GRAHAM v. SABOL

k of personal involvement. It is not appropriate to decide the issue as it applies to Grondolsky at this time because petitioner has not had an opportunity to address the argument.

The action is presently on appeal.

This court refers to these doctrines respectively as claim and issue preclusion.

In the second summary judgment motion, Lappin and the United States raise the previously addressed argument that this case should only proceed as a Bivens action. Lappin additionally argues that he was never personally involved in the allegedly unconstitutional conduct and the United States raises a sovereign immunity argument. (Docket Entry ## 41 42).

The standard of review for summary judgment is well established. Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Carroll v. Xerox Corporation, 294 F.3d 231, 236 (1^st Cir. 2002) (quoting Rule 56(c)). An issue is genuine where a fact finder could reasonably resolve the issue in favor of either party. See Cadle Co. v. Hayes, 116 F.3d 957, 960 (1^st Cir. 1997). A material fact may "sway the outcome of the litigation under the applicable law." Calvi v. Knox County, 470 F.3d 422, 427 (1^st Cir. 2006). When analyzing a motion for summary judgment, a court views the evidence in the light most favorable to the non-moving party and all reasonable inferences are drawn in favor of that party. See Buchanan v. Maine, 469 F.3d 158, 165 (1^st Cir. 2006). "`[C]onclusory allegations, improbable inferences, and unsupported speculation'" will not survive a motion for summary judgment. Cadle Co. v. Hayes, 116 F.3d at 960.

The factual background is not summarized at length because respondents limit the summary judgment challenge to the claim and issue preclusion argument, the lack of personal involvement on the part of Lappin and the sovereign immunity of the United States.

Turning to the factual background, petitioner has been in the custody of the BOP since 1998. (Docket Entry # 12, Ex. 1). He resided in various locations and facilities over the years. (Docket Entry # 12, Ex. 1). From August 1999 to May 2002, he resided at FCI Edgefield in South Carolina. In December 2003, petitioner resided at the Federal Correctional Institution in Glenville, West Virginia ("FCI Gilmer") where he experienced a heart attack and was dropped by BOP officers while being transported on an ironing board. (Docket Entry # 6). Prison staff at FCI Gilmer dropped petitioner while attempting to bring him to a hospital to replace the battery of his pacemaker. (Docket Entry # 6). Petitioner obtained statements dated in December 2003 and January 2004 from inmates regarding their

Petitioner makes these statements under penalty of perjury. (Docket Entry ## 6 44). "An unsworn statement under penalty of perjury has the same effect as an affidavit." In re Martinez-Catala, 129 F.3d. 218 (1^st Cir. 1997). It is not necessary to decide whether issue preclusion prevents accepting petitioner's averment that he experienced a heart attack. See generally Bobby v. Bies, ___ U.S. ___, 129 S.Ct. 2145, 2152 (2009) (issue preclusion prevents "successive litigation of an issue of fact or law that is actually litigated and determined by a valid and final judgment, and . . . is essential to the judgment"). The magistrate judge in a Bivens action in West Virginia, Graham v. Ashcroft, Civil Action No. 05-00089, determined that petitioner "became unconscious and was taken to the hospital in Weston, West Virginia, where his pacemaker was replaced." (Docket Entry # 16, West Virginia action). Even assuming that issue preclusion does not bar the above averment, claim preclusion, as discussed infra, bars the 2003 heart attack deliberate indifference claim.

One percipient witness, inmate Anthony Moats, attests that the officials used an ironing board due to a lack of stretchers in the unit. (Ex. A). The group of exhibits designated as Exhibit A is not separately docketed.

observations of the incident. (Ex. A).

As a result of being dropped, petitioner believes he injured his back and shoulder. (Docket Entry # 6). In February 2004, petitioner received a CT scan of the cervical spine. The radiologist reported degenerative changes as well as a disc bulge at C6-7 but found "NO SIGNIFICANT ABNORMALITY ON THE IMAGES OBTAINED." (Ex. A). In November 2006, petitioner underwent another examination of the cervical spine. The radiology report found "moderate multilevel degenerative changes most pronounced at C5-6 and C6-7" with significant narrowing of the disc space. (Docket Entry # 43, Ex. 13).

On July 21, 2008, petitioner had a radiology examination of his left shoulder performed by a medical group at the University of Maryland. The radiology report found abnormal calcification of approximately 1.3 centimeters which the radiologist considered an "old trauma/bursitis." (Docket Entry # 43, Ex. 15). Notes dated two days later on the report reflect that "plaintiff was dropped in 2003 by staff when battery died being taken out to hospital." (Docket Entry # 43, Ex. 15). Dr. Barnett reviewed the report on July 24, 2008. (Docket Entry # 43, Ex. 15).

Petitioner also has a history of a small bowel obstruction. (Ex. A). An April 2000 radiologic report describes "scattered gas" but "no evidence of significant bowel distension." (Ex. A). The report did "not definitively exclude[]" a "small bowel obstruction." (Ex. A). In 2008 petitioner underwent at least two radiology examinations of his abdomen. The report dated February 21, 2008, by the medical group at the University of Maryland describes an "[a]bnormal dilated small bowel loop." (Ex. A). Another report dated September 12, 2008, by the medical group found an "[a]bnormal partial bowel obstruction." (Ex. A).

According to petitioner, BOP staff also allowed his pacemaker batteries to die. (Docket Entry # 6). In April 1996, petitioner had a programmable pacemaker implanted in April 1996. (Ex. A). An August 2, 2002 letter reflects an expected life of the model of the pacemaker as 5.5 years. Over the years, petitioner underwent several electrocardiograms including one on July 14, 2009. On July 23, 2009, in response to an inmate request to staff in which petitioner reported chest pain, an FMC Devens staff member directed petitioner to see "Devens inhouse cardiology." (Docket Entry # 44, Ex. "6 of 3"). On July 26, 2009, petitioner visited the FMC Devens clinic because of chest pain, cold sweats and chills. (Docket Entry # 44). Subsequently, he visited an outside hospital for a chemical stress test and a check for blocked arteries. (Docket Entry # 44). During this time period, petitioner had difficulty obtaining prescription refills. (Docket Entry # 44). On August 2, 2009, petitioner had high blood pressure and received medication for this condition. (Docket Entry # 44).

Although not relied upon by this court, the magistrate judge in the Massachusetts action found on the merits that petitioner's "pacemaker was replaced in 2003." (Docket Entry # 98, Massachusetts action).

In relation to his medical care at FCI Gilmer, petitioner filed a Bivens action against the Warden at FCI Gilmer, the Hospital Administrator at FCI Gilmer, a cardiologist, the BOP, Lappin and other individuals in the United States District Court for the Northern District of West Virginia,Graham v. Ashcroft, Civil Action No. 05-00089 ("West Virginia action"), in December 2005. Petitioner alleged that "prison staff dropped him from an ironing board (there was no stretcher in the unit)" thereby injuring his back. (Docket Entry # 1, West Virginia action). He complains that he received no treatment for the back condition until January 2004. The complaint in the West Virginia action also alleges that petitioner needed a replacement pacemaker because "the battery was totally dead." (Docket Entry # 1, West Virginia action).

In June 2006, a magistrate judge issued a report and recommendation that addressed and rejected inter alia the claim that petitioner was dropped from the ironing board on December 20, 2003, thereby injuring his back. The magistrate judge noted that petitioner lost consciousness and was transported to the hospital where corrective measures took place. Stating that petitioner experienced "no substantial or permanent harm as the result of this incident," the magistrate judge found no deliberate indifference relative to petitioner's heart condition. (Docket Entry # 16, West Virginia action).

The magistrate judge also found no indication of the defendants' deliberate indifference to petitioner's back condition. He described the back condition and the treatment petitioner received, including the February 2004 CT scan. The magistrate judge also determined that a refusal to send petitioner to a neurosurgeon for his back and shoulder amounted to a disagreement regarding treatment as opposed to an Eighth Amendment violation. (Docket Entry # 16, West Virginia action).

The relevant portion of the report and recommendation reads as follows:

With respect to the plaintiff's back condition, the record contains the February 27, 2004 report of the Lumbar Spine CT the plaintiff underwent on February 23, 2004. The report notes no abnormalities of L1-2 through L3-4. Although a mild disc bulge was evident at L4-5 and possibly L5-S1, there was no significant impingement. Furthermore, there was no HNP or spinal stenosis. The plaintiff's wheelchair was replaced with a cane on December 29, 2004, following a report of normal electromyogram and nerve conduction tests. In addition, at least as of July 5, 2005, the plaintiff had a current prescription for Tylenol #3. Thus, the record before the Court gives no indication that the defendants have been deliberately indifferent to the plaintiff's back condition. Furthermore, while the plaintiff may wish to see a neurosurgeon with regard to his back and shoulder complaints, there is nothing in the record to suggest that medical personnel who have examined the plaintiff believe such an appointment is necessary. Mere disagreement with regard to treatment does not support a claim that the plaintiff's Eighth Amendments rights have been violated. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).

(Docket Entry # 16, West Virginia action).

In addition, the magistrate judge in the West Virginia action pointed out that evaluations of petitioner's pacemaker at regular intervals revealed it was operating normally until a December 17, 2003 appointment during which a technician determined the battery was at the end of its life. The December 20, 2003 incident followed. In May 2007, the district judge adopted the report and recommendation and entered a final judgment. (Docket Entry # 35, West Virginia action).

After leaving FCI Gilmer in 2005, petitioner resided at federal facilities in North Carolina and Indiana before arriving at FMC Devens in August 2007. In 2008, petitioner filed the Massachusetts action. The amended complaint in the Massachusetts action raised a number of deliberate indifference Bivens claims against various individuals at FMC Devens (including Sabol, Dr. Howard and Dr. Barnett), the BOP and the United States.

Respondents also note that in 2007 petitioner filed anotherBivens action against Lappin and others in the Eastern District of North Carolina, Graham v. Stansberry, Civil Action No. 07-03015, which remained pending in October 2009.

In the Massachusetts action, the magistrate judge issued a report and recommendation in August 2009. (Docket Entry # 96, Massachusetts action). On August 20, 2009, the district judge adopted the report and recommendation and entered a final judgment.

On the merits, the magistrate judge rejected the deliberate indifference claim "that Barnett and Mercandante failed to evaluate his pacemaker or replace its battery with sufficient frequency." (Docket Entry # 12, ¶¶ 32-33, 41 56, Massachusetts action; Docket Entry # 98, Massachusetts action). He determined that petitioner's pacemaker "has been evaluated fifteen times since it was placed." (Docket Entry # 98, Massachusetts action). The magistrate judge also addressed and rejected petitioner's claim that he was denied access to a cardiologist while at FMC Devens. With respect to these deliberate indifference claims, the magistrate judge decided as follows:

Graham indicates that the pacemaker battery is checked every three-to-four months. Docket # 88 at 8. That is, less than one physician recommends — but more than another believes is necessary. Docket # 75 at ¶ 9. Graham desires monthly checks. Docket # 88 at 11. The medical attention applied to Graham's pacemaker is not so clearly inadequate as to amount to a refusal to provide essential care, but rather is a dispute about the proper level of treatment, which is not a basis for liability under the Eighth Amendment.

Similarly, Graham alleges that he was denied access to a cardiologist beginning in March, 2008. The record, however, indicates that he has been followed in FMC Devens' Cardiac Clinic by its medical staff and monitored by a contract cardiologist. See, e.g., Docket # 75, at ¶ 14; Id., Ex. A at 699-701 (a March 26, 2008, cardiology clinic visit); Id, [sic] at 25-27 (an October 2, 2008, cardiac clinic visit). His allegation again refers to the frequency and level of his care, rather than a refusal to provide care, or the provision of clearly inadequate care.

(Docket Entry # 98, Massachusetts action).

The amended complaint in the Massachusetts action also raised deliberate indifference claims based on a denial of a back brace and a refusal to perform needed shoulder surgery. In the report and recommendation, the magistrate judge summarized 12 categories of deliberate indifference claims. The ninth and tenth categories of deliberate indifference claims were "(9) that he was improperly denied a back brace (Id. at ¶ 47); [and] (10) that Dr. Howard refused him necessary shoulder surgery (Id. at ¶ 48)." (Docket Entry # 98, Massachusetts action). In the discussion section of the report and recommendation, the magistrate judge rejected the claims on the merits as a disagreement about the course of treatment rather than a constitutional violation. The relevant portion of the decision reads:

Likewise, Graham's allegations concerning a bowel obstruction do not concern a denial of care, but rather a disagreement as to the proper course of treatment . . . The same is true for Graham's allegations concerning his blephartis, his pain medication, the back brace, and his request for shoulder surgery. See Id. at ¶¶ 52-82; 84; 67-71.

In the case at bar, petitioner raises the similar deliberate indifference claim that he suffered a shoulder injury from being dropped while being transported to the hospital. His left shoulder became abnormal "which requires surgery that has not been done." (Docket Entry # 6, ¶ 6).

(Docket Entry # 98, Massachusetts action).

The amended complaint in the Massachusetts action additionally set out a deliberate indifference cause of action based on the absence of "treatment for a bowel obstruction that has been going on for years," and causing severe pain. (Docket Entry # 12, Massachusetts action). As indicated above, the magistrate judge rejected the claim on the merits.

DISCUSSION

In seeking summary judgment, as noted above, respondents submit that Lappin was not personally involved and that the United States is entitled to sovereign immunity. They also assert claim and issue preclusion arguments. (Docket Entry ## 11 41).

Addressing the arguments seriatim, it is well established that, "Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948 (2009) (noting that the respondent "correctly concedes" this principle); see Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1^st Cir. 2000) ("the plaintiff must state a claim for direct rather than vicarious liability; respondeat superior is not a viable theory of Bivens liability"). Supervisory liability is warranted where a supervisor is "a primary violator or direct participant in the rights-violating incident" or where "a responsible official supervises, trains, or hires a subordinate with deliberate indifference toward the possibility that deficient performance of the task eventually may contribute to a civil rights deprivation." Sanchez v. Pereira-Castillo, 590 F.3d at 49. Overall, there must be "an affirmative link, whether through direct participation or through conduct that amounts to condonation or tacit authorization." Id. "[P]roof of mere negligence, without more, is inadequate to ground supervisory liability." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 583 (1^st Cir. 1994).

In the amended petition, signed under penalties of perjury, petitioner states that he sent "letters to Harley Lappin" about the pacemaker batteries being allowed to die. (Docket Entry # 6, ¶ 5). Such letters allow the jury to draw an inference of personal involvement.See Rodriguez-Garcia v. Municipality of Caguas, 495 F.3d 1, 13 (1^st Cir. 2007). Summary judgment on the

Although not considered evidence by this court, petitioner argues in a brief that "he made Defendant Lappin aware of his need to have the battery to his pacemaker replaced but he did nothing" by letter dated November 24, 2003. (Docket Entry # 48, p. 2).

As explained more fully by the First Circuit inRodriguez-Garcia in addressing supervisory liability of a mayor in the context of an action brought under 42 U.S.C. § 1983:

We appreciate the reluctance to permit a jury to draw an inference about the personal involvement of the mayor on the basis of a letter sent to a department head. However, if the court had correctly admitted the Letters as evidence of the mayor's knowledge of Rodriguez-Garcia's complaint and his personal involvement in dealing with it, the court could no longer maintain that Rodriguez-Garcia was attempting to establish the mayor's liability based simply on his role as the supervisor of a department head. Instead, she would have had a basis for arguing that the mayor knew about and was directly involved in the disposition of her transfer and the failure to remedy it. Although appellees argue strenuously that there was no evidence that the mayor personally received the Letters sent to him, this is a factual question appropriate for jury determination.

Rodriguez-Garcia v. Municipality of Caguas, 495 F.3d at 13.

basis of Lappin's lack of personal involvement is therefore inappropriate.

Turning to the next argument, the availability of a Bivens claim "does not overcome bedrock principles of sovereign immunity so as to permit suits against the United States, its agencies, or federal officers sued in their official capacities." McCloskey v. Mueller, 446 F.3d at 272. Simply put, "A Bivens claim does not lie against the United States." Chiang v. Skeirik, 582 F.3d 238, 243 (1^st Cir. 2009) (citing McCloskey v. Mueller, 446 F.3d at 271-272). The United States is therefore subject to dismissal on summary judgment.

Respondents next submit that claim preclusion bars the 2003 heart attack, including the pacemaker, and the being dropped deliberate indifference claims. (Docket Entry ## 41 42). As to the deliberate indifference claims during petitioner's stay at FCI Gilmer from July 2003 to August 2005, Sabol maintains that claim preclusion precludes relitigation of the heart, including the pacemaker, and the back, shoulder and bowel obstruction deliberate indifference claims. (Docket Entry ## 11 12, pp. 6 17).

With a few exceptions, this court declines to reach the issue preclusion argument because claim preclusion bars the relevant claim.

The argument therefore does not raise or challenge the claim or issue preclusion effect of the inadequate dental care, the inadequate pain medication and the cessation of morphine medication and non-renewal of blood pressure medications deliberate indifference claims. The argument also fails to raise or address the retaliation claims for the August 2009 placement in administrative segregation and the transfers to different institutions. This opinion does not prevent respondents from raising such an argument in any future, timely dipositive motion.

Claim preclusion provides that "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S. 90, 94 (1980) (citations omitted). The doctrine "applies if (1) the earlier suit resulted in a final judgment on the merits, (2) the causes of action asserted in the earlier and later suits are sufficiently identical or related, and (3) the parties in the two suits are sufficiently identical or closely related." Airframe Systems, Inc. v. Raytheon Co., 601 F.3d 9, 14 (1^st Cir. 2010); accord In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 16 (1^st Cir. 2003) (applying federal law and setting out same three elements).

The courts entered final judgments in both the West Virginia and the Massachusetts actions.

Furthermore, "`Under the federal law of res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating claims that were raised or could have been raised in that action.'" Breneman v. U.S. ex rel. F.A.A., 381 F.3d 33, 38 (1^st Cir. 2004) (emphasis added). Consequently, once established, claim preclusion prevents relitigation of not only the claims actually litigated, such as those expressly or impliedly addressed by the magistrate judge in the Massachusetts action, but also the claims that petitioner could have raised in the Massachusetts action.

A later cause of action can also be sufficiently identical to an earlier cause of action involving the same conduct even if the conduct continues after the decision in the first action. See Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d 1, 3 (1^st Cir. 2001). Conversely, a "special incident different from what already occurred in the past" in the prior action may serve to differentiate the two causes of action such that claim preclusion does not apply. Id.

Turning to the West Virginia action and as previously indicated the magistrate judge addressed and rejected on the merits a being dropped deliberate indifference claim. As set out in the June 2006 report and recommendation, after being dropped from the ironing board being used as a stretcher, petitioner "lost consciousness and was transported to the hospital where corrective measures were taken, and there is no indication that he suffered any substantial or permanent harm as a result of the incident." (Docket Entry # 16, West Virginia action). The being dropped claim in the West Virginia action centered around the December 20, 2003 incident. Petitioner alleged that FCI Gilmore staff dropped him from the ironing board while transporting him to the hospital thereby injuring his back. (Docket Entry # 1, West Virginia action). This cause of action is sufficiently similar and, indeed, virtually identical to the being dropped deliberate indifference claim in this action.

The Warden and the Hospital Administrator at FCI Gilmer, both defendants in the West Virginia action, hold the same or similar positions as Grondolsky and Dr. Howard in this action. See, e.g.,Guzzi v. Clarke, 629 F.Supp.2d 161, 162 (D.Mass. 2009) (sufficient identity between Commissioner of Corrections and Superintendent of a prison and their successors in later suit to find parties were closely related for purposes of claim preclusion). Claim preclusion therefore bars relitigation of the being dropped deliberate indifference cause of action in this proceeding.

The magistrate judge in the West Virginia action also addressed and rejected on the merits the 2003 heart attack and the pacemaker deliberate indifferent causes of action. In the West Virginia action, as previously indicated, petitioner alleged he was denied access to a cardiologist when he arrived at FCI Gilmer in July 2003 and that his pacemaker battery was not replaced or checked on a regular basis. (Docket Entry # 1, West Virginia action). The magistrate judge rejected the pacemaker and the 2003 heart attack claims finding that petitioner's pacemaker was regularly checked and that, after being dropped from the ironing board being used as a stretcher, petitioner "lost consciousness and was transported to the hospital where corrective measures were taken, and there is no indication that he suffered any substantial or permanent harm as a result of the incident." (Docket Entry # 16, West Virginia action). Insofar as the pacemaker and 2003 heart attack deliberate indifference causes of action in this action, including seeing "Dr. Mercandante" only once and not having his pacemaker checked more frequently or replaced after five years, the claims are sufficiently similar to those in the case at bar. Like the being dropped claim, the parties in the West Virginia action are closely related to the parties in this action as to the 2003 heart attack and pacemaker deliberate indifference claims. See,e.g., Guzzi v. Clarke, 629 F.Supp.2d at 162.

The complaint in the West Virginia action did not use the term heart attack. It did, however, describe that on December 20, 2003, petitioner "became unconscious" and suffered chest pains on the day he was dropped from the ironing board. (Docket Entry # 1 Ex. H, West Virginia action).
Because the West Virginia action bars relitigation of the being dropped and 2003 heart attack claims, petitioner's argument that the magistrate judge in the Massachusetts action "did not provide a separate analysis on the 2003[] heart attack, being dropped by staff" claims, does not avoid the claim preclusion bar.

In the alternative as to the pacemaker claim, the magistrate judge in the Massachusetts action also addressed and rejected a pacemaker claim against Sabol, Dr. Barnett, Dr. Howard and others that is sufficiently similar to the pacemaker claim in the case at bar. The fact that the pacemaker claim spans an additional year does not prevent the doctrine's application. See, e.g.,Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d at 3 (recognizing that the allegedly same employment discrimination "conduct went on for two more years" than in the earlier action but finding the earlier and later causes of action had the necessary identity to satisfy the second element of claim preclusion). The parties in this action as to this claim are also identical (Dr. Howard) or closely related to the parties in this action as to the pacemaker deliberate indifference claim. See, e.g., Guzzi v. Clarke, 629 F.Supp.2d at 162.

The pacemaker deliberate indifference claim also fails on the merits. There is an absence of evidence to raise a reasonable inference to support the subjective component of a deliberate indifference claim. FMC Devens provided electrocardiograms and there is insufficient evidence to support that respondents were deliberately indifferent to the need to replace the batteries in petitioner's pacemaker.

The magistrate judge in the West Virginia action also addressed and rejected on the merits a deliberate indifference cause of action vis-à-vis petitioner's back condition. In the complaint, petitioner set out a deliberate indifference cause of action based on the lack of medical treatment for his back injury that resulted from the fall from the ironing board. The magistrate judge rejected the claim on the merits. The magistrate judge in the Massachusetts action similarly rejected on the merits the deliberate indifference claim grounded upon the denial of a back brace.

More specifically, petitioner complained about not seeing defendant Doris Williams, Medical Director at FCI Gilmer, until January 2004. (Docket Entry # 1, West Virginia action).

The Warden and the Hospital Administrator at FCI Gilmer hold the same or similar positions as Grondolsky and Dr. Howard in this action. Likewise, Sabol, a defendant in the Massachusetts action, is closely related to Grondolsky. See, e.g., Guzzi v. Clarke, 629 F.Supp.2d at 162. Petitioner sued Dr. Howard in both the Massachusetts and the present actions. The third element of claim preclusion with respect to the West Virginia and the Massachusetts actions is therefore satisfied with respect to the deliberate indifference claim based on the improper treatment of petitioner's back. In short, claim preclusion bars relitigation of the sufficiently similar deliberate indifference claim in this action and those in the West Virginia and the Massachusetts actions grounded upon the improper treatment of petitioner's back.

In the Massachusetts action, the magistrate judge rejected the deliberate indifference claim regarding the refusal to perform shoulder surgery. The shoulder deliberate indifference claim in the Massachusetts action and in this action both originate from petitioner being dropped in December 2003 on his way to the hospital. The parties are either identical or closely related in each action. Claim preclusion therefore applies.

As to the bowel obstruction deliberate indifference claim, the magistrate judge in the Massachusetts action rejected a sufficiently similar claim based on a failure to adequately treat petitioner's bowel obstruction at FMC Devens stating that:

Likewise, Graham's allegations concerning a bowel obstruction do not concern a denial of care, but rather a disagreement as to the proper course of treatment. Graham has complained of abdominal pain on numerous occasions, was examined both by FMC Devens medical staff and on several occasions at outside hospitals, and he received treatment and diagnostic imaging. Id. at ¶¶ 33-37. Physicians concluded that he had a small bowel obstruction and that surgery posed risks to him. Id. at ¶ 38.

(Docket Entry # 98, Massachusetts action). As previously intimated, the parties are identical or closely related with respect to this deliberate indifference claim. Claim preclusion therefore prevents petitioner from relitigating the sufficiently identical cause of action based on the improper treatment at the same facility, FMC Devens, in this proceeding. The additional year between the rejection of the claim in the Massachusetts action and the present does not salvage or resuscitate the claim.See, e.g., Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d at 3; Guzzi v. Clarke, 629 F.Supp.2d at 162.

Alternatively, FMC Devens staff were not deliberately indifferent.

The deliberate indifference cause of action based upon the failure to send petitioner to a cardiologist is likewise subject to summary judgment based on claim preclusion. The magistrate judge in the Massachusetts action rejected on the merits petitioner's deliberate indifference cause of action claim that he was denied access to a cardiologist while at FMC Devens. Claim preclusion prevents petitioner from raising the virtually identical claim in this proceeding against the same party, Dr. Howard, and the closely related parties, Sabol in the Massachusetts action and now Grondolsky in this action.

In sum, the deliberate indifference causes of action based on being dropped in 2003, the 2003 heart attack, the monitoring of his pacemaker and failure to replace its batteries, the improper treatment of petitioner's bowel obstruction, back and shoulder as well as the failure to send petitioner to a cardiologist and have his pacemaker replaced are subject to summary judgment based on claim preclusion. The following Bivens claims remain in this action: (1) deliberate indifference claims for the inadequate pain medication for petitioner's back, shoulder and teeth (Docket Entry # 44, Ex. A A-1; Docket Entry # 47, ¶ 4) and for condoning taking petitioner off morphine medication and not refilling blood pressure medication (Docket Entry # 44; Docket Entry # 48, p. 3); and (2) retaliation claims for placement in administrative segregation on or about August 5, 2009, in retaliation for seeking administrative remedies and complaining about Dr. Barnett (Docket Entry # 44, p. 9) and for transfers on more than 16 occasions to different institutions in retaliation for the exercise of his First and Eighth amendment rights (Docket Entry # 44, p. 10 Ex. 5).

Certain claims are also in the alternative subject to summary judgment on the merits.

MOTION FOR WRIT OF INJUNCTION

Petitioner seeks two forms of injunctive relief. First, he requests that Dr. Beam replace Dr. Barnett as his doctor at FMC Devens because the latter is incompetent and an alcoholic. Second, petitioner requests that he "be put back on pain medication that works-not morphine." (Docket Entry # 46) (emphasis in original).

Petitioner submits that he was under the care of Dr. Barnett "for almost two years" and filed numerous complaints against him. Petitioner further points out that Dr. Barnett was not at FMC Devens "for a few months" due to his "alcohol rehabilitation." During this absence, petitioner alleges that Dr. Beam successfully controlled his blood pressure and pain medication. When Dr. Barnett returned, however, petitioner was again placed under his care. Dr. Barnett proceeded to take petitioner off his pain medication, morphine, "all at once" and has done "nothing for his chronic back and shoulder pain." Dr. Barnett also refused to refer petitioner to a cardiologist and denied petitioner shoulder surgery. (Docket Entry # 46).

Petitioner additionally alleges that when "he was out of his medication, it took him almost 3 weeks for Dr. Barnett to order it for him." (Docket Entry # 46). He also contends in a conclusory fashion, see, e.g., Cole v. Maine Dept. of Corrections, 2008 WL 552768, *4 (D.Me. Feb. 27, 2008) (restricting analysis of preliminary injunction motion to non-conclusory argument), that retaliation is the custom and practice at FMC Devens. (Docket Entry # 46).

Petitioner does not identify the date at which point these events took place. The exhibit petitioner filed to support the motion consists of a September 15, 2009 response to a request for an administrative remedy by petitioner. In the response, Grondolsky states that, "A review of your medical records indicates your medications were not refilled." (Docket Entry # 46).

DISCUSSION

In seeking injunctive relief, petitioner cites "Rule 65(b)," Fed.R.Civ.P. ("Rule 65"), and 28 U.S.C. § 2248 ("section 2248"). Section 2248 is no longer applicable because this action is no longer proceeding as a habeas petition.

Rule 65(b) pertains to seeking and obtaining a temporary restraining order. Petitioner, however, served respondents with the motion for injunctive relief. He also seeks a long term remedy, to wit, being placed under the care of a different doctor. Absent a court finding good cause, a temporary restraining order expires no later than 14 days after entry. See Rule 65(b)(2), Fed.R.Civ.P. Petitioner is proceeding pro se, however, and the motion is properly classified as a motion for a preliminary injunction. See generally San Francisco Real Estate Investors v. Real Estate Investment Trust of America, 692 F.2d 814, 816 (1^st Cir. 1982) (construing district court order as preliminary injunction as opposed to temporary restraining order given notice and the duration of the court's order as beyond the then ten day limit). Even considering the motion as a motion for a temporary restraining order, however, petitioner is not entitled to relief because the balancing of the relevant factors detailed below does not support an injunction.

"To determine whether to issue a temporary restraining order, the Court applies the same four-factor analysis used to evaluate a motion for preliminary injunction." OfficeMax Inc. v. County Qwick Print, Inc., 2010 WL 1781009, *3 (D.Me. May 4, 2010).

In assessing a motion for a preliminary injunction, "a district court weighs four factors: (1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest." Jean v. Massachusetts State Police, 492 F.3d 24, 26-27 (1^st Cir. 2007). Respondents oppose injunctive relief because the deliberate indifference claims regarding the failure to send petitioner to a cardiologist, the inadequate control or denial of pain medication, the abrupt cessation of morphine and the denial of the request for shoulder surgery all fail on the merits. Respondents also argue that claim or issue preclusion bars the underlying claims.

For the reasons already discussed, the only remaining underlying deliberate indifference claims in this Bivens action are the inadequate pain medication for petitioner's back, shoulder and teeth (Docket Entry # 44, Ex. A A-1; Docket Entry # 47, ¶ 4) and for condoning taking petitioner off morphine medication and not refilling medications in July and August 2009 (Docket Entry # 44; Docket Entry # 48, p. 3). Although these claims are not presently the subject of summary judgment, petitioner fails to make a strong showing of a reasonable likelihood of success.

Petitioner submitted inmate requests to staff in August and October 2009 that evidence his receipt of Advil and Tylenol to control his pain. (Docket Entry # 44, Ex. A 4 of 3).

Alternatively, to state the obvious and for reasons already discussed, the other deliberate indifference claims lack any showing of a reasonable likelihood of success.

As to the pain medication claim, respondents argue that claim preclusion bars the cause of action. The argument is well taken to the extent it demonstrates the lack of a reasonable likelihood of success. The magistrate judge in the Massachusetts action addressed and rejected on the merits a sufficiently similar deliberate indifference claim. In the Massachusetts action, petitioner alleged a denial of adequate pain medication for his back, shoulder, foot spurs and arthritis. (Docket Entry # 12, ¶ 12, Massachusetts action). In the August 2009 report and recommendation, the magistrate judge set out the allegation as the sixth of 12 categories of deliberate indifference allegations. (Docket Entry # 98, p. 4, Massachusetts action). The magistrate judge rejected the allegation on the merits because it did "not concern a denial of care, but rather a disagreement as to the proper course of treatment." The district court adopted the report and recommendation and entered a final judgment that is currently on appeal.

This court's findings are limited to a reasonable likelihood of success because it is not appropriate to dismiss a claim on summary judgment based on an argument raised in opposing a motion for injunctive relief. Respondents have ample time to present a second summary judgment motion addressing claim preclusion and the merits on these remaining deliberate indifference claims.

For convenience, the relevant portion of the opinion, quoted previously in the summary judgment section, reads as follows:

Likewise, Graham's allegations concerning a bowel obstruction do not concern a denial of care, but rather a disagreement as to the proper course of treatment . . . The same is true for Graham's allegations concerning his blephartis, his pain medication, the back brace, and his request for shoulder surgery. See Id. at ¶¶ 52-82; 84; 67-71.

(Docket Entry # 98, Massachusetts action).

In this action, petitioner adds to the denial of pain medication claim the more recent complaints regarding inadequate pain medication to alleviate the pain in his teeth. (Docket Entry # 44, p. 8). The record evidences that the tooth pain occurred in July through November 2009 until alleviated by the November 19, 2009 extraction.

Exhibits in the record fail to show that the tooth pain continued to a significant degree after the November 19, 2009 extraction. Petitioner's most recent filing complains about abdominal pain and a bowel obstruction. (Docket Entry # 62).

The parties in the Massachusetts action and this action are identical (Dr. Howard) or sufficiently similar (Sabol in the Massachusetts action and Grondolsky in this action). See, e.g.,Guzzi v. Clarke, 629 F.Supp.2d at 162. The additional time span between the Massachusetts action and this action with "no special incident different" from the events in the past relative to denials of pain medication does not avoid claim preclusion.See, Havercombe v. Department of Education of the Commonwealth of Puerto Rico, 250 F.3d at 3 (applying claim preclusion notwithstanding passage of time and noting that "nothing in particular-no special incident different from what had already occurred in the past-is identified as having taken place after 1997"). Accordingly, in light of the relatively strong foundation for claim preclusion barring the inadequate pain medication claim as well as a weak showing to support the merits of a deliberate indifference claim regarding the tooth pain, there is a very weak showing on the reasonable likelihood of success on this claim.

The same showing results whether viewing these claims individually as separate deliberate indifference claims or collectively as a single deliberate indifference claim.

There is also a weak showing on the merits of the deliberate indifference claim regarding the non-renewal of prescription medication. It is true that Grondolsky noted in response to a request for an administrative remedy that, "A review of your medical records indicates your medications were not refilled." Grondolsky pointed out, however, that petitioner failed to first ask a staff member for an appointment at the outpatient clinic which is the ordinary system in a non-emergency situation such as the one at issue involving petitioner.

See the previous footnote.

Petitioner's more recent filing reveals administrative exhaustion of the claim but also shows that petitioner received refills of medication when requested. In particular, petitioner complained about a nonrenewal of blood pressure, heart and morphine medication when he went to the clinic at FMC Devens on July 2, 2009. Harrel Watts ("Watts"), Administrator of National Inmate Appeals, investigated the matter and determined that, "Further review reveals you have received refills on your medications when you requested." In reference to petitioner's complaint that he did not receive refills on August 26, 2009, Watts similarly noted that petitioner's medical records "reveal you have received prescription refills each time you have presented yourself to the Health Services Unit." (Docket Entry # 62, Ex. B B-1).

It also reflects that on December 9, 2009, petitioner was experiencing abdominal pain and being treated for the condition. (Docket Entry # 62, Ex. A A-1).

Turning to the remaining factors, irreparable harm may exist "if the plaintiff shows that [his] legal remedies are inadequate." Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18 (1^st Cir. 1996); see also Wolff v. NH Dept. of Corrections, 2007 WL 3232531, *1 (D.N.H. Oct. 30, 2007) (irreparable harm arises "when some harm from the challenged

conduct could not be adequately redressed with traditional legal or equitable remedies following a trial"). The record indicates that petitioner is receiving prescription refills and his medical condition is being addressed. There is also little potential for irreparable harm because it is unlikely that the inadequate control of pain medication and the alleged nonrenewals of medication are continuing at present and will continue in the future. Notably, petitioner recently changed his address from FMC Devens to Whiteville, North Carolina. (Docket Entry # 63).

The Wolff court declined to find irreparable harm on a similar claim inasmuch as Wolff, an inmate, was receiving sufficient medical care. The reasoning is equally applicable to the case at bar:

Wolff's claim that he is not being provided with adequate pain medication fares no better. The prison demonstrated that Wolff is being provided with a substantial amount of medical care, and that all of his medical concerns, including gastrointestinal ailments and pain, are currently being actively treated by prison medical staff. As is the case with the prepackaged meals, Wolff is not being provided with the medication regimen that he prefers. This, however, does not suffice to demonstrate that he will be irreparably harmed by the medical treatment he is receiving.

Wolff v. NH Dept. of Corrections, 2007 WL 3232531, *5 (D.N.H. Oct. 30, 2007).

The balance of the interests of the parties does not favor petitioner. Furthermore, it appears that petitioner is receiving constitutionally adequate care such that the public interest in providing constitutionally adequate care in accordance with the Eighth Amendment is being served. Moreover, the public interest is not well served by interfering with and delving into the day to day administration of FMC Devens by ordering the injunctive relief requested by petitioner, to wit, a different physician and "pain medication that works" (Docket Entry # 46). See generallySanchez v. Sabol, 539 F.Supp.2d at 459 (most court "can do is to order BOP officials to review Sanchez's request for a transplant in an expedited manner").

CONCLUSION

For the above reasons, the motions for summary judgment (Docket Entry ## 11 41) are ALLOWED in part and DENIED in part. The motions for leave to amend (Docket Entry ## 44 47) are ALLOWED in part and DENIED in part. The motion for writ of injunctive relief (Docket Entry # 46) is DENIED.

This action will proceed as a Bivens proceeding. The BOP and the United States are dismissed as parties. Grondolsky is substituted in place of Sabol. The deadline for fact discovery is October 29, 2010. The deadline to file dispositive motions is November 29, 2010. The deadline to file any motion for leave to amend, including a motion for leave to amend to include an additional party, has passed.