Terbush v. Commonwealth

987 F.Supp.2d 109

Ryan TERBUSH, Plaintiff

v.Commonwealth of MASSACHUSETTS, by its agency, The HAMPDEN COUNTY SHERIFF'S OFFICE, Thomas Lincoln, M.D., F. Brian Liebel, R.N., Lauren Chausse, and Louis Favata, PA–C, Defendants.

Civil Action No. 12–30044–KPN.

United States District Court, D. Massachusetts.

Sept. 20, 2013.

Karen Catuogno, Law Office of Hector Pineiro, Worcester, MA, Ryan Terbush, Robert A. Scott, Worcester, MA, for Plaintiff.

Thomas E. Day, Egan, Flanagan & Cohen PC, Springfield, MA for Defendants.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Document Nos. 32 and 33)

KENNETH P. NEIMAN, United States Magistrate Judge.

Ryan Terbush (“Plaintiff”) brought this action in state court asserting claims against the Commonwealth of Massachusetts, Thomas Lincoln (“Dr. Lincoln”), a medical doctor, Brian Liebel (“Libel”), a registered nurse, and Louis Favata (“Favata”), a physician assistant (together “Defendants”). ¹ Plaintiff's claims arise out of his inability to provide a urine sample—allegedly caused by a condition known as “Shy Bladder Syndrome”—while participating in the Hampden County Sheriff's Department Day Reporting Program as well as subsequent medical issues following his return to the Hampden County Correctional Center (“HCCC”). In particular, Plaintiff asserts a civil rights claim for deliberate indifference to his serious medical needs against all defendants (Count I), a negligence claims against Dr. Lincoln (Count II), and a claim under Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act against the Commonwealth (Count III).²

Defendants removed the action to this court pursuant to 28 U.S.C. § 1441. Presently, Defendants, with the exception of Dr. Lincoln who is not seeking summary judgment as to Count II, seek summary judgment on all of Plaintiff's remaining claims. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the jurisdiction of this court. For the reasons that follow, the court grants Defendants' motion for summary judgment, leaving only Plaintiff's unchallenged medical malpractice claim against Dr. Lincoln.

I. Standard of Review

When ruling on a motion for summary judgment, the court must construe the facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003). Summary judgment is appropriate when “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” when the evidence is such that a reasonable fact-finder could resolve the point in favor of the non-moving party, and a fact is “material” when it might affect the outcome of the suit under the applicable law. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir.1994). The non-moving party bears the burden of placing at least one material fact into dispute after the moving party shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

II. Background

A. Facts Not in Dispute³

The parties do not dispute the following facts, which are construed in a light most favorable to Plaintiff, the non-moving party. The facts are extensive.

Plaintiff was incarcerated at HCCC, a correctional facility located in Ludlow, on ten separate occasions between April of 2002 and May of 2011. (Defendants' Statement of Undisputed Material Facts (“Defs' SOF”) ¶¶ 3, 9–24.) Many of these incarcerations were related to substance abuse, a problem with which Plaintiff has struggled since his early teens. ( Id. ¶¶ 10–24, 28–53.) The Hampden County Sheriff's Department operates HCCC on behalf of the Commonwealth of Massachusetts. ( Id. ¶ 3.) During two of his incarcerations, Plaintiff was placed in the Day Reporting Program, which is also run by the Hampden County Sheriff's Department. ( Id. ¶¶ 14, 21.) The Day Reporting Program provides home-based incarceration for selected inmates with the goal of transitioning them back to the community; inmates are still “incarcerated” but are allowed to live at home under strict reporting conditions. ( Id. ¶¶ 7, 8.) One such condition is random drug tests; the failure to produce a urine sample within three hours of a request could result in a disciplinary violation and a return to HCCC pending an investigation. ( Id. ¶¶ 71–72.) Day Reporting Program policy also requires that, during the urine test, an officer must observe the urine leave the body. ( Id. ¶ 73.)

Plaintiff claims to suffer from Shy Bladder Syndrome (“SBS”) which, in his case, prevents him from urinating in front of others when providing urine samples for drug testing. ( Id. ¶¶ 57, 62.) Still, Plaintiff maintains, he can urinate in a public bathroom and has had success urinating in front of others for drug tests when he was allowed to sit down. ( Id. ¶¶ 58–59, 62, 84.)

On November 4, 2008, during Plaintiff's eighth incarceration in the custody of the Hampden County Sheriff's Department, he was transferred from HCCC to the Day Reporting Program.⁴ ( Id. ¶ 65.) Upon entering the program, Plaintiff was aware that he would be subject to random drug tests and that a failure to provide a urine sample was a violation of the Day Reporting Program rules, which would result in his return to HCCC. ( Id. ¶ 70.) Throughout the screening process and upon his entrance into the program, Plaintiff never mentioned to anyone that he suffered from SBS and he did not request any accommodation. ( Id. ¶ 78.) Plaintiff's mother, however, claims to have provided a Doctor's note to a Day Reporting Program staff member shortly before Plaintiff began the program. (Exhibit 1 (attached to Plaintiff's Opposition to Defendants' Motion for Summary Judgment (“Pl's Opp”).)) The note—which is signed by Alfred Piel, a physician at RiverBend Medical Group, and dated November 16, 2001—states that Plaintiff “apparently has ‘shy bladder’ and is unable to provide a supervised urine sample.” ( Id.) Dr. Piel continued: “For this reason I would recommend that an unsupervised urine be allowed (taking precautions to prevent switching of urine samples).” ( Id.) In addition, Plaintiff claims that he informed a correctional staff member of his medical condition on November 10, 2008, and that the staff member allowed him to sit while urinating for the drug test under observation that day. (Pl's Opp ¶ 78; Exhibit H (attached to Defs' SOF); Defs' SOF ¶ 84.) ⁵

On November 13, 2008, a correctional officer requested that Plaintiff produce a urine sample for a random drug test. (Defs' SOF ¶ 85.) At some point Plaintiff stated that he had SBS and could not urinate and asked to sit down while urinating. ( Id. ¶ 86.) The officer initially did not permit him to sit down but allowed Plaintiff to drink water and run a faucet in order to aid him in urinating. ( Id. ¶ 87.) Eventually, Plaintiff was allowed to sit on the toilet but still could not urinate. ( Id.) After attempting to do so for more than the three hours allowed by Day Reporting Program rules, Plaintiff still could not produce a urine sample. ( Id. ¶ 88.) As a result, he was returned to HCCC that night on an “administrative return,” i.e., he did not receive any disciplinary consequences or loss of privileges for his failure to produce a urine sample. ( Id. ¶¶ 88–89.)

Upon being returned to HCCC that night, Plaintiff underwent an intake screening process, during which he stated to two different HCCC employees that he had consumed alcohol while participating in the Day Reporting Program and that he was detoxing. ( Id. ¶¶ 90–91, 98–99.) Plaintiff's statements about consuming alcohol while participating made him ineligible to return to the Day Reporting Program. ( Id. ¶ 101.) In any event, Plaintiff did not complain to anyone about urinary retention issues when he returned to HCCC on November 13, 2008. ( Id. ¶ 102.) Plaintiff has since explained during the course of this litigation, however, that he lied about using alcohol so that he could obtain Librium, a drug used by HCCC as part of its alcohol detox protocol. ( Id. ¶¶ 92, 100.)

The next day, November 14, 2008, Plaintiff was examined by Favata, a Certified Physician Assistant employed in HCCC's Health Services Department. ( Id. ¶¶ 6, 107.) Plaintiff did not complain to Favata at the time about any urinary retention, despite failing to urinate since his return to HCCC. ( Id. ¶ 109). Favata noted that Plaintiff's genitourinary system was “unremarkable” and that he appeared “well-nourished” and had “[n]o apparent distress.” ( Id. ¶ 107.) It was not until November 15th or 16th that Plaintiff complained about urinary retention, at which time he was treated by catheterization. ( Id. ¶ 104.)

On November 17, 2008, Favata evaluated Plaintiff for inability to void urine since his catheterization the previous day; Plaintiff also complained about lower back spasms. ( Id. ¶ 110.) Favata noted that Plaintiff saw him on November 14, 2008, but failed to mention any problems with his lower back or difficulty urinating at that time. ( Id. ¶¶ 110–111.) Based on Plaintiff's complaints, Favata ordered an ultrasound to rule out kidney stones and catheterized Plaintiff. ( Id. ¶ 112.) Favata then consulted with his supervising physician, who advised that Plaintiff be sent to the emergency room. ( Id.) Later that day, Plaintiff was sent to the Emergency Department of Mercy Hospital, where he was advised to use a Foley catheter with a leg bag. ( Id. ¶ 113.) Plaintiff, however, refused and thereafter was straight catheterized. ( Id.) Plaintiff then returned to HCCC with instructions that he be catheterized every six hours and a note suggesting that Plaintiff see a urologist. ( Id. ¶¶ 113, 129; Exhibit D (attached to Defs' SOF) ¶ 6.) That night, Plaintiff visited with Joan Schermerhorn, a Registered Nurse at HCCC, for...