UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Mark R. Mandeville

v. Civil No. 05-cv-92-JD

Opinion No. 2008 DNH 107 

Merrimack County Department

of Corrections, et al.

O R D E R

Mark Mandeville brings a claim under Title II of the

Americans with Disabilities Act (“ADA”) against the Merrimack

County Department of Corrections (“MCDC”) and claims under the

Civil Rights Act, 42 U.S.C. § 1983, against MCDC current and

former employees and its superintendent, challenging the

conditions of his confinement at the Merrimack County House of

Corrections as a pretrial detainee. Carol French, who was a

nurse at the jail during Mandeville’s confinement there, moves

for partial summary judgment on the claims against her. The MCDC

defendants move for summary judgment on the claims against them. 

Mandeville objects to both motions.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

Case 1:05-cv-00092-JD Document 111 Filed 05/21/08 Page 1 of 26
1In support of his objection, Mandeville submitted his

affidavit and selected portions of notes he made while he was

housed at MCDC. Mandeville refers to his notes as his “log.” 

Mandeville states in his affidavit that the log is true to the

“best of his knowledge and belief.” The log is accepted as

competent evidence under Rule 56(e) to the extent it is based on

2

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

I. French’s Motion for Partial Summary Judgment

As construed by the magistrate judge, Mandeville alleges a

medical claim and two unconstitutional conditions of confinement

claims under § 1983 against French. He contends that French was

deliberately indifferent to his serious medical needs as

demonstrated by a series of incidents between April and September

of 2002.1 He also contends that French subjected him to

Case 1:05-cv-00092-JD Document 111 Filed 05/21/08 Page 2 of 26
Mandeville’s personal knowledge of the events he describes.

3

unconstitutionally inhumane conditions of confinement by denying

him use of a handicap shower and a wheelchair. French moves for

summary judgment as to part of Mandeville’s medical claim and his

conditions of confinement claim.

A. Serious Medical Need

As a pretrial detainee, Mandeville was entitled to at least

as much protection under the Fourteenth Amendment as convicted

prisoners are afforded under the Eighth Amendment. Bell v.

Wolfish, 441 U.S. 520, 545 (1979). “For medical treatment in

prison to offend the Constitution, the care must involve acts or

omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Ruiz-Rosa v. Rullan, 485

F.3d 150, 156 (1st Cir. 2007) (internal quotation marks omitted). 

Deliberate indifference means that the prison employee

“subjectively must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm

exits, and [s]he must also draw the inference.” Id. (internal

quotation marks omitted). Examples of deliberate indifference

include denying needed care as punishment and making medical care

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2Mandeville’s description of that incident is corroborated

by the deposition testimony of the corrections officer on duty

who witnessed French’s actions. Following an investigation,

French was disciplined for her treatment of Mandeville.

4

decisions recklessly with actual knowledge of potential harm that

could be easily prevented. Id.

At least for purposes of summary judgment, French does not

dispute that Mandeville was suffering from a serious medical

condition, psoriatic arthritis, during the time in question. The

record also establishes that Mandeville was prescribed a variety

of treatments for his condition and the pain it caused. To

support her motion, French parses through the incidents that

Mandeville has cited, which involve her refusals to provide

Mandeville with prescribed medication and with hot packs for his

pain. She argues on some occasions she did not show deliberate

indifference to Mandeville’s medical needs. Notably, French does

not seek summary judgment to the extent the medical claim is

based on an incident on May 15, 2002, during which Mandeville

contends French first forced him to crawl to get his medications,

then refused to give him his medications, and demanded that he

stand and walk in order to receive his medications, which he was

only barely able to do.2

Mandeville’s claim is that French’s treatment of him, taken

as a whole, showed that she was deliberately indifferent to his

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3French also argues that Mandeville cannot prove deliberate

indifference without an expert witness. French’s theory is based

on the requirements for proving medical negligence under state

law, which is not relevant to a deliberate indifference claim. 

See Ruiz, 485 F.3d at 156.

5

serious medical needs, in violation of the Constitution. Whether

the individual incidents he cites would constitute separate

constitutional violations is not material to the claim. Instead,

French’s treatment of Mandeville, taken as a whole and with

inferences drawn in a light most favorable to Mandeville,

demonstrates a material factual issue as to whether French acted

with deliberate indifference to Mandeville’s serious medical

needs. Therefore, the record presented does not support summary

judgment in French’s favor on the medical claim.3

B. Conditions of Confinement

Mandeville contends that French imposed unconstitutional

conditions of confinement by preventing him from using a handicap

equipped shower and a wheelchair. French responds that the

incidents Mandeville cites are not sufficient to show inhumane

conditions or prove the claim. 

A pretrial detainee’s claim of unconstitutional conditions

of confinement arises under the Fourteenth Amendment, which

provides protections that are coextensive with the Eighth

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Amendment. Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir. 2005). 

The Fourteenth Amendment prohibits punishment of pretrial

detainees. Id. at 13. A restriction on a pretrial detainee that

serves no legitimate governmental purpose constitutes punishment

and is barred by the Fourteenth Amendment. Id. To succeed on a

claim of unconstitutional conditions of confinement, a plaintiff

must prove “from an objective standpoint, the conditions of his

confinement deny him the minimal measure of necessities required

for civilized living . . . [and] that, from a subjective

standpoint, the defendant was deliberately indifferent to inmate

health or safety.” Id. at 18-19. In this context, deliberate

indifference “is a mental state akin to criminal recklessness.” 

Id. at 19. 

1. Wheelchair

Mandeville contends that his log shows that he was regularly

denied access to a wheelchair which caused him to be confined in

his cell twenty-four hours a day and to miss other activities. 

French focuses on one incident, which occurred on June 27, 2002,

and argues that it is insufficient to show a constitutional

violation. Although Mandeville cites multiple incidents

chronicled in his log, the only wheelchair incidents involving

French occurred on May 15 and June 27, 2002. 

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On May 15, French was dispensing medications from a cart in

Mandeville’s unit. Mandeville was prescribed pain medication,

which would be dispensed from the cart. Although Mandeville had

asked for a wheelchair before the time for dispensing

medications, none was provided. Mandeville crawled out of his

cell to the cart, but French refused to give him medication until

he could stand up. He was transported to the medical department

in a wheelchair. Once there, French told him that if he could

not stand and walk to get his medications, he would be

transferred to a housing unit that the inmates refer to as “the

hole.” To avoid that outcome, Mandeville stood and walked to

French to get his medications, despite the pain it caused. 

 That incident alone raises a factual issue as to French’s

deliberate indifference to Mandeville’s health and safety. 

Forcing Mandeville to walk rather than use a wheelchair under

those circumstances raises a factual issue as to whether she 

denied him the minimal necessities for civilized living. The

June 27 incident is not well developed, but following the May 15

incident, French’s actions on June 27 add proof of her

indifference to Mandeville’s health and safety.

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4French did not provide the physician’s assistant’s

affidavit or any other evidence to support her instruction to the

jail staff to restrict Mandeville’s access to the shower.

8

2. Shower

Mandeville contends that French interfered with his access

to the handicap shower, which was located on a tier below

Mandeville’s unit, in the medical department. Because of its

location, Mandeville required staff assistance to get to the

shower. French states that she instructed the jail staff not to

take Mandeville to the shower when the physician’s assistant

(“P.A”) was in his office because the P.A. wanted to protect

patient confidentiality and avoid being “monopolized” by

Mandeville.4 

Mandeville’s notes in his log demonstrate an ongoing

struggle between Mandeville and the staff about showering. The

log shows that Mandeville regularly went for three or more days

between showers. The log states that on July 8, Mandeville had

arranged for a shower but when he got down to the handicap shower

area, French said that he could not use the shower at that time

because the heat from the shower would disturb the P.A.

Mandeville wrote that he had told the P.A. that he was going to

take a shower and he responded, “that’s good.” Because French

refused to let him use the handicap shower, Mandeville wrote: “So

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I may not get a shower again today, which would make the 4th or

5th day.” 

On September 20, 2002, Mandeville had not showered for five

days and asked repeatedly for a shower. Finally, a corrections

officer agreed to take him to the handicap shower. Mandeville

wrote in his log that French “complained to C.O. Saucier that my

taking a shower near P.A. call was making the hallway hot and

uncomfortable for Henry the P.A. during P.A. call never mind my

not having taken a shower in five days!” 

Based on the record evidence, French interfered with

Mandeville’s access to the only shower he could use by

instructing the staff not to allow him to shower when the P.A.

was in his office. She has not supported her edict with any

evidence that it was necessary or even authorized by the P.A. or

any other supervisor at the jail. French also interfered with

Mandeville’s showers in particular incidents on July 8 and

September 20. The record shows that Mandeville often went

multiple days and even a week at a time between showers. 

Although this claim is not well-developed, a factual issue

remains as to whether French was deliberately indifferent to

Mandeville’s health or safety and whether her actions deprived

Mandeville of “the minimal measure of necessities required for

civilized living.” Surprenant, 424 F.3d at 18.

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II. MCDC Defendants’ Motion for Summary Judgment

Mandeville’s claims against the MCDC defendants are that

MCDC violated Title II of the ADA by failing to provide him

consistent access to a wheelchair and a handicap accessible

shower and that MCDC and the individual defendants imposed

inhumane conditions of confinement with deliberate indifference

to his health and safety in violation of the Fourteenth

Amendment. MCDC moves for summary judgment on the ADA claim,

contending that the ADA does not apply because it does not

receive federal funding, that it is entitled to qualified

immunity, and that no ADA violation occurred. MCDC and the

individual defendants seek summary judgment on Mandeville’s

conditions of confinement claim on the grounds that some of his

complaints are barred by the exhaustion requirement of the

Prisoner Litigation Reform Act (“PLRA”), that the conditions he

describes were not unconstitutional, and qualified immunity.

A. ADA Claim

Title II of the ADA provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity.” 42 U.S.C. §

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12132. For purposes of the Act, a “qualified individual with a

disability” is “an individual with a disability who, with or

without reasonable modifications to rules, policies, or

practices, . . . or the provision of auxiliary aids and services,

meets the essential eligibility requirements for the receipt of

services or the participation in programs or activities provided

by a public entity.” § 12131(2). A “public entity” includes a

local government and “any department, agency, . . . or other

instrumentality of a . . . local government.” § 12131(1). Title

II of the ADA provides a private cause of action for damages

against public entities that violate its provisions. United

States v. Georgia, 546 U.S. 151, 153 (2006).

1. Federal Funding

MCDC asserts that it cannot be liable for any ADA violation

because it does not receive federal funds. MCDC cites no legal

authority for that theory. In his objection, Mandeville pointed

out the lack of support for MCDC’s federal funding defense, but

MCDC failed to address that deficit in its reply. The court

finds no legal support for this defense. See Pierce v. County of

Orange, --- F.3d ---, 2008 WL 2052508, at *20 n.27 (9th Cir. May

15, 2008) (“Title II of the ADA was expressly modeled after § 504

of the Rehabilitation Act of 1973 . . . and essentially extends

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coverage to state and local governmental entities that do not

receive federal funds.”); cf. Neighborhood Ass’n of The Back Bay,

Inc. v. Fed. Transit Admin., 463 F.3d 50, 53 (1st Cir. 2006)

(discussing obligations of public transit authorities in

receiving federal funding for ADA compliance).

2. Qualified Immunity

MCDC also asserts that it is entitled to qualified immunity

from liability under the ADA. It is not. As the court

previously held in this case, Title II of the ADA applies only to

public entities, not individual defendants. See Order, Aug. 22,

2007. In contrast, qualified immunity protects only individual

defendants, not public entities such as MCDC. Owen v. City of

Independence, 445 U.S. 622, 650 (1980); accord Tardiff v. Knox

County, 365 F.3d 1, 2 (1st Cir. 2004). Therefore, MCDC is not

entitled to the defense of qualified immunity.

3. Merits

To succeed on his ADA claim, Mandeville must prove:

(1) that he [was] a qualified individual with a

disability; (2) that he was either excluded from

participation in or denied the benefits of [MCDC’s]

services, programs, or activities or was otherwise

discriminated against; and (3) that such exclusion,

denial of benefits, or discrimination was by reason of

[his] disability. 

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Buchanan v. Maine, 469 F.3d at 158, 170-71 (1st Cir. 2006)

(internal quotation marks omitted). Mandeville asserts that MCDC

violated the ADA by failing to provide him a wheelchair and

consistent access to a handicap equipped shower, which he needed. 

Although far from clear, it appears that the MCDC asserts for

purposes of summary judgment that Mandeville cannot prove that he

needed a wheelchair to accommodate his disability or that he was

denied access to the handicap equipped shower.

As is noted above, Mandeville was ill with psoriatic

arthritis while he was detained at MCDC. A consultation note

written by Dr. James Trice on May 22, 2002, states that

Mandeville began having significant problems with joint pain and

swelling along with a low grade fever for two to three months

before that appointment. Dr. Trice noted that Mandeville was in

a wheelchair, that several joints showed swelling including his

knees, his right ankle and foot, and his right elbow. His skin

had areas of redness and scale that were consistent with

psoriasis and his nails showed significant psoriatic changes. 

Dr. Trice diagnosed psoriatic arthritis.

Carole Anderson, who was superintendent of MCDC during the

time Mandeville was detained there, had seen his swollen legs and

feet in May of 2002 and was aware that he needed a wheelchair. 

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Anderson testified at her deposition that her “first thought” was

to give Mandeville a wheelchair, but she then decided that it

would be a security risk. As a result, Mandeville had to request

a wheelchair from a corrections officer any time that he needed

to move outside of his cell. That system did not work well

because the staff did not have time to respond to Mandeville’s

requests with the other demands on their time and attention. At

the end of October of 2002, although the circumstances had not

changed, Anderson allowed Mandeville to have a wheelchair in his

cell. Mandeville recorded in his log during the summer and fall

of 2002, that at times staff ordered his wheelchair to be taken

away and at other times he missed opportunities to get out of his

cell, to talk on the telephone with his attorney, and to visit

with his family.

Mandeville contends that because of medications he took, he

was prone to sweating more than other inmates and also had

problems with his skin, which caused him to need regular showers. 

He also needed a handicap accessible shower which was located in

the medical area of the jail. His log documents that he often

waited for four to seven days between showers. In late September

of 2002, Anderson ordered that Mandeville be allowed to shower

each evening at 6:00 pm when he was in the medical area to

receive his medications.

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a. Use of a Wheelchair

Mandeville contends that he was a qualified person with a

disability caused by his illness, psoriatic arthritis, and that

MCDC failed to provide him with a wheelchair, except on a

sporadic basis, which restricted his ability to leave his cell as

other non-disabled inmates were able to do. MCDC responds that

it is entitled to summary judgment because, as in Kiman v. N.H.

Dep’t of Corrs., 451 F.3d 274 (1st Cir. 2006) and unpublished

decisions from the Sixth and Eighth Circuits, Mandeville’s

disability was not readily apparent to corrections officials, a

wheelchair was sometimes provided to Mandeville, Mandeville

cannot show that jail staff knowingly prevented him from using a

wheelchair, and isolated instances of missing services or

privileges do not violate the ADA. 

It is undisputed that Mandeville’s illness and its effects

on his mobility were obvious and well-known to the officials and

staff of MCDC by mid-May of 2002. It is also undisputed, based

on Anderson’s deposition testimony, that Mandeville needed to use

a wheelchair to make use of his out-of-cell time at least

beginning in mid-May of 2002. It is also undisputed that

Mandeville was given limited access to a wheelchair during this

time period and that the lack of access prevented him from

leaving his cell. 

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For purposes of Title II of the ADA, “[g]enerally, public

entities must ‘make reasonable modifications in policies,

practices, or procedures when the modifications are necessary to

avoid discrimination on the basis of a disability, unless the

public entity can demonstrate that making the modifications would

fundamentally alter the nature of the of the service, program, or

activity.’” Pierce, 2008 WL 2052408 at *19 (quoting 28 C.F.R. §

35.130(b)(7)). Although MCDC suggests that security concerns

prevented them from giving Mandeville a wheelchair in his cell,

that argument is not well-developed. In addition, based on the

present record, MCDC then changed its policy and made a

wheelchair available without any change in circumstances that

would ameliorate security concerns.

MCDC has not shown that based on undisputed facts it is

entitled to summary judgment on Mandeville’s ADA claim that he

was denied access to a wheelchair. 

b. Shower

A similar situation apparently existed with respect to

Mandeville’s access to the handicap accessible shower. No

dispute exists that Mandeville needed to use a handicap

accessible shower. Such a shower existed, but it was located on

the first floor of the jail in the medical area so that

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Mandeville needed MCDC staff assistance to get to the shower. 

Because the staff often did not have time or inclination to take

Mandeville to the shower, he frequently went days or even a week

between showers. That does not appear to have been the ordinary

schedule for showers in the jail. Therefore, a triable issue

exists as to whether, because of his disability, Mandeville was

denied access to services available to other inmates. 

B. Inhumane Conditions of Confinement

As is discussed in Part I, to succeed on his claim of

unconstitutional conditions of confinement, Mandeville must prove

“from an objective standpoint, the conditions of his confinement

deny him the minimal measure of necessities required for

civilized living . . . [and] that, from a subjective standpoint,

the defendant was deliberately indifferent to inmate health or

safety.” Surprenant, 424 F.3d at 18-19. In this context,

deliberate indifference “is a mental state akin to criminal

recklessness.” Id. at 19. Separate conditions that have a

reinforcing effect, such as cold cell temperatures and a lack of

clothing or blankets, are considered in combination while

unrelated conditions are addressed separately. Wilson v. Seiter,

501 U.S. 294, 304-05 (1991).

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5The claim referred to as a retaliation claim was brought

against Corrections Officers Jardullo and Struven. Mandeville

alleged that they called a lock down in his unit in order to

administer his medications and announced to the unit that the

lock down was Mandeville’s fault. Mandeville alleged that the

purpose of the announcement was to create animosity and hostility

against him and possibly to endanger him. Mandeville has

dismissed all claims against Struven and has not pursued that

claim against Jardullo. Therefore, that claim is deemed to be

waived.

18

Mandeville contends that certain MCDC employees subjected

him to unconstitutional conditions of confinement by depriving

him of consistent use of a wheelchair, by refusing to provide

regular access to the handicap shower, by subjecting him to cold

temperatures in his cell, by leaving soiled sheets on his bed,

and by refusing to provide toilet paper. Mandeville brings his

conditions of confinement claims against Don Andrade, Marc

Jardullo, Brian Prentice, Joseph Saucier, Dawn Twining, and Larry

Untiet. He also brings a conditions of confinement claim against

Anderson as the supervisor of MCDC while he was detained there. 

The defendants move for summary judgment on the grounds that

Mandeville cannot show that he was subjected to inhumane

conditions or that the defendants were deliberately indifferent

to his needs, that he cannot prove a retaliation claim,5 that he

failed to exhaust his claim based on the denial of toilet paper,

and qualified immunity.

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1. Individual Defendants

Mandeville does not address his conditions of confinement

claims against the individual MCDC officers separately. He

relies on a summary of his log as his statement of material

facts. The log summary, however, provides few references to

individual defendants. 

a. Wheelchair

Although the log summary demonstrates repeated requests for

a wheelchair, most of the notations do not indicate which

defendant was responsible. The log states that on July 3, 2002,

Jardullo ordered that Mandeville would not have use of a

wheelchair. On September 11, 2002, Prentice took the wheelchair

from Mandeville after he had it for forty minutes. On September

19, Saucier denied Mandeville use of a wheelchair for two and a

half hours because he was busy and forgot. On September 24,

Prentice took the wheelchair away from Mandeville while he was

waiting in the line for medications. On September 27, Twining

got the wheelchair to Mandeville two hours late leaving only one

hour of time outside of his cell. On January 27, Untiet brought

Mandeville his wheelchair after others had previously taken it

away. As to each officer named, the incidents cited in the log

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are insufficient to show that the officer created an

unconstitutional condition.

b. Showers, Sheets, and Toilet Paper

Arguably, Mandeville’s claims about the lack of showers,

clean sheets, and toilet paper all relate to personal hygiene and

should be considered in combination. See Wilson, 501 U.S. at

305. Again, however, few of the complaints are linked to

specific defendants.

On August 12, Prentice told Mandeville he was too busy to

take him to the shower, although Mandeville had gone four days

without a shower. On September 4 and 5, Mandeville asked

Jardullo for a shower, after waiting two days, and Jardullo at

first refused because he was busy and then got Mandeville to the

shower at 6 p.m. on September 5. On September 19, Prentice again

refused to take Mandeville to the shower after four days without

showering. Mandeville asked three different officers for a

shower on September 20, including Twining, and “someone” got him

a shower. Despite an arrangement for taking showers in the

evening when he was given his medications, Mandeville noted that

on February 15, 2003, Prentice denied him a shower and again on

February 27.

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6The MCDC defendants also contend that Mandeville failed to

exhaust his remedies on his toilet paper claim as required by 42

U.S.C. § 1997e. Because that claim is resolved on other grounds,

the issue of exhaustion is not addressed.

21

According to his log, Prentice and Jardullo denied

Mandeville’s requests for clean sheets for a little more than a

week at the end of September and beginning of October. The

toilet paper problems occurred once in April of 2002, again in

October and then in December of 2002, on several occasions in

January of 2003, and once in February. No defendant is named as

being responsible for denying toilet paper.6 Even taken as a

whole, the deprivations of showers and sheets, as assigned to

individual defendants, are insufficient to support Mandeville’s

claim of unconstitutional conditions of confinement.

c. Cold Cell

Mandeville contends that the staff kept the heat too low in

the cell area so that he was cold. His log notes that he was too

cold on seven occasions between the end of December of 2002 and

mid-February of 2003. Mandeville does not name an individual

defendant in any notes related to cell temperature or controlling

the heat. Therefore, he has not shown that any of the named

defendants were deliberately indifferent to his health or safety

by keeping the heat too low.

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2. Supervisory Liability

Mandeville contends that Anderson is liable for inhumane

conditions he experienced due to the lack of access to a

wheelchair and a handicap accessible shower. Although a

supervisor cannot be held vicariously liable under § 1983 for the

actions of her subordinates, a supervisor may be liable for her

own actions or omissions. Whitfield v. Melendez-Rivera, 431 F.3d

1, 14 (1st Cir. 2005). A supervisor also is liable “if (1)[a]

subordinate commits a constitutional violation, and (2) the

supervisor’s actions are affirmatively linked to the behavior in

the sense that it could be characterized as supervisory

encouragement, condonation or acquiescence,” or gross negligence

that amounts to deliberate indifference. Hatfield-Bermudez v.

Aldanondo-Rivera, 496 F.3d 51, 61 (1st Cir. 2007) (internal

quotation marks omitted). A supervisor must be “either a primary

actor involved in, or a prime mover behind, the underlying

violation.” Camilo-Robles v. Zapata, 175 F.3d 41, 43-44 (1st

Cir. 1999). 

a. French

A factual issue remains as to whether French’s treatment of

Mandeville was unconstitutional. Anderson would be liable for

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such a violation if she encouraged, condoned, or acquiesced in

French’s actions or if she were deliberately indifferent to what

French was doing. The record does not show that to be the case.

When Anderson was notified about the May 15 incident

involving Mandeville and French, she began an investigation. She

disciplined French based on the results of the investigation. 

The record does not show that Anderson was aware of French’s

instruction to the staff not to allow Mandeville to shower when

the physician’s assistant was in his office or her interference

with his showers or his use of a wheelchair on specific days. 

Anderson directed the staff to get the wheelchair for

Mandeville’s use and to get him to the handicap shower. Although

Anderson’s directions may not have been strictly followed and may

have been ineffective in getting Mandeville showers and access to

the wheelchair, the record does not show that Anderson was

directly linked to French’s actions.

b. Direct Actions 

While inhumane conditions alone do not violate the

constitution, prison officials cannot confine inmates in inhumane

conditions with deliberate indifference to the inmates’ health or

safety. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994). A

prison official is deliberately indifferent to an excessive risk

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to an inmate’s health or safety if the official “knows of and

disregards an excessive risk to inmate health or safety.” Id. at

837. Prison officials are not deliberately indifferent “if they

responded reasonably to the risk, even if the harm ultimately was

not avoided.” Burrell v. Hampshire County, 307 F.3d 1, 8 (1st

Cir. 2002). 

It is undisputed that Anderson was aware from at least May

15, 2002, that Mandeville needed a wheelchair for mobility. The

record is less clear as to when Anderson first became aware that

Mandeville needed access to the handicap shower. Anderson does

not dispute that access to a wheelchair and to the shower were

necessary for Mandeville’s health and safety. Instead, she

contends that she responded to his needs as best she could under

the circumstances. The circumstances that affected her actions

included having only one wheelchair for the entire jail, having

only one handicap shower located in the medical department on a

lower tier, security concerns about inmates having access to a

wheelchair which could provide sharp parts to be used as weapons,

and limited staffing available to transport Mandeville to the

shower and to get the wheelchair. Anderson arranged for

Mandeville to have regular showers starting at the end of

September by coordinating his showers with his medication. By

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the end of October, Anderson changed her policy and allowed

Mandeville to keep a wheelchair in his cell. 

The record shows that Anderson did not ignore Mandeville’s

need to use a wheelchair and the handicap shower. Instead, she

established policies and procedures for providing that access,

although her efforts were not entirely successful. Mandeville

notified Anderson that despite her orders, the wheelchair often

arrived late which resulted in his missing out of cell time,

telephone calls, and other opportunities that were accessible to

him only by using a wheelchair. He also went for days without

showering because the staff was unable to get him to the handicap

equipped shower. The record shows that Anderson continued to

remind her staff of their obligations to get a wheelchair to

Mandeville and to get him to the shower. After several months of

limited success, Anderson changed her policies and allowed

Mandeville to keep the wheelchair in his cell and to shower on a

regular schedule. 

That sequence of events does not show a factual dispute as

to whether Anderson was deliberately indifferent to Mandeville’s

needs. Although Anderson might have done more, she nevertheless

was attentive to Mandeville’s complaints. See Navedo v. Maloney,

172 F. Supp. 2d 276, 285 (D. Mass. 2001). Therefore, Anderson is

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entitled to summary judgment on Mandeville’s claim that she

subjected him to unconditional conditions of confinement.

Conclusion

For the foregoing reasons, defendant French’s motion for

partial summary judgment (document no. 93) is denied. The MCDC

defendants’ motion for summary judgment (document no. 94) is

denied as to the ADA claim and is otherwise granted. The claims

remaining in this case are that Carol French acted with

deliberate indifference to Mandeville’s serious medical needs,

that she acted with deliberate indifference to a serious risk to

his health and safety by subjecting him to inhumane conditions,

and that MCDC violated Title II of the ADA.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

May 21, 2008

cc: W. Kirk Abbott, Jr., Esquire

Charles P. Bauer, Esquire

John A. Curran, Esquire

Elizabeth L. Hurley, Esquire

Lisa Lee, Esquire

Daniel J. Mullen, Esquire

Michael J. Sheehan, Esquire

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