Dellairo v. Garland, CIV. 02-42-B-C.

• Decision Date: 04 September 2002
• Docket Number: No. CIV. 02-42-B-C.,CIV. 02-42-B-C.
• Citation: 222 F.Supp.2d 86
• Parties: Robert DELLAIRO, Plaintiff v. Timothy GARLAND, Defendant
• Court: U.S. District Court — District of Maine

222 F.Supp.2d 86

Robert DELLAIRO, Plaintiff v. Timothy GARLAND, Defendant

No. CIV. 02-42-B-C.

United States District Court, D. Maine.

September 4, 2002.

Robert Dellairo, South Windham, ME, Pro se.

Steven J. Mogul, Gross, Minsky & Mogul, P.A., Bangor, ME, for defendants.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

GENE CARTER, District Judge.

The United States Magistrate judge having filed with the Court on July 25, 2002, with copies to the pro se Plaintiff and to counsel, her Recommended Decision on Motion to Dismiss 42 U.S.C. § 1983 Complaint in the above-entitled matter (Docket No. 15); and the time for filing objections thereto having expired without any objections having been filed; see 28 U.S.C. § 636(b)(1); and this Court having reviewed and consideration the Magistrate Judge's Recommended Decision, together with the entire record; and having made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and this Court concurring with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision, and having determined that no further proceeding is necessary; it is ORDERED as follows:

(1) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED;

(2) Defendant's Motion to Dismiss (Docket No. 11) is hereby DENIED.

RECOMMENDED DECISION ON MOTION TO DISMISS 42 U.S.C. § 1983 COMPLAINT

KRAVCHUK, United States Magistrate Judge.

Robert Dellairo, an inmate serving a nine-month sentence at the Penobscot County Jail, proceeding pro se and in forma pauperis, presses a 42 U.S.C. § 1983 complaint against Timothy Garland alleging that Garland violated Dellairo's constitutional right to be free from cruel and unusual punishment promised by the Eighth Amendment. (Docket No. 1.)¹ Garland is a physician assistant at the jail. The punishment of which Dellairo complains is that Garland has been deliberately indifferent in responding to a growth in Dellairo's ankle that causes substantial pain and threatens long-term impairment if left untreated. Garland has responded with a motion to dismiss (Docket No. 11) arguing that Dellairo has not sufficiently alleged a deliberate indifference claim and, in the alternative, he should be spared the burdens of this suit because he is entitled to qualified immunity.² For the reasons articulated below, I recommend that the Court DENY the motion to dismiss.

DISCUSSION

A. Factual Allegations

In his original handwritten complaint and a pre-answer amendment filed on April 28, 2002, which is accompanied by an affidavit (Docket No. 8) Dellairo alleges as follows. In September 2001, one week prior to his incarceration, Dellairo was seen in the emergency room of the Eastern Maine Medical Center by a doctor. That doctor told Dellairo that he had a growth in his left ankle that was growing into the bone and needed surgery. He prescribed a pain medication in the interim. The surgery was scheduled but prior to the date set for the surgery Dellairo was incarcerated at the Penobscot County Jail.

At the jail Dellairo was seen by Garland on October 12, 2001, at which point Dellairo described the problems with his left ankle, explained that the growth was growing into his bone, complained that he was in serious pain, and reported that the doctor he had seen just prior to his incarceration had recommended surgery. Garland said he would send for Dellairo's x-rays and get back to him. Several months went by without action by Garland.

During the six months prior to the filing of the complaint Dellairo filled out many medical slips and lodged three grievances. In response to his December 5, 2001, grievance Garland stated that Dellairo's doctor was not refilling his pain medication. Dellairo explains that the pain medication referred to by Garland was for his back and not his left ankle and that Garland should have made sure that he was clear on whether there was an order for pain killer vis-à-vis the ankle. When Dellairo was seen on February 15, 2002, in response to his third grievance Garland became agitated and asked Dellairo to leave his office. With respect to Garland's description of Dellairo as "loud, demanding, and uncooperative" in his report on this interaction, Dellairo states that he was not acting in this manner and that it was Garland who was upset because of Dellairo's efforts to press Garland for treatment.

Finally, after six-months Garland ordered x-rays and concluded that there is a growth in the ankle. However, according to Dellairo, Garland feels "that no further treatment is necessary."

Dellairo alleges that he is in serious pain; that his ankle "hurts extremely bad." He describes shooting pains that spike up to his knee. He has a hard time walking, rotating his ankle, and laying on his left side where the ankle is flush with the bed. After seven months the pain is getting worse. He has been given no pain medication, not even Tylenol.

With respect to his requested relief Dellairo seeks treatment for his ankle; specifically he wants the growth removed from his ankle. He also seeks compensatory and punitive damages.

B. Motion to Dismiss for Failure to State a Claim³

1. Standard for Motions to Dismiss in the Context of Civil Rights Claims

In reviewing this complaint to determine whether it states a claim sufficient to survive Garland's motion to dismiss I take all of Dellairo's allegations as true. Buckley v. Fitzsimmons, 509 U.S. 259, 261, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Since Dellairo is proceeding pro se I subject his submissions to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Also in light of Dellairo's pro se status, I examine his other pleadings to understand the nature and basis of Dellairo's claims. Gray v. Poole, 275 F.3d 1113, 1115 (D.C.Cir. 2002) (citing the holding of Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir. 1999) that District Court abused its discretion when it failed to consider the pro se plaintiff's complaint in light of his reply to the motion to dismiss).⁴

In response to Garland's suggestion that prisoner complaints "should be disposed of at the earliest opportunity," I note that Federal Rule of Civil Procedure 8(a)(2) requires no more from a complaint than a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Recent case law has counseled that a court must be very wary of requiring more than a simple notice pleading. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, ___, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) ("Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions."); Walker v. Benjamin, 293 F.3d 1030, 1039 (7th Cir.2002) (reversing in part a qualified immunity determination in favor of defendants premised on insufficient notice pleading, concluding that the 42 U.S.C. § 1983 plaintiff "need not set out in detail all of the facts upon which he bases his claim. Rule 8(a) requires only that the complaint give the defendants fair notice of what the claim is and the grounds upon which it rests"); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Swierkiewicz does not completely answer Garland's argument that civil rights actions "are subject to a heightened pleading standard," that is, it does not make it clear whether a civil rights action might be one of Swierkiewicz's limited exceptions. This is a question open to debate under First Circuit and District of Maine precedent. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir.1989) (observing that a plaintiff has the obligation to plead factual allegations regarding each material element necessary to support each of the plaintiff's legal theories and suggesting that the "need is perhaps greater where allegations of civil rights violations lie at the suit's core"); Greenier v. Pace, Local No. 1188, 201 F.Supp.2d 172, 176-77 (D.Me.2002) (Singal, Dist. J.) ("The approach that the Supreme Court set forth in Swierkiewicz requires the Court to treat complaints more liberally than recently has been the practice of either this Court or the First Circuit."); Goodman v. Bowdoin College, 135 F.Supp.2d 40, 52 (D.Me.2001) (Carter, Dist. J.) ("In light of the Supreme Court's unequivocal language regarding the impropriety of judicially imposed heightened pleading standards and the distinctions between the governmental immunity doctrine and substantive civil rights claims, without more explicit instructions from the Court of Appeals to apply heightened pleading requirements to claims that do not implicate the governmental immunity doctrine, the Court does not believe that it is wise to ... to apply a heightened pleading requirement in the instant case."). However, I conclude that I do not need to cross this particular bridge today. As explained below, this complaint is not fuzzy on the facts material to an Eighth Amendment deliberate indifference claim and, because of the strength of Dellairo's allegation on the substantive claim, Garland's claim to immunity is not ripe for decision, even if I applied some fashion of heightened pleading requirement.

2. Stating a Claim Under the Eighth Amendment for Deliberate Indifference to a Serious Medical Condition

The United States Supreme Court has framed the broad outlines of the deliberate indifference inquiry in two cases: Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) and Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The Estelle Court identified in the Eighth Amendment protection the "government's obligation to provide medical care for those whom it is punishing by incarceration." 429 U.S. at 103, 97 S.Ct. 285. It observed: "An inmate must rely on prison authorities to treat his...