EDWARD S. O'BRIEN v. CHARLES KING & Others.

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.

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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.

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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

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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).

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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

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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

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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.

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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.

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