Gray v. Englander et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeffrey M. Gray
v. 	Case No. 20-cv-155-SE
Celia Englander, et al.
Report and Recommendation
Jeffrey M. Gray, who is incarcerated and proceeding pro se,
brought claims under 42 U.S.C. § 1983, against medical staff at
the New Hampshire Department of Corrections (“DOC”), alleging
violations of his Eighth Amendment right to treatment for his
medical conditions.1 	Defendants Judy Baker, Bernadette Campbell,
and Lisa Savage move to dismiss the claims against them as
untimely. 	Gray did not file a response to the motion.2
Standard of Review
When defendants move to dismiss a claim based on the
statute of limitations, they must show that the allegations in
the complaint “leave no doubt that an asserted claim is time-
1 The defendants are DOC physicians Dr. Celia Englander and
Dr. Jeffrey Fetter; former DOC Physical Therapist Bernadette
Campbell; and former DOC Nurse Practitioners Corina Neculai,
Lisa Savage, Diane Desmarais, and Judy Baker.
2 The motion was filed in October of 2021. 	When Gray had
not filed a response by February of 2022, he was granted
additional time to do so. 	Despite that extension of time, Gray
did not file a response.
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barred.” 	Corelik v. Costin, 605 F.3d 118, 121 (1st Cir. 2010).
The court will grant the motion if “(i) the facts establishing
the defense are definitively ascertainable from the complaint
and the other allowable sources of information, and (ii) those
facts suffice to establish the affirmative defense with
certitude.” 	Id. 	That analysis includes a determination that
the allegations and properly considered documents “fail[] to
‘sketch a factual predicate’ that would provide a basis for
tolling the statute of limitations.” 	Abdallah v. Bain Cap. LLC,
752 F.3d 114, 119 (1st Cir. 2014). 	In assessing the complaint
for purposes of timeliness, the court takes the properly pleaded
facts as true and draws reasonable inferences in favor of the
plaintiff. 	US Bank, N.A. v. HLC Escrow, Inc., 919 F.3d 17, 21
(1st Cir. 2019).
Background
Gray arrived at the New Hampshire State Prison (“NHSP”) and
then was transferred to the Northern New Hampshire Correctional
Facility (“NCF”) in September of 2012. 	Later, on an unspecified
date, he was transferred back to the NHSP. 	He was released in
April of 2020.
During his initial medical evaluation at NHSP in September
of 2012, Gray told defendant Lisa Savage, who was then a nurse
practitioner at the prison, about his chronic lower back pain,
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ulcers, and sleep apnea that he alleges were related to his
service in the U.S. Army. 	Savage denied his request for pain
management and a CPAP machine for sleep apnea.
He requested referrals to the pain management clinic over
the next five years, which were denied. 	Pertinent to the
pending motion, defendant Judy Baker, a nurse practitioner at
NCF denied his request in November of 2012. 	Defendant
Bernadette Campbell, who was a physical therapist at NHSP,
denied his request for referral in November of 2014. 	He
received a CPAP machine in March of 2016. 	Gray was referred to
the pain management clinic by Dr. Rodd in September of 2017
until March of 2018, when Dr. Rodd retired.
Gray filed the complaint in this action on January 22,
2020. 	On preliminary review, the court dismissed his official
capacity claims but determined that Gray alleged sufficient
facts to support personal capacity claims under the Eighth
Amendment, for deliberate indifference to his serious medical
needs, against the seven named defendants, including Lisa
Savage, Judy Baker, and Bernadette Campbell. 	The other four
defendants, Celia Englander, Jeffrey Fetter, Corina Neculai, and
Diane Desmarais, have not been served.
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Discussion
Defendants Savage, Baker, and Campbell move to dismiss
Gray’s claims against them as barred by the statute of
limitations. 	The relevant limitations period for § 1983 actions
is provided by the statute of limitations for personal injury
actions in the state where the claim arose. 	Gorelik v. Costin,
605 F.3d 118, 121 (1st Cir. 2010). 	The applicable statute of
limitations in New Hampshire is three years from the date the
claim accrued. 	Id. (citing N.H. Rev. Stat. Ann. § 508:4). “A
§ 1983 claim accrues when a plaintiff knows or has reason to
know of his injury.” 	Fincher v. Town of Brookline, 26 F.4th
479, 486 (1st Cir. 2022).
Gray alleges that he informed Lisa Savage of his medical
conditions in September of 2012 during his initial medical
intake examination. 	He further alleges that Savage knew of his
back pain and sleep apnea conditions but denied him treatment,
including denying him a referral to the pain management clinic.
He alleges that he was given a CPAP machine in March of 2016 for
sleep apnea. 	He alleges that he was referred for pain
management for his chronic back condition in September of 2017
by Dr. Rodd.
He alleges that Judy Baker, a nurse practitioner at NCF
first knew of his chronic back condition in October of 2012. 	He
alleges that she denied his request for a referral to the pain
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management clinic for his back in November of 2012. 	Gray
alleges that Bernadette Campbell became aware of his chronic
back pain in November of 2014, when she denied his request for a
referral to the pain management clinic. 	With respect to Savage,
Baker, and Campbell, Gray alleges that his lack of medical care
was “ongoing” but provides no specifics about when and how care
was denied.
As alleged in the complaint, Gray knew that Savage denied
his request for a referral to the pain management clinic in
September of 2012, that Baker refused his request for referral
in November of 2012, and that Campbell refused his request in
November of 2014. 	He knew at those times that he had the
chronic back condition, which he alleges required pain
management, and the sleep apnea condition, which he alleges
required a CPAP machine. 	He also knew that his requests had
been denied. 	Gray’s Eighth Amendment claims accrued when the
defendants refused his requests for treatment. 	Therefore, his
claims accrued against Savage and Baker in 2012 and against
Campbell in 2014, but he did not bring suit until January of
2020, long past the three-year limitation period.
To the extent Gray may have intended to allege a continuing
violation based on delayed treatment, his allegations do not
state that claim. 	An actionable continuing violation occurs
when a series of wrongful acts cumulatively causes an injury
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within the limitations period but not when a plaintiff’s rights
are violated outside the limitations period and then continue to
be violated over a period of time, extending into the
limitations period. 	Gorelik, 605 F.3d at 122; see also Ayala v.
Shinseki, 780 F.3d 52, 57 (1st Cir. 2015). 	In other words, once
a plaintiff is injured by a discrete act or omission and knows
or should know of the injury, the limitations period begins to
run then, even when additional misconduct occurs. 	See
Hokenstrom v. N.H. Dep’t of Corrs., 2015 U.S. Dist. LEXIS
166182, at *9 (D.N.H. Nov. 19, 2015).
In this case, Gray alleges that Savage, Baker, and Campbell
denied his requests for a CPAP machine and referral to the pain
management clinic, which violated his Eighth Amendment rights at
specific times outside of the limitations period. 	Whether he
intended to allege that they also denied his requests at other
times is unclear, but such allegations would not delay the
accrual date of his claims. 	Gray’s allegations state claims
that accrued in 2012 as to Savage and Baker and in 2014 as to
Campbell. 	Because he did not file suit until 2020, his claims
are time barred and should be dismissed.
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Conclusion
For the foregoing reasons, the district court should grant
the motion to dismiss filed by defendants Savage, Baker, and
Campbell (document no. 18).
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. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Natl Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) are precluded on appeal. 	See id. 	Failure to
file any 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
April 20, 2022
cc: 	Jeffrey M. Gray, pro se
Counsel of Record
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