Rand v. Simonds
| Decision Date | 22 March 2006 |
| Docket Number | No. 04 CV 382 JD.,04 CV 382 JD. |
| Citation | 422 F.Supp.2d 318 |
| Parties | James E. RAND v. Henry SIMONDS et al. |
| Court | U.S. District Court — District of New Hampshire |
James E. Rand, Concord, NH, Pro Se.
Michael A. Pignatelli, Rath, Young & Pignatelli PA, Nashua, NH, Kenneth C. Bartholomew, Rath, Young & Pignatelli PA, Concord, NH, John A. Curran, Getman, Stacey, Schulthess & Steere PA, Bedford, NH, for Defendant.
James E. Rand, proceeding pro se, has sued three present or former employees of the Merrimack County House of Corrections (the "MCHC"), alleging that they were deliberately indifferent to his medical needs during his prior detention in that facility. One of the defendants, Henry Simonds, has moved for summary judgment on the ground that Rand failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("the PLRA"). Through separate motions, Simonds also seeks dismissal of Rand's case (1) as a sanction for his failure to provide certain interrogatory responses despite a court order and (2) for failing to disclose an expert witness to testify in support of his claim.
The other defendants, Carole Anderson and Richard Doucet (the "supervisory defendants"), have separately moved for summary judgment on the basis of Rand's failure to exhaust administrative remedies. They also seek summary judgment on the independent grounds that Rand cannot prove they were deliberately indifferent to any serious medical need on his part and that they enjoy qualified immunity. Finally, the supervisory defendants have filed a "supplemental motion for summary judgment" arguing that Rand cannot succeed on his claim without expert testimony, which he has failed to disclose by the court-imposed deadline. Rand has not responded to any of the defendants' motions, despite having been granted an extension of time to do so.1
Rand entered the MCHC on February 13, 2004, following "a high speed car chase that ended with [his] losing control of his vehicle [and] crashing into trees." Compl. ¶ 7. At that time, as well as during all of the events at issue here, Anderson was the superintendent of the MCHC, while Doucet was the assistant superintendent. Before going to the MCHC, Rand was transported from the scene of the accident to Concord Hospital, where he underwent x-rays and other testing. As a result of this "very brief exam," Rand was diagnosed as being "in good medical health," aside from some minor cuts and bruises. Id. ¶ 9.
Phyllis Butler, a nurse at the MCHC who also serves as the head of its health services department, first examined Rand on February 14, 2004. She noted that he complained of muscle soreness in his neck and back as a result of the accident but otherwise described his "General Health" as "good." Butler Aff. ¶ 9. Consistent with the orders he received upon his discharge from Concord Hospital, Rand continued to treat his soreness with Tylenol for a few days. On February 17, 2004, however, he requested medical attention for swelling he noticed in his back near his right shoulder. The nurse who examined Rand found no swelling, but prescribed ibuprofen and a muscle relaxant. The next day, Simonds, a physician's assistant at the MCHC, added Ultram, an analgesic, to Rand's drug regimen.
Rand asked for further medical attention on February, 23, 2004. Simonds, who saw Rand the next day, told him "that the soreness and pain was normal after getting involved in a car accident" and suggested that he continue to treat those symptoms with Ultram. Compl. ¶ 22. In a follow-up appointment on February 27, 2004, Rand reiterated his complaints of pain in the area of his right shoulder. Noting "no external sign of injury" and a "full range of motion," Simonds diagnosed Rand with a muscle strain secondary to the accident and renewed his prescriptions for ibuprofen, Flexeril, and Ultram. Butler Aff. ¶ 12. Rand alleges that Simonds "couldn't provide an explanation for the problems [Rand] was having" and should have referred him to a specialist at that point. Compl. ¶ 31.
Just over a week later, on March 8, 2004, Rand again sought medical attention, complaining that he could not raise his right arm and that he had heard a popping noise in his right shoulder. Patricia Lee, the physician's assistant at the MCHC who saw Rand at this time, observed that he could not lift his right arm more than ninety degrees or extend it behind his back. She diagnosed Rand with a rotator cuff tear and ordered him to continue taking Tylenol and Ultram. According to Rand's medical chart, Lee also "suggested" that he consult with an orthopedist with a view toward possible surgery. Butler Aff. ¶ 14.
Anderson subsequently discussed Lee's "recommendation" with Butler, "who believed a more conservative approach, with use of prescriptions and passage of time, would better assess the complaints." Anderson Aff. ¶ 12.2 Although both Anderson and Butler have submitted detailed affidavits in support of the supervisory defendants' summary judgment motion, neither claims to have spoken to Lee about her "recommendation" that Rand see an orthopedist, or the reasons for it. Furthermore, Anderson recalls that she and Butler "discussed having Dr. Rodd, the jail's physician and medical director, review the case," id., but neither Anderson nor Butler indicates whether this in fact occurred.3 On March 11, 2004, however, Butler entered a note into, Rand's chart stating, "Will hold off on surgical consult for now—awaiting court rulings/court dates." Butler Aff. ¶ 15.
Butler saw Rand again on March 19, 2004, when he sought attention for complaints of increased pain in his right shoulder, accompanied by occasional pain and numbness in his right arm and hand. Butler "told him per jail policy this preexisting condition will not be authorized for surgical intervention" and, in response to his requests for "at least an x-ray or [to] have the shoulder scoped to find out if it is a rotator cuff tear, told him he would have to write directly to Carole Anderson for authorization . ..." Id. ¶ 16. Butler encouraged Rand to keep taking the prescribed drugs for his pain, but he protested that they were ineffective and expressed concern over "liv[ing] on pain medications the whole time I'm here." Id.
Anderson attests that Rand never made a "formal request" to her to authorize the treatment he desired. Anderson Aff. ¶ 13. He had, however, submitted a medical request slip on March 12, 2004, "about discomfort in his right arm and whether he would be referred to a specialist for examination (as mentioned by PA Lee)." Id. ¶ 15. In addition, on June 10, 2004, Patricia Moyer, an investigator for the public defender representing Rand on the criminal charges against him, telephoned Doucet, the MCHC's assistant superintendent, "about Mr. Rand's medical care at the jail," specifically his complaints of pain in his shoulder. Doucet Aff. ¶ 11. Doucet summarized his conversation with Moyer in a letter he sent her later that day, stating:
As I explained to you, this is a preexisting condition and if [Rand] has insurance or funds to cover the cost of the exam he is requesting, we will make the necessary arrangements. There is no doctor's order for a surgical consult with orthopedics; there is only a recommendation by Physician Assistant Patricia Lee.
Id. ¶ 12. Moyer wrote to Anderson on both July 26, 2004, and December 8, 2004, requesting, inter alia, "a copy of the jail's policy for non-treatment of pre-existing conditions." Mot. J. Defs.' Ans. Admis., Ex. F, at INM 000111, MED000055; see also Anderson Aff. ¶¶ 20, 22. Meanwhile, Rand commenced this action on October 7, 2004. On December 13, 2004, Anderson sent a letter to Rand, with a copy to Moyer, stating, Anderson Aff. ¶ 24.
Neither Anderson nor Doucet had explained the MCHC's medical care policy with reference to the language set forth in the inmate handbook then in effect. Under that policy, "[n]o inmate [could] be refused necessary medical treatment for financial reasons." Anderson Aff. ¶ 17, Ex. A, at 7. The handbook defined "necessary medical treatment" as
[a] professional judgment made by a Physician Assistant that the requested service or medication is medically appropriate and cannot be safely and humanely postponed until after the inmate's period of incarceration ends. Treatment that the Staff Physician deems to be elective may be refused on the grounds that it is not medically necessary.
Id. Notably, this policy gave neither the administration nor the head of the health services department any role in deciding what constituted "necessary medical treatment," but left that determination to a physician's assistant, subject to the approval of the staff physician. Nor did it mention, as a factor in determining whether care for a condition was medically necessary, whether it predated the inmate's arrival at the MCHC.
In any event, when Lee examined Rand on November 11, 2004, she noted that his "rotator cuff tear [was] much improved" and that his right shoulder showed "no crepitus and a much more flexible range of motion."4 a Butler Aff. 29. This was the only time Rand sought medical attention for his shoulder between March 19, 2004, and December 9, 2004. By that time, Rand had provided Lee with additional records of his visit to Concord Hospital on the night of his arrest, which indicated a possible cervical injury. Lee then scheduled a CT scan of Rand's cervical spine and, upon getting the results, made an appointment for Rand for evaluation by an orthopedic surgeon.
On January 14, 2005, Rand saw Dr. Russell Brummett, who diagnosed him with "[p]osttraumatic cervical strain with previous C5 injury." Butler Aff. ¶ 44. Noting that "this is something...
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