Beers v. NH State Prison, Warden et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. 	Case No. 20-cv-968-LM
Warden, New Hampshire
State Prison, et al.1
REPORT AND RECOMMENDATION
Timothy Beers, an inmate at the New Hampshire State Prison
for Men (“NHSP”) proceeding in forma pauperis and without an
attorney, seeks to addend his complaint in accordance with this
court’s May 20, 2021 Order (Doc. No. 11) granting him leave to
amend his allegations as to certain claims for relief. 	Beers’s
Reply to May 20, 2021 R&R and Order (Doc. No. 18) (“Addendum”).
His complaint (Doc. No. 1), as addended, is before the court for
preliminary review pursuant to 28 U.S.C. § 1915A and
LR 4.3(d)(1).
1 Beers names the following persons as defendants: NHSP
Warden Edmark, N.H. Department of Corrections (“NHDOC”)
Commissioner Helen Hanks, NHDOC Director of Security Chris
Kench, NHDOC Medical Director Paula Mattis, NHDOC Deputy Medical
Director Bernie Campbell, NHSP Dr. Groblewski, NHSP Dental
Director White, NHSP Registered Nurses (“RN”) John/Jane Does #1-
8, NHSP Medical Records Personnel John/Jane Does #1-4, NHSP
Corrections Officers John/Jane Does 1 & 2, and the NHDOC
Postmaster, all in their individual and official capacities.
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Preliminary Review Standard
The court preliminarily reviews complaints filed by
incarcerated persons and pro se litigants proceeding in forma
pauperis to assess, among other things, whether the complaint
states a claim for relief. 	28 U.S.C. §§ 1915A(b) & 1915(e)(2);
LR 4.3(d)(1)-(3). 	In conducting this review, the court
construes pro se complaints liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007). 	It then determines whether, stripped of
legal conclusions, the factual content in the complaint and the
inferences reasonably drawn therefrom, taken as true, state a
plausible claim for relief. 	See Hernandez-Cuevas v. Taylor, 723
F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). 	The court may dismiss claims sua sponte
if the court lacks subject matter jurisdiction, a defendant is
immune from the relief sought, the complaint fails to state a
claim, or the action is frivolous or malicious. 	See 28 U.S.C.
§§ 1915A(b) & 1915(e)(2); LR 4.3(d)(1)-(3).
Background
A. 	Deliberate Indifference to Beers’s Serious Medical Needs
At the heart of his complaint, Beers claims that New
Hampshire Department of Corrections (“NHDOC”) officials have
acted with deliberate indifference to his serious medical needs
by failing to provide him with properly working hearing aids, as
well as other allegedly necessary medical and dental treatments,
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for more than one-and-one-half years. 	Compl. (Doc. No. 1,
¶¶ 14-27).
With respect to medical care, Beers reports that he has
sent numerous medical request slips to NHSP’s medical department
to have his hearing aids fixed, but the medical staff defendants
have failed to order necessary parts and have refused to perform
necessary maintenance. 	Id. ¶¶ 15-17. 	Beers also relays that he
is supposed to have quarterly diabetic checkups; yet despite
being scheduled for many appointments (which were subsequently
cancelled), he allegedly has not received a checkup for over
one-and-a-half years. 	Id. ¶ 28. 	For his dental needs, Beers
similarly alleges that he has sent many request slips for teeth
cleanings and repairs over the past two years but has received
neither cleanings nor repairs. 	Id. ¶¶ 22-23.
Beers further states that he has sent many request slips
about cancelled appointments and medication renewals to NHDOC
medical staff to no avail and, as a result, has “had to go to
sick call” to get medication refills. 	Id. ¶ 19. 	He also
maintains that he has grieved the above-alleged incidents, as
well as NHDOC staff members’ refusal to respond to request
slips, to NHDOC Director of Medical and Forensic Services Paula
Mattis, NHSP Warden Edmark, and NHDOC Commissioner Helen Hanks.
Id. ¶¶ 31, 33, 34, 35, 41, 46-47. 	Beers asserts that, despite
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his grievances, NHDOC supervisors have done nothing to resolve
his inadequate medical and dental care claims. 	E.g., id. ¶ 47.
B. 	May 20 Report and Recommendation
On May 20, 2021, the court completed a preliminary review
of Beers’s complaint and issued a Report and Recommendation
(“R&R”) (Doc. No. 10) on Beers’s asserted claims. 	The court
found that Beers’s allegations sustained, of his eight claims
for relief, only the claims identified in the R&R as Claims
1(a)-(b), alleging that certain defendants deprived him of
adequate medical care by failing to provide (a) working hearing
aids and (b) prescribed medicine, and ordered service of those
subclaims. 	See id. at 8-9; May 20, 2021 Order (Doc. No. 11, at
3-4). 	In that Order, the court also granted Beers leave to
amend four insufficiently pled claims identified in the R&R as
Claims 1(c) and 1(d) (inadequate medical care based on lack of
routine examinations and special accommodations), Claim 2
(inadequate dental care), Claim 3 (supervisory liability), and
Claim 4 (First Amendment retaliation).2 	May 20, 2021 Order
(Doc. No. 11, at 3-6).
2 In the May 20, 2021 R&R, the court also recommended that
the district judge dismiss Claims 5-8 for failing to state a
claim for relief. 	May 20, 2021 R&R (Doc. No. 10, at 17-23).
Due to several requests for extensions, the period for Beers to
object to the recommended dismissal of Claims 5-8 has not yet
expired.
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C. 	Addended Factual Assertions
Beers’s addendum alleges or suggests the following new
factual assertions:
Claim 1
• 	During an unspecified period, Beers went without
prescribed medication for his legs, knees, and ankles for
over three weeks. 	Addendum (Doc. No. 11, at 4).
• 	Beers received working hearing aids on March 15, 2021.
Id. at 11.
Claim 2
• 	NHSP Dental Director White schedules dental appointments
at NHSP. 	Id. at 5.
• 	Beers has sent three inmate request slips to the dental
department asking for cavity fillings, a night guard to
prevent teeth grinding, and a teeth cleaning, but has
received no responses. 	Id. at 6.
• 	A licensed dentist found that Beers needs a cavity
filled. 	See id.
• 	Untreated tooth decay can result in heart disease, kidney
failure, and liver problems, and Beers’s diabetes puts
him at a higher risk for these problems. 	Id. at 5.
Claim 3
• 	NHDOC Medical Director Mattis and NHSP Warden Edmark know
about Beers’s medical and dental problems as part of
their supervisory roles at NHSP, but have not intervened
to resolve Beers’s problems. 	Id. at 7.
• 	Commissioner Hanks knows about Beers’s hearing aids
because of her past (unspecified) job. 	Id.
• 	On January 28, 2019, Beers sent Warden Edmark a grievance
regarding lack of hearing aid supplies, to which Edmark
did not respond. 	Id. at 9.
• 	On August 4, 2020, Beers sent Warden Edmark a grievance
about Mattis, NHSP Dr. Groblewski, and the medical
department, which Mattis rejected for failing to comply
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with Correctional Rule 312.01(c)(6) (requiring inmates to
include a brief description of the issue that the inmate
wants staff members to respond to). 	Id.
• 	On August 20, 2020, Beers sent a grievance to
Commissioner Hanks about his rejected August 4 grievance,
which Mattis similarly rejected.
• 	On September 22, 2020, Beers sent Warden Edmark a
grievance reporting that NHDOC employees had harassed him
about his hearing disability and his non-working hearing
aids, and that Captain Masse refused to investigate. 	Id.
Edmark responded that Beers had to go through medical for
his concerns. 	Id.
• 	On October 15, 2020, Beers sent Commissioner Hanks a
grievance concerning his September 22 grievance. 	An
unspecified person responded by asking what Beers wanted
to be done with Captain Masse. 	Id.
• 	On December 5, 2020, Beers sent Warden Edmark a grievance
about HIPAA violations and the lack of responses to his
other grievances. 	Id. 	Mattis responded by asking for
further information. 	Id.
• 	On December 29, 2020, Beers replied to Mattis’s December
response, but this reply was rejected because it listed
no names or officer ID badges. 	Id.
• 	On January 11, 2021, Beers sent Commissioner Hanks a
grievance regarding his rejected December grievances.
Id.
• 	On January 23, 2021, Beers sent Warden Edmark a grievance
asking why he had “gone 65+ days without working hearing
aids.” 	Id. at 10. 	A month later, Mattis responded that
(1) medical fell under the nurse coordinator, not the
Warden; and (2) Beers’s hearing aids were sent out for
repair on February 4, 2021. 	Id.
• 	On January 23, 2021, Beers sent a second grievance to
Warden Edmark stating that he had gone 14 days without
medications and as a result, suffered from cracking
hands, bleeding legs, and pain. 	Id. 	A month later,
Mattis responded that Beers did not go to sick call.
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Claim 4
• 	On a date uncertain, Beers complained to Corrections
Officer Cass about not being denied his medication and
about not having working hearing aids. 	Id. at 12. 	Beers
then requested to talk to a supervisor, but this request
was denied by C.O. Cass and another unnamed officer. 	Id.
• 	Thirty minutes later, “CPL Provost” fired Beers from his
job cleaning offices, in Beers’s view, because of his
disability. 	Id. 	Beers’s Addendum suggests prison staff
stopped him from working because he did not follow a
C.O.’s instruction due to being unable to hear. 	See id.
at 23.
• 	Beers received a discipline report ticket because of his
failure to follow an instruction, for which he had a
disciplinary hearing. 	Id. at 12.
• 	In the following months/days, Beers was harassed further
by corrections officers, and reported the harassment to
Captain Masse, who responded that it was Beers’s
“problem” due to his hearing aids. 	Id.
• 	On information and belief, after Beers pressed the
harassment issue with Captain Masse, “an email was sent
out saying that [Beers] was not allowed to work” in
Beers’s immediate housing unit. 	Id.
• 	Captain Masse got Beers fired from another job two months
later and falsified official documents regarding Beers’s
grievances. 	Id.
Discussion
A. 	Claim 1: Inadequate Medical Care
In Claim 1, Beers contends that prison officials acting
with deliberate indifference deprived him of adequate medical
care for his serious medical needs, in violation of the Eighth
Amendment, by failing to provide him with (a) working hearing
aids, (b) prescribed medicines, (c) routine examinations and
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treatments, and (d) other accommodations to his special medical
needs. 	Compl. (Doc. No. 1, at 10). 	In the May 20, 2021 R&R,
the court explained more fully the requirements for pleading an
Eighth Amendment inadequate medical care claim. 	See Doc. No.
10, at 5-9 (noting, among other things, that to prove such a
claim, a prisoner must demonstrate that: (1) he or she has a
serious medical need, and (2) prison officials exhibited
deliberate indifference to that need (citing Kosilek v. Spencer,
774 F.3d 63, 82 (1st Cir. 2014)). 	The court incorporates that
discussion by reference.
Taken as true for the purposes of preliminary review,
Beers’s addended allegations remain sufficient to plead an
Eighth Amendment claim based on issues with his hearing aids and
prescribed medicines (Claim 1(a) & (b)). 	As discussed in the
May 20, 2021 R&R, Beers’s allegations intimating that he is deaf
or hard of hearing and diabetic (or pre-diabetic) suggest that
he may have at least two serious medical needs. 	See Gilmore v.
Hodges, 738 F.3d 266, 276 (11th Cir. 2013) (“Substantial hearing
loss that can be remedied by a hearing aid can present an
objectively serious medical need.”); Hammonds v. Theakston, 833
F. App’x 295, 300 (11th Cir. 2020) (finding that “Type 1
diabetes is a ‘serious medical condition’”). 	Additionally, his
allegations plausibly suggest that those directly involved in
his medical care, including (as alleged) defendant Dr.
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Groblewski, knew of these conditions and purposefully denied
Beers treatment for over a year through a pattern of denying or
delaying prescriptions and functioning hearing aids. 	See Reaves
v. Dep’t of Corr., 333 F. Supp. 3d 18, 24 (D. Mass. 2018)
(finding triable issue on deliberate indifference where there
was a “pattern of denying, delaying, and/or interfering with [an
inmate’s] medical care over a prolonged and significant period
of time”).
Beers’s addended allegations fall short, however, of
stating an Eighth Amendment claim based on the denial of routine
medical appointments or unspecified accommodations (other than
the provision of hearing aids and prescribed medications).
Though Beers has sufficiently alleged severe medical conditions,
his addended allegations do not explain, “with specificity, how
the alleged delay or denial of any medical examinations or the
failure to provide unspecified accommodations related to a
diagnosed medical condition, or other serious medical need,
toward which the defendants acted with deliberate indifference.”
May 20, 2021 Order (Doc. No. 11, at 3-4) (granting Beers leave
to allege additional facts showing these elements). 	As such,
Beers has not shown (1) how his medical conditions were
exacerbated by a delay or denial of routine examinations or
special accommodations, or (2) whether and how the persons
responsible for medical scheduling were aware of the severity of
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Beers’s specific medical needs. 	See Kosilek, 774 F.3d at 83
(deliberate indifference “requires evidence that the failure in
treatment was purposeful” or that prison officials exhibited a
“wanton disregard” to the prisoner’s needs, “requiring
consciousness of ‘impending harm, easily preventable.’” (quoting
Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993))).
Given these deficiencies, Beers’s addended allegations fail
to state an Eighth Amendment claim based on lack of routine
medical care or special accommodations. 	The district judge
should therefore dismiss Claims 1(c) and 1(d).
B. 	Claim 2 – Inadequate Dental Care
In Claim 2, Beers asserts that certain defendants deprived
him of adequate dental care, in violation of the Eighth
Amendment, by canceling dental appointments and not responding
to request slips for teeth cleaning and teeth repair. 	Beers
represents that he has not had his teeth cleaned or repaired for
over two years. 	In his Addendum, he further asserts: that a
licensed dentist has found that he has cavities that need
fillings; that unaddressed cavities can result in heart disease,
kidney failure, or liver problems; that he is at a higher risk
for these adverse health consequences because of his diabetes;
and that he has sent at least three inmate request slips to the
dental department, but received no responses. 	See Addendum
(Doc. No. 11, at 5-6).
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“Denial of dental care is considered a denial of medical
care, which can constitute an Eighth Amendment violation when
prison authorities are deliberately indifferent to a prisoner’s
serious medical needs.” 	Roy v. Wrenn, No. 07-CV-353-PB, 2008 WL
11509969, at *7, 2008 U.S. Dist. LEXIS 19944, at *22-24 (D.N.H.
Feb. 29, 2008), R&R adopted, 2008 WL 11509965, 2008 U.S. Dist.
LEXIS 28220 (D.N.H. Apr. 4, 2008). 	“Although a mere delay in
needed dental care will not violate the Eighth Amendment, when
that delay causes or gives rise to a substantial risk of serious
harm to a prisoner, the requisite deliberate indifference to a
serious medical need is found.” 	Id. (citing Farrow v. West, 320
F.3d 1235, 1243–44 (11th Cir. 2003) (need for dental care
combined with the effects of not receiving it may give rise to
an Eighth Amendment claim), and Boyd v. Knox, 47 F.3d 966, 969
(8th Cir. 1995) (delay in dental care coupled with knowledge of
patient’s pain can support an Eighth Amendment claim)).
Construed liberally, Beers’s addended allegations arguably
suffice to state an Eighth Amendment inadequate dental care
claim based on the allegedly substantial risk of serious damage
to Beer’s future health posed by the denial of Beers’s inmate
requests for fillings and routine care by NHSP Dental Director
White and other dental staff. 	See also May 20, 2021 Order (Doc.
No. 11, at 4) (granting Beers leave to add non-conclusory
allegations showing “(1) how the denial of his requests for
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teeth cleanings or teeth repairs posed a ‘sufficiently
substantial risk of serious damage to [his] future health’;
(2) the identity of the defendants who denied him treatment; and
(3) what each defendant specifically knew and did in response to
each of Beers’s requests for teeth cleanings and repairs”
(citation omitted)). 	Accordingly, in an Order issued
simultaneously with this R&R, the court directs service of
Claim 2 on the NHDOC defendants responsible for providing Beers
with dental care, including Defendant White.
C. 	Claim 3 – Supervisory Liability
For his third claim, Beers contends that the defendants
with supervisory roles over the prison medical department are
liable for their subordinates’ constitutional violations,
including their refusals to respond to inmate request slips,
because the supervisors failed to take remedial actions in
response to Beers’s grievances for denials of medical care.
Compl. (Doc. No. 1, at 16, 20). 	Liberally construed, his
addended allegations fall short of stating a supervisory
liability claim.
To plead a “supervisory liability claim under section
1983,” a prisoner like Beers must, at minimum, “allege facts
showing that the supervisor’s conduct sank to the level of
deliberate indifference” as to the prisoner’s allegedly
unaddressed medical needs. 	See Parker v. Landry, 935 F.3d 9, 14
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(1st Cir. 2019) (citations omitted). 	“A showing of deliberate
indifference has three components: the plaintiff must show
(1) that the officials had knowledge of facts, from which
(2) the official[s] can draw the inference (3) that a
substantial risk of serious harm exists,” id. (internal
quotation marks and citations omitted), “and failed to take
reasonable steps to mitigate or prevent that risk,” Rowe v.
Buss, No. 21-1182, 2021 WL 5232512, at *2, 2021 U.S. App. LEXIS
33389, at *6 (7th Cir. 2021) (internal citations omitted)).
Additionally, “if the complaint contains facts plausibly showing
deliberate indifference, the plaintiff must also allege facts
giving rise to a causal nexus between the supervisor’s acts or
omissions and the subordinate’s misconduct.” 	Parker, 935 F.3d
at 14.
Here, Beers’s allegations, even when liberally construed,
fail to show that any supervisor’s act or omission amounted to
deliberate indifference, or that there is a causal nexus between
a supervisor’s conduct and any of their subordinates’ alleged
violations of Beers’s constitutional rights. 	See May 20, 2021
Order (Doc. No. 11, at 13-14) (requiring that Beers add non-
conclusory allegations showing, among other things, “that the
supervisory defendants knew of, or could have drawn the
inference that, a substantial risk of serious harm to Beers
existed” and “how each supervisor’s acts or omissions
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specifically caused or contributed to an abridgment of Beers’s
constitutional rights by a subordinate”). 	To the contrary, his
addended allegations show that, when alerted to Beers’s hearing
aids issues in late 2020, Warden Edmark, through Medical
Director Mattis, sought additional information from Beers about
the complained-of matters and ultimately had Beers’s hearing
aids sent out of the prison facility for repairs.
As such, Beers has failed to state a claim for relief based
on supervisory liability. 	The district judge should thus
dismiss Claim 3.
D. 	Claim 4 – First Amendment Retaliation
In the May 20, 2021 Order, the court granted Beers leave to
amend his complaint to state a First Amendment retaliation claim
by adding non-conclusory allegations showing a causal connection
between his alleged denial of medical treatment and his alleged
engagement in protected First Amendment conduct. 	Doc. No. 11,
at 16-17. 	The court explained that to do so, Beers had to:
(1) identify the specific individual(s) who allegedly
retaliated against him, (2) allege additional facts
showing what specific adverse action each identified
defendant took against Beers, (3) show how each
adverse action was non-de minimis, and (4) allege
facts showing how Beers’s engagement in activities
protected by the First Amendment was a but-for cause
for each allegedly adverse action taken against him.
Id.
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In his addended complaint, Beers alleges for the first time
that he was fired from his prison job as a result of his hearing
disability and being unable to hear the supervising corrections
officer. 	See Addendum (Doc. No. 18, at 12) (“When a person is
qualified to do a job and you fire him due to his disability
this is harassment.”); id. at 23 (“CO stops me from going to
work for 3 days due to I did not hear him.” (errors in
original)). 	In doing so, he has not alleged that he was fired
for engaging in conduct protected by the First Amendment. 	Nor
has he included any other allegations demonstrating a causal
connection between his previously alleged denial of medical
treatment and protected First Amendment activities. 	As such,
Beers’s addended allegations fail to state a First Amendment
Retaliation claim in accordance with the court’s grant of leave.
See May 20, 2021 Order (Doc. No. 11, at 16-17).
Finally, to the extent Beers seeks to amend his complaint
beyond the scope permitted by the May 20, 2021 Order to state
new causes of action regarding his employment, that request
should be denied. 	Put simply, Beers’s claim(s) that he was
terminated from his job because of his disability do not belong
in this case. 	These claims, which appear to arise under the
Americans with Disabilities Act (“ADA”), involve different
standards of proof from the Eighth Amendment claims presently at
issue. 	Further, these claims do not arise out of the same
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transaction, occurrence, or series of transactions or
occurrences as those asserted in the operative complaint. 	See
Widi v. Fed. Bureau of Prisons, No. 14-cv-160-SM, ** WL **, 2017
U.S. Dist. LEXIS 163828, at *26 (D.N.H. July 17, 2017), R&R
approved, 2017 WL 4335024, 2017 U.S. Dist. LEXIS 161846 (D.N.H.,
Sept. 27, 2017) (dismissing claims without prejudice as “they
involve[d] different proof, different standards, and a different
defendant”); Griffin v. Wrenn, No. 17-cv-161-LM, 2018 WL
3421391, at *6, 2018 U.S. Dist. LEXIS 115325, at *15 (D.N.H.
Apr. 3, 2018), R&R approved, 2018 WL 3421347, 2018 U.S. Dist.
LEXIS 114402 (D.N.H., July 5, 2018) (dismissing unrelated claim
without prejudice to the plaintiff’s ability to refile in a new
case). 	Additionally, Beers’s employment-based claim(s) appears
to center on new defendants who are not pertinent to the
surviving claims in this case. 	Cf. George v. Smith, 507 F.3d
605, 607 (7th Cir. 2007) (“Unrelated claims against different
defendants belong in different suits . . . .”).
Accordingly, to the extent Beers seeks to amend his
complaint to add new, employment-discrimination-stylized causes
of action, the district judge should dismiss those claims
without prejudice to Beers’s ability to refile them in a new
case, if he so chooses.3 	Regardless, the district judge should
3 The court makes no finding, and offers no opinion, as to
whether Beers has sufficiently stated such a cause of action for
purposes of surviving preliminary review or a motion to dismiss
under Fed. R. Civ. P. 12(b)(6)).
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dismiss Count 4, alleging retaliation, for failing to state a
claim.
Conclusion
For the foregoing reasons, the district judge should dismiss
Claims 1(c)-(d), 3, and 4 (as identified in the May 20, 2021 R&R
(Doc. No. 10)) of Beers’s complaint (Doc. No. 1), and dismiss,
without prejudice, Beers’s potential claims of employment
discrimination that are not part of this lawsuit. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 15, 2021
cc: 	Timothy C. Beers, pro se
Nathan W. Kenison-Marvin, Esq.
Stephen J. Soule, Esq.
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