Fitzgerald v. Menard ( 2017 )

Fitzgerald v. Menard, 409-7-16 Wncv (Teachout, J., Oct. 27, 2017)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 409-7-16 Wncv
ANTHONY W. FITZGERALD
Plaintiff
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
The State’s Motion for Summary Judgment
Plaintiff–Inmate Anthony Fitzgerald asserted in an administrative grievance and in his
complaint in this case that he has not been given “proper” mental health treatment during his
incarceration. He did not assert the specific deficiency in either or explain what he wants the
court to do about the deficiency other than, apparently, to order “proper treatment.” In the
administrative grievance process, he initially alleged that he was not being seen by treatment
providers. Among the repeated administrative responses to that allegation, however, were lists
of his many contacts with his treatment providers, to which he appears to have clarified that he
wants to be seen by treatment providers who will provide proper treatment. Attorney Patricia
Lancaster was appointed to represent Mr. Fitzgerald in this case, but she did not amend the
complaint to clarify Mr. Fitzgerald’s claim and has not otherwise explained it anywhere in the
record. Mr. Fitzgerald’s legal claim thus is exceedingly vague: he perceives some nonspecific
deficiency in the mental health treatment he has received.
The State has filed a summary judgment motion arguing generally that Mr. Fitzgerald is
properly diagnosed and receiving care for his diagnosed conditions. The motion is supported by
the affidavit of Eugene McCormick, the Regional Director of Mental Health and Behavioral
Health at the “managed care company that contracts with the State of Vermont . . . to provide
medical and mental health care to the inmates . . . housed in Vermont.” Affidavit of Eugene
McCormick ¶ 1. Mr. McCormick asserts that he is personally aware of Mr. Fitzgerald’s
circumstances, describes his diagnoses and care, and then asserts as follows: “In the community,
Mr. Fitzgerald would be treated with a combination of medication and therapy for his diagnoses.
This treatment is consistent with the treatment Mr. Fitzgerald has received while incarcerated.”
Id. ¶ 22.
In opposition to summary judgment, Mr. Fitzgerald argues that certain facts are in
dispute. He relies on his own affidavit, which addresses issues occurring after he filed this case.
Otherwise, he relies exclusively on the affidavit of Jonathan L. Weker, which substantially is a
report of an independent psychiatric evaluation undertaken for purposes of this case. He has not
articulated any more specifically than in his administrative grievance and complaint exactly what
his legal claim is—and what relief he seeks—other than generally pointing to the Weker
affidavit.
The record is abundantly clear that Mr. Fitzgerald suffers from quite serious mental
health issues. The court is unable to infer on the present record, however, that he has any viable
legal claim about which there is some genuine triable issue that should survive summary
judgment based purely on the Weker affidavit. Dr. Weker diagnoses Mr. Fitzgerald consistently
with those diagnoses reported in the McCormick affidavit. The treatment approaches
recommended by Dr. Weker appear to be generally consistent with those undertaken by Mr.
Fitzgerald’s DOC treatment providers as well. Dr. Weker also is critical in places of certain
conclusions he draws from those records he reviewed about the treatment provided to Mr.
Fitzgerald over the years of his incarceration.
Mr. Fitzgerald appears to argue that there are two principal factual disputes that foreclose
summary judgment: that his most important illness, PTSD, has not been diagnosed while
incarcerated; and that he has not been seen by a psychiatric physician (as opposed to psychiatric
nurse practitioners) enough. Mr. McCormick clearly explains that PTSD is one of Mr.
McCormick’s diagnoses. Dr. Weker asserts that a treatment plan he found using an “Adobe
Acrobat Reader search function” did not list PTSD as a diagnosis. Weker Affidavit 6. He infers
that it is not a current diagnosis though he identified another treatment plan in which he reports
that it clearly is. The State’s response to this “dispute” is to agree with Mr. Fitzgerald that he has
PTSD—as earlier explained in the McCormick affidavit—and to emphasize that he is being
treated for it.
Dr. Weker also opines that Mr. Fitzgerald presents complex mental health issues, and
since he has been seen principally by psychiatric nurse practitioners, “his medication treatment
could benefit from more interdisciplinary consultation.” Weker Affidavit 6. The fact that a
mentally ill person “could benefit” from a different treatment approach is not sufficient to prove
that he is not receiving “proper” care.
Mr. Fitzgerald appears to seek only injunctive relief in this case, although he has nowhere
explained what injunctive relief he seeks. He does not seek damages. His claim presumably,
therefore, is not medical malpractice. He also never filed a certificate of merit. 12 V.S.A. §
1042. He presumably does not seek relief in the nature of mandamus pursuant to Rule 75
because there is no indication in the record of any material ministerial duty at issue as opposed to
the professional judgment of healthcare providers. See Ahern v. Mackey, 2007 VT 27, ¶ 8, 181
Vt. 599 (“The purpose of mandamus is generally to require a public official or body to perform a
simple ministerial duty imposed by law.”); see also, e.g., Scott v. Goord, 819 N.Y.S.2d 618, 619
(N.Y. App. Div. 2006) (ruling that “because the [treatment] determination [for inmate] is based
upon respondent Facility Health Services Director’s professional judgment as a physician,
mandamus will not lie to compel him to act otherwise”).
If his claim is deliberate indifference to his serious health needs in violation of the Eighth
Amendment, the Weker affidavit is insufficient to demonstrate a material dispute of fact.
Deliberate indifference means that “the [prison] official knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of facts from which the inference
2
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Neither the Weker affidavit nor the record generally reveals any meaningful support for a
finding of deliberate indifference. Rather, the record shows that Mr. Fitzgerald’s mental health
needs are substantial and he has been receiving substantial treatment while incarcerated. At
most, the Weker affidavit shows that Dr. Weker thinks there are some potential deficiencies in
that treatment historically or ways that Mr. Fitzgerald’s treatment might be improved going
forward. But there is no evidence that Mr. Fitzgerald’s treatment providers or other DOC
personnel know that they should be doing something different than they are and are simply
disregarding that to Mr. Fitzgerald’s detriment. Similarly, there is no evidence in the record that
Mr. Fitzgerald’s treatment is egregious in some way that should be obvious to his treatment
providers or other DOC personnel.
Dr. Weker’s affidavit is largely dedicated to diagnosing Mr. Fitzgerald and explaining
certain treatment recommendations. That is exactly what he was asked to do. See Weker
Affidavit 1 (“Patricia Lancaster, Esq., of Vermont Prisoners’ Rights, requested a psychiatric
examination in order to offer an opinion as to Mr. Fitzgerald’s psychiatric diagnosis and
treatment recommendation.”). That was his charge. Along the way, he offered some criticisms
of what he perceives about the care Mr. Fitzgerald has been receiving. He does not, however,
assert that his treatment falls short of what is medically necessary or is below professional
standards, nor does he spell out what Mr. Fitzgerald’s treatment should be to be “adequate.”
This would be necessary to support a viable legal claim apparent.
The State is obligated to provide adequate medical and mental health care to inmates. It
is constitutionally required to not be deliberately indifferent to inmates’ serious health needs. If
in the course of receiving that care, an inmate suffers medical malpractice, the inmate may seek
compensation for medical malpractice. A federal civil rights claim is available if deliberate
indifference occurs. The State is not, however, the guarantor of medical and mental health care
outcomes and it does not guarantee that those treatment providers it makes available to inmates
will perform their duties in the same way that another professional in the field might recommend.
For its part, the court can only resolve legal claims. It does not have some administrative
responsibility to supervise these treatment providers and tell them how better to perform their
professional obligations.
It is insufficient to oppose summary judgment by merely pointing to a fact about which
there is some dispute. The facts that matter to summary judgment are those that are material to
the claim or defense at issue. V.R.C.P. 56(a), (c)(1)(A). The State’s motion demonstrates that
Mr. Fitzgerald’s diagnoses include PTSD, among others, and that he is receiving substantial
treatment for all his mental health conditions. Mr. Fitzgerald’s opposition does not demonstrate
any genuine dispute over facts material to the State’s showing, clearly identify his legal claim
and explain what in the record might support it, or even indicate what relief he seeks in this case.
3
ORDER
For the foregoing reasons, the State’s motion for summary judgment is granted.
Dated at Montpelier, Vermont this ____ day of October 2017.
_____________________________
Mary Miles Teachout
Superior Judge
4