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Hokenstrom v. N.H. Department of Corrections

United States District Court, D. New Hampshire

November 8, 2016

Kevin Hokenstrom
v.
N.H. Department of Corrections, William Wrenn, Robert MacLeod, Helen Hanks, Denise Rancourt, Ryan Landry, Bernadette Campbell, Christopher Kench, and Jeffrey Fetter

          Kevin Hokenstrom, pro se

          Elizabeth Mulholland, Esq.

          Francis Charles Fredericks, Esq.

          Jonathan A. Lax, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Under 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 granted.

         Summary Judgment Standard

         “Summary 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)).

         Background

         The facts recited in this section are either undisputed or are drawn from Hokenstrom's pleadings.

         Hokenstrom 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 left foot.[1]

         At all 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 service.

         From 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.

         During 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 ...

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