Lopes v. Riendeau (177 F. Supp. 3d 634, 2016)

ORDER

GORTON, United . States District Judge

After careful consideration- of the objections of defendants Dyana Nickl -and Geraldine Riendeau (Docket No. 122) and defendants Barbara Berg, Shawna Nasuti, Paul Caratazzola, Patricia Davenport-Mel-lo and Massachusetts Partnership for Correctional Healthcare (“MPCH”) (Docket No. 123) to the Report and Recommendation (“R&R”) of Magistrate Judge Marianne B. Bowler (Docket No. Í20), the Court OVERRULES

1) the objections of defendants Dyana Nickl and Geraldine Riendau as raising new arguments that were not initially presented to the Magistrate Judge, and

2) the objections of defendants Barbara Berg, Shawna Nasuti, Paul Carataz-zola, Patricia Davenport-Mello and MPCH,

a) with respect to the Article 26 claim, because motions for judgment on the pleadings and motions for summary judgment do not share the same legal standards,

b) with respect to the claim brought under the Massachusetts Tort Claims Act, because they have raised new arguments that- were not initially presented to the Magistrate Judge, and

c) with respect to the retaliation claim, because they have failed to assert specifically that the claim is barred by the exhaustion requirement of the Prisoner Litigation Reform. Act (“PLRA”).

Accordingly, the R&R is ACCEPTED AND ADOPTED in its entirety.

REPORT AND RECOMMENDATION RE: MPCH DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (DOCKET ENTRY # 97); DEFENDANTS GERALDINE RIENDEAU AND DYANA NICKL’S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 99); PRO SE PLAINTIFF’S MOTION FOR RELIEF FROM JUDGMENT (DOCKET ENTRY #92)

BOWLER, United States Magistrate Judge

Pending before this court is a motion for judgment on the pleadings under Fed. R.Civ.P. 12(c) (“Rule 12(c)”) filed by defendants Barbara Berg (“Berg”), Shawna Na-suti, N.P. (“Nasuti”), Paul Caratazzola (“Caratazzola”), Patricia Davenport-Mello (“Davenport”) and Massachusetts Partnership for Correctional Healthcare (“MPCH”) (collectively “MPCH defendants”). (Docket Entry # 97). Defendants Geraldine Riendeau, R.N. (“Riendeau”), Dyana Nickl (“Nickl”) and UMass Correctional Health (“UMCH”), move for summary judgment under Fed.R.Civ.P. 56 (“Rule 56”) on the retaliation and Eighth Amendment medical claims under 42 U.S.C. § 1983 (“section 1983”). (Docket Entry ## 99,101). In addition to challenging the merits of each claim, they submit that plaintiff failed to exhaust administrative remedies with respect to the Eighth Amendment claim for alternative hepatitis C treatment and a liver transplant. (Docket Entry #101, § IV). They also seek summary judgment on the state law claims due to lack of exhaustion under Massachusetts General Laws chapter 127 (“chapter 127”) and their immunity under Massachusetts General Laws chapter 258, section two. (Docket Entry ## 99,101).

Also pending before this court is a motion for relief under Fed.R.Civ.P. 60(b)(1) and 60(b)(2) (“Rule 60(b)”) filed by plaintiff, an inmate at OCCC. (Docket Entry # 92). The motion seeks relief from a March 24, 2015 Order by the district judge (Docket Entry # 67), which accepted in part and rejected in part this court’s March 2, 2015 Report and Recommendation.

PROCEDURAL BACKGROUND

Plaintiff filed this civil rights action pro se seeking medical care in the form of alternative medications, namely, bocepre-vir and telaprevir, to treat his hepatitis C and, once stabilized, a liver transplaint. (Docket Entry # 1, ¶¶ 8, 18, 24). He alleges that Riendeau, Lawrence Weiner (“Weiner”), Nickl, UMCH, Berg, Nasuti, Caratazzola, Davenport, MPCH, Riendeau and Nickl (“defendants”) were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983 (“section 1983”). Liberally construing the pro se complaint, it also raises a retaliation claim against Weiner, Riendeau, her employer (UMCH), Berg, and her employer (MPCH) and that Weiner “palmed off’ plaintiffs internal complaint to Nickl. (Docket Entry # 1, ¶¶ 14-17). In addition to the section 1983 retaliation claim, the complaint sets out causes of action for denied or inadequate medical care against defendants under: (1) section 1983; (2) article 26 of the Massachusetts Declaration of Rights; and (3) the Massachusetts Tort Claims Act, Massachusetts General Laws chapter 258, section two (“MTCA” or “chapter 258”). In addition to access to the alternative medications and a liver transplant, plaintiff seeks compensatory and punitive damages. (Docket Entry # 1, ¶¶ 18,24).'

On March 2, 2015, this court issued the Report and Recommendation. The opinion recommended allowing the MPCH defendants’ summary judgment motion on the Eighth Amendment claim - against the MPCH defendants given the failure to set out a viable claim of inadequate or denied medical care regarding the failure to prescribe the alternative medications (boce-previr and telaprevir) and provide plaintiff a liver transplant. Because MPCH contracted to provide the medical care at OCCC in July 2013 (Docket Entry # 33-1, p. 2), the Report and Recommendation addressed the' deliberate indifference of the MPCH defendants “beginning in July 2013” as opposed before July 2013 when UMCH provided the services. (Docket Entry # 60, pp. 6, 33).

The opinion additionally recommended denying the MPCH defendants’ summary judgment motion based on administrative exhaustion under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), because it was a genuine issue of material fact as to whether a January 2015 grievance seeking new drugs to treat plaintiffs hepatitis C satisfied the PLRA. (Docket Entry #60, 27-29), This court also addressed and rejected plaintiffs PLRA exhaustion arguments as a means to avoid summary judgment regarding a number of other grievances. (Docket Entry # 60). Finally, the opinion recommended denying the MPCH defendants’ summary judgment on the state law claims due to lack of exhaustion under section 38F of chapter 127 in light of a genuinely disputed material fact as to whether plaintiffs medical condition and health fell within the statute’s exception for “exigent circumstances.” (Docket Entry #60, pp. 29-30).

On March 24, 2015, the district judge accepted the recommendation to allow the MPCH defendants’ summary judgment motion on the section 1983 Eighth Amendment claim, rejected this court’s determination that there remained a genuine issue of material fact as to whether the January 2015 grievance and appeal satisfied the PLRA and otherwise accepted the Report and Recommendation. Thereafter, plaintiff filed the Rule 60(b) motion, Riendeau and Nickl filed the summary judgment motion and the MPCH defendants filed the Rule 12(c) motion,

I. Rule 60(b) Motion

Plaintiff seeks relief under Rule 60(b)(1) and 60(b)(2) on a number of grounds. Under Rule 60(b)(1), he maintains- that this court made a mistake'by: relying on hearsay to assess the facts; faulting plaintiff for not appealing July 2012 and November 2013 grievances; erroneously holding that plaintiff should have appealed the November 2013 grievance even though it was approved; and advancing a new “theory of defense of sovereign immunity.” (Docket Entry # 94). Under Rule 60(b)(2), plaintiff seeks to add new evidence consisting of the grievance policy at' OCCC prior to July 2013, an August 20, 2014 letter from the Health Services Division of the Massachusetts Department of Correction and print outs from a website of the National Institutes of Health (“NIH”) regarding boce-previr and telaprevir.

Rule 60(b) sets out a stringent standard to obtain relief from an order. See Daniels v. Agin, 736 F.3d 70, 86 (1st Cir.2013) (“ ‘relief under Rule 60(b) is extraordinary in nature and motions invoking that rule should be granted sparingly’”) (internal brackets and capitalization omitted). As explained by the First Circuit in Fisher:

A party seeking relief under Rule 60(b) must demonstrate “at a bare minimum, that his motion is timely; that' exceptional circumstances exist, favoring extraordinary relief; that if the judgment is set aside, he has the right stuff to mount a potentially meritorious claim or defense; and that no unfair prejudice will accrue to the opposing parties should the motion be granted.” ■ ■

Fisher v. Kadant, Inc., 589 F.3d 505, 512 (1st Cir.2009).

A. Hearsay Evidence and Advancing New Theory

Relying on Rule 60(b)(1), plaintiff initially argues that the Report and Recommendation mistakenly relied on hearsay. Rule 60(b)(1) provides relief from an order in the event of a “mistake, inadvertence, surprise, or excusable neglect.” Fed. R.Civ.P. 60(b)(1). A mistake may encompass a mistake by the court. See, e.g., Fisher v. Kadant, Inc., 589 F.3d 505, 512-514 (1st Cir.2009); F.A.C., Inc. v. Cooperativa de Seguros de Vida de Puerto Rico, 449 F.3d 185, 191 (1st Cir.2006).

Here, plaintiff contends that this court relied on hearsay in a February 18, 2015 affidavit by Aysha Hameed, M.D. (“Dr. Hameed”) “that offered a brand new theory of defense,” namely, that plaintiff carried a mutation that predicts resistance to protease inhibitors such as boceprevir and telaprevir. (Docket Entry # 94). Dr. Hameed is a regional medical director employed by MPCH since July 2013 and was “a medical doctor in various DOC facilities” prior thereto. (Docket Entry # 94). In the affidavit, Dr. Hameed avers that she has “personal knowledge of the care and treatment of [plaintiff] at OCCC, and .., reviewed his medical records since his admission to OCCC.” (Docket Entry # 56-1).

The “hearsay” consists of Dr. Hameed’s recitation that:

Mr. Lopes has a specific viral mutation, which predicts resistance to protease inhibitors (“PI”) Boceprevir and Telapre-vir. Mr. Lopes previously underwent testing at Boston Medical Center, where an attending physician in the Gastroen-terology Department recommended that Mr. Lopes avoid Pi’s.

For the past year, Mr. Lopes’ condition has been monitored with multiple lab tests and chronic disease consultations with medical professionals outside of OCCC, while MPCH medical staff have also waited for the U.S. Food and Drug Administration ... to approve a new form of treatment.

... Mr. Lopes was recently approved by MPCH medical staff to begin treatment with Harvoni, which is expected to start on or around March 2, 2015.

(Docket Entry #56-1). The Report and Recommendation summarized this portion of the affidavit in the factual background and relied on it as a means to allow summary judgment for the MPCH defendants on the Eighth Amendment claim. (Docket Entry # 60, pp. 10, 33-34).

Examining the existence of a mistake within the meaning of Rule 60(b)(1), it is well settled - that, “ ‘[Hjearsay evidence cannot be considered on summary judgment.’ ” Bennett v. Saint-Gobain Corp., 507 F.3d 23, 28 (1st Cir.2007). Although plaintiff filed a motion to strike the affidavit, he did not argue that statements in the affidavit were hearsay. See Desrosiers v. Hartford Life and Acc. Co., 515 F.3d 87, 91 (1st Cir.2008) (to preserve a party’s rights regarding a defective affidavit on summary judgment, the party should, inter alia, “ ‘spell out the nature of the ostensible defects clearly and distinctly”’). Instead, he maintained that the affidavit was argumentative, it raised a new theory that defendants could not treat plaintiff with bo-ceprevir and telaprevir, he received it at the “11th hour” on February 21, 2015, and Dr. Hameed was a well known prison doctor “known for denying care to prisoners.” (Docket Entry # 59). Thus, as reasoned by the First Circuit in Bellone, this court was free to consider the affidavit with the purported hearsay “because Bellone did not raise any objection to the affidavit below” and, “[i]n any event, Bellone has not challenged the underlying medical record from Dr. Pugach, which would almost certainly have been admissible, see Fed.R.Evid. 803(6), even if the statement in the affidavit was not.” Bellone v. Southwick-Tolland Regl. Sch. Dist., 748 F.3d 418, 421 (1st Cir.2014); see Curet-Velazquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d 47, 54 (1st Cir.2011); Paterson-Leitch Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.1988) (“party has a duty to put its best foot forward before the magistrate: to spell out its arguments squarely and distinctly”); see also Maine Green Party v. Maine, Sec. of State, 173 F.3d 1, 4 & n. 4 (1st Cir.1999) (discussing waiver and- noting that district judge entitled to reject plaintiffs new argument based on waiver); see generally Kenda Corp., Inc. v. Pot O’Gold Money Leagues, 329 F.3d 216, 225 n. 7 (1st Cir.2003) (pro se status does not insulate a party “ ‘from complying with procedural and substantive lav/ ”) (quoting Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir.1997), in parenthetical). Because plaintiff did not mention hearsay or otherwise spell out the argument that the affidavit’s statement that plaintiff has a mutation that predicts his resistence to boeeprevir and telaprevir was hearsay, it was not a mistake within the meaning of Rule 60(b)(1) to rely on the evidence. At most, plaintiff may have generally alluded to a hearsay error by asserting that defendants had not produced evidence because Dr. Hameed was a well known prison doctor known for denying care to inmates. Alluding to an argument in such a general manner is not the same as spelling out and developing an argument. See Curet-Velazquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d at 54 (“[arguments alluded to but not properly developed before a magistrate judge are deemed waived”); see, e.g., Kenda Corp., Inc. v. Pot O’Gold Money Leagues, 329 F.3d at 225 n. 7 (finding pro se party’s sufficiency of evidence argument waived).

Alternatively, if properly documented in a summary judgment motion, there is no showing that plaintiff “ ‘has the right stuff to mount a potentially meritorious claim or defense ... ,”’ Fisher v. Kadant, Inc., 589 F.3d at 512. Here, the medical records show that the failure to treat plaintiff with boceprevir and telapre-vir beginning in July 2013, when MPCH began providing medical services to OCCC inmates, was not deliberately indifferent.

Past medical records show that plaintiff was treated with “peg intron” or “Peg Interferon” as well as ribavirin in 2003 and 2004. (Docket Entry # 1, ¶ 6) (Docket Entry # 101-4, p. 2). The treatment was discontinued because plaintiff developed retinal changes consisting of “cotton wool spots” as well as anemia. (Docket Entry # 101-4, p. 2) (Docket Entry # 101-2, p. 12) (Docket Entry # 101-3, p. 3). By letter dated April 14, 2014, the Director of. Clinical Services in the Health Services Division of the Massachusetts Department of Correction cited plaintiffs development of “cotton wool spots” that required stopping “the Peg Intron treatment” and that the department did not “have an alternative treatment plan that does not include Peg Intron at this time.” (Docket Entry # 40-2). An August 20, 2014 letter to plaintiff similarly explained that, “boceprevir and telaprevir medications have to be given with the Peg Interferon” and, “due to your previous side effects to this[,] you can not be prescribed this type of treatment.” (Docket Entry # 94, App. 51). The NIH website documents submitted by plaintiff instruct that “Boceprevir is used along with two other medications,” ribavirin and “peginterferon alfa.” (Docket Entry # 94, App. 52). The regimen requires taking “the peginterferon alfa -and ribavirin for 4 weeks before” beginning “treatment with boceprevir.” (Docket Entry # 94, App. 52). Similarly, “Telaprevir must be taken in combination with peginterferon alfa and ribavirin.” (Docket Entry #94, App. 54).

Thus, in light of these and other medical records, the refusal or failure to treat plaintiff with boceprevir and telaprevir evidences that the MPCH defendants were not “ ‘aware of facts from which an inference of deliberate indifference could be drawn that a substantial risk of serious harm exist[ed],’” Leavitt v. Correctional Medical Services, Inc., 645 F.3d 484, 497 (1st Cir.2011), by failing to treat plaintiff with boceprevir and telaprevir beginning in July 2013. Coupled with the blood tests, computerized axial tomography (“CT”) scans in August and December 2013 and oversight plaintiff received during the time the MPCH defendants provided- medical services to OCCC inmates, plaintiff fails to show that he has “the right stuff to mount a potentially meritorious” Eighth Amendment claim. Fisher v. Kadant, Inc., 589 F.3d at 512.

Plaintiff next submits that this court made a mistake by advancing the “brand new theory of defense” that his viral mutation predicts a resistance,to bo-ceprevir and telaprevir. (Docket Entry #94). As noted by plaintiff, in allowing additional exhibits to support the prior summary judgment motion, this court stated that, “[T]he parties shall not include any additional legal arguments.” (Docket Entry # 55).

First, in submitting the affidavit, the MPCH defendants did not make any legal argument. Rather, they filed the affidavit which set out facts relevant to whether the failure to treat plaintiff with boceprevir and telaprevir was an Eighth Amendment violation.

Second, adding a different reason or even changing the reason to deny plaintiff treatment with boceprevir and telaprevir does not, without more, exhibit deliberate indifference, i.e., an awareness on the part of the MPCH defendants that denying bo-ceprevir and telaprevir to treat plaintiffs hepatitis C posed a substantial risk of serious harm to plaintiff. See Nunes v. Massachusetts Dept. of Correction, 766 F.3d 136, 142 (1st Cir.2014) (to satisfy ‘“deliberate indifference’ requirement, a plaintiff must show that state officials were ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and drew the inference’”) (internal ellipses and brackets omitted); Leavitt v. Correctional Medical Services, Inc., 645 F.3d at 497. Moreover, denying treatment because of a risk to the inmate’s health (the development of retinal changes) or a lack of any treatment benefit (the mutation based protease resistance) constitutes a reasonable response to the risk of serious harm to plaintiffs health with respect to his hepatitis C and cirrhotic liver. See Kosilek v. Spencer, 774 F.3d 63, 84 (1st Cir.2014). The argument therefore does not provide relief under Rule 60(b).

B. Grievances

Plaintiff also argues' that his failure to provide the OCCC grievance policy in effect prior to July 2013 was “excusable neglect” under Rule 60(b)(1). The Report and Recommendation recognized that, “The [grievance] policy in effect prior to July 2013 is not in the record.” (Docket Entry # 60, p. 12).

Plaintiff also relies on excusable neglect for his failure to argue and cite supporting case law that he exhausted the July 1, 2012 grievance because, when Riendeau checked the box that “ ‘this is not a grieva-ble issue,’ ” there was “no administrative remedy to- exhaust under the PLRA.” (Docket Entry #94, pp. 3, 6-8) (citing Shaheed-Muhammad v. Dipaolo, 393 F.Supp.2d 80 (D.Mass.2005), and Brown v. Massachusetts, 950 F.Supp.2d 274, 278 (D.Mass.2013)). Plaintiff thus claims excusable neglect due to his failure to argue that he exhausted his remedies under the PLRA because there were no remedies to exhaust. (Docket Entry # 94).

First, it was not necessary for plaintiff to raise the argument because this court recognized and adhered to the requirement imposed by the PLRA that, “[a]ll ‘available’ remedies must now be exhausted.” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Report and Recommendation cited this principle and explained it at length. (Docket Entry # 60, pp. 23-24).

Second, the circumstances do not show “excusable neglect.” “Excusable neglect” encompasses “ ‘inadvertence, mistake, or carelessness, as well as intervening circumstances beyond the party’s control.’” Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 38-39 (1st Cir.2013) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)). The determination is ‘“an equitable one, taking account of all relevant circumstances surrounding the party’s omission.’” Id. The “most important” factor “is the reason for the particular oversight.” Id. ‘“At a bare minimum, .a party who seeks relief from judgment on the basis of excusable neglect must offer a convincing explanation as to why the neglect was excusable.’” Id.

The reason plaintiff provides for not locating “First Circuit precedent regarding grievances that are marked ‘this is not a grievable issue’” is because he had to “scramble to recover from” a lockup that took place on the day this court issued the Report and Recommendation. (Docket Entry # 94, pp. 2-3). There is, however, no excusable reason for plaintiff not having brought the cases to the attention of this court before it issued the Report and Recommendation. Plaintiffs incarceration in the “lockup” on the day the opinion issued and, thereafter did not prevent him from bringing the precedent to the attention of this court at an earlier point in time.

Plaintiff additionally asserts that, “This Court faulted [him] for failing to appeal the denied [July 2012] grievance within ten days.” (Docket Entry # 94, p. 6). The argument misconstrues the record. The Report and Recommendation simply stated that plaintiff did not check the box at the bottom of the form indicating that “the inmate remains dissatisfied and wished to ‘appeal to DOC Health Services Division.’ ” (Docket Entry #60, p. 12). Immediately thereafter, the opinion states that, “the policy in effect prior to July 2013 is not in the record.” (Docket Entry #60, p. 12). Thus, the opinion impliedly found that plaintiff did not appeal the July 2012 grievance in the proper manner by checking the box as opposed to in a timely manner within ten days. It also implicitly found that plaintiff never filed an appeal of the July 2012 grievance as opposed to never filed one in ten days. Accordingly, contrary to plaintiffs position (Docket Entry # 94, pp. 6-7), this court did not- make an error by applying a ten day appeal period to the July 2012 grievance. Simply put, this court did not apply a ten day limit as a time period for plaintiff to file an appeal of the July 2012 grievance.

With respect to the November 29, 2013 grievance, plaintiff asserts “that this court made major errors of law in assessing that [plaintiff] should be faulted for not having appealed an APPROVED medical grievance.” (Docket Entry #94, p. 5). This court addressed and rejected the argument that plaintiff exhausted the November 2013 grievance because Caratazzola deemed it approved. (Docket Entry # 60, pp. 18-19, 24-26). For the same reasons, there was no “mistake” of law within the meaning of Rule 60(b)(1) in rejecting plaintiffs argument that he did not have to exhaust an approved grievance.

Plaintiff additionally argues that the MPCH defendants “tricked” him by approving the grievance and instructing him to wait for a follow-up appointment thus allowing the ten day appeal period to expire. (Docket Entry # 94). Plaintiff submitted the grievance on November 29, 2013. The grievance complained about a series of canceled appointments and a lack of medical treatment for eight months. As stated in the grievance, plaintiff advised Carataz-zola on multiple occasions about the inability to obtain treatment at. medical facilities outside OCCC. On December 18, 2013, Caratazolla approved the grievance, noting that plaintiffs .medical records showed he was seen at “the U MA Memorial Hospital Liver Clinic for further testing on 12/12/13” and “Dr. Carson, tour medical provider, ... will schedule a follow up appointment with you upon receipt of that consultation,”. (Docket Entry #57, p. 3) (Docket Entry # .31, Ex. 5).

Plaintiff did not file an appeal of Carata-zolla’s decision. The remedy nevertheless remained available notwithstanding the approval and indication of a follow-up appointment. In fact, the decision noted that, “An appeal must be filled out within 10 working days.” (Docket Entry # 57, p. 3) (Docket Entry #31, Ex. 5). Thus, even assuming that the First Circuit would find “that, in some circumstances the behavior of the defendants may render administrative remedies unavailable, for purposes of the PLRA,” Giano v. Goord, 380 F.3d 670, 675 (2nd Cir.2004), Caratazzola’s behaviour does not rise to that level. Hence, there was no “mistake” within the meaning of Rule 60(b)(1).

C. Sovereign Immunity Defense

Plaintiff next argues that this court made a mistake in the Report and Recommendation (Docket Entry # 60, pp. 34-44) by considering a defense (sovereign immunity) that “the UMAss Corr health defendants” did not plead in their answer. (Docket Entry # 94). Rather, they plead only qualified immunity, according to plaintiff.

In July 2014, UMCH filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) based on its “sovereign immunity” under the Eleventh Amendment as “an arm of the state.” (Docket Entry #26) (Docket Entry #27, pp. 4, 7). In lieu of filing an answer to the complaint, UMCH filed the motion to dismiss. See Fed. R.Civ.P. 12(b) (“motion asserting any of these defenses must be made before pleading”); see Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 997 (1st Cir.1983) (“objective of Rule 12 is to eliminate unnecessary delay at the pleading stage by requiring the presentation of an omnibus pre-answer motion in which defendant advances every available Rule 12 defense”); see, e.g., Gerald v. Univ. of Puerto Rico, 707 F.3d 7, 16 (1st Cir.2013) (“[i]n lieu of an answer, the [defendants] filed a joint motion to dismiss”). After analyzing the issue, this court recommended allowing the motion (Docket Entry #60, pp. 34-44) and the district judge accepted the recommendation in the March 24, 2015 Order (Docket Entry # 67). UNCH therefore never filed an answer.

Nickl and Riendeau, however, did file answers and each raised the defense of qualified immunity. (Docket Entry ## 23, 24). The Report and Recommendation only addressed the UMCH motion and the defense of sovereign immunity properly raised in that motion. The fact that different defendants did not raise a sovereign immunity defense does not prevent this court from addressing the defense properly raised by another defendant in a Rule 12(b) pre-answer motion. Accordingly, plaintiffs sovereign immunity argument does not warrant relief under Rule 60(b).

As a final matter, plaintiff seeks reconsideration under Rule 60(b) of the district judge’s denial of a motion for sanctions (Docket Entry # 89) and this court’s denial without prejudice of a motion for appointment of counsel (Docket Entry # 62). Neither order provides a basis for reconsideration under Rule 60(b). See Daniels v. Agin, 736 F.3d at 86 (Rule-60(b) motions “ ‘should be granted sparingly’ ”); Fisher v. Kadant, Inc., 589 F.3d at 512 (setting out minimum requirements to obtain relief under Rule 60(b)).

II. Riendeau and Nickl’s Summary Judgment Motion

Riendeau and Nickl seek summary judgment on the retaliation and Eighth Amendment medical claims on the merits and due to a failure to exhaust administrative remedies under the PLRA. (Docket Entry # 99). They also move for summary judgment on the state law claims based on a lack of exhaustion under chapter 127 and their immunity under chapter 258, section two. (Docket Entry # 99). Plaintiff did not file an opposition to the motion.

STANDARD OF REVIEW

As explained in the prior Report and Recommendation, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir.2014).

“Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.’” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir.2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.2011)). The evidence is viewed “in the light most favorable to the non-moving party,” plaintiff, and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.2014). In reviewing a summary judgment motion, a court may examine “all of the record materials on file,” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir.2014), “including depositions, documents, electronically stored information, affidavits or declarations ... or other material.” Fed.R.Civ.P. 56(c)(1); see Ahmed v. Johnson, 752 F.3d at 495. Plaintiffs failure to controvert statements of undisputed facts in Riendeau and Nickl’s LR. 56.1 statement may result in the facts being admitted for purposes of the summary judgment motion. LR. 56.1; Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir.2003) (plaintiff’s failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton School Department, 322 F.3d 97, 102 (1st Cir.2003); see Sutliffe v. Epping School Dist., 584 F.3d 314, 321 (1st Cir.2009) (plaintiffs’ “pro se status did not relieve them of their responsibility to comply with procedural rules”).

Plaintiff signed the complaint as “Sworn under pain and penalty of perjury.” (Docket Entry # 1). Accordingly, facts based on personal knowledge in the complaint are part of the summary judgment record. See Sheinkopf v. Stone, 927 F.2d 1259, 1262-1263 (1st Cir.1991); see also Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit International, Inc., 982 F.2d 686, 689-690 (1st Cir.1993) (pursuant to 28 U.S.C. § 1746, “an unsworn statement signed under penalty of perjury may be used, in lieu of a sworn statement or affidavit, to support or oppose a motion for summary judgment”); United States v. Gomez-Vigil, 929 F.2d 254, 258 (6th Cir.1991); Uncle Henry’s, Inc. v. Plaut Consulting, Inc., 240 F.Supp.2d 63, 69 (D.Me.2003). Conclusory allegations in the complaint, however, “do not pass muster, and hence, must be disregarded.” Sheinkopf v. Stone, 927 F.2d at 1259, 1262. Adhering to this framework, the record sets out the following facts for purposes of Riendeau and Nickl’s summary judgment motion.

FACTUAL BACKGROUND

Throughout the relevant time period, plaintiff was an inmate residing at OCCC. (Docket Entry # 1), Prior to July 2013, UMCH provided medical care to inmates at OCCC. In July 2013, the Massachusetts Department of Correction (“DOC”) contracted with MPCH to provide medical services to OCCC inmates. (Docket Entry # 33-1).

Riendeau was the health services administrator (“HSA”) at OCCC up until July 2013. (Docket Entry # 1, ¶ 2). She left the facility in July 2013 when MPCH took over the contract for providing medical services to OCCC inmates. (Docket Entry # 1, ¶ 20). Nickl “worked as senior director of programs for [UMCH].” (Docket Entry # 1, ¶ 2).

A. Medical Care

Plaintiff, a 61 year old male, has a history of hepatitis C, a chronic liver disease. (Docket Entry ## 1-2,1-4). He is confined to a wheelchair. (Docket Entry # 1-2). His history of hepatitis C dates back more than 35 years. (Docket Entry ## 101-4, 101-7). He also suffers from cirrhosis of the liver and end-stage liver disease. (Docket Entry # 101-2).

From November 2003 to May 2004, plaintiff received “peg-intron” as well as ribavirin to treat the hepatitis C. (Docket Entry # 101-4, p. 2) (Docket Entry # 1, ¶ 6). The drug regimen ended, however, because plaintiff developed “anemia and vision changes with cotton wool-spots seen on his eye exam.” (Docket Entry # 101-4, p. 2); (Docket Entry.#-101-2, p. 12) (Docket Entry # 101-7, pp. 2, 3) (Docket Entry # 1-2, p. 13) (Docket Entry # 1, ¶ 6). UMCH neither provided nor offered plaintiff an alternative drug regimen for his hepatitis C. (Docket Entry # 1, ¶ 6).

In August 2005 and April 2006, while incarcerated, plaintiff was treated at Tufts-New England Medical Center (“Tufts”). An April 2006 medical note reflects a weight of 300 pounds, a body mass index (“BMI”) of 35, bilateral edema in the extremities and multiple scabbed skin lesions. (Docket Entry # 101-4). Plaintiff also reported “chronic upper right quadrant pain that requires oxycodone.” (Docket Entry #.101-4). The Tufts physician noted that plaintiff was not a candidate for a liver transplant:

due to a couple of issues. One is his body weight. He has a BMI of 35. We do not perform transplants on patientfs] unless the BMI is 30 or less given that there is a high-risk mortality and morbidity in performing surgery. Secondly, he has chronic abdominal pain of unclear etiology and -is dependent on narcotics for pain control. For opr Pre-Liver Transplant patients, we do prefer discontinuing any narcotics medications as there is concern for dependency.

(Docket Entry # 101-4). The physician also noted that plaintiff’s blood work gave “him a MELD score of 11, which” placed “him low on the liver transplant list if he were to be listed.” (Docket Entry # 101-4). In fact, the physician posited that, “With this MELD score, the risk of dying from the liver transplant would be higher than from the risk of dying from-his liver disease.” (Docket Entry # 101-4).

Thereafter in 2006, Philip Tavares, M.D. (“Dr. Tavares”) of UMCH examined plaintiff at SBCC and assessed his end-stage liver disease as stable. (Docket Entry # 101-2, p. 4). Dr. Tavares’ note repeats the Tufts’ physician’s finding to lose weight and discontinue narcotics to be considered for a liver transplant. Plaintiff agreed to a weight loss program. (Docket Entry # 101-2, p. 4). In another 2006 visit, Dr. Tavares planned to check the date of plaintiffs last liver ultrasound and order another ultrasound or CT scan “as indicated.” (Docket Entry # 101-2, p. 10). UMCH progress-notes in 2006 evidence that plaintiff was seen several other times in the SBCC infirmary. During each visit, plaintiffs condition - is described as . stable. (Docket Entry # 101-2).

A July 2006 progress note evidences that “A. Enaw, M.D.” (“Dr. Enaw”) examined plaintiff at the SBCC infirmary. The progress note repeats the plan that plaintiff is not a candidate for a liver “transplant due to excessive weight.” (Docket Entry # 101-2). Dr. Enaw also noted multiple skin lesions and that plaintiff was seen in dermatology twice with no specific diagnosis.

In 2011, the Food and Drug Administration (“FDA”) approved two new medications to treat hepatitis C, namely, boce-previr and telaprevir. (Docket Entry # 1, ¶ 8) (Docket Entry # 33, ¶ 6). To date, plaintiff has not received these medications. NIH documents located on the agency’s website state that, “Boceprevir is used along with two other medications,” ribavirin and “peginterferon alfa.” (Docket Entry # 94, App. 52). The regimen requires taking ribavirin and “peginterferon alfa” for four “weeks before” beginning “treatment with boceprevir.” (Docket Entry #94, App. 52). Similarly, “Telaprevir must be taken in combination with pegin-terferon alfa and ribavirin.” (Docket Entry # 94, App. 54). • ■

In March 2012, plaintiff saw Richard J. Rohrer, M.D. (“Dr. Rohrer”), Chief of the Division of Transplant Surgery at Tufts Medical Center. Dr. Rohrer noted that plaintiff “has a long history of a chronic active hepatitis C” and “did not tolerate interferon therapy.” (Docket Entry # 101-7). Dr. Rohrer reviewed a March 2012 CT scan which showed a 1.5 centimeter lesion in plaintiffs liver that met the criteria for hepatocellular carcinoma (“HCC”), a cancer that originates in the liver. A September 2008 CT scan initially revealed the liver mass then measuring roughly two centimeters. Plaintiff was initially “followed by Dr. Robert Martell, M.D. at Tufts Medical Center.” (Docket Entry # 1-2). “Preliminary reports” included information “consistent with HCC.” (Docket Entry # 1-2).

Plaintiff received multiple repeat CT scans to monitor the lesion. A repeat CT scan in January 2009 showed a decrease in size to 1.6 centimeters. A February 2010 CT scan showed a 1.8 centimeter lesion. A March 2011 CT scan reflected a decrease in size of 1.5 to 1.6 centimeters. (Docket Entry # 1-2). The March 2012 CT scan measured the lesion at 1.5 centimeters and showed several other foci of arterial enhancement believed to “represent dysplastic nodules.” (Docket Entry # 101-7).

After reviewing the March 2012 CT scan, Dr. Rohrer explained that, “A single, small lesion would not qualify for a liver transplant, and it would have to be observed” as a two centimeter lesion “to make appropriate strategic decisions regarding liver transplantation.” (Docket Entry #101-7) (emphasis added). He further noted that, “If a liver transplantation turned out not to be an option, then local treatment with radiofrequency ablation and transarterial chemoembolization may prove to be very valuable.” (Docket Entry # 101-7).

On April 24, 2012, Angela S. Dantonio, N.P. (“Dantonio”) evaluated plaintiff at UMass Memorial Medical Center (“UMass Memorial?’) in Worcester, Massachusetts. Like Dr. Rohrer, she stated that the lesion shown in the March 2012 CT scan was consistent with HCC. Plaintiff “could potentially be a liver transplant candidate,” but more information was needed, according to Dantonio. (Docket Entry # 101-7). Accordingly, plaintiff was scheduled for a four phase “CT scan of the abdomen and pelvis” to “better assess the stage of his disease.” (Docket Entry # 101-7) (Docket Entry #1-2, p. 8). Dantonio explained to plaintiff “that if the 4-phase CT scan confirms the presence of a single HCC lesion that is under” two centimeters, it “could either be treated with radiofrequency ablation, or” monitored until it reaches two centimeters, “at which time” plaintiff could potentially be listed for a “transplant with MELD exception points.” (Docket Entry # 101-7). She emphasized that “a more complete work-up” was needed to “determine his transplant candidacy.” (Docket Entiy #101-7). Upon physical examination, plaintiffs weight was down to 215 pounds and his BMI was 32. (Docket Entry # 101-7). Dantonio’s clinic note reflects that plaintiffs “edema is medically managed with diuretic therapy.” (Docket Entry # 101-7).

On May 11, 2012, plaintiff underwent the four phase CT scan of his pelvis and abdomen. The CT scan report concluded that the liver mass “should be considered as hepatocellular carcinoma unless proven otherwise” and noted “[c]hanges of advanced cirrhosis.” (Docket Entry # 1-2). There was,' however, “no evidence of as-cites” and the pancreas, spleen, kidneys and adrenal glands showed no abnormality. (Docket Entry # 1-2).

On May 17, 2012, plaintiff was seen by “multiple providers” at the UMass Medical Center Hepatocellular Carcinoma Program Clinic (“the UMass clinic”) at UMass Memorial. (Docket Entry # 1-2). The purpose of the visit was to assess plaintiffs “[cjhronic hepatitis C, cirrhosis and liver mass.” (Docket Entry # 1-2). The UMass clinic’s outpatient consultation report for the visit reflects that plaintiff “has been followed for a stable hepatic lesion in the setting of hepatitis C and cirrhosis.” (Docket Entry # 1-2). It also reflects plaintiffs history of “[cjhronic hepatitis C genotype la,” cirrhosis, chronic lower back pain, deep vein thrombosis (“DVT”) and a plan to see him again in three months and maintain “active surveillance.” (Docket Entry # 1-2).

The UMass clinic note the same day describes plaintiffs medical history as including “[djecompensations from his liver disease [that] have included fluid overload, peripheral edema, some fatigue and esophageal varices.” (Docket Entry # 1-2). The note states, “No plans currently for hep C treatment.” (Docket Entry # 1-2). The note also includes plaintiffs past history of “interferon and ribavirin therapy for [plaintiffs] hepatitis C, but” that plaintiff “developed retinal changes.” (Docket Entry # 1-2).

Three radiologists reviewed the May 11, 2012 four phase CT scan and took part in a multidisciplinary conference at the clinic on May 17, 2012. The mass did not show “the classic washout for hepatocellular carcinoma.” (Docket Entry # 1-2). After an extensive discussion .among the medical providers, the group decided to obtain an MRI “and[,J if still ambiguous[,J ... may recommend proceeding to a liver biopsy.” (Docket Entry # 1-2, pp. 14,18).

On June 25, 2012, UMCH health services progress notes show that medical staff at OCCC reviewed the UMass clinic’s outpatient consultation report with plaintiff. An ultrasound was normal and the June 2012 note shows a plan to continue to monitor and assess plaintiffs condition. (Docket Entry # 101-2). Plaintiff agreed to the MRI, as recommended by the UMass clinic. (Docket Entry # 101-2).

On July 1, 2012, plaintiff filed a grievance requesting a biopsy, commencement of the process “to obtain a cadaver liver” and “alternative hep c treatment” to eradicate the “cancerous lesion.” (Docket Entry # 1-3). Riendeau reviewed the grievance and denied it on July 9, 2012. (Docket Entry # 1-3) (Docket Entry # 1, ¶¶2, 14, 20). In denying the grievance, she commented that plaintiffs “treatment plan is appropriate” and that he- would be undergoing the MRI to determine if a biopsy is indicated. (Docket Entry # 1-3) (Docket Entry # 101-5).

In August 2012, plaintiff had the MRI. (Docket Entry # 101-3, p. 3). On November 26, 2012, he underwent a fine needle aspiration (“FNA”) biopsy and a radio frequency ablation of the lesion at UMass Memorial. (Docket Entry # 101-2). The biopsy showed a benign adenomatous lesion, according to UMass clinic notes. (Docket Entry # 1-4).

On December 28, 2012, plaintiff had a three phase GT scan of his abdomen and pelvis. The scan showed no abnormalities other than a large ablative cavity in the area where the lesion was ablated and a small hepatic lesion. (Docket Entry # 1-4).

On January 31, 2013, plaintiff was seen again at the UMass clinic. The clinic note describes the lesion “clinically” as “a benign adenoma” and that, “on extensive review by Dr. Switzer with several pathologists, the FNA was not diagnostic of malignancy” and, “in any case,” the lesion was ablated. (Docket Entry # 1-4, p. 9). It further states that, “As a patient with cirrhosis, he is at risk for developing further HOC and will be followed.” (Docket Entry # 1-4). Accordingly, the multidisciplinary team at the clinic decided to continue surveillance of plaintiffs condition with imaging three months after the December 28, 2012 CT scan. (Docket Entry # 1-4, p. 10).

Bradley Switzer, M.D. (“Dr. Switzer”) also examined plaintiff at UMass Memorial on January 31, 2013, and likewise noted the consensus “to proceed with active surveillance and a followup CT scan” in three months. (Docket Entry # 1-4, p. 12). Dr. Switzer’s medical note states that:*

From a hepatic standpoint, this patient does have ChildPuigh A cirrhosis with 6 points.-He is well compensated with no regular decompensation and should be continued to be followed regularly by a gastroenterologist regarding his underlying hepatitis C and liver disease.

(Docket Entry # 1-4, p. 12).

Dr. Switzer performed a limited examination of plaintiff at UMass Memorial the same day. Upon examination, there was no edema in plaintiffs extremities. (Docket Entry # 1-4). Dr. Switzer reviewed plaintiffs pathology with at least three pathologists and noted that the “lesion has been ablated and there is no evidence ... of residual disease.” (Docket Entry # 1-4) (Docket Entry # 101-2, pp. 14,15).

In March 2013, plaintiff was admitted to Lemuel Shattuck based on a “[s]elf-induced low nutritional- intake.” (Docket Entry # 101-3). Medical staff recommended continued management on an outpatient basis of plaintiffs liver disease and continued dosing of diuretic medication. The discharge summary states that plaintiffs hepatitis C treatment “with interferon and ribavirin ... was discontinued for retinal changes.” (Docket Entry # 101-3, p. 3).

..In July 2013, MPCH began providing the medical services to OCCC inmates previously provided by UMCH. (Docket Entry # 33-1, p. 2). Riendeau left OCCC when MPCH outbid UMCH for the contract. (Docket Entry # 1, ¶ 20).

In an April 14, 2014 letter, the Director of Clinical Services of DOC Health Services Division advised plaintiff that, MPCH did not “have an alternative treatment plan that does not include the Peg Intron at this time” and is “working on obtaining newer treatments.” (Docket Entry # 40-2, p. 1). The letter explains that plaintiffs prior development of “cotton wool spots” caused by the “Peg Intron treatment” could “cause blindness if the treatment is not stopped.” (Docket Entry # 40-2, p. 1). An August 20, 2014 letter to plaintiff from the Assistant Deputy Commissioner of the DOC Health Services Division reiterates, more specifically, that, “Boceprevir and Talaprevir medication have to be given with the Peg Interferon.” (Docket Entry # 94,- App, 51). Consequently, due to plaintiffs prior negative side effects, the letter notes that plaintiff could not receive this treatment but that newer medications are “awaiting FDA approval this fall.” (Docket Entry # 94, App. 51).

Meanwhile, in June 2014, plaintiff had blood tests to monitor his liver. On July 23, 2014, he underwent testing at Boston Medical Center. Plaintiff reported no • upper right quadrant pain, “jaundice, dark urine or pruritus.” (Docket Entry # 116, App. 59). Upon physical examination, Dr. Nunes described plaintiff as having no skin rashes. (Docket Entry # 116, App. 60). Dr. Nunes additionally noted that plaintiff carried an “R155K mutation which is associated with protease resistance” and “is therefore not a good candidate for a protease based treatment regimen.” (Docket Entry # 116, App. 59). Dr. Nunes further stated that, “Protease based regiments are relar tively contraindicated in deccompensated [sic] cirrhosis diue [sic] to the risk of worsening [the] liver disease.” (Docket Entry # 116, App. 59). Given plaintiffs “relatively stable disease,” Dr. Nunes recommended waiting for the “availability of replication complex inhibitors.” (Docket Entry # 116, App. 61).

In October 2014, the FDA approved the use of Harvoni to treat chronic hepatitis C. (Docket Entry # 94, App. 56). The Harvo-ni regimen provided “the first FDA-approved interferon- and ribavirin-free regimen to treat hepatitis C.” (Docket Entry # 94, App. 57). On January 21, 2015, plaintiff was seen in the gastroenterology clinic at Lemuel Shattuck to discuss initiating hepatitis C treatment with the new medication. (Docket Entry #58, App. 57-58). After examining plaintiff and reviewing his medical history and recent blood work, the physician recommended Harvoni to treat plaintiffs hepatitis C. (Docket Entry # 58, App. 48). Plaintiff acknowledges that he received Harvoni on March 2, 2015, albeit in response to this lawsuit, and “is now free of the virus” as of September 2015.

As to other or related medical conditions, plaintiff “has had DVT in the past” and experiences chronic lower back pain. (Docket Entry ## 1-2, 1-4). His chief complaint at the May 17, 2012 visit and examination at UMass Memorial was swelling in the lower part of his left leg with redness. (Docket Entry # 1-2, p. 13). Plaintiff attests he “has blood pooling up under his skin.” (Docket Entry # 1, ¶ 10) (Docket Entry #1-2). During the visit, he expressed a concern about cellulitis in his lower left leg. An ultrasound of the leg on the same day did not show a blood clot. As a result of the “significant edema,” dosages of plaintiffs diuretic medications were increased. (Docket Entry # 1-2). On June 25, 2012, plaintiff was seen at OCCC by medical staff. Health services progress notes for the visit reflect that the medications were ordered to address the fluid overload and that plaintiffs chemistries would be repeated again to assess the effects from the increased dosages; (Docket Entry # 101-2, p. 3). The UMass clinic noted no significant ascites at the January 31, 2013 visit and examination. At the time plaintiff filed the February 2014 complaint, his legs were “swollen-about three times normal girth.” (Docket Entry # 1, ¶ 18).

B. Retaliation and Related Grievances

At an undermined time in 2012, plaintiff complained about Riendeau to the Department of Public Health Division of Health Professions Licensure, Office of Public Protection (“the Registration Board”). (Docket Entry # 1, ¶ 14). By letter dated October 2, 2012, the Registration Board advised plaintiff it had initiated an inquiry regarding the allegations. (Docket Entry # 1-3, p. 2). On November 13, 2012, plaintiff sent the Registration Board a copy of the July 2012 grievance that Riendeau denied. (Docket Entry # 1-3, pp. 4, 6). On November 26, 2012, the Registration Board mailed plaintiff a complaint form and asked- him to complete it to facilitate the investigation. (Docket Entry # 1-3, p. 3). In the complaint form, plaintiff states that Riendeau repeatedly canceled doctors’ orders, including orders for a liver biopsy and placement.on an organ donor list, and that “[n]o alternative treatment is being offered.” (Docket Entry #1-3, pp. 7-8). The Registration “Board decided not. to discipline” Riendeau. (Docket Entry # 1, 1114).

Undeterred, on December 31, 2012, plaintiff wrote to the Director of Accreditation, National Commissions on Correctional Health, regarding Riendeau and his need for a liver transplant and alternative treatment for his hepatitis C. (Docket Entry #1-3, p. 10). The letter states that Nasuti ordered skin lotion and a certain kind of soap for plaintiff but that Riendeau canceled the orders. (Docket Entry # 1-3, p. 10).

On December 21, 2012, plaintiff submitted a formal grievance to the health services unit by completing an Inmate Medical Grievance and Appeal Form. Therein, he complained about an inability to obtain “KOP” status for two skin lotions, Eucerin lotion and “Evoke skin Citrus Vanilla Aro-motherapy, moisturizer” purportedly ordered by Nasuti. (Docket Entry # 1-3, p. 9). The December 21, 2012 grievance also notes that Riendeau canceled the orders and that he had filed “grievances” against her with; the Registration Board. (Docket Entry # 1-3, p. 9).

On December 31, 2012, Nasuti treated plaintiffs skin condition at OCCC. (Docket Entry # 101-2, p. 18). She observed multiple open skin tears and areas of hyperpig-mentation and-assessed a “decreased skin integrity.” (Docket Entry # 101-2, p. 18). In order “to prevent overuse or diversion,” Nasuti’s plan was to advise management “to portion out [the] lotion daily.” (Docket Entry # 101-2, p. 18).

On January 2, 2013, Riendeau denied the December 21, 2012 grievance because plaintiff had received the Eucerin lotion and-the “citrus vanilla aromotherapy lotion” was “not medically indicated.” (Docket Entry # 1-3, p. 9). In denying the grievance, Riendeau checked a box that, “This is not a grievable ’issue” and another box that, “This issue has been previously addressed.” (Docket Entry # 1-3, p. 9).

By letter dated January 4, 2013, plaintiff appealed the denial to the Health Services Division. The appeal explicitly states that, “Riendeau retaliated against me for complaining about her” to the Registration Board by denying the orders for skin lotion and modifying “that refusal to allow me Eucerin, but only if I wait in line every day.” (Docket Entry # 1-3, p. 11). By letter dated February 1, 2013, Weiner, the assistant deputy commissioner of clinical services for DOC, denied the appeal. As a reason for the denial, Weiner explained that plaintiff was “provided with a sufficient amount of eucerin cream to treat your medical condition via the Medication line” and that “the amount of cream dispensed to you was changed as the result of a KOP audit in which you were found non compliant.” (Docket Entry # 1-3, p. 13) (Docket Entry # 101-5, p. 4).'

Notwithstanding the statement in Weiner’s letter that the decision was “final,” plaintiff filed a similar grievance on February 18, 2013 with the health services unit. Therein, he complained about his inability to obtain medications and skin creams as well as his inability to have “KOPs” that Nasuti previously ordered. (Docket Entry # 101-5, p. 9). The grievance also describes his inability to obtain medication because only one of the ten nurses at OCCC, Berg, had the authority to dispense plaintiffs medications. The grievance asks that all of the OCCC nurses be allowed to dispense his medications. (Docket Entry # 1-4, pp. 1-2) (Docket Entry # 101-5, pp. 9-10). Riendeau denied the grievance on February 22, 2013, because the issue “has been resolved and [plaintiff] will obtain [his] medication from the medication line as discussed.” (Docket Entry # 1-4).

Plaintiff checked the appropriate box indicating his desire to appeal the decision to the DOC Health Services Division. By letter dated February 27, 2013, plaintiff wrote to the division. The letter, designated as an appeal, complains about the confiscation of plaintiffs medications from his cell followed by the return of the medications and the confiscation of them the next day. The letter also describes the complaint plaintiff made with the Registration Board and asserts that Riendeau was instructing officers to confiscate the medications and, after the return of the medications, having officers confiscate the medications again. (Docket Entry # 1-4, p. 4) (Docket Entry # 101-5, p. 7).

Weiner addressed the appeal in a letter to plaintiff on March 5, 2013. (Docket Entry # 1, ¶ 17) (Docket Entry # 1-4, p. 7) (Docket Entry # 101-5, p. 6). As set forth in the letter, Weiner referred the harassment allegations about Riendeau to Nickl, senior director of program operations for UMCH. (Docket Entry # 1, ¶ 17) (Docket Entry # 1-4, p. 7) (Docket Entry # 101-5, p. 6).

On May 23, 2013, the Grievance Appeal Coordinator (“the Grievance Coordinator”) of the' Correctional Health and Criminal Justice Program at the University of Massachusetts Medical School wrote to plaintiff regarding Weiner’s March 5, 2013 letter regarding plaintiffs February 27, 2013 appeal of the February 18, 2013 grievance. Explaining that he had been asked to respond to the allegations of harassment by Riendeau of instructing officers to confiscate plaintiffs “KOP medications from [his] cell,” the Grievance Coordinator found “no evidence to support” the allegations. (Docket Entry # 101-5, p. 2).

DISCUSSION

A. Section 1983 Eighth Amendment Medical Care Claim

Riendeau and Nickl initially argue that plaintiff fails to set out a serious medical need that went unmet. Separately, they maintain that neither Riendeau nor Nickl acted with deliberate indifference. (Docket Entry # 101, § II).

In order to succeed in an Eighth Amendment claim under section 1983 based on denied or inadequate medical care, a prisoner must satisfy: “(1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.” Kosilek v. Spencer, 774 F.3d at 82; Leavitt v. Correctional Medical Services, Inc., 645 F.3d at 497. “Deliberate indifference means that ‘a prison official subjectively “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’” ” Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.2007); Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Negligent care or “even malpractice does not give rise to a constitutional claim; rather, the treatment provided must have been so inadequate as ‘to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.’”” Leavitt v. Correctional Medical Services, Inc., 645 F.3d at 497 (quoting Estelle v. Gamble, 429 U.S. 97, 105-106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)) (citation omitted); see also Kosilek v. Spencer, 774 F.3d at 87 (“medical imprudence — without more — is insufficient to establish an Eighth Amendment violation”).

A “wanton disregard” to a prisoner’s needs requires a disregard “akin to criminal recklessness, requiring consciousness of “ ‘impending harm, easily preventable.” ’ ” Kosilek v. Spencer, 774 F.3d at 83 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir.1993)). “[A], deliberate intent to harm is not required,” however, because it is enough “to show a wanton disregard sufficiently evidenced ‘by denial, delay, or interference with prescribed health care.’ ” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir.2011) (quoting DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991)).

A prison official is not deliberately indifferent if he responds “reasonably to the risk.” Burrell v. Hampshire County, 307 F.3d 1, 7 (1st Cir.2002). A disagreement about an appropriate course of treatment therefore does not amount tb deliberate indifference. See Feeney v. Correctional Medical Services, Inc., 464 F.3d 158, 162 (1st Cir.2006) (“when a plaintiffs ‘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 brackets omitted). Hence, courts consistently refuse “‘to create constitutional claims out of disagreements between prisoners and doctors about the proper course of a prisoner’s medical treatment, or to conclude that simple medical malpractice rises to the level of cruel and unusual punishment.’ ” Kosilek v. Spencer, 774 F.3d at 83 (quoting Watson v. Caton, 984 F.2d at 540, in parenthetical). Conversely, deliberate indifference may exist “ ‘by the denial of needed care as punishment and by decisions about medical care made recklessly with “actual knowledge of impending harm, easily preventable.’” ” Leavitt v. Correctional Medical Services, Inc., 645 F.3d at 497 (quoting Ruiz-Rosa, 485 F.3d at 156).

Assuming for purposes of argument only that plaintiffs hepatitis C And cirrhosis are serious medical needs, there is a dearth of evidence that either Rien-deau or Nickl acted with the necessary deliberate indifference to those needs. In 2003 and 2004, plaintiff developed vision changes that precluded treatment with “peg-intron” or “Peg Interferon.” (Docket Entry # 101-4, p. 2) (Docket Entry # 1, ¶ 6). The medical record contains numerous references to the fact that plaintiff “did not tolerate interferon therapy” and “developed retinal changes” when he received the treatment in 2003 an,d 2004. (Docket Entry # 101-4, p. 2); (Docket Entry # 101-2, p. 12) (Docket Entry # 101-7, pp. 2, 3) (Docket. Entry # 1-2, p. 13) (Docket Entry # 1, ¶ 6). The drug regimens for boceprevir and telaprevir, approved by the FDA in 2011, required the use of “pegin-terferon alfa” and ribavirin. (Docket Entry # 94, App. 52, 54).

In July 2012, Riendeau denied plaintiff’s July 1, 2012 grievance requesting a biopsy, the initiation of the process to obtain a liver transplant and alternative hepatitis C treatment. She deemed his treatment “appropriate” and that he would be receiving an MRI to evaluate his liver and “determine if a biopsy is indicated.” (Docket Entry # 101-5, p. 3). At the time, the medical record included references to plaintiffs inability to tolerate “peg-intron” or “interferon and ribavirin therapy.” (Docket Entry # 101-4, p. 2); (Docket Entry # 101-2, p. 12) (Docket Entry # 101-7, pp. 2, 3) (Docket Entry #1-2, p. 13). It also included plaintiffs recent March 2012 visit and assessment by the Chief of the Division of Transplant Surgery at Tufts and other members of his team. Dr. Rohrer noted p