Lowe v. Menard ( 2019 )

Lowe v. Menard, 237-4-18 Wncv (Teachout, J., June 5, 2019)
[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. 237-4-18 Wncv
SCOTT LOWE
Plaintiff
v.
LISA MENARD, Commissioner,
Vermont Department of Corrections
Defendant
DECISION
Cross-Motions for Summary Judgment
Scott Lowe is an inmate in the custody of the Commissioner of the Department of
Corrections (DOC). He seeks Rule 75 review of the DOC’s decision to not give him a “bottom
bunk pass” guaranteeing him the ability to sleep on a bottom-level bunk. Mr. Lowe claims that
he needs to sleep on a bottom bunk due to “night terrors” that he suffers as a consequence of his
diagnosed, serious psychiatric illnesses, depression and post-traumatic stress disorder. The DOC
has filed a motion for summary judgment arguing that bed-height is immaterial to treatment for
night terrors, and that Mr. Lowe has failed to come forward with any expert testimony in support
of his preferred treatment, sleeping on a bottom bunk. Mr. Lowe has filed a cross-motion for
summary judgment arguing that the DOC’s failure to give him a bottom bunk pass violates the
Eighth Amendment.
There is no dispute that the DOC has offered Mr. Lowe treatment consistent with the
standard of care in the community for what he experiences as night terrors, episodes during sleep
that may include fear, screaming, and kicking. There also is no dispute that Mr. Lowe has
refused to accept the treatment offered by the DOC.
The DOC characterizes Mr. Lowe’s claim in this case as medical malpractice, arguing
that he refuses treatment within the standard of care in preference for the treatment of his
choice—sleeping on the bottom bunk—that will have no bearing on any psychiatric condition
causing night terrors. The DOC faults him for not coming forward with expert testimony
showing that sleeping on a bottom bunk treats night terrors. The DOC’s motion is denied
because it plainly mischaracterizes Mr. Lowe’s claim. Mr. Lowe expressly seeks to sleep on a
bottom bunk for safety reasons. He claims that his night terrors have caused him to fall out of
bed and are likely to do so in the future. He invokes his right to refuse the treatment offered by
the DOC and objects that the DOC will not accommodate his condition. See generally 1 Michael
B. Mushlin, Rights of Prisoners § 4:38 (5th ed.) (discussing prisoners right to refuse treatment).
Mr. Lowe’s Eighth Amendment claim also fails. Mr. Lowe cannot at once claim that the
DOC is making proper medical treatment available to him and being deliberately indifferent to
his needs. See Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996) (“Prisoners do not have a
constitutional right to any particular type of treatment. Prison officials do not violate the Eighth
Amendment when, in the exercise of their professional judgment, they refuse to implement a
prisoner’s requested course of treatment.” (citation omitted)).
Mr. Lowe claims that for most of the time he has been incarcerated, which has been since
2011, he has had a bottom bunk pass as an accommodation provided in compliance with the
Americans with Disabilities Act (ADA), and that the refusal to provide him a pass now violates
his right to an accommodation under the ADA. Neither party has addressed Mr. Lowe’s ADA
claim, which remains to be resolved.
ORDER
For the foregoing reasons, the parties’ cross-motions for summary judgment are denied.
A pretrial status conference will be scheduled to plan for an evidentiary hearing.
Dated at Montpelier, Vermont this ____ day of June 2019.
_____________________________
Mary Miles Teachout
Superior Judge
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