[NOT FOR PUBLICATION]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
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
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
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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