Rasheed v. Newry et al

Filing 45

Judge Richard G. Stearns: ORDER entered granting 27 Motion to Dismiss (Zierk, Marsha)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-12094-RGS
RASHAD AKEEM RASHEED
v.
CARMEN NEWRY, BARTHOLOMEW
NELSON, DAN LACHANCE, PATRICIA
GRANT, DYANA NICKL, PAMELA M.
O’DELL, ANTHONY MENDONSA,
BRUCE GELB, LUIS S. SPENCER, and
UMASS CORRECTIONAL HEALTH
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
June 12, 2013
STEARNS, D.J.
Plaintiff Rashad Rasheed, a Massachusetts prison inmate and Type II diabetic,
was until recently confined at the Souza-Baranowski Correction Center (SBCC) in
Shirley, Massachusetts. Rasheed filed this multi-count Complaint alleging deliberate
indifference by SBCC staff and others to his serious medical needs, principally those
involving skin care medications. Rasheed alleges that defendants have blocked or
confiscated his supplies of free over-the-counter moisturizing lotion and antibiotic
ointment. Rasheed alleges that he needs these medications to treat skin conditions
caused by his diabetes, and that he cannot personably afford to purchase them from the

prison canteen. Compl. ¶¶ 16-17. The eight-count Complaint alleges violations of the
Eighth Amendment; the Americans with Disabilities Act (ADA); the Religious Land
Use and Institutionalized Persons Act (RLUIPA), and the First, Sixth, and Fourteenth
Amendments. Rasheed also alleges negligence against defendants Newry and Nelson.
See Compl. ¶78.
Defendants move to dismiss the Complaint on various grounds: that Rasheed has
failed to plead sufficient facts to meet the notice requirement of Fed. R. Civ. P. 8(a)(2);
that the core claims are precluded by Judge O’Toole’s rulings in a prior lawsuit brought
by Rasheed; that Rasheed’s claims are moot; and that defendants UMass Correctional
Health (UMCH) and the Massachusetts Department of Correction (DOC) as agencies
of the Commonwealth of Massachusetts are immune from suit under the Eleventh
Amendment. Rasheed opposes the motion contending that defendants have waived any
immunity defense by opposing his prayer for injunctive relief, that res judicata does not
attach as his prior medical needs complaint was dismissed without prejudice, and that
he his constitutional violations are adequately pled.1

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As Rasheed explains in his Opposition

[c]ontrary to UMCH and DOC defendants erroneous assertions, this is
not a mere disagreement between Rasheed and his medical providers, this
is about intentional interfering with his prescribed diabetes treatment
medication in retaliation for the informal and formal grievances that
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BACKGROUND
UMCH, under the auspices of the University of Massachusetts Medical School
(UMMS), provides medical and dental care to prisoners incarcerated at SBCC.
Pursuant to department regulations and the contract with UMMS, in matters involving
the provision of medical services, the DOC officials is obligated to defer to the
independent clinical judgments of UMCH medical personnel. See 103 DOC § 610.00
et seq. The DOC contract with UMMS provides, in pertinent part:
[t]he Contractor shall be solely responsible for making all decisions with
respect to the type, timing and level of services needed by Inmates
covered by the program, including, without limitation, the determination
of whether an Inmate is in need of clinic care, hospitalization, admission
to a clinic, referral to an outside specialist or otherwise needs specialized
care.
According to the Complaint, in October of 2011, UMCH personnel prescribed
Sween Cream, Bacitracin, Erythromicin, and tolnaftate powder and cream to treat

Rasheed filed against UMCH and DOC defendants; intentional
confiscation of prescribed diabetes treatment medication; Superintendent,
grievance personnel and other staff failure to attempt to remedy UMCH
defendants Newry and Nelson unlawful and intentional interfering with
Rasheed’s prescribed diabetes treatment medication; and Rasheed’s
actual physical injury, pain and suffering caused by UMCH and DOC
defendants’ policy of requiring indigent prisoners to purchase their
prescribed treatment medication from the prison canteen.
Pl. Opp’n Mem. at 4.
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diabetic sores on Rasheed’s toe, foot and leg. See Compl. ¶ 20. In December of 2011,
Bartholomew Nelson, a UMCH nurse practitioner, renewed these prescriptions for
another 130 days. Id. ¶ 21. However, Rasheed contends that in January of 2013,
Carmen Newry, another UMCH nurse practitioner, “refused to provide Rasheed his
prescribed Bacitracin because [he] refused to explain to her why he needed [it] and
permit her to examine him.”2 Id. ¶ 22. Three days later, Rasheed again asked Newry
for Bacitracin and was refused. Rasheed complained about Newry’s refusal to Dan
LaChance, a UMCH employee. “On February 5, 2012, Rasheed filed a formal medical
grievance against Newry after receiving no response from [LaChance].” Id. ¶ 27.
Rasheed contends that Newry then retaliated against him by writing in the medical
record that Rasheed “needs to be re-eval; needs to return empty Bacitracin for new
one; and refused to show toe to N.P.” Id. ¶ 25. On February 8, 2012, at Newry’s
request, Nelson sought to re-examine Rasheed. On February 9, 2012, Newry reduced
Rasheed’s Bacitracin prescription to one packet every three days. Rasheed claims that
without a sufficient treating supply of Bacitracin, his diabetic sores “became infected

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Rasheed states that his refusal was based on his Islamic religious beliefs and
that he later explained to Newry “that under Islamic laws only his wife may touch him
or view him unclothed . . . and he requested to see [] male medical personnel.” Compl.
¶ 39.
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and very painful precluding [him] from walking to pick-up his three daily meals and
from participating in other daily activities.” Id. ¶ 30. On February 11, 2012, Rasheed
complained a second time to LaChance about Newry and showed LaChance the sores
on his toe, left foot and leg. Rasheed then filed a “formal DOC grievance (No. 57553)”
concerning “Newry’s refusal to provide him Sween Cream and Bacitracin.” Id. ¶ 36.
On March 21, 2012, Newry is alleged to have ordered a corrections officer to enter
Rasheed’s cell and confiscate “four containers of Sween Cream; four containers of Emycin and four containers of Clindamycin that were evidence in Rasheed’s pending
lawsuit Rasheed v. D’Antonio, D. Mass. 10-11253-GAO.” 3 Id. ¶ 43. Rasheed asserts

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Rasheed brought a previous lawsuit in the federal district court in 2010, that
included claims for relief relating to the provision of medications for treatment of his
diabetes, including OTC moisturizer and antibiotic ointment. See Rasheed v.
D’Antonio, D. Mass. 10-11253-GAO, Dkt #269 at 75-78. In Judge O’Toole’s Order
adopting the Magistrate Judge’s 107-page Report and Recommendation (Dkt. # 267),
he entered judgment of dismissal with prejudice in favor of UMHC and the named
individual defendants. See id., Dkt. #269 at 3. Defendants in this case argue that
Rasheed’s current claims are barred by issue preclusion as “the previous lawsuit was
not resolved until September of 2012 and . . . Rasheed had the opportunity to litigate
these [same] issues” in that suit. It is true that “res judicata (claim preclusion)
normally bars (1) relitigation of claims actually asserted in a tribunal of competent
jurisdiction . . . and (ii) litigation of claims that arose from the same set of operative
facts and could have been raised in the prior proceeding.” Wolf v. Gruntal & Co. Inc.,
45 F.3d 524, 527 (1st Cir. 1995) (emphasis added). As Rasheed’s present Complaint
succumbs to fundamental jurisdictional and pleading deficiencies, there is no reason for
the court to seek further briefing on whether Rasheed in fact had a sufficient
opportunity to amend the prior lawsuit to include his present claims.
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that on March 28, 2012, Nelson retaliated against him by suspending his free supply
of Sween Cream and Clindamycin. Rasheed claims that Nelson told him to purchase
these items from the prison canteen despite knowing that he is indigent.
Dr. Patricia Ruze, the Site Medical Director for MCI Concord (where Rasheed
is presently confined), states in an affidavit that Rasheed has been given Sween Cream
and Clindamycin to treat and prevent any future skin irritations. However, “instead of
properly using this medication as prescribed,” Rasheed “maintained 4 bottles of
Clindamycin and 2 jars of Sween Cream [in his cell].” Ruze Aff. ¶ 6.
As a result of Mr. Rasheed’s failure to properly use these medications,
and the fact that they no longer appeared medically necessary, his
prescription for the same was discontinued. In June of 2012, Mr.
Rasheed was prescribed Erythromycin gel to treat a skin infection.
However, Mr. Rasheed did not pick up this medication, and his
prescription was not renewed on June 23, 2012. Starting in February
2013, Mr. Rasheed has been provided Bacitracin three times a week to
treat and prevent skin infections. . . . On April 24, 2013, Mr. Rasheed .
. . requested and was provided with Sween Cream which he continues to
receive. . . . Mr. Rasheed [did not] complain of skin infections nor were
any skin disturbances noted [at April 17, 2013, April 24, 2013, or May 1,
2013 medical appointments]. On May 22, 2013, Mr. Rasheed received
a comprehensive “chronic care examination” by a nurse practitioner,
which would have specifically included a skin check. Mr. Rasheed
refused to remove his socks, but his skin was otherwise clear and again
Mr. Rasheed did not complain of any issues with his skin. Currently [as
of May 23, 2013] Mr. Rasheed has no issues with his skin, and any
potential infections are being treated with Sween Cream and Bacitracin.
Id. ¶¶ 7-16.

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DISCUSSION4
Under Rule 12 of the Federal Rules of Civil Procedure, a defendant may move
for dismissal of a plaintiff’s complaint if the court “lack[s] . . . jurisdiction over the
subject matter.” Fed. R. Civ. P. 12(b)(1). “[T]he party invoking the jurisdiction of a
federal court carries the burden of proving its existence.” Id., quoting Taber Partners,
I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993). As explained by the First
Circuit, the “Eleventh Amendment has been described as implicating subject-matter

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Defendants assert that Rasheed has failed to adequately plead his claims. To
survive a motion to dismiss, a complaint must allege “a plausible entitlement to relief.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). “While a complaint attacked
by a Rule 12(b)(6) motion does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of a cause of action’s elements will
not do.” Id. at 555 (internal citations omitted); see also Rodriguez-Ortiz v. Margo
Caribe, Inc., 490 F.3d 92, 95-96 (1st Cir. 2007). The court agrees with defendants that
Rasheed has failed to plead any facts plausibly supporting a claim under the ADA
(Rasheed makes no claim of a non-treatable limitation on a major life activity, nor does
the ADA impose liability on individual defendants). There is also no viable claim pled
under RLUIPA (the failure to be provided with skin treatments is not shown to
substantially burden the exercise of a religious belief). Nor is there any plausibly pled
First Amendment retaliation claim (there is no claim of protected expression on a
matter of public concern) or Sixth Amendment violation (which applies only in criminal
prosecutions). Rasheed’s negligence (medical malpractice) claims against Newry and
Nelson individually are preempted by the Massachusetts Tort Claims Act (MTCA).
See Mass. Gen. Laws ch. 258, § 2; Smith v. Steinberg, 395 Mass. 666, 667 (1985)
(finding orthopedic surgeon from UMMS a public employee and thus immune from suit
under the MTCA). Finally, no viable claims are made out against the individual DOC
defendants as none of these defendants were involved in the decisions made with
respect to Rasheed’s medical care.
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jurisdiction.” Davila v. Corporacion de Puerto Rico Para La Difusion Publica, 498
F.3d 9, 13 (1st Cir. 2007).
Under the Eleventh Amendment, “states are immune . . . from private suit in
federal courts, absent their consent” for claims seeking money damages. Greenless v.
Almond, 277 F.3d 601, 606 (1st Cir. 2002). This immunity extends to any entity that
is an “arm of the state.” Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92,
99 (1st Cir. 2002). Whether an agency is in fact an “arm of the state” is determined by
federal law. Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 n.5 (1997).
The federal test considers, among other factors, the agency’s ability to satisfy
judgments from its own funds, whether its functions are governmental or proprietary,
whether the agency is separately incorporated, the extent to which the State exerts
control over the agency, whether the agency has the power to sue in its own right,
whether its property is taxed by the State, and whether the State has immunized itself
from the agency's acts or omissions. Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct &
Sewer Auth., 991 F.2d 935, 939-940 (1st Cir. 1993). Where the factors point in
conflicting directions, “then the dispositive question concerns the risk that the damages
will be paid from the public treasury.” Fresenius Med. Care Cardiovascular Res., Inc.
v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 68 (1st Cir. 2003).
In applying the test, federal courts have uniformly found that UMMS is an
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agency of the state created by a statute, Mass. Gen. Laws ch. 75, §34, that specifically
authorizes the Trustees of the University of Massachusetts to create and maintain a
medical school and is thus shielded by Eleventh Amendment immunity. See, e.g., Orell
v. Umass Memorial Med. Ctr., Inc., 203 F. Supp. 2d 52, 60 (D. Mass. 2002) (UMMS
“is a public institution established under the laws of the Commonwealth and is,
accordingly, an agency of the state entitled to Eleventh Amendment immunity.”). It
follows that UMCH, which is a component of UMMS created to provide medical care
for state prisoners, shares the same attributes of sovereign immunity. See Cullinan v.
Mental Health Mgmt. Corr. Servs., Inc., 2012 WL 2178927, at *1-2 (D. Mass. June
11, 2012) (finding Eleventh Amendment immunity as to prisoner’s section 1983
claims); McGee v. UMass Corr. Health, 2010 WL 3464282, at *2-3 (D. Mass. Sept.
1, 2010) (“The Court accordingly finds that UMCH, as a program completely
encapsulated within UMMS and the UMass, is an arm of the state for purposes of
determining Eleventh Amendment immunity.”); Jaundoo v. Clarke, 690 F. Supp. 2d
20, 29 (D. Mass. 2010) (“Because UMCH is a program operated by the UMMS, it too
is an arm of the State.”).5 Accordingly, Rasheed’s claims against UMCH are dismissed

5

Any judgment against UMCH would be paid by the State or by insurance
purchased by the University for the purpose of paying claims against the State. The
University of Massachusetts treasury consists of State funds. See Mass. Gen. Laws ch.
75, §6 (subjecting all accounts of the university to oversight by the state auditor); Mass.
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for lack of subject matter jurisdiction.6
ORDER
For the foregoing reasons, defendants’ joint motion to dismiss is ALLOWED.
The Clerk will issue an Order of Dismissal and close the case.
SO ORDERED.

/s/ Richard G. Stearns
_______________________________

Gen. Laws ch. 75, §7 (making the university’s budget subject to the direction of the
governor); and Mass. Gen. Laws ch. 75, §8 (authorizing the Legislature to appropriate
state funds to the University). See Quinn Aff. - Dkt. #29-1.
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These claims, which are largely based on the Eighth Amendment, also lack
substantive viability. At their core is a disagreement between Rasheed and his health
providers over the proper choice of dermatotherapy – Rasheed believes that he should
be prescribed Erythromycin and be given greater amounts of Sween Cream, while in
Dr. Ruze’s judgment Bacitracin and the current dosage of Sween Cream are the
appropriate medical choice. Dkt. #43 - Rasheed Aff. ¶ 13; Dkt. # 40 - Ruze Aff. ¶¶ 7,
10, and 16. A disagreement by a prisoner with the informed decision of a medical
professional over the proper course of treatment does not raise a constitutional issue.
See Youngberg v. Romeo, 457 U.S. 307, 322-323 (1982) (“[T]here certainly is no
reason to think judges or juries are better qualified than appropriate professionals in
making such decisions.”); Doe v. Gaughan, 808 F.2d 871, 884 (1st Cir. 1986)
(“[T]reatment . . .decisions, if made by a professional are presumptively valid.”);
Layne v. Vinzant, 657 F.2d 468, 473 (1st Cir. 1981) (“The right to be free from cruel
and unusual punishment does not include the right to the treatment of one’s choice.”).

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UNITED STATES DISTRICT JUDGE

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