ORDER
James E. Rand, proceeding pro se, has sued three present or former employees of the Merrimack County House of Corrections (the “MCHC”), alleging that they were deliberately indifferent to his medical needs during his prior detention in that facility. One of the defendants, Henry Simonds, has moved for summary judgment on the ground that Rand failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“the PLRA”). Through separate motions, Simonds also seeks dismissal of Rand’s case (1) as a sanction for his failure to provide certain interrogatory responses despite a court order and (2) for failing to disclose an expert witness to testify in support of his claim.
The other defendants, Carole Anderson and Richard Doucet (the “supervisory defendants”), have separately moved for summary judgment on the basis of Rand’s failure to exhaust administrative remedies. They also seek summary judgment on the independent grounds that Rand cannot prove they were deliberately indifferent to any serious medical need on his part and that they enjoy qualified immunity. Finally, the supervisory defendants have filed a “supplemental motion for summary judgment” arguing that Rand cannot succeed on his claim without expert testimony, which he has failed to disclose by the court-imposed deadline. Rand has not responded to any of the defendants’ motions, despite having been granted an extension of time to do so. 1
Background
Rand entered the MCHC on February 13, 2004, following “a high speed car chase that ended with [his] losing control of his vehicle [and] crashing into trees.” Compl. ¶ 7. At that time, as well as during all of the events at issue here, Anderson was the superintendent of the MCHC, while Doucet was the assistant superintendent. Before going to the MCHC, Rand was transported from the scene of the accident to Concord Hospital, where he underwent x-rays and other testing. As a result of this “very brief exam,” Rand was diagnosed as being “in good medical health,” aside from some minor cuts and bruises. Id. ¶ 9.
Phyllis Butler, a nurse at the MCHC who also serves as the head of its health services department, first examined Rand on February 14, 2004. She noted that he complained of muscle soreness in his neck and back as a result of the accident but otherwise described his “General Health”
Rand asked for further medical attention on February 23, 2004. Simonds, who saw Rand the next day, told him “that the soreness and pain was normal after getting involved in a car accident” and suggested that he continue to treat those symptoms with Ultram. Compl. ¶ 22. In a follow-up appointment on February 27, 2004, Rand reiterated his complaints of pain in the area of his right shoulder. Noting “no external sign of injury” and a “full range of motion,” Simonds diagnosed Rand with a muscle strain secondary to the accident and renewed his prescriptions for ibuprofen, Flexeril, and Ultram. Butler Aff. ¶ 12. Rand alleges that Simonds “couldn’t provide an explanation for the problems [Rand] was having” and should have referred him to a specialist at that point. Compl. ¶ 31.
Just over a week later, on March 8, 2004, Rand again sought medical attention, complaining that he could not raise his right arm and that he had heard a popping noise in his right shoulder. Patricia Lee, the physician’s assistant at the MCHC who saw Rand at this time, observed that he could not lift his right arm inore than ninety degrees or extend it behind his back. She diagnosed Rand with a rotator cuff tear and ordered him to continue taking Tylenol and Ultram. According to Rand’s medical chart, Lee also “suggested” that he consult with an orthopedist with a view toward possible surgery. Butler Aff. ¶ 14.
Anderson subsequently discussed Lee’s “recommendation” with Butler, “who believed a more conservative approach, with use of prescriptions and passage of time, would better assess the complaints.” Anderson Aff. ¶ 12. 2 Although both Anderson and Butler have submitted detailed affidavits in support of the supervisory defendants’ summary judgment motion, neither claims to have spoken to Lee about her “recommendation” that Rand see an orthopedist, or the reasons for it. Furthermore, Anderson recalls that she and Butler “discussed having Dr. Rodd, the jail’s physician and medical director, review the case,” id., but neither Anderson nor Butler indicates whether this in fact occurred. 3 On March 11, 2004, however, Butler entered a note into Rand’s chart stating, “Will hold off on surgical consult for now — awaiting court rulings/court dates.” Butler Aff. ¶ 15.
Butler saw Rand again on March 19, 2004, when he sought attention for complaints of increased pain in his right shoulder, accompanied by occasional pain and numbness in his right arm and hand. Butler “told him per jail policy this preexisting condition will not be authorized for surgical intervention” and, in response to his requests for “at least an x-ray or [to] have the shoulder scoped to find out if
Anderson attests that Rand never made a “formal request” to her to authorize the treatment he desired. Anderson Aff. ¶ 13. He had, however, submitted a medical request slip on March 12, 2004, “about discomfort in his right arm and whether he would be referred to a specialist for examination (as mentioned by PA Lee).” Id. ¶ 15. In addition, on June 10, 2004, Patricia Moyer, an investigator for the public defender representing Rand on the criminal charges against him, telephoned Doucet, the MCHC’s assistant superintendent, “about Mr. Rand’s medical care at the jail,” specifically his complaints of pain in his shoulder. Doucet Aff. ¶ 11. Doucet summarized his conversation with Moyer in a letter he sent her later that day, stating:
As I explained to you, this is a preexisting condition and if [Rand] has insurance or funds to cover the cost of the exam he is requesting, we will make the necessary arrangements. There is no doctor’s order for a surgical consult with orthopedics; there is only a recommendation by Physician Assistant Patricia Lee.
Id. ¶ 12. Moyer wrote to Anderson on both July 26, 2004, and December 8, 2004, requesting, inter alia, “a copy of the jail’s policy for non-treatment of pre-existing conditions.” Mot. J. Defs.’ Ans. Admis., Ex. F, at INM 000111, MED000055; see also Anderson Aff. ¶¶ 20, 22. Meanwhile, Rand commenced this action on October 7, 2004. On December 13, 2004, Anderson sent a letter to Rand, with a copy to Moyer, stating, “[o]ur policy regarding medical occurrences is that we do not treat conditions that do not require treatment. However, we do treat any condition that needs treatment.” Anderson Aff. ¶ 24.
Neither Anderson nor Doucet had explained the MCHC’s medical care policy with reference to the language set forth in the inmate handbook then in effect. ■ Under that policy, “[n]o inmate [could] be refused necessary medical treatment for financial reasons.” Anderson Aff. ¶ 7, Ex. A, at 7. The handbook defined “necessary medical treatment” as
[a] professional judgment made by a Physician Assistant that the requested service or medication is medically appropriate and cannot be safely and humanely postponed until after the inmate’s period of incarceration ends. Treatment that the Staff Physician deems to be elective may be refused on the grounds that it is not medically necessary.
Id. Notably, this policy gave neither the administration nor the head of the health services department any role in deciding what constituted “necessary medical treatment,” but left that determination to a physician’s assistant, subject to the approval of the staff physician. Nor did it mention, as a factor in determining whether care for a condition was medically necessary, whether it predated the inmate’s arrival at the MCHC.
In any event, when Lee examined Rand on November 11, 2004, she noted that his “rotator cuff tear [was] much improved” and that his right shoulder showed “no crepitus and a much more flexible range of motion.”
4
Butler Aff. ¶ 29. This was the
On January 14, 2005, Rand saw Dr. Russell Brummett, who diagnosed him with “[pjosttraumatic cervical strain with previous C5 injury.” Butler Aff. ¶ 44. Noting that “this is something that should be treated very conservatively” and that Rand did “not present with any particular risk for any neurologic injury,” Brummett “recommend[ed] a physical therapy regimen ....” Id. Rand subsequently received physical therapy from an outside provider on a number of occasions in January and February, 2004. Through this regimen, Rand “made good progress with increas[ing] mobility and strength,” but “minimal progress with decreasing pain/discomfort,” in his right shoulder. Id. ¶ 56.
Rand saw a different orthopedist, Dr. FitzMorris, on February 23, 2004. FitzMorris did not “appreciate any acute cervical spine injury related to [Rand’s] motor vehicle accident,” adding that Rand’s “insight [was] poor” and that “[s]urgery [was] certainly not the answer.” Butler Aff. ¶¶ 58-59. Instead, FitzMorris suggested a decrease in Rand’s Ultram intake and additional exercises.
On March 31, 2004, Rand discussed increasing his medications and getting a “possible third opinion” with a nurse at the MCHC. Butler Aff. ¶ 64. Lee, following a consultation with Rodd, the jail’s medical director, referred Rand to FitzMorris for another evaluation of his right shoulder and cervical vertebrae. Rand underwent an MRI on the shoulder on April 27, 2005, which did “not suggest a complete tear” or “recent bony injury” but rather “[a]rthritic changes.” Id. Upon review of the results, Lee concluded that the “MRI show[ed] no obvious injuries including tears.” Id. ¶ 71. After FitzMorris examined Rand again on May 18, 2005, the doctor agreed that Rand “had essentially a normal MRI scan” and no “significant rotator cuff tear.” Id. ¶ 75. FitzMorris again “recommended that [Rand] wean himself from any analgesic medication and start using the shoulder more and more,” but did “not recommend surgery or any other significant orthopaedic intervention.” Id. Thus, while Rand continued to receive treatment for his shoulder pain from the MCHC medical staff over the next several months, it consisted primarily of tinkering with his medications, without further testing or consultation from outside providers. 5
After reviewing the complaint in this matter under 28 U.S.C. § 1915A and L.R. 4.3(d)(2), the magistrate ordered that Rand be allowed to proceed on his claim (1) that Simonds was deliberately indifferent to Rand’s “severe shoulder injury and related pain” by failing to refer him to a specialist or other physician in February, 2004, Order (Feb. 10, 2005), at 8-9, and (2) that Anderson and Doucet were similarly indifferent in their “tacit condonation” of Simonds’s alleged misfeasance and their refusal to authorize the treatment Lee had recommended. Id. at 11. None of the parties objected to the magistrate’s order.
On a motion for summary judgment, the moving party has the burden of showing the absence of any genuine issue of material fact.
See Celotex Corp. v. Catrett, 477
U.S. 317, 323,
Although Rand has not filed any objection to the defendants’ summary judgment motions, the court cannot grant them on that basis alone. Instead, “it must assure itself that the moving party’s submission shows that ‘there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ ”
NEPSK, Inc. v. Town of Houlton,
Discussion
I. Whether Rand Exhausted His Administrative Remedies
Both Simonds and the supervisory defendants move for summary judgment on Rand’s claim on the ground that he failed to exhaust his administrative remedies as required by the PLRA. The PLRA provides that “[n]o action shall be brought with respect to prison conditions under ... any ... Federal law, by a prisoner' ... until such administrative remedies as are available have been exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that this requirement “applies to all inmate suits about prison life, whether they involve general circumstances or a particular episode, and whether they allege excessive force or some other wrong.”
Porter v. Nussle,
Where section 1997e(a) applies, but the plaintiff has nevertheless failed to exhaust available administrative remedies prior to bringing suit, his or her claims must be dismissed without prejudice.
Medina-Claudio v. Rodriguez-Mateo,
The defendants point out that Rand never complained about their alleged indifference to his serious medical need by filing a grievance as contemplated by the inmate handbook. Under the heading
Inmate’s [sic ] incarcerated at the Merrimack County Department of Corrections have the right and opportunity to submit grievances to the county authorities as well as other officials of the State of New Hampshire without fear of adverse actions. The inmate grievance procedure is a formal method for resolving “misinterpretations” and/or “misapplications” of rules or alleged violations of Department Policy & Procedures.
Officers will supply the necessary paperwork or information to any inmate that seeks to submit a grievance. The Assistant Superintendent will then assign the appropriate personnel to the investigation of the grievance and respond back in writing to the inmate.
Anderson Aff. ¶ 7, Ex. A, at 27. The defendants read this passage as giving “instructions” with which Rand was “required to comply” in order to exhaust the administrative remedies available to him within the meaning of the PLRA. Mem. Supp.Super. Defs.’ Mot. Summ. J. at 6-7. The court disagrees.
It is generally true that “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place ... the prison’s administrative rules require.”
Pozo v. McCaughtry,
Furthermore, in the “Medical Procedures” section, the handbook in effect at the relevant time stated simply that “[a]n inmate requesting medical services shall submit a signed Medical Request Form” and that “[a]ny disputed charges may be appealed in writing to the superintendent within three days, excluding weekends and holidays,” without making clear how these requirements intersect with the grievance policy. Anderson Aff. ¶ 7, Ex. A, at 8. Rand did submit a medical request form, on March 12, 2004, asking to be referred to a specialist in accordance with Lee’s advice.
Courts have not held inmates to the purported requirements of prison grievance procedures which are not clearly spelled out in the applicable regulations or elsewhere.
See Spruill v. Gillis,
Here, when Butler told Rand that his shoulder injury would “not be authorized for surgical intervention,” she did not refer him to the grievance procedure, but “told him he would have to write directly to Carole Anderson for authorization .... ” Butler Aff. ¶ 16. Although Rand did not explicitly request “authorization” from Anderson in response, Moyer, the investigator for Rand’s criminal defense attorney, subsequently challenged the MCHC’s refusal to refer him to an outside provider in a telephone conversation with Doucet, the assistant superintendent. Moyer also wrote directly to Anderson, on Rand’s behalf, questioning the MCHC’s stated policy of refusing to treat inmates for pre-existing conditions.
The overarching purpose of the PLRA’s exhaustion requirement is to “afford[ ] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.”
Porter,
Simonds, however, separately argues that the claim against him could not have been exhausted through Moyer’s communications with Anderson and Doucet. Rand alleges that Simonds was deliberately indifferent in failing to refer him to a specialist outside the jail for his shoulder injury in February 2004. As Simonds points out, this occurred before Lee’s recommendation that Rand receive outside care for his shoulder and the subsequent decision against providing that care. It was that decision, rather than Simonds’s alleged failure to recommend outside care at an earlier time, which Moyer challenged in her correspondence with the supervisory defendants.
II. Whether There is a Factual Issue as to Rand’s Claim
The supervisory defendants also seek summary judgment on the ground that the record demonstrates, as a matter of law, that they were not deliberately indifferent to any serious medical need on Rand’s part. “[Cjlaims by pretrial detainees alleging denials of medical assistance essentially turn on whether the challenged official action constituted deliberate indifference to a serious medical need.”
Mahan v. Plymouth County House of Corrs.,
The supervisory defendants argue that Rand cannot establish either the objective or subjective elements of his claim, i.e. (1) that he had any “serious medical problem” or (2) that they were deliberately indifferent to it. Super. Defs’ Mot. Summ. J. ¶¶ 4-5. As to the second point, the supervisory defendants argue in their summary judgment motion that they simply “deferred to medical providers” when they initially denied Rand outside care for his shoulder injury. Id. ¶ 5. But Anderson pointedly did not defer to Lee’s advice that the MCHC provide such care.
Relying on the fact that Lee wrote “surgical consult/orthopedic
suggested,”
rather than
ordered,
on Rand’s chart, Butler Aff. ¶ 14 (emphasis added), Anderson maintains that she “never overruled any doctor’s or physician’s order to transport Mr. Rand for outside care.” Anderson Aff. ¶ 33. It should be noted at the outset that this distinction does not have the legal significance the supervisory defendants have attributed to it. As this court has observed, “[e]ven elective treatment recommended by a physician but not ‘necessary’ in life or health saving sense, may be constitutionally mandated upon a prisoner’s election.”
Laaman v. Helgemoe,
Anderson claims that, rather than ignoring Lee’s suggestion, she and Butler “determined that conservative treatment would be pursued inside the jail, prior to any orthopaedic consultations.” Anderson Aff. ¶ 32. The events surrounding the decision, however, suggest that this is less of an honest explanation for the decision than a post hoc justification of it. First, neither Anderson nor Butler claims to have asked Lee about the suggested treatment before deciding that it did not amount to an “order” and therefore could be disregarded. Second, while Anderson acknowledges that she and Butler “discussed having Dr. Rodd, the jail’s physician and medical director, review the case,” Anderson Aff. ¶ 12, they apparently did not, even though the MCHC’s medical policy at the time gave Rodd — and not Anderson, Butler, or any other administrator — the ultimate authority to decide whether a treatment was medically necessary.
Third, Butler’s notations on Rand’s chart do not reflect the choice of “a more conservative course of treatment” for Rand. Instead, on March 11, 2004, just after her conference with Anderson, Butler wrote, “Will hold off on surgical consult for now-awaiting court rulings/eourt dates.” Butler Aff. ¶ 15. Fourth, and most importantly, when Butler saw Rand on March 19, 2004, she did not tell him that “a more conservative course of treatment” had been chosen for his shoulder injury. To the contrary, she said that “this pre-existing condition will not be authorized for surgical intervention” and that “he would have to write directly to Carole Anderson for authorization for outside consult.” Id. ¶ 16. Finally, in explaining the MCHC’s decision to Moyer, Doucet also relied on the fact that Rand’s injury was a preexisting condition and, as a result, the MCHC would not provide treatment unless Rand could pay for it.
“Prison officials may not, with deliberate indifference to the serious medical needs of an inmate, opt for an easier and less efficacious treatment of the inmate’s condition. Nor may they condition provision of needed medical services on the inmate’s ability or willingness to pay.”
Monmouth County Corr. Inst. Inmates v. Lanzaro,
The supervisory defendants also argue, however, that Rand cannot show that he had a “serious medical need,” because the eventual examination of his shoulder by medical providers outside the prison showed that he did not have the
Here, although the supervisory defendants initially refused to send Rand to an orthopedic surgeon in accordance with Lee’s suggestion of March 11, 2004, he was ultimately examined by specialists outside the jail on January 14, 2005, February 23, 2005, and May 18, 2005. These specialists concluded that Rand had neither a serious cervical injury nor a significant rotator cuff tear. They also did not believe that surgery was an appropriate intervention, recommending physical therapy and a decrease in Rand’s pain medication instead. Even these measures, however, did not appreciably reduce Rand’s pain and discomfort, so implementing them earlier would not have measurably improved his physical condition.
The delay in getting examined by an orthopedic surge.on, then, did not cause Rand any additional pain or permanent injury.
Cf. Monmouth County,
Conclusion
For the foregoing reasons, Simonds’s motion for summary judgment for Rand’s failure to exhaust administrative remedies (document no. 52) is GRANTED; Rand’s claim against Simonds is dismissed without prejudice. The supervisory defendants’ motion for summary judgment (document no. 54) is also GRANTED as follows: Rand’s claim against the supervisory defendants, to the extent it arises out of Simonds’s actions, is dismissed without prejudice; the supervisory defendants are otherwise granted summary judgment as to Rand’s claim. The remaining pending motions (document nos. 53, 65, and 66) are DENIED as moot. The clerk shall enter judgment accordingly and close the case.
SO ORDERED.
Notes
. Although Rand’s time to respond to Simonds’s motion to dismiss for failing to disclose an expert witness, and the supervisory defendants’ supplemental motion for summary judgment, has yet to run, those motions are moot, for reasons which will appear.
. All citations to "Anderson Aff.” refer to the amended affidavit she filed in support of the supervisory defendants’ motion for summary judgment.
. Doucet recalls that Anderson "advised [him] to confirm for the medical department that Mr. Rand would not be transported for an outside consultation at that time,” which Doucet did. Doucet Aff. ¶¶ 7-8. Doucet provides no further details in this regard.
. Crepitus, in the relevant sense, is “the grating sensation caused by the rubbing together of the dry synovial surfaces of joints.”
Dor
. Rand did, however, resume physical therapy with an outside provider on November 30, 2005, though it is unclear for how long.
. Similarly, the grievance form itself simply contains spaces for the inmate to write his name, the date, and the "Nature of Grievanee,” together with additional blanks to be filled in by prison officials. Mem. Supp. Simonds Mot. Summ. J., Ex. E.
. Some courts have held that an inmate’s failure to comply with applicable grievance procedures in complaining about his treatment amounts to non-exhaustion only if his grievance is rejected on that basis.
E.g., Conyers v. Abitz,