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Bryan v. Menard

United States District Court, D. Vermont

January 25, 2018

Thomas Howard Bryan, Plaintiff,
v.
Lisa Menard, Shannon Marcoux, Greg Hale, and Steven Fisher, M.D., Defendants.

          REPORT AND RECOMMENDATION (DOC. 103)

          John M. Conroy United States Magistrate Judge.

         Plaintiff Thomas Howard Bryan, proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants Lisa Menard, commissioner of the Vermont Department of Corrections; Shannon Marcoux, superintendent of Northern State Correctional Facility (NSCF); Greg Hale, superintendent of Northwest State Correctional Facility (NWSCF); and Steven Fisher, M.D., Centurion regional medical director, each in their individual capacities. (Doc. 72 at 2-4.) Bryan alleges in his Second Amended Complaint that, while in custody of the Vermont Department of Corrections (DOC), he was denied medical care for a ruptured tympanic membrane (eardrum) in violation of the Eighth Amendment, and that Defendants Menard, Marcoux, and Hale retaliated against Bryan for filing DOC grievances and the instant lawsuit. (Id.) Bryan seeks declaratory and injunctive relief (id. at 14), monetary damages for his pain and suffering, and any additional relief the Court may deem appropriate. (Id.)

         Presently before the Court is Defendants' Motion for Summary Judgment under Fed.R.Civ.P. 56. (Doc. 103.) Defendants argue that Bryan's medical care did not violate the Eighth Amendment and that Bryan's retaliation claim is barred by the Prison Litigation Reform Act (PLRA) because he failed to exhaust his administrative remedies and that, in any event, his retaliation claim fails on the merits. (Doc. 103 at 11-18.) Bryan opposes Defendants' Motion, contending that there is a genuine dispute of material fact as to whether Defendants were deliberately indifferent to his serious medical need and as to whether Defendants retaliated against him for filing grievances and this § 1983 action. Bryan also argues that his retaliation claim should go forward because the DOC's grievance process is a “dead end” and therefore offers no available remedy for Defendants' alleged retaliation. (Doc. 104 at 13.)

         As explained below, I conclude that Bryan lacks standing to bring his claims for equitable relief. Furthermore, I conclude that there are no genuine issues of a material fact remaining for trial and that the alleged deficiencies in his medical care do not rise to the level of a constitutional deprivation. Finally, I conclude that Bryan's First Amendment retaliation claim is without merit. Therefore, I recommend that Defendants' Motion for Summary Judgment (Doc. 103) be GRANTED.

         Factual and Procedural Background

         The material facts are primarily drawn from Bryan's Second Amended Complaint (Doc. 72), Defendants' Statement of Undisputed Material Facts (Doc. 103-1), and various affidavits, medical records, and DOC records supporting Defendants' Statement of Undisputed Material Facts. (Docs. 103-2-103-13). They are undisputed unless otherwise indicated.

         I. Bryan's Eardrum

         A. Medical Provider

         The DOC contracts with managed care companies to provide medical and mental health care to inmates housed in Vermont. (Doc. 103-3 at 2, ¶ 1.) From February 1, 2010 to January 31, 2015, Correct Care Solutions served as the medical provider for the DOC.[1] (Doc. 77-2 at 2, ¶ 2.) On February 1, 2015, Centurion of Vermont, LLC (Centurion) began a contract with the DOC. (Doc. 103-3 at 2, ¶ 1.) Defendant Dr. Steven Fisher is the regional medical director for Centurion; prior to becoming medical director, Dr. Fisher was the medical provider at NSCF.

         B. Injury and Medical Treatment

         In early November 2014, when Bryan first reported discomfort in his ear, he was incarcerated at NSCF, where defendant Shannon Marcoux is the superintendent. (Doc. 103-1 at 2, ¶ 5; Doc. 79 at 1, ¶ 5). According to Bryan, his ear problems began “[o]n or about the end of October 2014, to the earliest part of November 2014, while in the custody and care of the Defendant Lisa Menard, ” who is the commissioner of the DOC. (Doc. 72 at 5, ¶ 12.) He claims that he attempted to contact medical personnel, but that the personnel did not respond. (Id.) Bryan then used a “Q-tip” to remove wax from his left ear canal, which he believed was causing the pain. (Id.)

         A Healthcare Request form indicates that Bryan reported on November 7, 2014, that his left ear hurt and that it “feels like something in ear.” (Doc. 103-4 at 19.) A nurse saw him the next day regarding his ear pain. (Id.; Doc. 103-1 at 2, ¶ 6.) The nurse observed no sign of swelling or anything inside the ear, (Doc. 103-4 at 19); as a result, she informed Bryan that she believed he had a ruptured tympanic membrane or eardrum, and that it would heal on its own in a few months. (Doc. 72 at 6, ¶ 12.) Although Bryan complained that he was experiencing pain, the nurse did not provide any medication for the pain, aside from ibuprofen that had already been prescribed to Bryan. (Id.; Doc. 77-1 at 3, ¶ 11; Doc. 103-4 at 4.) The nurse also placed Bryan on a provider list to be seen by a doctor or nurse practitioner for his ear pain, as well as various other health-related issues. (Doc. 103-1 at 2, ¶ 6.)

         Subsequently, Bryan filed a number of Healthcare Request forms for different ailments from mid-November 2014 through mid-February 2015, with no mention of any medical issues concerning his ear. (Doc. 103-4 at 7-28; see also Doc. 103-1 at 2, ¶ 8.) Within a day or two of filing these forms, Harris was seen by a nurse or was referred to a provider. (See Doc. 103-4 at 7-28.) Although he did not report any issues concerning his ear, Bryan alleges that he was also experiencing constant ear pain during these months. (Doc. 72 at 5, ¶13.)

         On February 21, 2015, Bryan submitted another Health Service Request regarding his ear pain, stating that he “would like to see somebody. Ear still hurts from perforated membrane, from several weeks ago.” (Doc. 103-3 at 2, ¶ 9; Doc. 103-4 at 29.) Bryan saw a registered nurse (RN) two days later. (Doc. 103-3 at 2, ¶ 10; Doc. 103-4 at 29.) The RN observed redness, swelling, and drainage in Bryan's ear, and gave Bryan cotton balls to use while showering. (Doc. 103-4 at 29.) Again, Bryan claims that he was not provided any medication for his pain. (Doc. 72 at 6, ¶ 13.) The RN scheduled a follow-up visit in three to four weeks to evaluate Bryan's ear pain. (Doc. 103-1 at 3, ¶ 11; Doc. 103-4 at 29.)

         Bryan followed up with a nurse practitioner (NP) on March 13, 2015. (Doc. 103-1 at 3, ¶ 12; Doc. 103-4 at 6.) The notes taken by the NP state that Bryan “[d]enie[d] [any] acute issues” during this follow-up. (Doc. 103-4 at 6.) Further, the NP noted that Bryan would likely be approved for work camp provided his eardrum had healed. (Id.; Doc. 103-1 at 3, ¶ 13.) To check on the progress of his eardrum, the NP scheduled a telephone follow-up within one week. (Doc. 103-4 at 6.)

         According to Bryan, “[a]pproximately one[] month passed” and then he woke to intensive pain and fluid running out of his ear. (Doc. 72 at 6, ¶ 14.) He alleges that he informed medical personnel, who told him that he had a severe ear infection and provided neomycin ear drops. (Id.) Although unclear from the record, this incident may be reflected in the Healthcare Request form submitted by Bryan on June 23, 2015. In that form, Bryan stated that he was “[h]aving issues with my left ear. Several months ago I was told that I had a perforated membrane in [left] ear[, ] now barely can hear out of it.” (Doc. 103-4 at 5.) The next day Bryan saw a nurse. (Id.) The nurse did not observe anything in his ear nor do the nurse's notes describe fluid in Bryan's left ear. (Id.) Still, the nurse placed Bryan on the list to be seen by a provider. (Id.)

         As of late June 2015, Bryan was housed at NWSCF to complete the Vermont Treatment Program for Sexual Abusers. (Doc 103-1 at 6, ¶ 38; id. at 10, ¶ 70). On July 9, 2015, Bryan saw the NWSCF Medical Provider, Dr. Susan Hetman. (Doc. 103-4 at 4.) Dr. Hetman's notes indicate that Bryan informed her that he had perforated his left eardrum on October 14, 2014, with a homemade “Q-Tip, ” and that he been doing well until approximately two weeks prior, when he “had [a] sudden onset of pain and hearing loss in [his] left ear” and some clear yellow discharge. (Id.) The notes further indicate that Bryan said that he had “[u]sed drops for several days, ” but stopped because he could taste them in his mouth. (Id.) Finally, Dr. Hetman's examination notes described “[y]ellow fluid . . . at level of tympanic membrane[ and] . . . [p]erforated left eardrum with ser[i]ous drainage and absent hearing.” (Id.) Dr. Hetman prescribed Bryan antibiotics and submitted a request to schedule an appointment with an Ear, Nose, and Throat (ENT) specialist as soon as possible. (Id.) Bryan received a referral for a consult with an ENT that same day. (Doc. 103-1 at 4, ¶ 18.)

         Several months went by before the ENT specialist could see Bryan. (Id.) By August 2015, Bryan had inquired about the ENT appointment repeatedly, as he believed that medical personnel were not taking appropriate steps to treat his ear. (Doc. 72 at 7, ¶ 16.) As a result, he began the formal grievance process, which is described below.

         On September 13, 2015, Bryan submitted another Healthcare Request, stating that he “was diagnosed with ruptured eardrum” and indicating that he was still awaiting an appointment with a specialist. (Doc. 103-4 at 3; Doc. 103-3 at 3, ¶ 18.) In addition, Bryan again described fluid coming out of his ear, saying it “hurts badly.” (Doc. 103-4 at 3.)

         Bryan saw Dr. Julien, the ENT specialist, on October 7, 2015. (Doc. 103-3 at 3, ¶ 19.) Dr. Julien suggested that Bryan use Cipro or Floxin ear drops for any continued discharged from his ear. (Id.; Doc. 103-5 at 2-3.) Dr. Julien further noted that Bryan should return for a follow-up visit in two months. (Doc. 103-5 at 2-3.)

         Bryan did not receive that follow-up visit. (Doc. 72 at 8, ¶ 19.) Instead, on December 20, 2015, he filled out a Healthcare Request to determine why he had not received the appointment with Dr. Julien. (Id.) According to his Amended Complaint, he was informed that the appointment was not made “due to unknown Medical personnel[] error” and that “the many month process to get a referral and to see an ENT would have to start over.” (Id.)

         Then, on December 30, 2015, Bryan saw Defendant Dr. Fisher for a quarterly medical checkup. (Id. ¶ 20; Doc. 77-22 at 1-4.) Apparently, Bryan asked about his follow-up appointment with Dr. Julien. According to Dr. Fisher's notes, he informed Bryan that he had not received records from Bryan's visit with Dr. Julien, and explained to Bryan that he would need to sign another records release before a follow-up ENT appointment could be scheduled. (Doc. 72 at 8, ¶ 20; Doc. 77-22 at 1.) Dr. Fisher also noted that Bryan had refused the ear drops previously prescribed by Dr. Julien. (Id.)

         Bryan saw Dr. Julien again in May 2016, at which time Dr. Julien noted that Bryan was a “candidate for a tympanoplasty.” (Doc. 103-5 at 4.) Dr. Julien specified that the surgical procedure was not urgent, but the patient “wants it done.” (Id.) Bryan's ear pain continued on and off over the next few months, and Dr. Julien continued to prescribe Cipro and Floxin drops for the chronic infections (Doc. 103-3 at 4, ¶ 21; Doc. 103-4 at 2, 30-31.)

         On December 22, 2016, a registered nurse referred Bryan to Dr. Julien to determine whether his condition was stable or worsening and to provide a “recommendation for treatment/management.” (Doc. 103-4 at 35.) As a result of this referral, Bryan saw Dr. Julien again in January 26, 2017, at which time Dr. Julien reported that “the perforation appears stable, ” and recommended that Bryan continue using ear drops and “[e]ventually, repair surgery could be offered on an elective basis.” (Doc. 103-5 at 5.)

         On March 17, 2017, another nurse practitioner referred Bryan to Dr. Julien for surgical repair of his perforated eardrum. (Doc. 103-4 at 32.) On April 20, 2017, Dr. Julien referred Bryan to a surgical doctor at Dartmouth Hitchcock Medical Center. (Doc. 103-5 at 6.) Prior to surgery, Bryan met with the doctor for a consult where they discussed the advantages and risks of undergoing the procedure. (Doc. 103-1 at 5, ¶ 30.) Bryan also underwent a hearing test on May 30, 2017 as a pre- surgery requirement. (Id. ¶ 31; Doc. 103-4 at 36.) On August 14, 2017, the surgical doctor performed the tympanoplasty on Bryan's left ear. (Doc. 103-1 at 5, ¶ 33.) Bryan had a follow-up appointment with the surgical doctor on August 24, 2017, and he is recovering from surgery without “infection or complications.” (Id. ¶¶ 34-35; see also Doc. 103-4 at 38-39.)

         C. Grievance Process

         1. DOC Procedures

         The DOC grievance policy and procedure is stated in Department Directive 320.01. See State of Vt. Agency of Human Servs., Dep't of Corr., Corr. Servs.: Directive #320.01 Offender Grievance Sys. for Field & Facilities (2007), http://www.doc.state.vt.us/about/policies/pdu-general/rpd/ correctional-services-301- 550/301-335-facilities-general/320.01.pdf [hereinafter Directive 320.01].[2]

         The grievance process begins with an inmate's informal verbal or written complaint submitted within 10 business days after the event or discovery of the cause of the complaint, unless the inmate's grievance is an emergency or involves serious employee misconduct. Directive 320.01.7(a)(i); (Doc. 103-11 at 1, ¶ 3). DOC employees attempt to resolve informal complaints by agreeing on a written solution with the inmate. Directive 320.01.7(a)(iv), (v); (Doc. 103-11 at 1, ¶ 4). If a resolution is not reached within 48 hours, the inmate may then proceed to the formal grievance process. Directive 320.01.7(a)(vi); (Doc. 103-11 at 1, ¶ 4).

         A formal grievance must be filed with DOC staff within 14 business days after the informal complaint process is exhausted. Directive 320.01.10(a)(i), (vi); (Doc. 103-11 at 1, ¶ 5.) Only one grievance may be filed at any one time on a single incident. Directive 320.01.10(a)(iii). If the grievance is about an acceptable issue, the grievance coordinator will investigate, review the findings with the superintendent, and recommend that the grievance be denied, sustained, or sustained as meritorious in part. Id. at 320.01.10(a)(ix)-(xi). The superintendent determines whether to uphold or alter the recommendation of the grievance coordinator. Id. at 320.01.10(a)(xii). The entire process must be completed within 20 days of the inmate's filing of the grievance. Id.

         If the grievance involves a nonemergency health issue, the same informal complaint process described above applies. Id. at 320.01.11(a). The formal grievance process for health issues is largely the same as well, except that the inmate must write “HEALTH” at the top of the grievance form and verbally notify DOC staff of the written health grievance. Id. at 320.01.11(b)(i). To investigate a health grievance, a nurse manager is assigned and the grievance coordinator reviews the nurse manager's recommendations with the superintendent, who upholds or alters the recommendations. Id. at 320.01.11(b)(iv), (v).

         Regardless of whether an inmate's formal grievance is general or health related, an inmate has 10 business days to mail an appeal of the superintendent's decision to the corrections executive. Id. 320.01.15(a)(i), (ii); (Doc. 103-11 at 1, ¶ 6.) Within 20 days, the corrections executive will inform the inmate in writing whether the appeal is denied, sustained, or sustained as meritorious in part. Directive 320.01.15(a)(iv).

         The corrections executive's decision may then be appealed to the commissioner within 10 business days. Id. at 320.01.15(b)(i); (Doc. 103-11 at 1, ¶ 7). The commissioner has 20 days to review the appeal and to inform the inmate in writing of the ultimate decision. See Directive 320.01.15(b)(i). Upon return of the commissioner's decision, the disposition is final and there are no further administrative appeals. Id. at 320.01.15(b)(iii). DOC maintains a database of grievances that are sent to the executive level and those that are further appealed to the commissioner. (Doc. 103-11 at 2, ¶ 9.)

         2. Bryan's Grievances

         As noted above, on August 11, 2015, Bryan filed an Informal Complaint & Plan for Resolution with DOC staff regarding the treatment he had received for his left ear. (Doc. 72 at 7, ¶ 16; Doc. 4-1 at 1.) The resolution proposed by DOC staff was that an “ENT outside appt has been scheduled.” (Doc. 4-1 at 1.) Bryan did not agree to the proposed resolution. (Id.)

         Bryan filed a second grievance on or about January 16, 2016, “claiming neglect due to inadequate medical staff responses and/or treatment, ” which he says prolonged his eardrum infection and hearing loss. (Doc. 72 at 9, ¶ 21; see also Doc. 4-1 at 2.) To resolve the grievance, Bryan proposed that the resolution “should be for [him] to have ear repaired as [he] was promised by Dr. Julien.” (Doc. 4-1 at 2.) The medical investigator recommended that the grievance be dismissed because Bryan had a referral pending for evaluation by an ENT specialist. (Doc. 4-1 at 4.) The grievance coordinator did not accept this recommendation, instead concluding on February 16, 2016, [3] that Bryan's grievance was meritorious in part and noting that “Inmate has a pending appointment w/ specialist.” (Doc. 4-1 at 5.)

         On February 9, 2016, prior to receiving the grievance response, Bryan appealed to the corrections executive, principally arguing that an ENT appointment had not actually been scheduled despite his allegedly ruptured eardrum. (Doc. 4-1 at 6; Doc. 72 at 9, ¶ 22.) Apparently, he did not receive a response to this appeal. (Doc. 72 at 10, ¶ 25.) On March 7, 2016, [4] he filed a “Decision Appeal to Commissioner” stating that he had never received a response for his prior appeal and that “due to medical neglect follow-up appt never was made per order from ENT on 10.8.15.” (Doc. 4-1 at 7.) There is no record of any response to Bryan's final appeal to the commissioner. Nor is there a record of any other grievances filed by Bryan after March 7, 2016. On June 22, 2016, Bryan filed his initial Complaint in this Court pursuant to 42 U.S.C. § 1983, which is described in detail below. (Doc. 4.)

         II. Participation in the Vermont Treatment Program for Sexual Abusers

         As part of Bryan's incarceration, he must complete the Vermont Treatment Program for Sexual Abusers (VTPSA or the program). (Doc. 103-1 at 7, ¶ 52; Doc. 103-9 at 1, ¶ 3.) The VTPSA treats offenders, like Bryan, who have been convicted of sexual offenses or whose police affidavits contain information that meets the criteria of a sexual offense. (Doc. 103-9 at 1, ¶ 2.) NWSCF is the DOC facility that offers the program for most inmates. (Id.) If an inmate has been terminated or removed from the VTPSA and has been waiting more than a month to be readmitted into the program, it is DOC's standard practice to transfer that inmate out of NWSCF. (Doc. 103-2 at 2, ¶ 8.)

         On June 4, 2015, Bryan was transferred to NWSCF, apparently to begin participation in the VTPSA. (Doc. 103-1 at 6, ¶ 38; Doc. 103-9 at 1, ¶¶ 2-3.) This time period coincided with the apparent deterioration in Bryan's ear condition and Dr. Hetman's recommendation that he see an ENT specialist. (Doc. 72 at 6, ¶¶ 14-15; Doc. 103-1 at 3, ¶ 15.) It also coincided with Bryan's first informal grievance, which he filed on August 11, 2015. (Doc. 72 at 7, ¶ 16; Doc. 4-1 at 1.) Two days later, on August 13, Bryan was given written notice and placed on a 30-day probation period from the VTPSA because of the following: he referred to a fellow group member as a “brown-noser”; called the group facilitator a “slacker”; and, after the group ...


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