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Gary Lawlor v. Trish Lee et al.

June 13, 2012

GARY LAWLOR
v.
TRISH LEE ET AL.



The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

ORDER

Before the court for preliminary review is a complaint (doc. no. 1) filed by pro se plaintiff Gary Lawlor, who is currently detained at the Merrimack County House of Corrections ("MCHC"). See 28 U.S.C. § 1915A(a); United States District Court District of New Hampshire Local Rule ("LR") 4.3(d)(2)(A). Because Lawlor has alleged a plausible claim for relief, the court orders that the complaint be served on defendants.

Discussion

I. Standard of Review

Pursuant to LR 4.3(d)(2) and 28 U.S.C. § 1915A, the magistrate judge conducts a preliminary review of prisoner complaints before defendants have an opportunity to respond to the claims. The magistrate judge may direct service of the complaint, or, as appropriate, recommend to the district judge that one or more claims be dismissed if: the court lacks subject matter jurisdiction, a defendant is immune from the relief sought, the complaint fails to state a claim upon which relief may be granted, the allegation of poverty is untrue, or the action is frivolous or malicious. See 28 U.S.C. § 1915A(a); LR 4.3(d)(2).

In determining whether to dismiss claims asserted in a pro se plaintiff's complaint for failure to state a claim upon which relief can be granted, the court decides whether the complaint, construed liberally, contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Sepulveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (pro se pleadings are construed liberally). To make this determination, the court treats as true all well-pleaded factual allegations, and construes all reasonable inferences drawn therefrom in the plaintiff's favor, to determine if the claim is plausible. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555 (citations and footnote omitted)).

II. Background

Lawlor alleges that in May 2007, prior to his incarcera- tion, he was diagnosed with "post herpetic trigeminal neuralgia,"*fn1 a chronic condition which causes extreme facial pain. Lawlor had been under the care of Dr. O'Connell, a pain management doctor, who had prescribed a combination of medications to treat Lawlor's pain: Percocet, Oxycodone, Nortriptyline, and Klonopin. Lawlor alleges that he had been taking this suite of medications since 2010.

Lawlor was incarcerated at the MCHC from October 26, 2011, until January 19, 2012. During this period of detention, Lawlor received the same combination of prescription drugs that Dr. O'Connell prescribed for him.

Lawlor was released from the MCHC on January 19, 2012, but was arrested again four days later. Lawlor alleges that upon his January 23, 2012, return to the MCHC an intake nurse there said she would pass along the medication orders prescribed by Dr. O'Connell to defendant Trish Lee ("Lee"), a physician's assistant with the MCHC medical department. Lawlor asserts that neither Lee nor anyone else provided him with the combination of medications prescribed by Dr. O'Connell, and that had previously been given to him at the MCHC. Instead, Lawlor has only been given Nortriptyline,*fn2 which he claims does not alleviate his pain. Lawlor asserts that Lee told him that she intended to wean him off of the four medications for "ethical reasons." Lawlor submits that when he complained to a nurse, she opined that the medication changes were "probably due to the budget." Lawlor now contends that he is in constant pain because the Nortriptyline is ineffective alone, and the MCHC refuses to give him the combination of medications that Dr. O'Connell had prescribed. Lawlor alleges that as a result, he experiences pain that interferes with his ability to sleep and function normally.

Lawlor claims he has submitted requests slips and two grievance forms to Lee, plus two grievance forms to defendant Ron White ("White"), the Superintendent of the MCHC, but their replies do not address his pain management issues. Based on these allegations, Lawlor asserts inadequate medical care claims against defendants Lee and White, and seeks injunctive relief and damages.

III. Analysis

As a pretrial detainee, Lawlor's claim for the denial of adequate medical care arises under the Fourteenth Amendment's due process clause. Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (citing Burrell v. Hampshire Cnty., 307 F.3d 1, 7 (1st Cir. 2002)). The protection afforded pretrial detainees under the Fourteenth Amendment is at least as great as that afforded convicted inmates under the Eighth Amendment. See Burrell, 307 F.3d at 7 (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)). The standard applied to the treatment of pretrial detainees is the same as that applied to convicted inmates' claims under the Eighth Amendment. Burrell, 307 F.3d at 7; see also Ramos v. Patnaude, 640 F.3d 485, 489 (1st Cir. 2011).

To state a claim for unconstitutionally inadequate medical care, Lawlor must first assert facts to demonstrate that he was deprived of adequate care for a serious medical need; a serious medical need "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." Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (internal quotation marks and citation omitted). Next, Lawlor must demonstrate that defendants were deliberately indifferent to his serious medical need by demonstrating that defendants were "'aware of facts from which the inference could be drawn that a substantial risk of serious harm'" to plaintiff's health and safety existed that required medical treatment, that defendants actually drew the inference, and that defendants failed to take reasonable steps to remedy or alleviate the risk. Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The standard for deliberate indifference: encompasses a narrow band of conduct: ...


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