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 139 Filed 07/05/16 Page 1 of 5

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
________________________
DANA E. LOPES,
)
Plaintiff,
)
)
v.
)
CIVIL ACTION NO. 1:14-cv-10679-NMG
)
MPCH, et. al.,
)
Defendants.
)
DEFENDANTS PAUL CARATAZZOLA, PATRICIA DAVENPORT-MELLO, AND
MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE’S
CONCISE STATEMENT OF MATERIAL FACTS
Pursuant to Local Rule 56.1, Defendants Paul Caratazzola, LICSW, Patricia DavenportMello, RN and Massachusetts Partnership for Correctional Healthcare (“Defendants”) offer the
following statement of material facts in support of their Motion for Summary Judgment:
Parties
1.

Plaintiff Dana Lopes (“Plaintiff”) is inmate presently incarcerated with the
Massachusetts Department of Correction (“DOC”) at MCI-Shirley. (Exhibit A, Affidavit
of Maria Angeles, MD, ¶4). At the time of the filing of his Complaint, Plaintiff was
incarcerated by the DOC at Old Colony Correctional Center (“OCCC”) in Bridgewater,
MA. (Compl. ¶1; Exh. A, ¶4).

2.

Defendant Massachusetts Partnership for Correctional Healthcare, LLC (“MPCH”) was
incorporated in the Commonwealth of Massachusetts, on October 16, 2012, as a
Domestic Limited Liability Company, with an identification number of 001090142.
(Exhibit B, Affidavit of Dana P. Neitlich, ¶3). Presently, MPCH’s regional headquarters
are located at 110 Turnpike Rd, Westborough, MA 01581. (Exh. B, ¶1).

3.

Since July 1, 2013, MPCH has been contracted by the DOC to provide certain medical
and mental health services to inmates within the DOC’s care and custody, including those
housed at OCCC and Massachusetts Correctional Institution – Shirley (“MCI-Shirley”).
(Exh. A, ¶2; Exh. B, ¶4; Exhibit C, Affidavit of Paul Caratazzola, LICSW, ¶2; Exhibit
D, Affidavit of Patricia Davenport-Mello, RN, ¶2; Exhibit E, Affidavit of Linda Albohn,
LPN, ¶2).

4.

MPCH is a privately owned company, and is not a subsidiary and/or agent of the
Commonwealth of Massachusetts or any other public agency. (Exh. B, ¶5). MPCH is
responsible for hiring, supervising, training, and paying the personnel it employs within
DOC facilities. (Exh. B, ¶5).

Case 1:14-cv-10679-NMG Document 139 Filed 07/05/16 Page 2 of 5

5.

On July 1, 2013, MPCH hired Defendant Paul Caratazzola, LICSW to be the Health
Service Administrator (“HSA") at OCCC. (Exh. B, ¶6; Exh. C, ¶3). Defendant
Caratazzola served in this position from July 1, 2013 to September 6, 2015, when he
began his present position as MPCH’s Hospital Administrator at Bridgewater State
Hospital (“BSH”). (Exh. C, ¶¶1,3).

6.

Prior to being hired as the HSA at OCCC, Defendant Caratazzola was employed by
MHM Services, Inc. (“MHM”), from 2007 to 2013, as Chief of Social Work and Deputy
Hospital Administrator at BSH. (Exh. C, ¶4). MHM is a privately owned company,
affiliated with MPCH, which was contracted by the DOC to provide medical and mental
health services to patients and inmates at BSH from sometime in 2007 to July 1, 2013,
when MPCH assumed control of the contract. (Exh. C, ¶4; Exh. D, ¶3).

7.

In his role as HSA at OCCC, Defendant Caratazzola did not provide any direct medical
care to inmates, including the Plaintiff. (Exh. C, ¶¶7-9). Defendant Caratazzola’s
involvement with the Plaintiff was limited to investigating and responding to Plaintiffs’
formal and informal grievances regarding his medically related complaints. (Exh. C, ¶9).
Defendant Caratazzola never made any recommendations regarding what medications
and medical procedures Plaintiff should and should not receive. (Exh. C, ¶9).

8.

On July 1, 2013, MPCH hired Patricia Davenport-Mello, RN to her present position as
the Director of Nursing at OCCC. (Exh. B, ¶7; Exh. D, ¶1).

9.

Prior to being hired as the Director of Nursing at OCCC, Defendant Davenport-Mello
was employed by MHM as a Staff Nurse and Nurse Manager at BSH from 2007 to 2013.
(Exh. D, ¶3).

10.

Defendants Caratazzola and Davenport-Mello have never been employed by the DOC,
nor have they ever been supervised by or collected a salary from the DOC. (Exh. C, ¶5;
Exh. D, ¶4).

11.

From 2007 to the present, both Defendants Caratazzola and Davenport-Mello have been
paid by MHM. (Exh. C, ¶6; Exh. D, ¶5). During this same period of time, both of these
defendants have been supervised by and have reported to MHM (2007-2013) and MPCH
(2013-present) management. (Exh. C, ¶6; Exh. D, ¶5). MPCH and MHM have also been
responsible for such things as scheduling Defendants Caratazzola and Davenport-Mello’s
work hours, reviewing their job performances, and directing their day-to-day job tasks.
(Exh. C, ¶6; Exh. D, ¶5).

12.

MPCH did not become Defendant Barbara Berg, LPN’s employer until July 1, 2013.
(Exh. B, ¶¶8-9). Prior to this date, Defendant Berg was employed by Defendant UMass
Correctional Health (“UMCH”) at OCCC. (Exh. B, ¶¶8-9).

2

Case 1:14-cv-10679-NMG Document 139 Filed 07/05/16 Page 3 of 5

Medical Treatment
13.

When MPCH began providing care to Plaintiff, in July 2013, Mr. Lopes was suffering
from Chronic Hepatitis C with cirrhosis. (Exh. A, ¶5).

14.

Plaintiff has a specific viral mutation, which predicts resistance to protease inhibitors
(“PI”) Boceprevir and Telaprevir. (Exh. A, ¶6). On July 23, 2014, Mr. Lopes underwent
testing at Boston Medical Center, where an attending physician in the Gastroenterology
Department recommended that Mr. Lopes avoid PIs in regards to treatment of his
Hepatitis C Virus (“HCV”). (Exh. A, ¶6).

15.

Since MPCH began caring for the Plaintiff on July 1, 2013, Plaintiff’s condition has been
monitored with multiple lab tests, diagnostic procedures, and chronic disease
consultations with medical professionals outside of MPCH, while MPCH medical staff
waited for the U.S. Food and Drug Administration (“FDA”) to approve a new form of
treatment. (Exh. A, ¶7).

16.

In October of 2014, the FDA approved the use of Harvoni to treat HCV. (Exh. A, ¶8).

17.

On January 21, 2015, Plaintiff was seen at the Lemuel Shattuck Hospital’s (“LSH”) GI
Clinic, for new treatment options, where it was recommended that Plaintiff be started on
a twelve week trial of Harvoni. (Exh. A, ¶9).

18.

Per the recommendation of the LSH GI Clinic, MPCH medical staff approved Plaintiff to
begin treatment with Harvoni. (Exh. A, ¶10). As a result, Plaintiff was placed on a
twelve week trial of Harvoni, which began on March 2, 2015 and ended on May 24,
2015. (Exh. A, ¶10).

19.

The Harvoni treatment was successful, as subsequent lab tests confirmed that the HCV
was no longer present in Plaintiff’s blood. (Exh. A, ¶¶11-12).

20.

Since Plaintiff’s successful Harvoni treatment, MPCH staff have continued to monitor
Plaintiff for any signs of the HCV returning. (Exh. A, ¶¶12-13). MPCH has also
continued to provide the Plaintiff with care for additional medical conditions unrelated to
the HCV. (Exh. A, ¶13).

21.

On May 4, 2016, Plaintiff informed MPCH that he was refusing to undergo any further
gastrointestinal evaluations and follow-up appointments for liver disease. (Exh. A, ¶14).
On this same date, Plaintiff signed a Release of Responsibility form acknowledging that
he understood the risks associated with refusing such treatment. (Exh. A, ¶14).

22.

Plaintiff’s present Primary Care Clinician, Maria Angeles, MD, will continue to offer and
provide Plaintiff with appropriate medical treatment and monitoring for liver disease, if
and when Plaintiff permits MPCH medical staff to do so. (Exh. A, ¶¶1,3-4,15).

3

Case 1:14-cv-10679-NMG Document 139 Filed 07/05/16 Page 4 of 5

Grievances
23.

Inmates at OCCC are required to follow a three-step process if they have a complaint
about the medical care they are receiving. (Exh. E, ¶4). This three-step process is
outlined in MPCH’s Clinical Grievance Mechanism – Policy 12.00. (Exh. E, ¶4). The
first step is an informal complaint, which consists of the inmate talking to the HSA. (Exh.
E, ¶4). If the inmate is not satisfied with the response he receives at step one, he can
advance to step two, which involves the inmate writing out his complaint on an “Inmate
Medical and Mental Health Grievance & Appeal Form,” and this grievance is responded
to by the HSA at OCCC. (Exh. E, ¶4). If an inmate is not satisfied with the response he
receives to his grievance, then, he can move on to step three. (Exh. E, ¶4). Step three
consists of an inmate filing an appeal to the MPCH Grievance and Appeal Coordinator,
by mailing his appeal to MPCH’s headquarters. (Exh. E, ¶4). The decision of the MPCH
Grievance and Appeal Coordinator is final. (Exh. E, ¶4).

24.

From July 1, 2013 to the date Plaintiff filed his Complaint (February 24, 2014), Plaintiff
filed three distinct grievances, and no appeals. (Exh. E, ¶¶5-10). These grievances were:
a. On July 15, 2013, Plaintiff sent a grievance directly to UMCH, not MPCH, claiming
that UMCH had ignored his four prior requests to have his medical records released
to Prisoner Legal Services. (Exh. E, ¶6).
b. On July 30, 2013, Plaintiff filed a grievance with the HSA at OCCC, Defendant
Caratazzola, alleging that medical staff were refusing to renew an order for his skin
lotion. (Exh. E, ¶7). On August 1, 2013, Defendant Caratazzola responded to
Plaintiff with a letter stating, in part, “I met with the medical staff today and your skin
lotion is in the nurse’s station and you could [sic] pick it up at the next medication
line.” (Exh. E, ¶7). Defendant Caratazzola’s response included the statement, “If you
do not agree with this grievance response, you may pursue an appeal to the MPCH
Grievance and Appeal Coordinator.” (Exh. E, ¶7). Plaintiff did not appeal this
grievance response. (Exh. E, ¶10).
c. On November 29, 2013, Plaintiff filed a grievance, to the HSA at OCCC, regarding
the fact that “OCCC Doctor Julia Carson” kept telling him that he was going to an
outside medical center for treatment of his liver condition, but then he would “never
go anywhere.” (Exh. E, ¶8). On December 18, 2013, Defendant Caratazzola
responded to Inmate Lopes grievance with a response verifying that on December 12,
2013, Inmate Lopes had been transferred to the “U MA Memorial Hospital Liver
Clinic” for further testing of his liver condition. (Exh. E, ¶8). The response further
stated that Defendant Caratazzola had met with Dr. Carson to discuss Plaintiff’s
medical condition, and Dr. Carson would be scheduling a follow up appointment with
Plaintiff upon receipt of the results from the tests performed on December 12, 2013.
(Exh. E, ¶8). At the bottom of Defendant Caratazzola’s grievance response was the
statement, “An appeal must be filled out within 10 working days from receipt of the
decision by the HSA or designee. An inmate/patient may file an appeal directly with

4

Case 1:14-cv-10679-NMG Document 139 Filed 07/05/16 Page 5 of 5

the MPCH Grievance and Appeal Coordinator…” (Exh. E, ¶8). Plaintiff did not
appeal this grievance response. (Exh. E, ¶8).
25.

Prior to filing his Complaint in the instant matter, Plaintiff never appealed any of
Defendant Caratazzola’s grievance responses to MPCH’s Grievance and Appeals
Coordinator, which would have been required before Plaintiff could have been deemed to
have exhausted his administrative remedies regarding any of the issues alleged in these
grievances. (Exh. E, ¶¶4,10).

26.

Prior to filing his Complaint in the instant matter, Plaintiff never filed any grievances or
appeals with MPCH regarding his request for alternative medication to treat his Hepatitis
C. (Exh. E, ¶¶5-10).

27.

Prior to filing his Complaint in the instant matter, Plaintiff never filed any grievances or
appeals with MPCH alleging that any MPCH staff was retaliating against him in anyway.
(Exh. E, ¶¶5-10).
Respectfully submitted,
Defendants Paul Caratazzola, LICSW,
Patricia Davenport-Mello, RN and
Massachusetts Partnership for Correctional
Healthcare,
By their attorney,

Dated: July 5, 2016

/s/ George J. Puddister IV__________
George J. Puddister IV, BBO #689162
KOUFMAN & FREDERICK, LLP
145 Tremont Street, 4th Floor
Boston, MA 02111
[phone]
[e-mail]
CERTIFICATE OF SERVICE

I, George J. Puddister IV, certify that on this 5th 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/ George J. Puddister IV
George J. Puddister IV
I:\Clients\MHM\Lopes, Dana (Pro Se)\Summary Judgment\Concise Statement of Material Facts.docx

5

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 1 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 2 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 3 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 4 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 5 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 6 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 7 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 8 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 9 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 10 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 11 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 12 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 13 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 14 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 15 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 16 of 17

Case 1:14-cv-10679-NMG Document 139-1 Filed 07/05/16 Page 17 of 17

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 1 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 2 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 3 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 4 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 5 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 6 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 7 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 8 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 9 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 10 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 11 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 12 of 13

Case 1:14-cv-10679-NMG Document 139-2 Filed 07/05/16 Page 13 of 13

Case 1:14-cv-10679-NMG Document 139-3 Filed 07/05/16 Page 1 of 3

Case 1:14-cv-10679-NMG Document 139-3 Filed 07/05/16 Page 2 of 3

Case 1:14-cv-10679-NMG Document 139-3 Filed 07/05/16 Page 3 of 3

Case 1:14-cv-10679-NMG Document 139-4 Filed 07/05/16 Page 1 of 2

Case 1:14-cv-10679-NMG Document 139-4 Filed 07/05/16 Page 2 of 2

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 1 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 2 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 3 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 4 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 5 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 6 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 7 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 8 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 9 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 10 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 11 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 12 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 13 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 14 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 15 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 16 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 17 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 18 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 19 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 20 of 21

Case 1:14-cv-10679-NMG Document 139-5 Filed 07/05/16 Page 21 of 21