United States District Court, D. New Hampshire
Hokenstrom, pro se
Elizabeth Mulholland, Esq.
Francis Charles Fredericks, Esq.
Jonathan A. Lax, Esq.
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
the aegis of 42 U.S.C. § 1983, pro se plaintiff Kevin
Hokenstrom has sued the New Hampshire Department of
Corrections (“DOC”) and several current and
former DOC employees. He claims that while he was
incarcerated by the DOC in the Northern New Hampshire
Correctional Facility (“NCF”), defendants
violated his rights under the Eighth and Fourteenth
Amendments to the United States Constitution, and under Title
II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131-34. He also
asserts a state-law claim for negligence. Before me for a
report and recommendation is a motion for summary judgment
filed by all of the named defendants other than William
Wrenn. Hokenstrom objects. For the reasons that follow,
defendants' motion for summary judgment should be
judgment is appropriate as long as the record reflects no
genuine issue of material fact and demonstrates that the
moving party is entitled to judgment as a matter of
law.” United States v. McNicol, 829 F.3d 77,
80 (1st Cir. 2016) (citing Fed.R.Civ.P. 56(a); Schiffmann
v. United States, 811 F.3d 519, 524 (1st Cir. 2016)).
When ruling on a motion for summary judgment, the court must
“take the facts and all reasonable inferences therefrom
in the light most hospitable to the nonmoving party.”
McNicol, 829 F.3d at 80. To defeat a summary-judgment motion,
“[t]he non-moving party . . . must ‘produc[e]
specific facts sufficient to deflect the swing of the summary
judgment scythe.'” Xiaoyan Tang v. Citizens
Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016) (quoting
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19
(1st Cir. 2003)).
facts recited in this section are either undisputed or are
drawn from Hokenstrom's pleadings.
has been in the custody of the DOC since February of 2001. He
has several physical impairments including an unusually short
right leg, an unusually wide left foot, and a neuroma in his
times relevant to plaintiff's claims, i.e., since
December 12, 2011, see doc. nos. 44 and 47, the DOC has
provided Hokenstrom with an above-the-knee prosthesis for his
right leg. His prosthesis requires periodic maintenance and
repair, which often must be performed off site. From February
29, 2012, through March 27, 2012, Hokenstrom was without a
prosthesis because his was off site for service, and the
servicer took about a month to send a loaner leg. Similarly,
from April 16, 2014, through September 18, 2014, Hokenstrom
was without his prosthesis because it was off site for
2004 through 2013, the DOC provided Hokenstrom with sneakers,
rather than the heeled boots it issued to other inmates.
Hokenstrom says that the sneakers were necessary, because he
requires a flat-soled shoe for his prosthetic leg and because
he needs wider shoes than the standard-issue DOC footwear,
due to his wide foot and his neuroma. In 2013, Ryan Landry, a
nursing coordinator with the DOC's Department of Medical
and Forensic Services, attempted to place an order for new
sneakers for Hokenstrom. However, Dr. Jeffrey Fetter, the
Chief Medical Officer for the New Hampshire State Prison,
reviewed Hokenstrom's medical records and determined that
the sneakers which the DOC had been providing him were not a
medical necessity. Thereafter, Hokenstrom was not provided
sneakers by the DOC, but was told that he could purchase
sneakers from the prison canteen.
the course of Hokenstrom's incarceration, “the DOC
employed a three-level procedure for handling inmate
grievances ‘concerning any condition of
confinement.'” Gray v. Perkins, No.
14-cv-386-PB, 2016 WL 5108030, at *3 (D.N.H. Sept. 20, 2016)
(quoting DOC Policy and Procedure Directive
(“PPD”) 1.16(III)(E)). Judge Barbadoro described
the grievance procedure this way:
To complete the first level of the DOC's grievance
process, an inmate utilizes an Inmate Request Slip
(“IRS”) “addressed to the lowest level
staff person with the authority to address the issue
raised.” PPD 1.16(IV)(A)(1). “A request slip
regarding any issue must be received within 30 calendar days
of the date on which the event complained of occurs.”
Id. An inmate dissatisfied with the response to an
IRS may, within thirty days of the date of that response,
direct a Grievance Form to the Warden or Director of the DOC
facility in which the inmate is then housed. PPD 1.16(IV)(B).
An inmate dissatisfied with the Warden's response to his
grievance, within thirty days of the denial of his grievance
to the Warden, may appeal that denial to the ...