Evans v. Mendonsa et al
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - The Court DENIES Evans's request for a preliminary injunction, D. 26, ALLOWS Defendants' motion for summary judgment, D. 105, and DENIES Evans's motion for default judgment, D. 110. (Hourihan, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 11-12121-DJC
ANTHONY MENDONSA et al.,
MEMORANDUM AND ORDER
February 12, 2015
Plaintiff John Evans (“Evans”), proceeding pro se, has filed this lawsuit seeking
injunctive relief against Defendants Anthony Mendonsa (“Mendonsa”), Thomas Dickhaut
(“Dickhaut”), Marlene Dodge (“Dodge”), Carmen Newly (“Newly”), Angela D’Antonio
(“D’Antonio”) and Charles King (“King”) for an alleged violation of the Eighth Amendment’s
prohibition against cruel and unusual punishment pursuant to 42 U.S.C. § 1983.
Following the dismissal of the claims against Dodge, Newly and D’Antonio, D. 96, Mendonsa
and Dickhaut renewed their previous motion for summary judgment, D. 105, and Evans has
moved for default judgment against King, D. 110. For the reasons stated below, the Court
ALLOWS Mendonsa and Dickhaut’s motion for summary judgment, D. 105, and DENIES
Evans’s motion for default judgment against King, D. 110.
Standard of Review
The Court grants summary judgment where there is no genuine dispute as to any material
fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it carries with it the potential to affect
the outcome of the suit under applicable law.” Santiago–Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000). The movant bears the burden of demonstrating the
absence of a genuine issue of material fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000); see Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets its burden, the nonmoving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts
showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano–Isern, 605
F.3d 1, 5 (1st Cir. 2010). The Court “view[s] the record in the light most favorable to the
nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20,
25 (1st Cir. 2009). A pro se plaintiff such as Evans is entitled to a liberal reading of his
allegations, even when such allegations are inartfully pled. See Haines v. Kerner, 404 U.S. 519,
520–21 (1972); Rodi v. New Eng. Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).
Unless otherwise noted, the following facts are as stated in the Defendants’ statement of
facts, D. 107, and are undisputed by Evans.1 Plaintiff Evans is currently incarcerated at the
Local Rule 56.1 requires a party opposing a motion for summary judgment to “include a
concise statement of the material facts of record as to which it is contended that there exists a
genuine issue to be tried, with page references to affidavits, depositions and other
documentation.” Evans has not provided such a statement of material facts in dispute, but has
filed an affidavit in support of his opposition, D. 109-2, which, in light of the fact that Evans is a
pro se litigant, the Court has considered in determining whether there are any disputed issues of
Souza-Baranowski Correctional Center (“SBCC”).
D. 107 ¶¶ 1-2.
Mendonsa was the
Superintendent of SBCC but left the Department of Correction in 2012. Id. ¶¶ 3-4. Defendant
Thomas Dickhaut was also a former Superintendant of SBCC and is currently the Deputy
Commissioner of the Prison Division of the Department of Corrections. Id. ¶¶ 3-4.
During the time relevant to Evans’s claims, medical services were provided to DOC
inmates by the DOC’s contractual medical provider, the University of Massachusetts
Correctional Health (“UMCH”). Id. ¶ 7. Pursuant to DOC/UMCH guidelines, referral to a
podiatrist is made only in “those exceptional circumstances where fit [of shoes] has been
determined problematic after multiple interventions or when there is a need for a custom
orthotic.” Id. ¶ 13. If shoes provided by the DOC, purchased by the inmate at the canteen or
provided by UMCH continue to have “fit problems resulting in clinical signs,” a referral shall be
made to a consultation and, if special purchase is required, “UMCH should purchase shoes.” Id.
Evans has suffered from foot problems since at least 2000 when he was diagnosed with
planovalgus. Id. ¶ 16. In 2000, Dr. John Harris, a physician at Shattuck Hospital, ordered Evans
special orthotics and recommended that he be allowed “to order his own sneakers from outside
[the] institution” to accommodate them.
D. 26-1 at 1.
The doctor’s medical notes from
subsequent years, 2001 and 2005, indicate that Dr. Harris ordered that Evans be allowed by the
DOC to order his own sneakers to fit his orthotics and that DOC allowed Evans to do so. Id. at
3-4; D. 106-9.
On July 15, 2010, after his move to SBCC, Evans requested permission to order sneakers
from outside the institution. D. 107 ¶ 21; D. 106-9. This time, the DOC denied this request. Id.
¶ 22; D. 106-10. The DOC response letter noted that inmates had previously been allowed to
order sneakers from vendors other than the canteen only if a certain size or type of sneaker
recommended by a doctor was not available from the canteen, but now the policy was that all
footwear must be ordered through the canteen even if it must be done by special order. Id. The
DOC further informed Evans that the only exception to this rule was when footwear was deemed
“medically necessary” and, in that circumstance, “the footwear [would] be purchased and
provided by [UMCH].” Id. In January 2011, Evans was evaluated by King, a podiatrist, who
diagnosed him with pronation and plantar fasciitis. Id. ¶ 24; D. 106-8 at 8. Evans was seen on
various dates by Dr. King between 2010 and 2012. Id. ¶ 18; D. 106-8 at 12. On January 25,
2011, SBCC’s Deputy Superintendent informed Evans than UMCH had written a medical order
and UMCH would purchase Evans special high top sneakers. Id. ¶¶ 25-26; D. 106-8 at 8.
Following subsequent correspondence from Evans, Mendonsa wrote to him on March 2,
2011 to explain that he had spoken with Health Service Administrator Marlene Dodge who had
informed him that UMCH would pay for the “medically necessary footwear and that the order
will be placed this week.” Id. ¶ 29; D. 106-12. On April 14, 2011, Mendonsa wrote Evans again
and stated that the specific sneaker he was requesting was no longer in stock, but that the medical
department would order Converse sneakers as those sneakers would still meet Evans’s needs. Id.
¶¶ 30-31; D. 106-13. The letter further provided that if the sneakers did not accommodate the
orthotics, then UMCH would attempt to seek a suitable alternative. Id.
Defendants assert Evans “rejected” the Converse sneakers because the sneakers were not
Adidas brand. Id. ¶ 33. Evans contends that the Converse footwear was “defective” and did not
accommodate his orthotics. D. 106-8 at 9-10; D. 109-2 ¶ 6. On October 25, 2011, Evans saw
Dr. King for another consultation and the podiatrist recommended Smooth-Walker sneakers and
placed a medical order. D. 107 ¶ 34; D. 59-20 at 2; D. 59-21. Evans initiated this lawsuit the
following month in November 2011. D. 1. Evans subsequently received the Smooth Walker
sneakers, but Defendants contend that Evans “rejected” these sneakers as well, id. ¶ 35, while
Evans argues they did not accommodate his orthotics. D. 109-2 ¶¶ 5-6. Evans has testified that
he suffered pain when he did not have the appropriate footwear. D. 106-8 at 14.
Throughout the relevant period, when he was contacted by Evans about this matter,
Mendonsa would either respond via letter or speak with Evans at inmate “Happy Hour.” Id. ¶
46. Evans dealt mainly with Mendonsa and could not remember how many times he wrote to
Dickhaut, although he could not recall Dickhaut ever telling him that he would not provide
therapeutic footwear. Id. ¶¶ 48-49; D. 106-8 at 14, 16. UMCH attempted to get several,
different pairs of sneakers for Evans’s needs. Id. ¶ 36; D. 106-8 at 10. Eventually, following the
initiation of this lawsuit, Evans received a pair of Adidas sneakers that he requested, D. 59-26
(April 2, 2012 UMCH letter indicating that DOC will allow him to get the requested Adidas
sneakers), and Dr. King noted at a November 6, 2012 visit that Evans was “doing well” with the
Adidas sneakers. D. 107 ¶ 44; D. 106-16 at 2.
Evans filed this suit on November 11, 2011, D. 1, and amended his complaint on April 2,
2012. D. 26. King did not appear and the Court entered default against him on November 16,
2012. D. 45. Evans moved for default judgment as to King, which the Court denied without
prejudice, given the paucity of allegations in the amended complaint against King, and gave
Evans leave to file a new motion for default judgment with a supporting affidavit and
memorandum of law explaining the legal basis for entering judgment against Dr. King. D. 83.
Defendants Dodge, Newly and D’Antonio moved to dismiss on April 17, 2014, D. 89, and the
Court granted their unopposed motion, D. 96. Mendonsa and Dickhaut had previously moved
for summary judgment, D. 64, which the Court denied without prejudice, D. 82, and
subsequently, D. 92, allowed the parties leave to take discovery.
Mendonsa and Dickhaut, have now renewed their motion, D. 105, and Evans has renewed his
motion for default judgment against King, D. 110. The Court heard the parties on the pending
motions on January 13, 2015 and took these matters under advisement. D. 122.
Alleged Eighth Amendment Violation
Evans alleges a violation of the Eighth Amendment prohibition against cruel and unusual
punishment based upon the Defendants’ alleged failure to comply with his medical treatment
plan by obtaining appropriate footwear from an outside vendor and seeks injunctive relief. D. 26
at 10. Evans alleges that Mendonsa and Dickhaut failed to provide appropriate footwear over an
extended period of time and that he has been denied the opportunity to order sneakers himself
from an outside vendor. D. 109 at 2. Evans alleges that Mendonsa and Dickhaut are, therefore,
“delaying and/or denying treatment” in violation of the Eight Amendment. Id.
To succeed on an Eighth Amendment claim, a claim “based on medical mistreatment
requires more than ‘an inadvertent failure to provide adequate medical care’ and must involve
‘acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs.’” Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 161 (1st Cir. 2006) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)).
To prevail on a such a claim, “a prisoner must satisfy both of two prongs: (1) an
objective prong that requires proof of a serious medical need, and (2) a subjective prong that
mandates a showing of prison administrators' deliberate indifference to that need.” Kosilek v.
Spencer, 774 F.3d 63, 83 (1st Cir. 2014). Deliberate indifference cannot be satisfied by mere
substandard treatment, but by a showing that “the failure in treatment was purposeful” or by
“wanton disregard” that is “akin to criminal recklessness, requiring consciousness of ‘impending
harm, easily preventable.’” Id. (quoting Wastson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)).
Moreover, “[w]hen evaluating medical care and deliberate indifference, security considerations
inherent in the functioning of a penological institution must be given significant weight.” Id.
Serious Medical Need
To satisfy the objective prong, a plaintiff “must show that [h]e has a serious medical need
for which [h]e has received inadequate treatment.” Id. at 85.
Mendonsa and Dickhaut do not
appear to dispute that Evans’s condition constitutes a serious medical need and proffered
evidence indicating medical staff determined he had a “medical need for special footwear.” D.
106-11 at 2; see Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990)
(noting a serious medical need as one “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”). Because the parties agree that Evans’s condition constitutes a serious medical need,
and because there is evidence in the record supporting same, the Court concludes that Evans’
serious medical need has been shown, but turns to consider whether there is any genuine issue of
material fact as to the adequacy of his treatment for this need.
As the moving parties, Mendonsa and Dickhaut bear the burden of providing evidence
upon which the Court may conclude, as a matter of undisputed fact, that Evans received adequate
treatment. The facts on the summary judgment record indicate that in 2000, prior to his arrival at
SBCC, a physician at Shattuck Hospital recommended that Evans be given permission to order
his own sneakers from outside [the] institution as a result of foot condition. D. 26-1 at 1. After
his move to SBCC, between 2010 and 2012, he was seen multiple times by King, the UMCH
podiatrist. Evans made his first request at SBCC seeking to purchase footwear to accommodate
his orthotics on July 15, 2010. D. 107 ¶ 21. Mendonsa was responsive to these inquiries,
informing Evans when UMCH has written a medical order for his footwear, when the order had
been placed and when the footwear ordered was out of stock and the ordering of another brand
that was expected to meet his medical needs. Although the Defendants contend that Evans
rejected some of the footwear proffered to him because they were not his preferred brand, even
accepting Evans’s contention that he rejected them because they did not meet his medical need,
the record indicates that the DOC and UMCH were working to treat his medical need with
appropriate footwear. In fact, by 2012, albeit it after the filing of this lawsuit, Evans received
appropriate footwear and he does not dispute that it meets his medical needs. D. 106-8 at 12.
To the extent that Evans points to the delay in the acquisition of suitable footwear as the
delay of adequate treatment, such delay, on this record, does not establish a constitutional
violation. In Feeney, the First Circuit considered a similar issue, whether a “lengthy delay [of
twenty-two months] in providing [an inmate] with orthopedic footwear” violated the Eighth
Amendment. Feeney, 464 F.3d at 162 (affirming grant of summary judgment to defendants).
The Court concluded that such passage of time did not where “the delay alone—given the
ongoing efforts to identify the source of appellant’s pain” did not give rise to an Eighth
Amendment violation. In reaching this conclusion, the Court noted that “the correction center’s
medical staff was responsive to appellant’s complaints, expended substantial resources trying to
get to the root of his problem, and adopted other measures in an effort to alleviate his
discomfort.” Id. at 162-63. Similarly here, Evans was seen on a regular basis by medical staff,
including a podiatrist and multiple pairs of footwear were ordered in light of the UMCH
recommendation for same to accommodate his orthotics. Any delay in getting his footwear was
caused by the first brand being out of stock and then, reading the record in the light most
favorable to Evans, by a dispute between Evans and the Defendants about the suitability of
certain of the footwear that was secured for him.
Moreover, this Court cannot view the adequacy of treatment outside of the context of the
DOC’s security interest. Current DOC policy prohibits inmates from ordering items that are
available either through the inmate canteen or through approved vendors. D. 106-15 ¶ 5. This
policy, which prohibits Evans from ordering his own sneakers, was enacted to prevent the
introduction of contraband and reduce gang tensions, as incoming packages increase the
potential for unapproved items to enter the facility and some groups of inmates have attempted to
denote gang affiliation through associations with certain brands of sneakers. Id. ¶¶ 7-8. Prison
officials have a legitimate security interest in prohibiting contraband and the display of gangrelated affiliations among inmate populations via this policy, which must be considered as the
Court examines the contours of care provided to Evans. See Kosilek, 774 F.3d at 94-95,at
(noting that deference is due to prison administrators on issues of security is appropriate unless
“administrators admittedly relied on inflated data, identified a security concern only several
years after refusing to provide treatment for an acknowledged medical need, and engaged in a
pattern of changing positions and arguments before the court” as to these concerns) ((discussing
Battista v. Clarke, 645 F.3d 449, 455 (1st Cir. 2011). Although Evans disputes the consistent
enforcement of this policy, providing affidavits from several inmates who were recently allowed
to order their own sneakers, D. 109-3; D. 109-4, the Officer in charge of inmate property at
SBCC has attested that these sneakers were provided due to confusion over the applicable policy
given the recent change in procedure, and that “inmates are not currently permitted to order
medically necessary footwear through outside vendors.” D. 120-2. Moreover, even if the policy
has been inconsistently applied in the past, there is nothing in the record to suggest that the
articulated security concern was invalid or mere pretext for denying or delaying appropriate
medical treatment to Evans. The record instead reflects rational concerns about the safety and
integrity of facility. Moreover, even given the application of this policy, the record of care that
Evans received does not reflect inadequate medical treatment.
“[E]ven if medical care is so inadequate as to satisfy the objective prong, the Eighth
Amendment is not violated unless prison administrators also exhibit deliberate indifference to the
prisoner’s needs.” Kosilek, 774 F.3d at 83 (quoting Estelle, 429 U.S. at 105-06). Here, the
Court concludes that Mendonsa and Dickhaut did not act with the requisite deliberate
indifference to violate the Eighth Amendment.
On this record, Evans’s delay in receiving sneakers, particularly given the multiple
attempts by the DOC to locate acceptable sneakers for him, does not rise to the level of
deliberate indifference by the Defendants. See Feeney, 464 F.3d at 160; see also Silva v. Clarke,
603 F. Supp. 2d 248, 249 (D. Mass. 2009) (dismissing an inmate’s Eighth Amendment claim
arising from the refusal to allow him to order sneakers from an outside catalog to address his foot
issue when he was examined by several doctors and was given custom-made orthotics).
Mendonsa, Evans’s primary DOC contact about this matter, was responsive to the requests for
the sneakers that would accommodate the orthotics prescribed by Dr. King. There was continued
communications by Mendonsa, SBCC Superintendent at the time, with Evans about securing an
adequate pair even after Evans found certain pairs inadequate. Eventually, it was Mendonsa who
gets the Adidas sneakers that the parties do not dispute met Evans’s medical needs. There is also
nothing in the record to suggest that Dickhaut, a former SBCC Superintendent and now DOC
Deputy Commissioner, was deliberately indifferent to Evans’s medical needs and Evans
acknowledged that he dealt mainly with Mendonsa and could not recall the frequency of his
attempts to contact Dickhaut about this matter. D. 109-2 at ¶¶ 48-49. Moreover, the delay in
getting Evans appropriate reflected attempts to implement King’s order to obtain sneakers, not a
particular brand but ones that would accommodate orthotics. Feeney, 464 F.3d at 162 (noting “if
it could be said that failing to provide the orthotics earlier reflected poor judgment on the part of
some defendants—a matter on which we take no view—this was not an omission that could be
termed deliberate indifference to serious medical needs,” because in the context of not an
absence of help but a choice for a particular treatment, “deliberate indifference may be found
where the attention received is so clearly inadequate as to amount to a refusal to provide essential
care”) (quotations omitted). Moreover, that Evans was not permitted to order sneakers on his
own from an outside vendor does not demonstrate deliberate indifference given the DOC’s
legitimate security interest in proscribing inmates from ordering items from outside vendors that
might be perceived as status symbols. That is, Evans’s “inability to order footwear from outside
catalogs, under such circumstances, does not demonstrate medical care “so inadequate as to
shock the conscience,” Silva, 603 F. Supp. 2d at 251.
Having concluded that Mendonsa and Dickhaut are entitled to judgment in their favor2 on
Evans’s Eighth Amendment claim, there is no basis for imposing the injunctive relief that Evans
seeks in the amended complaint. 3
Having ruled in Mendonsa and Dickhaut’s favor for the reasons articulated above, the
Court need not address their other grounds for seeking summary judgment.
Default Judgment Against King
On November 13, 2014, Evans renewed his motion for default judgment, D. 110, in
which he provided that King was the podiatrist for all Massachusetts correctional facilities, that
he had an “official duty to make sure the Plaintiff [sic] medical needs are met, and he has failed
the Plaintiff those rights.” Id. As the Court noted in its March 28 order, the sole reference to
King in the amended complaint is that Evans had a consultation with him in January 2011, after
which King wrote an order for Evans to receive orthopedic footwear. D. 26 ¶ 17. Evans’s
additional filing, a conclusory statement that King violated Evans’s Eighth Amendment rights,
D. 110, coupled with the facts alleged in the complaint, does not provide a basis upon which the
Court can conclude liability should attach to King as to the Eighth Amendment, particularly in
light of the Court’s conclusion that Evans did not receive inadequate treatment. See Potvin v.
Paul Law Office, PLLC, No. 11-CV-308-LM, 2012 WL 1903254, at *7 (D.N.H. May 25, 2012)
(denying motion for default judgment after entry of default because “[e]ven in a case with an
absent defendant, the court has an obligation to grant default judgment only on claims that are
supported by adequate factual allegations”).
Accordingly, Evans’s motion for default judgment against Defendant King, D. 110, is
Although the Court fails to find an Eighth Amendment violation on this undisputed
record, the Court notes Evans’s repeated litigation on this issue throughout his time in DOC
custody. See Evans v. Brewer, M.D. et al, No. 2001-00940 (Mass. Super. Jan. 4, 2002); Evans v.
Verdini, No. 2003-3439 (Mass. Super. June 8, 2004). Upon inquiry from the Court, counsel for
Defendants stated: “I would agree that he should have sneakers that fit his orthotics and fit his
feet.” D. 122 (Draft transcript of January 13, 2015 hearing at 19). The Court expects that the
DOC’s consideration of Evans’s needs will comport with this conclusion should the relevant
medical staff continue to conclude that he requires orthotics and sneakers to accommodate them.
For the foregoing reasons, the Court DENIES Evans’s request for a preliminary
injunction, D. 26, ALLOWS Defendants’ motion for summary judgment, D. 105, and DENIES
Evans’s motion for default judgment, D. 110.4
/s/ Denise J. Casper
United States District Judge
Because this order is dispositive of Evans’s case, the Court DENIES AS MOOT his
various pre-trial motions, D. 117, D. 118 and D. 119 and the Defendants’ motion to continue
trial, D. 123.
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