Lopes v. Riendeau et al

Filing 166

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. "In accordance with the forgoing, defendants motions for summary judgment (Docket Nos. 137 , 147 and 153 ) are ALLOWED."(Caruso, Stephanie)

United States District Court
District of Massachusetts

DANA E. LOPES,
Plaintiff,
v.
GERALDINE RIENDEAU, ET AL.,
Defendants.

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Civil Action No.
14-10679-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of a dispute concerning the treatment
of plaintiff’s Hepatitis C while he was an inmate in a
Massachusetts correctional facility.

Plaintiff claims that

1) healthcare personnel at Old Colony Correctional Center failed
to provide him with satisfactory medical care in violation of
the Massachusetts Tort Claims Act, M.G.L. c. 258, § 2, and
Article 26 of the Massachusetts Declaration of Rights and
2) retaliated against him when he reported the inadequate care.
Summary judgment motions filed by 1) Geraldine Riendeau and
Dyana Nickl, 2) the Massachusetts Partnership for Correctional
Healthcare (“the Partnership”), Paul Caratazzola and Patricia
Davenport-Mello and 3) Barbara Berg are currently pending before
the Court.

For the reasons that follow, the motions will be

allowed.

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I.

Factual Background
A. The Parties
When this law suit was filed, pro se plaintiff Dana E.

Lopes (“plaintiff”) was incarcerated at Old Colony Correctional
Center (“OCCC”) in Bridgewater, Massachusetts.

He is currently

incarcerated at MCI-Shirley in Shirley, Massachusetts.
The first two defendants, Geraldine Riendeau and Dyana
Nickl, are associated with a department of the University of
Massachusetts Medical School (“UMMS”) known as the University of
Massachusetts Correctional Health (“UMCH”).

The Massachusetts

Department of Correction (“DOC”) hired UMMS to provide medical
care to OCCC prisoners from 2003 through June, 2013.
served as the UMCH Grievance and Appeals Coordinator.

Nickl
Riendeau

is a registered nurse and worked as the Department’s Health
Service Administrator.

UMCH was also initially a defendant.

The second set of defendants is associated with the
Partnership, a private company that replaced UMCH as the
healthcare provider at OCCC in July, 2013.

Defendant Paul

Caratazzola started working as the Partnership’s Health Service
Administrator in July, 2013.

At the same time, Defendant Pat

Davenport n/k/a Patricia Davenport-Mello began working as its
Director of Nursing.

The Partnership is also a defendant.

Collectively, the Partnership, Caratazzola and Davenport-Mello
are referred to as “the Partnership defendants”.
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Finally, defendant Barbara Berg worked for both UMCH and
the Partnership.

UMCH hired her to work at OCCC as a licensed

nurse practitioner in 2003.

In July, 2013, when the Partnership

replaced UMCH, it hired Berg and she continued to work at OCCC.
B. Alleged Inadequate Medical Care
Plaintiff suffers from chronic Hepatitis C, end-stage liver
disease, cirrhosis of the liver and liver cancer.
From 2003 to 2013, UMCH handled plaintiff’s medical care.
Plaintiff admits that from November, 2003 to May, 2004, UMCH
healthcare personnel treated his Hepatitis C using PegInterferon, also known as Peg-Intron, and Ribavirin.

Plaintiff

also concedes that the treatment with those drugs was suspended
because he became anemic, experienced fluid buildup in his
abdomen and had “vision changes with cotton woolspots seen on
his eye exam”.
Plaintiff was treated at Tufts-New England Medical Center
(“Tufts”) in August, 2005 and April, 2006.

In 2005, medical

records show that a doctor concluded that plaintiff was not a
good candidate for a liver transplant because there was a higher
risk that he would die from a transplant than from his liver
disease.

In 2006, medical records show that another doctor

determined that plaintiff’s liver disease was stable and
recommended that he lose weight and stop using narcotics to
reduce the risk that would accompany a liver transplant.
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Plaintiff denies the assertions regarding a possible transplant
based on lack of knowledge but provides no support for his
denials.

He admits that between 2008 and 2012 UMCH personnel

continued to monitor his liver disease with scans and medical
consultations.
As plaintiff concedes, in 2011, the Food and Drug
Administration (“FDA”) approved new medicines for the treatment
of Hepatitis C, Boceprevir and Teleprevir.

They both must be

taken, however, with Peg-Interferon, the drug to which plaintiff
reacts negatively.
In March, 2012, a third doctor determined that plaintiff
was ill-suited for a transplant because the lesion on his liver
was too small.

Plaintiff disputes that conclusion, asserting

that he was stable and could have received a transplant but
provides no support for his position.

He admits that he saw

various medical personnel in 2012 and 2013 and that there was
continued surveillance of his medical situation, including a CT
scan, an MRI, a fine needle biopsy and a radio frequency
ablation of the lesion on his liver.
In July, 2013, the Partnership became the medical provider
for OCCC.

In April, 2014, the Director of Clinical Services of

the DOC Health Services Division wrote plaintiff a letter
stating that the Partnership had no alternative to the PegInterferon treatment for Hepatitis C and explaining that his
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negative reaction to the treatment could result in blindness if
that treatment continued.
Plaintiff does not dispute that when the Partnership took
over his case in July, 2013, healthcare personnel monitored his
condition with lab tests and consultations with medical experts
while the Partnership was waiting for the FDA to approve a new
medication to treat Hepatitis C.

The FDA approved Harvoni as a

Hepatitis C treatment in October, 2014 and in January, 2015
Plaintiff saw a healthcare professional who recommended that he
be treated with Harvoni.

Shortly thereafter, he participated in

a successful 12-week Harvoni trial.

After the trial, plaintiff

no longer tested positive for Hepatitis C.

Plaintiff admits all

of these facts but contends that if he had gotten treatment
earlier, it would have prevented him from contracting liver
cancer.

After the successful treatment, Partnership

professionals continued to monitor plaintiff for the return of
Hepatitis C and to provide care for other medical conditions.
Lopes does not dispute that in May, 2016 he told the
Partnership that he refused to undergo any follow-up treatments
for liver disease and any gastrointestinal evaluations.

He also

signed a “Release of Responsibility” form that stated that he
was aware of the risks of refusing treatment.

Plaintiff

explains that he has refused treatment to “protest[] the
inadequate treatment . . . which led to liver cancer”.
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C. Purported Retaliation
In 2012, plaintiff filed a complaint against Riendeau with
the Division of Health Professions Licensure.

He alleges that

she retaliated against him by asking Berg to confiscate his
medicine in early 2013.

This Court liberally construed the pro

se complaint to state a claim of retaliation against Riendeau,
UMCH, Berg and the Partnership.

The claim against Riendeau and

UMCH has been dismissed but the claim against Berg and the
Partnership is pending.
According to Berg, plaintiff’s medications were removed
from his cell in February, 2013 because he was non-compliant
with the guidelines concerning his “keep on person” (“KOP”)
medications.

Consequently, UMCH required him to get his

medications from the medication line.

Defendant Berg’s version

of the facts is supported by a letter from Lawrence Wiener, the
Assistant Deputy Commissioner of Clinical Services, which states
that plaintiff was found to be non-compliant in a KOP drug
audit.

Plaintiff denies that he was non-compliant but provides

no other support for his denial.
II.

Procedural History
In February, 2014, plaintiff filed suit alleging that

defendants provided inadequate medical treatment in violation of
1) the Eighth Amendment under 42 U.S.C. § 1983, 2) Article 26 of
the Massachusetts Declaration of Rights and 3) the Massachusetts
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Torts Claims Act, M.G.L. c. 258, § 2 (“MTCA”).

Plaintiff also

claims that defendants retaliated against him in violation of
the First Amendment under 42 U.S.C. § 1983.

He seeks access to

alternative medications, specifically, Boceprevir and
Teleprevir, a liver transplant and compensatory and punitive
damages.

Defendants timely responded to the complaint.

In March, 2015, this Court adopted the Report and
Recommendation (“R&R”) of Magistrate Judge Marianne Bowler (“MJ
Bowler”) and allowed UMCH’s motion to dismiss the claims against
it and summary judgment of dismissal of the 42 U.S.C. § 1983
Eighth Amendment claim against the Partnership defendants and
Berg.

In March, 2016, this Court adopted the portion of MJ

Bowler’s second R&R which allowed summary judgment of dismissal
of the Section 1983 Eighth Amendment and retaliation claims
against Riendeau and Nickl.

The remaining claims are that

Riendeau and Nickl, the Partnership defendants and Berg failed
to provide adequate healthcare in violation of Article 26 and
the MTCA and that Berg and the Partnership retaliated against
plaintiff.
In July, 2016, three separate motions for summary judgment
were filed by 1) Riendeau and Nickl, 2) the Partnership
defendants and 3) Berg.

That same month, the pro se plaintiff

moved to have counsel appointed on his behalf.

That motion was

denied in December, 2016 and at that time the Court gave
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plaintiff 35 additional days to respond to the summary judgment
motions.

In January, 2017, plaintiff requested a second

extension of time to respond.

Cognizant of plaintiff’s pro se

status, the Court allowed a second extension and plaintiff
responded to the summary judgment motions shortly thereafter.
III.

Motion for Summary Judgment
A. Legal Standard
The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991).

The burden is on the moving party to

show, through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).

A fact is material if it “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material

fact exists where the evidence with respect to the material fact
in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party has satisfied its burden, the burden
shifts to the non-moving party to set forth specific facts
showing that there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
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The Court must view the

entire record in the light most favorable to the non-moving
party and indulge all reasonable inferences in that party’s
favor. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
Summary judgment is appropriate if, after viewing the record in
the non-moving party’s favor, the Court determines that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law.
Defendants move for summary judgment on all remaining
claims against them.
B. Article 26 of the Massachusetts Declaration of Rights
1. Legal Standard
Article 26 of the Massachusetts Declaration of rights
prohibits cruel or unusual punishment. Mass. Const. Pt. 1, Art.
26.

The protections enshrined in Article 26 “are at least

equally as broad as those guaranteed under the Eighth
Amendment.” Torres v. Comm'r of Correction, 695 N.E.2d 200, 204
(Mass. 1998) (quoting Michaud v. Sheriff of Essex County, 458
N.E.2d 702, 708 (Mass. 1983)).

To succeed on an Article 26

claim, a plaintiff must demonstrate that the defendants acted
with deliberate indifference. See ’Abdullah v. Sec'y of Pub.
Safety, 677 N.E.2d 689, 694 (Mass. App. Ct. 1997).
Specifically, a plaintiff must show

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(1) a condition or situation which poses a substantial risk
of serious harm; and (2) facts establishing that a prison
official has knowledge of the situation and ignores it.
Torres, 695 N.E.2d at 204 (quoting Good v. Commissioner of
Correction, 629 N.E.2d 1321, 1325 (Mass. 1994)) (internal
quotations omitted).
The Article 26 standard is “virtually identical” to the
Eighth Amendment standard. See Cryer v. Spencer, No. 11-cv10654-DJC, 2012 WL 892883, at *7 (D. Mass. Mar. 15,
2012)(collecting cases); see also Hennessy v. Dennehy, No. 08cv-11724-NG, 2010 WL 3464234, at *10 (D. Mass. Sept. 1, 2010)
(“It appears that the Eighth Amendment's ‘deliberate
indifference’ standard applies with equal force to claims under
article 26.”); Carter v. Symmes, No. 06-cv-10273-PBS, 2008 WL
341640, at *5, n.3 (D. Mass. Feb. 4, 2008) (“Because Article 26
and the Eighth Amendment guarantee essentially the same scope of
rights, there is no need for separate analyses.”).
2. Defendants Riendeau and Nickl
Defendants Riendeau and Nickl move for summary judgment on
plaintiff’s Article 26 claim.

They assert that the Court’s

conclusion in March, 2016 that Riendeau acted reasonably and
that they neither ignored plaintiff’s medical conditions nor
violated the Eighth Amendment necessitates the conclusion that
they did not violate Article 26.

Plaintiff responds that

defendants “failed to address the state law claims”.
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Riendeau and Nickl’s assertion that dismissal of the Eighth
Amendment claim warrants entry of summary judgment on the
Article 26 claim is well taken. See Cryer, 2012 WL 892883, at
*7.

As another session of this Court has concluded, “there is

no need for separate analyses” of Eighth Amendment and Article
26 deliberate indifference claims.

After evaluating Riendeau

and Nickl’s conduct, this Court has already determined that
the decisions not to prescribe boceprevir and telaprevir,
to require that plaintiff obtain skin lotions and creams in
the medication line, to have plaintiff undergo an FNA
biopsy and not to order a liver transplant . . . did not
contravene the objective prong of the Eighth Amendment.
Lopes v. Riendeau, 177 F. Supp. 3d 634, 660 (D. Mass. 2016).
Consistent with the above, this Court concludes that there is no
genuine issue of material fact with respect to whether Riendeau
and Nickl were deliberately indifferent and they are entitled to
judgment as a matter of law on the Article 26 claim.
3. The Partnership Defendants
Caratazzola, Davenport-Mello and the Partnership contend
that summary judgment is appropriate with respect to plaintiff’s
Article 26 claim against them because 1) the Court previously
determined that they did not act with deliberate indifference,
2) they provided plaintiff with adequate care and 3) the
Partnership cannot be held liable on a respondeat superior
theory.

Plaintiff responds that the Partnership defendants fail

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to address his allegations adequately and that genuine issues of
material fact remain.
The Partnership defendants correctly contend that they are
entitled to summary judgment on the Article 26 claim.

The

Court’s earlier conclusion that those defendants did not act
with deliberate indifference under the Eighth Amendment
indicates that the same conclusion is warranted for Article 26.
See, e.g., Cryer, 2012 WL 892883, at *7.

Undisputed facts in

the summary judgment record demonstrate that, rather than
ignoring plaintiff’s condition, the Partnership defendants
closely monitored it with lab tests in July, 2013, diagnostic
imaging in August, 2013 and chronic disease consultations in
September, 2013. See Torres, 695 N.E.2d at 204.
Plaintiff alleges that Caratazzola and Davenport-Mello
prevented healthcare providers from prescribing medications
without Peg-Interferon to him.

Defendants contend that they

withheld the Boceprevir and Telaprevir that plaintiff requested
because he “has a specific viral mutation, which predicts
resistance to. . . Boceprevir and Telaprevir.”

Defendants

support their statement with an affidavit from Dr. Maria Angeles
and a hospital record dated July, 2014.

Lopes denies the

statement but offers no support for his denial.

He further

contends that his negative reaction to the medications was
discovered years after he was first denied treatment.
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Although the Court must draw reasonable inferences in favor
of plaintiff, it
is not obliged to accept as true or to deem as a disputed
material fact, each and every unsupported, subjective,
conclusory, or imaginative statement [from] a party
Torrech-Hernandez v. Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir.
2008).

Plaintiff’s conclusory statement that he would not react

negatively to Boceprevir and Telaprevir lacks support.
Accordingly, the Court will disregard that statement.
As for plaintiff’s contention that his resistance to the
drugs was discovered long after he was first denied treatment,
the record shows that the Partnership was aware of it about a
year after it took over plaintiff’s treatment.

Given the

complexity of the medical situation and the ongoing monitoring
from the Partnership, this delay fails to demonstrate that it
“kn[e]w and disregard[ed] an excessive risk to inmate health or
safety.” 'Abdullah, 677 N.E.2d at 694.
This Court’s determination that the undisputed facts show
that Caratazzola and Davenport-Mello did not act with deliberate
indifference necessitates the conclusion that the Partnership
did not act with deliberate indifference because plaintiff makes
no allegation of the Partnership misconduct aside from the
specific actions of those individuals.

Accordingly, summary

judgment of dismissal of the Article 26 claim against all three
Partnership defendants is warranted.
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4. Defendant Berg
Defendant Berg, who worked as a licensed nurse practitioner
for both UMCH and the Partnership, also moves for summary
judgment on plaintiff’s Article 26 claim.

She asserts that,

because this Court determined that the medical care that she
provided was not deliberately indifferent under the Eighth
Amendment, the conclusion that it does not violate Article 26
necessarily follows.

She further asserts that plaintiff’s

allegation that she required him to wait in line for his
medicine does not show deliberate indifference.

Plaintiff

responds that Berg’s motion inadequately addresses his
allegations.
Viewing the facts in plaintiff’s favor, the Court agrees
that summary judgment is warranted on the Article 26 claim
against Berg.

As she points out, because the deliberate

indifference analysis for the Eighth Amendment is virtually
identical to the analysis under Article 26, the Court’s earlier
dismissal of plaintiff’s 42 U.S.C. § 1983 claim indicates that
dismissal of the Article 26 claim is appropriate. See Cryer,
2012 WL 892883, at *7.
Moreover, plaintiff’s allegations against Berg are limited.
He contends that she “confiscate[d his] medications from his
cell and told him he has to . . . wait in a medication line”.
Although he admits that Berg’s stated reason for these actions
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was that he was “hoarding meds”, plaintiff asserts that Berg was
acting on Riendeau’s orders and Riendeau was retaliating against
him.

As this Court previously determined,
[e]ven accepting that plaintiff has a ‘weak physical
constitution’, plaintiff could still receive medications
for the skin conditions by waiting in the medication line.

There is no evidence that, by requiring plaintiff to wait in
line for his medications, Berg was aware of and ignored
plaintiff’s health issues. 'Abdullah, 677 N.E.2d at 694.
In sum, there is no genuine issue of material fact that
prevents summary judgment on the Article 26 claim against Berg.
She did not act with deliberate indifference and she is entitled
to summary judgment on the Article 26 claim as a matter of law.
C. Massachusetts Torts Claims Act Claim
1. Legal Standard
The MTCA allows suits against public employers for the
“negligent or wrongful act[s] or omission[s] of public
employees.” M.G.L. c. 258, § 2.

Under the MTCA, public

employees are immune from liability for negligent or wrongful
acts if they are acting within the scope of their employment.
Id.

The Supreme Judicial Court of Massachusetts has determined

that the University of Massachusetts and its medical school,
UMMS, are public employers. McNamara v. Honeyman, 546 N.E.2d
139, 142 (Mass. 1989).

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The fact that UMMS is a public employer does not, however,
automatically render its personnel public employees. Id.

To

determine whether an employee qualifies as a public employee,
courts apply the test used to determine if “a principal may be
liable under the common law doctrine of respondeat superior” for
its agent’s acts. Id. (quoting Kelley v. Rossi, 481 N.E.2d 1340,
1342 (Mass. 1985)).
That test considers whether the employee is “subject to the
direction and control of the Commonwealth.” Hopper v. Callahan,
562 N.E.2d 822, 830 (Mass. 1990).

For instance, if the public

employer determines a healthcare provider’s schedule, controls
the details of her work and chooses which patients she treats,
the healthcare provider is a public employee. Id.; Williams v.
Hartman, 597 N.E.2d 1024, 1026 (Mass. 1992).

Although public

employees are immune from suits alleging negligence, or even
gross negligence, they may be held liable for intentional torts.
Monahan v. Town of Methuen, 558 N.E.2d 951, 958 (Mass. 1990).
2. Defendants Riendeau and Nickl
Riendeau and Nickl contend that they are public employees
of UMCH, a department of UMMS, and thus immune from suit under
the MTCA.

To support that contention, they submitted affidavits

with respect to who directed and controlled their work.
Riendeau’s affidavit states that she worked for UMMS between
2012 and 2013 and it paid her salary but UMCH determined her
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hours, chose the patients that she saw and oversaw her treatment
decisions.

Nickl also submitted an affidavit that states that

UMMS paid her salary but UMCH determined her schedule and
controlled the details of her work.
Plaintiff disputes the facts offered in the affidavits on
the grounds that his “complaint does not reference the
allegation”.

He does not dispute the truth of the statements in

the affidavits.

Accordingly, because the Court is not obliged

to consider plaintiff’s conclusory denials of who directed and
controlled the work of Riendeau and Nickl, it considers those
facts undisputed. Torrech-Hernandez, 519 F.3d at 47.

UMMS and

its department, UMCH, determined these defendants’ schedules,
paid their salaries and oversaw their daily tasks.

This

suffices to demonstrate that they are public employees and
immune from suit for negligence under the MTCA. McNamara, 546
N.E.2d at 142.
Moreover, plaintiff’s allegation that defendants acted with
deliberate indifference does not support an intentional tort
claim that would fall outside of the immunity provided by the
MTCA. See Farmer v. Brennan, 511 U.S. 825, 835 (1994)
(“[D]eliberate indifference entails . . . something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.”).

Therefore, there is no

genuine issue of material fact with respect to the immunity from
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suit under the MTCA of Riendeau and Nickl and they are entitled
to judgment on the MTCA claim as a matter of law.
3. The Partnership Defendants
The Partnership, Caratazzola and Davenport-Mello, move for
summary judgment on the MTCA claim on the grounds that the
Partnership is a private contractor, not a public employer, and
thus the MTCA does not apply to it.

Plaintiff admits that the

Partnership is a privately owned company and that it, not the
DOC, is responsible for its staff members.

Lopes also admits

that Caratazzola and Davenport-Mello have never been employed by
the DOC, although he contends that they “acted in concert with
the DOC and other defendants”.
The position of the Partnership defendants that no MTCA
claim can be asserted against them is well taken.

The MTCA

specifically exempts “private contractor[s] with any such public
employer[s].” Commesso v. Hingham Hous. Auth., 507 N.E.2d 247,
248 (Mass. 1987) (quoting M.G.L. c. 258, § 1).

Accordingly,

plaintiff’s concession that the Partnership is a privately owned
company necessitates the conclusion that no MTCA claim may be
brought against it.

Similarly, plaintiff’s admission that

defendants Caratazzola and Davenport-Mello are paid, supervised
and directed by MHM Services, Inc., a private company affiliated
with the Partnership, compels the conclusion that, as private
employees, they are exempt from an MTCA claim. Id.
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Therefore

the Partnership, Caratazzola and Davenport-Mello are also
entitled to judgment on the MTCA claim as a matter of law.
4. Defendant Berg
Defendant Berg contends that summary judgment is
appropriate for the MTCA claim against her because, while she
worked for UMCH, she was a public employee and thus immune from
suit and, while she worked for the Partnership, she was a
private employee and thus exempt from MTCA coverage.

She

asserts that she was under the direction and control of UMCH and
the Partnership during her employment by those companies and was
never employed by the DOC.

Plaintiff disputes Berg’s employment

record on the grounds that he has “no knowledge of her personnel
record” and contends that his treatment did not accord with the
policies and procedures of UMCH and the Partnership.
Because Lopes does not dispute the truth of Berg’s recital
of her employment record and provides no evidence that her
treatment ran afoul of policies and procedures, the Court will
disregard his denial of her employment record. TorrechHernandez, 519 F.3d at 47.

Consequently, defendant Berg is

entitled to judgment on the MTCA claim as a matter of law.
McNamara, 546 N.E.2d at 142; M.G.L. c. 258, § 1.

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D. Retaliation Claim Pursuant to 42 U.S.C. § 1983
1. Legal Standard
To establish a First Amendment retaliation claim under 42
U.S.C. § 1983, a prisoner must show that he 1) made a protected
statement, 2) experienced an adverse action and 3) there was a
causal connection between the statement and the adverse action.
Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011).

Retaliation

claims from incarcerated individuals can be
easily fabricated[ ] and . . . pose a substantial risk of
unwarranted judicial intrusion into matters of general
prison administration.
Id. (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.
2003)).

Accordingly, such claims must be supported by facts,

“not [] the gossamer strands of speculation and surmise.” Id.
Although the sequence of events may enable an inference that
there was retaliatory animus at the motion to dismiss stage,
Hudson v. MacEachern, 94 F. Supp. 3d 59, 68 (D. Mass. 2015),
when a defendant offers a legitimate reason for the action and
the plaintiff provides no evidence to dispute it, a court will
not “speculate about a hidden motive” at the summary judgment
stage.

Hannon, 645 F.3d at 51.
2. The Partnership

Plaintiff alleges that, after he filed an institutional
grievance against Riendeau, she retaliated against him by
ordering Berg to take medicine from his cell and require him to
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use the medication line.

The Partnership asserts that summary

judgment on the retaliation claim against it is warranted
because the incident occurred in February, 2013, before it was
present at OCCC.

Because plaintiff does not dispute that the

incident occurred before the Partnership was his healthcare
provider, it is entitled to judgment as a matter of law on the
retaliation claim.
3. Defendant Berg
Defendant Berg correctly contends that summary judgment is
warranted on the retaliation claim against her because there is
a dearth of evidence that she acted with retaliatory intent.
Berg submits that plaintiff was non-compliant with his KOP
medications so the UMCH staff required him to receive daily
doses in the medication line to prevent over-dosing.

In

plaintiff’s version of events, Berg retaliated against him after
he filed a complaint against Riendeau by requiring him to obtain
his medication in the line.
Plaintiff, however, offers no evidence that Berg had
retaliatory intent.

In fact, the purported reason for the

retaliation, that defendant Riendeau was upset about the
grievance plaintiff filed, did not relate to Berg at all.

This

Court declines to “speculate about a hidden motive.” Hannon, 645
F.3d at 50–51.

There is no evidence of a causal link between

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the protected speech and Berg’s actions. Thus, Berg is entitled
to summary judgment on the retaliation claim against her.1

ORDER
In accordance with the forgoing, defendants’ motions for summary
judgment (Docket Nos. 137, 147 and 153) are ALLOWED.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated March 23, 2017

1

Because defendants are entitled to summary judgment on the
aforementioned grounds, there is no need to address their claims
that plaintiff failed to exhaust his administrative remedies or
that they are entitled to qualified immunity.
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