Polansky v. New Hampshire Dep't of Corr.

• Decision Date: 28 November 2016
• Docket Number: Civil No. 16-cv-256-LM
• Parties: Christopher Polansky v. New Hampshire Department of Corrections et al.
• Court: U.S. District Court — District of New Hampshire

Christopher Polansky v. New Hampshire Department of Corrections et al.¹

Civil No. 16-cv-256-LM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

November 28, 2016

REPORT AND RECOMMENDATION

Christopher Polansky, a former Northern New Hampshire Correctional Facility ("NCF") inmate currently on medical parole at a Texas long-term care facility, brings this suit asserting violations of his federal constitutional rights and torts under state law, perpetrated while he was an NCF inmate. Before the court are four motions to amend the complaint (Doc. Nos. 8, 9, 19, 20), Polansky's original complaint (Doc. No. 1), and addenda to the complaint (Doc. Nos. 2-5, 10-14).² Those filings arebefore the court for preliminary review, to determine if any claims asserted by Polansky may proceed in this case.

Background

The following factual allegations are stated in the Complaint (Doc. No. 1), the Complaint Addenda (Doc. Nos. 2-5, 10-14), and/or in the four pending motions to amend (Doc. Nos. 8, 9, 19, 20). At all relevant times, Polansky was an inmate with paraplegia at NCF who could not stand or walk. Polansky was transferred to NCF in April/May 2015, after the revocation of his medical parole to the Glencliff Home, a long-term care facility in New Hampshire. In June/July 2016, Polansky was medically paroled to a long-term care facility in Texas, after the DOC required plaintiff and plaintiff's brother (plaintiff's guardian of the person) to sign an agreement stating that they would reimburse the state for costs associated with returning plaintiff to New Hampshire if he were to violate conditions of his medical parole.

I. Pressure Sores and Hospitalizations

Polansky used a wheelchair and a shower chair at NCF for bathing, and he required assistance with other activities ofdaily living. Polansky alleges that the wheelchair did not have proper leg extensions, and that the shower chair did not have a proper seat pillow, which contributed to the formation of sores on his buttocks, legs, and feet, beginning in May 2015.

Polansky asserts that defendants and the NCF medical staff were aware of these sores. Polansky addressed numerous inmate request slips to Nurse Ryan Landry and Nurse Practitioner Judy Baker from May/June 2015 through August 2015, asking for: a referral to outside providers for treatment of open wounds on his "backside," a new pressure-relieving mattress, shower shoes to protect his toes from further injury, physical therapy for his legs, a new cushion for the shower chair, and/or leg extensions for his wheelchair, which he asserted that he needed to avoid further injury to his buttocks and toes.

Polansky alleges that defendants did not adequately monitor or treat plaintiff's sores. In September/October 2015, Polansky sent numerous inmate request slips to NCF health care providers and administrators, including Nurse Ryan Landry, asking for a referral to a hospital or wound care clinic to treat his wounds, which he said had begun to smell. Polansky's requests in that regard did not result in the referrals in the time and manner he requested.

Polansky further alleges that defendants did not monitor plaintiff's temperature to detect signs of a worsening infection. Plaintiff has alleged that he was admitted to the Androscoggin Valley Hospital ("AVH") with a high fever and severe pain on October 16, 2015, due to five ulcers on his buttocks and lower extremities. Plaintiff further alleges that he was admitted to AVH again on February 16, 2016, days after he began to have fever-induced chills, with a high fever and four infected ulcers on his buttocks and lower extremities. Polansky alleges that, by February 16, 2016, the infection had spread to his hip bone, causing pain and osteomyelitis.

On March 24, 2016, Polansky grieved issues relating to his sores, his claims of neglect, and his requests for a pressure-relieving mattress and for a referral to a specialist. The copy of Warden Goings's March 29, 2016 response to that grievance in the court's record is not completely legible, but appears to refer Polansky to Paula Mattis, Director of Medical and Forensic Services. See Doc. No. 5-2.

II. Urinary Tract Infections

Plaintiff alleges that he developed urinary tract infections at NCF in 2015 and 2016. Plaintiff further alleges that defendants were aware of his urinary tract infections anddid not treat them adequately.

III. Hepatitis C

Plaintiff asserts that DOC Chief Medical Officer Dr. Jeffrey Fetter and NCF health care provider Dr. Marvin Kendell, were both aware that plaintiff had tested positive for Hepatitis C, but did not prescribe medication to treat that condition, despite plaintiff's request for such treatment. Exhibits filed with the pleadings in this case include Dr. Fetter's March 3, 2016 response to a February 10, 2016 inmate request slip from Polansky relating to Hepatitis C. In that response, Dr. Fetter states that Hepatitis C is monitored and treated on a case-by-case basis, and that Polansky's blood screening scheduled for April 2016 would inform the decision regarding how to proceed in Polansky's case. On May 9, 2016, Dr. Fetter responded to a follow-up inmate request slip from Polansky by stating that an appointment would be arranged with a health care provider to review the result of the April 2016 blood tests.

Claims

In the original complaint and in the complaint addenda (Doc. Nos. 1-5, 10-14), plaintiff asserts the following claims in this action, relating to events occurring while he was aninmate at NCF from April/May 2015 through June 2016³:

1. From April/May 2015 to February 2016, NCF Nurse Practitioner Judy Baker and NCF Nurse Ryan Landry violated plaintiff's Eighth Amendment right to adequate medical care, in that, knowing that plaintiff was at a substantial risk of developing pressure sores and related infections, and with deliberate indifference to a substantial risk of serious harm to Polansky, they did not adequately treat and monitor plaintiff's condition, thereby:

A. Causing plaintiff to develop numerous pressure sores on his buttocks and lower extremities in May 2015;

B. Causing those sores to become severely infected, precipitating his admission to AVH on October 16, 2015; and

C. Causing further infection of sores on plaintiff's buttocks and lower extremities, leading to the spread of the infection to plaintiff's hip bone and osteomyelitis, precipitating plaintiff's admission to AVH on February 16, 2016.

2. Nurse Practitioner Judy Baker and Nurse Ryan Landry are liable for medical malpractice under New Hampshire law for failing to provide reasonable and proper medical care in accordance with the applicable standards of care, which directly and proximately caused:

A. Numerous bed sores to develop on plaintiff's buttocks and lower extremities in May 2015;

B. A severe infection of those bed sores to develop, causing plaintiff to suffer severe pain and a high fever, precipitating his admission to AVH on October 16, 2015; and

C. Further infection of sores on plaintiff's buttocks and lower extremities which spread to his hip bone, resulting in osteomyelitis, severe pain, a high fever, and other symptoms, precipitating plaintiff's admission to AVH on February 16, 2016.

3. Defendants Judy Baker and Ryan Landry violated plaintiff's Eighth Amendment right to adequate medical care by failing to treat plaintiff's urinary tract infections ("UTIs") in 2015/2016, with deliberate indifference to a substantial risk of serious harm to plaintiff.

4. Defendant corrections officials violated plaintiff's rights under Title II of the Americans with Disabilities Act ("ADA") in 2015/2016, by discriminating against plaintiff in the denial of recreation opportunities, medical and nursing care adequate to avoid and treat pressure sores and pain, physical therapy, referrals for specialty care, and durable medical equipment, including a new mattress, a new shower seat cushion, and wheelchair leg extenders, because of plaintiff's disabilities of paraplegia and diagnosed mental health conditions.

5. Defendants violated plaintiff's rights under Title II of the ADA in 2015/2016, by discriminating against plaintiff in the imposition of a cost-reimbursement condition on his medical parole, based on plaintiff's disabilities.

6. Defendants Jeff Fetter, M.D., and Marvin Kendall, M.D., violated plaintiff's Eighth Amendment rights to adequate medical care by refusing plaintiff's request for a particular medication to treat plaintiff's Hepatitis C in 2015/2016.

Discussion

I. Preliminary Review

A. Preliminary Review Standard

Because Polansky is appearing pro se, the court construes his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court may dismiss Polansky's complaint, or any part of or amendment to the complaint, if it "fails to state a claim on which relief may be granted." 28 U.S.C. §§ 1915(e)(2), 1915A(b)(1); LR 4.3(d)(1)(A). To determine if the pleading states a claim, the court first disregards plaintiff's legal conclusions and then considers whether the factual content in the pleading and inferences reasonably drawn therefrom, taken as true, state a claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

B. Claims 1-3, Relating to Wound Care and UTIs

1. Claims against Landry and Baker

The factual allegations in the pleadings are sufficient to survive preliminary review, with respect to Claims 1-3. Because the Eleventh Amendment bars plaintiff from proceeding in this action on those claims for damages against defendants in their official capacity, or their state agency employer, the districtjudge should dismiss such claims for damages against the state. This court in the Order issued this date has directed service of Claims 1-3 for damages on defendants Ryan Landry and Judy Baker in their individual capacities.

2. Supervisors

Supervisory prison officials are not liable under § 1983 for the acts of their subordinates, based...