United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
Martin McCauley ("McCauley") has filed this lawsuit
pro se, alleging violations of hi s Ei ghth
Amendment rights pursuant to 42 U.S.C. § 1983, his
rights under the Americans with Disabilities Act
("ADA") and the Rehabilitation Act and a medical
malpractice claim. D. 36. Over the course of this litigation,
the Court has dismissed certain claims and defendants, D. 37;
D. 83, and referred McCauley's medical malpractice claim
to a medical malpractice tribunal in accordance with Mass.
Gen. L. c. 231, § 6OB. D. 102. McCauley's surviving
claims include ADA and Rehabilitation Act claims against
Defendants Turco and Medeiros (the "Commonwealth
Defendants"), as well as ADA, Rehabilitation Act and
§ 1983 claims against Defendants Angeles, Atkins, Byron,
Groblewski, Lubelczyk and Massachusetts Partnership
Correctional Health (the "Medical Defendants")
(collectively, the "Defendants"). Pending before
the Court are Defendants' motions for summary judgment,
D. 127; D. 132, as well as Defendants' motion to strike,
D. 144, Defendants' motion to dismiss for failure to
comply with a court order, D. 153, and Defendants' motion
to continue the trial date, D. 153. Also pending are
McCauley's motion for extension of time to file an
opposition, D. 145, a motion to compel discovery, D. 146, and
McCauley's opposition and cross-motion for summary
judgment, D. 155. For the reasons set forth below, the Court
ALLOWS Defendants' motions for summary judgment, DENIES
McCauley's cross-motion for summary judgment and DENIES
as moot the remaining motions that are pending.
Standard of Review
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). "A fact is material
if it carries with it the potential to affect the outcome of
the suit under the applicable law." Santiago-Ramos
v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st
Cir. 2000) (quoting Sanchez v. Alvarado, 101 F.3d
223, 227 (1st Cir. 1996)) (internal quotation marks omitted).
The movant "bears the burden of demonstrating the
absence of a genuine issue of material fact."
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000); see Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). If the movant meets his burden, the non-moving
party "may not rest upon mere allegation or denials of
his pleading," Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986), but "must, with respect to
each issue on which [he] would bear the burden of proof at
trial, demonstrate that a trier of fact could reasonably
resolve that issue in [his] favor," Borges ex rel.
S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir.
2010). "As a general rule, that requires the production
of evidence that is 'significant[ly]
probative.'" Id. (quoting
Anderson, 477 U.S. at 249) (alteration in original).
The Court "view[s] the record in the light most
favorable to the nonmovant, drawing reasonable inferences in
his favor." Noonan v. Staples, Inc., 556 F.3d
20, 25 (1st Cir. 2009).
instituted this action on June 25, 2014. D. 1. McCauley filed
an amended complaint on August 9, 2016. D. 36. Subsequently,
the Court dismissed claims against UMass Correctional Health
System pursuant to 28 U.S.C. § l9l5A(b)(2). D. 37. On
March 17, 2017, the remaining Defendants moved to dismiss. D.
71; D. 73; D. 75. The Court dismissed all claims against
Governor Charles Baker for failure to state a claim pursuant
to Fed.R.Civ.P. 12(b)(6), and dismissed all claims against
Cynthia Sumner and Lynn Lizotte as a result of McCauley's
failure to serve these Defendants properly under Fed.R.Civ.P.
12(b)(5). D. 83. The Court also dismissed the § 1983
claim against the Commonwealth Defendants. Id. The
§ 1983, ADA and Rehabilitation claims against the
Medical Defendants, however, survived, along with the ADA and
Rehabilitation claims against the Commonwealth Defendants.
Id. The remaining Defendants now move for summary
judgment on the claims against them. D. 127; D. 132.
failed to file a timely opposition to Defendants' motions
for summary judgment. D. 115. On July 23, 2018, two days
before the hearing on Defendants' motions for summary
judgment, D. 127; D. 132, and McCauley's pending motion
for discovery, D. 124, McCauley filed a motion requesting
additional time to file an opposition to the summary judgment
motions, D. 137. The Court denied McCauley's request, D.
139, in light of the age of this litigation, the fact that
McCauley has already received extensions on multiple
occasions,  the pending motions for summary judgment
and the fact that McCauley has been on notice of the summary
judgment hearing date since at least April 2018, D. 115
(setting motion hearing for July 25, 2018).
25, 2018, the Court heard the parties on the pending motions
for summary judgment. During oral argument, McCauley provided
the Court with a statement he had prepared for the hearing,
D. 142, and which the Court agreed to consider along with the
motions for summary judgment. D. 141. The Court also heard
the parties on McCauley's pending motion for discovery,
D. 124, which the Court denied. D. 141. In addition, the
Court granted McCauley's request for leave to file an
opposition to Defendants' motions after the hearing.
Id. Per the Court's instruction, McCauley was to
file an opposition by no later than August 8, 2018, and no
further extensions were expected. Id.
August 8, 2018, McCauley filed a copy of the Medical
Defendants' statement of material facts that includes
handwritten notes purportedly responding to the facts
proffered by the Medical Defendants. D. 143. On August 15,
2018, the Medical Defendants filed a motion to strike
McCauley's response to its statement of material facts
for failure to comply with Fed.R.Civ.P. 56 and Local Rule
56.1. D. 144. McCauley filed a motion for extension of time
to August 16, 2018 to file an opposition to Defendants'
motions for summary judgment, D. 145, a renewed motion for
discovery, D. 146, and McCauley's third motion for
appointment of counsel, D. 148. Defendants have opposed these
motions, D. 149; 150; 151, and filed joint motions to
continue the trial date, D. 154, or, in the alternative, to
dismiss in light of McCauley's failure to comply with the
Court's deadline to file an opposition to summary
judgment, D. 153.
opposition to Defendants' motions for summary judgment,
cross-motion for summary judgment and a statement of material
facts were filed on August 22, 2018. D. 155; D. 156. McCauley
also filed supporting exhibits on August 23, 2018. D. 160. In
light of McCauley's pro se status, the Court has
considered these filings to the extent relevant, despite the
delay and McCauley's failure to adhere to various federal
and local rules of civil procedure, including Local Rule
7.1(b)(4) (explaining that memoranda supporting or opposing
allowance of motions shall not, without leave of court,
exceed twenty pages).
following facts are drawn primarily from the parties'
statements of material facts, D. 129; D. 134; D. 156, and
supporting materials. The facts are undisputed unless
otherwise noted. McCauley is an inmate currently incarcerated
at Massachusetts Correctional Institution-Norfolk
("MCI-Norfolk"), which is part of the Massachusetts
Department of Correction ("DOC"). D. 134 ¶ 1.
With the exception of thirteen months during which McCauley
resided at MCI-Shirley between 2014 and 2015, McCauley has
primarily served his sentence at MCI-Norfolk. D. 134 ¶
McCauley's Medical Care
suffers from several health issues, including issues with his
back, shoulder, thumb and discomfort caused by his dentures.
D. 156 ¶¶ 5, 69. Since July 1, 2013, Defendant
Massachusetts Partnership for Correctional Healthcare, LLC
("MPCH"), a privately-owned company under contract
with DOC, has overseen McCauley's medical treatment. D.
134 ¶ 6. Prior to July 1, 2013, UMass Correctional
Healthcare provided medical services at DOC facilities. D.
Medical Treatment for Back Issues
has severe scoliosis, degenerative joint disease of the
spine, spinal stenosis, Hepatitis C and chronic back pain. D.
129 ¶ 4; D. 134 ¶ 3. McCauley's back problems
were first documented by UMass Correctional Healthcare in
1983. D. 156 ¶ 8; D. 160-2 at 1. In 2003, a MRI of
McCauley's back revealed "[s]evere degenerative disc
disease at the L4-5 level with vacuum disc phenomena being
identified, without evidence of a focally herniated or
lateralizing disc." D. 156 ¶ 8; D. 160-6 at 2. In a
follow-up letter, a physician explained that although
McCauley's MRI showed significant degenerative disease
nothing "seems to suggest that surgical treatment"
was necessary at the time. D. 160-2 at 6. The letter further
states that "consideration could be given to epidural
steroid injections, but. . . continued supportive treatment
would be the best for [McCauley]." Id. Between
2003 and 2012, McCauley received multiple MRIs of his back,
epidural steroid injections to reduce his pain, physical
therapy, as well as several consultations with orthopedic
physicians, arthritis specialists, neurologists and
neurosurgeons. See generally, D. 160-6. In 2006 and
2008, McCauley was referred to a neurosurgeon, who suggested
nonsurgical management for McCauley's pain, Id.
at 14, 17, which McCauley received, ii at 18. At the
neurosurgeon's recommendation, McCauley was eventually
referred to a spine neurosurgery specialist, Dr. Ron
Riesenburger, Id. at 20, 25, who similarly indicated
that surgery was not recommended and referred McCauley to
physical therapy, Id. at 27-28; see D. 134 ¶
39; D. 135-1 at3.
30, 2012, Dr. Riesenburger discussed the benefits of back
surgery with McCauley, and McCauley asked for more time to
think about it. D. 160-6 at 36. On November 16, 2012,
McCauley requested that any surgery on his back be delayed
until he could secure a "single cell." D. 134
¶ 42; D. 135-1 at 16. Shortly thereafter, Defendant
Lubelczyk took over McCauley's care at MCI-Norfolk and
referred him to another neurosurgeon. On March 28, 2013,
Lubelczyk told McCauley that his new neurosurgeon, Dr.
Massengale, had recommended back surgery. D. 134 ¶ 45;
D. 135-1 at 22. That day, McCauley told Lubelczyk that he
wanted to defer the procedure, and he reiterated this request
on April 12, 2013. D. 134 ¶¶ 45, 47; D. 135-1 at
22, 23. On April 19, 2013, McCauley informed Lubelczyk that
he was ready for surgery. D. 134 ¶ 48; D. 135-1 at 24.
The surgery, which involved "an extensive fusion with
rods," was completed on July 20, 2013. D. 134 ¶ 51.
surgery, McCauley was sent to the Souza Baranowski
Correctional Center infirmary for recovery and physical
therapy. D. 134 ¶52. McCauley returned to MCI-Norfolk on
September 27, 2013. D. 134 ¶ 54. Between October 2013
and January 2014, McCauley met with Lubelczyk regarding his
back on at least nine occasions. See generally, D.
134 ¶¶55-73; 135-1. In addition to examining
McCauley's back, Lubelczyk also requested and followed-up
on requests for MRIs on McCauley's behalf, D. 134
¶¶ 61, 66, 68, 71; D. 135-1 at 36, 39, 41;
requested the implementation of medical restrictions, a
handicapped shower and a walker in light of McCauley's
pain and surgery, D. 134 ¶¶ 72-73; 135-1 at 41; and
admitted McCauley into the Assisted Daily Living
("ADL") unit, which is the health services unit at
MCI-Norfolk. D. 134 ¶ 69; D. 135-1 at 39. Lubelczyk
treated McCauley for the last time on January 2, 2014. D. 134
January 2014, McCauley underwent a second surgery on his
back. D. 134 ¶ 75; D. 135-1 at 47. After his surgery,
McCauley was sent to the Lemuel Shattuck Hospital until May
14, 2014 and then to MCI-Shirley for rehabilitation and
physical therapy until May 2015. D. 134 ¶ 76. Defendant
Angeles also ordered additional scans of McCauley's back
at least as late as April 2015. D. 36-3 at 16-19. In January
2017, Dr. Massengale recommended McCauley for a posterior