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Callahan v. Wall

United States District Court, D. Rhode Island

August 11, 2017

ASHBEL T. WALL, II, ET AL, Defendants.



         Before the Court is Magistrate Judge Patricia A. Sullivan's Report and Recommendation (“R&R”), filed on July 20, 2017, recommending that the Court grant Defendants Rhode Island Department of Corrections (“RIDOC”) and Ashbel T. Wall's unopposed motion to dismiss (ECF No. 94). Plaintiff has not filed an objection to the R&R. After carefully reviewing Defendants' Motion to Dismiss and the R&R, this Court ACCEPTS the R&R (ECF No. 103) in its entirety and adopts the reasoning set forth therein. Defendants' Motion to Dismiss (ECF No. 94) is GRANTED and Defendants RIDOC and Wall shall be dismissed from the case.

         Also before the Court is Defendant Dr. Jennifer Clarke's Motion for Court Order for Plaintiff to Show Cause why his claim against her should not be dismissed for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure (“Motion for Order to Show Cause”) (ECF No. 102). Defendant Clarke argues that Plaintiff has not communicated with her since May 8, 2017. The Court notes that Plaintiff did not file an objection to Defendants RIDOC and Wall's Motion to Dismiss despite being granted an extension of time to respond and that Plaintiff subsequently failed to respond to the Court's June 1, 2017 Order to show cause why the Court should not proceed to rule on the Motion to Dismiss. Based on Plaintiff's failure to prosecute his claim against Defendant Clarke, Plaintiff's Motion for Court Order to Show Cause (ECF No. 102) is GRANTED. Plaintiff is instructed to show cause within thirty days from the date of this Order why his claim against Defendant Clarke should not be dismissed for failure to prosecute.

         IT IS SO ORDERED.


          PATRICIA A. SULLIVAN, United States Magistrate Judge.

         Before the Court for report and recommendation is the unopposed motion to dismiss the Amended Complaint of Defendants Rhode Island Department of Corrections (“RIDOC”) and its director, Ashbel T. Wall, sued both officially and in his individual capacity. ECF No. 94. Until recently Plaintiff has been incarcerated at the Rhode Island Adult Correctional Institutions (the “ACI”). In the Amended Complaint, he alleges that RIDOC and Director Wall, acting under color of state law, were so indifferent to the painful condition of his left foot pain as to violate the Eighth Amendment of the United States Constitution's prescription against cruel and unusual punishment in contravention of 42 U.S.C. § 1983. Plaintiff has also sued the former medical director of the ACI, Dr. Fred Vohr, and his replacement, Dr. Jennifer Clarke. Drs. Vohr and Clarke do not join in the motion to dismiss. However, recently, Dr. Clarke asked the Court to order Plaintiff to show cause why the claims against her, both individually and in her official capacity, should not be dismissed for failure to prosecute. ECF No. 102.

         The RIDOC/Wall motion to dismiss presently before the Court was filed on April 5, 2017, with Plaintiff's opposition due on April 19, 2017. In response, Plaintiff belatedly sought and received a 30-day extension to respond to the motion. ECF No. 98. The new deadline was set for May 22, 2017, the date requested by Plaintiff in his motion. ECF No. 98; Text Order of April 28, 2017. In the meantime, based on the notification of change of address Plaintiff submitted to the Court, it appears that Plaintiff was released from the ACI sometime prior to May 19, 2017.[1] ECF No. 99.

         Since sending in his change of address to the Court, Plaintiff has filed nothing in this matter. No response to the motion to dismiss was filed by the May 22 deadline, or thereafter. In light of Plaintiff's pro se status, on June 1, 2017, this Court entered an Order instructing him to show cause by June 29, 2017, as to why the Court should not proceed to rule on Defendants' motion in the absence of any opposition. ECF No. 100. This deadline also passed and nothing was filed. As of the date of this report and recommendation, Plaintiff has made no response to the Court.[2] For reasons explained below, I recommend that the motion be granted.

         I. Factual Background

         Prior to being incarcerated in 2012, Plaintiff injured his left foot. ECF No. 28-3. After he began serving his sentence, he was sent to Memorial Hospital on March 18, 2013, for surgery to correct three hammertoes on the left foot, a condition related to the pre-incarceration injury. ECF No. 1 ¶ 15. The gravamen of his claim is that post-surgery aftercare at the ACI was provided with deliberate indifference in that it was improperly handled by a nurse and was not attended to by the independent physician who had performed the surgery. Since these events in 2013, Plaintiff has continued to experience difficulty walking and pain in the left foot. Beginning in 2016, his complaints of foot pain led to examinations by RIDOC physicians and nurses and referrals to independent podiatrists. Based on these more recent events, the Amended Complaint seeks a mandatory injunction ordering RIDOC to arrange for further corrective surgery based on a 2016 medical opinion that such surgery would alleviate the pain.

         In addition to challenging the sufficiency of the medical treatment of his left foot provided by RIDOC and its medical directors under the Eighth Amendment, Plaintiff has also brought a medical malpractice claim arising from the first foot surgery and aftercare in 2013. These malpractice claims are asserted against Memorial Hospital, the independent physician who performed the surgery (Dr. Kuhar), and the ACI nurse who provided the aftercare. That case is pending in the Rhode Island Superior Court. ECF No. 85 ¶ 64.

         Since filing the federal case, Plaintiff has twice sought emergency medical attention through motions for preliminary injunction and temporary restraining order filed in this Court; both motions were denied by the District Court based on two reports and recommendations issued following hearings before this writer. Callahan v. Wall, C.A. No. 16-160 S, 2016 WL 6882837 (D.R.I. Nov. 22, 2016) (“Callahan I”); Callahan v. Wall, C.A. No. 16-160 S, 2017 WL 1365989 (D.R.I. April 12, 2017) (“Callahan II”). The undisputed evidence developed in connection with these motions established that Plaintiff had frequent interactions with medical personnel at RIDOC and that RIDOC arranged for examinations of Plaintiff's left foot by at least three independent podiatrists, Dr. Clyde Fish, Dr. Moniz, and Dr. Jordan Dehaven. While no report was submitted by either party from Dr. Moniz, it was also undisputed that the other two podiatrists gave divergent opinions regarding what treatment was necessary or advisable; importantly, neither gave a definitive opinion that immediate surgery was necessary or prescribed. Thus, Dr. Fish opined that “[p]atient is in need of surgical correction in the future, ” and noted that, while a second surgery would not correct all Plaintiff's foot problems, it might alleviate some of his pain and could be done on his release. By contrast, Dr. DeHaven noted that surgery would be risky and was not recommended. Callahan II, at *1.

         Based on this evidence, the Court twice held that Plaintiff was unlikely to succeed on the merits of his Eighth Amendment claim because he would be unable to show that his medical treatment at the ACI was “so inadequate as to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind.” ECF No. 50 at 4; see Kosilek v. Spencer, 774 F.3d 63, 90 (1st Cir. 2014) (“Eighth Amendment is not violated when prison officials cho[o]se one of two alternatives - both of which are reasonably ...

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