United States District Court, D. Maine
BRANDON M. GROSS, Plaintiff
SCOTT R. LANDRY, et al., Defendants
RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR
C. NIVISON U.S. MAGISTRATE JUDGE
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.)
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,  I recommend the Court grant
Defendants' motion for summary judgment.
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,
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.
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)).
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).
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. 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.
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.
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
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).
Initial Health Assessments
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.)
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 ¶
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.)
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.
Efforts to Accommodate a Hearing Deficit
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.)
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.
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.
Revision of the Hearing ...