UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Mark Mandeville

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

Opinion No 2006 DNH 130

Merrimack County Department

of Corrections, et al.

O R D E R

Mark Mandeville brings an action pursuant to 42 U.S.C. §

1983, alleging that his constitutional rights were violated while

he was a pretrial detainee at the Merrimack County House of

Corrections (“MDOC”). Included in his complaint is a claim

against Dr. James Trice in which Mandeville alleges that Dr.

Trice’s failure to monitor his bone marrow loss after prescribing

a medication associated with that side effect constituted

deliberate indifference to his serious medical need in violation

of the Eighth Amendment. Dr. Trice moves for summary judgment on

the ground that he is not subject to liability under § 1983

because he is not a state actor. Mandeville, who is represented

by counsel, did not respond to Dr. Trice’s motion.

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

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

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

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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. 

Under the local rules in this district, properly supported

facts presented in a motion for summary judgment are deemed to be

admitted if they are not opposed by the adverse party. LR

7.2(b)(2). That is the case here. An unopposed motion for

summary judgment can only be granted, however, if the moving

party is entitled to judgment on the merits of the motion, viewed

in light of Rule 56. See Carmona v. Toledo, 215 F.3d 124, 134

n.9 (1st Cir. 2000).

Discussion

Dr. Trice is a physician in private practice in Concord, New

Hampshire. He accepts referrals from the MDOC for medical

services in rheumatology. Dr. Trice is not under contract with

the MDOC, but he treats inmates who are referred to him in his

private office or at Concord Hospital. MDOC pays Dr. Trice for

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services to inmates who it refers to him. Alternatively, under

the MDOC regulations, inmates have the option of treating with

physicians of their own choice at their own expense.

Mandeville was referred to Dr. Trice by MDOC. Dr. Trice

treated Mandeville in his office on three occasions between May

and August of 2002 and saw Mandeville at Concord Hospital on one

occasion during that time period. Dr. Trice billed for the

services he provided and was paid by MDOC.

Dr. Trice contends that he is entitled to summary judgment

because he was not a state actor when he provided medical

services to Mandeville. “Section 1983 ‘provides a remedy for

deprivations of rights secured by the Constitution and laws of

the United States when that deprivation takes place “under color

of any statute, ordinance, regulation, custom, or usage, of any

State . . . .”’” Estades-Negroni v. CPC Hosp. San Juan

Capestrano, 412 F.3d 1, 4 (1st Cir. 2005) (quoting Lugar v.

Edmonson Oil Co., 457 U.S. 922, 924 (1982) quoting § 1983). 

Therefore, a plaintiff may maintain a § 1983 claim only against a

person who deprived him of a federal constitutional or statutory

right while acting under color of state law. Estades-Negroni,

412 F.3d at 4. Only rarely will private parties be deemed to be

state actors. Id.

The First Circuit generally has used three tests for

determining whether a private party engaged in state action for

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purposes of liability under § 1983. Id. at 4-5. In the

particular circumstances of claims arising from medical services

provided by a private physician to a prisoner, the Supreme Court

focused on “the relationship among the State, the physician, and

the prisoner” to determine whether the physician acted under

color of state law. West v. Atkins, 487 U.S. 42, 56 (1988). Dr.

Trice contends that the circumstances of his treatment of

Mandeville do not satisfy the requirements for state action. 

The First Circuit has not directly addressed the nature of

the relationship under West that would be necessary to find state

action. Other courts disagree as to whether a private physician

who treats a prisoner must be under contract with the prison to

be deemed to be a state actor for purposes of § 1983. Compare

Conner v. Donnelly, 42 F.3d 220, 225 (4th Cir. 1994) (“We believe

that the Supreme Court’s analysis [in West] applies also to

private physicians who treat state prisoners without the benefit

of a contract . . . the state authorizes the physician to provide

medical care to the prisoner, and the prisoner has no choice but

to accept the treatment offered by the physician.”) with Sykes v.

McPhillips, 412 F. Supp. 2d 197 (N.D.N.Y. 2006) (finding no state

action where private physician was not under contract and treated

prisoner in hospital outside of prison). Although the

circumstances of this case might fit within the Fourth Circuit’s

reasoning in Conner, the First Circuit has suggested that it

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would require a contractual relationship to justify a finding of

state action. Estades-Negroni, 412 F.3d at 7. In addition, the

court suggested that treatment outside a prison facility when the

prisoner was free to see a physician of his own choosing would

not support a finding of state action. Id. at n.15.

Therefore, based on the record presented here and the legal

grounds presented by Dr. Trice in favor of his position as a

private rather than a state actor, Dr. Trice is entitled to

summary judgment.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 50) is granted.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 15, 2006

cc: W. Kirk Abbott, Jr., Esquire

Charles P. Bauer, Esquire

John A. Curran, Esquire

Lisa Lee, Esquire

Michael J. Sheehan, Esquire

Ralph Suozzo, Esquire

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