Preview:

UNITED STATES DISTRICT COURT DISTRICT OF MAINE MELISSA D BOUCHER, ) ) Plaintiff ) ) v. ) Civ. No. 08-151-P-S ) HOPE LEBLANC, et al., ) ) Defendants )

RECOMMENDED DECISION ON MOTION FOR SUMMARY JUDGMENT Melissa Boucher has filed a pro se civil rights action complaining about inadequate medical care for an injury she sustained at the Maine Correctional Center. Before the court is a motion for summary judgment filed by the three defendants (Doc. No. 44). The matter is now ready for full consideration and I recommend that the Court grant the motion for summary judgment for the following reasons. DISCUSSION Boucher's Complaint Allegations In her complaint Boucher relates that in July 4, 2005, she was involved in a sack race at the Maine Correctional Center where she was an inmate and she fell and hurt her back. She was treated by Debra Smith, a nurse and a defendant in this action, for a pulled muscle. Over the next two months she put in numerous medical call slips. She alleges that Hope LeBlanc, a Physician Assistant and defendant, saw her, informed her she had a pulled muscle, and refused to treat her for anything else. Boucher could not walk, stand, or get up. Her roommate had to help her get dressed and undressed daily and several correction officers assisted her in getting around the facility.

The three defendants, Boucher alleges, kept insisting that she had a pulled muscle. The entire right side of her leg began to go numb and she was suffering incredible, unnecessary pain. Boucher kept complaining to medical staff that something was seriously wrong. She informed LeBlanc, Smith, and Tritch, that she was in so much pain and that she could not get around on her own yet they refused to treat her any further. Le Blanc said "what do you want us to do?" and Boucher asked her to please send her out for an MRI and she refused. This injury happened on July, 4, 2005, and Boucher maintains that she went without treatment until August 29, 2005. On August 30, 2005, she went to the hospital and explained her condition to the doctor on call. There was an MRI which showed that she had two herniated discs and that part of her spine was injured. She insists that if she had been treated promptly by the defendants after her injury her condition would not have gotten so bad. As it was, she had surgery to get her stable in order for her to be able to move on her own and she still needs to have a second surgery. Boucher seeks monetary compensation for her unnecessary physical and emotional suffering. Boucher did not complete the part of the form complaint that allows a plaintiff to sign under penalty of perjury. Summary Judgment Standard Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant[s are] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). I "draw the relevant facts from the summary judgment record and rehearse them in the light most flattering to" Boucher. Bergeron v. Cabral, 560 F.3d 1, 4 (1st Cir. 2009) (citing Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004 (quoting Federal Rule of Civil Procedure 56(c)). I draw all reasonable inferences in favor of Boucher, but where she bears the burden of proof, Boucher 2

"'must present definite, competent evidence' from which a reasonable jury could find in" her favor" United States v. Union Bank For Sav. & Inv. (Jordan), 487 F.3d 8, 17 (1st Cir. 2007) (quoting United States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir. 1992)). Boucher has not complied with District of Maine Local Rule 56. Subsection (c) of Local Rule 56 provides: A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation as required by this rule. Each such statement shall begin with the designation "Admitted," "Denied," or "Qualified" and, in the case of an admission, shall end with such designation. The opposing statement may contain in a separately titled section additional facts, each set forth in a separately numbered paragraph and supported by a record citation as required by subsection (f) of this rule. Dist. Me. Loc. R. 56(c).1 On July 22, 2009, I entered an order allowing a limited supplementation of the summary judgment record by Boucher, explaining: While this court does not as a rule excuse pro se plaintiffs from complying with District of Maine Local Rule 56, it does in certain cases approach summary judgment disputes involving an incarcerated pro se party with some leniency. See; Clarke v. Blais, 473 F.Supp.2d 124, 128 -30 (D. Me. 2007) (Hornby, J.); see also Demmons v. Tritch, 484 F.Supp.2d 177, 182 -83 (D. Me. 2007) (Woodcock, J.). Because I do not feel that I can decide this motion for summary judgment fairly on the record before me, I am giving Boucher the opportunity to supplement
1

With regards to the defendants' motions, this court, may not automatically grant a motion for summary judgment simply because the opposing party failed to comply with a local rule requiring a response within a certain number of days. Rather, the court must determine whether summary judgment is "appropriate," which means that it must assure itself that the moving party's submission shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Advisory Committee Note to Rule 56 ("Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented."). NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7 -8 (1st Cir. 2002).

3

her response to the limited extent of amending her "Statement of Disputed Material Facts" to provide cognizable record citations in support of her ten paragraphs. I note that not only does this court not have the exhibit cited by Boucher, the defendants have not filed the entire Boucher Deposition but they have filed the page cited in Paragraph 4 of Boucher's statement of facts. If Boucher seeks to rely on any other portion of her deposition in support of her facts she must file the cited portion(s) with the court. If Boucher seeks to rely on her own representations as to her experiences as record support for her statement of fact she must file an affidavit sworn under penalty of perjury. In fairness to the defendants, Boucher is not permitted to file any summary judgment supplementation beyond this amendment to her additional statement of facts. Specifically, I am not permitting Boucher to file an opposing statement of materials facts that admits, denies or qualifies defendants' original statements. I am giving her an opportunity to get her own record evidence in a cognizable form in order to allow me to make the assessment Clarke v. Blais, would require. (July 22, 2009, Order at 2-3) (emphasis added) (footnotes omitted). Boucher has provided supplementation which includes a "Statement of Disputed Material Facts" with some paragraphs that include record citations and which is notarized although not sworn under penalty of perjury. (Doc. No. 52-2.) The order cited above clearly cautioned Boucher that she must comply with the oath requirement. In that order I also pointed out to Boucher that, with respect to her complaint, she had not completed the section of the form complaint that allowed her to swear to the factual allegations under oath. (July 22, 2009, Order at 2 n.2.) Furthermore, I previously entered an order on Boucher's initial motion to proceed in forma pauperis requiring her to resubmit the application because she had only filed a single page and the trust account statement was not certified. Boucher complied by including an affidavit that was notarized with the notary's representation that Boucher had made oath to the truth of the forgoing affidavit. (Doc. No. 4 at 1.) In contrast, the "Statement of Disputed Material Facts" submitted by Boucher in response to my supplementation order simply includes the notary's signature with the notation that the statement was signed before him. (Doc. No. 52-2 at 3.) Given this history I must assume that Boucher's decision to not swear her statement of facts 4

under oath is as likely a conscious choice as a negligent shortcoming. Boucher has also submitted three exhibits: a sick call log and two admission/discharge records from the Maine Medical Center. Facts On July 4, 2005, while incarcerated at the Maine Correctional Center (MCC), Melissa Boucher fell. (SMF

Download MJK_08192009_2-08cv151_Boucher_v_LeBlanc_AFFIRMED_09222009.pdf

Maine Law