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Kosterow v. Hillsborough County Department of Corrections

United States District Court, D. New Hampshire

January 5, 2018

Scott Shawn Kosterow
v.
Hillsborough County Department of Corrections et al.[1]

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE

         Before the court is the (amended) complaint (Doc. No. 8) (hereinafter “Complaint”), [2] filed by Scott Shawn Kosterow, a pretrial detainee at the Hillsborough County Department of Corrections (“HCDOC”). The Complaint asserts claims of violations of Kosterow's federal rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); Title II of the Americans with Disabilities Act (“ADA”); and the First and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983. The matter is before the court for preliminary review. See 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2); and LR 4.3(d)(1).

         Preliminary Review Standard

         The court conducts a preliminary review of inmate complaints. See 28 U.S.C. §§ 1915(e)(2), 1915A(a); LR 4.3(d)(1). Claims may be dismissed if, among other things, the court lacks jurisdiction, a defendant is immune from the relief sought, or the complaint fails to state a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2), 1915A(b); LR 4.3(d)(1)(A). In conducting its preliminary review, the court construes pro se complaints liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). The complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief.'” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

         Background

         Kosterow has been an inmate in pretrial detention at the HCDOC since April 22, 2017. Kosterow alleges that he practices a religion he calls “Hindi.”[3] Kosterow alleges that when he declared he was “Hindi” to the officer who booked him on April 22, 2017, and that officer laughed and did not record “Hindi” as Kosterow's religion.

         Kosterow states that his religion requires him to adhere to a vegan diet. Although Kosterow filed a number of health requests and inmate requests in April/May 2017, all requesting a vegan diet, Kosterow continued to be served non-vegan meals. On May 9, 2017, Kosterow spoke with Capt. Levierge and notified him that he was requesting a vegan diet because of his religion. Levierge advised Kosterow to submit a new inmate request slip declaring his religion to be “Hindu” and asking for a vegan religious diet. On May 9, 2017, Kosterow submitted an inmate request slip, requesting a vegan diet for religious purposes, and on May 12, 2017, Kosterow filed a grievance making the same request. Capt. Scurry notified Kosterow on May 15, 2017 that Kosterow would receive religious meals that meet “Hindu” requirements. Kosterow alleges he fasted for twenty-nine days at HCDOC, until he began to receive vegan meals on May 20, 2017.

         Kosterow further asserts that he requested access to a religious text he calls the “Pavitra Bible.” The HCDOC notified Kosterow that all religious materials are donated to the HCDOC, and that Kosterow could ask an outside source to purchase and mail a Pavitra Bible to him at the HCDOC, which the HCDOC would deliver to him, subject to HCDOC security requirements. Doc. No. 8, at 38.

         Kosterow asserts that his religious practices include yoga. His request for a yoga mat was denied by Capt. Scurry. In response to a pair of August 1, 2017 grievances, Capt. Scurry notified Kosterow that HCDOC medical providers had placed restrictions on Kosterow's ability to practice yoga because of his seizure disorder, and that modifications to those restrictions were the responsibility of Kosterow's health care providers. Scurry further explained that Health Services Administrator (“HSA”) Denise Hartley and the HCDOC Superintendent David Dionne had met with Kosterow and Scurry on August 16, 2017, and it was decided in that meeting that Kosterow could practice yoga in the recreation yard and in his cell. See Doc. No. 8, at 46-47. Superintendent Dionne denied the grievance of that issue. Id.

         The Complaint states that Kosterow suffered a seizure on April 22, 2017, while in the custody of the Manchester Police Department, and that he suffered a second seizure at the HCDOC two days later. See Doc. No. 8, at 2, 4. In response to a September 13, 2017 grievance in which Kosterow asked generally why inmates with seizure disorders are subject to limits on their ability to exercise and work, Hartley stated that the restrictions on Kosterow were intended to safeguard his health and well-being, and that, after he is seizure-free for at least six months, a health care provider would decide whether Kosterow is stable enough to work, and whether other restrictions could be modified. See Doc. No. 8, at 56. Kosterow's grievance of that issue was denied by Superintendent Dionne. See id.

         Kosterow asserts that he has not received adequate medical care and meals while in HCDOC custody. He asserts that he has had ear pain, hearing loss, and an umbilical hernia which he states has become enlarged and has caused his bowel movements to be painful. He alleges he has not received prompt, proper care for those conditions. An inmate grievance filed by Kosterow on July 3, 2017 complains about those issues. See Doc. No. 8, at 39. The July 10, 2017 response to that grievance prepared by HSA Denise Hartley states that Kosterow was seen by a provider on May 19 and June 20, 2017, and that Kosterow had not submitted a sick slip since June 19, 2017. See id. Hartley further notes that the provider diagnosed a chronic hernia and allergic rhinitis, for which the provider prescribed Claritin and Flonase. See id. Superintendent Dionne denied the grievance complaining about inadequate medical care for those conditions. See id.

         Kosterow asserts that his self-diagnosed condition of “low blood iron, ” which he attributes to his vegan diet, has not been properly treated, and that HCDOC providers have neither prescribed multivitamins with iron nor ordered that he receive a long sleeve shirt to alleviate his feeling of being cold, which he attributes to iron deficiency. He further alleges that the meals he is served have averaged less than 2000 calories per day, that food items scheduled for service to him are frequently missing from his tray, that his vegan meal choices are limited, that he is losing weight, and that hot food has been served cold to him on trays that are not clean.

         Claims and Requested Relief

         Seeking compensatory and punitive damages and injunctive relief, Kosterow asserts the following claims:

         1. Kosterow's Fourteenth Amendment right to avoid punitive conditions of pretrial confinement has been violated, with respect to the medical care he has received while in pretrial detention at the HCDOC, in that:

a. Providers identified in the Complaint as “Unknown Nurse #1, ” “Unknown Nurse #2, ” and “Unknown Medical Provider #1” have not properly diagnosed or treated Kosterow's ear pain and hearing loss, which began in April/May 2017;
b. Providers identified in the Complaint as “Unknown Nurse #1, ” “Unknown Nurse #2, ” and “Unknown Medical Provider #1” have not treated Kosterow's umbilical hernia, beginning in April/May 2017, which has become enlarged and painful as a result;
c. HSA Denise Hartley and the HCDOC Superintendent David Dionne are liable in their supervisory capacities for the conduct of nurses and medical providers, relating to Kosterow's ear pain, hearing loss, and an umbilical hernia; and
d. HCDOC nurses and medical providers have not properly treated Kosterow's self-diagnosed “low blood iron” that he relates to his vegan diet, or his complaints of feeling cold, beginning in May/June 2017.

         2. Unnamed defendants violated Kosterow's Fourteenth Amendment right to avoid punitive conditions of pretrial detention, in that Kosterow has received vegan meals that have not provided him with the calories he needs to maintain his weight.

         3. Unnamed defendants have violated Kosterow's Fourteenth Amendment right to avoid punitive conditions of pretrial confinement, as Kosterow has received cold meals, with a limited array of vegetables and fruits, with missing items, which were served on trays that had not been properly washed.

         4. Kosterow's First Amendment right to the free exercise of his religion has been violated, rendering defendants liable under 42 U.S.C. § 1983, in that:

a. Capt. Levierge denied Kosterow access to a religious diet of vegan meals from May 9, 2017 until to May 20, 2017;
b. Steve Goldman, Capt. W. Scurry, and Superintendent David Dionne restricted Kosterow's access to a religious ...

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