UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Mark Mandeville

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

Merrimack County Department

of Corrections, et al.

O R D E R

Mark Mandeville brings claims under Title II of the

Americans with Disabilities Act ("ADA") and claims under the

Civil Rights Act, 42 U.S.C. § 1983, challenging the conditions of

his confinement at the Merrimack County Department of

Corrections. Several individual defendants move to dismiss the

ADA claims against them. Defendants Judy Figueroa and Glennice

Poisson move for summary judgment on the claims of

constitutionally inadequate medical care brought against them. 

Mandeville objects to the motions.

I. ADA Claims

Mandeville alleged Title II ADA claims against defendants

Carole A. Anderson, Mark Jardullo, Keith Stalker, Brian Prentiss,

Dawn Twining, Carol French, Sarah Stuven, Joseph Saucier, Larry

Untiet, Steve Mayo, and Donald Andrade. Those defendants move to

dismiss on the grounds that Title II addresses liability of

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public entities not individuals. Mandeville does not dispute the

defendants' interpretation of Title II. 

Instead, Mandeville argues that he intended to sue those

defendants in their official capacities. "A suit against a

public official in his official capacity is a suit against the

governmental entity itself." Surprenant v. Rivas, 424 F.3d 5, 19

(1st Cir. 2005). The governmental entity involved is the

Merrimack County Department of Corrections, which is already a

defendant in the case. Therefore, the Title II ADA claims

against individual defendants are dismissed, although the

allegations made against them are deemed to be part of the ADA

claim against the Department.

II. Constitutionally Inadequate Medical Care

Inadequate medical care in a prison violates the Eighth

Amendment only if it involves "acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical

needs." Feeney v. Correctional Med. Servs., Inc., 464 F.3d 158,

161 (1st Cir. 2006) (internal quotation marks omitted). 

Deliberate indifference may be shown by a denial of medical care

for the purpose of punishing an inmate or by a reckless denial of

care, which requires "actual knowledge of impending harm, easily

preventable." Id. at 162. A pretrial detainee, whose rights are

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protected under the Fourteenth Amendment, is entitled to at least

as much protection as a convicted prisoner. Revere v. Mass. Gen.

Hosp., 463 U.S. 239, 244 (1983).

Mandeville, who was a pretrial detainee at the Merrimack

County Department of Corrections during 2002, had a painful

arthritis condition that was diagnosed in May. In March of 2002,

he was prescribed medication, Ultram and Flexeril, for back pain

and pain associated with an abscess on his hip. He asserts that

the prescribed medication did not adequately control his pain,

and he asked for and was given Ibuprofen on several occasions. 

After diagnosis, Oxycontin and Ibuprofen were prescribed for

pain, along with other medications.

In support of his claims, Mandeville contends that he had

severe pain during the evening of April 13 and that he did not

receive his usual dose of Ultram on April 14. Later in the day

on April 14, Mandeville states that he asked Nurse Glennice

Poisson for Ibuprofen, which she refused to give him. He states

that he had severe pain for the remainder of that day and the

next day, April 15. When he asked another nurse for Ibuprofen,

on April 15, she also refused to give it to him, based on

Poisson's order.

Mandeville contends that in October of 2002, Nurse Judy

Figueroa did not give him his prescribed pain medication,

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Oxycontin, because his prescription had been allowed to run out,

and gave him Tylenol instead. Mandeville states that he suffered

severe pain and withdrawal symptoms as a result. He also states

that Figueroa was responsible for failing to reorder his

prescription.

For purposes of the present motions, it will be presumed

that Mandeville had a serious medical condition and that Poisson

and Figueroa were aware of his condition and the pain associated

with it. In her motion for summary judgment, Poisson addresses

her treatment of Mandeville on March 30, 2002, but not on April

14, 2002, which is the date of the events on which Mandeville's

claims against Poisson are based. The records Poisson provided

do not show that Mandeville received any treatment on April 14. 

However, the absence of a record does not necessarily undermine

Mandeville's assertion that Poisson refused to give him Ibuprofen

on that date. Therefore, Mandeville's affidavit, stating

Poisson's actions on April 14 and 15, demonstrates a material

factual dispute as to the treatment Poisson provided on those

dates.

Mandeville states in his affidavit that on October 6, 2002,

Figueroa was the nurse on duty for dispensing medications. 

Figueroa told him that he would have to go without his prescribed

dose of Oxycontin because his prescription had run out and the

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last nurse on duty had forgotten to reorder it. Mandeville later

realized that Figueroa was the nurse on duty who had forgotten to

reorder his medication. Mandeville asked her to give him an

Oxycontin pill from another inmate's prescription but she

refused, telling him that was against federal law. Figueroa gave

Mandeville Tylenol instead of Oxycontin. 

Mandeville states that he could not sleep that night because

of pain and anxiety. The next morning the nurse on duty, Nurse

Martin, gave Mandeville his medications, including Oxycontin. He

complained that Figueroa had not given him Oxycontin the night

before, and Martin told him that Figueroa should have given him

someone else's medication, which was done when necessary. 

In her affidavit, Figueroa explains jail procedure in

handling narcotic medications and her actions in dispensing

medication to Mandeville. She said that she first learned that

Mandeville did not have enough medication when the nurse on the

prior shift on October 6 told her that the medication had been

ordered the week before but had not yet arrived. Because October

6 was a Sunday, the pharmacy was closed. Figueroa also states

that in her experience patients can be transferred from Oxycontin

to Tylenol without experiencing withdrawal symptoms and with good

pain control.

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Under the circumstances Mandeville describes in his

affidavit, Figueroa forgot or neglected to reorder Mandeville's

prescription pain medication that resulted in him missing a dose. 

She also refused to give him another inmate's medication, based

on her understanding that to do so would violate federal law. 

Crediting Mandeville's version of events, Figueroa, at most,

may have been negligent or misinformed. Mere negligence and

misinformation do not show that Figueroa was deliberately

indifferent to Mandeville's serious medical needs. Ruiz-Rosa v.

Rullan, 485 F.3d 150, 156 (1st Cir. 2007) ("[S]ubstandard care,

malpractice, negligence, inadvertent failure to provide care, and

disagreement as to the appropriate course of treatment are all

insufficient to prove a constitutional violation"). Therefore,

Figueroa is entitled to summary judgment on Mandeville's claim

against her.

Conclusion

For the foregoing reasons, the defendants' motions to

dismiss the claims under the ADA brought against individual

defendants (documents no. 61 and 62) are granted in part, and

those claims are deemed to be claims against the Merrimack County

Department of Corrections. Defendant Glennice Poisson's motion

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for summary judgment (document no. 57) is denied. Defendant Judy

Figueroa's motion for summary judgment (document no. 67) is

granted.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

August 22, 2007

cc: W. Kirk Abbott, Jr., Esquire

Charles P. Bauer, Esquire

John A. Curran, Esquire

Elizabeth L. Hurley, Esquire

Lisa Lee, Esquire

Michael J. Sheehan, Esquire

Ralph Suozzo, Esquire

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