# ADAMS v. WELLPATH OF MAINE

> District Court, D. Maine · July 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10211063

## Case

- **Court:** District Court, D. Maine
- **Decided:** July 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10211063

## How later opinions describe it (automated extraction)

- stating that deliberate indifference “requires evidence that the absence or inadequacy of treatment is intentional”
- recognizing that the focus of the deliberate indifference analysis “is on what the jailers knew and what they did in response”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

JON ROBERT ADAMS, )
)
Plaintiff )
)
v. ) 2:20-cv-00424-NT
)
WELLPATH OF MAINE, et al., )
)
Defendants )

RECOMMENDED DECISION ON DEFENDANTS’
MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

Plaintiff alleges that Defendants Wellpath LLC,1 Wendy Riebe, Yvonne Peabbles,
and Gina Dasilva provided him with inadequate medical care while he was incarcerated at
the Maine State Prison. (Amended Complaint, ECF No. 28.) Plaintiff asserts Defendants
acted with deliberate indifference in violation of the Eighth Amendment.2
Defendants have moved for summary judgment based on Plaintiff’s failure to
exhaust the available administrative remedies, and, alternatively, to dismiss one of
Plaintiff’s claims for failure to state enough facts to support the claim. (Motion, ECF No.
61.)

1 In his amended complaint, Plaintiff identifies Defendant Wellpath as Wellpath of Maine. In the motion
to dismiss and for summary judgment, Defendants refer to Defendant Wellpath as Wellpath LLC.

2 After Defendants filed their motion, Plaintiff voluntarily moved to dismiss Defendant Freda Estey.
(Motion, ECF No. 73.) The Court granted Plaintiff’s motion. (Order, ECF No. 74.)
Following a review of the record and after consideration of the parties’ arguments,
I recommend the Court grant Defendants’ motion for summary judgment as to two of
Plaintiff’s claims and grant the motion to dismiss Plaintiff’s other claim.

I. MOTION FOR SUMMARY JUDGMENT
Plaintiff alleges Defendants acted with deliberate indifference to his medical needs
in (1) delaying emergency medical treatment for a serious infection, (2) denying physical
therapy following Plaintiff’s recovery from the infection, and (3) delaying Plaintiff’s hip-
replacement surgery. (Am. Compl. ¶¶ 91-93.) Defendants move for summary judgment

based on Plaintiff’s failure to satisfy the exhaustion requirement of the Prison Litigation
Reform Act (PLRA). See 42 U.S.C. § 1997e. (Motion at 12-20.)
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).

A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the non-
movant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of the plaintiff’s claims, a trial-worthy controversy exists, and summary
judgment must be denied as to any supported claim. Id. (“The district court’s role is
limited to assessing whether there exists evidence such that a reasonable jury could return

a verdict for the nonmoving party.” (internal quotation marks omitted)). Unsupported
claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
B. Factual Background
1. Plaintiff’s Medical History3
On August 1, 2019, Plaintiff, an inmate at the Maine Correctional Center (MCC),

was injured when he jumped from a second-floor tier at MCC to the concrete floor below.
(Am. Compl. ¶ 15.) Plaintiff was transported to a hospital where he underwent surgery to
his right hip and femur, which included the insertion of metal screws, rods and a plate. (Id.
¶¶ 16-17.) Upon his discharge from the hospital, Plaintiff resided in the Maine State Prison
infirmary until December 17, 2019. (Id. ¶¶ 18-19.) He then returned to MCC. (Id. ¶ 19.)

On August 2, 2020, Plaintiff developed pain in and around his right hip and leg. (Id.
¶ 20.) As the pain worsened, movement became difficult and Plaintiff was confined to his
bed. (Id. ¶ 21.) Plaintiff alleges that his requests to be taken to the hospital were denied
by “medical officials,” who merely took his vital signs and advised him to continue taking
Tylenol and Naproxen. (Id. ¶¶ 23-24.) Defendants Peabbles and Dasilva, nurse

practitioners with Defendant Wellpath LLC, responded to Plaintiff’s requests. (Id. ¶ 27.)

3 This section of the factual background is drawn from Plaintiff’s amended complaint. For purposes of
evaluating Defendant’s motion to dismiss, discussed below, these factual allegations are deemed true.
McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017).
When Plaintiff again requested to be taken to the hospital, Defendants Peabbles and
Dasilva told him they would authorize a medical order to have his meals delivered to his
cell, and they advised him to keep taking Tylenol and Naproxen. (Id.) He told them the

medications were not helping. (Id.) Defendant Peabbles said that she would arrange for
an order for Tramidol. (Id.)
On August 8, 2020, Plaintiff was placed in a wheelchair and transported to the
prison’s medical department, where he was seen by Defendants Peabbles, Dasilva and
Riebe. (Id. ¶¶ 28-29.) He was then transported by ambulance to a hospital, where he was

diagnosed with a methicillin-resistant staphylococcus aureus (MRSA) infection
surrounding the metal that previously had been surgically inserted into his right hip and
femur. (Id. ¶ 33.) The infection had entered Plaintiff’s bloodstream. (Id. ¶¶ 31, 33, 35.)
Plaintiff was admitted to the hospital and on August 9, surgeons removed the metal in
Plaintiff’s right hip and femur and drained the infection. (Id. ¶ 37.) On August 12, a

peripherally inserted central catheter (PICC line) was inserted in Plaintiff’s right arm to
deliver antibiotics. (Id. ¶ 41.) Plaintiff was then discharged from the hospital and
transported to the Maine State Prison infirmary. (Id. ¶ 42.) Six weeks later, the PICC line
was removed, and Plaintiff received oral antibiotics for six weeks. (Id. ¶ 44.) Plaintiff was
discharged from the infirmary on September 23, 2020 and transported to the MCC. (Id. ¶

46.)
On that same day, during a follow-up appointment, Plaintiff’s orthopedic surgeon
prescribed physical therapy for Plaintiff’s right hip. (Id. ¶ 47.) Upon returning to the MCC,
Plaintiff gave the prescription for physical therapy to the intake nurse. (Id. ¶ 51.) Although
Plaintiff repeatedly asked medical personnel to schedule his physical therapy, physical
therapy was not scheduled before Plaintiff commenced this action on November 12, 2020.
(Id. ¶¶ 52-54.)4

Plaintiff informed Defendants Peabbles and Dasilva that his pain was increasing and
that his pain medication was ineffective. (Id. ¶¶ 55, 58.) Defendant Dasilva and others
told Plaintiff that a physical therapy appointment would be scheduled soon. (Id. ¶¶ 55, 61.)
On October 6, 2020, Wellpath personnel informed Plaintiff that a referral for physical
therapy was made, but scheduling could take a week or two because of the pandemic. (Id.

¶ 66.) When Defendant Riebe met with Plaintiff on October 14, 2020, she informed him
that his blood-levels needed monitoring before his physical therapy would be scheduled.
(Id. ¶ 68.) Plaintiff asserts that Defendant Riebe stated that Plaintiff was in custody and
“it’s what we say that matters.” (Id.) He contends that she also told him if he walked
outside in the recreation yard he would not need physical therapy. (Id.)

2. Plaintiff’s Grievance Filings
Maine’s Department of Corrections (MDOC) provides an administrative grievance
procedure as required under Maine law, 34-A M.R.S. § 1402(5). There is a general
grievance procedure and a medical complaint grievance procedure; the procedures have
similar provisions and require the use of the same grievance form. (Defendants’ Statement

of Material Facts (DSMF) ¶ 8, ECF No. 62.)5

4 Plaintiff began physical therapy on December 1, 2020. (See Withdrawal of Motion for Preliminary
Injunction/Temporary Restraining Order, ECF No. 17.)

5 Plaintiff admits in part and denies in part this factual assertion, but he does not specify the basis for his
denial. (Plaintiff’s Statement of Material Fact (PSMF) ¶ 8, ECF No. 70.) Because Plaintiff has failed to
Plaintiff was provided with a copy of the Prisoner Handbook upon his admission to
MCC. (DSMF ¶ 5.) The Prisoner Handbook typically includes the “Medical and Mental
Health Care Policy” for prisoner’s medical-related grievances. (See DSMF ¶ 6.) Plaintiff,

however, asserts his copy of the Prisoner Handbook did not include the policy. (PSMF ¶
6.)
On October 5, 2020, Plaintiff filed a grievance with Defendant Riebe. Plaintiff
wrote:
On 9-23-20, I returned back here to MCC from the MSP Infirmary. On this
date, before arriving back to MCC, I had a 12:30 PM follow-up Doctors
Appointment at my Orthopedic Surgeons Office in Portland. At this
appointment, my Orthopedic Surgeon ordered me to weekly physical therapy
and sent me out with a prescription for physical therapy. When I arrived
back to MCC, RN Chrissy did my intake. I turned over my doctor’s
paperwork including the prescription paperwork to Chrissy at her request.
On Monday 9-28-20, I had an appointment here with Gina the Medical
Provider. When I asked Gina about me starting physical therapy as ordered
by my Orthopedic Surgeon she told me that Medical Provider Yvonne
approved it. Then on Friday, 10-3-20, during a sick call appointment I asked
again about starting physical therapy. Crystal Carrier told me that I was
scheduled to go for my first session “this week” but for security reasons, she
couldn’t tell me when. Nurse Frieda does all the scheduling for outside
appointments. I’ve seen Frieda several times and asked her if I’m scheduled
to go [to] my physical therapy. Each time Frieda has told me that she’s “seen
nothing,” “knows nothing about my physical therapy,” and continues to tell
me each time that “she’ll look into it,” but apparently does not bother to look
into this.

(Exhibit to Opposition to Motion, ECF No. 65-1, PageID # 521).
Although the parties disagree on the details, some effort was made to resolve
Plaintiff’s grievance informally. (DSMF ¶¶ 26-27; PSMF ¶¶ 26-27.) Defendant Riebe met

properly support his denial, the Court considers this statement of fact to be undisputed for purposes of this
motion. Fed. R. Civ. P. 56(e)(2). Moreover, the fact is self-evident from a review of the text of the policies.
with Plaintiff and informed him that she had concerns about his recent bloodwork and that,
as a result, staff needed to monitor his blood-levels prior to his attending physical therapy.
(DSMF ¶ 26.) Defendant Riebe believed the efforts were successful in resolving Plaintiff’s

complaint. (DSMF ¶ 28.)6 Defendant Riebe completed the grievance form and sent it to
Plaintiff via the prison mail system. (DSMF ¶ 29.) Plaintiff contends that he never
received the completed form. (PSMF ¶ 29.) Defendant Riebe did not keep a copy of the
completed form. (DSMF ¶ 29.)
On October 14, 2020, Susan Carr, Deputy Warden of Programs at MCC, received

through the prison mail system a grievance from Plaintiff, which grievance was dated
October 12, 2020. Plaintiff wrote:
I’m filing this FORMAL Complaint against the facility’s Contracted Medical
“Health Service Administrator” Wendy Riebe for her failure to Adhere to
MDOC Policy [and] Procedure of the Prisoner Grievance Process.
Specifically “Procedure B: # 4.” On 10-5-20, I Completed and Submitted a
Grievance to Wendy regarding Medical Officials failing to follow the
Written Prescription order from my Outside Orthopedic Surgeon for me to
have Physical Therapy because Physical Therapy is Very Crucial for my
Physical Recovery. Wendy is the Highest level that Oversees Medical
Officials and Medical Grievances are Supposed to be Sent to her. Pursuant
to MDOC Policy of the Prisoner Grievance Process, Procedure B # 4 states
that “The Supervisor or designee shall return to the Prisoner the original form
with the date of return noted, NO LATER THAN WITHIN FIVE (5) DAYS
of the Contact, Keeping a Copy for their files.” Wendy has failed to
informally resolve my Grievance, and has NOT returned it to me so that I
Can Continue to Utilize the Grievance Process. To date, it’s been (7) days.
WHEREFORE, based on the following, this is being forwarded to the
facility’s Dep. Warden that Oversees WELLPATH Medical and its Officials.

6 Plaintiff denies that Defendant Riebe believed there had been a resolution. (PSMF ¶ 28.) Plaintiff,
however, has presented no factual basis for his denial and, therefore, the Court considers the fact to be
undisputed for purposes of this motion. Fed. R. Civ. P. 56(e)(2).
(DSMF ¶ 30; Declaration of Susan Carr (Carr Decl.) ¶ 13, ECF No. 41; Exhibit B to Carr
Decl., ECF No. 41-2, PageID # 272.)7 Deputy Warden Carr subsequently met with
Defendant Riebe to discuss the matter (DSMF ¶¶ 33-35.) On October 14, 2020, Deputy

Warden Carr completed the informal resolution portion of the October 12, 2020 grievance
form, checking the box “Complaint Not Resolved” and wrote, “I made contact with Wendy
R[ie]be today. She had met with you and your mother was on the phone. She also said
that your blood work needed to be monitored prior to having physical therapy.” (DSMF ¶
37.) Deputy Warden Carr met with Plaintiff and Defendant Riebe on October 20, 2020

after Deputy Warden Carr had received a second, incomplete grievance from Plaintiff
regarding Defendant Riebe. (DSMF ¶¶ 38-40.)
The Grievance Review Officer (GRO) received a grievance from Plaintiff on
October 20, 2020. (DSMF ¶ 43.) The grievance form was the same form Plaintiff had
previously submitted to Deputy Warden Carr, which had her signatures and description of

the actions she had taken to resolve Plaintiff’s complaint. (Id.) The GRO stamped the
form with the date it was received, and noted the grievance’s log number, 2020-MCC-148.
(DSMF ¶ 44.) The GRO also entered the log number into the MDOC grievance tracking
system. (Id.)
The GRO informed Plaintiff that his grievance had been received and was under

investigation. (DSMF ¶ 45.) The GRO also noted that the investigation would be complete

7 Plaintiff denies this factual allegation with no factual basis. The Court considers the statement to be
undisputed for purposes of this motion. Plaintiff also included a copy of the grievance form he had
previously submitted to Defendant Riebe, as well as a cover letter to Deputy Warden Carr. (Carr Decl. ¶
13 & Ex. B, PageID # 273-74.)
and a decision sent to Plaintiff by November 20, 2020, unless an extension of time was
necessary. (Id.)
On October 22, 2020, the GRO denied Plaintiff’s grievance and reported the

following to Plaintiff:
I reached out to the Department’s Health Service Coordinator Holly
Howieson to review your Medical case. Holly Responded that you were seen
by the Provider here at MCC on 9/28/20, 10/9/20, 10/14/20, and 10/15/20.
On 10/20/2020 you were transported out of MCC to the Orthopedic Doctor.
Your Physical Therapy needs will come out of that Orthopedic appointment.
MCC medical is waiting to hear back from [the] Orthopedic team as to what
direction to go for your physical therapy.

With all the dates that you have seen the MCC provider and being sent out
to see the specialist it is evident that MCC medical is taking care of your
medical needs.

(DSMF ¶ 46.) The GRO included an appeal form and an envelope pre-printed with the
GRO’s address with the written denial. (DSMF ¶ 47.)
On October 23, 2020, the GRO received a letter from Plaintiff, in which Plaintiff
wrote:
At your request, after we spoke, here’s a copy of the grievance I sent to
Wendy on 10/5/20, that she still has failed to return to me. She still needs to
Follow Policy and return the grievance to me so I can continue to utilize the
grievance process if I choose to and she’s Failed intentionally to do this – in
which sabotages and interferes with my ability to properly utilize the
grievance process[.] Please Add this to the case.

(DSMF ¶ 48; Exhibit B to Declaration of Shawn Emerson (Emerson Decl.), ECF No. 42-
7, PageID # 309.) Plaintiff included a copy of the October 5, 2020 grievance form and a
copy of the envelope addressed to Defendant Riebe. (Emerson Decl., Ex. B, PageID # 310-
311.)
On October 25, 2020, Plaintiff appealed from the GRO’s denial of grievance 2020-
MCC-148, which was received by the GRO on November 2, 2020. (DSMF ¶ 49.) Plaintiff
explained the reasons for his appeal:

The original Grievance Was regarding Wellpath Medical Health Service
Administrator Wendy Riebe’s failure to Adhere to the MDOC Prisoner
Grievance Policy. My Complaint Was Wendy’s Failure to return back to me
my Grievance Pursuant to Procedure B # 4. To date, Wendy has still failed
to return my Grievance to me. Her failure to return my Grievance to me
Prevents me from properly, effectively utilizing the Prisoner Grievance
Process to go to the next level with that Grievance. Had Wendy forwarded
that back to me, Per Policy, I Could have forwarded it to the GRO for his
review. This Response from the GRO fails to mention Anything regarding
Wendy’s failure to follow the Grievance Policy Which Was my initial
Complaint. Why? Requesting level 2 appeal if this is denied. Also, Contrary
to the GRO’s response, it’s stated that “My Physical Therapy needs Will
Come out of the 10/20/20 Orthopedic Appt.” My Orthopedic Ordered my
Physical therapy on 9/23/20 (see attached Order Copy).

(DSMF ¶ 50.)
Plaintiff attached the “Physical Therapy Request” he received from his orthopedic
providers to his appeal form. (DSMF ¶ 51; Exhibit H to Emerson Decl., ECF No. 42-8,
PageID # 313.) The GRO logged and submitted the appeal, along with the all the
documentation related to the grievance, to the Chief Administrative Officer (CAO) of
MCC, Warden Scott Landry. (DSMF ¶¶ 52-53.) Glean Brown, Senior Deputy Warden of
Security at MCC, who served as the Warden’s designee in responding to Plaintiff’s
grievance, prepared the Warden’s response. (DSMF ¶ ¶55, 57.) The response stated:
I’ve received your grievance relaying that you did not receive a documented
answer to your original complaint from HSA Wendy Riebe. Grievance
Review Cpt. Emerson contacted Riebe for her response. Riebe relayed she
had a meeting with you concerning your complaint, and thought you and her
had come to a resolution. I contacted DW Sue Carr who had attended a
different meeting between you and HSA Riebe. During that meeting your
mother was a part of, via telephone. It does appear, that [HSA] Riebe and
DW Carr met with you in good faith, in an attempt to resolve your issue.

As for you alleging you did not receive your original grievance form back
from HSA Riebe; I have no way of proving that to be true; therefore, your
appeal is denied.

(ECF No. 42-9.) Deputy Warden Brown brought the response to the GRO. (Declaration
of Glean Brown ¶ 7, ECF No. 40.) The GRO wrote the grievance number on the printed
response (2020-MCC-148) and the date on which he believed Deputy Warden Brown had
prepared the response (November 13, 2020). (Emerson Decl. ¶ 27.)
Plaintiff underwent hip-replacement surgery and was transported to the prison
infirmary on November 16, 2020. (Affidavit of Jon Adams (Adams Aff.) ¶ 4, ECF No. 70-
1.) On the same day, the GRO placed Deputy Warden Brown’s response to Plaintiff’s
second-level appeal in an envelope addressed to Plaintiff along with another appeal form
and a pre-addressed envelope for submitting an appeal to the GRO. (Emerson Decl. ¶ 29.)
Deputy Brown delivered the outer envelope containing the materials to the MCC employee
who handles mail and requested that she add postage and put it in the outgoing U.S. mail.
(Id.) When the GRO did not receive a third-level appeal from Plaintiff, the GRO logged
the grievance as “closed” on December 2, 2020. (Id. ¶ 31.)
Plaintiff asserts that he received the written response to his second-level appeal in
the second week of December, but that it included neither a date nor the grievance number.
(Adams Aff. ¶¶ 6, 12.) He also maintains that he did not receive the third-level appeal
form or the pre-addressed envelope. (Id. ¶ 6.) Plaintiff contends he would have filed the

appeal if he had received the appeal form. (Id. ¶¶ 9-10; see DSMF ¶¶ 60-61.)
C. Discussion
The PLRA provides:
No action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.

42 U.S.C. § 1997e(a). “There is no question that exhaustion is mandatory under the PLRA
and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211
(2007). “‘Prison conditions’ under [§ 1997e(a)] include individual instances of medical
mis- or non-treatment.” Acosta v. United States Marshals Serv., 445 F.3d 509, 512 (1st
Cir. 2006).
The uncontroverted evidence establishes that Plaintiff did not file a grievance
regarding the alleged delay in receiving hip replacement surgery or the alleged delay in the
diagnosis and treatment of MRSA. Plaintiff, therefore, failed to exhaust the administrative
remedies as to claims based on the alleged delay in hip replacement surgery and as to the
diagnosis and treatment of MRSA. Accordingly, Defendants are entitled to summary
judgment as to the two claims.

Plaintiff did file a grievance regarding Defendants’ alleged failure to provide
physical therapy. Plaintiff initially filed an informal grievance with Defendant Riebe.
Plaintiff asserts that Defendant Riebe never returned the grievance form as required under
the medical complaint grievance policy, and, therefore, he was unable to address his initial
complaint through the formal grievance process. In other words, Plaintiff contends that
his claims are not barred by the PLRA because Defendant Riebe’s failure to comply with
the MDOC’s grievance policy rendered further remedies unavailable.
Section 1997e(a) requires “proper exhaustion” of a prisoner’s administrative

remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion demands
compliance with an agency’s deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on
the course of its proceedings.” Id. at 90-91. “Compliance with prison grievance procedures
... is all that is required ... to ‘properly exhaust.’” Jones, 549 U.S. at 218. “[I]t is the

prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Id.
A defendant may raise the PLRA’s exhaustion requirement as an affirmative
defense. Jones, 549 U.S. at 216; see also Ramos v. Patnaude, 640 F.3d 485, 488 (1st Cir.
2011) (“The Supreme Court made it plain … that exhaustion under § 1997e(a) is not a

jurisdictional condition, and has held it to be an affirmative defense.” (citing Jones, 549
U.S. at 212)). Because failure to exhaust administrative remedies is an affirmative defense
rather than a jurisdictional issue, initially, Defendants bear the burden of proof. Jones, 549
U.S. at 216. To satisfy that burden, Defendants must establish “that there was an available
administrative remedy, and that the prisoner did not exhaust that available remedy.” Albino

v. Baca, 747 F.3d 1162, 1172 (9th Cir.) (en banc), cert. denied sub nom., Scott v. Albino,
574 U.S. 968 (2014). Thereafter, Plaintiff must present evidence that demonstrates “that
there is something in his particular case that made the existing and generally available
administrative remedies effectively unavailable to him.” Id.
The Supreme Court has recognized “three kinds of circumstances in which an
administrative remedy, although officially on the books, is not capable of use to obtain
relief.” Ross v. Blake, 578 U.S. --, 136 S. Ct. 1850, 1859 (2016). “First, ... an

administrative procedure is unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates.” Id. (citing Booth, 532
U.S. at 736, 738). Second, “an administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use.” Id. Third, an otherwise available grievance

process is not available “when prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation.” Id. at
1860.
The Court, however, does not have to determine whether the administrative remedy
was unavailable based on Defendant Riebe’s alleged failure to respond to Plaintiff’s initial

grievance as to the physical therapy treatment.8 As explained below, because Plaintiff has
failed to assert an actionable claim related to the physical therapy treatment, dismissal of
that claim is appropriate.

8The issue would be whether the medical and general grievance policies, which provide if “the complaint
is not resolved for any reason, the prisoner must file a grievance form within the original fifteen (15) day
time limit in order to utilize the grievance process,” were sufficient to place Plaintiff on notice that despite
the lack of response, he was required to proceed to the next step of the grievance process. See, e.g., Maraglia
v. Maloney, 499 F. Supp. 2d 93, (D. Mass. 2007) (denying summary judgment to defendants where prison
regulations were “silent about what an inmate must do if the [grievance officer] does not respond to his
grievances ….”).
II. MOTION TO DISMISS
A. Motion to Dismiss Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of

“a claim for relief in any pleading” if that party believes that the pleading fails “to state a
claim upon which relief can be granted.” In its assessment of the motion, a court must
“assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable
inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 221 (D.
Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To

overcome the motion, a plaintiff must establish that his allegations raise a plausible basis
for a fact finder to conclude that the defendant is legally responsible for the claim at issue.
Id. The complaint may not consist entirely of “conclusory allegations that merely parrot
the relevant legal standard.” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir.
2013). Federal Rule of Civil Procedure 12(b)(6) “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A self-represented plaintiff is not exempt from this framework, but the court must
construe his complaint ‘liberally’ and hold it ‘to less stringent standards than formal
pleadings drafted by lawyers.’” Waterman v. White Interior Sols., No. 2:19-cv-00032-
JDL, 2019 WL 5764661, at *2 (D. Me. Nov. 5, 2019) (quoting Erickson v. Pardus, 551

U.S. 89, 94 (2007)).
B. Discussion
“Section 1983 provides a cause of action when an individual, acting under color of
state law, deprives a person of constitutional rights.” Saldivar v. Racine, 818 F.3d 14, 18
(1st Cir. 2016); see 42 U.S.C. §1983. To prevail on such a claim, “a plaintiff must show
that ‘the challenged conduct [is] attributable to a person acting under color of state law’
and that ‘the conduct must have worked a denial of rights secured by the Constitution or

by federal law.’” Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st Cir. 2013) (quoting
Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997)).
The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.”
U.S. Const. amend. VIII. From this prohibition, “courts have derived the principles that
govern the permissible conditions under which prisoners are held and that establish the

medical treatment those prisoners must be afforded.” Kosilek v. Spencer, 774 F.3d 63, 82
(1st Cir. 2014) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). “The Eighth
Amendment, applied to the states through the Fourteenth Amendment, protects
incarcerated people from state corrections officials’ ‘deliberate indifference to serious
medical needs.’” Zingg v. Groblewski, 907 F.3d 630, 634-35 (1st Cir. 2018) (quoting

Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 161-62 (1st Cir. 2006); see Perry v. Roy,
782 F.3d 73, 78 (1st Cir. 2015). To allege “a claim of deliberate indifference based on
inadequate or delayed medical care, ‘a plaintiff must satisfy both a subjective and objective
inquiry.’” Perry, 782 F.3d at 78 (quoting Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497
(1st Cir. 2011)).

First, to demonstrate a claim under the objective prong, a plaintiff “must show that
[]he has a serious medical need for which []he has received inadequate treatment.” Kosilek,
774 F.3d at 85. For a medical condition to be objectively “serious,” there must be “a
sufficiently substantial ‘risk of serious damage to [the inmate’s] future health.’” Farmer,
511 U.S. at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). This “requires
that the need be ‘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.’” Kosilek, 774 F.3d at 82 (quoting Gaudreault v. Municipality of Salem,
Mass., 923 F.2d 203, 208 (1st Cir. 1990)). However, this “does not impose upon prison
administrators a duty to provide care that is ideal, or of the prisoner’s choosing.” Id.
(citations omitted). “Rather, the Constitution proscribes care that is ‘so inadequate as to
shock the conscience.’” Id. at 83 (quoting Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir.

1991)).
Second, under the subjective prong, “a plaintiff must show ‘that prison officials
possessed a sufficiently culpable state of mind, namely one of deliberate indifference to an
inmate’s health or safety.’” Perry, 782 F.3d at 78 (quoting Leavitt, 645 F.3d at 497). Thus,
“even if medical care is so inadequate as to satisfy the objective prong, the Eighth

Amendment is not violated unless prison administrators also exhibit deliberate indifference
to the prisoner’s needs.” Kosilek, 774 F.3d at 83. “For purposes of this subjective prong,
deliberate indifference ‘defines a narrow band of conduct,’ and requires evidence that the
failure in treatment was purposeful.” Id. (citation omitted) (quoting Feeney, 464 F.3d at
162); see Perry, 782 F.3d at 79 (stating that deliberate indifference “requires evidence that

the absence or inadequacy of treatment is intentional”). A constitutional claim may arise
when “the treatment provided [was] so inadequate as ‘to constitute an unnecessary and
wanton infliction of pain or to be repugnant to the conscience of mankind.’” Leavitt, 645
F.3d at 497 (quoting Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). However, “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.” Feeney, 464 F.3d at

162 (alterations and quotation marks omitted). Moreover, “[p]rison officials ‘who actually
knew of a substantial risk to inmate health or safety may be found free from liability if they
responded reasonably to the risk, even if the harm ultimately was not averted.’” Giroux v.
Somerset County, 178 F.3d 28, 33 (1st Cir. 1999) (quoting Farmer, 511 U.S. 825 at 844);
see Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002) (recognizing that the focus

of the deliberate indifference analysis “is on what the jailers knew and what they did in
response”).
Plaintiff has alleged facts that would support a finding that he had a serious medical
condition for which physical therapy was prescribed. Plaintiff has thus satisfied the
objective prong of the deliberate indifference standard. See Kosilek, 774 F.3d at 82. To

satisfy the subjective prong of the deliberate indifference standard, Plaintiff’s allegations
must also support a finding that the alleged inadequate medical care was “purposeful.”
Kosilek, 774 F.3d at 83. Plaintiff was treated by medical staff with pain medication from
September 23, 2020 through the date of the original complaint, November 8, 2020, and
was seen by medical personnel, including Defendants Dasilva, Peabbles and Riebe, on

multiple occasions during that time.9 Where, as here, the record shows that Plaintiff was

9 For example, Plaintiff had appointments with Defendant Dasilva on September 28, 2020 and October 9,
2020 (at which time Defendant Dasilva increased his pain medication), and he met with Defendant Riebe
concerning his desire to receive physical therapy on October 14, 2020. (Am. Compl. ¶¶ 55, 58, 68.)
Plaintiff also had appointments with his outside medical provider on October 20, 2020. (Id. ¶ 80.)
“afforded continual medical care” and that “prison staff treated and evaluated him on each
visit,” Plaintiff has not shown that Defendants possessed the requisite mental state
necessary to prove deliberate indifference. Rhines v. Bledso, 388 Fed. App’x 225, 227 (3rd

Cir. 2010).
Moreover, Plaintiff was informed that the delay in scheduling physical therapy was
due in part to the Wellpath Defendants’ determination that Plaintiff’s blood-levels required
further monitoring. Although “‘[a] delay in treatment may constitute deliberate
indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate’s

pain,’” Murphy v. Corizon, No. 1:12-CV-00101-JAW, 2012 U.S. Dist. LEXIS 181538,
*24 (D. Me. Oct. 24, 2012) (quoting McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010)), in instances where a “plaintiff’s allegations simply reflect a disagreement on the
appropriate course of treatment, such a dispute with an exercise of professional judgment
. . . falls short of alleging a constitutional violation,” Feeney, 464 F.3d at 162 (alterations

and quotation marks omitted); see also Rhines, 388 Fed. App’x at 227 (one month delay in
receiving MRI for inmate’s knee injury did not rise to the level of deliberate indifference);
Griffin v. Betancourt, Civil Action No. 19-CV-4670, 2019 WL 5901497, at *4-5 (E.D. Pa.
Nov. 8, 2019) (allegation of at least five week delay in seeing neurologist did not support
plausible deliberate indifference claim).10

10 If Plaintiff’s allegations are construed to assert a claim against the individual defendants, Plaintiff has not
asserted a claim against Wellpath LLC. Wellpath LLC is a private contractor that provides medical services
at a state prison and, as such, is generally treated as a municipality for purposes of section 1983 claims.10
See Wall v. Dion, 257 F. Supp. 2d 316, 319-20 (D. Me. 2003); see also Witham v. Corizon, Inc., No. 2:12-
cv-00146-NT2012 2012 WL 5267657, at *7 & n.4 (D. Me. Sep. 17, 2012). “[A]lthough a municipality
may not be held liable under a theory of respondeat superior for an employee’s constitutional violation, it
may be held liable when ‘execution of [the municipality’s] policy or custom . . . inflicts the injury’ and is
III. CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendants’ motion
for summary judgment as to Plaintiff’s claims based on the alleged delay in the diagnosis

and treatment of MRSA and the alleged delay in the treatment of Plaintiff’s hip before and
through surgery. I also recommend the Court grant Defendants’ motion to dismiss and
dismiss Plaintiff’s claim based on the alleged delay in providing physical therapy services
to Plaintiff.
NOTICE

A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court's order.

/s/ John C. Nivison
U.S. Magistrate Judge

Dated this 20th day of July, 2021.

the ‘moving force’ behind the employee’s constitutional violation.” Saldivar v. Racine, 818 F.3d 14, 20
(1st Cir. 2016) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To establish liability,
courts “look at whether there was a ‘direct causal link’ between the policy and the violation, or if the policy
‘actually caused’ the violation.” Burrell v. Hampshire County, 307 F.3d 1, 10 (1st Cir. 2002) (quoting
Canton v. Harris, 489 U.S. 378, 385, 391 (1989)). Plaintiff has not alleged a custom or policy of Wellpath
LLC that was the “moving force,” Saldivar, 818 F.3d at 20, behind his alleged constitutional violation. As
such, Plaintiff is unable to show a “‘direct causal link’ between the policy and the violation.” Burrell, 307
F.3d at 10 (quoting Canton, 489 U.S. at 385). Plaintiff, therefore, has failed to plead facts to support a
plausible claim for relief against Wellpath LLC.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211063. Public record. Not legal advice.