Tague v. Holmes et al

Filing 62

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the forgoing, plaintiffs motions to remand, to amend the motion to remand, to amend the complaint and to appoint counsel (Docket Nos. 10, 23, 24 and 56) are DENIED; plaintiffs motion to clarify the jurisdictional statement (Docket No. 13) and defendants motion to dismiss (Docket No. 16) are ALLOWED and plaintiffs motion to consider service completed (Docket No. 25) is DENIED as moot. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

JOHN TAGUE,
Plaintiff,
v.
EMILY HOLMES, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No.
16-11837-NMG

MEMORANDUM & ORDER
Gorton, J.
This case arises out of a dispute concerning the treatment
of plaintiff’s health problems in a Massachusetts correctional
facility.

The pro se plaintiff, John Tague, claims that, during

his incarceration at Old Colony Correctional Center in
Bridgewater, Massachusetts, healthcare personnel failed to
provide him with satisfactory medical care in violation of
1) Article 26 of the Massachusetts Declaration of Rights through
the Massachusetts Civil Rights Act (“the MCRA”), M.G.L. c. 12
§ 11H and 11I and 2) the Eighth Amendment to the United States
Constitution through 42 U.S.C. § 1983.

Plaintiff also alleges

that defendants threatened and intimated him in violation of the
MCRA.
The following motions are pending before the Court:
1) Plaintiff’s motion to remand (Docket No. 10),

-1-

2) Plaintiff’s motion to amend his motion to remand (Docket
No. 24),
3) Plaintiff’s motion to amend his complaint (Docket No.
23),
4) Plaintiff’s motion to appoint counsel (Docket No. 56),
5) Plaintiff’s motion to clarify the jurisdictional
statement (Docket No. 13),
6) Defendants’ motion to dismiss (Docket No. 16) and
7) Plaintiff’s motion to allow service to be considered
complete (Docket No. 25).
I.

Background
The pro se plaintiff, John Tague, is serving a life

sentence in a Massachusetts correctional facility and is
currently incarcerated at Souza-Baranowski Correctional Center
in Shirley, Massachusetts.

During the events at issue, he was

incarcerated at Old Colony Correctional Center (“OCCC”) in
Bridgewater, Massachusetts.
Defendants are various employees of the Massachusetts
Partnership for Correctional Health (“MPCH”), a private
contractor that provides health services to inmates in the
custody of the Massachusetts Department of Correction.
Defendant Khiem Tran is a medical doctor, defendants Paul
Caratazzola and Emily Holmes are Health Services Administrators
and defendant Linda Farag is the Grievance and Appeals
Coordinator.

-2-

During his incarceration, plaintiff was diagnosed with
Charcot-Marie-Tooth disease, a progressive neurological disorder
that eventually incapacitates the body’s extremities and spinal
column and often results in foot deformities and mobility
issues.

Plaintiff submits that, due to that disease, he has

high arches, claw toes and requires a wheelchair, although he is
occasionally able to use a walker.
Plaintiff claims that numerous physicians, including Drs.
Enau, Angel and Hameed, and nurse practitioner Linda Rosa have
prescribed narcotics, such as morphine, methadone, klonopin and
gabapentin, for the pain that results from his condition.
According to plaintiff, those healthcare providers ruled out
pain killers such as Tylenol and ibuprofen because they are
ineffective.

His morphine prescription was last renewed by Dr.

Hameed in September, 2015.
In October, 2015, Dr. Khiem Tran began treating plaintiff.
Dr. Tran reduced plaintiff’s morphine use and then used a
tapering schedule to end it altogether.

As of January, 2016,

plaintiff’s pain was being treated with amitriptyline (a nerve
pain medication), carbamazepine (a nerve pain medication),
baclofen (a muscle relaxer) and acetaminophen (a pain
medication).

Three months later, Dr. Tran prescribed tegretol

(a nerve pain medication), amitriptyline (a nerve pain

-3-

medication), Tylenol and indomethacin (a pain medication) to
treat plaintiff’s pain.
After his morphine prescription was terminated, plaintiff
filed a grievance with MPCH in October, 2015 and defendant
Caratazzola responded one month later.

Plaintiff appealed the

denial of his grievance and alleges that defendant Farag
disposed of his appeal in an improper manner
by slyly merging a letter Tague wrote to her of only one
page AFTER he submitted his appeal, and his grievance
appeal.
Plaintiff avers that all four defendants colluded to deprive him
of pain medication and then “muddied the water to confuse anyone
investigating”.
Plaintiff also alleges that, at about the same time that
his morphine prescription ended, volumes one and two of his
medical records disappeared.

He filed a medical grievance in an

attempt to locate his records but defendants Holmes and Farag
ruled that the loss of the files was “non grievable”.
In January, 2016, plaintiff was sent to consult with Dr.
David Thaler, a neurologist at Tufts Medical Center.

Plaintiff

alleges that the visit was a result of defendants’ “effort to
get a specialist to corroborate their sadistic plan” and that
defendants purposely withheld his lost files from Dr. Thaler.
In the medical record from the visit, Dr. Thaler noted that
plaintiff believes that he has Charcot-Marie-Tooth disease but
-4-

stated that the correct diagnosis is chronic, progressive
spastic quadriparesis.

Dr. Thaler also observed that plaintiff

has “a sincere pain syndrome” and that “he needs pain
management”.

Although Dr. Thaler stated that he has “no

objection to [plaintiff] using morphine and/or gabapentin”, he
did not specifically recommend those drugs.
According to plaintiff, in February, 2016, because of his
untreated pain, he attempted suicide.

In April of that year,

plaintiff claims that Dr. Tran colluded with the other
defendants to deprive him of his wheelchair.

The complaint

states that, at plaintiff’s request, his wheelchair was
returned.
In September, 2016, plaintiff filed suit in Plymouth
Superior Court alleging that defendants violated 1) Article 26
of the Massachusetts Declaration of Rights through the MCRA,
M.G.L. c. 12 § 11H and 11I and 2) the Eighth Amendment of the
United States Constitution through 42 U.S.C. § 1983.

Plaintiff

further claims that defendants violated the MCRA by threatening,
intimidating and attempting to coerce him.

He seeks a

declaratory judgment that defendants have violated his state and
federal constitutional rights by subjecting him to cruel and
unusual punishment under M.G.L. c. 231A, injunctive relief and
damages.

-5-

That same month, defendants removed the case to this Court
based upon the 42 U.S.C. § 1983 claim and plaintiff responded
with a motion to remand and a motion to clarify the
jurisdictional statement.
motion to dismiss.

In October, 2016, defendants filed a

Shortly thereafter, plaintiff filed motions

to amend the complaint, to amend his motion to remand and to
allow service to be considered complete.

In June, 2017,

plaintiff filed a motion to have counsel appointed on his
behalf.
The pending motions are the subject of this memorandum and
order and, for the reasons that follow, the motions to remand,
to amend the motion to remand, to amend the complaint and to
appoint counsel will be denied; the motion to clarify and to
dismiss will be allowed and the motion to consider service
completed will be denied as moot.
II.

Plaintiff’s Motions to Remand, to Amend his Motion to
Remand and to Amend his Complaint
This Court agrees with defendants that plaintiffs’ motion

to remand is unavailing.

Plaintiff contends that remand is

proper because the majority of his claims involve state law and
broader relief is available in state court.

The First Circuit

Court of Appeals (“First Circuit”) has determined, however, that
if a plaintiff asserts a federal claim,

-6-

[i]t is immaterial that a claimant in retrospect views her
federal claims as surplus, or after removal, moves to
strike the federal claims. The plaintiff is the master of
the claim; he or she may avoid federal jurisdiction by
exclusive reliance on state law.
Ortiz-Bonilla v. Federacion de Ajedrez de Puerto Rico, Inc., 734
F.3d 28, 36 (1st Cir. 2013) (internal citations and quotations
omitted).
Plaintiff attempts to avoid the Ortiz-Bonilla holding by
asserting that the First Circuit did, in fact, remand one of the
two cases addressed in Ortiz-Bonilla.

In so arguing, plaintiff

ignores the fact that, in the case that the First Circuit
remanded, the plaintiff had filed a second complaint in state
court that “expressly waived any federal claims.” Id. at 38.
Because plaintiff has not filed a new case in state court
expressly waiving his federal claims, remand is improper.
Plaintiff also moves to amend his motion to remand and to
amend his complaint “[t]o cure the slight jurisdictional
defect”, i.e. remove his federal claim.

Allowing plaintiff to

strike his federal claim from the complaint to defeat removal is
precisely what the Ortiz-Bonilla Court found to be improper.
Accordingly, plaintiff’s motions to remand, to amend his motion
to remand and to amend the complaint will be denied.
III.

Plaintiff’s Motion to Appoint Counsel
Because there is no constitutional right to counsel in a

civil case and the exceptional circumstances that warrant the
-7-

appointment of counsel are not present here, the motion to
appoint counsel will be denied. King v. Greenblatt, 149 F.3d 9,
14 (1st Cir. 1998).
IV.

Plaintiff’s Motion to Clarify Jurisdictional Statement
Plaintiff moves to clarify that when he stated “MGL c 12

section I, and H” he meant to describe the MCRA, specifically,
“MGL c 12 section 11(I) and 11(H)”.

That motion is allowed.

Under M.G.L. c. § 11I, an individual may file a suit alleging a
violation of his constitutional rights which is what plaintiff
has done in this case.

M.G.L. c. § 11H permits the Attorney

General to file a claim with respect to an individual’s
constitutional rights and thus it does not apply to this case.
Accordingly, the Court will only consider M.G.L. c. § 11I in its
analysis.
V.

Defendants’ Motion to Dismiss
A. Legal Standard
To survive a motion to dismiss for failure to state a claim

under Fed. R. Civ. P. 12(b)(6), a complaint must contain
“sufficient factual matter” to state a claim for relief that is
actionable as a matter of law and “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if, after accepting as true all nonconclusory factual allegations, the court can draw the
-8-

reasonable inference that the defendant is liable for the
misconduct alleged. Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d
1, 12 (1st Cir. 2011).

A court may not disregard properly pled

factual allegations even if actual proof of those facts is
improbable. Id.

Rather, the relevant inquiry focuses on the

reasonableness of the inference of liability that the plaintiff
is asking the court to draw. Id. at 13.
When rendering that determination, a court may not look
beyond the facts alleged in the complaint, documents
incorporated by reference therein and facts susceptible to
judicial notice. Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011).
B. Eighth Amendment and Article 26 Claims
Plaintiff claims that defendants have been deliberately
indifferent to his serious medical condition in violation of
Article 26 of the Massachusetts Declaration of Rights through
M.G.L. c. 12, § 11I and the Eighth Amendment through 42 U.S.C.
§ 1983.

Defendants move to dismiss both of those claims.
1. Deliberate Indifference

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
-9-

(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
(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.”).

-10-

2. Application
Plaintiff has failed plausibly to allege the deliberate
indifference required for a claim pursuant to Article 26 and the
Eighth Amendment.

For the purposes of the motion to dismiss,

defendants do not dispute that plaintiff has a serious medical
condition and thus the first prong of the deliberate
indifference test is met.
With respect to the second prong, however, there is no
allegation that defendants have ignored plaintiff’s serious
medical condition.

On the contrary, exhibits attached to the

complaint show that Dr. Tran has treated his pain with the
numerous medications listed above.

Moreover, plaintiff was

taken to see a neurologist, Dr. Thaler, for a consult on his
condition.

While Dr. Thaler stated that plaintiff’s pain

symptoms should be treated and that he did not object to
treatment through morphine and gabapentin, he did not state that
those specific medications were necessary.
With respect to the other three defendants, Holmes, Farag
and Caratazzola, even assuming that they have been directly
involved in plaintiff’s medical care, plaintiff has failed to
state a claim upon which relief can be granted.

Although

plaintiff states that defendants colluded to deprive him of his
medication and prevent his grievances, he provides no plausible
allegation that they did any such thing.
-11-

Instead, his complaint

shows that he has been treated with pain medications, albeit not
the specific drugs he requests, and that defendants have
responded to his grievances.

Furthermore, plaintiff alleges no

facts that support his conclusory allegation that defendants
purposefully lost his medical records.
This Court will not substitute its judgment for that of a
medical doctor with respect to treatment decisions.

Because

plaintiff has failed plausibly to allege that defendants are
ignoring his medical condition, the motion to dismiss his
deliberate indifference claims will be allowed.
C. Purported Threats, Intimidation and Coercion
Plaintiff also asserts that “defendants us[ed] officers to
enforce their sadistic orders [through] ‘threats and
intimidation[]’” in violation of the MCRA, M.G.L. c. 12 § 11H.
Specifically, plaintiff suggests that defendants used threats
and intimidation to deprive him of his wheelchair.
A defendant violates the Massachusetts Civil Right Act if
(1) the defendant threatens, intimidates, or coerces the
plaintiff in order to (2) cause the plaintiff to give up
something that he has the constitutional right to do.
Comeau v. Town of Webster, Mass., 881 F. Supp. 2d 177, 189 (D.
Mass. 2012).

There is no plausible allegation that defendants

threatened or intimidated plaintiff in order to cause him to
give up a constitutional right.

An exhibit attached to the

complaint states that plaintiff “wanted to try [the walker] for

-12-

exercise”.

The complaint also states that his wheelchair has

been returned.

In short, plaintiff has failed plausibly to

allege a violation of the MCRA through threats and intimidation.
VI.

Plaintiff’s Motion to Allow Service to Be Considered
Complete
Because the case will be dismissed, plaintiff’s motion to

allow service to be considered completed will be denied as moot.
VII.

Plaintiff’s Letters Regarding Safety Concerns
Plaintiff has also filed several letters with the Court

that recount his concern for his safety in prison and charge
officers and other inmates with trying to hurt or kill him.

The

complaint does not include claims based upon such allegations
and no motion has been filed regarding them, so this Court lacks
jurisdiction over the purported safety issues.

The Court did,

however, address a letter to the Superintendent of Souza
Baranowski Correctional Center, Steven Silva, with respect to
the issue.

Superintendent Silva responded in writing to assure

the Court that plaintiff has been interviewed by Inner Perimeter
Security on multiple occasions to investigate his safety
concerns.

That matter is deemed closed for the time being.

-13-

ORDER
In accordance with the forgoing, plaintiff’s motions to
remand, to amend the motion to remand, to amend the complaint
and to appoint counsel (Docket Nos. 10, 23, 24 and 56) are
DENIED; plaintiff’s motion to clarify the jurisdictional
statement (Docket No. 13) and defendants’ motion to dismiss
(Docket No. 16) are ALLOWED and plaintiff’s motion to consider
service completed (Docket No. 25) is DENIED as moot.

So ordered.

/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated August 8, 2017

-14-