United States District Court, D. New Hampshire
Matthew D. Bobola
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
K. Johnstone United States Magistrate Judge.
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.
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.
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)).
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)).
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. 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.
was booked into the NHSP in August of 2013. See R. & R.
(doc. no. 36 at 2, n.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.
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” 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.
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).
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.
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).
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