United States District Court, D. Massachusetts
EDWARD G. MCCUSKER, Plaintiff,
UNITED STATES OF AMERICA et al., Defendants.
ORDER ON DEFENDANTS' MOTIONS TO DISMISS
L. CABELL, U.S.M.J.
se plaintiff Edward McCusker contends that he received
inadequate medical care while incarcerated at the Federal
Medical Center in Devens, Massachusetts (FMC
Devens). 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. 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.
Relevant Factual Background
allegations in the complaint are taken as true for purposes
of the motions to dismiss.
Devens is a BOP medical facility that provides medical
services to inmates. McCusker was at all relevant times an
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,
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).
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).
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).
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.).
Charles Howard conducted a follow-up examination of the
plaintiff on June 9, 2014, also in the SHU.
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).
The Complaint 
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. 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
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 ...