Baptiste v. Exec. Office of Health & Human Servs.

• Decision Date: 28 February 2020
• Docket Number: No. 18-P-1353,18-P-1353
• Citation: 97 Mass.App.Ct. 110,143 N.E.3d 1052
• Court: Appeals Court of Massachusetts
• Parties: Marianne BAPTISTE & another v. EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & others.

97 Mass.App.Ct. 110

143 N.E.3d 1052

Marianne BAPTISTE ¹ & another²

v.EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & others.³

No. 18-P-1353

Appeals Court of Massachusetts, Suffolk..

Argued December 4, 2019.

Decided February 28, 2020.

Ira H. Zaleznik, Boston, for the plaintiffs.

Katherine B. Dirks, Assistant Attorney General, for the defendants.

Philip T. Tierney, Boston, for Douglas K. Chin, was present but did not argue.

Present: Meade, Shin, & Singh, JJ.

MEADE, J.

The plaintiffs, Marianne Baptiste and Gregory Williams, Sr., brought this action to recover damages against the defendants, the Massachusetts Executive Office of Health and Human Services (HHS), the Department of Youth Services (DYS), and certain of their employees⁴ after a DYS-committed juvenile injured their son, Gregory Williams, Jr. (Williams),⁵ while he was in DYS custody at the Casa Isla Short-Term Treatment and Revocation Center (Casa Isla). As pertinent here, the plaintiffs asserted three claims: (1) a claim, pursuant to 42 U.S.C. § 1983, against DYS Commissioner Peter Forbes and DYS Regional Director John Hughes in their individual capacities (collectively, DYS individual defendants), for failure to provide adequate medical care in violation of the Eighth and Fourteenth Amendments to the United States Constitution; (2) a negligence claim, pursuant to G. L. c. 258, § 2, against HHS, the Secretary of HHS, and DYS; and (3) a claim pursuant to G. L. c. 231, § 85X, against all of the defendants for Baptiste and Gregory Williams, Sr.'s loss of consortium. Defendants HHS, the Secretary of HHS, DYS, DYS's Commissioner, and DYS's Regional Director (collectively, Commonwealth defendants) brought a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).⁶ A Superior Court judge allowed the motion, and a separate and final judgment entered for the Commonwealth defendants pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).⁷ The plaintiffs have appealed. We affirm.⁸

Background.⁹ 1. The program. Casa Isla was a program for juvenile males located in a facility (now closed) on Long Island in Boston Harbor. Casa Isla was operated by Volunteers of America of Massachusetts, Inc. (VOA), a nonprofit entity under contract with DYS to operate youth residential programs. VOA also operated a separate residential drug and alcohol recovery program for juvenile males on Long Island known as "Project Rebound." The two programs were housed in separate facilities.

On May 21, 2012, Williams was adjudged a youthful offender, and was committed to DYS's custody and care pursuant to G. L. c. 119, § 58 (c ). On March 25, 2013, following a series of placements, Williams was transferred to Casa Isla to undergo approximately three months of treatment.

2. The assault. On the morning of April 19, 2013, Douglas Chin, a seventeen year old resident of Project Rebound, said he wanted to get "kicked out" of Project Rebound and that he wanted to punch someone so he would be returned to Pembroke House.¹⁰ Later that day, Chin and Williams participated in a flag football game between Casa Isla residents and Project Rebound residents. Two Casa Isla staff members were supervising the game, in which approximately twenty residents were participating.

During the football game, at approximately 12:00 P.M. , Chin ran toward Williams, who was looking in a different direction, and repeatedly struck him with a closed fist on the left side of his throat and jaw. Prior to the attack, Williams and Chin had not exchanged words and did not know one another. Two Casa Isla staff members intervened and stopped the attack; the football game was suspended, and the Casa Isla residents were instructed to proceed to lunch.

3. Symptoms and injury. At lunch immediately following the game and on two occasions thereafter, Williams complained of a headache to Casa Isla staff.¹¹ A VOA staff member gave him ibuprofen. No one took Williams to see the nurse on staff or to the hospital. Between 3:35 P.M. and 4:00 P.M. , Williams took a shower at the suggestion of VOA staff members, after which he reported feeling better. At approximately 5:00 P.M. , Williams told a staff member that, in addition to his headache, he also was experiencing severe pain on his right side, and asked to see a nurse. Residents reported that between 4:15 P.M. and 5:00 P.M. , Williams started complaining that he could not feel his legs. The VOA staff member noted that Williams was experiencing facial asymmetry

, right side weakness, and trouble speaking. The staff member contacted Boston Emergency Medical Services (Boston EMS) around 5:10 or 5:15 P.M. Boston EMS arrived at 5:40 P.M. and transported Williams to Boston Medical Center.

Williams suffered a traumatic carotid artery dissection

and occlusion resulting in a middle cerebral artery stroke, seizures, and cerebral edema. As a result, he now has severe and permanent brain damage. Williams currently resides in a residential program and requires twenty-four hour care.

4. VOA. For approximately twenty years, VOA had been a support contract vendor under agreement with DYS and HHS, which were responsible for the oversight of VOA. VOA's contract with DYS required VOA to comply with all applicable provisions of law relative to the care of clients and to implement policies and procedures that are equal to or better than those of DYS. At the time of the April 19, 2013 assault, DYS regulations then in effect included: a requirement that "[a]ll facility personnel responsible for the care and custody of clients shall be trained in emergency first-aid procedures," 109 Code Mass. Regs. § 11.26(1) (1993); authorization for the provision of medical care in medical emergencies, see 109 Code Mass. Regs. § 11.04(3) (1993) ("When there is a medical emergency, as determined by any medical provider, no one's consent is required in order to allow a client to receive necessary medical care"); and a requirement that each facility administrator "shall develop written plans and procedures ... for the secure storage and controlled administration of all medications and drugs." 109 Code Mass. Regs. § 11.28(2) (1993).

In 2002, DYS issued a policy on "Use of Over the Counter (OTC) Medications" that permits nonmedical staff to administer nonprescription medications under specific conditions, such as when a resident's medical complaint is covered by standing orders, i.e., a "standard of treatment for each patient for a given condition [that is] prepared and signed by a qualified health staff person."

5. The audits. The complaint alleges that the DYS Commissioner and the Regional Director disregarded VOA's noncompliance with safety requirements. In February 2013, DYS conducted a program compliance review of Casa Isla and determined that Casa Isla's director and assistant director were not in compliance with required first-aid training and certifications. However, the plaintiffs' complaint does not allege that Casa Isla's director or assistant director had any involvement in Williams's care on April 19, 2013. DYS had also documented noncompliance with required first-aid training and certifications in 2010, 2012, and 2013, but the complaint does not allege that anyone involved in Williams's care on April 19, 2013, lacked first-aid training and certifications.

A postassault, 2014 audit of Casa Isla conducted by DYS confirmed that several staffers had failed to attend some required trainings, and also reported documentation deficiencies. Casa Isla's log of trainings and certifications does not indicate that "OTC Medication Training" or equivalent training was provided to staff. However, the complaint does not allege that any of the individuals who did not attend the trainings were involved in Williams's care on April 19, 2013.

Discussion. 1. Standard of review. We review the allowance of a rule 12 (b) (6) motion to dismiss de novo. A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424, 95 N.E.3d 547 (2018). We accept "the facts alleged in the complaint as true and draw[ ] all reasonable inferences in the plaintiff[s'] favor." Edwards v. Commonwealth, 477 Mass. 254, 260, 76 N.E.3d 248 (2017). However, "[w]e do not regard as ‘true’ legal conclusions cast in the form of factual allegations." Id., quoting Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 39 n.6, 907 N.E.2d 213 (2009). To survive a motion to dismiss, the facts alleged must " ‘plausibly suggest[ ] (not merely [be] consistent with)’ an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully" (citation omitted). Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

2. Supervisory liability under § 1983. a. Underlying constitutional violation. Title 42 U.S.C. § 1983 (2012) provides in relevant part:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...."

Section 1983 is "not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred" (quotation and citation omitted). Graham v. Connor, 490 U.S. 386, 393-394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

Governmental actors "are responsible only for ‘their own illegal acts’ " (emphasis omitted). Connick v. Thompson, 563 U.S. 51, 60, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011), quoting Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct....