United States Court of Appeals
For the First Circuit
No. 09-2179
JESUS RAMOS,
Plaintiff, Appellant,
v.
THOMAS R. PATNAUDE, M.D. ET AL.,
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
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Hector E. Pineiró, with whom Robert H. Beadel, Robert A.
Scott, Law Office of Hector Pineiró, and Lizabel M. Negrón-Vargas,
were on brief, for the appellant.
Matthew Grygorcewicz, with whom John J. Reardon, Melick Porter
& Shea, L.L.P., Raymond J. Reed, Reed & Reed, Jeffrey Rosario
Turco, and Law Offices of Jeffrey Rosario Turco, were on brief, for
the appellees.
May 23, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. When the plaintiff-appellant,
Jesus Ramos, was committed to the Worcester County House of
Correction in Massachusetts as a pre-trial detainee on April 4,
2003, he was addicted to heroin, from which he was forced to
abstain. In anticipation of his physical reaction he was given
medication at the direction of the defendant-appellee, Dr. Thomas
Patnaude, the institution’s medical director, according to a
protocol designed to mitigate the agony of withdrawal and
prescribed by the doctor in thousands of previous cases. The
treatment spanned a three-day period and was repeated twice over
the nine days after commitment, during which Ramos was taken on two
occasions to the nearest hospital for outpatient and inpatient care
that included intravenous fluid for dehydration and exploratory
chest surgery. All told, the following distressing and in some
instances threatening conditions were noted: “extreme dehydration,
acute renal failure, advanced respiratory distress, subcutaneous
emphysema, mediastinal emphysema, presumed esophageal perforation,
malnourishment, metabolic alkalosis, hypokalemia, and pneumothorax
of the right chest and total collapse of the right lung.” Ramos v.
Flynn, No. 06-10645-GAO, 2009 WL 2207191, at *1 (D. Mass. July 22,
2009). These clinical notations do not, however, fully capture the
reality of Ramos’s account of the course of his withdrawal, being
left to lie, as he alleged, in the foul products of chronic
incontinence and vomiting, on occasion unprotected from the chill
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of cold weather outside as windows were opened to mitigate the
resulting stench.
In the aftermath of the allegedly horrific experience, Ramos
brought suits in state and federal courts, including the present
action, which was originally against seventeen defendants. Under
42 U.S.C. § 1983 he claimed a violation of the Due Process Clause
of the Fourteenth Amendment for reckless indifference to his
medical needs and, as to some defendants, for failure to train
institutional personnel to respond to inmates’ medical needs. He
also invoked the federal court’s supplemental jurisdiction by
adding state law tort claims for intentional infliction of
emotional distress. The trial court granted summary judgment to
the present appellees on all claims, on various procedural and
substantive grounds. It held for them on procedure after
concluding that Ramos had failed to avail himself of the House of
Correction’s grievance procedure for raising his complaints and
should accordingly be barred from federal litigation under 42
U.S.C. § 1997e(a), a provision of the Prison Litigation Reform Act
of 1995 requiring exhaustion of available administrative remedies
before resorting to the federal courts, and the court drew a
comparable conclusion as to the tort claims under state law. The
court nonetheless considered the merits and held that facts not
subject to genuine dispute and disputed facts that might be
resolved in Ramos’s favor failed to show any action or failure to
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act going beyond negligence or malpractice to the point of
deliberate indifference to substantial risk of serious harm to
health, which would be necessary in order to state a § 1983 claim
under the Due Process Clause; it drew a comparable conclusion
about the state law tort claims, and entered summary judgment for
the appellees. On de novo review, Sullivan v. City of Springfield,
561 F.3d 7, 14 (1st Cir. 2009), we affirm.
Ramos brought this appeal only as to five of the original
defendants. Subsequently, the number dropped to four, upon removal
of the former Sheriff of Worcester County, John Flynn, by
agreement, and then down to two, with the dismissal of Correctional
Officers Hill and Larame. The only remaining appellees from among
the original defendants are Dr. Patnaude and Worcester Internal
Medicine, Inc.
I
Further simplification is in order, beginning with the claim
against Worcester Internal Medicine, which is totally devoid of
evidentiary support in the record. The practice group’s only
connection with the acts complained of seems to be Dr. Patnaude’s
membership in it, and that of another physician who sometimes
covered for Dr. Patnaude but was not shown to have had any part in
the events of this case. Since the group had no contract with the
House of Correction, and in any case because respondeat superior is
not a channel of derivative liability in a § 1983 action, Whitfield
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v. Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005), the trial judge
could not understand why the medical practice group had been sued,
and neither can we.
The issues, too, are subject to reduction, beginning with one
alternative ground for judgment, the failure to exhaust
administrative remedies, which is the subject of a substantial
portion of the briefing before us. So far as it concerns the
federal claim, satisfaction of the exhaustion requirement of §
1997e(a) turns on whether prisoners at the House of Correction were
on notice that complaints about denial of access to medical care
were subject to the administrative grievance procedure (as distinct
from complaints about the merit of medical care actually rendered,
which clearly are not), and on whether Ramos’s claims here are
about denial of access rather than the quality of treatment. Ramos
argues, with color of support, that no such grievance opportunity
was made known, and thus aims at reversing both the adverse ruling
on exhaustion, and (if he succeeds on that) at vacating the equally
adverse rulings on the merits, which he says were beyond the
district court’s jurisdiction once it held Ramos had failed to
exhaust. The appellees counter that failure to exhaust was the
correct conclusion, but that the merits ruling was independently
within the trial court’s power, since exhaustion is not a
jurisdictional requirement.
We take a third position, for economy of disposition, in
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choosing to bypass the exhaustion issue just because it is not
jurisdictional, and because the merits decision is sound, as we
will explain. The Supreme Court made it plain in Woodford v. Ngo,
548 U.S. 81, 101 (2006), that exhaustion under § 1997e(a) is not a
jurisdictional condition, and has held it to be an affirmative
defense, Jones v. Bock, 549 U.S. 199, 212 (2007). Ramos tries to
deflect Ngo by pointing out, perplexingly, that the Court there was
speaking only of what it called “proper” exhaustion. But the Court
used that adjective simply to describe the action that would
qualify as exhaustion, to distinguish it from resort to
administrative process after the time allowed: a claim barred by
time is not “exhausted” by raising it late. See Ngo 548 U.S. at
90-93. So, even on the assumption that Ramos failed to exhaust a
House of Correction’s grievance procedure that had been made known
to him, the district court had, and this court has, jurisdiction to
reach the merits. Our choice to consider the merits without
working through the exhaustion issue eliminates the further
assignment of error that before acting on the summary judgment
motions the district court unreasonably denied Ramos further time
(requested under Fed. R. Civ. P. 56(f)) to depose a corrections
officer, Sgt. Germano, on the scope of the subject matter of
possible administrative grievance.
Two other issues may be resolved by brief discussion, these on
their merits. Ramos sought to show that his state tort claims for
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emotional distress did not suffer from failure to satisfy a state
exhaustion requirement, for he moved for certification of the issue
to the Supreme Judicial Court of Massachusetts as allowed by Mass.
S.J.C. R. 1:03. His argument that it was error to deny that motion
is answered by the fact that his brief in this court fails to
address the merits of the tort claims, and thus waives any
objection to the trial court’s conclusion that the claims were
wanting in evidentiary support on which liability of any defendant
could be based. See Lumataw v. Holder, 582 F.3d 78, 80 n.1 (1st
Cir. 2009). Because the merits issue is waived, the related matter
of certification is inconsequential.
Waiver by inattention also disposes of any claims against Dr.
Patnaude for failure to train or supervise subordinate personnel.
See id.
II
What remains is the § 1983 claim against Dr. Patnaude for a
failure to provide medical care that amounted to deliberate
indifference to substantial risk of serious harm to Ramos as he
suffered withdrawal when deprived of heroin. See Burrell v.
Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002) (applying the
Eighth Amendment deliberate indifference standard to the due
process claim of a pre-trial detainee). There is no question that
Dr. Patnaude owed a duty to Ramos when acting on behalf of the
House of Correction under his contract to serve as its medical
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director. But the district court understood the record to show
only arguable negligence, with no reasonable possibility of a jury
finding that the doctor was deliberately indifferent, that is, that
he actually understood that such a substantial risk existed and was
actually indifferent to it in failing to take appropriate
mitigating action. See Farmer v. Brennan, 551 U.S. 825, 837 (1994)
(§ 1983 liability attaches only when the “official knows of and
disregards an excessive risk to inmate health or safety”); Feeney
v. Correctional Medical Services, Inc., 834 F.2d 9, 13 (1st Cir.
1987) (in cases alleging deliberate indifference to medical risk,
“[t]he care provided must have been ‘so inadequate as to shock the
conscience’”) (quoting Torraco v. Maloney, 923 F.2d 231, 234 (1st
Cir. 1991)). Dr. Patnaude points to the following undisputed facts
as supporting that judgment and barring any reasonable possibility
of inferring the culpable state of mind required for a due process
violation.
He treated Ramos’s withdrawal reaction by following a
pharmaceutical protocol he had applied in thousands of instances of
drug withdrawal at the House of Correction with overwhelming
success over a period of 30 years, a procedure that Ramos’s own
expert believed to be generally appropriate. During the time Ramos
was held at the House of Correction, Dr. Patnaude placed him on so-
called medical watch, calling for observation on at least 25
separate occasions by nursing personnel, and the doctor himself
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conducted at least one examination. Despite his skepticism that
Ramos’s continuing complaints were genuine, he twice ordered the
nursing staff to repeat application of the three-day drug treatment
protocol. He ordered a blood analysis and on two successive days
responded to staff reports by ordering Ramos to be taken to the
emergency room of St. Vincent’s Hospital for examination and
treatment. No factfinder, Dr. Patnaude argues, could reasonably
conclude he had been deliberately indifferent to a substantial risk
of serious harm to Ramos with these undisputed facts in the record.
Ramos attacks that conclusion on several grounds. First,
there are claims that the undisputed record shows no specific
orders from the doctor requiring prompt action, as in drawing the
blood sample (it was not done until the next day) and obtaining
test results (which took several days), in reinstituting the
treatment protocol and even in requiring speedy arrival of an
ambulance to take Ramos to the hospital the second time. Ramos is
quite right that a mere formality of some ostensible medical
treatment is no conclusive bar to finding constitutional
indifference. See Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir.
1994); Warran v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991); Hunt
v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). He is right again
that a jury could conclude that adequate medical care would have
shown more promptitude, as indeed two experts stated in describing
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the level of treatment as inadequate under professional norms.1
But insufficient zeal for efficiency cannot be equated with
deliberate indifference, however much it may amount to negligence.
See Acosta v. U.S. Marshals Service, 445 F.3d 509, 514 (1st Cir.
2006) (§ 1983 liability attaches “only for constitutional
violations . . . and not for mere negligence”).
Ramos next argues that the undisputed facts of treatment could
not reasonably be taken as evidence barring a finding of deliberate
indifference, for the very reason that all of Dr. Patnaude’s
decisions made after he examined Ramos at the conclusion of the
first 3-day medication sequence were tainted by the belief that
Ramos was faking complaints about the continuing severity of his
reaction. But on its face, this belief is flatly inconsistent with
the required finding of subjective deliberate indifference to a
substantial risk, and there is nothing in the record that would
suggest the doctor was saying “fake” as a smokescreen for a
decision to let Ramos suffer whatever chance might bring his way.
To be sure, the undisputed facts indicate that the doctor
underestimated the risk; Ramos apparently presented an
unrepresentative case. But misjudgment, even negligent
1
One expert also concluded that Dr. Patnaude’s conduct amounted
to deliberate indifference. But this was a conclusion of mixed
fact and law, not a medical proposition that could qualify as fact
in applying the summary judgement evidentiary test. There is
moreover, no foundation to find that the expert had been instructed
on the elements of the deliberate indifference test, including its
subjective component.
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misjudgment, is not deliberate indifference.
Finally, there is a more diffuse point that Ramos insists upon
throughout his presentation to us: he was forced to subsist in
pervasive filth during much or all of his stay at the House of
Correction. One cannot read the descriptions he gives without
feeling revulsion. But we see no point in parsing through Ramos’s
accounts of the conditions to determine which may be supported by
evidence of fact beyond genuine dispute or subject to disputed
claims that might be resolved in Ramos’s favor, for we see no basis
to treat them as material to the claim against Dr. Patnaude, who is
sued for deliberate indifference to substantial medical risk of
serious harm, not for inhumane sanitation in running the House of
Correction. Which is not to deny that there is a point at which
medical treatment requires attention to prison housing, but there
is no claim of supervisory liability now in the case, and Ramos’s
responses to the summary judgment motion raise no basis for
attributing to the doctor such subjective knowledge of cell
conditions as might indicate deliberate indifference on his part in
taking no steps to require improvement. One cannot infer anything
beyond the undisputed record indication that any detoxification of
a substantial drug user will involve vomiting and diarrhea.
We read the record just as the district court did.
Affirmed.
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