United States District Court, D. Maine
NICHOLAS A. GLADU, Plaintiff
CORRECT CARE SOLUTIONS, et al., Defendants
RECOMMENDED DECISION ON PLAINTIFF'S MOTIONS FOR
C. NIVISON U.S. MAGISTRATE JUDGE.
action, Plaintiff, an inmate at the Maine State Prison,
alleges, pursuant to 42 U.S.C. § 1983, that Defendants
have acted, and continue to act, with deliberate indifference
toward his serious medical condition. The matter is before
the Court on Plaintiff's motions for a physical
examination (ECF Nos. 19, 46), which motions are construed
requests for preliminary injunctive relief.
alleges that he has developed a condition on his skull, which
condition he describes as an anomaly, and that he has
experienced headaches, vertigo, and visual difficulties.
Plaintiff contends Defendants have denied Plaintiff's
request for a referral to outside providers and have not
properly assessed Plaintiff to rule out certain disease
his motions for physical examination, Plaintiff requests
x-ray studies of his skull, a metabolic panel, renal function
panel, endocrine study, and other studies. Plaintiff asserts
that he is willing to pay for the studies, if they are
obtained from outside providers. Plaintiff requests, in the
alternative, that Defendants conduct the studies, provided
that Plaintiff set parameters for the studies and that the
x-rays are reviewed by an outside provider. (See, ECF Nos.
19, 32, 46.)
referenced above, because Plaintiff asks to the Court to
direct a certain aspect of Plaintiff's medical treatment,
Plaintiff's motions for physical examination are
construed as motions for injunctive relief.
evaluating a request for injunctive relief, courts
“must consider (1) the likelihood of success on the
merits; (2) the potential for irreparable harm if the
injunction is denied; (3) the balance of relevant
impositions, i.e., the hardship to the nonmovant if enjoined
as contrasted with the hardship to the movant if no
injunction issues; and (4) the effect (if any) of the
court's ruling on the public
interest.” Ross-Simons of Warwick, Inc. v.
Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996) (citing
Weaver v. Henderson, 984 F.2d 11, 12 &n.3 (1st
Cir. 1993), and Narragansett Indian Tribe v.
Guilbert, 934 F.2d 4, 5 (1st Cir. 1991)). “The
sine qua non of this four-part inquiry is likelihood of
success on the merits; if the moving party cannot demonstrate
that he is likely to succeed in his quest, the remaining
factors become matters of idle curiosity.” New Comm
Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9
(1st Cir. 2002). “The dramatic and drastic power of
injunctive force may be unleashed only against conditions
generating a presently existing actual threat; it may not be
used simply to eliminate a possibility of a remote future
injury, or a future invasion of rights, be those rights
protected by statute or by the common law.” Holiday
Inns of Am., Inc. v. B & B Corp., 409 F.2d
614, 618 (3d Cir. 1969).
claim arises under the Eighth Amendment, made actionable by
the civil rights act, 42 U.S.C. § 1983. In its final
clause, the Eighth Amendment prohibits the infliction of
“cruel and unusual punishments.” U.S. Const.
amend. VIII. Based on this prohibition, “courts have
derived the principles that govern the permissible conditions
under which prisoners are held and that establish the medical
treatment those prisoners must be afforded.”
Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)
(citing Farmer v. Brennan, 511 U.S. 825, 832
(1994)). To succeed on a claim of inadequate or delayed
medical care, Plaintiff must demonstrate that Defendants have
acted with “deliberate indifference” toward
“a substantial risk of serious harm to health, ”
Coscia v. Town of Pembroke, 659 F.3d 37, 39 (1st
Cir. 2011), or “serious medical need, ”
Feeney v. Corr. Med. Servs., 464 F.3d 158, 161 (1st
Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97,
105 -106 (1976)). To carry his burden, Plaintiff must satisfy
both an objective and a subjective standard. Leavitt v.
Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir. 2011).
objective standard focuses on the seriousness of the risk of
harm to the inmate's health. For a medical condition to
be objectively “serious, ” there must be “a
sufficiently substantial ‘risk of serious damage to
[the inmate's] future health.'” Farmer v.
Brennan, 511 U.S. 825, 843 (1994) (quoting Helling
v. McKinney, 509 U.S. 25, 35 (1993)). A medical need is
serious if it has been diagnosed by a physician as mandating
treatment, or is so obvious that even a lay person would
recognize a need for medical intervention. Leavitt,
645 F.3d at 497; Gaudreault v. Mun. of Salem, 923
F.2d 203, 208 (1st Cir. 1990), cert. denied, 500
U.S. 956 (1991).
subjective standard involves the culpability of the
defendant. To establish liability, a plaintiff must establish
that a defendant possessed a culpable state of mind amounting
to “deliberate indifference to an inmate's health
or safety.” Farmer, 511 U.S. at 834 (internal
quotation marks omitted). Deliberate indifference is akin to
criminal recklessness, “requiring actual knowledge of
impending harm, easily preventable.” Feeney,
464 F.3d at 162 (quoting Watson v. Caton, 984 F.2d
537, 540 (1st Cir. 1993)). The focus of the deliberate
indifference analysis “is on what the jailers knew and
what they did in response.” Burrell v. Hampshire
Cnty., 307 F.3d 1, 8 (1st Cir. 2002). In other words,
the subjective standard focuses on whether the Defendants had
a “purposeful intent” to neglect Plaintiff's
serious medical needs. Perry v. Roy, 782 F.3d 73, 79
(1st Cir. 2015) (citing Estelle, 429 U.S. at 105). A
showing of such an intent requires evidence that the alleged
absence or inadequacy of treatment was intentional.
Id. (citing Estelle, 429 U.S. at 105
(holding that “an inadvertent failure to provide
adequate medical care” is not a constitutional
violation), and Watson, 984 F.2d at 540 (“The
courts have consistently refused ... to conclude that simple
medical malpractice rises to the level of cruel and unusual
punishment.”)). “The typical example of a case of
deliberative indifference would be one in which treatment is
denied in order to punish the inmate.” Id.
(internal quotation marks omitted).
indifference thus must be based on much more than ordinary
negligence. The First Circuit has explained:
A finding of deliberate indifference requires more than a
showing of negligence. Estelle v. Gamble, 429 U.S.
97, 106 (1976) (holding that “[m]edical malpractice
does not become a constitutional violation merely because the
victim is a prisoner”); Sires v. Berman, 834
F.2d 9, 13 (1st Cir. 1987). A plaintiff claiming an eighth
amendment violation with respect to an inmate's serious
mental health or safety needs must allege “acts or
omissions sufficiently harmful to evidence deliberate
indifference.” Estelle, 429 U.S. at 106;
see also Cortes-Quinone v. Jimenez-Nettleship, 842
F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823
(1988). Although this court has hesitated to find deliberate
indifference to a serious need “[w]here the dispute
concerns not the absence of help, but the choice of a certain