United States District Court, D. New Hampshire
Richard L. Stebbins,
Merrimack County Department of Corrections et al.
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Richard L. Stebbins, an inmate at the Merrimack County House of Corrections ("MCHC"), filed a complaint (doc. no. 1) pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the United States Constitution and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), and state law, seeking injunctive relief and damages. The original complaint (doc. no. 1) came before the court for preliminary review, and the court issued an order (doc. no. 5) directing Stebbins to amend his complaint to demonstrate what each defendant did or failed to do to render him or her liable to Stebbins in this action.
Stebbins has filed an addendum (doc. no. 6) to the complaint and a motion (doc. no. 7) to amend his complaint. In the order issued along with this report and recommendation (hereinafter "Simultaneous Order"), the court grants the motion to amend (doc. no. 7). The court thus construes, as plaintiff's pleadings in this matter: the original complaint (doc. no. 1), the addendum (doc. no. 6), and the motion to amend (doc. no. 7). The pleadings, so construed, are again before the court for preliminary review, pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
I. Skin Cancer Claim - Eighth Amendment
The federal constitution requires prison officials to take "reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832-33 (1993). To establish unconstitutional endangerment, an inmate must assert facts to demonstrate that, objectively, he was incarcerated "under conditions posing a substantial risk of serious harm, " and that the responsible prison officials knew of and disregarded the excessive risk to the inmate's safety. Id. at 834.
Stebbins asserts that for over a year he complained to the MCHC medical department of an open sore on his nose that he feared was skin cancer. He made several requests to have the sore evaluated and diagnosed by an outside professional. Stebbins claims that MCHC Nurse Practitioner Trish Lee, in response to his complaints, examined his nose, repeatedly told him he did not have cancer, and denied him access to a specialist. When Stebbins was finally allowed to see an outside specialist, he was diagnosed with skin cancer requiring surgery. For purposes of preliminary review, the court finds that Stebbins has stated sufficient facts to assert a plausible claim for relief against Lee and, in the Simultaneous Order, so directs service of the Eighth Amendment claim.
II. Claims Related to Showers and Colostomy Bag Cleaning
A. Factual Background
Stebbins asserts that during his incarceration at the MCHC, he has had a colostomy bag resulting from his having had third stage colon cancer. Stebbins claims that showering in a group shower area poses a serious risk of infection to him, as he essentially has an "open wound" in his abdomen. Stebbins asserts that in addition to having seen mold, insects, and other inmates' fecal matter and bodily fluids in the showers, he fears other infections that can spread in a group shower environment. Stebbins states that he is particularly vulnerable to such a risk, as the chemotherapy and radiation with which his colon cancer was treated compromised his immune system. Stebbins requested permission to use the shower in the medical unit, and offered to clean the shower after each time he used it, but his request was denied. Stebbins further complains that he is made to empty and clean, rather than discard and replace, his colostomy bag in his cell, without appropriate cleaning equipment.
B. Eighth Amendment - Shower and Colostomy Bag
Stebbins has asserted plausible Eighth Amendment endangerment claims concerning the lack of a safe shower, and inadequate resources with which to keep his colostomy site and bag clean. The court has therefore directed service on MCHC Superintendant Ronald White, MCHC Assistant Superintendent Les Dolecal, and MCHC Capts. Wymann and Hauge, the individuals Stebbins identified as responsible for the alleged unconstitutional endangerment related to the showers and proper arrangements for the care of Stebbins's colostomy sit and bag.
C. ADA - Shower
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be ...