Kiman v. New Hampshire Dept. of Corrections
| Decision Date | 28 June 2006 |
| Docket Number | No. 05-1998.,05-1998. |
| Citation | 451 F.3d 274 |
| Parties | Matthew KIMAN, Plaintiff, Appellant, v. NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS; Michael Cunningham, Individually and Officially as Warden, New Hampshire State Prison; Bernadette Campbell, Individually and Officially as a Physical Therapist; Michael Capano, Individually and Officially as Corrections Officer; Brian Gauthier, Individually and Officially as a Corrections Officer; John Haney, Individually and Officially as a Corrections Officer; Michael Corrira, Individually and Officially as a Corrections Officer; David Southard, Individually and Officially as RNC; Michael Kenney, Individually and Officially as a Corrections Officer; Brian Dunham, Individually and Officially as a Corrections Officer; Michael Poulicakos, Individually and Officially as a Corrections Officer; Roger Dugre, Individually and Officially as a Corrections Officer; Janette Hoffstede, Individually and Officially as a Nurse Practioner; Charles Ward, Individually and Officially as the Prison Physician, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Nancy S. Tierney, for the appellant.
Mary E. Malony, Attorney, New Hampshire Dept. of Justice, with whom Kelly A. Ayotte, New Hampshire Attorney General, was on brief for the appellees.
Before SELYA, Circuit Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.
Appellant Matthew Kiman, formerly incarcerated at the New Hampshire State Prison, appeals the district court's grant of summary judgment in favor of the New Hampshire Department of Corrections and numerous individuals sued in their individual and official capacities. Kiman, who has amyotrophic lateral sclerosis ("ALS" or "Lou Gehrig's Disease"),1 argues that the defendants violated Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165,2 by failing to properly treat his disease and by failing to reasonably accommodate his resulting disability. He also raises state law negligence claims. The parties filed cross-motions for summary judgment, and the district court granted the defendants' motion and denied the plaintiff's motion. Concluding that no violation of the ADA had occurred, the district court did not reach the issue of whether Title II of the ADA validly abrogated the state's sovereign immunity, and declined to exercise supplemental jurisdiction over Kiman's state law claims.
Kiman appealed, arguing that the district court erred by granting the defendants' motion because material facts are in dispute. After carefully reviewing the record, we agree that the district court failed to address admissible record evidence that may suffice to create genuine issues of material fact as to whether the defendants violated Title II of the ADA. We therefore vacate the judgment of the district court and remand for further proceedings. On remand, the district will need to address the issues left unresolved by its earlier holding, including an assessment of which defendants would be liable for the Title II violations, whether the state's sovereign immunity has been validly abrogated,3 and whether summary judgment on Kiman's state law claims is appropriate.
We present the evidence in the light most favorable to Kiman, the party opposing summary judgment. See Parker v. Universidad de Puerto Rico, 225 F.3d 1, 3 (1st Cir.2000). Kiman was incarcerated at the New Hampshire State Prison for two relevant periods: April 2, 1997 through January 8, 1998, and September 23, 1998 through January 28, 1999. Kiman first exhibited signs of a disability while incarcerated in 1997. He reported experiencing numbness and pain in his left leg and left buttocks and met with Nurse Janette Hoffstede, as well as the prison's physical therapist, Bernadette Campbell, several times between October and December 1997. On December 17, 1997, Kiman reported having weakness and pain in his left shoulder. However, his appointment with Campbell was cancelled when he was paroled to serve a sentence in Massachusetts on January 8, 1998. While incarcerated in Massachusetts, Kiman did not see a specialist for his leg and shoulder problems.
After he was released from incarceration in Massachusetts, Kiman returned to New Hampshire to reside at Calumet House, a halfway house. In April 1998, he made an appointment with Dr. Jay Smith at Manchester Community Health Center. Dr. Smith examined Kiman, noting the atrophy in his muscles and fasciculation (involuntary contractions and twitching) along both sides of his body. He recommended that Kiman consult a neurologist right away. When Dr. Smith discovered during a second appointment with Kiman several days later that Kiman had yet to see a neurologist, he speculated that "something in our system has broken down as I made the recommendation that we get him in with a neurologist ... as soon as possible."
Two weeks later, Kiman met with Dr. Daniel Botsford, Jr. of Neurology Associates of Southern New Hampshire. Dr. Botsford arranged for electromyography and nerve conduction studies. He believed that Kiman might have a motor neuron disease or muscular dystrophy but did not reach a conclusive diagnosis. He ordered more testing and suggested that his partner, Dr. Mark Biletch, a neuromuscular specialist, examine Kiman. Kiman missed two appointments, however, and Dr. Botsford did not, at that time, diagnose Kiman with ALS. Instead, he told Kiman that he might have ALS or some form of muscular dystrophy.
Kiman returned to the New Hampshire State Prison on a parole violation in September 1998. He was initially assigned to the Reception and Diagnostics unit ("R & D"). In R & D, staff typically place an inmate in "quarantine" for one week, where they test the inmate for infectious diseases, assess the inmate's physical condition and medical needs, and obtain any medical records from the inmate's treating physician. While in quarantine, inmates may only leave their cells once each day to use the shower.
While in R & D, Kiman informed prison medical staff that he believed that he had muscular dystrophy. He met with Campbell for physical therapy sessions. Campbell instructed Kiman to do certain exercises, including walking. Kiman requested access to the weight room, but Campbell denied the request. Campbell did not have Kiman's medical records at the time and did not think that weight training was necessarily appropriate for his condition. Kiman continued to make these requests, which Campbell denied, until she issued him a pass for hand weights only in November 1998.
During his initial R & D screening in late September 1998, Kiman made several requests for the cane that he had begun using to help him walk while on parole. He received his cane on October 2, 1998. The defendants explained that the delay was due to their need to verify Kiman's need for a cane, for medical and security purposes. The defendants also noted that, because Kiman was in quarantine, he did not have the opportunity to walk outside his small cell except for a daily trip to the shower.
Kiman was housed in the R & D unit from September 23, 1998 until October 19, 1998. On September 24, 1998, Nurse Hoffstede issued Kiman a bottom bunk pass that was in effect the entire time he was incarcerated. According to Kiman, after receiving the bottom bunk pass, he was nonetheless kept in a top bunk except for when he was housed at the Minimum Security Unit. There was no ladder to get on the top bunk, so Kiman hoisted himself up to the bunk, sometimes gaining leverage on the edge of the latrine or sink in the cell. Because of Kiman's condition, he often had to rely on his cellmate to get to the top bunk. Kiman also stated in his deposition that, while housed in R & D, he requested to be placed on a lower tier but was placed on the third tier, requiring him to use the stairs to get to the meal area.
Prison medical staff prescribed Kiman medications to treat his symptoms, including Baclofen (a muscle relaxant) and Trazodone (an anti-depressant), on an "as-needed" basis. His first prescriptions for Baclofen and Trazodone were issued for September 24, 1998 through October 24, 1998. Kiman had trouble receiving his medication consistently and was experiencing intermittent pain and severe muscle cramping. He filed an "inmate request slip"4 on October 8, 1998, complaining that the corrections staff were not delivering the medications to him. He also requested a higher dosage of Baclofen and asked for a prescription for Topomax. He filed two other similar requests over the next few days. Dr. Charles Ward responded to Kiman's requests by notifying him that he was scheduling a doctor's appointment for him before ordering a change in his medication dosages. In responding to Kiman's complaints about the irregular delivery of his medications, corrections staff informed Kiman that he was responsible for requesting renewals of prescriptions when they expired. Kiman did request the renewal of his prescription for Baclofen on two occasions, and when his Trazodone ran out, he said he was willing to try Prozac instead, but then chose not to continue taking it. However, he continued to complain about the irregular delivery of his medications, submitting additional inmate request slips on November 8 and 23, 1998, and complaining to medical staff during appointments on November 11 and 17, and December 3, 1998.
On October 19, 1998, Kiman was transferred to the Special Housing Unit ("SHU") after he received a disciplinary report for "inciting a riot."5 He remained at SHU until November 6, 1998. While housed in the SHU, Kiman took all of his meals in his cell and was permitted to leave only to use the shower or for recreation. Prison staff did not permit Kiman to use his cane while housed in the SHU because, they explained, it posed too great a security risk in the maximum security unit. Because Kiman...
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