Lopes v. Beland et al

Filing 245

Judge Denise J. Casper: ORDER entered. MEMORANDUM OF DECISION - In light of the findings of fact and conclusions of law, the Court enters judgment in favor of Defendants on all remaining counts. Any injunctive and declarative relief sought by Lopes is DENIED in light of the Court's decision. The motion for judgment on partial findings, D. 226, is DENIED as moot. (Hourihan, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
DANILO LOPES,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 11-12063-DJC
)
JOHN BELAND et al.,
)
)
Defendants.
)
__________________________________________)

MEMORANDUM OF DECISION
August 4, 2016
I.

INTRODUCTION
Plaintiff Danilo Lopes (“Lopes”), a Massachusetts Department of Corrections (“DOC”)

inmate, has brought state and federal constitutional claims against Carol H. O’Brien, Lawrence M.
Weiner, Lisa A. Mitchell, Scott E. Anderson, Thomas E. Dickhaut, Anthony M. Mendonsa and
Thomas M. Tocci, the remaining parties with claims against them (collectively, “Defendants”).
The Court held a bench trial over the course of three days and has now received and considered
the parties’ proposed findings of facts and conclusions of law, D. 237, 243. Although the DOC
has voluntarily and wisely adopted the core relief that Lopes seeks in this lawsuit—namely, his
assignment to a single-bunked cell—the Court does not conclude that Lopes is entitled to such
relief as a matter of law or that the Defendants’ failure to grant such relief earlier constituted cruel
and unusual punishment in violation of the Eighth Amendment or a violation of due process in
violation of the Fourteenth Amendment or the Massachusetts Declaration of Rights. Accordingly,

1

the Court now issues its findings of facts and conclusions of law and enters judgment in favor of
Defendants.
II.

PROCEDURAL HISTORY
Lopes began this lawsuit on November 17, 2011. D. 1. On October 1, 2012, Lopes filed

the operative complaint, his second amended complaint. D. 54. Counts I and II are substantive
due process claims under the Fourteenth Amendment and the Massachusetts Declaration of Rights,
respectively. Id. ¶¶ 70-77. Counts III and IV are procedural due process claims under the
Fourteenth Amendment and the Massachusetts Declaration of Rights, respectively. Id. ¶¶ 78-83.
Count V alleges a deliberate indifference claim under the Eighth Amendment. Id. ¶¶ 84-87. On
November 30, 2012, Defendants moved to dismiss the operative complaint for failure to state a
claim and failure to exhaust administrative remedies. D. 79. On April 5, 2013, the Court converted
the Defendants’ motion into a motion for summary judgment only on the issue of exhaustion. D.
91. On March 29, 2014, the Court denied Defendants’ summary judgment motion on exhaustion
grounds, denied Defendants’ motion to dismiss against Counts I-V but allowed their motion to
dismiss Count VI, an Americans with Disabilities Act claim.1 D. 111.
Over the course of three days, the Court held a bench trial on the remaining claims. D.
221, 222, 227. On the last day of trial, three of the Defendants requested that the Court enter
judgment as a matter of law on partial findings, but the Court reserved ruling on the motion. D.
226, D. 235 at 61:6-22. Both parties, after the trial, filed proposed findings of fact and conclusions
of law, D. 237, 243.

1

Separately, the Court allowed a summary judgment motion brought by MHM Correctional
Services, Inc., George D. Johns, Joel T. Andrade, Donald J. Hager, and John Beland. D. 92, D.
111.

2

III.

FINDINGS OF FACT
In light of the evidence presented at the bench trial, the Court makes the following findings

of fact:
The Parties and Witnesses
1.

Lopes is an inmate lawfully incarcerated at Old Colony Correctional Center

(“OCCC”). D. 54 ¶ 1; D. 230 at 77:1-2.2
2.

Defendant Carol H. O’Brien is the DOC Commissioner and sued in her official

capacity. D. 157. She replaced former Commissioner Luis Spencer, who was named in Lopes’s
operative complaint. D. 54 ¶ 2.
3.

Defendant Lisa Mitchell (“Mitchell”) is Superintendent of OCCC. D. 231 at 82:21-

4.

Defendant Thomas Dickhaut (“Dickhaut”) was Superintendent of the Souza

83:1.

Baranowski Correctional Center (“SBCC”) from May 2007 until September 2011. D. 235 at 34:717.
5.

Defendant Anthony Mendonsa (“Mendonsa”) was the Deputy Superintendent of

Classification and Programs at SBCC from 2005 to 2011. D. 231 at 47:15-17.
6.

Defendant Thomas Tocci (“Tocci”) is the Institutional Grievance Coordinator at

SBCC and is responsible for investigating and resolving grievances filed by SBCC inmates. D.
235 at 5:18-20, 18:8-12.
7.

Defendant Scott Anderson (“Anderson”) was the Deputy Superintendent of

Classification and Programs at the Massachusetts Correctional Institution at Shirley (“MCI-

2

Page and line citations to D. 230, D. 231 and D. 235 are citations to the July 30, July 31 and
August 13, 2015 transcripts of the bench trial, respectively.
3

Shirley”) from June 2005 to September 2011.

D. 231 at 38:8-13.

He was also Acting

Superintendent from January until September 2011. Id. at 40:25-41:1.
8.

Defendant Lawrence Weiner (“Weiner”) was the Assistant Deputy Commissioner

of Clinical Services from 2011 to 2013. Id. at 147:19-22.
9.

Donald J. Hager (“Hager”) works as Regional Mental Health Director for the

Massachusetts Partnership for Correctional Healthcare (the contracted healthcare provider for the
DOC) at SBCC. D. 230 at 116:15-25, 119:21-120:9. He is a licensed mental health counselor.
Id. at 120:10-13.
10.

Mitzi Peterson (“Peterson”) is Regional Administrator for the Health Services

Division of the Department of Corrections. Id. at 148:4-12. During the relevant time period, she
was the Clinical Director at OCCC, where she oversaw and supervised clinical staff. Id. at 148:1624. She is a licensed independent clinical social worker. Id. at 152:24-25.
11.

At the bench trial, the Court heard testimony from Lopes, D. 230 at 22, Hager, id.

at 116, Peterson, id. at 148, Anderson, D. 231 at 38, Mendonsa, id. at 47, Mitchell, id. at 83,
Weiner, id. at 147, Tocci, D. 235 at 5 and Dickhaut, id. at 24. The Court has considered this
testimony along with the exhibits admitted at trial.
SBCC and OCCC
12.

SBCC is the only maximum-security correctional facility in the Commonwealth.

D. 231 at 50:12-15; D. 235 at 38:14-18. Because the DOC designated SBCC as the sole maximumsecurity facility in 2008, SBCC became a double-bunked facility to allow for the housing of other
maximum-security inmates originally housed elsewhere. D. 231 at 50:10-17; D. 235 at 41:1042:21. SBCC currently contains both double-bunked (i.e., two inmates to a cell) and single-bunked
(i.e., one inmate to a cell) cells. D. 231 at 61:20-62:5.

4

13.

OCCC is a medium-security correctional facility that houses approximately 1,000

inmates. Id. at 100:12-13. In 2010, OCCC transformed from a general population correctional
facility to one that specialized in the treatment of mentally ill inmates. Id. at 100:19-101:2. OCCC
was originally all single-bunked cells, but because of overcrowding, now has double-bunked cells
as well. Id. at 102:8-11.
February 2005 to May 2009: Lopes at SBCC
14.

Lopes was sentenced in February 2005. D. 230 at 27:18. He was initially housed

at the Massachusetts Correctional Institution at Concord (“MCI-Concord”). Id. at 27:25-28:1.
15.

The Inmate Management System (“IMS”) is the DOC electronic system that relays

information to correctional and vendor staff. D. 230 at 117:16-22; D. 231 at 84:2-5. An IMS
printout shows that on February 23, 2005, a medical restriction for a single room was entered for
Lopes. Defendants’ Exhibit 1. A comment on the printout stated: “Patient requires single room
only because of history of childhood trauma and paranoia.” Id.; D. 230 at 141:7-142:4; D. 235 at
63:4-10.
16.

Lopes testified about sexual assault that he suffered as a youngster, D. 230 at 22-

23, and when detained in Plymouth when he was 19 years old. Id. at 24.
17.

On February 24, 2005, Lopes was transferred to SBCC. D. 231 at 67:14-18; D. 235

at 67:3-4. As part of Lopes’s SBCC intake, a correctional offer prepared an intake sheet. D. 231
at 66:21-67:11. At the time, Lopes claimed no medical or mental health issues. Defendants’
Exhibit 3; D. 231 at 67:19-25. According to his orientation checklist (documenting that an inmate
has received the inmate handbook explaining the rules and regulations of the facility, that he has
been advised by medical and mental health staff on how to get healthcare within the facility and
that the inmate has advised staff whether he can reside in general population safely without fear),
Defendants’ Exhibit 4; D. 231 at 68:11-19, Lopes acknowledged that he was advised about access
5

to healthcare. Defendants’ Exhibit 4; D. 231 at 68:22-69:1. Lopes also claimed at the time of his
intake that he was not in fear for his safety and requested to be placed in the general population.
Defendants’ Exhibit 4; D. 231 at 69:2-4.
18.

During his time at SBCC, Lopes remained in a single cell. D. 230 at 29:9-11; D.

231 at 49:2-4. Because of Lopes’s seniority and the lack of disciplinary reports in his record,
Lopes remained in a single cell even as SBCC began double bunking inmates to accommodate the
arrival of new inmates. D. 231 at 49:4-10.
May 2009 to May 2011: Lopes at MCI-Shirley
19.

In May 2009, the DOC transferred Lopes to MCI-Shirley. D. 230 at 31:1-3. As

part of his intake there, Lopes signed an inmate waiver form. Defendants’ Exhibit 5; D. 230 at
106:4-15. According to this form, Lopes indicated that he wished to be placed or remain in the
general population at MCI-Shirley and that any and all past problems that he may have had with
other inmates had been resolved. Defendants’ Exhibit 5; D. 230 at 106:13-25.
20.

From May 1, 2009 until February 10, 2011, Lopes was housed in a cell together

with a succession of cellmates. D. 230 at 81:3-83:24. Although he was double-bunked during this
period, he had no attempted suicides or any disciplinary report for fighting with his cellmates. Id.
at 85:8-14.
21.

On February 11, 2011, Lopes received a disciplinary report. Id. at 85:16-19, 86:4-

7. The report stated that he possessed a bent four-inch frame nail in his shoe and charged him with
possession of a weapon and possession of a tool. Defendants’ Exhibit 20; D. 230 at 86:8-14. As
a result, Lopes was transferred to the Special Management Unit (“SMU”), also known as
segregation. D. 230 at 32:9-33:13; D. 231 at 106:9-107:4. On March 4, 2011, Lopes pled guilty
to possessing a tool. D. 230 at 87:20-25.

6

22.

Around this time, Lopes also had a letter written on his behalf sent to the

superintendent requesting a single cell. Defendants’ Exhibit 9; D. 230 at 33:17-19, 112:7-9. Lopes
did not cite his mental health or any history of sexual assault or trauma for this request Defendants’
Exhibit 9; D. 230 at 112:16-113:3. Instead, Lopes’s letter sought a single cell because “I’m not a
troublemaker and I stay by myself of the last 19 months. I’ve dealt with cellmates who want to
look for trouble. I’ve had seven cellmates since I’ve been here. I have issues with living with
people. I just want to do my time with no problems. I’m asking for a single. I have a lot of time
to do.” Defendants’ Exhibit 9; D. 230 at 113:4-9.
23.

On March 25, 2011, Anderson responded to Lopes’s letter. Defendants’ Exhibit

10. The letter states: “Be advised you are currently pending discipline for refusing to return to
general population. Additionally, single cells are obtained through seniority within the unit.” Id.;
D. 230 at 113:13-19. Anderson testified that Lopes’s letter gave him no reason to believe that
Lopes sought a single cell for mental health reasons. D. 231 at 41:10-13.
May 2011 to January 2012: Two Suicide Attempts at SBCC
24.

Approximately two months later, on May 26, 2011, the DOC transferred Lopes

back to SBCC. Defendants’ Exhibit 8; D. 231 at 70:8-9. The intake sheet at the time of Lopes’s
transfer indicated that there was no documented history of vulnerabilities or tendencies of acting
out with sexually aggressive behavior or a history that identified the inmate as at risk for sexual
victimization. Defendants’ Exhibit 8; D. 231 at 71:24-72:6. According to the intake sheet, Lopes
was not considered an open mental health case. Defendants’ Exhibit 8; D. 231 at 72:15-23.
25.

Again during this intake process, Lopes did not indicate that he was not in fear for

his safety, requested to be placed in general population and indicated that he was advised of the
sick call procedures. Defendants’ Exhibit 7; D. 230 at 108:7-22; D. 231 at 72:24-73:7.

7

26.

Initially, Lopes was scheduled to be transferred to an orientation unit at SBCC.

Because, however, he refused to speak with mental health staff and refused to tell them that he
would not harm himself, he was placed on mental health watch and sent to the Health Services
Unit (“HSU”) at the facility. D. 231 at 73:12-16, 81:17-82:1; D. 235 at 50:19-51:8; D. 230 at
128:20-24.
27.

While Lopes was on watch, a mental health clinician spoke with him every day. Id.

at 36:24-37:2. Lopes went on a hunger strike, although once he received an IV, he began to eat.
Id. at 38:7-12, 38:22-39:2; D. 231 at 74:8-11. He also received disciplinary reports for his refusal
to be transferred from the HSU to an orientation unit. D. 230 at 40:2-3; D. 231 at 74:11-13.
28.

A few weeks later, on June 9, 2011, Lopes agreed to be transferred out of the HSU

to an orientation unit. D. 231 at 74:14-21. The purpose of housing an inmate in an orientation
unit is to assess inmate adjustment to the facility. Id. at 75:8-15.
29.

On June 22, 2011, Lopes was transferred from an orientation unit to a transition

unit because he refused to accept a cellmate. Id. at 76:1-3. A transition unit is for inmates whose
comportment does not warrant entry to the general population but also does not warrant
segregation. Id. at 76:4-7. The goal of the transition unit is to place an inmate with some unit
restrictions, get them to comply with the facility’s rules and regulations and then integrate them
into the general population. Id. at 57:5-12.
30.

During his time in the transition unit, Lopes wrote a letter to Mendonsa requesting

a single cell for mental health reasons. In his response, Mendonsa indicated that he had forwarded
Lopes’s request to the mental health division. Plaintiff’s Exhibit 2; D. 230 at 43:24-44:4.
31.

On July 15, 2011, Lopes was placed back on mental health watch and transferred

to the HSU. Id. at 44:24-45:12; D. 231 at 76:9-14.

8

32.

In August 2011, while in a single cell in the HSU, Lopes attempted suicide by

hanging himself in the shower. D. 231 at 76:15-20. The suicide attempt did not require Lopes to
be hospitalized. Id. at 76:23-25.
33.

During this time, Mendonsa spoke with Lopes. Mendonsa stated that his only

choice was to transfer Lopes to K-1, a unit with no double-bunked cells and where Lopes had no
active enemies, even though Lopes had not finished the orientation process, the normal
prerequisite. D. 230 at 47:3-9, 51:4-8; D. 231 at 77:1-13. Lopes agreed to the change and was
transferred from the HSU to K-1 on August 17, 2011. D. 231 at 77:10-13.
34.

At the time, K-1 was also being refitted to be a Residential Treatment Unit

(“RTU”), a unit to provide qualifying inmates with enhanced mental health services to reduce selfinjurious behavior, to get them acclimated to the facility and to work toward assimilation with the
general population. Id. at 77:14, 111:1-9.
35.

On September 29, 2011, because Lopes did not qualify for the RTU, he was

transferred to G-1, id. at 77:11-17, but his stay there lasted less than a day because he refused to
double bunk. Id. at 77:18-20. As a result, Lopes returned to a transition unit. Id. at 52:23-25; D.
231 at 77:20.
36.

On October 11, 2011, DOC designated Lopes as an open mental health case.

Plaintiff’s Exhibit 6; D. 230 at 132:15-22. His score was “MH-3,” which meant he was at a
moderate level of mental health treatment needs and seen by a mental health clinician at least once
a month. Plaintiff’s Exhibit 6; D. 230 at 131:14-132:10. Lopes’s score also contained two
subcodes: (1) “B,” which indicated that he had been prescribed medication and (2) “D,” which
indicated that he had a history of self-injury. Plaintiff’s Exhibit 6; D. 230 at 132:11-14.
37.

On October 13, 2011, Lopes submitted a mental health grievance. Defendant’s

Exhibit 12; D. 230 at 136:7-12. Lopes requested a mental health order for a single bunk.
9

Defendant’s Exhibit 12; D. 230 at 136:15-17. Lopes’s request was denied by the mental health
director, and Hager, as the grievance and appeal coordinator, was copied on the response.
Defendant’s Exhibit 13; D. 230 at 136:22-137:4.
38.

A short time later, on November 1, 2011, Lopes filed an inmate grievance form,

again seeking a single cell. Defendants’ Exhibit 11; D. 235 at 20:25-21:5. Tocci received the
grievance. D. 235 at 20:16-24. To investigate Lopes’s claim, Tocci spoke with the assignment
officer at SBCC, who told him that Lopes was not on single cell status. Id. at 15:14-23, 16:1-8,
21:8-11. Tocci also conferred with Lopes’s primary care clinician. Id. at 21:18-20, 14:24-15:10;
id. at 16:19-25, 21:18-25.
39.

As a result, Tocci denied Lopes’s inmate grievance form and Lopes never appealed

it. Id. at 22:1-12.
40.

Lopes, however, did appeal his mental health grievance. Defendants’ Exhibit 14;

D. 230 at 137:16-138:2.
41.

While considering Lopes’s appeal, Hager discovered that an incomplete medical

restriction for a single cell had been entered into IMS back in 2005. D. 230 at 140:3-6. The
restriction was incomplete because it did not comply with the medical restriction process. Id. at
118:1-21. The process requires that a clinician complete a form explaining the justification for the
medical restriction. Id. The form then must be approved by both the health service administrator
and the deputy of treatment and classification at the inmate’s facility. Id. Once their approvals
are obtained, the clinician can enter the restriction into IMS. Id. A restriction comes with a start
date, a review date, comments or explanations and a check box to indicate whether the restriction
should be indefinite. Id.

10

42.

Lopes’s file did not contain a medical restriction form or any other documentary

support for the 2005 IMS entry. Id. at 140:17-19; D. 235 at 64:8-14; D. 230 at 142:8-20; D. 235
at 65:12-66:4.
43.

After review of the appeal, Hager upheld the original grievance decision.

Defendants’ Exhibit 15; D. 230 at 138:14-15. In so doing, Hager explained that Lopes’s 2005
single cell medical restriction was incomplete. D. 230 at 138:17-19. He also explained that
Lopes’s history of self-injury weighed against placing him alone in a cell. Id. at 138:20-139:5.
Hager’s decision was based on his suicide prevention training, twenty years of experience as a
crisis counselor and data and reference textbooks on the subject. Id. at 139:6-14.
44.

Before Hager responded to Lopes’s appeal, on January 10, 2012, Lopes attempted

suicide. Id. at 133:7-14; D. 231 at 78:5-8. Lopes made a rope and attempted to break his neck.
D. 230 at 56:20-57:7. This suicide attempt required Lopes’s hospitalization in an outside hospital
for several hours. D. 230 at 57:11-12, 133:14-15. Upon Lopes’s return to SBCC, clinicians
ordered him to be placed on watch in the HSU. D. 231 at 78:23-24.
January 2012 to September 2012: Suicide Attempt at BSH
45.

The next day, on January 11, 2012 clinicians petitioned for Lopes to be committed

to Bridgewater State Hospital (“BSH”). D. 230 at 134:2-22; D. 231 at 78:13-16. A judge granted
the petition and Lopes was transferred from SBCC to BSH the same day. D. 231 at 78:13-16.
46.

Lopes never returned to SBCC. Id. at 79:3-5; D. 230 at 134:13-16. During his time

at SBCC, Lopes was never forcibly double bunked at any time. D. 231 at 78:1-4.
47.

In June or July 2012, while at BSH, Lopes attempted to hang himself while housed

in a single cell. D. 230 at 66:2-7, 67:2-5, 96:3-18. As a result, Lopes was placed on mental health
watch for approximately two days. Id. at 66:20-21.

11

48.

On August 30, 2012, BSH clinicians authored a discharge summary for Lopes.

Plaintiff’s Exhibit 7. The summary states that Lopes “has been approved for the RTU” and will
be transferred to OCCC. Id. “Single room requirement/request persists by the Bridgewater State
Hospital clinical team and it is highly recommended that he be placed in a single room for success
in the RTU program.” Id.
49.

Before Lopes’s transfer to OCCC, the OCCC clinical team discussed Lopes with

the BSH medical team on a conference call. D. 231 at 10:10-21, 112:23-115:3; D. 235 at 67:1525. The participants discussed Lopes’s previous suicide attempts and the BSH’s recommendation
that Lopes be housed in a single cell. D. 231 at 10:22-11:3, 113:4-17.
50.

On the call, Peterson expressed her concern about putting Lopes in a single cell.

Id. at 113:21-114:2. Peterson had reviewed Lopes’s history, which showed that Lopes had twice
attempted suicide while in a single cell but made no such attempt when housed with a cellmate.
Id. at 12:5-9, 113:21-114:2. Based on Peterson’s experience, the risk of inmate suicide is increased
by suicidal ideation, single-cell status, mental health issues, depressive issues, access to means,
and time of day. Id. at 15:18-16:1. Peterson’s clinical opinion was that the privacy a single cell
afforded placed Lopes at a higher risk of self-harm. Id. at 14:22-15:1, 16:2-8.
51.

Based on the discussion on the call, the clinicians reached a consensus that a single

cell order was not “clinically indicated” for Lopes. Id. at 12:7-16, 113:16-114:13; D. 235 at 68:19. Peterson and Mitchell were both told that BSH staff informed Lopes that he would not be
receiving a single cell at OCCC. D. 231 at 17:2-6, 115:10-17.
Since September 2012: Suicide Attempt at OCCC
52.

On September 6, 2012, Lopes transferred to OCCC. Id. at 17:19, 115:19-21. When

Lopes saw that he had cellmate, he refused to enter the cell. D. 230 at 68:3-21, 96:22-97:1. An
officer checked the computer and informed Lopes that he did not have a single cell order. Id. at
12

68:22-69:1. After approximately forty-five minutes of trying to convince Lopes to enter his cell,
Lopes and the officers agreed that Lopes would be placed on mental health watch in the SMU. Id.
at 69:14-18.
53.

The DOC issued a disciplinary report to Lopes on September 7, 2012. Plaintiff’s

Exhibit 10. Under the practice at the time, mental health staff reviewed all disciplinary reports
before they were issued to inmates and the mental health staff closed and dismissed the report only
if mental illness played a role in the conduct underlying the offense. D. 231 at 131:3-18.
54.

On September 10, 2012, Ms. Peterson entered an end date for the 2015 IMS

restriction, adding the comment: “Single cell requirement [d]iscontinued on 9/6/12 upon transfer
to OCCC from BSH, after consultation with BSH staff.” Defendants’ Exhibit 1; D. 235 at 68:1522.
55.

On September 11, 2012, the DOC issued another disciplinary report to Lopes for

his failure to move from the SMU to the RTU. Plaintiff’s Exhibit 10; D. 230 at 69:22-23.
56.

The next day, Lopes threatened to jump from the sink in his cell. D. 231 at 22:13-

15. Peterson evaluated him and put him on mental health watch. Id. at 22:15-20. As part of the
evaluation, she evaluated Lopes’s historical, clinical and situational risk factors. Defendants’
Exhibit 22; D. 231 at 23:3-14.
57.

Lopes’s threat did not change Peterson’s clinical opinion that Lopes should not

have a single cell. D. 231 at 25:23-26:1. Peterson believed that because Lopes’s threat to jump
from a sink was not lethal, Lopes was motivated by his desire to get a single cell rather than by
mental illness. Id. at 25:15-21. Peterson also believed that Lopes’s behavior was not due to mental
illness because his threats changed from hurting himself to hurting others if placed in a double
cell. Id. at 26:7-14. Mental health watch discontinued for Lopes on September 14, 2012. Id. at
27:5-6.
13

58.

On September 20, 2012, Peterson, Mitchell and other OCCC staff had a meeting

where they discussed Lopes. Id. at 128:13-129:8. They continued to discuss the single cell issue
and how Lopes did not clinically qualify for one. Defendants’ Exhibits 16; D. 231 at 129:12-16.
59.

That same day, Mitchell denied Lopes’s appeal of one of the disciplinary reports.

Plaintiff’s Exhibit 10; D. 231 at 135:20-22, 138:4-8. In the appeal, Lopes had stated that he had
suffered sexual abuse in a double-bunked cell. Plaintiff’s Exhibit 10; D. 231 at 133:1-4. Mitchell
had her staff look into Lopes’s new allegation of sexual abuse, D. 231 at 134:3-10, but they were
unable to substantiate Lopes’s allegation. Id. at 134:6-10.
60.

While at SMU, mental health clinicians visited Lopes six days a week. Id. at 27:10-

14. Lopes repeatedly told clinicians that he was safer in a single-bunked cell in the SMU than in
a double-bunked cell in the RTU. D. 230 at 98:6-21, 103:21-25; D. 231 at 29:23-30:1, 30:15-22.
61.

On October 1, 2012, Lopes attempted to commit suicide by hanging in his single

cell in the SMU. D. 231 at 30:2-6, 139:15-17; D. 230 at 71:12-14, 95:20-96:1. Lopes’s attempt
was at 11:21 a.m., just before a major prisoner count at 11:25 a.m. and during the time that meals
are being brought down to the unit. D. 231 at 30:7-14, 141:15-24.
62.

Lopes was taken to Morton Hospital, where he remained for over a week, until

October 9, 2012. D. 230 at 72:3-4; D. 231 at 143:10-11. Following his discharge from Morton
Hospital, Lopes returned to OCCC for the night. D. 231 at 143:24-144:9. On October 10, 2012,
Lopes was transferred to BSH. Id. at 32:10-13, 144:2-9.
63.

On November 9, 2012, clinical staff at OCCC and BSH discussed Lopes. D. 235

at 69:5-25. By that time, BSH clinical staff had assessed that Lopes’s suicide attempt was not the
product of mental illness. Id. at 70:16-71:5. They, however, arrived at the consensus that because
the suicide attempt was so significant and that Lopes had demonstrated he was willing to go to
almost any length, they would put him in a single cell in the RTU. Id. at 70:1-71:5.
14

64.

On November 9, 2012, the mental health director at OCCC entered a single-cell

restriction for Lopes in IMS. Defendants’ Exhibit 1; D. 235 at 69:2-12.
65.

Mitchell, the OCCC Superintendent, does not have the authority to disregard this

order. D. 231 at 145:5-7. The order is the result of a clinical process in which she has no
involvement. Id. at 145:11-21. A mental health order for a single cell, such as the one Lopes
received on November 9, 2012 and which remains in place, cannot be made or discontinued absent
a consensus decision of the facility’s mental health team and the approval of the highest ranking
officials for the mental health vendor in the state. D. 230 at 145:13-146:9; D. 231 at 36:4-12.
66.

On May 20, 2013, Lopes was discharged from BSH and transferred to OCCC. D.

230 at 75:5-8. Since that date, Lopes has been housed in a single-bunked cell. D. 231 at 145:25146:4.
IV.

CONCLUSIONS OF LAW
The Court makes the following conclusions of law:
Defendants are Entitled to Judgment on Lopes’s Eighth Amendment and
Substantive Due Process Claims
1.

In his complaint, Lopes alleges that Defendants violated the Eighth Amendment

because their actions subjected him to wanton and unnecessary infliction of pain (Count V).3 D.
54 ¶¶ 84-87. To succeed, Lopes must demonstrate that Defendants have acted with “deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
2.

This standard contains both objective and subjective inquiries. Leavitt v. Corr.

Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011). For the objective inquiry, Lopes must show

3

Lopes also alleges that this conduct violates the Fourteenth Amendment. D. 54 ¶¶ 84-87. That
makes no difference here. “A ‘deliberate indifference’ claim is based on the Eighth Amendment,
which applies against the states through the Fourteenth Amendment.” Rua v. Glodis, 52 F. Supp.
3d 84, 95 n.5 (D. Mass. 2014).
15

“proof of a serious medical need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014). A medical
need is serious “if it is one that has been diagnosed by a physician as mandating treatment, or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Leavitt, 645 F.3d at 497 (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203,
208 (1st Cir. 1990)) (internal quotation mark omitted). For the subjective injury, Lopes must show
that the prison official knew that Lopes “face[d] a substantial risk of serious harm and
disregard[ed] that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511
U.S. 825, 847 (1994).
3.

Deliberate indifference is a high bar. It refers to a “narrow band of conduct,” where

the care provided “must have been so inadequate as to shock the conscience.” Feeney v. Corr.
Med. Servs., Inc., 464 F.3d 158, 162 (1st Cir. 2006) (citations and internal quotation marks
omitted). Substandard care, “even to the point of malpractice,” is not enough. Id. (citation
omitted). Instead, the treatment provided “must have been so inadequate” that it constitutes “an
unnecessary and wanton infliction of pain” or is “repugnant to the conscience of mankind.”
Leavitt, 645 F.3d at 497 (citation and internal quotation marks omitted).
4.

“Although the Constitution does require that prisoners be provided with a certain

minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his
choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). “[A] claim of inadequate medical
treatment which reflects no more than a disagreement with prison officials about what constitutes
appropriate medical care does not state a cognizable claim under the Eighth Amendment.”
DesRosiers v. Moran, 949 F.2d 15, 20 (1st Cir. 1991).
5.

“In a suicide case, a finding of deliberate indifference requires a strong likelihood,

rather than a mere possibility, that self-infliction of harm will occur.” Penn v. Escorsio, 764 F.3d

16

102, 110 (1st Cir. 2014) (quoting Elliott v. Cheshire Cty., 940 F.2d 7, 10 (1st Cir. 1991)). The
conduct “must encompass acts or omissions so dangerous (in respect to health and safety) that a
defendant’s knowledge of a large risk can be inferred.” Id. (quoting Elliott, 940 F.2d at 10).
6.

Lopes also alleges substantive due process claims under the Fourteenth

Amendment (Count I) and the Massachusetts Declaration of Rights (Count II). D. 54 ¶¶ 70-77.
7.

Where a constitutional claim is “covered by a specific constitutional provision, such

as the . . . Eighth Amendment, the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.” United States v. Lanier, 520
U.S. 259, 272 n.7 (1997); see Whitley v. Abers, 475 U.S. 312, 327 (1986) (holding that the Due
Process Clause affords “no greater protection than does the Cruel and Unusual Punishments
Clause” to a prisoner who alleged that prison officials subjected him to cruel and unusual
punishment by shooting him while trying to quell a prison riot).
8.

“In the context of substantive due process, the Massachusetts Declaration of Rights

at times provides greater substantive due process protections.” Christensen v. Kingston Sch.
Comm., 360 F. Supp. 2d 212, 215 n.1 (D. Mass. 2005). But where, as here, a plaintiff does not
argue that the Declaration of Rights affords him greater protection, the claims are treated
identically. Id.; see Gillespie v. City of Northampton, 460 Mass. 148, 153 n.12 (2011) (noting that
“[a]lthough art. 10 [of the Massachusetts Declaration of Rights] may afford greater protection of
rights than the due process clause of the Fourteenth Amendment [to the United States
Constitution], our treatment of due process challenges adheres to the same standards followed in
Federal due process analysis”) (internal quotation marks and citation omitted); Hudson v. Comm’r
of Corr., 46 Mass. App. Ct. 538, 543 (1999) (noting that the Supreme Judicial Court has
“consistently equated” the due process provisions of the Massachusetts Declaration of Rights and

17

the Due Process Clause under the Fourteenth Amendment “as comparable, both generally and in
the prison environment”).

In any event, “[t]he rights guaranteed under Art. 26 [of the

Massachusetts Declaration of Rights] are as broad as those rights protected under the Eighth
Amendment.” Martin v. Clavin, No. 08-cv-11971-MBB, 2010 WL 3607079, at *7 (D. Mass. Sept.
9, 2010).
9.

Because essentially identical standards apply to Lopes’s Eighth Amendment claim

and his federal and state substantive due process claims, the Court analyzes them under the
deliberate indifference standard.
10.

First, Lopes has not established the objective prong. None of the clinicians who

testified at trial stated that Lopes required a single cell for his mental health. See, e.g., D. 230 at
138:14-139:14; D. 231 at 12:7-16, 113:16-114:13; D. 235 at 68:1-9. Instead, they consistently
concluded that Lopes’s self-injurious behavior did not warrant single-cell status because his
suicide attempts were made only when he inhabited a single cell. See, e.g., Defendants’ Exhibit
15; D. 231 at 12:5-9, 25:23-26:14, 113:21-114:2. Because the only medical opinions at trial were
that Lopes’s mental health did not mandate a single cell, Lopes cannot show that his need was
“one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” Kosilek, 774 F.3d
at 82 (citation and internal quotation marks omitted); see Perry v. Dickhaut, No. 11-cv-40004TSH, 2015 WL 5074477, at *7 (D. Mass. Aug. 27, 2015).
11.

Second, Lopes has not established the subjective prong. The evidence at trial made

clear that a single-cell order based on mental health reasons could only be issued with the approval
of mental health clinicians. Here, clinicians at SBCC (Hager) and OCCC (Peterson) were aware
of Lopes’s situation and his past suicide attempts, yet they did not recommend a single-cell order

18

until after his October 2012 suicide attempt. As prison officials, Defendants were entitled to rely
upon Hager’s and Peterson’s professional medical opinions.

See Rasheed v. Bissonnette, No.

14-cv-10378-FDS, 2015 WL 2226255, at *15 (D. Mass. May 12, 2015), appeal docketed, No. 151717 (1st Cir. 2015) (dismissing prisoner’s complaint because “[h]ousing him in a double cell,
after an independent mental-health examination concluded that his mental-health needs do not
preclude double-bunking, does not constitute a deprivation so shocking as to create a constitutional
violation”); Spencer v. Bender, No. 08-cv-11528-RGS, 2010 WL 972207, at *7 (D. Mass. Mar.
11, 2010) (noting that it is presumed within the prison setting that “non-medical officials are
entitled to defer to the professional judgment of the facility’s medical officials on questions of
prisoners’ medical care”) (citation and internal quotation marks omitted).
12.

Moreover, when clinicians finally imposed a single-cell restriction for Lopes in

November 2012, even though they did not believe his mental health necessitated it, Defendants
honored the restriction. Defendants’ Exhibit 18; D. 231 at 36:14-20. Defendants’ conduct was
thus not “so inadequate” that it “shock[s] the conscience.” Feeney, 464 F.3d at 162 (internal
quotation marks omitted).
Defendants Are Entitled to Judgment on Lopes’ Procedural Due Process
Claims
13.

Lopes also alleges procedural due process claims under the Fourteenth Amendment

(Count III) and the Massachusetts Declaration of Rights (Count IV). He alleges that Defendants
have violated his due process rights because they “purported to remove [his] Single Cell
Restriction without providing [him] notice and an opportunity for hearing.” D. 54 ¶¶ 78-83.
14.

“[A]s a general proposition, the federal and Massachusetts standards for a

procedural due process analysis are identical.” Pollard v. Georgetown Sch. Dist., No. 14-cv-

19

14043-DJC, 2015 WL 5545061, at *6 (D. Mass. Sept. 17, 2015) (citation and internal quotation
marks omitted). The Court thus analyzes the procedural due process claims together.
15.

A procedural due process claim against the government requires “proof of

inadequate procedures and an interference with a liberty or property interest.” Restucci v. Clarke,
669 F. Supp. 2d 150, 157 (D. Mass. 2009) (citing Kentucky Dept. of Corr. v. Thompson, 490 U.S.
454, 460 (1989)). “The liberty interest of prisoners are limited to ‘freedom from restraint which .
. . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Id. (citing Sandin v. Conner, 515 U.S. 472, 484 (1995)). An inmate’s “subjective
expectations are not dispositive of the liberty-interest analysis.” Id. (citing Dominique v. Weld,
73 F.3d 1156, 1160 (1st Cir. 1996)).
16.

Lopes has not met his burden on his procedural due process claims. First, Lopes

has not established that his desire to avoid double bunking is a protected liberty interest. Double
bunking “is not a per se violation of due process.” Cote v. Murphy, 152 F. App’x 6, 7 (1st Cir.
2005) (citing Bell v. Wolfish, 441 U.S. 520, 541-43 (1979)); Restucci, 669 F. Supp. 2d at 158
(noting there is “no constitutionally protected right to a single-cell”). Although the First Circuit
has acknowledged that “in rare cases [double bunking] might amount to an unlawful practice when
combined with other adverse conditions,” Lopes established no such adverse conditions at trial.
Cote, 152 F. App’x at 7.
17.

Second, even assuming that Lopes had a liberty interest in avoid double bunking,

the “procedures attendant upon that deprivation were constitutionally sufficient.” Harron v. Town
of Franklin, 660 F.3d 531, 537 (1st Cir. 2011) (quoting Gonzalez-Fuentes v. Molina, 607 F.3d 864,
886 (1st Cir. 2010)) (internal quotation mark omitted). Evidence at trial established that the 2005
IMS restriction was incomplete. Defendants were entitled to remove that initial restriction

20

particularly where the evidence at trial about its medical necessity was scant. See Cox v. Palmer,
No. 3:08-cv-00663-ECR, 2011 WL 4344047, at *13 (D. Nev. July 27, 2011) (stating that
“[p]laintiff was not entitled to any process before his single-cell status was revoked simply because
he had been provided with single-cell status based on medical necessity in the past” and that “[t]his
is true especially when [the] medical care providers indicated a single-cell was not medically
necessary at the time period in issue”).
V.

CONCLUSION
In light of the findings of fact and conclusions of law, the Court enters judgment in favor

of Defendants on all remaining counts. Any injunctive and declarative relief sought by Lopes is
DENIED in light of the Court’s decision. The motion for judgment on partial findings, D. 226, is
DENIED as moot.
So ordered.
/s/ Denise J. Casper
United States District Judge

21