United States Court of Appeals
For the First Circuit
No. 05-2224
JAMES M. FEENEY,
Plaintiff, Appellant,
v.
CORRECTIONAL MEDICAL SERVICES, INC.;
ARTHUR K. BREWER, M.D.; JOHN D. NOONAN;
JOHN CROTTY, Medical Director; DONALD KERN, M.D.;
KASIM GOUDA; CHARLES KING, M.D.;
CAROL MCLELLAN, Nurse Practitioner,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Lipez, and Howard,
Circuit Judges.
Edgar L. Kelley on brief for appellant.
David A. Hilton, Charles M. Urso, and Morrison Mahoney LLP on
brief for appellees.
October 2, 2006
LIPEZ, Circuit Judge. Plaintiff-appellant James M.
Feeney, a former inmate of the Massachusetts correctional system,
brought suit under 42 U.S.C. § 1983 claiming that Correctional
Medical Services, Inc. ("CMS") and seven health care professionals
acted with deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. The district court dismissed
the case against five of the defendants for failure to state a
claim and later granted summary judgment in favor of the other
three.1 Feeney appeals, and we affirm.
I.
A. Factual Background
At all times relevant to his complaint, appellant Feeney
was an inmate at the Old County Correctional Center in Bridgewater,
Massachusetts. He was released in December 2004. He claims that,
for more than two years during his incarceration, he was denied
appropriate medical care, including prescribed orthopedic footwear,
for “plantar fasciitis,” a painful foot condition. The following
1
CMS provided medical care for Massachusetts inmates through
December 2002. Its successor, the University of Massachusetts
Correctional Healthcare Program ("UMCHP"), is not a defendant in
this case. The defendants dismissed were: CMS; the director of the
Health Services Unit (“HSU”) at Old County Correctional Center,
John Crotty; two medical doctors in the unit, Donald Kern and Kasim
Gouda; and John Noonan, director of the Department of Correction’s
Health Services Division. The remaining defendants were Arthur
Brewer, Regional Medical Director of CMS through December 2002;
Charles King, a podiatrist; and Carol McLellan, a nurse
practitioner in Old County’s HSU.
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facts concerning his treatment, summarized from the record, are not
in dispute.
Feeney first reported foot pain on August 7, 2000.
Between August and November, he was examined repeatedly by nurses
and once by physician Kern. Medication for pain relief was
prescribed, x-rays were taken, and generic shoe inserts (heel cups)
were provided. On November 7, podiatrist King diagnosed Feeney
with "acute plantar fasciitis."2 The doctor provided an anti-
inflammatory steroid injection and advised continued use of the
shoe inserts and pain medication. Treatment of Feeney's foot pain
continued during the next several months. He was examined multiple
times by various medical practitioners, and additional laboratory
tests and x-rays were ordered. Different shoe inserts (arch
supports) were prescribed and provided. Stretching exercises,
ice, and alternative pain medications were prescribed when prior
medications became ineffective.
On June 19, 2001, King saw Feeney for the third time.
Feeney would not permit King to examine his feet, claiming that
they were too sore to be touched. King ordered a "custom molded
orthotic" and "walking shoes." The next day, Kern discussed the
case with King and countermanded “for now” King's prescription for
2
The plantar fascia is a fibrous tissue in the sole of the
foot. Plantar fasciitis is an inflammation of the plantar fascia
that causes foot or heel pain. Stedman’s Medical Dictionary 646-
47, 649, 652 (27th ed. 2000).
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orthotics because "the patient did not allow Dr. King to examine
him." In the absence of any objective medical evidence, Kern
thought it premature to order orthotics. King scheduled a
reevaluation of Feeney, which occurred on July 24, with Kern
present. This time, according to Kern’s report, King indicated
that Feeney's "evaluation is not consistent with a diagnosis of
plantar faci[i]tis. Other possibilities include a neurologic
etiology and/or non-organic etiology." King suggested that custom
arch supports be placed in Feeney's current shoes because such an
intervention would not aggravate a neurologic problem and would
likely resolve a true case of plantar fasciitis. Before adopting
King’s recommendation, Kern sought outside review to explore the
possibility of a neurological cause for Feeney's foot pain.
Although Feeney met with medical professionals repeatedly
during the next year and a half, he did not receive the prescribed
orthotics. He had various diagnostic tests and a physical therapy
consultation. On December 30, 2002, Feeney was evaluated by a
neurosurgeon at Tufts-New England Medical Center. The neurosurgeon
also suspected plantar fasciitis: "I think James Feeney has right
plantar fasciitis which evolved into a right lower extremity pain
syndrome." On March 25, 2003, podiatrist King saw Feeney again.
He "strongly recommend[ed] supportive walking shoe[s] in
conjunction with custom orthotics," and his report was reviewed and
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endorsed by Kern on April 21. Feeney eventually received his
orthotics in May 2003.
B. Procedural Background
Feeney filed the pro se complaint underlying this case in
early January 2002, while his treatment was ongoing. On June 19,
2002, the district court issued an order directing that the claims
against CMS, Crotty, Gouda, and Kern be dismissed for failure to
state a claim, pursuant to 28 U.S.C. § 1915(e), unless Feeney
showed good cause within 42 days why the claims against those
defendants should survive.3 The time period elapsed with no filing
by Feeney.4
Nearly three years later, and after numerous other
filings, Feeney retained counsel. On May 31, 2005, the three
3
Section 1915 governs proceedings that are filed in forma
pauperis. The statute authorizes a federal court, sua sponte, to
dismiss such an action if the court determines that it fails to
state a claim on which relief may be granted. See 28 U.S.C. §
1915(e)(2)(B)(ii). The district court concluded that Feeney’s
allegations arguably raised a claim for deliberate indifference
against Brewer, Noonan, McLellan and King, but that he failed “to
allege any facts indicating that any action (or inaction) by [CMS,
Crotty, Kern or Gouda] . . . actually injured him.”
4
Appellant did submit a cursory motion seeking to amend his
complaint on August 26, 2002 – after the 42-day deadline. The
court denied that motion a month later, without prejudice, because
it was not accompanied by a proposed amended complaint. Another
motion for leave to amend was docketed on October 3, but again no
proposed amended complaint was attached. The earlier motion stated
that CMS and Kern were “necessary to properly proceed in this
action,” but did not elaborate and made no reference to Crotty and
Gouda. The second motion added a reference to Crotty as a
“necessary” party.
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remaining defendants – Brewer, McLellan, and King – jointly filed
a motion for summary judgment.5 On June 8, CMS, Crotty, Gouda and
Kern filed a motion for entry of a separate and final judgment
under Fed. R. Civ. P. 54(b). The district court held a hearing on
the pending motion for summary judgment on July 7. It granted the
motion the same day, and entered a final judgment in favor of all
defendants, including those previously dismissed. On appeal,
Feeney challenges the court’s summary judgment ruling.6
II.
A. Standard of Review
We review a district court's summary judgment ruling de
novo, taking the facts in the light most favorable to the nonmoving
party and likewise drawing all reasonable inferences in that
party’s favor. McConkie v. Nichols, 446 F.3d 258, 260 (1st Cir.
2006); Merchants Ins. Co. of NH v. U.S. Fidelity and Guaranty Co.,
143 F.3d 5, 7 (1st Cir. 1998). Summary judgment is appropriate if
the record shows there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. McConkie,
446 F.3d at 260; Fed. R. Civ. P. 56(c).
5
By this time, the court had granted Noonan’s motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
6
Appellant’s brief does not address the dismissal rulings and
we accordingly do not consider them.
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B. Analysis
1. Legal framework
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme
Court established that an Eighth Amendment claim of “cruel and
unusual punishment” based on medical mistreatment requires more
than “an inadvertent failure to provide adequate medical care” and
must involve “acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Id. at 105-06;
see also Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985).
The obvious case would be a denial of needed medical
treatment in order to punish the inmate. But deliberate
indifference may also reside in 'wanton' decisions to
deny or delay care, where the action is recklessness,
‘not in the tort law sense but in the appreciably
stricter criminal-law sense, requiring actual knowledge
of impending harm, easily preventable.’
Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993) (internal
citations omitted).
“Deliberate indifference” thus defines a narrow band of
conduct in this setting. In Layne v. Vinzant, 657 F.2d 468 (1st
Cir. 1981), we stated that even a jury finding of "treatment
substandard, even to the point of malpractice, is not the issue."
Id. at 474. Importantly for our analysis of Feeney's claim, we
held in Ferranti v. Moran, 618 F.2d 888 (1st Cir. 1980), that when
a plaintiff's "allegations simply reflect a disagreement on the
appropriate course of treatment[, s]uch a dispute with an exercise
of professional judgment may present a colorable claim of
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negligence, but it falls short of alleging a constitutional
violation." Id. at 891; see also Torraco v. Maloney, 923 F.2d 231,
234 (1st Cir. 1991). The care provided must have been “‘so
inadequate as to shock the conscience.’” Torraco, 923 F.2d at 235
(quoting Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987)).
2. Feeney's claim
In alleging deliberate indifference to his serious
medical needs, Feeney points particularly to the lengthy delay in
providing him with orthopedic footwear after King first prescribed
it in June 2001. That delay is plain from the record. Within
context, however, it falls short of establishing an Eighth
Amendment violation. The summary judgment record reveals that: (1)
Feeney was examined by medical professionals many times – sometimes
weekly – after he first reported his symptoms; (2) numerous
diagnostic tests were performed, including blood work, x-rays, and
MRIs; (3) outside specialists, including a podiatrist,
neurologist, neurosurgeon, and physical therapist were consulted;
(4) Feeney was given other treatments for his symptoms, including
pain medications, generic shoe inserts (as opposed to custom
orthotics), steroid injections, and physical therapy; and (5)
throughout the relevant time period, uncertainty remained about the
source of his pain, and causes other than plantar faciitis were
being investigated.
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Kern’s cancellation “for now” of King’s prescription for
orthotics in June 2001 was reasonably based on the fact that Feeney
had refused to allow King to examine his feet that day, and the
podiatrist also had not yet seen recently taken x-rays. King thus
had no current clinical support for the prescription. The next
month, after King examined Feeney with Kern present, the podiatrist
indicated that a neurological problem, rather than plantar
fasciitis, might be the problem. Although King again suggested
custom orthotics, the recommendation was offered as a method for
possibly excluding plantar faciitis as a diagnosis. Given the
speculative value of the proposed remedy, Kern’s desire to obtain
review of King’s conclusions before moving ahead with a remedial
plan was understandable.
Although the course of treatment during the next twenty-
two months led back to the prescription for orthotics, the delay
alone – given the ongoing efforts to identify the source of
appellant’s pain – does not on any view of the facts rise to the
level of an Eighth Amendment violation. The correctional center’s
medical staff was responsive to appellant’s complaints, expended
substantial resources trying to get to the root of his problem, and
adopted other measures in an effort to alleviate his discomfort.
Even if it could be said that failing to provide the orthotics
earlier reflected poor judgment on the part of some defendants – a
matter on which we take no view – this was not an omission that
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could be termed “deliberate indifference to serious medical needs,"
Estelle, 429 U.S. at 104. “‘[W]here the dispute concerns not the
absence of help, but the choice of a certain course of treatment,’
. . . deliberate indifference may be found where the attention
received is ‘so clearly inadequate as to amount to a refusal to
provide essential care.’” Torraco, 923 F.2d at 234 (internal
citations omitted). The record unequivocally demonstrates that
this is not such a case.
Accordingly, the district court properly granted summary
judgment in favor of Brewer, McLellan, and King.
Affirmed.
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