United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge.
case arises out of the purportedly inadequate medical
treatment of pro se plaintiff Jojo Wittkowski
(“plaintiff”), who is currently incarcerated at
Old Colony Correctional Center in Bridgewater, Massachusetts.
is a transgender (male to female) woman. In March, 2014, she
filed a complaint alleging that, by declining to treat her
gender identity disorder, defendants, who are healthcare
personnel employed by the Massachusetts Department of
Corrections, 1) violated the Eighth and Fourteenth Amendments
under 42 U.S.C. § 1983 and 2) committed “medical
negligence and malpractice” in violation of
September, 2015, plaintiff submitted an amended complaint
that identified nine defendants. Since then, claims against
four defendants have been dismissed by this Court. The
remaining defendants are Steven Levine, Robert Deiner, Joel
Andrade, Neal Norcliffe and Thomas Grobleski.
December, 2016, Deiner, Andrade, Groblewski and Levine
(collectively, “the subject defendants”) filed a
joint motion to refer plaintiff's medical malpractice
claim to a medical malpractice tribunal. Plaintiff opposes
that motion but, for the following reasons, it will be
Motion for Referral to Medical Malpractice
law provides a screening mechanism for medical malpractice
claims. It requires that, before proceeding in court, such
shall be heard by a tribunal . . . [which] shall determine if
the evidence presented if properly substantiated is
sufficient to raise a legitimate question of liability
appropriate for judicial inquiry or whether the
plaintiff's case is merely an unfortunate medical result.
c. 231, § 60B. If the tribunal finds in favor of the
defendant, the plaintiff is permitted to pursue the case in
court only after satisfying a $6, 000 bond requirement.
Massachusetts state law claims to a medical malpractice
tribunal is appropriate when such claims are in federal court
pursuant to either diversity or supplemental jurisdiction.
See Feinstein v. Massachusetts Gen. Hosp., 643 F.2d
880, 883 (1st Cir. 1981) (holding that medical malpractice
claims under Massachusetts law that are in federal court
based on diversity jurisdiction must be referred to a medical
malpractice tribunal); Turner v. Sullivan, 937
F.Supp. 79, 80 (D. Mass. 1996) (finding that medical
malpractice claims under Massachusetts law that are in
federal court under supplemental subject matter jurisdiction
must be referred to a medical malpractice tribunal).
to M.G.L. c. 231, § 60B, the subject defendants move for
the Court to refer plaintiff's medical malpractice claims
to the Massachusetts Superior Court Department of the Trial
Court so that it may convene a medical malpractice tribunal.
Plaintiff opposes that motion on the grounds that 1) this
Court denied defendants' motion to dismiss the claim at
issue and 2) she is ...