BOWLER, United States Magistrate Judge.
Pending before this court is a summary judgment motion filed by respondent Carolyn A. Sabol ("Sabol") and a summary judgment motion filed by Harley Lappin ("Lappin") and the United States ("United States") (collectively: "respondents"). (Docket Entry ## 11 & 41). Sabol was the Warden of the Federal Medical Center in Ayer, Massachusetts ("FMC Devens") at the time this action commenced. (Docket Entry # 6). Lappin is the current Director of the Federal Bureau of Prisons ("BOP"). (Docket Entry # 6). Additionally pending are two motions for leave to amend (Docket Entry ## 44 & 47) and a motion for writ of injunctive relief (Docket Entry # 46), all filed by petitioner Emmett Madison Graham, Jr. ("petitioner"), an inmate at FMC Devens.
Petitioner originally filed the above styled petition for habeas corpus on October 27, 2008, under 28 U.S.C. § 2241 ("section 2241") alleging a number of constitutional violations. (Docket Entry # 1). Petitioner moved to amend the petition on December 5, 2008, to add additional claims. (Docket Entry #6). On September 29, 2009, this court allowed the motion to amend thereby adding the following three claims: (1) deliberate indifference to medical needs in violation of the Eighth Amendment; (2) improper denial of good time for disciplinary infractions in violation of the Eighth Amendment; and (3) a loss or miscalculation of good time credit by the BOP in violation of 18 U.S.C. § 3624(b). (Docket Entry # 40).
In a March 2009 motion to amend, petitioner sought to add the United States and Lappin as defendants. (Docket Entry
In a subsequent motion, however, petitioner sought to withdraw all claims except for the deliberate indifference claims regarding petitioner's 2003 heart attack and "being dropped" (henceforth: being dropped claim). (Docket Entry # 35). Petitioner alleges he "was dropped when being transported to the hospital to have his [pacemaker] battery replaced" and that he suffered a heart attack in 2003.
Within that time frame, petitioner filed the two pending motions for leave to amend. (Docket Entry ## 44 & 47). Petitioner neglects to attach proposed amended complaints thereby complicating the task of ferreting out the alleged Eighth Amendment violations. See Novastar Financial Inc., Securities Litigation, 579 F.3d 878, 884 (8th Cir.2009) ("in order to preserve the right to amend the complaint, a party must submit the proposed amendment along with its motion"). Because of petitioner's pro se status, this court will treat the motions and the supporting memoranda (Docket Entry ## 44, 47, 48 & 54) as setting out the allegations petitioner seeks to include at the present time in this action.
On November 4, 2009, petitioner filed the first of the two amendment motions. (Docket Entry #44). The first motion seeks leave to amend the petition to name as respondents the BOP, BOP "employees and doctors," Sandra Howard, M.D. ("Dr. Howard"), Medical Director of FMC Devens, and Jeff Grondolsky ("Grondolsky"). (Docket Entry #44). Respondents filed a partial opposition objecting to the addition of Dr. Howard but not objecting to the substitution of Grondolsky for Sabol. (Docket Entry # 45). Without leave of court, petitioner filed a reply brief. (Docket Entry # 49).
As to the BOP and BOP employees and doctors, respondents do not address the request. As explained below, the BOP is not a proper party in either a section 2241 or a Bivens
Addressing the proper party in a section 2241 proceeding, "The federal habeas statute straightforwardly provides
Vasquez v. Reno, 233 F.3d 688, 691 (1st Cir.2000) (reviewing section 2241 petition).
Neither the BOP nor the unidentified BOP employees and doctors are proper parties in a section 2241 proceeding. As Warden of FMC Devens where petitioner is housed, Grondolsky is the only proper party in a section 2241 proceeding.
The BOP, a federal agency, is also not a proper defendant in a Bivens action. It is well settled that, "The Bivens doctrine ... does not override bedrock principles of sovereign immunity so as to permit suits against the United States, its agencies, or federal officers sued in their official capacities." McCloskey v. Mueller, 446 F.3d 262, 271-272 (1st Cir.2006) (citation omitted); Molina-Acosta v. Martinez, 392 F.Supp.2d 210, 215 (D.P.R.2005) ("federal prisoner may only bring a Bivens claim against a Bureau of Prisons officer in his individual capacity, but in the absence of a waiver, the doctrine of sovereign immunity prevents the prisoner from bringing a Bivens claim against ... the Bureau of Prisons") (citing Correctional Services Corporation v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)). The motion for leave to amend to add the BOP is futile or, stated otherwise, fails to state a claim for relief as to a section 2241 and a Bivens action.
Turning to the November 27, 2009 motion for leave to amend, it seeks to include an Eighth Amendment claim based on a bowel obstruction, back and shoulder pain and inadequate pain medications.
As to the allegations lodged against these individuals, this action at present involves the 2003 heart attack and the being dropped deliberate indifference claims. (Docket Entry # 40; Docket Entry # 6, ¶ 6). The two pending motions to amend seek to add alleged Eighth Amendment violations based on inadequate dental care in 2008 and 2009 (Docket Entry # 48, p. 4 & Ex. B; Docket Entry # 44, Ex. B),
Respondents contend that the proposed amendments are futile because: (1) an Eighth Amendment deliberate indifference claim is actionable only as a Bivens conditions of confinement claim; (2) the claims fail under principles of res judicata or collateral estoppel; (3) the deliberate indifference claim against Dr. Still fails on the merits because petitioner received extensive dental care; (4) the being dropped claim fails against Dr. Howard due to her lack of personal involvement in the alleged unconstitutional conduct; and (5) the heart attack and pacemaker deliberate indifference claim fails on the merits.
It is well settled that futility constitutes an adequate basis to deny amendment.
"As a general matter, a petition for habeas corpus is the appropriate means to challenge the `fact or duration' of incarceration, while challenges to the conditions of confinement are generally brought as civil rights claims under Bivens." Sanchez v. Sabol, 539 F.Supp.2d 455, 459 (D.Mass. 2008); see Kane v. Winn, 319 F.Supp.2d 162, 213 (D.Mass.2004); Kamara v. Farquharson, 2 F.Supp.2d 81, 89 (D.Mass.1998) ("[i]t is a well-settled general principle that a habeas petition is the appropriate means to challenge the `actual fact or duration' of one's confinement, whereas a civil rights claim is the proper means to challenge the `conditions' of one's confinement"). In the event an inmate establishes that his "medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for appropriate treatment, or to award him damages; release from custody is not an option." Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir.2005). Consequently, courts "usually find habeas relief unavailable" where, as here, "a claim involves inadequate medical treatment." Sanchez v. Sabol, 539 F.Supp.2d at 459; see Kane v. Winn, 319 F.Supp.2d at 215.
This case is no exception. The fact that petitioner seeks injunctive relief in the form of being placed under the care of "Dr. Beam" rather than Dr. Barnett and to be placed on effective pain medication (Docket Entry #46) does not merit construing this action as a section 2241 petition. See, e.g., Sanchez v. Sabol, 539 F.Supp.2d at 459 (construing section 2241 petition seeking primary relief of kidney transplant for federal inmate as Bivens action).
The issue therefore devolves into whether to dismiss the petition, require
Respondents next maintain that principles of res judicata, also known as claim preclusion, make the proposed claims against Dr. Howard futile.
In the alternative, the being dropped claim against Dr. Howard is futile given her lack of personal involvement in the incident itself as well as any supervision of the incident. Personal involvement in the unconstitutional conduct is required to maintain a Bivens claim. See McCloskey v. Mueller, 446 F.3d at 271; see also Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.2009).
Turning to the final futility argument, respondents submit that the deliberate indifference claim against Dr. Still fails on the merits because petitioner received extensive dental care. Petitioner alleges that Dr. Still refused to pull an abscessed tooth and provide needed fillings which caused petitioner to lose weight due to the
The exhibits attached to the supporting memorandum reveal that petitioner submitted inmate sick calls on November 1 and 9, 2009, complaining about the need to have a tooth pulled that was causing him severe pain and an inability to eat. On November 12, 2009, petitioner completed a third inmate sick call request again complaining of the pain and asking to have the tooth pulled.
On November 19, 2009, Dr. Still examined petitioner at a dental clinic. During the exam, petitioner complained about a hole in his tooth and pain including thermal sensitivity. He reported the onset as more than one month before the November 19, 2009 examination with a duration of two to six months. Upon examining the tooth, Dr. Still noted a "Defective/Lost Restoration." (Docket Entry #51, Ex. 1(A)). After taking and examining a periapical radiograph, Dr. Still performed an amalgam restoration on the tooth. She counseled petitioner on the plan of care and to follow up at sick call if needed.
While incarcerated at FMC Devens, petitioner also experienced aggressive periodontitis and bone loss in certain teeth. (Docket Entry # 51, Ex. 1(A)). He had a tooth extracted by B. Gelfand, D.D.S. ("Dr. Gelfand") on February 17, 2009. (Docket Entry # 51, Ex. 1(A)). He underwent an amalgam restoration of another tooth by Dr. Gelfand on May 18, 2009. (Docket Entry # 51, Ex. 1(A)). Petitioner had two teeth extracted by Dr. Still on August 21, 2009. (Docket Entry # 51, Ex. 1(A)). On October 8, 2009, petitioner had a composite restoration of a tooth and an extraction of an additional tooth by Dr. Still. (Docket Entry # 51, Ex. 1(A)).
The Supreme Court in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), set forth a two part test for Eighth Amendment violations. "First, the deprivation alleged must be, objectively, sufficiently serious." Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir.2002) (citing Farmer v. Brennan, 511 U.S. at 834, 114 S.Ct. 1970). Second, there must be a showing "that prison officials possessed a sufficiently culpable state of mind, namely one of `deliberate indifference' to an inmate's health or safety." Burrell v. Hampshire County, 307 F.3d at 8 (citing Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970).
Where an issue of deliberate indifference is presented, liability will not lie "unless the official knows of and disregards an excessive risk to inmate health and safety." Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970. "A finding of deliberate indifference requires more than a showing of negligence." Id.; see Burrell v. Hampshire County, 307 F.3d at 8 (deliberate indifference standard requires state of mind "more blameworthy than negligence"). "[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. 1970.
Thus, substandard treatment, "`even to the point of malpractice, is not the issue'" under the deliberate indifference standard. Feeney v. Correctional Medical Services, Inc., 464 F.3d 158, 162 (1st Cir.2006). A disagreement about the appropriate course of treatment "`may present a colorable claim of negligence, but it falls short of alleging a constitutional violation.'" Id.
The care Dr. Still provided falls significantly short of deliberate indifference. The time between petitioner's November
With respect to the remaining allegations identified by this court, petitioner is proceeding pro se and leave to amend is ordinarily freely given. Under Federal Rules of Civil Procedure, Rule 15(a), Fed. R. Civ. P. ("Rule 15(a)"), leave to amend "shall be freely given when justice so requires." Maine State Building and Construction Trades Council, AFL-CIO v. United States Department of Labor, 359 F.3d at 19; see Aponte-Torres v. University of Puerto Rico, 445 F.3d 50, 58 (1st Cir.2006). The same standard applies to supplementing the amended petition to include allegations arising after the filing of the amended petition.
The deadline for filing further amendments has passed. As explained above, this action shall proceed only as a Bivens proceeding.
On January 20, 2009, Sabol, now replaced by Grondolsky, filed the motion for summary judgment.
In the first summary judgment motion, Sabol challenges the deliberate indifference claims on the basis that she was not personally involved in the purportedly unconstitutional conduct. The substitution of Grondolsky and Sabol's dismissal moots this argument.
In the second summary judgment motion, Lappin and the United States raise the previously addressed argument that this case should only proceed as a Bivens action. Lappin additionally argues that he was never personally involved in the allegedly unconstitutional conduct and the United States raises a sovereign immunity argument. (Docket Entry ##41 & 42).
The standard of review for summary judgment is well established. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Carroll v. Xerox Corporation, 294 F.3d 231, 236 (1st Cir.2002) (quoting Rule 56(c)). An issue is genuine where a fact finder could reasonably resolve the issue in favor of either party. See Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). A material fact may "sway the outcome of the litigation under the applicable law." Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir.2006). When analyzing a motion for summary judgment, a court views the evidence in the light most favorable to the non-moving party and all reasonable inferences are drawn in favor of that party. See Buchanan v. Maine, 469 F.3d 158, 165 (1st Cir.2006). "`[C]onclusory allegations, improbable inferences, and unsupported speculation'" will not survive a motion for summary judgment. Cadle Co. v. Hayes, 116 F.3d at 960.
The factual background is not summarized at length because respondents limit the summary judgment challenge to the claim and issue preclusion argument, the lack of personal involvement on the part of Lappin and the sovereign immunity of the United States.
Turning to the factual background, petitioner has been in the custody of the BOP since 1998. (Docket Entry # 12, Ex. 1). He resided in various locations and facilities over the years. (Docket Entry # 12, Ex. 1). From August 1999 to May 2002, he resided at FCI Edgefield in South Carolina. In December 2003, petitioner resided at the Federal Correctional Institution in Glenville, West Virginia ("FCI Gilmer") where he experienced a heart attack and was dropped by BOP officers while being transported on an ironing board. (Docket Entry # 6).
As a result of being dropped, petitioner believes he injured his back and shoulder. (Docket Entry #6). In February 2004, petitioner received a CT scan of the cervical spine. The radiologist reported degenerative changes as well as a disc bulge at C6-7 but found "NO SIGNIFICANT ABNORMALITY ON THE IMAGES OBTAINED." (Ex. A). In November 2006, petitioner underwent another examination of the cervical spine. The radiology report found "moderate multilevel degenerative changes most pronounced at C5-6 and C6-7" with significant narrowing of the disc space. (Docket Entry # 43, Ex. 13).
On July 21, 2008, petitioner had a radiology examination of his left shoulder performed by a medical group at the University of Maryland. The radiology report found abnormal calcification of approximately 1.3 centimeters which the radiologist considered an "old trauma/bursitis." (Docket Entry # 43, Ex. 15). Notes dated two days later on the report reflect that "plaintiff was dropped in 2003 by staff when battery died being taken out to hospital." (Docket Entry # 43, Ex. 15). Dr. Barnett reviewed the report on July 24, 2008. (Docket Entry # 43, Ex. 15).
Petitioner also has a history of a small bowel obstruction. (Ex. A). An April 2000 radiologic report describes "scattered gas" but "no evidence of significant bowel distension." (Ex. A). The report did "not definitively exclude[]" a "small bowel obstruction." (Ex. A). In 2008 petitioner underwent at least two radiology examinations of his abdomen. The report dated February 21, 2008, by the medical group at the University of Maryland describes an "[a]bnormal dilated small bowel loop." (Ex. A). Another report dated September 12, 2008, by the medical group found an "[a]bnormal partial bowel obstruction." (Ex. A).
According to petitioner, BOP staff also allowed his pacemaker batteries to die. (Docket Entry # 6). In April 1996, petitioner had a programmable pacemaker implanted in April 1996. (Ex. A). An August 2, 2002 letter reflects an expected life of the model of the pacemaker as 5.5 years.
In relation to his medical care at FCI Gilmer, petitioner filed a Bivens action against the Warden at FCI Gilmer, the
In June 2006, a magistrate judge issued a report and recommendation that addressed and rejected inter alia the claim that petitioner was dropped from the ironing board on December 20, 2003, thereby injuring his back. The magistrate judge noted that petitioner lost consciousness and was transported to the hospital where corrective measures took place. Stating that petitioner experienced "no substantial or permanent harm as the result of this incident," the magistrate judge found no deliberate indifference relative to petitioner's heart condition. (Docket Entry # 16, West Virginia action).
The magistrate judge also found no indication of the defendants' deliberate indifference to petitioner's back condition. He described the back condition and the treatment petitioner received, including the February 2004 CT scan. The magistrate judge also determined that a refusal to send petitioner to a neurosurgeon for his back and shoulder amounted to a disagreement regarding treatment as opposed to an Eighth Amendment violation.
In addition, the magistrate judge in the West Virginia action pointed out that evaluations of petitioner's pacemaker at regular intervals revealed it was operating normally until a December 17, 2003 appointment during which a technician determined the battery was at the end of its life. The December 20, 2003 incident followed. In May 2007, the district judge adopted the report and recommendation and entered a final judgment. (Docket Entry # 35, West Virginia action).
After leaving FCI Gilmer in 2005, petitioner resided at federal facilities in North Carolina and Indiana before arriving at FMC Devens in August 2007.
In the Massachusetts action, the magistrate judge issued a report and recommendation in August 2009. (Docket Entry # 96, Massachusetts action). On August 20, 2009, the district judge adopted the report and recommendation and entered a final judgment.
On the merits, the magistrate judge rejected the deliberate indifference claim "that Barnett and Mercandante failed to evaluate his pacemaker or replace its battery with sufficient frequency." (Docket Entry # 12, ¶¶ 32-33, 41 & 56, Massachusetts action; Docket Entry #98, Massachusetts action). He determined that petitioner's pacemaker "has been evaluated fifteen times since it was placed." (Docket Entry #98, Massachusetts action). The magistrate judge also addressed and rejected petitioner's claim that he was denied access to a cardiologist while at FMC Devens. With respect to these deliberate indifference claims, the magistrate judge decided as follows:
(Docket Entry # 98, Massachusetts action).
The amended complaint in the Massachusetts action also raised deliberate indifference claims based on a denial of a back brace and a refusal to perform needed shoulder surgery.
(Docket Entry # 98, Massachusetts action).
The amended complaint in the Massachusetts action additionally set out a deliberate indifference cause of action based on the absence of "treatment for a bowel obstruction that has been going on for years," and causing severe pain. (Docket Entry # 12, Massachusetts action). As indicated above, the magistrate judge rejected the claim on the merits.
In seeking summary judgment, as noted above, respondents submit that Lappin was not personally involved and that the United States is entitled to sovereign immunity. They also assert claim and issue preclusion arguments. (Docket Entry ## 11 & 41).
Addressing the arguments seriatim, it is well established that, "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (noting that the respondent "correctly concedes" this principle); see Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) ("the plaintiff must state a claim for direct rather than vicarious liability; respondeat superior is not a viable theory of Bivens liability"). Supervisory liability is warranted where a supervisor is "a primary violator or direct participant in the rights-violating incident" or where "a responsible official supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation." Sanchez v. Pereira-Castillo, 590 F.3d at 49. Overall, there must be "an affirmative link, whether through direct participation or through conduct that amounts to condonation or tacit authorization." Id. "[P]roof of mere negligence, without more, is inadequate to ground supervisory liability." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 583 (1st Cir.1994).
In the amended petition, signed under penalties of perjury, petitioner states that he sent "letters to Harley Lappin" about the pacemaker batteries being allowed to die.
Turning to the next argument, the availability of a Bivens claim "does not overcome bedrock principles of sovereign immunity so as to permit suits against the United States, its agencies, or federal officers sued in their official capacities." McCloskey v. Mueller, 446 F.3d at 272. Simply put, "A Bivens claim does not lie against the United States." Chiang v. Skeirik, 582 F.3d 238, 243 (1st Cir.2009) (citing McCloskey v. Mueller, 446 F.3d at 271-272). The United States is therefore subject to dismissal on summary judgment.
Respondents next submit that claim preclusion bars the 2003 heart attack, including the pacemaker, and the being dropped deliberate indifference claims.
Claim preclusion provides that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citations omitted). The doctrine "applies if (1) the earlier suit resulted in a final judgment on the merits,
Furthermore, "`Under the federal law of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were raised or could have been raised in that action.'" Breneman v. U.S. ex rel. F.A.A., 381 F.3d 33, 38 (1st Cir. 2004) (emphasis added). Consequently, once established, claim preclusion prevents relitigation of not only the claims actually litigated, such as those expressly or impliedly addressed by the magistrate judge in the Massachusetts action, but
A later cause of action can also be sufficiently identical to an earlier cause of action involving the same conduct even if the conduct continues after the decision in the first action. See Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d 1, 3 (1st Cir.2001). Conversely, a "special incident different from what already occurred in the past" in the prior action may serve to differentiate the two causes of action such that claim preclusion does not apply. Id.
Turning to the West Virginia action and as previously indicated the magistrate judge addressed and rejected on the merits a being dropped deliberate indifference claim. As set out in the June 2006 report and recommendation, after being dropped from the ironing board being used as a stretcher, petitioner "lost consciousness and was transported to the hospital where corrective measures were taken, and there is no indication that he suffered any substantial or permanent harm as a result of the incident." (Docket Entry # 16, West Virginia action). The being dropped claim in the West Virginia action centered around the December 20, 2003 incident. Petitioner alleged that FCI Gilmore staff dropped him from the ironing board while transporting him to the hospital thereby injuring his back. (Docket Entry # 1, West Virginia action). This cause of action is sufficiently similar and, indeed, virtually identical to the being dropped deliberate indifference claim in this action.
The Warden and the Hospital Administrator at FCI Gilmer, both defendants in the West Virginia action, hold the same or similar positions as Grondolsky and Dr. Howard in this action. See, e.g., Guzzi v. Clarke, 629 F.Supp.2d 161, 162 (D.Mass. 2009) (sufficient identity between Commissioner of Corrections and Superintendent of a prison and their successors in later suit to find parties were closely related for purposes of claim preclusion). Claim preclusion therefore bars relitigation of the being dropped deliberate indifference cause of action in this proceeding.
The magistrate judge in the West Virginia action also addressed and rejected on the merits the 2003 heart attack and the pacemaker deliberate indifferent causes of action. In the West Virginia action, as previously indicated, petitioner alleged he was denied access to a cardiologist when he arrived at FCI Gilmer in July 2003 and that his pacemaker battery was not replaced or checked on a regular basis. (Docket Entry #1, West Virginia action). The magistrate judge rejected the pacemaker and the 2003 heart attack claims finding that petitioner's pacemaker was regularly checked and that, after being dropped from the ironing board being used as a stretcher, petitioner "lost consciousness and was transported to the hospital where corrective measures were taken, and there is no indication that he suffered any substantial or permanent harm as a result of the incident."
In the alternative as to the pacemaker claim, the magistrate judge in the Massachusetts action also addressed and rejected a pacemaker claim against Sabol, Dr. Barnett, Dr. Howard and others that is sufficiently similar to the pacemaker claim in the case at bar. The fact that the pacemaker claim spans an additional year does not prevent the doctrine's application. See, e.g., Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d at 3 (recognizing that the allegedly same employment discrimination "conduct went on for two more years" than in the earlier action but finding the earlier and later causes of action had the necessary identity to satisfy the second element of claim preclusion). The parties in this action as to this claim are also identical (Dr. Howard) or closely related to the parties in this action as to the pacemaker deliberate indifference claim. See, e.g., Guzzi v. Clarke, 629 F.Supp.2d at 162.
The pacemaker deliberate indifference claim also fails on the merits. There is an absence of evidence to raise a reasonable inference to support the subjective component of a deliberate indifference claim. FMC Devens provided electrocardiograms and there is insufficient evidence to support that respondents were deliberately indifferent to the need to replace the batteries in petitioner's pacemaker.
The magistrate judge in the West Virginia action also addressed and rejected on the merits a deliberate indifference cause of action vis-à-vis petitioner's back condition. In the complaint, petitioner set out a deliberate indifference cause of action based on the lack of medical treatment for his back injury that resulted from the fall from the ironing board.
The Warden and the Hospital Administrator at FCI Gilmer hold the same or similar positions as Grondolsky and Dr. Howard in this action. Likewise, Sabol, a defendant in the Massachusetts action, is closely related to Grondolsky. See, e.g., Guzzi v. Clarke, 629 F.Supp.2d at 162. Petitioner sued Dr. Howard in both the Massachusetts and the present actions. The third element of claim preclusion with respect to the West Virginia and the Massachusetts actions is therefore satisfied with respect to the deliberate indifference claim based on the improper treatment of petitioner's back. In short, claim preclusion bars relitigation of the sufficiently similar deliberate indifference claim in this action and those in the West Virginia and the Massachusetts actions grounded upon the improper treatment of petitioner's back.
In the Massachusetts action, the magistrate judge rejected the deliberate indifference claim regarding the refusal to perform shoulder surgery. The shoulder deliberate indifference claim in the Massachusetts
As to the bowel obstruction deliberate indifference claim, the magistrate judge in the Massachusetts action rejected a sufficiently similar claim based on a failure to adequately treat petitioner's bowel obstruction at FMC Devens stating that:
(Docket Entry # 98, Massachusetts action). As previously intimated, the parties are identical or closely related with respect to this deliberate indifference claim. Claim preclusion therefore prevents petitioner from relitigating the sufficiently identical cause of action based on the improper treatment at the same facility, FMC Devens, in this proceeding.
The deliberate indifference cause of action based upon the failure to send petitioner to a cardiologist is likewise subject to summary judgment based on claim preclusion. The magistrate judge in the Massachusetts action rejected on the merits petitioner's deliberate indifference cause of action claim that he was denied access to a cardiologist while at FMC Devens. Claim preclusion prevents petitioner from raising the virtually identical claim in this proceeding against the same party, Dr. Howard, and the closely related parties, Sabol in the Massachusetts action and now Grondolsky in this action.
In sum, the deliberate indifference causes of action based on being dropped in 2003, the 2003 heart attack, the monitoring of his pacemaker and failure to replace its batteries, the improper treatment of petitioner's bowel obstruction, back and shoulder as well as the failure to send petitioner to a cardiologist and have his pacemaker replaced are subject to summary judgment based on claim preclusion.
Petitioner seeks two forms of injunctive relief. First, he requests that Dr. Beam replace Dr. Barnett as his doctor at FMC Devens because the latter is incompetent and an alcoholic. Second, petitioner requests that he "be put back on pain medication that works-not morphine." (Docket Entry # 46) (emphasis in original).
Petitioner submits that he was under the care of Dr. Barnett "for almost two years" and filed numerous complaints against him. Petitioner further points out that Dr. Barnett was not at FMC Devens "for a few months" due to his "alcohol rehabilitation." During this absence, petitioner alleges that Dr. Beam successfully controlled his blood pressure and pain medication. When Dr. Barnett returned, however, petitioner was again placed under his care. Dr. Barnett proceeded to take petitioner off his pain medication, morphine, "all at once" and has done "nothing for his chronic back and shoulder pain." Dr. Barnett also refused to refer petitioner to a cardiologist and denied petitioner shoulder surgery. (Docket Entry #46).
Petitioner additionally alleges that when "he was out of his medication, it took him almost 3 weeks for Dr. Barnett to order it for him." (Docket Entry # 46). He also contends in a conclusory fashion, see, e.g., Cole v. Maine Dept. of Corrections, 2008 WL 552768, *4 (D.Me. Feb. 27, 2008) (restricting analysis of preliminary injunction motion to non-conclusory argument), that retaliation is the custom and practice at FMC Devens. (Docket Entry # 46).
Petitioner does not identify the date at which point these events took place. The exhibit petitioner filed to support the motion consists of a September 15, 2009 response to a request for an administrative remedy by petitioner. In the response, Grondolsky states that, "A review of your medical records indicates your medications were not refilled." (Docket Entry # 46).
In seeking injunctive relief, petitioner cites "Rule 65(b)," Fed. R. Civ. P. ("Rule 65"), and 28 U.S.C. § 2248 ("section 2248"). Section 2248 is no longer applicable because this action is no longer proceeding as a habeas petition.
Rule 65(b) pertains to seeking and obtaining a temporary restraining order. Petitioner, however, served respondents with the motion for injunctive relief. He also seeks a long term remedy, to wit, being placed under the care of a different doctor. Absent a court finding good cause, a temporary restraining order expires no later than 14 days after entry. See Rule 65(b)(2), Fed. R. Civ. P. Petitioner is proceeding pro se, however, and the motion is properly classified as a motion for a preliminary injunction. See generally San Francisco Real Estate Investors v. Real Estate Investment Trust of America, 692 F.2d 814, 816 (1st Cir.1982) (construing district court order as preliminary injunction as opposed to temporary restraining order given notice and the duration of the court's order as beyond the then ten day limit). Even considering the motion as a motion for a temporary restraining order, however, petitioner is not entitled to relief because the balancing of the relevant factors detailed below does not support an injunction.
For the reasons already discussed, the only remaining underlying deliberate indifference claims in this Bivens action are the inadequate pain medication for petitioner's back, shoulder and teeth (Docket Entry #44, Ex. A & A-1; Docket Entry #47, ¶ 4)
As to the pain medication claim, respondents argue that claim preclusion bars the cause of action. The argument is well taken to the extent it demonstrates the lack of a reasonable likelihood of success.
In this action, petitioner adds to the denial of pain medication claim the more
The parties in the Massachusetts action and this action are identical (Dr. Howard) or sufficiently similar (Sabol in the Massachusetts action and Grondolsky in this action). See, e.g., Guzzi v. Clarke, 629 F.Supp.2d at 162. The additional time span between the Massachusetts action and this action with "no special incident different" from the events in the past relative to denials of pain medication does not avoid claim preclusion. See, Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d at 3 (applying claim preclusion notwithstanding passage of time and noting that "nothing in particular—no special incident different from what had already occurred in the past—is identified as having taken place after 1997"). Accordingly, in light of the relatively strong foundation for claim preclusion barring the inadequate pain medication claim as well as a weak showing to support the merits of a deliberate indifference claim regarding the tooth pain, there is a very weak showing on the reasonable likelihood of success on this claim.
There is also a weak showing on the merits of the deliberate indifference claim regarding the non-renewal of prescription medication.
Petitioner's more recent filing reveals administrative exhaustion of the claim but also shows that petitioner received refills of medication when requested.
Turning to the remaining factors, irreparable harm may exist "if the plaintiff shows that [his] legal remedies are inadequate." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18 (1st Cir. 1996); see also Wolff v. NH Dept. of Corrections, 2007 WL 3232531, *1 (D.N.H. Oct. 30, 2007) (irreparable harm arises
The balance of the interests of the parties does not favor petitioner. Furthermore, it appears that petitioner is receiving constitutionally adequate care such that the public interest in providing constitutionally adequate care in accordance with the Eighth Amendment is being served. Moreover, the public interest is not well served by interfering with and delving into the day to day administration of FMC Devens by ordering the injunctive relief requested by petitioner, to wit, a different physician and "pain medication that works" (Docket Entry #46). See generally Sanchez v. Sabol, 539 F.Supp.2d at 459 (most court "can do is to order BOP officials to review Sanchez's request for a transplant in an expedited manner").
For the above reasons, the motions for summary judgment (Docket Entry ## 11 & 41) are
This action will proceed as a Bivens proceeding. The BOP and the United States are dismissed as parties. Grondolsky is substituted in place of Sabol. The deadline for fact discovery is October 29, 2010. The deadline to file dispositive motions is November 29, 2010. The deadline to file any motion for leave to amend, including a motion for leave to amend to include an additional party, has passed.
(Docket Entry # 6, ¶ 6).
At the end of the reply brief petitioner seeks leave to amend to add "Dr. Barnett." It is neither fair nor appropriate to construe the motion for leave to amend (Docket Entry # 44) as seeking leave to amend to include Dr. Barnett as a respondent. The first motion asks only "[t]o add defendants as: The Federal Bureau of Prisons, Fed. BOP. employees, Doctors' and Sandra Howard is the Clinical Director and `lead [doctor], and J. Grondolsky as custodian." (Docket Entry # 44) (punctuation and brackets in original). The body of the motion refers to Dr. Barnett without prefacing his name with "defendant" or "respondent."
Likewise, the supporting memorandum to the second motion for leave to amend (Docket Entry # 48) refers to Dr. Howard as "defendant" and Dr. R. Barnett as simply Dr. Barnett. The supporting memorandum also asks for leave to add "Dr. D. Still" and proffers additional reasons to support the first motion to amend seeking to add Grondolsky and Dr. Howard. Respondents had the opportunity to address the propriety of adding Dr. Still in their opposition to the second motion to amend. (Docket Entry # 51). They did not, however, have adequate notice or an opportunity to be heard, absent seeking and obtaining leave to file a sur-reply, to petitioner's brevis request to add Dr. Barnett.
A pro se litigant remains subject to the rules of procedure. See Kenda Corp., Inc. v. Pot O'Gold Money Leagues, 329 F.3d 216, 225 n. 7 (1st Cir.2003) ("`[p]ro se status does not insulate a party from complying with procedural and substantive law'"). Petitioner did not recently discover either Dr. Barnett's identity or the facts underlying the alleged unconstitutionality of his conduct. In fact, petitioner named Dr. Barnett as a defendant in a previous conditions of confinement suit in this district but omitted to name him as a defendant or respondent in the motions for leave to amend presumably because petitioner seeks habeas review under section 2241 and/or wishes to avoid the implications of claim preclusion.
A reply brief is not an opportunity to raise new arguments let alone a request to add a new party. See CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, 1526 (1st Cir.1996) (courts are "entitled to expect represented parties to incorporate all relevant arguments in the papers that directly address a pending motion"); McCoy v. MIT, 950 F.2d 13, 23 (1st Cir.1991) ("the plaintiff has an affirmative responsibility to put his best foot forward in an effort to present some legal theory that will support his claim"); In re Boston Regional Medical Center, Inc., 328 F.Supp.2d 130, 143 (D.Mass.2004) (same). The noncompliance with LR. 7.1(b)(3) likewise warrants denying the request to add Dr. Barnett.
The same ruling and reasoning apply to petitioner's allegation of deliberate indifference due to a denial of exercise in a reply brief (Docket Entry # 54) to respondents' opposition (Docket Entry # 51) to the November 27, 2009 motion for leave to amend (Docket Entry # 47). The filing (Docket Entry # 54) is undeniably a reply brief because it responds to a declaration respondents filed on December 14, 2009, to support their opposition.
As to the allegations in 2009, Rule 15(d), Fed. R. Civ. P. ("Rule 15(d)"), as opposed to Rule 15(a), sets out the requirements for supplementing a complaint to set "out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). Like Rule 15(a), futility constitutes a proper basis to deny leave to supplement a complaint. See Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2nd Cir.1995) ("[a]bsent ... futility, the motion [under Rule 15(d)] should be freely granted"); Mueller Co. v. U.S. Pipe & Foundry Co., 351 F.Supp.2d 1, 2 (D.N.H.2005) ("denial of a proposed supplement on the basis of futility is ... proper").
With respect to the plaintiff's back condition, the record contains the February 27, 2004 report of the Lumbar Spine CT the plaintiff underwent on February 23, 2004. The report notes no abnormalities of L1-2 through L3-4. Although a mild disc bulge was evident at L4-5 and possibly L5-S1, there was no significant impingement. Furthermore, there was no HNP or spinal stenosis. The plaintiff's wheelchair was replaced with a cane on December 29, 2004, following a report of normal electromyogram and nerve conduction tests. In addition, at least as of July 5, 2005, the plaintiff had a current prescription for Tylenol # 3. Thus, the record before the Court gives no indication that the defendants have been deliberately indifferent to the plaintiff's back condition. Furthermore, while the plaintiff may wish to see a neurosurgeon with regard to his back and shoulder complaints, there is nothing in the record to suggest that medical personnel who have examined the plaintiff believe such an appointment is necessary. Mere disagreement with regard to treatment does not support a claim that the plaintiff's Eighth Amendments rights have been violated. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985). (Docket Entry #16, West Virginia action).
Rodriguez-Garcia v. Municipality of Caguas, 495 F.3d at 13.
Because the West Virginia action bars relitigation of the being dropped and 2003 heart attack claims, petitioner's argument that the magistrate judge in the Massachusetts action "did not provide a separate analysis on the 2003[] heart attack, being dropped by staff" claims, does not avoid the claim preclusion bar.
Likewise, Graham's allegations concerning a bowel obstruction do not concern a denial of care, but rather a disagreement as to the proper course of treatment ... The same is true for Graham's allegations concerning his blephartis, his pain medication, the back brace, and his request for shoulder surgery. See Id. at ¶¶ 52-82; 84; 67-71.
(Docket Entry # 98, Massachusetts action).
Wolff v. NH Dept. of Corrections, 2007 WL 3232531, *5 (D.N.H. Oct. 30, 2007).
