United States District Court, D. New Hampshire
Timmie G. Fair
Patrick Keon and Maria McKenna
G. Fair, pro se Stephen LaBonte, Esq. Francis Charles
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
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
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)).
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.
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.
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.” 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.
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.” Defs.' Mem. of Law, Ex. C (doc. no.
56-4 at 3). Based upon his examination, the PA made the
Mr. Fair at this point does appear to have sustained a
laceration on the dorsal aspect of his left
handoverlaying the fifth MCP
joint. 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.”
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.
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