Boudreau v. Englander, et al.

2009 DNH 133P

• Court: District Court, D. New Hampshire
• Decided: September 4, 2009
• Docket: CV-09-247-SM
• Status: Published

Opinion

Boudreau v . Englander, et a l . CV-09-247-SM 09/04/09 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert H . Boudreau

v. Civil N o . 09-cv-247-SM Opinion N o . 2009 DNH 133P

Dr. Celia Englander, et a l .

REPORT AND RECOMMENDATION

Before the Court is Robert Boudreau’s request for a

temporary restraining order and a preliminary injunction

(document n o . 2 ) . Boudreau requests reinstatement of medical

treatment adequate to address his chronic back pain. A hearing

was held on Boudreau’s motion on August 13 and 1 4 , 2009. After

careful consideration of the evidence and argument submitted by

the parties, I recommend that Boudreau’s motion for a temporary

restraining order be denied, and his motion for a preliminary

injunction be granted.

Request for a Temporary Restraining Order

If a party seeks the issuance of a temporary restraining

order without written or oral notice to the adverse party, the

court may only grant relief if plaintiff (A) files an affidavit

or verified complaint clearly showing “that immediate and irreparable injury, loss, or damage will result to the movant

before the adverse party can be heard in opposition; and (B) the

movant’s attorney certifies in writing any efforts made to give

notice and the reasons why it should not be required.” Fed. R.

Civ. P. 65(b) (governing the issuance of temporary restraining

orders by the Court). In this case, plaintiff’s pleadings

satisfy neither of these requirements. Accordingly, I recommend

that the motion for a temporary restraining order be dismissed.

I will apply the evidence in this matter only to my consideration

of plaintiff’s request for a preliminary injunction.

Background

I. Robert Boudreau

Robert Boudreau is an inmate of the New Hampshire Department

of Corrections (“DOC”), presently housed at the Northern New

Hampshire Correctional Facility (“NCF”), where he has been since

April 2009. Prior to that, he had been housed at the New

Hampshire State Prison for Men in Concord, essentially since

2002. Boudreau’s present imprisonment commenced in June 2006

when he was reincarcerated on a parole violation after serving

only “a couple days” on parole release.

2 Boudreau injured his back lifting a wood stove at work in

1997, prior to being incarcerated. He suffered three ruptured or

herniated disks. He received Workers’ Compensation benefits for

his back injuries. Boudreau had two back surgeries prior to

entering the prison, in 2000 and 2002, and had a third back

surgery in December 2006 while he was incarcerated.

Boudreau’s 2006 surgery was performed by D r . Ross Jenkins at

Dartmouth Hitchcock Medical Center (“DHMC”). After the surgery,

Dr. Jenkins advised Boudreau that further surgery was not in his

best interest, and that he should try to obtain pain relief by

maintaining his pain medication regimen, and taking other pain-

relief measures, such as the use of a T.E.N.S. Unit,1 and

consulting with a pain management specialist.

Since then, Boudreau has seen D r . Robert Beasley, a pain

management specialist at DHMC. At Boudreau’s first appointment

with D r . Beasley, on March 1 7 , 2009, D r . Beasley recommended that

Boudreau undergo a branch block, a procedure wherein the nerves

communicating pain messages to Boudreau’s brain are severed or

1 A T.E.N.S. Unit, or Transcutaneous Electric Nerve Stimulation Unit, is a pocket-sized battery-operated device that uses electric impulses, administered via electrode pads placed on the painful area of the body, to block nerve pain signals to the brain.

3 burned, relieving Boudreau of pain for a period of time.

Boudreau would then return to other pain management options. D r .

Beasley advised Boudreau that one of the risks of the procedure

was paralysis, and Boudreau chose not to take that risk and

declined the procedure.2 Boudreau again saw D r . Beasley on July

2 0 , 2009, at which time he underwent a procedure involving

injecting local anesthetic into his spine. Boudreau testified

that the procedure was excruciatingly painful, and that it did

not entirely resolve his pain.

Boudreau testified that he was first prescribed narcotic

pain medication for his back pain at the prison in 2004 or 2005

by DOC Nurse Practitioner Brett Mooney. After Boudreau saw

Mooney a couple of times, he was treated, until recently, by D r .

Celia Englander, the Chief Medical Officer for the DOC, who has

prescribed narcotic pain medication to him since that time. Dr.

Englander’s most recent prescribed dosage of MS Contin3 was 210mg

2 Dr. Celia Englander, Chief Medical Officer for the DOC, testified that paralysis is not a risk of a branch block procedure. D r . Englander, however, also stated that she does not perform this procedure, and referred Boudreau to D r . Beasley because he is a specialist in this area. 3 MS Contin, or morphine sulfate, is morphine in an extended release formula. The witnesses in this matter used these terms, as well as simply calling the drug “morphine,” interchangeably, although they are not precisely the same thing. For purposes of

4 per day. Boudreau testified that that dosage, which was

increased from his previous dosage of 180mg daily at the end of

2008 4 , was working reasonably well for him, as he can function

and move around on that dosage, and because he has a T.E.N.S.

Unit to treat breakthrough pain D r . Beasley’s report of the

March 1 7 , 2009 appointment with Boudreau recommended methods for

Boudreau to increase his pain control without increasing his

opioid dosage. To do that, D r . Beasley recommended branch

blocks, and the addition of a prescription for Cymbalta, a pain-

relieving medication, possibly in combination with Wellbutrin or

Effexor, and possibly Neurontin, a medication used to treat nerve

pain. Once Boudreau was able to obtain better pain control, D r .

Beasley suggested that Boudreau get into an exercise program

designed to strengthen his back and core musculature. Dr.

Beasley did not recommend decreasing or terminating the opioid

treatment at that time. D r . Beasley also stated in his report

that he would wait to hear from D r . Englander before scheduling

my determination of plaintiff’s request, however, it is a distinction without a difference. 4 The medical witnesses at the hearing testified that patients often develop tolerance to morphine and other narcotic medications over time and require periodic increases in dosage to continue to obtain the pain-relieving benefits of the drugs.

5 any nerve block procedures. D r . Englander testified that she has

not seen Boudreau to treat him and that she has not met with him

or changed his medications since December 2008.

Boudreau saw D r . Beasley again in July 2009, but no report

from that meeting was entered in evidence. Boudreau testified

that the appointment with D r . Beasley was uncomfortable because

Dr. Beasley believed he was there to have branch block procedures

when, in fact, Boudreau declined those procedures.

In the months before the circumstances that gave rise to

this lawsuit arose, Boudreau had informally heard from various

DOC medical staff members that inmates were going to be removed

from medications due to budget concerns within the DOC.

Additionally, Boudreau became aware that a number of inmates had

been seen by DOC physician D r . John Eppolito, and he was removing

them from their pain medications.

In June 2009, Boudreau received notice that he was scheduled

for an appointment, which he did not request, with D r . Eppolito

on June 3 0 , 2009. Boudreau, fearing that his medications might

be taken from him, or that D r . Eppolito might not be aware that

he had Workmen’s Compensation benefits that would cover the

expenses of his medical care, brought a lot of his medical

6 records to that appointment and the information regarding his

benefits. Boudreau also brought with him a draft of a civil

rights lawsuit that he intended to file in the event that D r .

Eppolito sought to interfere with Boudreau’s pain treatment.

According to Boudreau’s testimony, when he arrived at the

scheduled appointment with D r . Eppolito on June 3 0 , 2009, the

doctor, who was sitting behind a table, introduced himself and

told Boudreau that he was there to review all of the narcotic

pain management medications being given to inmates for budgetary

reasons. D r . Eppolito, when he testified, vehemently denied

saying anything related to budgetary concerns during the June 30

appointment. Boudreau testified that he then showed D r . Eppolito

that his medications were covered by his Workmen’s Compensation

benefits. D r . Eppolito commented that Boudreau was on a high

dose of morphine. Boudreau, who admits that he became hostile to

Dr. Eppolito shortly into the conversation, told D r . Eppolito

that his treating physicians and specialists, including his back

surgeon and a pain specialist, had either prescribed or approved

his present dosage of medications, and that he felt more

confidence in their opinions regarding his care than in D r .

7 Eppolito’s opinion, as D r . Eppolito was neither an expert in pain

management nor had he ever treated Boudreau.

Dr. Eppolito then broached the subject of removing Boudreau

from his narcotic medication. Boudreau told D r . Eppolito that he

needed his medication, and that if he was removed from his

medication, he would file a lawsuit against D r . Eppolito. Dr.

Eppolito then had Boudreau removed from the office without

further discussion. No physical examination took place. While

conceding that Boudreau threatened only to sue him, and not to

physically harm him, D r . Eppolito stated that during this

conversation with Boudreau, he was more afraid for his life than

he had ever been, including the four years he had worked with

inmates. D r . Eppolito stated that Boudreau’s behavior was more

frightening to him even than that of another, larger, inmate, who

specifically threatened to kill him. D r . Eppolito also claimed

that he would have examined Boudreau at that appointment had

Boudreau not gotten aggressive with him. D r . Eppolito, however,

described in his progress notes that the appointment was an

“interview,” rather than an examination. Further, none of the

other inmates who testified about seeing D r . Eppolito for a

similar initial meeting were examined during that meeting. I

8 find that D r . Eppolito, whether he said this with the intent to

bolster the dramatic effect of his testimony, or because he is

misremembering the incident, is not believable on this point.

A corrections officer, Terry Oliver, testified that he was

present outside the room during the June 30 appointment between

Boudreau and D r . Eppolito. Oliver testified that he was standing

outside the open door of the room, and that, for the most part,

the two carried on “a normal conversation.” Oliver’s attention

was drawn, however, when he heard Boudreau’s and D r . Eppolito’s

voices rise. Oliver stepped up to the doorway of the room and

saw Boudreau with paperwork in his hand, which D r . Eppolito

wanted to see. Boudreau said it was a lawsuit that he was going

to file. D r . Eppolito then said to Boudreau that he was

threatening him with the lawsuit, and that the appointment was

over, and he wanted Oliver to remove Boudreau from the room.

Oliver escorted Boudreau out of the examining room and into the

waiting room. Oliver did not feel it was necessary to write

Boudreau up on disciplinary charges for any of his actions during

that incident. I find that Oliver’s version of events is the

most objective and believable regarding the tone and conduct of

both Boudreau and D r . Eppolito at the June 3 0 , 2009 appointment.

9 Anticipating that he was likely to be sued by Boudreau if he

removed Boudreau from his medication, D r . Eppolito wrote copious

notes concerning the June 30 meeting. D r . Eppolito’s progress

notes from the meeting indicate that he reviewed Boudreau’s chart

prior to the meeting, and that his impression of Boudreau, based

on his review of Boudreau’s chart, was as follows:

[Patient] is a 35 year old male that has an extensive [history] of chronic back pain. [Patient] has had several surgeries in the past. ( 3 ) . Today I am interviewing [patient] to see if current therapy is helping with his pain. [Patient] has been on MS Contin. [Patient] was seen by Spine Center DHMC. Recommendation for addition of Neurontin or Cymbalta for pain management. [Patient] was also recommended to have nerve blocks. Review of the record does not demonstrate that these recommendations have been followed.

After the 11:00 a.m. meeting with Boudreau, D r . Eppolito

wrote the following notes:

I had a discussion with [patient] that I would order the recommended tests. When I brought up the topic that [patient] may benefit from a drug holiday, [patient] presented a document that he described as a law suite [sic]. [Patient] stated he knew that his meds were going to be reviewed. [Patient] stated I will see you in court. Officers Oliver and Nancy Murphy saw this document.

I will certainly follow through with DHMC Spine Center recommendations.

10 I feel strongly that [patient] was attempting to influence my medical decisions by threatening to bring legal action against me if I elect to manage [patient] differently. This behavior is an attempt to strong arm, intimidate, m e . This is a form of extortion. I strongly belive [sic] that I need to be aggressive with [patient]’s pain management. [Patient] will be sent to DHMC but I do not feel comfortable in continuing current management. 1 ) [Patient] states that he is in pain and needs an increase in his MS Contin. Current recommendations for pain management with narcotics - recommends one of two choices for chronic pain despite receiving opioids: (1) increase the dose of the opioids, or (2) D/C (discontinue the opioid). [Patient] was unwilling to hear of my plan other than his MS Contin. I have decided that [patient]’s behavior and aggressive attitude and lack of appropriate pain relief is an indicator to taper his narcotic over a long period of time. I will follow DHMC recommendations.

A half an hour later, at 11:30 a.m., D r . Eppolito wrote the

following progress note:

I spoke to D r . Jenkins at NH Spine Center he thought that narcotic taper would be appropriate if [patient] still having pain on his current doses. I called Somersworth Pain Clinic (Chris Clough) he said that a drug holiday would be a reasonable idea at this time (and if [patient] made a threat of legal action) he would be fired from their practice. I will not change [patient]’s dose of MS Contin at this time. I have spoken to D r . Jenkins and Chris Clough. I will seek the advice of D r . John Richmond staff M.D. at DOC, Pain Management [ ? ] .

11 Dr. Eppolito then went on to order Neurontin and a consultation

with the DHMC Spine Center for branch blocks.

Dr. Eppolito scheduled another appointment to see Boudreau

on July 1 4 , 2009. Knowing that he had been hostile during their

last meeting, Boudreau testified that he tried to be civil during

this meeting, and to be sure that there were corrections officers

who were able to witness the meeting. During the July 14

meeting, D r . Eppolito told Boudreau that he was going to taper

him off of his narcotic pain medication because Boudreau was

seeking more medication. Boudreau, losing his civility at that

point, called D r . Eppolito a “lying piece of shit,” and other

names, and said that he had not asked for more medication since

being placed on his current dose. Boudreau and D r . Eppolito then

got into a screaming match and D r . Eppolito again had Boudreau

removed from his office. There was no physical examination. Dr.

Eppolito testified that during that meeting, Boudreau indicated

that he did not want D r . Eppolito to treat him. Boudreau’s

narcotic medication taper began that day. When D r . Eppolito

first took the stand, he indicated that he ordered an eight week

taper of Boudreau’s medication. Later, D r . Eppolito conceded

that the taper was actually only about five or six weeks long.

12 After the July 14 meeting with Boudreau, D r . Eppolito wrote

the following progress note:

I called DHMC Pain Clinic myself. Phone not sent to D r . Englander. Returned. Recommendation for tapering MS Contin [secondary] to adverse consequence of hormone suppression. [Patient] treatment has been ineffective we will try meds that could be more effective. [Patient] will be seen by Pain Management at DHMC later this month. I will follow their recommendations. [Patient] informed that MS Contin will be tapered. [Patient] very aggressive provoking/at m e . [Patient] threatening again. [Patient] stood up pointing finger. [Meeting] was ended. [Patient] not examined. CO D. Watson present [ ] [patient].

Dr. Eppolito testified that his decision to take Boudreau

off of the MS Contin was based on the fact that Boudreau was on a

high dose that wasn’t working to control his pain. D r . Eppolito

largely relied, for his conclusion that the medication wasn’t

working, on Boudreau’s agitation and hostile behavior, which he

attributed to overmedication on opioids. D r . Eppolito testified

that he did not consider other possible reasons for Boudreau’s

behavior, such as Boudreau being in fear of being taken off of

medication he believed was necessary to control his pain, or

anger because he believed that the decision was financial, and

not medical.

13 Boudreau testified that while he was being tapered off of MS

Contin, members of the medical staff, including Nurse

Practitioner Judy Baker, tried to have D r . Englander rescind the

taper order, due to Boudreau’s poor condition without the

medication, as the pain had become unmanageable. D r . Englander

stated that she could not interfere with D r . Eppolito’s orders

regarding pain management.

Dr. Eppolito prescribed Mobic, an anti-inflammatory

medication, for Boudreau. Boudreau wrote to D r . Eppolito because

he was concerned about taking the medication because Mobic is

possibly harmful to people with certain heart conditions, and,

Boudreau reports, he has had a heart attack, and is on medication

for high blood pressure. In addition, Boudreau believed Mobic to

be contraindicated with some of his other medications. Dr.

Eppolito testified that the risk of heart attack from the Mobic

is small, and may be outweighed by the benefits of the medication

if inmates experience pain relief. It does not appear, however,

that D r . Eppolito responded to Boudreau, or followed up with him

personally after Boudreau wrote to him to express his concerns.

Boudreau no longer takes Mobic.

14 Boudreau testified that he also attempted to take Neurontin

prescribed by D r . Eppolito, but was vomiting a lot and could not

tolerate the medication, and stopped taking it after one to two

weeks. D r . Eppolito stated that patients sometimes have to put

up with certain unpleasant side effects, such as nausea or

sleepiness, to gain the benefit of a medication. D r . Eppolito

testified that other pain medications, Cymbalta or Lyrica, could

be used for Boudreau’s pain, but that he has not prescribed

either of those for Boudreau.

At the time of the hearing, Boudreau stated that his only

pain relief comes from his T.E.N.S. Unit as he was close to the

end of his taper off of the MS Contin. D r . Eppolito also

prescribed ibuprofen but Boudreau testified that it does not help

to relieve his pain.5 On the first day of the hearing, a

5 Prescriptions of ibuprofen by DOC medical personnel, however, are categorically limited at this time. Inmates may receive a total of 90 doses of ibuprofen in a ninety day period. Accordingly, an inmate prescribed ibuprofen three or four times a day, like Boudreau, are only able to receive that medication for three or four weeks before being cut off for two months. D r . Eppolito testified that this was to avoid the side effects that can occur with ongoing use of these medications. Eschewing the risk/benefit assessment he touted to support his prescription of Mobic in the case of a heart patient, D r . Eppolito stated that the DOC no longer chooses to incur the risks of ibuprofen in order to gain any pain-relieving benefits it might have after the 90 dose limit is reached. However, inmates who are able to purchase ibuprofen from the prison canteen can supplement their

15 Thursday, Boudreau testified that NCF had run out of batteries

and electrode pads, and so he was not able to use his T.E.N.S.

Unit. Boudreau testified that batteries and pads are available

only on Thursdays at 1:30 p.m., and that if your batteries or

pads run out on Friday, you cannot obtain new ones until the

following week. When he appeared for the second day of the

hearing, a Friday, Boudreau had been provided with pads and

batteries overnight. Boudreau stated that he uses his T.E.N.S.

Unit approximately twenty hours per day to try to obtain some

pain relief. Prior to being removed from his medication,

Boudreau needed to use the T.E.N.S. Unit only once every couple

of weeks.

Boudreau was offered Trazadone, but was wary of the side

effects of psychiatric medication, and declined i t . Baker has

given Boudreau Benadryl, an antihistamine, to help him sleep. At

the time of the hearing, Boudreau was almost entirely weaned off

of the MS Contin.

Boudreau testified that he is in agony. The Court noted

during the two days of the hearing that Boudreau was obviously

use of the drug in any way they choose. Another exception to the rule is that patients in the DOC’s newly formed Pain Management Clinic can get the medication they need prescribed without regard to the blanket limitation.

16 extremely uncomfortable, particularly on the first day of the

hearing, and frequently grimaced when he attempted to move or

change positions, even at times when he did not have reason to

expect that people would be watching him. Further, all of the

medical professionals who testified, or whose opinion was heard

in evidence, stated that they had no reason to doubt Boudreau’s

chronic pain is real. I find, based on his testimony, my own

observations, and the other evidence presented at the hearing,

that Boudreau’s present pain is significant and genuine.

Dr. Eppolito testified that no pain management plan was ever

put in place for Boudreau, either before or after he directed the

taper of his pain medication. At the time of the hearing in this

matter, D r . Eppolito stated that he intended to have Boudreau

meet with the newly formed Pain Management Clinic (“PMC”), and

intended to create a plan for Boudreau in the “near future,” but

that he had yet to do so and yet to even set a date for such a

meeting. Accordingly, there is no plan in place for Boudreau and

no action has been taken to create such a plan.

Dr. Eppolito also claimed that Boudreau had expressed that

he did not want to be seen for treatment by D r . Eppolito. Dr.

Eppolito, however, took detailed notes of both of his encounters

17 with Boudreau, and never mentioned Boudreau’s refusal to be

treated by him. I find it much more likely that D r . Eppolito did

not actually think that Boudreau was refusing treatment, but that

Dr. Eppolito has chosen not to see Boudreau again, based on his

own fear of being sued. In fact, once Boudreau told D r . Eppolito

that he intended to sue him, D r . Eppolito was so concerned about

the threat of a lawsuit that he stopped seeing patients that day

and spoke to D r . Robert MacLeod, the Chief Administrator of

Medical and Forensic Services at the DOC, about what he should do

to protect himself legally. D r . MacLeod advised D r . Eppolito to

make sure that the file was well-documented, including what had

occurred and the times and dates of occurrence. Further,

contrary to D r . Eppolito’s assertions that he felt that he could

not take further action because Boudreau did not want to be

treated by him, D r . Eppolito indicated, in both the progress

notes he made and testimony provided at the hearing, that he

intended to see Boudreau again and to treat him in the future,

including having him participate in the PMC, referring him to

outside specialists, tapering his MS Contin, and continuing to

prescribe new medication for him during the taper.

18 Dr. Eppolito’s disinclination to see Boudreau once the

lawsuit was filed is also implied by the fact that the last

medical action taken on Boudreau’s behalf, according to the

testimony, an appointment with D r . Beasley on July 2 0 , 2009,

coincided with the date this lawsuit was filed. Further, even

accepting as true D r . Eppolito’s assertion that he intends to set

an appointment to review Boudreau’s case with the PMC treatment

team, his significant delay in doing s o , particularly for an

inmate who has been removed from his effective pain medication,

is troubling.

II. Other Inmates

A. Larry Schultz

Other inmates testified at the hearing regarding their

recent experience with pain medications at the DOC. Larry

Schultz testified that he has been incarcerated in the DOC for

four and a half years and chronic pain in his back and legs

resulting from a 1997 work-related injury. Schultz stated that

Dr. Eppolito prescribed narcotics for him in 2008, and that over

time, as he grew tolerant to the pain-alleviating effects of the

medication, his dosage had to be increased. On July 7 , 2009,

Schultz was called to the medical department to see D r . Eppolito,

19 who advised him that he was taking him off of his narcotic

medication. Schultz protested, stating that, if anything, he

needed his medication increased, not decreased, as the dosage he

was on was not as effective as it had been. D r . Eppolito

prescribed Mobic and weaned Schultz off of the narcotics.

Schultz was unable to tolerate the Mobic, because he has acid

reflux disease, a condition that can be worsened by the

medication. He now receives a muscle relaxant, but no pain

medication and no other treatment to help him manage his pain.

Drs. Englander and Eppolito testified that if inmates are

caught “cheeking” or hiding their medications to be given or sold

to other inmates, they presume that the inmates do not need the

medication. Schultz was caught “cheeking” medication twice in

late 2008. Schultz, however, testified that he continued to

receive his narcotic medication, prescribed by D r . Eppolito,

after that date, and that D r . Eppolito did not mention the prior

“cheeking” of his medication as a reason for weaning Schultz off

of his medications.

B. Richard Chenard

Another inmate, Richard Chenard, testified that he has been

taking narcotic medication for five months for chronic arthritis

20 pain in his elbows, back, and feet. His medication was

prescribed by D r . Englander. In mid-July 2009, Chenard testified

that he was among approximately fifteen inmates called to the NCF

medical department. Chenard saw D r . Eppolito there. Dr.

Eppolito told Chenard that his narcotic pain medication was

likely to be terminated. He did not give Chenard a reason for

terminating his medication. D r . Eppolito told Chenard that he

would be seen again, but Chenard has not received any further

appointments and his medication has not yet been reduced.

Chenard stated that all of the other inmates who went in to see

Dr. Eppolito that day came out of his office stating that D r .

Eppolito was going to terminate their pain medication, but that

no one had been given a reason for the termination.

C. Anthony Renzzulla

Anthony Renzzulla, who has been a DOC inmate since July

2005, testified that he too takes narcotic pain medication, and

has since he arrived at the prison for chronic back pain from

back surgeries and a motorcycle accident. Renzzulla had been on

pain medication prior to his incarceration. Both D r . Englander

and D r . Eppolito have prescribed morphine for Renzzulla at the

prison. Since July 2005, Renzzulla’s morphine dosage has

21 increased to accommodate his growing tolerance to a high of 270mg

daily.6 Because Renzzulla’s medication was not completely

relieving his pain, D r . Englander has sent him to the DHMC Pain

Management department and to the Catholic Medical Center over the

last several years to try to find a way to reduce his pain.

Neither of those offices recommended that Renzzulla’s pain

medications be reduced.

Renzzulla testified that several months ago, he began to

hear rumors that medical care would be changing and that D r .

Eppolito would be taking over pain management cases at the

prison. Approximately two months ago, Renzzulla expected to be

released on parole, and saw D r . Eppolito in order to prepare

medically to leave the prison. Inmates leave prison with a 30-

day supply of non-narcotic medications they are taking.

Accordingly, Renzzulla had to choose between tapering off of his

narcotic medications prior to his release, or withdrawing from

them on the streets after his release. Renzzulla initially chose

to try to taper his medications, but was unable to tolerate the

6 Renzzulla testified that shortly after he started taking morphine at the prison, D r . Eppolito decreased his dosage slightly, to 30mg daily from the 45mg daily D r . Englander prescribed, but D r . Englander represcribed 45mg daily a couple of months later.

22 pain, and decided he would prefer to risk withdrawal on the

street than continue the taper. Renzzulla told D r . Eppolito he

wanted to return to his effective dose of medication. At that

point, D r . Eppolito told Renzzulla that it was no longer his

choice, and that the tapering of his morphine would continue.

No other pain medication was provided to Renzzulla to treat

his pain, although h e , like Boudreau, was given Benadryl to help

him sleep. Renzzulla was prescribed Mobic, but states that he

didn’t take it because he had a heart attack six years ago, and

the packaging insert with the medication indicated that it could

cause heart attacks and strokes, particularly for people with

prior heart problems. Additionally, the insert said that Mobic

is contraindicated with one of Renzzulla’s heart medications.

Renzzulla was not paroled as anticipated. He now expects to

serve approximately three and a half more years in prison.

Renzzulla met with D r . Eppolito and told him of his change in

circumstances. Renzzulla understood that this meeting was a

“Phase Two” meeting with members of the PMC team. At this point,

Renzzulla received his first physical examination from D r .

Eppolito. D r . Eppolito also, for the first time, took a medical

history from him at that appointment. Renzzulla stated that

23 during that meeting he became agitated because he was in pain and

not getting much sleep, although the taper of his medications had

been halted by medical staff due to Renzzulla’s obvious

discomfort. After the Phase Two appointment with the PMC,

Renzzulla’s medication was left at the level at which the taper

was stopped.

Renzzulla had another appointment with D r . Eppolito on

August 1 1 , 2009, at which point D r . Eppolito and other members of

the PMC were trying to test his range of movement and physical

capabilities. Renzzulla told D r . Eppolito that he was in too

much discomfort to do any bending or twisting, or any physical

activity at all. After that meeting, D r . Eppolito, after

consultation with DOC physical therapist Bernadette Campbell,

agreed to raise Renzzulla’s morphine to 180mg per day, and also

to put him on another medication, a corticosteroid, to help with

pain.

D. Gary Porter

Gary Porter has been incarcerated at the DOC for fourteen

years. Porter testified that he began taking narcotic pain

medication at the prison seven years ago. The first four years

Porter took narcotics to relieve pain from a broken wrist. Three

24 years ago, Porter’s right shoulder was dislocated and he hurt his

left shoulder. Since then, Porter’s shoulder pain has been

managed with the use of narcotic drugs. The drugs were first

prescribed by DOC physician D r . Freedman, and since then, have

been prescribed by D r . Englander. Porter received these

medications until just prior to the hearing in this matter.

Porter testified that on June 1 8 , 2009, he met with D r .

Eppolito, at the doctor’s initiative, who he had never seen

before. The appointment slip Porter received stated that he was

to see the “Pain Clinic,” but when he arrived, he only saw D r .

Eppolito. D r . Eppolito told Porter that he was reviewing all

cases where inmates were taking narcotic drugs. D r . Eppolito

stated that it was okay for a person on the streets to take

narcotic pain medications, as those medications can be paid for

by the patient, but that the DOC cannot afford to pay for

narcotics for inmates. Porter then challenged D r . Eppolito’s

ability to adequately treat him, as D r . Eppolito had never

treated him before, and he had not reviewed all of Porter’s

files. D r . Eppolito asked Porter to lift his arms until he felt

pain. Porter replied that he always felt pain. D r . Eppolito did

not perform any other examination. D r . Eppolito then ordered

25 that Porter’s narcotic medications be tapered. Porter was

removed completely from his medications by July 3 1 , 2009.

Porter saw D r . Eppolito again on August 4 , 2009, after he

wrote a request slip stating that he had been suffering from

severe withdrawal symptoms since his medication had been reduced,

his pain levels were increasing, and he wanted for his medication

to be increased again. D r . Eppolito refused to reinstate an

effective dosage of Porter’s narcotic medication. In place of

the narcotic medication, D r . Eppolito prescribed Mobic, which did

nothing to alleviate Porter’s considerable pain.

E. Alfred Avery

Inmate Alfred Avery testified that he has been incarcerated

at the DOC for approximately five years. Avery has been

receiving narcotic pain medication at the prison for

approximately five years for back pain. Avery was born with

spina bifida, a birth defect that causes him pain. Avery’s

condition limits his ability to engage in physical activity and

exercise and even makes it difficult for him to get out of bed.

He is unable to work. Avery has been treated during his

incarceration by D r . Englander, who has treated his pain with

steroid injections and morphine.

26 Avery testified that his pain increased after he had a heart

attack a year and a half ago. Avery had heart surgery, and had

three stents placed, and had an internal defibrillator implanted

in his chest. Avery is currently waiting for a heart transplant.

Avery’s morphine prescription treats both the pain caused by his

heart condition and his back pain.

In June 2009, Avery had a medical appointment with D r .

Eppolito, which was made at D r . Eppolito’s initiative. When

Avery saw D r . Eppolito, the doctor told him that he was going to

discontinue his narcotic medication and replace it with Mobic.

Avery took the Mobic, and it caused his internal defibrillator to

go off. Avery testified that Mobic is contraindicated for

someone with his cardiac history,7 but that D r . Eppolito did not

inquire into his heart condition before changing his medication.

Dr. Eppolito told Avery that he was being removed from his

narcotic medications because he had been issued a disciplinary

infraction report alleging that two inmates had bought narcotics

from him in March 2009. The suspected buyers, however, tested

negative for narcotics, so Avery’s medications were not

7 The package insert for Mobic states that “USE OF THIS MEDICINE IS NOT RECOMMENDED if you . . . are going to have or have recently had coronary artery heart bypass (CABG) surgery. P l . Ex. 4 .

27 discontinued at the time of the alleged incident. There were no

intervening incidents that would give rise to a suspicion that

Avery was doing anything other than taking his prescribed pain

medication himself.

Dr. Eppolito also told Avery that there was too much

prescribing of narcotics occurring at the prison in general, and

that the prison was going to try other things to manage both

inmate pain and the cost of treatment. D r . Eppolito did no

physical examination. Avery stated that he was so angry that his

medication was being discontinued, he ended the meeting with D r .

Eppolito.

Avery’s medications were discontinued after a one-week

taper. Avery has not seen D r . Eppolito since the June 2009

meeting. D r . Eppolito did not see Avery when his defibrillator

went off. Avery has gone to sick call seven times since his

medication was discontinued to complain about his pain. He was

given Naproxen, but was unable to tolerate the gastrointestinal

side effects. Avery has not been given any other pain

medication. Avery testified that he now suffers from chest and

back pain and that he has recently met with D r . Englander. Dr.

Englander increased Avery’s anxiety medication and reinstated his

28 heart medication, which he had not received in eight months. D r .

Englander advised Avery, however, that while his pain medication

is out of her hands, as all narcotic pain medication was being

handled by D r . Eppolito, she would try to forward information to

Dr. Eppolito regarding the clean drug tests from March 2009 that

had cleared Avery to continue his pain medication.

Avery stated that he was told by a nurse that he was the

first inmate to be removed from pain medication. Members of the

DOC nursing staff, prior to his meeting with D r . Eppolito, had

told Avery that there were large efforts to make budget cuts

going o n , and that cutting back on medications was part of an

effort to cut expenses.

F. Douglas Kern

Inmate Douglas Kern testified that he has been incarcerated

for three and a half years. Kern suffers from back pain

resulting from degenerative disk disease that he has had, and

been treated for with narcotics, since 1995, when he was involved

in an industrial accident at work. In 1998, the State of New

Hampshire determined that Kern was totally and permanently

disabled. Prior to his 2005 incarceration, Kern was receiving

treatment from the Northeast Pain Clinic in Somersworth, New

29 Hampshire, where he was being treated with narcotic pain

medications.

Shortly after he arrived at the prison, Kern was prescribed

a narcotic pain medication to treat his back pain. At the end of

June 2009, NCF nurses told Kern that everyone was going to be

taken off of their medications. Several days later, Kern met

with D r . Eppolito, who he had never seen before. D r . Eppolito

told Kern that a review board was reviewing all of the narcotic

pain medication usage at the DOC to determine whether inmates

needed to be on the narcotics they had been prescribed.

Dr. Eppolito asked Kern how he was doing on the narcotic

medication. At the time, Kern was taking 120mg of morphine

daily. Kern advised D r . Eppolito that he felt his morphine dose

was not quite strong enough and that he felt it needed to be

increased. D r . Eppolito advised Kern that that was not going to

happen, and that he could see nothing in Kern’s file to indicate

that such a high dose of medication was appropriate. Kern then

questioned D r . Eppolito as to what qualified him to make

decisions about medication and pain management in his case when

he had never seen him before and he was not the prescribing

doctor, an orthopedic specialist, or a neurologist. Kern asked

30 Dr. Eppolito if his pain medication was being reduced due to

budget cuts, which D r . Eppolito denied.

Within a week of his meeting with D r . Eppolito, Kern’s pain

medication was reduced by half, and maintained at that level for

four weeks. Kern’s narcotic medication was replaced with a

thirty-day prescription for Mobic. After two weeks, Kern had had

no pain relief from the Mobic and stopped taking i t . After four

weeks on 60mg of morphine per day, Kern was then transferred to a

halfway house where he spent seven days detoxing from the

medication, which was not sent to the halfway house with him.

Kern was then sent back to the Minimum Security Unit at the

prison because he was deemed to be too sick to complete the

prerelease program at the halfway house, whether or not he was on

medication. Kern has not seen D r . Eppolito since the first

meeting.

III. The Pain Management Clinic

The DOC has been, for the last two years, working on

developing the PMC within the DOC. This effort came about after

the DOC medical department investigated statistical evidence

purportedly demonstrating that the DOC was prescribing narcotic

pain medication for inmates with chronic pain at a significantly

31 higher rate than another larger corrections department providing

quality care to its inmates.8 The PMC is intended, according to

the testimony of D r . Eppolito, D r . Englander, and D r . MacLeod, to

improve the delivery of treatment and improve outcomes for

inmates with chronic pain. The PMC will, ideally, establish

nutritional, physiological, therapeutic, surgical,

pharmaceutical, mental health, and medical interventions that

will serve to assist inmates in addressing the underlying problem

causing pain and thus allow them to have less pain and a better

quality of life. The PMC is designed to treat pain in a more

wholistic manner that will provide the inmate with a variety of

8 To be clear, there was minimal statistical evidence provided at the hearing. D r . MacLeod testified that another corrections department, serviced by the same company from which the DOC contracts doctors, was prescribing narcotics for chronic pain management at a significantly lower rate than the DOC medical department. D r . MacLeod, who is not a medical doctor, advised the court that he had satisfied himself that the other corrections department was providing high quality health care. Many questions are left unanswered, however, by the statistics and observations upon which these conclusions were based. For example, no evidence was presented to show that the population in the larger corrections department and the DOC were similar enough to be statistically relatable. Also, D r . MacLeod’s testimony begs the question as to how he made the determination that the other corrections department’s care was of a high quality. Finally, of course, even if valid and reliable, the statistical and observational information provided regarding narcotics dosing in the prison population does not bear on whether or not Boudreau received adequate medical care for his chronic pain.

32 measures, while minimizing the potential for harm. Importantly,

the effort to create the PMC was also motivated by the fact that

routine treatment of chronic pain with narcotic medications can

cause a number of medical problems, such as hormone suppression,

problems with immune sufficiency, and impairment of cognitive

functioning.

While D r . Eppolito was loathe to identify himself as the

head of the PMC, he is the only physician involved in the PMC,

and he is the only physician or treating medical professional at

the DOC who can prescribe medication for chronic pain. The

evidence presented made clear that ultimate responsibility for

the medical decisions made by the PMC rests with D r . Eppolito.

Dr. Eppolito testified that his intention was to evaluate

inmates’ medical history and files, meet with the inmate, and

then meet with the PMC team to determine the best plan of action

for each individual inmate. D r . Eppolito’s testimony also made

it quite clear that he is motivated, not just by the individual

patients and their situations, but by a desire t o , overall,

reduce the amount of narcotics prescribed for chronic pain

management.

33 Dr. Eppolito testified that he began to see patients, in the

context of reviewing their individual pain management situations,

in approximately mid-June 2009. This has involved reviewing

inmates’ charts, obtaining medical records not in the possession

of the DOC, and actually meeting with patients. The first

inmates to be seen were the group taking morphine to manage

chronic pain, which both D r . Englander and D r . Eppolito estimated

to be about thirty inmates. At the time of the hearing, D r .

Eppolito estimated he had met with approximately 20 of these

inmates. D r . Eppolito was unable, or unwilling, to make a guess

as to how many of these patients’ morphine prescriptions he had

terminated or modified after these meetings.

The development of the PMC is a laudable effort on the part

of the DOC medical department. According to the testimony of the

DOC witnesses, the PMC intends to utilize the talents of a number

of disciplines, including medicine, psychotherapy, psychiatry,

physical therapy, nutrition, and physiology, in tandem to treat

not just chronic pain, but the entire person who suffers from

pain. In this way, the PMC attempts to provide its patients with

their best chance at a successful, productive, and pain-free, or

pain-minimized life. The PMC, if effective, will attempt to do

34 this without incurring some of the risks presented by the methods

presently used at the prison, which consists mainly of treating

pain with narcotics and other drugs, and providing physical

therapy or service by outside professionals as necessary. The

DOC’s present methods of pain management fail to incorporate

exercise, nutrition, mental health and other factors that can

impact the experience of pain.

My understanding of the plan for the operation of the PMC is

that first, a patient’s chart, history, medical records and

present treatment are assessed to determine where a patient has

been in terms of his pain treatment. Next, D r . Eppolito meets

with the inmates to assess their current condition and treatment.

Dr. Eppolito then meets with other members of the PMC team and

the inmate to discuss a plan for the inmate’s pain treatment

going forward. If utilized as designed, and if both inmates and

DOC staff follow through with the procedures anticipated and the

plans developed, the PMC, it appears, will serve the inmates and

the institution well by providing the inmates with the

opportunity for genuine health and life improvement.

35 IV. Budgetary Issues

As noted above, a number of inmates, including Boudreau,

made reference during their testimony to having heard talk among

the DOC medical staff, including D r . Eppolito, about budgetary

cuts that were in the offing, and that were motivating planned

cuts in inmates’ medications. D r . MacLeod testified that in the

planning of the PMC and the discussions among DOC medical

personnel, including defendants here, concerning reducing the

amount of narcotics prescribed for inmates, budgetary concerns

were not a factor in deciding what medications would be

prescribed to patients. D r . Eppolito concurred that there were

no budgetary restrictions placed on his ability to prescribe

medications and that the cost of various medications did not

enter into his consideration regarding whether or not to

prescribe narcotic pain medications. D r . MacLeod also testified

that the cost of narcotic pain medication is a minimal part of

the DOC medical department’s budget, and is not something he has

considered a problem area financially. I find that there is

inadequate evidence to support Boudreau’s assertion that the

removal of his pain medication was motivated by budgetary

concerns. As I pointed out during the hearing in this matter,

36 however, and discussed below, Boudreau does not have to prove

that he was denied adequate pain treatment because it was too

expensive, he has to demonstrate that he was denied adequate pain

treatment because of the deliberate indifference of the

defendants to his serious medical need.

Discussion

I. Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the underlying action. See Jean v . Mass. State Police, 492 F.3d

2 4 , 26-27 (1st Cir. 2007). Such a situation arises when some

harm from the challenged conduct could not be adequately

redressed with traditional legal or equitable remedies following

a trial. See Ross-Simons of Warwick, Inc. v . Baccarat, Inc., 102

F.3d 1 2 , 18 (1st Cir. 1996) (finding irreparable harm where legal

remedies are inadequate); see also Acierno v . New Castle County,

40 F.3d 645, 653 (3d Cir. 1994) (explaining irreparable harm and

its effect on the contours of preliminary injunctive relief).

Absent irreparable harm, there is no need for a preliminary

injunction. The need to prevent irreparable harm, however,

37 exists only to enable the court to render a meaningful

disposition on the underlying dispute. See CMM Cable Rep., Inc.

v . Ocean Coast Props., 48 F.3d 6 1 8 , 620-21 (1st Cir. 1995)

(explaining the purpose of enjoining certain conduct as being to

“preserve the ‘status quo’ . . . to permit the trial court, upon

full adjudication of the case’s merits, more effectively to

remedy discerned wrongs”); see also Stenberg v . Cheker Oil Co.,

573 F.2d 9 2 1 , 925 (6th Cir. 1978) (“The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.”).

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Std. Oil C o . v . Monroig-Zavas, 445 F.3d 1 3 , 17-

18 (1st Cir. 2006) (discussing the requisite showing to obtain a

preliminary injunction); see also Ross-Simons, 102 F.3d at 18-19

(explaining the burden of proof for a preliminary injunction).

Those factors are: “(1) the likelihood of success on the merits;

(2) the potential for irreparable harm [to the movant] if the

injunction is denied; (3) the balance of relevant impositions,

i.e., the hardship to the nonmovant if enjoined as contrasted

38 with the hardship to the movant if no injunction issues; and (4)

the effect (if any) of the court’s ruling on the public

interest.” Esso Std. Oil, 445 F.3d at 1 8 . “The sine qua non of

this four-part inquiry is likelihood of success on the merits: if

the moving party cannot demonstrate that he is likely to succeed

in his quest, the remaining factors become matters of idle

curiosity.” New Comm Wireless Servs. v . SprintCom, Inc., 287

F.3d 1 , 9 (1st Cir. 2002). Yet, “the predicted harm and the

likelihood of success on the merits must be juxtaposed and

weighed in tandem.” Ross-Simons, 102 F.3d at 1 9 .

II. Preliminary Injunction Factors

A. Likelihood of Success on the Merits

Boudreau’s civil action raises claims alleging that he was

subject to inadequate medical care during his confinement in

violation of the Eighth Amendment.9 The crux of Boudreau’s

underlying claims is that the failure to provide him with

adequate medication or other treatment for his significant and

9 Boudreau’s complaint also asserts claims alleging retaliation and violations of state law. Because I find that Boudreau has sufficiently demonstrated likelihood of success on the merits of his inadequate medical care claim, it is not necessary for me to determine whether he is likely to prevail on his other claims for purposes of making a recommendation on Boudreau’s request for preliminary injunctive relief.

39 chronic pain violates rights guaranteed to him by the federal

constitution. “[T]he treatment a prisoner receives in prison and

the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.” Helling v . McKinney, 509 U.S. 2 5 ,

33 (1993); see Giroux v . Somerset County, 178 F.3d 2 8 , 31 (1st

Cir. 1999).

The Supreme Court has adopted a two-part test for reviewing

claims under the Eighth Amendment’s cruel and unusual punishment

clause. See Farmer v . Brennan, 511 U.S. 825, 834 (1994);

Helling, 509 U.S. at 2 5 ; Hudson v . McMillian, 503 U.S. 1 , 7

(1992). Jail officials have an obligation under the Eighth

Amendment to protect inmates from prison officials acting with

deliberate indifference to their serious medical needs. See

Farmer, 511 U.S. at 831. To assert a viable cause of action for

inadequate medical care, a prisoner must first state facts

sufficient to allege that he has not been provided with adequate

care for a serious medical need. See id.; Rhodes v . Chapman, 452

U.S. 3 3 7 , 347 (1981); Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976).

The inmate must then allege that a responsible prison official

was aware of the need or the facts from which the need could be

40 inferred, and still failed to provide treatment. See Estelle,

429 U.S. at 106.

“[A]dequate medical care” is treatment by qualified medical

personnel who provide services that are of a quality acceptable

when measured by prudent professional standards in the community,

tailored to an inmate’s particular medical needs, and that are

based on medical considerations. See United States v .

DeCologero, 821 F.2d 3 9 , 42-43 (1st Cir. 1987). This does not

mean that an inmate is entitled to the care of his or her choice,

simply that the care must meet minimal standards of adequacy.

See Feeney v . Corr. Med. Servs., 464 F.3d 1 5 8 , 162 (1st Cir.

2006) (“When a plaintiff’s allegations simply reflect a

disagreement on the appropriate course of treatment, such a

dispute with an exercise of professional judgment may present a

colorable claim of negligence, but it falls short of alleging a

constitutional violation.”) (internal citations omitted).

Deliberate indifference may be found where the medical care

provided is “so clearly inadequate as to amount to a refusal to

provide essential care.” Torraco v . Maloney, 923 F.2d 2 3 1 , 234

(1st Cir. 1991). Constraints inherent in a prison setting may

affect the choice of care provided and may be relevant to whether

41 or not prison officials provided inadequate care with a

deliberately indifferent mental state. Wilson v . Seiter, 501

U.S. 2 9 4 , 302 (1991).

A serious medical need is one that involves a substantial

risk of serious harm if it is not adequately treated. See

Barrett v . Coplan, 292 F. Supp. 2d 2 8 1 , 285 (D.N.H. 2003);

Kosilek v . Maloney, 221 F. Supp. 2d 156, 180 (D. Mass. 2002)

(citing Farmer, 511 U.S. at 835-47); see also Gaudreault v .

Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)

(defining a serious medical need as one “that has been diagnosed

by a physician as mandating treatment, or one that is so obvious

that even a lay person would easily recognize the necessity for a

doctor’s attention.”) (internal citations omitted). The

undisputed testimony from Boudreau as well as Drs. Eppolito and

Englander, was that Boudreau’s back condition is serious,

chronic, likely permanent, and extremely painful. I find that

Boudreau unquestionably has a serious medical need which requires

treatment, and that the DOC medical department is keenly aware of

both his condition and his needs.

To satisfy the second prong of an Eighth Amendment claim, a

prisoner must allege that prison officials “have a ‘sufficiently

42 culpable state of mind.’ In prison conditions cases, that state

of mind is one of ‘deliberate indifference’ to inmate health or

safety.” Farmer, 511 U.S. at 834 (internal citations omitted).

Dr. Eppolito’s approach to pain management appears to begin with

the presumption that, due to its potentially negative health

effects, the use of narcotic pain medication is to be avoided

unless absolutely necessary. I find that, while his intentions

may be good in terms of granting greater and less harmful pain

control to the prison population in general, that at least in

Boudreau’s case, D r . Eppolito failed to adequately treat

Boudreau’s serious medical condition.

Dr. Eppolito acted with deliberate indifference to

Boudreau’s pain. D r . Eppolito prescribed medications that

Boudreau couldn’t take due to his heart condition or intolerable

side effects, and, despite the availability of other pain

medications, such as Cymbalta or Lyrica, other narcotics or even

the option of halting the MS Contin taper, D r . Eppolito failed to

prescribe any medication or treatment that helped to alleviate

Boudreau’s pain.

Dr. Eppolito’s claim that he felt Boudreau should be tapered

off of the medication so as to be seen by D r . Beasley in his

43 native state is not credible. Despite deciding to taper

Boudreau’s medication on June 3 0 , potentially having Boudreau

nearly off of the medication by his July 20 appointment with D r .

Beasley, D r . Eppolito waited until July 1 4 , six days before the

appointment to begin the taper. This hardly put Boudreau in his

native state. Further, there is no indication that D r . Eppolito

ever contacted D r . Beasley to ask what he would prefer in terms

of Boudreau’s medications or that D r . Beasley ever suggested that

Boudreau should be seen in an unmedicated state.

As stated, D r . Eppolito waited two weeks beyond the first

meeting to make that order, although all of his work on

Boudreau’s case was done within a half an hour of his initial

appointment with Boudreau. D r . Eppolito testified that he left

Boudreau on a potentially dangerous medication for two weeks

after determining it should be stopped because he wanted a letter

from D r . Beasley in Boudreau’s file supporting that decision.

Dr. Eppolito wanted the letter, not to shore up his medical

position or to assure himself that this was the right decision to

make, but to help himself in the lawsuit he anticipated would be

filed as soon as he gave the order to reduce the medication, so

that when he was sued, he could rely on that letter as the reason

44 he tapered Boudreau’s medications, rather than have to bear

responsibility, and potentially face legal liability, for that

decision, because he believed he’d be sued. In D r . Eppolito’s

own words, his intentions were to “cover [his] bottom,” not to

provide the best possible care for Boudreau. That is why D r .

Eppolito reported to the doctors he did consult with that

Boudreau was seeking an increase in medication.10 I found

Boudreau’s testimony that he did not seek an increase in morphine

from D r . Eppolito to be credible, and find that D r . Eppolito

relied improperly on D r . Englander’s outdated notes and

Boudreau’s hostility to support his assertion that Boudreau

requested an increase as well as to solidify his defense to

anticipated litigation.

10 There was some confusion among the witnesses, which, after hearing the testimony and reading the medical records as to when Boudreau requested that D r . Englander raise his medication dosage. Some of the witnesses relied on D r . Beasley’s March 17 report that indicated that Boudreau was referred to him for continued pain on a 210mg daily MS Contin dose. It appears, however, that the T.E.N.S. Unit mostly addressed that pain. Boud Boudreau’s actual request for additional medications was made to Dr. Englander when Boudreau saw her in either October or December 2008, which request prompted the appointment with D r . Beasley. Dr. Beasley, knowing that request had been made prior to the March 2009 appointment, did not recommend a taper of medications, but instead recommended branch blocks and adding more medications to the pain management plan for Boudreau while maintaining Boudreau on his prescribed dosage of MS Contin.

45 Dr. Eppolito’s in-court speech avowing his commitment to

treating Boudreau’s pain, to welcoming him into the PMC with open

arms, and to having no ill feelings whatsoever to a man who, only

weeks ago, he claims, put him in fear for his life was, I find,

self-serving and disingenuous posturing created for the benefit

of the Court. D r . Eppolito’s concern for Boudreau would have

been more convincing had D r . Eppolito even attempted to see

Boudreau since July 1 4 , prescribed another medication, or taken

any steps at all toward helping to relieve Boudreau’s

excruciating pain. A vague intention to meet with other PMC

staff members to discuss Boudreau’s case “in the near future”

does not adequately counter Boudreau’s proof that D r . Eppolito

was, and remains, deliberately indifferent to his present ongoing

Dr. Eppolito, after ordering the taper, did not follow up

with Boudreau to assess his pain or the impact of the taper. He

did not know whether or not Boudreau was receiving physical

therapy, he clearly did not know of Boudreau’s reaction to

Neurontin or Mobic, as he never prescribed Cymbalta, Lyrica, or

anything else to replace them, and he had no specific plan to

meet with the pain management team regarding Boudreau’s care

46 until such time as his name “came up on the list.” As I stated

in court, I believe that D r . Eppolito jumped the gun in reducing

Boudreau’s medication. In doing s o , D r . Eppolito usurped the

function of the PMC team. The testimony was clear that inmates

should be assessed to determine their present condition, should

have the opportunity to be seen and evaluated by the PMC team,

and then meet with the team in order that an appropriate plan

might be developed and then implemented. In this case, D r .

Eppolito briefly saw Boudreau, never examined him, never met with

the team or made any specific plan to meet with the PMC team

members, and simply implemented a taper of Boudreau’s

medications. Medications, while ultimately the responsibility of

Dr. Eppolito as the physician member of the PMC, were, as I

understood the testimony, to be considered as part of a wholistic

treatment plan.

It is beyond question that an extremely antagonistic

relationship has developed between D r . Eppolito and Boudreau.

When he waited two weeks to begin a medication taper for no other

reason than to have a letter in the file to protect himself, D r .

Eppolito demonstrated that he will place his legal interests

above Boudreau’s medical needs. Accordingly, the Court finds

47 that D r . Eppolito can not function effectively as Boudreau’s

physician any longer. Further, because he is the head of the

PMC, the Court finds that the PMC is likely to be affected by D r .

Eppolito’s bias against Boudreau, and is thus unlikely to be able

to develop a treatment plan free from D r . Eppolito’s bias toward

Boudreau. Nevertheless, the Court must insure that Boudreau

receives the pain management that he needs. Accordingly, I find

that the only way to have Boudreau’s pain properly assessed and

treated is to direct that Boudreau be evaluated by a pain

management specialist who is entirely independent of the prison,

at the DOC’s expense, within thirty days of the date this Report

and Recommendation is approved, i f , in fact, it is approved.11

The DOC will be directed to provide the assessing physician with

a copy of Boudreau’s entire medical file in its possession, as

well as a copy of this Report and Recommendation. The defendants

are specifically directed not to say, write, or otherwise

communicate anything, directly or indirectly, except what is

contained in the medical records, to the assessing physician to

attempt to influence that physician’s opinion one way or another

with regard to appropriate treatment for Boudreau.

11 The independent medical professional may b e , but does not have to b e , D r . Beasley.

48 While I would never suggest that a DOC physician was

required to put himself or herself in harm’s way to treat an

aggressive patient in order to demonstrate that he was not

deliberately indifferent to that patient’s needs, or that it is

acceptable for a patient to act in a threatening manner in order

that he might be allowed to choose the doctor or treatment he

wants, there must be some way for the DOC to recognize that some

doctor/patient relationships may be unsuccessful, and need either

to be repaired, or replaced with a relationship that works.

Similarly, it should hardly be surprising to anyone working in a

prison context that some prisoners with chronic pain might not be

agreeable and pleasant when receiving bad news. A prison medical

department must be able to accommodate those situations.

B. Irreparable Harm

The evidence before the Court demonstrates that, if no

injunction is granted, Boudreau will continue to suffer from

excruciating pain. The sole source of pain relief plaintiff has

had, his T.E.N.S. Unit, was not even functioning at the start of

the hearing because Boudreau was not provided with electrode pads

or batteries until after his attorney advised the court of the

situation. The prison provided those items to Boudreau that

49 night. The evidence demonstrated that the DOC medical staff has

denied him adequate pain treatment and have no plan in place to

provide him with additional care. This i s , I find, beneath the

level of adequacy contemplated by the Eight Amendment. I find

further that Boudreau is demonstrably likely to suffer

irreparable harm if the lack of treatment for his pain is allowed

to continue.

C. Balance of Hardships

The DOC has been medicating Boudreau for four years for

pain, and witnesses testified that, through the PMC, the DOC

medical department is well-equipped to treat chronic pain within

the institution. Accordingly, given the suffering Boudreau will

endure without treatment, and the DOC’s demonstrated ability to

treat chronic pain, I find that the balance of hardships weighs

in favor of granting preliminary injunctive relief in this case.

D. Public Interest

The public interest is well-served by assuring adherence to

the Eighth Amendment prohibition against cruel and unusual

punishment that includes allowing human beings to live in severe

pain without adequate treatment when such treatment is available.

There is no public interest served by failing to provide adequate

50 medical care to inmates in accordance with their documented

serious medical needs. For that reason, I find the public

interest weighs in favor of issuance of a preliminary injunction

in this case.

Conclusion

Because I find that Boudreau is likely to succeed on the

merits of his underlying claims, that he will likely be

irreparably harmed in the absence of an injunction, that the

balance of hardships weighs in favor of the plaintiff, and that

the public interest is best served in this matter by granting the

requested relief, I recommend that the following injunction

issue:

1. The DOC is directed to arrange to have Boudreau

evaluated by a physician specialist in pain management who is

entirely independent of the prison12 within thirty days of the

date this Report and Recommendation is approved, i f , in fact, it

is approved. The assessing physician should make specific

recommendations for Boudreau’s pain treatment going forward,

independent from the influence of all DOC physicians, nurses, and

personnel. This evaluation will be at the DOC’s expense.

12 The independent medical professional may b e , but does not have to b e , D r . Beasley.

51 2. The DOC is directed to provide the assessing physician

with a copy of Boudreau’s entire medical file, as well as a copy

of this Report and Recommendation.

3. The defendants are specifically directed not to say,

write, or otherwise communicate anything, directly or indirectly,

except what is contained in the medical records, to the assessing

physician to attempt to sway that physician’s opinion one way or

another with regard to appropriate treatment for Boudreau.

4. The defendants are directed to follow any and all of

the recommendations made by the assessing physician.

5. If the defendants feel they cannot provide care for

Boudreau in accordance with the recommendation of the pain

specialist, they must file a motion showing cause, within 7 days

of the injunction order in this case or within 7 days of

receiving the specialist’s recommendations, as to why they cannot

follow the doctor’s recommendations may not be followed.

As previously noted, relations between Boudreau and the DOC

medical staff are clearly strained. I leave it to the parties in

this case to repair those relationships if possible, or to figure

out how to otherwise to insure the smooth provision of adequate

medical care to Boudreau in the future.

52 Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v . Gordon, 979 F.2d 1 1 , 13-14 (1st Cir. 1992);

United States v . Valencia-Copete, 792 F.2d 4 , 6 (1st Cir. 1986).

__________________ James R. Muirhead United-^tates Magistrate Judge

Date: September 4 , 2009

cc: Michael J. Sheehan, Esq. James W . Kennedy, Esq. Edward M . Kaplan, Esq.