Czekalski et al v. NH Department of Corrections, Commissioner et al

Filing 151

ORDER denying re 142 Motion for for Amended and/or Additional Findings Under 52(b). So Ordered by Judge Joseph N. Laplante.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jason A. Czekalski
v.

Civil No. 17-cv-557-JL
Opinion No. 2022 DNH 040

William Wrenn, New Hampshire Department
of Corrections Commissioner; Christopher
Kench; Paula Mattis; and Jon Fouts

O R D E R
Before the court is the post-judgment motion (Doc. No.
142), filed by Jason A. Czekalski, a prisoner in the custody of
the New Hampshire Department of Corrections (“DOC”), asking this
court to reopen and vacate the March 31, 2021 judgment and the
March 31, 2021 Order (Doc. No. 136) (“March 31 Order”)
underlying that judgment, to the extent that order granted the
defendants’ motion for summary judgment.

Mr. Czekalski also

asks the court to schedule a trial on his Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) claims, and Eighth
Amendment claims concerning his mattress, medication, and
prescription refills.
The defendants object, see Doc. No. 143, observing that
there is no error in the March 31 Order, and that Mr.
Czekalski’s motion is based on evidence and arguments he raised
before entry of judgment, which the court previously deemed

unavailing, and on information which he could have (and should
have) presented then.

Substantially for reasons expressed in

the defendants’ objection, and also because of his post-judgment
transfer from the New Hampshire State Prison for Men (“NHSP”) to
the Northern New Hampshire Correctional Facility (“NCF”), which
has mooted his RLIUPA claim for injunctive relief, Mr.
Czekalski’s post-judgment motion is denied.1

Discussion
I.

Applicable Standard
A.

Which Rule Applies

Mr. Czekalski entitled his post-judgment motion, “Certified
Motion for Amended and/or Additional Findings under Rule 52(b).”
Doc. No. 142.

Rule 52(b) provides, as follows:

On a party’s motion filed no later than 28 days after
judgment, the court may amend its findings – or make
additional findings – and may amend the judgment
accordingly. The motion may accompany a motion for a
new trial under Rule 59.
Fed. R. Civ. P. 52(b) (citing Fed. R. Civ. P. 59).
“In addressing a post-judgment motion a court is not bound
by the label that the movant fastens to it.”

Vasapolli v.

Mr. Czekalski has not challenged the March 31 Order with
respect to his Eighth Amendment claim relating to his broken
eyeglasses, identified in the March 31 Order as Claim 3(g).
Nothing in the record suggests a reason for the court to
reconsider the March 31 Order to the extent it granted
defendants’ motion for summary judgment on that claim.
1

2

Rostoff, 39 F.3d 27, 36 (1st Cir. 1994).

In light of the

arguments Mr. Czekalski makes and the relief he seeks, this
court construes his post-judgment motion as seeking to reopen
the judgment and reconsider the March 31 Order under Rule 59(e),
as well as under Rule 52(b).

B.

Applicable Standard

“The purpose of Rules 52(b) and 59(e) is to allow the court
to correct or amend a judgment in the event of any manifest
errors of law or newly discovered evidence.”

Perrier-Bilbo v.

United States, 954 F.3d 413, 435–36 (1st Cir.), cert. denied,
141 S. Ct. 818 (2020).

In general, successful motions for

reconsideration must show an intervening change in the law, a
manifest error of law or fact underlying the judgment, newlydiscovered evidence that could not have been produced before the
entry of judgment, or manifest injustice if reconsideration is
denied.

See Markel Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21,

32 (1st Cir. 2012) (citing Marie v. Allied Home Mortg. Corp.,
402 F.3d 1, 7 n.2 (1st Cir. 2005)).
Post-judgment motions under Rules 52(b) and 59(e) do not
provide a place for fielding new squads of theories, arguments,
or proof that could have been put in play before entry of
judgment.

See Perrier-Bilbo, 954 F.3d at 435-36 (citing cases).

Courts will not reopen a judgment and reconsider its underlying

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factual findings and legal conclusions based on any arguments or
evidence that the moving party could have, and should have,
raised before the decision issued.

See Banister v. Davis, 140

S. Ct. 1698, 1703 (2020) (Rule 59(e)); Astellas Inst. for
Regenerative Med. v. ImStem Biotechnology, Inc., No. 17-CV12239-ADB, 2022 U.S. Dist. LEXIS 42449, at *12, 2022 WL 715578,
at *4 (D. Mass. Mar. 10, 2022) (Rule 52(b)); Advanced Fluid
Sys., Inc. v. Huber, 381 F. Supp. 3d 362, 382 (M.D. Pa. 2019)
(“Neither Rule 52 nor Rule 59 are intended to allow parties the
proverbial “‘second bite at the apple.’” (citation omitted)),
aff’d, 958 F.3d 168 (3d Cir. 2020).

Discussion
I.

Eighth Amendment Claims
Mr. Czekalski challenges the March 31 Order for failing to

address his Eighth Amendment injunctive relief claims separately
from his Eighth Amendment claims for damages.

Specifically, he

argues, if the court were to find that the DOC mattress policy
is “illegal,” and if there is no other “reasonable method of
controlling [his] pain,” the court could still grant relief on
his Eighth Amendment claims, even without finding any defendant
was deliberately indifferent.

Doc. No. 142, at 1-2.

Mr. Czekalski’s argument lacks any basis in the law.
Irreparable harm and a finding of liability are both necessary

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preconditions to granting injunctive relief.

Permanent

injunctive relief may not be granted in the absence of a showing
of actual success on the merits.

Largess v. Sup. Jud. Ct. for

Mass., 373 F.3d 219, 224 n.2 (1st Cir. 2004); Doe v. N.H. Dep’t
of Corr. Comm’r, No. 21-cv-604-LM, 2022 DNH 023, 2022 U.S. Dist.
LEXIS 39856, at *5, 2022 WL 673251, at *2 (D.N.H. Mar. 7, 2022).
To obtain any relief on his Eighth Amendment claims, the
plaintiff must establish that at least one defendant was
deliberately indifferent to a substantial risk of serious harm,
or that at least one defendant acted with wanton disregard, akin
to criminal recklessness, of the conditions that Mr. Czekalski
alleges deny him the minimal civilized measure of life’s
necessities.

See Abernathy v. Anderson, 984 F.3d 1, 6 (1st Cir.

2020); see also Farmer v. Brennan, 511 U.S. 825, 847 (1994) (“a
prison official may be held liable under the Eighth Amendment
for denying humane conditions of confinement only if he knows
that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to
abate it”).

Evidence of a policy’s unreasonableness or

illegality, untethered from a showing of any defendant’s
deliberate indifference, will not suffice to avoid summary
judgment on his Eighth Amendment claims.

See Farmer, 511 U.S.

at 837 (“The Eighth Amendment does not outlaw cruel and unusual
‘conditions’; it outlaws cruel and unusual ‘punishments.’”).

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II.

Mattress (Claim 1)
Mr. Czekalski seeks reconsideration of the decision to

grant defendants’ motion for summary judgment on his Eighth
Amendment claim alleging he was denied a mattress as necessary
to improve his sleep and reduce his need for medications to
treat his chronic pain (Claim 1).

To avoid summary judgment on

that claim, Mr. Czekalski needed to adduce evidence to allow a
reasonable factfinder to conclude that the acts or omissions of
at least one defendant amounted to deliberate indifference to a
substantial risk of serious harm.

Id. at 834.

And to the

extent that claim challenged the medical care he received, or
the alleged failure to treat his medical condition, the test is
whether at least one defendant has been deliberately indifferent
to his “serious medical needs,” either those that have been
diagnosed as requiring treatment or those that are so obvious
that a layperson could easily recognize the need for medical
attention.

Doc. No. 136, at 14 (citing cases).

As to the existence of a serious medical need, there is no
dispute that Mr. Czekalski suffers from diagnosed conditions of
chronic pain.

The March 31 Order turns, however, on the absence

of evidence that any health care provider has ever expressed the
opinion that a different, thicker, or new mattress was medically
necessary for Mr. Czekalski.

Not even the report prepared by

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Mr. Czekalski’s NHSP physician Dr. Carey Rodd expresses that
opinion, see Doc. No. 125-7, although that report was prepared
for purposes of this lawsuit at Mr. Czekalski’s request, after
Dr. Rodd was no longer employed at the NHSP.

Mr. Czekalski

points to no new evidence or manifest error of law or fact in
that regard.
Mr. Czekalski argues here that people do not need an
expert’s opinion to understand the connection between better
mattresses, better sleep, and better health.

Additionally, he

reports that his own blood pressure readings and self-reported
pain-level indicators (including how well he slept and how many
pain relievers he took each day) all improved when he slept on a
thicker or newer mattress.
Mr. Czekalski’s argument in that regard is both speculative
and beside the point.

The Eighth Amendment does not require

prisons to provide inmates with health-promoting bedding or nonpharmaceutical solutions for better health; it requires prison
officials not to be deliberately indifferent to each inmate’s
serious medical needs, or to any substantial risks of serious
harm to them.

Mr. Czekalski points to no manifest error of law

or fact in the court’s conclusion that he needed medical
evidence and expert testimony tying his medical needs to the
mattress he was using, to avoid summary judgment on Claim 1.

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Furthermore, even if Mr. Czekalski could persuade a
rational factfinder that he had been subjected to a substantial
risk of serious harm by using the mattress he claims was
inadequate, the absence of evidence of any defendant’s
deliberate indifference to that risk is enough to avoid
reconsideration of the March 31 Order.

Mr. Czekalski rehashes

his arguments that only physical manipulation of the mattress
would reveal its condition, and that the defendants who
responded to his grievances were aware that the standard-issue
mattresses compressed quickly over time, causing him pain.

The

March 31 Order explains why the evidence regarding the manner in
which several of the defendants (Major Fouts and Christopher
Kench) responded to his grievances and complaints, did not
suffice to generate a triable issue of their deliberate
indifference, or the deliberate indifference of any other named
defendant.

Nothing in the motion at issue here warrants

reopening the judgment or reconsidering those findings.

III. Prescription Refills (Claim 2)
As to Mr. Czekalski’s prescription refill claim (Claim 2),
this court granted the motion for summary judgment upon finding
the steps outlined in the July 4, 2020 Declaration of Samuel
Fiore, R. Ph. (Doc. No. 122-14) (“Fiore Declaration”), to be a
reasonable response to the prescription refill delay problem

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precluding a finding of deliberate indifference.

Those steps

included, among other things, recruiting staff and hiring an
outside contractor to eliminate the refill backlog that had
resulted from staffing shortages, maintaining open purchase
orders at local pharmacies to reduce out-of-stock delays, and
directing inmates to have prescriptions refilled at sick call,
to address their immediate unmet medication needs.

See Cox v.

Nobles, 15 F.4th 1350, 1360 (11th Cir. 2021) (“the
reasonableness of the response is dependent upon the exigence of
the specific circumstances”), cert. denied, 142 S. Ct. 1178
(2022); Alcorta v. Warden, FCI Berlin, No. 21-CV-250-PB, 2021
U.S. Dist. LEXIS 167832, at *6, 2021 WL 3934355, at *2 (D.N.H.
July 27, 2021) (finding evidence of reasonableness of response
to COVID-19 in reduction of number of cases), R&R adopted, 2021
WL 3930741, 2021 U.S. Dist. LEXIS 166824 (D.N.H. Sept. 1, 2021).
In his motion to reconsider, Mr. Czekalski reiterates and
expands upon matters asserted in his objection to defendants’
summary judgment motion, specifically, that it took four years
for the prison to fix the prescription refill problem.

In

addition, he describes his experience with using sick call to
obtain prescription refills as ineffective, as “it still took
days after going to sick call to receive an already late
prescription.”

Doc. No. 142, at 6-7.

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This court declines to reopen the judgment on the basis of
evidence regarding the time it took to address the problem, as
such information was previously presented and deemed unavailing
in the March 31 Order.

Moreover, the court declines to reopen

the judgment based on the evidence offered here for the first
time, regarding the inadequacy of sick call visits, which Mr.
Czekalski could have presented prior to the entry of judgment.
See Aybar v. Crispin-Reyes, 118 F.3d 10, 16 (1st Cir. 1997) (“‘A
party who sits in silence and withholds potentially relevant
information . . . does so at his peril.’” (brackets omitted)
(citing Vasapolli, 39 F.3d at 36-37)).

Mr. Czekalski fails to

highlight any manifest error of fact or law in the March 31
Order.
But even if Mr. Czekalski could demonstrate a triable issue
regarding the matters described in the Fiore Declaration, he has
failed to demonstrate that there is any manifest error of fact
or law in granting the supervisory official defendants’ motion
for summary judgment on Claim 2.
“[D]eliberate indifference alone does not equate with
supervisory liability,” but rather “[c]ausation [is
also] an essential element, and the causal link
between a supervisor’s conduct and the constitutional
violation must be solid.” . . . [T]he causation
requirement “contemplates proof that the supervisor’s
conduct led inexorably to the constitutional
violation.”

10

Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021) (citations
omitted).

No such evidence of direct, inexorable causation or

deliberate indifference may be found here.
It is undisputed that, in response to his multiple Inmate
Request Slips (“IRS”), prison staff members advised Mr.
Czekalski to go to sick call for refills, see Doc. Nos. 29-2, at
2 & 125-9, at 3; and Mr. Czekalski has presented no evidence
suggesting that any named defendant was subjectively aware that
sick call visits did not yield timely refills for him.
Moreover, defendants and their subordinates explained in
answering Mr. Czekalski’s grievances in 2016/2017 that the
pharmacy problems were under review, that the facility was
seeking a remedy, and that Mr. Czekalski’s suggestions were
noted.

See Doc. No. 29-2, at 3-5.

It is further undisputed

that the steps set forth in the Fiore Declaration represent a
remedy that ultimately worked.

See Doc. No. 142, at 6.

No reasonable factfinder presented with the summary
judgment record could find any named defendant’s conduct to
manifest deliberate indifference that directly and inexorably
caused Mr. Czekalski to be exposed to a substantial risk of
serious harm due to his inability to obtain prescription refills
without delays.

For those reasons, and as explained in

defendants’ objection, see Doc. No. 143, at 6-7, the court
denies Mr. Czekalski’s motion to reconsider its ruling as to

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defendants’ motion for summary judgment on the prescription
refill claim (Claim 2).

IV.

Pain Medication and Inhaler
A.

Acetaminophen (Claim 3(e))

The court’s decision to grant defendants’ motion for
summary judgment as to Mr. Czekalski’s Claim 3(e), regarding his
access to high doses of acetaminophen, turned on the absence of
evidence from which a reasonable factfinder could infer any
named defendant’s subjective awareness of a failure to treat his
serious medical needs.

The grievance documents in the summary

judgment record do not include Mr. Czekalski’s complaint that he
could not buy as much acetaminophen per week as he needed, which
he based upon his providers’ advice not to exceed up to 4000 mg
of acetaminophen per day.

Mr. Czekalski points to no other non-

speculative evidence demonstrating that any named defendant was
aware that he had a serious medical need for high doses of
acetaminophen exceeding the amount he could buy from the canteen
in the relevant time period.

Absent any new evidence or showing

of any error of law or fact in that regard, the court denies Mr.
Czekalski’s motion to reconsider as to Claim 3(e).

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B.

Ibuprofen and Inhaler (Claims 3(a) and 3(b))

With respect to the court’s disposition of his claims
regarding ibuprofen and the asthma inhaler, Mr. Czekalski’s
motion to reconsider is denied.

He rehashes the same arguments

previously considered and rejected by the court, and he fails to
show that there is any new evidence, change in the law, or
manifest error in the March 31 Order’s conclusion that those
claims (Claims 3(a) and 3(b)) reflected only a dispute between
plaintiff and his health care providers as to the appropriate
course of treatment for his medical needs, which cannot form the
basis for relief on his Eighth Amendment claims, as to any of
the non-medically-trained prison officials he has named as
defendants.

V.

Cystoscopy (Claim 4)
For reasons stated in defendants’ objection, Doc. No. 143,

at 10-11, the motion to reconsider the March 31 Order’s
disposition of Claim 4 is denied.

Plaintiff makes no showing of

any manifest error of law or fact underlying the relevant
ruling; his assertions here simply resurrect the same arguments
he previously made.

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VI.

Eighth Amendment Prozac Claim (Claim 3(c))
The March 31 Order’s pretrial disposition of Mr.

Czekalski’s Eighth Amendment Prozac claim (Claim 3(c)) hinged on
the absence of evidence that he had a serious medical need
requiring a dose of Prozac no earlier than mid-morning.

The

motion to reconsider does not demonstrate any manifest error of
law or fact concerning that issue or otherwise show why the
judgment on that claim should be reopened.

Accordingly, the

court denies the motion to reopen to the extent it seeks to
revisit the disposition of Claim 3(c).

VII. RLUIPA Prozac Claim (Claim 5)
The March 31 Order’s disposition of Mr. Czekalski’s RLUIPA
claim turned on the lack of evidence to support a reasonable
finding that the shift in the timing of the NHSP’s morning
medication distribution schedule substantially burdened, and did
not merely inconvenience, his morning prayer practices.
Considering Mr. Czekalski’s sworn testimony and statements, the
court in that Order had calculated that Mr. Czekalski would need
to arise thirty minutes earlier on weekdays to avoid a timeconflict between his prayers and the distribution of medication
during “A Call,” and that on some or all of those days, he could
choose instead to receive medication during sick call.

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In his post-judgment motion, Mr. Czekalski has clarified
that because he also needs time to wash and dress each morning,
see Doc. No. 142, at 10-11, he would need to arise at 4:30 a.m.
each week day and weekend when he prays, to avoid the prayertime/A-Call medication distribution time problem.

And he has

further expanded on the reasons why he does not avail himself of
sick call to receive his morning dose of Prozac, namely, that to
do so, he would miss the classes he takes to receive “earned
time credits.”
Mr. Czekalski could have, and should have offered such
evidence sooner.

He provides no explanation in his motion to

reconsider why he chose not to offer the same sworn statements
before judgment entered.

That reason alone is grounds to deny

his motion for reconsideration.
There is also an independent, alternative jurisdictional
ground for denying the motion to reopen the judgment with regard
to Claim 5, which the parties have not briefed but this court
cannot fail to observe.

Mr. Czekalski has been transferred to

the NCF since judgment entered in this case.
In general, a prisoner’s transfer moots his claims for
injunctive relief challenging prison conditions or policies at
his place of confinement.
(1st Cir. 2014).

See Ford v. Bender, 768 F.3d 15, 29

“[T]he newly situated inmate has no further

need for such declaratory or injunctive relief, for he is free

15

of the policy or practice that provoked his lawsuit in the first
place.”

Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir. 2007).

All of Mr. Czekalski’s claims, including his RLUIPA claim
(Claim 5), concern the conditions at his previous place of
confinement, the NHSP in Concord, New Hampshire.

And the only

relief available on Mr. Czekalski’s Prozac RLUIPA claim is
injunctive relief.

See Apr. 10, 2018 Order (Doc. No. 19)

(approving Mar. 2, 2018 R&R (Doc. No. 10)).
NCF is a different DOC facility, with a different prison
population, a different set of corrections officers under the
supervision of a different warden, and different health care
providers who can adjust his prescriptions and dosages to meet
his current circumstances.

The record lacks any evidence that

the NHSP morning Prozac distribution procedures that concerned
Mr. Czekalski at the NHSP have been applied to him at NCF, and
no evidence suggesting that the supervisory defendants named as
defendants in this case have ever had an opportunity to address
whether the means of distributing medications at NCF could be or
should be adjusted because of his morning prayer practices.
Under such circumstances, there is no manifest error of fact or
law in the court’s decision to grant defendants’ motion for
summary judgment on his RLUIPA claim relating to his morning
prayers and the time and manner of morning medication
distribution at the NHSP.

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Conclusion
For the foregoing reasons Mr. Czekalski’s Rule 52(b)/Rule
59(e) motion (Doc. No. 142) is DENIED.
SO ORDERED.

__________________________
Joseph N. Laplante
United States District Judge
March 29, 2022
cc:

Jason A. Czekalski, pro se
Seth Michael Zoracki, Esq.

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