Stone v. Worcester County Sherriffs Office et al
Filing
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Judge Allison D. Burroughs: ORDER entered denying 20 Motion to Dismiss for Failure to State a Claim; denying 30 Motion to Dismiss for Failure to State a Claim. [Copy of Memorandum and Order mailed to plaintiff on 3/26/2019 @ Norfolk County Jail, 200 West Street, Dedham, MA 02324.] (PSSA, 3)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STEPHEN STONE,
Plaintiff,
v.
WORCESTER COUNTY SHERIFF’S
OFFICE, et al.,
Defendants.
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Civil Action No. 18-cv-10011-ADB
MEMORANDUM AND ORDER
BURROUGHS, D.J.
Pro se plaintiff Stephen Stone, who is presently confined at the Norfolk County Jail, has
filed a civil rights complaint under 42 U.S.C. § 1983 (“§ 1983”) in which he complains that his
Eighth Amendment rights were violated while he was confined at the Worcester County Jail and
House of Correction (“Worcester County HOC” or “Jail”) beginning in August 2015. He alleges
that the medical treatment he received at the facility for his serious mental health issues was
below the level of care required by the Constitution. Upon a preliminary screening of the
Amended Complaint [ECF No. 9 (“Amended Complaint”)], pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A, the Court ordered that all official capacity claims be dismissed and that summonses
issue as to Worcester County Sheriff Lewis Evangelidis and Dr. Bernard Katz. [ECF No. 14].
These Defendants have separately moved to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure (“Rule 12(b)(6)”) for failure to state a claim upon which relief can be granted.
[ECF Nos. 20, 30]. For the reasons stated below, the Defendants’ motions are DENIED.
I.
Factual Allegations
The following facts are drawn from the Amended Complaint. For purposes of evaluating
a 12(b)(6) motion, the Court will, as it must, “accept[] all well-pled facts in the complaint as true,
and draw[] all reasonable inferences in favor of the plaintiff.” Gilbert v. City of Chicopee, 915
F.3d 74, 80 (1st Cir. 2019).
A.
Stone’s Mental Health History and the Policy Prohibiting Klonopin
Stone has suffered from anxiety and other serious mental health issues since he was five
years old. Am. Compl. ¶ 8. Prior to his incarceration at the Worcester County HOC, his mental
illness was being effectively treated by the prescription medication Klonopin, to which Stone
responded “very well.” Id. In 2009-2010, during a period of incarceration in the Worcester
County HOC previous to the one at issue in this action, defendant Katz, who worked at the
facility as a contracted doctor, had prescribed Klonopin for Stone and was aware of his medical
needs. Id. At the time, Evangelidis was not the sheriff of Worcester County. Id. After
Evangelidis was elected sheriff, he instituted a new medication policy which included a
prohibition of the prescription of Klonopin to inmates (“the Policy”). Id.
On August 17, 2015, after the election of Evangelidis, Stone was brought to the
Worcester County HOC. Id. ¶ 9. At intake, Stone was not provided Klonopin due to the Policy.
Id. During his stay at the Jail, Stone “continuously” asked Katz for Klonopin, and Katz
responded that he was no longer able to provide that particular prescription medication due to the
Policy.
Stone’s mental health rapidly deteriorated because he did not have access to Klonopin.
Id. Between August 2015 and August 2016, he cut himself more than once, and employees of
the Worcester County HOC were aware of at least two or three of these incidents. Id. ¶ 10. He
also had numerous mental health breakdowns. Id.
B.
Stone’s Self-Suicide Attempts: August 2016-January 2017
On August 16, 2016, Stone attended a court proceeding at the Norfolk Superior Court.
Id. ¶ 12. He had surreptitiously brought a razor with him from the Worcester County HOC. Id.
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¶ 11. After the proceeding, when employees of the Worcester County HOC were present to
transport him back to the institution, Stone attempted suicide by cutting his arm with the razor.
Id. ¶ 12. He was taken by ambulance to Norwood Hospital. Id.
On October 19, 2016, when Stone was brought to Malden District Court, he had a mental
breakdown after court security refused him access to the building. Id. ¶ 13. In reaction to his
visible emotional instability, Worcester County HOC transport officers tackled him on the
pavement outside of the courthouse. Id. After they placed him in the back of the facility’s van,
he began to bang his head and kick the cage because of his emotionally unstable condition. Id.
Aware of this conduct, the transport officers called the Worcester County HOC to notify officials
of the situation, ask for permission to leave without waiting for another inmate, and request leave
to use flashing blue lights while transporting Stone back to the Jail. Id. During the return trip to
the Jail, the two transport officers failed to monitor Stone. Id. ¶ 14. Their view of Stone was
obstructed by an American flag that someone had hung over the observation window. Id.
During this ride, Stone attempted suicide by tying a “thermo” around his neck. Id. When the
van arrived at the Worcester County HOC, Stone was blue in the face and barely conscious. Id.
A correctional officer cut off the thermo, and Stone was taken to a hospital for emergency
treatment. Id.
On or around November 26, 2016, Stone attempted suicide in a “camera cell” at the Jail
by tying a sheet around his neck. Id. ¶ 16. When correctional officers entered the cell, Stone
was “semi-unresponsive” and required an oxygen mask and an injection to lower his pulse and
breathing. Id. On January 22, 2017, Stone cut his wrists open with a razor after he was denied
access to the phone. Id. ¶ 20. He was taken to a hospital, where he received stitches and was
informed he had cut his tendon. Id.
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C.
Claims
The Amended Complaint sets forth three § 1983 claims for violations of the Eighth
Amendment: Katz’s refusal to prescribe Klonopin because of the Policy; Evangelidis’s
implementation and enforcement of the Policy; and, the failure of the transport officers on
October 19, 2016 to monitor Stone during the drive back to the Jail. Id. ¶¶ 25-27. 1
II.
Standard of Review
As noted above, on a motion to dismiss under Rule 12(b)(6), the Court must accept as
true all well-pleaded facts, analyze those facts in the light most favorable to the plaintiff, and
draw all reasonable factual inferences in favor of the plaintiff. See Gilbert, 915 F.3d at 80.
Detailed factual allegations are not required, but the complaint must set forth “more than labels
and conclusions,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and must contain
“factual allegations, either direct or inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory,” Gagliardi v. Sullivan, 513 F.3d 301, 305
(1st Cir. 2008) (internal quotations). The alleged facts must be sufficient to “state a claim to
relief that is plausible on its face.” Twombly, 550 U.S. at 570.
III.
Discussion
A.
Eighth Amendment Violations for Inadequate Medical Care
1.
Requirements of the Claim
“Deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint
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The two transport officers are named as “John Doe” defendants. Because Stone uses fictitious
names for them, the Court has not ordered that summonses issue as to these two defendants. If,
through discovery, Stone discovers the true names of the “John Doe” transport officers, he
should promptly amend the complaint to substitute the correct parties.
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opinion of Stewart, Powell and Stevens, JJ.)). However, not “every claim by a prisoner that he
has not received adequate medical treatment states a violation of the Eighth Amendment, and
“[m]edical malpractice does not become a constitutional violation merely because the victim is a
prisoner.” Id. at 105, 106. “In order to state a cognizable claim, a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id.
at 106.
An Eighth Amendment claim for inadequate medical care consists of subjective and
objective components. See Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014) (en banc). As to
the objective component, a plaintiff must plead facts, which, if true, show “a serious medical
need for which [the plaintiff] has received inadequate treatment.” Id. at 85. For purposes of the
Eighth Amendment, 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.” Id. at 82 (quoting Gaudreault v. Mun. of Salem, 923 F.2d
203, 208 (1st Cir. 1990)). 2 The objective prong does not “impose upon prison administrators a
duty to provide care that is ideal, or of the prisoner’s choosing.” Id.
The subjective component requires factual allegations supporting an inference of
“deliberate indifference” by the defendant. Id. at 83. Deliberate indifference refers to “a narrow
band of conduct.” Id. (quoting Fenney v. Corr. Med. Servs. Inc., 464 F.3d 158, 162 (1st Cir.
2006)). Demonstrating deliberate indifference requires allegations supporting a conclusion “that
the absence or inadequacy of treatment is intentional” rather than simply inadvertent. Perry v.
Roy, 782 F.3d 73, 78 (1st Cir. 2015). “The obvious case [of deliberate indifference] would be a
denial of needed medical treatment in order to punish the inmate.” Kosilek, 774 F.3d at 83
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“A significant risk of future harm that prison administrators fail to mitigate may suffice under
the objective prong.” Id. at 85.
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(quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993)). “But deliberate indifference may
also reside in ‘wanton’ decisions to deny or delay care where the action is recklessness, ‘not in
the tort law sense but in the appreciably stricter criminal-law sense, requiring actual knowledge
of impending harm, easily preventable.’” Watson, 984 F.2d at 540 (quoting Wilson v. Seiter, 501
U.S. 294, 302 (1991), and DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991)).
“[T]he subjective deliberate indifference inquiry may overlap with the objective serious
medical need determination.” Leavitt v. Corr. Med. Servs., Inc. 645 F.3d 484, 497 (1st Cir.
2011) (quoting Smith v. Carpenter, 316 F.3d 178, 187 n.12 (2d Cir. 2003)). “[S]imilar evidence .
. . may be relevant to both components.” Id. (quoting Smith, 316 F.3d at 187 n.12).
2.
Plaintiff Has Pleaded Eighth Amendment Violations
Upon careful review of the Amended Complaint and the Defendants’ motions to dismiss,
the Court finds that Stone has set forth plausible claims that both Katz and Evangelidis were
deliberately indifferent to Stone’s serious medical needs.
At the pleading stage, Stone’s allegations satisfy the objective prong of the deliberate
indifference test. Stone reports that, because of his mental illness, he deliberately and seriously
injured himself on numerous occasions, sometimes requiring emergency medical treatment in a
hospital. As his condition deteriorated, his medical condition and serious need for treatment
thereof were severe enough that it would have been obvious to a lay person that whatever
treatment he was receiving was inadequate.
Evangelidis argues that the objective component has not been met because Stone simply
alleges that he did not receive “his prescription drug of choice.” Evangelidis Mot. Dis. [ECF No.
20] at 3. Katz advances a similar contention. See Katz. Mem. Supp. Mot. Dis. [ECF No. 31] at
5 (“In the instant case, the only allegation set forth by plaintiff to demonstrate a deliberate
indifference on behalf of Dr. Katz, is that he failed to prescribe him his psychotropic medication
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of choice, namely, Klonopin due to an alleged jail policy.”). That argument may be relevant
where an inmate is offered another treatment, prescription or otherwise, which adequately
addresses his medical condition. This appears to be precisely the case in Lopes v. Riendeau, 177
F. Supp. 3d 634, 660 (D. Mass. 2016) (adopting report and recommendation on motions for
summary judgment). Although Evangelidis cites Lopes in support of his argument that failure to
provide a particular prescription medication does not contravene the objective prong of the
Eighth Amendment, see Evangelidis Mot. Dis. [ECF No. 20] at 3, a careful reading of the
decision shows that its holding is not as categorical as Evangelidis suggests. There, the plaintiff
sought medical care for hepatitis C, including access to two particular prescription drugs. See
Lopes, 177 F. Supp. 3d at 641. Relying on the record at the summary judgment stage, the court
referenced reports in plaintiff’s medical records indicating that the two prescription drugs in
question were inappropriate for plaintiff because (1) he had a specific viral mutation predicting
resistance to both drugs; and (2) one of the drugs had to be administered in conjunction with a
third pharmaceutical, and plaintiff’s treatment with the latter caused him to develop retinal
changes. See id. at 645-46. The court concluded that “denying treatment because of a risk to the
inmate’s health . . . or a lack of any treatment benefit . . . constitutes a reasonable response to the
risk of serious harm to plaintiff’s health.” Id. at 646.
A more appropriate comparison to this action is George v. County of Jefferson, Civil
Action No. 10-cv-03389, 2013 WL 5519509 (N.D. Ala. Sept. 30, 2013), in which the court
found that there was a genuine issue of material fact as to whether two nurses at a jail violated
the Eighth Amendment by failing to provide Klonopin to an inmate. See id., 2013 WL 5519509,
at **6-7. One nurse had allegedly failed to record plaintiff’s self-reported medical condition on
the intake form and to verify plaintiff’s representation that he had a prescription for Klonopin;
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the other nurse had allegedly failed to respond to a warning from the plaintiff’s daughter that her
father had a seizure condition and required Klonopin. See id. 3
Stone has also alleged facts from which the Court may reasonably infer that Katz and was
deliberately indifferent to the Stone’s serious medical need. Katz had prescribed Klonopin for
Stone several years earlier and was allegedly already familiar with Stone’s medical situation
when he arrived at the Worcester County HOC in 2015. Further, Stone reported in his August
2015 intake that he took Klonopin. The subsequent and obvious deterioration of Stone’s mental
health, combined with his “continuous[]” requests to Katz for Klonopin, are sufficient to satisfy
the subjective prong. Allegations that Katz denied Stone necessary medical treatment for nonmedical reasons sufficiently pleads deliberate indifference. See, e.g., Foster v. Enenmoh, 420
Fed. App’x 718, (9th Cir. 2011) (reversing grant of motion to dismiss prisoner’s claim that
doctor knew Metamucil was the only medicine that effectively treated his chronic constipation
but refused to prescribe or approve it only because it was removed from the prison system’s
formulary). 4 Moreover, use of a “less efficacious” pharmaceutical method of treatment may rise
to the level of deliberate indifference where the treatment is failing and a defendant is aware that
an alternative pharmaceutical drug is a successful remedy. See, e.g., Darrah v. Krisher, 865 F.3d
361, 372-73 (6th Cir. 2017) (overturning grant of summary judgment where reasonable jury
could find that prison doctor disregarded a risk of serious harm to prisoner suffering from severe
psoriasis by prescribing Methotrexate “despite his familiarity with the more effective treatment
option, Soriatane”). Katz’s authority to circumvent, override, or petition for an exception to the
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The case was later dismissed upon joint stipulation of the plaintiff and the remaining
defendants. See George v. County of Jefferson, Civil Action No. 10-cv-03389 [ECF No. 165]
(N.D. Ala. Feb. 4, 2014).
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See also Foster v. Enenmoh, 649 Fed. App’x 609 (9th Cir. 2016) (affirming subsequent jury
verdict in favor of plaintiff on this claim).
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Policy is a matter for discovery. See, e.g., Anderson v. Colorado, 887 F. Supp. 2d 1133, 1145
(D. Colo. 2012) (holding, following a bench trial, that “the fact that a particular medication is not
on the formulary should not be dispositive. Denial of an appropriate and necessary medication
based on the possibility that [plaintiff] would abuse [the medication], . . . where there is
essentially no history that he has abused medication in that manner . . . [and] procedures can be
taken to minimize any potential abuse, would constitute deliberate indifference to a serious need
and would violate the Eighth Amendment. If the physician concludes that a non-formulary
medication is appropriate, he or she should apply to the formulary committee for authority to
prescribe the medication.”).
The Court also finds that Stone has adequately pled deliberate indifference by
Evangelidis. In his opposition to the motions to dismiss, Stone argues that Evangelidis’ “policy
of not allowing the use of Klonpins [sic] or like drugs (Benzodiazpams) a drug commonly used
to treat severe anxiety, which was the cause of Mr. Stone’s [mental health] deterioration” was
“being deliberatly [sic] indifferent to [his] on-going [mental health] issues.” Pltf.’s Opp. [ECF
No. 28] at 3. The Court agrees. An allegation that an institution’s top official prohibits a
particular pharmaceutical that is known to treat a serious medical condition, without ensuring
that a viable alternative is available, sufficiently pleads deliberate indifference to the serious
medical need of an inmate. See, e.g., Bahr v. Winnebago Cnty., Civil Action No. 16-cv-01034,
2017 WL 3158760, at *3 (E.D. Wisc. July 25, 2017) (holding, on a preliminary screening, that
prisoner’s claim against sheriff who implemented and enforced policy barring inmates from
receiving prescription narcotics sufficiently pled deliberate indifference); cf. Johnson v. Wright,
412 F.3d 398, 404 (2d Cir. 2005) (“[A] deliberate indifference claim can lie where prison
officials deliberately ignore the medical recommendations of a prisoner’s treating physicians.”).
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B.
Qualified Immunity/Good Faith Defense
Both Defendants argue that they are entitled to qualified immunity. Qualified immunity
protects public officials, acting in their individual capacity, “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Katz, recognizing that he may not be entitled to qualified immunity given his status as a
contracted employee, also advocates for the application of a “good faith” defense.
Without determining whether Katz can invoke a qualified immunity or “good faith
defense,” the Court denies both motions to dismiss with regard to this defense. Stone has
adequately pled Eighth Amendment violations by both Defendants. His theory of liability is not
so novel that the Court can determine, based on the pleadings alone, that his rights were not
“clearly established” or that a reasonable person would not have been aware of said rights. The
applicability of a qualified immunity or “good faith” defense cannot be decided without
discovery.
C.
Exhaustion of Administrative Remedies
Both Defendants contend that Stone’s claims against them are barred because he failed to
exhaust his institutional remedies with regard to the allegations in the Amended Complaint. In
support of this argument, Evangelidis has submitted the affidavit of Detective Paul Salvadore,
the Inmate Grievance Coordinator for the Worcester County Sheriff’s Office. [ECF No. 20-1].
Detective Salvadore represents that he examined all grievances filed by Stone from 2015-2017,
and that none of them concern a failure to prescribe him Klonopin. Id. 5
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In his affidavit, Detective Salvadore states that he attached to his statement all the grievances
Stone filed in 2015, 2016, and 2017. These grievances were not filed with the Court.
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Under the Prison Litigation Reform Act of 1995, “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added). The
Supreme Court has explicitly “underscore[d] that statute’s built-in exception to the exhaustion
requirement: A prisoner need not exhaust remedies if they are not ‘available.’” Ross v. Blake, -U.S.--, 136 S. Ct. 1850, 1855 (2016). For purposes of the motions to dismiss, Stone falls within
this exception. He alleges that he “was denied grievances in regards to most of this due to being
on a [suicide watch] & due to not being able to grieve [mental health], as they are independent
contractors.” Am. Compl. ¶ 23, at 17 (spelling standardized). 6
D.
Official Capacity Claims
Evangelidis asks that the Court dismiss all official capacity claims him as barred by the
Eleventh Amendment. Because the Court dismissed these claims on its preliminary review of
the Amended Complaint, the Court denies this request as moot.
III.
Conclusion
Accordingly, for the aforesaid reasons, the Defendants’ motions to dismiss are DENIED.
IT IS SO ORDERED.
Dated: March 26, 2019
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
DISTRICT JUDGE
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Further, Stone is not required to plead exhaustion under the PLRA because it is not an element
of his claim. See Jones v. Bock, 549 U.S. 199, 202 (2007). Like other affirmative defenses, a
failure to exhaust under the PLRA may be the basis for dismissal under 12(b)(6) where noncompliance with the statute appears on the face of the pleading. See id. at 215. But this is not
the case here, where Stone has pled that the grievance process was not available. In addition, the
Court cannot consider extrinsic material such as the detective’s affidavit on a 12(b)(6) motion.
See Freeman v. Town of Hudson, 714 F.3d 29, 35-36 (1st Cir. 2013).
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