Braga v. Hodgson

United States Court of Appeals
For the First Circuit

No. 08-2331

JOSEPH BRAGA,

Plaintiff, Appellant,

v.

THOMAS HODGSON,
INDIVIDUALLY AND IN HIS CAPACITY AS SHERIFF OF BRISTOL COUNTY,
AND CERTAIN UNKNOWN INDIVIDUALS,

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

Torruella, Circuit Judge,
Souter, Associate Justice,* and Stahl, Circuit Judge.

Edward J. McCormick, III, for appellant.
Mary Jo Harris with whom Robert P. Morris and Morgan, Brown
& Joy, LLP, were on brief for appellee Hodgson.

May 14, 2010

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United states, sitting by designation.
 STAHL, Circuit Judge. Plaintiff-appellant Joseph Braga,

a former inmate at the Bristol County House of Correction in

Dartmouth, Massachusetts, brought suit against defendant-appellee

Thomas Hodgson, Sheriff of Bristol County, Massachusetts.1 Braga

alleged that the Sheriff's negligent maintenance of the facility

caused him physical injuries (the "negligence claim") and that the

Sheriff intentionally or with deliberate indifference denied Braga

proper medical care, in violation of 42 U.S.C. § 1983 (the

"Section 1983 claim"). After considering written and oral

argument, the district court granted summary judgment in the

Sheriff's favor on both counts. Having carefully reviewed the

record, we affirm. Braga also appeals the district court's entry

of a protective order preventing Braga from deposing the Sheriff.

We affirm that decision as well.

We first address the protective order issue, because

Braga argues that his ability to create an adequate record to

survive summary judgment was undermined by not being permitted to

depose the Sheriff. Braga asserts that he made six attempts to

schedule a deposition of the Sheriff over the course of a year, all

1
Braga also named Prison Health Services, Inc. ("PHS") as a
defendant in his amended complaint. The district court granted
summary judgment in favor of PHS on one count (a claim under 42
U.S.C. § 1983), but denied summary judgment as to a second claim
against PHS (negligent provision of medical care regarding surgical
repair of his knee). Braga and PHS apparently settled the
negligence claim without proceeding to trial.

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of which were rebuffed due to scheduling conflicts. Only after

these six attempts did the Sheriff move for a protective order.

Under Fed. R. Civ. P. 26(c) a party may seek a protective

order to prevent or limit discovery in order to avoid "annoyance,

embarrassment, oppression, or undue burden or expense." While we

generally favor broad pretrial discovery, it is also true that the

"trial judge has broad discretion in ruling on pre-trial management

matters, and we review the district court's denial of discovery for

abuse of its considerable discretion." Ayala-Gerena v. Bristol

Myers-Squibb Co., 95 F.3d 86, 91 (1st Cir. 1996).

The district court's oral decision granting the

protective order rested on a determination that, with all other

discovery completed, Braga had failed to put forth any evidence

whatsoever that (1) the Sheriff had any personal knowledge of

Braga's health care or (2) there was any basis for a Monell claim2

that there was a policy or practice of denying health care to

inmates. The court therefore granted the protective order,

concluding that Braga's request to depose the Sheriff did not

conform to Fed. R. Civ. P. 26(b)(1), which requires that "the

discovery appear[] reasonably calculated to lead to the discovery

of admissible evidence."

2
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694-95
(1978) (permitting Section 1983 suits against municipalities and
other local governments for a policy or custom that violates an
individual's constitutional rights).

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 Having reviewed the summary judgment record, we agree

with the district court's conclusion that Braga put forth no

evidence or plausible argument suggesting that a deposition of

Hodgson was reasonably calculated to lead to other discoverable

materials regarding his claims against the Sheriff. See Heidelberg

Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41-42

(1st Cir. 2003). Neither at the motion hearing nor in his papers

to the district court or this court has Braga plausibly suggested

that the Sheriff had any personal knowledge of Braga's medical care

or that there was any policy or practice of denial of health care.

As such, the request to depose was not reasonably calculated to

yield discoverable materials and was instead closer to a fishing

expedition.3 See, e.g., Fennell v. First Step Designs, Ltd., 83

F.3d 526, 533-34 (1st Cir. 1996). Thus, finding no abuse of

discretion, we affirm the grant of the protective order.4

Braga also appeals from the district court's grant of

summary judgment as to the negligence and Section 1983 claims. We

3
This conclusion is based on the paucity of evidence put forth
by Braga in support of his claims against the Sheriff. We thus
affirm the district court's grant of a protective order without
reaching the issue pressed by the Sheriff on appeal, namely that
his status as a high-ranking public official provides an
alternative ground to affirm the protective order grant. A
resolution of this issue is not necessary here.
4
In its oral decision on the protective order, the district
court rightly acknowledged that deciding that issue required the
court to consider, at least preliminarily, the viability on the
merits of Braga's claims against the Sheriff. Indeed, the two
issues are closely intertwined for our purposes as well.

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review both decisions de novo, Singh v. Blue Cross/Blue Shield of

Mass., Inc., 308 F.3d 25, 31 (1st Cir. 2002), and will affirm if

there is "no genuine issue as to any material fact and if the

moving party is entitled to judgment as a matter of law," Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Importantly, the

nonmoving party "may not rest upon mere allegation . . . but must

set forth specific facts showing that there is a genuine issue for

trial." Id. at 256. Employing these standards, we affirm the

district court's entry of summary judgment for the following

reasons.

First, the negligence claim was properly dismissed

because Braga failed to comply with the presentment requirement of

Massachusetts General Law 258, Section 4 (the Massachusetts Tort

Claims Act), which obliges a claimant to first present a negligence

claim against a public employer to the executive officer of the

public employer. See Weaver v. Commonwealth, 438 N.E.2d 831, 833-

36 (Mass. 1982). Braga stipulated before the district court that

he made no such presentment and he offers no compelling argument on

appeal that we should ignore the rule that presentment should be

made "in strict compliance with the statute." Id. at 834, 47. We

therefore affirm the grant of summary judgment as to the negligence

claim.5

5
We also note that, beyond the presentment problem, Braga's
own deposition fatally undermined his negligence claim. He alleged
in his complaint that the Sheriff failed to maintain the jail in a

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 Second, the district court also properly granted summary

judgment as to Braga's Section 1983 claim against the Sheriff in

his individual and official capacities. As to Braga's individual

capacity claim, the summary judgment record showed absolutely no

evidence of the Sheriff's personal involvement with or knowledge of

Braga's medical care.6 See Rogan v. Menino, 175 F.3d 75, 77 (1st

Cir. 1999) ("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."). Therefore, this claim has no merit

and summary judgment was warranted.

As to the Sheriff's actions in his official capacity, the

district court granted summary judgment because it found that there

was not sufficient evidentiary support to sustain Braga's claim of

an Eighth Amendment violation. Having reviewed the summary

judgment record, we agree.

reasonably safe manner, which in turn caused an injury to his knee.
Yet Braga was unable, at deposition, to identify the cause of the
knee injury or what area of the jail had been negligently
maintained. When asked how his knee was injured he replied, "I do
not know." He went on to answer similar questions with "I don't
know," "I don't remember," and "I just don't remember what [the
cause of the injury] was." Plainly, then, there was no factual
basis for his claim of negligence.
6
On appeal, Braga attempts to create a question of material
fact on this issue by pointing to his post-deposition affidavit
wherein he, Braga, alleged that he sent several letters to the
Sheriff complaining of his medical treatment while he was
incarcerated. However, the district court granted the Sheriff's
motion to strike that affidavit and Braga did not appeal from that
grant. Therefore the affidavit is not part of the record before
us.

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 Where a prisoner claims that his Eighth Amendment rights

were violated by denial of access to proper medical care, "he must

prove that the defendants' actions amounted to 'deliberate

indifference to a serious medical need.'" DesRosiers v. Moran, 949

F.2d 15, 18 (1st Cir. 1991) (quoting Estelle v. Gamble, 429 U.S.

97, 106 (1976)). "Moreover, inadvertent failures to provide

medical care, even if negligent, do not sink to the level of

deliberate indifference. In order to establish deliberate

indifference, the complainant must prove that the defendants had a

culpable state of mind and intended wantonly to inflict pain." Id.

at 19 (citations omitted).

Braga's allegations of harm inflicted by prison officials

come nowhere near the level of deliberate indifference required.

Braga cites four incidents which he says were sufficient to permit

his claim against the Sheriff to survive summary judgement. Two of

these claims (that a prison doctor refused to provide answers over

the phone to a hospital emergency room doctor regarding Braga's

heart medication, and that a prison doctor threatened Braga with

solitary confinement if he kept submitting sick slips complaining

of health problems) only involve allegations of wrong-doing by

doctors employed by Prison Health Services, Inc., rather than

corrections officials. Without more, they therefore do not support

an Eighth Amendment claim against the Sheriff.

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 Braga's other two allegations implicate corrections

officials. First, he alleges that on one occasion corrections

officers removed him from the medical unit before he received his

daily medication in order to comply with the guard schedule.

However, he does not allege that he suffered any ill effect from

this medication delay.

Second, he alleges that officers removed him from a

hospital before he had a heart ventricle unblocked, contrary to

doctor's orders. However, the medical report in the record shows

that he was discharged by the hospital after undergoing a cardiac

catheterization that ruled out a heart attack and confirmed "mild

to moderate disease involving the [left anterior descending artery]

with normal left ventricular function." The recommended treatment

was "ongoing medical therapy . . . for risk factor modification"

and use of a "lipid-lowering agent." In other words, his discharge

appears consistent with the medical recommendation of the hospital

physicians. Further, at his own deposition, Braga admitted that

the hospital doctors "said [the heart problem] would eventually

need to be taken care of. And when I asked if it was life-

threatening, they said no." We therefore agree with the district

court that Braga failed to put forth any evidence at all to support

his theory of deliberate indifference to his medical care.7

7
We need not reach an additional, obvious infirmity with
Braga's Section 1983 claim, namely that he cannot connect his
allegedly poor medical treatment to any action or inaction of the

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 For the foregoing reasons, we affirm the district court's

grant of a protective order and entry of summary judgment.

Affirmed.

Sheriff or to any policy or practice of the county.

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