United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE.
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.
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.
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, United States Magistrate Judge.
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.
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. ECF No. 99.
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. For reasons explained below, I recommend
that the motion be granted.
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
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.
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.
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 ...