United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS
Gail Dein United States Magistrate Judge.
se plaintiff Joseph DeLong, a state prisoner, filed a
complaint pursuant to 42 U.S.C. § 1983, alleging that
various medical providers and correctional staff provided
negligent care and have been deliberately indifferent to his
serious medical needs in the wake of an injury he sustained
at the Souza Baranowski Correctional Center. The
plaintiff's Amended Complaint (Docket No. 57) (“Am.
Compl.”) alleges violations of federal constitutional
and state law against fourteen defendants.
filing the instant suit, the plaintiff moved for a temporary
restraining order and a preliminary injunction. (See
Docket No. 74). Both motions were denied. (Docket Nos. 76,
164). The plaintiff's medical malpractice claims against
Defendants Khiem Tran and Adriana Carrillo were transferred
to the Massachusetts Superior Court Medical Malpractice
Tribunal. (Docket Nos. 94, 116). The Tribunal found in favor
of Defendant Tran. (Docket No. 159). DeLong subsequently
moved to set aside the Tribunal's decision as to
Defendant Tran, and that motion remains pending before the
court. (See Docket No. 182). He has been granted
until August 30, 2019 to submit all evidence, if any, to
support his claim concerning his medical records. (Docket
Nos. 184, 189). The Medical Malpractice Tribunal has not yet
issued a decision regarding the malpractice claim against
before the court are Motions to Dismiss the plaintiff's
Amended Complaint filed by (1) Defendants Thomas Groblewski,
Linda Farag, Emily Holmes, Elizabeth Stephanian, and Rebecca
Lubelczyk (collectively, the “MPCH Defendants”)
(Docket No. 81); (2) Defendant Carrillo (Docket No. 100); (3)
Defendants Julie Ireland and Bart Nelson (Docket No. 144);
and (4) Defendant Geraldine Somers, MD (Docket No. 155).
Because the medical malpractice claim against Dr. Carrillo is
still pending before the Medical Malpractice Tribunal,
Defendant Carrillo has only moved to dismiss the
plaintiff's claim of deliberate indifference against her.
For the reasons set forth below, this court recommends to the
District Judge to whom this case is assigned that Defendant
Carrillo's Motion to Dismiss the deliberate indifference
claim (Docket No. 100) be ALLOWED, Defendants Ireland and
Nelson's Motion to Dismiss (Docket No. 144) be DENIED,
Defendant Somers's Motion to Dismiss (Docket No. 155) be
DENIED, and the MPCH Defendants' Motion to Dismiss
(Docket No. 81) be ALLOWED IN PART and DENIED IN PART.
Specifically, the MPCH Defendants' Motion should be
allowed as to the medical malpractice claim against Defendant
Farag, but otherwise denied.
STATEMENT OF FACTS
facts are set forth as described in the Amended Complaint.
Because this case is before the court on Motions to Dismiss,
the court takes as true all well-pleaded allegations in the
Amended Complaint and draws all reasonable inferences in
DeLong's favor. See Morales-Ta̴non v. P.R. Elec.
Power Auth., 524 F.3d 15, 17 (1st Cir. 2008).
the events giving rise to this civil action, DeLong was
serving a sentence at the Souza Baranowski Correctional
Center (“SBCC”). He was later moved to the Old
Colony Correctional Center (“OCCC”), where he is
presently incarcerated. On September 7, 2014, while using a
weight machine at the SBCC gym, DeLong was injured when a
cable snapped, causing the weight bar to fall on his knee.
Am. Compl. ¶¶ 18, 19. DeLong promptly notified
Department of Correction staff of the incident, and indicated
that he was experiencing extreme pain in his knee as a
result. Id. ¶ 20. DeLong was seen by medical
staff that day and was told that he would see Bart Nelson, a
nurse practitioner (“NP”) at SBCC, in the
morning. Id. ¶¶ 5, 21. Despite what he was
told, DeLong was not seen by Defendant Nelson the following
day or for several weeks following the accident. Id.
¶¶ 22, 38. On September 18, 2014, having not
received any follow-up from medical staff, DeLong submitted a
sick call slip, requesting to be seen by medical staff for
his knee pain. Id. ¶ 22. Receiving no response,
he submitted a second sick call slip on September 23, 2014,
and was seen by a nurse that day. Id. ¶¶
24, 25. The nurse told him that he would be referred to NP
Nelson. Id. ¶ 25.
in Receiving Medical Treatment
September 25, 2014, DeLong saw Defendant Ireland, a
registered nurse (“RN”) and the Health Services
Administrator at SBCC. Id. ¶¶ 7, 21.
DeLong showed her his swollen knee. Id. ¶ 27.
Defendant Ireland told DeLong that she would refer him to NP
Nelson. Id. ¶ 28.
October 5, 2014, DeLong spoke to an unidentified nurse who
told DeLong that he would give DeLong's sick call slip
directly to NP Nelson. Id. ¶ 29. The following
day, on October 6, 2014, Sgt. Thomas Tocci observed
DeLong's swollen knee and informed DeLong that he would
speak with medical staff to see what they could do about the
injury. Id. ¶ 30.
October 9, 2014, DeLong spoke to Superintendent Bruce Gelb
about his knee injury and the refusal of medical staff to
treat him. Id. ¶¶ 31, 32. Superintendent
Gelb escorted DeLong to see RN Ireland. Id. ¶
33. Ireland allegedly stated that she knew nothing of
DeLong's injury, despite previously seeing his injury in
September and promising to refer him to NP Nelson.
Id. ¶¶ 27-28, 33. Defendant Ireland then
told the plaintiff that she would place him on the list to
see NP Nelson. Id. ¶ 33.
October 13, 2014, a family member of DeLong who was concerned
about his condition called Deputy Superintendent Mike
Rodriguez to request that DeLong receive medical care.
Id. ¶ 34. The following day, DeLong was seen by
a nurse and again told he would be referred to NP Nelson.
Id. ¶ 35. On October 17, 2019, DeLong contacted
Deputy Superintendent Rodriguez himself. Id.
¶¶ 36-37. Rodriguez told DeLong that he would speak
to RN Ireland about the lack of medical treatment.
Id. ¶ 37.
October 22, 2014, DeLong was finally seen by Defendant
Nelson. Id. ¶ 38. Nelson ordered pain
medication, an immediate x-ray, and an on-site consultation
with an orthopedic doctor. Id. ¶ 39. DeLong
states that the x-ray showed degenerative changes in his
injured knee and a narrowing of the joint space. Id.
month later, on November 28, 2019, a correctional officer
informed DeLong that NP Nelson refused to see him, despite
the fact that DeLong was on the list to be seen by Nelson.
Id. ¶ 41. Again, on December 2, 2014, DeLong
was on the list to be seen by NP Nelson, but was denied the
opportunity to see him. Id. ¶ 42. On December
4, 2014, DeLong completed a staff access pass concerning the
lack of treatment. Id. ¶ 43. On December 5,
2014, DeLong was again on the list to see NP Nelson for a
follow-up visit, but was nonetheless denied the ability to
see him. Id. ¶ 44.
December 8, 2014, DeLong was seen by Dr. Geraldine Somers for
a chronic care visit. Id. ¶ 45. DeLong
explained to Defendant Somers that he was experiencing
extreme pain in his injured knee. Id. ¶ 46. Dr.
Somers noticed a deformity to DeLong's knee, but never
inquired about treatment on DeLong's behalf. Id.
December 13, 2014, DeLong received documentation from
Superintendent Vidal Osvaldo about the lack of medical
treatment DeLong had received up to that point. Id.
¶ 47. Defendant Osvaldo informed DeLong that he must go
through the regular medical process to receive treatment.
See id. ¶ 48.
in Receiving Surgery
January 10, 2015, DeLong received a letter from Defendant
Ireland stating that an “on-site ortho referral is
pending.” Id. ¶ 49. One month later,
DeLong went to an appointment with an orthopedic doctor, who
recommended surgery and a follow-up appointment with an
orthopedist at Lemuel Shattuck Hospital (“LSH”).
Id. ¶ 50. However, on February 26, 2015, Aaron
Bigio, RN cancelled the orthopedic doctor's order for
surgery due to DeLong's “perceived activity
level” at the prison. Id. ¶ 51. Defendant
Bigio allegedly never observed such activity, but relied
instead on the observations of a correction officer who was a
subordinate of Defendants Rodriguez and Osvaldo. Id.
March 10, 2015, Al Troisi of Prisoner Legal Services
(“PLS”), a not-for-profit legal services
corporation, sent a letter on DeLong's behalf to
Defendants Somers, Collins and Groblewski requesting that the
prison and medical officials provide DeLong with medication
to control his serious pain, as well as a referral to LSH for
an orthopedic consultation. Id. ¶¶ 52, 53.
March 30, 2015, DeLong informed RN Ireland that he was being
denied the LSH consult and surgery that had been recommended
to treat his knee injury. Id. ¶ 54. On April
10, 2015, Defendant Ireland responded to DeLong, stating that
a treatment plan had been implemented and that surgery would
not be given to him at this time. Id. ¶ 55.
April 21, 2015, DeLong appealed the denial of surgery and/or
orthopedic consultation to Linda Farag, a grievance
coordinator for the Massachusetts Partnership of Correctional
Health (“MPCH”). Id. ¶¶ 8, 56.
Defendant Farag denied DeLong's appeal, but failed to
specifically address the need for surgery or an orthopedic
referral. Id. ¶ 57.
7, 2015, DeLong was transferred to OCCC. Id. ¶
58. Shortly thereafter, he was seen by Dr. N.K. Bhagovon.
Id. ¶ 59. Dr. Bhagovon placed a consult to an
orthopedic doctor. Id. The same day, DeLong received
a letter from Stephanie Collins, the Assistant Deputy
Commissioner of Clinical Services for the Massachusetts
Department of Correction. Id. ¶¶ 15, 60.
The letter informed DeLong that the Department of
Correction's Utilization Management Team
(“UMT”), which DeLong believes consisted of
Defendants Nelson, Somers, Ireland, Groblewski, Collins and
Lubelczyk, denied his referral to an orthopedic doctor.
Id. ¶¶ 15a, 62. The referral was
purportedly denied on the basis of DeLong's activity
level. Id. ¶ 63.
3, 2015, DeLong received a letter from Defendant Stephanian
stating that an orthopedic consultation was pending.
Id. ¶ 66. On July 29, 2015, DeLong was seen by
an orthopedic doctor at Bridgewater State Hospital.
Id. ¶ 67.
months later, DeLong was seen by NP Carol Lockwood for his
knee pain and she recommended that DeLong be seen by an
orthopedic doctor. Id. ¶¶ 68, 69. This
request was denied. Id. ¶ 70. DeLong again
requested that he be sent to the on-site orthopedic doctor.
Id. On October 14, 2015, NP Lockwood submitted a
second request for DeLong to be seen by an orthopedic doctor
at LSH. Id. ¶ 71.
October 20, 2015, DeLong was again seen by an orthopedic
doctor at Bridgewater State Hospital, who recommended knee
surgery at LSH. Id. ¶¶ 72, 73. The
doctor's request for knee surgery was denied, purportedly
by UMT. Id. ¶ 74. NP Lockwood placed another
referral for DeLong to see an orthopedic doctor at LSH and
informed DeLong of how to file an appeal. Id. ¶
75. DeLong subsequently filed an appeal (presumably with
Defendant Farag) of the decision to deny knee surgery.
Id. ¶ 76.
December 8, 2015, DeLong saw Dr. Carrillo, an orthopedic
surgeon at LSH. Id. ¶¶ 15b, 77. After
examining DeLong, Defendant Carrillo concluded that DeLong
would benefit from arthroscopy surgery. Id. ¶
78. Defendant Carrillo told DeLong that surgery would be
scheduled as soon as it was approved by MPCH. Id.
February 2, 2016, DeLong was brought to LSH for surgery.
Id. ¶ 80. The surgery consisted of a
“left knee [arthroscopy] and a chondroplasty of the
medial femoral condyle with microfractures and remodeling of
the medial meniscus.” Id. ¶ 81. The
medical discharge instructions from LSH provided for Percocet
every four to six hours. Id. ¶ 83.
his return from LSH, DeLong was placed in OCCC's Health
Services Unit (“HSU”). See id.
¶¶ 82, 102. The HSU intake nurse informed DeLong
that he would not be given Percocet. Id. ¶ 84.
Defendant Tran, a doctor at OCCC, changed the discharge
orders to prescribe Toradol every 8 hours instead of
Percocet. Id. ¶¶ 11, 86.
first night after surgery, DeLong was in a great deal of pain
and was given Ibuprofen. Id. ¶ 87. One hour
later, DeLong asked a correction officer to see a duty nurse
concerning his pain, but he was told that the nurse refused
to see him. Id. ¶ 88. The next morning, DeLong
was still in extreme pain and asked a passing ...