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Kelly v. Dowaliby

United States District Court, District of New Hampshire

June 11, 2014

Howard D. Kelly
v.
Warren Dowaliby, et al.[1] Opinion No. 2014 DNH 129

Howard D. Kelly, pro se

Corey M. Belobrow, Esq.

ORDER

Landya McCafferty United States District Judge.

Before the court is Dawn Dow, Rebecca Eischen, and Tracy Warren’s (first) motion for summary judgment (doc. no. 24).[2]Plaintiff Howard Kelly has objected (doc. no. 25), and defendants have replied (doc. no. 27).

Also before the court is the same defendants’ motion for partial reconsideration of this court’s May 7, 2014, order (doc. no. 40), which allowed Kelly to add a claim under 28 U.S.C. § 1983 against former Strafford County House of Corrections (“SCHC”) Superintendent Warren Dowaliby, and to join ten John and Jane Doe SCHC Medical Department employees as defendants to the claim asserted against Dow, Eischen, and Warren. Kelly has not responded to the reconsideration motion.

Background

Kelly has alleged that while he was a federal pretrial detainee at the SCHC from July 17, 2008, to March 12, 2010, he suffered from a seizure disorder that defendants did not treat. In particular, defendants did not provide him with the anti-seizure medication originally prescribed for him at a federal Bureau of Prisons facility in 2003 after he suffered a traumatic brain injury.

Kelly has alleged that although he complained many times to SCHC medical department staff about his need for anti-seizure medication and the frequency of his seizures at the SCHC, he received no medication or other treatment. Kelly claims that he now suffers from migraine headaches, memory loss, loss of concentration, and vision loss. Kelly further asserts that the failure to give him daily doses of anti-seizure medication while he was at the SCHC caused or exacerbated these problems.

Kelly’s original complaint named Dow, Eischen, Warren, and Dowaliby as defendants. This court reviewed the original complaint in June 2013, pursuant to 28 U.S.C. § 1915A, see Report and Recommendation (doc. no. 9), and concluded that the allegations relating to Dowaliby in the original complaint did not state a plausible claim for relief. See Order (doc. no.19). The court further found that Kelly had pleaded plausible Fourteenth Amendment inadequate medical care claims against Dow, Eischen, and Warren, and directed service upon those defendants as follows:

Kelly was denied his Fourteenth Amendment due process right to adequate medical care during pretrial detention, because defendants (a) Dow, (b) Eischen, and (c) Warren, with deliberate indifference, failed to treat Kelly’s seizure disorder, a serious medical need.

See Order (doc. no. 10). The court subsequently dropped Dowaliby from the case. See Order (doc. no. 19).

Kelly, in December 2013, moved to amend the complaint to reinstate a claim against Dowaliby, and to add unnamed John and Jane Doe SCHC Medical Department employees as defendants to the Fourteenth Amendment claim served upon Dow, Eischen, and Warren six months before. See Mot. to Amend Compl. (doc. no. 29). This court, on May 7, 2014, granted that motion in pertinent part, allowing the amended complaint to be filed, and joining Dowaliby and the John and Jane Does as defendants. See Doc. No. 38 (“May 7 order”). In that ruling, the court specifically took under advisement whether the claims might be barred by the statute of limitations. See May 7 order, at 5-6, nn.2-3.

Discussion

I. Summary ...


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