Gross v. Landry

          RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE

         In this action, Plaintiff alleges that while he was in the custody of the Maine Department of Corrections, Defendants Correct Care Solutions, LLC, Robert Clinton, M.D., Hope Freeman, N.P., Cindy McDonough, N.P., and Wendy Riebe acted with deliberate indifference toward his serious medical needs and discriminated against him based on a hearing deficit. (Complaint ¶ 1, ECF No. 1.)

         The matter is before the Court on Defendants' Motion for Summary Judgment. (ECF No. 70.) Following a review of the summary judgment record and after consideration of Defendants' arguments, ^[1] I recommend the Court grant Defendants' motion for summary judgment.

         Procedural Background

         Plaintiff filed his complaint on August 8, 2017, asserting claims against 15 defendants related to a hearing deficit and disciplinary action taken against him while he was incarcerated. (ECF No. 1.) After dismissal or summary judgment was entered in favor of the State defendants, ^[2] Defendants Correct Care Solutions, LLC, Robert Clinton, M.D., Hope Freeman, N.P., Cindy McDonough, N.P., and Wendy Riebe (Defendants) filed a motion summary judgment (Motion, ECF No. 70) together with a statement of material facts in support of the motion. (ECF No. 71, hereinafter DSMF.) Plaintiff did not file a response to the motion.

         Summary Judgment Standard

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “After the moving party has presented evidence in support of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.'” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).

         A court reviews the factual record in the light most favorable to the non-moving party, resolving evidentiary conflicts and drawing reasonable inferences in the non-movant's favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court's review of the record reveals evidence sufficient to support findings in favor of the non-moving party on one or more of his claims, a trial-worthy controversy exists and summary judgment must be denied as to any supported claim. Id. (“The district court's role is limited to assessing whether there exists evidence such that a reasonable jury could return a verdict for the nonmoving party.” (internal quotation marks omitted)). Unsupported claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         Summary Judgment Record

         When presented with a summary judgment motion, a court ordinarily considers only the facts included in the parties' statements of material facts, which statements must be supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and District of Maine Local Rule 56(b) - (d) require the specific citation to record evidence. In addition, Local Rule 56 establishes the manner by which parties must present their factual statements and the evidence on which the statements depend. A party's pro se status does not relieve the party of the obligation to comply with the court's procedural rules.^[3] Ruiz Rivera v. Riley, 209 F.3d 24, 27 - 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489 F.Supp.2d 70, 77 (D. Me. 2007).

         By rule, a party seeking summary judgment must file, in addition to its summary judgment motion, a supporting statement of material facts setting forth each fact in a separately numbered paragraph, with each factual statement followed by a citation to evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party opposing a motion for summary judgment must file an opposing statement in which it admits, denies, or qualifies the moving party's statements by reference to each numbered paragraph, with citations to supporting evidence, and in which it may set forth additional facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me. Loc. R. 56(c). If an additional statement is introduced by the non-moving party, the moving party must file a reply statement in which it admits, denies, or qualifies the non-moving party's additional statements by reference to each numbered paragraph, with citations to supporting evidence. D. Me. Loc. R. 56(d).

         “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment.” Id. Finally, “[t]he court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.” Id.

         Nevertheless, the factual assertions contained in the verified pleadings and affidavits filed by a pro se litigant generally will be considered in the review of a summary judgment motion. That is, where a pro se litigant has failed to comply strictly with the summary judgment rules, this Court has considered the sworn assertions of record. See Clarke v. Blais, 473 F.Supp.2d 124, 128 - 30 (D. Me. 2007) (“The First Circuit has not addressed this notice debate directly, but has said, in the summary judgment context, that unrepresented plaintiffs' opposing affidavits and opposition papers are to be read ‘liberally.'” (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980)); Demmons v. Tritch, 484 F.Supp.2d 177, 182 - 83 (D. Me. 2007).

         Factual Background ^[4]

         A. Initial Health Assessments

         On November 24, 2015, upon Plaintiff's admission to the Maine Correction Center (MCC), Stephen Dorsey, a nurse, conducted an initial health screening of Plaintiff. (DSMF ¶ 2.) Nursing staff screen all inmates/patients upon admission to obtain background information regarding a person's health history, identify immediate health concerns for patients, and identify a person's current medications. (Id. ¶ 1.) At that initial health screening, Plaintiff did not report any problems with his hearing. (Id. ¶ 3.)

         Within approximately 14 days of an individual's admission to MCC, a health care provider performs an Admission Health Assessment of the individual. (Id. ¶ 4.) Defendant Freeman performed an assessment of Plaintiff on December 7, 2015. (Id. ¶ 5.) During the assessment, Plaintiff reported that he had previously sustained a head injury that made him a little “slower” and had negatively impacted his memory. (Id. ¶ 8.) Plaintiff also reported that he had hearing issues since childhood, which included a procedure to place tubes in both ears. (Complaint ¶ 23.)^[5] Defendant Freeman examined Plaintiff's ears, which were normal, as was his hearing. (DSMF ¶ 9.) Following the assessment, Defendant Freeman completed a Physical Activity Limitation form, which details any limitations for the person assessed. (Id. ¶¶ 10 - 11.) Defendant Freeman did not identify any physical disability for Plaintiff, and she did not impose any restrictions based on his medical condition. (Id. ¶ 12.)

         On April 30, 2016, another registered nurse, RN Smith, saw Plaintiff for a number of issues reported by him through a Sick Call slip, including a complaint that his “left ear can't really hear.” (Id. ¶ 13.) In the progress note for that date, RN Smith recorded that Plaintiff declined to let her look at his ear. (Id. ¶ 14.) On June 4, 2016, Nurse Rosten examined Plaintiff for complaints regarding his hearing and did not note any abnormalities other than possible fluid behind the eardrum. (Id. ¶ 15.) RN Rosten noted that Plaintiff did not have a documented hearing impairment and Plaintiff advised that he had never been diagnosed with a hearing impairment. (Id. ¶ 16.) RN Rosten referred Plaintiff to a provider. (Id.

         B. Efforts to Accommodate a Hearing Deficit

         On June 14, 2016, Plaintiff requested a “hard of hearing” sign for his door and reported that his alarm clock had recently broken. (Id. ¶ 17.) At MCC, twice daily, at 6:00 a.m. and 6:00 p.m., a corrections officer yells “Count, ” and all prisoners are expected to be awake and sitting or standing up in their assigned cells. (Complaint ¶ 35.) A deviation from this formal routine results in a disciplinary infraction. (Id.)

         On June 29, 2016, Plaintiff saw Defendant McDonough for complaints about write-ups he had received for missing count and failing to follow security instructions. (DSMF ¶ 18.) Plaintiff reported to Defendant McDonough that his hearing in his left ear was diminished. (Id. ¶ 19.) Defendant McDonough examined Plaintiff's ear and noted scarring of the left tympanic membrane. (Id. ¶ 20.) In her assessment, Defendant McDonough noted that Plaintiff had a hearing deficit in his left ear. (Id. ¶ 21.) Following this visit, Defendant McDonough entered an order to “[p]lease give Mr. Gross instructions directly. Hearing deficit left ear.” (Id. ¶ 22.) Plaintiff was provided with this information through a Patient Communication Form on July 3, 2016. (Id. ¶ 23.) Plaintiff's Physical Activity Limitation form was revised to include: “Patient has a hearing deficiency in LEFT ear only. Please speak DIRECTLY to patient.” (Id. ¶ 24.) Plaintiff was provided with a placard for his door informing corrections officers that he had difficulty hearing and instructing them to wake Plaintiff at the 6:00 a.m. count. (Id. ¶ 24; ECF No. 2-34.)

         On August 29, 2016, Defendant Riebe met with the unit sergeant for Plaintiff's dorm at MCC (Sgt. Landry) regarding Plaintiff's concerns that he had received a write-up and a Class A formal violation for sleeping through count. (Id. ¶ 25.) Plaintiff previously told Defendant Riebe that he received the write-up because of the hearing loss in his left ear; Sgt. Landry advised Defendant Riebe that Plaintiff received the informal write-up in May because Plaintiff and his roommate slept in on more than one occasion, and that Plaintiff had signed and accepted the two-day room restriction imposed as a result. (Id. ¶¶ 26 - 27.) Sgt. Landry also told Defendant Riebe that Plaintiff received the Class A violation for leaving his room during the cell restriction. (Id. ¶ 28.) Sgt. Landry stated this was the only time that Plaintiff had received a write-up for sleeping-in during count. (Id.)

         C. Revision of the Hearing ...