Opinion
C.A. No. 00-104T
August 24, 2001
Charles A. Austin, pro se.
Jay M. Elias, Esq, Rebecca N. Warr, Esq, Thomas A. Palombo, Esq, Susan E. Urso, Esq.
Report and Recommendation
Charles A. Austin, pro Se, an inmate confined at the Adult Correctional Institution ("ACI"), Cranston, Rhode Island, has filed a Complaint pursuant to 42 U.S.C. § 1983 and 1985 alleging a violation of his First and Eighth Amendment rights. Plaintiff names as defendants numerous officials and personnel at the ACI.
This matter is currently before the Court on the motions of defendants Dr. Tej Bansal, Dr. Scott Allen, and Dr. Anne Spaulding to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has objected to the motions. This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that defendants' Bansal, Allen and Spaulding's motions to dismiss be granted.
Background The following are the factual allegations from the Complaint, which are taken as true for purposes of the instant motion:
Prior to his incarceration at the Adult Correctional Institution, plaintiff Charles A. Austin had a medical condition called colitis ("colitis"or "condition"). Upon his incarceration in 1996, this condition returned. Sometime in July 1996, plaintiff complained about this condition by submitting medical request slips to the medical staff at the ACI. Although he submitted medical request slips, plaintiff was not examined by any medical personnel. Plaintiff then began to write letters to Dr. Anne Spaulding, the medical program director at the ACI, and Joseph Marocco, the Health Care Administrator at the ACI, in an effort to seek treatment.
Plaintiff thereafter advised officials at the ACI that he had scheduled three medical appointments with physicians outside of the prison to treat his condition. Officials at the ACI, however, refused to allow the plaintiff to keep his scheduled appointments with these outside physicians.
In April 1997, plaintiff suffered from abdominal, neck and back pain, accompanied by bloody diarrhea and weight loss. Plaintiff then sought treatment from a prison doctor, Dr. Chang. Dr. Chang requested plaintiffs medical record from his previous physicians. Plaintiff alleges that this request for his medical records by Dr. Chang was an attempt to delay treatment. Plaintiff then avers that Dr. Chang misplaced the medical records and that he had to submit new copies to Dr. Chang.
Although Dr. Chang was in possession of the plaintiffs medical records, Dr. Chang refused to allow the plaintiff to make appointments with physicians outside of the prison walls. Dr. Chang informed the plaintiff that only Dr. Spaulding had the authority to grant such a request.
Plaintiff then more wrote letters to Dr. Spaulding and Joseph Marocco. Dr. Spaulding, in response to plaintiffs request to seek outside treatment, informed the plaintiff that Dr. Chang had the authority to send the plaintiff to an outside physician. Dr. Chang, then again indicated to the plaintiff that he had no such authority. In any event, neither Dr. Spaulding nor Dr. Chang gave their approval for outside treatment.
Meanwhile, plaintiff requested that he be placed on a special diet due to his condition. That request was denied by Dr. Chang and Laura Townsend, a dietician at the ACI.
In the summer of 1997, plaintiffs medical condition worsened and he demanded to be taken to an outside hospital. Plaintiff avers that it was obvious that he needed some type of medical treatment, because he suffered a loss in weight and was in obvious pain. However, while he repeatedly demanded to be taken to an outside facility, plaintiff was yelled at and threatened with disciplinary action.
In August 1997, plaintiffs was not able to walk upright due to the pain he was feeling and he again demanded to be taken to the hospital. This time, Plaintiffs demands were met and he was rushed to the emergency room at Rhode Island Hospital("RIH").
While at RIH, a resident intern examined the plaintiff. The plaintiff, however had difficulty communicating with the resident intern, because of interference from Correctional Officer Brooks. Brooks threatened the plaintiff with disciplinary action and "basically dragged [the plaintiff] out of the emergency room" into the DOC's van. Plaintiff was then transported back to the ACI with a prescription for medication. Plaintiff claims the medication was ineffective and made his condition worse. Plaintiff then alleges he spent the following week in more pain than he had been in.
After experiencing more bloody diarrhea, plaintiff was rushed back to RIH. There, a physician examined the plaintiff and sent him for a colonoscopy. Plaintiff remained in the hospital for ten days, receiving treatment. However while he was there, he was tied to the bed with a chain, which plaintiff avers was uncomfortable. Plaintiff also asserts he was harassed by correctional officers and mistreated by a nurse's aid. Plaintiff also complains that he was forced to walk in shackles, leg irons, and handcuffs, and that Dr. Spaulding used her influence to force plaintiffs attending physician to discharge the plaintiff prematurely.
When the plaintiff returned to the ACI, plaintiff faced disciplinary action. He was placed in solitary confinement and transferred from the Medium Security Unit to the Maximum Security Unit. When he was released from solitary confinement, plaintiff alleges that he requested more medical treatment and a special diet. Plaintiff then avers that he then "brought up the Ten Commandments and some religious passages." As a result of mentioning these religious passages, plaintiff asserts he was placed back into solitary confinement.
During the next six to eight months, Plaintiff once again began to experience bloody diarrhea and he requested medical treatment. Plaintiff was then transferred from maximum security to medium security. Plaintiff was thereafter taken to an outside doctor for treatment, who prescribed medications. Plaintiff, however, did not receive those medications until "weeks later."
In November 1998, plaintiff was taken to the hospital where he was admitted for thirty days due to chest pains and colitis. Upon his discharge from the hospital, plaintiff asserts that he did not receive all of the medications that he was prescribed.
Plaintiff, his family, and his lawyers made a special request for a medical release from the parole board. Upon the submission of a letter from an outside physician, the medical parole was granted. However, while he was awaiting release, plaintiff was placed in solitary confinement twice; the first time for requesting a prescribed diet and the second time, for expressing his religious views. As a result of this disciplinary action, plaintiffs medical parole was rescinded.
While in solitary confinement, plaintiff did not receive his medications. He went on a hunger strike for three days in protest. Plaintiff was thereafter assigned to the Maximum Security Unit where plaintiff did not receive a proper diet, follow up treatment, or his medication.
Based upon these factual allegations, plaintiff seeks redress. Plaintiff maintains that the defendants violated the First Amendment free exercise clause and the Eighth Amendment's prohibition against cruel and unusual punishment. Defendants Spaulding, Bansal, and Allen have moved to dismiss. Plaintiff has opposed the motions.
Discussion
A. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted. In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the complaint as true, and construe these facts in the light most favorable to the [plaintiff]." Chongris v. Board of Appeals, 811 F.2d 36, 37 (1st Cir. 1987). A Rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 102 (1957). Under a Rule 12 (b)(6) motion, "a reviewing court is obliged neither to credit bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation, nor to honor subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Conp, . . 962 F.2d 108, 115 (1st Cir. 1992). Unverifiable conclusions, not supported by the stated facts, deserve no deference. Id. Thus in ruling on the motion to dismiss, the pertinent inquiry is whether plaintiffs complaint sets forth sufficient factual allegations which, if proven, would support his claims of a deprivation of federal rights.
B. 42 U.S.C. § 1983 Plaintiff has brought suit pursuant to 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983.
Thus, in order to maintain a section 1983 action, the conduct complained must be committed by a person acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923 (1980); see also, Baker v. McCollan 443 U.S. 137, 99 S.Ct. 2689 (1979) (constitutional deprivations); Maine v. Thiboutot 448 U.S. 1, 100 S.Ct. 2502 (1980) (statutory deprivations). Here, there is no dispute that the named defendants acted under the color of law. However, the defendants assert that the facts averred fail to set forth a constitutional deprivation. I agree.
1. Plaintiff's First Amendment Claims against Drs. Bansal, Spaulding, and Allen Should be Dismissed.
The First Amendment to the U.S. Constitution provides, in pertinent part, that the government shall not make any law prohibiting the free exercise of religion. U.S. Const. amend.I. Inmates retain protections afforded under the First Amendment, including its directive the government shall not prohibit the free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404 (1987).
Here, plaintiff asserts that this right was infringed upon when (1) he was disciplined for mentioning religious passages and (2) he was disciplined for expressing his religious views. However, plaintiffs assertions in his complaint fail to connect the moving defendants, Drs. Bansal, Spaulding, and Allen, to any of the alleged interference with his First Amendment rights. A defendant in a § 1983 action must have some connection to the alleged wrongdoing. LoDez Morales v. Otero de Ramos. 725 F. Supp. 106 (D.P.R. 1989). Accordingly, defendants Bansal, Spaulding, and Allen's motion to dismiss should be granted with respect to plaintiffs claims made under the First Amendment. I so recommend.
2. Plaintiff's Eighth Amendment Claims Against Drs. Allen, Bansal, and Spaulding Should be Dismissed.
The Eighth Amendment to the U.S. Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. The Cruel and Unusual Punishments Clause was designed to protect those convicted of crimes, and can limit the type of punishment that is imposed. Ingraham v. Wright, 430 U.S. 651, 664, 97 S.Ct. 1401, 1408 (1977). After an individual is incarcerated, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment.Whitely v. Albers, 475 U.S. 312, 318-319, 106 S.Ct. 1078, 1083-1084 (1986). "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause . . . ." Id.
The failure to provide medical attention to an injured prisoner can be an Eighth Amendment violation. See. e.g., Lavnev. Vinzant, 657 F.2d 468 (itt Cir. 1981); Rosen v. Chang, 758 F. Supp. 799 (D.R.I. 1991). "In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). Officials must "intentionally" delay or completely deny access to medical care. Id. at 104-05.
Deliberate indifference requires a state of mind akin to criminal recklessness; that the official knew of and consciously disregarded a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970 (1994); Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st Cir. 1995); Kogut v. Katz, 187 F.3d 622 (1st Cir. 1998). Deliberate indifference to the medical needs of an inmate amounts to an Eighth Amendment violation only when the needs of the inmate are serious. Hudson v. McMillian. 503 U.S. 1, 112 S.Ct. 995 (1992).
The seriousness of an inmates injuries are measured objectively.Wilson v. Seiter, 501 U.S. 294, 298, 11 S.Ct. 2312 (1991). "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."' Mahan, 64 F.3d at 18 (quoting Gaudreault v. Municipality of Salem. Mass., 923 F.2d 203, 208 (1's Cir 1990)).
a. Dr. Spaulding.
Here, plaintiff alleges that Dr. Spaulding refused to send the plaintiff for outside treatment, and that Spaulding cut short plaintiffs ten day stay in RIH by using her influence to get the plaintiff discharged early. These allegations fail to rise to the level of a violation of the plaintiffs Eight Amendment rights. At most, plaintiff here is complaining about the adequacies of his medical treatment. Plaintiff prefers to be examined by a physician outside of the AC! and wished to stay in the hospital longer. However the "right to be free from cruel and unusual punishment does not include the right to the treatment of one's choice." Layne v. Vinzant, 657 F.2d 468, 473 (1St Cir. 1981). Where a prisoner has received some medical attention, federal courts are reluctant to second guess medical judgements and to constitutionalize claims which sound in state tort law. Id. at 474. Accordingly, plaintiff fails to state a claim against Dr. Spaulding, and her motion to dismiss should be granted. I so recommend.
b. Drs. Bansal and Allen.
In his Complaint, plaintiff alleges that Drs. Bansal and Allen were "responsible to provide timely and adequate medical care to all inmates . . ." and that they had "the duty to respond to inmates medical requests. . . ." See Complaint ¶¶ 4, 5, 16, 22. No where else in the Complaint does the plaintiff mention these defendants. In order to state a cognizable Eight Amendment claim, a prisoner must allege acts or omission sufficiently harmful to evidence deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. at 105. Here, plaintiff has averred no facts concerning any deliberate indifference by Bansal and Allen. Rather, plaintiff merely alleges that Bansal and Spaulding had a duty to provide treatment to all inmates. Accordingly, plaintiff's complaint fails to state an Eighth Amendment deliberate indifference claim against Bansal and Allen, and they should be dismissed from this action, pursuant to Fed.R.Civ.P. 12(b)(6). I so recommend.
C. Plaintiff's Claims under 42 U.S.C. § 1985 against Drs. Allen, Bansal, and Spaulding Should be Dismissed.
Plaintiff also asserts a claim based upon 42 U.S.C. § 1985. Section 1985 confers a private cause of action for injuries occasioned when "two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws. 42 U.S.C. § 1985 (3). To state a claim under § 1985(3), a plaintiff must allege the existence of (I) a conspiracy (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of equal protections of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) an injury to person or property, or a deprivation of a constitutionally protected right. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798 (1971); Aulson v. Blanchard, 83 F.3d 1, 2 (1St Cir. 1996). Additionally, a plaintiff must allege that the conspiratorial conduct complained of is propelled by "some racial, or otherwise class based, invidiously discriminatory animus." Id.
Here, plaintiffs claims based under § 1985 should fail. Plaintiff has alleged no facts that would indicate a conspiracy, nor has he alleged any facts indicating that any conduct that was based upon "racial or perhaps otherwise class based, invidious discriminatory animus." See id. Accordingly, Drs. Allen, Bansal, and Spaulding's motion to dismiss plaintiffs Section 1985 claims should be granted. I so recommend.
Conclusion
For the reasons stated above, I recommend that Drs. Allen, Bansal, and Spaulding's motions to dismiss be granted. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. ValenciaCopete, 792 F.2d 4 (1st Cir. 1986) (per curiam);Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1St Cir. 1980).