Frances-Colon v. Ramirez, Dr.

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1293

                   LEILA FRANCES-COLON, ET AL.,

                     Plaintiffs - Appellants,

                                v.

                   DR. EFRAIN RAMIREZ, ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
                                                                    

                                           

                              Before

                     Torruella, Chief Judge,
                                                     

                  Coffin, Senior Circuit Judge,
                                                        

                 and DiClerico,* District Judge.
                                                         

                                           

     Kevin  G. Little, with whom  Law Offices David  Efr n was on
                                                                    
brief for appellants.
     Jos  Angel Rey for appellees.
                             

                                           

                        February 24, 1997
                                           

                    
                              

*  Of the District of New Hampshire, sitting by designation.


          TORRUELLA, Chief Judge.    Plaintiffs-appellants  Leila
                    TORRUELLA, Chief Judge.  
                                          

Frances-Col n and  Juan Enrique  Rodr guez brought  a malpractice

action  on  behalf  of  their minor  son  Eric  Rodr guez-Frances

("Eric")  against  two  doctors,  a municipal  hospital  and  the

municipality  of San Juan, on both federal and state law grounds.

They alleged  that the  doctors' mishandling of  Eric's delivery1

amounted to a violation of Eric's substantive due process rights,

actionable under 42 U.S.C.    1983, and that the  defendants were

liable for negligence under  Puerto Rico tort law.   The district

court  granted  defendants' summary  judgment  motion  as to  all

counts, for the  following reasons: (1) the  plaintiffs failed to

identify  a protected  substantive  due process  liberty interest

giving  rise  to  their  federal  civil  rights  claim;  (2)  the

defendants'  actions  were  not  state conduct  that  shocks  the

conscience  for the  purposes of  sustaining their  federal civil

rights claim; (3) the defendant doctors are immune from liability

under   Puerto  Rico  law;    (4)  the  tort  claim  against  the

municipality was time-barred under Puerto Rico law.  See Col n v.
                                                                        

Ram rez,  913 F. Supp. 112 (D.P.R. 1996).  Plaintiffs appeal from
                 

the grant of summary judgment.

                    
                              

1   The  essential mistake  alleged was  the doctor's  failure to
perform  a  caesarian  section.     Plaintiffs  allege  that  the
defendant doctors acted  with reckless  disregard and  deliberate
indifference by  delivering Eric  vaginally, using forceps,  even
though his mother  told the  doctors that she  could not  deliver
vaginally.   Eric was born  in poor physical  condition, suffered
severe   perinatal   asphyxia,   and   has   suffered   permanent
disabilities. 

                               -2-


           Having reviewed the record  and the parties' briefs on

appeal, we are satisfied with the reasoning of the decision below

and affirm the judgment  for substantially the reasons elucidated

in the  district court opinion.   Cf. Lawton  v. State Mut.  Life
                                                                           

Assurance Co., 101  F.3d 218, 220 (1st Cir. 1996)  ("We have long
                       

proclaimed  that when  a  lower court  produces a  comprehensive,

well-reasoned decision,  an appellate  court should refrain  from

writing at  length to no  other end  than to hear  its own  words

resonate.")  We need only note the following.

                I.  The Federal Civil Rights Claim
                          I.  The Federal Civil Rights Claim
                                                            

          The  district  court  correctly  held  that plaintiffs-

appellants  failed to  establish  a violation  of  constitutional

rights actionable under section 1983.  Appellants claim on appeal

that, in making this determination, the district court improperly

resolved  an issue of fact in favor of defendants by holding that

the  doctors  failed  to   act  with  the  requisite   degree  of

culpability  to sustain a section 1983  claim.  See Col n, 913 F.
                                                                   

Supp.  at 119.  Appellants urge us to consider certain affidavits

they produced in support  of the view that the  defendant doctors

were reckless, and not merely negligent.  First, it is  not clear

that the  district court's  statement that plaintiffs  "failed to

show  that   defendants  acted  with  the   requisite  degree  of

culpability" means that the  district court explicitly found that

defendants were not reckless.  More importantly, there is no need

to arrive at a  factual conclusion regarding whether  the doctors

were negligent or something  more than negligent, because, either

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way, the plaintiffs fail to state a cause of action under section

1983.   As the district  court opinion explains,  plaintiffs must

fail  on their civil rights claim because they do not demonstrate

either of the following:  that there was an interest protected by

the due process clause  at stake, or that there  was governmental

conduct  that  "shocks  the conscience."    See  id.   at  116-18
                                                              

(applying Pittsley v. Warish, 927 F.2d 3, 6 (1st Cir. 1991)).
                                      

          It is surprising,  in light of clear Supreme  Court and

First Circuit precedent, that  appellants would consider it worth

their while to try their luck, or, rather, waste time and energy,

with what is  essentially a malpractice claim  clothed in section

1983, civil rights,  language.   This is  plainly not a situation

in which the  state "takes  a person into  custody and holds  him

there  against   his  will,"   thereby  implicating  a   possible

constitutional  due process  interest in  adequate medical  care.

DeShaney v. Winnebago  County Dept.  of Social  Servs., 489  U.S.
                                                                

189,   199-200  (1989).    To  avoid  future  waste  of  judicial

resources, we wish to underscore  the decisive legal principle in

this  case.    A  substantive  due  process  interest  in "bodily

integrity" or  "adequate medical  care" cannot support a personal

injury  claim  under  section  1983  against  the  provider of  a

governmental  service unless:  (a) the  government has  taken the

claimant  into custody or  otherwise coerced the  claimant into a

situation where  he cannot  attend to  his  own well-being,  see,
                                                                          

e.g., Monahan v. Dorchester Counseling Ctr.,  Inc., 961 F.2d 987,
                                                            

990-93 (1st  Cir.  1992) (no  due  process claim  where  claimant

                               -4-


voluntarily entered mental  institution) (applying DeShaney);  or
                                                                     

(b) the  government employee, in  the rare and  exceptional case,

affirmatively acts to increase the threat of harm to the claimant

or   affirmatively   prevents  the   individual   from  receiving

assistance, see Dwares v. City  of New York, 985 F.2d 94,  96 (2d
                                                     

Cir. 1993) (due process  implicated where complaint under section

1983  alleged  that police  assured  skin-heads  that they  could

attack protestors with impunity, thereby affirmatively increasing

threat of harm to protestors) (distinguishing DeShaney);  Ross v.
                                                                        

United  States, 910  F.2d  1422,  1429-34  (7th Cir.  1990)  (due
                        

process  interest  in  life  implicated  where  county  officials

prevented  city officials  from  rescuing drowning  boy,  thereby

affirmatively   restricting   source   of  aid)   (distinguishing

DeShaney).
                  

          A proximate  causal link  between a  government agent's

actions and a  personal injury does not, in itself,  bring a case

out  of   the  realm  of   tort  law  and  into   the  domain  of

constitutional due process.   Daniels v. Williams,  474 U.S. 327,
                                                           

332 (1986).  Appellant's counsel would have done well to consider

more carefully the  cases it cites  for support in  its brief  --

such  as the following passage from Estate of Gilmore v. Buckley,
                                                                          

787  F.2d  714, 722  (1st Cir.  1986)  (holding failure  of state

employees  to protect victim  from murderous attack  by inmate on

furlough not actionable under section 1983):2

                    
                              

2  See Brief for Appellants at 17.
                

                               -5-


          Enormous  economic consequences  could follow
          from the reading  of the fourteenth amendment
          that plaintiff here urges.   Firemen who have
          been alerted to a  victim's peril but fail to
          take  effective action;  municipal ambulances
          which,  when called, arrive  late; and myriad
          other  errors by state officials in providing
          protective  services, could  all be  found to
          violate  the  Constitution.    It  would seem
          appropriate   that   the  citizenry,   acting
          through state legislatures and  state courts,
          should determine  how far it wishes  to go in
          reimbursing claims of this  type.  We can see
          no  justification  for   rewriting  the   due
          process clause of the federal Constitution so
          as to  construct a basis for  relief that can
          be more flexibly  provided elsewhere, if that
          is deemed advisable.

         II.  Defendants' Immunity under Puerto Rico Law
                   II.  Defendants' Immunity under Puerto Rico Law
                                                                  

          It is undisputed that the defendant doctors were acting

as government employees when they were attending to Eric's birth.

The district court correctly held  that the doctors are protected

under  the  immunity  for  government  health care  professionals

provided by  P.R. Laws Ann. tit.  26,   4105 (1989).   On appeal,

appellants  repeat  their  argument  that  the  doctors'  alleged

recklessness brings them  outside of this immunity provision.  We

note  that the Puerto  Rico Supreme  Court's decision  in V squez
                                                                           

Negr n v.  E.L.A., 113  D.P.R. 148,  151  (1982), interprets  the
                           

immunity  provision  broadly,  adding  further  strength  to  the

district  court's holding  that the  sole inquiry  required under

Puerto  Rico  law  in  determining whether  immunity  applies  is

whether the health care professional was acting as an employee of

the government at the time of the events giving rise to the suit.

          This much said, we allow the district court  opinion to

speak for itself.

                               -6-


          Affirmed.
                    Affirmed
                            

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