United States District Court, D. Massachusetts
DANA E. LOPES, Plaintiff,
GERALDINE RIENDEAU, ET AL., Defendants.
MEMORANDUM & ORDER
NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE.
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
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.
this law suit was filed, pro se plaintiff Dana E.
Lopes (“plaintiff”) was incarcerated at Old
Colony Correctional Center (“OCCC”) in
Bridgewater, Massachusetts. He is currently incarcerated at
MCI-Shirley in Shirley, Massachusetts.
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.
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
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.
Alleged Inadequate Medical Care
suffers from chronic Hepatitis C, end-stage liver disease,
cirrhosis of the liver and liver cancer.
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”.
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.
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
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.
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.
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.
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.
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
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
pro se complaint to state a claim of retaliation
against Riendeau, UMCH, Berg and the Partnership. The claim
against Riendeau and UMCH has been dismissed but the claim
against Berg and the Partnership is pending.
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.
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.
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
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 pro se plaintiff
moved to have counsel appointed on his behalf. That motion
was denied in December, 2016 and at that time the Court gave
plaintiff 35 additional days to respond to the summary
judgment motions. In January, 2017, plaintiff requested a
second extension of time to respond. Cognizant of