ORDER
After careful consideration- of the objections of defendants Dyana Nickl -and Geraldine Riendeau (Docket No. 122) and defendants Barbara Berg, Shawna Nasuti, Paul Caratazzola, Patricia Davenport-Mel-lo and Massachusetts Partnership for Correctional Healthcare (“MPCH”) (Docket No. 123) to the Report and Recommendation (“R&R”) of Magistrate Judge Marianne B. Bowler (Docket No. Í20), the Court OVERRULES
1) the objections of defendants Dyana Nickl and Geraldine Riendau as raising new arguments that were not initially presented to the Magistrate Judge, and
*640 2) the objections of defendants Barbara Berg, Shawna Nasuti, Paul Carataz-zola, Patricia Davenport-Mello and MPCH,
a) with respect to the Article 26 claim, because motions for judgment on the pleadings and motions for summary judgment do not share the same legal standards,
b) with respect to the claim brought under the Massachusetts Tort Claims Act, because they have raised new arguments that- were not initially presented to the Magistrate Judge, and
c) with respect to the retaliation claim, because they have failed to assert specifically that the claim is barred by the exhaustion requirement of the Prisoner Litigation Reform. Act (“PLRA”).
Accordingly, the R&R is ACCEPTED AND ADOPTED in its entirety.
REPORT AND RECOMMENDATION RE: MPCH DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (DOCKET ENTRY # 97); DEFENDANTS GERALDINE RIENDEAU AND DYANA NICKL’S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 99); PRO SE PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT (DOCKET ENTRY #92)
Pending before this court is a motion for judgment on the pleadings under Fed. R.Civ.P. 12(c) (“Rule 12(c)”) filed by defendants Barbara Berg (“Berg”), Shawna Na-suti, N.P. (“Nasuti”), Paul Caratazzola (“Caratazzola”), Patricia Davenport-Mello (“Davenport”) and Massachusetts Partnership for Correctional Healthcare (“MPCH”) (collectively “MPCH defendants”). (Docket Entry # 97). Defendants Geraldine Riendeau, R.N. (“Riendeau”), Dyana Nickl (“Nickl”) and UMass Correctional Health
Also pending before this court is a motion for relief under Fed.R.Civ.P. 60(b)(1) and 60(b)(2) (“Rule 60(b)”) filed by plaintiff, an inmate at OCCC. (Docket Entry # 92). The motion seeks relief from a March 24, 2015 Order by the district judge (Docket Entry # 67), which accepted in part and rejected in part this court’s March 2, 2015 Report and Recommendation.
PROCEDURAL BACKGROUND
Plaintiff filed this civil rights action pro se seeking medical care in the form of
On March 2, 2015, this court issued the Report and Recommendation. The opinion recommended allowing the MPCH defendants’ summary judgment motion on the Eighth Amendment claim - against the MPCH defendants given the failure to set out a viable claim of inadequate or denied medical care regarding the failure to prescribe the alternative medications (boce-previr and telaprevir) and provide plaintiff a liver transplant. Because MPCH contracted to provide the medical care at OCCC in July 2013 (Docket Entry # 33-1, p. 2), the Report and Recommendation addressed the' deliberate indifference of the MPCH defendants “beginning in July 2013” as opposed before July 2013 when UMCH provided the services. (Docket Entry # 60, pp. 6, 33).
The opinion additionally recommended denying the MPCH defendants’ summary judgment motion based on administrative exhaustion under the Prison Litigation Re
On March 24, 2015, the district judge accepted the recommendation to allow the MPCH defendants’ summary judgment motion on the section 1983 Eighth Amendment claim, rejected this court’s determination that there remained a genuine issue of material fact as to whether the January 2015 grievance and appeal satisfied the PLRA and otherwise accepted the Report and Recommendation.
I. Rule 60(b) Motion
Plaintiff seeks relief under Rule 60(b)(1) and 60(b)(2) on a number of grounds. Under Rule 60(b)(1), he maintains- that this court made a mistake'by: relying on hearsay to assess the facts; faulting plaintiff for not appealing July 2012 and November 2013 grievances; erroneously holding that plaintiff should have appealed the November 2013 grievance even though it was approved; and advancing a new “theory of defense of sovereign immunity.” (Docket Entry # 94). Under Rule 60(b)(2), plaintiff seeks to add new evidence consisting of the grievance policy at' OCCC prior to July 2013, an August 20, 2014 letter from the Health Services Division of the Massachusetts Department of Correction and print outs from a website of the National Institutes of Health (“NIH”) regarding boce-previr and telaprevir.
Rule 60(b) sets out a stringent standard to obtain relief from an order. See Daniels v. Agin,
A party seeking relief under Rule 60(b) must demonstrate “at a bare minimum, that his motion is timely; that' exceptional circumstances exist, favoring extraordinary relief; that if the judgment is set aside, he has the right stuff to mount a potentially meritorious claim or defense; and that no unfair prejudice will accrue to the opposing parties should the motion be granted.” ■ ■
Fisher v. Kadant, Inc.,
A. Hearsay Evidence and Advancing New Theory
Relying on Rule 60(b)(1), plaintiff initially argues that the Report and Recommendation mistakenly relied on hearsay. Rule 60(b)(1) provides relief from an order in the event of a “mistake, inadvertence, surprise, or excusable neglect.” Fed.
Here, plaintiff contends that this court relied on hearsay in a February 18, 2015 affidavit by Aysha Hameed, M.D. (“Dr. Hameed”) “that offered a brand new theory of defense,” namely, that plaintiff carried a mutation that predicts resistance to protease inhibitors such as boceprevir and telaprevir. (Docket Entry # 94). Dr. Hameed is a regional medical director employed by MPCH since July 2013 and was “a medical doctor in various DOC facilities” prior thereto. (Docket Entry # 94). In the affidavit, Dr. Hameed avers that she has “personal knowledge of the care and treatment of [plaintiff] at OCCC, and .., reviewed his medical records since his admission to OCCC.” (Docket Entry # 56-1).
The “hearsay” consists of Dr. Hameed’s recitation that:
Mr. Lopes has a specific viral mutation, which predicts resistance to protease inhibitors (“PI”) Boceprevir and Telapre-vir. Mr. Lopes previously underwent testing at Boston Medical Center, where an attending physician in the Gastroen-terology Department recommended that Mr. Lopes avoid Pi’s.6
For the past year, Mr. Lopes’ condition has been monitored with multiple lab tests and chronic disease consultations with medical professionals outside of OCCC,7 while MPCH medical staff have also waited for the U.S. Food and Drug Administration ... to approve a new form of treatment.
... Mr. Lopes was recently approved by MPCH medical staff to begin treatment with Harvoni, which is expected to start on or around March 2, 2015.
(Docket Entry #56-1). The Report and Recommendation summarized this portion of the affidavit in the factual background and relied on it as a means to allow summary judgment for the MPCH defendants on the Eighth Amendment claim. (Docket Entry # 60, pp. 10, 33-34).
Examining the existence of a mistake within the meaning of Rule 60(b)(1), it
Alternatively, if properly documented in a summary judgment motion, there is no showing that plaintiff “ ‘has the right stuff to mount a potentially meritorious claim or defense ... ,”’
Past medical records show that plaintiff was treated with “peg intron” or “Peg Interferon” as well as ribavirin in 2003 and 2004. (Docket Entry # 1, ¶ 6) (Docket Entry # 101-4, p. 2). The treatment was discontinued because plaintiff developed retinal changes consisting of “cotton wool spots” as well as anemia.
Thus, in light of these and other medical records, the refusal or failure to treat plaintiff with boceprevir and telaprevir evidences that the MPCH defendants were not “ ‘aware of facts from which an inference of deliberate indifference could be drawn that a substantial risk of serious harm exist[ed],’” Leavitt v. Correctional Medical Services, Inc.,
First, in submitting the affidavit, the MPCH defendants did not make any legal argument. Rather, they filed the affidavit which set out facts relevant to whether the failure to treat plaintiff with boceprevir and telaprevir was an Eighth Amendment violation.
Second, adding a different reason or even changing the reason to deny plaintiff treatment with boceprevir and telaprevir does not, without more, exhibit deliberate indifference, i.e., an awareness on the part of the MPCH defendants that denying bo-ceprevir and telaprevir to treat plaintiffs hepatitis C posed a substantial risk of serious harm to plaintiff. See Nunes v. Massachusetts Dept. of Correction,
B. Grievances
Plaintiff also argues' that his failure to provide the OCCC grievance policy in effect prior to July 2013 was “excusable neglect” under Rule 60(b)(1). The Report and Recommendation recognized that, “The [grievance] policy in effect prior to July 2013 is not in the record.” (Docket Entry # 60, p. 12).
Plaintiff also relies on excusable neglect for his failure to argue and cite supporting case law that he exhausted the July 1, 2012 grievance because, when Riendeau checked the box that “ ‘this is not a grieva-ble issue,’ ” there was “no administrative remedy to- exhaust under the PLRA.” (Docket Entry #94, pp. 3, 6-8) (citing Shaheed-Muhammad v. Dipaolo,
First, it was not necessary for plaintiff to raise the argument because this court recognized and adhered to the requirement imposed by the PLRA that, “[a]ll ‘available’ remedies must now be exhausted.” Porter v. Nussle,
Second, the circumstances do not show “excusable neglect.” “Excusable neglect” encompasses “ ‘inadvertence, mistake, or carelessness, as well as interven
The reason plaintiff provides for not locating “First Circuit precedent regarding grievances that are marked ‘this is not a grievable issue’” is because he had to “scramble to recover from” a lockup that took place on the day this court issued the Report and Recommendation. (Docket Entry # 94, pp. 2-3). There is, however, no excusable reason for plaintiff not having brought the cases to the attention of this court before it issued the Report and Recommendation.
Plaintiff additionally asserts that, “This Court faulted [him] for failing to appeal the denied [July 2012] grievance within ten days.” (Docket Entry # 94, p. 6). The argument misconstrues the record. The Report and Recommendation simply stated that plaintiff did not check the box at the bottom of the form indicating that “the inmate remains dissatisfied and wished to ‘appeal to DOC Health Services Division.’ ” (Docket Entry #60, p. 12). Immediately thereafter, the opinion states that, “the policy in effect prior to July 2013 is not in the record.” (Docket Entry #60, p. 12). Thus, the opinion impliedly found that plaintiff did not appeal the July 2012 grievance in the proper manner by checking the box as opposed to in a timely manner within ten days. It also implicitly found that plaintiff never filed an appeal of the July 2012 grievance as opposed to never filed one in ten days. Accordingly, contrary to plaintiffs position (Docket Entry # 94, pp. 6-7), this court did not- make an error by applying a ten day appeal period to the July 2012 grievance. Simply put, this court did not apply a ten day limit as a time period for plaintiff to file an appeal of the July 2012 grievance.
With respect to the November 29, 2013 grievance, plaintiff asserts “that this court made major errors of law in assessing that [plaintiff] should be faulted for not having appealed an APPROVED medical grievance.” (Docket Entry #94, p. 5). This court addressed and rejected the argument that plaintiff exhausted the November 2013 grievance because Caratazzola deemed it approved. (Docket Entry # 60, pp. 18-19, 24-26). For the same reasons, there was no “mistake” of law within the meaning of Rule 60(b)(1) in rejecting plaintiffs argument that he did not have to exhaust an approved grievance.
Plaintiff additionally argues that the MPCH defendants “tricked” him by approving the grievance and instructing him to wait for a follow-up appointment thus allowing the ten day appeal period to expire. (Docket Entry # 94). Plaintiff submitted the grievance on November 29, 2013. The grievance complained about a series of
Plaintiff did not file an appeal of Carata-zolla’s decision. The remedy nevertheless remained available notwithstanding the approval and indication of a follow-up appointment. In fact, the decision noted that, “An appeal must be filled out within 10 working days.” (Docket Entry # 57, p. 3) (Docket Entry #31, Ex. 5). Thus, even assuming that the First Circuit would find “that, in some circumstances the behavior of the defendants may render administrative remedies unavailable, for purposes of the PLRA,” Giano v. Goord,
C. Sovereign Immunity Defense
Plaintiff next argues that this court made a mistake in the Report and Recommendation (Docket Entry # 60, pp. 34-44) by considering a defense (sovereign immunity) that “the UMAss Corr health defendants” did not plead in their answer. (Docket Entry # 94). Rather, they plead only qualified immunity, according to plaintiff.
In July 2014, UMCH filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) based on its “sovereign immunity” under the Eleventh Amendment as “an arm of the state.” (Docket Entry #26) (Docket Entry #27, pp. 4, 7). In lieu of filing an answer to the complaint, UMCH filed the motion to dismiss. See Fed. R.Civ.P. 12(b) (“motion asserting any of these defenses must be made before pleading”); see Marcial Ucin, S.A. v. SS Galicia,
Nickl and Riendeau, however, did file answers and each raised the defense of qualified immunity. (Docket Entry ## 23, 24). The Report and Recommendation only addressed the UMCH motion and the defense of sovereign immunity properly raised in that motion. The fact that different defendants did not raise a sovereign immunity defense does not prevent this court from addressing the defense properly raised by another defendant in a Rule 12(b) pre-answer motion. Accordingly, plaintiffs sovereign immunity argument does not warrant relief under Rule 60(b).
As a final matter, plaintiff seeks reconsideration under Rule 60(b) of the district judge’s denial of a motion for sanctions (Docket Entry # 89) and this court’s denial without prejudice of a motion for appointment of counsel (Docket Entry # 62). Neither order provides a basis for reconsideration under Rule 60(b). See Daniels v.
II. Riendeau and Nickl’s Summary Judgment Motion
Riendeau and Nickl seek summary judgment on the retaliation and Eighth Amendment medical claims on the merits and due to a failure to exhaust administrative remedies under the PLRA. (Docket Entry # 99). They also move for summary judgment on the state law claims based on a lack of exhaustion under chapter 127 and their immunity under chapter 258, section two. (Docket Entry # 99). Plaintiff did not file an opposition to the motion.
STANDARD OF REVIEW
As explained in the prior Report and Recommendation, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District,
“Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard,
Plaintiff signed the complaint as “Sworn under pain and penalty of perjury.” (Docket Entry # 1). Accordingly, facts based on personal knowledge in the complaint are part of the summary judgment record. See Sheinkopf v. Stone,
FACTUAL BACKGROUND
Throughout the relevant time period, plaintiff was an inmate residing at OCCC.
Riendeau was the health services administrator (“HSA”) at OCCC up until July 2013. (Docket Entry # 1, ¶ 2). She left the facility in July 2013 when MPCH took over the contract for providing medical services to OCCC inmates.
A. Medical Care
Plaintiff, a 61 year old male, has a history of hepatitis C, a chronic liver disease. (Docket Entry ## 1-2,1-4). He is confined to a wheelchair. (Docket Entry # 1-2). His history of hepatitis C dates back more than 35 years. (Docket Entry ## 101-4, 101-7). He also suffers from cirrhosis of the liver and end-stage liver disease. (Docket Entry # 101-2).
From November 2003 to May 2004, plaintiff received “peg-intron” as well as ribavirin to treat the hepatitis C. (Docket Entry # 101-4, p. 2) (Docket Entry # 1, ¶ 6).
In August 2005 and April 2006, while incarcerated, plaintiff was treated at Tufts-New England Medical Center (“Tufts”). An April 2006 medical note reflects a weight of 300 pounds, a body mass index (“BMI”) of 35, bilateral edema in the extremities and multiple scabbed skin lesions. (Docket Entry # 101-4). Plaintiff also reported “chronic upper right quadrant pain that requires oxycodone.” (Docket Entry #.101-4). The Tufts physician noted that plaintiff was not a candidate for a liver transplant:
*651 due to a couple of issues. One is his body weight. He has a BMI of 35. We do not perform transplants on patientfs] unless the BMI is 30 or less given that there is a high-risk mortality and morbidity in performing surgery. Secondly, he has chronic abdominal pain of unclear etiology and -is dependent on narcotics for pain control. For opr Pre-Liver Transplant patients, we do prefer discontinuing any narcotics medications as there is concern for dependency.
(Docket Entry # 101-4). The physician also noted that plaintiff’s blood work gave “him a MELD score of 11, which” placed “him low on the liver transplant list if he were to be listed.” (Docket Entry # 101-4). In fact, the physician posited that, “With this MELD score, the risk of dying from the liver transplant would be higher than from the risk of dying from-his liver disease.” (Docket Entry # 101-4).
Thereafter in 2006, Philip Tavares, M.D. (“Dr. Tavares”) of UMCH examined plaintiff at SBCC and assessed his end-stage liver disease as stable. (Docket Entry # 101-2, p. 4). Dr. Tavares’ note repeats the Tufts’ physician’s finding to lose weight and discontinue narcotics to be considered for a liver transplant. Plaintiff agreed to a weight loss program. (Docket Entry # 101-2, p. 4). In another 2006 visit, Dr. Tavares planned to check the date of plaintiffs last liver ultrasound and order another ultrasound or CT scan “as indicated.” (Docket Entry # 101-2, p. 10). UMCH progress-notes in 2006 evidence that plaintiff was seen several other times in the SBCC infirmary.
A July 2006 progress note evidences that “A. Enaw, M.D.” (“Dr. Enaw”) examined plaintiff at the SBCC infirmary. The progress note repeats the plan that plaintiff is not a candidate for a liver “transplant due to excessive weight.” (Docket Entry # 101-2). Dr. Enaw also noted multiple skin lesions and that plaintiff was seen in dermatology twice with no specific diagnosis.
In 2011, the Food and Drug Administration (“FDA”) approved two new medications to treat hepatitis C, namely, boce-previr and telaprevir. (Docket Entry # 1, ¶ 8) (Docket Entry # 33, ¶ 6). To date, plaintiff has not received these medications.
Plaintiff received multiple repeat CT scans to monitor the lesion. A repeat CT scan in January 2009 showed a decrease in size to 1.6 centimeters. A February 2010 CT scan showed a 1.8 centimeter lesion. A March 2011 CT scan reflected a decrease in size of 1.5 to 1.6 centimeters. (Docket Entry # 1-2). The March 2012 CT scan measured the lesion at 1.5 centimeters and showed several other foci of arterial enhancement believed to “represent dysplastic nodules.” (Docket Entry # 101-7).
After reviewing the March 2012 CT scan, Dr. Rohrer explained that, “A single, small lesion would not qualify for a liver transplant, and it would have to be observed” as a two centimeter lesion “to make appropriate strategic decisions regarding liver transplantation.” (Docket Entry #101-7) (emphasis added). He further noted that, “If a liver transplantation turned out not to be an option, then local treatment with radiofrequency ablation and transarterial chemoembolization may prove to be very valuable.” (Docket Entry # 101-7).
On April 24, 2012, Angela S. Dantonio, N.P. (“Dantonio”) evaluated plaintiff at UMass Memorial Medical Center (“UMass Memorial?’) in Worcester, Massachusetts. Like Dr. Rohrer, she stated that the lesion shown in the March 2012 CT scan was consistent with HCC. Plaintiff “could potentially be a liver transplant candidate,” but more information was needed, according to Dantonio. (Docket Entry # 101-7). Accordingly, plaintiff was scheduled for a four phase “CT scan of the abdomen and pelvis” to “better assess the stage of his disease.” (Docket Entry # 101-7) (Docket Entry #1-2, p. 8). Dantonio explained to plaintiff “that if the 4-phase CT scan confirms the presence of a single HCC lesion that is under” two centimeters, it “could either be treated with radiofrequency ablation, or” monitored until it reaches two centimeters, “at which time” plaintiff could potentially be listed for a “transplant with MELD exception points.” (Docket Entry # 101-7). She emphasized that “a more complete work-up” was needed to “determine his transplant candidacy.” (Docket Entiy #101-7). Upon physical examination, plaintiffs weight was down to 215 pounds and his BMI was 32. (Docket Entry # 101-7). Dantonio’s clinic note reflects that plaintiffs “edema is medically managed with diuretic therapy.” (Docket Entry # 101-7).
On May 11, 2012, plaintiff underwent the four phase CT scan of his pelvis and abdomen. The CT scan report concluded that the liver mass “should be considered as hepatocellular carcinoma unless proven otherwise” and noted “[c]hanges of advanced cirrhosis.” (Docket Entry # 1-2). There was,' however, “no evidence of as-cites” and the pancreas, spleen, kidneys and adrenal glands showed no abnormality. (Docket Entry # 1-2).
On May 17, 2012, plaintiff was seen by “multiple providers” at the UMass Medical
The UMass clinic note the same day describes plaintiffs medical history as including “[djecompensations from his liver disease [that] have included fluid overload, peripheral edema, some fatigue and esophageal varices.” (Docket Entry # 1-2). The note states, “No plans currently for hep C treatment.” (Docket Entry # 1-2). The note also includes plaintiffs past history of “interferon and ribavirin therapy for [plaintiffs] hepatitis C, but” that plaintiff “developed retinal changes.” (Docket Entry # 1-2).
Three radiologists reviewed the May 11, 2012 four phase CT scan and took part in a multidisciplinary conference at the clinic on May 17, 2012. The mass did not show “the classic washout for hepatocellular carcinoma.” (Docket Entry # 1-2). After an extensive discussion .among the medical providers, the group decided to obtain an MRI “and[,J if still ambiguous[,J ... may recommend proceeding to a liver biopsy.” (Docket Entry # 1-2, pp. 14,18).
On June 25, 2012, UMCH health services progress notes show that medical staff at OCCC reviewed the UMass clinic’s outpatient consultation report with plaintiff. An ultrasound was normal and the June 2012 note shows a plan to continue to monitor and assess plaintiffs condition. (Docket Entry # 101-2). Plaintiff agreed to the MRI, as recommended by the UMass clinic. (Docket Entry # 101-2).
On July 1, 2012, plaintiff filed a grievance requesting a biopsy, commencement of the process “to obtain a cadaver liver” and “alternative hep c treatment” to eradicate the “cancerous lesion.” (Docket Entry # 1-3). Riendeau reviewed the grievance and denied it on July 9, 2012. (Docket Entry # 1-3) (Docket Entry # 1, ¶¶2, 14, 20). In denying the grievance, she commented that plaintiffs “treatment plan is appropriate” and that he- would be undergoing the MRI to determine if a biopsy is indicated. (Docket Entry # 1-3) (Docket Entry # 101-5).
In August 2012, plaintiff had the MRI. (Docket Entry # 101-3, p. 3). On November 26, 2012, he underwent a fine needle aspiration (“FNA”) biopsy and a radio frequency ablation of the lesion at UMass Memorial. (Docket Entry # 101-2). The biopsy showed a benign adenomatous lesion, according to UMass clinic notes. (Docket Entry # 1-4).
On December 28, 2012, plaintiff had a three phase GT scan of his abdomen and pelvis. The scan showed no abnormalities other than a large ablative cavity in the area where the lesion was ablated and a small hepatic lesion. (Docket Entry # 1-4).
On January 31, 2013, plaintiff was seen again at the UMass clinic. The clinic note describes the lesion “clinically” as “a benign adenoma” and that, “on extensive review by Dr. Switzer with several pathologists, the FNA was not diagnostic of malignancy” and, “in any case,” the lesion was ablated. (Docket Entry # 1-4, p. 9). It further states that, “As a patient with cirrhosis, he is at risk for developing further HOC and will be followed.” (Docket
Bradley Switzer, M.D. (“Dr. Switzer”) also examined plaintiff at UMass Memorial on January 31, 2013, and likewise noted the consensus “to proceed with active surveillance and a followup CT scan” in three months. (Docket Entry # 1-4, p. 12). Dr. Switzer’s medical note states that:*
From a hepatic standpoint, this patient does have ChildPuigh A cirrhosis with 6 points.-He is well compensated with no regular decompensation and should be continued to be followed regularly by a gastroenterologist regarding his underlying hepatitis C and liver disease.
(Docket Entry # 1-4, p. 12).
Dr. Switzer performed a limited examination of plaintiff at UMass Memorial the same day. Upon examination, there was no edema in plaintiffs extremities. (Docket Entry # 1-4). Dr. Switzer reviewed plaintiffs pathology with at least three pathologists and noted that the “lesion has been ablated and there is no evidence ... of residual disease.” (Docket Entry # 1-4) (Docket Entry # 101-2, pp. 14,15).
In March 2013, plaintiff was admitted to Lemuel Shattuck based on a “[s]elf-induced low nutritional- intake.” (Docket Entry # 101-3). Medical staff recommended continued management on an outpatient basis of plaintiffs liver disease and continued dosing of diuretic medication. The discharge summary states that plaintiffs hepatitis C treatment “with interferon and ribavirin ... was discontinued for retinal changes.” (Docket Entry # 101-3, p. 3).
..In July 2013, MPCH began providing the medical services to OCCC inmates previously provided by UMCH. (Docket Entry # 33-1, p. 2). Riendeau left OCCC when MPCH outbid UMCH for the contract. (Docket Entry # 1, ¶ 20).
In an April 14, 2014 letter, the Director of Clinical Services of DOC Health Services Division advised plaintiff that, MPCH did not “have an alternative treatment plan that does not include the Peg Intron at this time” and is “working on obtaining newer treatments.” (Docket Entry # 40-2, p. 1). The letter explains that plaintiffs prior development of “cotton wool spots” caused by the “Peg Intron treatment” could “cause blindness if the treatment is not stopped.” (Docket Entry # 40-2, p. 1). An August 20, 2014 letter to plaintiff from the Assistant Deputy Commissioner of the DOC Health Services Division reiterates, more specifically, that, “Boceprevir and Talaprevir medication have to be given with the Peg Interferon.” (Docket Entry # 94,- App, 51). Consequently, due to plaintiffs prior negative side effects, the letter notes that plaintiff could not receive this treatment but that newer medications are “awaiting FDA approval this fall.” (Docket Entry # 94, App. 51).
Meanwhile, in June 2014, plaintiff had blood tests to monitor his liver. On July 23, 2014, he underwent testing at Boston Medical Center. Plaintiff reported no • upper right quadrant pain, “jaundice, dark urine or pruritus.” (Docket Entry # 116, App. 59). Upon physical examination, Dr. Nunes described plaintiff as having no skin rashes. (Docket Entry # 116, App. 60). Dr. Nunes additionally noted that plaintiff carried an “R155K mutation which is associated with protease resistance” and “is therefore not a good candidate for a protease based treatment regimen.” (Docket Entry # 116, App. 59). Dr. Nunes further stated that, “Protease based regiments are relar tively contraindicated in deccompensated [sic] cirrhosis diue [sic] to the risk of worsening [the] liver disease.” (Docket Entry
In October 2014, the FDA approved the use of Harvoni to treat chronic hepatitis C. (Docket Entry # 94, App. 56). The Harvo-ni regimen provided “the first FDA-approved interferon- and ribavirin-free regimen to treat hepatitis C.” (Docket Entry # 94, App. 57). On January 21, 2015, plaintiff was seen in the gastroenterology clinic at Lemuel Shattuck to discuss initiating hepatitis C treatment with the new medication. (Docket Entry #58, App. 57-58). After examining plaintiff and reviewing his medical history and recent blood work, the physician recommended Harvoni to treat plaintiffs hepatitis C. (Docket Entry # 58, App. 48). Plaintiff acknowledges that he received Harvoni on March 2, 2015, albeit in response to this lawsuit, and “is now free of the virus” as of September 2015.
As to other or related medical conditions, plaintiff “has had DVT in the past” and experiences chronic lower back pain. (Docket Entry ## 1-2, 1-4). His chief complaint at the May 17, 2012 visit and examination at UMass Memorial was swelling in the lower part of his left leg with redness. (Docket Entry # 1-2, p. 13). Plaintiff attests he “has blood pooling up under his skin.” (Docket Entry # 1, ¶ 10) (Docket Entry #1-2). During the visit, he expressed a concern about cellulitis in his lower left leg. An ultrasound of the leg on the same day did not show a blood clot. As a result of the “significant edema,” dosages of plaintiffs diuretic medications were increased. (Docket Entry # 1-2). On June 25, 2012, plaintiff was seen at OCCC by medical staff. Health services progress notes for the visit reflect that the medications were ordered to address the fluid overload and that plaintiffs chemistries would be repeated again to assess the effects from the increased dosages; (Docket Entry # 101-2, p. 3). The UMass clinic noted no significant ascites at the January 31, 2013 visit and examination. At the time plaintiff filed the February 2014 complaint, his legs were “swollen-about three times normal girth.” (Docket Entry # 1, ¶ 18).
B. Retaliation and Related Grievances
At an undermined time in 2012, plaintiff complained about Riendeau to the Department of Public Health Division of Health Professions Licensure, Office of Public Protection (“the Registration Board”). (Docket Entry # 1, ¶ 14). By letter dated October 2, 2012, the Registration Board advised plaintiff it had initiated an inquiry regarding the allegations. (Docket Entry # 1-3, p. 2). On November 13, 2012, plaintiff sent the Registration Board a copy of the July 2012 grievance that Riendeau denied. (Docket Entry # 1-3, pp. 4, 6). On November 26, 2012, the Registration Board mailed plaintiff a complaint form and asked- him to complete it to facilitate the investigation. (Docket Entry # 1-3, p. 3). In the complaint form, plaintiff states that Riendeau repeatedly canceled doctors’ orders, including orders for a liver biopsy and placement.on an organ donor list, and that “[n]o alternative treatment is being offered.” (Docket Entry #1-3, pp. 7-8). The Registration “Board decided not. to discipline” Riendeau. (Docket Entry # 1, 1114).
Undeterred, on December 31, 2012, plaintiff wrote to the Director of Accreditation, National Commissions on Correctional Health, regarding Riendeau and his need for a liver transplant and alternative treatment for his hepatitis C. (Docket Entry #1-3, p. 10). The letter states that
On December 21, 2012, plaintiff submitted a formal grievance to the health services unit by completing an Inmate Medical Grievance and Appeal Form. Therein, he complained about an inability to obtain “KOP” status for two skin lotions, Eucerin lotion and “Evoke skin Citrus Vanilla Aro-motherapy, moisturizer” purportedly ordered by Nasuti.
On December 31, 2012, Nasuti treated plaintiffs skin condition at OCCC. (Docket Entry # 101-2, p. 18). She observed multiple open skin tears and areas of hyperpig-mentation and-assessed a “decreased skin integrity.” (Docket Entry # 101-2, p. 18). In order “to prevent overuse or diversion,” Nasuti’s plan was to advise management “to portion out [the] lotion daily.” (Docket Entry # 101-2, p. 18).
On January 2, 2013, Riendeau denied the December 21, 2012 grievance because plaintiff had received the Eucerin lotion and-the “citrus vanilla aromotherapy lotion” was “not medically indicated.” (Docket Entry # 1-3, p. 9). In denying the grievance, Riendeau checked a box that, “This is not a grievable ’issue” and another box that, “This issue has been previously addressed.” (Docket Entry # 1-3, p. 9).
By letter dated January 4, 2013, plaintiff appealed the denial to the Health Services Division.
Notwithstanding the statement in Weiner’s letter that the decision was “final,” plaintiff filed a similar grievance on February 18, 2013 with the health services unit. Therein, he complained about his inability to obtain medications and skin creams as well as his inability to have “KOPs” that Nasuti previously ordered. (Docket Entry # 101-5, p. 9). The grievance also describes his inability to obtain medication because only one of the ten nurses at OCCC, Berg, had the authority to dispense plaintiffs medications. The grievance asks that all of the OCCC nurses be allowed to dispense his medications. (Docket Entry # 1-4, pp. 1-2) (Docket Entry # 101-5, pp. 9-10). Riendeau denied the grievance on Febru
Plaintiff checked the appropriate box indicating his desire to appeal the decision to the DOC Health Services Division.
Weiner addressed the appeal in a letter to plaintiff on March 5, 2013. (Docket Entry # 1, ¶ 17) (Docket Entry # 1-4, p. 7) (Docket Entry # 101-5, p. 6). As set forth in the letter, Weiner referred the harassment allegations about Riendeau to Nickl, senior director of program operations for UMCH.
On May 23, 2013, the Grievance Appeal Coordinator (“the Grievance Coordinator”) of the' Correctional Health and Criminal Justice Program at the University of Massachusetts Medical School wrote to plaintiff regarding Weiner’s March 5, 2013 letter regarding plaintiffs February 27, 2013 appeal of the February 18, 2013 grievance. Explaining that he had been asked to respond to the allegations of harassment by Riendeau of instructing officers to confiscate plaintiffs “KOP medications from [his] cell,” the Grievance Coordinator found “no evidence to support” the allegations. (Docket Entry # 101-5, p. 2).
DISCUSSION
A. Section 1983 Eighth Amendment Medical Care Claim
Riendeau and Nickl initially argue that plaintiff fails to set out a serious medical need that went unmet. Separately, they maintain that neither Riendeau nor Nickl acted with deliberate indifference. (Docket Entry # 101, § II).
In order to succeed in an Eighth Amendment claim under section 1983 based on denied or inadequate medical care, a prisoner must satisfy: “(1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.” Kosilek v. Spencer,
A “wanton disregard” to a prisoner’s needs requires a disregard “akin to criminal recklessness, requiring consciousness of “ ‘impending harm, easily preventable.” ’ ” Kosilek v. Spencer,
A prison official is not deliberately indifferent if he responds “reasonably to the risk.” Burrell v. Hampshire County,
Assuming for purposes of argument only that plaintiffs hepatitis C And cirrhosis are serious medical needs, there is a dearth of evidence that either Rien-deau or Nickl acted with the necessary deliberate indifference to those needs. In 2003 and 2004, plaintiff developed vision changes that precluded treatment with “peg-intron” or “Peg Interferon.” (Docket Entry # 101-4, p. 2) (Docket Entry # 1, ¶ 6). The medical record contains numerous references to the fact that plaintiff “did not tolerate interferon therapy” and “developed retinal changes” when he received the treatment in 2003 an,d 2004. (Docket Entry # 101-4, p. 2); (Docket Entry # 101-2, p. 12) (Docket Entry # 101-7, pp. 2, 3) (Docket. Entry # 1-2, p. 13) (Docket Entry # 1, ¶ 6). The drug regimens for boceprevir and telaprevir, approved by the FDA in 2011, required the use of “pegin-terferon alfa” and ribavirin.
In July 2012, Riendeau denied plaintiff’s July 1, 2012 grievance requesting a biopsy,
When Riendeau denied the grievance, the record also included Dantonio’s April 2012 extensive documentation of plaintiffs hepatitis C treatment, including the management of his fluid overload with diuretic therapy, his HOC, his history of cirrhosis and his current symptoms. In early May 2012, plaintiff had a four phase CT scan of his pelvis and abdomen. On May 17, 2012, multiple providers saw plaintiff at the UMass clinic and three radiologists reviewed the CT scan. The team decided “to proceed with an MRI to further characterize the lesion” and, recognizing plaintiffs hepatitis C with cirrhosis and “decompen-sating liver disease,” did not have “plans currently for hep C treatment.” (Docket Entry # 1-2, pp. 17-18).
Plaintiff had the MRI in August 2012. (Docket Entry # 101-3). In November 2012, he underwent the FNA biopsy and radio frequency ablation. On December 28, 2012, plaintiff had a three phase CT scan of his pelvis and abdomen which showed a treated lesion and no signs of residual disease. (Docket Entry # 1-4, pp. 9,11-12). On January 31, 2013, plaintiff was seen again in the UMass clinic and had a followup appointment with oncology. (Docket Entry # 1-4, pp. 9, 11). After examining plaintiff, Dr. Switzer recommended “active surveillance alone with repeat imaging in 3 months after” the December 28, 2012 CT scan. (Docket Entry # 1-4, p. • 12). The UMass clinic note similarly reflects continued “surveillance” of plaintiffs condition and “imaging in 3 months after the 12/28/2012 imaging.” (Docket Entry # 1-4, p. 10).
In March 2013, plaintiff was seen at Lemuel Shattuck. The discharge summary, initialed by Nasuti, includes the past history of plaintiffs treatment “with interferon and ribavirin which was discontinued for retinal changes.” (Docket Entry # 101-3, p. 3).
In July 2013, MPCH began providing the medical services to OCCC inmates previously provided by UMCH. (Docket Entry #33-1, p. 2). Riendeau left OCCC when MPCH outbid UMCH for the contract. (Docket Entry # 1, ¶ 20).
Overall, although plaintiff asked Rien-deau for a liver biopsy, a liver transplant and alternative medication to treat his hepatitis C, her responses were reasonable at the time of the denial in July 2012. At that time, plaintiffs liver - condition had been constantly and consistently monitored through consultations and testing. His MELD score, weight and later the small size of the lesion in his liver counseled against his candidacy for a liver transplant. Medical records reflecting his negative response to “interferon” or “peg-intron” and ribavirin provided a reasonable basis to deny treatment with boceprevir and telaprevir. (Docket Entry # 101-4, p. 2); (Docket Entry # 101-2, p. 12) (Docket
Nicld’s limited involvement in the alleged misconduct arises from Weiner forwarding plaintiffs February 27, 2013 appeal letter to Nickl. (Docket Entry # 1-4, p. 7) (Docket Entry # 1, ¶ 17). The letter complained about the confiscation of plaintiffs medications from his cell and that Riendeau was “play[ing] a game with [plaintiffs] KOP meds.” (Docket Entry # 1-4, p.6).
Meanwhile, Riendeau’s insistence that plaintiff obtain his skin medications in the medication line as opposed to retain them in his cell fails to withstand summary judgment on both the objective and subjective prongs of the Eighth Amendment. As to the former, there is no showing that the skin rashes, skin tears, areas of hyperpig-mentation and subcutaneous skin nodules (Docket Entry # 101-7, p. 6) (Docket Entry # 102-2, p. 18) constituted a serious medical need for which plaintiff received inadequate treatment. See Kosilek v. Spencer,
As to the subjective prong, Riendeau responded reasonably to the risk of current and future serious harm by requiring plaintiff to obtain the medications in the medication line. In fact, Nasuti recognized the need to “prevent overuse” of the skin lotion[s]. (Docket Entry # 101-2, p. 18). There is little or no evidence that Rien-deau wantonly disregarded an impending and easily preventable harm to plaintiff or otherwise acted with a deliberate indifference.
In sum, the decisions not to prescribe boceprevir and telaprevir, to require that plaintiff obtain skin lotions and creams in the medication line, to have plaintiff undergo an FNA biopsy and not to order a liver transplant on the part of Riendeau or, assuming her involvement, Nickl, considered collectively did not contravene the objective prong of the Eighth Amendment. Lacking a genuine issue of material fact that Riendeau or Nickl acted with deliberate indifference, summary judgment in their favor on the section 1983 Eighth Amendment claim is appropriate.
B. Section 1983 Retaliation Claim
Riendeau and Nickl next move for summary judgment on the section 1983 retaliation claim. Plaintiff alleges that Riendeau retaliated against him because of the complaint he made to the Board of Registration. (Docket Entry # 1, ¶ 15). Riendeau and Nickl submit that plaintiff fails to provide any evidence that the confiscation of medication from his cell was based on retaliatory intent. They point out that the reason plaintiff had to retrieve his
In order to set out a First Amendment retaliation claim, “a prisoner-plaintiff must allege ‘1) he engaged in constitutionally protected conduct, 2) prison officials took adverse action against him, 3) with the intent to retaliate against him for engaging in the constitutionally protected conduct and 4) he would not have suffered the adverse action “but for” the prison officials’ retaliatory motive.’” Hudson v. MacEachern,
The evidence plaintiff cites to establish retaliation consists of his complaint to the Registration Board, correspondence between plaintiff and the Registration Board (Docket Entry # 1-3, pp. 2-8), the December 21, 2012 and February 18, 2013 grievances plaintiff filed on the Inmate Medical Grievance and Appeal Form and Rien-deau’s and other responses related thereto (Docket Entry # 1-4, pp. 1-5, 7-8). (Docket Entry # 1, ¶¶ 14-15, 17, 19). Assuming the existence of protected activity and that plaintiff otherwise establishes a prima fa-cie case given the temporal proximity between plaintiffs complaints (Docket Entry # 1-3, pp, 2, 37, 8, 12) and Riendeau’s subsequent reiteration to plaintiff that he must obtain his medication from the medication line (Docket Entry # 101-5, p. 8), he fails to show a sufficient retaliatory animus on the part of Riendeau. Moreover, he fails to provide evidence, direct or circumstantial, to refute or contradict the non-retaliatory reason of requiring him to obtain his medications in the medication line to avoid overuse (Docket Entry # 102-2, p. 18) and/or the non-retaliatory reason that a KOP audit found plaintiff noncompliant (Docket Entry # 101-5, p. 11). Like the plaintiff in Hannon, plaintiff relies on hearsay and statements made without personal knowledge. See id. at 49-51 & n. 4.
For example, Riendeau and Nickl correctly point out that plaintiff lacks personal knowledge that Riendeau ordered Berg to confiscate his medications. (Docket Entry # 101, p. 12) (citing Docket Entry # 60, p. 13,, fn. 10). Plaintiff’s additional averment that Berg asked another officer to confiscate plaintiffs medications from his cell or Riendeau’s statements to Berg to harass plaintiff (Docket Entry # 1, ¶¶ 15, 16) are hearsay. See id. at 45, 49 (inmate’s affidavit that two different corrections officials told him that defendant ordered his transfer because of his litigiousness was hearsay); see also Bhatti v. Trustees of Boston University,
At most, the summary judgment evidence includes the additional averment by plaintiff that, when he went to the medication window, he could not obtain his medications. He also presumably has personal knowledge that his KOP medications were no longer in his cell. (Docket Entry # 1, ¶¶ 15, 16). In particular, during management or staff access hours, plaintiff asked Riendeau for the return of his medications. Thereafter, plaintiff received his medications at “the med window.” (Docket Entry # 1, ¶ 16). The next day, however, his medications were no longer in his cell. (Docket Entry # 1, ¶ 16). Without more, the summary judgment record fails to provide- a reasonable inference that Riendeau acted with a retaliatory animus. Riendeau and Nickl’s argument that there is no evidence of retaliatory intent is well taken. Summary judgment on the section 1983 retaliation claim is warranted.
IV. State Law Claims
As a final argument, Riendeau and Nickl rely on their immunity under the MTCA to obtain summary judgment on the state law claims. They maintain that UMCH, a public employer, is an arm of the state and that they acted within the scope of their employment as UMCH employees. Accordingly, they are purportedly “immune from negligence claims” under the MTCA. (Docket Entry # 101, § V)-
Under the MTCA, “no ... public employee ... shall be liable for any injury or loss of property or personal injury ... caused by his negligent or wrongful act or omission while acting within the scope of his office or employment.” Mass. Gen. Laws ch. 258, § 2. The statute therefore immunizes' public employees from liability for their negligent or wrongful acts' committed while acting within the scope of their employment. See Caisse v. DuBois,
The determinative question in assessing whether an individual is a public employee within the meaning of the MTCA is whether the individual is “subject to the direction and control of a public employer.” Smith v. Steinberg,
The MTCA defines a “public employer” as “any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof.”' Mass. Gen. Laws ch. 258, § 1. UMCH, “the name of a business operation,” is not a separate corporate entity from the University of Massachusetts Medical School (“UMass Medical School”). (Docket Entry #27-1). Individuals who provide medical services and work for UMCH are employees of the UMass Medical School. (Docket Entry #27-1). The UMass Medical School approved and entered into any contract that names or refers to UMCH. (Docket Entry #27-1). The facts as well as the law, see McNamara v. Honeyman,
The issue thus reduces to whether Riendeau and. Nickl were subject to the direction and control of UMCH, a public employer. “Whether an individual is a public employee is a question of fact.” Williams v. Hartman,
That said, the degree to which UMCH or its physicians controlled and oversaw the medical care Riendeau provided to plaintiff as well as the degree and control UMCH exercised over her work as HSA in adjudicating medical grievances, such as the July 1, 2012 grievance (Docket Entry #101-5, p. 3) and the February 27, 2013 grievance (Docket Entry # 1-4, pp. 3, 4) at issue in this case, is not in the record. See Kelley v. Rossi,
III. MPCH Defendants’ Rule 12(c) Motion
The MPCH defendants move for judgment on the pleadings on the MTCA and article 26 claims against them. (Docket Entry # 97). Plaintiff opposes the motion. (Docket Entry # 116).
STANDARD OF REVIEW
The applicable 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).” Jardin De Las Catalinas Ltd. Partnership v. Joyner,
A Rule 12(c) motion nonetheless differs from a Rule 12(b)(6) motion because “it implicates the pleadings as a whole.” Aponte-Torres v. University of Puerto Rico,
As a result of the obligation to view the facts and reasonable inferences in favor of the nonmovant, however, “the court treats any allegations in the answer that contradict the- complaint as false.” Goodman v. Williams,
Here, the answer of the MPCH defendants admits a fact that the complaint does not include. Specifically, in response to paragraph six, “The MPCH Defendants admit that Plaintiff has á specific viral mutation that predicts resistance to protease inhibitors.” (Docket Entry # 84, ¶ 6). Paragraph six in the complaint, however, only states that:
Plaintiff was treated by prison health providers in 2006 or 2007 with PEG interferon. Treatment was stopped due to plaintiff having retina problems. No alternative treatment has been, offered.
(Docket Entry # 6, ¶ 6). This fact (Docket Entry # 84, ¶ 6) is not in the complaint and, construing the complaint in plaintiffs favor, is contradicted by the facts and reasonable inferences in the complaint. It is not part of the Rule 12(c) record.
Subject to certain narrow exceptions and absent'a conversion of the Rule 12(c) motion to a summary judgment motion under the procedure set forth in Rule 12(d), the court’s review is confined to the complaint and the answer. As with Rule 12(b)(6), exceptions exist that allow consideration of “documents incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial notice.” Grajales v. Puerto Rico Ports Auth.,
Here, the MPCH defendants do not set out the facts in the complaint. Rather, they rely on certain facts and legal conclusions or intermingled factual and legal conclusions set out in the Report and Recommendation adjudicating the MPCH’s
A court may take judicial notice of “adjudicative facts.” FecLR.Evid. 201. “Adjudicative facts are “ ‘simply the facts of the particular case.’” F.R.E. 201, Advisory Committee Notes; Getty Petroleum Mktg., Inc. v. Capital Terminal Co.,
A court may also take judicial notice of judicial decisions.
Examining the five findings that the MPCH defendants identify, taking judicial notice of the first fact is not necessary. The complaint, which is part of the Rule 12(c) record, already states that MPCH outbid UMCH for the contract in 2013. (Docket Entry # 1, ¶ 20).
With respect to the third fact, taking judicial notice does not inevitably lead to a Rule 12(c) judgment on the pleadings. The fact emanated from a statement in Dr. Hameed’s February 2015 ■ affidavit that, “For the past year, [plaintiffs] condition has been monitored with multiple lab tests and chronic disease, consultations with medical professionals outside of OCCC.” (Docket Entry # 56-1, ¶ 7) (Docket Entry # 60, pp. 10, 33). The time period of such monitoring and consultations was therefore from February 2014 to February 2015. The determinative time period regarding the MPCH defendants’ misconduct, if any, began in 2013 when MPCH outbid UMCH for the contract to provide medical services to OCCC inmates.
The second proposed finding also includes a fact, namely, that, “Plaintiff has a diagnosed viral mutation that predicts resistence to both” boceprevir and telapre-vir. (Docket Entry # 60, pp. 10, 33). This statement was a disputed fact at issue in the summary judgment record. As such, it is not an “adjudicative fact” within the meaning of Rule 201(b). In addition and as explained above, taking judicial notice of disputed facts, as opposed to the law or procedural import of a judicial decision, is not appropriate. Here, at most, it is appropriate to take judicial notice of the law that, on summary judgment, the failure to treat with boceprevir and telaprevir was a reasonable response to the risk as opposed to deliberate indifference. See Berrios-Romero v. Estado Libre Asociado de Puerto Rico,
In sum, this court will take judicial notice of the law in the second, fourth and fifth findings which thus establishes there was no genuine issue of material fact that the medical treatment the MPCH defendants provided amounted to deliberate indifference under the Eighth Amendment. Taking judicial notice, however, does not inevitably lead to a Rule 12(c) judgment on the pleadings because Rule 12(c) uses a
FACTUAL BACKGROUND
In addition to the foregoing, judicially noticed findings, the Rule 12(c) record, taken from the facts in the complaint and attached documents during the relevant time period, includes the following. In 2013 and prior thereto, UMCH provided medical services to inmates at OCCC, including plaintiff. “At some point in 2013[,]” MPCH took over and began providing medical services to OCCC inmates. (Docket Entry # 1, ¶ 20).
Plaintiff has a history of hepatitis C and is confined to a wheelchair. (Docket Entry ## 1-2, 1-4). By 2007, he had received “PEG Interferon” and ribavirin therapy. The treatment ended because he developed retinal changes. (Docket Entry # 1, ¶ 6) (Docket Entry # 1-2, p. 13).
Neither UMCH nor MPCH medical providers provided plaintiff an alternative treatment for his hepatitis C. (Docket Entry #1, ¶ 6). In May 2011, the FDA approved boceprevir and telaprevir to treat hepatitis C.
On May 11, 2012, plaintiff had a four phase CT scan of his pelvis and abdomen. The radiology report showed “changes of advanced cirrhosis” and a liver mass that “should be considered as hepatocellular carcinoma unless proven otherwise.” (Docket Entry # 1-2, p. 9).
On May 17, 2012, plaintiff had an outpatient oncology consultation with Venu G. Bathini, M.D. (“Dr. Bathini”) at UMass Memorial “as a part of the multidisciplinary HCC Clinic at UMass.” (Docket Entry # 1-2, pp. 10, 12). The indication for the consultation was to assess plaintiffs “[cjhronic hepatitis C, cirrhosis and Jiver mass;” (Docket Entry # 1-2, p. 10). Dr. Bathini’s note shows that a September 2008 CT scan1 initially revealed the liver mass. Repeat CT scans in January 2009, February 2010 and March 2011 indicated “a stable hepatic lesion in the setting of hepatitis C and cirrhosis ... that had not significantly grown in 5 years’ time.” (Docket Entry # 1-2, p. 10). Dr. Bathini reviewed the imaging with three radiologists at a multidisciplinary conference. Noting that “a biopsy may be aggressive and not needed,” the multidisciplinary board adopted a “watch and wait philosophy” with “active surveillance” and reim-aging in three to six months. (Docket Entry # 1-2, p. 12). The UMass clinic note likewise reflects “the consensus opinion” of the multidisciplinary team at the UMass clinic to obtain an “MRI study of [the] liver lesion and[,] if still ambiguous and not clearly a benign lesion, then” possibly “rec
In November 2012, plaintiff underwent the radio frequency ablation of the lesion and “[t]he biopsy at that time showed just an adenoma.” (Docket Entry # 1-4, p. 9). On December 28, 2012, he had a three phase. CT scan of his abdomen and pelvis. The scan revealed no abnormalities except for “a large ablative cavity” in the area where the lesion was ablated and a small hepatic lesion. (Docket Entry # 1-4, p, 11).
On January 31, 2013, plaintiff was seen again at the UMass clinic. The clinic note states that, “As a patient with cirrhosis, he is at risk for developing further HOC and will be followed.” (Docket ■ Entry # 1-4). Accordingly, the multidisciplinary group decided “to proceed with active surveillance and a followup CT of. the chest, abdomen and pelvis in 3 months.” (Docket Entry # 1-4). Thereafter and construing the record in plaintiff’s favor, there is no indication that plaintiff received any treatment for his hepatitis C and remaining lesion.
As noted above, MPCH began providing the medical services for inmates at OCCC in 2013 or, at the latest, in July 2013. Caratazzola and Davenport also began working as HSAs at OCCG. (Docket Entry # 1). Based on the Rule 12(c) record, after plaintiffs January 31, 2013 visit and examination by Dr. Switzer, plaintiff did not receive any treatment or alternative medications for his hepatitis C up until the time he filed the complaint in February 2014. (Docket Entry # 1), Drawing reasonable inferences, 'the MPCH defendants knew about the January 31, 2013 visit and the need for active surveillance with imaging of the lesion in or around March 28, 2013 and, absent signs any other disease, repeat imaging every six months. (Docket Entry ## 1, 1-4). Notwithstanding the MPCH defendants’ awareness of plaintiff’s condition, including the risk of developing further HCC, and the need for active monitoring, they failed to provide any treatment up to the time plaintiff filed the complaint in February 2014.
As to other or related medical conditions, plaintiff “has had' DVT in the past” and experiences chronic lower back pain. (Docket Entry ## 1-2,1-4). His chief complaint at the May 17, 2012 visit and examination at UMass Memorial was swelling in the lower part of his left leg with redness. (Docket Entry # 1-2, p. 13). Plaintiff states he “has blood pooling up under his skin.” (Docket Entry # 1, ¶ 10). During the May 17, 2012 'visit, an ultrasound of the leg on the same day did not show a blood clot. As a result of the “significant edema,” dosages of plaintiffs diuretic medications were increased. (Docket Entry # 1-2). At the time plaintiff filed the February 2014 complaint, his legs were “swollen-about three times normal girth.” (Docket Entry # 1, ¶ 18).
DISCUSSION
A. Article 26 Claim
The MPCH defendants seek a Rule 12(c) judgment on the pleadings on the article 26 of the Massachusetts Declaration of Rights Act claim because the record fails to show deliberate indifference. They reason that plaintiff is not entitled to the treatment of his choice in the form of the alternative medications of boceprevir and telaprevir and that their refusal to treat him with these medications was reasonable because he had a diagnosed viral mutation that predicted his resistance to such treatment. (Docket Entry # 98, pp. 4-7 & n.4). They surmise that any delays in discovering acceptable medications was reasonable in light of the viral mutation. They also maintain that they actively monitored
Assuming dubitánte that Massachusetts courts would recognize a direct cause of action under article 26, see Podgurski v. Dep’t of Correction,
Here, plaintiff had a diagnosed medical condition of hepatitis C and cirrhosis of the liver. Having developed a lesion in the liver, he underwent radio frequency ablation for the lesion in November 2012. (Docket Entry # 1-4, p. 9). “[A]s a patient with cirrhosis,” plaintiff had a continued risk of developing HCC and required active monitoring, as noted in the UMass clinic note for the January 31, 2013 visit. (Docket Entry # 1-4, pp. 9-10). Dr. Swit-zer’s note for his January 31, 2013 examination of plaintiff similarly state that, “From a hepatic standpoint, this patient ... should be continued to be followed regularly” with respect to his “hepatitis C and liver disease.” (Docket Entry # 1-4, p. 12).
Notwithstanding this plausible substantial risk of serious harm, the MPCH defendants did not monitor or follow plaintiffs condition after outbidding UMCH for the contract in 2013 or, at the latest, in July 2013
Next, turning to the MPCH defendants’ argument regarding Nasuti, the récord is devoid of any indication that she ignored any medical condition of plaintiffs that posed a substantial risk of serious harm. The complaint identifies Nasuti as a nurse practitioner at OCCC “under the auspices of’ MPCH. The complaint additionally states that:
It is believed by plaintiff that Shawna Nasuti is being prevénted from prescribing alternative meds for plaintiffs hepatitis C by Davenport and Caratazzola, and if she were to testify to such, the plaintiff will drop the case against her ... Shawna Nasuti is a Nurse Practitioner serving the role of a doctor in the prison. Very often when she prescribes meds for an inmate the orders are can-celled by the HSA Davenport and Cara-tazzola - at the behest of MPCH.
(Docket Entry # 1, ¶¶ 20-21). Plaintiff does not argue the contrary.
B. MTCA Liability
The MPCH defendants next assert that they cannot be sued under the MTCA because MPCH is not a public employer. They maintain that MPCH is a “private contractor” and therefore does not fall within the statute’s definition of a “public employer.” Mass. Gen. Laws ch. 258, § 1. In presenting the argument, the MPCH defendants rely on the facts in the complaint and their answer.
Those facts show that'in 2013, MPCH outbid UMCH and entered into a contract with the DOC to provide medical care to OCCC inmates. Davenport and Caratazzo-la took over as HSAs for MPCH. Nasuti, Davenport and Caratazzola worked at OCCC under the auspices of MPCH. (Docket Entry # 1, ¶¶ 2, 20, 21) (Docket Entry #84, ¶¶2,20).
The MTCA defines a “public employer” as “any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof.” Mass. Gen. Laws ch. 258, § 1. By definition, the term “public employer” is “not a private contractor with any such public employer_”
Assuming that the DOC is a public employer, the issue reduces to whether the facts render it plausible that MPCH is not a private contractor with the DOC. The Rule 12(c) record does not include the terms of the contract and the relationship between MPCH and the DOC. At best, the facts show that MPCH employees provided medical care to OCCC inmates, including plaintiff, and that MPCH had a contract with the DOC. There is no indication of the structure of MPCH or facts identifying the entity that pays the salaries of the MPCH defendants, controls their schedules or directs their duties. Viewing the record in plaintiffs favor, Berg and Nasuti worked at OCCC and Caratazzola and Davenport oversaw health care services at the prison. It is also reasonable to infer that they were subject to the rules and regulations of the DOC in effect at OCCC. Overall, it remains plausible that MPCH was not a private contractor separate and apart from the DOC.
CONCLUSION.
In accordance with the foregoing discussion, this court RECOMMENDS
Notes
. The complaint refers to both UMass Correctional Health Services and UMass Correctional Health. The latter entity provided medical services' to inmates, including plaintiff Dana E. -Lopes ("plaintiff”), at the Old Colony Correction Center ("OCCC”) in Bridgewa-ter, Massachusetts during the relevant time period. (Docket Entry # 33-1). This court therefore construes the pro se complaint as naming UMass Correctional Health as a defendant.
.The prior Report and Recommendation construed the complaint as raising an Eighth Amendment and state law medical care claims as opposed to also a retaliation claim. (Docket Entiy # 60, fn, 2). The opinion directed plaintiff to file a motion for leave to amend the complaint in the event he wished to pursue a retaliation claim. (Docket Entry # 60, fn. 2). Although plaintiff has not filed a motion for leave to amend, he subsequently clarified that the complaint does include a retaliation claim. (Docket Entry # 64, p. 3). Because plaintiff is pro se, in a wheelchair and asserts that he raised retaliation claims, this court will no longer require him to file the motion for leave to amend. The complaint, as presently pled and liberally construed, adequately sets out retaliation claims against the above defendants. Because the Report and Recommendation dismissed the section 1983 Eighth Amendment and state law claims against UMCH for lack of jurisdiction based on Eleventh Amendment immunity under Rule 12(b)(1), this court also lacks jurisdiction to address the retaliation claim against UMCH for the same reasons.
. It is worth noting that the MTCA "does not create any new theories of liability, but simply provides that [certain] tort actions brought against governmental entities are governed by the same theories of liability that apply to actions involving private parties.” Vining v. Com.,
. Page references refer to the page as docketed as opposed to the page or appendix number of the document itself.
. The state law claims against the MPCH defendants, which this court recommended denying summary judgment on exhaustion under chapter 127, section 38F, therefore remain in this action.
. Plaintiff filed a complete copy of the underlying medical record from Boston Medical Center in opposing the MPCH defendants’ pending Rule 12(c) motion. (Docket Entry # 116, pp. 10-14). He also attached the NIH documents to the Rule 60(b) motion that classify boceprevir and telaprevir as "protease inhibitors." (Docket Entry # 94, App. 52, 54). The Boston Medical Center record, which was not part of the summary judgment record for the MPCH defendants’ prior motion (Docket Entry # 32); states that plaintiff saw David Nunes, M.D. ("Dr. Nunes") at Boston Medical Center on July 23, 2014. The record further reflects that plaintiff's mutation analysis for hepatitis C is a "R155K mutation which is associated with protease resistence” and that he carries the "R155K mutation which predicts resistance to protease inhibitors. He is therefore not [a] good candidate for a protease based treatment regimen.” (Docket Entry # 116, pp. 10, 12). The medical record visa-vis the MPCH defendants’ summary judgment motion, if it had included these underlying notes, would have fully supported the above averment.
. The treatment note for the July 23, 2014 appointment with Dr. Nunes, which was not part of the record for the MPCH defendants’ prior summary judgment motion (Docket Entry # 32), reflects laboratory tests on April 7 and June 9, 2014. (Docket Entry # 116, p. 12). The treatment note for the January 21, 2015 appointment at Lemuel Shattuck Hospital (“Lemuel Shattuck”), which was part of the prior summary judgment record, shows a laboratory blood test in November 2014. (Docket Entry # 58). The July 23, 2014 medical record, if included in the prior record, as well as the Lemuel Shattuck record, therefore fully support the above averment.
. Plaintiff first raised the hearsay objection in objections to the district judge filed on March 19, 2015. (Docket Entry # 64).
. In contrast, as discussed infra, the MPCH defendants’ Rule 12(c) motion and the Rule 12(c) record (which is limited to the complaint, the answer, matters subject to judicial notice and other narrow categories of material) does not include the documents that would merit judgment on the pleadings on the Eighth Amendment claim.
. The deliberate indifference standard is set out under Roman numeral II.
. Plaintiff agrees that "Interferon” is absolutely poisonous to him. (Docket Entry # 94, p.4),
. The complaint, filed in February 2014, alleges that plaintiff has received no meaningful treatment since at least 2008. Plaintiff has not formally sought leave to amend the complaint with a supplemental pleading setting out events that took place after the February 2014 filing of the complaint. See Fed.R.Civ.P. 15(d). Nor has he filed a proposed supplemental complaint.
.As an aside, plaintiff clearly and unambiguously states that he began receiving Harvoni on March 2, 2015. (Docket Entry # 64, p. 1) . (also noting that he received the treatment "in response to this suit”). In the September 2015 opposition to the MPCH defendants’ motion for judgment on the pleadings, plaintiff also clearly states that he "is now free of the virus.” (Docket Entry #116, p. 1); see generally Cerqueira v. Cerqueira,
. In any event, the cases are not convincing as a means to deem the July 2012 grievance exhausted.
. Inasmuch as this court may consider other evidence in the record even though not cited by Riendeau and Nickl, see Fed.R.Civ.P; 56(c)(3), certain portions of the factual background cite other documentation and summary judgment evidence in the record and, in so doing, may repeat factual findings based on those exhibits set out in the prior Report and Recommendation.
. In 2006, plaintiff was treated at ‘'SBCC," an acronym for the Souza Baranowski Correctional Center in Shirley, Massachusetts, and therefore may have been an inmate at SBCC during that time period.
. Although summarized in the factual background, plaintiff’s medical care after July 2013 is therefore not material to the deliberate indifference medical care claim against Riendeau.
. The complaint reflects that , the treatment took place "in 2006 or 2007.” (Docket Entry # 1, ¶ 6). The temporal discrepancy is not material to the summary judgment analysis. - The point remains that, before and after the introduction of boceprevir and telaprevir in 2011, plaintiff could not tolerate "interferon and ribavirin therap” because of negative side effects to his vision.’ (Docket Entry # 1 -2, p. 13).
. The form progress notes are designated “infirmary” at the bottom of the pages. (Docket Entry # 101-2).
. The primary relief* plaintiff seeks in the complaint is to receive these alternative medications to treat his hepatitis C. Thereafter and once his condition stabilizes, he requests a liver transplant. (Docket Entry # 1). Because he begán receiving a different medication, Harvoni, in March 2015 (Docket Entry # 64), which he acknowledges worked because he "is now free of the virus” as of September 2015, he continues to seek a liyer transplant due to the deterioration of his liver that resulted from defendants’ neglect. (Docket Entry # 116).
.Consideration of the documents filed by plaintiff is appropriate. See Fed.R.Civ.P. 56(c)(3); Arroyo v. Volvo Group N.A., LLC,
. See footnote 13.
. This court assumes that KOP refers to keep on person, i.e., being able to keep the lotions on his person.
. The appeal raised a new issue that plaintiff "need[ed] a liver transplant and alternative treatment for hepatitis C (Interferon gives me retina problems).” (Docket Entry # 1-3, p. 11).
.The above statement is not considered for the truth of the matter asserted, i.e., that a KOP audit found plaintiff non-compliant. It is considered as the reason proffered for the denial of the appeal.
. On February 22, 2013, plaintiff wrote another letter to the Registration Board.
. The complaint alleges that Weiner "palmed off the complaint” to Nickl and that, "All of this is retribution for plaintiff having complained of Riendeau to the” Registration Board. (Docket Entry # 1, ¶ 17).
.This court set out the Eighth Amendment deliberate indifference standard for medical claims in the March 2015 Report and Recommendation. For ease of reference, the standard, which has not materially changed, is repeated here.
. In contrast, the Rule 12(c) record does not include the information that the drug protocol for boceprevir and telaprevir included- "pegin-terferon alfa” and ribavirin.'
. -It is therefore not necessary to address Riendeau and Nickl’s PLRA exhaustion arguments regarding the section 1983 Eighth Amendment and retaliation claims. See Ramos v. Patnaude,
. Separately, it worth noting that the complaint may raise an intentional tort claim under the MTCA.
.The findings are as follows:
1. In July 2013, the Massachusetts Department of Correction contracted Defendant Massachusetts Partnership for Correctional Healthcare to provide medical services to inmates at Old Colony Correctional Center. (R&R, Doc,60, pg.6).
2. The MPCH Defendants failure to treat Plaintiff’s Hepatitis C with Boceprevir and Telaprevir was reasonable because Plaintiff has a diagnosed viral mutation that predicts resistance to both of these medications, (R&R, Doc.60, pg.33).
3. “During the past year, medical personnel have actively monitored [Plaintiff's] hepatitis C with lab tests and consultations.” (R&R, Doc.60, pg.33),
4. “Considering the entire treatment MPCH afforded to plaintiff beginning in July 2013, such conduct fails to evidence a deliberate indifference to plaintiffs hepatitis C or any denied or delayed care as a punishment.” (R&R, Doc. 60, pgs. 33-34).
5. Plaintiff cannot maintain a claim against the MPCH Defendants under Section 1983 “because plaintiff cannot show that the medical treatment provided by defendants amounted to deliberate indifference under the Eighth Amendment to the United States Constitution.” (Order, Doc.67, pg.2).
(Docket Entry # 98)
. A judicial decision or opinion is also subject to consideration because it falls under the exception for matters of public record. See Giragosian v. Ryan,
. The MPCH defendants do not argue and therefore waive that thfe summary judgment ruling constitutes-the law of the case.
. The Rule 12(c) record fails to contain any medical records from February 1, 2013, i.e., after the January 31, 2013 visit to UMass Memorial, to February 2014, when plaintiff filed the complaint. (Docket Entry # 1, ¶ 20). Moreover, the complaint states that plaintiff has not received treatment for his hepatitis C or any alternative medications to treat the condition. The July 23, 2014 Boston Medical Center record (Docket Entry # 116, pp. 10-13) is also not part of the Rule 12(c) record. It is not an exhibit attached to the complaint and does not fall within any recognized exception that would allow its consideration.
. Plaintiff signed the complaint on February 19, 2014.
. See the previous footnote.
. As stated earlier, the Rule 12(c) record does not include the fact that these medications are taken with "peginterferon alfa” and ribavirin. (Docket Entry # 94, App. 52, 54).
. Because the record is construed in plaintiff's favor, this court construes the complaint’s reference to "2013” (Docket Entry # 1, ¶ 20) as early 2013.
. At the time MPCH took over the contract, the medical records, i.e., those in the Rule 12(c) record, showed no treatment after the January 31, 2013 UMass Memorial visit. .
. In opposing the Rule 12(c) motion, plaintiff asserts that Nasuti, “unlike the other defendants, is not a sociopath. She actually attempted, to offer treatment to prisoners like Dana. She was routinely overruled by management” and "resigned from MPCH ....” (Docket Entry # 116).
. The MPCH defendants do not identify any other relevant fact except that Berg, Nasuti, Caratazzola and Davenport were employees of MPCH. (Docket Entry # 84, 112). The complaint, however, only states that Nasuti, Cara-tazzola and Davenport worked at OCCC “under the auspices of” MPCH and identifies Berg as an “LPN,” i.e., a licensed practical nurse. (Docket Entry #1, ¶¶ 2, 15). In the event of a conflict between the complaint and the answer, the facts in the complaint govern. The record does not further elucidate the relationship between MPCH and the DOC.
.The MPCH defendants do not argue that MPCH is an "independent body politic” and therefore waive the issue for purposes of the
. Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days of receipt of the Report and Recommendation to which objection is made and the basis for such objection. Any party may respond to another party’s objections within 14 days after service of the objections. Failure to file objections. within the specified time waives the right to appeal the order.