1Gross filed his initial complaint on December 24, 2008

(document no. 1). On February 2, 2009, Gross filed an addendum

including supporting documentation for the allegations in his

complaint (document no. 13). Both of these documents will be

accepted, in the aggregate, as the complaint in this matter for

all purposes.

2Gross’ request for injunctive relief sought a return to

placement at the New Hampshire State Prison’s Residential

Treatment Unit. Gross reports, however, that he was returned to

that unit on November 24, 2008, and I therefore recommend

dismissal of the request for injunctive relief as moot.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Elijah E. Gross

v. Civil No. 08-cv-517-JL

Mary Rose

REPORT AND RECOMMENDATION

Before the Court is Elijah Gross’ complaint (document nos. 1

& 13)1, filed pursuant to 42 U.S.C. § 1983, alleging that the

defendant violated his rights under the United States

Constitution. Gross is seeking damages and injunctive relief.2

The matter is before me for preliminary review to determine,

among other things, whether the complaint states any claim upon

which relief might be granted. See 28 U.S.C. § 1915A(a); United

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 1 of 17
3Should the District Judge elect not to follow my

recommendation of dismissal, Gross is free to renew his motion as

circumstances warrant.

2

States District Court District of New Hampshire Local Rule (“LR”)

4.3(d)(2). For the reasons explained herein, I recommend that

this action be dismissed in its entirety. 

Gross has also filed a motion seeking court-appointed

counsel (document no. 15). Because I recommend dismissal of this

matter, I deny the motion to appoint counsel as moot.3

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, 551 U.S. 89, ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

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3

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Gross has been incarcerated at the New Hampshire State

prison (“NHSP”) since July 17, 2007. Immediately upon his

arrival at the prison, Gross began sending Inmate Request Slip

(“IRS”) forms to the NHSP Mental Health Unit (“MHU”), asking to

be seen by a mental health professional so that he might be

properly assessed and treated for his mental health problems. On

August 15, 2007, Gross was seen by a woman named Linda from MHU. 

Gross explained to Linda that he suffered from mental illness,

including anxiety and depression, and that he was having a hard

time as a result. Gross told Linda he was shaking and vomiting,

getting daily hives, and sleeping too much. Linda ordered

Benadryl for Gross and placed him on a waiting list for the

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4

prison’s Residential Treatment Unit (“RTU”). Linda declined,

however, to treat Gross’ anxiety or depression. Gross alleges

that her refusal to treat him was based on his history of illegal

drug use.

On September 7, 2007, Gross was admitted to the RTU. 

Shortly after being admitted to the RTU, Gross was diagnosed with

personality disorders, panic disorder, depression, anxiety

disorder, attention deficit disorder, polysubstance abuse, opioid

dependence, and a number of physical ailments. While at the RTU,

Gross asked to be treated with medications on a number of

occasions. The MHU workers, however, believing that Gross was

seeking medication to feed his addiction rather than to treat his

illness, refused to provide him with any medication for his

mental illness at that time. Gross does state, in his complaint,

that at one point, he was given Trazodone, a sleep aid, but

stopped taking it due to its unpleasant side effects.

Gross states that on December 7, 2007, after three months at

the RTU, he lost his temper and beat up another inmate. As a

result, he was taken to the prison’s Secure Housing Unit (“SHU”)

where he was locked in his cell for twenty-three hours a day, and

told that he could reapply for admission to the RTU in sixty

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5

days, as he had been doing well in the program. Gross states

that his depression got very bad while he was in SHU. While in

SHU, Gross sent many IRS forms to the MHU, seeking help for his

depression, but his requests were ignored most of the time. 

Gross states that he did try to speak to MHU Director, Dr. Rick

Fellows, on his daily rounds, but Dr. Fellows only told him to

send an IRS to MHU. 

On February 28, 2008, Dr. Wyly from MHU saw Gross and told

him that he was on the waiting list to return to the RTU. Dr.

Wyly also told Gross that he would order medications for him for

anxiety and depression. Gross states that he did not received

the prescribed medication, Buspar, for two weeks. After a week

on Buspar, Gross stopped taking it because the side effects,

which included nausea, nervousness, suicidality, and anger,

became unmanageable. Gross sent an IRS to MHU on April 1, 2008

stating that he was depressed and anxious, that he couldn’t take

the medication that had been prescribed for him, and that he was

in urgent need of mental health treatment. 

On April 10, 2008, Gross saw Dr. Wyly again. Dr. Wyly told

Gross that he would order new medication to see if he could find

one that would be effective. Gross reports that Dr. Wyly never

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 5 of 17
6

prescribed any new medication for him, and that his IRS forms on

the subject went unanswered. While he was at SHU, Gross states

that he was unable to attend two appointments at MHU, scheduled

for May 15, 2008 and June 26, 2008, because SHU inmates are not

taken to those appointments.

Gross was next sent to the North Unit at the NHSP. There,

he saw Debby Green from MHU. Green does not have the ability to

prescribe medication, so, Gross states, she was not able to do

very much for him. Gross attempted to see the mental health

providers at the NHSP who could prescribe medication, including

Dr. Wyly and Mary Rose, but neither of them had available

appointments. 

On July 22, 2008, Gross was sent back to SHU, apparently on

Pending Administrative Review status, as another inmate had

falsely accused Gross of misconduct. On July 24, 2008, Gross

sent an IRS to MHU, stating that he would “freak the fuck out” if

he did not get something for his depression. Gross reports that,

while he was at SHU, he got very depressed and became suicidal. 

Gross told both the Medical Department and Dr. Fellows that he

was feeling suicidal but, he reports, no one took him seriously. 

Gross tried to hang himself in his cell with his t-shirt, but

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 6 of 17
4PPD 6.10, which provides procedures for suicide prevention

and intervention at the prison, requires that an inmate

7

succeeded only in breaking blood vessels in his eyes and giving

himself headaches.

On July 27, 2008, Gross asked two third shift officers for

help, as he was feeling suicidal again. Gross was then escorted

to the Medical Unit to be placed on suicide watch. Gross told

the nurse in medical that he was so depressed he was sleeping

most of the time, and wanted to die when he was awake.

On July 28, 2008, Mary Rose from MHU went to the suicide

tank and told Gross that she believed that his claim of

suicidality was a ploy to get himself released from SHU and to

get medication to feed his addiction. Rose further stated that

Gross should be returned to RTU for treatment. Rose told Gross

that she would meet with him again after he was no longer in SHU. 

Gross asked Rose to prescribe medication for his depression. 

Rose told Gross she would think about it.

Rose discharged Gross from suicide watch on July 28, 2008

and sent him back to SHU for twenty days. Although a three day

follow-up after an inmate is discharged from suicide watch is

required by NHSP Policy and Procedure Directive (“PPD”) 6.10,

none was ever done. Also contrary to PPD 6.10.4, Gross was not

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 7 of 17
discharged from precautionary or suicide watch are to be followed

up by MHU within 72 hours of discharge, and once a week for the

first month after discharge.

8

seen weekly by MHU for the one-month period after he left suicide

watch.

More than two weeks after he was discharged from suicide

watch, Gross received the medication Effexor for his depression. 

Gross took the medication twice and it nauseated him and caused

him to vomit. Gross sent an IRS to Dr. Fellows seeking a lower

dose of the medication, but received no reply. Gross stopped

taking the medication due to the side effects.

On August 10, 2008, Gross was seen by someone from MHU named

Dave who discussed RTU placement with him. Gross explained that

he had been waiting for months to return to RTU. 

On August 12, 2008, Brett Mooney, a medical nurse at the

prison, went to see Gross and opined that he should have been

placed on Wellbutrin, and noted in his file that Wellbutrin

should be prescribed. Gross got an appointment to see Mary Rose

on September 12, 2008.

On August 26, 2008, Gross left the SHU and went to the

Closed Custody Unit. Two days later, he met with Debby Green and

told her he felt like he was losing his mind, that he was

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 8 of 17
9

thinking about “cutting up,” and how he’d like to end the misery

of his life. Green reminded Gross that he was to see Rose on

September 12. Gross saw Green again on September 10, 2008, and

told her he would like to walk down his tier naked, slicing

himself up with a razor in order to relieve his stress. Green at

that time stated that she would “like to see [Gross] back on

meds.”

On September 12, 2008, Gross saw Rose as scheduled. Gross

told Rose he needed medication that did not make him feel more

suicidal than he already was. Gross also told Rose that he saw

shadows of people moving in his cell when no one was there. Rose

attributed Gross’ hallucinations to his past use of

hallucinogenic substances and told him not to look at the shadows

when they appeared. Gross asked Rose if there were a medication

available that would help him. Rose read Gross’ file and stated

that Mooney had suggested placing Gross on Wellbutrin, but that

she wouldn’t prescribe that medication because it is subject to

being abused by addicts. Rose agreed, however, to try Gross on a

medication called Mirazapine, and stated that the medication

should arrive on his unit within three days. After the passage

of several weeks without the medication, Gross finally received

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 9 of 17
10

his medication on October 3, 2008. When he started taking the

Mirazapine, however, Gross slept all day, was angry, anxious,

suicidal, and felt like crying. Gross stopped taking the

Mirazapine due to its side effects and advised Rose that he

needed a different medication. Rose answered Gross, telling him

that she would see him again on October 24, 2008. 

Gross wrote to Rose on October 9, 2008, chastising her for

letting him “rot” on his unit until October 24 without being

treated. Rose refused to see him before October 24.

On October 10, 2008, Gross “snapped” and began hacking at

his left wrist with a razor blade. Gross’ cellmate stopped him

from cutting himself and flagged down an officer. Officers

brought Gross to the medical unit where they taunted him, telling

him that next time he should do a better job and kill himself,

until the nurse on duty told them to stop. The nurse applied

butterfly strips and bandages to Gross’ wrist and placed him on

suicide watch for the weekend.

On the morning of October 13, 2008, Debby Green came to see

Gross and said that she felt that Gross should be treated with

Seroquel, Klonopin, and Wellbutrin. They discussed what Gross

was doing to stay busy and discussed stressors in his life. 

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 10 of 17
11

Green told Gross to stay busy until he saw Rose on October 24. 

Green then discharged Gross back to his unit. Green told Gross

to contact her if he needed to talk. 

Gross saw Green on October 19, 2008. They discussed what he

should say to Rose in order to try to obtain medication.

On October 23, 2008, Gross was charged with a disciplinary

infraction for self-mutilation for cutting his own rests. He was

found not guilty at the disciplinary hearing held on the matter.

On October 24, 2008, Gross had his appointment with Rose. 

Rose told him to stop cutting himself because it could kill him. 

Gross claims that Rose said she would prescribe Wellbutrin for

him, and that the medication would arrive within four days. 

Rose, however, never placed a prescription order or intention to

prescribe Wellbutrin in Gross’ file. 

On October 28 and 29, Gross sent IRS forms to Rose asking

why he was being denied medication that she had promised. On

October 30, 2008, when no medication had arrived for Gross, an

officer called the pharmacy and discovered that no medications

had been prescribed. Gross spoke with his Unit counselor, who

called Rose. Rose told the counselor that she did not order

medication for Gross. Rose responded in writing to Gross,

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 11 of 17
12

stating that, based on her clinical evaluation and assessment of

him, she did not feel that antidepressant medication was

indicated. 

Gross states that even after advising Dr. Fellows that he

was filing suit against Rose in this Court, he refused to provide

him with a different prescribing practitioner, and instead urged

Gross to work things out with Rose. Gross was readmitted to RTU

on November 24, 2008.

Discussion

The Eighth Amendment protects prison inmates from prison

officials acting with deliberate indifference to their serious

medical needs. See Farmer v. Brennan, 511 U.S. 825, 831 (1994). 

To assert a viable cause of action for inadequate medical care, a

prisoner must first state facts sufficient to allege that he has

not been provided with adequate care for a serious medical need. 

Id. at 831; Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Estelle,

429 U.S. at 106. The inmate must then allege that a responsible

prison official was aware of the need or of the facts from which

the need could be inferred, and still failed to provide

treatment. Estelle, 429 U.S. at 106. A serious medical need is

one that involves a substantial risk of serious harm if it is not

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 12 of 17
13

adequately treated. See Barrett v. Coplan, 292 F. Supp. 2d 281,

285 (D.N.H. 2003); Kosilek v. Maloney, 221 F. Supp. 2d 156, 180

(D. Mass. 2002) (citing Farmer, 511 U.S. at 835-47); see also

Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir.

1990) (defining a serious medical need as one “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.”) (internal citations

omitted). These protections apply to a prison’s administration

of medical care, including mental health care. See DesRosiers v.

Moran, 949 F.2d 15, 19 (1st Cir. 1991); Torraco v. Maloney, 923

F.2d 231, 234 (1st Cir. 1991) (recognizing deliberate

indifference to an inmate’s mental health needs violates the

Eighth Amendment). 

“[A]dequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

tailored to an inmate’s particular medical needs, and that are

based on medical considerations.” United States v. DeCologero,

821 F.2d 39, 42-43 (1st Cir. 1987). This does not mean that an

inmate is entitled to the care of his or her choice, simply that

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14

the care must meet minimal standards of adequacy. See Feeney v.

Corr. Med. Servs., Inc., 464 F.3d 158, 162 (1st Cir. 2006) (“When

a plaintiff’s allegations simply reflect a disagreement on the

appropriate course of treatment, such a dispute with an exercise

of professional judgment may present a colorable claim of

negligence, but it falls short of alleging a constitutional

violation.” (internal citations omitted)). 

Deliberate indifference may be found where the medical care

provided is “so clearly inadequate as to amount to a refusal to

provide essential care.” Torraco, 923 F.2d at 234. Constraints

inherent in a prison setting may affect the choice of care

provided, and may be relevant to whether or not prison officials

provided inadequate care with a deliberately indifferent mental

state. Wilson v. Seiter, 501 U.S. 294, 302 (1991). Allegations

that care provided is substandard, or may constitute malpractice

in the civil arena, are not necessarily sufficient to state an

Eighth Amendment claim for deliberate indifference to serious

mental health needs. See Feeney, 464 F.3d at 162; Torraco, 923

F.2d at 235 (care provided must have been so inadequate as to be

conscience-shocking).

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 14 of 17
15

 Here, Gross has stated that he does not feel that the care

provided to him has been adequate to resolve his need for

medication to treat his depression and anxiety. Gross’ complaint

makes clear, however, that approximately six weeks after his

incarceration began, he was placed into a residential treatment

program equipped to deal with his mental health needs on a daily

basis. Gross spent three months in the program, was discharged,

and, eleven months later, was readmitted to the program. In the

approximately twelve to thirteen months that Gross has been in

prison and not housed in the RTU, he has seen medical and mental

health professionals at least fifteen times regarding treatment

for his mental health needs beginning less than a month after

admission to the NHSP, and continuing at regular intervals until

he was returned to the RTU in November of 2008. In addition, MHU

providers have attempted to treat Gross with four different

antidepressant medications, none of which Gross liked taking. He

discontinued each of these medications voluntarily. Gross

contends that he was denied access to medication that would help

him, experienced long delays in receiving his medication, and was

often not seen by mental health workers with the frequency he

would like. These complaints, however, demonstrate a difference

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 15 of 17
16

of opinion between Gross and the MHU care providers, not

deliberate indifference. The facts offered by Gross demonstrate

that he received regular mental health care, including medication

and counseling, and that he was prevented from seriously harming

himself by placement on suicide watch. Further, Gross was

admitted, and then readmitted, to the RTU, a unit where

medication, therapy, and daily care for his mental health issues

is available to him. Accordingly, I cannot find that the

defendant here, or any official at the NHSP or MHU, provided

Gross with constitutionally inadequate care. Accordingly, I

recommend dismissal of this action. 

Conclusion

As I find that Gross has failed to state any claim upon

which relief might be granted, I recommend that this action be

dismissed. See LR 4.3(d)(2)(A)(i). Further, Gross’ motion for

the appointment of counsel (document no. 15) is denied as moot,

subject to renewal should circumstances warrant in the future. 

Any objections to this Report and Recommendation must be filed

within ten (10) days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

Case 1:08-cv-00517-JL Document 18 Filed 03/18/09 Page 16 of 17
17

Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

/s/James R. Muirhead

James R. Muirhead

United States Magistrate Judge

Date: March 18, 2009

cc: Elijah E. Gross, pro se

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