United States District Court, D. Massachusetts
STEVEN N. KENDALL, Plaintiff,
SCOTT MURRAY, M.D. et al., Defendants.
MEMORANDUM AND ORDER
B. SARIS CHIEF UNITED STATES DISTRICT JUDGE.
Steven Kendall, who is currently in custody at Federal
Medical Center, Devens (“FMC Devens”), brings
this action under 42 U.S.C. § 1983 alleging that the
Federal Bureau of Prisons, Dr. Scott Murray, Dr. Berhan Yeh,
and various named officers (collectively “Defendants”)
have been deliberately indifferent to his medical needs in
violation of his Eighth and Fourteenth Amendment rights.
(Docket No. 80, Count I). Plaintiff has a “Kock Pouch,
” which is a pouch made from his small intestine that
sits inside his body to hold his stool. On July 20, 2018,
Plaintiff moved for a preliminary injunction seeking a second
opinion from a colorectal surgeon or an adult
gastroenterologist to evaluate his Kock Pouch. (Docket No.
81). Plaintiff alleges that he is having trouble accessing
the pouch in the proper way because of a hematoma which puts
pressure on the pouch and has lasted for over a year.
Plaintiff also asks the Court to order FMC Devens to provide
him with a handicap accessible bathroom facility (Count IV
Court held an evidentiary hearing on May 26, 2018 via
videoconference. At the time of the hearing, Plaintiff was
pro se. The Court appointed pro bono
counsel in light of the alleged medical emergency. Three
additional days of hearings were held ending on August 21,
2018. During the hearings, Plaintiff testified and introduced
the expert testimony of Dr. Steven Freedman, a
gastroenterologist at the Beth Israel Deaconess Medical
Center. The government introduced the testimony of two
defendants Dr. Berhan Yeh, the Clinical Director, and Dr.
Scott Murray, Plaintiff's treating physician, and
submitted Plaintiff's voluminous medical records. After
the hearing, the motion is ALLOWED IN
PART and DENIED IN
FINDINGS OF FACT
on the evidentiary hearings, the medical records and
affidavits, the Court finds the following facts are likely
The Kock Pouch (K-Pouch)
is a 63-year old man serving a 26-month term of imprisonment
for Conspiracy to Commit Unlawful Distribution of Oxycodone.
He arrived at FMC Devens on April 12, 2017. He is scheduled
to be released in March 2019. Since the mid-1980's
Plaintiff has suffered from ulcerative colitis which led to
the removal of his colon. Prior to incarceration, Plaintiff
received a colostomy during which his doctors created a
“Kock Pouch” - a form of continent ileostomy
which refashioned Plaintiff's lower intestines into a
reservoir that holds waste generated by his digestive system.
A K-pouch system includes the pouch, located inside the body,
and a one-way valve on the patient's abdomen that
prevents leakage from the reservoir and allows the patient to
drain the reservoir. The reservoir is emptied throughout the
day by passing a special catheter through the valve, called a
stoma, into the pouch. In order to drain the reservoir, a
patient is advised to sit over the toilet and near a sink
with running hot water to clean the drain catheter.
has been managing his K-pouch by catheterizing himself.
Generally, when his pouch is full, he lies down in a
semi-recumbent position on a bed to use a catheter to enter
the stoma to empty the pouch, which sometimes spills over. He
then typically empties the stool into a bucket and then the
toilet. When he is semi-reclined, he can empty his K-pouch
without complications. Sometimes when the K-pouch is not
full, he can empty it while sitting on a toilet.
incarceration, Plaintiff had complications with his K-pouch
including pouchitis, intermittent bleeding and incontinence
at the valve site. Since incarceration, he has had some
incontinence issues, but there is no credible evidence of
Medical Treatment at FMC Devens
primary care physician at FMC Devens is defendant Dr. Scott
Murray, who has a specialty in emergency care medicine. He
received his medical degree from the University of
Connecticut and finished his emergency medicine residency at
the Beth Israel Deaconess Medical Center in Boston. He is
board certified in emergency medicine, but has no expertise
in gastroenterology. There are no specialists in
gastroenterology on site at FMC Devens. Defendant Dr. Berhan
Yeh is a Lieutenant Commander in the United States Public
Health Service, and is the Clinical Director of FMC Devens.
He has his medical degree from Boston University and is board
certified in emergency medicine and wound care. Because he
did not provide treatment, his knowledge of Plaintiff's
use of the K-pouch was not always accurate.
2017, shortly after the start of his incarceration, Plaintiff
was sent for an evaluation with a gastroenterologist due to
his pouchitis. The doctor in Nashoba Valley was not familiar
with the K-pouch, although this is unsurprising given how
rare the K-pouch procedure is. Plaintiff received antibiotics
and an enema.
who has a myriad of other medical issues, received
anti-coagulation medication by self-injection in June
2017. He developed a large hematoma at the
injection site in the lower right quadrant of his abdomen.
The hematoma was the size of Plaintiff's head or small
child's basketball, and it pressed on Plaintiff's
stoma when he was in a sitting or standing position. The
hematoma made it difficult for Plaintiff to access his
K-pouch. In July 2017, Dr. Murray sent Plaintiff to have his
hematoma evaluated by the University of Massachusetts
Emergency Department. A doctor recommended conservative
management because of the risk of infection if the hematoma
were drained. The CT scan showed a hematoma measuring 17 x 8
x 9 cm in the abdominal wall. Plaintiff was going to be
admitted for observation, but he checked himself out against
medical advice because he believed (mistakenly) that the
doctors wanted to perform surgery and overheard one of the
surgeons express concern about nicking the K-pouch. In fact,
the surgeons recommended conservative management of the
hematoma, not surgery.
December 2017, Plaintiff was given a CAT scan to examine the
mass which Dr. Murray has diagnosed as a hematoma. Since
then, the mass has shrunk to about 6 cm x 6 cm in size,
alleviating some of the pressure. When Plaintiff is