Ruiz-Rosa v. Rivera-Gonzalez

United States Court of Appeals
For the First Circuit

No. 06-1761

ANGELINA RUIZ-ROSA,

Plaintiff, Appellant,

v.

JOHNNY RULLÁN, SECRETARY OF THE DEPARTMENT OF HEALTH
OF THE COMMONWEALTH OF PUERTO RICO, ET AL.,

Defendants, Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and DiClerico, Jr.,* District Judge.

José R. Olmo-Rodríguez for appellant.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Salvador J. Antonetti-Stutts,
Solicitor General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor
General, were on brief for appellees.

April 24, 2007

____________________
* Of the District of New Hampshire, sitting by designation.
 DICLERICO, District Judge. Angelina Ruiz-Rosa brought

suit against officials of the Puerto Rico prison system and prison

medical personnel after her eighteen-year-old son, Jose Luis

Machuca-Ruiz, died of septicemia while being detained at the

Bayamón 1072 Correctional Complex (“BCC”). In her amended

complaint, Ruiz alleged violations of the Fifth, Eighth, and

Fourteenth Amendments, actionable under 42 U.S.C. § 1983, and

medical malpractice under Puerto Rico law. The district court

dismissed her suit as a sanction for failing to comply with its

order to allege her claims as directed, and alternatively, granted

summary judgment in the defendants’ favor on the federal claim, and

declined supplemental jurisdiction as to the malpractice claim,

which was dismissed without prejudice.

Background1

Jose Luis Machuca-Ruiz was incarcerated at BCC beginning

on September 19, 2001. On November 21, 2001, he reported to sick

call, requesting medical care for a skin infection on his upper

right thigh. He was evaluated and given topical medication. The

infection worsened, and Machuca was seen in the prison’s emergency

room on December 5 when the attending doctor found a mass in his

upper right thigh area, ordered a complete blood count (“CBC”), and

1
The facts are taken from the record and are undisputed unless
otherwise stated.

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prescribed Tylenol. Another doctor examined Machuca in the

emergency room later in the day and noted swollen lymph nodes

(adenopathy), with high fever and pain. Machuca was discharged

from the emergency room early in the morning of December 6 before

the results of the CBC were available.

The prison received the results of Machuca’s CBC test

later in the day on December 6. The results showed that he had an

elevated white blood count, including elevated readings for

neutrophils. He was given an antibiotic, which his mother contends

was not effective to fight the type of infection that he had. On

December 8, Machuca returned to the prison emergency room because

of pain. The infection site showed signs of worsening, as his leg

was tender, swollen, and red. The next day, Machuca was diagnosed

with cellulitis in his right thigh. On December 10, another doctor

in the prison emergency room diagnosed Machuca with a right thigh

abscess and referred him to the prison infirmary.

Dr. Pichardo, the prison’s part-time surgeon, was

consulted about Machuca’s case. Dr. Pichardo drained the abscess,

ordered a culture of the abscess discharge, and ordered a second

antibiotic. After the surgery, Dr. Pichardo, who worked at the

prison only two days each week, did not do a follow up evaluation.

On December 12, Machuca began to experience headaches and the wound

site was secreting pus. During the night of December 12, Machuca

began to experience respiratory problems. Early in the morning of

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December 13, Machuca was transferred to Bayamón Regional Hospital,

where he died the next day.

Angelina Ruiz-Rosa brought suit on her own behalf and on

behalf of her deceased son on April 12, 2004. She alleged federal

civil rights claims based on violations of the Fifth, Eighth, and

Fourteenth Amendments and claims under Puerto Rico law of

negligence and medical malpractice. Ruiz brought her claims

against the Puerto Rico Administrator of Corrections, Victor Rivera

González; the Secretary of the Department of Health, Johnny Rullán;

the Chief Health Care Coordinator for Puerto Rico, Aida Guzmán-

Font; the Medical Director at BCC, Hector Mena; medical doctors at

BCC, including Rafael Pichardo; unnamed nurses at BCC; the unnamed

Superintendent of BCC; and unidentified insurance companies.

The defendants filed a motion to dismiss in July of 2004

and also filed an answer to Ruiz’s complaint. During the fall of

2004 and the winter of 2005, Ruiz moved to substitute some named

parties for the John Doe defendants and to extend the deadlines for

discovery and for identifying other defendants. With their motion

to dismiss still pending, the defendants moved for summary judgment

on March 15, 2005. On March 21, 2005, the district court denied

the defendants’ motion to dismiss but found that “the complaint

jumbles the allegations pertaining to the constitutional tort with

those partaking of a medical malpractice, and imputes all

defendants with liability under either legal theory.” The court

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ordered Ruiz to file an amended complaint, on or before April 18,

to “separate the factual allegations corresponding to each legal

theory of liability, and . . . also define which defendants are

liable under each of the theories, and for what actions.” The

court also warned Ruiz that failure to file an amended complaint as

ordered would result in dismissal of her case. The court denied

Ruiz’s motions to substitute parties and to extend discovery

deadlines.

Ruiz filed an amended complaint within the time allowed.

The amended complaint named several new defendants in place of John

Doe defendants. Ruiz also moved to dismiss all claims against

Victor Rivera González. The court dismissed the claims against

Rivera and against Hector Mena. The defendants supplemented their

motion for summary judgment after the amended complaint was filed,

and Ruiz filed a response. On February 15, 2006, the court

dismissed the defendants who had been named as John Does but were

then identified by name in Ruiz’s amended complaint. On February

28, 2006, the court found that Ruiz’s amended complaint did not

comply with the order to separate her allegations as to each of her

theories of liability and as to each defendant and dismissed all of

Ruiz’s claims as a sanction for noncompliance. At the same time,

the court granted the defendants’ motion for summary judgment on

Ruiz’s federal claim and declined supplemental jurisdiction as to

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her malpractice claim under Puerto Rico law, which was dismissed

without prejudice.

Discussion

Ruiz appeals the district court’s order that dismissed

her claims as a sanction and alternatively granted summary judgment

in the defendants’ favor on her federal claims.2 She contends that

dismissing her claims as a sanction was inappropriate and that the

district court erred in granting summary judgment in the

defendants’ favor on her federal claim. The remaining defendants,

Johnny Rullán, Aida Guzmán-Font, and Rafael Pichardo, defend the

district court’s decision to dismiss Ruiz’s claims as a sanction

and argue that summary judgment was properly granted.3

2
Ruiz does not appeal the district court’s decisions denying
Ruiz’s motions to substitute named defendants for the John Doe
defendants and dismissing additional defendants named in the
amended complaint. Ruiz also does not challenge the district
court’s decision to decline supplemental jurisdiction over her
malpractice claim.
3
The defendants also argue that sovereign immunity provided by
the Eleventh Amendment bars Ruiz’s claims against them, which is a
theory that the district court rejected. The defendants did not
file a cross appeal to address this issue. To the extent the
Eleventh Amendment implicates the court’s jurisdiction, see Hudson
Savings Bank v. Austin, --- F.3d ---, 2007 WL 642007, at *5 (1st
Cir. Mar. 5, 2007) (noting issue of whether Eleventh Amendment is
jurisdictional doctrine is unresolved), which the court is required
to consider sua sponte, see Doyle v. Huntress, Inc., 419 F.3d 3, 6
(1st Cir. 2005), we are satisfied that the Eleventh Amendment does
not provide immunity to the defendants here, who were sued in their
individual capacities, see Dasey v. Anderson, 304 F.3d 148, 153
(1st Cir. 2002).

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A. Dismissal as Sanction

In response to a defendant’s motion, a court may dismiss

an action “[f]or failure of the plaintiff to prosecute or to comply

with . . . any order of court.” Fed. R. Civ. P. 41(b). A

dismissal entered to sanction a party for failure to comply with a

court’s order or for failure to prosecute the case is reviewed for

abuse of discretion. Malot v. Dorado Beach Cottages Assocs., ---

F.3d ---, 2007 WL 549110, at *3 (1st Cir. Feb. 23, 2007). In

determining whether an abuse of discretion has occurred, “we must

fairly balance the court’s venerable authority over case management

with the larger concerns of justice, including the strong

presumption in favor of deciding cases on the merits.” Id.

Dismissal with prejudice, along with contempt, are the

most severe penalties that may be ordered against a recalcitrant

party. Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 4 (1st Cir.

2006). We therefore reserve dismissal with prejudice for egregious

misconduct that is measured by considering all aspects of the case,

including “‘the severity of the violation, the legitimacy of the

party’s excuse, repetition of violations, the deliberateness vel

non of the misconduct, mitigating excuses, prejudice to the other

side and to the operations of the court, and the adequacy of lesser

sanctions.’” Id. at 5 (quoting Robson v. Hallenbeck, 81 F.3d 1, 2-

3 (1st Cir. 1996)). In addition, procedural fairness mandates that

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the plaintiff be afforded an opportunity to explain her

noncompliance or to advocate for a lesser sanction. Id. at 7.

In this case, the district court found Ruiz’s original

complaint wanting, but instead of dismissing her claims, the court

granted her an opportunity to file a more clearly stated complaint.

Ruiz filed an amended complaint within the time the court allowed.

As directed, Ruiz separated her claims into separate causes of

action, alleging deliberate indifference to serious medical needs

under federal law as her first claim and medical malpractice under

Puerto Rico law as her second claim. Ruiz alleged particular

actions and conduct by each defendant, including the newly named

defendants, in support of her federal claim. For her malpractice

claim, however, Ruiz adopted by reference all of the allegations

made in support of the federal claim and stated that those “acts

and omissions, also amount to gross negligence and/or fault under

Puerto Rico” law.

The district court found Ruiz’s amended complaint

deficient, concluding that she “utterly failed to comply with our

Order of March 21, 2005.” In particular, the court faulted Ruiz

for “once again jumbl[ing] the allegations pertaining to the

constitutional violation based on denial of medical care with those

which would sustain a tort for medical malpractice, and unabashedly

reassert[ing] that all defendants are liable under both legal

theories.” The court also found it unacceptable that Ruiz adopted

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by reference all of the facts alleged in support of her federal

claim to support her malpractice claim.4 The court concluded that

Ruiz’s medical malpractice claim against the defendants who were

alleged to have “purely administrative deficiencies” was “patently

frivolous.”

To satisfy Federal Rule of Civil Procedure 8(a), a

plaintiff must allege claims in a way that gives the defendants

fair notice of what the claims are and the grounds for those

claims. Calvi v. Knox County, 470 F.3d 422, 430 (1st Cir. 2006).

The complaint “must ‘at least set forth minimal facts as to who did

what to whom, when, where, and why.’” Id. (quoting Educadores

Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66 (1st Cir.

2004)). Civil rights cases do not impose a heightened pleading

standard. Asociación De Suscripción Conjunta Del Deguro De

Responsabilidad Obligatorio v. Flores Galarza, --- F.3d ---, 2007

WL 613719, at *17 (1st Cir. Mar. 1, 2007).

The defendants’ counsel conceded at oral argument that

Ruiz’s amended complaint put the defendants on notice of what her

claims were and the grounds for those claims and agreed that the

4
The reason for the district court’s aversion to Ruiz’s
adoption of allegations by reference is not clear. Because that is
a commonly-used pleading shortcut, that procedure, standing alone,
cannot be a basis for the court’s sanction. See, e.g., Mass.
Nurses Ass’n v. N. Adams Reg’l, 467 F.3d 27, 32 (1st Cir. 2006);
Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35, 38 (1st Cir.
2004); In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 14 (1st
Cir. 2003); Conway Chevrolet Buick, Inc. v. Travelers Indem. Co.,
136 F.3d 210, 214 (1st Cir. 1998).

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amended complaint satisfied the requirements of notice pleading.

The defendants’ counsel argued, however, that the district court’s

sanction was within its discretion because Ruiz’s amended complaint

did not meet the more exacting requirements set forth in the

district court’s order. We disagree.

In its March 21 order, the district court required more

than is necessary to satisfy the notice pleading standard of the

federal rules. The district court then dismissed Ruiz’s claims as

a sanction for failing to comply with the court-imposed standard.

It is far from clear that Ruiz failed to comply with the court’s

order, much less that any deficiency in the amended complaint was

a sufficient basis to support the harsh sanction of dismissal.5

The court’s decision to dismiss the complaint as a sanction was an

abuse of discretion. We turn to the alternative basis for the

district court’s decision, summary judgment.

B. Summary Judgment

On appeal, we review summary judgment de novo, employing

the same standard that governed consideration of the motion below.

See Salem Hosp. v. Mass. Nurses Ass’n, 449 F.3d 234, 237 (1st Cir.

5
To the extent the district court dismissed Ruiz’s claims as
frivolous or for failing to state a cause of action, as opposed to
imposing dismissal as a sanction, that result is also disfavored
and would not have been appropriate here. See, e.g., Cepero-Rivera
v. Fagundo, 414 F.3d 124, 130 (1st Cir. 2005); Chute v. Walker, 281
F.3d 314, 319 (1st Cir. 2002); Gonzalez-Gonzalez v. United States,
257 F.3d 31, 36-37 (1st Cir. 2001).

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2006). We therefore examine all of the material facts of record

and resolve all reasonable inferences in favor of the non-moving

party. N.H. Ins. Co. v. Dagnone, 475 F.3d 35, 37 (1st Cir. 2007).

Summary judgment is appropriate when the properly supported facts

of record “show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

The district court granted the defendants’ motion for

summary judgment on Ruiz’s federal claims and declined supplemental

jurisdiction over her malpractice claim, which was dismissed

without prejudice. In doing so, the court noted that Machuca’s

illness was a serious medical need but agreed with the defendants

that evidence was lacking to support the deliberate indifference

prong of Ruiz’s federal claim. Ruiz argues that she alleged

sufficient facts to allow a jury to conclude that the defendants

were deliberately indifferent to her son’s serious medical needs

and, to a lesser extent, contends that record facts support her

claim.

Because Ruiz’s son, Machuca, was a pretrial detainee

rather than a convicted inmate, the Fourteenth Amendment governs

his claim. Surprenant v. Rivas, 424 F.3d 5, 13 (1st Cir. 2005).

The Fourteenth Amendment provides at least as much protection for

pretrial detainees as the Eighth Amendment provides for convicted

inmates. Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

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Generally, the standard applied under the Fourteenth Amendment is

the same as the Eighth Amendment standard.6 Burrell v. Hampshire

County, 307 F.3d 1, 7 (1st Cir. 2002).

For medical treatment in prison to offend the

Constitution, the care “must involve ‘acts or omissions

sufficiently harmful to evidence deliberate indifference to serious

medical needs.’” Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158,

161 (1st Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 105-06

(1976)). Deliberate 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.” Id. at 162 (internal quotation marks

omitted). Deliberate indifference means that “a prison official

subjectively ‘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.’” Burrell, 307 F.3d at 8 (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Therefore,

substandard care, malpractice, negligence, inadvertent failure to

provide care, and disagreement as to the appropriate course of

treatment are all insufficient to prove a constitutional violation.

Feeney, 464 F.3d at 161-62.

6
The parties and the district court considered the claim under
the Eighth Amendment.

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 Ruiz primarily relies on the allegations in her complaint

to oppose summary judgment, and such reliance does not satisfy the

Rule 56 standard. In contrast, the defendants cite to the medical

record, deposition testimony, and their declarations submitted in

support of the motion for summary judgment. See Fed. R. Civ. P.

56(c). A party opposing a properly supported motion for summary

judgment must present competent evidence of record that shows a

genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986). Allegations made in a plaintiff’s complaint,

standing alone, are not enough to oppose a properly supported

motion for summary judgment. Velazquez-Garcia v. Horizon Lines of

P.R., Inc., 473 F.3d 11, 15 (1st Cir. 2007).

As presented, the record provides no evidence of

deliberate indifference on the part of any of the defendants.

Ruiz’s expert witness, Dr. Carlos Eduardo Ramirez Gonzalez,

criticized the care Machuca received, stating that he was given

ineffective antibiotics, that doses of the antibiotics which were

prescribed were missed, that the staff failed to keep adequate

medical records, and that the staff failed to respond when

Machuca’s condition worsened. Dr. Ramirez stated that in his

opinion the prison medical staff was indifferent to Machuca’s need

for care because they saw that his condition was deteriorating but

failed to take any action.

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 The record establishes that Dr. Pichardo treated Machuca

by draining the abscess, ordering a culture, and prescribing a

second antibiotic. Although Ruiz disagrees with the treatment Dr.

Pichardo provided, Dr. Ramirez’s opinion does not provide evidence

that Dr. Pichardo was aware that the antibiotic he prescribed was

ineffective and would pose a substantial risk of harm to Machuca.

Ruiz also faults Dr. Pichardo for failing to monitor Machuca’s

condition after he treated him. The record shows, however, that

Dr. Pichardo only worked at the prison two days each week. Ruiz

provides no evidence that Dr. Pichardo was aware that his failure

to monitor Machuca after treating him would subject Machuca to a

substantial risk of harm.

Ruiz has shown only that her expert witness disagrees

with Dr. Pichardo’s choice of antibiotic and the course of

treatment Dr. Pichardo provided, which might be evidence of

malpractice (a matter on which we express no opinion), but is

insufficient to show deliberate indifference. See Feeney, 464 F.3d

at 162-63. In addition, Ruiz, the party with the burden of proof,

cannot rely on speculation or conjecture and must present “more

than a mere scintilla of evidence in [her] favor.” Invest Almaz v.

Temple-Inland Forest Prods. Corp., 243 F.3d 57, 76 (1st Cir. 2001).

Ruiz argues that Dr. Rullán, who was Secretary of the

Puerto Rico Department of Health, and Dr. Guzmán, who was Chief

Health Care Coordinator for the Correctional Health Services

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Program, knew of the substandard medical treatment provided at BCC

and failed to remedy the problem. Specifically, Ruiz contends that

Dr. Rullán and Dr. Guzmán knew that failing to treat sepsis

properly with antibiotics puts patients’ lives at risk and that the

practice of having a surgeon available only two days each week puts

patients’ lives at risk. She further contends that the risk of

harm from inadequate medical treatment at BCC was obvious.

Although Ruiz alleges that Dr. Rullán and Dr. Guzmán knew of these

practices and their consequences, she provided no evidence of such

knowledge.

While proof of deliberate indifference by prison

officials does not require evidence that the officials were aware

of the risk of a specific harm, the plaintiff must show that the

officials had “knowledge of facts from which the official[s] can

draw the inference that a substantial risk of serious harm exists.”

Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 65 (1st Cir. 2002).

In some circumstances, “a fact-finder may conclude that a prison

official knew of a substantial risk from the very fact that the

risk was obvious.” Burrell, 307 F.3d at 8. The risk, however,

must have been obvious to the particular officials who are

defendants. Id.

The record establishes that Dr. Guzmán was appointed by

the federal court in Puerto Rico to coordinate compliance with the

Medical Health Care Plan and the Mental Health Plan in the Puerto

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Rico prison system. She had no involvement with medical care for

individual inmates at BCC and knew nothing about Machuca’s case

until Ruiz filed suit. As Secretary of Health in Puerto Rico, Dr.

Rullán had no involvement in the medical treatment provided to

Machuca “or any other patient.” He did not supervise the medical

staff at BCC. Like Dr. Guzmán, Dr. Rullán became aware of

Machuca’s case only after Ruiz filed suit. Nothing in the record

shows or even suggests that either Dr. Guzmán or Dr. Rullán knew of

inadequate medical care at BCC, or that an inadequacy, which would

permit the inference that inmates were at substantial risk of

serious harm, was obvious.7 Therefore, no factual issue exists to

avoid summary judgment on whether Dr. Guzmán and Dr. Rullán were

deliberately indifferent to a substantial risk of harm to Machuca.

Conclusion

The district court abused its discretion in dismissing

Ruiz’s claims as a sanction for failing to comply with the

heightened pleading standard imposed by the court’s order. In the

absence of a genuine issue of material fact on the question of the

defendants’ deliberate indifference to Machuca’s serious medical

needs, however, summary judgment was appropriately granted in the

defendants’ favor on Ruiz’s federal claim. Ruiz does not appeal

7
Indeed, Ruiz concedes as much, stating in her brief that
“there is not much in the record regarding defendants’ knowledge of
the risks of harm that existed at [BCC].”

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the district court’s decision not to exercise supplemental

jurisdiction over her malpractice claim. Therefore, that part of

the district court’s decision that dismissed Ruiz’s claim as a

sanction is harmless error.8 The district court’s decision

granting summary judgment in favor of the defendants on the federal

claim and declining supplemental jurisdiction over the malpractice

claim, which was dismissed without prejudice, is affirmed.

8
In addition, although the district court ordered that
judgment enter dismissing the complaint as a sanction for failing
to comply with the court’s previous order, the judgment entered the
same day dismissed the federal claims, with prejudice, and
dismissed the tort claims under Puerto Rico law without prejudice.

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