Keohan v. Naphcare Medical Provider
Filing
62
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing discussion, NaphCare's motion for summary judgment (Docket Entry # 54 ) and Cousins and Marks motion for summary judgment (Docket Entry # 51 ) are ALLOWED. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MICHAEL T. KEOHAN,
Plaintiff,
v.
CIVIL ACTION NO.
13-11446-MBB
NAPHCARE MEDICAL SERVICES,
FRANK G. COUSINS and
MICHAEL MARKS,
Defendants.
MEMORANDUM AND ORDER RE:
DEFENDANT NAPHCARE, INC.’S MOTION FOR SUMMARY
JUDGMENT (DOCKET ENTRY # 54); DEFENDANTS FRANK G. COUSINS
AND MICHAEL MARKS’ MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 51)
November 3, 2015
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by defendants Frank G. Cousins (“Cousins”), Sheriff of the
Essex County Sheriff’s Department, and Michael Marks (“Marks”),
Superintendent of Essex County Correctional Facility (“ECCF”) in
Middleton, Massachusetts, under Fed.R.Civ.P. 56 (“Rule 56”).
(Docket Entry # 51).
Defendant NaphCare, Inc. (“NaphCare”) also
moves for summary judgment under Rule 56.
(Docket Entry # 54).
PROCEDURAL BACKGROUND
Plaintiff Michael T. Keohan (“plaintiff”), an inmate at
ECCF, filed an amended complaint against Cousins, Marks and
NaphCare (“defendants”) based on a denial of or inadequate
medical care in violation of the Eighth Amendment under 42
U.S.C. § 1983 (“section 1983”).
(Docket Entry # 9, pp. 1, 2).
The amended complaint alleges that plaintiff fell in the shower
at ECCF on July 19, 2012, and hit his right elbow.
He also
complains that ECCF Correctional Officers V. Valano and James
Foley removed his knee brace.
(Docket Entry # 9, p. 3).
NaphCare refused to provide adequate medical care, including
authorizing physical therapy.
In seeking summary judgment, Cousins and Marks argue that
the undisputed facts do not give rise to a denial of medical
care under the Eighth Amendment.
Cousins and Marks further
maintain that any supervisory liability claim fails because, as
sheriff and superintendent, they lacked personal knowledge of
plaintiff’s alleged fall in the shower.
(Docket Entry # 52, p.
5).
NaphCare argues that it is entitled to summary judgment
because there is no respondeat superior liability under section
1983.
(Docket Entry # 55, p. 5).
NaphCare also contends that
the facts fail to show that it acted with the necessary
deliberate indifference to plaintiff’s serious medical needs.
STANDARD OF REVIEW
Summary judgment is designed “to ‘pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”
2
Tobin v. Federal Express
Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts
University School of Medicine, 976 F.2d 791, 794 (1st Cir. 1992)).
It is appropriate “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.”
Fed.R.Civ.P. 56(a).
It is
inappropriate “if the record is sufficiently open-ended to
permit a rational factfinder to resolve a material factual
dispute in favor of either side.”
Pierce v. Cotuit Fire
District, 741 F.3d 295, 301 (1st Cir. 2014).
“Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are
those whose ‘existence or nonexistence has the potential to
change the outcome of the suit.’”
Green Mountain Realty Corp.
v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de
Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London,
637 F.3d 53, 56 (1st Cir. 2011)).
The evidence is viewed “in the
light most favorable to the non-moving party” and “all
reasonable inferences” are drawn in his favor.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014).
Ahmed v.
In reviewing a
summary judgment motion, a court may examine “all of the record
materials on file,” id., “including depositions, documents,
electronically stored information, affidavits or declarations.”
Fed.R.Civ.P. 56(c)(1).
“Unsupported allegations and
speculation,” however, “do not demonstrate either entitlement to
3
summary judgment or the existence of a genuine issue of material
fact sufficient to defeat summary judgment.”
Rivera-Colon v.
Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum
Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014)
(“allegations of a merely speculative or conclusory nature are
rightly disregarded”).
In the event a complaint is verified, it is appropriate to
consider factual averments based on personal knowledge therein as
the equivalent of an affidavit for purposes of summary judgment.
Sheinkopf v. Stone, 927 F.2d 1259, 1262-63 (1st Cir. 1991).
Plaintiff signed the amended complaint “under the pains and
penalties of perjury.”
(Docket Entry # 9, p. 7).
Accordingly,
facts based on personal knowledge in the amended complaint are
properly part of the summary judgment record.
See Goldman,
Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit
International, Inc., 982 F.2d 686, 689-90 (1st Cir. 1993) (noting
that pursuant to 28 U.S.C. § 1746 “an unsworn statement signed
under penalty of perjury may be used, in lieu of a sworn
statement or affidavit, to support or oppose a motion for
summary judgment”); United States v. Gomez-Vigil, 929 F.2d 254,
258 (6th Cir. 1991) (28 U.S.C. § 1746 ‘‘allows the use of ‘unsworn
declaration under penalty of perjury’ in lieu of sworn oaths’’);
Uncle Henrys Inc. v. Plaut Consulting Inc., 240 F.Supp.2d 63, 69
(D.Me. 2003) (‘‘[a]ffidavits need not be notarized to be
cognizable on summary judgment so long as they are made under
4
penalties of perjury in accordance with 28 U.S.C. § 1746’’).
Conclusory allegations in the amended complaint, however, “do
not pass muster, and hence, must be disregarded.”
Sheinkopf v.
Stone, 927 F.2d at 1262.
Adhering to this framework, the record sets out the
following facts for purposes of defendants’ summary judgment
motions.
FACTUAL BACKGROUND
Beginning in July 2012, plaintiff was an inmate residing at
ECCF.
(Docket Entry # 55-1, p. 3).
Since 2008, NaphCare has
been contracted by ECCF to provide comprehensive medical and
health services to all inmates in its custody.
55-2).
(Docket Entry #
No employees of the Essex County Sheriff’s Department
directly provide medical care for inmates, as that was provided
by ECCF’s vendor, NaphCare.
(Docket Entry # 53-3, p. 1).
Plaintiff is a 55 year old male who underwent multiple
medical procedures prior to his incarceration.
55-1, pp. 50-53).
(Docket Entry #
In 2008, prior to his incarceration in ECCF,
plaintiff was in a motorcycle accident and suffered “left
forearm/wrist fractures,” a “right wrist fracture,” “fractured
ribs,” a “lacerated spleen [and] kidney” and various “fractures
requiring facial reconstruction.”
50, 51).
(Docket Entry # 55-1, pp. 2,
Additionally, in August 2011, plaintiff “underwent a
right knee revision” and in April 2012 he underwent a right knee
5
anterior cruciate ligament (“ACL”) reconstruction.
Entry # 55-1, p. 2).
Following the ACL surgery, plaintiff began
physical therapy for his knee.
11).
(Docket
(Docket Entry # 55-1, pp. 10-
The Family Care Center in Stoneham, Massachusetts noted
that plaintiff’s recovery time may be longer than normal due to
his multiple surgeries.
(Docket Entry # 55-1, pp. 10-11).
On May 12, 2012, plaintiff fell backward and hit his head,
leading to an occipital skull fracture, subdural hematoma and
nasal fracture.
(Docket Entry # 55-1, p. 10).
On May 15, 2012,
plaintiff visited the emergency room at Massachusetts General
Hospital (“MGH”) complaining of a headache.
1, p. 10).
(Docket Entry # 55-
Plaintiff stated he had not had oxycodone in a few
weeks, however, hospital records reflect that he “used 20
oxycodone in 24 hours.”
(Docket Entry # 55-1, p. 10).
Family
Care Center records additionally noted on May 29, 2012, that
plaintiff “[h]as had inappropriate behavior in our office and in
Dr. [B]ickley’s [sic] office regarding his need for narcotics,”
and that they are “not sure if there are any non-narcotic
treatments that they can offer him.”
(Docket Entry # 55-1, p.
11).
On May 30, 2012, Keith Fragoza, M.D. (“Dr. Fragoza”) saw
plaintiff at the MGH Center for Pain Medicine.
Upon
examination, Dr. Fragoza noted that plaintiff’s pain was most
6
likely an “inflammatory mechanism due to his prior mechanical
injuries.”
(Docket Entry 55-1, pp. 7-8).
Two months later on July 11, 2012, plaintiff became
incarcerated at ECCF due to a violation of his probation.
(Docket Entry # 55-1, p. 3).
Upon entering ECCF, plaintiff
continued to wear the “knee immobilizer” from the right knee
surgery.
(Docket Entry # 55-1, p. 3).
The immobilizer was
described by staff as a “bledsoe brace” that was “hinged” and
contained metal.
(Docket Entry # 55-1, pp. 30, 32).
During his
medical intake interview at ECCF, Ann McDowell (“McDowell”), a
registered nurse at ECCF, described that plaintiff as “very
demanding” when requesting medication for his back and leg.
(Docket Entry # 55-1. p. 30).
On July 19, 2012, plaintiff fell in the shower when his
“right leg gave out.”
(Docket Entry # 9, pp. 2-3).
fell, he hit his right elbow.
When he
(Docket Entry # 9, p. 3).
The
same day, plaintiff submitted a medical request form stating
that he had “water on right elbow” that “may need to be
drained.”
(Docket Entry # 55-1, p. 54).
Plaintiff later
indicated to the orthopedic clinic on November 21, 2012, that he
had fallen five to six months prior and injured the right elbow.
(Docket Entry # 55-1, p. 17).
On July 26, 2012, plaintiff saw
medical staff and complained of an infection on his right elbow.
(Docket Entry # 55-1, p. 31).
Melanie Goodlaxson
7
(“Goodlaxson”), a registered nurse at ECCF, noted that
plaintiff’s elbow did appear to have fluid buildup and
determined that plaintiff possibly had bursitis.
# 55-1, p. 31).
wrap.
(Docket Entry
Plaintiff was prescribed Motrin and an ace
(Docket Entry # 55-1, p. 31).
On July 27, 2012, Janice
Hall (“Hall”), a nurse practitioner at ECCF, decided to taper
plaintiff off of Neurontin as there were no signs of him having
complained about neuropathic pain.
(Docket Entry # 55-1, p.
31).
On August 6, 2012, plaintiff submitted five sick slips
regarding his right elbow.
(Docket Entry # 55-1, p. 31).
Karen
Barry (“Barry”), a registered nurse at ECCF, stated that
plaintiff appeared extremely anxious and had stated with regards
to his elbow that, “‘If I take a razor blade to it, I guarantee
PUS [sic] will come out.’”
(Docket Entry # 55-1, p. 31).
Barry
arranged for plaintiff to see Hall the following day, August 7,
2012.
(Docket Entry # 55-1, p. 31).
Plaintiff told Hall he hit
his elbow on the bunk and believes to have broken something
inside. (Docket Entry # 55-1, p. 31).
A radiology report of x-
rays from that day concluded that plaintiff had
“[o]steoarthritis in the right elbow,” but no fracture or
dislocation.
(Docket Entry # 55-1, p. 12).
Hall noted that
plaintiff was not wearing the elbow sleeve that had been
provided at his previous appointment.
8
(Docket Entry # 55-1, p.
31).
Hall’s notes for August 7, 2012, reflect the assessment
that plaintiff had bursitis in his right elbow.
Accordingly,
she prescribed Motrin and directed plaintiff to continue wearing
the elbow sleeve.
(Docket Entry # 55-1, p. 31).
An “inmate cell property liability form” dated September
11, 2012 lists plaintiff’s knee brace.
Plaintiff signed the
form which also states that the brace was taken by Officer V.
Valano.
Officer James Foley, as shift commander, signed the
inmate cell property form.
(Docket Entry # 59, p. 5).
Plaintiff similarly attests that V. Valano and James Foley
removed plaintiff’s knee brace.
(Docket Entry # 9, p. 3).
On October 3, 2012, plaintiff requested “some type of knee
support” and a cane because his metal knee brace broke.
Entry # 55-1, pp. 3, 32).
(Docket
Hall noted that plaintiff came to the
appointment wearing the support that was previously given for
his elbow on his knee.
(Docket Entry # 55-1, p. 32).
also requested Neurontin for his facial pain.
Plaintiff
On October 5,
2012, and in lieu of Neurontin, Hall prescribed plaintiff
Naprosyn and Elavil.
She also completed a special needs form to
obtain an elastic knee support and a cane for plaintiff.
(Docket Entry # 55-1, p. 32).
Hall’s medical notes from October
5, 2012, reflect that staff “did not have documentation that a
hinged knee brace was still required” inasmuch as the knee
surgery was in April 2012.
(Docket Entry # 55-1, p. 32).
9
Also on October 5, 2012, an officer reported to medical
staff that plaintiff was wearing the metal knee brace after the
“officer took it away prior.”
(Docket Entry # 55-1, p. 32).
The officer also reported observing plaintiff leaving his cane
in his cell while he ran laps in the gym.
(Docket Entry # 55-1,
p. 32).
On November 16, 2012, Lawrence Churchville, M.D. (“Dr.
Churchville”) examined plaintiff.
His notes reflect that
plaintiff had swelling in his left elbow and that his right knee
appeared to be unstable.
(Docket Entry # 55-1, pp. 3, 16, 32).
Dr. Churchville prescribed Gabapentin, an ace wrap and referred
plaintiff for an orthopedics consultation for both his knee and
elbow.
(Docket Entry # 55-1, pp. 3, 16, 32).
On November 21,
2012, an orthopedic physician examined plaintiff and
administered a corticosteroid injection in his right elbow to
alleviate the pain.
(Docket Entry # 55-1, pp. 3, 17, 33).
physician also ordered an x-ray of the right knee.
The
The x-ray on
November 29, 2012, showed degenerative changes in the right
knee, but no acute fracture.
(Docket Entry # 55-1, pp. 3, 18).
On December 17, 2012, plaintiff saw medical staff
complaining of right elbow, facial and knee pain.
# 55-1, p. 33).
(Docket Entry
Dr. Churchville noted at this appointment that
plaintiff was “visibly angry” upon entering the exam room,
claiming that Dr. Churchville had told him that he did not have
10
a fracture of his elbow.
(Docket Entry # 55-1, p. 33).
Dr.
Churchville’s notes show that plaintiff had a small remote
olecranon avulsion and that there is a request for plaintiff to
follow up with the orthopedic doctor.
33).
(Docket Entry # 55-1, p.
On December 19, 2012, plaintiff had a follow-up visit at
the orthopedic clinic.
The orthopedic physician observed that
plaintiff still lacked full extension in the elbow and
recommended a CAT scan and arthrogram as well as a follow-up
orthopedic appointment.
(Docket Entry # 55-1, pp. 3, 17).
On December 27 and 28, 2012, plaintiff was seen working
maintenance, lifting and assembling heavy steel bunk beds and
fully utilizing his right arm without signs of difficulty.
(Docket Entry # 55-1, pp. 4, 33).
On February 20, 2013,
plaintiff saw Cassandra Murray (“Murray”), a nurse practitioner
at ECCF.
She explained to plaintiff that the “MRI for” the
right elbow “was not approved” and that he required no further
orthopedic treatment.
(Docket Entry # 55-1, p. 19).
She also
noted that plaintiff was ambulating “very well” and without a
limp.
(Docket Entry # 55-1, p. 19).
Her treatment note states
that plaintiff “was seen carrying [the] steel bunk bed” on
December 28, 2012.
(Docket Entry # 55-1, p. 19).
Finally,
Murray discussed the possibility of medication with plaintiff,
however, he stated that he did not “want any.”
55-1, p. 20).
11
(Docket Entry #
On April 2, 2013, plaintiff canceled a sick slip that he
had placed to see medical staff regarding his elbow.
Entry # 55-1, p. 33).
(Docket
Murray noted that the issue of
plaintiff’s elbow had been addressed “numerous times,” that his
off-site MRI request was not approved, and that he was currently
on Naprosyn for his pain.
(Docket Entry # 55-1, p. 33).
She
further stated that plaintiff “was observed lifting bunk beds.”
(Docket Entry # 55-1, p. 33).
On May 6, 2013, plaintiff fell and hit his head in the
gymnasium.
(Docket Entry # 55-1, p. 4, 34).
Goodlaxson noted
there was “no bruising, swelling or redness” and placed
plaintiff in the infirmary overnight for “medical observation
and further evaluation” in the morning.
(Docket Entry # 55-1,
p. 34).
The following day on May 7, 2013, Hall examined plaintiff.
Her notes reflect there was no swelling in the right elbow.
(Docket Entry # 55-1, pp. 34-35).
She also described plaintiff
as ambulating with a “steady gait” and that he had no
“abrasions, ecchymosis, [or] erythema” on his forehead.
Entry # 55-1, p. 34).
(Docket
Hall therefore determined that plaintiff
was medically cleared from his head injury.
(Docket Entry # 55-
1, p. 34).
On May 28, 2013, plaintiff had a follow-up appointment with
Dr. Churchville.
At plaintiff’s request, Dr. Churchville
12
stopped the Naprosyn and began plaintiff on Tylenol for the pain
in his elbow and knee.
(Docket Entry # 55-1, pp. 20-21).
During the appointment, plaintiff reported that the Velcro
straps on his knee brace were ineffective and that he was upset
when his knee brace was taken away.
20).
(Docket Entry # 55-1, p.
When Dr. Churchville asked plaintiff what he was unable to
do as a result of his right elbow or right knee, plaintiff was
unable to cite any specific thing but continued to indicate that
he had a “high ‘level of pain.’”
(Docket Entry # 55-1, pp. 4,
21).
Dr. Churchville noted that plaintiff had a normal gait.
(Docket Entry # 55-1, p. 21).
The knee had a well-healed scar
with some degenerative deformity.
(Docket Entry # 55-1, p. 21).
Dr. Churchville additionally noted that plaintiff’s right elbow
had a “slight flexion deformity” but no swelling.
# 55-1, p. 21).
(Docket Entry
He also noted there was an “indurated mobile
nodule 6-7 mm medial to olecranon process” and that plaintiff
retracted his arm “in severe pain to light palpation of nodule.”
(Docket Entry # 55-1, p. 21).
Plaintiff was provided an
analgesic balm for his elbow and knee as needed.
# 55-1, pp. 4, 21).
(Docket Entry
Additionally, Dr. Churchville filled out a
special needs notification form authorizing a six inch ace
bandage for plaintiff’s right knee.
22).
Dr. Churchville ordered that x-rays be repeated at
13
(Docket Entry # 55-1, p.
plaintiff’s request and that he have a follow-up appointment in
two to three weeks.
(Docket Entry # 55-1, p. 21).
X-rays taken
on May 30, 2013, indicated that plaintiff had “moderate
osteoarthritis” in his right elbow and that there was an “old
bone chip dorsal to the olecranon process.”
(Docket Entry # 55-
1, p. 23).
On June 6, 2013, medical staff observed plaintiff carrying
two cases of printer paper.
(Docket Entry # 55-1, p. 36).
On
June 13, 2013, medical staff contacted plaintiff’s “outside
orthopedic doctor who indicated that” plaintiff had the right
ACL revision on April 12, 2012, and only needed an ACL brace for
the five weeks after the surgery.
36).
(Docket Entry # 55-1, pp. 4,
Hall stated that she will refer plaintiff again to the
onsite orthopedic specialist as plaintiff is “continually
reporting to medical staff that he needs a new knee brace or the
present knee brace repaired.”
(Docket Entry # 55-1, p. 36).
On June 19, 2013, an orthopedic physician examined
plaintiff at the orthopedic clinic.
4, 20).
(Docket Entry # 55-1, pp.
Clinic notes reflect that plaintiff came to the
appointment with “a metal knee brace in poor repair” on his
right knee, an elastic knee support underneath it, and a Velcro
strap and a “thermal shirt” over the brace.
1, p. 24).
(Docket Entry # 55-
The orthopedic specialist suggested repairing the
brace and medical staff “will try to obtain more pieces of
14
Velcro to wrap around [the] brace to secure it.”
# 55-1, p. 24).
(Docket Entry
The physician prescribed Feldene for pain and
instructed plaintiff to perform Theraband exercises to
strengthen his hamstring muscles.
24).
(Docket Entry # 55-1, pp. 4,
The orthopedic physician additionally noted that plaintiff
was “advised repeatedly” not to jog or run, as it was deemed
unsafe given his multiple ACL repairs.
(Docket Entry # 55-1,
pp. 4, 24).
On July 3, 2013, plaintiff contacted the medical staff
stating that the Velcro straps for his knee brace did not
properly fit.
(Docket Entry # 55-1, p. 36).
Plaintiff
additionally expressed that he believed the hamstring exercises
that he was directed to perform were not correct as he had
previously used machines for his knee.
36).
(Docket Entry # 55-1, p.
Hall noted that upon walking into the appointment
plaintiff had “socks tied together and wrapped around” his knee
brace.
(Docket Entry # 55-1, p. 36).
Hall “properly secured”
the Velcro straps and reviewed it with plaintiff.
# 55-1, p. 36).
(Docket Entry
She also reinforced the hamstring exercises
prescribed by the orthopedic physician and plaintiff “agreed to
[the] plan.”
(Docket Entry # 55-1, p. 36).
On August 29, 2013, plaintiff had another follow-up
appointment with Dr. Churchville.
(Docket Entry # 55-1, p. 36).
Dr. Churchville noted that plaintiff requested to be released to
15
work.
Dr. Churchville determined that plaintiff should continue
his current therapy and that he would inquire about plaintiff’s
work status.
(Docket Entry # 55-1, p. 36).
On December 6,
2013, Dr. Churchville again evaluated plaintiff.
Plaintiff
reported that he felt “well,” that his elbow and knee were
“helped with supports,” and that he was working out in the
gymnasium.
(Docket Entry # 55-1, pp. 5, 37).
At this
appointment, Dr. Churchville discontinued plaintiff’s
prescription for Feldene at his request.
(Docket Entry # 55-1,
p. 37).
On April 17, 2014, plaintiff “pulled his right” lower leg
after he slipped while working.
37).
(Docket Entry # 55-1, pp. 5,
Yelena Yakirevich, a licensed practical nurse at ECCF,
described plaintiff’s lower right leg as “visibly swollen.”
Accordingly, she instructed plaintiff to rest with his right leg
elevated and that plaintiff be given ice, Tylenol and crutches.
(Docket Entry # 55-1, p. 37).
A special needs form was
completed giving plaintiff a lower bunk.
pp. 5, 29).
(Docket Entry # 55-1,
On April 30, 2014, plaintiff reported to medical
staff that at work he had helped move “heavy boulders.”
Entry # 55-1, pp. 5, 37).
(Docket
Hall stated that as of June 2015,
plaintiff had “not requested medical care for his knee” in “over
a year” and was currently “on work release . . . working as a
roofer.”
(Docket Entry # 55-1, p. 5).
16
DISCUSSION
Defendants seek summary judgment because:
(1) plaintiff
fails to prove that defendants acted with deliberate
indifference in violation of the Eighth Amendment; and (2) there
is no respondeat superior liability under section 1983.
(Docket
Entry ## 52, 55).
I.
Eighth Amendment Claim
In order to succeed in an Eighth Amendment claim based on
denied or inadequate medical care, a prisoner must satisfy:
“(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, 82 (1st Cir. 2014), cert.
denied, 135 S.Ct. 2059 (2015); See Leavitt v. Correctional
Medical Services, Inc., 645 F.3d 484, 497 (1st Cir. 2011).
A medical need is objectively serious when it is
“‘diagnosed by a physician as mandating treatment, or . . . so
obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.’”
Mahan v. Plymouth County
House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995) (citing
Gaudreault v. Municipality of Salem Mass., 923 F.2d 203, 208 (1st
Cir. 1990)).
There must be a “substantial risk of serious harm”
if the inmate “is not adequately treated.”
221 F.Supp.2d 156, 160 (D.Mass. 2002).
17
Kosilek v. Maloney,
The standard for
adequate treatment “is based on an individualized assessment of
an inmate’s medical needs in light of relevant medical
considerations.
Courts must evaluate whether the care being
provided is minimally adequate, but should defer to the
considered judgment of prison officials in choosing between
different forms of adequate medical care.”
Soneeya v. Spencer,
851 F. Supp. 2d 228, 242 (D.Mass. 2012).
“Deliberate indifference means that ‘a prison official
subjectively ‘‘must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”’”
Ruiz-Rosa v.
Rullan, 485 F.3d at 156; accord Farmer v. Brennan, 511 U.S. 825,
837 (1994).
Negligent care or “even malpractice does not give
rise to a constitutional claim, rather, the treatment provided
must have been so inadequate as ‘to constitute “an unnecessary
and wanton infliction of pain’’ or to be ‘‘repugnant to the
conscience of mankind.’’’’’
Leavitt v. Correctional Medical
Services, Inc., 645 F.3d at 497 (quoting Estelle v. Gamble, 429
U.S. 97, 105-06 (1976)) (citation omitted); see also Kosilek v.
Spencer, 774 F.3d at 87 n.9 (‘‘medical imprudence---without more--is insufficient to establish an Eighth Amendment violation’’).
A prison official is not deliberately indifferent if he
responds ‘‘reasonably to the risk.’’
County, 307 F.3d 1, 8 (1st Cir. 2002).
Burrell v. Hampshire
A disagreement about an
appropriate course of treatment therefore does not amount to
18
deliberate indifference.
See Feeney v. Correctional Medical
Services, Inc., 464 F.3d 158, 162 (1st Cir. 2006) (‘‘when a
plaintiff’s ‘allegations simply reflect a disagreement on the
appropriate course of treatment, such a dispute with an exercise
of professional judgment may present a colorable claim of
negligence, but it falls short of alleging a constitutional
violation’’’) (internal brackets omitted).
Hence, courts
consistently refuse ‘‘‘to create constitutional claims out of
disagreements between prisoners and doctors about the proper
course of a prisoner’s medical treatment, or to conclude that
simple medical malpractice rises to the level of cruel and
unusual punishment.’’’
Kosilek v. Spencer, 774 F.3d at 83
(quoting Watson v. Caton, 984 F.2d at 537, 540 (1st Cir. 1993), in
parenthetical).
Conversely, deliberate indifference may exist
‘‘‘by the denial of needed care as punishment and by decisions
about medical care made recklessly with ‘‘actual knowledge of
impending harm, easily preventable.’’’’’
Leavitt v. Correctional
Medical Services, Inc., 645 F.3d at 497 (quoting Ruiz-Rosa v.
Rullan, 485 F.3d at 156).
A.
NaphCare
Plaintiff contends that NaphCare refused to provide him
adequate medical care, including physical therapy, for his knee
and elbow.
(Docket Entry # 9, p. 4).
He further submits that
NaphCare denied him “follow-up care” (Docket Entry # 9, p. 4)
and seeks a second opinion from a specialist at an outside
hospital.
(Docket Entry # 60, p. 2).
19
He also contends that
medical staff improperly removed his knee brace thereby causing
swelling and additional pain.
(Docket Entry ## 9, 57).
also showed swelling in his right elbow.
X-rays
(Docket Entry # 57).
NaphCare seeks summary judgment because the undisputed
material facts demonstrate it was not deliberately indifferent
to plaintiff’s serious medical needs in violation of the Eighth
Amendment.
(Docket Entry # 55).
While plaintiff has the right
to medical care while in state custody, he does not have the
unencumbered right to the treatment of his choice.
See Kosilek
v. Spencer, 774 F.3d at 96.
Here, plaintiff did not have an objectively serious medical
need with respect to his elbow and knee.
He was observed
multiple times by ECCF staff engaging in physical labor and
fully utilizing the knee and elbow “without difficulty” (Docket
Entry # 55-1, p. 33).
See Gaudreault v. Municipality of Salem
Mass., 923 F.2d at 208.
Notwithstanding the prescribed
Theraband exercises, lack of physical therapy does not provide a
“substantial risk of serious harm.”
Kosilek v. Maloney, 221
F.Supp.2d at 160.
As to deliberate indifference, plaintiff oftentimes
disagreed with NaphCare staff over the proper course of
treatment for his knee and elbow injuries.
The failure of
NaphCare to provide additional care and therapy to plaintiff,
however, does not rise to the level of deliberate indifference
20
particularly in light of the repeated and multiple examinations
of plaintiff and adequate medical treatment he received.
See
Feeney v. Correctional Medical Services, Inc., 464 F.3d at 162.
Plaintiff’s medical history was taken into consideration when
formulating his course of treatment (Docket Entry # 55-1, pp. 4,
6-11, 36, 50-53) and NaphCare has shown through extensive
documentation that it provided plaintiff with adequate care
relative to the objective severity of plaintiff’s complaints.
See Soneeya v. Spencer, 851 F.Supp.2d at 242.
Throughout
plaintiff’s incarceration, NaphCare staff closely monitored his
chronic pain and orthopedic conditions.
In fact, NaphCare
continually provided plaintiff with medical care, including
sending him to specialists and scheduling follow-up visits for
his various ailments. (Docket Entry # 55-1, pp. 17, 21, 24, 32,
33).
Plaintiff’s disagreements about the treatment plans do not
give rise to a violation of his Eighth Amendment rights.
id.
See
A disagreement or difference of opinion about whether to
treat the elbow and knee injuries with prolonged use of support
devices, MRI or physical therapy does not rise to the level of
medical indifference.
See id.
While prisons are required to follow the law per the Eighth
Amendment’s standards, “The Constitution ‘does not mandate
comfortable prisons,’” and thus plaintiff is not guaranteed a
preference of medical care, even when his views run contrary to
21
those of medical staff.
Leavitt v. Correctional Medical
Services, Inc., 645 F.3d at 497 (quoting Farmer v. Brennan, 511
U.S. at 832).
Plaintiff had been seeking treatment for a
history of chronic pain prior to his admission at ECCF.
Entry # 55-1, pp. 6, 7).
(Docket
It is reasonable for medical staff to
use their professional discretion to find suitable alternative
methods of care, particularly given the extenuating factors of
plaintiff’s chronic pain.
90.
See Kosilek v. Spencer, 774 F.3d at
Overall, the actions of NaphCare and its medical staff show
that they were not deliberately indifferent in their care of
plaintiff.
Burrell v. Hampshire County, 307 F.3d at 8 (“even if
they are aware, they cannot be deliberately indifferent if they
responded reasonably to the risk”).
Here, plaintiff complains of “no medical help” for his right
elbow and that his knee “brace was removed causing swelling” as
well as pain.
(Docket Entry # 57, p. 3).
The record, however,
belies any assertion that plaintiff was given no medical help.
The existence and content of the detailed medical records on
plaintiff’s ongoing condition (Docket Entry # 55-1) establishes
that neither NaphCare nor its staff was deliberately indifferent
to any medical needs, let alone serious medical needs of
plaintiff.
Plaintiff was seen by multiple medical professionals
for the treatment of his injuries.
4).
He received x-rays of his right elbow on August 7, 2012, and
22
(Docket Entry # 57, pp. 3,
May 30, 2013.
(Docket Entry # 55-1, pp. 3-4, 12, 23).
He
additionally received an x-ray of his right knee on November 29,
2012.
(Docket Entry # 55-1, pp. 3, 18).
Plaintiff was treated
by Dr. Churchville five times during his incarceration on
November 16, 2012, December 17, 2012, May 28, 2013, August 29,
2013, and December 6, 2013.
25, 28, 33).
(Docket Entry # 55-1, pp. 16, 20,
Although plaintiff alleges inadequate medical care
and requests an appointment with a medical specialist at an
“outside hospital” (Docket Entry # 60, p. 2), he was treated by
the orthopedic clinic three times on November 21, 2012, December
12, 2012, and June 19, 2013.
(Docket Entry # 55-1, pp. 17, 24).
Furthermore, plaintiff was treated by a nurse practitioner more
than 11 times regarding his knee and elbow (Docket Entry # 55-1,
pp. 19, 30-32, 34-36) and also saw various registered nurses and
other medical staff regularly throughout 2012 and 2013.
Plaintiff was treated for his pain in the form of Naprosyn,
Elavil, Gabapentin, Tylenol, analgesic balm and corticosteroid
injections.
(Docket Entry # 55-1, pp. 15-17, 21, 32).
He was
also given ace wraps, a cane, elastic supports for both his elbow
and knee and replacement Velcro straps for his leg brace. (Docket
Entry # 55-1, pp. 16, 32, 36).
Moreover, he received
comprehensive care for his knee injuries (Docket Entry # 55-1,
pp. 18, 21-22, 24, 32-33, 36), including physical therapy in the
form of prescribed Theraband exercises.
23
(Docket Entry # 55-1,
pp. 24, 36).
Given the continual attention shown to these
medical needs by NaphCare, there was no deliberate indifference
by NaphCare medical staff.
Leavitt v. Correctional Medical
Services, Inc., 645 F.3d at 497.
Plaintiff also alleges he received inadequate medical care
because his knee brace was taken away.
(Docket Entry # 9, p. 3).
No documentation put forth by NaphCare or plaintiff suggest that
any member of NaphCare staff was responsible for the removal of
his brace.
Rather, on or about September 11, 2012, Officer V.
Valano took the knee brace.
Plaintiff was seen with the brace,
however, less than one month later on October 5, 2012.
Entry # 55-1, p. 32) (Docket Entry # 59, p.p. 4-5).
(Docket
Even if
NaphCare was involved in taking the knee brace on September 11,
2012, the knee brace was returned on October 5, 2012.
Entry 59, pp. 1, 4).
(Docket
On the same date, Hall evaluated plaintiff
and completed a special needs form to procure plaintiff an
elastic knee support as well as two “ace wraps” and a cane.
(Docket Entry # 55-1, pp. 3, 14).
She also provided or
prescribed Naprosyn PM and Elavil for plaintiff.
Such conduct
belies any deliberate indifference to plaintiff’s medical needs,
including his need for a knee brace.1
1
Similar reasons establish that neither Marks nor Cousins
denied or provided inadequate medical care to plaintiff in
violation of the Eighth Amendment, as argued by Marks and
Cousins. (Docket Entry # 52, p. 5).
24
Plaintiff next contends that his x-rays showed “fracture
[and] chips” and that a “doctor said a mistake was made in
read[ing] ex-ray [sic] results.”
(Docket Entry # 57, pp. 3, 4).
Plaintiff’s residual injuries from trauma pre-incarceration are
visible on imaging taken during his stay at ECCF (Docket Entry #
55-1, p. 23) and also noted in his medical record prior to his
incarceration at ECCF.
(Docket Entry # 55-1, pp. 50-51).
X-rays
taken during plaintiff’s incarceration at ECCF did not show any
new fractures or any indication that there was an error in
reading the x-rays.
(Docket Entry # 55-1).
Even if medical
staff did make an error in reading plaintiff’s x-rays, such
actions amount to negligence, at most, and do not constitute
deliberate indifference in violation of plaintiff’s Eighth
Amendment rights.
Indeed, plaintiff received multiple visits
with medical staff, x-rays, medications and analgesics to
address any elbow and knee pain throughout the relevant time
period.
See Estelle v. Gamble, 429 U.S. at 107.
Moreover,
NaphCare had no obligation under the Eighth Amendment to provide
plaintiff with the MRIs he requested for either of his injuries.
Id.; Feeney v. Correctional Medical Services, Inc., 464 F.3d at
162.
In sum, plaintiff fails to show that NaphCare staff was
deliberately indifferent to his serious medical needs or that
the care it provided was inadequate, particularly in light of
25
the documented frequency and quality of care during his
incarceration at ECCF.
Plaintiff has not put forth sufficient
evidence to withstand summary judgment on the Eighth Amendment
claim against NaphCare.2
B.
Cousins and Marks
Plaintiff maintains that he fell in the shower at ECCF
causing injury to his elbow and that the fall was caused by
Cousins and Marks’ deliberate indifference.
Plaintiff further
claims that taking the knee brace on September 11, 2012, violated
the Eighth Amendment and that overall Marks and Cousins denied or
provided inadequate medical care.
(Docket Entry # 9, pp. 2-4)
(Docket Entry # 59, p. 5).
Cousins and Marks contend that plaintiff has not proven that
either of them were deliberately indifferent to plaintiff’s
medical needs.
(Docket Entry # 52).
They also submit that, as
supervisors, they lacked any direct involvement or knowledge of
plaintiff’s medical care.
Turning to the deliberate indifference argument and having
set forth the applicable law, Cousins and Marks were not
deliberately indifferent to the reasonable risk because they
were unaware of the events.
Burrell v. Hampshire County, 307
2
Accordingly, it is not necessary to address NaphCare’s
alternative argument for summary judgment based upon respondeat
superior.
26
F.3d at 8.
Nothing put forth by plaintiff counters the
affidavits by Cousins and Marks stating that they were unaware of
the alleged actions taken by ECCF officers with regards to both
the alleged fall as well as the taking of plaintiff’s knee brace.
Additionally, the facts do not constitute an Eighth
Amendment complaint as there was no indication that Cousins’ or
Marks’ actions produced an “unnecessary and wanton infliction of
pain” on plaintiff.
Leavitt v. Correctional Medical Services,
Inc., 645 F.3d at 497.
Plaintiff’s knee brace was returned on
October 5, 2012, less than a month after it was taken.
At the
same time, Hall completed a form requesting the elastic knee
support for plaintiff.
She also provided or prescribed
plaintiff Elavil and Naprosyn PM on October 5, 2012.
Hall’s
notes also point out the lack of documentation for a hinged
brace inasmuch as the knee surgery took place in April 2012.
Thus, during his incarceration, Hall provided plaintiff
with a substitute for the knee brace in the form of the elastic
knee support and ace wraps.
(Docket Entry # 55-1, p. 32).
X-
rays of plaintiff’s elbow did not show a fracture from the fall
in the shower at ECCF on July 19, 2012.
p. 12).
(Docket Entry # 55-1,
More to the point, neither Cousins nor Marks knew about
the July 2012 fall or the September 2012 confiscation of the
knee brace.
27
Cousins, the Sheriff of Essex County, and Marks,
Superintendent of ECCF, also acted reasonably in response to the
risk factors facing the ECCF population and the need for
competent medical care.
F.3d at 7.
See Burrell v. Hampshire County, 307
NaphCare was an accredited company (Docket Entry #
55-2, p. 6) contracted specifically by Cousins (Docket Entry #
55-2, p. 15) to provide medical care at the facility for the time
period in question.
There was a procedure in place that allowed
inmates to request medical attention and receive appointments and
appropriate care for their ailments.
4).
(Docket Entry # 55-1, p.
Plaintiff explicitly availed himself of the procedure on
multiple occasions and the medical staff at ECCF responded
appropriately.
As discussed with respect to the Eighth Amendment claim
against NaphCare, plaintiff repeatedly saw medical personnel
while at ECCF.
They treated both his elbow and his knee.
Such
treatment included x-rays and multiple visits to an orthopedic
physician.
Finally and in the alternative, plaintiff did not
have a serious medical need for the knee brace.
Plaintiff’s
need for a knee brace ended five weeks after the April 2012
surgery, according to his orthopedic doctor.
55-1, p. 36).
(Docket Entry #
He did not enter ECCF until July 2012.
In sum, the undisputed material facts also showing that the
injury was not the result of Cousins’ or Marks’ actions,
28
plaintiff is unable to demonstrate that Cousins or Marks violated
his Eighth Amendment rights.
II.
Respondeat Superior
In the alternative, Cousins and Marks maintain there is no
affirmative link between their conduct and the subordinate ECCF
officers.
Accordingly, because respondeat superior does not
establish liability under section 1983, they submit they are
entitled to summary judgment.
Supervisory liability is warranted under section 1983 where
a supervisor is “‘a primary violator or direct participant in
the rights-violating incident,’” or where “‘a responsible
official supervises, trains, or hires a subordinate with
deliberate indifference toward the possibility that deficient
performance of the task eventually may contribute to a civil
rights deprivation.’”
49 (1st Cir. 2009).
Sanchez v. Pereira-Castillo, 590 F.3d 31,
Overall, there must be “‘an affirmative
link, whether through direct participation or through conduct
that amounts to condonation or tacit authorization.’”
Id.
“[P]roof of mere negligence, without more, is inadequate to
ground supervisory liability.”
Maldonado-Denis v. Castillo-
Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994).
A supervisor is not
“‘liable for the constitutional violations committed by his or
her subordinates, unless there is an “affirmative link between
the behavior of a subordinate and the action or inaction of his
29
supervisor such that the supervisor’s conduct led inexorably to
the constitutional violation.”’”
Feliciano-Hernandez v.
Pereira-Castillo, 663 F.3d 527, 533-534 (1st Cir. 2011) (quoting
Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011),
with internal ellipses omitted).
The supervisor’s action or
inaction must be affirmatively linked to the behavior of the
subordinates “in the sense that it could be characterized as a
supervisory encouragement, condonation or acquiescence or gross
negligence amounting to deliberate indifference.”
Estate of
Bennett v. Wainwright, 548 F.3d 155, 177 (1st Cir. 2008).
Moreover, “‘the plaintiff must show that the official had actual
or constructive notice of the constitutional violation.’”
Feliciano-Hernandez v. Pereira-Castillo, 663 F.3d at 533-34
(quoting Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 768
(1st Cir. 2010)).
Therefore, unless Cousins and Marks actions
are directly connected to that of the offending employees’ they
cannot be held liable for an Eighth Amendment violation.
As previously discussed, neither Cousins nor Marks had any
knowledge of:
(1) any confiscation of plaintiff’s knee brace by
subordinates at ECCF; (2) any inadequate or denial of medical
care to plaintiff by any subordinate staff member at ECCF; or (3)
the July 19, 2012 fall in the shower caused by any subordinate at
ECCF.
The necessary actual or constructive notice is therefore
lacking.
30
With respect to the presence of an affirmative link, Cousins
and Marks are also not the primary violators or direct
participants in the incident that led to the fall in the shower
or the confiscation of plaintiff’s knee brace and subsequent
medical treatment.
Indeed, plaintiff puts forth no evidence
showing that Cousins or Marks in any way authorized or encouraged
staff members to take any action with regards to plaintiff.
Sanchez v. Pereira-Castillo, 590 F.3d at 49.
See
Nor is there any
evidence sufficient to withstand summary judgment that Cousins
or Marks supervised, trained or hired subordinates with
deliberate indifference toward the possibility of their
providing deficient medical care to the ECCF inmate population
such as by confiscating required and necessary medical devices
for a serious medical need or condoning or encouraging medical
staff to overlook x-rays evidencing a serious medical need.
Thus, even if the officers took the knee brace or ECCF
staff ignored x-rays showing a fracture or excessive swelling
and such conduct rose to the level of an Eighth Amendment
violation, there is either no evidence or insufficient evidence
as to how that set of facts is affirmatively linked to the
actions of Cousins or Marks.
as supervisors.
Accordingly, they are not liable
See Sanchez v. Pereira-Castillo, 590 F.3d at
49.
31
In conclusion, the failure to establish any affirmative
link between Cousins and Marks and the conduct of any subordinate
at ECCF in denying or rendering inadequate medical care to
plaintiff provides an alternative basis for summary judgment on
the Eighth Amendment claim against them.
Likewise, there is no
affirmative link between Cousins and Marks and the confiscation
of plaintiff’s knee brace and/or fall in the shower.
Finally,
NaphCare as well as Cousins and Marks are entitled to summary
judgment because of the absence of any deliberate indifference to
plaintiff’s serious medical needs within the meaning of the
Eighth Amendment.
CONCLUSION
In accordance with the foregoing discussion, NaphCare’s
motion for summary judgment (Docket Entry # 54) and Cousins and
Marks motion for summary judgment (Docket Entry # 51) are
ALLOWED.
__/s/ Marianne B. Bowler______
MARIANNE B. BOWLER
United States Magistrate Judge
32
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