UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joel L. Smith, 

Plaintiff

v. Civil No. 07-cv-408-SM

Opinion No. 2009 DNH 091

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.,

Defendants

O R D E R

Plaintiff, Joel Smith, a state prisoner, is serving a life

sentence for murder imposed by the State of Maine. He is

currently (and was, at all times relevant to this proceeding)

housed at the New Hampshire State Prison (“NHSP”), in Concord,

New Hampshire. He brings this action seeking $1 Million in

compensatory and punitive damages, claiming defendants violated

his constitutionally protected rights by showing deliberate

indifference to his serious medical needs. See generally 42

U.S.C. § 1983. Specifically, Smith claims that he received

inadequate and/or untimely treatment for a kidney stone, causing

him to suffer repeated infections and substantial pain over a

prolonged period. 

Defendants move for summary judgment, asserting that: (1)

Smith failed to timely exhaust available administrative remedies,

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 1 of 17
2

as is required by the Prison Litigation Reform Act; and (2) even

if he had properly exhausted, the undisputed facts of record do

not support his Eighth Amendment claim. Smith objects and has

himself moved for summary judgment. 

For the reasons set forth below, the court concludes that

even if Smith is assumed to have timely exhausted available

prison administrative remedies, his Eighth Amendment claim

against defendants fails as a matter of law. Defendants are,

then, entitled to summary judgment. 

Standard of Review

When ruling on a party’s motion for summary judgment, the

court must “view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable

inferences in that party’s favor.” Griggs-Ryan v. Smith, 904

F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate

when the record reveals “no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). In this context, “a fact is

‘material’ if it potentially affects the outcome of the suit and

a dispute over it is ‘genuine’ if the parties’ positions on the

issue are supported by conflicting evidence.” Int’l Ass’n of

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 2 of 17
3

Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103

F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). 

Nevertheless, if the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the nonmovant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore bald

assertions, unsupported conclusions, and mere speculation. See

Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997). 

Background

Crediting the allegations in Smith’s own affidavit as true,

see Affidavit of Joel Smith, Exhibit A to complaint (document no.

1), and based upon the inmate requests slips Smith filed, the

material facts are as follows. On March 26, 2007, Smith was

awakened by severe pain in his lower left abdomen. He was

transported to Catholic Medical Center for treatment. There, he

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 3 of 17
4

was examined, given pain medications, and underwent a CAT scan. 

The treating urologist, Dr. William Selleck (not a defendant),

diagnosed Smith as having a large kidney stone. He prescribed

Percocet and Ibuprofen for pain management, told Smith that he

believed the stone would pass, and said he wanted to see Smith

again in a few days. 

Smith was returned to the prison. He complains that the

prison infirmary did not stock Percocet and, therefore, provided

him with Vicodin to manage his pain. Although he suggests that

this was either negligent or, perhaps, even a deliberate and

callous effort to harm him, he does not offer any reason to think

that the substitution of Vicodin for Percocet was medically

inappropriate. He does, however, say that his pain continued for

the next two days until, on March 28, 2007, he collapsed in his

cell and was taken to the prison’s infirmary by wheelchair. 

Again, he was transported to Catholic Medical Center for

treatment. There, he was provided with pain medication and an

ultrasound test was performed. Dr. Selleck admitted him to the

hospital and, on March 30, 2007, Smith underwent surgery. He

says the stone was not removed but, instead, a stent was

inserted. The following day Smith was discharged, with both a

stent and a catheter, and returned to the prison infirmary. 

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 4 of 17
1 The NHSP has a three-tiered administrative grievance

procedure. See Exhibit A to defendants’ memorandum (document no.

17-3), New Hampshire Department of Corrections Policy and

Procedure Directive (“PPD”) 1.16, entitled “Complaints and

Grievances by Persons under DOC Supervision.” See also LaFauci

v. N.H. Dep’t of Corrections, 2001 DNH 204 at 7-10 (D.N.H. Oct.

31, 2001). Those administrative regulations provide, among other

things, that inmates must invoke the grievance process (by filing

an inmate request slip) within 30 calendar days of the date on

which the event(s) forming the basis of any complaint occurred. 

PPD 1.16 IV. If the inmate is not satisfied with the response to

his request slip, he has an additional 30 days within which to

file a grievance with the warden. If the inmate is dissatisfied

with the warden’s response, he is afforded another 30-day period

within which to file a grievance with the Commissioner of

Corrections.

5

On April 9, 2007, Smith was again transported to the

hospital, for a post-surgical follow-up visit with the treating

urologist. Dr. Selleck explained that he planned to leave the

stent in place until he could operate again in a couple of weeks. 

Smith was returned to the prison infirmary and, the following

day, the catheter was removed. Smith was then released back to

his unit. He claims that he had been prescribed various

medications for pain, bladder spasms, and to prevent infection,

but says he did not receive them. Within a few days (Smith does

not provide the date), he says he finally received the

antibiotics that had been prescribed. On April 23, Smith

submitted an Inmate Request Slip (“IRS”) to Warden Richard Gerry,

thanking him for helping Smith get the medications he needed. 

Exhibit F to defendants’ memorandum (document no. 17-8).1

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 5 of 17
6

Over the course of the next week, Smith began feeling

better. But, on April 27, 2007, Smith says he again began

experiencing pain. 

For the rest of the month I was switched from one

antibiotic to another, trying to get the infections

under control, which never happened. As a result of

the earlier failure to get me appropriate antibiotics,

the infections had gotten out of control, this would

cause me problems for the next five and a half months. 

Smith affidavit at para. 16. Smith does not, however, provide

any expert medical testimony (or other relevant evidence) to

support his implicit suggestion that defendants actually provided

him with “inappropriate” antibiotics or that their conduct

somehow caused his infections to get “out of control.” And, more

importantly, Smith points to no evidence suggesting that one or

more of the defendants was deliberately indifferent to his

serious medical condition. 

On May 3, 2007, Smith submitted an IRS to nurse practitioner

Brett Mooney inquiring about his antibiotics (Cipro and

Nitrofurantoin) and mentioning that he had seen “Dr. Englander

yesterday because things were going down hill again.” Exhibit F

to defendants’ memorandum. Mooney told Smith that he should

address his questions directly to Dr. Englander during sick call. 

On May 17, 2007, Smith was again taken to Catholic Medical

Center, where he underwent a second operation to treat his

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 6 of 17
7

condition. He says Dr. Selleck explained that he planned to try

to break up the kidney stone using a laser. But, a few hours

after surgery, Smith says the doctor informed him that, due to

the stone’s odd location in the kidney (which, according to

Smith, was itself located somewhat atypically in his abdomen), he

was not able to remove it or break it up. Instead, the doctor

inserted a larger stent and told Smith he wanted to run some more

tests before he tried to remove the stone again. Accordingly,

Smith was returned to the prison. 

Four days later, on May 21, 2007, Smith submitted an IRS to

Dr. Englander, asking about follow-up treatment in light of the

fact that his most recent surgical procedure had not been fully

curative. Dr. Englander responded that she wanted to have a CT

scan performed, so they might know whether the stone was still

present and, if it was, she wished to schedule another surgical

procedure to have it removed. Exhibit H to defendants’

memorandum. Then, on May 25, 2007, Smith submitted an IRS to

nurse practitioner Corina Neculai, stating, “Mam, I’m sorry

because you were correct. My appointment with you was May 24,

2007. I wrote it on the calendar wrong. There are a couple

issues I would like to speak about but [they] are not pressing,

so unless they get to be, I will wait until my next time to see

you.” Exhibit I to defendants’ memorandum. Nurse Neculai

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 7 of 17
8

responded, telling Smith that, “You’ll soon have more imaging

tests done, then back to specialist, etc. We are all (Dr.

Englander, ARNP Mooney, myself, specialists on outside) working

to best resolve your problem(s).” Id. Three days later, on May

28, 2007, Smith submitted an IRS to ARNP Mooney, asking about the

antibiotics he had been prescribed. He was apparently confused

by a label suggesting that the drugs were used to treat

tuberculosis and meningitis, and wondered whether he had been

diagnosed with one of those illnesses, but not informed. Exhibit

J to defendants’ memorandum. She responded by apologizing for

his confusion and explaining that the antibiotic prescribed for

him was “only 1 of 2 that treat [his] persistent urinary

infection.” Id. 

In the following weeks, Smith says he suffered severe

infections and debilitating pain. He complains that, due to an

administrative “screw-up,” someone neglected to schedule (or

perhaps even cancelled) an appointment for some sort of

unspecified testing. That, says Smith, caused him to have to

make two “useless” visits to Catholic Medical Center to follow-up

on tests that were never actually performed. The next date Smith

identifies in his affidavit is July 12, 2007 - a day he says was

“very rough,” prompting him to seek treatment at the infirmary. 

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 8 of 17
9

I was seen by the same nurse. Brad Bowen, who again

didn’t know what to do. He took a urine sample and

wrote for a thirty day bed-rest lay in. The urine

tests showed that the infections were out of control

that I needed injections of antibiotics, Gentamicin 80

mg. every eight hours, in addition to the ones I was

already taking. They didn’t work. I was also given

1000 mg. of Vicodan [sic] four times a day. 

Smith affidavit at para. 21. On July 15, 2007, Smith submitted

an IRS to defendant Donna Timulty, asking whether he had been

scheduled for another procedure aimed at breaking up or

dissolving the stone. He stated that “if the problem [scheduling

the medical procedure] is with Maine, I can get my mother to call

the Maine Commissioner [of Corrections] - he is a friend of the

family.” Exhibit K to defendants’ memorandum. Timulty responded

by letting Smith know that a procedure had, in fact, already been

scheduled for him. 

On August 9, 2007, Smith returned to Catholic Medical Center

and underwent a third surgical procedure. According to Smith,

the treating surgeon explained that “she would try everything she

could because she knew [he] had been suffering for a long time.”

Smith’s affidavit at para. 22. After the procedure, Smith says

the doctor reported that she wasn’t sure if she had

removed/broken-up the entire stone, but he would soon know

because he “should pass ‘gravel.’” Id. He was returned to the

prison, where he says he continued to experience severe pain. On

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 9 of 17
10

August 17, 2007, Smith returned to the infirmary because he was

“in constant pain.” Id. There, Smith says one of the defendant

nurses told him, “I can’t help it if you aren’t getting the

treatment you need. It’s Maine! They just keep cancelling the

appointments I make.” Id. at para. 23. That statement is an

apparent reference to the appointments Smith says were scheduled

for him to undergo various forms of testing but, because of an

administrative “screw-up,” were cancelled. Parenthetically, the

court notes that the statements attributed to the defendant nurse

(Donna Timulty) suggest that she had actually scheduled the

testing appointments but someone in the Maine Department of

Corrections cancelled them. The Maine D.O.C. employees are not

defendants in this case. 

Three days later, on August 20, 2007, Smith says his mother

contacted various officials in the State of Maine, who assured

her that they had resolved “any issues which may have caused

delays in processing medical consultation/treatment requests for

[Smith].” Id. at para. 24. On August 24, 2007, Smith was taken

to the hospital for a CAT scan, to determine whether the stone

had passed. He was also prescribed 1000 mg. of Vicodin. And, on

August 30, 2007, Smith met with Dr. Selleck, who reviewed the CAT

scan. Unfortunately, he could not tell whether the stone had

passed or whether it remained lodged in Smith’s kidney. 

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 10 of 17
11

Accordingly, he prescribed antibiotics and scheduled Smith for

another surgical procedure. On September 9, 2007, Smith

underwent his fourth and final procedure, which apparently

completely cured him and alleviated his pain. 

The essence of Smith’s Eighth Amendment claim is that “it

took six months to treat a kidney stone due to the prison’s

untimely, inadequate and unprofessional treatment.” Smith’s

affidavit at para. 28. 

Discussion

I. The Eighth Amendment and Medical Mistreatment.

In order to prevail on a section 1983 claim for medical

mistreatment, an inmate must show that prison officials

demonstrated “deliberate indifference to [his] serious medical

needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). This test

has both objective and subjective (state-of-mind) components. 

See DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991). 

With regard to the objective component of the deliberate

indifference test, the inmate must show that he or she has

suffered a serious deprivation of a fundamental right or basic

human need. See DesRosiers, 949 F.2d at 18. As the Supreme

Court has observed, the Constitution “does not mandate

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 11 of 17
12

comfortable prisons, and only those deprivations denying the

minimal civilized measure of life’s necessities are sufficiently

grave to form the basis of an Eighth Amendment violation.” 

Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation and internal

quotation marks omitted). And, in Farmer v. Brennan, 511 U.S.

825 (1994), Justice Souter explained the state-of-mind element of

deliberate indifference in the context of an Eighth Amendment

claim. Id. at 834-47. In short, a prison official is liable

“only if he knows that inmates face a substantial risk of serious

harm and disregards that risk by failing to take reasonable

measures to abate it.” Id. at 847. 

Accordingly, an Eighth Amendment medical mistreatment claim

cannot be premised upon a theory of simple negligence or even

medical malpractice; a medical care provider’s conduct must go

beyond negligence in diagnosing or treating a prisoner’s medical

condition. See Estelle, 429 U.S. at 105-06. Similarly, a

constitutional violation does not occur merely because a prisoner

happens to disagree with a nurse’s or physician’s decision

regarding the proper course of medical treatment. See, e.g.,

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

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 12 of 17
2 Although Smith filed several inmate requests slips (the

first of three steps in the administrative process) questioning

the treatment he was receiving and/or the medications he was

provided, and/or the scheduling of surgical procedures, he did

not timely appeal any of the responses he received. It was not

until September of 2007 (six months after the onset of his

illness) that Smith completed the mandatory three-step

13

constitutional violation.”); Watson v. Caton, 984 F.2d 537, 540

(1st Cir. 1993) (“The courts have consistently refused to create

constitutional claims out of disagreements between prisoners and

doctors about the proper course of a prisoner’s medical

treatment, or to conclude that simple medical malpractice rises

to the level of cruel and unusual punishment.”). 

Instead, to be violative of the Eighth Amendment, the “care

provided must have been so inadequate as to shock the

conscience,” Feeney v. Corr. Med. Services, Inc., 464 F.3d 158,

162 (1st Cir. 2006) (citations and internal punctuation omitted),

or “constitute ‘an unnecessary and wanton infliction of pain’ or

be ‘repugnant to the conscience of mankind.’” Estelle, 429 U.S.

at 105-06 (citations omitted). 

II. Defendants’ Treatment of Smith. 

For purposes of ruling on the pending motions for summary

judgment, the court has assumed (without ruling) that Smith

timely exhausted available administrative remedies at each of the

three tiers in the NHSP’s inmate grievance system.2

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 13 of 17
administrative appeals process, by filing an IRS, appealing the

response to the warden, and then to the commissioner. See

Exhibits T, V, and X to defendants’ memorandum. At that point,

however it would certainly appear that his appeals were not

timely, since each of the specific events of which he complains

had occurred far more than 30 days earlier.

14

Turning to the merits of Smith’s claims, it is plain that

the record in this case simply fails to lend itself to even an

inference that any of the individual defendants was deliberately

indifferent to Smith’s serious medical condition or that the

treatment he received was so far below the standard of care as to

shock the conscience. Suffering from kidney stones can be

extremely painful. And, as Smith himself acknowledges, his

situation was complicated by his atypical anatomy (i.e., the

uncommon location and/or structure of his kidney), the large size

of the stone, and the stone’s unusual location within the kidney. 

Nevertheless, the record demonstrates that defendants

consistently took reasonable steps to address both Smith’s

underlying condition and its symptoms (the kidney stone and

associated pain and, eventually, infection). While it is

certainly understandable that Smith would have preferred to have

his situation medically corrected far sooner, nothing in the

record suggests that he received sub-standard care. Nor has

Smith proffered any expert testimony to suggest that the medical

care he received was inappropriate (the date for plaintiff’s

expert witness disclosure passed more than four months ago). 

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 14 of 17
15

Finally, even if the record did support such a conclusion, that

would not be sufficient. As noted above, Smith must do more than

merely show that defendants were negligent. Instead, he must

show that they were aware of, yet were deliberately indifferent

to, his serious medical condition. 

Although defendants (and medical professionals at two local

hospitals) had difficulty treating Smith’s kidney stone and the

resulting pain and infections, they appear to have undertaken

entirely reasonable and medically appropriate measures aimed at

addressing Smith’s condition. While Smith’s claims (if credited

as true) suggest that one or more of the named defendants could

have been a bit more sympathetic, nothing suggests that they were

deliberately indifferent. To the contrary, his condition was

continually treated. Absent expert medical testimony suggesting

that defendants’ treatment of Smith was so far below acceptable

medical standards as to constitute an unnecessary and wanton

infliction of pain or be repugnant to the conscience of mankind,

Smith cannot prevail on his Eighth Amendment claim on the

undisputed facts. 

Conclusion

The record suggests that Smith is well-liked both by fellow

inmates and prison staff, and nothing indicates that any of the

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 15 of 17
16

named defendants had any reason to deliberately cause him

needless pain or suffering. No one seriously doubts that he

experienced substantial pain as a result of his kidney stone and

related infection(s). Nor does there appear to be any question

that it took medical providers at the prison and doctors at two

local hospitals approximately six months and four surgical

procedures to finally resolve Smith’s medical problems. 

But, the fact that Smith endured several months of

discomfort (punctuated by periods of severe pain) does not,

standing alone, compel the conclusion that any one or more of the

defendants was deliberately indifferent to his serious medical

needs. Even if Smith had been able to demonstrate that

defendants were negligent in treating his kidney stone, his

Eighth Amendment claim still fails, since mere negligence or

simple medical malpractice does not rise to the level of cruel

and unusual punishment, nor does it constitute deliberate

indifference to serious medical needs. Instead, Smith must point

to some evidence from which a trier of fact might reasonably

conclude that one or more of the named defendants knew that he

faced a substantial risk of serious harm yet, nevertheless,

disregarded that risk by failing to take reasonable measures to

abate it. Farmer, 511 U.S. at 847. Here, there is simply a

dearth of evidence on that essential point. Of course, “where

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 16 of 17
17

the dispute concerns not the absence of help, but the choice of a

certain course of treatment, . . . deliberate indifference may be

found where the attention received is so clearly inadequate as to

amount to a refusal to provide essential care.” Feeney, 464 F.3d

at 163. As in Feeney, however, the record here “unequivocally

demonstrates that this is not such a case.” Id. 

Consequently, even if Smith had properly (and timely)

exhausted available prison administrative remedies, he has failed

to point to evidence supportive of his claim that defendants

subjected him to cruel and unusual punishment by displaying

deliberate indifference to his serious medical condition. For

the foregoing reasons, defendants’ motion for summary judgment

(document no. 17) is granted, and plaintiff’s motion for summary

judgment (document no. 26) is denied. Defendant’s motion to

strike (document no. 27) is denied as moot. The Clerk of Court

shall enter judgment in accordance with this order and close the

case. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

June 23, 2009

cc: Joel L. Smith, pro se

James W. Kennedy, Esq.

Case 1:07-cv-00408-SM Document 29 Filed 06/23/09 Page 17 of 17