NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-161
EDWARD S. O'BRIEN
vs.
CHARLES KING & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Edward O'Brien, appeals from a Superior
Court judgment dismissing his operative complaint under Mass. R.
Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Because we conclude
that most of the plaintiff's claims are moot, and that his
surviving claims for damages are without merit, we affirm.
Background. We recite the facts as they are asserted in
the plaintiff's complaint, accepting them as true for purposes
of evaluating the motion to dismiss. Braley v. Bates, 100 Mass.
App. Ct. 259, 260 (2021). The plaintiff has been incarcerated
at the North Central Correctional Institution at Gardner (NCCI-
Gardner) throughout the pendency of this action. The plaintiff
suffers from medical conditions causing him pain in his feet.
1 Wellpath, LLC; Kelly Ryder; and Lisa Black Sholudko. In 2015, at the recommendation of his podiatrist, Charles King,
the plaintiff began purchasing shock absorbent sneakers through
NCCI-Gardner's canteen provider. The plaintiff purchased these
sneakers through the canteen provider without incident for
several years.2 However, in April 2020, the plaintiff was
informed that he could no longer purchase sneakers from the
canteen provider, and that all future requests for medical
footwear must be filled and supplied by NCCI-Gardner's medical
vendor, Wellpath, LLC (Wellpath). In August 2020, the plaintiff
received a pair of shock absorbent sneakers pursuant to this new
protocol.
Approximately one year later, in August 2021, the plaintiff
was told that he could not receive a new order for shock
absorbent sneakers because Wellpath's health services
administrator, Kelly Ryder, was "doing away" with special order
sneakers. A nurse told the plaintiff that if he wanted medical
footwear, he could be provided with "Propet Orthopedic shoes
and/or gel insoles."3 In response, the plaintiff informed the
nurse that Propet Orthopedic shoes and gel insoles had been
2 At one point in 2019, the plaintiff was told that he needed an updated treatment order before he could purchase a new pair of sneakers from the canteen provider. The plaintiff filed a grievance, which was partially approved, so he was able to successfully purchase a new pair of sneakers. 3 We understand "Propet Orthopedic shoes" to be a specific type
or brand of footwear distinct from the "shock absorbent sneakers" the plaintiff preferred.
2 prescribed to him in the past, and that King had determined that
those products did not relieve the plaintiff's pain. The nurse
told the plaintiff that she would discuss his concerns with
Ryder; sometime later, the nurse sent the plaintiff a letter
confirming that his treatment plan had been changed from shock
absorbent sneakers to Propet Orthopedic shoes and gel insoles.
In response to this letter, the plaintiff filed a medical
grievance requesting that his treatment plan be changed back to
shock absorbent sneakers. Ryder did not respond to the
grievance within the allotted ten-day period, so the plaintiff
filed a grievance appeal. Approximately three weeks later, the
plaintiff received a letter from Wellpath's grievance and
appeals administrator, Lisa Black Sholudko, informing him that
she would not process his grievance appeal because he was
required to have received a response to his grievance before
appealing. This letter contained the requisite response to the
plaintiff's grievance, so the plaintiff filed an updated
grievance appeal. Sholudko indicated that, in response to the
plaintiff's grievance, Wellpath had authorized issuance to the
plaintiff of gel insoles; the insoles at issue were the same
ones that the plaintiff had already indicated did not relieve
his foot pain. The plaintiff did not prevail on his appeal as
it related to his request for shock absorbent sneakers.
3 After receiving the response to his grievance appeal, the
plaintiff filed a complaint in the Superior Court, alleging that
by changing his treatment plan, the defendants (1) violated his
right to be free from cruel and unusual punishment under the
Eighth Amendment to the United States Constitution and art. 26
of the Massachusetts Declaration of Rights, (2) violated his due
process rights under the Fourteenth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights, and (3) conspired to violate his civil rights under
42 U.S.C. § 1983. The plaintiff requested declaratory and
injunctive relief, as well as monetary damages. A Superior
Court judge dismissed the complaint pursuant to Mass. R. Civ. P.
12 (b) (6), and the plaintiff appealed.
Two days after filing his notice of appeal, the plaintiff
received the requested shock absorbent sneakers. Accordingly,
his claims for declaratory and injunctive relief are now moot,
and as to them the appeal is dismissed. As to the plaintiff's
claims for damages, although they are not moot, we affirm the
judgment of dismissal.
Discussion. 1. Mootness. Given that the plaintiff
received the requested sneakers two days after filing his notice
of appeal, we first conclude that any claims for declaratory and
injunctive relief are moot. "[L]itigation is considered moot
when the party who claimed to be aggrieved ceases to have a
4 personal stake in its outcome. A party no longer has a personal
stake in a case where a court can order no further effective
relief." Troila v. Department of Correction, 490 Mass. 1013,
1014 (2022) (quotations and citation omitted). Here, since the
plaintiff has received the requested footwear, he would no
longer benefit from an order requiring the defendants to
reinstate his original treatment plan, nor would he benefit from
a declaratory judgment stating that the defendants violated his
constitutional rights. See Malloy v. Department of Correction,
487 Mass. 482, 491 (2021) ("Because the plaintiffs in this case
have achieved the outcome that they sought in their complaint,
the dispute between the parties is now moot"). Contrast
LaChance v. Commissioner of Correction, 475 Mass. 757, 769-770
(2016). Accordingly, all claims for declaratory and injunctive
relief are moot.4
2. Dismissal of claims under 42 U.S.C. § 1983. "[W]here
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-161
EDWARD S. O'BRIEN
vs.
CHARLES KING & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Edward O'Brien, appeals from a Superior
Court judgment dismissing his operative complaint under Mass. R.
Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Because we conclude
that most of the plaintiff's claims are moot, and that his
surviving claims for damages are without merit, we affirm.
Background. We recite the facts as they are asserted in
the plaintiff's complaint, accepting them as true for purposes
of evaluating the motion to dismiss. Braley v. Bates, 100 Mass.
App. Ct. 259, 260 (2021). The plaintiff has been incarcerated
at the North Central Correctional Institution at Gardner (NCCI-
Gardner) throughout the pendency of this action. The plaintiff
suffers from medical conditions causing him pain in his feet.
1 Wellpath, LLC; Kelly Ryder; and Lisa Black Sholudko. In 2015, at the recommendation of his podiatrist, Charles King,
the plaintiff began purchasing shock absorbent sneakers through
NCCI-Gardner's canteen provider. The plaintiff purchased these
sneakers through the canteen provider without incident for
several years.2 However, in April 2020, the plaintiff was
informed that he could no longer purchase sneakers from the
canteen provider, and that all future requests for medical
footwear must be filled and supplied by NCCI-Gardner's medical
vendor, Wellpath, LLC (Wellpath). In August 2020, the plaintiff
received a pair of shock absorbent sneakers pursuant to this new
protocol.
Approximately one year later, in August 2021, the plaintiff
was told that he could not receive a new order for shock
absorbent sneakers because Wellpath's health services
administrator, Kelly Ryder, was "doing away" with special order
sneakers. A nurse told the plaintiff that if he wanted medical
footwear, he could be provided with "Propet Orthopedic shoes
and/or gel insoles."3 In response, the plaintiff informed the
nurse that Propet Orthopedic shoes and gel insoles had been
2 At one point in 2019, the plaintiff was told that he needed an updated treatment order before he could purchase a new pair of sneakers from the canteen provider. The plaintiff filed a grievance, which was partially approved, so he was able to successfully purchase a new pair of sneakers. 3 We understand "Propet Orthopedic shoes" to be a specific type
or brand of footwear distinct from the "shock absorbent sneakers" the plaintiff preferred.
2 prescribed to him in the past, and that King had determined that
those products did not relieve the plaintiff's pain. The nurse
told the plaintiff that she would discuss his concerns with
Ryder; sometime later, the nurse sent the plaintiff a letter
confirming that his treatment plan had been changed from shock
absorbent sneakers to Propet Orthopedic shoes and gel insoles.
In response to this letter, the plaintiff filed a medical
grievance requesting that his treatment plan be changed back to
shock absorbent sneakers. Ryder did not respond to the
grievance within the allotted ten-day period, so the plaintiff
filed a grievance appeal. Approximately three weeks later, the
plaintiff received a letter from Wellpath's grievance and
appeals administrator, Lisa Black Sholudko, informing him that
she would not process his grievance appeal because he was
required to have received a response to his grievance before
appealing. This letter contained the requisite response to the
plaintiff's grievance, so the plaintiff filed an updated
grievance appeal. Sholudko indicated that, in response to the
plaintiff's grievance, Wellpath had authorized issuance to the
plaintiff of gel insoles; the insoles at issue were the same
ones that the plaintiff had already indicated did not relieve
his foot pain. The plaintiff did not prevail on his appeal as
it related to his request for shock absorbent sneakers.
3 After receiving the response to his grievance appeal, the
plaintiff filed a complaint in the Superior Court, alleging that
by changing his treatment plan, the defendants (1) violated his
right to be free from cruel and unusual punishment under the
Eighth Amendment to the United States Constitution and art. 26
of the Massachusetts Declaration of Rights, (2) violated his due
process rights under the Fourteenth Amendment to the United
States Constitution and art. 12 of the Massachusetts Declaration
of Rights, and (3) conspired to violate his civil rights under
42 U.S.C. § 1983. The plaintiff requested declaratory and
injunctive relief, as well as monetary damages. A Superior
Court judge dismissed the complaint pursuant to Mass. R. Civ. P.
12 (b) (6), and the plaintiff appealed.
Two days after filing his notice of appeal, the plaintiff
received the requested shock absorbent sneakers. Accordingly,
his claims for declaratory and injunctive relief are now moot,
and as to them the appeal is dismissed. As to the plaintiff's
claims for damages, although they are not moot, we affirm the
judgment of dismissal.
Discussion. 1. Mootness. Given that the plaintiff
received the requested sneakers two days after filing his notice
of appeal, we first conclude that any claims for declaratory and
injunctive relief are moot. "[L]itigation is considered moot
when the party who claimed to be aggrieved ceases to have a
4 personal stake in its outcome. A party no longer has a personal
stake in a case where a court can order no further effective
relief." Troila v. Department of Correction, 490 Mass. 1013,
1014 (2022) (quotations and citation omitted). Here, since the
plaintiff has received the requested footwear, he would no
longer benefit from an order requiring the defendants to
reinstate his original treatment plan, nor would he benefit from
a declaratory judgment stating that the defendants violated his
constitutional rights. See Malloy v. Department of Correction,
487 Mass. 482, 491 (2021) ("Because the plaintiffs in this case
have achieved the outcome that they sought in their complaint,
the dispute between the parties is now moot"). Contrast
LaChance v. Commissioner of Correction, 475 Mass. 757, 769-770
(2016). Accordingly, all claims for declaratory and injunctive
relief are moot.4
2. Dismissal of claims under 42 U.S.C. § 1983. "[W]here
[a] complaint includes claims of constitutional and statutory
violations under the Federal and State civil rights acts, and
4 Even assuming that the circumstances underpinning the plaintiff's claims for declaratory and injunctive relief here are "capable of repetition," we do not view them as "evading review," First Nat'l Bank of Boston v. Haufler, 377 Mass. 209, 211 (1979), and we therefore decline to exercise our discretion to consider them. Cf. Harmon v. Commissioner of Correction, 487 Mass. 470, 475 (2021), quoting Haufler, supra at 211 ("An issue apt to evade review is one which tends to arise only in circumstances that create a substantial likelihood of mootness prior to completion of the appellate process").
5 the complaint, in addition to injunctive and declaratory relief,
also includes . . . a demand for damages," the claim for damages
is not moot. Jiles v. Department of Correction, 55 Mass. App.
Ct. 658, 661 n.5 (2002). Accordingly, since we read the
plaintiff's complaint to have sought damages under the Federal
civil rights statute, see 42 U.S.C. § 1983, his claims under the
Federal constitution are not moot, at least as applied to the
defendants in their individual capacities.5 By contrast, the
plaintiff cannot recover damages for any alleged State
constitutional violations because he has not sued under any
applicable procedural statute, such as the Massachusetts Civil
Rights Act. See Doe, Sex Offender Registry Bd. No. 474362 v.
Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 64-65 (2018).
a. Standard of review. Given that the plaintiff's request
for damages under § 1983 is not moot, we turn now to the judge's
dismissal of his Federal constitutional claims. "We review the
allowance of a motion to dismiss de novo, accepting as true the
5 The plaintiff's claims for damages, insofar as they are asserted against the defendants in their official capacities, properly were dismissed because "the Commonwealth and its officers are generally immune from suits for damages for actions taken as State officers, unless the Legislature has acted expressly to abrogate that immunity." Doe, Sex Offender Registry Bd. No. 474362 v. Sex Offender Registry Bd., 94 Mass. App. Ct. 52, 64 (2018). Furthermore, the claim against Wellpath properly was dismissed "because there is no respondeat superior liability under section 1983." Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981).
6 facts alleged in the plaintiff's complaint as well as any
favorable inferences that reasonably can be drawn from them"
(quotation omitted). Braley, 100 Mass. App. Ct. at 260. "To
survive a motion to dismiss, the pleading stage requires factual
allegations plausibly suggesting (not merely consistent with) an
entitlement to relief" (quotation omitted). Id. at 261.
Here, we conclude that the plaintiff's claims under § 1983
were properly dismissed because the complaint did not allege
sufficient facts to establish a plausible violation of his
Federal constitutional rights. A plaintiff is entitled to
relief under § 1983 if he can establish "(1) that the defendants
acted 'under color of state law' and (2) that the defendants
deprived [him] of rights, privileges, or immunities secured by
the Constitution or laws of the United States." Appleton v.
Hudson, 397 Mass. 812, 818 (1986), quoting Parratt v. Taylor,
451 U.S. 527, 535 (1981). Because we conclude that the factual
allegations in the complaint do not amount to plausible
violations of the plaintiff's Eighth or Fourteenth Amendment
rights, we affirm.
b. Eighth Amendment. First, the plaintiff claims that the
defendants' refusal to provide him with shock absorbent sneakers
constituted cruel and unusual punishment in violation of his
Eighth Amendment rights. To sustain a claim under 42 U.S.C.
§ 1983 for cruel and unusual punishment by failing to provide
7 adequate medical care, "a prisoner must allege acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106
(1976). "In this context, an official acts with deliberate
indifference where 'he knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it." Earielo v. Carlo, 98 Mass.
App. Ct. 110, 116 (2020), quoting Farmer v. Brennan, 511 U.S.
825, 847 (1994).
Here, the plaintiff does not allege sufficient facts to
plausibly suggest that the defendants knowingly disregarded a
serious or lasting medical risk by changing his treatment plan.
See Earielo, 98 Mass. App. Ct. at 117. We will not say that the
temporary deprivation of the plaintiff's preferred or ideal
medical footwear amounts to deliberate indifference under the
circumstances. See Torres v. Commissioner of Correction, 427
Mass. 611, 614, cert. denied, 525 U.S. 1017 (1998) ("whether
prison conditions are sufficiently harmful to establish an
Eighth Amendment violation, is a purely legal determination for
the court to make"). Thus, we affirm the judge's dismissal of
the plaintiff's Eighth Amendment claim.
c. Due process. Second, the plaintiff claims that the
defendants violated his due process rights under the Fourteenth
Amendment by (1) failing to respond to his medical grievance
8 within ten days, and (2) changing his treatment plan without
providing him with specific reasons for the change, in violation
of prison policy.6
People who are incarcerated are entitled to the protections
of due process where there is an existing liberty or property
interest at stake. Torres, 427 Mass. at 617. However, these
liberty and property interests "will be generally limited to
freedom from restraint which imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life." Id., quoting Sandin v. Conner, 515 U.S. 472, 484
(1995). Here, we conclude that the denial of the plaintiff's
preferred footwear is neither related to freedom of restraint
nor an atypical and significant hardship.7 Accordingly, the
plaintiff does not have a liberty or property interest in his
preferred treatment plan, and his due process claim fails as a
matter of law. See Niemic v. Umass Correctional Health, 89
F. Supp. 3d 193, 210 (D. Mass. 2015) ("Failure to receive one's
preferred pain medication or treatment program is neither
6 Relevant here, 103 DOC § 630.12(4) (2023) states, "All consultant recommendations not being followed shall . . . be recorded by the contractual provider in the progress notes with specific reasons written as to why those recommendations are not being followed." 7 We consider this particularly true given that the plaintiff's
medical needs and treatment plan will necessarily change throughout the course of his incarceration. Indeed, this point was underscored at oral argument, when the plaintiff stated that he has another foot surgery planned in the next year.
9 related to freedom of restraint nor an atypical and significant
hardship" [quotation omitted]).
3. Conclusion. So much of the plaintiff's appeal as
pertains to his claims for injunctive and declaratory relief is
dismissed as moot. In all other respects the judgment is
affirmed.
So ordered.
By the Court (Vuono, Milkey & Hand, JJ.8),
Assistant Clerk
Entered: February 2, 2024.
8 The panelists are listed in order of seniority.