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McCusker v. United States

United States District Court, D. Massachusetts

June 24, 2019

EDWARD G. MCCUSKER, Plaintiff,
v.
UNITED STATES OF AMERICA et al., Defendants.

          ORDER ON DEFENDANTS' MOTIONS TO DISMISS

          DONALD L. CABELL, U.S.M.J.

         I. Introduction

         Pro se plaintiff Edward McCusker contends that he received inadequate medical care while incarcerated at the Federal Medical Center in Devens, Massachusetts (FMC Devens).[1] He brings suit against the United States of America (USA), FMC Devens, the Federal Bureau of Prisons (BOP), and seven individuals employed by or associated with FMC Devens for violation of his Eighth Amendment rights, for medical malpractice and for infliction of emotional distress. The defendants were served in two waves and each group has filed its own motion to dismiss.[2] For the reasons explained below, the motion to dismiss filed by the USA, FMC Devens and BOP related defendants (D.51) is ALLOWED IN PART and DENIED IN PART; the motion filed by the FMC Devens related individual defendants (D. 91) is ALLOWED.

         II. Relevant Factual Background

         The allegations in the complaint are taken as true for purposes of the motions to dismiss.

         FMC Devens is a BOP medical facility that provides medical services to inmates. McCusker was at all relevant times an inmate there.

         Defendant Jeff Grondolsky was at all relevant times the warden at FMC Devens (Warden Grondolsky). Defendant Julie Taylor (PA Taylor) was a Certified Physician Assistant who worked at FMC Devens as a commissioned officer of the United States Public Health Service (“PHS”). Defendant Dr. Sandra Howard was the Clinical Director at FMC Devens, and defendant Drs. Reginald Barnett, Charles Howard, and Jon Hojnoski were all physicians there. Finally, defendant Darlene Shnaper was a Registered Nurse working at FMC Devens. (Dkt. 18, Complaint).

         On June 3, 2014, another inmate assaulted and injured McCusker. McCusker was transferred to HealthAlliance Hospital in Leominster, Massachusetts for evaluation. Doctors there determined that he should be transferred to the Massachusetts Eye and Ear Infirmary (Mass Eye and Ear) for a specialist consultation. A physician there noted that the plaintiff had severe swelling around his eyes, hyphema of the left eye (collection of blood inside the eye), a left orbital bone fracture, and a tear of his left iris. The plaintiff was discharged from Mass. Eye and Ear on June 4, 2014 and returned to FMC Devens. (Compl., at 4).

         Discharge instructions from Mass. Eye and Ear were given to the transport officers and also were faxed to FMC Devens and received there by Dr. Sandra Howard. The ophthalmologist prescribed the plaintiff eye drops and instructed him to take acetaminophen for pain as needed. The discharge instructions also stated that tests for the plaintiff's interocular pressure (IOP) should be performed for three consecutive days. They further instructed that the plaintiff should not lie flat in bed, should use ice to reduce swelling, should wear a fox shield to protect from further injury, and should be returned to Mass. Eye and Ear if the pain or hyphema increased. The discharge instructions also stated that the plaintiff should be returned to Harvard Occuplastics within a week for follow-up. (Id. at 3-5).

         Upon returning to FMC Devens on the morning of June 4, 2014, Nurse Shnaper examined the plaintiff, noted that he was in significant pain (9 out of 10), and added the discharge instructions to his chart. (Id. at 4, 8). Both Dr. Charles Howard, the FMC Devens ophthalmologist, and Dr. Hojnoski reviewed and co-signed Nurse Shnaper's chart entry. (Id. at 4). Dr. Charles Howard also signed to reflect that he received the faxed discharge instructions on June 4, 2014. (Id. at 6).

         The plaintiff received another examination later that afternoon from PA Taylor. The plaintiff was in his cell in the Special Housing Unit (SHU) and PA Taylor looked in through a small window. (Id. at 4, 6). PA Taylor's chart entry noted the discharge instructions and was reviewed and co-signed by Drs. Hojnoski and Charles Howard. (Id. at 4-5). She further noted that she informed the plaintiff that his swelling would subside within a few weeks. (Id. at 6). The plaintiff requested ice and pain medication, but PA Taylor told him that she could not give him those items without a doctor's order. (Id.). The plaintiff asked to see a doctor and PA Taylor said she would relay the request. (Id.).

         Dr. Charles Howard conducted a follow-up examination of the plaintiff on June 9, 2014, also in the SHU.

         The plaintiff was subsequently transferred to another prison in Pennsylvania and there learned of the extent of his injuries. (Dkt. 69, at 2). Among other things, the plaintiff now suffers from permanent disfiguration, vision issues, a fixed and dilated pupil, discoloration, migraines, vertigo, and chronic dizziness. (Compl., at 5-7).

         III. The Complaint [3]

         The pro se complaint purports to allege thirty-four “counts” but most of these are assertions that relate to components of the complaint such as the plaintiff's damages or the relief sought. Liberally construed, the court reads the complaint as advancing two principal claims. First, it asserts a Bivens claim against the defendants on the ground that they were deliberately indifferent to plaintiff's serious medical needs, in violation of the Eighth Amendment.[4] Second, it alleges under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), that each defendant negligently failed to provide the plaintiff with adequate medical care, and intentionally and negligently inflicted emotional distress upon him.

         IV. Legal Standard

         Of note, both parties have submitted materials outside of the complaint relating to the medical treatment the plaintiff received and efforts he made to obtain relief through the prison's grievance procedure. Under Fed.R.Civ.P. 12(b)(6), if “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” However, filing additional materials outside the pleadings does not automatically convert the motion into one for summary judgment. Rather, “[i]f the district court chooses to ignore the ...


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