Lazarre v. Turco

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

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EPIPHANY LAZARUS KING LAZARRE, )

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Plaintiff, )

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v. )

) Case No. 18-cv-12260-DJC

)

THOMAS A. TURCO, III, et al., )

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Defendants. )

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. December 17, 2020

I. Introduction

Plaintiff Epiphany Lazarus King Lazarre (“Lazarre”) brings this suit against the

Massachusetts Department of Corrections (“DOC”), the Commissioner of the DOC, Carol A. Mici

(“Mici”) in her official capacity, the Superintendent of Old Colony Correctional Center (“OCCC”)

Stephen Kennedy in his official capacity, former Superintendent Suzanne Thibault (“Thibault”),

correctional officer Aaron Beausoleil (“Beausoleil”), Sergeant Michael Amaral (“Amaral”),

correctional officer Michael Carton (“Carton”),1 correctional officer Michael Cunha (“Cunha”),

Captain Peter L. Pascucci (“Pascucci”) (collectively, the “DOC Defendants”), medical director

Emily Holmes (“Holmes”), Dr. Susan Milliken (“Dr. Milliken”),2 Dr. John Straus (“Dr. Straus”)

1 The DOC Defendants have filed a notice of suggestion of death pursuant to Fed. R. Civ. P.

25(a)(1) that Carton died on January 9, 2020. D. 73.

2 Lazarre voluntarily dismissed his claim against Dr. Milliken. D. 77.

and Dr. Adriana Carrillo (“Dr. Carrillo”) alleging discrimination, intimidation and retaliation

claims in violation of the Americans with Disabilities Act (“ADA”) and deliberate indifference to

his serious medical needs and safety in violation of the Eighth Amendment. D. 67. The DOC

Defendants move to dismiss the counts against them under Fed. R. Civ. P. 12(b)(6). D. 71. Dr.

Carrillo separately moves to dismiss the claims against her. D. 78. For the reasons stated below,

the Court ALLOWS in part and DENIES in part the DOC Defendants’ motion to dismiss and

DENIES Dr. Carrillo’s motion to dismiss.

II. Standard of Review

On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must

determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State

Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Reading the complaint “as a whole,” the

Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734

F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to

distinguish the factual allegations from the conclusory legal allegations contained therein. Id. The

Court must accept the factual allegations as true and may disregard conclusory legal assertions.

Id. (citing Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). Second, the Court

must determine whether the factual allegations present a “reasonable inference that the defendant

is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (internal

citation omitted).

III. Procedural History

Lazarre filed his initial pro se complaint on October 25, 2018 and later amended his

complaint on April 26, 2019. D. 1; D. 14. On May 14, 2019, this Court dismissed forty-seven of

the defendants, including defendant Pascucci for failure to state a claim on which relief can be

granted pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b). D. 15. Some of the

remaining defendants filed various motions to dismiss the pro se first amended complaint. D. 31;

D. 41; D. 52. On July 11, 2019, Lazarre filed a motion to appoint counsel, D. 37, which this Court

granted. D. 46. On March 13, 2020, this Court dismissed the pending motions to dismiss without

prejudice to renew once it appointed counsel to Lazarre. D. 57.

On March 27, 2020, the Court appointed Lazarre pro bono counsel for the limited purpose

of filing an opposition to the pending motions to dismiss and/or filing an amended complaint.

D. 61. On June 15, 2020, Lazarre’s counsel filed the second amended complaint, dropping several

defendants, adding new defendants, including former defendant Pascucci and bringing forth new

claims for relief. D. 67. The DOC Defendants and Dr. Carrillo have now moved to dismiss the

second amended complaint for failure to state a claim. D. 71; D. 78. On October 15, 2020, the

Court heard the parties on the pending motions to dismiss and took the matters under advisement.

D. 88.

IV. Factual Background

The Court accepts the following non-conclusory factual allegations drawn from Lazarre’s

second amended complaint, D. 67, as true for the purposes of resolving the pending motions to

dismiss. Lazarre is currently an inmate at OCCC in Bridgewater, Massachusetts, where he has

been held since 2014. D. 67 ¶ 1.

A. Lazarre’s Medical Problems

Prior to his incarceration, Lazarre suffered spinal injuries in an automobile accident,

causing long-term, debilitating back pain and mobility impairments. Id. ¶ 19. Lazarre’s condition

has worsened substantially during his incarceration. Id. ¶ 20.

While previously detained at Nashua Street Jail in 2014, Lazarre received a series of three

lumbar epidural steroid injections in his back at Boston Medical Center and staff prescribed him

Vicodin. Id. ¶ 34. When Lazarre arrived at OCCC later in 2014, the staff replaced his pain

medication with Motrin and Tylenol. Id. ¶ 35. Around September 2017, Dr. Milliken, an OCCC

medical doctor examined Lazarre after he made a sick call about his back pain. Id. ¶ 37. Dr.

Milliken and Emily Holmes, OCCC’s medical director, made an appointment for Lazarre to

receive steroid injections at Lemuel Shattuck Hospital (“Lemuel Shattuck”) and Dr. Milliken

prescribed prednisone. Id. Lazarre protested going to Lemuel Shattuck because “he had heard

about other inmates receiving poor treatment” there. Id.

Lazarre met with defendant Dr. Carrillo at Lemuel Shattuck on September 21, 2017. Id.

¶ 38. She administered two injections into his lower back. Id. “Immediately after receiving the

injections,” Lazarre’s body went numb, he was unable to walk and he returned to OCCC in a

wheelchair. Id. ¶ 39. Lazarre additionally experienced swelling, burning and cramps. Id. ¶ 40.

Lazarre experienced constant pain that was more severe than what he experienced prior to getting

the injections, he lost his ability to use the toilet and control bowel movements, and was unable to

walk long distances to participate in English classes, mental health group meetings or any other of

his usual activities. Id. Lazarre also experienced loss of his eyesight. Id. ¶ 43.

Lemuel Shattuck had instructed the OCCC staff to contact the hospital if Lazarre

experienced new symptoms but the OCCC staff did not do so, nor did they return him for additional

examination. Id. ¶ 47. Dr. Milliken and Holmes also did not send Lazarre back to Lemuel Shattuck

for a planned third injection after observing the effects of the first two injections. Id. ¶ 46. Dr.

Carrillo did not conduct a follow-up examination of Lazarre and never explained why the

injections she administered severely impaired his mobility and worsened his pain. Id. ¶ 47. One

week after the injections, Lazarre was given a walker to assist him. Id. ¶ 42.

A month later, in October 2017, OCCC medical staff sent Lazarre to Souza-Baranowski

Correctional Center (“SBCC”) for physical therapy for one month. Id. ¶ 44. Lazarre returned to

OCCC in November 2017 in a wheelchair. Id. When he arrived back at OCCC, his body was

numb, and he was kept in OCCC’s medical ward. Id. ¶ 45. As alleged, the medical staff refused

to treat Lazarre for his pain, took away his wheelchair and issued him a walker. Id. Lazarre alleges

that the use of the walker has caused him additional pain in his shoulders, arms and hands, chronic

pain and buckling of his legs, numbness, dizziness, and shortness of breath. Id. ¶ 83.

On several occasions, Lazarre requested accommodations for his medical needs but to no

avail. Id. ¶ 23. Lazarre filed several grievances at OCCC and made requests related to his mobility

impairments but OCCC medical staff refused to address his needs and downplayed his

impairments and pain. Id. ¶ 50. Dr. Straus and Holmes insisted that Lazarre could engage in

activities without the accommodations he requested. Id. In January 2018, Lazarre filed a grievance

requesting an early pass for movement and a handicapped cell but OCCC staff denied these

requests. Id. ¶ 51. In February 2018, Lazarre made a sick call request regarding the adverse effects

from his injections and OCCC medical staff referred him to an in-house physician. Id. ¶ 52.

Lazarre alleges that this physician could not address the effects of the injections. Id. Lazarre

acknowledged that prior to the September 2017 injections, Holmes was receptive to his concerns

but that after September 2017, he alleges that she told him she could not assist him because the

injections did not help. Id. ¶ 53.

In May 2018, Lazarre met with then-Superintendent Thibault and Holmes to discuss his

medical treatment and his requests for a wheelchair and handicap shower chair. Id. ¶ 55. As

Lazarre alleges, Holmes spat in Lazarre’s face and told him that he filed too many grievances and

that “for as long as she worked at OCCC, he would not receive a wheelchair” because there was a

possibility that Lazarre would sue OCCC and the staff regarding his injections. Id. Lazarre alleges

that Holmes and Thibault threatened him with “adverse consequences.” Id. ¶ 99.

In August 2018, Dr. Straus examined Lazarre and ordered a wheelchair based on his

observations that Lazarre struggled with his walker, experienced shortness of breath, chest pain

and pain in his lower back and legs. Id. ¶ 57. Dr. Straus, however, subsequently cancelled the

wheelchair because, as Lazarre alleges, Beausoleil, Amaral, Carton, Pascucci and Holmes

pressured him to do so and claimed that they had seen Lazarre walking unassisted. Id. ¶ 58.

Lazarre, however, filed a grievance against Dr. Straus for refusing to provide him treatment

and he requested to see a different doctor. Id. ¶ 59. Holmes denied these requests. Id. Lazarre

alleges that Dr. Straus and Holmes have continued to obstruct his efforts to receive a wheelchair

and medical treatment for his chronic pain and impaired mobility. Id ¶¶ 59-63.

In addition to back pain, Lazarre alleges that he cannot perform basic daily tasks such as

walking, lifting objects, showering, or using the toilet without severe pain and risk of injuring

himself. Id. ¶ 21. Lazarre also has been diagnosed with a degenerative narrowing “of the c2 and

c3 vertebrae and schizophrenia spectrum disorder” and “suffers from undiagnosed symptoms of

vision loss, loss of his ability to speak, and chronic headaches.” Id. ¶ 22.

B. Alleged Abuse by OCCC Correctional Staff

According to Lazarre, OCCC correctional staff reacted poorly to Lazarre’s grievances

related to his medical condition. On several occasions in 2017 and 2018, Cunha, Carton and

Amaral harassed, assaulted, and called him derogatory and racist names. Id. ¶¶ 66-68. In May

2018 and on other occasions, Beausoleil came to Lazarre’s cell, destroyed his possessions, verbally

abused him, beat, and kicked him inside his cell and threatened to kill him if he reported the abuse.

Id. ¶ 70. On May 25, 2018, Carton interviewed Lazarre regarding his interactions with Amaral

and Beausoleil. Id. ¶ 71. Carton tried to force Lazarre to sign a waiver to protect Amaral and

Beausoleil. Id. When Lazarre refused to sign the waiver, Carton threatened to place Lazarre in

solitary confinement, handcuffed Lazarre, placed him on the floor and beat him with his boot. Id.

Lazarre complained to Thibault about the abuse he suffered but Thibault dismissed his complaints

and called Lazarre derogatory names. Id. ¶ 72.

While at OCCC, Lazarre alleges that Amaral, Beausoleil and Carton told him that they

would pay other inmates to beat him up. Id. In December 2017, “Inmate A” at OCCC physically

assaulted Lazarre and as a result Lazarre suffered a concussion and was sent to OCCC’s medical

ward. Id ¶¶ 76-77. In October 2018, “Inmate B” sexually assaulted Lazarre. Id. ¶¶ 78-79. Lastly,

in December 2018, “Inmate C,” who was Lazarre’s helper, assaulted Lazarre with a walker. Id.

¶¶ 80-81. Lazarre suffered another concussion and his walker broke from the assault. Id. ¶ 80.

Lazarre alleges that the correctional officers encouraged all three inmates to assault him and chose

not to intervene to defend him. Id. ¶¶ 77, 79, 81.

V. DOC Defendants’ Motion to Dismiss

A. Lazarre’s Claims Are Properly Joined

DOC Defendants assert that this Court should dismiss Lazarre’s second amended

complaint based on improper joinder of claims. D. 72 at 5. There are two requirements under the

Federal Rules of Civil Procedure 20 for permissive joinder. First, the right to relief asserted

against the defendants must arise out of the same transaction, occurrence, or series of transactions

or occurrences. Fed. R. Civ. P. 20(a)(2). Second, there must be questions of law or fact common

to the defendants. Id. The present case meets both requirements.

As to the first requirement, Lazarre has alleged that all Defendants took actions that

displayed a deliberate indifference to his medical needs and that Defendants did not accommodate

same. Specifically, Lazarre has brought claims against DOC, Commissioner Mici and

Superintendent Kennedy in their official capacities for violations of the ADA and the Eighth

Amendment arising out of OCCC’s refusal to provide reasonable accommodation for his mobility

impairments. D. 67 (Count I and Count IV). Lazarre also asserts that Holmes, Thibault, Dr.

Straus, and officers Beusoleil, Amaral, Carton, Cunha and Pasucci retaliated against him and

intimidated him in violation of the ADA and the Eighth Amendment because he requested

accommodations. Id. (Count II, Count III, Count V and Count VI). Lazarre’s allegations against

Dr. Milliken, Dr. Carrillo, and Dr. Straus, similarly allege that they were deliberately indifferent

to his medical needs in violation of the Eighth Amendment. Id. (Count VII). These allegations,

which assert that Defendants’ actions caused Lazarre’s medical condition to worsen, are sufficient

to satisfy the “same transaction or occurrence” requirement of permissive joinder. See Eastern

Fireproofing Co. v. United States Gypsum Co., 160 F. Supp. 580, 581 (D. Mass. 1958) (holding

that joinder is permissive where defendants engaged in conduct that had a singular “ultimate

impact” on plaintiff).

As to the second requirement, common questions of law exist against the Defendants.

Here, Lazarre has brought allegations that all defendants violated the Eighth Amendment by

showing a deliberate indifference to his serious medical needs. As to the DOC Defendants

moreover, Lazarre has alleged that they all violated the ADA by failing to provide him with

medical accommodations. See Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.

Supp. 2d 444, 451-52 (D. Mass. 2011) (holding that there are common questions of law where

plaintiff brings identical claims against several defendants).

Given that Lazarre satisfies both requirements, the Court concludes that Lazarre’s claims

are properly joined.

B. Lazarre Satisfies the Pleading Requirements of Fed. R. Civ. P. 8(A)(2)

DOC Defendants argue that Lazarre’s second amended complaint is vague, ambiguous and

fails to give them adequate notice. D. 72 at 7. The Federal Rules of Civil Procedure require that

the complaint contain “a short and plain statement of the grounds for the court’s jurisdiction . . . a

short and plain statement of the claim showing that the pleader is entitled to relief; and ... a demand

for the relief sought.” Fed. R. Civ. P. 8(a)(1)-(3). This statement must “‘give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S.

41, 47 (1957)). It must afford the defendants a “‘meaningful opportunity to mount a defense.’”

Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir. 2004) (quoting Rodríguez v. Doral

Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir. 1995)).

Lazarre’s claims meet the “minimal pleading requirements of Rule 8.” Silva v. E.U.A.

Nova, No. C.A. 97-117ML, 1998 WL 226292, at *1 (D. R.I. Apr. 1, 1998). Lazarre’s second

amended complaint brings claims against the DOC as an entity, Mici and Kennedy in their official

capacity and Thibault and the correctional officers as individual employees at OCCC. The second

amended complaint alleges that DOC Defendants failed to accommodate Lazarre’s alleged

mobility impairments and were deliberately indifferent to his medical condition and safety. D. 67

at 17-24. Lazarre’s claims are thus more than adequate to meet the pleading requirements because

the complaint makes the DOC Defendants aware of the claims they must defend against

(specifically violations of the ADA and the Eighth Amendment arising from their denial of his

wheelchair request and other accommodations and the actions they took in retaliation for his

requests of same).3

DOC Defendants next argue that Lazarre’s complaint must be dismissed because “for

several of Plaintiff’s claims, no specific date is provided of when the alleged incidents occurred,

instead only stating a month and year, only a year, or in one case writing ‘on this and other

occasions’ which were not even identified by a year.” D. 72 at 7. DOC Defendants have not cited

to any legal authority for the proposition that a complaint must include a specific date to state a

claim. Here, Lazarre has provided a timeframe—whether by noting a specific month and year or

just a year for his claims. See e.g., D. 67 ¶¶ 37, 43, 54. Even on the two occasions where Lazarre

alleges that an event occurred “on this and other occasions,” he gives a timeframe for when the

event first occurred. For example, in or around August 2018, and “on this and other occasions,”

Defendant Straus ridiculed and dismissed Lazarre in response to his request for accommodations,

Id. ¶ 101, and on or around May 25, 2018 . . . “on this and other occasions” Officer Beausoleil

verbally abused him, called him derogatory names, beat and kicked him inside his cell and

threatened to kill him. Id. ¶ 70. Thus, even when Lazarre does not provide a specific date for

every occurrence of an action taken by the DOC Defendants, he alleges sufficient facts about the

events that occurred to give the DOC Defendants fair notice of the claims against them.

Accordingly, the Court will not dismiss Lazarre’s claims for failing to provide a more specific

date. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010) (holding that inclusion “of

3While Lazarre’s complaint does include superfluous allegations, namely his medical treatment

and alleged assault at Nashua Street Jail, D. 67 ¶¶ 23-25, 28-33 & 66, these alleged facts “do not

predominate over the facts that are relevant and properly pled.” Marrero-Rolón v. Autoridad de

Energía Eléctrica de P.R., No. 15-1167-JAG/SCC, 2015 WL 5719801, at *4 (D. P.R. Sept. 29,

2015).

a specific date may not be necessary to state a claim if the complaint alleges sufficient detail about

an event to identify it”).

Lastly, as to DOC Defendants assertion that Lazarre’s allegations are insufficient because

some of his allegations are made “upon information and belief,” D. 72 at 8, the Federal Rules

“permit pleading on this basis” at least for Rule 8 purposes. Counter v. Healy, No. 09-12144-

RGS, 2010 WL 2802179, at *6 n. 5 (D. Mass Jun. 28, 2010) (citation omitted). Accordingly, the

Court finds that Lazarre satisfies the Rule 8 requirements.

C. Eighth Amendment Violations

1. Lazarre’s Eighth Amendment Claim Against Mici and Kennedy for

Monetary Damages Is Dismissed (Count IV)

Lazarre brings forth a claim against Mici and Kennedy in their official capacities for

violations of the Eighth Amendment pursuant to Section 1983. D. 67 at 20 (Count IV). Lazarre

alleges that he made several grievances and in person requests for medical assistance and other

relief in relation to his mobility impairment to Kennedy and Thibault. D. 67 ¶ 112. Despite these

complaints, Thibault and other OCCC staff failed to meet his serious medical needs and denied

him relief. Id. ¶¶ 113-114. Lazarre alleges that “DOC and OCCC, through Commissioner Mici,

Superintendent Kennedy, and OCCC personnel have shown deliberate indifference to [his] serious

medical needs, resulting in injury to [him.]” Id. ¶ 115.

The Eleventh Amendment of the United States Constitution, however, generally bars suits

in federal courts against a State, and its agents and officials for monetary damages, unless the State

has consented to suit, or Congress has provided for an abrogation of the State’s immunity. Regents

of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Shocrylas v. Worcester State Coll., No. 06-

40278-FDS, 2007 WL 3332818, at *2 (D. Mass. Oct. 29, 2007). The DOC is an agency of the

Commonwealth, and thus it and its agents are shielded from suits under the Eleventh Amendment.

Sepulveda v. UMass Correctional Health Care, 160 F. Supp. 3d 371, 396 (D. Mass. 2016).

The Eleventh Amendment does not, however, prevent Lazarre from pursuing equitable

damages under Section 1983. See Stone v. Caswell, 963 F. Supp. 2d 32, 37 (D. Mass. 2013) (citing

Missouri v. Jenkins by Agyei, 491 U.S. 274, 284 (1989)); Seaver v. Manduco, 178 F. Supp. 2d 30,

36 (D. Mass. 2002) (citing Hawkins v. Rhode Island Lottery Commission, 238 F.3d 112, 116 (1st

Cir. 2001)). Lazarre’s complaint seeks both monetary damages and equitable relief. D. 67 at 26-

27. Thus, to the extent Lazarre seeks equitable relief against Mici and Kennedy in their official

capacities, he may maintain his claims. Therefore, the Court DISMISSES Lazarre’s Eighth

Amendment claim (Count IV) against Mici and Kennedy in their official capacities, insofar as he

seeks monetary damages.

2. Lazarre Has Alleged Sufficient Facts to Support His Eighth Amendment

Claims Against the DOC Defendants

The Eighth Amendment prohibition against cruel and unusual punishment prevents

prisoners from medical mistreatment or neglect that is “so inadequate as to shock the conscience.”

Perry v. Roy, 782 F.3d 73, 78 (1st Cir. 2015) (quoting Torraco v. Maloney, 923 F.2d 231, 235 (1st

Cir. 1991)) (internal quotation marks omitted); see Feeney v. Corr. Med. Servs., Inc., 464 F.3d

158, 161 (1st Cir. 2006). “The failure of correctional officers to provide inmates with adequate

medical care may offend the Eighth Amendment if their ‘acts or omissions are sufficiently harmful

to evidence deliberate indifference to serious medical needs.’” Leavitt v. Correctional Medical

Services, 645 F.3d 484, 497 (1st Cir. 2011) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

A claim of deliberate indifference based on inadequate or delayed medical care requires a plaintiff

to satisfy both an objective and subjective inquiry. See e.g., Perry, 782 F.3d at 78; Leavitt, 645

F.3d at 497.

To fulfill the objective test, a plaintiff must establish that his medical need was “sufficiently

serious.” Burrell v. Hampshire Cty., 307 F.3d 1, 8 (1st Cir. 2002). DOC Defendants argue that

Lazarre has not alleged a sufficiently serious medical need. The DOC Defendants contend that

Lazarre’s “undated diagnosis” and personal opinions that he is essentially paralyzed do not meet

the pleading requirements. D. 72 at 12. They also contend that while Lazarre alleges he is blind;

he wrote multiple pro se complaints and motions by hand. Id. A “serious medical need” is “one

that has been diagnosed by a physician mandating treatment, or one that is so obvious that even a

lay person would easily recognize the necessity for a doctor’s attention.” Kosilek v. Spencer, 774

F.3d 63, 82 (1st Cir. 2014) (citing Estelle, 429 U.S. at 106). As alleged, Lazarre has been

diagnosed with degenerative narrowing of his vertebrae, and thus has a serious medical need. D.

67 ¶ 22. He also alleges that he suffers from mobility impairments and debilitating pain due to a

spinal injury, he cannot walk, lift objects, or use the toilet without severe pain or risk of injury, he

has suffered loss of his eyesight, and these conditions have worsened while at OCCC. Id. ¶¶ 21-

22. These allegations, which must be taken as true for the purpose of a motion to dismiss, are

sufficiently “obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Kosilek, 774 F. 3d at 82; see Abernathy v. Dewey, 277 F. Supp. 3d 129, 140 (D. Mass.

2017) (finding that plaintiff’s allegations that he suffered from visible cuts, bleeding, bruising and

swelling were sufficient to meet the serious medical need standard despite lack of medical

diagnosis).

To satisfy the subjective showing, a plaintiff must show they acted with intent or wanton

disregard when providing inadequate care. See Perry, 782 F.3d at 79. To satisfy this, Lazarre

must show that the DOC Defendants knew of a substantial risk of serious harm and disregarded

that risk. Ruiz–Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007) (quoting Farmer v. Brennan,

511 U.S. 825, 837 (1994)). The subjective prong of the Eighth Amendment inquiry is often a

question “better resolved on a motion for summary judgment or at trial, once the relevant facts

have been discovered.” Sepulveda, 160 F. Supp. 3d at 386; see Torraco, 923 F.2d at 234

(explaining that a “state-of-mind issue such as the existence of deliberate indifference usually

presents a jury question”).

“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.” Watson

v. Caton, 984 F.2d 537, 540 (1st Cir. 1993). “[W]here a prisoner, [moreover], has received some

medical attention and the dispute is over the adequacy of the treatment, federal courts are generally

reluctant to second guess medical judgments and to constitutionalize claims which sound in state

tort law.” Bradshaw v. Correctional Medical Services, Inc., 6 F. App’x 45, 46 (1st Cir. 2001)

(citation omitted). Lazarre, however, “alleges more than a mere disagreement over the proper

course of treatment.” Sepulveda, 160 F. Supp. 3d at 385. Instead, Lazarre alleges that “OCCC

management and medical staff rebuked [him] for making a large number of requests and threatened

adverse actions related to his treatment and accommodations based on those requests.” D. 67 ¶

54. Prison officials and doctors may exhibit deliberate indifference if they deny medical treatment

to punish an inmate. Watson, 984 F.2d at 540. Here, Lazarre has alleged that during a meeting

with Thibault and Holmes, Holmes informed him that they would not provide him with a

wheelchair because there was a possibility that he would sue OCCC staff. D. 67 ¶ 55. Assuming

this is true, as the Court must at this point, the DOC’s continuing denial of Lazarre’s request for a

wheelchair did not stem from a mere disagreement regarding his need for the wheelchair, but

instead was a form of punishment.

DOC Defendants further contend that Lazarre has not sufficiently pled that they were

deliberately indifferent to his medical needs because as non-medical officials they were entitled to

defer to the medical staff. D. 72 at 10-11. Lazarre alleges, however, that by May 2018, OCCC

staff began denying his request for medical accommodations because they were frustrated with the

number of grievances that he filed. See D. 67 ¶ 55. In August 2018, moreover, after an

examination, Dr. Straus determined that Lazarre needed a wheelchair. Id. ¶ 57. It was, according

to Lazarre, Defendants Beausoleil, Amaral, Carton, Pascucci,4 and Holmes that “pressured Dr.

Straus to cancel the wheelchair because they claimed to have seen [him] walking without

assistance.” Id. ¶ 58. Reading Lazarre’s complaint in the light most favorably to him, he has

sufficiently alleged that it was the non-medical staff at OCCC, not the medical professional, that

made the determination that he would not receive a wheelchair. This determination was made, not

because they disagreed with his assessment of his mobility issues but instead, as punishment for

filing several grievances.

Assuming these facts are true, as the Court must on a motion to dismiss, the Court must

determine whether denying accommodation requests because a prisoner files several grievances

constitutes deliberate indifference. At this juncture, the Court finds that such a determination is

4 DOC Defendants also move to dismiss claims against Pascucci based on the Court’s earlier

dismissal of claims against him. D. 72 at 3 n. 3. This Court dismissed the claims against Pascucci

and forty-six other defendants in Lazarre’s pro se amended complaint pursuant to 28 U.S.C. §

1915(e)(2) and 28 U.S.C. § 1915A(b) for failing to state a claim on which relief may be granted

where the amended complaint did not make any factual allegations as to Pascucci. D. 15. This

Court’s prior order did not indicate whether dismissal of claims against Pascucci was with or

without prejudice. Generally, in the absence of any notation to the contrary, dismissal is presumed

to be with prejudice. Segelman v. City of Springfield, 561 F. Supp. 2d 123, 125 (D. Mass. 2008).

Here, however, given that the earlier dismissal of Pascucci was based upon review of Lazarre’s

pro se complaint in which contained no allegations against him, D. 14, the Court appointed counsel

after this dismissal, permitted Lazarre to file a second amended complaint and this operative

pleading now includes factual allegations specific to Pascucci, see e.g., D. 67 ¶58, the Court will

allow Lazarre’s claims against Pascucci to proceed.

“better resolved on a motion for summary judgment or at trial, once the relevant facts have been

discovered.” Sepulveda, 160 F. Supp. 3d at 386. Thus, at this juncture, the Court finds that Lazarre

has stated sufficient facts for his Eighth Amendment claim to survive. Id.5

D. ADA Claims

1. Lazarre’s Claims for Monetary Damages Are Dismissed (Counts I – III)

First, “[i]ndividuals can recover money damages under the ADA only if they prove

intentional discrimination by the defendant.” LeClair v. MBTA, 300 F. Supp. 3d 318, 325 (D.

Mass. 2018) (citation omitted); see Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir.

2003) (holding that “private individuals may recover compensatory damages under . . . Title II

only for intentional discrimination”). “Many circuit courts have held that the applicable standard

for proving intentional discrimination is one of deliberate indifference.” Cox v. Massachusetts

Department of Correction, No. 13-cv-10379-FDS, 2018 WL 1586019, at *7 (D. Mass. 2018) and

LeClair, 300 F. Supp. 3d at 325 (citations and internal quotation marks omitted). “However, the

First Circuit appears to have adopted the more stringent standard of ‘discriminatory animus.’” Id.

(citing Nieves-Marquez, 353 F.3d at 126-27 and Carmon-Rivera v. Puerto Rico, 464 F.3d 14, 17-

18 (1st Cir. 2006)).

Deliberate indifference requires Lazarre to show (1) “knowledge that a harm to a federally

protected right is substantially likely,” and (2) “a failure to act upon that . . . likelihood.” Barber

v. Colorado Dept. of Revenue, 562 F.3d 1222, 1229 (10th Cir. 2009) (citing Duvall v. County of

5 The DOC Defendants also argue that Lazarre’s claim fails to state a failure to protect claim

against the correctional officers based upon allegations that they encouraged several inmates to

abuse him physically and sexually. D. 72 at 14-16. They also argue that Lazarre cannot

sufficiently plead a violation of the Eighth Amendment based on allegations that the correctional

officers harassed and threated him and used racial epithets. Id. at 17. Since Lazarre has clarified

that he is not asserting a failure to protect claim or a claim based on their threats, harassment, or

discrimination, D. 84 at 8, these arguments are moot and the Court need not reach them.

Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2009)). Here, Lazarre has alleged that all the DOC

Defendants had knowledge that he requested medical accommodations. See e.g. D. 67 ¶¶ 55 &

105-106. Lazarre moreover has alleged that DOC Defendants rejected his requests for

accommodations. D. 67 ¶¶ 101 & 105. This is sufficient under the deliberate indifference test for

his claims to survive. See Cox, 2018 WL 1586019, at *8 (ruling that deliberate indifference

standard was met where plaintiff established that defendants knew about his need for assistance

and refused to provide same).

Lazarre’s allegations, however, do not satisfy discriminatory animus test, i.e., that Lazarre

plead facts from which the Court can infer that the DOC Defendants held any discriminatory

animus towards him because of his disabilities. To show discriminatory animus, Lazarre must

allege that “defendant intended to discriminate against plaintiff based on his disability.” LeClair,

300 F. Supp. 3d at 326. Although Lazarre plausibly alleges, as discussed below, that the DOC

Defendants retaliated against him because of his grievances, it is not plausibly alleged that they

took actions against him because of his disability. Lazarre does not offer much on this point,

suggesting that it is premature for the Court to dismiss his claim on this ground because whether

he will be able to show intentional discrimination is a factual question that cannot be decided on a

motion to dismiss. D. 84 at 11 n. 6. Since the Court does not conclude that this predicate for ADA

claim for damages is plausibly stated, the Court ALLOWS the motion to dismiss to this portion of

the ADA claim. Although monetary damages for his ADA claim are not available, “injunctive

relief would be,” Carmona-Rivera, 464 F3d at 18, and the Court proceeds to address whether that

portion of his ADA discrimination claim otherwise survives.

2. ADA Discrimination Claim Against DOC, Mici and Kennedy (Count I)

The DOC Defendants argue, and Lazarre does not appear to dispute, D. 84 at 10 n. 4, that

Lazarre has not alleged specific facts as to Mici and Kennedy that they failed to grant him

reasonable accommodations. D. 72 at 20. Lazarre argues that he does not need to allege specific

facts against Mici and Kennedy because the suit is brought against them in their official capacities.

D. 84 at 10 n. 4. “[W]here a suit is brought against individual public officials in their official

capacities, such a suit is effectively to be considered a suit against the officials’ offices.” Navedo

v. Maloney, 172 F. Supp. 2d 276, 289 (D. Mass. 2001) (citing Will v. Michigan Dep’t of State

Police, 491 US 58, 71 (1989) and Wang v. New Hampshire Bd, of Registration in Med., 55 F.3d

698 (1st Cir. 1995)). An official capacity claim against Mici as the Commissioner of the DOC and

Kennedy as the Superintendent of the OCCC, however, is redundant because Lazarre has already

named the DOC as a defendant. See Martini v. City of Pittsfield, No. 14-30152-MGM, 2015 WL

1476768, at * 7 n. 5 (D. Mass. Mar. 31, 2015) (finding that official capacity claim against

defendant would be redundant because plaintiff filed a claim against the office as well) (citing

Decotiis v. Whittemore, 635 F.3d 22, 38 n. 19 (1st Cir. 2011)). Accordingly, the Court ALLOWS

DOC Defendants’ motion to dismiss Lazarre’s discrimination claim against Mici and Kennedy in

their official capacity.

As to the DOC, DOC Defendants argue that the discrimination claim must be dismissed

because DOC is entitled to rely on the professional opinions of medical providers in the ADA

context. See D. 72 at 18. As discussed above, however, reading Lazarre’s complaint in the light

most favorable to him, he has sufficiently alleged that starting in May 2018, DOC Defendants did

not rely upon medical opinions when they made their determinations that a wheelchair was not

medically necessary. Instead, staff made these decisions as punishment because he filed several

grievances. Thus, the DOC Defendants contention that they deferred to the medical staff and “had

no role in deciding what level of medical care [Lazarre] would receive” is in dispute and “must be

decided based on an evidentiary record at summary judgment or trial.” Messere v. Clark, No. C.A.

No. 11-cv-12166-MLW, 2015 WL 5609959, at * 13 (D. Mass. Sept. 22, 2015). Accordingly, the

portion of Lazarre’s ADA discrimination claim for equitable relief survives.

3. ADA Retaliation Claims Against Thibault and Correctional Officers

(Count II and Count III)

To state a claim for retaliation, Lazarre must show that: (1) he engaged in protected

conduct; (2) he was subject to an adverse action by the DOC Defendants; and (3) there was a causal

connection between his protected conduct and the adverse action. Smith v. The Pub. Sch. of

Northborough–Southborough Massachusetts, 133 F. Supp. 3d 289, 294 (D. Mass.

2015) (citing D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 40–41 (1st Cir. 2012)). Lazarre

has alleged that he filed grievances requesting accommodations for his disabilities. Lazarre alleges

that because of these grievances Thibault ridiculed him and threatened him with adverse

consequences. D. 67 ¶ 99 DOC Defendants argue that the Court should not accept this factual

assertion because “in his first iteration of this factual allegation, Defendant Holmes was the only

one to threaten and ridicule him, yet Plaintiff brings this claim against Defendant Thibault.” D.

72 at 21. In evaluating a motion to dismiss, however, the Court must assume the veracity of well-

pleaded factual allegations. Assuming Lazarre’s allegations are true, i.e., that Thibault threatened

and ridiculed him for filing grievances related to accommodations, he has properly pled a claim

for retaliation under the ADA.

As to officers Beausoleil, Amaral, Carton, Cunha and Pascucci, Lazarre alleges that they

“ridiculed, harassed, abused, and threatened” him in response to his requests for “a wheelchair, a

shower chair and other assistance related to his mobility impairments.” Id. ¶ 106. DOC

Defendants argue that Lazarre has “failed to allege a casual connection between any of the alleged,

and improbable, conduct of these Defendants and his request for reasonable accommodations other

that his oft repeated sweeping conclusions stating such.” D. 72 at 22. Lazarre’s claims that the

correctional officers ridiculed, harassed, abused, and threatened him because he made requests for

a wheelchair are not legal conclusions but factual assertions that must be taking as true at this

juncture. As such, these claims are sufficient to maintain a claim for retaliation.

DOC Defendants also argue that Lazarre’s complaint states that Holmes and Dr. Straus

indicated that a wheelchair was not medically necessary and thus there was a legitimate permissible

reason for the removal of the wheelchair order. D. 72 at 22. First, as the Court has already

discussed, Lazarre’s complaint alleges that starting in May 2018, OCCC staff began denying his

requests because he filed too many grievances. D. 67 ¶ 55. Even assuming there was a permissible

reason to deny Lazarre an accommodation, moreover this does not defeat Lazarre’s retaliation

claims against DOC Defendants. See Valle-Arce v. Puerto Rico Ports Authority, 651 F.3d 190,

198 (1st Cir. 2011) (ruling that “plaintiff’s retaliation claim may succeed even where disability

claim fails”). Accordingly, Lazarre has sufficient pled a claim of retaliation for equitable relief

under the ADA to survive a motion to dismiss.

E. DOC Defendants Are Not Entitled to Qualified Immunity

DOC Defendants contend that they are entitled to qualified immunity. D. 72 at 4. “The

doctrine of qualified immunity protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231

(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In Saucier v. Katz, 533 U.S.

194 (2001), the Supreme Court adopted a two-step sequence for resolving whether a government

official was entitled to qualified immunity. First, a court must decide whether the facts that a

plaintiff has alleged or shown make out a violation of a constitutional right. Saucier, 533 U.S. at

201. Second, if the first step has been met, the court must decide whether that right was “clearly

established” at the time of the defendant’s alleged misconduct. Id.

To determine whether the DOC Defendants are entitled to qualified immunity, the Court

must decide whether their conduct violated a “clearly established constitutional

right.” Pearson, 555 U.S. at 232. “Clearly established” for purposes of qualified immunity means

that the contours of the right are “sufficiently clear” that “every ‘reasonable official would have

understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). For a right to be clearly

established, there does not need to be a “case directly on point, but existing precedent must have

placed the . . . constitutional question beyond debate.” Id. “The court must examine whether there

are ‘cases of controlling authority . . . at the time of the incident . . . [or] a consensus of cases of

persuasive authority such that a reasonable officer could not have believed that his actions were

lawful.’” Barton v. Clancy, 632 F.3d 9, 22 (1st Cir. 2011) (alterations and omissions in original)

(quoting Bergeron v. Cabral, 560 F.3d 1, 11 (1st Cir. 2009)) (internal quotation marks omitted).

As to Lazarre’s Eighth Amendment claims, “[i]t has long been established that ‘deliberate

indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton

infliction of pain’ proscribed by the Eight[h] Amendment.’” Dantone v. Bhaddi, 570 F. Supp. 2d

167, 173 (D. Mass. 2008) (citing Estelle, 429 U.S. at 105). Thus, the DOC Defendants would

have been on notice that their deliberate indifference to Lazarre’s serious medical needs constituted

a violation of his constitutional rights.

As to the ADA claims, “[i]t is well established that requesting an accommodation” is

behavior protected from retaliation under the ADA. Carreras v. Sajo Garcia & Partners, 596 F.3d

25, 35 (1st Cir. 2010). Additionally, in the First Amendment context, it is “well-established that

retaliating against an inmate for filing grievances violates the inmate’s First Amendment rights.”

Mattel v. Dunbar, 217 F. Supp. 3d 367, 379 (D. Mass. 2016) (citing Mack v. Warden Loretto, FCI,

839 F. 3d 286, 300 (3d Cir. 2016)). Thus, the correctional officers and Thibault would have had

notice that retaliating against Lazarre for protected behavior was unlawful. Accordingly, assuming

Lazarre’s allegations to be true as the Court must at this point, the DOC Defendants are not entitled

to qualified immunity.

VI. Dr. Carrillo’s Motion to Dismiss Claims

Lazarre alleges that Dr. Carrillo violated his Eighth Amendment rights because she was

deliberately indifferent to his serious medical needs when she conducted a medical procedure “that

left [Lazarre] in far worse pain and with far less mobility than he experienced prior to the

procedure.” D. 67 ¶ 146. Dr. Carrillo argues that Lazarre has not sufficiently alleged that she

acted with deliberate indifference to his serious medical need. As discussed above, a claim of

deliberate indifference based on inadequate medical care requires a plaintiff to establish that his

medical need is or was “sufficiently serious,” Burrell, 307 F.3d at 8, and that defendant acted with

intent or wanton disregard when providing inadequate care. See Perry, 782 F.3d at 79.

Dr. Carrillo does not contest that Lazarre has alleged sufficient facts to show a serious

medical need. D. 79 at 5. Instead, Dr. Carrillo asserts that Lazarre has not alleged facts to show

deliberate indifference. Id. at 6. Lazarre’s allegation that Dr. Carrillo performed a medical

procedure that harmed him are not necessarily sufficient to show deliberate indifference. See Nolet

v. Armstrong, 197 F. Supp. 3d 298, 307 (holding that botched surgery leading to sepsis did not

violate Eighth Amendment). Lazarre counters however that his allegations go beyond an

accusation of a botched injection. Instead, Lazarre argues that that Dr. Carrillo was deliberately

indifferent to his medical needs when she refused to provide further examination or treatment. D.

85 at 4. Although Lazarre’s complaint does not allege that Dr. Carrillo refused to provide any

requested treatment, there is at least an allegation that the physician failed to follow-up with

Lazarre after her injections caused him mobility issues. Although the claim may not survive on a

developed record, see Leavitt v. Correctional Medical Services, Inc., 645 F.3d 484, 498 (1st Cr.

2011), at this stage, Lazarre has plausibly alleged that Dr. Carrillo was deliberately indifferent

when she failed to follow-up with Lazarre after her injections worsened Lazarre’s medical

condition. See Sepulveda, 160 F. Supp. 3d at 386 (holding that deliberate indifference

determination are “better resolved on a motion for summary judgment or at trial, once the relevant

facts have been discovered”). Accordingly, the Court DENIES Dr. Carrillo’s motion to dismiss.

VII. Conclusion

The Court ALLOWS in part and DENIES in part DOC Defendants’ motion to dismiss.

Specifically, the Court ALLOWS it as to Lazarre’s Eighth Amendment claim against Mici and

Kennedy in so far as Lazarre seeks monetary damages (Count IV); ALLOWS it as to Lazarre’s

ADA claims in their entirety against Mici and Kennedy in their official capacity (Count I); and

ALLOWS it as to the ADA discrimination claims against the remaining DOC Defendants only to

the extent that Lazarre seeks monetary damages (damages claims in Count II and Count III), D.

71. The Court DENIES the DOC Defendants’ motion as to the remaining claims. The Court also

DENIES Dr. Carrillo’s motion to dismiss, D. 78.

So Ordered.

/s/ Denise J. Casper

United States District Judge