MARIANNE B. BOWLER, Magistrate Judge.
Pending before this court is a summary judgment motion filed by respondents Jeff Grondolsky ("Grondolsky"), Harley Lappin ("Lappin") and Sandra Howard, M.D. ("Dr. Howard") (collectively: "respondents"). (Docket Entry # 87). Grondolsky is the warden of the Federal Medical Center in Ayer, Massachusetts ("FMC Devens"). (Docket Entry # 44). Lappin is the Director of the Federal Bureau of Prisons ("BOP"). (Docket Entry # 6). Dr. Howard is the Medical Director at FMC Devens. (Docket Entry # 44). Also pending is a motion for leave to amend filed by petitioner Emmett Madison Graham, Jr. ("petitioner"), a former inmate at FMC Devens. (Docket Entry # 84).
Petitioner initiated this action in October 2008 by filing a petition for writ of habeas corpus under 28 U.S.C. § 2241. (Docket Entry # 1). The only respondent named in that petition was Carolyn Sobol ("Sobol"), then warden of FMC Devens. (Docket Entry # 1). In December 2008, petitioner moved to amend the petition to add additional claims. (Docket Entry # 6). In March 2009, petitioner moved for leave to add the United States ("United States") and Lappin as respondents. (Docket Entry # 15). In a subsequent motion, petitioner sought to withdraw all prior claims except for a deliberate indifference claim regarding a 2003 heart attack and "being dropped." (Docket Entry # 35). In September 2009, this court allowed the motion to withdraw clarifying that the amended petition would include "only the foregoing heart attack and `being dropped' deliberate indifference claim against Sabol, the United States of America and Lappin" and setting a deadline of November 27, 2009, to file any additional motion for leave to amend. (Docket Entry # 40).
Within that time frame, petitioner moved for leave to add the following respondents: the Federal Bureau of Prisons ("BOP"); certain unnamed BOP employees and physicians; Dr. Howard; and Grondolsky, who had replaced Sabol as warden of FMC Devens. (Docket Entry # 44). Grondolsky became warden at FMC Devens on August 16, 2009. (Docket Entry # 88, Ex. A, ¶ 2). Also in November 2009, petitioner moved for leave to add Darcel Still, M.D. ("Dr. Still"), Chief Dental Officer at FMC Devens. (Docket Entry # 48). In December 2009, petitioner moved for leave to add R. Barnett, M.D. ("Dr. Barnett") as a respondent. (Docket Entry # 49). Except for the motion to add Grondolsky as a respondent, these amendments failed.
Aside from Grondolsky, Lappin, and Dr. Howard, all other proposed respondents were either added and subsequently dismissed or petitioner's motions for leave to add them were denied. This court issued these dismissals and denials in an August 12, 2010 opinion
At this juncture, only the following claims remain: (1) that Dr. Howard condoned Dr. Barnett denying petitioner pain medication for his back and shoulder (Docket Entry # 44, Ex. A & A-1; Docket Entry # 47, ¶ 4) (ground one); (2) that Dr. Howard condoned Dr. Barnett taking petitioner off morphine and not refilling his blood pressure medications (Docket Entry ## 44 & 48, p. 3) (ground two); (3) that petitioner was placed in administrative segregation on August 5, 2009, in retaliation for seeking administrative remedies and complaining about Dr. Barnett (Docket Entry # 44, p. 9) (ground three); and (4) that petitioner was transferred to more than 16 different institutions in retaliation for exercising his First Amendment rights (Docket Entry # 44, p. 10 & Ex. 5) (ground four). The first two claims allege deliberate indifference to medical care in violation of the Eighth Amendment. The latter two claims allege retaliatory action in violation of the First Amendment. Claim three also alleges that certain conditions of confinement violated the Eighth Amendment.
In July 2010, petitioner was released to home confinement. He now lives in Whiteville, North Carolina. (Docket Entry ## 63 & 66). His sentence expired on December 24, 2010. In light of the conversion to a
On June 7, 2011, petitioner moved to amend the
Out of an abundance of caution, this court issued a Procedural Order on December 8, 2011. The order advised the parties that this court will treat the motion as one for summary judgment. It also allowed the parties "to file additional exhibits" to support or oppose the motion. The order did not allow the parties to file additional claims or additional arguments.
Petitioner nevertheless filed a December 29, 2011 affidavit (Docket Entry # 94) that, in part, includes additional claims and facts not relevant to the remaining claims at issue in the summary judgment motion. Petitioner submitted additional exhibits on January 11, 2012. (Docket Entry # 95). This court therefore considers the affidavit and sets of exhibits only insofar as they include facts relevant to the claims that remain in this action.
Having provided the parties reasonable notice (Docket Entry # 91), this court will treat the motion to dismiss or, in the alternative, for summary judgment as a summary judgment motion. Summary judgment is designed "`to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'"
"A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party."
Facts are viewed in favor of the non-movant, i.e., petitioner.
With respect to grounds one through four, the record shows the following applying the foregoing summary judgment standard. As to petitioner's denial of pain medication claim, on November 14, 2007, Graham sent an Inmate Request form to Dr. Howard stating:
(Docket Entry # 48, Ex. A, pp. 1 & 3). A separate Inmate Request, filed by petitioner on May 20, 2008, requested that Dr. Barnett prescribe him Percocet for his pain because "Tylenol was not working." (Docket Entry # 44, Ex. 3, p. 5). On May 22, 2008, Nurse Stonionis ("Stonionis") replied in writing to petitioner that, "You are scheduled on 5-27-08 @ 12:30 with Dr. Barnett and can discuss this with him at that time." (Docket Entry # 44, Ex. 3, p. 5). On May 27, 2008, petitioner wrote on the May 20, 2008 Inmate Request form that Dr. Barnett "refused to give me proper meds." (Docket Entry # 44, Ex. 3, p. 5).
On October 21, 2009, petitioner sent an Inmate Request form to Dr. Howard stating:
(Docket Entry # 44, Ex. A).
On October 30, 2009, petitioner sent another Inmate Request form to Dr. Howard stating in part that:
(Docket Entry # 48, Ex. A). In response, Dr. Howard wrote on the Inmate Request form that, "I agree with stopping the pain meds .. . Best to learn to live without them." (Docket Entry # 48, Ex. A). Also on October 30, 2009, petitioner filed another Inmate Request form stating that:
(Docket Entry # 48, Ex. A-2).
On November 8, 2009, petitioner filed an Inmate Sick Call Sign Up Sheet upon which he stated, "I am in severe pain in the back — shoulder and hip. Please give me my pain medication." (Docket Entry # 48, Ex. A-1). On November 11, 2009, petitioner filed a new Inmate Sick Call Sign Up Sheet upon which he stated, "My back and shoulder pain is worse than ever. Can't handle walk of severe pain [sic]." (Docket Entry # 48, Ex. A-1).
Next, in regards to petitioner's claim of denial of blood pressure medication, the summary judgment facts are as follows. On July 26, 2009, petitioner visited the FMC Devens Health Services Unit ("the Clinic") because of chest pain, cold sweats and chills. (Docket Entry # 44). On July 28, 2009, petitioner received an ECG that indicated a "normal ECG." (Docket Entry # 48, Ex. A-2). Subsequently, he visited an outside hospital for a chemical stress test and a check for blocked arteries. (Docket Entry # 44, p. 4). During this time, petitioner had difficulty obtaining prescription refills. (Docket Entry # 44, Ex. 2).
On August 2, 2009, petitioner had high blood pressure and received medication for it. (Docket Entry # 44, pp. 5-6). On August 6, 2009, Lawrence Rosenthal, M.D. ("Dr. Rosenthal") of UMass-Memorial Health Care University Campus drafted a Pacemaker Follow-Up Report stating, "No malfunction seen." (Docket Entry # 48, Ex. A-3). On August 19, 2009, petitioner filed a Request for Administrative Remedy attesting that:
(Docket Entry # 44, Ex. 2, p. 4). Grondolsky replied to petitioner's request as follows:
(Docket Entry # 44, Ex. 2).
On March 3, 2010, Harrell Watts ("Watts"), Administrator for National Inmate Appeals, supported Grondolsky's decision. Watts explained that a review of petitioner's medical records "reveals that you have received refills on your medications when you requested" and "you have received prescription refills each time you have presented yourself to the Health Services Unit." (Docket Entry # 62, Ex. B & B-1).
Turning to the facts relative to ground three, on July 30, 2009, petitioner filed an Inmate Request form accusing Dr. Barnett of "sexual abuse/assault" and requesting "a full investigation into this matter and Dr. Barnett be sanctioned. .. ." (Docket Entry # 44, Ex. 3, p. 1). On August 5, 2009, T. Croteau, S.O. ("Croteau") signed an Administrative Detention Order form placing petitioner "in the Special Housing Unit pending SIS investigation for protective custody." (Docket Entry # 44, Ex. 4). The form states that, "[petitioner] has requested admission for protection," and bears the signatures of both Lieutenant C. Enzel ("Enzel") and Croteau. (Docket Entry # 44, Ex. 4). On August 12, 2009, a response to petitioner's request from then-acting Warden Richard H. Russell ("Russell") granted petitioner's request "to the extent that your allegations will be investigated." (Docket Entry # 44, Ex. 3, p. 2).
On August 31, 2009, petitioner addressed the following to "Warden":
(Docket Entry # 89, Ex. D). On September 28, 2009, Watts wrote to petitioner that, "We reviewed the responses provided in this matter and found the Warden's rationale for your placement in AD reasonable and pragmatic." (Docket Entry # 89, Ex. 9). On October 9, 2009, petitioner filed a Central Office Administrative Remedy Appeal in which he wrote that he was "Disatisfied [sic] with the decision" and requested a "full investigation into this matter" and that "Dr. [Barnett] . . . be sanction[ed]." (Docket Entry # 89, Ex. 8).
On May 20, 2010, Lieutenant J. Roberts ("Roberts") filed an order placing petitioner in administrative detention. (Docket Entry # 89, p. 6). The order lists the reason for detention as follows: "You are being placed in Administrative Detention pending protective custody at your own request even though you refused to sign an administrative detention order." (Docket Entry # 89, p. 6). On June 1, 2010, petitioner wrote to Grondolsky stating:
(Docket Entry # 89, Ex. D).
In a sworn declaration filed August 14, 2011, Cheryl Magnusson ("Magnusson"), a legal assistant at FMC Devens, averred that petitioner "failed to raise either a claim that he was placed in administrative segregation on August 5, 2009 in retaliation for exercising his constitutional rights, or a claim alleging that he was transferred to any one or more BOP facilities in retaliation for exercising his constitutional rights." (Docket Entry # 88, Ex. A, p. 2). The summary judgment record is inconclusive as to whether petitioner remained in segregated confinement for the remainder of his incarceration. The record is also inconclusive as to the exact nature and conditions of segregated confinement at FMC Devens.
The petitioner's assertions (Docket Entry # 44) are the only available descriptions of the conditions of his segregated confinement. He contends that he was "denied outside recreation [and] only [had access to] showers three times a week" and that his cell "did not have handrails and a raised toilet seat to meet his handicapped needs." (Docket Entry # 44, p. 16). He asserts that he was subjected to "lights in [his] eyes 18 to 20 hours per day, not outside exercised, [and] not having meaningful access to phone calls." (Docket Entry # 89, p. 4). He also contends that he was "locked down 23 or 24 hours a day." (Docket Entry # 90, p. 2).
Finally, as to ground four, alleging retaliation, petitioner alleges he "has been `transferred' over sixteen (16) times over the years." (Docket Entry # 44, p. 10). He submits that these transfers have caused his "time in the FBOP to be `twice' as hard as a normal inmate's time." (Docket Entry # 44, Ex. 5). The summary judgment facts evidence petitioner was subject to "transfer" on: August 19, 1999; May 30, 2002; March 2, 2006; March 15, 2006; June 28, 2006; September 21, 2006; and August 14, 2007.
Respondents move for summary judgment on the following grounds: res judicata; petitioner's failure to exhaust administrative remedies; his failure to demand money damages; his failure to allege personal involvement by respondents; and/or the merits, as established by petitioner's admissions, including that he suffered no actionable injury. (Docket Entry ## 87 & 88). Grounds one and two raise Eighth Amendment claims of deliberate indifference to petitioner's medical care.
Petitioner brings these actions under a
The Supreme Court in
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."
Thus, substandard treatment, "even to the point of malpractice, is not the issue" under the deliberate indifference standard.
Turning to grounds one and two, petitioner alleges that Dr. Howard condoned Dr. Barnett's denial of medication to treat petitioner's back and shoulder pain. (Docket Entry ## 44, Ex. A & A-1; Docket Entry # 47). Petitioner further maintains that Dr. Howard condoned both Dr. Barnett's denial of petitioner's blood pressure medication as well as Dr. Barnett's refusal to continue petitioner's morphine treatment. (Docket Entry # 47).
Petitioner asserts that respondents "provided substandard care over a long period of time that virtually amounted to no medical care at all as [petitioner's] deteriorated back, shoulder and heart condition clearly shows." (Docket Entry # 48, p. 2). He contends that as a result of respondents' denial of pain medications, he suffered "severe pain in the back — shoulder and hip" and that walking caused him "severe pain." (Docket Entry # 48, Ex. A-1). Respondents "[knew] this would cause `death' or `permanent harm,'" according to petitioner. (Docket Entry # 48, p. 3). Petitioner further alleges that the respondents were "grossly negligent, reckless and callously indifferent, that created a genuine issue of material facts as to whether the supervisory [respondents] were personally involved in violating my rights." (Docket Entry # 48, p. 3).
Respondents' argument that the claim fails on the merits is well founded. First and foremost, substandard treatment and a disagreement regarding the course of treatment do not raise a constitutional issue.
Finally, petitioner fails to show facts that "the officials act[ed] with a sufficiently culpable state of mind" and that the alleged wrongdoing was objectively "harmful enough" to establish a constitutional violation.
In ground two, petitioner alleges that respondents maliciously deprived him of blood pressure medication and morphine. He further submits that respondents "provided substandard care over a long period of time that virtually amounted to no medical care at all as [petitioner's] deteriorated back, shoulder and heart condition clearly shows." (Docket Entry # 48, p. 2). Petitioner also asserts that respondents "conspired to deny [petitioner] medical care at community standards" and that "allowing Dr. Barnett to take [petitioner] off his `morphine' pain medication `all at once' . . . was unjustified knowing this could cause `death' or `permanent harm' and was cruel and unusual punishment." (Docket Entry # 48, p. 3). Petitioner additionally alleges that in committing the above acts and omissions, respondents were "grossly negligent, reckless and callously indifferent, that created a genuine issue of material facts as to whether [respondents] were personally involved in violating my rights." (Docket Entry # 48, p. 3).
Respondents argue that this claim must be dismissed both for failure to allege personal involvement of Lappin and Grondolsky and on the merits because petitioner fails to set out any actual injury. (Docket Entry # 44, Ex. A). Respondents' argument that petitioner's claim is without merit is again well taken.
Petitioner initially intimates that he did not suffer any actual injury as a result of the delay in receiving blood pressure medication: "If it were not for the quick level headed action of P.A. Spada, the unthinkable may well have been what we could be discussing today." (Docket Entry # 44). In the later memorandum in opposition to respondents' motion, petitioner alleges that as a result of his medications being denied, he suffered "irregular heartbeats, heart racing, cold sweats, chills, diarrhea, vomiting, [he] couldn't eat, [had difficulty] sleeping, [suffered] fainting spells, [and] thought [he] was going to die." (Docket Entry # 89). Petitioner further alleges that he "had to stay in pill line for over 45 minutes at times which made his pain worse, as the defendants knew." (Docket Entry # 89).
The summary judgment record shows that petitioner was unable to refill his prescription on July 30, 2009; was without medication on July 31 and August 1; and on August 2 he obtained his medication from the Clinic. (Docket Entry # 44, pp. 3-6). He was therefore without his medication for two days at most. Additionally, petitioner received prescription refills each time he presented himself to the Clinic. (Docket Entry # 89, Ex. B). Here, the lack of access to blood pressure medication for two days does not provide adequate evidence of a deprivation that is "objectively, sufficiently serious."
As for the discontinuation of petitioner's morphine regimen, respondents are correct in that the claim is essentially that petitioner preferred morphine to Advil. As noted above, a disagreement regarding the adequacy or course of treatment does not raise a constitutional issue.
Finally, petitioner's list of ailments allegedly caused by lack of access to medication, including cold sweats, irregular heartbeats and difficulty sleeping (Docket Entry # 89), does not rise to the level of "objectively, sufficiently serious."
While imprisonment does not automatically deprive an inmate of constitutional protections, the Constitution permits greater restriction of such rights in a prison than it would allow elsewhere.
That said, to prevail on a retaliation claim:
Turning to grounds three and four, petitioner alleges generally that respondents retaliated against him in violation of the First Amendment for seeking administrative remedies and filing complaints against FMC Devens staff. The third claim alleges specifically that respondents retaliated against him by placing him in administrative segregation. (Docket Entry ## 47 & 89). This claim also asserts that aspects of segregation violated the Eighth Amendment. (Docket Entry ## 47 & 89). The fourth claim maintains that respondents retaliated against him by transferring him to more than 16 different institutions during his incarceration. (Docket Entry ## 47 & 89).
Ground three sets out the claim that, in violation of the First Amendment, respondents placed petitioner in administrative segregation in retaliation for seeking administrative remedies and filing complaints against FMC Devens staff. Specifically, petitioner asserts that he was:
(Docket Entry # 44, pp. 9-10, Ex. 4).
Petitioner also maintains that certain conditions of his segregated confinement violated the Eighth Amendment. He submits inter alia that his cell "did not have handrails and a raised toilet seat to meet his handicapped needs," he "only [had access to] showers three times a week," and was subjected to "lights in [his] eyes 18 to 20 hours per day . . . [and] not having meaningful access to phone calls (family)." (Docket Entry # 44, p. 16; Docket Entry # 89, p. 4). Respondents argue first that the First Amendment retaliation claim is invalid because petitioner failed to exhaust his administrative remedies prior to filing the
Respondents' argument that petitioner failed to allege involvement on the part of any respondent is well founded. The summary judgment record shows that petitioner was placed in segregated confinement "on or about August 8, 2009." (Docket Entry # 89, Ex. D). As warden of FMC Devens, Grondolsky was the only one of the three named respondents authorized to order petitioner placed in segregated confinement. Respondents correctly note, however, that Grondolsky did not begin his employment as warden at FMC Devens until August 16, 2009, eight days after the order was made. (Docket Entry # 88, p. 1 & Ex. A). It is therefore impossible that any of the named respondents was responsible for placing petitioner in segregated confinement. While Grondolsky was subsequently responsible for determining the appropriateness of petitioner's continued confinement in segregation, the summary judgment record is replete with evidence that petitioner's continued placement in segregation was proper. (Docket Entry # 44, Ex. 3, p. 2 & Ex. 4; Docket Entry # 89, p. 6, Ex. D, Ex. 8 & Ex. 9).
Next, as to the Eighth Amendment claim, respondents argue that it fails on the merits because petitioner was not subjected to unnecessary infliction of pain while in administrative segregation. Regarding petitioner's assertion that conditions of administrative segregation amounted to cruel and unusual punishment, "Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure that inmates receive adequate food, clothing, shelter, and medical care."
Mere discomfort caused by conditions of confinement, without more, does not violate the Eighth Amendment.
For example, the "Eighth Amendment requires prisoners confined to their cells 24 hours a day to have regular exercise."
While the constitution does not compel prisons to provide inmates with outdoor exercise, "the near-total deprivation of the opportunity to exercise may violate the Eighth Amendment unless the restriction relates to a legitimate penological purpose."
A valid Eighth Amendment claim may also exist where a prisoner is subjected to continuous and overbearing lights.
Respondents argue that the Eighth Amendment claim fails on the merits because petitioner has not alleged that he was subjected to unnecessary infliction of pain while he was in administrative segregation. (Docket Entry # 88, p. 15). Respondents' argument is again well taken. Petitioner's contention is that limited access to outdoor recreation (Docket Entry # 44, p. 16), lack of access to a handicap accessible cell (Docket Entry # 44, p. 16), being subjected to artificial lights for 18 to 20 hours per day (Docket Entry # 89, p. 4) and being confined for 23 to 24 hours daily (Docket Entry # 90, p. 2) comprise an Eighth Amendment violation. These conditions as described, however, generally equate to typical and constitutional conditions of segregated confinement,
Further, lack of access to outdoor recreation does not necessarily state an Eighth Amendment claim, particularly where a valid penological interest is served.
Additionally, while petitioner argues that his lack of access to handicapped accessible housing and equipment violates the Eighth Amendment (Docket Entry # 44, p. 16), he fails to set out facts from which to draw a reasonable inference that respondents denied his access with "a culpable state of mind, or deliberate indifference."
Finally, while petitioner claims that being subjected to lights for 18 to 20 hours per day violated the Eighth Amendment, he fails to set out specific facts evidencing that the lights were sufficiently intense and constant to the point of being objectively harmful.
In ground four, petitioner alleges that respondents transferred him to more than 16 different institutions in retaliation for his exercising his First Amendment rights. (Docket Entry # 44 & Ex. 5, pp. 1-6). Petitioner maintains that respondents' actions caused him "mental stress, hardship on [him] as well as [his] family." (Docket Entry # 89, p. 4). He further asserts that the number of civil suits and appeals he has filed while in federal custody are evidence of the validity of his claim. (Docket Entry # 89, p. 4). Respondents' argument that petitioner's claim fails on the merits is again well taken.
Again,
Further, federal law provides that a prisoner may be transferred from one facility to another at any time,
Respondents argue that ground four fails for several reasons. First, they argue that petitioner has again failed to exhaust his administrative remedies. Next, they argue that the claim fails on the merits because, as noted above, 18 U.S.C. § 3621 provides that a prisoner may be transferred at will. Third, they argue that petitioner has not identified any of the respondents as responsible for his being transferred. Fourth, respondents contend that petitioner has alleged no injuries. Finally, respondents maintain that the claim fails under principles of res judicata.
Respondents' argument that the claim fails on the merits is well founded. Although an inmate may not be transferred in retaliation for exercising a constitutional right,
In the alternative, petitioner fails to set forth facts showing "that he would not have been transferred `but for' the alleged reason."
In the memorandum in support of the motion to amend for newly discovered evidence, petitioner sets forth the following allegations:
(Docket Entry # 84). Petitioner submits a number of exhibits in support of these allegations. (Docket Entry # 94). Respondents oppose the amendments on the basis of undue delay and futility. (Docket Entry # 85).
The proposed three additional
Rule 15(a) instructs "that leave to amend a complaint `shall be freely given when justice so requires.'"
Rule 15(d) allows leave to supplement a complaint with facts "setting out" a "transaction, occurrence, or event that happened after the date" of the complaint. Rule 15(d), Fed. R. Civ. P. "Absent undue delay, bad faith, dilatory tactics, undue prejudice to the party to be served with the proposed pleading, or futility, the motion [to supplement] should be freely granted."
Where a party seeks to include additional legal claims after the filing and a ruling on a summary judgment motion, the party must provide "substantial and convincing evidence" to justify the proposed new claims.
As correctly explained by respondents (Docket Entry # 85), the proposed deliberate indifference claims are futile. Alternatively, petitioner unduly delayed bringing these "new" claims or supplemental facts and events. As aptly stated by respondents, petitioner fails to explain why he did not "discover the bases for his four proposed new claims while he was at FMC Devens, or during the first nine months following his release." (Docket Entry # 85). The prejudice to respondents to defend against them, in some instances again because they repeat previously dismissed claims, or anew in this 2008 case is significant. Leave to amend is denied.
Respondents' summary judgment motion (Docket Entry # 87) is
