Opinion
Civil No. 18-cv-817-JL
04-24-2019
Steven J. Roy v. New Hampshire Department of Corrections Commissioner Helen Hanks; Director of Medical and Forensic Services Paula Mattis; Bernadette Campbell, Administrator, Medical and Forensic Services; Centurion of New Hampshire LLC; MHM Solutions, Inc.; Dr. Jose Aviles; Dr. Edward Dransite; Dr. FNU Anzel; Dr. Keith Batchelder; Dr. Raj Pande; and Kathy Belisle
cc: Steven J. Roy, pro se
REPORT AND RECOMMENDATION
Before the court is plaintiff Steven J. Roy's complaint (Doc. No. 1) and motion for a preliminary injunction (Doc. No. 18). Roy, an inmate at the Northern New Hampshire Correctional Facility ("NCF"), asserts claims relating to the dental care he has received at NCF. Defendants, named in their individual and official capacities, are New Hampshire Department of Corrections ("DOC") officials, employees, and dentists Dr. Jose Aviles, Dr. FNU Anzel, Dr. Edward Dransite, Dr. Keith Batchelder, and Dr. Raj Pande; Centurion of New Hampshire LLC ("Centurion"); and MHM Solutions, Inc. ("MHM").
Roy identified MHM as "MHM Solutions, Inc." The New Hampshire Department of State's online list of registered businesses indicates that the business formerly named "MHM Solutions, Inc.," is now called, "MHM Solutions, LLC."
The complaint (Doc. No. 1), as supplemented by the factual allegations in the motion for a preliminary injunction (Doc. No. 18), is before the court for preliminary review pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1). The motion for a preliminary injunction has been referred to the undersigned magistrate judge for a report and recommendation, see April 10, 2019 Order.
Background
Roy asserts that he has received inadequate dental care while at NCF. Roy alleges generally that the NCF Dental Department is understaffed and underfunded, and that NCF dental care is inadequately reactive and not appropriately preventive and proactive.
I. Settlement Agreement
Roy was the lead plaintiff in a group of eight plaintiffs in 2009 who, through counsel, jointly filed a case against a set of DOC officials, challenging the adequacy of the dental care those plaintiffs received in DOC custody. See Roy v. N.H. Dep't of Corr. Comm'r, No. 1:09-cv-00075-SM (D.N.H.) ("Roy I"). That case settled. See Jan. 20, 2011 Stip., Roy I, ECF No. 47. Roy asserts here that the settlement agreement required DOC dentists to provide him with semi-annual teeth cleanings and to "fast-track" his receipt of upper and lower partial dentures. See Aff. of Steven Roy, Aug. 7, 2017 ("August 2017 Affidavit") (Doc. No. 1, at 19). Roy asserts that the DOC breached that agreement by failing to schedule teeth cleanings every six months and by delaying the delivery of his partial dentures.
The Roy I defendants named in their individual and official capacities were former DOC Commissioner William Wrenn, former New Hampshire State Prison Warden Richard Gerry, former NCF Warden Lawrence Blaisdell, former DOC Medical and Forensic Department Director Dr. Robert MacLeod, and former DOC Supervising Dentist Dr. Karen Anderson, none of whom are named as defendants in their individual capacities in this case.
II. Teeth Cleanings and Partial Dentures
Roy reports he received no teeth cleanings in 2014, and that the two cleanings he received in 2015 (January and August), 2016 (April and October), 2017 (April and December), and 2018 (June and December), were scheduled on dates that diverged from regular, six-month intervals. See Aff. of Steven Roy, Aug. 22, 2018 (Doc. No. 1, at 24) ("August 2018 Affidavit"); Aff. of Steven Roy, Jan. 21, 2019 ("January 2019 Affidavit") (Doc. No. 18, at 4).
Roy alleges that both of his partial dentures (upper and lower) had been authorized since 2010. He asserts that, on October 1, 2013, Dr. Aviles notified him that both sets had been approved. See August 2018 Affidavit (Doc. No. 1, at 24). Roy received an upper partial in 2014 and a lower partial on December 22, 2016. August 2017 Affidavit (Doc. No. 1, at 20).
III. Delays Preceding Receipt of Lower Partial
Roy contends that delays in his receipt of the lower partial caused the deterioration of his remaining bottom teeth, including front teeth #20 through #29, see Aff. of Steven Roy, June 14, 2017 ("June 2017 Affidavit") (Doc. No. 1, at 15), and the "sequential failure of [his] bottom molars," August 2017 Affidavit (Doc. No. 1, at 19). Roy asserts that in 2010 he needed a lower partial only for teeth #19 and #30, but, by late 2016, he needed replacements for lower teeth #18, #19, #29, #30, and #31. See id . Roy further asserts that in an appointment on April 25, 2017, dentist Dr. Shyne said that his bottom front teeth had suffered excessive wear due to the lack of bottom molars, and that Dr. Anzel had expressed a similar opinion in October or December 2016 as to bottom front teeth #20 and #22. See June 2017 Affidavit (Doc. No. 1, at 15, 16).
IV. Loss of Fillings on Tooth #28 and Consequences
Roy asserts that the lower partial denture fitted by Dr. Anzel on December 22, 2016 was anchored to teeth #20 and #28, and that three of the four fillings on tooth #28 fell out on December 29, 2016, rendering the partial "useless." June 2017 Affidavit (Doc. No. 1, at 15). Roy's January 2, 2017 Inmate Request Slip ("IRS") addressed to dentist Dr. Batchelder and copied to Dr. Anzel describes the damage to tooth #28, and reports that Roy remained able to use the lower partial to eat. See IRS to Dr. Batchelder, Jan. 2, 2017 (Doc. No. 1, at 33). Roy has asserted that denture adhesive he purchased in July 2017 was marginally effective in holding his lower partial in place. See August 2017 Affidavit (Doc. No. 1, at 20).
Roy alleges that he reported the loss of fillings on tooth #28 to Dr. Anzel and Dr. Batchelder in January 2017, and again to Dr. Anzel on July 20, 2017. See Aff. of Steven Roy, Nov. 15, 2017 ("November 2017 Affidavit") (Doc. No. 1, at 47). Dr. Anzel characterized tooth #28 as irreparable in July 2017. See August 2017 Affidavit (Doc. No. 1, at 20). A dentist applied a crown to tooth #28 on December 4, 2017, which lasted three months, until March 19, 2018. See January 2019 Affidavit (Doc. No. 18, at 4). Dr. Pande examined tooth #28 in April 2018, declared it to be free of decay, and refused to perform any repair to it. See August 2018 Affidavit (Doc. No. 1, at 25). In response to Roy's complaints of pain in tooth #28, a dentist applied composite, which Roy asserts alleviated his pain, on September 24, 2018.
Roy reported to the dental administrator in December 2018 that Dr. Anzel had previously told Roy to request a new lower partial, as Roy was eligible to do so. See January 2019 Affidavit (Doc. No. 18, at 4). The dental administrator told Roy, however, that although he was no longer eligible for a new lower partial, he could receive a full bottom denture if his remaining bottom teeth were extracted. See id .
V. Abscesses, Decay, and Extractions
Roy asserts that abscesses related to dental problems, if untreated, can cause cardiovascular and immune system damage. See June 2017 Affidavit (Doc. No. 1, at 16); August 2017 Affidavit (Doc. No. 1, at 19). Roy alleges that before Dr. Aviles retired in 2016, he diagnosed Roy as having persistent abscesses in teeth including teeth #2, #3, and several bottom teeth, which he determined needed no immediate treatment, as he considered the abscesses to be draining well. See June 2017 Affidavit (Doc. No. 1, at 15). Roy further alleges that Dr. Anzel, on October 27, 2016 and December 22, 2016, diagnosed abscesses in Roy's teeth #2, #3, #23, #24, and #25. Id . at 15-16; August 2017 Affidavit (Doc. No. 1, at 20). Dr. Shyne diagnosed abscesses in the same teeth and noted that a filling on tooth #11 was loose, in an appointment on April 25, 2017. June 2017 Affidavit (Doc. No. 1, at 16); see also August 2017 Affidavit (Doc. No. 1, at 19).
Roy alleges that during a July 10, 2017 dental appointment, Roy reported to Dr. Anzel that a tooth on his lower partial had broken off, that fillings in teeth #11 and #20 had fallen out, and that teeth #23 and #28 had disintegrated or broken apart. See August 2017 Affidavit (Doc. No. 1, at 20); November 2017 Affidavit (Doc. No. 1, at 47). On July 10, 2017, Dr. Anzel: prescribed antibiotics for Roy's abscessed teeth, concluded that they needed to be extracted, expressed his opinion that teeth #11 and #20 involved only "simple repairs," and opined that tooth #28 was "not reparable." August 2017 Affidavit (Doc. No. 1, at 20). Dr. Batchelder extracted teeth #23, #24, and #25 in November 2017. See November 2017 Affidavit (Doc. No. 1, at 47). Roy received fillings for teeth #20 and #21 on February 13, 2018. See August 2018 Affidavit (Doc. No. 1, at 25). Dr. Pande repaired tooth #22 on April 9, 2018. See August 2018 Affidavit (Doc. No. 1, at 25).
Roy alleges that on December 1, 2017, an unnamed dentist, assisted by defendant Kathy Belisle, recorded decay and chips on many of Roy's teeth. Roy asserts that the decayed or chipped teeth have not been treated or repaired. See January 2019 Affidavit (Doc. No. 18, at 4). In a dental appointment on December 13, 2018, the dental administrator made it clear that Roy would receive no more repairs to his bottom teeth. See id .
VI. Single Procedure Rule and Extraction Preference
Roy asserts that the NCF Dental Department limits each inmate's dental care to a "single procedure" per visit. Roy asserts that inmates with multiple, concurrent dental problems must submit separate requests for each problem, that appointments are typically scheduled months apart, and that separate appointments are scheduled for each reported dental problem. November 2017 Affidavit (Doc. No. 1, at 47). Roy further alleges that the defendants prefer to extract teeth rather than repair them. See id . As evidence of the defendants' extraction preference, Roy points to statements made by a dental administrator at Roy's September 2018 appointment, when Roy was told he could not have any further repairs made to his lower teeth, other than extractions. As to the single procedure policy, Roy alleges that when he went to dental "sick call" on July 10, 2017, seeking an appointment for missing fillings in teeth #11 and #20, repairs to teeth #23 and #28, and repairs to his lower partial, Roy received a follow-up appointment slip only for an extraction scheduled for November 2, 2017 and did not receive an appointment for the other procedures. Roy attributes that response to the "single procedure rule." Roy has also alleged that the "single procedure rule" resulted in his having to defer a semi-annual cleaning on one occasion so he could get a cavity filled. See November 2017 Affidavit (Doc. No. 1, at 47).
Claims
Roy asserts the following claims in this case: 1. Defendants are liable under 42 U.S.C. § 1983 and state law, in that delays in Roy's receipt of an upper partial denture in 2014 violated the Eighth Amendment, breached the 2010 settlement agreement in Roy I, and manifested negligence or malpractice. 2. Defendants are liable under 42 U.S.C. § 1983 and state law, with respect to Roy's teeth cleanings, in that:
a. The failure to provide any teeth cleanings to Roy in 2014 violated the Eighth Amendment and breached the 2010 settlement agreement in Roy I;
b. The failure to provide any teeth cleanings to Roy in 2014 was negligence and/or professional malpractice; and
c. The variations in the scheduling of Roy's twice-yearly teeth cleanings in 2015-2018:
3. In failing to expedite Roy's receipt of a lower partial denture prior to December 2016, in light of the risk that Roy's front teeth would become excessively worn and Roy's back molars would fail:i. Violated his Eighth Amendment rights;
ii. Breached the 2010 settlement agreement in Roy I; and
iii. Constituted negligence and/or professional malpractice.
a. Defendants Dr. Aviles and Dr. Dransite, who knew of Roy's need for a lower partial before an impression was made of Roy's teeth in October 2016, were deliberately indifferent to a substantial risk of serious harm to Roy, in violation of the Eighth Amendment;4. With respect to the failure of defendants to repair tooth #28 after fillings in that tooth fell out in late December 2016, prior to Roy's receipt of a crown in December 2017, and after that crown failed in March 2018, before composite was applied to it in September 2018:
b. Defendants Helen Hanks, Paula Mattis, and Bernadette Campbell were deliberately indifferent to a substantial risk of serious harm to Roy, in violation of the Eighth Amendment; and
c. Defendants Dr. Aviles, Dr. Dransite, and MHM failed to act in accordance with the standard of reasonable professional practice applicable to their profession at that time, resulting in harm to Roy, rendering those defendants liable for malpractice under state law; and
d. Defendants breached the 2010 settlement agreement in Roy I.
a. Defendants Drs. Anzel, Batchelder, and Pande were deliberately indifferent to a substantial risk of serious harm, in violation of Roy's Eighth Amendment rights;5. With respect to the failure to treat Roy's abscessed teeth #2, #3, #23, #24, and #25, from the date when those abscesses were diagnosed until Roy received a course of antibiotics in July 2017:
b. Defendants Helen Hanks, Paula Mattis, and Bernadette Campbell were deliberately indifferent to a substantial risk of serious harm, in violation of Roy's Eighth Amendment rights.
c. Defendants Drs. Anzel, Batchelder, Pande, MHM, and Centurion failed to act in accordance with the standard of reasonable professional practice applicable to their profession at that time, resulting in harm to Roy, rendering those defendants liable for malpractice under state law.
a. Defendants Dr. Anzel, Dr. Aviles, Dr. Dransite, and Dr. Batchelder were deliberately indifferent to a substantial risk of serious harm to Roy, in violation of his Eighth Amendment rights;6. With respect to the failure to treat decay identified in Roy's teeth in the December 1, 2017 dental examination:
b. Defendants Helen Hanks, Paula Mattis, and Bernadette Campbell were deliberately indifferent to a substantial risk of serious harm to Roy, in violation of his Eighth Amendment rights; and
c. Defendants Dr. Anzel, Dr. Aviles, Dr. Dransite, Dr. Batchelder, and MHM did not act in accordance with the standard of reasonable professional practice applicable to their profession at that time, resulting in harm to Roy, rendering those defendants liable for malpractice under state law.
a. Defendant DOC dentists, including Dr. Anzel, Dr. Batchelder, and Dr. Pande, were deliberately indifferent to a substantial risk of serious harm to Roy, in violation of the Eighth Amendment;7. In delaying the scheduling of appointments for Roy's dental problems diagnosed by dentists, including Dr. Anzel in December 2016 (abscesses in teeth #2, #3, #23, #24, #25); Dr. Shyne in April 2017 (abscesses in teeth #2, #3, #23, #24, #25); and decay identified by an unnamed dentist in December 2017, defendant dental administrator Kathy Belisle was deliberately indifferent to a substantial risk of serious harm to Roy, in violation of his Eighth Amendment rights.
b. Defendant prison officials, including DOC Commissioner Helen Hanks and DOC Director of Medical and Forensic Services Paula Mattis, were deliberately indifferent to a substantial risk of serious harm to Roy, in violation of the Eighth Amendment.
c. Defendants Dr. Anzel, Dr. Batchelder, Dr. Pande, MHM, and Centurion failed to act in accordance with the standard of reasonable professional practice applicable to their profession at that time, resulting in harm to Roy, rendering those defendants liable for malpractice under state law.
Discussion
I. Preliminary Review
A. Standard
The court conducts a preliminary review of inmate complaints. See 28 U.S.C. § 1915A(a); LR 4.3(d)(1). Claims may be dismissed sua sponte if, among other things, the complaint fails to state a claim upon which relief may be granted, the court lacks jurisdiction, or a defendant is immune from the relief sought. See 28 U.S.C. § 1915A(b). To determine whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court takes as true the factual content in the complaint and inferences reasonably drawn from those facts, strips away the legal conclusions, and considers whether plaintiff has stated a claim to relief that is plausible on its face. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Dismissing an action on the basis of an affirmative defense is permissible if the facts alleged in the complaint, or matters susceptible of judicial notice, conclusively establish the elements of the affirmative defense. See Gray v. Evercore Restructuring LLC, 544 F.3d 320, 324 (1st Cir. 2008).
B. Statute of Limitations (Claims 1, 2(a))
Roy alleges in Claim 1 that defendants caused the delay preceding his receipt of an upper partial denture in 2014, and that the delay manifested deliberate indifference to a substantial risk of serious harm, negligence and malpractice, and a breach of the 2010 settlement agreement. In addition, in Claim 2(a), Roy asserts that defendants are liable for breach of contract and Eighth Amendment violations by failing to provide him with any teeth cleanings in 2014.
There is a three-year statute of limitations that applies to all of the state and federal claims at issue here. See Gorelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010); see also N.H. Rev. Stat. Ann. § 508:4. The limitations period for the § 1983 claims alleging violations of Roy's Eighth Amendment rights accrued when Roy knew, or had reason to know of the injury. See Gorelik, 605 F.3d at 122. A plaintiff is deemed to know or have reason to know "at the time of the act itself and not at the point that the harmful consequences are felt." Id. (internal quotation marks omitted). State law similarly sets the accrual date for tort claims or contract claims arising from a discrete act at the point when the plaintiff knew or reasonably should have known that the tort claim was complete, or a breach had occurred. See, e.g., Sykes v. RBS Citizens, N.A., 2 F. Supp. 3d 128, 140 (D.N.H. 2014) (contract); Singer Asset Fin. Co., LLC v. Wyner, 156 N.H. 468, 478, 937 A.2d 303, 313 (2007) (tort).
Roy received the upper partial in 2014, more than three years before he filed this action. Also, by the end of 2014, Roy knew he did not receive two dental cleanings that year. Accordingly, no later than the end of 2014, Roy knew or should have known of the occurrence of all elements of his federal claims of deliberate indifference and state claims of breach of contract relating to those matters. Accordingly, Claims 1 and 2(a) are barred by the statute of limitations.
C. Teeth Cleaning Torts (Claims 2(b), (2)(c)(iii))
Roy asserts that the lack of teeth cleanings in 2014 and variations in the scheduling of his routine cleanings in 2015 - 2018, constituted negligence or malpractice. To state such claims, a plaintiff must plead facts showing, among other things, that the defendant's breach of a duty of care proximately caused his injuries. Assuming, without deciding, that a tort claim arising from the lack of teeth cleanings in 2014 is not barred by the statute of limitations, the district judge should still dismiss that claim as well as the tort claims regarding the ensuing schedule of other teeth cleanings in 2015-2018, as Roy's complaint does not plead facts sufficient to state a claim that the 2014 omission of cleanings and the variable scheduling of his teeth cleanings from 2015-2018 was the proximate cause of any injury to Roy's teeth. Accordingly, Roy's negligence/malpractice claims relating to the timing of teeth cleanings (Claims 2(b) and 2(c)(iii)) should be dismissed.
D. Breach of Settlement Agreement (Claims 2(c)(ii), 3(d))
Roy asserts in Claim 2(c)(ii) and Claim 3(d) that defendants, including Dr. Dransite and Dr. Aviles, breached the 2010 settlement agreement by failing to stick to a consistent twice-yearly dental cleaning schedule after January 2015 and by failing to "fast-track" his receipt of a lower partial denture. At a minimum, Roy must plead facts to show that each defendant alleged to be liable for a breach of contract was a party to that settlement agreement. See generally Wilcox Indus. Corp. v. Hansen, 870 F. Supp. 2d 296, 311 (D.N.H. 2012) (elements of breach of contract).
Roy has not filed a copy of the settlement agreement at issue in this case. To the extent Roy asserts contract claims against any defendants in their individual capacities, he has failed to demonstrate that any defendant named in this case was a party to the 2010 settlement agreement. See Tessier v. Rockefeller, 162 N.H. 324, 331, 33 A.3d 1118, 1124 (2011) ("plaintiff cannot sustain a cause of action seeking contract damages against the defendants arising out of the settlement agreement because there was no contract between the plaintiff and the defendants"). Furthermore, Roy has not alleged that any attorney signed that agreement on behalf of any defendant here in his or her individual capacity. "[C]ontractual obligations cannot be imposed by the parties to a contract upon a non-party." Judd v. S.E. Land Tr. of N.H., No. 16-cv-27-SM, 2016 DNH 159, 2016 U.S. Dist. LEXIS 124288, at *14 (D.N.H. Sept. 13, 2016) (citing Bald v. PCPA, LLC, 2016 DNH 081, 2016 U.S. Dist. LEXIS 52206, at *12, 2016 WL 1587227, at *4 (D.N.H. Apr. 19, 2016)).
To the extent Roy asserts breach of contract claims for damages or specific performance against the defendants in their official capacities, the Eleventh Amendment prevents him from litigating those claims here. See Sinapi v. R.I. Bd. of Bar Examiners, 910 F.3d 544, 553 (1st Cir. 2018); see also Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 256-57 (2011). Accordingly, Roy cannot proceed here on his breach of contact claims against the defendants he has named. For those reasons, Claims 2(c)(ii) and 3(d) should be dismissed.
E. Eighth Amendment Claims
Roy asserts that defendants are liable for injunctive relief under 42 U.S.C. § 1983, in their official capacities, and for damages in their individual capacities, based on deficiencies in his dental care that he asserts violated his Eighth Amendment rights. An Eighth Amendment claim challenging the adequacy of prison health care services, including dental care services, has both an objective and a subjective component. See Wilson v. Seiter, 501 U.S. 294, 298 (1991); Board v. Farnham, 394 F.3d 469, 480 (7th Cir. 2005) ("'dental care is one of the most important medical needs of inmates'" (citation omitted)). "[T]he deprivation alleged must be, objectively, 'sufficiently serious'"; a prison official's "act or omission must result in the denial of 'the minimal civilized measure of life's necessities.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). The objective component may be established by allegations regarding an unmet serious medical or dental health need, "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." Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 74 (1st Cir. 2016); see also Board, 394 F.3d at 480 ("dental pain accompanied by various degrees of attenuated medical harm may constitute an objectively serious medical need" (citing cases regarding, among other things, "deterioration of teeth due to lack of treatment")).
Roy's official capacity claims under 42 U.S.C. § 1983 are limited to claims for prospective relief. To the extent Roy asserts claims for damages against the defendants in their official capacities, the Eleventh Amendment prevents him from litigating those claims here, in the absence of the State's waiver or Congressional abrogation of the State's immunity. See Sinapi v. R.I. Bd. of Bar Examiners, 910 F.3d 544, 553 (1st Cir. 2018); Town of Barnstable v. O'Connor, 786 F.3d 130, 138 (1st Cir. 2015). Congress has not abrogated the State's Eleventh Amendment immunity under section 1983, see Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989), and the State has not waived it here. --------
The subjective component of an Eighth Amendment claim requires the plaintiff to demonstrate that the prison officials acted with deliberate indifference to the plaintiff's health or safety. See Miranda-Rivera, 813 F.3d at 74. "'[M]ere negligence'" is insufficient to support an Eighth Amendment claim. Mosher v. Nelson, 589 F.3d 488, 494 (1st Cir. 2009) (citation omitted). To state an Eighth Amendment claim, a plaintiff must assert facts, of which the defendant was aware, that gave rise to an inference that a substantial risk of serious harm existed, that the defendant drew the inference, and that the defendant failed, by act or omission, to take reasonable steps to ameliorate the risk. See Farmer, 511 U.S. at 828-29; Leite v. Bergeron, 911 F.3d 47, 52-53 (1st Cir. 2018) ("'plaintiff must provide evidence that the defendant had 'actual knowledge of impending harm, easily preventable,' and yet failed to take the steps that would have easily prevented that harm'" (citations omitted)); Miranda-Rivera, 813 F.3d at 74 ("there is no deliberate indifference if an official responds reasonably to the risk").
1. MHM and Centurion
Roy alleges that defendants MHM and Centurion are liable under 42 U.S.C. § 1983 with respect to the matters set forth in the complaint. MHM and Centurion are alleged to be private corporate entities that contracted with the DOC to provide dental health services to DOC inmates. Plaintiff alleges that MHM contracted with the DOC to provide dental health care to NCF inmates until April 2018, and that Centurion contracted to do so after the MHM contract ended.
The cited civil rights statute, 42 U.S.C. § 1983, provides a cause of action for individuals deprived of their federal rights by any "person" acting under color of state law. In Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court considered, among other things, whether municipal corporations that are "legal" persons, can be liable under § 1983 like "natural" persons. See id. at 683. The Court held that Congress intended § 1983 to impose liability on those entities for injuries inflicted by the execution of governmental policies and customs. See id. at 694 (local government entities may be held liable under § 1983 if "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury").
Although neither the First Circuit nor the Supreme Court has ruled on a case regarding whether private corporations performing state functions can be held liable under § 1983 under a theory of respondeat superior if they may otherwise be deemed liable for acting under color of state law, those courts that have decided the issue have generally concluded that Monell's prohibition on respondeat superior liability under § 1983 applies equally to private corporations and their municipal counterparts. See, e.g., Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996) ("'A defendant cannot be held liable under section 1983 on a respondeat superior or vicarious liability basis.'" (citation omitted)); Carr v. Metro. Law Enf't Council, Inc., No. CIV.A. 13-13273-JGD, 2014 WL 4185482, at *7, 2014 U.S. Dist. LEXIS 115904, at *20 (D. Mass. Aug. 20, 2014) (defendant private corporation, "performing the functions traditionally undertaken by municipal law enforcement agencies," should have "rights and obligations under § 1983 [that are] coterminus with those of a municipality"); Trimble v. Androscoggin Valley Hosp., Inc., 847 F. Supp. 226, 228 (D.N.H. 1994). Cf. Glisson v. Ind. Dep't of Corr., 849 F.3d 372, 378-79 (7th Cir.) (en banc) (declining to rule on whether private corporations might be subject to vicarious liability under section 1983, while noting that "a private corporation that has contracted to provide essential government services is subject to at least the same rules that apply to public entities" (citing cases)), cert. denied, 138 S. Ct. 109 (2017). Smith v. Insley's Inc., 499 F.3d 875, 882 at n.4 (8th Cir. 2007) ("The rationale behind this principle is that corporations or municipalities should not be held liable for employee actions which the organization likely does not know are occurring.").
This court turns to whether Roy has alleged facts to state an Eighth Amendment claim against MHM or Centurion, regarding their performance of government services in providing health and dental care services to DOC inmates. Roy has not alleged that policies, practices, or customs of MHM or Centurion gave rise to his Eighth Amendment claims; to the extent a practice, policy, or custom is implicated, Roy appears to allege that DOC is responsible, not the private corporations he names. Roy has thus failed to plead sufficient facts to state a claim under § 1983 against those private corporations. Accordingly, the Eighth Amendment claims against MHM and Centurion should be dismissed for failure to state a claim upon which relief can be granted.
2. Eighth Amendment-Teeth Cleanings (Claim 2(c)(i))
Claim 2(c)(i) summarizes Roy's federal claims arising from the timing of his semi-annual teeth cleanings from 2015 through 2018. Roy asserts that the scheduling of his routine cleanings in 2015 (January and August), 2016 (April and October), 2017 (April and December), and 2018 (June and December), violated his Eighth Amendment rights. Stripped of legal conclusions, Roy's allegations as to those teeth cleanings fail to state an Eighth Amendment deliberate indifference claim upon which relief can be granted. See Vaughn v. Cambria Cty. Prison, 709 F. App'x 152, 155 (3d Cir. 2017); Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) ("mere failure to provide a routine tooth cleaning doesn't create a serious medical need"). Accordingly, Claim 2(c)(i) should be dismissed for failure to state a claim upon which relief can be granted.
3. Delays as to Lower Partial (Claims 3(a), 3(b))
In Claims 3(a) and (b), Roy asserts violations of his Eighth Amendment rights on the grounds that defendants were deliberately indifferent to a substantial risk of serious harm to Roy, resulting from delays preceding his receipt of a lower partial denture in December 2016.
i. Dentists (Claim 3(a))
Claim 3(a), alleging the defendant dentists' deliberate indifference to a substantial risk of serious harm to Roy's remaining bottom teeth, relating to their failure prior to October 2016 to expedite Roy's receipt of a lower partial denture, survives preliminary review. The Order issued this date directs service of that claim on the defendant dentists named in Claim 3(a).
ii. Supervisory Prison Officials (Claim 3(b))
Claim 3(b) is Roy's Eighth Amendment claim asserting that the defendant prison supervisory officials, DOC Commissioner Hanks, Medical Director Mattis, and Deputy Medical Director Campbell, were deliberately indifferent to the risk of harm to Roy resulting from his delayed receipt of a lower partial denture. Supervisory liability for a claim asserted under 42 U.S.C. § 1983 lies only where "an affirmative link between the behavior of a subordinate and the action or inaction of his supervisor exists such that the supervisor's conduct led inexorably to the constitutional violation." Maldonado v. Fontanes, 568 F.3d 263, 275 (1st Cir. 2009) (internal quotation marks and citation omitted).
A plaintiff can establish that "affirmative link" by alleging that the supervisor was "a primary violator or direct participant in the rights-violating incident," or that "a responsible official supervises, trains or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation."Morales v. Chadbourne, 793 F.3d 208, 221 (1st Cir. 2015) (citations omitted).
Roy asserts in Claim 3(b) that defendants Mattis and Campbell were subjectively aware that a delay in Roy's receipt of the lower partial exposed him to harm, in grievances answered by Mattis in September 2016 and Campbell in November 2016. In her September 2016 response to Roy's grievance, Mattis states that she spoke with Dr. Anzel regarding Roy's concerns about his delayed receipt of a lower partial. Less than a month later, and shortly after Roy sent a follow-up grievance to Mattis on October 21, 2016, Dr. Anzel made an impression for that lower partial. Defendant Campbell answered Roy's follow-up grievance on Mattis's behalf on November 22, 2016, after the impression had been made, stating that the issue had been "resolved." Roy received the new lower partial a month later, on December 22, 2016. Roy has not pleaded facts demonstrating that either Campell or Mattis were subjectively aware of the existence of any substantial risk of serious harm to Roy's teeth that ensued after they received Roy's grievances and before the date he received the lower partial, to which they did not respond reasonably. Accordingly, Claim 3(b) should be dismissed for failure to state a claim of an Eighth Amendment violation.
4. Loss of Fillings on Tooth #28 (Claims 4(a), 4(b))
Claims 4(a) and 4(b) are Roy's Eighth Amendment claims relating to tooth #28's loss of fillings on December 29, 2016 and the defendants' failure to repair that tooth after they received notice that the fillings had fallen out. Roy sent IRSs to Dr. Anzel and Dr. Batchelder in early January 2017 stating that tooth #28 had disintegrated as three fillings had fallen out, and further reporting that Roy was able to continue to use his lower partial to eat. He sent a similar IRS to Dr. Batchelder in July 2017 stating that, although the fillings were still missing, he was able to hold the lower partial in place using dental adhesive. Those IRSs belie any reasonable inference that those defendants was subjectively aware that the loss of fillings presented a serious medical need relating to Roy's ability to use his lower partial to eat or avoid excessive wear to his remaining teeth.
As to whether the lost fillings presented a serious medical need for repairs, per se, Roy has specifically alleged that Dr. Anzel diagnosed tooth #28 as irreparable in July 2017. Nothing suggests that the condition of tooth #28 changed between January 2017 and July 2017, and Roy has not pleaded any facts demonstrating that the missing fillings presented any substantial risk of serious harm to him at that time, as to which Dr. Anzel or any other dentist treating him in 2017 was subjectively aware.
An unnamed dentist made a crown for tooth #28 that lasted from December 2017 until March 2018, when it broke off. Roy alleges that Dr. Pande examined tooth #28 a month later, and found it to be free of decay in April 2018. Dr. Pande refused to repair that tooth at that time, telling Roy that the only procedure he would perform on that tooth was extraction. While Roy has stated that he will not authorize the extraction of tooth #28, and he prefers repairs or implants, the dentists' failure to follow Roy's preferred course of treatment for the damage to tooth #28 does not form the basis of an actionable Eighth Amendment claim.
Moreover, Roy's complaint lacks any allegation that any defendant dentist was aware that the fillings missing from tooth #28 caused Roy to suffer any pain amounting to a serious, unmet medical or dental need. Roy has filed exhibits stating that four days after he complained of pain to the NCF Dental Department, an unnamed dentist applied composite to tooth #28 which alleviated the pain. Roy has not pleaded any facts suggesting that any named defendant was subjectively aware of and deliberately indifferent to Roy's pain at any relevant time with regard to tooth #28. Claims 4(a) and 4(b) should thus be dismissed for failure to state a claim upon which relief can be granted.
5. Abscessed Teeth (Claims 5(a), 5(b))
Roy has pleaded facts in Claim 5(a), giving rise to a cognizable claim that the defendant dentists' failure to treat his abscessed teeth for more than a year violated his Eighth Amendment rights. Accordingly, in the Order issued this date the court has directed service of Claim 5(a) upon the dentists named as defendants therein.
As to the same claims asserted against the defendant supervisory prison officials (Claim 5(b)), however, Roy has failed to plead any facts showing that the defendant prison officials were subjectively aware of any delays presenting a substantial risk of serious harm to Roy preceding his receipt of antibiotics for those teeth in July 2017. Accordingly, Claim 5(b) should be dismissed for failure to state a claim upon which relief can be granted.
6. Decay (Claims 6(a), 6(b))
Roy alleges that an unnamed dentist diagnosed an unspecified number of Roy's teeth on December 1, 2017 as having chips or decay. Roy asserts that the failure to treat decay in Roy's teeth from December 1, 2017 until the present manifests defendants' deliberate indifference to a substantial risk of serious harm. Cf. Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) ("because a tooth cavity will degenerate with increasingly serious implications if neglected over sufficient time, it presents a 'serious medical need' within the meaning of our case law" (citation omitted)). Claim 6(a) asserted against the defendant dentists in their individual and official capacities survives preliminary review. Accordingly, in the Order issued this date, the court has directed service of Claim 6(a) for damages on the defendant dentists in their individual capacities, and for injunctive relief upon the DOC dentists in their official capacities as providers of dental services to DOC inmates.
As to Claim 6(b), however, Roy has failed to plead any facts showing that the defendant supervisory prison officials were subjectively aware of the lack of treatment for Roy's decayed teeth identified in December 2017. Roy asserts he did not know he had any decay in those teeth until August 2018, seven months after he asserts he sent an IRS to Director Mattis on January 14, 2018 regarding not receiving scheduled appointments for "necessary procedures" identified by dentists. August 2018 Affidavit (Doc. No. 1, at 25). Roy's June 2018 grievance to Commissioner Hanks also does not state or indicate that Roy had any untreated decay on his teeth. Nothing in the record here indicates that any of the defendant prison officials was alerted to, or otherwise became subjectively aware of, any substantial risk of serious harm to Roy relating to Roy's untreated tooth decay, identified in December 2017, prior to the institution of this lawsuit. Accordingly, Claim 6(b), asserted against the defendant prison officials, should be dismissed for failure to state a claim upon which relief can be granted.
7. Kathy Belisle (Claim 7)
In Claim 7, Roy asserts that Kathy Belisle violated his Eighth Amendment rights by failing to schedule appointments to address dental problems diagnosed by dentists, including the abscesses diagnosed by Dr. Aviles, Dr. Anzel, and Dr. Shyne, and the decay diagnosed by the unnamed dentist in December 2017. The complaint, however, fails to plead any nonconclusory facts demonstrating that Belisle, when she is alleged to have failed to schedule appointments, was aware of or deliberately indifferent to any substantial risk of serious harm to Roy. Accordingly, Claim 7 should be dismissed, and Belisle should be dropped as a party to this case.
F. Remaining State Claims (3(c), 4(c), 5(c), 6(c))
The court may properly exercise supplemental jurisdiction over the dental malpractice/negligence claims in this case that arise from the facts underlying the Eighth Amendment claims that this court has deemed sufficient to survive preliminary review, namely, the state law claims set forth in Claims 3(c), 5(c), and 6(c). At this stage of the case, the court may continue to exercise supplemental jurisdiction over the dental malpractice/negligence claim identified herein as Claim 4(c), as that claim appears to present a similar set of legal and factual issues and names a similar set of defendants, as the other claims in this case which survive preliminary review. Therefore, in an Order issued this date, the court directs service of tort Claims 3(c), 4(c), 5(c), and 6(c) upon the defendant dentists named in those claims, and upon MHM and Centurion. II. Motion for Preliminary Injunction (Doc. No. 18 )
Plaintiff has moved for a preliminary injunction (Doc. No. 18) mandating that defendants treat plaintiff's dental problems, identified in the December 1, 2017 examination as decay, "so as to preserve what is left of [Roy's] teeth using methods that are outlined in and not excluded by [DOC Policy and Procedure Directive] 6.28." In the Order issued this date, the court has established a briefing schedule for Roy's motion (Doc. No. 18).
Conclusion
For the foregoing reasons, the district judge should order that defendant Kathy Belisle be dropped as a defendant and that Claims 1, 2(a), 2(b), 2(c)(i), 2(c)(ii), 2(c)(iii), 3(b), 3(d), 4(a), 4(b), 5(b), 6(b), and 7 be dismissed. Any objections to this R&R must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court's order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/_________
Andrea K. Johnstone
United States Magistrate Judge April 24, 2019 cc: Steven J. Roy, pro se