment
as a matter of law as to Carter’s Eighth Amendment claim.

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CONCLUSION
For the reasons discussed above, defendants’ motion for
summary judgment (doc. no. 47) is granted.
are denied as moot.

All pending motions

The clerk’s office is directed to enter

judgment and close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
August 10, 2020
cc:

Carl L. Carter, Jr., pro se
Francis Charles Fredericks, Esq.
Anthony Galdieri, Esq.
Jennifer Ramsey, Esq.
Lawrence A. Vogelman, Esq.

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