Nolet v. Armstrong et al

Filing 48

Judge F. Dennis Saylor, IV: ORDER entered granting in part and denying in part 28 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 30 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 32 Motion to Dismiss (Cox, Spencer)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________________
)
FRANK NOLET,
)
)
Plaintiff,
)
)
v.
)
)
DR. CATHARINA ARMSTRONG, et al.,
)
)
Defendants.
)
___________________________________________)

Civil Action No.
15-11499-FDS

MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTIONS TO DISMISS
SAYLOR, J.
This is an action brought by a state prisoner for alleged medical malpractice arising out of
injuries he suffered during surgery while in state custody. Plaintiff Frank Nolet, a prisoner at the
Old Colony Correctional Center (“OCCC”) in Bridgewater, Massachusetts, has filed a selfprepared § 1983 civil rights complaint against a number of defendants in their official and
individual capacities. Those defendants are (1) Dr. Catharina Armstrong (of the Lemuel
Shattuck Hospital (“LSH”)); (2) Dr. Donna Roy (of LSH); (3) Dr. Kenneth Freedman (of LSH);
(4) Dr. John Jameson (of LSH); (5) Dr. Joshua Lilienstein (of LSH); (6) Dr. [Joseph] Polak (of
LSH); (7) Dr. [James] Petros (of LSH); (8) Thomas Groblewski (Medical Director for the
Massachusetts Department of Correction); (9) Paul Caratazzola (Health Service Administrator at
OCCC); (10) Shawna Nasuti (Nurse Practitioner at OCCC); (11) Linda Roza (Nurse Practitioner
at OCCC); (12) LSH Chief of Surgery; and (13) LSH Hospital Administrator.
Nolet alleges a claim for deliberate indifference to his serious medical needs in violation

of the Eighth Amendment and 28 U.S.C. § 1983, and claims for negligence and medical
malpractice under Massachusetts law. It appears that those claims are brought against all
defendants. As relief, Nolet seeks a declaratory judgment, compensatory and punitive damages,
and an order providing that he continue on his pain medication without any decrease absent court
approval.
Defendants Groblewski, Caratazzola, Nasuti, and Roza (the “DOC” defendants) have
moved to dismiss the claims against them under Fed. R. Civ. P. 12(b)(6), or, in the alternative,
for summary judgment under Fed. R. Civ. P. 56. Dr. Freedman, Dr. Jameson, and Dr. Lilienstein
(the “Commonwealth defendants”) have moved to dismiss the claims against them for a lack of
subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and under Rule 12(b)(6) for
failure to state claim for which relief can be granted. Defendant Dr. Roy has moved to dismiss
the claims against her under Rule 12(b)(6) and for failure to comply with the notice requirement
of Mass. Gen. Laws ch. 231, § 60B.
For the following reasons, DOC defendants’ motion to dismiss will be granted in part and
denied in part, and the motion for summary judgment will be denied without prejudice;
Commonwealth defendants’ motion to dismiss will be granted in part and denied in part; and Dr.
Roy’s motion to dismiss will be granted in part and denied in part.
I.

Factual Background
The facts are set forth as described in the complaint.
The complaint alleges that in April 2013, while a prisoner at Old Colony Correctional

Center, Nolet experienced trouble breathing and standing, and, after being seen by OCCC Health
Services staff, was transported by ambulance to Morton Hospital. (Compl. ¶¶ 10-13). After
being stabilized at Morton, it was determined that Nolet should be transferred to Lemuel

2

Shattuck Hospital for further treatment and recovery; the complaint states that “Plaintiff believes
that [the decision to transfer Nolet to LSH] was implemented by defendant Thomas Groblewski.”
(Id. ¶¶ 16-17). 1
Nolet was placed directly into the Intensive Care Unit at LSH. (Id. ¶ 20). The complaint
alleges that defendants Doctors Jameson, Lilienstein, Freedman, Roy, Armstrong, Polak, and
Petros were all “in charge of or assisted in [Nolet’s] care . . . and treatment” at LSH. (Id. ¶ 4). 2
The LSH doctors performed “[c]hest x-rays, CT scans, and bloodwork” on Nolet, and informed
him that he had “severe pneumonia,” for which they recommended placement of a “jejunostomy
tube (‘j-tube’) for [ ] assistance in feeding.” (Id. ¶¶ 22-23). According to the complaint, the
LSH doctors told Nolet they had completed “j-tube” operations “numerous times,” and that it
“was a routine operation.” (Id. ¶ 24). The complaint further alleges that Nolet “was never
informed of the extreme risk of bodily injury or serious disfigurement” in having the operation.
(Id. ¶ 27). Because of his weakened state and the doctors’ assurances that the surgery was a
normal procedure, Nolet consented to the operation. (Id.).
The complaint alleges that the next thing Nolet remembers was waking up in the ICU at
the Boston Medical Center (“BMC”). (Id. ¶ 30). He was informed that when the LSH doctors
attempted to put the j-tube in his stomach, they had ruptured his bowels causing an infection to
spread throughout Nolet’s body. (Id. ¶¶ 32, 34). Nolet was told he had been rushed to BMC for
“additional emergency surgeries,” that he had sepsis upon his arrival at BMC, and that “it was
assumed that he would not survive.” (Id. ¶¶ 33-35).

1
The complaint identifies Groblewski as “the medical doctor for the Massachusetts Department of
Corrections . . . in charge of making the decision for the placement of the plaintiff at ‘LSH’ for treatment.” (Compl.
¶ 5). DOC defendants identify Groblewski as the “Statewide Medical Director for the Massachusetts Partnership for
Correctional Healthcare (“MPCH”), the contracted medical provider for inmates under the care and custody of the
Massachusetts Department of Correction.” (Def. Mem. 1-2).
2

The complaint refers to this group of doctors as the “LSH defendant doctors.”

3

Nolet remained at BMC for three or four months and underwent various additional
surgical procedures to repair the bowel injury. (Id. ¶¶ 36-37). He alleges that thereafter he was
transferred to LSH against his will, where he stayed two to three weeks before being transferred
back to OCCC. (Id. ¶¶ 36-40).
After his return to OCCC, Nolet was prescribed dressing changes several times a day
“when informed to do so by defendants Paul Caratazzola, Shawna Nasuti, and Linda Roza,” as
well as pain medication for his wound. (Id. ¶¶ 41-42). 3
In 2014, Nolet went back to BMC for a follow-up appointment, at which time the BMC
surgeons allegedly informed him that they were unable to close the surgical site due to infection.
(Id. ¶¶ 43-44). In March 2015, Nolet was taken to a plastic surgeon at BMC who examined his
open wound and called in other BMC surgeons for consultation. (Id. ¶¶ 46-47). The complaint
alleges that one of the consulting surgeons “looked shocked” when he saw Nolet’s wound, and
“implied that this wound was one of the worst wounds he ha[d] seen.” (Id. ¶¶ 49-51). The
surgeon told Nolet that “the wound needed to be better cared for,” and changed the wound-care
procedures. (Id. ¶ 53). He further told Nolet that he was “upset with the progress of the wound
healing [ ] and the lack of treatment [Nolet] had been receiving.” (Id. ¶ 54).
The complaint alleges that, at least as of the time of filing, Nolet’s wound remains open,
he is still in pain, and that he has been told that he “will likely need numerous skin grafts.” (Id.
¶¶ 56-58). He further alleges that defendants Caratazzola and Roza are improperly “taking him
off [his] pain medication.” (Id. ¶ 58).
II.

Procedural Background
Nolet filed the complaint in this case on April 16, 2015. The complaint brings a claim

3

Defendant Paul Caratazzola was the Health Services Administrator for OCCC; defendants Shawna Nasuti
and Linda Roza are nurse practitioners at OCCC. (Id. ¶¶ 6-7).

4

under 42 U.S.C. § 1983 for deliberate indifference to a serious medical need in violation of the
Eighth Amendment (which the Court will deem Count One) and a claim for medical malpractice
(which the Court will deem Count Two); all claims appear to be asserted against all defendants. 4
Defendants Groblewski, Caratazzola, Nasuti, and Roza have moved to dismiss the claims against
them under Fed. R. Civ. P. 12(b)(6), or, in the alternative, for summary judgment under Fed. R.
Civ. P. 56. Dr. Freedman, Dr. Jameson, and Dr. Lilienstein have moved to dismiss the claims
against them for a lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and
under Rule 12(b)(6) for failure to state claim for which relief can be granted. Defendant Dr. Roy
has moved to dismiss the claims against her under Rule 12(b)(6) and for failure to comply with
the notice requirement of Mass. Gen. Laws ch. 231, § 60B.
III.

Standard of Review
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
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). Dismissal is appropriate if the facts as alleged do

4

The complaint also appears to assert a separate claim for “negligence”; however, because even a liberal
reading of the complaint does not plausibly support a claim for negligence apart from medical malpractice, the Court
will treat the two claims as one.

5

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).
IV.

DOC Defendants’ Motion to Dismiss
Defendants Groblewski, Caratazzola, Nasuti, and Roza (the “DOC defendants”) have

moved to dismiss the claims against them under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim under § 1983 or Massachusetts common law. In the alternative, DOC defendants have
moved for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that Nolet failed to
exhaust his administrative remedies before filing suit, as required by the Prison Litigation
Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a).
A.

Failure to State a Claim

State prison officials violate the Fourteenth Amendment if they exhibit a “deliberate
indifference” to a pretrial detainee’s serious medical needs. See Feeney v. Correctional Med.
Servs., 464 F.3d 158, 161-62 (citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). In order to
succeed on a deliberate-indifference claim based on inadequate medical care, “a plaintiff must
satisfy both a subjective and objective inquiry.” Leavitt v. Correctional Med. Servs., 645 F.3d
484, 497 (1st Cir. 2011) (quoting Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002)).
Subjectively, he must show “that prison officials possessed a sufficiently culpable state of mind,
namely one of ‘deliberate indifference’ to an inmate’s health or safety.” Id. Objectively, he
must establish that the deprivation alleged was “sufficiently serious.” Id.
To prevail on a claim of medical malpractice under Massachusetts law, a plaintiff must
prove by a preponderance of the evidence that (1) a physician-patient relationship existed
between the physician and the injured party, (2) the defendant “failed to conform to good
medical practice,” and (3) the breach was the proximate cause of the injury. See Doherty v.

6

Hellman, 406 Mass. 330, 333 (1989). The relevant standard of care is whether the health-care
professional “has exercised the degree of care and skill of the average qualified practitioner,
taking into account the advances in the profession . . . [A] specialist should be held to the
standard of care and skill of the average member of the profession practicing the specialty, taking
into account the advances in the profession.” Brune v. Belinkoff, 354 Mass. 102, 109 (1968).
The standard of care, however, “does not require physicians to provide the best care possible.”
Palandjian v. Foster, 446 Mass. 100, 105 (2006). The skill level required is “not the middle but
the minimum common skill.” W.C. Prosser & W.P. Keeton, Torts § 32 at 187 (5th ed.1984),
quoted id. at 105. 5
1.

Groblewski

There are only two allegations in the complaint that address Groblewski. The first
identifies him as “the medical doctor for the Massachusetts Department of Correction,” and the
person “in charge of making the decision for the placement of the Plaintiff at ‘LSH’ for
treatment.” (Compl. ¶ 5). The complaint does not further explain the basis for that conclusion.
The second allegation concerns Nolet’s first transfer from Morton Hospital to Lemuel Shattuck
Hospital, and simply states Nolet’s “belie[f] that [the decision to transfer him to LSH] was
implemented by defendant Thomas Groblewski.” (Id. ¶ 17). Those allegations are plainly
insufficient to support a claim for deliberate indifference, nor do they include any facts at all that
would support a conclusion that Groblewski’s transfer decision was negligent in any way—even
assuming it was, in fact, Groblewski who made that decision. Accordingly, Groblewski’s
motion to dismiss the claims against him will be granted.

5

Although the case law often refers to “physicians,” parallel standards apply for nurse practitioners or other
health-care professionals. See, e.g., Bodden v. Nicholson, 85 Mass. App. Ct. 1104, * 2 (2014).

7

2.

Caratazzola, Nasuti, and Roza

Liberally construed, the complaint alleges that defendants Caratazzola, Nasuti, and Roza
were responsible for Nolet’s treatment and care once he returned to OCCC following his
emergency surgeries at BMC and recovery period at LSH. (Compl. ¶¶ 6, 7, 42). The DOC
defendants do not appear to dispute that Nolet had a serious medical need once he returned to
OCCC. The complaint further alleges that Nolet’s doctors instructed that he “be placed on pain
medication for the extreme pain he was in from [his] open and oozing wound.” (Id. ¶ 41).
According to the complaint, Caratazzola and Roza “are taking him off pain medication” even
though Nolet “is still in pain from [the] open wound.” (Id. ¶ 58). Under the circumstances,
those allegations are enough to state a claim for deliberate indifference to a serious medical need.
See, e.g., Dadd v. Anoka Cnty., --- F.3d ---, 2016 WL 3563424, at * 3-4 (8th Cir. June 30, 2016)
(allegation of denial of pain medication sufficient to state a claim for deliberate indifference to
serious medical need) (citing Boretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir. 1991)).
The allegations against Nasuti appear to be slightly different. On its face, the complaint
omits Nasuti from the factual allegation concerning the alleged denial of pain medication. In his
opposition, Nolet explains that the deliberate indifference claim against Nasuti is instead based
on her failure to refer Nolet for further or additional treatment for his wound, despite “observing
Plaintiff’s wound for several months [and] seeing infection and [a lack of healing].” (Pl. Opp. at
7). Although it is a close call, the Court concludes that those allegations, taken as true, plausibly
allege that Nasuti was both “aware of facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed],” drew that inference, and yet did not seek additional
care or treatment for Nolet’s wound. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The complaint also alleges, in substance, that at follow-up appointments with BMC

8

surgeons, at least one surgeon was “shocked” at the state of Nolet’s wound, implied it was one of
the worst wounds the surgeon had seen, and that the surgeon was “upset with . . . the lack of
treatment the Plaintiff had been receiving.” (Compl. ¶¶ 49-54). Those allegations, combined
with the allegations that defendants are withholding pain medication in violation of Nolet’s
doctors’ orders, are sufficient to state a claim for medical malpractice. Accordingly, the motions
of defendants Caratazzola, Nasuti, and Roza to dismiss the claims against them will be denied.
B.

Exhaustion of Administrative Remedies

The DOC defendants have also moved for summary judgment pursuant to Rule 56,
contending that Nolet failed to properly exhaust his administrative remedies against them before
bringing suit under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a).
The PLRA provides that “[n]o action shall be brought with respect to prison conditions
under 42 U.S.C. § 1983 . . . or any other Federal law, by a prisoner . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This limitation on the ability of
prisoners to sue “applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
A plaintiff’s failure to exhaust administrative remedies is an affirmative defense as to
which a defendant bears the burden of proof. Jones v. Bock, 549 U.S. 199, 216 (2007). Here,
the complaint alleges that Nolet “placed a grievance [in] accordance with the policies of ‘OCCC’
medical on [February 2, 2015], which was denied on [February 3, 2015].” (Compl. ¶ 59). The
complaint also alleges that Nolet “appealed [that] grievance on [February 9, 2015],” and that the
appeal was denied. Defendants have submitted copies of Nolet’s grievances that they contend
are insufficient.

9

“Rule 56 [ ] mandates the entry of summary judgment ‘against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”' Coll v. PB Diagnostic Sys., 50 F.3d
1115, 1121 (1st Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
However, in making that determination, the court must view “the record in the light most
favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples,
Inc., 556 F.3d 20, 25 (1st Cir. 2009). Here, no discovery has yet been conducted, and the
evidentiary record before the Court is simply too undeveloped to support a summary judgment
ruling. Accordingly, DOC defendants’ motion for summary judgment for failure to exhaust
administrative remedies is premature and will be denied without prejudice to its renewal at a
later date. 6
V.

Commonwealth Defendants’ Motion to Dismiss
Doctors Jameson, Freedman, and Lilienstein (the “Commonwealth defendants”) have

moved to dismiss the claims against them under Fed. R. Civ. P. 12(b)(1) for lack of subjectmatter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Although it is not
entirely clear, it appears that the Commonwealth defendants’ contentions in support of dismissal
apply equally to both the Rule 12(b)(1) and 12(b)(6) analyses. Because the legal standard of
review is the same for both types of motions, the Court need only perform one analysis. See
Puerto Rico Tel. Co. v. Telecomm. Regulatory Bd. of Puerto Rico, 189 F.3d 1, 14 n.10 (1st Cir.
1999).

6

The Court is not, of course, ruling that plaintiff in fact exhausted his administrative remedies, but only
that the complaint plausibly alleges that he has done so and that a summary judgment ruling would be inappropriate
at this stage of the litigation.

10

A.

Count One—Deliberate Indifference to Serious Medical Need

As noted above, in order for a prisoner to bring a claim for deliberate indifference to a
serious need, the complaint must contain sufficient factual allegations to show “that prison
officials possessed a sufficiently culpable state of mind, namely one of ‘deliberate indifference’
to an inmate’s health or safety.” Burrell, 307 F.3d at 8. “The standard encompasses a ‘narrow
band of conduct’ . . . 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, 645 F.3d at 497 (quoting Feeney, 464 F.3d at 162; Estelle, 429 U.S. at 105-06).
In substance, the complaint here alleges that the “LSH defendant doctors” (a group that
includes the Commonwealth defendants who have moved to dismiss) persuaded Nolet to
undergo an operation for placement of a “j-tube,” failed to warn him of the risks involved, and
then “botched” the surgery leading to sepsis, further emergency surgeries, and a prolonged
recovery period. (See Compl. ¶¶ 19-35). Those allegations do not rise to the level of “wanton
infliction of pain” or “repugnant” conduct necessary for a violation of the Eighth and Fourteenth
Amendments. See Leavitt, 645 F.3d at 497 (“[S]ubpar care amounting to negligence or even
malpractice does not give rise to a constitutional claim.”); see also Estelle, 429 U.S. at 106 (“[A]
complaint that a physician has been negligent in diagnosing or treating a medical condition does
not state a valid claim of medical mistreatment under the Eighth Amendment.”). Accordingly,
the Commonwealth defendants’ motion to dismiss will be granted as to Count One.
The Court also notes that the complaint includes the three “Commonwealth”
defendants—Dr. Jameson, Dr. Freedman, and Dr. Lilienstein—in the group of doctors referred to
as the “LSH defendant doctors.” (See Compl. ¶ 4). The group of LSH defendant doctors, in
turn, includes those three defendants as well as Dr. Armstrong, Dr. Roy, Dr. Polak, and Dr.

11

Petros. Id. Because the factual allegations described above are brought against the entire group
of doctors, the same reasoning applies and the Court will sua sponte dismiss Count One against
the latter four doctor-defendants as well. 7
B.

Count Two—Medical Malpractice

The Commonwealth defendants have also moved to dismiss the medical malpractice
claim against them on the grounds that they are immune from suit under the Massachusetts Tort
Claims Act, Mass. Gen. Laws ch. 258, § 1, et seq., and that, in any respect, Nolet has failed to
comply with the MTCA’s presentment requirements.
Public employees are immune from tort liability pursuant to Mass. Gen. Laws ch. 258,
§ 2, which states that “no such public employee or the estate of such public employee shall be
liable for any injury or loss of property or personal injury or death caused by his negligent or
wrongful act or omission while acting within the scope of his office or employment.” The
Commonwealth defendants contend that Lemuel Shattuck Hospital is a public employer, and that
as employees of LSH, they are public employees and therefore immune from suit. That may
well be true; however, those conclusions are not evident on the face of the complaint, nor have
defendants presented the Court with any other documents or evidence that may be considered on
a motion to dismiss.8 Accordingly, defendants’ motion to dismiss Count Two will be denied. 9

7

A district court may, sua sponte, dismiss the claim of a plaintiff proceeding in forma pauperis if the court
determines that it fails to state a claim on which relief can be granted. Feeney, 464 F.3d at 161 n.3 (citing 28 U.S.C.
§ 1915(e)(2)(B)(ii)).
8

On a motion to dismiss, the court may properly take into account four types of documents outside the
complaint without converting the motion into one for summary judgment: (1) documents of undisputed authenticity;
(2) documents that are official public records; (3) documents that are central to plaintiff's claim; and (4) documents
that are sufficiently referred to in the complaint. Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
9

Because the Court is unable at this stage to determine whether the MTCA applies, it need not consider
defendants’ contention that Count Two must be dismissed for a failure to comply with the presentment requirements
of Mass. Gen. Laws ch. 258, § 4.

12

VI.

Dr. Roy’s Motion to Dismiss
Dr. Roy has moved to dismiss the claims against her under Fed. R. Civ. P. 12(b)(6) for

for failure to state a claim upon which relief can be granted. Dr. Roy has also moved to dismiss
Count Two against her on the ground that Nolet has failed to comply with the notice
requirements for medical malpractice actions contained in Mass. Gen. Laws ch. 231, § 60L.
A.

Failure to State a Claim

For the reasons described above, the Court will dismiss Count One against Dr. Roy for
deliberate indifference to a serious medical need. Dr. Roy also contends that the medical
malpractice claim against her (Count Two) should be dismissed because the complaint fails to
assert any specific wrongdoing on her part, or to otherwise connect her to Nolet’s treatment.
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 so as to do justice.”).
As discussed above, the allegations in the complaint relevant to Nolet’s allegedly
“botched” j-tube surgery are made against the “LSH defendant doctors” as a whole. And, also as
discussed above, that group includes seven doctors, one of which is Dr. Roy. It is clear from the
face of the complaint that Nolet was unconscious during the j-tube surgery, and, in any event, it
would be difficult for a layman to know who, specifically, among a group of doctors was
responsible for allegedly negligent conduct that occurred during a surgery. Taken as a whole,
and considering Nolet’s status as a prisoner proceeding pro se, the Court finds that the
allegations in the complaint are sufficient to state a plausible claim for medical malpractice

13

against Dr. Roy.
B.

Mass. Gen. Laws ch. 231, § 60L

In the alternative, Dr. Roy contends that Nolet’s medical malpractice claim should be
dismissed for failure to comply with the notice requirements of Mass. Gen. Laws ch. 231, § 60L.
Section 60L(a) provides that “a person shall not commence an action against a provider of health
care as defined in the seventh paragraph of section 60B unless the person has given the health
care provider 182 days written notice before the action is commenced.” Mass. Gen. Laws ch.
231, § 60L(a). 10
Section 60L is a relatively new statute and, as far as the Court is aware, no Massachusetts
court decision has considered the requirements it imposes in a written opinion. It is unclear
whether the statute makes proper notice a “special element” of a medical malpractice claim that
must be affirmatively pleaded in a complaint. See Ashley v. New York State Office of Children &
Fam. Servs., 33 F. Supp. 3d 76, 78 (D. Mass. 2014); cf. Slaney v. Westwood Auto, Inc., 366
Mass. 688 (1975) (requirement of sending demand letter prior to suit under Massachusetts
consumer protection law, Mass. Gen. Laws ch. 93A, § 9, is a “special element” that must be
alleged in complaint).
Regardless, Section 60L does provide for several exceptions, one of which appears to
apply here. Under Section 60L(k), “[n]othing in this section shall prohibit the filing of suit at
any time in order to seek court orders to preserve and permit inspection of tangible evidence.”
Mass. Gen. Laws ch. 231, § 60L(k). Shortly after this Court granted Nolet’s motion to proceed

10
Mass. Gen. Laws ch. 231, § 60B defines a “provider of health care” as “a person, corporation, facility or
institution licensed by the commonwealth to provide health care or professional services as a physician, hospital,
clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist,
psychologist, social worker, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope
of his employment.”

14

in forma pauperis, see Dkt. No. 9, Nolet filed a “Motion for Order of Waiver of Costs and Fees
of Lemuel Shattuck Hospital Medical Records from his Medical File,” Dkt. No. 12. In that
motion, Nolet sought a court order waiving the fees charged by LSH to provide Nolet with a
copy of his medical records. See id. Given Nolet’s indigent status, and his inability as a prisoner
to inspect his own records in person at LSH, the Court concludes that the filing of a complaint
was, at least in part, necessary to Nolet’s ability to seek a court order “permit[ting] inspection of
tangible evidence,” namely, his medical records.
Furthermore, and in any event, the Court also notes that Dr. Roy has not submitted any
evidence to the Court in support of her contention that no notice was provided. Cf. Corrada
Betances v. Sea-Land Service, Inc., 248 F.3d 40 (1st Cir. 2001) (assertions by counsel in legal
memoranda are insufficient to establish material facts). Accordingly, Dr. Roy’s motion to
dismiss Count Two will be denied.
VII.

Conclusion
For the foregoing reasons, defendants’ motions to dismiss are GRANTED in part and

DENIED in part, as follows:
1.

The motion of defendant Groblewski to dismiss the complaint against him
pursuant to Rule 12(b)(6) is GRANTED.

2.

The motions of defendants Caratazzola, Nasuti, and Roza to dismiss the
complaint against them pursuant to Rule 12(b)(6) are DENIED.

3.

The motion of defendants Caratazzola, Nasuti, and Roza for summary judgment
pursuant to Rule 56 for failure to exhaust administrative remedies is DENIED
without prejudice to its renewal.

4.

The motion of defendants Jameson, Freedman, and Lilienstein to dismiss the

15

complaint pursuant to Rule 12(b)(6) is GRANTED as to Count One and DENIED
as to Count Two.
5.

The claims against defendants Armstrong, Polak, and Petros asserted in Count
One are hereby DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

6.

The motion of defendant Roy to dismiss the complaint against her pursuant to
Rule 12(b)(6) and Mass. Gen. Laws ch. 231, § 60L is GRANTED as to Count
One pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and DENIED as to Count Two.

So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: July 15, 2016

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