Horan et al v. Cabral et al
Judge George A. OToole, Jr: OPINION AND ORDER entered granting 31 Motion to Dismiss for Failure to State a Claim (Lyness, Paul)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-10359-GAO
ANDREA CABRAL, NAPHCARE, INC., JAMES CHEVERIE, M.D. JOHN DOE, P.A., and
JANE DOE, NURSES,
OPINION AND ORDER
September 29, 2017
The plaintiff, John Horan, a former inmate at the Suffolk County House of Corrections
(“SCHOC”), asserts federal and state civil rights violations and various state common-law claims
against the former Sheriff of Suffolk County, Andrea Cabral, and various medical personnel
associated with SCHOC. The claims stem from allegedly inadequate medical treatment that Horan
received during his time as an inmate there. Pending before the Court is former Sherriff Cabral’s
motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
The amended complaint alleges the following relevant facts: during and prior to his
incarceration at SCHOC in December of 2012, the plaintiff suffered from osteomyelitis—a type
of bone infection—with the root of the infection apparently located in his right foot. For more than
one year prior to incarceration, Dr. George Abraham had treated the plaintiff’s osteomyelitis with
intravenous antimicrobial therapy administered through a peripherally inserted central catheter, or
“PICC line.” Both the osteomyelitis and the PICC line treatment persisted after the plaintiff was
incarcerated. Shortly after the plaintiff’s incarceration, Dr. Abraham notified medical personnel
working at SCHOC, including Dr. James Cheverie, the medical doctor at SCHOC, of the plaintiff’s
condition and requested that SCHOC contact him before stopping any treatment of the
osteomyelitis. Dr. Abraham also warned that cessation of the PICC line treatment could exacerbate
the infection and possibly require amputation of the plaintiff’s toes or foot.
Notwithstanding Dr. Abraham’s warning, on or about January 13, 2013, Dr. Cheverie and
other medical professionals at Shattuck Hospital removed the PICC line after concluding that the
plaintiff’s infection did not require intravenous treatment. The plaintiff objected to the removal of
the PICC line and reports that his condition worsened almost immediately after it was removed.
He received oral pain medication from SCHOC personnel but did not receive any oral antibiotics
until much later. On January 15, Dr. Abraham wrote a letter to Dr. Cheverie warning him that
removing the PICC line could aggravate the osteomyelitis and result in amputation. On January
22, counsel for the plaintiff also sent a letter to Dr. Cheverie warning him of the risks associated
with removing the PICC line, enclosing the January 15 letter from Dr. Abraham. Counsel sent this
same letter, with the January 15 letter from Dr. Abraham enclosed, to Andrea Cabral, the Sherriff
of Suffolk County at that time. The plaintiff alleges that this letter “put her on notice of the
circumstances of Horan’s serious medical needs and the importance of maintaining intravenous
antimicrobial therapy.” (Am. Compl. ¶ 26 (dkt. no. 29).)
By January 31, the plaintiff’s toe was discolored and swollen. On or about February 13,
Dr. Cheverie confirmed that the plaintiff’s condition continued to worsen. The plaintiff was then
advised that his right, second toe needed to be amputated. After the plaintiff was released from
SCHOC under a community supervision program, his right, second toe was surgically amputated
on May 31. The plaintiff alleges that the amputation of his toe was the result of deficient medical
The claims against Cabral include generally stated federal and state civil rights violations,
as well as a specifically stated violation of the Eighth Amendment. There are also various common
law and tort claims for negligence, negligent infliction of emotional distress, intentional infliction
of emotional distress, and assault and battery. 2
A complaint need only contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But, to survive a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the complaint must contain “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007)). The factual matter in the complaint, accepted as true, must be sufficient to
“state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice” and
will not survive a motion to dismiss. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
The plaintiff’s Motion and Incorporated Memorandum in Opposition to Defendant’s Motion to
Dismiss (dkt. no. 33) contains additional factual assertions about Naphcare, the contractor
responsible for providing medical services to SCHOC. Ordinarily, the court will not look beyond
the complaint when evaluating a motion to dismiss, and none of the reasons why doing so might
be appropriate exists in this case. See Young v. Lepone, 305 F.3d 1, 10–11 (1st Cir. 2002);
Watterson v. Page, 987 F.2d 1, 3–4 (1st Cir. 1993). Even if this information had been considered,
it would not have affected the outcome of this motion, which is focused on the allegations against
Cabral, not Naphcare.
The plaintiff’s Amended Complaint (dkt. no. 29) often uses “defendants” without making specific
reference as to which of the defendants in particular is responsible for the alleged conduct. The
Court assumes for the purposes of this motion that Andrea Cabral is an intended defendant for all
claims except the medical malpractice claim. She was not alleged to be a medical professional and
is excluded from the list of named defendants on that count.
Federal Civil Rights Claim under 42 U.S.C. § 1983
The plaintiff alleges that the purportedly deficient medical care he received as an inmate at
SCHOC violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The
claim is asserted against Cabral in her individual capacity. 3
To successfully state an Eighth Amendment claim based on inadequate medical care, the
plaintiff must plead that the relevant official was deliberately indifferent to an objectively serious
deprivation or medical need. See Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir.
2011) (discussing the subjective element of “deliberate indifference” and the objective element of
“serious” deprivation). “Deliberate indifference in this context may be shown by the denial of
needed care as punishment and by decisions about medical care made recklessly with ‘actual
knowledge of impending harm, easily preventable.’” Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st
Cir. 2007) (quoting Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 162 (1st Cir. 2006)).
“[S]ubstandard care, malpractice, negligence, inadvertent failure to provide care, and disagreement
as to the appropriate course of treatment are all insufficient to prove a constitutional violation.” Id.
The second, objective requirement looks to the seriousness of the deprivation or medical need. “A
medical need is “serious” if it has been diagnosed by a physician as mandating treatment, or one
that is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990) (citations
In this instance, however, the amended complaint does not contain any factual basis for the
supposition that Cabral participated in Horan’s medical treatment at all, let alone the actions or
omissions that allegedly amounted to an Eighth Amendment violation. Rather, the claims appear
Counts I and II combined assert this claim.
to be premised on her being a general supervisor of activity at the SCHOC in her capacity as
In the context of supervisory liability, it is well established that “[g]overnment officials
may not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Iqbal, 556 U.S. at 676 (emphasis in original); see Leavitt, 645 F.3d at
502; Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). “[A] supervisor may not be held liable
for the constitutional violations committed by his or her subordinates, unless there is an
‘affirmative link between the behavior of a subordinate and the action or inaction of the supervisor
. . . such that the supervisor’s conduct led inexorably to the constitutional violation.’” FelicianoHernández v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) (omission in original)
(quoting Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)). Additionally, “isolated
instances of unconstitutional activity ordinarily are insufficient to establish a supervisor’s policy
or custom, or otherwise to show deliberate indifference.” Maldonado-Denis v. Castillo-Rodriguez,
23 F.3d 576, 582 (1st Cir. 1994).
Even assuming an underlying constitutional violation by medical personnel in the respect
alleged, the complaint fails to support a plausible inference that Cabral had personally been
involved with the subordinate personnel who provided the care such that she could be liable as a
supervisor. Drawing a reasonable inference in the plaintiff’s favor, that the January 22 letter from
the plaintiff’s counsel was received and read by Cabral, the letter neither establishes an
“affirmative link” nor plausibly supports the inference that Cabral’s conduct “led inexorably” to
the purported constitutional violation. See Feliciano-Hernández, 663 F.2d at 533. Cabral’s inaction
after receiving a letter that notified her of a disagreement regarding the plaintiff’s medical
treatment plan is, without more, not enough to establish deliberate indifference on her part.
Additionally, an isolated incident of constitutionally deficient medical care does not plausibly
allege a policy or practice of deliberate indifference to constitutional violations on the part of
Cabral. See Maldonado-Denis, 23 F.3d at 582. Because the complaint does not state a plausible
basis for relief, the § 1983 Eighth Amendment claim against defendant Cabral is dismissed. 4
State Civil Rights Claim
The plaintiff alleges that the treatment he received at SCHOC also amounted to a violation
of article XXVI of the Massachusetts Declaration of Rights and the Massachusetts Civil Rights
Act (“MCRA”), Massachusetts General Laws Chapter 12, Section11I. Viable claims under the
MCRA require the plaintiff to allege that his state or federal constitutional rights were interfered
with by a person by means of threats, intimidation, or coercion. See Williams v. O’Brien, 936
N.E.2d 1, 4–5 (Mass. App. Ct. 2010) (citing Swanset Dev. Corp. v. Taunton, 668 N.E.2d 333, 337
(Mass. 1996)). “The Massachusetts legislature intended that even a direct deprivation of a
plaintiff’s rights ‘would not be actionable under the act unless it were accomplished by means of
one of these three constraining elements.’” Nolan v. CN8, 656 F.3d 71, 77 (1st Cir. 2011)
(quoting Buster v. George W. Moore, Inc., 783 N.E.2d 399, 409 (Mass. 2003)); see also Hankey
v. Town of Concord-Carlisle, 136 F. Supp. 3d 52, 76 (D. Mass. 2015). Additionally, the MCRA
has traditionally precluded liability under theories of respondent superior in the public
sphere. See Lyons v. Nat’l Car Rental Sys., Inc., 30 F.3d 240, 245 (1st Cir. 1994); Chaabouni v.
City of Boston, 133 F. Supp. 2d 93, 101–03 (D. Mass. 2001); Sarvis v. Bos. Safe Deposit & Tr.
Co., 711 N.E.2d 911, 921 (Mass. App. Ct. 1999).
Although Cabral raised a qualified immunity defense in her motion to dismiss memorandum,
(Mem. of Law in Supp. of Andrea Cabral’s Mot. to Dismiss, 7 (dkt. no. 32)), a discussion of that
defense is unnecessary given that the plaintiff has failed to allege a constitutional violation with
respect to Cabral. See Feliciano-Hernández, 663 F.3d at 533 (“The first prong of the [qualified]
immunity analysis requires that a plaintiff state a claim of violation of a constitutional right.”).
Here, the amended complaint lacks factual allegations to support the contention that Cabral
ever interacted with the plaintiff, let alone that she threatened, intimidated, or coerced him in any
way. For that reason, the plaintiff’s claim against her under the MCRA must be dismissed.
State Common-Law Claims
The amended complaint alleges that the “defendants” are liable for negligence, negligent
infliction of emotional distress, intentional infliction of emotional distress, and assault and battery.
(Am. Compl. ¶¶ 54–71.) Although the plaintiff does not advance any arguments against Cabral on
these claims in his papers, they are addressed nonetheless.
The Massachusetts Tort Claims Act (“MTCA”), Mass. Gen. Laws ch. 285, § 2, protects
public employees acting within the scope of their employment from liability caused by their
negligence or wrongful acts. See Caisse v. DuBois, 346 F.3d 213, 218 (1st Cir. 2003). The plaintiff
has not alleged any facts suggesting that defendant Cabral was not acting within the scope of her
employment. See id. As the remedies provided under the MTCA are the exclusive means to seek
redress for negligence by public employees, the common-law negligence and negligent infliction
of emotional distress claims that the defendant now asserts must be dismissed with respect to
Cabral. Mass. Gen. Laws ch. 285, § 2; see id.; Canales v. Gatzunis, 979 F. Supp. 2d 164, 176 (D.
Finally, the plaintiff brings claims for intentional infliction of emotional distress and assault
and battery. A claim for intentional infliction of emotion distress requires the plaintiff to show: (1)
the defendant intended to inflict emotional distress, or should have known it was likely to result;
(2) the defendant’s conduct was extreme and outrageous; (3) the actions of the defendant caused
the emotional distress; and (4) the emotional distress sustained by the plaintiff was
severe. See Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st Cir 1996) (citing Agis v. Howard Johnson
Co., 355 N.E.2d 315, 318–19 (Mass. 1976)). An assault and battery is the “intentional and
unjustified force upon the person of another, however slight.” Commonwealth v. Dorvil, 32 N.E.3d
861, 866 (Mass. 2015) (quoting Commonwealth v. McCan, 178 N.E. 633, 634 (Mass. 1931)).
With respect to the emotional distress claim, the amended complaint does not include any
facts pertaining to Cabral’s intent, or what actions she took that could be considered extreme and
outrageous. Similarly, the complaint does not contain sufficient facts to support a claim against
defendant Cabral for assault and battery—that she used force upon the plaintiff intentionally and
without justification. To the extent that these claims were intended to be brought against defendant
Cabral, they are dismissed for lack of factual support beyond conclusory recitations of the
For the reasons stated herein, Andrea Cabral’s Motion to Dismiss (dkt. no. 31) is
GRANTED, and all claims against her are DISMISSED. Because the complaint has already been
amended once, the plaintiff’s request to be allowed to replead is denied.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
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