United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Under the aegis of 42 U.S.C. § 1983, Kevin Hokenstrom, proceeding pro se, has sued the New Hampshire Department of Corrections ("DOC") and several current and former DOC employees claiming violations of his rights under the United States Constitution, the Americans with Disabilities Act ("ADA"), and the common law of New Hampshire. Before me for a report and recommendation is a motion to dismiss filed by the DOC, Robert MacLeod, Helen Hanks, Ryan Landry, Bernadette Campbell, and Christopher Kench. That motion has been joined by Jeffrey Fetter. Hokenstrom objects. For the reasons that follow, I recommend that defendants' motion to dismiss be granted.
Ruling on a motion to dismiss for "failure to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6), requires the court to conduct a limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). When considering a Rule 12(b)(6) motion, a trial court must "accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the pleader's favor." Guerra-Delgado v. Popular, Inc., 774 F.3d 776, 780 (1st Cir. 2014) (citing Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 38 (1st Cir. 2010)).
The following facts are drawn from plaintiff's complaint, see Guerra-Delgado, 774 F.3d at 780, liberally construed, see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (explaining that pro se complaints should be held to less stringent standards than pleadings that have been drafted by lawyers).
Hokenstrom suffers from several congenital deformities. These include an extremely wide left foot and an extremely short right leg. He also has a neuroma on his left foot. To accommodate his foot conditions, Hokenstrom requires a left shoe with a width of 4E. To ambulate, he requires an above-knee prosthesis for his right leg and flat-soled sneakers.
Hokenstrom has been incarcerated in the New Hampshire State Prison since February of 2001. From the start of his incarceration through 2004, the prison did not provide him with the kind of shoes he needed. From 2004 through 2012, he was provided with suitable footwear. But, in 2013, he was told that he had to buy his own shoes.
For the first 26 months of his incarceration, i.e., until approximately April of 2003, prison officials denied Hokenstrom the use of his prosthesis. Once he was allowed to use it, it has required servicing about every 18 months. During a typical servicing cycle, Hokenstrom must: (1) use a malfunctioning prosthesis while prison officials arrange for its servicing; (2) go without his prosthesis while it is away from the prison being serviced; and (3) recondition his body for prosthesis use, if the servicing takes more than a month. It is painful for Hokenstrom to use his prosthesis when it is malfunctioning prior to being serviced, and it is also painful for him to go through the reconditioning process. Routine servicing that Hokenstrom was able to accomplish in a few days before he went to prison has taken prison officials weeks or months to schedule and complete. On two different occasions, in 2009 and again in 2011, it took prison officials approximately five months to have maintenance services performed on Hokenstrom's prosthesis. In addition, when Hokenstrom's prosthesis is out for service, he cannot perform his prison job, which has resulted in lost wages.
In 2008, when Hokenstrom's prosthesis required replacement, Dr. Eppolito of the DOC recommended that he be provided with an endoskeletal prosthesis, which incorporated modern technology and would have been lighter than the nearly obsolete exoskeletal prosthesis he had been using. Notwithstanding that recommendation, the prison officials gave Hokenstrom another exoskeletal prosthesis. By 2014, that prosthesis was so obsolete that it could no longer be repaired, so prison officials replaced it. Initially, they tried to give Hokenstrom another exoskeletal prosthesis, but, at his insistence, they ultimately provided him with an endoskeletal prosthesis. The replacement process took approximately five months.
Based upon the foregoing allegations, Hokenstrom filed this action on December 12, 2014. In my order of May 26, 2015, I construed plaintiff's complaint as asserting: (1) an Eighth Amendment claim for inadequate medical care; (2) a Fourteenth Amendment equal protection claim; (3) a claim under the ADA; and (4) a negligence claim under the common law of New Hampshire. In addition, I expressly declined to determine whether claims arising from events that took place prior to December 12, 2011, were untimely under the statute of limitations or were saved by the continuing-violation doctrine described in Gorelik v. Costin, 605 F.3d 118, 122 (1st Cir. 2010).
Defendants argue that they are entitled to the dismissal of any § 1983 claims that arise from alleged acts or omissions that occurred before December 12, 2011. In their view, any such claim is barred by the statute of limitations. Hokenstrom objects, arguing that various events that occurred more than three years before he filed suit are actionable under the continuing-violation doctrine. I do not agree.
"When a federal statute contains no statute of limitations, [courts] apply the most analogous statute of limitations in the state where the action was brought.'" Quality Cleaning Prods. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 205 (1st Cir. 2015) (quoting Greenwood ex rel. Estate of Greenwood v. N.H. Pub. Utils. Comm'n, 527 F.3d 8, 13 (1st Cir. 2008); citing Randall v. Laconia, NH, 679 F.3d 1, 4-5 (1st Cir. 2012)). Section 1983 contains no statute of limitations. Claims under § 1983 that are brought in New Hampshire are subject to a three-year statute of limitations. See McNamara v. City of Nashua, 629 F.3d 92, 95 (1st Cir. ...