Vigneau v. Pedersen et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick M. Vigneau
v. 	Case No. 18-cv-392-JL
Pamela C. Pedersen, MD et al.1
REPORT AND RECOMMENDATION
Patrick M. Vigneau, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), has filed a
complaint (Doc. No. 1) against several FCI Berlin officials and
employees and four outside medical professionals related to
treatment he received after injuring his elbow in April 2016.
The matter is here for preliminary review to determine, among
other things, whether the complaint asserts any claim upon which
relief may be granted. 	See 28 U.S.C. §§ 1915(e)(2), 1915A(a);
LR 4.3(d)(1).
1The plaintiff names the following defendants in his
complaint: Federal Correctional Institution, Berlin, New
Hampshire (“FCI Berlin”) physician Pamela C. Pedersen, MD; FCI
Berlin Health Services Administrator J. Elmore; FCI Berlin
Health Services Specialist Bradford Malcolm; FCI Berlin Warden
Robert Hazelwood; FCI Berlin Physician’s Assistant L.
Christensen; 	FCI Berlin Health Services Department Clinical
Director Kevin Pigos; FCI Berlin Nurses Ed Ingersoll, Alissa
Berrymann, and Christine Larin; FCI Berlin physician Maurice Yu,
MD; John Eric Bell, MD; Daniel C. Austin, MD; Harry C. Stearns
III, MD; Jay Solorio, MD; and two unnamed FCI Berlin corrections
officers, identified in the complaint as John Doe #1 and John
Doe #2.
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Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. 	See LR 4.3(d)(1); see also
28 U.S.C. §§ 1915(e)(2), 1915A. 	In conducting its preliminary
review, the court construes pro se complaints liberally. 	See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The
court then determines whether, so construed, stripped of legal
conclusions, and with all reasonable inferences drawn in
plaintiff’s favor, the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief.’” 	See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
The court may dismiss the complaint 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. §§ 1915(e)(2), 1915A(b)(1); LR
4.3(d)(1)(A).
Background
Vigneau’s complaint contains extensive and detailed factual
allegations, which the court need not reproduce here. 	See Doc.
No. 1 ¶¶ 21-130. 	Broadly speaking, Vigneau alleges that he
broke a bone and tore a tendon in his elbow on April 8, 2016,
when he fell while playing handball. 	Vigneau asserts that if
timely treated, the bone and tendon could have been reattached
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in a relatively minor surgical procedure. 	But according to
Vigneau, FCI Berlin officials repeatedly failed to provide him
with diagnostic testing or schedule a consultation with an
orthopedic surgeon, resulting in a five-month delay before he
finally received surgery. 	Vigneau alleges that due to this
delay, the surgery was much more complicated than it otherwise
would have been, ultimately requiring the surgeon to remove the
fractured bone and reattach the tendon in a different place.
Vigneau also claims that both during the delay and after
the surgery, FCI Berlin officials repeatedly refused to
prescribe or provide him with pain medication sufficient to
treat his severe pain. 	He alleges that FCI Berlin officials
misreported his pain levels in treatment notes and on multiple
occasions changed his priority level from “urgent” to “routine”
despite the severity of his injuries and pain.
Vigneau further asserts that on April 29, 2016, two unnamed
FCI Berlin officers, identified in the complaint as John Doe #1
and John Doe #2, restrained him in a way that caused him extreme
pain due to his injuries while transporting him to a medical
appointment at A.V.H. Surgical Associates and refused to remove
the restraints even when a consulting doctor requested that they
do so in order to facilitate diagnostic testing. 	As a result,
he alleges, the doctor was unable to examine him on that date.
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Vigneau alleges that he filed multiple administrative
complaints related to his treatment. 	Each complaint was denied
on the stated basis of the pertinent administrative official
that Vigneau was receiving adequate treatment.
Discussion
I. 	Asserted Claims
Though framed as nine different counts, Vigneau’s complaint
contains five general categories of claims. 	The court finds
that, invoking Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), Vigneau has asserted
the following claims for relief:
1. 	FCI Medical Department Personnel Dr. Pamela C.
Pedersen, J. Elmore, Bradford Malcolm, Nurse Ed Ingersoll,
Nurse Alissa Berryman, Nurse Christine Larin, Physician’s
Assistant L. Christensen, Kevin Pigos, and Dr. Maurice Yu,
and FCI Berlin Warden Robert Hazelwood, violated Vigneau’s
Eighth Amendment rights by acting with deliberate
indifference in failing to provide him with adequate
medical treatment for his serious medical needs,
specifically, a severe injury to his elbow and the pain
resulting therefrom, in that those defendants:
A. 	ignored or inadequately treated his urgent
medical needs in the months following his elbow
injury;
B. 	failed to provide Vigneau with timely surgery
after Vigneau’s injury by delaying surgery for five
months, resulting in Vigneau needing more extensive
surgery than would otherwise have been required, and
in Vigneau experiencing excessive severe pain;
C. 	interfered with Vigneau’s receipt of outside
medical providers’ prescribed treatment; and
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D. 	Pedersen and Hazelwood denied Vigneau proper
medication to address his pain.
2. 	FCI Berlin corrections officers John Doe #1 and John
Doe #2 restrained Vigneau and refused to remove his
restraints during an appointment with a consulting
physician, causing Vigneau extreme pain and preventing the
physician from examining Vigneau, in violation of Vigneau’s
Eighth Amendment rights:
A. 	not to be subjected to excessive force; and
B. 	to receive adequate medical care during his
incarceration.
3. 	Non-FCI Berlin Drs. Harry C. Stearns III, Jay Solorio,
John-Erik Bell, and Daniel C. Austin violated Vigneau’s
Eighth Amendment right to receive adequate medical care
during his incarceration.
4. 	Defendants Pedersen, Elmore, Malcolm, Hazelwood,
Ingersoll, Christensen, Pigos, Berryman, Larin, subjected
Vigneau to the intentional infliction of emotional
distress.
5. 	All of the defendants conspired to violate Vigneau’s
Eighth Amendment rights.
II. 	Official Capacity Claims
As an initial matter, Vigneau names all of the defendants
in this case in both their official and individual capacities.
But the bulk of Vigneau’s claims are Eighth Amendment claims
brought under Bivens, and the First Circuit has held that a
Bivens action “only may be brought against federal officials in
their individual capacities.” 	Ruiz Rivera v. Riley, 209 F.3d
24, 28 (1st Cir. 2000). 	Accordingly, the district judge should
dismiss Vigneau’s Eighth Amendment Bivens claims brought against
the defendants in their official capacities.
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III. Eighth Amendment Claims Against FCI Berlin Medical
Department Employees (Claim 1(A)-1(D))
Vigneau alleges that the medical care he received following
his injury violated his Eighth Amendment rights, as it failed to
adequately address his serious elbow injury and severe pain.
The Eighth Amendment requires that prison officials “provide
‘humane conditions of confinement,’ including adequate medical
care.” 	Leite v. Bergeron, 911 F.3d 47, 52 (1st Cir. 2018)
(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
[A] prison official violates the Eighth Amendment only
when two requirements are met. 	First, the deprivation
[of care] alleged must be, objectively, “sufficiently
serious.” 	For claims based on inadequate medical
care, [a] medical need is “serious” if it is one that
has been diagnosed by a physician as mandating
treatment, or one that is so obvious that even a lay
person would easily recognize the necessity for a
doctor’s attention. 	Second, a prison official must
have a sufficiently culpable state of mind such that
the official shows “deliberate indifference” to inmate
health or safety. 	A prison official is deliberately
indifferent where she knows of and disregards an
excessive risk to inmate health or safety. 	This
requirement is subjective.
Leite, 911 F.3d at 52. (other quotation marks and citations
omitted).
Vigneau has alleged sufficient facts to warrant service of
the claim identified above as Claim 1, with subparts, on
defendants Pedersen, Elmore, Malcolm, Hazelwood, Ingersoll,
Christensen, Pigos, Berrymann, Larin, and Yu in their individual
capacities. 	In an Order issued simultaneously with this Report
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and Recommendation (“R&R”), the court directs service of the
complaint on those defendants.
IV. 	Eighth Amendment Claims Against John Doe Officers
A. 	Denial of Medical Care (Claim 2(A)
Vigneau alleges that the two John Doe officers violated the
Eighth Amendment by failing to remove his restraints, which
denied him necessary medical care as the physician could not
examine him. 	Vigneau’s complaint contains sufficient facts to
warrant service of Claim 2(A) on John Doe #1 and John Doe #2 in
their individual capacities.
B. 	Excessive Force (Claim 2(B))
Vigneau has asserted a claim that the Doe officers’ use of
restraints while transporting Vigneau to an appointment with an
outside medical provider and during that appointment constituted
excessive force. 	“A use of force violates the Eighth Amendment
when an officer subjects an inmate to unnecessary and wanton
infliction of pain . . . which constitutes cruel and unusual
punishment.” 	Beaulieu v. N.H. Governor, No. 16-cv-471-JD, 2018
U.S. Dist. LEXIS 107964, at *27, 2018 WL 3193234, at *10 (D.N.H.
June 28, 2018) (quotation marks omitted) (quoting Hudson v.
McMillian, 503 U.S. 1, 5 (1992)). 	“The test used is ‘whether
force was applied in a good faith effort to maintain or restore
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discipline or maliciously and sadistically for the very purpose
of causing harm.’” 	Id. (quoting Hudson, 503 U.S. at 6).
Construing his complaint liberally, the court concludes that
Vigneau has sufficiently alleged an Eighth Amendment excessive-
force claim against the John Doe FCI Berlin officers to warrant
service of Claim 2(B) on them. 	The court therefore directs
service of that claim on the officers in their individual
capacities in an Order issued simultaneously with this R&R.
V. 	Claims Against Stearns, Solorio, Bell, and Austin (Claim 3)
Vigneau asserts Eighth Amendment claims, aggregated above
as Claim 3, against defendants Stearns, Solorio, Bell, and
Austin, outside medical professionals who provided Vigneau
surgical consultations and, in the case of Bell and Austin,
ultimately performed surgery on Vigneau. 	Vigneau alleges that
these defendants violated the Eighth Amendment by failing to
provide him with adequate medical treatment.
First, the court notes that it is far from clear that an
outside medical provider who is not a federal employee can be
subject to a Bivens claim.2 	But even setting that issue aside,
2Though the Supreme Court has declined to extend Bivens to
private entities acting under color of federal law, see Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 665 (2001), it has not
completely foreclosed the possibility that there are
circumstances in which Bivens remedies are available against
private individuals. 	But see Minneci v. Pollard, 565 U.S. 118,
120 (2012) (declining to extend Bivens to claims against
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Vigneau has not alleged facts demonstrating that any of these
defendants were deliberately indifferent to his health or
safety. 	See Leite, 911 F.3d at 52. 	The complaint does not
state any facts indicating that the outside doctors caused
Vigneau any harm or denied him necessary medical care.
Accordingly, the district judge should dismiss Vigneau’s Eighth
Amendment claims against Stearns, Solorio, Bell, and Austin for
failure to state a claim.
VI. 	Intentional Infliction of Emotional Distress (Claim 4)
In Claim 4, Vigneau asserts a claim against Pedersen,
Elmore, Malcolm, Hazelwood, Ingersoll, Christensen, Pigos,
Berrymann, Larin, and Yu for intentional infliction of emotional
distress (“IIED”). 	Though Vigneau asserts this claim under the
Eighth Amendment, IIED claims in fact arise under state tort
law. 	See Morancy v. Morancy, 134 N.H. 493, 495 (1991)
employees of a privately operated federal prison in part because
state tort law provided adequate alternative remedies). 	At
least one federal court of appeals has held Bivens claims are
unavailable against private individuals. 	See Holz v. Terre
Haute Reg’l Hosp., 123 F. App’x 712, 713 (7th Cir. 2005).
Another declined to extend Bivens to claims against private
individual actors when state-court remedies were available for
the alleged harm. 	See O’Neil v. Anderson, 372 F. App’x 400, 404
(4th Cir. 2010). 	Another still implied that Bivens may extend
to claims against private individuals when a plaintiff can
allege a sufficient link between the individual and the
government. 	Kulkarni v. Upasani, 659 F. App’x 937, 941 (9th
Cir. 2016). 	It does not appear that the First Circuit has
addressed this issue.
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(recognizing intentional infliction of emotional distress as a
New Hampshire common-law tort). 	Moreover, any Eighth Amendment
remedies sought through this claim are already subsumed in
Vigneau’s other Eighth Amendment claims against the same
defendants. 	See supra pp. 5-8. 	The court accordingly construes
Claim 4 as a state-law IIED claim.
All of the defendants named in Claim 4 are FCI Berlin
officials. 	This claim is accordingly subject to the
requirements of the Federal Tort Claims ACT (“FTCA”), which
governs tort claims against federal employees. 	See Sanchez v.
United States, 740 F.3d 47, 50 (1st Cir. 2014). 	The FTCA serves
as a limited waiver of sovereign immunity for torts committed by
government employees acting within the scope of their
employment. 	See id.; see also 28 U.S.C. § 1346(b)(1). 	But
before a plaintiff may bring a claim under the FTCA, he must
first exhaust his administrative remedies by presenting his
claims to the appropriate administrative agency. 	See 28 U.S.C.
§ 2675(a). 	The First Circuit has held that “the FTCA’s
exhaustion requirement is . . . jurisdictional.” 	Acosta v. U.S.
Marshals Serv., 445 F.3d 509, 514 (1st Cir. 2006). 	This means a
federal court lacks subject-matter jurisdiction over an FTCA
claim if it was not first presented for administrative review.
Vigneau does not allege anywhere in his complaint that he
exhausted his administrative remedies by presenting his IIED
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claim to the appropriate agency.3 	Absent such an allegation,
this court lacks jurisdiction to consider the tort claims
asserted. 	Accordingly, the district judge should dismiss the
Claim 4 for lack of jurisdiction, without prejudice to Vigneau
seeking leave to amend his complaint to assert specific facts
that, when taken as true, demonstrate that exhaustion has
occurred.4
VII. Conspiracy (Claim 5)
In Claim 5, Vigneau alleges that the defendants engaged in
a conspiracy to violate his constitutional rights. 	To prevail
on a conspiracy claim, both federal and state law require a
plaintiff to demonstrate, among other things, that an agreement
existed to inflict some harm upon him. 	See Earle v. Benoit, 850
3Vigneau does include a section in his complaint entitled
“Exhaustion of Administrative Remedies.” 	Doc. No. 1 at 20. 	But
in that section, Vigneau only alleges that he filed internal
administrative complaints related to the medical treatment he
was then receiving at FCI Berlin, not that he ever presented an
IIED claim or other tort claim to the appropriate administrative
agency as required by the FTCA. 	Thus, even when construed
liberally, this section does not support an inference that
Vigneau exhausted his remedies as to his IIED claim. 	Vigneau’s
discussion of his administrative complaints elsewhere in his
pleading reaffirms this conclusion. 	See id. ¶¶ 69, 70, 71, 74,
75, 76, 77, 102, 103, 104, 129, 130.
4Though his complaint contains considerable detail about the
medical treatment he received following his injury, Vigneau does
not seek to bring a claim for medical malpractice. 	Any such
claim would likewise be subject to the FTCA’s exhaustion
requirements to the extent it was brought against a federal
employee. 	See Sanchez, 740 F.3d at 50.
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F.2d 836, 844 (1st Cir. 1988); Jay Edwards, Inc. v. Baker, 130
N.H. 41, 47 (1987). 	Though Vigneau’s complaint contains
conclusory allegations that the defendants agreed to deprive him
of adequate medical care, see Doc. No. 1 ¶ 184, these
allegations are pure legal conclusions that the court does not
assume true for the purposes of its analysis. 	See Iqbal, 556
U.S. at 678. 	The complaint otherwise does not contain any facts
from which the court may reasonably infer that any of the
defendants entered into an agreement to harm Vigneau.
Accordingly, the district judge should dismiss Claim 5 for
failure to state a claim.
Conclusion
For the foregoing reasons, the court recommends that the
district judge:
• 	dismiss Vigneau’s Eighth Amendment Bivens claims to the
extent brought against the defendants in their official
capacities;
• 	dismiss Vigneau’s Eighth Amendment claims against
Stearns, Solorio, Bell, and Austin for failure to state a
claim;
• 	dismiss Vigneau’s IIED claim for lack of jurisdiction;
and
• 	dismiss Vigneau’s conspiracy claim for failure to state a
claim.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
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Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation 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
March 26, 2019
cc: 	Patrick M. Vigneau, pro se
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