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
Christopher Pelletier, et al.
Report and Recommendation
Kerry Kidd is a prisoner at the New Hampshire State Prison
(“NHSP”) and is proceeding pro se in this civil rights action.
His Eighth Amendment claim, arising out of NHSP transport
officers’ decision to leave a scheduled medical appointment
because of a forty-five minute delay, was served on the
officers, Christian Pelletier and Brian Dunham. The defendants
move to dismiss.1 See Doc. No. 27. That motion is referred to the
undersigned for a Report and Recommendation as to its
disposition. LR 72.1. For the reasons herein, the district judge
should deny the motion to dismiss.
Standard of Review
In considering a motion to dismiss under Federal Rule of
1 Kidd names “Chrisopher Pelletier” as one of the defendant
transport officers. In the acceptance of service and motion to
dismiss, however, the defendants use “Christian Pelletier.” The
court will assume that Christian Pelletier is the officer’s
correct name. 	The Clerk’s office is directed to amend the
court’s docket accordingly.
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Civil Procedure 12(b)(6), the court takes all properly alleged
facts as true and resolves reasonable inferences in favor of the
nonmoving party. See Efron v. UBS Fin. Servs. Inc. of P.R., 96
F.4th 430, 437 (1st Cir. 2024). Based on that view, the court
decides whether the plaintiff has alleged facts that would allow
recovery under any actionable theory. See Parmenter v.
Prudential Ins. Co. of Am., 93 F.4th 13, 18 (1st Cir. 2024). “To
stave off dismissal, the plaintiff “‘need not demonstrate that
[he] is likely to prevail, but [his] claim must suggest ‘more
than a sheer possibility that a defendant has acted
unlawfully.’” United States ex rel. Zotos v. Town of Hingham,
No. 23-1694, --- F.4th ---, 2024 U.S. App. LEXIS 8439, at *4,
2024 WL 1505678, at *2 (1st Cir. Apr. 8, 2024) (quoting García-
Catalán v. United States, 734 F.3d 100, 102-03 (1st Cir. 2013)
and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
In his amended complaint (doc. no. 13), Kidd alleged claims
against prison officers and officials which arose from
allegations that Kidd’s serious back and shoulder pain was not
treated properly. Kidd alleged that he needed back surgery, that
the defendants caused his surgery to be delayed, and that
defendants did not prescribe or provide appropriate treatment
and pain medication both before and after surgery. He also
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alleged that he was not given proper treatment for his serious
mental health issues.
On preliminary review, the court recommended that all of
the claims against the defendants be dismissed, with the
exception of an Eighth Amendment claim against Dr. Cherie Ertha.2
Doc. no. 14. After the Magistrate Judge’s Report and
Recommendation issued, Kidd filed a complaint addendum stating
that he had intended to bring Eighth Amendment claims against
Officers Pelletier and Dunham. See Doc. no. 17. Pelletier and
Dunham move to dismiss the claims against them. See Doc. no. 27.
In the addendum to his amended complaint, Kidd alleges that
Pelletier and Dunham transported him to a doctor’s appointment
for a pre-surgery consult in October or November of 2021. After
waiting for 45 minutes, the officers decided to leave, even
though Kidd had not yet seen the doctor. Kidd alleges that
leaving without seeing the doctor contributed to the delay of
his surgery.
Discussion
In support of their motion to dismiss, the defendants
assert that Kidd has not stated an Eighth Amendment claim
2 Service was made on Dr. Ertha. See Doc. no. 23. When Dr.
Ertha did not respond, the Clerk entered default against her.
See Doc. no. 26.
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against them because he has not alleged facts which show they
were deliberately indifferent to his serious medical needs. Kidd
objects. The defendants filed a reply, and Kidd filed a
surreply.
Kidd alleges that the defendants violated the Eighth
Amendment by causing him to miss his pre-surgery doctor’s
appointment, which caused a delay of his surgery for more than
three months. “Prison officials violate the Eighth Amendment
when they act with deliberate indifference to a prisoner’s
serious medical needs.” Lech v. von Goeler, 92 F.4th 56, 74 (1st
Cir. 2024). To state an Eighth Amendment claim, “a prisoner must
satisfy both an objective element, which requires proof of a
serious medical need, and a subjective element, which requires a
showing that a prison official had a sufficiently culpable state
of mind such that they were deliberately indifferent to that
need.” Id. (internal quotation marks omitted). For purposes of
the instant motion to dismiss, the defendants accept that Kidd
has alleged a serious medical need to see a doctor. They
contend, however, that Kidd has not alleged facts to show that
they provided him with inadequate care for that serious medical
need, or that they were deliberately indifferent to his serious
medical need.
“Prison officials are deliberately indifferent when they
‘know[ ] of and disregard[ ] an excessive risk to inmate health
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or safety.’” 	Id. (quoting Farmer v. Brennan, 511 U.S. 825,
836–37 511 U.S. 825, 834 (1994)). A prisoner can show deliberate
indifference if a prison official “either den[ies] needed
medical treatment in order to punish the inmate, or display[s]
wanton or criminal recklessness in the treatment afforded.” Id.
at 75. In the context of delayed medical care, “deliberate
indifference is properly alleged when a plaintiff shows that a
defendant . . . delayed necessary medical treatment based on a
non-medical reason and the personal involvement of the
defendant.” Zehring v. Sorber, No. CV 20-3195, 2024 U.S. Dist.
LEXIS 10547l at *39-*40, 2024 WL 233217, at *14 (E.D. Pa. Jan.
22, 2024) (internal quotation marks omitted) (citing Washington
v. Gilmore, 841 F. App’x 466, 469 (3d Cir. 2021)).
In their motion to dismiss, the defendants argue that Kidd
has failed to allege facts showing that they were deliberately
indifferent to his serious medical needs because they did not
cause the wait at the doctor’s office or the delay in surgery.
Instead, they assert, the doctor was late and did not see Kidd
at the time of the scheduled appointment.3
3 The Court notes that the defendants, in their motion to
dismiss, relied on facts not asserted in Kidd’s complaint
documents. 	Absent exceptions not relevant here, in evaluating a
motion to dismiss filed under Rule 12(b)(6), “‘any consideration
of documents not attached to the complaint, or not expressly
incorporated therein, is forbidden.’” Ortolano v. City of
Nashua, 2023 DNH 072, 677 F. Supp. 3d 41, 45 (D.N.H. 2023)
(citation omitted). 	The Court has not considered any facts
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Kidd has alleged in this action that the defendants were
charged with transporting him to a preoperative appointment with
the doctor. When the doctor was 45 minutes late, the defendants
decided to leave rather than wait until the doctor was available
to see Kidd. Kidd alleges that, as a result, his back surgery
was delayed from November of 2021 to March of 2022, during which
time he suffered severe pain. 	Kidd further states that the
defendants knew him and knew the severe back pain he was
experiencing and his need for surgery.
Kidd has alleged sufficient facts to state a plausible
Eighth Amendment claim for relief, alleging that the defendant
transport officers denied him adequate medical care, or delayed
his receipt of necessary medical care, with deliberate
indifferent to his serious medical needs, of which they were
aware. 	Accordingly, the district court should deny the
defendants’ motion to dismiss.
Conclusion
For the foregoing reasons, the district judge should deny
the defendants’ motion to dismiss (doc. no. 27). 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).
outside Kidd’s complaint in making its recommendation on the
motion to dismiss.
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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
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
April 16, 2024
cc: Kerry Kidd, pro se
Michael P. DeGrandis, Esq.
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