Abernathy v. Dewey et al

Filing 204

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. (Maynard, Timothy)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
)
FRANKLIN ABERNATHY,
)
)
Plaintiff,
)
)
v.
)
)
SHAUN DEWEY, et al.,
)
)
Defendants.
)
___________________________________________)

Civil Action No.
15-10431-FDS

MEMORANDUM AND ORDER ON
PLAINTIFF’S MOTION TO AMEND
SAYLOR, J.
This is a civil rights action arising out of an alleged attack on a prisoner by correctional
officers at Souza Baranowski Correctional Center. Plaintiff Franklin Abernathy has brought
claims under 42 U.S.C. § 1983, Mass. Gen. Laws ch. 12, § 11I, and state tort law.
The third amended complaint alleges that several correctional officers aggressively pulled
and twisted Abernathy’s arms through a slot in his cell door, causing severe injuries, and that
other officers either failed to intervene or attempted to cover up the incident. As relevant here, it
also alleges that defendant “Kristal,” a nurse at UMass Correctional Health (“UMCH”), refused
to provide medical treatment to Abernathy.
Plaintiff has moved to amend the complaint to substitute the true name (Krystal
Anderson) of the individual sued as defendant “Jane Doe a/k/a Nurse Kristal.” For the following
reasons, the motion will be granted, except as to the proposed claim against Anderson for
intentional infliction of emotional distress.

I.

Background
A.

Factual Background

The facts are set forth as described in the third amended complaint.
On April 3, 2013, Franklin Abernathy was an inmate at Souza Baranowski Correctional
Center. He was assigned to a cell in the Special Management Unit (“SMU”) with inmate Leon
Shelby. (TAC ¶¶ 18-19). Kyle Sheldon, Gerard Breau, and Michael Rumery were correctional
officers at SBCC assigned to Abernathy’s cell block. (Id. ¶¶ 5, 7, 9).
According to the complaint, on the morning of April 3, Sheldon and Breau stood outside
Abernathy’s cell, yelling obscene language and laughing at Shelby, and Shelby responded by
yelling back at the officers. (Id. ¶ 20). At about 9 a.m., Sheldon returned to the cell and
instructed Abernathy to remove a blanket Shelby placed over the window of the cell door. (Id. ¶
22). Abernathy refused because the blanket belonged to Shelby, and Shelby then refused to
remove the blanket. (Id.).
Ten minutes later, Rumery and “Kristal,” a nurse employed by UMass Correctional
Health, came to Abernathy’s cell to administer daily medication that included Abernathy’s pain
and blood-pressure medication. (Id. ¶ 23). Rumery instructed Shelby to remove the blanket
from the window, but Shelby again refused. (Id. ¶ 24). Rumery then requested that Abernathy
remove the blanket, but Abernathy explained that the blanket belonged to Shelby and that Shelby
did not want him to touch it. (Id. ¶ 25). According to the complaint, Rumery told Abernathy
that he would not receive his prescribed medication if the blanket was not removed from the
window. (Id. ¶ 26). When Abernathy then asked for his medication, Rumery allegedly said,
“Fuck him.” (Id. ¶ 27). He then “slammed” the cell door slot shut and told Kristal not to give
Abernathy his medicine that day. (Id. ¶¶ 27-28). The lack of medication allegedly caused
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Abernathy to suffer “severe pain, including chest pain and pain in his left shoulder and arm.”
(Id. ¶ 29).
Later that morning, Shelby removed the blanket from the door. (Id. ¶ 30). Breau then
approached the cell. Abernathy informed him that he was “suffering severe chest pain and
required immediate medical attention.” (Id. ¶ 31). Breau allegedly denied the request and told
Abernathy, “You get nothing.” (Id.).
At about 11:30 a.m. the same day, Sheldon returned to the cell to provide lunch.
According to the complaint, Abernathy again requested medical attention. (Id. ¶ 32). Sheldon
denied his request. (Id.). An argument then began between Shelby and Sheldon over a food
tray. (Id. ¶¶ 33-36). Shortly thereafter, while Sheldon and Breau were collecting trays after
lunch, Shelby threw water at Sheldon’s face. (Id. ¶ 37). Sheldon and Breau immediately left the
tier and returned with Rumery. (Id. ¶ 38). Rumery ordered Shelby to approach the cell door to
be handcuffed, but he refused. (Id. ¶ 39). Rumery then told Shelby that he would use tear gas in
the cell if Shelby continued to refuse. (Id.). The officers left again, and then returned once more
with officer Shawnn Gyles and an unidentified correctional officer. (Id. ¶ 42).
Rumery then handcuffed Shelby through the cell door slot without incident. (Id. ¶ 43).
Rumery informed Abernathy that he, too, needed to be handcuffed prior to opening the cell door.
(Id. ¶ 44). A medical order posted outside Abernathy’s cell indicated that due to prior injuries,
he should only be handcuffed with his hands in front of his body. (Id. ¶ 46). The complaint
alleges that when Abernathy complied, Rumery “aggressively grabbed [his] right hand and
swung a handcuff with such force at [his] right wrist that a portion of the handcuff punctured
[his] skin and lodged in his wrist,” causing bleeding and pain. (Id. ¶ 47). According to the
complaint, Breau and Sheldon then grabbed Abernathy’s left arm and began twisting and pulling
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it, causing cutting and bruising, while Rumery pressed the portion of the handcuff lodged in
Abernathy’s wrist, causing further bleeding and pain. (Id. ¶¶ 48-49). As Abernathy screamed in
pain, the officers allegedly continued to laugh and encourage each other to pull harder and apply
more force. (Id. ¶¶ 50-54). For example, Rumery allegedly laughed at Abernathy and told him
that they were going to “fuck [him] up” but let Shelby go unharmed, and Breau and Sheldon
mocked Abernathy by telling him to “[a]sk Shelby to help [him] now.” (Id. ¶ 50, 53).
The complaint alleges that David Darling, the supervisor for the section of the SMU
where Abernathy was held, approached the cell and grabbed and twisted Abernathy’s thumb and
index finger with great force, causing him pain while the other officers continued to use force
against him. (Id. ¶ 56-57). It further alleges that officers Gyles and “John Doe,” despite having
a clear view of the altercation, made no effort to stop the assault or otherwise intervene. (Id. ¶¶
58-59). Eventually, the officers stopped the assault when Shelby slipped his handcuffs in front
of his body, grabbed a pen, and began stabbing at the officers’ hands while they were pulling
Abernathy’s hands through the cell door slot. (Id. ¶ 61).
Abernathy and Shelby were then placed in separate holding cells. (Id. ¶ 65).
Accordingly to the complaint, Abernathy was held in the cell for an hour and subjected to a strip
search, but did not receive medical care. (Id. ¶ 66). He was then removed from the cell and
surrounded by Shaun Dewey (a DOC Captain assigned to the SMU), Darling, and Rumery. (Id.
¶ 68). According to the complaint, Dewey drew his face very close to Abernathy’s and told him
to “[d]rop the issue and act like nothing happened” so “we all can live together.” (Id. ¶ 68). It
alleges that as a result of Dewey’s threatening statement, Abernathy was afraid to say anything
about the assault out of fear that he would be assaulted again. (Id. ¶¶ 68-69).
Following the incident, Abernathy was escorted to the medical triage room, where he was
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seen by Nurse Kristal for treatment of his cuts, bruising, and swelling. (Id. ¶ 70-71). According
to the complaint, Kristal refused to treat him, stating that she would not touch him and that he
would have to wait for another nurse for treatment and medication. (Id. ¶¶ 73-74). This left
Abernathy in pain. (Id. ¶ 75).
Darling and Rumery then escorted Abernathy back to his cell. (Id. ¶ 76). Abernathy
asked Rumery why he had assaulted him, and Rumery allegedly laughed and responded,
“Because I can do it.” (Id.). According to the complaint, SBCC officers did not allow
Abernathy to make any telephone calls between April 3 and April 5, 2013. (Id. ¶ 77). After
April 3, 2013, Abernathy submitted more than 30 sick-call slips requesting treatment for his
incident-related injuries, but he was denied treatment and alleges that he continued to suffer pain
in his arms, wrists, and hands. (Id. ¶ 78).
The complaint alleges that as a result of the assault and lack of medical attention,
Abernathy suffered physical injuries, including pain, cuts, and bruising on his arms, wrists, and
hands; numbness in his hands and wrists; and emotional trauma, including fear, anxiety, stress,
mood swings, and a loss of appetite and sleep. (Id. ¶¶ 60, 75).
B.

Procedural Background

Proceeding pro se, Abernathy filed the original complaint in this case on February 13,
2015. He then filed a first amended complaint on December 16, 2015. He moved to file a
second amended complaint on June 9, 2016, and a third amended complaint on November 1,
2016. On January 30, 2017, he retained counsel. On March 3, 2017, with the assistance of
counsel, he again moved to file a third amended complaint. That motion was granted, and
plaintiff’s third amended complaint was filed on April 10, 2017.
The third amended complaint includes twelve counts, of which four were brought against
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“Jane Doe a/k/a Nurse Kristal”: a § 1983 claim against for denial of medical care and treatment
(Count Three); a claim for negligence (Count Eight); a claim for intentional infliction of
emotional distress (Count Eleven); and a claim for negligent infliction of emotional distress
(Count Twelve).
Upon discovery of the true identity of “Nurse Kristal,” plaintiff moved to file a fourth
amended complaint to substitute defendant’s true name, Krystal Anderson.
II.

Legal Standard
Under Fed. R. Civ. P. 15(a)(2), leave to amend a complaint shall be “freely

give[n] . . . when justice so requires.” However, courts have discretion to deny leave to amend
for several reasons, including “futility of amendment.” U.S. ex rel. Gagne v. City of Worcester,
565 F.3d 40, 48 (1st Cir. 2009); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (finding that
a motion for leave to amend should be denied when it is characterized by “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.”).
When considering an opposition to a motion to amend on the ground of futility, courts
must apply the standard applicable to a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Hatch
v. Dep't for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001). Whether a
proposed amended complaint would survive a motion to dismiss depends upon whether the
pleading satisfies the “plausibility” standard set forth in Iqbal, 556 U.S. 662, and Twombly, 550
U.S. 544.
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and
give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
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Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, … on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). A plaintiff does not need to include detailed factual
allegations,” but mere “labels and conclusions” and “formulaic recitation of the elements of a
cause of action will not do.” Hernandez v. Castillo, 2010 WL 3372527, at *4 (D. P.R. Aug. 24,
2010) (quoting Twombly, 550 U.S. at 544). Dismissal is appropriate if the facts as alleged do not
“possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm.,
LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).
A document filed by a pro se party “is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)) (internal quotation marks omitted); see also Fed. R. Civ. P. 8(e) (“Pleadings
must be construed as to do justice.”). However, once a former pro se party retains counsel and
counsel reviews the pleadings, the party’s pleadings are no longer entitled to liberal construction.
See John A. King, LLC v. Hospital Corp., 381 Fed. Appx. 577, 579 (6th Cir. 2010) (noting that
because plaintiffs obtained counsel and were thus no longer pro se, “the relaxed [pro se] standard
does not apply.”); Weaver v. Nooth, 2011 WL 1750271, at *5 (D. Or. Mar. 23, 2011) (finding
that former pro se plaintiff’s claim was not entitled to liberal construction because his appointed
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counsel reviewed defendant’s petition and did not attempt to rectify the pleading deficiency
pointed out until more than one year later).
III.

Analysis
Defendant raises three issues in opposing plaintiff’s motion to amend, all essentially

contending that the proposed amendment would be futile. “‘Futility’ means that the complaint,
as amended, would fail to state a claim upon which relief could be granted.” Glassman v.
Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996). The court must review a proposed
amended complaint for futility under the “standard [that] applies to motions to dismiss under
Fed. R. Civ. P. 12(b)(6).” Adorno v. Crowley Towing and Transp. Co., 443 F.3d 122, 126 (1st
Cir. 2006).
Defendant contends (1) that the proposed claims are barred by the statute of limitations
because the amended complaint does not relate back to the original complaint filed in 2015; (2)
that the Massachusetts Tort Claims Act immunizes her for any alleged negligent acts; and (3)
that the amended complaint fails to plead the requirements for intentional infliction of emotional
distress and violation of Eighth Amendment rights under § 1983.
A.

Statute of Limitations

The proposed civil rights and tort-based causes of action are subject to a three-year
limitations period. See Poy v. Boutselis, 352 F.3d 479, 483 (1st Cir. 2003) (a claim under § 1983
“borrows” the state limitations period for personal injury claims); Mass. Gen. Laws ch. 260, §
5B (state civil rights actions); Mass. Gen. Laws ch. 260, § 2A (negligence). Plaintiff’s claims
accrued on April 3, 2013, and he moved to amend his complaint on June 5, 2017, over one year
after the expiration of the three-year period.
When a plaintiff seeks to add a claim against a new defendant in an amended complaint
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filed after the limitations period has run, the claim is “time-barred as a matter of law unless the
amended complaint ‘relates back’ to the original complaint.” Coons v. Industrial Knife Co., 620
F.3d 38, 42 (1st Cir. 2010). Whether an amendment relates back, in turn, is governed by Fed. R.
Civ. P. 15(c). Under Rule 15(c)(1)(A), an amendment will relate back when “the law that
provides the applicable statute of limitations allows relation back.” Thus, in effect, Rule
15(c)(1)(A) “cements in place a one-way ratchet; less restrictive state relation-back rules will
displace federal relation-back rules, but more restrictive state relation-back rules will not.”
Morel v. DaimlerChrysler AG, 565 F.3d 20, 26 (1st Cir. 2009); see also Fed. R. Civ. P. 15
advisory committee notes (1991 Amendment) (Rule 15(c)(1)(A) is designed to “make it clear
that the rule does not apply to preclude any relation back that may be permitted under the
applicable limitations law.”).
Plaintiff seeks to add claims under both Massachusetts law (common-law negligence,
negligent infliction of emotional distress, and intentional infliction of emotional distress) and
federal law (42 U.S.C. § 1983). Thus, under Fed. R. Civ. P. 15(c)(1)(A), whether his state-law
claims relate back is an issue of Massachusetts law. See Labrador v. Industrial Contractors’
Supplies, Inc., 2015 WL 5737141, at *2 (D. Mass. Sept. 30, 2015).
Mass. R. Civ. P. 15(c) provides as follows:
Whenever the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment (including an amendment changing a party)
relates back to the original pleading.
Mass. R. Civ. P. 15(c). “Since Massachusetts Rule 15 is less restrictive, it displaces
Federal Rule 15 in this case.” Labrador, 2015 WL 5737141, at *2.
Here, the proposed state-law claims unquestionably arise out of the same conduct,
transaction, or occurrence set forth in the original complaint. Thus, the proposed state9

law claims relate back under Massachusetts law, and therefore relate back under the
federal rules as well.
With respect to the proposed federal claims under 42 U.S.C. § 1983, the law that
“provides the applicable statute of limitations” is, again, Massachusetts law. See Cayo v.
Fitzpatrick, 95 F. Supp. 3d 8, 13 (D. Mass. 2015). Following the same line of reasoning,
those new claims would, if allowed, relate back to the date of the original complaint.
Because plaintiff filed his original complaint within the three-year limitations period, the
motion to amend is timely. 1
B.

Massachusetts Tort Claims Act

Under the Massachusetts Tort Claims Act, individual public employees are immune from
suits stemming from negligent conduct committed within the scope of their office or
employment. Mass. Gen. Laws ch. 258, § 2; Wiesman v. Hill, 629 F. Supp. 2d 106, 113 (D.
Mass. 2009) (citing Jackson v. Town of Milton, 41 Mass. App. Ct. 908, 669 N.E.2d 225 (1996)).
Therefore, whether plaintiff can assert claims for negligence and negligent infliction of
emotional distress against Anderson depends on whether she was a public employee acting
within the scope of her employment at the relevant time.
“Whether an individual is a public employee is a question of fact.” Williams v. Hartman,
413 Mass. 398, 400 (1992). A public employer is “any department, office, commission,

1

It is unnecessary to resolve whether the complaint also relates back under Rule 15(c)(1)(C). That portion
of the rule permits relation back when (1) the claim arose from the same occurrence set out in the original pleading,
(2) the new party received sufficient notice within the period prescribed in Fed. R. Civ. P. 4(m) that it would not be
prejudiced in its defense, and (3) the new party knew or should have known that the action would be brought against
it, but for a mistake concerning its identity. See Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 547 (2010). Rule
15(c)(1)(C) focuses not on whether “[plaintiff] knew or should have known the identity of [defendant] . . . but
whether [defendant] knew or should have known that [she] would have been named as a defendant but for an error.”
Id. at 548. The original complaint referred to “Nurse Kristal” and her actions at the prison on April 3, 2013. It is
doubtful that more than one UMCH nurse named Krystal was involved in the events that day. Nonetheless,
defendant disputes whether she received sufficient notice of the lawsuit.

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commission, committee, council, board, division, bureau, institution, agency or authority
thereof.” Mass. Gen. Laws ch. 258, § 1. It is undisputed that UMCH is part of the University of
Massachusetts Medical School, which is a public employer, and all UMCH employees are
Medical School employees. Lopes v. Riendeau, 177 F. Supp. 3d 634, 663 (D. Mass. 2016)
(citing McNamara v. Honeyman, 406 Mass. 43, 48 (1989)). However, merely receiving a
paycheck from a public agency does not make an individual a public employee. See Williams,
413 Mass. at 400.
“The determinative question in assessing whether an individual is a public employee
within the meaning of the MTCA is whether the individual is ‘subject to the direction and control
of a public employer.’” Lopes, 177 F. Supp. 3d at 663 (citing Smith v. Steinberg, 395 Mass. 666,
667 (1985)). That is the same test used to determine whether a principal should be liable for an
agent’s negligent acts under the common law doctrine of respondeat superior. See McNamara,
406 Mass. at 48.
In the case of a health-care professional, relevant factors for that analysis include whether
the employer regulated the employee’s hours, where she worked, and which patients she would
treat. Id. Other factors are whether she had private patients and if her income was determined
by the number of patients. Id. Nurses, unlike doctors, “function within the hierarchy of the
[facilities] in which they work[, and they] are not free to exercise their independent judgment to
the degree that doctors [are].” Bianchi v. Bartlett, 2011 WL 1326639, at *10 (D. Mass. Mar. 31,
2011) (quoting Tomaccio v. Hardy, 2007 WL 1630961, at *4 (Mass. Super. Ct. May 25, 2007)).
It is not possible at this stage of the proceedings, and based solely on the pleadings, to
determine whether Anderson was a public employee. Presumably, that question can be resolved
at an early stage of proceedings on an appropriate factual record, but it is not a basis to deny
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amendment of the complaint on the ground of futility.
C.

Failure to State a Claim

Defendant contends that the motion to amend with respect to the claims against Anderson
for intentional infliction of emotional distress and violation of § 1983 should be denied on the
ground of futility because they fail to state a claim upon which relief can be granted.
1.

Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress under Massachusetts law, a
complaint must allege:
(1) that the actor intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his conduct; (2) that the
conduct was extreme and outrageous, was beyond all possible bounds of decency[,]
and was utterly intolerable in a civilized community; (3) that the actions of the
defendant were the cause of the plaintiff's distress; and (4) that the emotional
distress sustained by the plaintiff was severe and of a nature that no reasonable man
could be expected to endure it.
Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976) (citations and internal quotation
marks omitted); accord Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995); see also Borden
v. Paul Revere Life Ins. Co., 935 F.2d 370, 380 (1st Cir. 1991). Courts apply a “very high”
standard to claims of intentional infliction of emotional distress, especially on the requirement
that the conduct in question is extreme and outrageous, beyond all possible bounds of decency in
a civilized community. See Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir. 1996).
“[L]iability cannot be predicated upon ‘mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.’” Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987) (quoting
Restatement (Second) of Torts § 46, cmt. d (1965)).
The proposed amended complaint fails to allege conduct by Anderson that is sufficiently
extreme and outrageous to meet that high standard. At worst, based on the allegations of the
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proposed amended complaint, she may have been callously indifferent towards plaintiff’s
suffering. That is not the type of targeted, deliberate, and malicious conduct required for an
IIED claim. Even if her conduct violated plaintiff’s civil rights, that does not “necessitate a
finding that the conduct is sufficiently egregious to state a claim for [IIED].” Guckenberger v.
Boston Univ., 957 F. Supp. 306, 319 (D. Mass. 1997) (citing Marques v. Fitzgerald, 99 F.3d 1, 67 (1st Cir. 1996)). Therefore, plaintiff will not be permitted to amend the complaint to assert an
IIED claim against Anderson.
2.

Violation of § 1983

“[T]o succeed in an Eighth Amendment claim under § 1983 claim based on denied . . .
medical care,” a plaintiff must prove (1) an objectively serious medical need and (2) that
defendant exhibited “deliberate indifference” to the prisoner’s needs. Lopes, 177 F. Supp. 3d at
657 (citing Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)). “Deliberate indifference”
requires that defendant be subjectively “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and [she] must also draw the inference.” Ruiz-Rosa
v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). Mere medical negligence will not support a § 1983 claim. “[R]ather, the treatment
provided must have been so inadequate to constitute ‘an unnecessary and wanton infliction of
pain . . . .” Lopes, 177 F. Supp. 3d at 658 (quoting Leavitt v. Correctional Med. Servs, Inc., 645
F.3d 484, 497 (1st Cir. 2011)).
Whether a “serious medical need” existed is a fact-specific inquiry. Leavitt, 645 F.3d at
500. Some medical conditions, such as HIV, are plainly serious. Id. Others, such as application
of a paste which the prisoner himself could apply, are minor. See Sires v. Berman, 834 F.2d 9,
12 (1st Cir. 1987). Plaintiff contends that he was battered by correctional officers, resulting in
13

visible cuts, bleeding, bruising, and swelling on several parts of his body. (TAC ¶¶ 70-71).
Although an attending physician did not mandate immediate treatment, the injuries alleged are
sufficiently “obvious that even a lay person would easily recognize the necessity for [medical]
attention.” Leavitt, 645 F.3d at 497 (quoting Gaudreault v. Municipality of Salem, 923 F.2d 203,
208 (1st Cir. 1990)).
A § 1983 claim also requires proof of “deliberate indifference.” The First Circuit has
stated that “deliberate indifference ‘defines a narrow band of conduct.’” Kosilek, 774 F.3d at 83
(citing Feeney v. Correctional Med. Servs. Inc., 464 F.3d 158, 162 (1st Cir. 2006)). The failure
to properly treat the serious medical need must be intentional. See Estelle v. Gamble, 429 U.S.
97, 105 (1976). However, a “deliberate intent to harm is not required.” Battista v. Clarke, 645
F.3d 449, 453 (1st Cir. 2011) (citing Farmer, 511 U.S. at 835). Instead, “denial of needed
medical treatment in order to punish the inmate” or disregard of a prisoner’s needs “akin to
criminal recklessness, requiring consciousness of ‘impending harm, easily preventable’” is
necessary to constitute deliberate indifference. Kosilek, 774 F.3d at 83 (quoting Watson v.
Caton, 984 F.2d 537, 540 (1st Cir. 1993)).
Here, defendant allegedly refused to provide medical treatment or even touch plaintiff,
despite being aware of the extent of his injuries. (TAC ¶¶ 74, 114). An outright refusal to
provide any treatment whatsoever to a seriously injured prisoner, whose injuries would become
aggravated if untreated, raises a plausible inference of deliberate indifference. See Perry v. Roy,
782 F.3d 73, 79 (1st Cir. 2015) (“The subjective prong relies entirely on whether [defendant] had
a purposeful intent while neglecting [plaintiff’s] treatment.”). Accordingly, the proposed
amended complaint pleads sufficient facts to support a § 1983 claim against defendant Anderson.

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IV.

Conclusion
For the foregoing reasons, plaintiff’s motion for leave to amend the complaint to

substitute Krystal Anderson for “Nurse Kristal” is GRANTED in part and DENIED in part. The
proposed amendment to add a claim for intentional infliction of emotional distress against
Anderson is DENIED.
The fourth amended complaint, as limited by the Court’s ruling, is deemed to have been
filed today, September 28, 2017. The clerk shall issue a new summons for defendant Anderson.
The clerk shall send the summons, a copy of the fourth amended complaint, and this
Memorandum and Order to plaintiff, who must thereafter serve Anderson in accordance with
Federal Rule of Civil Procedure 4(m). Plaintiff may elect to have service made by the United
States Marshals Service. If directed by plaintiff to do so, the Marshals Service shall serve the
summons, complaint, and this Order upon Anderson in the manner directed by plaintiff, with all
costs of service to be advanced by the United States Marshals Service. Plaintiff shall have 60
days from the date of this Order to complete service.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: September 28, 2017

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