Massey v. Rufo, Etc., 1st Cir. (1994)

USCA1 Opinion
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1380
GAYLON MASSEY,
Plaintiff, Appellant,
v.
ROBERT RUFO, ETC., ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Gaylon Massey on brief pro se.
_____________
Melissa
J. Garand, on Motion
____________________
appellees.
for
Summary
Disposition,
____________________
January 14, 1994
____________________
Per Curiam.
__________
Gaylon Massey filed an action
district court pursuant

the events
described in
detainee at the
that
his
to 42 U.S.C.
indifference
complaint, he
Suffolk County Jail.
constitutional
personnel by the
the
1983.
rights
margin
judgment
was a
pretrial
were
violated
by
jail
use of excessive force, by their deliberate
to his
order,
At the time of
His complaint alleged
medical needs
and
administration of psychotropic drugs.

a
in the
granted
defendants'
by the
involuntary
The district court, in

motion
for
summary
on the ground that plaintiff had failed "to support
his substantive allegations by factual evidentiary material."

It also denied plaintiff's motion to amend the complaint
and
his request for
an extension of time
to complete discovery.
Plaintiff appeals.
A.
Deliberate Indifference to Medical Needs

________________________________________
To
prevail
establish
on
such
that defendants' actions
infliction of unnecessary pain."

97, 104 (1976).
needs of
claim,
plaintiff
amounted to
must
the "wanton
Estelle v. Gamble, 429 U.S.

_______
______
"Deliberate indifference to
prisoners" satisfies this
standard.
serious medical
Id.
___
at 104.1
____________________
1. Because plaintiff was a pretrial detainee, the Eighth
Amendment does not apply; rather, the due process clause of
the
Fourteenth Amendment
is
the rubric
under which
plaintiff's claims are analyzed. See Bell v. Wolfish, 441
___ ____
_______
U.S. 520, 535 n.16 (1979); Elliot v. Chesire County, 940 F.2d
______
______________
7, 10
& n.1
(1st Cir.
1991) (applying
"deliberate
indifference" standard under the due process clause to a
claim of inadequate medical treatment provided to a pretrial
detainee).
-2-
Negligence and inadvertence in providing medical treatment do

not state a
valid claim of deliberate indifference.
Id. at
___
105-06.
"Where
help, but
the dispute
the choice
concerns
of a certain
not the
course of
absence
of
treatment, or
evidences mere disagreement with considered medical judgment,

we will
not second guess the doctors."
F.2d 9,
13 (1st Cir.
indifference
may
1987).
In this
be established
essential care.'"
231, 234 (1st Cir. 1991)
any refusal to
the attention
as to amount to a refusal
Torraco v. Maloney,
_______
_______
923 F.2d
(quoting Miranda v. Munoz, 770 F.2d

_______
_____
255, 259 (1st Cir. 1985)).

show
situation, deliberate
only "where
received is `so clearly inadequate

to provide
Sires v. Berman, 834

_____
______
There is nothing in the record to
treat plaintiff.
He
was seen the same
day as the incident, provided
with medication and sent for a
consultation to the hospital.
Plainly, there
question
of
fact
indifferent" to
that
defendants
were not
plaintiff's medical needs.
is no material
"deliberately
Discovery would
not aid plaintiff.
prisoner
________
B.
Involuntary Medication with Psychotropic Drugs

______________________________________________
It
has been
"possesses
avoiding the
under
clear
a
since
significant
February
liberty
unwanted administration of
the Due Process
Clause of the
1990
that
interest
a
in
antipsychotic drugs
Fourteenth Amendment."
-3-
See
___
Washington
__________
Harper
______
involved a
procedures for
with serious
Harper, 494
______
U.S.
challenge to
the
medicating
Offender Center
Court
v.
prisoners housed
mental illnesses.
state
may
treat
221-22 (1990).2
state of
(SOC), an institution
addressed was whether
before
210,
Washington's
in its
for convicted
The
felons
specific question
a judicial hearing
a
Special
mentally-ill
antipsychotic drugs against his will.
the
is required
prisoner
Id. at 213.
___
with
The Court
determined that the SOC's policies, which did not provide for
such a hearing, were constitutional.
Id. at 231.
___
The facts of the case at hand, however, concern not

the treatment of a prisoner with antipsychotic drugs, but the
_________
emergency
_________
administration of this kind of medication based on
a pretrial detainee's threatening behavior.

immunity
1983
protects state actors
"insofar
as
their conduct
Qualified
from damages claims

does
not
under
violate clearly
established statutory
or
reasonable person would

457 U.S.
constitutional rights
have known."
800, 818 (1982).
right must be
Harlow
______
of which
v. Fitzgerald,
__________
That is, "[t]he contours
sufficiently clear that a
of the
reasonable official
____________________
2.
In 1992,
in Riggins v. Nevada, 112 S. Ct. 1810 (1992),

_______
______
the Court decided that a detainee had the right to be free
from treatment with antipsychotic drugs during trial unless
the state had determined that "treatment with antipsychotic
_________
medication was medically appropriate and, considering less
intrusive alternatives, essential for the sake of [the
detainee's] own safety or the safety of others." Id. at 1815
___
(emphasis added).
-4-
would
understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987).

________
_________
The events here took place in late August and early
September
1990,
over
five months
February.
However, we do
after
Harper
______
issued in
not think the right established in
Harper bears a
______
here.
That is, there
1990 that
right
sufficient relationship to the
right alleged
was no caselaw in August
or September
clearly established that a pretrial detainee had a
under
announced
the
Fourteenth
in Harper before
______
Amendment
to
he could be
the
procedures
given antipsychotic
medicine in an emergency situation.

C.
Excessive Force
_______________
The standards
are set out
governing the use of excessive force
in Whitley v. Albers,
_______
______
show an
Eighth Amendment
inmate
must
infliction of
475 U.S. 312 (1986).
violation when
demonstrate
"the
pain."3
at 320.
Id.
___
force is used,
unnecessary
This
and
To
an
wanton
inquiry, in turn,
depends on "`whether force was applied in a good faith effort

to
maintain
or
restore
discipline
sadistically for the very purpose

320-21
(quoting Johnson
_______
Cir.), cert. denied, 414

_____________
Court has
recognized that
or
maliciously
of causing harm.'"
v. Glick, 481
_____
U.S. 1033
F.2d 1028,
(1973)).
deference should
and
Id. at
___
1033 (2d
Finally, the
be accorded
to
____________________
3. In cases involving pretrial detainees, the Due Process
Clause applies.
Graham v. Connor, 490 U.S. 386, 395 n.10
______
______
(1989).
-5-
prison
administrators in the
that they believe
are necessary to maintain
the institutions they run.

To
use of practices
and policies
the security of
Id. at 321-22.
___
be entitled to summary judgment, a moving party
must "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."
met this
the existence
357 (1st
Civ. P. 56(e).
other
Once the movant has
of "at least
`genuine' and `material.'"
F.2d 355,
or
R. Civ. P. 56(c).
standard, the burden shifts to the non-moving party
to establish
both
Fed.
Cir. 1991)
evidence
(citation omitted);
in
that is
Kelly v. United States, 924

_____
_____________
Here, plaintiff did not
record
one issue
Fed. R.
file any affidavits
opposition
to
the
summary
judgment motion.
Turning to
that
the record
Plaintiff
defendants' evidence,
is adequate
alleges in
separation [sic]
not think
support summary
judgment.
his complaint
beating [sic] by several of the

a
to
we do
that
he was
"severely
defendants which resulted in
shoulder, lacerations
to
the face
and
head, bruises
to the chest,
arms and groin area,
the excessive use of force."

caused
the
"unnecessary
caused by
He also claims that defendants
and wanton
infliction
of
pain."
Next, plaintiff states that when he insisted on finishing his

meal, his
him; he
food tray was

then
grabbed and that the
states that
he
was jumped
jailer shoved
on and
his
arms
-6-
twisted behind him.
Finally, he claims that
he was dragged
to a cell while being kicked all over.

There are four disciplinary reports relating to the
incident in
question.
The first
two describe
plaintiff's
refusal to return to his room after dinner.
According to the
officers, plaintiff
said he was
going back
threw down
his spoon,
not
to his room and told the officers that they might
as well take
him to "the hole."
These officers immediately
notified the Sheriff's Emergency
Response Team ("S.E.R.T.").
There are
no
reports
from
any
members
of
the
concerning precisely in what manner plaintiff was

and how much force actually
S.E.R.T.
restrained
was used to subdue plaintiff and
take him to a cell.

contained
in
originally
the
The only references to the

reports
called the
of
S.E.R.T.
the
two
They
incident are
officers
state
who
simply
had
that
plaintiff "was restrained and taken to the 6-1 unit."

In their
motion for
simply assert that the officers

necessary."
log book
this conclusion, the
the only relevant
question simply states that at
called
Significantly,
to
move
inmate
Gaylon
information on
5:25 p.m., "Sert
Massey
there are no affidavits from

__
personnel stating that
defendants
"used no more force than was
in support of
for August 31st;
the page in
team
They cite,
summary judgment,
they did not use any
to
6-1."
any of the jail

more force than
they reasonably believed necessary and that the force was not
-7-
excessive, much less any affidavits describing what, in fact,

actually happened.
In
this kind have
general, grants of summary judgment in cases of

rested upon affidavits describing
the actual
event and refuting the suggestion of undue force.
See, e.g.,
___
Tarpley
_______
v. Greene,
______
684 F.2d
filed a
1983
plaintiff
assaulted him during a

appropriate
because
1, 4
(D.C. Cir.
action
1982) (where
that
officers
search of his home, summary
judgment
defendant
claiming
____
filed
an
affidavit" denying assault took place).
"uncontroverted
Even if jail records
were treated as a substitute, the records here -- as noted -also fail
to provide
extent of the
such a description
force used.
Thus, we
of the
nature and
think that the
record
falls short of establishing that there is no material dispute

about the use of undue force and that a remand is required on
that claim.
In fairness
to the
able district
judge, we
note
that there is an affidavit supporting the view that plaintiff

had been guilty of disruptive behavior on two prior occasions
in August 1990.
It is
a fair guess that, when the
officers
do file affidavits, they will not only assert the gist of the
disciplinary
reports relating to
August 31, 1990,
but will
also seek to show that they did not use excessive force.
The
medical records indicate
a sprained shoulder but there is no
indication of laceration
or severe wounds.
-8-
Accordingly, we
express
no
appropriate
view
on
whether
summary
judgment
may
be
if and when officer affidavits addressed to this
incident are submitted.

The judgment of
to the
claims
of
medical
needs
and
antipsychotic drug.
the district court is
deliberate
the
indifference
involuntary
The judgment
plaintiff's
administration
of
an
is vacated as to the claim

_______
that defendants
used excessive
from the dining
area and the matter is
proceedings.
to
affirmed as
________
force in
removing plaintiff
remanded for further
________
-9-

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USCA1 Opinion

[NOT FOR PUBLICATION]

Gaylon Massey filed an action

district court pursuant

Suffolk County Jail.

use of excessive force, by their deliberate

His complaint alleged

administration of psychotropic drugs.

The district court, in

on the ground that plaintiff had failed "to support

his substantive allegations by factual evidentiary material."

his request for

Deliberate Indifference to Medical Needs

that defendants' actions

infliction of unnecessary pain."

Estelle v. Gamble, 429 U.S.

prisoners" satisfies this

Negligence and inadvertence in providing medical treatment do

valid claim of deliberate indifference.

evidences mere disagreement with considered medical judgment,

not second guess the doctors."

231, 234 (1st Cir. 1991)

(quoting Miranda v. Munoz, 770 F.2d

255, 259 (1st Cir. 1985)).

received is `so clearly inadequate

Sires v. Berman, 834

There is nothing in the record to

was seen the same

day as the incident, provided

with medication and sent for a

consultation to the hospital.

plaintiff's medical needs.

not aid plaintiff.

Involuntary Medication with Psychotropic Drugs

the Due Process

addressed was whether

antipsychotic drugs against his will.

The facts of the case at hand, however, concern not

administration of this kind of medication based on

a pretrial detainee's threatening behavior.

protects state actors

from damages claims

reasonable person would

800, 818 (1982).

That is, "[t]he contours

sufficiently clear that a

in Riggins v. Nevada, 112 S. Ct. 1810 (1992),

understand that what he is doing violates that right."

Anderson v. Creighton, 483 U.S. 635, 640 (1987).

not think the right established in

That is, there

sufficient relationship to the

was no caselaw in August

clearly established that a pretrial detainee had a

medicine in an emergency situation.

governing the use of excessive force

475 U.S. 312 (1986).

depends on "`whether force was applied in a good faith effort

sadistically for the very purpose