United States Court of Appeals
For the First Circuit
No. 05-1998
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul Barbadoro, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
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.
June 28, 2006
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
1
ALS is a progressive neurodegenerative disease that causes motor
neurons in the brain and spinal cord to die, affecting the brain's
ability to initiate and control muscle movement. ALS eventually
leads to paralysis and death. See "About ALS: What is ALS?," at
http://www.alsa.org/als/what.cfm (last visited June 23, 2006).
2
Title II of the ADA applies to state prisons. See Pa. Dep't of
Corr. v. Yeskey, 524 U.S. 206 (1998).
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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.
I.
A. Factual History
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
3
On the issue of sovereign immunity, the district court will be
guided by the Supreme Court's recent decision in United States v.
Georgia, 126 S. Ct. 877 (2006).
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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
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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
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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
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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.
4
Under the prison's Policy and Practice Directive (PPD) 1.16, an
inmate who wants to make a request or file a complaint related to
a medical issue must fill out an inmate request slip or request a
"sick call." If unsatisfied with the prison's response, the inmate
may file a grievance with the Warden, and may appeal the Warden's
decision to the Commissioner.
According to Kiman, who described the process of submitting
inmate request slips in his deposition, inmates would place the
request slips in the barrier doors of the cell, and wait for a
corrections officer to pick them up. Usually, a guard would pick
up the request slip at some point each day, but sometimes a few
days would go by before a guard picked up the request. Once the
appropriate prison staff member received the request, a copy of the
request would usually be sent back to the prisoner with a reply.
On some occasions, according to Kiman, he would receive no reply to
his requests.
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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 did
not have his cane, he was not allowed to participate in recreation
in the SHU yard. Instead, Dr. Ward issued him a pass to use the
dayroom for recreation, which, in the SHU, was on the same floor as
both Kiman's cell and the showers.
When Kiman was initially transported to the SHU, he was
handcuffed behind his back and escorted by two corrections
officers. Kiman filed an inmate request slip to complain about the
handcuffing behind his back, which caused him shoulder pain. He
also complained about a lack of medications and exercise. Campbell
issued him a front handcuff pass on October 21, 1998. Kiman stated
5
According to the disciplinary report, Kiman had become
"disruptive and belligerent," making disparaging remarks towards
corrections officers while in the R&D yard.
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in his deposition that the corrections officers never honored the
pass and continued to cuff him behind his back. Kiman issued one
inmate request slip complaining about an incident in which a
corrections officer cuffed him behind his back because Kiman did
not have his pass with him. Kiman stated that the officer himself
had Kiman's pass and knew of his medical condition. Prison
officials stated that the accusation that the officer had taken
Kiman's pass "was found to be untrue" and that prison policy
required Kiman to carry the pass with him. However, on at least
one occasion prior to the issuance of the pass, Campbell observed
that Kiman had arrived to a physical therapy appointment handcuffed
in front and using his cane.
On November 6, 1998, Kiman was moved from SHU to the
Closed Custody Unit ("CCU"), where he remained until November 24,
1998. Kiman did not need to take the stairs in the CCU because
everything was on one level. He filed several inmate request slips
reporting severe pain in his shoulder and arm, lack of exercise,
and low doses of medications. He was told to report to sick call
for medical treatment. He also inquired about a consultation with
Dr. Biletch. Dr. Ward responded, explaining that, in his opinion,
a consultation was not necessary because the prison had received
the records regarding Kiman's neurological testing from earlier in
the year. However, after Kiman filed another request, Dr. Ward
ordered a consultation with Dr. Biletch.
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Kiman was moved to the Minimum Security Unit ("MSU") on
November 24, 1998. While housed in the MSU, Kiman was permitted to
get his medications himself during designated times (rather than
waiting for their delivery) and could use his cane. The beds were
not bunked and thus were accessible from ground level.
Kiman was sent back to R&D on January 4, 1999, pending
review of a disciplinary infraction for disruptive behavior. On
January 5, 1999, Kiman reported that he had fallen in the shower
and had not received adequate care. He requested a shower chair.
A shower seat was left near the showers for his use. However,
according to Kiman's deposition, the security guards used the chair
and would not give him the chair despite his requests. The lack of
a shower chair or handlebars in the shower made it difficult for
Kiman to take a shower. The changes in water temperature would
sometimes trigger cramping in Kiman's muscles, causing him at times
to either fall or, if he felt himself becoming disoriented, sit
down on the shower floor to prevent a fall. When he fell, other
inmates would help him up.
According to his deposition, Kiman also often had trouble
maintaining proper hygiene due to problems with the sink in his
cell. The sink in his cell required him to press down a dial
constantly to get water flow, which Kiman was sometimes too weak to
do. He often relied on his cellmates to help him with grooming and
was sometimes unable to shave on his own. Inmates who were not
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groomed were not allowed to go to meals, and Kiman missed several
meals over the course of his imprisonment.
On January 6, 1999, Kiman requested an "early chow" pass
(also known as a "slow movement" pass). He found it difficult to
wait in long lines, particularly in cold weather, for food.
However, because inmates housed in R&D are either quarantined or
otherwise restrictively confined, they do not eat their meals at
the same time as other inmates. For this reason, prison staff do
not issue early chow passes to inmates housed in the R&D, but will
allow them to take their meals in their cells, a process known as
a "cell feed." Kiman did not request a cell feed while he was in
R&D. Later, when Kiman was to be returned to MSU, where early chow
was permitted, Dr. Ward issued him an early chow pass.
On January 8, 1999, Kiman submitted an inmate request
slip to complain that he was being denied access to the weight room
and to request access to a handicapped shower. He also complained
that he had still not been seen by Dr. Biletch. Dr. Ward explained
to Kiman that Dr. Biletch had to reschedule his appointment due to
a conflict. Dr. Ward did not respond to Kiman's request for a
handicapped shower because he noted that the infirmary had issued
Kiman a shower chair pass. Dr. Ward denied Kiman's request to use
the weight room. Kiman wrote more inmate request slips, requesting
that his passes be renewed and complaining of a lack of physical
therapy. Campbell responded by stating that she was seeing him on
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a regular basis. Dr. Ward stated that all of Kiman's passes would
be renewed.
Dr. Biletch examined Kiman in Manchester on January 21,
1999. Dr. Biletch conclusively diagnosed Kiman with ALS and added
a medication, Riloteck, to Kiman's prescriptions. Kiman returned
to MSU where he remained until he was paroled on January 28, 1999.
Dr. Ward did not order Riloteck for Kiman because the parole board
informed him that Kiman was being released the following week.
Prison medical staff did order that Kiman's other medications be
continued until two weeks after the date of his release.
B. Procedural History
On April 29, 1999, Kiman initiated this action by filing
a charge against the New Hampshire Department of Corrections
("DOC") with the New Hampshire Human Rights Commission. The
Commission informed him that it lacked jurisdiction over Title II
of the ADA and referred him to the United States Department of
Justice ("DOJ"). On May 24, 1999, Kiman filed a complaint under
Title II of the ADA with the Civil Rights Division of the DOJ. The
DOJ ultimately decided not to take action on his behalf. On April
16, 2001, Kiman filed suit in federal court.
The defendants moved to dismiss on August 10, 2001,
arguing that Kiman could not state a claim under Title II because
Congress had exceeded its power under § 5 of the Fourteenth
Amendment when it purported to abrogate the states' Eleventh
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Amendment immunity by adopting Title II. They also argued that
Title II does not provide a cause of action against state officers
in their individual capacities.
The district court granted the defendants' motion to
dismiss, holding that Title II of the ADA was not a valid exercise
of Congress's power to abrogate the states' Eleventh Amendment
immunity. Kiman v. N.H. Dep't of Corr., No. 01-134, 2001 U.S.
Dist. LEXIS 21894 (D.N.H. Dec. 19, 2001). Kiman appealed. A
divided panel of this court reversed and remanded the decision.
Kiman v. N.H. Dep't of Corr., 301 F.3d 13 (1st Cir. 2002)
("Kiman I"). After the defendants filed a petition for rehearing
en banc, an equally divided en banc court withdrew the panel
opinion, Kiman v. N.H. Dep't of Corr., 310 F.3d 785 (1st Cir.
2002), and affirmed the district court's decision without opinion.
Kiman v. N.H. Dep't of Corr., 332 F.3d 29 (1st Cir. 2003) (en
banc). Kiman then petitioned for a writ of certiorari, which the
Supreme Court granted. Kiman v. N.H. Dep't of Corr., 541 U.S. 1059
(2004). The Court remanded the case for further consideration in
light of its decision in Tennessee v. Lane, 541 U.S. 509, 533
(2004) (holding that "Title II, as it applies to the class of cases
implicating the fundamental right of access to the courts,
constitutes a valid exercise of Congress' § 5 authority to enforce
the guarantees of the Fourteenth Amendment"). We then remanded the
case to the district court for further consideration.
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Following discovery, the parties filed cross-motions for
summary judgment. The defendants also filed a motion for late
entry of answer, three years after the answer was initially due,
which prompted the plaintiff to file a motion for default judgment.
The magistrate judge granted the defendants' motion for late entry
and denied the plaintiff's motion for a default judgment. The
plaintiff did not file written objections to the magistrate's
orders. The district court denied the plaintiff's motion for
summary judgment and granted the defendants' summary judgment
motion, concluding that the undisputed evidence established that
the defendants did not violate Title II of the ADA. In so doing,
the district court declined to reach the issue of whether, in light
of recent Supreme Court jurisprudence, Kiman's Title II claims
against the defendants are barred by the Eleventh Amendment.
Having ruled against Kiman's ADA challenge, the district court
opted not to exercise supplemental jurisdiction over Kiman's state
law claims. Kiman then appealed.
During the pendency of the appeal, the Supreme Court
clarified the Eleventh Amendment sovereign immunity issue in United
States v. Georgia, 126 S. Ct. 877 (2006), an ADA suit for damages
brought by Tony Goodman, a paraplegic prisoner in the Georgia state
prison system. The Court held that "insofar as Title II creates a
private cause of action for damages against the States for conduct
that actually violates the Fourteenth Amendment, Title II validly
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abrogates state sovereign immunity." Id. at 882. The Court noted
that many of Goodman's claims -- involving the state prison's
alleged failure to accommodate Goodman's needs regarding mobility,
medical care, and hygiene -- "were evidently based, at least in
large part, on conduct that independently violated the provisions
of § 1 of the Fourteenth Amendment [incorporating the Eighth
Amendment's prohibition against cruel and unusual punishment]."
Id. at 881. The Court remanded the case for further consideration.
Thus, we begin our analysis by examining whether the
district court properly determined that Kiman failed to establish
any genuine issue of material fact on Title II violations of the
ADA. Concluding that Kiman has offered admissible evidence in
support of his Title II allegations that the district court failed
to consider, we then discuss the remaining issues that the district
court will have to resolve on remand involving the liability of
specific defendants, the abrogation of sovereign immunity in light
of the United States v. Georgia decision, and Kiman's state law
claims.
II.
"We review a district court's grant of summary judgment
de novo, viewing the facts in the light most favorable to the
nonmovant." States Res. Corp. v. Architectural Team, Inc., 433
F.3d 73, 80 (1st Cir. 2005) (internal quotation marks omitted).
Summary judgment is appropriate "if the pleadings, depositions,
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answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(c). "Neither party may
rely on conclusory allegations or unsubstantiated denials . . . to
demonstrate either the existence or absence of an issue of fact."
Magee v. United States, 121 F.3d 1, 3 (1st Cir. 1997); see also
Quinones v. Houser Buick, 436 F.3d 284, 289 (1st Cir. 2006).
A. Title II
Kiman argues that the district court erred by granting
summary judgment in this case because material facts are in
dispute.6 The defendants argue that Kiman has not provided any
admissible evidence establishing that material facts are in
dispute. After carefully considering the record, we conclude that
the district court failed to consider admissible evidence that may
-- depending on the resolution of the issues discussed infra --
6
As part of this argument, Kiman contends that the district court
could not have granted summary judgment in favor of the defendants
while simultaneously denying summary judgment for the plaintiff on
the ground that there were disputed issues of fact. This
contention is wrong. The movant for summary judgment has the
initial burden of demonstrating the absence of disputed issues of
material fact. See Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000). One party may be able to
meet its burden on its motion for summary judgment even if the
other party does not meet its burden on its cross-motion.
Moreover, the facts relied on by one party in order to prevail on
its motion may well be different than the facts relied on by the
other party in order to prevail on its cross-motion.
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establish genuine issues of material fact on whether prison
officials violated Title II of the ADA.7
Title II provides that "no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132. Federal
regulations implementing Title II require public entities to "make
reasonable modifications in policies, practices, or procedures when
7
While certain issues remain for the district court to consider,
we can dispatch two of the plaintiff's arguments challenging the
district court's judgment. First, he argues that he is entitled to
default judgment due to the defendants' late filing of an answer.
However, Kiman did not file written objections to the magistrate
judge's orders granting the defendants' motion for late entry of
answer and denying the plaintiff's motion for default judgment. As
such, we will not consider his argument now. See 28 U.S.C.
§ 636(b)(1)(C); Negron v. Celebrity Cruises, Inc., 316 F.3d 60, 61
(1st Cir. 2003) (refusing to consider party's claims where party
failed to file timely objection to magistrate judge's order).
Second, Kiman argues that the district court erred by ruling
on the summary judgment motions based on an incomplete record.
However, Kiman's counsel conceded at oral argument that she did not
file a Rule 56(f) motion for an extension of the summary judgment
deadline. See Fed. R. Civ. P. 56(f) ("Should it appear from the
affidavits of a party opposing the motion that the party cannot for
reasons stated present by affidavit facts essential to justify the
party's opposition, the court may refuse the application for
judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had or may
make such other order as is just."). Since Kiman proceeded to
oppose summary judgment without filing a Rule 56(f) motion with the
district court, he cannot now argue that the district court's
ruling was incorrect due to insufficient discovery. See Rodriguez-
Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 23 (1st Cir. 1999)
("Ordinarily, a party may not attempt to meet a summary judgment
challenge head-on but fall back on Rule 56(f) if its first effort
is unsuccessful.") (internal quotations marks omitted).
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the modifications are necessary to avoid discrimination on the
basis of disability, unless the public entity can demonstrate that
making the modifications would fundamentally alter the nature of
the service, program, or activity." 28 C.F.R. § 35.130(b)(7).8
A plaintiff seeking relief under Title II "must
establish: (1) that he is a qualified individual with a disability;
(2) that he was excluded from participating in, or denied the
benefits of a public entity's services, programs, or activities or
was otherwise discriminated against; and (3) that such exclusion,
denial of benefits, or discrimination was by reason of his
disability." Parker, 225 F.3d at 5. In cases where the alleged
violation involves the denial of a reasonable
modification/accommodation,9 "the ADA's reasonable accommodation
requirement usually does not apply unless 'triggered by a
request.'" Reed v. Lepage Bakeries, Inc., 244 F.3d 254, 261 (1st
Cir. 2001) (discussing the request requirement in the Title I
context). This is because a person's "disability and concomitant
need for accommodation are not always known . . . until the
8
"Because Congress explicitly authorized the Attorney General to
promulgate regulations under the ADA, see 42 U.S.C. § 12134(a), the
regulations 'must [be given] legislative and hence controlling
weight unless they are arbitrary, capricious, or plainly contrary
to the statute.'" Parker, 225 F.3d at 5 n.5 (quoting United States
v. Morton, 467 U.S. 822, 834 (1984)).
9
Generally, the cases construing "reasonable accommodations" are
persuasive authority with respect to cases involving "reasonable
modifications." See McGary v. City of Portland, 386 F.3d 1259,
1266 n.3 (9th Cir. 2004).
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[person] requests an accommodation." Id. However, "sometimes the
[person]'s need for an accommodation will be obvious; and in such
cases, different rules may apply." Id. at 261 n.7.
The defendants do not contest that Kiman is a "qualified
individual with a disability." 42 U.S.C. § 12132. Rather, they
argue that they complied with Title II's requirements, providing
Kiman with the reasonable modifications that he requested, except
where accommodating his requests would endanger prison security.
The district court agreed with the defendants and concluded that
Kiman had presented no admissible evidence showing a violation of
Title II.
Specifically, the district court rejected Kiman's
argument that the defendants inadequately diagnosed and treated his
disability. The court found that Kiman's doctors at the prison
followed the relevant diagnostic protocol and properly treated his
condition, and that any delays in diagnosis were due to scheduling
conflicts and other issues beyond the defendants' control. The
district court did not directly address Kiman's claims that the
defendants denied him access to his prescription medications, but
noted that the defendants renewed the prescriptions for these
medications several times while he was incarcerated.
The district court also rejected Kiman's argument that
the defendants failed to provide him with certain reasonable
modifications. Kiman argued that the defendants had violated the
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ADA by denying his request for the use of his cane, denying his
request for an early chow pass, handcuffing him behind his back
despite a prison pass permitting him to be handcuffed in front,
refusing to provide him with a shower chair or accessible shower
facilities, housing him on the third tier of the prison, requiring
him to sleep on the top bunk, and failing to provide accessible
facilities in his cell. The district court found that the
defendants' decisions to withhold the cane, early chow pass, and
front handcuffing for certain periods were based on security
concerns and did not violate Title II requirements. The district
court also found that the defendant failed to provide any
admissible evidence that he submitted an inmate request slip
requesting to be housed on a lower tier, that he filed a complaint
that his bottom bunk pass was not being honored, or that he
requested handicapped facilities in his cell.
As we explain in further detail below, while we agree
with many of the district court's conclusions, we conclude that
Kiman has presented admissible evidence that may demonstrate four
genuine issues of material fact on whether prison officials failed
to (1) provide Kiman with regular access to his prescription
medications; (2) provide Kiman with access to a shower chair or
accessible shower facilities; (3) honor Kiman's front cuff pass;
and (4) honor Kiman's bottom bunk pass or accommodate his request
to be placed on a lower tier. We begin by addressing the district
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court findings with which we agree, and then focus on the four
aforementioned issues.
1. No Genuine Issue of Material Fact
a. Diagnosis and Treatment of Kiman's ALS
Kiman challenges many of the decisions that the
defendants made regarding his medical care and treatment after his
ALS symptoms first appeared. He argues that his condition worsened
because the defendants were incompetent in diagnosing him, failed
to seek a specialist consultation promptly, failed to provide him
with the appropriate physical therapy, prescribed inadequately low
dosages of his medications, and failed to provide him with regular
access to his medications.
Medical care is one of the "services, programs, or
activities" covered by the ADA. See Georgia, 126 S. Ct. at 881
(stating that the "deliberate refusal of prison officials to
accommodate [the plaintiff's] disability-related needs in such
fundamentals as . . . medical care . . . constituted 'exclu[sion]
from participation in or . . . den[ial of] the benefits of' the
prison's 'services, programs, or activities'" (quoting 42 U.S.C.
§ 12132)). However, courts have differentiated ADA claims based on
negligent medical care from those based on discriminatory medical
care. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144
(10th Cir. 2005) ("[P]urely medical decisions . . . do not
ordinarily fall within the scope of the ADA or the Rehabilitation
-22-
Act."); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) ("The
ADA does not create a remedy for medical malpractice."). As we
have previously explained,
a plaintiff's showing of medical
unreasonableness [under the Rehabilitation
Act] must be framed within some larger theory
of disability discrimination. For example, a
plaintiff may argue that her physician's
decision was so unreasonable -- in the sense
of being arbitrary and capricious -- as to
imply that it was pretext for some
discriminatory motive, such as animus, fear,
or apathetic attitudes. Or, instead of
arguing pretext, a plaintiff may argue that
her physician's decision was discriminatory on
its face, because it rested on stereotypes of
the disabled rather than an individualized
inquiry into the patient's condition -- and
hence was unreasonable in that sense.
Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001) (internal quotation
marks and citations omitted) (concluding that doctor's decision to
refer HIV-positive patient to another hospital was not so
unreasonable as to constitute discrimination under the
Rehabilitation Act).10
Kiman has not established that the defendants' actions
regarding his diagnosis, medical consultations, physical therapy,
or medical dosages were so unreasonable as to demonstrate that they
were discriminating against him because of his disability. As the
10
Because Title II of the ADA is modeled on § 504 of the
Rehabilitation Act, Pub. L. No. 93-112, 87 Stat. 355 (1973)
(codified as amended in scattered sections of 29 U.S.C.), "we rely
interchangeably on decisional law applying § 504." Parker, 225
F.3d at 4.
-23-
district court noted, prison medical staff sought Kiman's medical
records, arranged an outside specialist consultation, and made
reasoned medical judgments about the types of treatment and
physical therapy that they thought were appropriate in his case.
Kiman presents no evidence, beyond his conclusory arguments, that
the defendants' medical treatment decisions violated Title II of
the ADA. When the decision being challenged is "simply a reasoned
medical judgment with which the patient disagreed," it is more
appropriate for the patient to turn to "state medical malpractice
law, not [the ADA]." Lesley, 250 F.3d at 58.
b. Request for a Cane
Kiman argues that the defendants violated Title II by
denying him the use of his cane for two periods: (1) when he
returned to prison and was "quarantined" in September 1998 and (2)
when he was housed in SHU, a high security unit. While the
district court noted that Kiman requested the use of his cane
during these periods, it concluded that the prison had appropriate
reasons for denying his requests.
The district court found that, during the initial
quarantine period, the defendants were attempting to verify Kiman's
need for the cane for both medical and security reasons. Kiman had
not used a cane when he was previously in the prison and, at the
time he reentered the prison in 1998, was able to walk without it.
The defendants emphasize that, during his initial quarantine
-24-
period, Kiman was confined to his cell at all times except for a
short daily walk to and from his shower. The defendants argue that
his medical need for the cane was not obvious and that corrections
officers would have been available to help Kiman on his walk to his
shower, if he had requested their assistance. On these facts, we
agree that the defendants' delay in permitting Kiman the use of his
cane while they verified his need for it was not a violation of
Title II.
Kiman was eventually permitted to use his cane, but
during his stay at the SHU (a maximum security unit), the
defendants took away his cane for security reasons. Inmates in the
SHU left their cells only for showers and recreation. The
defendants again explain that corrections officers would have been
available to help Kiman walk to the shower, if he had requested
their assistance. Without his cane, however, Kiman was not
permitted to visit the prison yard for outdoor recreation. Upon
learning of this, his doctor issued Kiman a day pass to use the
dayroom for recreation. The district court noted that Kiman does
not point to any other prison program or service that he was unable
to participate in because he did not have a cane, which the
district court noted could be used as a weapon. We agree that
Kiman has failed to establish that the defendants violated Title II
by denying him the use of his cane while he was placed in the SHU.
-25-
c. Request for Early Chow Pass
On January 6, 1999, Kiman requested an "early chow" or
"slow movement" pass, which would have allowed him to bypass the
long lines for meals. At the time of his request, Kiman was housed
in the R&D unit pending administrative review of an alleged
disciplinary infraction. Due to heightened disciplinary concerns,
inmates housed in the R&D do not eat their meals at the same time
as the rest of the inmate population. Thus, "slow movement" passes
are not available to them. Instead, inmates may request a "cell
feed," i.e., the option of eating their meals in their cells.
Kiman has presented no evidence that he requested a cell feed. We
agree with the district court that Kiman has not established a
triable issue of fact with regard to this requested accommodation.
2. Potential Issues of Material Fact
We are not without sympathy for the district court, which
was faced with a ponderous record and insufficient help from
counsel. Nevertheless, we conclude that the district court erred
in failing to consider evidence that may create a genuine issue of
material fact related to the defendants' denial of Kiman's access
to prescription medications, a shower chair or accessible shower
facilities, front cuffing, and bottom tier and bunk placements. We
address these issues in turn.
-26-
a. Access to Prescription Medications
Kiman argues that corrections officers routinely failed
to provide him access to the medications prescribed by his doctors.
Kiman issued inmate request slips on October 8, 12, 14, and 19,
1998, complaining of the failure of corrections officers to deliver
his medications on a timely and regular basis. Prison medical
staff responded by informing Kiman that it was his responsibility
to request a renewal of his prescriptions after they had expired.
The district court noted this fact. However, according to the
affidavit of Judith LaForest, Department of Corrections Director of
Pharmacy, Kiman's initial prescriptions were valid from September
24 through October 24, 1998, and thus had not expired during the
period of time he complained that he was not receiving the
medications. Kiman also continued to complain about the irregular
delivery of his medications, submitting additional inmate request
slips on November 8 and 23, 1998, and mentioning the problem with
medical staff during appointments on November 11 and 17, and
December 3, 1998. According to Kiman's deposition, he experienced
problems receiving his medication off and on throughout his time in
prison.11 At no time did prison officials address his complaints
11
In response to questions about receiving medication in his
deposition, Kiman stated that "my medications were so sporadic I
couldn't even begin to tell you when I got my medications because
there was days I didn't get them and possibly even weeks" and that
"there was no . . . time at prison that I ever received my
medication properly on a daily basis or the right dosage."
-27-
except to tell Kiman that he should renew his medications when they
expire.12
Access to prescription medications is part of a prison's
medical services and thus is one of the "services, programs, or
activities" covered by the ADA. See Georgia, 126 S. Ct. at 881.
Unlike the defendants' decisions regarding the diagnosis and
treatment of Kiman's ALS, the defendants' failure to give him
access to his medications is not, on these facts, a medical
"judgment" subject to differing opinion -- it is an outright denial
of medical services. Kiman has presented evidence supporting his
assertions that he was not receiving his medication on a regular
basis, that he informed prison officials, and that they did not act
despite his repeated requests. Given the defendants'
acknowledgment of Kiman's serious disability and his acknowledged
need for these medications, Kiman may have demonstrated a triable
issue of fact as to whether some corrections officers and prison
medical officials failed to provide him with access to his
prescription medications in violation of Title II of the ADA.
12
The prison apparently does not keep records on whether prisoners
are receiving their medications on a timely basis. Instead,
according to LaForest's affidavit, the prison pharmacy keeps track
of how much medication prisoners return to the pharmacy as a means
of tracking prisoner compliance. For example, if no pills are
returned to the pharmacy, pharmacy staff assume that the prisoner
has taken all of his medication. Of course, the other possibility
is that the prisoner did not receive his medication. LaForest
noted that only two tablets of Baclofen and none of the Trazodone
were returned to the pharmacy from September 24 through October 24,
1998.
-28-
b. Access to a Shower Chair or Accessible Shower
Facilities
Kiman argues that corrections officers prevented him from
using a shower chair that had been provided for him and did not
respond to his requests for accessible shower facilities. The
district court concluded that "Kiman . . . has presented no
admissible evidence that corrections officers prevented him from
using a shower chair. All he offers is an unsubstantiated
allegation on this point." The district court acknowledged that
Kiman had requested accessible shower facilities, but noted that
Dr. Ward did not respond to this request because he knew that Kiman
had been issued a shower chair pass. The court thus rejected
Kiman's claims regarding this accommodation.
However, after carefully reviewing the record, we
conclude that Kiman has presented admissible evidence that
corrections officers prevented him from using the chair. Kiman
stated in his deposition that a shower chair was brought near the
showers in R&D for his use, but corrections officers would sit on
the chair and refuse to allow him to use it despite his repeated
requests.13 Kiman also stated in his deposition that there was one
13
Q: And did you ever receive a shower chair?
A: I never received a shower chair.
Q: Was a shower chair ever brought to the shower area?
A: There was a shower chair brought when I was in R&D, not in my
unit, but where a guard would sit when people were out on meal time
or guard. He used my shower chair.
Q: He used your shower chair? And did you ask him if you could
-29-
shower available for individuals with disabilities in the MSU, but
the defendants did not give him access to that shower despite his
requests.14
The defendants acknowledged, through the issuance of a
shower chair pass, Kiman's serious disability-related needs. Yet
Kiman has presented evidence that corrections officers prevented
him from using the shower chair or accessible shower facilities
use your shower chair?
A: Every day, all the time, whenever I was out to take a shower,
I would ask to use that chair.
Q: And what would his response be?
A: And when I say he, I mean whoever was on. I don't mean one
person. . . . I never got the chair.
Q: Did they say anything to you?
A: Not much, no.
Q: They just refused to give up the chair?
A: Yeah, exactly.
Q: And so how did you shower?
A: Same way I always did, just get in and get out, just, feel
something coming on, just sit down before you fall in.
Q: Now, you were in, when you fell in the shower, were there any
handicapped rails or –
A: No.
Q: No? Were there any hand, were you ever offered the use of any
handicapped showers?
A: No.
Q: Were you ever offered the use of any handicapped facilities?
A: No.
14
Q: Were there ever any handicapped facilities in any of the cells
you inhabited at the prison?
A: My only recollection of wherever I was in that prison, it was
like there might have been one shower or something in MSU that had
a little thing on it. That's it. Other than that, no.
Q: Were you allowed to use that shower at MSU?
A: If somebody was in it, you don't get it.
Q: Did you have to make a special request?
A: As I did regularly.
Q: And was it honored?
A: No.
-30-
despite his repeated requests. We therefore conclude that Kiman
has presented admissible evidence regarding his access to a shower
chair and facilities. See Schmidt v. Odell, 64 F. Supp. 2d 1014,
1033 (D. Kan. 1999) (denying defendants' summary judgment motion,
concluding that "there is a genuine issue of fact as to whether the
defendants failed to make reasonable accommodation for plaintiff's
disability, including by . . . failing to timely provide a shower
chair"); Kaufman v. Carter, 952 F. Supp. 520, 532-33 (D. Mich.
1996) (denying defendants' summary judgment motion where plaintiff
provided evidence that prison failed to provide him with a shower
chair or accessible shower facilities).
c. Request for Front Cuff Pass
Kiman argues that it was a violation of Title II for
corrections officers to handcuff him behind his back. Because of
the cramping of muscles in his shoulders, handcuffing him behind
his back caused him pain, and also prevented him from using his
cane to support himself as he walked. Campbell issued a front cuff
pass for him. The district court stated that "[t]he record reveals
only one instance in which Kiman was handcuffed behind his back
after Bernadette Campbell issued him a front cuff pass shortly
after he requested one." The district court noted that prison
staff conducted an investigation of the incident and determined
that Kiman had not been carrying his front handcuff pass with him
-31-
at the time and thus it was reasonable for them to cuff him behind
his back due to the lack of verification of his needs.
However, Kiman presented evidence through his deposition
testimony that corrections officers would not honor his front cuff
pass during the times they cuffed him.15 Given that he was often
cuffed when taken out of his unit to and from prison programs and
services, the pain caused by the lack of front cuffing affected his
access to a variety of the "services, programs, or activities"
covered by Title II of the ADA. 42 U.S.C. § 12132. The defendants
acknowledged the importance of this accommodation by issuing the
15
Kiman stated repeatedly during his deposition that his hands were
not cuffed in the front after the issuance of the front cuff pass:
Q: [D]o you recall ever having a physician's order indicating
how your hands should be cuffed because of your disorder?
A: I know there was one issued eventually. . . . I actually
had a handcuff pass similar to that bottom bunk pass.
Q: And were they handcuffed in the front?
A: No.
...
Q: [T]here was an order that your cuffs, were to be, you
would be cuffed in front; is that correct?
A: Right.
Q: And were you cuffed in front?
A: No.
Q: Was there any acknowledgment or any, did they pay any
attention to that physician's order?
A: No. My physician's order was never paid attention to at
all.
. . .
Q: Were you, at any point in time when you were in CCU, cuffed
with your hands in the inappropriate cuffing position for you?
A: Oh, yeah. If you ever left the unit to go somewhere,
you're being cuffed.
Q: Did they cuff it according to your doctor's orders?
A: No.
Q: Okay. So that order was ignored?
A: That order was ignored . . . .
-32-
front cuff pass. However, they argue that prison policy required
that Kiman carry his pass with him at all times and that, at least
in one instance, Kiman was not carrying his pass.
The evidence indicates Kiman had informed the defendants
that, on that occasion, the corrections officer who would not cuff
him in front knew that he had a pass and in fact had taken the pass
from him. The defendants' statement that Kiman's accusation "was
found to be untrue," without more, does not demonstrate the absence
of a triable issue of fact on this issue. See Magee, 121 F.3d at
3 ("Neither party may rely on . . . unsubstantiated denials . . .
to demonstrate either the existence or absence of an issue of
fact."). Furthermore, one can infer from Kiman's deposition
statements that corrections officers failed to honor his front pass
on more than that one occasion. On these facts, we believe that
there is a dispute as to whether corrections officers refused to
honor Kiman's front cuff pass and requests for front cuffing.
d. Request for a Bottom Bunk Pass, a First Tier
Assignment, and Accessible Cell
Kiman also argues that he was forced to reside on the
third tier of the prison and sleep in a top bunk. The district
court found that Kiman never formally requested accommodations,
emphasizing the requirement that Kiman submit an inmate request
slip or file a formal complaint. "Kiman has presented no evidence
that he submitted either a proper request to be moved from the
-33-
third tier or a complaint that his bottom bunk pass, issued the day
after he returned to prison, was not being honored. Similarly,
there is no record evidence that he ever asked to be housed in a
cell equipped with handicapped bathroom and shower facilities."
The district court is correct that the record does not
indicate whether Kiman requested to be placed in an accessible
cell. However, there is evidence, in the form of Kiman's
deposition testimony, that he requested to be placed on a bottom
tier and in a bottom bunk, but was not accommodated.16 Kiman has
presented evidence that he informed the defendants of the serious
nature of his disability and they had acknowledged, by issuing the
bottom bunk pass and cane pass, that Kiman had mobility problems
that required certain accommodations. Yet, according to Kiman's
deposition, corrections officers nonetheless failed to respond to
his request for a lower tier or his complaint that he was being
kept on a top bunk. This presents an issue of fact regarding
16
Q: You told me that you were in a bottom bunk in MSU, right?
A: I was in a single bed, yes.
. . .
Q: [W]as there any other time when you were allowed a bottom bunk?
A: I cannot recollect that. All my paperwork, and from what I
remember, I was always on a top bunk. I might have been on a
bottom bunk once, but –
Q: Do you remember?
A: Like I say, I requested to go to the bottom. I requested . .
. to go to the bottom tier. They put me on a third tier. I
requested that I can't get up in my bunk without help from a
cellmate, and I was kept on a top bunk.
-34-
whether the corrections officers failed to provide him with these
reasonable accommodations.
In summary, we conclude that Kiman has presented evidence
establishing factual disputes that might, depending on the
resolution of the issues discussed infra, be material and,
therefore, suffice to resist summary judgment on whether
defendants denied him access to (1) his prescription medications,
(2) a shower chair or accessible shower facilities, (3) front
cuffing, and (4) lower tier and bottom bunk placements, in
violation of Title II.
B. Remaining Issues for Consideration
As discussed above, evidence from Kiman's deposition, not
addressed by the district court, and viewed in Kiman's favor as it
must be on summary judgment, may permit a factfinder to conclude
that Kiman's rights under Title II of the ADA were violated by
prison officials. For this reason, remand is warranted. However,
having identified these issues, we recognize that there are still
significant hurdles for Kiman to overcome.
1. Defendants' liability
Several courts have held that Title II does not provide
for suits against state officials in their individual capacities.
See, e.g., Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002);
Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98, 107
-35-
(2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005
n.8 (8th Cir. 1999). The district court did not reach this issue
in its opinion, nor did the parties present it on appeal. Earlier
in the long proceedings in this case, the plaintiff stated that he
would drop suit against the prison officials in their individual
capacities, see Kiman I, 301 F.3d at 17, but this has not
happened.17 On remand, the district court will have to consider
this issue.
If the various defendants can be sued in their individual
capacities, a discrete analysis of their respective roles in the
four claims still at issue would be necessary to determine which
defendants should remain subject to potential liability (and on
which claims). If an individual was not involved in one or more of
those claims, the district court must grant his or her motion for
summary judgment to that extent (or, if a defendant was not
involved in any of the claims, totally).
Regardless of whether the defendants can be sued in their
individual capacities, a discrete analysis of the claims still at
issue would be necessary to establish the state's ultimate
17
We assume that Kiman's statement was made with respect to his
Title II claims against the defendants. Assuming his state law
claims are viable, Kiman could pursue those claims against some of
the defendants in their individual capacities.
-36-
responsibility for the individuals' actions.18 The defendants argue
that they were not on notice of Kiman's problems due to his failure
to pursue the full grievance procedure in several instances. It is
an open question whether Kiman must have formally complied with the
prison's grievance procedure, in addition to any informal
complaints made to prison guards and staff, in order to pursue
claims of Title II violations against the prison. Under the ADA,
a person normally must make a specific request for the modification
in question, see Reed, 244 F.3d at 260, and the New Hampshire State
Prison crafted its grievance procedures so that it could address
prisoners' complaints. If a prison is faithful in utilizing its
grievance procedure and inmates clearly recognize that compliance
with that procedure is the only acceptable method for airing their
complaints, it may well be that a prisoner must follow that
procedure before pursuing a Title II claim. However, in the Eighth
Amendment context, the lack of formal compliance with a grievance
procedure is not a defense to liability for those prison officials
who were aware of a prisoner's serious medical needs and refused to
help. See Alsina-Ortiz v. Laboy, 400 F.3d 77, 82 (1st Cir. 2005)
(noting that prisoner's failure to file a formal complaint of
inadequate care "hardly negates the possibility that he was
18
Suing state officials in their official capacities is tantamount
to suing the state. See New Eng. Reg'l Council of Carpenters v.
Kinton, 284 F.3d 9, 14 n.1 (1st Cir. 2002).
-37-
manifestly in need of attention" and that a prison official knew of
his needs yet refused to assist him or advise other staff, in
violation of his Eighth Amendment rights). We have not addressed
this issue in the Title II context. On remand, the district court
will have to consider this issue carefully.
2. Sovereign Immunity
The district court will also have to address the issue of
sovereign immunity. The defendants argued that the state's
sovereign immunity was not validly abrogated by Title II of the
ADA. The district court did not address this issue in its opinion.
The Supreme Court's recent decision in Georgia clarifies the
appropriate inquiry on remand. The district court will have to
determine, on an issue-by-issue basis, "to what extent [the alleged
Title II violations] also violated the Fourteenth Amendment" and
"insofar as such misconduct violated Title II but did not violate
the Fourteenth Amendment, whether Congress's purported abrogation
of sovereign immunity as to that class of conduct is nevertheless
valid." See Georgia, 126 S. Ct. at 882.19
19
Kiman did not argue that the defendants' conduct violated his
constitutional rights in his briefs before the district court or on
appeal. He argued more generally that Congress could abrogate the
state's sovereign immunity through Title II of the ADA, without
regard to the distinction between alleging violations of
constitutional rights or violations of Title II that are
prophylactic in nature. We will not fault him for failing to
anticipate the Supreme Court's precise holding in Georgia. The
district court should examine whether a reasonable factfinder could
conclude that the defendants' conduct violated Kiman's rights under
-38-
3. State law claims
Because the district court granted summary judgment in
favor of the defendants on Kiman's ADA claim, the court declined to
exercise supplemental jurisdiction over his state law claims.
Assuming that, after the analysis outlined above, some of Kiman's
Title II claims against the defendants remain viable, the district
court will have to assess his state law claims as well.
III.
After carefully reviewing the record, we conclude that
Kiman presented relevant evidence on his Title II claims, which, at
this point, precludes a conclusion that the defendants have carried
their burden of establishing the absence of genuine issues of
material fact. In order to determine whether they have carried
that burden, the district court will need to address the issues we
have highlighted. We intimate no view as to how the court should
resolve those issues or as to how it ultimately should rule on the
vital question of whether any or all of the defendants have shown
an entitlement to summary judgment.
Because we conclude that summary judgment was
improvidently granted, we vacate the district court's order and
remand for proceedings consistent with this opinion.
the Fourteenth Amendment, including his Eighth Amendment rights.
See Georgia, 126 S. Ct. at 881.
-39-
So ordered. Costs are awarded to the appellant.
-40-
Kiman v. New Hampshire Department of Corrections
Court: Court of Appeals for the First Circuit
Date filed: 2006-06-28
Citations: 451 F.3d 274
Copy Citations