Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                         ENTRY ORDER

                          SUPREME COURT DOCKET NO. 2013-405

                                    FEBRUARY TERM, 2014

Matthew Stevens                                      }     APPEALED FROM:
                                                     }
                                                     }     Superior Court, Washington Unit,
  v.                                                 }     Civil Division
                                                     }
                                                     }
Andrew Pallito, Tammy Osbourne, Shay                 }     DOCKET NO. 568-8-12 Wncv
Mitchell, ARNP and Derrick Hamilton, M.D.            }

                                                           Trial Judge: Robert R. Bent

                         In the above-entitled cause, the Clerk will enter:

        Plaintiff, an inmate committed to the custody of the Commissioner of Corrections,
appeals pro se from a judgment in favor of the Commissioner on plaintiff’s claim for damages
resulting from the Commissioner’s alleged indifference to plaintiff’s medical needs. We
affirm.

        In March 2012, plaintiff filed a complaint against the Commissioner and several
employees of the Kentucky prison where he was then incarcerated, alleging that they had
violated his civil rights and the Eighth Amendment to the United States Constitution by
providing inadequate medical care. In early July 2013, the court granted a motion to dismiss
the three out-of-state defendants for failure to effectuate service. Later that month, the court
held a court trial on plaintiff’s suit against the Commissioner for damages resulting from his
allegedly improper transfer of plaintiff to prison in Kentucky and the failure to provide him
with necessary pain medication, treatment, and accommodations.

        Plaintiff testified at the trial that, while incarcerated in Vermont, he had been provided
with a number of medications, including codeine and Vicodin for chronic pain resulting from
a diagnosed spinal condition. After his transfer to the prison in Kentucky he was not allowed
these medications because the responsible parties in Kentucky declined to provide them.
Plaintiff testified that his condition worsened after he slipped on the wet floor while
incarcerated in Kentucky. In addition to describing the pain resulting from his condition,
plaintiff testified that he also had to buy his own food from the commissary in Kentucky
because he had difficulty walking to the dining hall.

        The medical director of the Southern State Correctional Facility in Vermont where
plaintiff had been previously incarcerated, and where he had recently returned, also testified.
He testified that the source of plaintiff’s pain was of a diffuse nature and exacerbated by
anxiety, which had resulted in the prescription of an antidepressant as well as pain relievers.
He further stated that plaintiff was not considered to have any medical conditions that would
have disqualified his transfer to Kentucky in 2008; that in Kentucky plaintiff had received
non-steroidal anti-inflammatory medications including Flexeril and Naprosyn; that since
plaintiff’s return to Vermont he had been prescribed the same anti-inflammatories; that
stronger opiates or narcotic medications were not necessary for plaintiff’s condition; and that
plaintiff was able to maintain a consistent level of function with his current treatment.

        At the conclusion of the hearing, the court entered findings on the record. The court
ruled that that plaintiff had not met the standard that would entitle him to damages for
inadequate medical care, and also that plaintiff had failed to establish the Commissioner’s
personal culpability for any decision affecting plaintiff’s care. The court subsequently entered
a written judgment affirming that plaintiff had failed to show that defendant treated him with
“deliberate indifference” to his rights. This pro se appeal followed.

        Although his arguments are difficult to parse, we understand plaintiff to be making
two main arguments on appeal. First, he questions the court’s dismissal of the Kentucky
prison officials, arguing that Vermont courts have personal jurisdiction over them by virtue of
the relationship between their employer and the State of Vermont. We don’t need to reach
plaintiff’s argument about jurisdiction because the case was dismissed not because there was
no personal jurisdiction, but on the ground that he had not effectively served the three
Kentucky defendants. He does not claim that they were ever properly served, and the failure
of service is a proper basis of dismissal. V.R.C.P. 3.

         He also challenges the court’s conclusion that the evidence was insufficient to
establish the alleged civil rights violations resulting from his transfer to Kentucky and medical
care while in state custody. The U.S. Supreme Court has recognized that “deliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain . . . proscribed by the Eighth Amendment” sufficient to establish a civil
rights violation. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quotation omitted). The Court
cautioned, however, that mere disagreements over medical care and even medical negligence
in diagnosing and treating a medical condition are insufficient to establish such a violation or
to demonstrate conduct “repugnant to the conscience of mankind.” Id. at 105-106 (quotation
omitted). Thus, it is well settled that “[a] difference of opinion [regarding treatment] does not
amount to a deliberate indifference to [a prisoner’s] serious medical needs.” Sanchez v. Vild,
891 F.2d 240, 242 (9th Cir. 1989).

        Here, the trial court’s conclusion that plaintiff had not demonstrated a “deliberate
indifference” was supported by the medical director’s testimony that plaintiff suffered no
disqualifying medical condition for transfer to an out-of-state prison facility, and that the
treatment he received while in the custody of the Department of Corrections—including his
time in Kentucky—conformed with prevailing standards of medical standard of care.
Although plaintiff stated a different opinion, the trial court’s findings were supported by
evidence in the record and were not clearly erroneous. In re A.F., 160 Vt. 175, 178 (1993)
(stating that Court will uphold factual findings on appeal unless clearly erroneous or
unsupported by record). Accordingly, we affirm the court’s judgment on this basis. Because
we affirm on this basis, we don’t need to consider plaintiff’s additional claim that the court


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erred in finding the commissioner’s personal involvement in the decisions was insufficient to
hold him individually liable.

       Affirmed.

                                             BY THE COURT:


                                             _______________________________________
                                             John A. Dooley, Associate Justice

                                             _______________________________________
                                             Beth Robinson, Associate Justice

                                             _______________________________________
                                             Geoffrey W. Crawford, Associate Justice




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