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Lariviere v. Hillsborough County Department of Corrections Medical Department

United States District Court, D. New Hampshire

April 27, 2015

Richard LaRiviere
v.
Hillsborough County Department of Corrections Medical Department et al.

REPORT AND RECOMMENDATION

ANDREA K. JOHNSTONE, Magistrate Judge.

On November 20, 2014, this court issued an Order (doc. no. 8) directing service of the complaint (doc. no. 1) on defendant Hillsborough County Department of Corrections ("HCDC") Corrections Officer Adam Rosario, with respect to Claim 3, and granting leave to plaintiff Richard LaRiviere to amend the complaint. In a Report and Recommendation (doc. no. 7) ("R&R") issued simultaneously with that Order, the court recommended that two of LaRiviere's claims, and all of the other defendants identified in the complaint, be dismissed. The R&R was approved on December 12, 2014. Presently before the court for preliminary review is LaRiviere's amended complaint (doc. no. 12). See 28 U.S.C. ยง 1915A(a); LR 4.3(d)(1).

Discussion[1]

I. Background

In the R&R, the court identified six claims asserted in the complaint (Claims 1-6). The court directed service of the complaint on defendant Rosario, as Claim 3 stated a claim against him. The court granted LaRiviere leave to amend Claims 1 and 2, alleging inadequate medical care, as well as Claim 4, alleging inadequate nutrition. Specifically, LaRiviere was directed to name defendants to Claims 1, 2, and 4, and to assert facts sufficient to state claims upon which relief might be granted against those defendants. In the R&R, the court recommended that Claims 5 and 6, and all of the defendants other than Rosario, be dismissed.

Claims 1, 2, and 4 were set forth in the R&R as follows:

1. HCDC personnel violated LaRiviere's Fourteenth Amendment right to adequate medical care while in pretrial detention, in that HCDC personnel, for thirteen days, did not follow the Elliot Hospital discharge instructions prescribed to treat his leg injury after LaRiviere's suicide attempt.
2. HCDC personnel violated LaRiviere's Fourteenth Amendment right to adequate medical care while in pretrial detention, in that, with deliberate indifference to a serious medical need, HCDC personnel failed to treat LaRiviere's depression, resulting in LaRiviere's suicide attempt.
4. HCDC staff violated LaRiviere's Fourteenth Amendment right to humane conditions of pretrial confinement by denying LaRiviere an adequate diet.

In his amended complaint, LaRiviere also asserts claims based on alleged violations of the Health Insurance Portability and Accountability Act ("HIPAA"). Further, he alleges new facts which he assert constitute additional inadequate medical care claims.

II. Discussion

A. Inadequate Medical Care Claims

As a pretrial detainee, LaRiviere's "right to adequate medical... care during his incarceration arises under the Fourteenth Amendment's Due Process Clause." Fox v. Clancy, 2013 WL 3245332, at *2 (D.N.H. June 26, 2013) (citing Suprenant v. Rivas, 424 F.3d 5, 18 (1st Cir.2005)). In general, "the standard applied under the Fourteenth Amendment is the same as the Eighth Amendment standard" for convicted inmates. Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007). "In order to state a constitutional claim for the denial of medical... care, " therefore, LaRiviere "must allege that defendants have committed acts or omissions... sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Fox, 2013 WL 3245332, at *2 (quoting Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir.2011)).

In the amended complaint (doc. no. 12), LaRiviere identifies HCDC nurses Christine Morrison, Linda Wheeler, and HCDC physician, Dr. Moskowitz, whose first name is unknown ("FNU"), as defendants to Claims 1 and 2. LaRiviere sufficiently asserts Fourteenth Amendment claims against Morrison, Wheeler, and Moskowitz to allow them to proceed against those defendants, to the extent that the defendants: denied LaRiviere medication for his severe depression; declined to refer LaRiviere for mental health care despite repeated requests and knowledge of his severe depression; denied LaRiviere pain medication that had been ordered by the Elliot Hospital ("Elliot") doctor who treated LaRiviere's selfinflicted injury to his leg in a suicide attempt; and failed to properly care for LaRiviere's wound, causing it to become ...


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