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Lopes v. Riendeau

United States District Court, D. Massachusetts

March 23, 2017

DANA E. LOPES, Plaintiff,



         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.

         I. Factual Background

         A. The Parties

         When 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.

         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.

         B. Alleged Inadequate Medical Care

         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”.

         C. Purported Retaliation

         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 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.

         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.

         II. Procedural History

         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 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 ...

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