Opinion
Civil Action No. 05-1474.
April 26, 2006.
INTRODUCTION
This action, filed by a prisoner pro se, seeks injunctive relief and damages relating to the plaintiff's dental treatment while incarcerated. The named defendants are the contract vendor who provides medical services to inmates under contract with the Department of Correction and three of its personnel (collectively, "the private defendants"), and the Department of Correction and two of its personnel (collectively, "the state defendants"). Before the Court are motions to dismiss and/or for summary judgment filed by all defendants, as well as the plaintiff's motion for preliminary injunction. After review of all materials submitted, the Court finds, pursuant to Superior Court Rule 9A(2), that a hearing would not assist the Court in evaluating the motions, and accordingly the Court will decide the motions on the papers. For the reasons that will be explained, the defendants' motions will be allowed, and the plaintiff's motion for preliminary injunction will be denied.
The complaint alleges that Susan Martin is an employee of UMass Correctional Health. DOC counsel has appeared for her and identifies her as an employee of the Department of Correction.
BACKGROUND
The pro se complaint alleges as follows. On March 24, 2005, the plaintiff, while working in the laundry at Bay State Correctional Center, injured his teeth in an accident caused by conduct of the Department of Correction (DOC) in disabling a safety feature of a washing machine. He went to the UMass Correctional Health dental unit at the facility and saw Dr. Jun-Min Oh. Dr. Oh found damage to the plaintiff's right front tooth. He informed the plaintiff that the recommended treatment for such damage would be root canal and insertion of a post and crown, but that under the contract between DOC and UMass Correctional Health he could not provide that treatment. Dr. Oh prescribed penicillin and pain medication.
Over the next several months and continuing to the present, McLaughlin has experienced infection and "residual effects such as drifting, alteration of bite, pain from hot/cold foods, as well as the inability to properly chew." In a series of subsequent visits, Dr. Oh prescribed additional antibiotics and pain medication. On the last visit, Dr. Oh proposed to extract the tooth.
The defendant filed a grievance, which elicited a response from defendant Jurdak, identified in the complaint as "a Health Services Administrator," that "we do not do root canals or crowns," and that "the dentist explained that you need to have the post extracted if you are having pain or get an infection. Dentist's notes indicate that the patient did not want the dentist to extract the post." McLaughlin alleges that he has no post.
The complaint further alleges that Dr. Oh told the plaintiff that he should contact defendant Dr. Brewer, identified in the complaint as "the UMass Health Medical Director," and defendant Susan Martin, identified in the complaint as "the Director of Health Services," to get written consent by UMass Health to perform the root canal and insertion of a post and crown.
Based on these factual allegations, the complaint sets forth ten counts, each against "the defendants," without further specification. Counts I, II and III allege "deliberate indifference to plaintiff's serious medical needs" in violation of the Eighth and Fourteenth amendments to the United States Constitution and of Article XXVI of the Massachusetts Constitution and G.L. c. 127, § 32. Count II, as well as the introduction to the complaint, invoke 42 U.S.C. § 1983. Counts IV, V, VI, and VII allege, respectively, violation of due process under the state and federal constitutions and equal protection under the state and federal constitutions. Count VIII alleges violation of his "right to be held according to the regulations of the Department of Correction and Bay State Correctional Center — Norfolk, as guaranteed in G.L. c. 125, § 12. Count IX merely alleges that defendants' conduct violates his "civil rights pursuant to 42 U.S.C. § 1983." Finally, Count X alleges "medical negligence and/or medical malpractice." The prayers for relief seek declaratory and injunctive relief as well as "compensation and punitive damages." Together with his complaint, the plaintiff filed a "Motion for Preliminary and Permanent Injunction," with a supporting memorandum and exhibits. In response to the complaint, DOC and its employees filed a motion, dated December 5, 2005, "To Dismiss or in the Alternative for Summary Judgment." The plaintiff filed a memorandum in opposition to that motion, with exhibits attached. The private defendants filed answers and requests for a medical malpractice tribunal. The tribunal was held on December 21, 2005, and found for the defendants. The plaintiff did not post the bond required by G.L. c. 231, § 60B. On March 10, 2006, the private defendants filed a motion to dismiss and for entry of separate and final judgment on that ground. McLaughlin has not responded to that motion. On the same date, the private defendants filed a motion for summary judgment with respect to the civil rights claims. McLaughlin has filed a memorandum in opposition to that motion, with exhibits attached. The Court will address the pending motions in turn.
That statute provides that "The superintendents of the institutions under the supervision of the department of correction shall treat the prisoners with the kindness which their obedience, industry and good conduct merit." By its terms the statute imposes a duty only on the superintendent of a facility. That duty has been explained as the provision of "equal treatment, as far as may reasonably be, for prisoners who are not being disciplined." Blaney v. Commissioner of Correction, 374 Mass. 337, 341 (1978). The complaint does not allege that the defendant has been treated differently from any other prisoner.
Nothing in the complaint suggests any procedural deprivation, or any unequal treatment of the plaintiff as compared with anyone else.
That statute provides that "all persons sentenced to any of the correctional institutions of the commonwealth shall be held in accordance with the sentences or orders of the court and the rules and regulations of the commissioner." The complaint identifies no sentence, order, rule or regulation that plaintiff alleges has been violated.
DISCUSSION
1. The Private Defendants' Motion to Dismiss.
The Court record establishes beyond argument B and indeed the plaintiff has offered no argument B that the plaintiff has failed to post the bond required by G.L. c. 231, § 60B, after an unfavorable finding by a medical malpractice tribunal. Accordingly, the private defendants are entitled to dismissal of all claims that are subject to that statute. By its terms the statute covers "[e]very action for malpractice, error or mistake against a provider of health care." Count X clearly falls within that language. As noted supra, counts III through VIII fail to state a claim against any defendant. Counts I, II, and IX all appear intended to assert claims of deliberate indifference to the plaintiff's medical needs, in violation of 42 U.S.C. § 1983. Those claims fall outside the scope of G.L. c. 231, § 60B. See Harris v. Board of Trustees of State Colleges, 405 Mass. 515, 519 (1989) (federal law governs claims under § 1983). Accordingly, the private defendants' motion to dismiss will be allowed as to counts III through VIII and X. As to the other counts, the Court will turn to these defendants' motion for summary judgment.
2. The Private Defendants' Motion for Summary Judgment.
The standard for summary judgment is well known. The Court grants summary judgment where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Cassesso v. Comm'r of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine dispute of material fact on every relevant issue "even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass 14, 17 (1989).
On a motion for summary judgment, the moving party must demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and offer evidence of specific facts establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson v. Time, Inc., supra at 17.
Under Superior Court Rule 9A(b)(5), a party moving for summary judgment must file, in support of the motion, "a concise statement, in consecutive numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits." The party opposing the motion must submit a "response, using the same paragraph numbers, to the moving party's statement of facts as to which the moving party claims there is no genuine issue to be tried, [and] in consecutive numbered paragraphs, a concise statement of any additional material facts as to which the opposing party contends there is a genuine issue to be tried, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits." The rule establishes the consequences of any failure to comply: the moving party's failure to submit the statement as required "shall constitute grounds for denial of the motion." As to the opposing party, facts contained in the moving party's statement "shall be deemed to have been admitted unless controverted in the manner set forth." See Dziamba v. Warner Stackpole, 56 Mass. App. Ct. 397, 400-401 (2002).
Here, the moving defendants have submitted a statement of undisputed facts, in the manner required by the rule. The Court has reviewed the materials submitted in support, and determined that they provide adequate evidentiary support for the facts as stated. The plaintiff has not responded to the defendants' statement of facts in the manner provided by the rule, nor has he offered additional facts in the manner permitted by the rule. Accordingly, the facts set forth in the defendants' statement pursuant to Rule 9A(b)(5) are deemed admitted, and constitute all the facts properly before the Court on this motion.
Those facts, in substance, are as follows. McLaughlin broke his #8 tooth during an accident on March 24, 2005. Previously, McLaughlin had an old porcelain fused metal crown on that tooth, which had been placed there by a dentist outside the facility. Upon presentation to the dental unit at the facility, Dr. Oh noted that the tooth was totally broken, but found no swelling of the face or lingual gums, and found McLaughlin to be asymptomatic and negative for palpation to the face, lingual and occlusal areas. McLaughlin was positive to percussion, but clinically there was no pulp exposure. Dr. Oh informed Mclaughlin that he needed a root canal, post and crown, but that such treatment would not be provided pursuant to UMass Correctional Health protocol. He offered, instead, to extract the tooth if the pain worsened or the tooth became infected.
Defendants have provided a copy of an excerpt from the "UMass Correctional Health program/Massachusetts Department of Correction Dental Protocols," dated January 11, 2005. The document states: "No Root Canal Treatment in any Circumstance. Teeth which requiring (sic) apicoectomy are to be extracted."
McLaughlin next complained of pain over a month later, on May 10, 2005. In a visit to Dr. Oh on May 12, he requested an antibiotic and pain killer. Upon examination, Dr. Oh noted that McLaughlin was asymptomatic, had no swelling in his face or gum, and was negative to palpation. McLaughlin refused extraction, saying that the pain came and went, and that he preferred to ease the pain with antibiotics and painkillers. Dr. Oh prescribed penicillin and Tylenol. In a visit on May 26, 2005, Dr. Oh found the tooth to be positive for palpation and the gum slightly swollen. McLaughlin again refused extraction, and signed a refusal of treatment form confirming that choice. Dr. Oh prescribed Clindamycin and Tylenol. McLaughlin's next request for dental service was on August 29, 2005. Dr. Oh saw him on September 14, 1005. At that time McLaughlin refused to talk with Dr. Oh and said he only wanted Clindamycin and Tylenol. Dr. Oh prescribed those medications as requested.
Based on these facts, the defendants argue that the plaintiff cannot meet his burden of proof of violation of any constitutional rights. The Court agrees. To establish a civil rights violation based on deliberate indifference to a prisoner's medication needs, it is not enough to show that the prisoner was not provided optimum or even recommended treatment. Rather, the plaintiff must show "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 106 (1976). The conduct must amount to "an unnecessary and wanton infliction of pain" so as to be "repugnant to the conscience of mankind." Id. Treatment must be "so inadequate as to shock the conscience." Torraco v. Maloney, 923 F. 2d 231, 234 (1st Cir. 1991). Further, the plaintiff must show that the defendants "had a culpable state of mind and intended wantonly to inflict pain." Langton v. Commissioner of Correction, 34 Mass. App. Ct. 564, 573 (1993), quoting DesRosiers v. Moran, 949 F. 2d 15, 19 (1st Cir. 1991). The required state of mind is recklessness in the criminal law sense, "requiring actual knowledge of impending harm easily preventable." Langton, supra, at 573, quoting DesRosiers, supra, at 19.
The facts presented here fall well short of that standard. The plaintiff received dental attention every time he requested it. Dr. Oh evaluated his condition promptly after the accident, found no signs or symptoms beyond the broken tooth, and advised the plaintiff that, although root canal and a post and crown would be the recommended course of treatment, the applicable protocol would not permit such treatment. He offered the alternative of extraction if pain or infection developed. On the three subsequent occasions when the defendant complained of symptoms, Dr. Oh saw him with at least reasonable promptness, and provided antibiotics and painkillers as requested. He offered extraction as a means of remedying pain and preventing infection; the plaintiff declined. Nothing in the record before the Court establishes that extraction would not have sufficed to prevent or remedy any pain or infection resulting from the broken tooth, and to avoid any disability. Still less does anything in the evidence offered in any way indicate that either Dr. Oh or any other defendant had any "actual knowledge of impending harm easily preventable." The plaintiff's response to the defendants' motion argues, in substance, that he was entitled to treatment by means of root canal, post and crown because that was Dr. Oh's recommendation. His burden, however, is to show not merely that such treatment was appropriate, but that the denial of such treatment, in the context of his particular condition and of the offer of extraction instead, amounted to deliberate indifference. He offers nothing to meet that burden. He asserts that various consequences have resulted from the denial of the recommended treatment, including severe sensitivity to hot and cold liquids, alteration of his bite, drifting, loosening of other crowns, difficulty with chewing, and a lisp. He offers no competent evidence, however, that these effects, if they have occurred, were caused by the lack of the recommended treatment, and would not have occurred with that treatment. Nor does he offer anything to indicate what consequences would or would not have occurred if extraction had been performed. Still less does the plaintiff offer anything to indicate that any of the defendants had reason to believe that such effects would arise from implementation of a policy of refusing root canal, post and crown treatment. In the absence of such evidence, the moving defendants are entitled to judgment as a matter of law. 3. The State Defendants' Motion to Dismiss. A. The Department of Correction.
Nothing in the dental records provided documents these claimed occurrences, nor, with respect to drifting, alteration of bite, and loosening of other crowns, is it apparent how the plaintiff himself could determine whether such has occurred. The Court understands drifting to refer to movement of teeth within the mouth.
The plaintiff relies on a list of cases that do not assist his claim. In Chance v. Armstrong, 143 F. 3d 698, 701-703 (2nd Cir. 1998), the Appeals Court reversed the dismissal of a claim of deliberate indifference based on a dispute over appropriate dental treatment, holding that the stringent standard for dismissal under F.R. Civ. P. 12(b)(6), based solely on the allegations of the complaint, had not been met. Here, what is before the Court is a motion for summary judgment, not a motion to dismiss. Waldrop v. Evans, 871 F. 2d 1030, 1033-1035 (11th Cir. 1989), affirmed the denial of summary judgment based on qualified immunity where prison officials had denied medication to an inmate with bipolar disorder; the facts here bear no resemblance to that case. Jackson v. Sheriff, 642 F. Supp. 816, 824-825 (W.D. La. 1986), involved enforcement of a consent decree, which does not exist here. Even in that context, on evidence that the facility responded to all requests for dental treatment only by extraction, the Court found no violation because no evidence showed that extraction in any particular case was inappropriate. In Dean v. Coughlin, 623 F. Supp. 392, 395-397 (S.D.N.Y. 1985), the Court issued a preliminary injunction based on a showing that inmates were subjected to delays of months or years in receiving dental care, even after requests for emergency treatment. The record here reveals no such delay in response to the plaintiff's requests for dental care. In Heitman v. Gabriel, 524 F. Supp. 622, 627 (W.D. Mo. 1981), the Court found deliberate indifference based on the county's policy of refusing dental fillings, offering extraction as the only treatment for any dental condition. No evidence of any such extreme policy appears here.
The Department of Correction points out, correctly, that it is not a "person" for purposes of 42 U.S.C. § 1983, and therefore cannot be sued under that statute. See Will v. Michigan Department of State Police, 491 U.S. 58, 63 (1989). Accordingly, counts I through IX must be dismissed as against DOC. DOC, like other public employers, can be sued under the Massachusetts Tort Claims Act, G.L. c. 258, for damages resulting from negligence or other wrongful conduct of its employees, subject to specified procedural requirements and exceptions. Although the complaint does not explicitly invoke c. 258, the allegations of Count X appear to encompass such a claim.
As noted supra, counts III through VIII fail to state a claim against any defendant.
The Commonwealth argues, however, that the defendant has failed to meet the procedural prerequisite to such a claim under G.L. c. 258, § 4. That section provides:
A civil action shall not be instituted against a public employer on a claim for damages under this chapter unless the claimant shall have first presented his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose, and such claim shall have been finally denied by such executive officer in writing. . . . The failure of the executive officer to deny such claim in writing within six months after the date upon which it is presented . . . shall be deemed a final denial of such claim. [I]n the case of the Commonwealth or any department . . . thereof, presentment of a claim pursuant to this section shall be deemed sufficient if presented to the attorney general.
The import of this section is that a claimant must serve a letter of presentment, and then, absent a written denial, must wait six months before bringing suit. Presentment need not be pled specifically; it is enough to allege that all statutory conditions have been met. See Vasys v. Metropolitan District Commission, 387 Mass. 51, 52 (1982). In the face of such an allegation, a defendant may challenge the adequacy of presentment by means of a motion to dismiss under Mass. R. Civ. P. 12(b)(6). Id. On such a challenge, the Court may properly consider materials outside the pleadings on the limited issue of presentment. See Vasys, supra, at 52.
The complaint in this case says nothing whatever about presentment or about compliance with statutory prerequisites or conditions. The complaint is dated July 28, 2005, and was entered in this court on August 25, 2005. The initial injury, as alleged in the complaint, occurred on March 24, 2005, four months before the date of the complaint, and five months before its entry. It is thus apparent that the plaintiff cannot have complied with the six month requirement of c. 258, § 4. In response to the DOC's motion, the plaintiff provides a copy of a presentment letter, dated September 1, 2005, addressed to the Attorney General, claiming "gross negligence" and "deliberate indifference to my serious medical needs" in violation of constitutional provisions and 42 U.S.C. § 1983. The letter appears, at least on its face, sufficient to meet the presentment requirement. Its date, however, establishes that the plaintiff sent the presentment letter after he filed suit. That does not meet the statutory requirement. The complaint therefore fails to state a claim under c. 258. Since the statutory time limit for presentment has not yet run, dismissal of this claim as against DOC will be without prejudice.
The Court infers that the delay arose at least in part from processing of an application for fee waiver, and evaluation of materials in support of such application.
B. Martin and Corsini.
Defendants Susan Martin and Michael Corsini argue that the complaint fails to state a claim against them because it contains no allegations regarding any conduct or actions by them. As to Martin, the complaint alleges only that she is "the Director of Health Services," and that Dr. Oh told the plaintiff to contact her for "written consent" to perform the recommended treatment. As to Corsini, the complaint alleges only that he is the superintendent of Bay State Correctional Center and is employed by the Department of Correction; it contains no other allegation about him or about any conduct on his part. Read broadly, however, in the manner required on a motion to dismiss, see Morrison v. Mass. Maritime Academy, 409 Mass. 179, 190 (1991), the allegations of the complaint taken as a whole can be understood to assert that these defendants have exercised the powers of their official roles in such a manner as to preclude Dr. Oh from delivering to the plaintiff the dental treatment that Dr. Oh recommended for him, by applying a policy that DOC's vendor of dental services cannot provide root canal, post and crown treatment, even when clinically indicated. Further, the complaint can be read, again under the indulgent standard applicable to a motion to dismiss, to allege that that conduct had the effect of inflicting on the plaintiff unnecessary pain and suffering and disability, thereby amounting to deliberate indifference to the plaintiff's medical needs. Such allegations are sufficient to state a claim under 42 U.S.C. § 1983 of violation of rights protected by the eighth amendment to the United State Constitution and Article 26 of the Massachusetts Declaration of Rights, as claimed in counts I, II, and IX of the complaint.
The complaint also alleges that she is employed by UMass Correctional Health. As noted supra, on this point the plaintiff is apparently mistaken; she is employed by the Department of Correction.
As noted supra, that claim appears in Counts I and II of the complaint, with Count IX essentially repeating the same claim. Counts III through VIII fail to state a claim against any defendant. As to Count X with respect to these defendants, G.L. c. 258, § 2 immunizes them from that claim.
These defendants assert other defenses to these claims: their conduct did not amount to deliberate indifference; and if it did, they are entitled to qualified immunity from any personal liability for damages because the requirement to provide the treatment in issue is not so clearly established that their conduct, if any, in preventing such treatment would amount to violation of a clearly established right. These arguments cannot be addressed based solely on the allegations of the complaint.
The state defendants' motion requests summary judgment "in the alternative," but does not follow the procedures required for a motion for summary judgment under Superior Court Rule 9A(b)(5). The Court declines to waive that requirement. Since, however, the Court has addressed the same substantive issue raised by the first of these arguments in connection with the private defendants' motion for summary judgment, the Court will consider that issue as to these defendants based on the factual record presented in connection with that motion. See Langton v. Commissioner of Correction, 34 Mass. App. Ct. at 575-576 (Court properly entered summary judgment for all defendants based on motion of some defendants, where plaintiff had sufficient notice and opportunity to make required showing, and record established that all defendants were entitled to judgment as a matter of law). The issue presented as to defendants Martin and Corsini is the same as that with respect to the private defendants. The plaintiff has had full opportunity to address the issue. The record before the Court establishes that the plaintiff cannot meet his burden of proving deliberate indifference. Accordingly, these defendants are entitled to judgment as a matter of law on counts I, II, and IX.
In this instance the state defendants are receiving the benefit of work done by counsel for the private defendants. DOC defendants cannot expect such fortuity in other cases. Their counsel would do well to heed the requirements of Superior Court Rule 9A(b)(5).
4. Plaintiff's Motion for A Preliminary and Permanent Injunction.
As the Court has concluded that all counts of the complaint must be dismissed, no basis exists for entry of injunctive relief. Accordingly, this motion must be denied.
CONCLUSION AND ORDER
For the reasons stated, the Motion of the Defendants, UMass Correctional Health, Arthur Brewer, M.D., Jung-Min Oh, D.M.D., and Donna Jurdak, to Dismiss and for Entry of Seaprate and Final Judgment for Plaintiff's Failure to Post Bond Pursuant to G.L.C. 231, § 60B, is ALLOWED insofar as it seeks dismissal. No action is required insofar as that motion seeks separate and final judgment, as this memorandum resolves all other claims in the complaint as against all defendants. The Defendants, UMass Correctional Health, Arthur Brewer, M.D., Jung-Min Oh, D.M.D., and Donna Jurdak' Motion for Summary Judgment is ALLOWED. The Defendants, Department of Correction, Susan Martin, and Michael Corsini's Motion to Dismiss or in the Alternative, for Summary Judgment, is ALLOWED. Judgment shall enter dismissing all counts of the complaint as against all defendants. Dismissal shall be without prejudice as to Count X as against the Department of Correction, and with prejudice as to that count against all other defendants, and as to all other counts.