Wall v. Lubelczyk et al

Filing 79

Judge George A. O'Toole, Jr: OPINION AND ORDER entered finding as moot 66 Motion to Transfer Case; granting 71 Motion for Judgment on the Pleadings; finding as moot 75 Motion to Compel; denying 76 Motion for Summary Judgment (Halley, Taylor) Modified on 6/28/2017 (Halley, Taylor).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-12993-GAO
GREGORY A. WALL,
Plaintiff,
v.
REBECCA LUBELCZYK, THOMAS GROBLEWSKI, ADRIANNA CARRILLO, GERI
RIENDEAU, SHAWNA NASUTI, KAREN BERGERON, LAWRENCE WEINER, and
HAROLD CLARKE,
Defendants.

OPINION AND ORDER
June 27, 2017
O’TOOLE, D.J.
Pending before the Court is the motion of defendants Rebecca Lubelczyk, Thomas
Groblewski, and Geri Riendeau for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) (dkt. no. 71). The defendants are medical personnel who treated the pro se
plaintiff, Gregory A. Wall, for a shoulder injury that he sustained while incarcerated. They seek a
Rule 12(c) judgment on the pleadings on the plaintiff’s Eighth Amendment (Count I) and 42
U.S.C. § 1983 Failure to Train and Supervise (Count VI) claims, which would dispose of the only
remaining federal claims in the case. The plaintiff has opposed the defendants’ motion and moved
for summary judgment in his favor (dkt. no. 76). After consideration of the cross-motions, the
defendants’ motion for judgment on the pleadings is granted and the plaintiff’s motion for
summary judgment is denied.
A Rule 12(c) motion is determined “solely on the factual allegations in the complaint and
answer.” NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 8 (1st Cir. 2002). The standard of review
for a motion under Rule 12(c) “is identical to the standard of review for motions to dismiss for

failure to state a claim under Rule 12(b)(6).” Jardín De Las Catalinas Ltd. P’ship v. Joyner, 766
F.3d 127, 132 (1st Cir. 2014) (citation omitted). The Court takes the facts pled in the complaint as
true and considers reasonable inferences in the plaintiff’s favor. Frappier v. Countrywide Home
Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014).
As to Count I, the defendants argue that the facts pled are not sufficient to establish an
Eighth Amendment violation. To make out an Eighth Amendment claim, a plaintiff must show
more than “substandard care, malpractice, negligence, inadvertent failure to provide care, and
disagreement as to the appropriate course of treatment.” Ruiz-Rosa v. Rullán, 485 F.3d 150, 156
(1st Cir. 2007). Rather, a plaintiff must assert facts sufficient to support a conclusion that a
defendant’s withholding of “essential health care . . . amounted to ‘deliberate indifference to a
serious medical need.’” DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Deliberate indifference may be established “by decisions about
medical care made recklessly with ‘actual knowledge of impending harm, easily
preventable.’” Ruiz-Rosa, 485 F.3d at 156 (quoting Feeney v. Corr. Med. Servs., Inc., 464 F.3d
158, 162 (1st Cir. 2006)).
Though the plaintiff’s medical needs were obvious and serious, his allegations against these
defendants do not support an inference that their course of treatment amounted to reckless
disregard of impending harm to the plaintiff. According to the detailed allegations of the
Complaint, the defendants monitored the plaintiff’s condition through a physical therapy regimen,
provided him with pain medication, and assessed his progress, including through mobility
exercises and numerous in-person conversations. The plaintiff’s protests about the treatment of his
shoulder injury essentially concern the choice of non-surgical treatment rather than surgery. The
allegations, fairly understood, are not that the defendants denied him treatment, but rather that they

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chose to pursue a treatment recommended by the plaintiff’s orthopedic specialist that was
ineffectual. What is lacking are factual allegations that would support a conclusion that the
defendants chose the course they did out of such deliberate, that is, intentional, disregard for his
well-being that it was effectively unlawful punishment forbidden by the Eighth Amendment. The
plaintiff is not entitled to the treatment of his choice, and the fact that he was denied the specific
treatment he himself wanted pursued does not amount to deliberate indifference to serious medical
needs. See MacLeod v. Kern, 424 F. Supp. 2d 260, 266 (D. Mass. 2006).
As to Count VI, the defendants argue that the pleadings do not show that the defendants
were responsible for training subordinate staff or had supervisory duties that resulted in the
plaintiff’s being deprived of a civil right. Under 42 U.S.C. § 1983, state officials sued in their
individual capacities cannot be held liable “for the unconstitutional conduct of their subordinates
under a theory of respondeat superior but rather only on the basis of their own acts or
omissions.” Canales v. Gatzunis, 979 F. Supp. 2d 164, 171 (D. Mass. 2013) (quoting Sanchez v.
Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009)). And such “acts or omissions must amount to a
reckless or callous indifference to the constitutional rights of others.” Id. (quoting FebusRodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994)).
Here, the plaintiff merely alleges that the “[d]efendants are and were responsible for
training and supervising UMASS correctional Health Personel [sic] at Old Colony Correction
Center.” (Compl. ¶ 79 (dkt. no. 1).) The Complaint is similarly devoid of any facts regarding any
pattern or practice of deliberate indifference. The claim cannot succeed based on mere “general
factual allegations purportedly applicable to all Defendants.” Canales, 979 F. Supp. 2d at 172.

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Therefore, so much of Count VI as purports to be brought pursuant to § 1983 is dismissed as to all
defendants. 1
In light of the foregoing, the defendants’ Motion for Judgment on the Pleadings Pursuant
to Fed. R. Civ. P. 12(c) (dkt. no. 71) is GRANTED and Plaintiff’s Motion for Summary Judgment
(dkt. no. 76) is DENIED.
The Court now having dismissed all federal claims in the case, which claims served as the
sole basis for this Court’s subject matter jurisdiction, I decline to exercise pendant jurisdiction over
the plaintiff’s remaining state law claims. See 28 U.S.C. § 1367(c); Lares Grp., II v. Tobin, 221
F.3d 41, 45 (1st Cir. 2000) (finding it to be “well within [the court’s] broad discretion” to dismiss
without prejudice plaintiff’s supplemental state law claims once federal claim was dismissed).
Those claims are DISMISSED without prejudice.
The Motion of the Defendant, Dr. Adriana Carrillo, to Transfer the Claims Against Her to
Massachusetts Superior Court for the Purpose of Convening a Medical Malpractice Tribunal (dkt.
no. 66) is MOOT. The Plaintiff’s Motion to Compel Discovery Pursuant to Fed. R. Civ. P 26(B)
(dkt. no. 75) is also MOOT.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge

1

The pleading deficiencies as to Lubelczyk, Groblewski, and Riendeau are also present with
respect to the other named defendants, and the arguments for dismissal discussed here apply
equally to the federal failure to train and supervise claims against those other named defendants.
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