NATHANIEL M. GORTON, District Judge.
This case arises out of a dispute concerning the treatment of plaintiff's Hepatitis C while he was an inmate in a Massachusetts correctional facility. Plaintiff claims that 1) healthcare personnel at Old Colony Correctional Center failed to provide him with satisfactory medical care in violation of the Massachusetts Tort Claims Act, M.G.L. c. 258, § 2, and Article 26 of the Massachusetts Declaration of Rights and 2) retaliated against him when he reported the inadequate care.
Summary judgment motions filed by 1) Geraldine Riendeau and Dyana Nickl, 2) the Massachusetts Partnership for Correctional Healthcare ("the Partnership"), Paul Caratazzola and Patricia Davenport-Mello and 3) Barbara Berg are currently pending before the Court. For the reasons that follow, the motions will be allowed.
When this law suit was filed,
The first two defendants, Geraldine Riendeau and Dyana Nickl, are associated with a department of the University of Massachusetts Medical School ("UMMS") known as the University of Massachusetts Correctional Health ("UMCH"). The Massachusetts Department of Correction ("DOC") hired UMMS to provide medical care to OCCC prisoners from 2003 through June, 2013. Nickl served as the UMCH Grievance and Appeals Coordinator. Riendeau is a registered nurse and worked as the Department's Health Service Administrator. UMCH was also initially a defendant.
The second set of defendants is associated with the Partnership, a private company that replaced UMCH as the healthcare provider at OCCC in July, 2013. Defendant Paul Caratazzola started working as the Partnership's Health Service Administrator in July, 2013. At the same time, Defendant Pat Davenport n/k/a Patricia Davenport-Mello began working as its Director of Nursing. The Partnership is also a defendant. Collectively, the Partnership, Caratazzola and Davenport-Mello are referred to as "the Partnership defendants".
Finally, defendant Barbara Berg worked for both UMCH and the Partnership. UMCH hired her to work at OCCC as a licensed nurse practitioner in 2003. In July, 2013, when the Partnership replaced UMCH, it hired Berg and she continued to work at OCCC.
Plaintiff suffers from chronic Hepatitis C, end-stage liver disease, cirrhosis of the liver and liver cancer.
From 2003 to 2013, UMCH handled plaintiff's medical care. Plaintiff admits that from November, 2003 to May, 2004, UMCH healthcare personnel treated his Hepatitis C using Peg-Interferon, also known as Peg-Intron, and Ribavirin. Plaintiff also concedes that the treatment with those drugs was suspended because he became anemic, experienced fluid buildup in his abdomen and had "vision changes with cotton woolspots seen on his eye exam".
Plaintiff was treated at Tufts-New England Medical Center ("Tufts") in August, 2005 and April, 2006. In 2005, medical records show that a doctor concluded that plaintiff was not a good candidate for a liver transplant because there was a higher risk that he would die from a transplant than from his liver disease. In 2006, medical records show that another doctor determined that plaintiff's liver disease was stable and recommended that he lose weight and stop using narcotics to reduce the risk that would accompany a liver transplant. Plaintiff denies the assertions regarding a possible transplant based on lack of knowledge but provides no support for his denials. He admits that between 2008 and 2012 UMCH personnel continued to monitor his liver disease with scans and medical consultations.
As plaintiff concedes, in 2011, the Food and Drug Administration ("FDA") approved new medicines for the treatment of Hepatitis C, Boceprevir and Teleprevir. They both must be taken, however, with Peg-Interferon, the drug to which plaintiff reacts negatively.
In March, 2012, a third doctor determined that plaintiff was ill-suited for a transplant because the lesion on his liver was too small. Plaintiff disputes that conclusion, asserting that he was stable and could have received a transplant but provides no support for his position. He admits that he saw various medical personnel in 2012 and 2013 and that there was continued surveillance of his medical situation, including a CT scan, an MRI, a fine needle biopsy and a radio frequency ablation of the lesion on his liver.
In July, 2013, the Partnership became the medical provider for OCCC. In April, 2014, the Director of Clinical Services of the DOC Health Services Division wrote plaintiff a letter stating that the Partnership had no alternative to the Peg-Interferon treatment for Hepatitis C and explaining that his negative reaction to the treatment could result in blindness if that treatment continued.
Plaintiff does not dispute that when the Partnership took over his case in July, 2013, healthcare personnel monitored his condition with lab tests and consultations with medical experts while the Partnership was waiting for the FDA to approve a new medication to treat Hepatitis C. The FDA approved Harvoni as a Hepatitis C treatment in October, 2014 and in January, 2015 Plaintiff saw a healthcare professional who recommended that he be treated with Harvoni. Shortly thereafter, he participated in a successful 12-week Harvoni trial. After the trial, plaintiff no longer tested positive for Hepatitis C. Plaintiff admits all of these facts but contends that if he had gotten treatment earlier, it would have prevented him from contracting liver cancer. After the successful treatment, Partnership professionals continued to monitor plaintiff for the return of Hepatitis C and to provide care for other medical conditions.
Lopes does not dispute that in May, 2016 he told the Partnership that he refused to undergo any follow-up treatments for liver disease and any gastrointestinal evaluations. He also signed a "Release of Responsibility" form that stated that he was aware of the risks of refusing treatment. Plaintiff explains that he has refused treatment to "protest[] the inadequate treatment . . . which led to liver cancer".
In 2012, plaintiff filed a complaint against Riendeau with the Division of Health Professions Licensure. He alleges that she retaliated against him by asking Berg to confiscate his medicine in early 2013. This Court liberally construed the
According to Berg, plaintiff's medications were removed from his cell in February, 2013 because he was non-compliant with the guidelines concerning his "keep on person" ("KOP") medications. Consequently, UMCH required him to get his medications from the medication line. Defendant Berg's version of the facts is supported by a letter from Lawrence Wiener, the Assistant Deputy Commissioner of Clinical Services, which states that plaintiff was found to be non-compliant in a KOP drug audit. Plaintiff denies that he was non-compliant but provides no other support for his denial.
In February, 2014, plaintiff filed suit alleging that defendants provided inadequate medical treatment in violation of 1) the Eighth Amendment under 42 U.S.C. § 1983, 2) Article 26 of the Massachusetts Declaration of Rights and 3) the Massachusetts Torts Claims Act, M.G.L. c. 258, § 2 ("MTCA"). Plaintiff also claims that defendants retaliated against him in violation of the First Amendment under 42 U.S.C. § 1983. He seeks access to alternative medications, specifically, Boceprevir and Teleprevir, a liver transplant and compensatory and punitive damages. Defendants timely responded to the complaint.
In March, 2015, this Court adopted the Report and Recommendation ("R&R") of Magistrate Judge Marianne Bowler ("MJ Bowler") and allowed UMCH's motion to dismiss the claims against it and summary judgment of dismissal of the 42 U.S.C. § 1983 Eighth Amendment claim against the Partnership defendants and Berg. In March, 2016, this Court adopted the portion of MJ Bowler's second R&R which allowed summary judgment of dismissal of the Section 1983 Eighth Amendment and retaliation claims against Riendeau and Nickl. The remaining claims are that Riendeau and Nickl, the Partnership defendants and Berg failed to provide adequate healthcare in violation of Article 26 and the MTCA and that Berg and the Partnership retaliated against plaintiff.
In July, 2016, three separate motions for summary judgment were filed by 1) Riendeau and Nickl, 2) the Partnership defendants and 3) Berg. That same month, the
The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial."
If the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue.
Defendants move for summary judgment on all remaining claims against them.
Article 26 of the Massachusetts Declaration of rights prohibits cruel or unusual punishment. Mass. Const. Pt. 1, Art. 26. The protections enshrined in Article 26 "are at least equally as broad as those guaranteed under the Eighth Amendment."
The Article 26 standard is "virtually identical" to the Eighth Amendment standard.
Defendants Riendeau and Nickl move for summary judgment on plaintiff's Article 26 claim. They assert that the Court's conclusion in March, 2016 that Riendeau acted reasonably and that they neither ignored plaintiff's medical conditions nor violated the Eighth Amendment necessitates the conclusion that they did not violate Article 26. Plaintiff responds that defendants "failed to address the state law claims".
Riendeau and Nickl's assertion that dismissal of the Eighth Amendment claim warrants entry of summary judgment on the Article 26 claim is well taken.
Caratazzola, Davenport-Mello and the Partnership contend that summary judgment is appropriate with respect to plaintiff's Article 26 claim against them because 1) the Court previously determined that they did not act with deliberate indifference, 2) they provided plaintiff with adequate care and 3) the Partnership cannot be held liable on a respondeat superior theory. Plaintiff responds that the Partnership defendants fail to address his allegations adequately and that genuine issues of material fact remain.
The Partnership defendants correctly contend that they are entitled to summary judgment on the Article 26 claim. The Court's earlier conclusion that those defendants did not act with deliberate indifference under the Eighth Amendment indicates that the same conclusion is warranted for Article 26.
Plaintiff alleges that Caratazzola and Davenport-Mello prevented healthcare providers from prescribing medications without Peg-Interferon to him. Defendants contend that they withheld the Boceprevir and Telaprevir that plaintiff requested because he "has a specific viral mutation, which predicts resistance to . . . Boceprevir and Telaprevir." Defendants support their statement with an affidavit from Dr. Maria Angeles and a hospital record dated July, 2014. Lopes denies the statement but offers no support for his denial. He further contends that his negative reaction to the medications was discovered years after he was first denied treatment.
Although the Court must draw reasonable inferences in favor of plaintiff, it
As for plaintiff's contention that his resistance to the drugs was discovered long after he was first denied treatment, the record shows that the Partnership was aware of it about a year after it took over plaintiff's treatment. Given the complexity of the medical situation and the ongoing monitoring from the Partnership, this delay fails to demonstrate that it "kn[e]w and disregard[ed] an excessive risk to inmate health or safety."
This Court's determination that the undisputed facts show that Caratazzola and Davenport-Mello did not act with deliberate indifference necessitates the conclusion that the Partnership did not act with deliberate indifference because plaintiff makes no allegation of the Partnership misconduct aside from the specific actions of those individuals. Accordingly, summary judgment of dismissal of the Article 26 claim against all three Partnership defendants is warranted.
Defendant Berg, who worked as a licensed nurse practitioner for both UMCH and the Partnership, also moves for summary judgment on plaintiff's Article 26 claim. She asserts that, because this Court determined that the medical care that she provided was not deliberately indifferent under the Eighth Amendment, the conclusion that it does not violate Article 26 necessarily follows. She further asserts that plaintiff's allegation that she required him to wait in line for his medicine does not show deliberate indifference. Plaintiff responds that Berg's motion inadequately addresses his allegations.
Viewing the facts in plaintiff's favor, the Court agrees that summary judgment is warranted on the Article 26 claim against Berg. As she points out, because the deliberate indifference analysis for the Eighth Amendment is virtually identical to the analysis under Article 26, the Court's earlier dismissal of plaintiff's 42 U.S.C. § 1983 claim indicates that dismissal of the Article 26 claim is appropriate.
Moreover, plaintiff's allegations against Berg are limited. He contends that she "confiscate[d his] medications from his cell and told him he has to . . . wait in a medication line". Although he admits that Berg's stated reason for these actions was that he was "hoarding meds", plaintiff asserts that Berg was acting on Riendeau's orders and Riendeau was retaliating against him. As this Court previously determined,
There is no evidence that, by requiring plaintiff to wait in line for his medications, Berg was aware of and ignored plaintiff's health issues.
In sum, there is no genuine issue of material fact that prevents summary judgment on the Article 26 claim against Berg. She did not act with deliberate indifference and she is entitled to summary judgment on the Article 26 claim as a matter of law.
The MTCA allows suits against public employers for the "negligent or wrongful act[s] or omission[s] of public employees." M.G.L. c. 258, § 2. Under the MTCA, public employees are immune from liability for negligent or wrongful acts if they are acting within the scope of their employment.
The fact that UMMS is a public employer does not, however, automatically render its personnel public employees.
That test considers whether the employee is "subject to the direction and control of the Commonwealth."
Riendeau and Nickl contend that they are public employees of UMCH, a department of UMMS, and thus immune from suit under the MTCA. To support that contention, they submitted affidavits with respect to who directed and controlled their work. Riendeau's affidavit states that she worked for UMMS between 2012 and 2013 and it paid her salary but UMCH determined her hours, chose the patients that she saw and oversaw her treatment decisions. Nickl also submitted an affidavit that states that UMMS paid her salary but UMCH determined her schedule and controlled the details of her work.
Plaintiff disputes the facts offered in the affidavits on the grounds that his "complaint does not reference the allegation". He does not dispute the truth of the statements in the affidavits. Accordingly, because the Court is not obliged to consider plaintiff's conclusory denials of who directed and controlled the work of Riendeau and Nickl, it considers those facts undisputed.
Moreover, plaintiff's allegation that defendants acted with deliberate indifference does not support an intentional tort claim that would fall outside of the immunity provided by the MTCA.
The Partnership, Caratazzola and Davenport-Mello, move for summary judgment on the MTCA claim on the grounds that the Partnership is a private contractor, not a public employer, and thus the MTCA does not apply to it. Plaintiff admits that the Partnership is a privately owned company and that it, not the DOC, is responsible for its staff members. Lopes also admits that Caratazzola and Davenport-Mello have never been employed by the DOC, although he contends that they "acted in concert with the DOC and other defendants".
The position of the Partnership defendants that no MTCA claim can be asserted against them is well taken. The MTCA specifically exempts "private contractor[s] with any such public employer[s]."
Defendant Berg contends that summary judgment is appropriate for the MTCA claim against her because, while she worked for UMCH, she was a public employee and thus immune from suit and, while she worked for the Partnership, she was a private employee and thus exempt from MTCA coverage. She asserts that she was under the direction and control of UMCH and the Partnership during her employment by those companies and was never employed by the DOC. Plaintiff disputes Berg's employment record on the grounds that he has "no knowledge of her personnel record" and contends that his treatment did not accord with the policies and procedures of UMCH and the Partnership.
Because Lopes does not dispute the truth of Berg's recital of her employment record and provides no evidence that her treatment ran afoul of policies and procedures, the Court will disregard his denial of her employment record.
To establish a First Amendment retaliation claim under 42 U.S.C. § 1983, a prisoner must show that he 1) made a protected statement, 2) experienced an adverse action and 3) there was a causal connection between the statement and the adverse action.
Plaintiff alleges that, after he filed an institutional grievance against Riendeau, she retaliated against him by ordering Berg to take medicine from his cell and require him to use the medication line. The Partnership asserts that summary judgment on the retaliation claim against it is warranted because the incident occurred in February, 2013, before it was present at OCCC. Because plaintiff does not dispute that the incident occurred before the Partnership was his healthcare provider, it is entitled to judgment as a matter of law on the retaliation claim.
Defendant Berg correctly contends that summary judgment is warranted on the retaliation claim against her because there is a dearth of evidence that she acted with retaliatory intent. Berg submits that plaintiff was non-compliant with his KOP medications so the UMCH staff required him to receive daily doses in the medication line to prevent over-dosing. In plaintiff's version of events, Berg retaliated against him after he filed a complaint against Riendeau by requiring him to obtain his medication in the line.
Plaintiff, however, offers no evidence that Berg had retaliatory intent. In fact, the purported reason for the retaliation, that defendant Riendeau was upset about the grievance plaintiff filed, did not relate to Berg at all. This Court declines to "speculate about a hidden motive."
In accordance with the forgoing, defendants' motions for summary judgment (Docket Nos. 137, 147 and 153) are
