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DeLong v. Nelson

United States District Court, D. Massachusetts

August 7, 2019

JOSEPH DeLONG, Plaintiff,
v.
BART NELSON, et al., Defendants.

          REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS

          Judith Gail Dein United States Magistrate Judge.

         Pro 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.

         After 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 Defendant Carrillo.

         Presently 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.

         I. STATEMENT OF FACTS

         The 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).

         During 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, [1]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.

         Delay in Receiving Medical Treatment

         On 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.

         On 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.

         On 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.

         On 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.

         On 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. ¶ 40.

         Over a 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.

         On 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.

         On 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.

         Delay in Receiving Surgery

         On 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.

         On 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.

         On 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.

         On 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”).[2] Id. ¶¶ 8, 56. Defendant Farag denied DeLong's appeal, but failed to specifically address the need for surgery or an orthopedic referral. Id. ¶ 57.

         On May 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.

         On June 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.

         Two 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.

         On 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.

         On 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. ¶ 79.

         On 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.

         Treatment after Surgery

         Upon 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.

         The 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. ΒΆ 88. The next morning, DeLong was still in extreme pain and asked a passing ...


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