United States Court of Appeals
For the First Circuit
No. 03-2611
MARÍA ALSINA-ORTIZ; THE ESTATE OF ORLANDO OCASIO-ALSINA,
(composed of María Alsina-Ocasio)
Plaintiffs, Appellants,
v.
ZOÉ LABOY; CONJUGAL PARTNERSHIP OCHOA-LABOY; SIXTO MARRERO;
CÁNDIDA ROSA ORTIZ-ZAYAS, a/k/a JANE DOE 98CV1893; CONJUGAL
PARTNERSHIP DOE-GUZMÁN; EMILIO CASTILLO; MERCEDES ROSADO, a/k/a
MARY DOE; 98CV1893; CONJUGAL PARTNERSHIP CASTILLO ROSADO; ILEANA
TORRES-MOJICA; JOE DOE 98CV1893; CONJUGAL PARTNERSHIP DOE-TORRES;
CONJUGAL PARTNERSHIP TORRES-MÉNDEZ; CLARK DOE 98CV1893; CONJUGAL
PARTNERSHIP MELECIO-AYALA, a/k/a CONJUGAL PARTNERSHIP MELECIO-
DOE; JAKE DOE 98CV1893,
Defendants, Appellees.
__________
DELFOS OCHOA, a/k/a JOHN DOE 98CV1893; ELLIOT MELECIO-VEGA;
AMARILIS AYALA-MARTÍNEZ, wife of Dr. Elliot Melecio-Vega; ERNESTO
TORRES-ARROYO; OLGA I. MÉNDEZ-FLORES, a/k/a NANCY DOE 98CV1893;
AIDA GUZMÁN; ILEANA TORRES-MOJICA,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Carter,* District Judge.
*
Of the District of Maine, sitting by designation.
Glenn Carl James-Hernández with whom James Law Offices was on
brief for appellants.
Irene S. Soroeta-Kodesh, Assistant Solicitor General,
Department of Justice, Office of the Solicitor General, with whom
Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth Pamias-
Velázquez, Deputy Solicitor General, were on brief for appellees
Zoé Laboy, Sixto Marrero and Emilio Castillo.
March 9, 2005
BOUDIN, Chief Judge. This case arises out the death in
prison of Orlando Ocasio Alsina ("Ocasio") and the subsequent suit
of his mother and heir, María Alsina Ortiz ("Alsina"), against
various Puerto Rico prison officials.
On November 8, 1997, Ocasio--then an inmate at the
Bayamón prison in Puerto Rico--was injured by a blow to the head in
a prison riot. He received medical attention at a regional
hospital but was left with head pain, convulsions, and one side of
his body paralyzed. CT scans showed no brain damage and Ocasio was
returned to his cell at Bayamón on November 15. It is his
treatment, or the lack of it, during the next six weeks that is the
present subject of this litigation.
Drawing permissible inferences in favor of Alsina, it
appears likely that during this six-week period Ocasio was in
considerable pain, was seriously disabled, cried and screamed in
pain and, half paralyzed, could not get about. There is some
evidence that Emilio Castillo, then a prison guard lieutenant in
contact with Ocasio, was aware of his plight but did nothing to
secure medical care for him.
Within a few weeks after the injury, family members
visited Ocasio; his mother made efforts to secure a wheelchair and
further medical care for him, and made pleas to the prison staff on
Ocasio's behalf. A wheelchair was provided on December 17, two
days after a request was made. On December 23, a local court
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granted a motion brought by Ocasio, requiring that he be provided
with further medical evaluation and treatment.
On January 1, 1998, Ocasio was transferred to the
infirmary at the Río Piedras prison hospital, where he was
diagnosed with AIDS and toxoplasmosis (a parasitic infection).
Medical records indicate that there was a threat by this time that
his brain function would be impaired by lack of oxygen due to
inflammation. Starting the next day, Ocasio was treated for
approximately two weeks at an outside medical center, and he
continued to take medication after his return to Bayamón; in March
he was again admitted for medical care, sometimes receiving
treatment in hospital facilities and sometimes in prison facilities
under supervision.
Ocasio died on May 11, 1998; an autopsy found his cause
of death to have been brain inflammation associated with AIDS. On
August 5, 1998, his mother brought suit in federal court asserting
claims under 42 U.S.C. § 1983 (2000) and under state law against a
number of defendants, charging both prison officials and medical
personnel with a variety of derelictions. Over the next 21 months
there was extensive discovery and eventually motions for summary
judgment by the defendants.
Ultimately the magistrate judge recommended that the
motions be granted, relying in part on his assessment of the merits
and in part on what he found to be Alsina's failure to comply with
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a local rule requiring that the party opposing summary judgment
file a concise statement of material facts allegedly in dispute.
The district judge wrote his own opinion along the same lines,
sustaining the recommended disposition and dismissing the federal
claims with prejudice and the local law claims without prejudice.
This appeal followed.
On appeal Alsina has abandoned her federal claims against
everyone (e.g., medical personnel) except for three defendants: Zoe
Laboy-Alvarado ("Laboy"), who was in December 1997 Administrator of
Corrections in Puerto Rico; Sixto Marrero-Rodríguez ("Marrero"),
then sub-director of the Bayamón Correctional Complex; and
Castillo, the prison guard already mentioned. We confine our
discussion to these defendants.
As to all three, the central charge was that they were
liable under section 1983 for violation of the Eighth Amendment
(protecting against cruel and unusual punishment) by exhibiting
deliberate indifference to Ocasio's patent and severe medical
needs. See Estelle v. Gamble, 429 U.S. 97, 101-06 (1976).
However, Alsina's theories as to just how the defendants were
individually liable were multiple and presented with less than
perfect clarity.
In some renditions, Alsina seemingly claimed that the
three defendants were responsible for providing medical care to
Ocasio and failed in this duty. The district court rejected any
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such theory: it said that under the governing division of
responsibilities, based in part on a federal consent decree,2 the
actual furnishing of prison health care in Bayamón was the duty of
the Commonwealth Department of Health--not the Administration of
Corrections with which all three defendants were alone associated.
Alsina does not challenge this ruling on appeal.
Instead, she argues that at least the prison authorities
have a duty to notify the health professionals if and when
prisoners need medical attention. Cf. Estelle, 429 U.S. at 104-05;
Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985). The
defendants do not deny such a responsibility; instead, they say
that Alsina failed to file a compliant motion of contested facts
and that, on the resulting record, the three defendants lacked
knowledge sufficient to trigger a responsibility to summon medical
help any earlier than it was provided.
A local rule of the district court (then Rule 311.12, now
revised and renumbered as Rule 56) requires that a party seeking
summary judgment supply a list of the allegedly uncontested facts
on which it relies (together with record citations) and that the
opposing papers include "a separate, short, and concise statement
2
The consent decree derives from a class action started in the
1980s and designed to reform conditions and health care in the
Puerto Rico prison system. The consent decree included a medical
care plan developed and entered into by the Administration of
Corrections and the Department of Health in response to the
litigation. See Carlos Morales Feliciano v. Roselló González, 13
F. Supp. 2d 151, 156-61 (D.P.R. 1998).
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of the material facts" (again with "specific" record references)
that the opponent asserts require a trial. This "anti-ferret" rule
aims to make the parties organize the evidence rather than leaving
the burden upon the district judge.
Where the party opposing summary judgment fails to
comply, the rule permits the district court to treat the moving
party's statement of facts as uncontested, Cosme-Rosado v. Serrano-
Rodriguez, 360 F.3d 42, 46 (1st Cir. 2004), and we have regularly
upheld its enforcement. See, e.g., Morales v. A.C. Orssleff's
EFTF, 246 F.3d 32, 32-35 (1st Cir. 2001). However, whether the
rule has been violated is a different question, easily answered
where the opponent fails to file any statement or omits all record
citations but less so where the deficiency is of a different kind.
In this instance, Laboy and Marrero offered 14 paragraphs
of allegedly uncontested facts in four pages; Alsina's
corresponding statements as to just these two defendants spanned 60
pages and 130 facts--many being irrelevant, repetitive or
unsupported by record citation. There is no mechanical rule
rendering a long statement insufficiently "short" and "concise";
after all, a case could have a great many material contested facts.
And in this instance Alsina was making a number of quite different
claims against different defendants based on different theories.
Nevertheless, having reviewed the opposing statements
filed by Alsina, we do not think the statements even arguably
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comply with the spirit or letter of the rule. Burying the district
court in a mass of supposedly material contested facts, many
irrelevant and many unsupported by citations, creates the very
morass from which the rule aims to protect the district judge. In
this case, Alsina simply dumped an undigested record on the judge,
expecting him to do counsel's job.
That fact alone is not necessarily decisive of the
outcome in this case. It mainly means that the district judge can
accept the moving party's allegedly uncontested facts as true, but
whether or not this justifies summary judgment for the moving party
depends upon the legal and factual configuration that results.
See, e.g., Guzman-Rosario v. United Parcel Serv., Inc., 2005 WL
248072, at *2 (1st Cir. Feb. 3, 2005). In the case of Castillo,
summary judgment was not appropriate; but as to Laboy and Marrero,
we think summary judgment was properly granted. We begin with the
claims against the latter two defendants.
In this instance, the complaint charged that the two
supervising officials (Laboy and Marrero) "knew or should have
known" that Ocasio was getting inadequate care; and as to Marrero
it alleged that he must have known because family complaints about
Ocasio's condition were made to the prison staff. However, any
claim that either of them knew is defeated by defendants' explicit
assertions in their statement of uncontested facts that they did
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not know about Ocasio's suffering. As it happens, there is no
direct evidence to show that they did.
Specifically, no evidence suggests that Laboy--at the top
of the hierarchy--had any knowledge of Ocasio's situation that
could be the premise for a claim of deliberate indifference.
Alsina points us to some evidence that the family complained to
Marrero’s staff, which (depending upon the circumstances) might or
might not permit an inference of knowledge. But, under the anti-
ferret rule, Marrero’s flat denial of notice is conclusive. As to
the "should have known" claim, negligence is not a basis for
liability under an Eighth Amendment theory. Farmer v. Brennan, 511
U.S. 825, 835-40 (1994); Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 582 (1st Cir. 1994).
Yet Alsina's complaint might be regarded as also making
a somewhat different claim against these defendants: that they at
least knew in general of a pattern or practice of subordinates that
menaced the constitutional rights of prisoners and had authority to
take remedial measures, but instead were deliberately indifferent
to this threat. There is case law that supports such a theory,
although showing that such an omission caused a particular injury
may be quite difficult. Maldonado-Denis, 23 F.3d at 582-83; see
also Miranda, 770 F.2d at 260.
To prevail on such a theory Alsina would have to show
that (1) during the relevant time period Laboy or Marrero knew of
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a continuing pattern of culpable failures by guards or other prison
staff to refer to health providers those prisoners with colorable
complaints or manifest symptoms, and (2) that, having authority
over the subject, Laboy or Marrero made no reasonable attempt to
remedy such deficiencies. See Miranda, 770 F.2d at 260-61. A
further problem would be to show that Ocasio’s suffering or death
would have been prevented by reasonable remedial efforts.
Neither the magistrate judge nor the district judge dealt
directly with such a "pattern or practice" theory. Their
discussion properly rejected claims premised on the prison
authorities' overall responsibility for health care and on claims
assuming actual knowledge of Ocasio's condition by Laboy and
Marrero; neither judge directly responded to the supervisory theory
outlined above. This may be due in part to Alsina's somewhat
cloudy articulation of the theory; nonetheless, it was suggested
and we will not treat it as forfeit but rather consider it on the
merits.
Here, Alsina charged that there was widespread knowledge
by high prison officials in Puerto Rico that prison medical care
was very poor; this, Alsina says, was apparent from the consent
decree, published reports, newspaper stories, and the like.
Defendants' statement of uncontested facts did not negate this
awareness; indeed, in their depositions neither defendant denied
having some familiarity with health care problems in the system,
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although neither professed a very precise recollection about what
exactly he or she had read and when. Because the consent decree
mandated future training of prison personnel, it can also be
inferred that inadequate training had been a problem prior to the
consent decree.
But knowledge of earlier inadequate training--and even
knowledge that it remained a prison responsibility to give guards
some training--is a mile away from showing willful blindness or
deliberate indifference to a supposed continued failure of
training. There was no evidence adduced by Alsina that the
training regime for guards in place after the transfer of general
responsibility for care to the Department of Health had failed on
a large scale (Castillo is one case) and--more to the point--no
proof that, if it had, either defendant knew that it had or was
willfully blind or indifferent to that failure.
Willful blindness and deliberate indifference are not
mere negligence; these concepts are directed at a form of scienter
in which the official culpably ignores or turns away from what is
otherwise apparent. See Farmer, 511 U.S. at 839-40; Febus-
Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994).
Alsina has pointed to no evidence whatever that either Laboy or
Marrero knew in late 1997 that there was a continuing pattern by
guards--specifically, of failures to report inmate medical needs--
from which the defendants then averted their eyes.
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The story is different as to Castillo. The complaint
charged that Castillo knew of Ocasio's medical needs and did
nothing (also that he "should have known," but that allegation is
insufficient). Castillo filed no separate statement of uncontested
facts but merely adopted the statement of other defendants--which
contained no denial of knowledge on Castillo's part. Accordingly,
the anti-ferret rule does not preclude Alsina from arguing that
Castillo did have knowledge of Ocasio's desperate condition and did
nothing about it.
The statement of undisputed facts does state that Ocasio
never filed a formal complaint of inadequate care, but this hardly
negates the possibility that he was manifestly in need of
attention. Further, in discovery one inmate testified that
Ocasio's fellow prisoners had told Castillo of Ocasio's need for
medical treatment, and that these requests were ignored; another
inmate testified that Ocasio himself requested of Castillo that he
be relocated to a medical facility to treat what he suspected was
a blood clot or head injury, and that Castillo ignored him.
The helpful joint brief filed on defendants' behalf makes
several different arguments as to Castillo. One theme, that
Castillo was not a care provider, is no answer. So far as appears,
prison officials still had a duty to report health needs to the
doctors. Castillo might deny knowledge of such a duty, but he has
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not done so; and, of course, the denial might well not be credible
or sufficient.
The defense brief also asserts that Castillo, himself not
a health care professional, should not be expected to parse
symptoms, especially of someone already under medical care.
Reasonable reliance on others and lack of expertise may both be
fair points. But if Castillo knew of prolonged, manifest, and
agonizing pain being suffered by Ocasio and did nothing to advise
others, we can hardly say it would be impossible to find deliberate
indifference.
Finally, the defendants' brief mentions Alsina's supposed
failure to prove precisely when Castillo ignored Ocasio's
complaints. However, two prisoners testified that Castillo learned
of Ocasio's condition in mid-November--shortly after Ocasio was
returned to his cell from the regional hospital following the riot.
Alsina has offered enough evidence as to Castillo--that he got
complaints and had knowledge of Ocasio's extreme suffering--to
raise a trial-worthy issue.
None of the allegations of the other prisoners concerning
Castillo may be true and, if true, there may be other reasons why
Castillo is not guilty of deliberate indifference. Even if there
were complaints, Castillo might still have believed that nothing
more could be done by doctors. Or Castillo may have passed
information about Ocasio on to superiors or to health authorities.
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But given the evidence already recounted, summary judgment in his
favor was not warranted, nor has Castillo thus far adduced facts
sufficient to merit qualified immunity.
The judgment dismissing Alsina's claims against Laboy and
Marrero is affirmed; as to Castillo, the judgment is vacated and
the case remanded for further proceedings. Each side shall bear
its own costs on this appeal.
It is so ordered.
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