Opinion
No. 16–P–156.
11-10-2016
Joseph DELONG v. Robert DIENER& others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Souza–Baranowski Correctional Center (SBCC) inmate Joseph DeLong, acting pro se, appeals from the entry of summary judgment in favor of the defendants on his complaint for declaratory and injunctive relief. We affirm.
Background. DeLong is diagnosed with attention deficit hyperactivity disorder (ADHD) and posttraumatic stress disorder. In 2004, DeLong was prescribed Ritalin at a dosage of 120 mg. per day. In 2009, the dosage was decreased to 100 mg. per day. On or about December 16, 2010, defendant Dr. Johanna Shaw discontinued DeLong's Ritalin because “it is a stimulant and other medications could treat [his] ADHD in this institutional setting.”
In April, 2011, DeLong was prescribed Wellbutrin and Straterra. DeLong filed several grievances seeking reinstatement of Ritalin ; all of the grievances were denied. In August, 2012, DeLong filed a verified complaint for declaratory and injunctive relief pursuant to G.L. c. 231A, et seq., and 42 U.S.C. § 1983 (2006), alleging that the defendants' failure to provide him with Ritalin violated his rights under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. On January 29, 2013, a Superior Court judge allowed the defendants' motion to dismiss with respect to one defendant who is not a party to this appeal. In February, 2013, Ritalin treatment for DeLong's ADHD was reinstated. Thereafter, the remaining defendants moved for summary judgment and their motion was allowed by the judge, because “[t]here are no disputed facts in the record that point to indifference by the defendants.” DeLong appeals.
Discussion. Summary judgment is appropriate where “all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In conducting a de novo review of the grant of summary judgment, we examine the entire record “in the light most favorable to the nonmoving party.” Winbrook Communication Servs., Inc. v. United States Liab. Ins. Co., 89 Mass.App.Ct. 550, 553 (2016). In this case, “[w]e have reviewed all of the evidentiary materials submitted in conjunction with [the motion for summary judgment] and agree with the carefully reached conclusion of the judge that there is no genuine issue as to any material fact.” Haverty v. Commissioner of Correction, 437 Mass. 737, 753 (2002). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
With respect to Delong's alleged violations of his rights under the Eighth Amendment and art. 26, nothing in the summary judgment record supports the necessary inference that the defendants acted with “deliberate indifference” to a “substantial risk that [DeLong] will suffer serious harm as a result of the conditions of his confinement.” Jackson v. Commissioner of Correction, 39 Mass.App.Ct. 566, 568–569 (1995) (citations omitted). The record shows that DeLong consistently has been treated for ADHD, and that, since February, 2013, he has received his preferred treatment. Any termination of Ritalin from 2010 through 2013 is not actionable where the record establishes that DeLong continued to be treated for ADHD. See Sires v. Berman, 834 F.2d 9, 13 (1st Cir.1987) (“Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors”).
Violation of a constitutional right is a predicate for liability under 42 U.S.C. § 1983, see Clancy v. McCabe, 441 Mass. 311, 317 (2004), and, “[i]n our view, as a matter of law, [the defendants] ‘simply did not exhibit the ... deliberate indifference to constitutional injuries' required to impose liability under § 1983.” Id. at 320, quoting from Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir.), cert. denied, 513 U.S. 813 and 513 U.S. 814 (1994).
Judgment affirmed.
Individually and as chief of psychiatry for Massachusetts Partnership for Correctional Healthcare.