Lopes v. Riendeau et al

Filing 157

Judge Nathaniel M. Gorton: ORDER entered denying 152 Motion to Appoint Counsel. Lopes is granted 35 days from the date of this Memorandum and Order to file his response to the motions for summary judgment. The Clerk shall mail to Lopes a copy of this Memorandum and Order along with copies of defendants statements of material facts: Docket Nos. 139, 149 and 155. Reply papers, if any, shall be filed within 7 days of receipt of any response by Lopes. Failure of Plaintiff to file a response will result in the Court considering the motions on the record before it. (Attachments: # 1 Appendix Berg SOF 155, # 2 Appendix Nickl Riendeau SOF 149, # 3 Appendix MPCH SOF 139) (PSSA, 4)

Case 1:14-cv-10679-NMG Document 149 Filed 07/06/16 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF MASSACHUSETTS
DANA E. LOPES,
Plaintiff
v.

CIVIL ACTION
NO: 14-10679-NMG

GERALDINE RIENDEAU, RN, BARBARA BERG,
LPN, UMASS CORRECTIONAL HEALTH, PROGRAM
SERVICES, DYANA NICKL, SENIOR DIRECTOR OF
PROGRAM UMASS CORR. HEALTH, LAWRENCE
WEINER, ASSISTANT DEPUTY COMMISSIONER OF
CLINICAL SERVICES, SHAWNA NASUTI, NP, PAUL
CRATAZZOLA, LICSW, ADMINISTRATOR OF
HEALTH SERVICES, PAT-DAVENPORT MELLO,
HSA OF NURSING, MASSACHUSETTS
PARTNERSHIP OF CORRECTIONAL HEALTHCARE,
Defendants

LEAVE TO FILE
GRANTED
ON APRIL 20, 2016

DEFENDANTS’, DYANA NICKL AND GERALDINE RIENDEAU, STATEMENT OF
UNDISPUTED FACTS IN SUPPORT OF THEIR RENEWED MOTION FOR
SUMMARY JUDGMENT
The Defendants, Dyana Nickl and Geraldine Riendeau,1 submit the following Statement of
Material Facts, which are not in dispute, in support of their Renewed Motion for Summary
Judgment:
PARTIES
1.

The Plaintiff, Dana Lopes (“Mr. Lopes”), is a pro se inmate, incarcerated with the

Department of Corrections during the events alleged in the Complaint. See Exhibit 1, Complaint
at ¶1.

1

UMass Correctional Health was dismissed from this case on March 26, 2015 pursuant to the Motion to
Dismiss, Docket #26.

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Case 1:14-cv-10679-NMG Document 149 Filed 07/06/16 Page 2 of 5

2.

The Defendant, Geraldine Riendeau, R.N. (“Ms. Riendeau”), was formerly the

Health Service Administrator, working for UMass Medical Correctional Health during the events
alleged in the Complaint. See Exhibit 1, Complaint at ¶2.
3.

The Defendant, Dyana Nickl (“Ms. Nickl”), was formerly the UMass Correctional

Health Services Grievance and Appeals Coordinator at all relevant times. See Exhibit 1, Complaint
at ¶2.
PROCEDURAL HISTORY
4.

Plaintiff filed his Complaint against UMCH and other UMCH Defendants as well

as Massachusetts Partnership for Correctional Health (“MPCH)” and other MPCH Defendants on
February 24, 2014. See Exhibit 2, Docket #1.
5.

UMCH filed its Motion to Dismiss on July 15, 2014. See Exhibit 2, Docket #26.

6.

On March 2, 2015, Magistrate Judge Marianne B. Bowler recommended allowing

UMCH’s Motion to Dismiss. See Exhibit 2, Docket #60.
7.

Judge Nathaniel M. Gorton adopted Magistrate Judge Bowler’s recommendation.

See Exhibit 2, Docket #67.
8.

On June 18, 2015, the Defendants, Dyana Nickl and Geraldine Riendeau, R.N.,

filed their Motion for Summary Judgment with accompanying documents. See Exhibit 2, Docket
#99.
9.

On March 3, 2016, Magistrate Judge Marianne B. Bowler issued a Report and

Recommendation, recommending that the section 1983 claims and retaliation claims be
dismissed,2 but found a “fail[ure] to establish the absence of genuine issue of material fact” as to

2

The Court stated that it would not be necessary to address Ms. Nickl and Ms. Riendeau’s PLRA exhaustion
claims in light of these recommended dismissals.
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Massachusetts Tort Claims Act (“MTCA”). See Exhibit 11, Report and Recommendations, dated
March 3, 2016, pgs. 57-58.
10.

On March 17, 2016, Plaintiff’s filed an Objection to this Report and

Recommendation, arguing there is no issue of genuine material fact as to Ms. Nickl’s and
Ms. Riendeau’s immunity. See Exhibit 13, Defendants’ Objection to Magistrate Judge Marianne
B. Bowler’s Report and Recommendation.
11.

On March 30, 2016, District Judge Gorton adopted the Report and

Recommendation and overruled Ms. Nickl’s and Ms. Riendeau’s objections, solely as the
objections raised arguments not presented to the Magistrate Judge. See Exhibit 14, Judge Gorton’s
Order, dated March 30, 2016.
12.

On April 20, 2016, Judge Gorton allowed Defendant’s Motion for Leave to file a

Renewed Motion for Summary Judgment and subsequently allowed the Defendants to file until
July 6, 2016. See Exhibit 2, Docket #131 and #135.
RELEVANT FACTS
13.

Geraldine Riendeau, R.N.’s salary was paid by UMass Medical School (“UMMS”)

and was not dependent on the number of inmates she treated. See Exhibit 3, Affidavit of Geraldine
Riendeau.
14.

UMass Correctional Health (“UMCH”) set Ms. Riendeau’s hours, determined

which unit she worked on a given shift, and determined what patients she saw. See Exhibit 3,
Affidavit of Geraldine Riendeau.
15.

As an employee of UMMS, Ms. Riendeau was also able to participate in benefits

programs only offered to state employees, such as the state retirement program open only to state
employees. See Exhibit 3, Affidavit of Geraldine Riendeau.

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16.

As an employee of UMMS and as a registered nurse, Ms. Riendeau was bound by

the UMCH policies and procedures it has developed concerning the care provided to inmates. See
Exhibit 3, Affidavit of Geraldine Riendeau.
17.

Any caring Ms. Riendeau provided to Mr. Lopes was provided according to the

UMCH policies and procedures. See Exhibit 3, Affidavit of Geraldine Riendeau.
18.

As a nurse, Ms. Riendeau’s treatment of inmates was subject to oversight by the

supervising physician. See Exhibit 3, Affidavit of Geraldine Riendeau.
19.

All treatment decisions were subject to the final approval of the UMCH-appointed

Site Medical Director and the UMCH Program Medical Director. See Exhibit 3, Affidavit of
Geraldine Riendeau.
20.

As the Health Services Administrator (“HSA”), Ms. Riendeau was required to

follow the UMCH policies and procedures when handling medical grievances. See Exhibit 3,
Affidavit of Geraldine Riendeau.
21.

Dyana Nickl, the UMass Correctional Health Services Senior Director of

Operations, was under the control and direction of UMCH in handling the Inmate Medical Service
Grievance Mechanism. See Exhibit 4, Affidavit of Dyana Nickl.
22.

Ms. Nickl followed UMCH policies and procedures in handling Medical Service

Grievances. See Exhibit 4, Affidavit of Dyana Nickl.
23.

Ms. Nickl was employed by the UMass Medical School (“UMMS”) and received a

salary from UMMS for the services I provided through UMCH. See Exhibit 4, Affidavit of Dyana
Nickl.
24.

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UMCH determined Ms. Nickl’s schedule. See Exhibit 4, Affidavit of Dyana Nickl.

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Case 1:14-cv-10679-NMG Document 149 Filed 07/06/16 Page 5 of 5

25.

As an employee of UMMS, Ms. Nickl was also able to participate in benefits

programs only offered to state employees, such as the state retirement program that is open only
to state employees. See Exhibit 4, Affidavit of Dyana Nickl.

Respectfully submitted,
Defendants,
GERALDINE RIENDEAU AND DYANA
NICKL
By their attorneys,

/s/

Caroline M. Kelly

______________________________________
James A. Bello, BBO No. 633550
[e-mail]

Caroline M. Kelly, BBO No. 691673
[e-mail]

MORRISON MAHONEY LLP
250 Summer Street
Boston, MA 02210
[phone]

I hereby certify that on this 6th day of July
2016, a copy of the above pleading was filed
with the ECF System and sent electronically to
the registered participants as identified on the
Notice of Electronic Filing, with paper copies
being sent to those indicated as non-registered
participants.
/s/

Caroline M. Kelly

__________________________________

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