United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND UNITED STATES MAGISTRATE JUDGE
before the Court is the Motion for Summary Judgment filed
pursuant to Fed.R.Civ.P. 56 by Defendants Lifespan Physician
Group, Inc. (“LPG”) and Michael Burgard, M.D.
(ECF Doc. No. 44). Plaintiff Donna Longwolf filed an
Objection. (ECF Doc. No. 47). This matter has been referred
to me for preliminary review, findings and recommended
disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72(a).
After reviewing the parties' Memoranda and relevant case
law, I recommend that the Motion for Summary Judgment be
was an inmate at the Rhode Island Adult Correctional
Institutions (“ACI”), who was seen and medically
interviewed during the intake process on or about October 4,
2014. (ECF Doc. No. 29 at p. 5). During the medical
interview, Plaintiff notified ACI staff that she had been
taking Xanax or an equivalent benzodiazepine medication for
approximately twenty years and was taking up to six
milligrams per day. Id. Plaintiff alleges that she
was notified of the ACI's policy that “benzos are
not utilized at this facility.” Id. Following
her intake, Plaintiff was initially given a reduced dose of
Xanax, which was ultimately terminated altogether on or about
October 21, 2014. Id. at pp. 6-7. Thereafter, she
suffered seizures on or about October 9, 2014 and again on
October 25, 2014. (ECF Doc. No. 49 at ¶ 3).
September 19, 2017, Plaintiff filed her Complaint in this
case, alleging that the seizures resulted from being
improperly medicated at the ACI. Id. at ¶ 4.
Specifically, she alleges her prescription for benzodiazepine
was not properly administered and that she suffered cardiac
arrest following the second seizure and sustained permanent
injuries. (ECF Doc. No. 55-1 at ¶ 2).
to filing this case, Plaintiff possessed a Medication Sheet
& Administration Records (“MARS”) provided by
the Rhode Island Department of Corrections (DOC) which
identified Dr. Burgard, a psychiatrist, as a prescriber for
at least one of Plaintiff's medications. (ECF Doc. No.
55-1 at ¶ 3; ECF Doc. No. 49 at ¶ 5). Dr. Burgard
was not initially named in the Complaint, but was added as a
Defendant following a Rule 16 Conference, as a result of what
Plaintiff claims were representations made by the Assistant
Attorney General indicating that Defendant Burgard was
somehow responsible for Plaintiff's care or overall care
or continuity of care, at least in relation to the failure to
prescribe or ensure the continuation of a prescription for
benzodiazepine to the Plaintiff. (ECF Doc. No. 55-1 at ¶
26). On or about December 29, 2017, Plaintiff's counsel
learned that Defendant Burgard was employed by LPG. Plaintiff
was unaware up until that point that LPG had contracted with
the DOC to provide psychiatric services. Id. at
shall be entitled to summary judgment “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(c). When deciding a
motion for summary judgment, the Court must review the
evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in the nonmoving
party's favor. Cadle Co. v. Hayes, 116 F.3d 957,
959 (1st Cir. 1997).
judgment involves shifting burdens between the moving and the
nonmoving parties. Initially, the burden requires the moving
party to aver “an absence of evidence to support the
nonmoving party's case.” Garside v. Osco Drug,
Inc., 895 F.2d 46, 48 (1st Cir. 1990)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). Once the moving party meets this burden, the burden
falls upon the nonmoving party, who must oppose the motion by
presenting facts that show a genuine “trialworthy issue
remains.” Cadle, 116 F.3d at 960 (citing
Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d
731, 735 (1st Cir. 1995); Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 581 (1st
Cir. 1994)). An issue of fact is “genuine” if it
“may reasonably be resolved in favor of either
party.” Id. (citing Maldonado-Denis,
23 F.3d at 581).
oppose the motion successfully, the nonmoving party must
present affirmative evidence to rebut the motion. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257
(1986). “Even in cases where elusive concepts such as
motive or intent are at issue, summary judgment may be
appropriate if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, [or]
unsupported speculation.” Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990). Moreover, the “evidence illustrating the factual
controversy cannot be conjectural or problematic; it must
have substance in the sense that it limns differing versions
of the truth which a factfinder must resolve.”
Id. (quoting Mack v. Great Atl. & Pac. Tea
Co., 871 F.2d 179, 181 (1st Cir. 1989)).
Therefore, to defeat a properly supported motion for summary
judgment, the nonmoving party must establish a trialworthy
issue by presenting “enough competent evidence to
enable a finding favorable to the nonmoving party.”
Goldman v. First Nat'l Bank of Boston, 985 F.2d
1113, 1116 (1stCir. 1993) (citing
Anderson, 477 U.S. at 249).
Second Amended Complaint contains ten counts set forth under
federal and state law. Defendants LPG and Dr. Burgard have
moved for summary judgment, alleging that each of
Plaintiff's claims against them are time-barred because a
three-year statute of limitations applies. It is without
dispute that Plaintiff alleges she was injured in October
2014, but LPG and Dr. Burgard were not named in the case
until more than three years later on January 16, 2018, when
the Second Amended Complaint was filed. In their Motion for
Summary Judgment, Defendants assert that the claims against
them neither “relate back” pursuant to
Fed.R.Civ.P. 15, nor does Rhode Island's “John
Doe” statute, R.I. Gen. Laws § 9-5-20, permit them
to be substituted for the John Doe Defendants named in the
Complaint. In her Objection, Plaintiff does not dispute that
a three-year limitations period applies, nor does she contend
that the claims “relate back, ” but she does
assert that the “John Doe” statute applies and
saves her claims.
9-5-20 of the Rhode Island General Laws, the so-called
“John Doe” statute, provides: “[w]henever
the name of any defendant or respondent is not known to the
plaintiff, the summons and other process may issue against
him or her by a fictitious name… and if duly served,
it shall not be abated for that cause, but may be amended
with or without terms as the court may order.” Rhode
Island courts have held that the tolling provisions of §
9-5-20 apply only when the name of the “John Doe”
defendant is unknown to the plaintiff. See Sola v.
Leighton, 45 A.3d 502 (R.I. 2012). It “permits a
plaintiff to toll an applicable statute of limitations
against a known but then unidentifiable defendant.”
Grossi v. Miriam Hosp., 689 A.2d 403, 404 (R.I.
1997). Further, a plaintiff must act with “reasonable
diligence” to determine the name of the “John
Doe” defendant. Delight W. v. Hill-Rom Co.,
No. K.C. 2003-0175, 2005 WL 2101413, at *4 (R.I. Super. Aug.
LPG and Dr. Burgard argue that Plaintiff cannot avail herself
of the provisions of § 9-5-20 because Dr. Burgard's
name was “known” to Plaintiff since he was listed
as a prescriber of medication on the MARS that Plaintiff had
possession of prior to filing her original Complaint. (ECF
Doc. No. 44 at p. 8). Defendants argue that Dr. Burgard's
“name and identity were conspicuously identified”
in the medical records Plaintiff ...