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Bobola v. Wrenn

United States District Court, D. New Hampshire

December 2, 2016

Matthew D. Bobola
v.
William Wrenn, Helen Hanks Bernadette Campbell, Celia Englander, Lisa Savage, and Christopher Kench

          Matthew D. Bobola, pro se Kenneth A. Sansone, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Matthew Bobola, 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, Bobola asserts that he has been denied adequate medical care, in violation of the Eighth Amendment to the United States Constitution. He also asserts a claim for medical negligence under New Hampshire state law. Before this magistrate judge for a report and recommendation are two motions for summary judgment, one filed by all six defendants and one filed by plaintiff. Both motions have been opposed. For the reasons that follow, defendants' motion for summary judgment should be granted, and plaintiff's motion should be denied.

         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)). “A genuine issue is one that can ‘be resolved in favor of either party' and a material fact is one which ‘has the potential of affecting the outcome of the case.'” Id. (quoting Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013); citing Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25, (1st Cir. 2011)).

         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)).

         When presented with cross motions for summary judgment, the court must “view each motion separately and draw all reasonable inferences in favor of the respective non-moving party.” Pac. Indem. Co. v. Deming, 828 F.3d 19, 23 (1st Cir. 2016) (quoting Roman Catholic Bishop v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)). That is, “[c]ross motions simply require [the court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (quoting Barnes v. Fleet Nat'l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)).

         Background

         The court begins by describing, briefly, the sources of the facts recited below. Defendants' motion is supported by facts, cognizable at summary judgment, that appear in the attachments to: (1) their objection to plaintiff's motion for a preliminary injunction; and (2) their reply to plaintiff's objection to their motion for summary judgment. As for plaintiff, the memorandum of law he submitted in support of his motion for summary judgment does not include the “short and concise statement of material facts, supported by appropriate record citations” required by Local Rule 56.1(a), and he supports his objection to defendants' summary-judgment motion with the same memorandum he submitted in support of his own motion. However, the court will consider three documents in the record that plaintiff has verified pursuant to 28 U.S.C. § 1746.[1] See Fed.R.Civ.P. 56(c)(3) (“The court need consider only the cited materials [i.e., those cited in a party's memorandum of law], but it may consider other materials in the record.”). Those documents include: (1) an affidavit dated September 2, 2014, that Bobola had submitted to the Warden of the NHSP and that he subsequently attached to his complaint; (2) a filing titled “Declaration: Temporary restraining Order Preliminary Injunction”; and (3) a document titled “Memorandum of Law in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction.” Unless otherwise indicated, the facts recited in this section are undisputed.

         Bobola was booked into the NHSP in August of 2013. See R. & R. (doc. no. 36 at 2, n.2).[2] That same month, he “reported to the [NHSP] infirmary complaining that he had twisted his right knee getting out of his lower bunk the night before.” Defs.' Reply Mem., Ex. C, Campbell Decl. (doc. no. 45-1, ¶ 3). He was given Ace bandage wraps, and several days later, an advanced nurse practitioner in the infirmary referred Bobola to “a physical therapist to evaluate his right knee for a possible brace.” Id. Bobola next complained of knee pain about two months later. See Id. ¶ 4. In response, Lisa Savage, an advanced practice registered nurse at the NHSP, gave him an Ace bandage wrap and encouraged him to make an appointment with NHSP physical therapist Bernadette Campbell. See Id. There is no record of his having done so, but during two visits to the infirmary in late November, Bobola asked for a renewal of a prescription for ibuprofen and complained of pain in his right knee. See Id. ¶ 5. He was then scheduled for an appointment with Campbell, which he did not attend. See Id. ¶ 6.

         In early January of 2014, “Bobola reported to the infirmary, stating that he had twisted his right knee twice in the [previous] 24 hours.” Campbell Decl. ¶ 7. He was given ibuprofen, and was scheduled for an appointment with Campbell. See Id. She saw him several days later, ordered x-rays, ordered a brace for his left wrist, and ordered a neoprene sleeve brace for his right knee. See Id. Several days after that, Bobola's wrist and knee were both x-rayed. See Id. ¶ 8. According to the resulting radiology report, the x-rays showed: (1) an “[o]ld appearing fracture of the scaphoid”[3] and “[m]ild degenerative joint disease of the left wrist, but no acute fracture, ” Campbell Decl., Attach. C-2 (doc. no. 45-3 at 1); and (2) a “[n]ormal right knee, ” Id. at 2.

         Later in January, Bobola asked Campbell for a cortisone shot for his wrist, and she scheduled him for an appointment. See Campbell Decl. ¶ 9. He also went to the infirmary complaining of pain in his wrist. See Id. As a result, he was referred for a consultation with an outside orthopedist, but did not show up for that appointment, or for a second appointment that was scheduled after he missed the first one. See Id. Bobola's failure to show up for either appointment is documented by a contemporaneous DOC medical record. See Defs.' Obj., Domenici Decl., Attach. A-2 (doc. no. 34-3).

         In late April of 2014, Bobola submitted an Inmate Request Slip (“IRS”) to Campbell, asking to see her about his right knee. See Campbell Decl. ¶ 10. She scheduled an appointment, and when Bobola complained that he was bothered by the fabric of his knee sleeve, she provided him with Ace bandage wraps. See Id. ¶ 11. Several weeks later, Bobola was admitted to the prison's secure psychiatric unit, and as a result, he was separated from his knee sleeve and Ace bandage wraps. See Id. ¶ 12. When Bobola complained to Savage about knee pain, she ordered the return of knee sleeve. See Id. When Campbell returned the sleeve to Bobola, on July 30, he complained about it, and demanded a hinged knee brace, from outside the prison. See Id. ¶ 13. Campbell told him that she didn't believe that kind of brace was medically necessary, and also suggested that he lose weight, to decrease stress on his knee. See id.

         Two days before Campbell returned Bobola's knee sleeve to him, he had filed an IRS with Savage. In it, asked for a new knee brace and a cortisone shot for his wrist. He also asked Savage to review his medical records, including records of treatment he had received before his incarceration. In her response, Savage indicated that had reviewed Bobola's medical records, reaffirmed the decision to provide him with a knee sleeve rather than the brace he wanted, and stated that his “knee issue [had] been addressed through [physical therapy]” and that the January, 2014, “X-ray of [his] knee was normal.” Compl. (doc. no. 1 at 7).

         The day after he filed his IRS with Savage, Bobola filed an IRS with Dr. Celia Englander, who worked as a physician at the NHSP. From Dr. Englander he requested: (1) a hinged knee brace; (2) a change in his pain medication; and (3) “an injection of Dexamethasome mixed with Lidocaine to be injected in the ...


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