Opinion
20-P-307
07-02-2021
RANDALL TRAPP v. MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, LLC, & others. [1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 2 3.0
Randall Trapp, an inmate in the custody of the Massachusetts Department of Correction (DOC), brought this action pursuant to 42 U.S.C. § 1983 against various administrative entities and individuals involved in his health care, alleging that his medical care in prison violated the Eighth Amendment's prohibition against cruel and unusual punishment. The thrust of Trapp's allegations was that he was not timely afforded a newly available treatment for Hepatitis C, and that he suffered cirrhosis of the liver as a result. Trapp appeals from the dismissal of his "verified amended complaint" and from the order denying his motion to reconsider. We affirm.
Background.
Trapp has been incarcerated at all times relevant to this appeal. Trapp was diagnosed with Hepatitis C in 2010, and since that time Trapp has received care for this condition through the health care providers contracted by the DOC. Trapp's Hepatitis C was initially treated with "dual therapy" treatment in 2011 -- consisting of the administration of Pegylated Interferon and Ribavirin; however, this treatment did not abate his condition and caused Trapp uncomfortable side effects, and was discontinued after three months. Trapp alleges that he was advised at that time by an unnamed health care provider that "triple therapy" treatment, an experimental treatment that was at that time undergoing trials by the Food and Drug Administration (FDA), might yield better results, and that Trapp would be eligible to receive it once it had been approved by the FDA.
The extensive medical records submitted by Trapp indicate that Trapp was receiving regular medical care during this time for other medical issues as well.
"Triple therapy" was a combination of Pegylated Interferon, Ribavirin, and either of two third ingredients: Boceprevir or Telaprevir.
The thrust of Trapp's complaint is that he was not prescribed triple therapy treatment, although in 2015 he received a different, newly-developed treatment that did abate his condition. Trapp highlights a two and one-half year period from mid-2013 to late 2015 during which he was not given triple therapy treatment despite several requests. We briefly recount this timeline.
On July 1, 2013, defendant Massachusetts Partnership for Correctional Health (MPCH) became the DOC's medical services contractor. Trapp was seen by a nurse practitioner that month but was not prescribed triple therapy treatment; shortly thereafter, in August 2013, Trapp filed a grievance with MPCH contesting that decision. This request was denied in a letter from defendant Atkins:
Prior to July 1, 2013, the DOC had contracted with a different entity, UMass Correctional Health. UMass Correctional Health was named as a defendant in Trapp's complaint but was later dismissed.
Defendant Atkins served as MPCH's resident nurse and health service administrator at the relevant times, and defendant Groblewski was MPCH's regional medical director, a position with some managerial oversight of the administrators handling the grievance process. Neither Atkins nor Groblewski directly provided health care treatment to Trapp.
"After reviewing your medical record, it was found you were seen by the NP on 7/22/13, at which time it was reiterated with you again you do not qualify for the treatment based on the guidelines. This is not a choice, or something we can change."
Trapp appealed this decision to the MPCH grievance and appeal coordinator, who denied the appeal, stating:
"Based upon the guidelines for Hep-C treatment you are not a candidate at this time. ... I was informed that you are medically stable. The values of last labs drawn in
March 2013 improved. I was also informed that you have had no complaints of weakness or being tired."
Despite these denials, the medical providers continued to discuss triple therapy with Trapp, and to evaluate the proper course of treatment. Trapp had another consult regarding triple therapy treatment in September of 2013. Trapp's health care provider recommended further lab work and "if . . . available," triple therapy treatment. The ordered lab work indicated that Trapp's alpha-fetoprotein (AFP) level was elevated. Trapp also had an MRI of his liver that same month. In April of 2014, Trapp's providers recommended a "FibroSURE" liver panel test and ultrasounds of his liver. At his next visit in September of 2014, Trapp "inquired about his eligibility for antiviral therapy and [the doctor] indicated to him that the elevated alpha-fetoprotein level needs to be sorted out further[, ] . . . that he may require a liver biopsy to determine the severity of his hepatic fibrosis," and that another MRI of Trapp's liver should first be performed to determine if the biopsy was necessary. After the November 2014 MRI revealed no cirrhosis, Trapp's provider recommended that the biopsy be performed. Trapp received yet another MRI in March of 2015. Finally, in August of 2015, following another "FibroSURE" test, Trapp was diagnosed with cirrhosis of the liver.
In December of 2015, Trapp was prescribed a twelve week course of a newer treatment, Harvoni (Ledipasvir and Sofosbuvir). This treatment allegedly cured Trapp's Hepatitis C; however, Trapp's cirrhosis is allegedly incurable and will require regular monitoring indefinitely.
Trapp, in certain filings, appears to equate Harvoni with triple therapy treatment, but the two are distinct treatments. Though not present in the record before us, and ultimately not relevant to our conclusion, we note that FDA.gov indicates that Harvoni was not approved for use until October of 2014, https://www.accessdata.fda.gov/scripts/cder/daf/index.cfm?event= overview.process&ApplNo=205834, and that the manufacturer of triple therapy indicated its intent to discontinue production of the drug in January 2015. https://www.fda.gov/media/90357/download.
Trapp's complaint alleged that this course of treatment violated his Eighth and Fourteenth Amendment right to be free from cruel and unusual punishment. Trapp asserted -- "without corroborating documentation or evidence," as noted by the motion judge -- that MPCH's policy in 2013 was to refuse treatment to inmates who had received a disciplinary report in the prior twelve months, and that triple therapy treatment had been withheld from him because he had received a January 2013 disciplinary report. Trapp also alleged that MPCH had a policy of generally denying expensive treatments (and he indicates that a course of Harvoni cost approximately $90,000) to prisoners for cost-saving reasons. Trapp contends that lapses in his treatment for both of these reasons caused the development of his cirrhosis, and the attendant future health risks.
The defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), was granted. Trapp appeals, claiming various errors.
Discussion.
We review the grant of a motion to dismiss de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the nonmovant's favor. Baptiste v. Executive Office of Health & Human Servs., 97 Mass.App.Ct. 110, 114-115 (2020).
The Eighth Amendment to the United States Constitution prohibits the "inflict[ion]" of "cruel and unusual punishment." Construing this clause, the United States Supreme Court has established that the Amendment requires prison officials to provide "humane conditions of confinement," which includes not only "adequate food, clothing, [and] shelter," but also "[adequate] medical care." Farmer v. Brennan, 511 U.S. 825, 832 (1994). To sustain a claim under 42 U.S.C. § 1983 for cruel and unusual punishment by failing to provide adequate medical care, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976).
The Federal case law has further elaborated on the elements of such an Eighth Amendment claim. A prisoner must satisfy "both of two prongs: (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, 774 F.3d 63, 82 (1st Cir. 2014). The objective prong has been addressed as a question of law and requires two showings: (1) that the prisoner has a serious medical need, and (2) that the prisoner has received inadequate treatment to meet this need. See Id. at 82-83. See also Torres v. Commissioner of Correction, 427 Mass. 611, 614 (1998) ("whether prison conditions are sufficiently harmful to establish an Eighth Amendment violation, is a purely legal determination for the court to make").
While the decisions of lower Federal courts are not binding on us, we "give respectful consideration to such lower Federal court decisions as seem persuasive." Commonwealth v. Pon, 469 Mass. 296, 308 (2014), quoting Commonwealth v. Hill, 377 Mass. 59, 61 (1979) .
Here Trapp's allegations fail, as a matter of law, to meet the second element of the objective prong identified above --that he was provided medical care so inadequate that it violated the Eighth Amendment. It is not contested, of course, that Trapp suffers from Hepatitis C. However, Trapp must also plausibly allege that he has been deprived of constitutionally adequate care with respect to that condition, and where what is alleged is a disagreement in medical "method," he must plausibly allege that the provider's course of treatment resulted in an "'objectively intolerable' risk of harm." Nunes v. Department of Correction, 766 F.3d 136, 142 (1st Cir. 2014), quoting Lakin v. Barnhart, 758 F.3d 66, 71 (1st Cir. 2014) . See, e.g, Kosilek, 774 F.3d at 82 (objective prong "does not impose upon prison administrators a duty to provide care that is ideal, or of the prisoner's choosing"); Feeney v. Correctional Med. Servs., 464 F.3d 158, 162 (1st Cir. 2006) (long course of treatment, though not prisoner's requested treatment, fell short of establishing Eighth Amendment violation).
Here Trapp's complaint, and in particular his medical records (attached as exhibits to his complaint), fail to plausibly support the assertion that Trapp received medical care that fell below Eighth Amendment standards. Trapp asserts that triple therapy was withheld while his providers instead pursued other, more ineffective treatment options -- and that the defendant administrators allowed this due to a January 2013 disciplinary report, or to save money. However, Trapp's complaint and the exhibits thereto demonstrate that (1) he was provided a particular treatment (dual therapy) for his Hepatitis C in 2011, which did not work, (2) triple therapy did not even become available until late 2012, and it was essentially brand new, (3) he was not prescribed triple therapy from 2013 through 2015 for medical reasons, (4) instead he received regular and sophisticated health care treatment during that period, including multiple MRIs, biopsies, and other liver tests, related to evaluating the proper course of treatment, and (5) he received a different, nearly brand new treatment in 2015, Harvoni, that abated his Hepatitis C.
We note that even if Trapp could allege a viable Eighth Amendment claim, he would face a formidable hurdle in establishing liability as to the three named defendants. In general, supervisors are only liable for their own actions under § 1983; there is no respondeat superior liability. See Baptiste, 97 Mass.App.Ct. at 115. Deciding the case as we do, we need not reach the issue.
As a matter of law, the above record cannot equate to "cruel and unusual punishment"; it is not treatment resulting in or countenancing an "'objectively intolerable' risk of harm." Nunes, 766 F.3d at 142, quoting Lakin, 758 F.3d at 71. While the development of cirrhosis is surely unfortunate, what Trapp has alleged is not a failure to provide medical treatment but a failure to employ the proper treatment course quickly enough. This claim is particularly implausible where the treatments Trapp sought were essentially brand new, including the treatment (Harvoni) that was in fact administered and successful. At most, what Trapp has alleged on this record is negligence or medical malpractice, which is not sufficient to establish a violation of the Eighth Amendment. See, e.g., Estelle, 429 U.S. at 106 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment"); Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993) ("The courts have consistently refused to create constitutional claims out of disagreements between prisoners and doctors about the proper course of a prisoner's medical treatment"); 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") .
We need not address either issue here, though we note that "the subjective deliberate indifference inquiry may overlap with the objective serious medical need determination." Leavitt v. Correctional Med. Servs., Inc., 645 F.3d 484, 498 (1st Cir. 2011). Much of the discussion above regarding Trapp's treatment history would also be relevant to the question whether the defendants here acted with deliberate indifference. See Id. at 497. See Kosilek, 774 F.3d at 83, quoting Feeney, 464 F.3d at 162 ("[E]ven if the medical care is so inadequate as to satisfy the objective prong, . . . deliberate indifference "'defines a narrow band of conduct' and requires evidence that the failure in treatment was purposeful." The judge's decision stated two separate grounds for dismissal: (1) that Trapp had failed to sufficiently prove the subjective prong -- that he was caused harm by the "deliberate indifference" of any of the three named defendants -- and (2) that all three defendants are shielded from liability in any case by qualified immunity.
The judgment dismissing the "verified amended complaint" entered April 24, 2019, and the order denying the motion for reconsideration entered June 27, 2019, are affirmed.
So ordered.
The panelists are listed in order of seniority.