Massey v. Rufo, Etc.

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 92-1380 

                                    GAYLON MASSEY,

                                Plaintiff, Appellant,

                                          v.

                              ROBERT RUFO, ETC., ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges. 
                                   ______________

                                 ____________________

Gaylon Massey on brief pro se.
            _____________
            Melissa   J.  Garand,  on  Motion  for  Summary  Disposition,  for
            ____________________
        appellees.

____________________

                                   January 14, 1994
                                 ____________________

Per Curiam.   Gaylon Massey filed an action  in the
                      __________

            district court pursuant  to 42 U.S.C.   1983.  At the time of

            the events  described in  the  complaint, he  was a  pretrial

            detainee at the  Suffolk County Jail.   His complaint alleged

            that  his  constitutional   rights  were  violated   by  jail

            personnel by the  use of excessive force, by their deliberate

            indifference  to his  medical needs  and  by the  involuntary

            administration of psychotropic drugs.  The district court, in

            a  margin  order,  granted  defendants'  motion  for  summary

            judgment  on the ground that plaintiff had failed "to support

            his substantive allegations by factual evidentiary material."

            It also denied plaintiff's motion to amend the complaint  and

            his request for  an extension of time  to complete discovery.

            Plaintiff appeals.

                      A.  Deliberate Indifference to Medical Needs
                          ________________________________________

                      To  prevail  on   such  a  claim,  plaintiff   must

            establish  that defendants' actions  amounted to  the "wanton

            infliction of unnecessary pain."  Estelle v. Gamble, 429 U.S.
                                              _______    ______

            97, 104 (1976).  "Deliberate indifference to  serious medical

            needs of  prisoners" satisfies this  standard.  Id.  at 104.1
                                                            ___

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            1.  Because plaintiff  was  a pretrial  detainee, the  Eighth
            Amendment does not apply;  rather, the due process clause  of
            the   Fourteenth  Amendment   is   the  rubric   under  which
            plaintiff's claims are  analyzed.  See  Bell v. Wolfish,  441
                                               ___  ____    _______
            U.S. 520, 535 n.16 (1979); Elliot v. Chesire County, 940 F.2d
                                       ______    ______________
            7,  10   &  n.1   (1st  Cir.   1991)  (applying   "deliberate
            indifference"  standard under  the due  process  clause to  a
            claim  of inadequate medical treatment provided to a pretrial
            detainee).

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Negligence and inadvertence in providing medical treatment do

            not state a  valid claim of deliberate indifference.   Id. at
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            105-06.

                      "Where  the dispute  concerns  not the  absence  of

            help, but  the choice  of a certain  course of  treatment, or

            evidences mere disagreement with considered medical judgment,

            we will  not second guess the doctors."  Sires v. Berman, 834
                                                     _____    ______

            F.2d 9,  13 (1st Cir.  1987).  In this  situation, deliberate

            indifference  may  be established  only "where  the attention

            received is `so clearly inadequate  as to amount to a refusal

            to provide  essential care.'"   Torraco v. Maloney,  923 F.2d
                                            _______    _______

            231, 234 (1st Cir. 1991)  (quoting Miranda v. Munoz, 770 F.2d
                                               _______    _____

            255, 259 (1st Cir. 1985)).  There is nothing in the record to

            show  any refusal to  treat plaintiff.  He  was seen the same

            day as the incident, provided  with medication and sent for a

            consultation to the hospital.  Plainly, there  is no material

            question  of  fact  that  defendants  were not  "deliberately

            indifferent" to  plaintiff's medical needs.   Discovery would

            not aid plaintiff.

                      B.  Involuntary Medication with Psychotropic Drugs
                          ______________________________________________

                      It  has been  clear  since  February  1990  that  a

            prisoner  "possesses   a  significant  liberty   interest  in
            ________

            avoiding the  unwanted administration of  antipsychotic drugs

            under  the Due Process  Clause of the  Fourteenth Amendment."

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See  Washington  v.  Harper, 494  U.S.  210,  221-22 (1990).2
            ___  __________      ______

            Harper  involved a  challenge to  the  state of  Washington's
            ______

            procedures for  medicating  prisoners housed  in its  Special

            Offender Center  (SOC), an institution  for convicted  felons

            with serious  mental illnesses.   The  specific question  the

            Court  addressed was whether  a judicial hearing  is required

            before  a  state  may  treat  a  mentally-ill  prisoner  with

            antipsychotic drugs against his will.  Id. at 213.  The Court
                                                   ___

            determined that the SOC's policies, which did not provide for

            such a hearing, were constitutional.  Id. at 231.
                                                  ___

                      The facts of the case at hand, however, concern not

            the treatment of a prisoner with antipsychotic drugs, but the
                _________

            emergency  administration of this kind of medication based on
            _________

            a pretrial detainee's threatening behavior.  Qualified

            immunity  protects state actors  from damages claims  under  

            1983  "insofar  as  their conduct  does  not  violate clearly

            established statutory  or  constitutional rights  of which  a

            reasonable person would  have known."  Harlow  v. Fitzgerald,
                                                   ______     __________

            457 U.S.  800, 818 (1982).   That is, "[t]he contours  of the

            right must be  sufficiently clear that a  reasonable official

____________________

            2.  In 1992,  in Riggins v.  Nevada, 112 S. Ct.  1810 (1992),
                             _______     ______
            the Court decided that  a detainee had the  right to be  free
            from treatment  with antipsychotic drugs during  trial unless
            the state had  determined that "treatment  with antipsychotic
                                            _________
            medication  was medically  appropriate and,  considering less
            intrusive  alternatives,  essential  for  the  sake  of  [the
            detainee's] own safety or the safety of others."  Id. at 1815
                                                              ___
            (emphasis added).

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would  understand that what he is doing violates that right."

            Anderson v. Creighton, 483 U.S. 635, 640 (1987).
            ________    _________

                      The events here took place in late August and early

            September  1990,  over  five months  after  Harper  issued in
                                                        ______

            February.  However, we do  not think the right established in

            Harper bears a  sufficient relationship to the  right alleged
            ______

            here.  That is, there  was no caselaw in August  or September

            1990 that  clearly established that a pretrial detainee had a

            right  under  the  Fourteenth  Amendment  to  the  procedures

            announced  in Harper before  he could be  given antipsychotic
                          ______

            medicine in an emergency situation.

                      C.  Excessive Force
                          _______________

                      The standards  governing the use of excessive force

            are set out  in Whitley v. Albers,  475 U.S. 312 (1986).   To
                            _______    ______

            show an  Eighth Amendment  violation when  force is used,  an

            inmate   must  demonstrate   "the   unnecessary  and   wanton

            infliction of  pain."3  Id.  at 320.  This  inquiry, in turn,
                                    ___

            depends on "`whether force was applied in a good faith effort

            to  maintain  or   restore  discipline  or   maliciously  and

            sadistically for the very purpose  of causing harm.'"  Id. at
                                                                   ___

            320-21  (quoting Johnson  v. Glick, 481  F.2d 1028,  1033 (2d
                             _______     _____

            Cir.), cert.  denied, 414  U.S. 1033  (1973)).   Finally, the
                   _____________

            Court has  recognized that  deference should  be accorded  to

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            3.  In cases  involving pretrial  detainees, the Due  Process
            Clause applies.   Graham  v. Connor, 490  U.S. 386,  395 n.10
                              ______     ______
            (1989).

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prison  administrators in the  use of practices  and policies

            that they believe  are necessary to maintain  the security of

            the institutions they run.  Id. at 321-22.
                                        ___

                      To  be entitled to summary judgment, a moving party

            must "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).  Once the movant has

            met this  standard, the burden shifts to the non-moving party

            to establish  the existence  of "at least  one issue  that is

            both  `genuine' and `material.'"  Kelly v. United States, 924
                                              _____    _____________

            F.2d 355,  357 (1st  Cir. 1991)  (citation omitted);  Fed. R.

            Civ. P. 56(e).   Here, plaintiff did not  file any affidavits

            or  other  record  evidence  in  opposition  to  the  summary

            judgment motion.

                      Turning to  defendants' evidence,  we do  not think

            that  the record  is adequate  to  support summary  judgment.

            Plaintiff  alleges in  his complaint  that  he was  "severely

            beating [sic] by several of the  defendants which resulted in

            a  separation [sic]  shoulder, lacerations  to  the face  and

            head, bruises  to the chest,  arms and groin area,  caused by

            the excessive use of force."   He also claims that defendants

            caused  the  "unnecessary  and wanton  infliction  of  pain."

            Next, plaintiff states that when he insisted on finishing his

            meal, his  food tray was  grabbed and that the  jailer shoved

            him; he  then  states that  he  was jumped  on and  his  arms

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twisted behind him.   Finally, he claims that  he was dragged

            to a cell while being kicked all over.

                      There are four disciplinary reports relating to the

            incident in  question.   The first  two describe  plaintiff's

            refusal to return to his room after dinner.  According to the

            officers, plaintiff  threw down  his spoon,  said he was  not

            going back  to his room and told the officers that they might

            as well take  him to "the hole."   These officers immediately

            notified the Sheriff's Emergency  Response Team ("S.E.R.T.").

            There are  no  reports  from  any  members  of  the  S.E.R.T.

            concerning precisely in what manner plaintiff was  restrained

            and how much force actually  was used to subdue plaintiff and

            take him to a cell.  The only references to the  incident are

            contained  in  the  reports  of  the  two  officers  who  had

            originally  called the  S.E.R.T.    They  state  simply  that

            plaintiff "was restrained and taken to the 6-1 unit."

                      In their  motion for  summary judgment,  defendants

            simply assert that the officers  "used no more force than was

            necessary."   They cite,  in support of  this conclusion, the

            log book  for August 31st;  the only relevant  information on

            the page in  question simply states that at  5:25 p.m., "Sert

            team  called   to  move   inmate  Gaylon   Massey  to   6-1."

            Significantly,  there are no affidavits from  any of the jail
                                      __

            personnel stating that  they did not use any  more force than

            they reasonably believed necessary and that the force was not

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excessive, much less any affidavits describing what, in fact,

            actually happened.  

                      In  general, grants of summary judgment in cases of

            this kind have  rested upon affidavits describing  the actual

            event and refuting the suggestion of undue force.  See, e.g.,
                                                               ___  ____

            Tarpley  v. Greene,  684 F.2d  1, 4  (D.C. Cir.  1982) (where
            _______     ______

            plaintiff  filed a     1983  action  claiming  that  officers

            assaulted him during a  search of his home, summary  judgment

            appropriate  because   defendant  filed   an  "uncontroverted

            affidavit" denying assault took place).  Even if jail records

            were treated as a substitute, the records here -- as noted --

            also fail  to provide  such a description  of the  nature and

            extent of the  force used.   Thus, we  think that the  record

            falls short of establishing that there is no material dispute

            about the use of undue force and that a remand is required on

            that claim.

                      In fairness  to the  able district  judge, we  note

            that there is an affidavit supporting the view that plaintiff

            had been guilty of disruptive behavior on two prior occasions

            in August 1990.  It is  a fair guess that, when the  officers

            do file affidavits, they will not only assert the gist of the

            disciplinary  reports relating to  August 31, 1990,  but will

            also seek to show that they did not use excessive force.  The

            medical records indicate  a sprained shoulder but there is no

            indication of laceration  or severe wounds.   Accordingly, we

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express   no  view  on   whether  summary  judgment   may  be

            appropriate  if and when officer affidavits addressed to this

            incident are submitted. 

                      The judgment of  the district court is  affirmed as
                                                              ________

            to the  claims  of  deliberate  indifference  to  plaintiff's

            medical  needs  and  the  involuntary  administration  of  an

            antipsychotic drug.  The judgment  is vacated as to the claim
                                                  _______

            that defendants  used excessive  force in  removing plaintiff

            from the dining  area and the matter is  remanded for further
                                                     ________

            proceedings.

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