United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff James Mackenzie ("Mackenzie"), proceeding pro se, has filed this lawsuit against Defendants Bart Nelson ("Nelson"), Lawrence Weiner ("Weiner"), Trish Grant ("Grant"), Bruce Gelb ("Gelb") and Luis Spencer ("Spencer"), alleging negligence and violations of his Eighth Amendment rights pursuant to 42 U.S.C. § 1983. D. 1. Mackenzie seeks declaratory and injunctive relief in addition to compensatory and punitive damages on the basis that the Defendants denied him treatment for Hepatitis C. Id . Defendants Gelb, Spencer and Weiner have moved to dismiss, or in the alternative, for summary judgment. D. 34; D. 66. For the reasons stated below, the Court DENIES IN PART and ALLOWS IN PART the Defendants' motions.
II. Standard of Review
In considering a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court asks whether the complaint offers "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a plausible claim, a complaint need not contain detailed factual allegations, but it must recite facts sufficient to "raise a right to relief above the speculative level... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555. "A pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). First, the Court must distinguish between factual and conclusory legal allegations in the complaint. Morales-Cruz v. Univ. of Puerto Rico, 676 F.3d 220, 224 (1st Cir. 2012). Second, taking the plaintiff's factual allegations as true, the Court must draw "the reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Ashcroft, 556 U.S. at 677). However, "[i]n determining whether a [pleading] crosses the plausibility threshold, the reviewing court [must] draw on its judicial experience and common sense.'... This contextspecific inquiry does not demand a high degree of factual specificity.'" Garciá-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013) (internal citations omitted). A pro se plaintiff is entitled to a liberal reading of his allegations, no matter how inartfully pled. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Rodi v. S. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004). Furthermore, a pro se complaint "can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, " Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks and citation omitted).
III. Factual Background
Unless otherwise noted, the following facts are as alleged in the complaint, D. 1, assumed to be true for the purposes of this motion. Mackenzie is an inmate in the custody of the Massachusetts Department of Corrections ("DOC") and was housed at Souza Baronowski Correctional Center ("SBCC"), where Defendant Gelb was Superintendent, during the period relevant to the complaint. Id . ¶¶ 3, 7. Defendant Luis Spencer is Commissioner of the Massachusetts Department of Corrections ("DOC"), Id . ¶ 8, and Defendant Weiner is Assistant Deputy Commissioner of Clinical Services. Id . ¶ 6.
Mackenzie contracted Hepatitis C in or about 2005. Id . ¶ 10. In approximately May 2011, Mackenzie's liver enzymes tested higher than normal and he was formally diagnosed. Id . ¶ 11. In or about June 2011 he visited Shattuck Hospital where a physician told him his viral load was "very high." Id . ¶¶ 12-13. Mackenzie was placed on a waiting list to receive a liver biopsy. Id . ¶ 14. Mackenzie did not receive a biopsy for at least six months, during which time he experienced unusual weight loss, nausea and chronic fatigue. Id . ¶ 16. Mackenzie relayed these symptoms to SBCC medical staff. Id . ¶¶ 15-16. In September 2012, Mackenzie filed a grievance about this matter. Id . ¶ 17. Thereafter, and as a result of the grievance, he had a video conference with Dr. Steffano, a physician at Shattuck Hospital. Id . ¶ 18. Dr. Steffano told Mackenzie he should undergo a liver biopsy and begin Hepatitis C treatment. Id . ¶¶ 19-20. In December 2012, Mackenzie underwent a biopsy, and the doctor who interpreted the results, Dr. Smith, told him that he had fibrosis of the liver. Id . ¶¶ 21-22. Dr. Smith said he would inform the medical contractor responsible for inmate health care, Commonwealth Medicine, that Mackenzie would "need to start and receive treatment" for Hepatitis C. Id . ¶ 23. Mackenzie relayed this information to Nelson, a nurse practitioner at SBCC, Id . ¶ 4, and also informed Nelson that he was still suffering from unusual weight loss and fatigue. Id . ¶¶ 24, 26. Nelson told Mackenzie his liver "was not that far gone and that he did not need any treatment." Id . ¶ 25. Nelson told Mackenzie he would not receive Triple Therapy treatment recommended by the physicians. Id . ¶ 27. Nelson told Mackenzie he would be eligible for another biopsy in three years and that he might begin therapy if a later biopsy showed a worsening of his liver. Id . ¶ 28. The complaint alleges Nelson told Mackenzie that his condition would be monitored but that Mackenzie has not received such monitoring. Id . ¶¶ 29-30.
In or about February 2013, Mackenzie notified Gelb and Grant that he had not received the treatment recommended by Dr. Steffano and Dr. Smith. Id . ¶ 31. Grant informed him that he would not receive the Triple Therapy treatment. Id . ¶ 32. Mackenzie then contacted Weiner requesting the treatment and also an appointment with a hepatologist, which Weiner denied. Id . ¶¶ 33-34. The complaint alleges that Gelb and Weiner's failure to prevent the alleged malpractice of Grant and Nelson demonstrates deliberate indifference and has contributed to the possibility of further harm to his liver in violation of Mackenzie's Eighth Amendment rights. Id . ¶ 38. The complaint also alleges that Spencer's failure to supervise and institute appropriate polices for Nelson, Grant and Gelb similarly violate his Eighth Amendment rights. Id . ¶ 39.
IV. Procedural History
Mackenzie filed this lawsuit on November 25, 2013. D. 1. On June 10, 2014, Defendants Gelb and Spencer moved to dismiss, or in the alternative for summary judgment, D. 34, and the Court granted Weiner's later request to join that motion. D. 66; D. 77. The Court referred the negligence claim as to the medical defendants, Nelson and Grant, to a medical malpractice tribunal pursuant to Mass. Gen. L. c. 231, § 60B. D. 44; D. 79. Nelson and Grant have moved for summary judgment on the remaining claims and that motion is not yet ripe. D. 81. As to Gelb, Weiner and Spencer's (the "DOC Defendants") motion to dismiss, the Court has reviewed the filings and opposition and now addresses this motion.
As a preliminary matter, the Court notes that the negligence claims against the DOC Defendants cannot proceed. The Massachusetts Tort Claims Act ("MTCA") authorizes suits against public employers but does not allow for personal liability as to employees for their negligent conduct. Mass. Gen. L. c. 258 § 2. See Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003) (providing, "negligence claims against the Department of Corrections defendants in their individual capacities are barred because the Tort Claims Act shields public employees from personal liability for negligent conduct"). The negligence claim against Spencer in his official capacity, in actuality a claim against the DOC itself, Rosario-Urdaz v. Rivera-Hernandez, 350 F.3d 219, 222 (1st Cir. 2003), must also be dismissed. Caisse, 346 F.3d at 218 (providing, "[p]rospects are no better for [the plaintiff's] official-capacity, negligence claims against the Department of Corrections defendants because these claims will not survive Eleventh Amendment scrutiny"); Jaundoo v. Clarke, 690 F.Supp.2d 20, 27-28 (D. Mass. 2010) (refusing to allow amendment of the complaint to add a negligence/medical malpractice claim against prison medical contractor because contractor was "immune from suit for negligence/medical malpractice in this forum").
As to the Eighth Amendment claim, Spencer may be sued for money damages in his personal capacity and is also a proper party in his official capacity for the purposes of equitable relief, as "[a] state official in his or her official capacity, when sued for injunctive relief, [is] a person under § 1983 because official-capacity actions for prospective relief are not treated as actions against the State.'" Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n. 10 (1989) (citations omitted). Any claims for money damages against Spencer in his official capacity are barred, as "[i]t is well settled that neither a state agency nor a state official acting in his official capacity ...