United States Court of Appeals
For the First Circuit
No. 08-2331
JOSEPH BRAGA,
Plaintiff, Appellant,
v.
THOMAS HODGSON,
INDIVIDUALLY AND IN HIS CAPACITY AS SHERIFF OF BRISTOL COUNTY,
AND CERTAIN UNKNOWN INDIVIDUALS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter, Associate Justice,* and Stahl, Circuit Judge.
Edward J. McCormick, III, for appellant.
Mary Jo Harris with whom Robert P. Morris and Morgan, Brown
& Joy, LLP, were on brief for appellee Hodgson.
May 14, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United states, sitting by designation.
STAHL, Circuit Judge. Plaintiff-appellant Joseph Braga,
a former inmate at the Bristol County House of Correction in
Dartmouth, Massachusetts, brought suit against defendant-appellee
Thomas Hodgson, Sheriff of Bristol County, Massachusetts.1 Braga
alleged that the Sheriff's negligent maintenance of the facility
caused him physical injuries (the "negligence claim") and that the
Sheriff intentionally or with deliberate indifference denied Braga
proper medical care, in violation of 42 U.S.C. § 1983 (the
"Section 1983 claim"). After considering written and oral
argument, the district court granted summary judgment in the
Sheriff's favor on both counts. Having carefully reviewed the
record, we affirm. Braga also appeals the district court's entry
of a protective order preventing Braga from deposing the Sheriff.
We affirm that decision as well.
We first address the protective order issue, because
Braga argues that his ability to create an adequate record to
survive summary judgment was undermined by not being permitted to
depose the Sheriff. Braga asserts that he made six attempts to
schedule a deposition of the Sheriff over the course of a year, all
1
Braga also named Prison Health Services, Inc. ("PHS") as a
defendant in his amended complaint. The district court granted
summary judgment in favor of PHS on one count (a claim under 42
U.S.C. § 1983), but denied summary judgment as to a second claim
against PHS (negligent provision of medical care regarding surgical
repair of his knee). Braga and PHS apparently settled the
negligence claim without proceeding to trial.
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of which were rebuffed due to scheduling conflicts. Only after
these six attempts did the Sheriff move for a protective order.
Under Fed. R. Civ. P. 26(c) a party may seek a protective
order to prevent or limit discovery in order to avoid "annoyance,
embarrassment, oppression, or undue burden or expense." While we
generally favor broad pretrial discovery, it is also true that the
"trial judge has broad discretion in ruling on pre-trial management
matters, and we review the district court's denial of discovery for
abuse of its considerable discretion." Ayala-Gerena v. Bristol
Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir. 1996).
The district court's oral decision granting the
protective order rested on a determination that, with all other
discovery completed, Braga had failed to put forth any evidence
whatsoever that (1) the Sheriff had any personal knowledge of
Braga's health care or (2) there was any basis for a Monell claim2
that there was a policy or practice of denying health care to
inmates. The court therefore granted the protective order,
concluding that Braga's request to depose the Sheriff did not
conform to Fed. R. Civ. P. 26(b)(1), which requires that "the
discovery appear[] reasonably calculated to lead to the discovery
of admissible evidence."
2
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694-95
(1978) (permitting Section 1983 suits against municipalities and
other local governments for a policy or custom that violates an
individual's constitutional rights).
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Having reviewed the summary judgment record, we agree
with the district court's conclusion that Braga put forth no
evidence or plausible argument suggesting that a deposition of
Hodgson was reasonably calculated to lead to other discoverable
materials regarding his claims against the Sheriff. See Heidelberg
Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41-42
(1st Cir. 2003). Neither at the motion hearing nor in his papers
to the district court or this court has Braga plausibly suggested
that the Sheriff had any personal knowledge of Braga's medical care
or that there was any policy or practice of denial of health care.
As such, the request to depose was not reasonably calculated to
yield discoverable materials and was instead closer to a fishing
expedition.3 See, e.g., Fennell v. First Step Designs, Ltd., 83
F.3d 526, 533-34 (1st Cir. 1996). Thus, finding no abuse of
discretion, we affirm the grant of the protective order.4
Braga also appeals from the district court's grant of
summary judgment as to the negligence and Section 1983 claims. We
3
This conclusion is based on the paucity of evidence put forth
by Braga in support of his claims against the Sheriff. We thus
affirm the district court's grant of a protective order without
reaching the issue pressed by the Sheriff on appeal, namely that
his status as a high-ranking public official provides an
alternative ground to affirm the protective order grant. A
resolution of this issue is not necessary here.
4
In its oral decision on the protective order, the district
court rightly acknowledged that deciding that issue required the
court to consider, at least preliminarily, the viability on the
merits of Braga's claims against the Sheriff. Indeed, the two
issues are closely intertwined for our purposes as well.
-4-
review both decisions de novo, Singh v. Blue Cross/Blue Shield of
Mass., Inc., 308 F.3d 25, 31 (1st Cir. 2002), and will affirm if
there is "no genuine issue as to any material fact and if the
moving party is entitled to judgment as a matter of law," Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Importantly, the
nonmoving party "may not rest upon mere allegation . . . but must
set forth specific facts showing that there is a genuine issue for
trial." Id. at 256. Employing these standards, we affirm the
district court's entry of summary judgment for the following
reasons.
First, the negligence claim was properly dismissed
because Braga failed to comply with the presentment requirement of
Massachusetts General Law 258, Section 4 (the Massachusetts Tort
Claims Act), which obliges a claimant to first present a negligence
claim against a public employer to the executive officer of the
public employer. See Weaver v. Commonwealth, 438 N.E.2d 831, 833-
36 (Mass. 1982). Braga stipulated before the district court that
he made no such presentment and he offers no compelling argument on
appeal that we should ignore the rule that presentment should be
made "in strict compliance with the statute." Id. at 834, 47. We
therefore affirm the grant of summary judgment as to the negligence
claim.5
5
We also note that, beyond the presentment problem, Braga's
own deposition fatally undermined his negligence claim. He alleged
in his complaint that the Sheriff failed to maintain the jail in a
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Second, the district court also properly granted summary
judgment as to Braga's Section 1983 claim against the Sheriff in
his individual and official capacities. As to Braga's individual
capacity claim, the summary judgment record showed absolutely no
evidence of the Sheriff's personal involvement with or knowledge of
Braga's medical care.6 See Rogan v. Menino, 175 F.3d 75, 77 (1st
Cir. 1999) ("It is axiomatic that the liability of persons sued in
their individual capacities under section 1983 must be gauged in
terms of their own actions."). Therefore, this claim has no merit
and summary judgment was warranted.
As to the Sheriff's actions in his official capacity, the
district court granted summary judgment because it found that there
was not sufficient evidentiary support to sustain Braga's claim of
an Eighth Amendment violation. Having reviewed the summary
judgment record, we agree.
reasonably safe manner, which in turn caused an injury to his knee.
Yet Braga was unable, at deposition, to identify the cause of the
knee injury or what area of the jail had been negligently
maintained. When asked how his knee was injured he replied, "I do
not know." He went on to answer similar questions with "I don't
know," "I don't remember," and "I just don't remember what [the
cause of the injury] was." Plainly, then, there was no factual
basis for his claim of negligence.
6
On appeal, Braga attempts to create a question of material
fact on this issue by pointing to his post-deposition affidavit
wherein he, Braga, alleged that he sent several letters to the
Sheriff complaining of his medical treatment while he was
incarcerated. However, the district court granted the Sheriff's
motion to strike that affidavit and Braga did not appeal from that
grant. Therefore the affidavit is not part of the record before
us.
-6-
Where a prisoner claims that his Eighth Amendment rights
were violated by denial of access to proper medical care, "he must
prove that the defendants' actions amounted to 'deliberate
indifference to a serious medical need.'" DesRosiers v. Moran, 949
F.2d 15, 18 (1st Cir. 1991) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)). "Moreover, inadvertent failures to provide
medical care, even if negligent, do not sink to the level of
deliberate indifference. In order to establish deliberate
indifference, the complainant must prove that the defendants had a
culpable state of mind and intended wantonly to inflict pain." Id.
at 19 (citations omitted).
Braga's allegations of harm inflicted by prison officials
come nowhere near the level of deliberate indifference required.
Braga cites four incidents which he says were sufficient to permit
his claim against the Sheriff to survive summary judgement. Two of
these claims (that a prison doctor refused to provide answers over
the phone to a hospital emergency room doctor regarding Braga's
heart medication, and that a prison doctor threatened Braga with
solitary confinement if he kept submitting sick slips complaining
of health problems) only involve allegations of wrong-doing by
doctors employed by Prison Health Services, Inc., rather than
corrections officials. Without more, they therefore do not support
an Eighth Amendment claim against the Sheriff.
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Braga's other two allegations implicate corrections
officials. First, he alleges that on one occasion corrections
officers removed him from the medical unit before he received his
daily medication in order to comply with the guard schedule.
However, he does not allege that he suffered any ill effect from
this medication delay.
Second, he alleges that officers removed him from a
hospital before he had a heart ventricle unblocked, contrary to
doctor's orders. However, the medical report in the record shows
that he was discharged by the hospital after undergoing a cardiac
catheterization that ruled out a heart attack and confirmed "mild
to moderate disease involving the [left anterior descending artery]
with normal left ventricular function." The recommended treatment
was "ongoing medical therapy . . . for risk factor modification"
and use of a "lipid-lowering agent." In other words, his discharge
appears consistent with the medical recommendation of the hospital
physicians. Further, at his own deposition, Braga admitted that
the hospital doctors "said [the heart problem] would eventually
need to be taken care of. And when I asked if it was life-
threatening, they said no." We therefore agree with the district
court that Braga failed to put forth any evidence at all to support
his theory of deliberate indifference to his medical care.7
7
We need not reach an additional, obvious infirmity with
Braga's Section 1983 claim, namely that he cannot connect his
allegedly poor medical treatment to any action or inaction of the
-8-
For the foregoing reasons, we affirm the district court's
grant of a protective order and entry of summary judgment.
Affirmed.
Sheriff or to any policy or practice of the county.
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