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Fair v. Keon

United States District Court, D. New Hampshire

December 2, 2016

Timmie G. Fair
v.
Patrick Keon and Maria McKenna

          Timmie G. Fair, pro se Stephen LaBonte, Esq. Francis Charles Fredericks, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Timmie Fair, appearing pro se, is currently being incarcerated by the New Hampshire Department of Corrections (“DOC”) at the New Hampshire State Prison (“NHSP”). Under the aegis of 42 U.S.C. § 1983, Fair asserts that Patrick Keon and Maria McKenna, two nurses at the NHSP, denied him adequate medical care in violation of the Eighth Amendment to the United States Constitution. Before this magistrate judge for a report and recommendation is defendants' motion for summary judgment, which is unopposed. For the reasons that follow, defendants' motion for summary judgment should be granted.

         Summary Judgment Standard

         “Summary judgment is appropriate when the record shows that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Walker v. President & Fellows of Harvard Coll., 840 F.3d 57, 61 (1st Cir. 2016) (quoting Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011); citing Fed.R.Civ.P. 56(a)). When a court considers a motion for summary judgment, “[t]he evidence . . . must be viewed in the light most favorable to the nonmoving party . . . and all reasonable inferences must be taken in that party's favor.” Harris v. Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d 24, 29 (1st Cir. 2016) (citing Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir. 1994)). To defeat summary judgment, “[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

         Defendants' memorandum of law in support of their motion for summary judgment incorporates the “short and concise statement of material facts, supported by appropriate record citations” that is required by Local Rule 56.1(a). Because plaintiff has filed no objection to defendants' motion, “[a]ll properly supported material facts set forth in [defendants'] factual statement [are] deemed admitted.” LR 56.1(b). That factual statement, in turn, is the source of the facts recited in this section.

         Fair was arrested on a parole violation on December 12, 2013, and was booked into the NHSP. At the time of his arrest, he had an unhealed gash on his right hand that had resulted from an incident that took place about three weeks before his arrest. After the incident, but before his arrest, Fair received treatment for his hand injury at two different hospitals.

         The day after he was booked into the NHSP, Fair punched something and was taken to the emergency room at Catholic Medical Center (“CMC”). There, he was diagnosed with a “healing, old hand injury with punctate retained foreign bodies.”[1] Defs.' Mem. of Law, Ex. B (doc. no. 56-3 at 6). Fair was discharged from CMC with instructions to follow up with a hand specialist at Dartmouth-Hitchcock Medical Center (“DHMC”). His discharge instructions included the following: “Tylenol, Advil if needed for pains. . . . Use splint for comfort.” Id. at 12.

         On December 31, Fair was seen by a physician's assistant (“PA”) at DHMC. The PA's objective findings include this: “He does have a gaping wound that does have some slight serious drainage from it at this point. There is no obvious purulence present today.”[2] Defs.' Mem. of Law, Ex. C (doc. no. 56-4 at 3). Based upon his examination, the PA made the following assessment:

Mr. Fair at this point does appear to have sustained a laceration on the dorsal aspect of his left hand[3]overlaying the fifth MCP joint.[4] This appears to be a chronic injury at this point, which appears to be anywhere in the vicinity of 8 to 12 weeks in duration. The patient has no obvious infection at this point.

Id. The PA concluded with a plan that includes the following: “[I]t is recommended [that] the patient has hydrogen peroxide soaks daily for 1 week. . . . Patient will also be splinted in the interim for his hand.” Id.

         After Fair returned to the NHSP from his visit to DHMC, he was housed in the NHSP's Secure Housing Unit (“SHU”). For inmates housed in SHU, sick call is conducted once a day. At the appointed time, a nurse enters each tier and announces the start of sick call. An inmate wishing to be seen by the nurse must stand at the door of his cell. There, he is evaluated and, if necessary, treated by the nurse doing the sick call.

         Plaintiff's claim is based upon the manner in which two NHSP nurses treated him during sick calls between December 31, 2013, and January 9, 2014. On eight of those ten days, nurse Patrick Keon conducted sick call on Fair's tier. When Fair responded to sick call by presenting himself at the door of his cell, nurse Keon examined his wound and provided him with Bacitracin and band aids. On the other two days, nurse Maria McKenna conducted sick call on Fair's tier. When she saw Fair, ...


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