Perry v. Roy

United States Court of Appeals
For the First Circuit

No. 14-1466

RICO PERRY,

Plaintiff, Appellant,

v.

SUSIE ROY; CLAIRE ROCHA,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Benjamin M. McGovern, with whom Amanda O. Amendola and Holland
& Knight LLP, were on brief, for appellant.
Tory A. Weigand, with whom James A. Bello and Morrison Mahoney
LLP, were on brief, for appellees.

April 3, 2015
 TORRUELLA, Circuit Judge. This appeal stems from an

action pursuant to 42 U.S.C. § 1983 filed in the United States

District Court for the District of Massachusetts by Appellant Rico

Perry ("Perry"), an inmate at the Bristol House of Correction,

against Susie Roy ("Nurse Roy") and Claire Rocha ("Nurse Rocha,"

and together with Nurse Roy, "Appellees"), both of whom were staff

nurses at said correctional institution. The complaint alleged

that the medical treatment Perry received from Appellees for

injuries resulting from a violent scuffle with prison guards did

not meet the constitutional standard required by the Eighth and

Fourteenth Amendments.

Perry now challenges the grant of summary judgment in

favor of Appellees and the resulting dismissal of his § 1983

action. Because the record establishes that there are issues of

material fact in dispute that need to be decided by a factfinder,

we remand this case to the district court for proceedings

consistent with this opinion.

I. Background

A. Factual History

We review the facts in the light most favorable to

Perry, the party opposing summary judgment. Rockwood v. SKF USA

Inc., 687 F.3d 1, 3 (1st Cir. 2012) (citing Agusty-Reyes v. Dep't

of Educ., 601 F.3d 45, 48 (1st Cir. 2010)).

-2-
 On Saturday, June 9, 2007, at approximately 1:10 a.m.,

while Perry was being booked into the Bristol facility following

transfer from another correctional center, a fight broke out

between him and several correctional officers. During the course

of this incident, the officers caused serious injuries to Perry.

Within five minutes of this altercation, Perry was

evaluated by Nurse Roy, who asked him about his injuries. Perry

swears that his mouth was "pouring blood" from a long gash, his jaw

was "clenched," and he had a lump on his head. Although he could

barely talk, Perry was able to tell Nurse Roy that he was in pain

and that his jaw was broken. He claims further that Nurse Roy did

not "thoroughly examine" him, nor did she ever "come to focus on

his jaw." Nurse Roy did, however, observe and diagnose a cracked

tooth, clean the open wound, provide Perry with gauze, rinse his

mouth with saline water, and advise Perry to obtain a sick slip for

the tooth to enable him to see a dentist, who would be available

the following Tuesday, June 12, 2007. But he was not given ice or

aspirin for his pain, or otherwise provided any treatment for the

jaw. Perry then requested to file a grievance report. Nurse Roy

relates a fundamentally different story, backed up by her notes.

She says that Perry complained only of the cut (not a broken jaw),

that she checked his jaw, and that he could open it wide and

verbalize without difficulty. For summary judgment purposes,

-3-
though, we must assume that Perry's version of the exam (or lack

thereof) might be believed by the jury.

Approximately one hour after the incident with the

correction officers and the evaluation by Nurse Roy, Perry was

formally booked into the Bristol facility. Later that night, while

in his cell, Perry passed out and was awakened by Nurse Roy, who

applied smelling salts to him. He asked Nurse Roy to be taken to

the hospital again, but this request was also ignored.

At around 4:10 a.m., he complained to a second attending

nurse, Nurse Rocha, that he had been beaten by correctional

officers and had an unattended broken jaw. Perry requested again

to be taken to a hospital. Nurse Rocha examined Perry through a

glass window for less than a minute and noted that Perry had an

"egg" on his forehead. Although Nurse Rocha initially said she

would help him, her willingness to help came to naught after she

spoke to Lt. Robert Shubert, who had been involved in the incident

where Perry was hurt. Perry claims that the officer asked her to

let Perry "sleep it off." Thereafter, Nurse Rocha denied all

further care. Perry does, however, concede that Nurse Rocha told

Lt. Shubert that she did not believe he had a broken jaw. Nurse

Rocha claims that, despite telling her that he had a broken jaw,

Perry denied having any pain at that time. Finally, Nurse Rocha

entered a note for someone to notify the medical unit if Perry

"began to suffer from nausea/vomiting or vertigo."

-4-
 At approximately 5:30-6:00 p.m. that same day --

seventeen hours after the beating -- Perry was examined again, this

time by a third nurse, due to his complaint of jaw pain and

shortness of breath. Perry had developed swelling of the jaw and

also some wheezing. This resulted in his immediate transfer to St.

Luke's Hospital, where, within two hours of his arrival, he was

diagnosed with an acute bilateral mandibular fracture. The

attending physician, Dr. David Fuerman, also noted tenderness and

swelling on Perry's forehead, jaw, neck, and cervical spine as well

as bilateral shallow breath and bilateral rib pain. He classified

Perry's injuries as "critical injuries" caused by the use of a

"tremendous amount of force."

Perry was transferred out of St. Luke's to Massachusetts

General Hospital ("M.G.H.") because neither the attending

physician, Dr. Fuerman, nor any member of the St. Luke's medical

staff was qualified to treat Perry's severe mandibular fractures.

Despite the district court not having the benefit of expert witness

testimony presented by the plaintiff to support his contentions

regarding his serious medical need, Dr. Fuerman testified that,

although he had on occasion released patients with broken jaws back

to a stable home environment, he did not release Perry back to the

Bristol House of Correction in part because "[w]ith an injury this

significant, with the amount of force required to fracture the

mandible and have a laceration in the base of his mouth, waiting 20

-5-
hours to bring him in for medical attention, I didn't know that he

would receive appropriate attention." Instead, Perry underwent

surgery at M.G.H. to repair the mandibular fracture. Dr. Fuerman

also testified that Perry required "critical care" when he arrived

at the hospital and that he spent sixty minutes caring for Perry.

B. Procedural History

Perry filed this § 1983 action for deliberate

indifference to his serious medical needs in violation of the

Eighth and Fourteenth Amendments. In his amended complaint he

requested compensatory and punitive damages, as well as attorney's

fees.

The district court dismissed the claim on summary

judgment, reasoning that Perry failed to establish that the

Appellees were deliberately indifferent to his medical needs by

ignoring his requests to go to the hospital or provide treatment to

his broken jaw. In the district court's opinion, the fact that

Perry had been provided at least some treatment contradicts the

showing that the Appellees knew that his condition was sufficiently

serious when he requested to go to the hospital, but opted to

ignore it. Also, Perry was sent to the hospital seventeen hours

after the incident, which seemed reasonable to the district court,

since it only demonstrated that the condition worsened over time

and was treated appropriately as it progressed.

-6-
 Furthermore, the district court concluded that: (1) Perry

had not established that the Appellees acted with a culpable state

of mind in ignoring his requests for additional treatment; (2) the

Appellees provided the medical treatment they saw fit according to

the information they had at the time they made the decisions; and

(3) any issues of fact would be immaterial to that conclusion. On

the issue of whether the Appellees had a culpable state of mind,

the court added that the fact that Perry alleged that Nurse Rocha

denied him care with the intent to punish him for being involved in

the brawl after talking to an officer was not a material fact in

controversy but rather was simply an "improbable or overly

attenuated inference[], unsupported conclusion[], and rank

speculation" that it need not consider. Considering the facts in

the light most favorable to Perry, as we are required to do, we

disagree that there is no issue of material fact and that Appellees

were entitled to summary judgment.

II. Discussion

A. Standard of Review and Summary Judgment

A grant of summary judgment must be reviewed de novo.

Ortiz-Bonilla v. Federación de Ajedrez de P.R., Inc., 734 F.3d 28,

40 (1st Cir. 2013) (citing Shafmaster v. United States, 707 F.3d

130, 135 (1st Cir. 2013)); Calvi v. Knox Cnty., 470 F.3d 422, 426

(1st Cir. 2006). All facts in the record, as well as all

reasonable inferences to be drawn therefrom, are drawn in favor of

-7-
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013). Summary judgment is only appropriately

granted "where there is no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law." Vives v.

Fajardo, 472 F.3d 19, 21 (1st Cir. 2007) (citing Fed. R. Civ. P.

56(c)).

A genuine issue of material fact "must be built on a

solid foundation -- a foundation constructed from materials of

evidentiary quality." García-González v. Puig-Morales, 761 F.3d

81, 87 (1st Cir. 2014) (internal quotation marks omitted) (quoting

Nieves–Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013)).

The district court's role is limited to assessing whether there

exists "evidence [] such that a reasonable jury could return a

verdict for the nonmoving party." Showtime Entm't, LLC v. Town of

Mendon, 769 F.3d 61, 69 (1st Cir. 2014) (alteration in original)

(internal quotation marks omitted) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)).

B. Deliberate Indifference

"Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted." U.S.

Const. amend. VIII. Ever since the passing of the Bill of Rights,

courts have derived from this text the principles that govern the

permissible conditions for providing the medical treatment that

prisoners must be afforded. See Kosilek v. Spencer, 774 F.3d 63,

-8-
82 (1st Cir. 2014) (en banc), petition for cert. filed (March 17,

2015) (No. 14-1120). The failure to provide medical care "may

actually produce physical torture or a lingering death." Id.

(quoting Brown v. Plata, 131 S. Ct. 1910, 1928 (2011)) (internal

quotation marks omitted).

Consequently, the Constitution requires that care be not

"so inadequate as to shock the conscience." Torraco v. Maloney,

923 F.2d 231, 235 (1st Cir. 1991) (internal quotation marks

omitted). Prison officials, therefore, violate the Eighth and

Fourteenth Amendments' prohibition against "cruel and unusual"

punishments when they exhibit "deliberate indifference" to a

detainee's serious medical needs. Feeney v. Corr. Med. Servs., 464

F.3d 158, 163 (1st Cir. 2000) (citing Estelle v. Gamble, 429 U.S.

97, 105-06 (1976)).

To succeed on a claim of deliberate indifference based on

inadequate or delayed medical care, "a plaintiff must satisfy both

a subjective and objective inquiry." Leavitt v. Corr. Med. Servs.,

645 F.3d 484, 497 (1st Cir. 2011). Objectively, he must establish

that the deprivation was "sufficiently serious." Id.; see also

Kosilek, 774 F.3d at 82 ("[T]o prove an Eighth Amendment violation,

a prisoner must satisfy both of two prongs: (1) an objective prong

that requires proof of a serious medical need, and (2) a subjective

prong that mandates a showing of prison administrators' deliberate

indifference to that need.") (citing Estelle, 429 U.S. at 106).

-9-
 Subjectively, a plaintiff must show "that prison

officials possessed a sufficiently culpable state of mind, namely

one of 'deliberate indifference' to an inmate's health or safety."

Leavitt, 645 F.3d at 497 (quoting Burrell v. Hampshire Cnty., 307

F.3d 1, 8 (1st Cir. 2002)).

1. Objective Test: "Serious Medical Need"

As to the objective prong, we have held that a serious

medical need does not require that an inmate receive the best

possible treatment "that money can buy." Kosilek, 774 F.3d at 85

(quoting United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.

1987)). However, a serious medical need is "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, Mass.,

923 F.2d 203, 208 (1st Cir. 1990). Even a significant risk of

future harm may suffice. Kosilek, 774 F.3d at 85 (citing Helling

v. McKinney, 509 U.S. 25, 35 (1993)).

In the instant case, given the force involved in the

altercation, and accepting Perry's version of his symptoms as

presented to the nurses (a clenched jaw that would not open fully

and was causing pain sufficient for him to announce that he thought

it was broken), a lay person could find it obvious that the nurses

should at least have examined the jaw.

-10-
 2. The Subjective Test: "Wanton Disregard"

The subjective prong relies entirely on whether the

Appellees had a purposeful intent while neglecting Perry's

treatment. See Estelle, 429 U.S. at 105. The purposeful intent,

also known as deliberate indifference, requires evidence that the

absence or inadequacy of treatment is intentional. Id. (holding

that "an inadvertent failure to provide adequate medical care" is

not a constitutional violation); Watson v. Caton, 984 F.2d 537, 540

(1st Cir. 1993) ("The courts have consistently refused . . . to

conclude that simple medical malpractice rises to the level of

cruel and unusual punishment."). The typical example of a case of

deliberative indifference would be one in which treatment is denied

"in order to punish the inmate." Id. Additionally, a showing of

"wanton disregard" would be grounds for deliberate indifference.

Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011).

C. Analysis

1. Deliberate Indifference to a Serious Medical Need

As previously stated, the district court concluded that

Perry failed to overcome both hurdles. On the objective test,

despite finding that a broken jaw is a "serious injury," it

reasoned that this was somehow cured by the fact that Perry was

transferred to a hospital for additional medical treatment "within

approximately seventeen hours after the injury allegedly occurred."

Because Perry's physical symptoms substantially worsened over time,

-11-
this change in the information available to the prison's medical

staff ultimately led the third nurse to conclude that Perry

required emergency transfer to the hospital. The court then

concluded that to the extent that certain facts were in dispute,

they were not material to the resolution of the case, because they

did not have "the potential of affecting the outcome of the case."

The district court also found that Perry had failed to

establish that the Appellees were deliberately indifferent to his

needs under the subjective prong. In this respect the court

concluded that, "[e]ven assuming that [Perry] informed both

defendants that his jaw was broken, that he asked to be taken to

the hospital, and that both nurses refused to do so, that [was]

insufficient, without more, to establish deliberate indifference."

Because neither Nurse Roy nor Nurse Rocha had knowledge of the full

extent of Perry's injuries at the time of each evaluation, and they

did not deliberately deny him medical treatment, the court held

that the subjective prong was not met. The Appellees argue in

their brief that any issue in dispute is immaterial.

We find, however, that there are material facts in

dispute, which -- taken together on the record as a whole, and if

believed by a reasonable jury -- could lead to the sustainable

conclusion that the Appellees were deliberately indifferent to

Perry's complaints of a broken jaw. Moreover, we find that these

disputed material issues of fact could affect the district court's

-12-
analysis of both the objective and subjective prongs. These

factual issues include: whether Perry was barely able to speak or

open his mouth since his first evaluation by Nurse Roy; whether

Perry stated that he had a broken jaw and requested to go to the

hospital; whether these facts, together with the gash, pain, and

bleeding, amounted on their own to a serious medical need; whether,

if such complaints were in fact made, mere cursory inspection of

Perry's tooth -- without any inspection of his jaw -- was

sufficient to justify postponing any treatment of the broken jaw

given the other injuries to Perry's mouth and face that were

clearly present; whether Perry asked again to go to the hospital

when Nurse Roy woke him up with smelling salts after passing out;

whether Nurse Rocha said she would help him but then denied further

treatment after talking to Lt. Shubert who asked her to let Perry

"sleep it off"; whether, despite having a broken jaw, Perry denied

having any pain at all times as claimed by the Appellees; and

whether the medical need may have been one that was so obvious

"that even a lay person would easily recognize the necessity for a

doctor's attention." Gaudreault, 923 F.2d at 208.

When examining the record as a whole, we disagree with

the district court's holding that the treatment offered by the

Appellees based on the information they had at the time was

necessarily appropriate. The fact that the condition worsened over

time says nothing of the condition at the times Perry was

-13-
evaluated; a reasonable jury could have found that this shows that

the medical condition was serious all along, thus meeting the

objective prong. See id. Other issues of material fact in

controversy are whether the delay in receiving treatment for the

broken jaw was for seventeen hours or more; and, if so, whether

such a delay was objectively reasonable given the circumstances, or

if there is any evidence of a detriment to his health by this

delay, be it permanent or not. It is also in dispute whether

Appellees subjectively knew of Perry's serious medical need but

deliberately ignored it. While Appellees allege they did not

believe he had a broken jaw, Perry asserts he specifically told

them that his jaw was broken, the testimony of the treating

physician shows that his injuries were severe, and Perry's

condition worsened over time. Moreover, even though Appellees

opted for a wait-and-see approach and instructed the medical unit

to be contacted if conditions worsened, Perry's allegations are

that all of these conclusions were based on non-thorough

examinations, one of which was conducted through a window, for less

than a minute.

2. The District Court Incorrectly Weighed the Evidence

The district court erred in its weighing of Perry's

testimony that he received no treatment for his serious medical

need. "[I]n ruling on a motion for summary judgment, '[t]he

evidence of the non-movant [Perry] is to be believed, and all

-14-
justifiable inferences are to be drawn in his favor.'" Tolan v.

Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam) (quoting

Anderson, 477 U.S. at 255) (citation omitted). Perry's

interactions with Nurses Roy and Rocha are central matters in

dispute. If Perry's testimony about those interactions has to be

accepted as true for summary judgment purposes, it means that

neither Roy nor Rocha performed any meaningful, thorough

examination (i.e., were deliberately indifferent), that Rocha was

in fact told by Lt. Shubert to ignore Perry's pleas so as to let

him sleep it off, and that this "medical" advice was accepted by

Nurse Rocha. All of these facts, if believed by a reasonable jury,

could lead to a supportable conclusion that Perry's case meets the

wanton disregard standard for deliberate indifference under the

subjective prong. Notably, Perry does not complain of the quality

of the treatment received at the hands of the Appellees, which

would present a malpractice allegation. Rather, he alleges that he

received no treatment at all after being evaluated by the

Appellees, despite their knowledge of his complaints and his

visible serious medical needs.

Finally, we note that in analyzing the objective prong,

the district court found that the fact that Perry received some

treatment, including eventually being transferred to a hospital,

-15-
shows that his serious medical needs were not ignored.1 The

Appellees simply provided some additional treatment as the

condition evolved over time. Appellees argue that such additional

treatment necessarily defeats a plaintiff's claim under the

objective prong. If we were to accept this premise, no deliberate

indifference case would ever go to trial so long as someone managed

to take an inmate to the hospital right before he or she died, as

we can easily presume serious medical conditions do not necessarily

improve on their own over time. This is precisely why the

Constitution protects an inmate from a significant risk of future

health harms. See Helling, 509 U.S. at 35; see also DesRosiers v.

Moran, 949 F.2d 15, 19 (1st Cir. 1991) (The mental state

"requir[es] actual knowledge of impending harm, easily

preventable.").

Notwithstanding the foregoing, we do agree with Appellees

that in order to prevail, Perry must prove that it was obvious that

he had a serious need for greater or more immediate medical

attention than he claims Appellees provided, and that Appellees

failed to provide any care for his jaw sooner not merely because

they were negligent, but because they were deliberately indifferent

to that need. We hold only that if all issues of fact, including

1
The district court and the Appellees also consider this
additional treatment as relevant to the subjective prong, but for
the reasons already discussed, we believe that a reasonable jury
could find for Perry on that prong.

-16-
credibility, were resolved in Perry's favor, there would be enough

information for a jury to so find here.

In sum, this case presents triable issues of fact to be

resolved by factfinders.

III. Conclusion

The decision of the district court is reversed and this

case is remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

-17-