Lopes v. Riendeau
177 F. Supp. 3d 634
D. Mass.2016Background
- Dana E. Lopes, a pro se inmate with chronic hepatitis C, cirrhosis and a treated liver lesion, sued UMCH and MPCH staff seeking alternative hepatitis C drugs (boceprevir/telaprevir), continued monitoring, and ultimately a liver transplant; he later received Harvoni and cleared the virus in 2015.
- Relevant care history: interferon-based therapy previously stopped for retinal toxicity; multidisciplinary UMass team recommended surveillance and ablation of a small lesion (radiologic follow‑up planned); ablation occurred Nov. 2012 and follow‑up imaging was scheduled for early 2013.
- Dispute centers on care and monitoring after Jan. 31, 2013 and on defendants’ refusal to prescribe protease‑inhibitor regimens given (a) prior interferon intolerance and (b) evidence of a viral mutation predicting PI resistance.
- Procedural posture: Magistrate Judge Bowler recommended mixed relief (granting MPCH summary judgment on Eighth Amendment claim but denying on exhaustion/discretionary factual issues); district judge adopted the R&R in part; this opinion addresses multiple Rule 60(b), Rule 56 and Rule 12(c) motions and recommends: deny plaintiff’s Rule 60(b), grant Riendeau/Nickl summary judgment on §1983 Eighth Amendment and retaliation claims, and allow in part MPCH Rule 12(c) motion as to Nasuti only.
- Key legal contentions: (1) whether defendants acted with Eighth Amendment deliberate indifference by denying alternative hepatitis C drugs or failing to monitor after Jan. 2013; (2) whether retaliation claims are supported by admissible evidence; (3) whether state‑law MTCA and Article 26 claims survive procedural/pleading‑stage challenges; (4) PLRA and chapter 127 exhaustion arguments and sovereign‑immunity defenses were raised but not dispositive here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eighth Amendment deliberate indifference (failure to provide boceprevir/telaprevir / monitoring) | Lopes: denial of alternative meds and lack of monitoring after Jan. 2013 created substantial risk and amounted to cruel and unusual punishment | Defendants: treatment decisions were reasonable given prior interferon toxicity, need to combine PIs with peg‑interferon/ribavirin, and documented viral mutation predicting PI resistance; MPCH provided monitoring once responsible | Court: No genuine issue re deliberate indifference as to Riendeau/Nickl; summary judgment for them on §1983 medical claim. On Rule 12(c) the Article 26 claim against MPCH survives plausibility stage because complaint, viewed favorably, alleges failure to monitor after Jan. 2013. |
| Retaliation (for complaints to licensing board) | Lopes: complaints prompted confiscation/medication access restrictions and other adverse acts | Defendants: medication changes were administrative/non‑retaliatory (KOP audit, noncompliance, legitimate medication‑line practice); plaintiff offers hearsay and lacks personal‑knowledge proof of retaliatory intent | Court: Summary judgment for Riendeau and Nickl on retaliation claim for lack of admissible evidence of retaliatory animus. |
| MTCA / public‑employee immunity and chapter 127 exhaustion | Lopes: state‑law tort/Article 26 claims valid against defendants; exigent‑circumstances tolling/exhaustion arguments | Defendants: MPCH is private contractor (not public employer) or, for UMCH staff, MTCA immunity applies; exhaustion under chapter 127/38F not satisfied | Held: factual issues remain whether Riendeau/Nickl were public employees and whether MPCH is a private contractor; MTCA defenses not resolved on record — state claims survive at this stage. |
| Rule 60(b) relief based on alleged judicial mistakes / new evidence (hearsay; grievance policy; sovereign immunity) | Lopes: court erred by relying on Dr. Hameed affidavit/hearsay, misapplied grievance exhaustion, and adjudicated sovereign‑immunity defenses not raised by some defendants; he offered supplemental records | Defendants: objections were waived or the record supports reasonableness of care; Rule 60(b) relief is extraordinary and unwarranted | Held: Rule 60(b) motion denied – plaintiff waived hearsay objection below and has not shown exceptional circumstances or a meritorious defense that would change the outcome. |
Key Cases Cited
- Fisher v. Kadant, Inc., 589 F.3d 505 (1st Cir.) (Rule 60(b) relief is extraordinary and requires timeliness, exceptional circumstances, and a meritorious defense)
- Leavitt v. Correctional Medical Services, Inc., 645 F.3d 484 (1st Cir.) (deliberate‑indifference standard for prison medical claims)
- Kosilek v. Spencer, 774 F.3d 63 (1st Cir.) (medical imprudence alone does not equal Eighth Amendment violation; prison officials avoid liability if they respond reasonably to risk)
- Bennett v. Saint‑Gobain Corp., 507 F.3d 23 (1st Cir.) (hearsay cannot be considered on summary judgment absent waiver)
- Bellone v. Southwick‑Tolland Reg’l Sch. Dist., 748 F.3d 418 (1st Cir.) (failure to press hearsay objection below constitutes waiver; court may consider affidavit if underlying records are admissible)
- Porter v. Nussle, 534 U.S. 516 (U.S. Sup. Ct.) (PLRA requires exhaustion of available administrative remedies)
- Estelle v. Gamble, 429 U.S. 97 (U.S. Sup. Ct.) (Eighth Amendment deliberate indifference framework for inadequate medical care)
- Farmer v. Brennan, 511 U.S. 825 (U.S. Sup. Ct.) (subjective prong: official must be aware of and draw inference of substantial risk)
- Hannon v. Beard, 645 F.3d 45 (1st Cir.) (retaliation claims require evidence of retaliatory motive; courts may credit non‑retaliatory explanations when record lacks proof of animus)
- Giano v. Goord, 380 F.3d 670 (2d Cir.) (defendant behavior can render administrative remedies unavailable in narrow circumstances)