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Lopes v. Riendeau

United States District Court, D. Massachusetts

March 2, 2015

DANA LOPES, Plaintiff,


MARIANNE B. BOWLER, Magistrate Judge.

Pending before this court is a motion to dismiss filed by defendant UMass Correctional Health[1] ("UMCH") under Fed.R.Civ.P. 12(b)(1) ("Rule 12(b)(1)"). (Docket Entry # 26). Also pending before this court is a motion for summary judgment filed by defendants Barbara Berg ("Berg"), Shawna Nasuti ("Nasuti"), Paul Caratazzola ("Caratazzola"), Patricia Davenport-Mello ("Davenport") and Massachusetts Partnership for Correctional Healthcare ("MPCH") (collectively "MPCH defendants") under Fed.R.Civ.P. 56 ("Rule 56"). (Docket Entry # 32).


Plaintiff Dana Lopes ("plaintiff"), an inmate at OCCC, filed this civil rights action pro se seeking medical care in the form of alternative medications to treat his hepatitis C and, once stabilized, a liver transplant. (Docket Entry # 1, ¶¶ 18, 24). He alleges that defendants Geraldine Riendeau ("Riendeau"), Lawrence Weiner ("Weiner"), Dyana Nickl ("Nickl"), UMCH, Berg, Nasuti, Caratazzola, Davenport and MPCH ("defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The complaint sets out causes of action for denied or inadequate medical care under: (1) 42 U.S.C. § 1983 ("section 1983"); (2) Article 26 of the Massachusetts Constitution; and (3) the Massachusetts Tort Claims Act, Massachusetts General Laws chapter 258, section two ("MTCA").[2] In addition to access to the alternative medications and a liver transplant, plaintiff seeks compensatory and punitive damages. (Docket Entry # 1, ¶¶ 18, 24).

In seeking dismissal under Rule 12(b)(1), UMCH argues that it is an agency of the Commonwealth of Massachusetts and thus entitled to immunity under the Eleventh Amendment. (Docket Entry # 26). The MPCH defendants move to dismiss the complaint under Rule 12(b)(6) because plaintiff: (1) failed to exhaust the administrative remedies available to him before filing suit in violation of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"); (2) "failed to allege sufficient facts to support his conclusion that Defendants violated his civil rights because plaintiff is not entitled to treatment of his choice"; and (3) has no section 1983 claim against Nasuti. (Docket Entry # 33).

I. MPCH Defendants' Motion for Summary Judgment


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.'" Tobin v. Federal Express Corp., 2014 WL 7388805, at *2 (1st Cir. Dec. 30, 2014) (quoting Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1st Cir. 1992)). It is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). It is inappropriate "if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side." Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014); see also Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir. 2007) (applying same legal standard applied by district court when reviewing summary judgment ruling).

"Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose existence or nonexistence has the potential to change the outcome of the suit.'" Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011)). The evidence is viewed "in the light most favorable to the non-moving party" and "all reasonable inferences" are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing a summary judgment motion, a court may examine "all of the record materials on file, " Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014), "including depositions, documents, electronically stored information, affidavits or declarations... or other material." Fed.R.Civ.P. 56(c)(1); see Ahmed v. Johnson, 752 F.3d at 495. "Unsupported allegations and speculation, " however, "do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment." Rivera-Colon v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 40 (1st Cir. 2014) ("allegations of a merely speculative or conclusory nature are rightly disregarded").

In the event a complaint is verified, it is appropriate to consider factual averments based on personal knowledge therein as the equivalent of an affidavit for purposes of summary judgment. Sheinkopf v. Stone, 927 F.2d 1259, 1262-1263 (1st Cir. 1991). Plaintiff signed the complaint as "Sworn under pain and penalty of perjury." (Docket Entry # 1). Accordingly, facts based on personal knowledge in the complaint are properly part of the summary judgment record. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit International, Inc., 982 F.2d 686, 689-690 (1st Cir. 1993) (noting that pursuant to 28 U.S.C. § 1746 "an unsworn statement signed under penalty of perjury may be used, in lieu of a sworn statement or affidavit, to support or oppose a motion for summary judgment"); United States v. Gomez-Vigil, 929 F.2d 254, 258 (6th Cir. 1991) (28 U.S.C. § 1746 "allows use of unsworn declaration under pain and penalty of perjury' in lieu of sworn oaths"); Uncle Henry's, Inc. v. Plaut Consulting, Inc., 240 F.Supp.2d 63, 69 (D.Me. 2003) ("[a]ffidavits need not be notarized to be cognizable on summary judgment so long as they are made under penalties of perjury in accordance with 28 U.S.C. § 1746"). Conclusory allegations in the complaint, however, "do not pass muster, and hence, must be disregarded." Sheinkopf v. Stone, 927 F.2d at 1259, 1262 Id. at 1262. Adhering to this framework, the record sets out the following facts for purposes of the MPCH defendants' summary judgment motion.


Throughout the relevant time period, plaintiff was an inmate residing at OCCC. (Docket Entry # 1). Prior to July 2013, UMCH provided medical care to inmates at OCCC. Thereafter, the Massachusetts Department of Correction ("DOC") contracted with MPCH to provide medical services to OCCC inmates. (Docket Entry # 33-1).

Plaintiff, a 60 year old male, has a history of hepatitis C, a chronic liver disease. (Docket Entry ## 1-2, 1-4). He is confined to a wheelchair. (Docket Entry # 1-2). In 2006 and 2007, plaintiff received pegylated interferon and ribavirin therapy to treat the hepatitis C. (Docket Entry # 1-2). The drug regimen ended, however, because plaintiff developed "retina changes." (Docket Entry # 1-2) (Docket Entry # 1, ¶ 6). Neither UMCH nor MPCH provided or offered plaintiff an alternative treatment for his hepatitis C. (Docket Entry # 1).

In 2011, the Food and Drug Administration ("FDA") approved two new medications to treat hepatitis C, namely, Boceprevir and Telaprevir. (Docket Entry # 1, ¶ 8) (Docket Entry # 33, ¶ 6). To date, plaintiff has not received these new medications.[3] (Docket Entry # 40-2) (Docket Entry # 1, ¶ 8).

On May 17, 2012, plaintiff was seen by "multiple providers" at "the HCC clinic" at UMass Memorial Medical Center in Worcester, Massachusetts ("the clinic"). (Docket Entry # 1-2). The purpose of the visit was to assess plaintiff's "[c]hronic hepatitis C, cirrhosis and liver mass." (Docket Entry # 1-2). A September 2008 CAT scan revealed the liver mass. Plaintiff was initially "followed by Dr. Robert Martell, M.D. at Tufts Medical Center." (Docket Entry # 1-2). "Preliminary reports" included information "consistent with HCC."[4] (Docket Entry # 1-2). Repeat CAT scans in January 2009, February 2010, March 2011 and May 2012 showed no significant change in the size of the lesion. (Docket Entry # 1-2). An outpatient consultation report for a May 17, 2012 visit notes that plaintiff "has been followed for a stable hepatic lesion in the setting of hepatitis C and cirrhosis." (Docket Entry # 1-2).

Three radiologists reviewed the May 11, 2012 CAT scan of plaintiff's abdomen and pelvis and took part in a multidisciplinary conference at the clinic on May 17, 2012. The CAT scan report concluded that the liver mass "should be considered as hepatocellular carcinoma unless proven otherwise" and noted "[c]hanges of advanced cirrhosis." (Docket Entry # 1-2). The mass, however, did not show "the classic washout for hepatocellular carcinoma." (Docket Entry # 1-2). After an extensive discussion among the medical providers, the group decided to reimage the mass in three to six months but not to perform a biopsy. (Docket Entry # 1-2). Six months later in November 2012, plaintiff underwent a fine needle aspiration or "FNA, " a radio frequency ablation of the lesion and a biopsy. (Docket Entry # 1, ¶ 9) (Docket Entry # 1-4). The biopsy "showed just an adenoma, " i.e., a benign tumor.[5] (Docket Entry # 1-4).

Apart from the liver mass, the May 17, 2012 clinic note includes the diagnosis of "hepatitis C with cirrhosis, decompensating liver disease." (Docket Entry # 1-2). The note describes plaintiff's medical history as including "[d]ecompensations from his liver disease [that] have included fluid overload, peripheral edema, some fatigue and esophageal varices." (Docket Entry # 1-2). The note unequivocally states, "No plans currently for hep C treatment." (Docket Entry # 1-2).

On December 28, 2012, plaintiff had another CAT scan of his abdomen and pelvis. The scan showed no abnormalities except for a large ablative cavity in the area where the lesion was ablated and a small hepatic lesion. (Docket Entry ## 1-4, 58). On January 31, 2013, plaintiff was seen again at UMass Memorial Medical Center. The clinic note states that, "As a patient with cirrhosis, he is at risk for developing further HCC and will be followed." (Docket Entry # 1-4). Accordingly, the multidisciplinary group decided "to proceed with active surveillance and a followup CT of the chest, abdomen and pelvis in 3 months." (Docket Entry # 1-4). Plaintiff expressed concern to medical providers during both the May 2012 and January 2013 clinic visits that he had liver cancer. The medical notes for the January 31, 2013 visit reflect the following with respect to plaintiff's "hepatitis C induced liver cirrhosis":

From a hepatic standpoint, this patient does have Child-Puigh A cirrhosis with 6 points. He is well compensated with no regular decompensation and should be continued to be followed regularly by a gastroenterologist regarding his underlying hepatitis C and liver disease.

(Docket Entry # 1-4).

An abdominal CT scan performed in August 2013 showed the above noted right hepatic lesion slightly smaller when compared to the December 2012 CT scan. No other lesion appeared on the August 2013 scan. A December 2013 CT scan showed an additional decrease in the size of the lesion as well as "new clots in his SMV and portal vein." (Docket Entry # 58).

Plaintiff's hepatitis C has a specific viral mutation which predicts resistance to protease inhibitors including Boceprevir and Telaprevir. At an undetermined time, he underwent testing at Boston Medical Center and, after reviewing the tests, an attending physician in the gastroenterology department recommended that plaintiff avoid protease inhibitors. Between February 2014 and February 2015, medical professionals outside OCCC monitored his condition "with multiple lab tests and chronic disease consultations." (Docket Entry # 56-1).

In October 2014, the FDA approved the use of Harvoni to treat chronic hepatitis C. On January 21, 2015, plaintiff was seen in the gastroenterology clinic at Lemuel Shattuck Hospital in Jamaica Plain, Massachusetts to discuss initiating hepatitis C treatment with the new medication. After examining plaintiff and reviewing his medical history and recent blood work, the physician recommended Harvoni to treat plaintiff's hepatitis C. Notably, MPCH medical staff recently approved plaintiff to begin treatment with Harvoni. The treatment is expected to begin in early March 2015.

As to other or related medical conditions, plaintiff "has had DVT in the past"[6] and experiences chronic lower back pain. (Docket Entry ## 1-2, 1-4). His chief complaint at the May 17, 2012 visit and examination at UMass Memorial Medical Center was swelling in the lower part of his left leg with redness. (Docket Entry # 1-2). Plaintiff states he "has blood pooling up under his skin." (Docket Entry # 1, ¶ 10) (Docket Entry # 33, ¶ 7) (Docket Entry # 1-2). During the visit, he expressed a concern about cellulitis in his lower left leg. An ultrasound of the leg on the same day did not show a blood clot. As a result of the "significant edema, " the dosages of plaintiff's diuretic medications were increased. (Docket Entry # 1-2).

Turning to the grievance process, on July 1, 2012, plaintiff submitted an Inmate Medical Grievance and Appeal Form to the health services unit at OCCC requesting a biopsy, commencement of the process "to obtain a cadaver liver" and "alternative hep c treatment" to eradicate the "cancerous lesion." (Docket Entry # 1-3). Riendeau, a registered nurse at OCCC and a member of the health services unit, reviewed the grievance and denied it on July 9, 2012. (Docket Entry # 1-3) (Docket Entry # 1, ¶¶ 2, 14, 20). She checked various boxes on the form indicating that the complaint would not be investigated because plaintiff had "not attempted to resolve [the] issue by speaking to Health Services during Management Review Hour" and the issue was not grievable. She also explained that plaintiff's treatment plan was "appropriate" and that plaintiff would be receiving additional testing to "determine if a biopsy is indicated." (Docket Entry # 1-3).

At the bottom of the form there is a box to check if the inmate remains dissatisfied and wished to "appeal to DOC Health Services Division." (Docket Entry # 1-3). The box is not checked.[7]

The medical grievance policy in effect at OCCC in July 2013 and thereafter required an inmate to file an appeal in ten days if dissatisfied with the health service administrator's response. The policy in effect prior to July 2013 is not in the record.

In the fall of 2012, plaintiff filed a complaint ("the nursing complaint") with the Department of Public Health's Division of Health Professions Licensure, Office of Public Protection ("the Registration Board") about Riendeau.[8] (Docket Entry # 1, ¶ 14) (Docket Entry # 1-3). In the nursing complaint, plaintiff states that Riendeau repeatedly cancels doctors' orders, including orders for a biopsy and placement on an organ donor ...

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