Kidd v. Mattis et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kerry Kidd
v. 	Case No. 22-cv-562-SM-AJ
Paula Mattis, et al.
Report and Recommendation
Kerry Kidd is a prisoner at the New Hampshire State Prison
and is proceeding pro se in this civil rights action against
prison officials, medical providers, and prison employees. On
preliminary review pursuant to 28 U.S.C. § 1915A and LR
4.3(d)(1), the court gave Kidd an opportunity to file an amended
complaint to allege facts that state a cognizable cause of
action. Kidd has filed an amended complaint, which is referred
for preliminary review.
Preliminary Review Standard
The court conducts a preliminary review of complaints filed
by prisoners seeking relief from government agents. See LR
4.3(d)(1); see also 28 U.S.C. § 1915A. In considering whether
the complaint states a claim, the court determines whether,
stripped of legal conclusions, and with all reasonable
inferences construed in the plaintiff's favor, the complaint
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contains “sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Claims may
be dismissed, sua sponte, if the court lacks jurisdiction, a
defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. See 28
U.S.C. § 1915A(b); LR 4.3(d)(1)(A). Because Kidd is proceeding
pro se, the court construes his filings liberally. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Background
In the amended complaint, Kidd alleges that he had serious
back and shoulder pain, that he was not scheduled for surgery
soon enough, and that he was not prescribed sufficient
medication. He alleges that Dr. Thomas Groblewski prescribed
Tylenol, Motrin, Lyrica, and Tramadol for Kidd’s pain, but those
medications were not adequate to relieve his pain. Dr. Robert
Sharp was also aware of Kidd’s back and shoulder conditions but
would not prescribe Vicodin because of the risk of addiction and
would not prescribe Valium because Kidd would “get strong armed
for” it. Dr. Strong also would not prescribe a higher dose of
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Lyrica. Because he found the prescribed medications to be
inadequate, Kidd diverted medications to get relief.1
When Nurse Practitioner Benjamin saw Kidd diverting
medications in June of 2021, she discontinued Lyrica and
Tramadol in pill form for six months. Instead, Nurses Hrinchuk
and Pinard administered those medications to Kidd after crushing
the pills. Kidd objected to crushing, and Nurse Hrinchuk
responded that she was following orders to do so. Nurse Pinard
refused to stop crushing the pills.
Kidd had back surgery on March 22, 2022. He alleges that he
was prescribed Valium after surgery and discovered that Valium
helped him with mental health issues. He alleges that Dr. Andres
Martin was “down right rude and refused to prescribe the needed
medication.” Doc. no. 13, at 2. Kidd alleges that Dr. Brown’s
stated reason for refusing to prescribe Valium for him was that
long-term use had bad effects, and he recommended that Kidd
continue to take Lyrica for mental health issues. Kidd alleges
1 A prisoner diverts oral medication by not swallowing it
and retaining it for another purpose. See, e.g., Trainor v.
Wellpath, No. 20-cv-225-RAL, 2023 WL 2603196, at *9 (W.D. Pa.
Mar. 22, 2023) (diverting medications by spitting them into a
bottle to take at another time); Hammer v. Munsey, No. 20-cv-
526, 2022 WL 992698, at *3 (W.D. Va. Mar. 31,
2022)(administering crushed medication to prevent diverting by
hoarding or saving medication in the prisoner’s cheek without
swallowing it).
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that Lyrica did not help ADHD, and he alleges that he had
suicidal thoughts.
Kidd alleges before surgery his surgeons “scheduled” him to
receive OxyContin and Valium for fourteen days after surgery,
but Dr. Cherie Ertha stopped that medication after nine days. He
alleges that he experienced severe pain for weeks while he went
without the medication. Nurse Practitioner Morris called the
hospital, ordered Vicodin for 30 days, and then ordered an
additional two weeks of medication.
Kidd alleges that Paula Mattis, Director of Forensic and
Medical Services, bears supervisory liability for his allegedly
inadequate medical treatment. He alleges that the treatment he
received for his back before surgery only hurt him more and that
he should have had spinal surgery sooner. He alleges that he
attempted suicide after surgery because of the pain. He alleges
that medications are not dispensed on a consistent time
schedule. He also alleges that he has informed Mattis of his
need for mental health treatment, but she has done nothing.
Apart from his medical treatment, Kidd alleges that Major
Jon Fouts caused a break down in the prison’s grievance
procedure by answering Kidd’s grievance instead of having the
grievance sent to the proper department or the warden or
commissioner. He contends that no other department or individual
should have answered the grievance.
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Discussion
Kidd brings claims pursuant to 42 U.S.C. § 1983 that the
medical providers’ decisions about his medications and treatment
violated his Eighth Amendment right to treatment for his back
pain and post-surgical pain. He contends that Major Fouts
violated his Fourteenth Amendment due process rights, and
violated the prison’s grievance procedure, by answering his
grievance. He also brings a claim for supervisory liability
against Paula Mattis. For the following reasons, Kidd’s Eighth
Amendment claim (numbered Claim 8) against Dr. Cherie Ertha will
be served, and the district court should dismiss the remainder
of Kidd’s claims.
A. Eighth Amendment – Medical Care
The Eighth Amendment protects prisoners from harm when
prison officials and employees are deliberately indifferent to
a prisoner’s serious medical needs. Kosilek v. Spencer, 774 F.3d
63, 82 (1st Cir. 2014). A medical need is serious if it has been
diagnosed by a physician to require treatment or is “so obvious
that even a lay person would easily recognize the necessity for
a doctor’s attention.” Snell v. Neville, 998 F.3d 474, 495 (1st
Cir. 2021). Prisons are not required to provide ideal care or a
prisoner’s choice of care. Id. Further, disagreements about the
appropriate course of treatment are not actionable. Kosilek, 774
F.3d at 82. To violate the Eighth Amendment, the care or lack of
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care must be “so inadequate as to shock the conscience.” Id. at
83 (internal quotation marks omitted).
If a prisoner can show a serious medical need, to state an
Eighth Amendment violation, he then must show that the defendant
was deliberately indifferent to that need. Deliberate
indifference occurs when the defendant knows of the risk of harm
and ignores it. Snell, 998 F.3d at 497. Deliberate indifference
is a more culpable state of mind than negligence and “requires
evidence that the failure in treatment was purposeful.” Kosilek,
774 F.3d at 83.
Kidd alleges that various medical providers did not give
him Vicodin or Valium when he believed that was the most
effective medication for his physical pain and mental health
issues. Kidd was receiving other medications for those purposes,
however. He also contends that crushing his tablets constituted
an Eighth Amendment violation but does not explain how crushing
his medication amounted to a denial of adequate medical care. He
also acknowledges that he was diverting his medication when it
was not crushed. Kidd alleges that he should have received back
surgery sooner than he did but acknowledges that he was
receiving other treatment for his spinal issues during the
intervening time. As such, for the most part, Kidd’s allegations
show that he disagreed with the course of treatment prescribed
for him but do not show that the providers were deliberately
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indifferent to his serious medical needs. See Feeney v. Corr.
Med. Servs., Inc., 464 F.3d 158, 162-63 (1st Cir. 2006).
One exception exists to that outcome. Kidd alleges that Dr.
Cherie Ertha stopped his post-surgical pain medication six days
sooner than had been prescribed. As a result, he alleges that he
was without adequate pain medication for weeks and that he
experienced extreme pain. He alleges that he asked Dr. Ertha for
help, but she refused. He alleges that Nurse Practitioner Morris
called the hospital and that when she learned of the major
surgery Kidd had had, she ordered Vicodin for him to be taken
three times per day for 30 days initially and then for two
additional weeks. Taken in the light most favorable to Kidd,
those allegations may be sufficient to state an Eighth Amendment
claim against Dr. Ertha. Wright v. Ruze, 2022 WL 408435, at I5
(D. Mass. Feb. 10, 2022) (stating that physician who
discontinues needed pain medication without an effective
alternative may demonstrate deliberate indifference to a serious
medical need).
Therefore, the district court should dismiss the Eighth
Amendment claims against the defendants except Dr. Cherie Ertha.
B. Grievance Procedure
Kidd alleges that he sent a grievance to the warden and
that Major Jon Fouts interrupted the grievance process. He
states that “[n]o other departments, or a retired civilian,
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should be answering the grievance.” Doc. no. 13, at 3. He
further alleges that the interruption was “a break down of their
own procedure.” Id. Kidd does not plead any legal basis for his
claim against Fouts.
Prison policies and procedures do not create federal
rights, and violations are not actionable under § 1983. Wescott
v. Martin, No. 22-cv-059-LM, 2022 WL 2374164, at *7 (D.N.H. June
2, 2022). Therefore, prison officials’ failure to follow prison
grievance procedures is not a federal due process violation and
is not actionable. Duarte v. Frane, No. 23-110009-NMG, 2023
5179250, at *2 (D. Mass. Aug. 11, 2023). Kidd has not stated an
actionable claim based on the alleged violation of the grievance
procedure.
C. Supervisory Liability
Kidd names Commissioner Helen Hanks and Warden Michelle
Edmark as defendants but includes no allegations pertaining to
them. He alleges a claim for supervisory liability against Paula
Mattis, stating that she improperly trained and supervised her
staff with respect to the timing of his back surgery and
consistency in dispensing medications.
A supervisor cannot be held liable under § 1983 based on
respondeat superior, that is, based solely on the actions of
subordinates or the supervisor’s position of authority.
Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021). Instead,
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liability must arise from the supervisor’s actions or inaction.
Id. “To connect the liability dots successfully between
supervisor and subordinate in this context, a plaintiff must
show that one of the supervisor’s subordinates abridged the
plaintiff’s constitutional rights and that the supervisor’s
inaction was affirmatively linked to that behavior in the sense
that it could be characterized as gross negligence amounting to
deliberate indifference.” Id. (internal quotation and alteration
marks omitted).
Kidd alleges that he told Mattis that he was not receiving
treatment for his declining mental health, but she did nothing.
In other contexts, however, Kidd alleges that he has tried many
medications but has discovered that Valium works best to treat
his anxiety and depression. He also alleges that he has been
prescribed Lyrica for his mental health issues and that his
requests for Valium were denied because of concern that he would
be “strong armed” for that medication. Kidd does not have an
Eighth Amendment right to the medication of his choice, and his
disagreement with the course of treatment prescribed by the
medical providers does not demonstrate deliberate indifference.
For the reasons stated above, Kidd has alleged only one
claim that survives preliminary review – an Eighth Amendment
claim against Dr. Cherie Ertha. He does not allege that Dr.
Ertha had any role in the timing of his back surgery, in the
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consistency of dispensing medication by the prison staff, or in
his mental health care. He alleges nothing that connects Paula
Mattis’s action or inaction to Dr. Ertha’s alleged decision to
discontinue Kidd’s prescribed post-operative pain medication.
With respect to Mattis’s own actions or inaction, as is
stated above, Kidd received treatment for his back and has and
is receiving treatment for mental health issues. Kidd has not
alleged facts that show Mattis was deliberately indifferent to
Kidd’s serious medical needs.
Therefore, Kidd does not state a supervisory liability
claim against Mattis, Hanks, or Edmark.
Conclusion
For the foregoing reasons, the district court judge should
dismiss all claims and all defendants alleged in the amended
complaint (doc. no. 13) except the Eighth Amendment claim
against Dr. Cherie Ertha, as stated in this report and
recommendation. The Eighth Amendment claim against Dr. Ertha
will be served pursuant to a separate order.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
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court. See Sch. Union No. 37 v. United Natl Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court's order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 12, 2023
cc: 	Kerry Kidd, pro se
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