Niemic v. Mass. Dept. of Correction et al

Filing 153

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDERFor the aforementioned reasons, this Court GRANTS themotion for summary judgment, ECF No. 134, in favor of theMedical Defendants.SO ORDERED.(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
UMASS CORRECTIONAL HEALTH,
)
THOMAS HICKS,JR.,
)
GERALDINE SOMERS,
)
AYSHA HAMEED,
)
BART NELSON,
)
MARK SCHNABEL,
)
CARMEN NEWRY, and
)
THOMAS GROBLEWSKI,
)
)
)
Defendants.
)
___________________________________)
KEITH NIEMIC,

CIVIL ACTION
NO. 13-11402-WGY

MEMORANDUM AND ORDER
YOUNG, D.J.
I.

March 2, 2015

INTRODUCTION
Keith Niemic (“Niemic”) brings this suit pro se against

UMass Correctional Health (“UMCH”), Thomas Hicks (“Hicks”),
Geraldine Somers (“Somers”), Aysha Hameed (“Hameed”), Bart
Nelson (“Nelson”), Mark Schnabel (“Schnabel”), Carmen Newry
(“Newry”), and Thomas Groblewski (“Groblewski”)1 (collectively,
the “Medical Defendants”) seeking injunctive relief and damages
1

As discussed below, Niemic originally named fifteen
defendants. The named defendants are the only ones left in the
case at this point.
1

for alleged violations of the First, Eighth, and Fourteenth
Amendments of the United States Constitution under 42 U.S.C.
section 1983, and Massachusetts General Laws Chapter 12, section
11I.2

Niemic, an inmate incarcerated at the Souza-Baranowski

Correctional Center, asserts that the Medical Defendants were
deliberately indifferent to his serious medical needs and
committed other constitutional violations during the course of
his medical treatment.
The Medical Defendants move for summary judgment pursuant
to Federal Rule of Civil Procedure 56.

Because Niemic cannot

demonstrate that the Medical Defendants were deliberately
indifferent to his serious medical needs or violated his
constitutional rights, this Court GRANTS the motion.
A.

Procedural Posture

Niemic filed his initial complaint on June 3, 2013, Compl.,
ECF No. 1, and he filed an amended complaint on August 26, 2013,
Am. Compl., ECF No. 42.

On August 5, 2013, Niemic moved for a

temporary restraining order and preliminary injunction.
TRO & Prelim. Inj., ECF No. 14.

Mot.

Judge Tauro denied the motion

on September 9, 2013, holding that Niemic failed to provide
sufficient evidence to show that the Medical Defendants were

2

Niemic also asserts claims against all defendants under
Mass. Gen. Laws ch. 102, § 93, see, e.g., Statement Disputed
Facts Affidavit Form ¶ 19, ECF No. 150, but no such statute
exists.
2

deliberately indifferent to his serious medical needs and that
he failed to “demonstrate a likelihood of success on the
merits.”

Order, ECF No. 49.

UMCH filed a motion to dismiss August 26, 2013.
Correctional Health’s Mot. Dismiss, ECF No. 37.

Def. UMass

Additionally,

defendants Johanna Shaw (“Shaw”); the Massachusetts Department
of Correction, Bruce Gelb, Luis Spencer, and Lawrence Weiner
(collectively, the “Corrections Defendants”); and Massachusetts
Partnership for Correctional Health (“Partnership”) filed
motions to dismiss and motions for summary judgment on September
16, 2013, Def. Johanna Shaw, M.D.’s Mot. Dismissal & Summ. J.
Re: Pl. Keith Niemic’s Compl., ECF No. 53, November 22, 2013,
Defs. Mot. Dismiss Or Alternative, Mot. Summ. J., ECF No. 67,
and November 26, 2013, Def. Mass. P’ship Correctional
Healthcare’s Mot. Dismiss, Or, Alternatively, Mot. Summ. J. Pl.
Keith Niemic’s Am. Compl., ECF No. 69, respectively.3

3

Magistrate Judge Collings’s order dated January 10, 2014,
directed Shaw and the Corrections Defendants, who filed motions
seeking dismissal and summary judgment simultaneously, to refile those motions and memoranda as motions to dismiss only.
Elec. Order, ECF No. 83. Shaw re-filed her motion to dismiss
January 16, 2014. Def. Johanna Shaw, M.D.’s Mot. Dismiss Pl.
Keith Niemic’s Compl., ECF No. 84. That same day, Partnership
filed its motion to dismiss Niemic’s amended complaint. Def.
Mass. P’Ship Correctional Healthcare’s Mot. Dismiss Pl. Keith
Niemic’s Am. Compl., ECF No. 86. The Corrections Defendants refiled their motion to dismiss on February 26, 2014. Defs. Mass.
Dep’t Correction, Comm’r Luis S. Spencer, Bruce Gelb & Lawrence
Weiner’s Mot. Dismiss, ECF No. 119.
3

Niemic attempted to certify a class action on July 22,
2013, Pl.’s Mot. Class Action Certification, ECF No. 12.
February 19, 2014, that motion was denied.
2014 Order”) ¶ 1, ECF No. 115.

On

Order (“February

That same day, Judge Tauro

accepted and adopted Magistrate Judge Collings’s Report and
Recommendation dated January 29, 2014, ECF No. 108, granting
UMCH’s motion to dismiss with respect to all claims asserted
under 42 U.S.C. section 1983, and denying the motion without
prejudice as to all other remaining claims, February 2014 Order
¶ 3.

Additionally, on March 25, 2014, Judge Tauro allowed the

motions to dismiss filed by Shaw, Partnership, and the
Corrections Defendants and dismissed Niemic’s Rehabilitation Act
and ADA claims against all remaining defendants.

Order ¶¶ 1-3,

7, ECF No. 122.
The case was reassigned to this session of the Court on May
20, 2014.

Elec. Order, ECF No. 131.

Two days later, the

Medical Defendants filed the instant motion for summary
judgment.

Defs. UMass Correctional Health, Thomas Hicks,

Geraldine Somers, Aysha Hameed, Bart Nelson, Mark Schnabel,
Carmen Newry, & Thomas Groblewski’s Mot. Summ. J., ECF No. 134;
Defs. UMass Correctional Health, Thomas Hicks, Geraldine Somers,
Aysha Hameed, Bart Nelson, Mark Schnabel, Carmen Newry, & Thomas
Groblewski’s Mem. Supp. Mot. Summ. J. (“Defs.’ Mem.”), ECF No.
135; Defs. UMass Correctional Health, Thomas Hicks, Geraldine
4

Somers, Aysha Hameed, Bart Nelson, Mark Schnabel, Carmen Newry,
& Thomas Groblewski’s Statement Undisputed Facts Supp. Mot.
Summ. J. (“Defs.’ Undisputed Facts”), ECF No. 136.
his opposition on August 11, 2014.

Niemic filed

Pl.’s Opp’n UMCH Defs.’ Mot.

Summ. J., ECF No. 148; Pl. Keith Niemic’s Mem. Supp. Opposing
Mot. Summ. J. (“Niemic’s Mem.”), ECF No. 149.

The only

remaining claim against UMCH is the state law claim, and the
remaining claims against the Medical Defendants are the
constitutional claims under 42 U.S.C. section 1983 and the state
law claim.
B.

See Niemic’s Disputed Facts ¶¶ 19-20.
Undisputed Facts

Niemic is an inmate currently incarcerated at SouzaBaranowski Correctional Center (“SBCC”) in Shirley,
Massachusetts.

Id. ¶ 1.

This case arises out of Niemic’s

ongoing medical treatment for a variety of ailments, including
severe back pain, migraine headaches, and Hepatitis B and C.
See Am. Compl. ¶¶ 14-16, 18.

Thomas Groblewski is the former

Regional Medical Director of UMCH.

Niemic’s Disputed Facts ¶ 2.

Bart Nelson and Mark Schnabel are nurse practitioners, Carmen
Newry is a nurse, and Aysha Hameed, Geraldine Somers, and Thomas
Hicks are physicians, all former employees of UMCH.4

4

Id. ¶¶ 3-8.

All individually named Medical Defendants are former
employees of UMCH because UMCH is no longer the medical provider
for the Department of Correction as of July 1, 2013. Defs.
Mass. Dep’t Correction, Comm’r Luis S. Spencer, Bruce Gelb, &
5

UMCH is a state agency and is the former medical provider for
the Massachusetts Department of Corrections.

Defs.’ Undisputed

Facts ¶ 9.
In June 2005, following an altercation with another inmate,
Niemic severely injured his back, resulting in the herniation of
his L4-L5 disc.

Pl.’s List Exhibits (“Pl.’s Exhibits”), Ex. B

at 3, ECF No. 151.5

His doctors recommended surgery after failed

epidural steroid injections, but Niemic did not have surgery at
that time.

Defs.’ Undisputed Facts, Ex. A at 1, ECF No. 136.6

There is some dispute as to why Niemic did not receive surgery:
evidence provided by both parties suggests that Niemic himself
declined the surgery, id.; Pl.’s Exhibits, Ex. B at 10, but
Niemic has also provided a form filed in 2007 requesting that he
receive back surgery, Pl.’s Exhibits, Ex. C at 3.

Niemic also

provides a report filed by a non-party physician from 2007,

Lawrence Weiner’s Mem. Supp. Their Mot. Dismiss or Alternative
Mot. Summ. J. 3, ECF No. 68.
5

Niemic offers twenty-two exhibits to support his
opposition to the motion for summary judgment. To improve the
readability of the opinion, ECF docket numbers for each exhibit
will not appear after each reference; it suffices to state here
that Niemic’s Exhibits A through U appear at ECH No. 151-2
through 151-22.
6

Though the Medical Defendants attached twenty exhibits to
their statement of undisputed facts, the exhibits are grouped
together under three docket numbers. Exhibits A through F and
part of Exhibit G are at ECF No. 136-1, the remainder of Exhibit
G is at ECF No. 136-2, and Exhibits H through T are at ECF No.
136-3.
6

however, stating (1) that his injury appeared to have resolved
and was having no affect on his daily activities, and (2) that
Niemic had a history of narcotic-seeking behavior.

Pl.’s

Exhibits, Ex. G at 3.
As a result of his back injury, Niemic suffered falling
episodes on May 14, May 28, June 25, September 1, and November
18, 2009.

See Niemic’s Disputed Facts ¶¶ 21-25.

Only the May

28 fall resulted in a trip to the emergency room, as he suffered
a head injury that required staples.

Id. ¶ 22.

Ultimately, on

January 26, 2010, Niemic underwent neurosurgery at Tufts Medical
Center, Defs.’ Undisputed Facts, Ex. B at 1, despite the
surgeon’s warnings that surgery might not fully resolve the
issue “given that this has been a chronic problem for the past
four years . . . and that the nerve might have sustained
permanent damage,” Pl.’s Exhibits, Ex. B at 8.

After the

surgery, Niemic was prescribed several medications, including
Neurontin, methadone, and oxycodone.

Defs.’ Undisputed Facts,

Ex. B at 2.
Upon postoperative examination, Niemic’s right leg pain had
improved considerably and he had increased sensation in both
feet.

Id.

Niemic returned to SBCC on January 27, 2010 and was

provided with a mix of oxycodone and methadone, until a higher
dosage of methadone capable of replacing the oxycodone became
available.

Id. ; Defs.’ Undisputed Facts, Ex. G at Bates 90-92.
7

Three days later, Niemic was released back to his cell upon his
request, after he agreed that his oxycodone would be
discontinued and he would be maintained on methadone.
Defs.’ Undisputed Facts, Ex. C at 1.

See

Niemic was evaluated by a

nurse practitioner on February 27, 2010, in response to sick
slips submitted on February 12 and 14 complaining of unbearable
back pain.

See Pl.’s Exhibits, Ex. H at 2-3.

Although Niemic

said in his February 14 sick slip that he was contemplating
suicide because of the pain, prison staff discussed the issue
with Niemic and noted that he did not plan to hurt himself at
the present time, but just wanted to be seen by a doctor.

Id.

at 3.
On March 11, 2010, Niemic refused his initial follow up
with his neurosurgeon due to intense pain.

Niemic’s Disputed

Facts ¶ 64; Defs.’ Undisputed Facts, Ex. E at 1.

His methadone

prescription was discontinued on March 24, 2010, as a result of
suspected medication hoarding in his cell.7

See Pl.’s Exhibits,

Ex. J at 6, 15; Defs.’ Undisputed Facts, Ex. F at 1.

That

evening, Niemic attempted suicide and was hospitalized and later
monitored in a suicide isolation cell for several days.

See

Niemic’s Disputed Facts ¶ 67.

7

Niemic’s guilty finding upon this administrative charge
was later vacated in the Massachusetts Superior Court. Niemic
v. Dickhaut, No. MICV2010-04463-L2 (Mass. Super. Ct. 2010).
8

Niemic continued to complain of severe pain and was
thereafter given two pain relievers, Clonidine and Neurotin, as
well as Baclofen, a muscle relaxant.
Ex. G at Bates 86-87.

Defs.’ Undisputed Facts,

Niemic submitted several sick slips after

his methadone was discontinued, complaining of withdrawal,
gastrointestinal issues, and severe pain.
Facts ¶ 68.

See Niemic’s Disputed

On April 13, 2010, Niemic was prescribed Motrin for

daily use, and on April 24, 2010, that prescription was
increased to address his severe pain, although he was not
prescribed methadone as he requested.

See Defs.’ Undisputed

Facts, Ex. G at Bates 374-77.
Niemic attended a follow up with his neurosurgeon on April
15, 2010, and complained that the surgery had not resolved his
pain issues.

See Defs.’ Undisputed Facts, Ex. H at 1.

The

surgeon was unsure why Niemic did not benefit from the surgery,
noting that he could be suffering from permanent nerve damage or
that there could be issues of secondary pain involved.

Id.

He

did conclude, however, that he had no further options to address
Niemic’s pain management issues.

Id.

Soon thereafter, on April 24, 2010, Niemic was advised by
a nurse practitioner that she would continue to monitor his
pain, but he would not likely receive narcotic pain medication
prospectively due to his disciplinary report and concerns for
his safety following his recent suicide attempt.
9

Pl.’s

Exhibits, Ex. J at 4-5.

Another nurse practitioner also noted

that Niemic was upset because his neurosurgeon suggested that
his pain might be psychological rather than physical.

Id. at 3.

Niemic regularly submitted sick slips complaining of back
and liver pain between May and August 2010, but after examining
him on August 18, 2010, Dr. Hameed concluded that his chronic
illnesses were stable and that his back pain was being managed
with Neurontin.

Pl.’s Exhibits, Ex. K at 8.

Dr. Hameed also

noted Niemic’s medication-seeking behavior and declined to
increase his Neurontin.

Id.

Niemic was maintained on Neurontin

until November 28, 2011, when Dr. Hameed ordered for the
medication to be tapered off.
L at 1.
2012.

See Defs.’ Undisputed Facts, Ex.

The medication was ultimately discontinued on April 20,

Defs.’ Undisputed Facts ¶ 58.
Despite Niemic’s regular submission of sick slips, at his

chronic illness evaluation on July 7, 2011, he was found to have
no issues.

See Defs.’ Undisputed Facts, Ex. K at 1.

Niemic was

prescribed a nasal spray and Claritin to address his headaches
and congestion, although he regularly suggested that he may have
a brain tumor and requested an outside consultation.

See Defs.’

Undisputed Facts ¶ 56; Niemic’s Disputed Facts ¶ 80.

On May 3,

2012, in response to numerous sick slips, Niemic was evaluated
by nurse practitioner Schnabel, who prescribed Robaxin, a muscle

10

relaxant, to address his back pain.

See Pl.’s Exhibits, Ex. L

at 2-3.
Niemic suffered another fall requiring outside medical
treatment on June 9, 2012.

Pl.’s Exhibits, Ex. M at 5.

Dr.

Somers prescribed oxycodone on June 22, 2012, to further address
Niemic’s chronic back pain.

Pl.’s Exhibits, Ex. N at 4-5.

Dr.

Somers ordered for the oxycodone to be tapered and ultimately
discontinued on August 7, 2012.
Defs.’ Undisputed Facts ¶ 61.

Pl.’s Exhibits, Ex. P at 5-6;

Dr. Somers also recommended

physical therapy and discussed further surgery to treat his
pain, but Niemic refused to participate in physical therapy
without additional pain medication.

Pl.’s Exhibits, Ex. P at 5.

Thereafter, Niemic was provided with Tylenol, Tegretol (a nerve
pain medication), and Excedrin to address his pain.
Undisputed Facts ¶ 68.

Defs.’

Niemic filed medical grievances against

defendant nurse Newry on July 18, 2012 and on September 18,
2012, but each was denied.

Pl.’s Exhibits, Ex. R at 6-8.

On September 7, 2012, Niemic suffered another fall and
injured his shoulder.

Id. at 3.

Niemic underwent an X-ray on

October 12, 2012, which showed no fractures or abnormalities,
despite his frequent sick slips complaining of shoulder pain.
Defs.’ Undisputed Facts, Ex. R at 1.

Between January and May

2013, Niemic was scheduled for five physical therapy
appointments to address his pain, but he participated only in
11

three appointments, and the therapist determined that he had
reached his maximum rehabilitation potential on May 15, 2013.
See Defs.’ Undisputed Facts, Ex. Q at 1-5.
Niemic filed two medical grievances against nurse
practitioner Nelson in January and August 2013.
Exhibits, Ex. S at 5-6.

See Pl.’s

On January 25, 2013, he alleged that

Nelson refused to provide him with effective pain medication to
address his chronic pain.

Id. at 5.

On August 21, 2013, he

alleged that Nelson denied his request for diagnostic tests for
his suspected tumor and chronic back and shoulder pain.
6.

Id. at

D.J. Hager (“Hager”), the Health Services Administrator

replied to Niemic’s medical grievances against Nelson and each
time Hager backed up Nelson’s treatment decisions.

Id. at 2.

Niemic frequently submitted sick slips complaining of a
lump on the back of his head, as he was worried that he had a
brain tumor.

See Pl.’s Exhibits, Ex. T at 2.

On June 19, 2013,

Nelson examined the lump on Niemic’s head and referred him to an
outside surgical clinic for evaluation.

See id. at 3.

UMCH

ceased operation as the Department of Corrections’ medical
provider on July 1, 2013.

Defs. Mass. Dep’t Correction, Comm’r

Luis S. Spencer, Bruce Gelb, & Lawrence Weiner’s Mem. Supp.
Their Mot. Dismiss or Alternative Mot. Summ. J. 3, ECF No. 68.
II.

ANALYSIS
A.

Summary Judgment Standard
12

This Court must grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

An issue of material fact is genuine if “the

evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1985).
The party seeking summary judgment bears the initial burden
of bringing forth evidence to demonstrate “the absence of a
genuine issue of material fact.”
U.S. 317, 323 (1986).

Celotex Corp. v. Catrett, 477

The moving party may show the absence of

material factual disputes based on the materials in the record,
including depositions, documents, and affidavits.
P. 56(c).

Fed. R. Civ.

Summary judgment must be granted if the non-moving

party “fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Celotex Corp., 477 U.S. at 322.
Once the moving party has sufficiently established that
there are no issues of material fact, the burden of production
shifts to the non-moving party, as “the adverse party ‘must set
forth specific facts showing that there is a genuine issue for
trial,’” and he may not rest on the “mere allegations or denials
of his pleadings.”

Anderson, 477 U.S. at 248, 250 (quoting Fed.
13

R. Civ. P. 56).

The Court must take the non-movant’s evidence

as true, and “all justifiable inferences are to be drawn in his
favor."

Id. at 255.

B.

Eighth Amendment: Cruel and Unusual Punishment

The Eighth Amendment of the United States Constitution
prohibits cruel and unusual punishment.

U.S. Const. amend. VIII.

Although the Constitution does not mandate comfortable prisons,
it is well settled that it does not permit inhumane prisons.
Farmer v. Brennan, 511 U.S. 825, 832 (1994).

The Eighth

Amendment protects prisoners from punishments that “involve the
unnecessary and wanton infliction of pain.”
428 U.S. 153, 173 (1976).

Gregg v. Georgia,

“The Amendment also imposes duties on

[prison] officials, who must provide humane conditions of
confinement; prison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the
inmates.’”

Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer,

468 U.S. 517, 526-27 (1984)).
1.

Deliberate Indifference to a Serious Medical Need

It is the government’s obligation to provide medical care
to those whom it punishes with incarceration.
Gamble, 429 U.S. 97, 103 (1976).

Estelle v.

In Estelle v. Gamble, the

Supreme Court held that “deliberate indifference to serious
medical needs of prisoners constitutes the unnecessary and
14

wanton infliction of pain, proscribed by the Eighth Amendment.”
Id.

at 104 (internal citation and quotation marks omitted).

The Court reasoned that because prisoners must rely on prison
officials for medical treatment, failure to provide that
treatment may result in pain and suffering that cannot serve any
legitimate penological purpose.

Id. at 103.

The Court further

explained that deliberate indifference may be manifested by a
prison doctor’s inadequate treatment of a prisoner, or by prison
guards who intentionally delay or deny a prisoner access to
medical treatment or interfere with medical treatment once it is
prescribed.

Id. at 104.

Of course, not every denial or delay of medical treatment
rises to the level of deliberate indifference.

The Estelle

Court “established that an Eighth Amendment claim of ‘cruel and
unusual punishment’ 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, 161-62 (1st
Cir. 2006) (quoting Estelle, 429 U.S. at 105-06).

A prisoner’s

allegations must satisfy both the objective and subjective
prongs of the resulting test.

First, the deprivation must be

“objectively, ‘sufficiently serious.’”

Farmer, 511 U.S. at 834

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
15

Second,

the prison official must have a “sufficiently culpable state of
mind.”

Id.

Negligence in treating or diagnosing a medical condition is
insufficient to prove a constitutional violation.
U.S. at 106.

Estelle, 429

Additionally, in the First Circuit, when a

plaintiff’s “allegations simply reflect a disagreement on the
appropriate course of treatment[,] [s]uch a dispute with an
exercise of professional judgment may present a colorable claim
for negligence, but falls short of alleging a constitutional
violation.”
1980).

Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir.

Furthermore, in order to qualify as a constitutional

violation, the medical care provided must have been “so
inadequate as to shock the conscience.”

Feeney, 464 F.3d at 162

(quoting Torraco v. Maloney, 923 F.2d 231, 235 (1st Cir.1991))
(internal quotation marks omitted).

Alternatively, a violation

could consist of “an omission so dangerous (in respect to health
or safety) that a defendant’s knowledge of a large risk can be
inferred.”

Torraco, 923 F.2d at 234 (internal quotation marks

omitted).
a.

Dr. Hameed

Niemic alleges that Dr. Hameed engaged in a pattern of
ignoring or failing adequately to treat Niemic’s chronic back
pain and headaches, including failure to carry out proper
diagnostic tests, failure to provide effective pain medication,
16

failure to provide access to outside medical professionals,
discontinuation of narcotic pain medication, and prescribing
hepatotoxic pain relievers, all of which constituted deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment.

Am. Compl. ¶¶ 139-145; Niemic’s Mem. 18.8

Niemic asserts that Dr. Hameed failed adequately to treat his
severe pain due to his disciplinary history and his perceived
drug-seeking behavior.

Id.

He further alleges that Dr.

Hameed’s persistence in ineffective courses of treatment and her
refusal to refer him to outside specialists rise to the level of
a constitutional violation.

Id.

In order to show that Dr. Hameed was deliberately
indifferent to his serious medical needs, Niemic must allege
acts or omissions that are sufficient to evidence a
constitutional deprivation.

Estelle, 429 U.S. at 106.

In

Estelle v. Gamble, Gamble was seen by medical personnel
seventeen times during a three-month period.

8

Id. at 107.

The

Dr. Hameed alleges that Niemic’s claim against her are
barred by the statute of limitations. Dr. Hameed asserts that
Niemic’s sole claim against her stems from an incident occurring
on May 13, 2009. Defs.’ Mem. 6. The statute of limitations for
a 42 U.S.C. § 1983 action is three years. See Duffy v. Mass.
Dep’t of Corrections, 746 F. Supp 232 (D. Mass. 1990). Although
Niemic may have included specific allegations stemming from the
May 2009 incident in some court documents, neither Niemic’s
amended complaint nor his opposition includes specific claims
referring to this incident. See Niemic’s Mem.; Am. Compl.
Accordingly, the Court rejects Dr. Hameed’s statute of
limitations argument.
17

Court noted that although more could have been done to diagnose
Gamble’s back pain, including taking an X-ray or other
diagnostic tests, “the question whether an X-ray or additional
diagnostic techniques or forms of treatment is indicated is a
classic example of a matter for medical judgment.

A medical

decision not to order an X-ray, or like measures, does not
represent cruel and unusual punishment.”

Id.

Here, over the course of the past several years, Niemic has
been treated by Dr. Hameed on numerous occasions where she has
prescribed narcotic pain medication in response to his severe
pain, in addition to non-narcotic medications.
Defs.’ Undisputed Facts, Ex. G, L.

See, e.g.,

Although Dr. Hameed did not

always prescribe Niemic’s preferred medication, Dr. Hameed
consistently provided him with pain medication.

See id. at Ex.

G (noting pain medication prescription dosages).

Dr. Hameed’s

decision to prescribe non-narcotic pain medication in light of
Niemic’s substance abuse issues does not rise to the level of
deliberate indifference necessary to be deemed a violation of
the Eighth Amendment.

Feeney, 464 F.3d at 162 (reasoning that

medical care must be so inadequate as to “shock the
conscience”).

Furthermore, Niemic’s chronic care evaluations

consistently have shown that his hepatitis B and C are well
managed and his most recent liver function tests were normal,
see, e.g., Defs.’ Undisputed Facts, Ex. S at 1 (showing that
18

liver function was normal in April 2013, near the end of the
time period Niemic was treated by the defendants), despite his
claims that the non-narcotic hepatotoxic pain medications
damaged his liver.
Additionally, Dr. Hameed’s decision not to refer Niemic to
an outside specialist or to perform certain diagnostic tests
rests firmly within her medical discretion.
U.S. at 106.

See Estelle, 429

It is well settled that a patient’s disagreement

or dissatisfaction with the prescribed course of treatment is
insufficient to prove a constitutional deprivation.

Ferranti,

618 F.2d at 891.
Consequently, Niemic has failed to provide sufficient
evidence to support a finding that Dr. Hameed’s medical
treatment was so inadequate as to constitute a constitutional
deprivation.

Estelle, 429 U.S. at 106.

Thus, Dr. Hameed is

entitled to judgment as matter of law.
b.

Dr. Hicks

Niemic asserts that Dr. Hicks engaged in behavior that
constitutes deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment.
145.

Am. Compl. ¶¶ 139-

Specifically, Niemic alleges that Dr. Hicks prescribed

effective narcotic pain medication and then subsequently
discontinued the prescription in response to Niemic’s
disciplinary report.

See Niemic’s Mem. 19-21.
19

Again, Niemic

fails to proffer evidence sufficient to show a constitutional
deprivation.

See Estelle, 429 U.S. at 106.

Niemic’s medical records belie his allegations that Dr.
Hicks arbitrarily discontinued his pain medication.

Before his

surgery in January 2010, Niemic was maintained on 5 mg of
methadone, three times a day.
G at Bates 90.

See Defs.’ Undisputed Facts, Ex.

After he returned from Tufts Medical Center,

Niemic was prescribed a supplemental dosage of oxycodone until a
higher dosage of methadone became available to address his
severe pain.

Defs.’ Undisputed Facts, Ex. B at 2, Ex. G at

Bates 90-92.

Before Niemic was transferred from the infirmary

to his cell on January 30, 2010, at his request, he agreed to
discontinue the oxycodone.

Defs.’ Undisputed Facts, Ex. C at 1.

On February 2, 2010, Niemic was prescribed an additional 10 mg
daily dosage of methadone, as previously contemplated by his
medical team.

Defs.’ Undisputed Facts, Ex. G at Bates 89.

Niemic received a disciplinary report on March 24, 2010, for
suspected drug hoarding, and a nonparty nurse practitioner
subsequently discontinued his methadone prescription.
Undisputed Facts, Ex. F at 1.

Defs.’

Niemic has failed to provide any

evidence that suggests that Dr. Hicks had anything to do with
the discontinuation of his methadone prescription.
Additionally, he has failed to show that the discontinuation was

20

a sufficient constitutional deprivation.

Thus, Dr. Hicks is

entitled to judgment as matter of law.
c.

Nurse Newry

Niemic alleges that nurse Newry refused to treat his
immediate medical needs, influenced a doctor’s prescription
decisions, and delayed or prevented him from receiving medical
attention.

See Niemic’s Mem. 21-22.

On several consecutive

days in September 2012, Niemic asserts that Newry refused to
give him aspirin after he complained of chest pains during
medication rounds.

Pl.’s Exhibits, Ex. R at 2.

Newry explained

to Niemic that he must submit a sick slip in order to receive
medication.

Id. at 8.

Despite this explanation, Niemic filed

three medical grievances against Newry regarding this issue.
Id. at 6-8.

Each time Niemic was notified that his issues were

not grievable and that he must go through the proper channels to
request changes in his medication.

Id.

As the Court views it,

this evidence is indicative of Niemic’s mere disagreement with
his course of treatment, rather than a constitutional
deprivation sufficient to prove deliberate indifference.

See

Estelle, 429 U.S. at 106.
Niemic also alleges that Newry improperly influenced Dr.
Somers to discontinue Niemic’s oxycodone prescription on August
7, 2012, as retaliation for his frequent medical grievances and
sick slips.

Niemic’s Mem. 21; Pl.’s Exhibits, Ex. P at 5-6.
21

In

Feeney v. Correctional Medical Services, Inc., the court noted
that “deliberate indifference may also reside in ‘wanton’
decisions to deny or delay care, where the action is
recklessness, ‘not in the tort law sense but in the appreciably
stricter criminal-law sense, requiring actual knowledge of
impending harm, easily preventable.’”

Feeney, 464 F.3d at 162

(quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)).
Here, Niemic fails to show a sufficient denial or delay of
medical care.

Although Dr. Somers did, in fact, discontinue

Niemic’s oxycodone, his medical records suggest that this
medical decision was precipitated by Dr. Somers’s concern for
Niemic’s narcotic dependence, as he refused to consider further
surgery or physical therapy without an increased dosage of
narcotic pain medication.

Pl.’s Exhibits, Ex. P at 5-6.

Niemic

offers an affidavit from a fellow inmate, asserting that he
heard Newry request that Dr. Somers discontinue Niemic’s
narcotic medication, to support his allegation that Newry
improperly influenced Dr. Somers’s decision.
Ex. O at 2.

Pls.’ Exhibits,

Ultimately, even resolving all inferences in

Niemic’s favor, the evidence merely shows that Newry made a
medical suggestion to Dr. Somers, nothing more.

This evidence

is insufficient to show that Newry’s actions rose to the level
of a wanton or reckless decision to deny or delay care.
Feeney, 464 F.3d at 162.
22

See

Finally, Niemic asserts that Newry denied him access to
medical treatment by refusing him sick slips on several
occasions in September 2012.

Pl.’s Exhibits, Ex. R at 2, 4-5.

Again, Niemic’s allegations fail to rise to the level of a
sufficient deprivation.

Niemic filed sick slips on three

consecutive days in early September.

See id. at 3-5.

Although

nurse Newry wrote “Refused” on sick slips dated September 8 and
9, the sick slip dated September 7, 2012 had extensive notes,
including an appointment with the nurse practitioner scheduled
for the next month.

Id.

Even were this Court were to find that

this conduct is a sufficient deprivation, Niemic still cannot
satisfy the subjective prong of the test.
at 162.

See Feeney, 464 F.3d

Niemic’s sick slips did not assert emergency or life

threatening symptoms and he was scheduled to see the nurse
practitioner soon thereafter.

At worst, Newry’s conduct was

insensitive and possibly negligent, but it does not rise to the
level of a constitutional deprivation.

Thus, Newry is entitled

to judgment as matter of law.
d.

Nurse Practitioner Schnabel

Niemic asserts that Schnabel failed to provide effective
pain medication during an examination on May 3, 2012 and that
Schnabel knowingly and fraudulently recorded that he could
ambulate in the cell block without problems.
65.

Am. Compl. ¶¶ 64-

He further alleges that Schnabel prevented his access to
23

outside medical specialists to treat migraine headaches and a
lump on his head that he suspects is a tumor.

Niemic’s Mem. 22-

23.
In the First Circuit, “[w]here a prisoner has received some
medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which
sound in state tort law.”

Layne v. Vinzant, 657 F.2d 468, 474

(1st Cir. 1981) (quoting Westlake v. Lucas, 537 F.2d 857, 860
n.5 (6th Cir. 1976)) (alteration in original) (internal
quotation marks omitted).
his allegations.

Again, Niemic’s medical records belie

During Niemic’s examination, Schnabel

prescribed Robaxin, a muscle relaxant, to address Niemic’s back
pain.

Pl.’s Exhibits, Ex. L at 3.

Additionally, Schnabel

discussed pain management options pursuant to pain management
guidelines, but Niemic declined to pursue those options.
4.

Id. at

Furthermore, although Niemic reported that his back pain was

so severe that he could not sit for the examination, Schnabel
noted in Progress Notes from the same date that correctional
staff members reported that Niemic could walk about with ease
while he was in the cell block.

Id.

Schnabel’s treatment of

Niemic was reasonable in light of this observation, combined
with Niemic’s disciplinary report history and history of drugseeking behavior.

See Layne, 657 F.2d at 474.
24

Niemic also alleges that Schnabel refused to provide him
with outside medical attention to address the lump on the back
of his skull and migraine headaches.

Niemic’s Mem. 23.

As

stated above, courts generally decline to second-guess medical
judgments.

Layne, 657 F.2d at 474.

Additionally, while the

First Circuit is hesitant to find deliberate indifference
“[w]here the dispute concerns not absence of help, but the
choice of a certain course of treatment, deliberate indifference
may be found where the attention received is so clearly
inadequate as to amount to a refusal to provide essential care.”
Torraco, 923 F.2d at 234 (internal citation and quotation marks
omitted).
Here, despite Niemic’s frequent submission of sick slips
requesting an MRI or other diagnostic tests to address the lump
on his head, his medical team declined to order additional tests
or refer Niemic to an outside specialist.

See Niemic’s Mem. 23.

Niemic opines that Schnabel refused to refer Niemic to an
outside specialist or order diagnostic tests in order to save
money and due to Niemic’s history of disciplinary reports and
drug addiction.

Id.

Niemic, however, failed to provide

evidence corroborating his claims, and bare conjecture cannot
suffice to bar entry of summary judgment in favor of the
defendants here.

Moreover, Niemic’s medical records contradict

his allegations.

He was routinely prescribed Claritin and nasal
25

sprays to address his headaches, see Defs.’ Undisputed Facts,
Ex. G, and his back surgery evidences the Medical Defendants’
willingness to provide expensive treatments outside of the
prison.

See Defs.’ Undisputed Facts, Ex. B at 1-2.

As

mentioned above, this Court declines to second-guess nurse
practitioner Schnabel’s medical judgment without sufficient
evidence that Niemic’s medical treatment was “so clearly
inadequate as to amount to a refusal to provide essential care.”
Torraco, 923 F.2d at 234.

Niemic has failed to meet this heavy

burden, and, as such, Schnabel is entitled to judgment as matter
of law.
e.

Nurse Practitioner Nelson

Niemic alleges that nurse practitioner Nelson delayed
treatment of his injured shoulder and then subsequently refused
to provide him with the prescribed pain medication.
Niemic’s Mem. 24-25.

See

Again, Niemic’s medical records belie his

claims against Nelson.

After his fall in September 2012, Niemic

received an X-ray that showed no abnormalities.
Undisputed Facts, Ex. R at 1.

Defs.’

Additionally, in early 2013

Niemic was provided with several pain medications, including
Tegretol, Motrin, and Excedrin, Defs.’ Undisputed Facts, Ex. G,
and participated in three physical therapy appointments before
the therapist determined that he had reached his maximum
rehabilitation potential.

Defs.’ Undisputed Facts, Ex. Q at 126

5.

Despite this medical treatment, Niemic filed two grievances

against Nelson regarding his course of treatment.
Exhibits, Ex. S at 5-6.

Pl.’s

Each time, Hager, the prison Health

Services Administrator, declined to second-guess Nelson’s
medical decisions.

Id. at 2.

A patient’s dissatisfaction or

disagreement with a course of treatment is insufficient to prove
a deprivation sufficient to show deliberate indifference.
Ferranti, 618 F.2d at 891.

Niemic cannot show a sufficient

deprivation and therefore Nelson is entitled to judgment as
matter of law.
f.

Dr. Somers

Niemic asserts that Dr. Somers refused to refer him to a
specialist for his many medical concerns (e.g., back pain,
shoulder pain, and suspected tumor) and failed to order
diagnostic tests effectively to treat him.
26.

See Niemic’s Mem.

He further argues that Dr. Somers abruptly discontinued his

oxycodone prescription without tapering, resulting in opioid
withdrawal.

Id.

He also alleges that Dr. Somers persisted in

an ineffective course of treatment and prescribed Motrin and
other hepatotoxic pain medications despite his hepatitis.

Id.

at 26-27.
Dr. Somers discontinued Niemic’s oxycodone prescription in
August 2012, after he continued to request more pain medication
and refused to entertain other treatment options without
27

additional pain medication.

Pl.’s Exhibits, Ex. P at 5.

Furthermore, Niemic’s liver function tests are normal and his
hepatitis is well managed through chronic care appointments.
See Defs.’ Undisputed Facts, Ex. J at 1, Ex. K at 1, Ex. S at 1.
As discussed above, without more, this Court declines to secondguess medical decisions, Layne, 657 F.2d at 474, and a patient’s
dissatisfaction or disagreement with a course of treatment is
insufficient to prove a deprivation sufficient to show
deliberate indifference, Ferranti, 618 F.2d at 891.

Thus, Dr.

Somers is entitled to judgment as matter of law.
g.

Dr. Groblewski

Niemic claims that Dr. Groblewski, as the Director for
UMCH, failed to prevent or rectify the other Medical Defendants’
deliberate indifference to his medical needs.
Niemic failed to brief this claim.

Am. Compl. ¶ 148.

See Niemic’s Mem.

As

director, Dr. Groblewski did not treat Niemic, nor did he make
Niemic’s treatment decisions.

Defs.’ Mem. 10. This Court thus

assumes that Dr. Groblewksi’s liability must be premised on the
doctrine of supervisory liability.
“[A] supervisor is not liable for their subordinates’
unconstitutional conduct under the theory of respondeat
superior.”

Ramirez-Lluveras v. Pagan-Cruz, 833 F. Supp. 2d 165,

174 (D.P.R. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)).

“Rather, supervisors may only be held liable under §
28

1983 on the basis of their own acts or omissions.”
(internal quotation marks omitted).

Id.

To establish liability

under section 1983 two prongs must be satisfied: “(a) the
supervisor's subordinate must have violated the plaintiff's
constitutional rights; and (b) the supervisor's ‘action or
inaction’ must be ‘affirmative[ly] link[ed] . . .’ to that
behavior in the sense that it could be characterized as
‘supervisory encouragement, condonation, or acquiescence’ or
‘gross negligence amounting to deliberate indifference.’”

Id.

(alterations in original) (quoting Pineda v. Toomey, 533 F.3d
50, 54 (1st Cir. 2008)).

In order to satisfy the second prong

of the test, a supervisor must knowingly disregard a
subordinate’s risk of a constitutional violation, or create a
policy or environment that leads to violations.

Id. (citing

McIntyre v. United States, 336 F. Supp. 2d 87, 127 (D. Mass.
2004) (Lindsay, J.)).
Niemic has failed to provide evidence showing a
deprivation sufficient to prove deliberate indifference of any
of the Medical Defendants.

See Estelle, 429 U.S. at 106.

In

Feeney v. Correctional Medical Services, Inc., the First Circuit
found allegations of Eighth Amendment violations insufficient
where the prisoner: 1) was examined by medical professionals
several times after reporting his symptoms; 2) had numerous
diagnostic tests performed; 3) was evaluated by outside
29

specialists; and 4) was given other treatments for his symptoms.
Feeney, 464 F.3d at 162.

As discussed above, Niemic

consistently has been provided with a variety of pain
medications; he has been evaluated by outside specialists,
including surgery and neurological evaluations; he has been
treated with physical therapy; and he has been informed of and
declined other pain management options.
Mem. Exs. A-T.

See generally Defs.’

Additionally, Niemic has failed to provide

evidence that Dr. Groblewski either affirmatively knew about his
subordinates’ alleged constitutional violations, nor is there
evidence that he created policies or an environment that lead to
such violations.

Thus, Dr. Groblewski is entitled to judgment

as matter of law.
C.

First and Fourteenth Amendment Violations

Niemic alleges that the individual Medical Defendants’
conduct violated the First Amendment and both the Due Process
and Equal Protection Clauses of the Fourteenth Amendment.

Am.

Compl. ¶¶ 150-59.
1.

Due Process

Over the course of the past several years, Niemic alleges
that the Medical Defendants withheld his preferred pain
medication and treatment programs in violation of the Due
Process Clause of the Fourteenth Amendment.

Id.

The Due

Process Clause of the Fourteenth Amendment states in relevant
30

part that no state shall “deprive any person of life, liberty,
or property, without due process of law.”
XIV, cl. 1.

U.S. Const. amend.

The Supreme Court has recognized that inmates are

entitled to limited due process rights.

See Sandin v. Conner,

515 U.S. 472, 479 n.4 (1995).
“Inmates have a due process interest that is ‘generally
limited to freedom from restraint which . . . imposes atypical
and significant hardship’ on an inmate as compared to the
‘ordinary incidents of prison life.’”

Niemic v. Maloney, 448 F.

Supp. 2d 270, 280 (D. Mass. 2006) (Gorton, J.) (alteration in
original) (quoting Sandin, 512 U.S. at 484).

Failure to receive

one’s preferred pain medication or treatment program is “neither
related to freedom of restraint nor an ‘atypical and significant
hardship,’” id., especially in light of Niemic’s disciplinary
report history and his history of drug dependence.
process claims thus fail as matter of law.

Niemic’s due

See Celotex Corp.,

477 U.S. at 322.
2.

Equal Protection

Niemic alleges that the Medical Defendants denied him
access to Medication Assisted Treatment (“MAT”) in violation of
the Equal Protection Clause of the Fourteenth Amendment.
Compl. ¶ 159.

Am.

The Equal Protection Clause states that “[n]o

State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.”

U.S. Const. amend. XIV, cl. 1.
31

“Equal protection means that ‘similarly situated persons are to
receive substantially similar treatment from their government.’”
Kuperman v. Wrenn, 645 F.3d 69, 77 (1st Cir. 2011) (quoting
Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004)).

In order to

establish an equal protection violation, an inmate “must
introduce sufficient evidence from which a jury reasonably could
conclude that, compared with others similarly situated, the
plaintiff was treated differently because of an improper
consideration.”

Id. at 78.

Here, Niemic alleges that the Medical Defendants’ failure
to provide him with MAT when unincarcerated inmates have access
to this treatment violates the Equal Protection Clause.
Compl. ¶ 106.

Am.

Niemic, however, is not the only inmate who does

not have access to MAT - in fact, no inmate in SBCC has access
to MAT on a regular basis.

Id. ¶¶ 106, 159.

It is simply

inapposite to compare the treatment options available to those
who are not incarcerated with those who are incarcerated, as
those two groups are not similarly situated and there are myriad
reasons for the state to provide inmates with different care
than the care non-prisoners may obtain of their own accord.
Niemic’s claim thus fails, and the Medical Defendants are
entitled to judgment as matter of law.
3.

First Amendment

Next, Niemic claims that the Medical Defendants delayed and
32

denied his medical treatment in retaliation for his complaints
and medical grievances.

Niemic’s Mem. 30.

In order to prevail

on a First Amendment retaliation claim in the prison context,
Niemic must show: “1) that he engaged in constitutionally
protected conduct, 2) prison officials took adverse action
against him, 3) with the intent to retaliate against him for
engaging in the constitutionally protected conduct and 4) he
would not have suffered the adverse action ‘but for’ the prison
officials’ retaliatory motive.”

Schofield v. Clarke, 769 F.

Supp. 2d 42, 47 (D. Mass. 2011) (Gorton, J.).
Here, Niemic’s conduct - filing complaints and grievances is constitutionally protected.

Id.

Yet he fails to provide

sufficient evidence showing that the Medical Defendants took
adverse action against him, nor has he established intent to
retaliate against him.

Niemic has merely established that he

was denied his preferred course of treatment.

His First

Amendment claims must fail as matter of law.
D.

State Law Claim

Niemic alleges that the Medical Defendants interfered with
his constitutional rights in violation of Massachusetts General
Laws Chapter 12, Section 11I, the Massachusetts Civil Rights
Act.

Am. Compl. ¶ 150.
To establish a claim under the MCRA, a plaintiff must
prove 1) his exercise or enjoyment of his rights
secured by the Constitution or the laws of either the
33

United States or the Commonwealth have been subjected
to interference or attempted interference by the
defendants and 2) that the interference or attempted
interference was by “threats, intimidation or
coercion.”
Carroll v. City of Quincy, 441 F. Supp. 2d 215, 226 (D. Mass.
2006) (Gorton, J.) (quoting Bally v. Ne. Univ., 403 Mass. 713,
717 (1989)).

As discussed above, Niemic has failed to establish

retaliatory behavior, nor has he provided evidence of threats or
coercion.

As such, the Medical Defendants are entitled to

judgment as matter of law.
III. CONCLUSION
For the aforementioned reasons, this Court GRANTS the
motion for summary judgment, ECF No. 134, in favor of the
Medical Defendants.
SO ORDERED.

_/s/ William G. Young_
WILLIAM G. YOUNG
DISTRICT JUDGE

34