Lopes v. Riendeau

• Decision Date: 03 March 2016
• Docket Number: CIVIL ACTION NO. 14-10679-NMG
• Parties: DANA LOPES, Plaintiff, v. GERALDINE RIENDEAU, R.N., BARBARA BERG, LPN, UMASS CORRECTIONAL HEALTH, Program Services, DYANA NICKL, Senior Director of Program UMass Corr. Health, LAWRENCE WEINER, Assistant Deputy Commissioner of Clinical Services, SHAWNA NASUTI, N.P., PAUL CARATAZZOLA, LICSW, Administrator of Health Services, PAT DAVENPORT-MELLO, HSA of Nursing, and MASSACHUSETTS PARTNERSHIP OF CORRECTIONAL HEALTHCARE, Defendants.
• Court: U.S. District Court — District of Massachusetts

DANA LOPES, Plaintiff, v. GERALDINE RIENDEAU, R.N., BARBARA BERG, LPN,UMASS CORRECTIONAL HEALTH, Program Services,DYANA NICKL, Senior Director of Program UMass Corr. Health,LAWRENCE WEINER, Assistant Deputy Commissioner of Clinical Services,SHAWNA NASUTI, N.P., PAUL CARATAZZOLA, LICSW, Administrator of Health Services,PAT DAVENPORT-MELLO, HSA of Nursing, and MASSACHUSETTSPARTNERSHIP OF CORRECTIONAL HEALTHCARE, Defendants.

CIVIL ACTION NO. 14-10679-NMG

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 3, 2016

REPORT AND RECOMMENDATION RE: MPCH DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (DOCKET ENTRY # 97); DEFENDANTS GERALDINE RIENDEAU AND DYANA NICKL'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 99); PRO SE PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT (DOCKET ENTRY # 92)

BOWLER, U.S.M.J.

Pending before this court is a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) ("Rule 12(c)") filed by defendants Barbara Berg ("Berg"), Shawna Nasuti, N.P. ("Nasuti"), Paul Caratazzola ("Caratazzola"), Patricia Davenport-Mello ("Davenport") and Massachusetts Partnership for Correctional Healthcare ("MPCH") (collectively "MPCH defendants"). (Docket Entry # 97). Defendants Geraldine Riendeau, R.N. ("Riendeau"), Dyana Nickl ("Nickl") and UMass Correctional Health¹ ("UMCH"), move for summary judgment under Fed.R.Civ.P. 56 ("Rule 56") on the retaliation and Eighth Amendment medical claims under 42 U.S.C. § 1983 ("section 1983"). (Docket Entry ## 99, 101). In addition to challenging the merits of each claim, they submit that plaintiff failed to exhaust administrative remedies with respect to the Eighth Amendment claim for alternative hepatitis C treatment and a liver transplant. (Docket Entry # 101, § IV). They also seek summary judgment on the state law claims due to lack of exhaustion under Massachusetts General Laws chapter 127 ("chapter 127") and their immunity under Massachusetts General Laws chapter 258, section two. (Docket Entry ## 99, 101).

Also pending before this court is a motion for relief under Fed.R.Civ.P. 60(b)(1) and 60(b)(2) ("Rule 60(b)") filed by plaintiff, an inmate at OCCC. (Docket Entry # 92). The motion seeks relief from a March 24, 2015 Order by the district judge (Docket Entry # 67), which accepted in part and rejected in part this court's March 2, 2015 Report and Recommendation.

PROCEDURAL BACKGROUND

Plaintiff filed this civil rights action pro se seekingmedical care in the form of alternative medications, namely, boceprevir and telaprevir, to treat his hepatitis C and, once stabilized, a liver transplant. (Docket Entry # 1, ¶¶ 8, 18, 24). He alleges that Riendeau, Lawrence Weiner ("Weiner"), Nickl, UMCH, Berg, Nasuti, Caratazzola, Davenport, MPCH, Riendeau and Nickl ("defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983 ("section 1983"). Liberally construing the pro se complaint, it also raises a retaliation claim against Weiner, Riendeau, her employer (UMCH), Berg, and her employer (MPCH) and that Weiner "palmed off" plaintiff's internal complaint to Nickl.² (Docket Entry # 1, ¶¶ 14-17). In addition to the section 1983 retaliation claim, the complaint sets out causes of action for denied or inadequate medical care against defendantsunder: (1) section 1983; (2) article 26 of the Massachusetts Declaration of Rights; and (3) the Massachusetts Tort Claims Act, Massachusetts General Laws chapter 258, section two ("MTCA" or "chapter 258").³ In addition to access to the alternative medications and a liver transplant, plaintiff seeks compensatory and punitive damages. (Docket Entry # 1, ¶¶ 18, 24).

On March 2, 2015, this court issued the Report and Recommendation. The opinion recommended allowing the MPCH defendants' summary judgment motion on the Eighth Amendment claim against the MPCH defendants given the failure to set out a viable claim of inadequate or denied medical care regarding the failure to prescribe the alternative medications (boceprevir and telaprevir) and provide plaintiff a liver transplant. Because MPCH contracted to provide the medical care at OCCC in July 2013 (Docket Entry # 33-1, p. 2), the Report and Recommendation addressed the deliberate indifference of the MPCH defendants "beginning in July 2013" as opposed before July 2013 when UMCHprovided the services. (Docket Entry # 60, pp. 6, 33).⁴

The opinion additionally recommended denying the MPCH defendants' summary judgment motion based on administrative exhaustion under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), because it was a genuine issue of material fact as to whether a January 2015 grievance seeking new drugs to treat plaintiff's hepatitis C satisfied the PLRA. (Docket Entry # 60, 27-29). This court also addressed and rejected plaintiff's PLRA exhaustion arguments as a means to avoid summary judgment regarding a number of other grievances. (Docket Entry # 60). Finally, the opinion recommended denying the MPCH defendants' summary judgment on the state law claims due to lack of exhaustion under section 38F of chapter 127 in light of a genuinely disputed material fact as to whether plaintiff's medical condition and health fell within the statute's exception for "exigent circumstances." (Docket Entry # 60, pp. 29-30).

On March 24, 2015, the district judge accepted the recommendation to allow the MPCH defendants' summary judgment motion on the section 1983 Eighth Amendment claim, rejected this court's determination that there remained a genuine issue of material fact as to whether the January 2015 grievance and appeal satisfied the PLRA and otherwise accepted the Report andRecommendation.⁵ Thereafter, plaintiff filed the Rule 60(b) motion, Riendeau and Nickl filed the summary judgment motion and the MPCH defendants filed the Rule 12(c) motion.

I. Rule 60(b) Motion

Plaintiff seeks relief under Rule 60(b)(1) and 60(b)(2) on a number of grounds. Under Rule 60(b)(1), he maintains that this court made a mistake by: relying on hearsay to assess the facts; faulting plaintiff for not appealing July 2012 and November 2013 grievances; erroneously holding that plaintiff should have appealed the November 2013 grievance even though it was approved; and advancing a new "theory of defense of sovereign immunity." (Docket Entry # 94). Under Rule 60(b)(2), plaintiff seeks to add new evidence consisting of the grievance policy at OCCC prior to July 2013, an August 20, 2014 letter from the Health Services Division of the Massachusetts Department of Correction and print outs from a website of the National Institutes of Health ("NIH") regarding boceprevir and telaprevir.

Rule 60(b) sets out a stringent standard to obtain relief from an order. See Daniels v. Agin, 736 F.3d 70, 86 (1^st Cir. 2013) ("'relief under Rule 60(b) is extraordinary in nature and motions invoking that rule should be granted sparingly'") (internal brackets and capitalization omitted). As explained bythe First Circuit in Fisher:

A party seeking relief under Rule 60(b) must demonstrate "at a bare minimum, that his motion is timely; that exceptional circumstances exist, favoring extraordinary relief; that if the judgment is set aside, he has the right stuff to mount a potentially meritorious claim or defense; and that no unfair prejudice will accrue to the opposing parties should the motion be granted."

Fisher v. Kadant, Inc., 589 F.3d 505, 512 (1^st Cir. 2009).

A. Hearsay Evidence and Advancing New Theory

Relying on Rule 60(b)(1), plaintiff initially argues that the Report and Recommendation mistakenly relied on hearsay. Rule 60(b)(1) provides relief from an order in the event of a "mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1). A mistake may encompass a mistake by the court. See, e.g., Fisher v. Kadant, Inc., 589 F.3d 505, 512-514 (1^st Cir. 2009); F.A.C., Inc. v. Cooperativa de Seguros de Vida de Puerto Rico, 449 F.3d 185, 191 (1^st Cir. 2006).

Here, plaintiff contends that this court relied on hearsay in a February 18, 2015 affidavit by Aysha Hameed, M.D. ("Dr. Hameed") "that offered a brand new theory of defense," namely, that plaintiff carried a mutation that predicts resistance to protease inhibitors such as boceprevir and telaprevir. (Docket Entry # 94). Dr. Hameed is a regional medical director employed by MPCH since July 2013 and was "a medical doctor in various DOC facilities" prior thereto. (Docket Entry # 94). In the affidavit, Dr. Hameed avers that she has "personal knowledge of the care and treatment of [plaintiff] at OCCC, and . . . reviewedhis medical records since his admission to OCCC." (Docket Entry # 56-1).

The "hearsay" consists of Dr. Hameed's recitation that:

Mr. Lopes has a specific viral mutation, which predicts resistance to protease inhibitors ("PI") Boceprevir and Telaprevir. Mr. Lopes previously underwent testing at Boston Medical Center, where an attending physician in the Gastroenterology Department recommended that Mr. Lopes avoid PI's.⁶

For the past year, Mr. Lopes' condition has been monitored with multiple lab tests and chronic disease consultations with medical professionals outside of OCCC,⁷ while MPCH medical staff have also waited for the U.S. Food and DrugAdministration . . . to approve a new form of treatment.

. . . Mr. Lopes was recently approved by MPCH medical staff to begin treatment with Harvoni, which is expected to start on or around March 2, 2015.

(Docket Entry # 56-1). The Report and Recommendation summarized this portion of the affidavit in the factual background and relied on it as a means to allow summary judgment for the MPCH defendants on the Eighth Amendment claim. (Docket Entry # 60, pp. 10, 33-34).

Examining the existence of a mistake within the meaning of Rule 60(b)(1), it is well settled that, "'[H]earsay evidence cannot be considered on summary judgment.'" Bennett v. Saint-Gobain Corp., 507 F.3d 23, 28 (1^st Cir. 2007). Although plaintiff filed a motion to strike the affidavit, he...