United States District Court, D. New Hampshire
DiClerico, Jr. United States District Judge.
LaRiviere, proceeding pro se and in forma pauperis, brings
civil rights claims under 42 U.S.C. § 1983 against
employees of the Hillsborough County Department of
Corrections (“HCDOC”). Claims against several
defendants have been dismissed, leaving Lynda Wheeler and
Matthew Masewic as the remaining defendants. Wheeler and
Masewic have moved for summary judgment on all claims against
Wheeler moved for summary judgment, LaRiviere moved for
appointment of counsel to represent him. In support of his
motion, LaRiviere represented that he was being held in the
special housing unit of the prison where he was incarcerated
and that his mental health had deteriorated to the extent
that he was no longer able to proceed pro se. The defendants
objected to the motion to appoint counsel.
court required LaRiviere to provide psychiatric treatment
records and his own sworn affidavit to support his
representations of an inability to proceed pro se. After
LaRiviere was moved to a different facility, the court
ordered the medical staff there to send LaRiviere's
current psychiatric treatment records to the court under
seal. The court also stayed all deadlines in the case,
including the deadline for LaRiviere to respond to the
pending motions for summary judgment.
receiving and reviewing LaRiviere's records, the court
concluded that LaRiviere is capable of proceeding pro se and
denied his motion for appointment of counsel. The stay was
terminated, and the court set a deadline for LaRiviere to
respond to the motions for summary judgment. LaRiviere did
not file a response.
judgment is appropriate when the moving party “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). “A genuine dispute is
one that a reasonable fact-finder could resolve in favor of
either party and a material fact is one that could affect the
outcome of the case.” Flood v. Bank of Am.
Corp., 780 F.3d 1, 7 (1st Cir. 2015). The facts and
reasonable inferences are taken in the light most favorable
to the nonmoving party. McGunigle v. City of Quincy,
__F.3d__, 2016 WL 4570420, at *7 (1st Cir. Aug. 21,
2016). “On issues where the movant does not have the
burden of proof at trial, the movant can succeed on summary
judgment by showing ‘that there is an absence of
evidence to support the nonmoving party's
case.'” OneBeacon Am. Ins. Co. v. Commercial
Union Assurance Co. of Canada, 684 F.3d 237, 241 (1st
Cir. 2012) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986)).
properly supported material facts set forth in the moving
party's factual statement may be deemed admitted unless
properly opposed by the adverse party.” LR 56.1(b).
Because LaRiviere failed to respond to the motions for
summary judgment, the properly supported material facts
provided in support of the motions are taken as true. Even
when a motion for summary judgment is unopposed, the court
must review the motion on the merits based on the undisputed
facts, but the court is not obligated to develop arguments or
search for evidence to oppose the motion on behalf of the
nonmoving party. Alberti v. Carlo-Izquierdo, 548
F.App'x 625, 635 (1st Cir. 2013).
claims in this case arise from events that occurred during
his incarceration as a pretrial detainee at HCDOC in 2014 and
focus on his suicide attempt on June 17, 2014. Lynda Wheeler
was a nurse at the jail while LaRiviere was held there.
Matthew Masewic was a medical doctor who contracted with the
HCDOC to provide medical services at the jail.
preliminary review, LaRiviere's claims in Counts I and
II, alleging inadequate medical care, were allowed to proceed
against Wheeler and Masewic, along with others who are no
longer in the case. Those claims are based on allegations
that the defendants denied LaRiviere medication for his
severe depression, declined to refer him for mental health
care despite repeated requests and knowledge of his severe
depression, denied him pain medication that had been ordered
by the Elliot Hospital doctor who treated LaRiviere's
self-inflicted injury to his leg in a suicide attempt, and
failed to properly care for LaRiviere's wound, causing it
to become infected and painful.
has established through her own affidavit and the affidavit
of Denise Ryan, the Health Services Administrator for HCDOC,
that she was not authorized to prescribe medication or adjust
prescriptions for medication. Wheeler shows that although
LaRiviere had contact with many members of the HCDOC medical
staff, Wheeler had only limited contact with him. Wheeler
also shows that LaRiviere could have requested mental health
care and that other medical care providers cared for his
provides undisputed evidence that the jail had a mandatory
grievance procedure to address complaints by inmates and
detainees. While incarcerated at HCDOC, LaRiviere filed only
one grievance form. On that form, LaRiviere stated that he
needed to speak to a doctor about a rash and chronic lower
back pain. He also charges that Wheeler has a grudge against
him. Ryan responded to the grievance, explaining that
LaRiviere was on restrictions because of a detox watch and a
history of seizures and that the doctor would review blood
test results ...