Leavitt v. Correctional Medical Services, Inc.

United States Court of Appeals
For the First Circuit

No. 10-1432

RAYMOND D. LEAVITT,

Plaintiff, Appellant,

v.

CORRECTIONAL MEDICAL SERVICES, INC.; TODD TRITCH, individually
and in his official capacity as Medical Doctor; EDIE WOODWARD,
individually and in her official capacity as Physician Assistant;
TERESA KESTELOOT, individually and in her official capacity as
Health Services Administrator of Maine State Prison; CHARLENE
WATKINS, individually and in her official capacity as Family
Practitioner Nurse; ALFRED CICHON,

Defendants, Appellees,

YORK COUNTY JAIL; MAINE STATE PRISON; MARTIN A. MAGNUSSON,
individually and in his official capacity as Commissioner of the
Maine Department of Corrections; JEFFREY MERRILL, individually
and in his official capacity as Warden of Maine State Prison;
ROBERT COSTIGAN, individually and in his official capacity as
Prison Administrative Coordinator of Maine State Prison; JONNA
DINKEL, individually and in her official capacity as RN at Maine
State Prison; MATTHEW TURNER, individually and in his official
capacity as Physician Assistant,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Boudin, Lipez, and Howard,
Circuit Judges.
 James A. Billings, with whom Lipman, Katz & McKee was on
brief, for appellant.
Elizabeth K. Peck, with whom Paul C. Catsos and Thompson &
Bowie, LLP, were on brief, for appellee Alfred Cichon.
Christopher C. Taintor, with whom Jennifer A.W. Rush and
Norman, Hanson & DeTroy, LLC, were on brief, for appellees
Correctional Medical Services, Inc., Todd Tritch, Edie Woodward,
Teresa Kesteloot, and Charlene Watkins.

June 29, 2011
 LIPEZ, Circuit Judge. Plaintiff-appellant Raymond D.

Leavitt, an inmate of the Maine corrections system, seeks a civil

rights remedy for the alleged denial of adequate medical care for

human immunodeficiency virus (HIV) by healthcare professionals at

the York County Jail (YCJ) and the Maine State Prison (MSP).

Claiming that correctional medical officials acted with deliberate

indifference to his serious medical needs in violation of the

Eighth Amendment, Leavitt brought suit under 42 U.S.C. § 1983

against a number of defendants, including Alfred Cichon, a

physician assistant at YCJ; Correctional Medical Services, Inc.

(CMS), the private contractor that provided medical care at MSP;

and CMS employees Todd Tritch, Edie Woodward, Charlene Watkins, and

Teresa Kesteloot.1 In separate orders, the district court granted

summary judgment for Cichon and the CMS defendants, and Leavitt

appeals.

We agree with the district court that Leavitt's evidence

could not, as a matter of law, establish that the CMS defendants'

actions violated the Eighth Amendment. However, we conclude that

Leavitt has established a material dispute as to whether Alfred

Cichon acted with deliberate indifference to his serious medical

needs. We thus affirm the entry of summary judgment in favor of

1
We refer to defendants CMS and its employees collectively as
"the CMS defendants."

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the CMS defendants, reverse the entry of summary judgment in favor

of Cichon, and remand for further proceedings.

I.

Appellant is, and was at all times material to this case,

HIV-positive. He was incarcerated at YCJ from September 6, 2006,

through February 17, 2007, at which point he was transferred to

MSP. He claims that the defendants inappropriately denied him

treatment for HIV for the entirety of his 167-day stay at YCJ and

for nearly seventeen months of his incarceration at MSP. This

delay in the reinitiation of antiretroviral therapy for HIV,

Leavitt alleges, "constituted a continuum of harm," which resulted

in short- and long-term negative consequences for his health. We

chronicle his treatment history in some detail as presented in the

summary judgment record, presenting the facts in the light most

favorable to Leavitt and drawing all reasonable inferences in his

favor. Burrell v. Hampshire Cnty., 307 F.3d 1, 3 (1st Cir. 2002).

A. Leavitt's Treatment at YCJ

1. Initial Clinic Visit

At the time of his incarceration at YCJ, Leavitt suffered

from HIV, hepatitis C, bipolar disorder, anxiety, and

hypothyroidism. On October 5, 2006, about one month into his

detention at YCJ, Leavitt had his first -- and only -- clinical

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interaction with defendant Alfred Cichon.2 Cichon was the

physician assistant who worked at the jail most frequently, about

sixteen hours per week, and he also was president of Allied

Resources for Correctional Health, Inc. (ARCH), the corporation

that provided contract healthcare services to inmates at YCJ.

At the October 5 clinic visit, Cichon performed a routine

physical examination of Leavitt, concluding that the latter's

health in general was "normal." Appellant told Cichon that he was

HIV-positive; said that he was experiencing night sweats, chills,

fever, nausea, and vomiting; and complained that he had not

received his antiretroviral medications. He also lamented that "it

wasn't right he was being kept off his HIV meds since they had been

keeping him alive for the past 10 years and keeping his symptoms

and low blood count from claiming him as a victim of AIDS."

At this point, Cichon purportedly made a statement that

constitutes the key fact in dispute in Leavitt's case against him.

He said, "We don't give away [HIV] medications here at this jail[,]

because the jail is so small and we are not equipped financially to

hold the burden of providing expensive medication"; "[you will]

2
Leavitt's Statement of Material Facts raises a few
allegations pertaining to events that took place before the October
5 meeting, including an allegation that a jail officer refused to
accept the HIV medications that a friend brought to YCJ for
Leavitt. There is nothing in the record to suggest that Cichon
knew of these events, and thus they are immaterial to the
determination of whether Cichon was deliberately indifferent to
Leavitt's medical needs.

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have to wait until you [get] to the Maine State Prison where they

are able to pay for these medications." Additionally, Cichon

allegedly advised Leavitt, "You don't need to stay on the [HIV]

medications to be healthy, and just as soon as you get to the [MSP]

they'll fix you right up."

At the time of their meeting, Cichon knew that Leavitt

had been without his HIV medications for at least one month, as

appellant had been incarcerated since September. Patients who take

a break from antiretroviral therapy may become resistant to one or

more of the drugs used as part of the regimen. Cichon thus

informed Leavitt that he could not reinstate his HIV medications or

refer him to an infectious disease specialist without first

acquiring his medical history, information about his medications

and compliance with taking those medications, and blood test

results for his current CD4 cell count and viral load.3 There is

no dispute that this was the proper response to a request for

restarting antiretroviral treatment.

3
The parties state that the CD4 cell count is the best
estimate of an HIV-positive individual's risk of short-term
progression to develop the clinical symptoms and risks of
complications of HIV. Viral load, which measures the amount of
virus present in the bloodstream, is most helpful in assessing a
patient's response to treatment, but is also generally helpful in
assessing the risk of short-term progression of HIV. A higher CD4
count and lower viral load are generally desirable.

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 2. After Leavitt's Clinic Visit

Cichon directed the ARCH nursing staff to obtain

Leavitt's medical records from the various facilities where he had

been treated for HIV. Cichon also ordered lab work to determine

Leavitt's complete blood count differential, CD4 cell count, and

viral load. These labs, like all tests and medications prescribed

for inmates, were paid for by YCJ.

In short order, Leavitt's medical records from the

Androscoggin County Jail (ACJ), Cumberland County Jail, and

Positive Health Care were faxed to YCJ, where they were reviewed

and initialed by Cichon. The records indicated that Leavitt had a

long history of HIV and that he previously had been prescribed the

antiretroviral drugs Truvada and Kaletra. The records also

established that Leavitt's labs on April 6, 2006 had shown an

undetectable viral load of less than 75 and an abnormally low CD4

cell count of 355. Moreover, they showed that at the time of

Leavitt's incarceration at ACJ on July 11, 2006, his medical

condition was normal and he did not complain of fatigue, night

sweats, or any objective symptoms of HIV. Finally, the records

disclosed that Leavitt had a history of alcohol abuse that may have

impeded his compliance with antiretroviral therapy, and that

Leavitt had been at various points non-compliant with taking his

HIV medications. Although Leavitt concedes the veracity of these

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records, he insists he had been taking his HIV medications "on a

regular basis" before he entered YCJ.

The lab reports from the blood work Cichon ordered were

addressed to him and routed to the medical office at YCJ, where in

the ordinary course of business they would have been placed on a

clipboard and reviewed by Cichon each time he visited the jail.

The CD4 cell count report indicated that Leavitt had a lower than

normal count of 415 and noted that the "[m]ild decrease in CD4

level and increase in CD8 subset" was "indicative of

immunodeficiency state and/or recent viral infection." Cichon

claims no recollection of seeing these results, but acknowledges

that his initial appears on the first page of the lab report, which

would signal that he had reviewed them.4

The viral load report indicated a higher than normal

viral load of 143,000. Cichon also claims not to have seen this

report; the copy of it subpoenaed from YCJ and entered into the

record does not bear his initial. He asserts that this is the

first time in seventeen years that an omission of this type

occurred, that he would have considered a viral load of 143,000 to

be higher "than [he] would like to see it," and that he would have

"move[d] precipitously" to refer Leavitt to an infectious disease

specialist if he had reviewed the report. Cichon understood that

4
Leavitt's medical records from ACJ and the CD4 cell count
and viral load reports were subpoenaed from YCJ and entered into
the summary judgment record as part of Cichon's affidavit.

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HIV is a serious and potentially life-threatening medical

condition.

3. The Remainder of Leavitt's Stay at YCJ

It is undisputed that during the four months between the

October 5 clinic appointment and Leavitt's transfer to MSP, Cichon

never saw Leavitt again, did not refer Leavitt to a specialist, or

take any other steps to follow up on Leavitt's HIV condition.

Leavitt did not see an infectious disease specialist or restart

antiretroviral treatment for his HIV while at YCJ.

Although appellant was aware that the method for

requesting medical treatment or medications at YCJ was to file an

Inmate Medical Request Form (IMRF), he did not submit one related

to treatment for HIV or HIV-related symptoms.5 Leavitt did,

however, write one or more letters to YCJ's medical department,

including one to Cichon, requesting the resumption of his HIV

medications. He submitted these letters to a YCJ officer at some

point prior to his appointment with Cichon.

Symptoms of HIV include fevers, night sweats, loss of

appetite, weight loss, wasting syndrome, chronic diarrhea, thrush,

leukoplakia (a white, film-like protrusion on the lateral side of

the tongue), psoriasis, and seborrheic dermatitis. During the

period of his incarceration at YCJ, Leavitt suffered from night

5
Leavitt filed three non-HIV-related IMRFs, in which he
requested Fixadent for his dentures and cream to treat his
psoriasis. Cichon denied all three requests.

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sweats, chills, fever, fatigue, psoriasis, nausea, and

gastrointestinal problems, including vomiting and constipation.

4. ARCH's Contractual Relationship with YCJ

In addition to serving as president of ARCH, Cichon was

also its largest shareholder, with ownership of over a quarter of

its stock. Cichon testified at his deposition that YCJ put its

healthcare services contract out for bid every two years, that

beginning November 2004 ARCH had a two-year contract with YCJ with

the possibility of extensions, and that such extensions were

dependent on whether YCJ was "happy with [ARCH]."6 Cichon also

testified that ARCH eventually lost the YCJ contract to CMS in June

2009 because YCJ "perceived that there [would be] a cost savings

there."

5. Cichon's Professional Record

Cichon was given several "letters of guidance" by the

Maine State Board of Licensure in Medicine ("Medical Board") for

various infractions involving other patients that happened around

the time of Leavitt's incarceration. These infractions included

changing the frequency of dosage of a medication for another

patient without first informing the patient,7 as well as

6
YCJ had previously contracted with ARCH for healthcare
services from around 1996 to 2003. ARCH was then replaced by the
University of New England, before regaining the contract in 2004.
7
The frequency of medications was changed from the
physician's prescription of four times a day to two times a day
because the jail contracted for staff to distribute medications

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withholding medications from a patient with a chronic health

condition "without appropriate evaluation" and "with no clear

reason that the patient could not receive them."8 Moreover, the

Medical Board suspended Cichon's physician assistant license for

ninety days as a sanction for his providing medical services

without a licensed supervisory physician.9 Subsequently, Cichon

also entered into a consent agreement with the Maine Board of

Osteopathic Licensure in January 2008, in which he admitted to,

among other things, the violations of his physician assistant's

license for which he was disciplined by the Medical Board. Under

the terms of the consent agreement, Cichon's license to practice

was subject to a number of probationary conditions, including

heightened supervision and reporting requirements.

only twice a day. The Board found that Cichon should have informed
the inmate; however, it concluded that because Cichon had consulted
with the inmate's physician before implementing the change, his
"behavior did not rise to a level of misconduct sufficient to
warrant disciplinary action."
8
The other letters of guidance issued by the Board related to
Cichon making inappropriate comments about race and sex to
patients.
9
The Medical Board concluded that Cichon was "providing
medical services as a physician assistant without having a
supervisory [allopathic] physician" licensed by the Medical Board,
"failing to notify the Medical Board that he no longer had a
supervisory physician licensed by the Medical Board," and/or
"misrepresenting to Medical Board staff the status of his license
and supervisory relationship" for the period from November 2, 2006,
to at least March 15, 2007.

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B. Leavitt's Treatment at MSP

On February 17, 2007, Leavitt transferred from YCJ to

MSP. By contract, CMS provides medical care at MSP, as well as

some other facilities operated by the Maine Department of

Corrections (MDOC). CMS employed the four other individual

defendants involved in this appeal: Dr. Todd Tritch as the Regional

Medical Director of CMS in Maine; Edie Woodward, a physician

assistant, and Charlene Watkins, a family practitioner nurse, as

healthcare providers at MSP; and Teresa Kesteloot as the Health

Services Administrator at MSP.

Since MSP's medical department operates on a clinic

model, patients are usually not followed by particular providers.

Inmates with chronic diseases, including HIV, are assigned to the

chronic care clinic, in which they are seen typically at three-

month intervals.

1. Leavitt's Initial Treatment at MSP

Leavitt's first clinical interaction at MSP came in the

form of an intake appointment with a CMS-employed physician

assistant three days after his transfer. At this time, Leavitt

said he was HIV-positive and asked to resume antiretroviral

treatment. The physician assistant ordered a new round of blood

tests and requested Leavitt's treatment records. Leavitt's labs

were subsequently drawn and reported, showing an abnormal CD4 cell

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count of 460 and an elevated viral load over 97,000.10 The

physician assistant also ordered an appointment "ASAP" with an

infectious disease specialist. Generally, CMS providers use the

term "ASAP" when there is some degree of concern about a patient's

health. Nevertheless, the follow-up with the specialist never took

place.

About one month later, another CMS provider wrote an

order that Leavitt be "referred to an infectious disease doctor for

starting HIV medications." That order, and all requests to refer

patients to outside consultations, had to be approved by defendant

Tritch.

2. Leavitt's First Consultation with Specialists

With Tritch's approval, appellant was examined in May

2007 by a team of HIV specialists at the Virology Treatment Center

(VTC) in Portland, Maine. At that time, Leavitt again requested to

be reinstated on his HIV medications. VTC sent a consultation

report to CMS, which stated, "HIV: No urgent indication for . . .

rx with CD4 at 460," meaning that Leavitt then had a good buffer in

his immunological reserve to protect him from opportunistic

infections or other consequences of HIV/AIDS.11 VTC's medical

10
Although this CD4 count represents a slight improvement over
the reported results from April and October 2006, Leavitt's expert
represents that there can be a lag in CD4 count decline after
antiretroviral therapy is discontinued.
11
VTC's medical director represented that by "[n]o urgent
indication," he anticipated that a follow-up appointment or another

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director subsequently explained that he decided to defer

reinitiating antiretroviral treatment so that he could obtain

additional information about Leavitt's immune status, viral load,

medication history, and previous drug resistance testing. His

decision also relied on Department of Health and Human Services

(DHHS) guidelines recommending the deferral of antiretroviral

treatment for patients with CD4 cell counts above 350 who did not

have an AIDS-defining illness or severe symptoms of HIV infection.12

The consultation report recommended that Leavitt return for a

follow-up appointment in four to six weeks. At the end of May

2007, a CMS provider noted VTC's recommendation and ordered a

follow-up appointment for Leavitt.

3. Leavitt's Treatment in Summer and Fall of 2007

Leavitt was next seen at the chronic care clinic by CMS

defendant Edie Woodward in June 2007, when she treated him for a

round of blood tests would take place within three months. This
time frame was in accordance with usual practice to check an HIV
patient's CD4 and viral load counts every three to four months as
a way of monitoring the patient's condition, regardless of whether
the patient is on antiretroviral therapy.
12
These DHHS guidelines were explicitly addressed to
"treatment-naive" patients –- HIV-positive patients who had never
been on antiretroviral therapy. However, in 2007-2008 VTC used the
same information and recommendations to guide treatment of patients
who had been on medications for a time and then stopped. At the
time, there was disagreement in the medical community as to the
wisdom of the deferred treatment approach. Leavitt's expert
testified that although Leavitt's CD4 count was above DHHS's cut-
off point, Leavitt should nonetheless have been immediately
restarted on antiretroviral therapy because of his history of low
CD4 counts and because he suffered from hepatitis C.

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rash. Woodward assumed the follow-up appointment with VTC had been

or was being scheduled, and she accordingly entered an order for

"follow up with [VTC] as scheduled."

On August 10, 2007, Leavitt submitted a prison sick-call

slip in which he complained: "As a result of being denied meds for

HIV+ my immune system is low resulting in thrush[,] and it seems as

though I'm being denied meds for that also." That same day, Tritch

examined Leavitt. Tritch confirmed that the latter was suffering

from thrush and ordered updated blood work to assess the condition

of his HIV. Tritch also submitted an order for Leavitt to return

for a follow-up visit specifically with him the next month. That

appointment, however, was not scheduled as Tritch ordered, and it

never took place.

The results from the lab tests Tritch ordered reported

that Leavitt's CD4 cell count had fallen to 424 and that his viral

load had risen to greater than 100,000.13 It was not until

November, however, that Tritch, without having seen Leavitt again

as promised, approved Leavitt's referral to VTC.

In the interim, Leavitt saw Woodward at the chronic care

clinic on September 1 and October 22, 2007. At the September

clinic, Leavitt complained of a rash on his underarms, fatigue, and

13
In responding to a complaint to the Medical Board brought
against him by Leavitt, Tritch stated that Leavitt's "HIV viral
load was undetectable" as of August 2007. Tritch has never
corrected this inaccurate assertion to the Board.

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white, cracked, and painful toes -- all symptoms she recognized

could have been attributable to HIV. Woodward prescribed an

antifungal cream for Leavitt's skin and feet. Even though she knew

that the one-month follow-up consultation recommended by VTC in May

never occurred, she did not determine why the appointment did not

take place or take any steps to expedite the process.

At the October clinic, Leavitt complained of intermittent

thrush and a rash. He again requested HIV and hepatitis C

treatment. Woodward ordered various medications to treat his

immediate complaints, requested updated blood work, and put in a

new order for the follow-up appointment that Leavitt was supposed

to have with Tritch. She did not, however, put in a second order

for the referral to VTC.

4. The December Follow-up Appointment at VTC and Its
Aftermath

Leavitt did not return to VTC until December, six months

after his initial consult with the specialists there. At the

December appointment, Leavitt complained of fatigue and presented

with symptoms, including thrush, leukoplakia, and seborrheic

dermatitis, that VTC interpreted as indications of immunological

decline from HIV. VTC reported to CMS that Leavitt now met the

criteria for starting antiretroviral therapy for HIV, requested an

updated CD4 cell count and viral load to provide a baseline for

treatment, and recommended genotype testing to determine Leavitt's

resistance to particular HIV medications. VTC also suggested that

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Leavitt return in four to six weeks, noting that it would "likely

make recommendations for therapy at that time." Later that month,

Woodward reviewed these recommendations and ordered an HIV viral

load, an immune function panel, and a follow-up appointment with

VTC in one month.

In early January, Woodward entered an order to "add

genotype" to the lab work she had requested for Leavitt the

previous month. Those lab results were reported on January 18 but

did not include a genotype as ordered. Apparently, Bio Reference,

the lab that processed Leavitt's blood work, experienced a

technical problem; in its report to CMS, it stated that it would

contact the prison for additional information. There is no

evidence in Leavitt's chart of any subsequent communication between

Bio Reference and CMS, and Woodward did not take steps to obtain

the genotype results from Bio Reference.

On January 23, 2008, Woodward observed in her progress

notes that Leavitt's follow-up visit to VTC was overdue and

reordered it. The next month, Woodward stopped working full time

at MSP. She wrote an order in February related to Leavitt's

hepatitis C treatment, but from that point forward was no longer

involved in his care.

CMS defendant Charlene Watkins took over Woodward's

position. Watkins first saw Leavitt on February 26, 2008, when he

complained of a rash, which she knew could have been a fungal

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infection and a symptom of HIV. She observed in her progress notes

that Leavitt was due for a follow-up visit to VTC.

5. Leavitt's March Visit to VTC

That follow-up visit, which was scheduled for February

27, was delayed on account of bad weather, and Leavitt did not

return to VTC until March 12. About a month later, Leavitt saw

Watkins at the chronic care clinic, whereupon he asked her why his

medications had not been restarted following his March 12 visit to

VTC. It turned out that no consultation report from, or record of,

that visit had been placed in his CMS file. Watkins told him that

it was her fault for not sending a fax to VTC. She then promptly

requested and received from VTC a faxed copy of its note from

Leavitt's visit, which stated: "HIV disease: Needs to restart HIV

therapy. Has been on many agents prior and likely has some

resistance. Unfortunately we do not have his genotype at this

time. Will need to start him back on Truvada/Kaletra now. Will

recommend they obtain a CD4, [viral load,] and a genotype." VTC

requested a follow-up appointment in one month.

Watkins did not start Leavitt on his medications

immediately. Instead, on April 14, Watkins ordered updated blood

work and a follow-up visit to VTC. The lab results indicated that

his CD4 cell count had plummeted to 296 and his viral load had

escalated to 297,562. Watkins reviewed these results a little over

a week later, but still did not start Leavitt on antiretroviral

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drugs. Nor did she confirm if the follow-up visit to VTC had

actually been scheduled. Ultimately, Leavitt did not return to VTC

until almost two and a half months later.

6. Leavitt's Filing of a Formal Grievance

In the intervening period, Leavitt filed a formal

grievance with MDOC through CMS defendant Teresa Kesteloot, in

which he protested that he was not receiving treatment for his

HIV.14 Kesteloot, who was responsible for reviewing all healthcare-

related complaints brought by MSP inmates, received the grievance

no later than May 1, at which point she spoke with Leavitt,

reviewed a portion of his medical chart, and discussed his care

with CMS nursing staff. Kesteloot's focus in investigating

Leavitt's complaint was not on trying to determine whether past

treatment had been appropriate -- a determination that she was not

qualified to make -- but solely on whether Leavitt's current

concerns were being addressed.

In the course of her inquiry, Kesteloot learned that

Leavitt had been seen recently at the chronic care clinic, and that

since his last visit to VTC on March 12, labs had been drawn and a

follow-up appointment had been scheduled. She thus concluded in a

14
Leavitt wrote a letter on April 1, 2007 to Kesteloot's
predecessor with a similar grievance, and attached a copy of that
letter to his complaint to Kesteloot. Kesteloot became aware of
the April 1 letter at some point after she assumed her position,
but does not know if her predecessor ever acted on Leavitt's first
complaint.

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memorandum to her MDOC supervisors that Leavitt "appears to have

been followed appropriately."15 She took no additional steps to

investigate whether the delay in Leavitt's treatment was part of a

broader problem in the care of HIV-positive inmates at MSP or to

follow up on Leavitt to ensure that there would be no further

delays in his treatment.

7. The Reinitiation of Leavitt's HIV Treatment

Leavitt finally saw the VTC specialists again on June 25.

VTC subsequently sent a consultation report to CMS in which it

observed that Leavitt was "close to AIDS," that he had thrush on

his tongue and swollen nodes on his neck, and that he needed to

"start HIV antiviral meds ASAP." The next day, Tritch, who had not

seen Leavitt for over ten months, reviewed Leavitt's chart and

concluded that his HIV medications should have been started sooner.

He then prescribed him Kaletra and Truvada.

Leavitt finally restarted antiretroviral therapy on July

7, 2008, over seven months after VTC deemed him eligible under the

DHHS guidelines. During the seventeen months he had been

incarcerated at MSP, Leavitt on three occasions submitted sick-call

15
MSP's grievance review officer reviewed Kesteloot's memo and
denied Leavitt's grievance. Leavitt's appeal of that decision to
MSP's chief administrative officer was also denied.

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slips to the MDOC expressly for HIV,16 and on thirteen occasions

submitted sick-call slips for thrush, rashes, or diarrhea.17

C. Leavitt's Current Health and Prognosis

After Leavitt started antiretroviral medications, his

thrush disappeared and he no longer experienced night sweats and

chills. By July 2008, Leavitt's CD4 cell count had rebounded to

429 (from 296 in April), and by December 2008, his CD4 cell count

had risen to 550, thus indicating the reconstitution of his immune

system. In his labs of February 27, 2009, he dropped to a

dramatically low CD4 cell count of 252. But as of June 2009,

Leavitt's HIV disease was stable. Currently, he is at a healthy

weight of 170 pounds. He still suffers from warts and rashes,

worsening fatigue and malaise, and "great fear and uncertainty

regarding his future as a result of his HIV drug interruption."

As examples of this uncertainty, Leavitt points to a 2006

study showing that patients with CD4 counts above 350 whose

antiretroviral therapy was interrupted and not restarted until

their CD4 count dropped to 250 experienced a significant increase

in the risk of opportunistic disease or death from any cause over

the course of the trial, as compared with patients who received

continuous antiretroviral therapy. Leavitt also references a great

16
Those slips were submitted on August 10, 2007, January 6,
2008, and July 4, 2008.
17
These dates range from July 26, 2007, to July 4, 2008.

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body of medical literature suggesting that the lower a patient's

CD4 cell count is when he starts or restarts antiretroviral

treatment, the lesser the expectation of long-term immunologic

recovery and the greater the risk of HIV- and non-HIV-related

complications over the short term. Leavitt further cites studies

indicating that patients who begin treatment at lower CD4 cell

counts have a greater risk of not fully reconstituting the normal

numbers of CD4 subsets. His expert testified that the interruption

of Leavitt's antiretroviral therapy from September 2006 to July

2008 constituted a "continuum" of harm that makes him statistically

more likely to be susceptible to opportunistic infections and/or

cancer in the future.

D. Procedural History

Leavitt filed the pro se complaint underlying this case

in April 2008, when his antiretroviral therapy had not yet been

restarted. In that original complaint, he brought suit for money

damages and injunctive relief against CMS, YCJ, MSP, and various

correctional officials and healthcare providers in their individual

and official capacities, alleging that their refusal to administer

his HIV medications constituted violations of 42 U.S.C. § 1983 and

the Americans with Disabilities Act (ADA). He later voluntarily

dismissed his claims against YCJ and MSP and filed an amended

complaint in October 2008, also pro se, naming as defendants only

CMS, a number of its employees, various persons employed by MDOC,

-22-
and the Warden of MSP. Leavitt later filed a pro se complaint

against Cichon, which the district court consolidated on December

9, 2008 with the previous complaint into what the court styled as

a second amended complaint.

Leavitt eventually obtained the services of an attorney

in February 2009. Seven months later, all the defendants moved for

summary judgment. The magistrate judge recommended on December 31,

2009, and the district court granted on March 2, 2010, summary

judgment in favor of all of the defendants, on the ground that

there was insufficient evidence that defendants acted with

"deliberate indifference" to Leavitt's medical needs, as required

under the Supreme Court's Eighth Amendment jurisprudence.18 On

appeal, Leavitt challenges the district court's grant of summary

judgment in favor of Cichon, Tritch, Woodward, Watkins, Kesteloot,

and CMS.19 The only theory that he continues to press is their

liability under 42 U.S.C. § 1983 for the violation of his Eighth

Amendment right against cruel and unusual punishment.20

18
They also offered an alternative ground for granting summary
judgment in favor of Cichon: that Leavitt offered "insubstantial
proof of injury."
19
The district court granted summary judgment against a
variety of other defendants, including those employed by MDOC,
under a separate order, from which Leavitt does not appeal.
20
Leavitt no longer pursues his ADA claim against any of the
defendants.

-23-
 II.

A. Standard of Review

We review a district court's summary judgment ruling de

novo. Summary judgment is appropriate if there is no genuine issue

of material fact and the moving party is entitled to judgment as a

matter of law. Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158,

161 (1st Cir. 2006). Although a "state-of-mind issue such as the

existence of deliberate indifference usually presents a jury

question," Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991),

"a party against whom summary judgment is sought is [not] entitled

to a trial simply because he has asserted a cause of action to

which state of mind is a material element," Hahn v. Sargent, 523

F.2d 461, 468 (1st Cir. 1975). The non-moving party must present

competent evidence that shows a genuine issue for trial. Ruiz-Rosa

v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007).

B. Analysis

"The Constitution 'does not mandate comfortable prisons,'

but neither does it permit inhumane ones"; accordingly, "it is now

settled that 'the treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny under

the Eighth Amendment.'"21 Farmer v. Brennan, 511 U.S. 825, 832

21
The record is unclear as to whether Leavitt was being held
at YCJ as a probation violator or as a pre-trial detainee, but
Leavitt's precise status makes no difference to our analysis, as
"the standard applied under the Fourteenth Amendment [governing the
claims of pre-trial detainees] is the same as the Eighth Amendment

-24-
(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981);

Helling v. McKinney, 509 U.S. 25, 31 (1993)). The failure of

correctional officials to provide inmates with adequate medical

care may offend the Eighth Amendment if their "acts or omissions

[are] sufficiently harmful to evidence deliberate indifference to

serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106

(1976).

To succeed on an Eighth Amendment claim based on

inadequate or delayed medical care, a plaintiff must satisfy both

a subjective and objective inquiry: he must show first, "that

prison officials possessed a sufficiently culpable state of mind,

namely one of 'deliberate indifference' to an inmate's health or

safety," and second, that the deprivation alleged was "objectively,

sufficiently serious." Burrell, 307 F.3d at 8.

For the subjective inquiry, the Supreme Court has

specified that deliberate indifference requires that "the official

must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also

draw the inference." Farmer 511 U.S. at 837; see also Ruiz-Rosa,

485 F.3d at 156. The standard encompasses a "narrow band of

conduct": subpar care amounting to negligence or even malpractice

does not give rise to a constitutional claim, Feeney, 464 F.3d at

standard [governing the claims of convicted inmates]." Ruiz-Rosa,
485 F.3d at 155.

-25-
162; rather, the treatment provided must have been so inadequate as

"to constitute 'an unnecessary and wanton infliction of pain' or to

be 'repugnant to the conscience of mankind,'" Estelle, 429 U.S. at

105-06; see also Alsina-Ortiz v. Laboy, 400 F.3d 77, 82 (1st Cir.

2005) ("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."). We have concluded that "[d]eliberate

indifference in this context may be shown by the denial of needed

care as punishment and by decisions about medical care made

recklessly with 'actual knowledge of impending harm, easily

preventable.'" Ruiz-Rosa, 485 F.3d at 156 (citing Feeney, 464 F.3d

at 162 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir.

1993))).

As to the second inquiry, that of a "serious" deprivation

or medical need, we have held that "[a] medical need is 'serious'

if it is one that has been diagnosed by a physician as mandating

treatment, or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor's attention."

Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir.

1990). "The 'seriousness' of an inmate's needs may also be

determined by reference to the effect of the delay of treatment."

Id. (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987)). We note that "the subjective

-26-
deliberate indifference inquiry may overlap with the objective

serious medical need determination"; "[s]imilar evidence, including

evidence of adverse effects, may be relevant to both components."

Smith v. Carpenter, 316 F.3d 178, 187 n. 12 (2d Cir. 2003) (citing

DesRosiers v. Moran, 949 F.2d 15, 18-19 (1st Cir. 1990)).

1. Leavitt's Claim Against Cichon

a. Deliberate Indifference

Leavitt argues that Cichon's failure to refer him to an

infectious disease specialist or to otherwise treat his HIV in a

timely manner constitutes deliberate indifference to his serious

medical needs. The cornerstone of his claim is the missed viral

load report. That Cichon missed this report and neglected to

follow up is at a minimum sub-optimal, perhaps even negligent.

Cichon acknowledges that his failure to account for the report was

"unfortunate" and that a referral to a specialist ought to have

been made. But carelessness or inadvertence falls short of the

Eighth Amendment standard of deliberate indifference. See Feeney,

464 F.3d at 162; cf. Montgomery v. Pinchak, 294 F.3d 492, 500 (3d

Cir. 2002) ("[T]he mere loss . . . of . . . medical records does

not rise to the requisite level of deliberate indifference."). To

survive summary judgment, Leavitt must present enough evidence for

a factfinder to conclude that Cichon ignored the viral load report,

either intentionally or recklessly, "'not in the tort law sense but

in the appreciably stricter criminal-law sense, requiring actual

-27-
knowledge of impending harm, easily preventable.'" Feeney, 464

F.3d at 162 (quoting Watson, 984 F.2d at 540).

It is undisputed that Cichon knew that Leavitt suffered

from HIV, a medical condition that the physician assistant

understood was serious and potentially life-threatening if left

untreated; that Leavitt had not had access to his prescribed

antiretroviral regimen for at least a month, if not longer, by the

time he was seen at the clinic; and that Leavitt's CD4 count was

abnormally low the last two times he was tested, in April and

October 2006.22 According to Leavitt, he had also complained to

Cichon about an array of symptoms, including night sweats, chills,

fever, and nausea, and told the physician assistant that he needed

his antiretroviral drugs to keep him alive. A jury could thus

reasonably infer that Cichon was aware that Leavitt's health was at

risk. See Ruiz-Rosa, 485 F.3d at 157.

A jury could further infer that Cichon had a financial

interest in not confirming that the risk was imminent and, hence,

that Cichon required immediate treatment. See Farmer, 511 U.S. at

843 n.8 (noting that a prison official "would not escape liability

if the evidence showed that he merely refused to verify underlying

facts that he strongly suspected to be true, or declined to confirm

22
Even though Cichon claims not to recollect seeing Leavitt's
October 2006 CD4 test report, it is undisputed that he initialed
it. Moreover, it is undisputed that he reviewed Leavitt's records
from ACJ, which indicated that appellant had a below-normal CD4
cell count of 355 as recently as April 2006.

-28-
inferences of risk that he strongly suspected to exist"); see also

Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (reiterating the

above rule from Farmer and noting that "this level of intent can be

demonstrated through circumstantial evidence"). After all, Cichon

purportedly said to Leavitt that he would not provide him with HIV

medications because they are too costly. Moreover, as the

president of ARCH and its largest shareholder, Cichon had a

financial stake in keeping treatment and referral costs low to

satisfy CMS and to remain competitive against other contractors.

Cichon testified that ARCH had a two-year contract with the jail

with the possibility of extensions and that the renewal of ARCH's

contract depended on keeping YCJ "happy." He also testified that

in June 2009 ARCH lost the contract to CMS because of the "cost

savings" that the latter apparently provided.

As further support for his theory, Leavitt points out

that Cichon had been admonished by the state medical licensing

authorities for unprofessional conduct that could be interpreted as

evidence of his desire to lower the costs of medical care at YCJ.

The Medical Board found that he withheld medications from a patient

with a chronic health condition "without appropriate evaluation"

and "with no clear reason that the patient could not receive them."

He also changed the frequency of dosage of medication for another

patient from four to two times a day because the jail contracted

for staff to distribute medications only twice a day. Furthermore,

-29-
he provided medical care without a supervising physician -- a

contractor for whom ARCH presumably would have had to pay.

Finally, Cichon stated that in seventeen years, he had

never neglected to review any other patient report. Given the

evidence of Cichon's financial interest in minimizing costs,

including his own explicit statement to that effect, the past

instances in which he acted allegedly to advance that interest, and

the fact that he had never before missed a lab report, a reasonable

jury could conclude that Cichon acted with deliberate indifference

by choosing not to review the viral load report, as its results

would have obliged him, in his own words, "to move precipitously"

to deal with Leavitt's chronic medical condition. See Monmouth

Cnty., 834 F.3d at 346 ("[W]here 'knowledge of the need for medical

care [is accompanied by the] . . . intentional refusal to provide

that care,' the deliberate indifference standard has been met."

(second and third alterations in original) (citation omitted)

(quoting Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th

Cir. 1985))); cf. Montgomery, 294 F.3d at 500 (holding that inmate

stated a prima facie Eighth Amendment case, where he alleged that

defendants refused to provide him with treatment for his HIV over

a nine-month period despite their prior determination that the

treatment was necessary).

In granting summary judgment for Cichon, the district

court emphasized that even after Cichon purportedly made the

-30-
statement about not treating HIV because of cost constraints, he

directed ARCH nursing staff to gather Leavitt's medical history,

ordered blood tests, and reviewed Leavitt's records. This conduct,

while certainly relevant to Cichon's defense, does not preclude a

jury from finding that his subsequent failure to examine the viral

load report and to follow up on Leavitt's condition, in combination

with other evidence in the summary judgment record, added up to

deliberate indifference.23 As Leavitt suggests, Cichon may well

have ordered the lab tests and medical reports simply to "paper his

file" or to "lull[ Leavitt] into complacency." The district court

was too quick to decide that Cichon's version was credible and

Leavitt's not. This is precisely the sort of genuine and material

dispute that ought to be resolved by a jury.24 See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility

23
Indeed, Leavitt himself does not take issue with Cichon's
decision to order the lab tests and medical history; it is
undisputed that this was the proper course of action prior to
restarting antiretroviral treatment.
24
In making this credibility determination, the district court
also assigned significant weight to the fact that Leavitt did not
submit any IMRFs or make further complaints to the medical
department about his HIV after the October clinic appointment.
While a jury is free to consider this fact in determining whether
Cichon acted with deliberate indifference, we do not see how
Leavitt's actions would, as a matter of law, excuse Cichon's
purposeful or reckless decision to ignore the viral load report or
to refuse to provide Leavitt with a referral or other treatment.
Cf. Wilson v. Seiter, 501 U.S. 294, 303 (1991) (emphasizing that
"assuming the conduct is harmful enough to satisfy the objective
component of an Eighth Amendment claim," the "wantonness" of an
official's conduct depends only "upon the constraints facing the
official").

-31-
determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those

of a judge . . . .").

b. Serious Medical Need

"Because '[t]he objective component of an Eighth

Amendment claim is . . . [necessarily] contextual' and fact-

specific, the serious medical need inquiry must be tailored to the

specific circumstances of each case." Smith, 316 F.3d at 185

(alterations in original) (citation omitted) (quoting Hudson v.

McMillian, 503 U.S. 1, 8 (1992)). It is obvious that HIV is a

serious medical condition, as the condition can be life-threatening

if not properly treated. See Brown v. Johnson, 387 F.3d 1344, 1351

(11th Cir. 2004); Montgomery, 294 F.3d at 500. Nevertheless,

Cichon argues that the seriousness of the underlying medical

condition does not alone establish the "serious medical need" prong

of the Eighth Amendment inquiry. He insists that the inquiry must

be more particularized. Because Leavitt's case against Cichon is

predicated on the physician assistant's failure to review and

follow up on the results of the viral load test, Cichon argues that

we should focus on the seriousness of the effects of this omission.

See Gaudreault, 923 F.2d at 208; see also Smith, 316 F.3d at 186

("[I]t's the particular risk of harm faced by a prisoner due to the

challenged deprivation of care, rather than the severity of the

prisoner's underlying medical condition, considered in the

-32-
abstract, that is relevant for Eighth Amendment purposes."); Napier

v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001). We conclude

that even under the version of the objective inquiry that Cichon

urges us to undertake, Leavitt has presented sufficient evidence to

reach a jury on the issue of serious medical need.

To begin, Cichon himself concedes that if he had seen the

viral load report indicating that Leavitt's viral load was 143,000,

he would have found that number to be sufficiently alarming that he

would have "move[d] precipitously" to refer Leavitt to a specialist.

Cf. Sealock v. Colo., 218 F.3d 1205, 1211-12 (10th Cir. 2000)

(relying on similarly "candid testimony" to reverse a district

court's entry of summary judgment in favor of a correctional

healthcare provider). Leavitt presented expert testimony that if

that referral had been made, he would have been put back onto his

antiretroviral regimen in short order and would not have suffered

the various adverse effects of untreated HIV.25 With regard to

these effects, Leavitt submitted affidavit evidence that during his

incarceration at YCJ he suffered from nightsweats, chills, fevers,

25
Leavitt's medical expert testified that if Leavitt had been
referred to him for care in October 2006 and presented with a CD4
count of 415, he would have gathered the necessary medical
information and followed up in "about a week" with the chosen
treatment regimen. The expert also testified that "knowing the
[HIV specialists] out there, the majority of people would have
found a regimen for him and gotten him back on antiretroviral
therapy" immediately because Leavitt is "not a novel patient," but
"a patient with ongoing HIV disease who has a history of very low
CD4 counts."

-33-
fatigue, gastrointestinal problems, including vomiting and

constipation, and psoriasis -- symptoms that he attributed to his

untreated HIV and to "detoxing" from the withdrawal of

antiretroviral treatment.

Leavitt presented evidence that Cichon's omission not

only exposed him to these short-term effects, but also led to the

exacerbation of his underlying condition. Soon after Leavitt

arrived at MSP, he began suffering from thrush, leukoplakia, and

seborrheic dermatitis -- conditions that VTC providers interpreted

as indications of immunological decline from HIV. He continues to

suffer from rashes, warts, fatigue, and malaise. Leavitt also

presented expert testimony that he suffered a detrimental decrease

in his CD4 count because of the "continuum" of inadequate treatment

he received at YCJ and MSP. See Monmouth Cnty., 834 F.2d at 347

("[W]here denial or delay causes an inmate to suffer a life-long

handicap or permanent loss, the medical need is considered

serious."). The wealth of evidence he presented also shows that he

is statistically more likely to be susceptible to opportunistic

infections and cancer in the future.

From this record, a factfinder could conclude that

Cichon's deprivation of care subjected Leavitt to serious harm, both

short-term and long-term. See Helling, 509 U.S. at 33 (holding that

correctional officials may not ignore medical conditions that are

"very likely to cause serious illness and needless suffering" in the

-34-
future, and that such prospective harm can be the basis of an Eighth

Amendment claim, even if the inmate has "no serious current

symptoms"); see also Smith, 316 F.3d at 188 (holding that "an Eighth

Amendment claim may be based on a defendant's conduct in exposing

an inmate to an unreasonable risk of future harm"). We thus

conclude that Leavitt has established a material dispute as to

whether Cichon acted with deliberate indifference to his serious

medical needs and that the district court erred in granting summary

judgment in favor of Cichon.26

2. Leavitt's Claims Against the Individual CMS Defendants

Leavitt also appeals the district court's grant of

summary judgment on his § 1983 claim against CMS employees Tritch,

Woodward, Watkins, and Kesteloot in their individual and official

capacities. We focus first on the claims against these defendants

in their individual capacities.

In his brief, Leavitt appears to press a mix of

collective and vicarious liability theories. He alleges that "[a]ll

26
As an alternative for granting summary judgment in favor of
Cichon, the district court concluded that "Leavitt has
insubstantial proof of injury caused by Cichon" as required under
§ 1983. See Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st
Cir. 2009). Given the amount of evidence on causation and injury
available in the record, this issue cannot be resolved at the
summary judgment stage. See, e.g., Gayton v. McCoy, 593 F.3d 610,
624 (7th Cir. 2010) (holding that "only in the rare instance that
a plaintiff can proffer no evidence that a delay in medical
treatment exacerbated an injury should summary judgment be granted
on the issue of causation," and thus reversing the district court's
entry of summary judgment in favor of a nurse on an inmate's Eighth
Amendment claim).

-35-
the CMS defendants" knew he had HIV, a disease that, if left

untreated, could be fatal; were aware of his active HIV symptoms;

had access to his medical charts; had the ability to communicate

with VTC about his care; and were working for the same employer and

could communicate with each other. These allegations, he contends,

coupled with the simple fact that it took over seventeen months to

reinitiate his antiretroviral therapy, are enough to put the

question of the defendants' deliberate indifference to a jury.

Leavitt's group liability theory may accurately reflect

some deficiencies in the provision of health services at MSP. The

prison's medical department operates on a clinic model. Inmates see

various providers, each of whom is not charged with following a

particular patient but instead attends to whoever shows up at the

clinic at the time he or she is working. Regardless, this theory

cannot provide the basis for recovery: "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." Rogan

v. Menino, 175 F.3d 75, 77 (1st Cir. 1999). Nor can supervisory

officials, like Tritch, be held liable for the conduct of their

subordinates solely under a theory of respondeat superior. Sanchez

v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (reiterating

the principle that government officials may be held liable only "on

the basis of their own acts or omissions," and not "for the

unconstitutional conduct of their subordinates under a theory of

-36-
respondeat superior" (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937,

1948 (2009))).27 It may be true that the care Leavitt received at

MSP was generally inadequate. However, to make out a cognizable

Eighth Amendment claim against healthcare providers in their

individual capacity, he must demonstrate that there is sufficient

evidence for a reasonable factfinder to conclude that each CMS

defendant was "aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists," and that each

defendant did, in fact, "draw the inference." Farmer 511 U.S. at

837. We cannot conclude that Leavitt has satisfied his burden.

a. Todd Tritch

Leavitt's grievance appears to be that Tritch acted with

deliberate indifference in failing first to sign off on necessary

referrals to specialists and second to follow up on Leavitt after

committing to intervene more personally in his care. Leavitt only

insinuates the first theory, and the record simply does not bear out

the latter. Tritch did not became personally involved in Leavitt's

care until August 10, 2007.28 After examining appellant, Tritch not

27
Leavitt does not allege that any particular CMS defendant
"supervise[d], train[ed], or hire[d] a subordinate with deliberate
indifference toward the possibility that deficient performance of
the task eventually may contribute to a civil rights deprivation."
Sanchez, 590 F.3d at 49 (quoting Camilo-Robles v. Zapata, 175 F.3d
41, 44 (1st Cir.1999)).
28
Tritch approved Leavitt's referrals to outside specialists
prior to August 2007, but Leavitt does not allege any specific
wrongdoing on Tritch's part in dealing with referrals.

-37-
only ordered updated blood work, but also took the unusual step of

ordering that Leavitt's follow-up appointment specifically be with

him. While the appointment never took place, there is no evidence

that this omission was anything more than an unfortunate scheduling

glitch. It is undisputed that when Tritch finally saw the August

lab results in November, he approved Leavitt's referral to VTC. It

is also undisputed that in June 2008, it was Tritch who reviewed

Leavitt's chart, concluded that his HIV medications should have been

started sooner, and put in the order for antiretroviral drugs.

Based on this series of events, no reasonable factfinder

could conclude that Tritch acted with deliberate indifference. To

the contrary, each time he became aware of potentially serious harm

to Leavitt, he reacted expeditiously. Perhaps Tritch was not as

aware as one would like a medical professional to be, but "an

official's failure to alleviate a significant risk that he should

have perceived but did not, while no cause for commendation, cannot

. . . be condemned as the infliction of punishment," let alone

punishment cruel and unusual. Farmer, 511 U.S. at 838.

b. Edie Woodward and Charlene Watkins

Against Woodward and Watkins, Leavitt's allegations

reduce to the theory that they ought to have been more proactive in

following up on his care -- that, for example, Woodward should have

pursued the results of Leavitt's genotype test when Bio Reference

failed to report them, and Watkins should have taken steps to

-38-
confirm that an appointment with VTC had been scheduled as ordered.

Leavitt offers nothing beyond conclusory allegations that their

failure to do so was a symptom of deliberate indifference. See

Ruiz-Rosa, 485 F.3d at 156 ("Allegations made in a plaintiff’s

complaint, standing alone, are not enough to oppose a properly

supported motion for summary judgment."). The record shows that

Woodward and Watkins behaved in ways consistent with their professed

intention to treat Leavitt: each saw him in the chronic care clinic

on myriad occasions, treated him for his immediate complaints, and

ordered testing and follow-up appointments when appropriate.

Certainly, they both relied on inaccurate or imperfect data in

Leavitt's chart that appointments had been ordered or that follow-up

phone calls would be made, but there is no evidence that their

reliance was not in good faith. See Whitley v. Albers, 475 U.S.

312, 319 (1986) ("It is obduracy and wantonness, not inadvertence

or error in good faith, that characterize the conduct prohibited by

the Cruel and Unusual Punishments Clause."); Battista v. Clarke, __

F.3d ___, 2011 WL 1902165, at *5 (1st Cir. May 20, 2011) ("[S]o long

as the balancing judgments are within the realm of reason and made

in good faith, the officials' actions are not "deliberate

indifference.").

With respect to Watkins, Leavitt points to one other

incident as a ground for his deliberate indifference claim. He

asserts that when Watkins received the consultation report from his

-39-
March appointment at VTC, stating "Will need to start him back on

Truvada/Kaletra now," she should have started his antiretroviral

therapy immediately. Watkins claims that because the report also

recommended that "they obtain a CD4, [viral load,] and a genotype,"

she interpreted it to mean that Leavitt should not restart treatment

until after a new round of blood tests. Even if Watkins's

interpretation was incorrect, it is uncontroverted that she

proceeded in accordance with that interpretation, ordering the

updated lab work she thought was required before Leavitt could be

put back on Truvada and Kaletra. In this context, their

disagreement over the interpretation of VTC's instruction is

tantamount to a dispute over the exercise of professional judgment

and insufficient to support a constitutional claim. See Torraco,

923 F.2d at 234 (observing that "'[w]here the dispute concerns not

the absence of help, but the choice of a certain course of

treatment,'" deliberate indifference may be found [only if] the

attention received is 'so clearly inadequate as to amount to a

refusal to provide essential care'" (quoting Sires v. Berman, 834

F.2d 9, 13 (1st Cir. 1987); Miranda v. Munoz, 770 F.2d 255, 259 (1st

Cir. 1985))); Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)

(holding that "disagreement on the appropriate course of treatment

. . . may present a colorable claim of negligence[] but . . . falls

short of alleging a constitutional violation").

-40-
 c. Teresa Kesteloot29

Leavitt takes issue with Kesteloot's failure, in

investigating his May complaint, to review earlier entries in his

chart, including lab results from March that indicated a low CD4

cell count and high viral load. Relatedly, Leavitt complains that

Kesteloot did not look into why his antiretroviral therapy had been

delayed until he filed his grievance. These allegations have little

force when Leavitt himself acknowledges that Kesteloot's only focus

in investigating his complaint was on whether his current concerns

were being addressed, and not on whether past treatment had been

appropriate. Kesteloot concluded her investigation after being

satisfied that Leavitt had recently been seen by clinic providers,

that his labs had just been drawn, and that a follow-up appointment

with VTC was scheduled. This was a reasonable response to Leavitt's

complaint. See Burrell, 307 F.3d at 8 ("[P]rison officials . . .

cannot be deliberately indifferent if they responded reasonably to

the risk, even if the harm ultimately was not avoided."). It is

true that Kesteloot did not investigate whether Leavitt's treatment

was evidence of a systemic problem at MSP or follow up on Leavitt

to insure that there would be no further delays in his treatment.

29
The CMS defendants argue that Leavitt has waived his claim
against Kesteloot by failing to "separately address" that claim in
his consolidated objection to the magistrate judge's recommended
decisions. We need not resolve the issue of waiver; we conclude on
the merits that Leavitt does not have a triable claim against
Kesteloot.

-41-
However, her failure to take these affirmative steps is, without

more, insufficient to allow a jury to find deliberate indifference.

3. Leavitt's Claims Against CMS and Its Employees in
Their Official Capacities

Finally, we reach Leavitt's claims against CMS and its

employees in their official capacities. CMS concedes that as a

private entity operating in its capacity at MSP at the time in

question, it can be held liable as a municipality for the purpose

of suits filed under § 1983.30 As for the CMS employees, "[a]

damages suit against an official in an official capacity is

tantamount to a suit against the entity of which the official is an

agent." Burrell, 307 F.3d at 7. Thus the question is whether there

is any basis for imposing liability against the entity.

An underlying constitutional tort is required to proceed

under a municipal liability theory. Where, as here, there is no

constitutional violation by the employees of the municipality, there

can be no liability predicated on municipal policy or custom. See

Kennedy v. Town of Billerica, 617 F.3d 520, 531-32 (1st Cir.

2010).31

30
This circuit has not expressly held that private entities
should be treated analogously to municipalities for the purpose of
§ 1983 liability. Still, the parties agree that CMS may be held
liable as though it were a municipality, and so we have proceeded
accordingly.
31
Having concluded that Leavitt failed to put forth sufficient
evidence of the CMS defendants' deliberate indifference, we see no
need to reach the issue of "serious medical need."

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 III.

Although we conclude that the record is insufficient to

allow Leavitt's Eighth Amendment claims against the CMS defendants

to go to a jury because of the stringent constitutional standard,

we note the acknowledgment of the CMS defendants that "the care

[Leavitt] received ultimately fell short of the mark." Those

responsible for the operation of the Maine correctional healthcare

system, including MDOC, should focus on the troubling implications

of that acknowledgment.

For the reasons set forth, we vacate the district court's

grant of summary judgment in favor of Cichon; affirm the grant of

summary judgment in favor of CMS, Tritch, Woodward, Watkins, and

Kesteloot; and remand for further proceedings consistent with this

opinion. Each side shall bear its own costs on this appeal.

So ordered.

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