Shepard v. McClosky et al

Filing 68

ORDER granting 55 Motion for Summary Judgment; denying 65 Motion for Partial Summary Judgment- So Ordered by District Judge John J. McConnell, Jr. on 10/24/2018. (Barletta, Barbara)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

JOSEPH W. SHEPARD,
Plaintiff,

v.
RICHARD MCCLOSKY, RN and
NANCYHALL, RN,l
Defendants.

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C.A. No. 16·407-JJM-LDA

ORDER
Joseph W. Shepard, an inmate with the R.I. Department of Conections, seeks
damages under 42 U.S.C. 1983, alleging that nurses at the correctional facility failed
to provide him prompt medical treatment when he was bleeding profusely from his
rectum, a week after having hemorrhoid surgery. The question presented by these
cross-motions for summary judgment is whether there are sufficient facts to support
the two-pronged requirements set forth by the United States Supreme Court in

Fa1'111e1· v. B1·ennan, i.e. (1) the deprivation alleged must be, objectively, "sufficiently
serious," and (2) a prison official must have a "sufficiently culpable state of mind"
that constitutes "deliberate indifference" to inmate health or safety. 511 U.S. 825,
834 (1994) (citing Wilson v. Seite1~ 501 U.S. 298, 303 (1991)). For reasons set forth
below, the Court GRANTS the Defendants' Motion for Summary Judgment (ECF No.
55) and DENIES the Plaintiffs Motion for Summary Judgment. ECF No. 62.

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The Defendant's actual name is Nancy Ruotolo Hull.

I.

RELEVANT FACTS
After undergoing hemorrhoid surgery at Rhode Island Hospital, Joseph

Shepard was discharged and returned to the state prison.

Hospital personnel

informed him to advise prison medical providers if there were any acute changes
including "bleeding, puss, or drainage, or severe pain." Nine days later, Mr. Shepard
awoke at 6 a.m. with severe anal pain with his sheets and clothing soaked in his own
blood. He called out of his cell for help from correctional officers. Officers contacted
high security medical staff.
Nurse Richard McCloskey, who was in the cell block distributing medicines to
inmates, arrived at Mr. Shepard's cell. He noticed the bloody area and blood-soaked
bedding. He performed a cursory observation of Mr. Shepard's open wound and told
him he would get some gauze. Mr. Shepard told Nurse J\IIcCloskey that he was in
extreme pain and that hospital personnel had told him to return to the hospital if the
wound re-opened. Nurse McCloskey told Mr. Shepard that he could not go to the
hospital and that "this is what happens when you have hemorrhoids, you're going to
have to deal with it." Mr. Shepard continued to bleed profusely.
Later that afternoon, prison officials transferred Mr. Shepard to the intake
facility because of new criminal charges. Nurse Nancy Ruotolo Hull conducted a
medical screening of Mr. Shepard. According to Mr. Shepard, Nurse Hull appeared
"grossed out" at the sight of his condition and became verbally abusive, stating,
"Looks like you got your period, you should be at the women's facility." She provided

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Mr. Shepard with additional protective brief underwear.

She then placed Mr.

Shepard into a windowed observation cell where Nurse Hull told him to "rest it off."
At about 5:00p.m. that evening, a second-shift nurse Steven Fortin evaluated
Mr. Shepard and called prison physician Dr. Simon Melnick and Medical Director Dr.
Fred Vohr. Dr. Melnick ordered Mr. Shepard to be transported to and evaluated at
Rhode Isla nd Hospital.
Medical personnel at Rhode Island Hospital examined Mr. Shepard. He had
abnormal vital signs.

The doctors treated him for anemia and performed silver

nitrate cauterization to his wound. Medical personnel applied a dressing to the
wound. The hospital doctors prescribed pain medication. He returned to the prison
at about 10 p.m. that evening.
Nothing shows any medical issues with Mr. Shepard beyond that evening.

II.

STANDARD OF REVIEW
A "court shall grant summary judgment if the movant 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 fact is material only if it possesses the capacity
to sway the outcome of the litigation; a dispute is genuine if the evidence about the
fact is such that a reasonable jury could resolve the point in the favor of the
nonmoving party. Est1·ada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010) (quoting

Vinebe1-g v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)); Santiago-Ramos v.
Centennial PR. Wireless C01p., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sanchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). When there are cross-motions for

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summary judgment, as there are here, "[the Court] evaluate[s] each motion
independently and determine[s] 'whether either of the parties deserves judgment as
a matter oflaw on facts that are not disputed."' Matusevicll v. Middlesex Mut. Assur.

Co., 782 F.3d 56, 59 (1st Cir. 2015) (quoting Banws v. Fleet Nat'l Bank, N.A., 370
F. 3d 164, 170 (1st Cir. 2004)). In viewing each motion separately, the Court "draw[s]
all inferences in favor of the nonmoving party." Cooper v. D'Amore, 881 F.3d 247,
249-50 (1st Cir. 2018) (quoting Fadili v. Deutsche Bank Nat'IJi·. Co., 772 F. 3d 951,
953 (1st Cir. 2014)).
III.

APPLICATION OF FACTS AND LAW
The Eight Amendment to the United States Constitution mandates that the

government not inflict cruel and unusual punishment. In the context of medical
treatment a prisoner receives (or fails to receive), the United States Supreme Court
in Farmm· v. B1'e11nan established a two·prong test a plaintiff must meet to hold a
prison official liable for violating the Eighth Amendment.
First, the deprivation, or maltreatment alleged must be "objectively and
'sufficiently serious."' Fa1n1el'~ 511 U.S. at 834 (quoting Wilson, 501 U.S. at 298). The
First Circuit has held that "a 'serious medical need' is one 'that has been diagnosed
by a physician as a mandating treatment, or one that is so obvious that even a
layperson would easily recognize the necessity for a doctor's attention."' Mahan v.

Plymouth Cty. House of Co1·r., 64 F. 3d 14, 18 (1st Cir. 1995) (quoting Gaudreault v.
Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990)). The "seriousness"

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of an inmate's needs may be determined by reference to the effect of the delay of
treatment. Gaudreault, 923 F.2d at 208.
Second, under

Fanne1~

the defendants must possess a culpable state of mind,

meaning that they were deliberate in their indifference to the prisoner's health or
safety. 511 U.S. at 834. The deliberate indifference standard for a claim based on
inadequate medical care "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 v. Con·. Med. Se1·vs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (citing

Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)) (citations and internal quotation
marks omitted).
A review of the facts in the light most favorable to Mr. Shepard shows that he
has not meet the first criteria.
Both Defendants, Nurse McCloskey, and Nurse Hull, examined, assessed, and
treated Mr. Shepard. They took his vital signs that they reported as normal. They
provided him with gauze and extra undergarments. Three nurses at the prison
treated and examined Mr. Shepard on the day in question. While Mr. Shepard
wanted to be transported to the hospital in the morning, he was in fact transported
in the afternoon. At best, the allegations in the complaint amount to an approximate
8-9 hour delay in treatment.

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Moreover, there is no evidence that the delay caused Mr. Shepard any
appreciable harm. Although he certainly endured some discomfort, anxiety, and
pain, Mr. Shepard can prove no set of facts amounting to damages as to constitute
constitutionally recognized cruel and unusual punishment. Mr. Shepard simply
disagreed with the treatment he received from Nurses McCloskey and Hull and their
assessment of his medical needs. There is no evidence that their assessment and care
for Mr. Shepard while he was at the prison violated any standard of care required by
the medical profession.
Taking the facts in the light most favorable to Mr. Shepard, the facts point to
a delay in hospital treatment, negligence at best, insufficient to form a constitutional
violation. "[A]n inmate who complains that delay in medical treatment rose to a
constitutional violation must place verifying medical evidence in the record to
establish the detn'mental effect of the delay." Napie1· v. Madison Cty., I(y., 238 F.3d
739, 742 (6th Cir. 2001) (emphasis added). There was no serious harm to Mr. Shepard
as several nurses monitored him, then ultimately sent him to the hospital.

He

returned to the prison in stable condition following a simple cauterization procedure.
Thus, Mr. Shepard has failed to set forth facts sufficient to support allegations that
rise to the level of a constitutional violation.
As for the allegations that Nurse Hull ridiculed him during her examination,
the Eighth Amendment prohibition against cruel and unusual punishment against
prisoners do not protect against this isolated type of verbal abuse. See Fischl v.
Al:mitage, 128 F.3cl 50, 55 (2d Cir. 1997) ("[M]ere allegations of verbal abuse, threats

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or defamations by a correctional officer to a prisoner are not cognizable in a Section
1983 action."); Bender v. B1·umley, 1 F. 3d 271, 274 (5th Cir. 1993) (holding that verbal
abuse, threatening language and gestures by a correctional officer are not a
constitutional violation). While Mr. Shepard alleges some seemingly unkind and
inhumane comments by the nurse at the prison, they simply do not rise to the level
of constitutional proportion.
Mr. Shepard has failed to establish an objectively serious violation of his
constitutional rights. The Court therefore need not determine the second prong of
the

Fal'JJJel'

test, i.e., if there is sufficient evidence of deliberate indifference by any

prison official.
IV.

CONCLUSION
While Mr. Shepard has complaints about the medical treatment he received on

February 19, 2015, while in state prison, he has failed to establish a constitutional
violation because there is insufficient evidence to show that the deprivation alleged
was, objectively, "sufficiently serious."

Therefore, the Court GRANTS the

Defendants' Motion for Summary Judgment (ECF No. 55) and DENIES the Plaintiffs
Motion for Summary Judgment.

ECF No. 62.

Defendants.

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Judgment will enter for the

John J. McConne , Jr.
United States District Judge
October 24, 2018

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