MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS
RICHARD G. STEARNS, District Judge.
Plaintiff Rashad Rasheed, a Massachusetts prison inmate and Type II diabetic, was until recently confined at the Souza-Baranowski Correction Center (SBCC) in Shirley, Massachusetts. Rasheed filed this multi-count Complaint alleging deliberate indifference by SBCC staff and others to his serious medical needs, principally those involving skin care medications. Rasheed alleges that defendants have blocked or confiscated his supplies of free over-the-counter moisturizing lotion and antibiotic ointment. Rasheed alleges that he needs these medications to treat skin conditions caused by his diabetes, and that he cannot personably afford to purchase them from the prison canteen. Compl. ¶¶ 16-17. The eight-count Complaint alleges violations of the Eighth Amendment; the Americans with Disabilities Act (ADA); the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the First, Sixth, and Fourteenth Amendments. Rasheed also alleges negligence against defendants Newry and Nelson. See Compl. ¶78.
Defendants move to dismiss the Complaint on various grounds: that Rasheed has failed to plead sufficient facts to meet the notice requirement of Fed. R. Civ. P. 8(a)(2); that the core claims are precluded by Judge O'Toole's rulings in a prior lawsuit brought by Rasheed; that Rasheed's claims are moot; and that defendants UMass Correctional Health (UMCH) and the Massachusetts Department of Correction (DOC) as agencies of the Commonwealth of Massachusetts are immune from suit under the Eleventh Amendment. Rasheed opposes the motion contending that defendants have waived any immunity defense by opposing his prayer for injunctive relief, that res judicata does not attach as his prior medical needs complaint was dismissed without prejudice, and that he his constitutional violations are adequately pled.
BACKGROUND
UMCH, under the auspices of the University of Massachusetts Medical School (UMMS), provides medical and dental care to prisoners incarcerated at SBCC. Pursuant to department regulations and the contract with UMMS, in matters involving the provision of medical services, the DOC officials is obligated to defer to the independent clinical judgments of UMCH medical personnel. See 103 DOC § 610.00 et seq. The DOC contract with UMMS provides, in pertinent part:
According to the Complaint, in October of 2011, UMCH personnel prescribed Sween Cream, Bacitracin, Erythromicin, and tolnaftate powder and cream to treat diabetic sores on Rasheed's toe, foot and leg. See Compl. ¶ 20. In December of 2011, Bartholomew Nelson, a UMCH nurse practitioner, renewed these prescriptions for another 130 days. Id. ¶ 21. However, Rasheed contends that in January of 2013, Carmen Newry, another UMCH nurse practitioner, "refused to provide Rasheed his prescribed Bacitracin because [he] refused to explain to her why he needed [it] and permit her to examine him."
Dr. Patricia Ruze, the Site Medical Director for MCI Concord (where Rasheed is presently confined), states in an affidavit that Rasheed has been given Sween Cream and Clindamycin to treat and prevent any future skin irritations. However, "instead of properly using this medication as prescribed," Rasheed "maintained 4 bottles of Clindamycin and 2 jars of Sween Cream [in his cell]." Ruze Aff. ¶ 6.
Id. ¶¶ 7-16.
DISCUSSION4
Under Rule 12 of the Federal Rules of Civil Procedure, a defendant may move for dismissal of a plaintiff's complaint if the court "lack[s] . . . jurisdiction over the subject matter." Fed. R. Civ. P. 12(b)(1). "[T]he party invoking the jurisdiction of a federal court carries the burden of proving its existence." Id., quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993). As explained by the First Circuit, the "Eleventh Amendment has been described as implicating subject-matter jurisdiction." Davila v. Corporacion de Puerto Rico Para La Difusion Publica, 498 F.3d 9, 13 (1st Cir. 2007).
Under the Eleventh Amendment, "states are immune . . . from private suit in federal courts, absent their consent" for claims seeking money damages. Greenless v. Almond, 277 F.3d 601, 606 (1st Cir. 2002). This immunity extends to any entity that is an "arm of the state." Wojcik v. Massachusetts State Lottery Comm'n, 300 F.3d 92, 99 (1st Cir. 2002). Whether an agency is in fact an "arm of the state" is determined by federal law. Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 n.5 (1997). The federal test considers, among other factors, the agency's ability to satisfy judgments from its own funds, whether its functions are governmental or proprietary, whether the agency is separately incorporated, the extent to which the State exerts control over the agency, whether the agency has the power to sue in its own right, whether its property is taxed by the State, and whether the State has immunized itself from the agency's acts or omissions. Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct & Sewer Auth., 991 F.2d 935, 939-940 (1st Cir. 1993). Where the factors point in conflicting directions, "then the dispositive question concerns the risk that the damages will be paid from the public treasury." Fresenius Med. Care Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 68 (1st Cir. 2003).
In applying the test, federal courts have uniformly found that UMMS is an agency of the state created by a statute, Mass. Gen. Laws ch. 75, §34, that specifically authorizes the Trustees of the University of Massachusetts to create and maintain a medical school and is thus shielded by Eleventh Amendment immunity. See, e.g., Orell v. Umass Memorial Med. Ctr., Inc., 203 F.Supp.2d 52, 60 (D. Mass. 2002) (UMMS "is a public institution established under the laws of the Commonwealth and is, accordingly, an agency of the state entitled to Eleventh Amendment immunity."). It follows that UMCH, which is a component of UMMS created to provide medical care for state prisoners, shares the same attributes of sovereign immunity. See Cullinan v. Mental Health Mgmt. Corr. Servs., Inc., 2012 WL 2178927, at *1-2 (D. Mass. June 11, 2012) (finding Eleventh Amendment immunity as to prisoner's section 1983 claims); McGee v. UMass Corr. Health, 2010 WL 3464282, at *2-3 (D. Mass. Sept. 1, 2010) ("The Court accordingly finds that UMCH, as a program completely encapsulated within UMMS and the UMass, is an arm of the state for purposes of determining Eleventh Amendment immunity."); Jaundoo v. Clarke, 690 F.Supp.2d 20, 29 (D. Mass. 2010) ("Because UMCH is a program operated by the UMMS, it too is an arm of the State.").
ORDER
For the foregoing reasons, defendants' joint motion to dismiss is
SO ORDERED.
FootNotes
Pl. Opp'n Mem. at 4.
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