          United States Court of Appeals
                     For the First Circuit


No. 17-2115

                          JENNA ZINGG,

                      Plaintiff, Appellant,

                               v.

       THOMAS GROBLEWSKI and MASSACHUSETTS PARTNERSHIP FOR
                     CORRECTIONAL HEALTHCARE,

                     Defendants, Appellees.


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

        [Hon. Allison D. Burroughs, U.S. District Judge]


                             Before

                Torruella, Thompson, and Barron,
                         Circuit Judges.


     David Milton, with whom Howard Friedman, Georgi Vogel Rosen,
and Law Offices of Howard Friedman, P.C. were on brief, for
appellant.
     Tory A. Weigand, with whom Morrison Mahoney LLP was on brief,
for appellees.


                        October 29, 2018
             BARRON, Circuit Judge.       In 2015, Jenna Zingg ("Zingg"),

a pretrial detainee at the Massachusetts Correctional Institute-

Framingham     ("MCI-Framingham"),        sued   Dr.   Thomas    Groblewski

("Groblewski") and the Massachusetts Partnership for Correctional

Healthcare ("MPCH") in the United States District Court for the

District of Massachusetts.        She brought a Massachusetts state law

claim for common law negligence and a federal law claim, pursuant

to 42 U.S.C. § 1983, for a violation of her right under the Eighth

Amendment    of   the   United   States   Constitution,   as    incorporated

against the states by the Fourteenth Amendment, to be free from

cruel and unusual punishment.        See U.S. Const. amends. VIII, XIV.

The District Court granted the defendants' motion for summary

judgment on the § 1983 claim and dismissed Zingg's state law

negligence claim without prejudice.         We affirm.

                                     I.

             The following facts are not in dispute.            Jenna Zingg

entered MCI-Framingham on March 12, 2013, as a pretrial detainee.

She had a long history of psoriasis and had tried a variety of

treatments, including clobetasol, the most potent topical steroid

available; Dovonex, a weaker topical vitamin D analog; and Humira,

a systemic treatment that targets the immune system.

             Zingg responded well to Humira, which she had been taking

for about nine months prior to entering MCI-Framingham.            However,




                                    - 2 -
Zingg did not receive her regularly scheduled Humira injections

after entering MCI-Framingham, and her psoriasis worsened.

             On April 25, after Zingg submitted repeated requests for

medical     attention,     she    was    examined    by   Patricia    Casella,   a

physician's assistant at MCI-Framingham who worked for MPCH, the

contractor that provides all medical and mental health services to

individuals        held   in   Massachusetts        Department   of   Correction

facilities.        At that examination, Casella prescribed Zingg with

clobetasol, which was a formulary medication, meaning that it was

pre-approved for administration by MPCH.

             Zingg's psoriasis became more and more severe, even

while she was using clobetasol, and she submitted increasingly

urgent requests for medical attention between July 1 and July 11.

On   July    12,    Casella      again   examined     Zingg   and,    noting   the

deterioration of her condition, prescribed her Humira and Dovonex,

which was prescribed pending approval of a prescription for Humira.

Both of these medications, however, were non-formulary medications

and, as such, were not pre-approved to be administered to MPCH's

patients.    Thus, the pharmacy forwarded the requests to Dr. Thomas

Groblewski, who, as the statewide medical director for MPCH, was

responsible for approving all non-formulary prescription requests

made by MPCH practitioners.




                                         - 3 -
             On July 15, Groblewski approved the Dovonex request but

denied the request for Humira.         The pharmacy sent Casella a denial

of the Humira request that same day.

             Zingg's psoriasis continued to get worse while she used

Dovonex, and, on August 6, MPCH approved a request for Zingg to

see a dermatologist at Lemuel Shattuck Hospital.                At her August 9

appointment      with   the   dermatologist,    Zingg     was   diagnosed    with

severe psoriasis and mild psoriatic arthritis, admitted as an in-

patient, and screened for risk of infection.                She was given an

initial   dose    of    Humira   on   August   11   and   discharged   to    MCI-

Framingham the next day.         She received a second Humira shot at the

prison on August 27 and was released from prison on September 5,

by which time she had experienced significant improvement in her

condition.

             All of the events at issue took place in 2013.                 Zingg

filed this suit on March 11, 2015.             In the suit, she brought a

claim under § 1983, alleging that Groblewski, and, vicariously,

MPCH, acted with deliberate indifference to her serious medical

needs in violation of her federal constitutional right under the

Eighth Amendment to adequate medical care while incarcerated.1 She



1 Although all of the medical practitioners with whom Zingg
interacted   worked   for   MPCH,  Zingg   premises   her   federal
constitutional claim only on Groblewski's July 15 decision to deny
the request for Humira, and she names as defendants only Groblewski
and MPCH, as his employer.


                                      - 4 -
also brought a claim under Massachusetts law, alleging that the

same defendants were negligent in providing her proper medical

care.

               Following discovery, the defendants moved for summary

judgment on Zingg's § 1983 claim.             They did so on the grounds that

she had failed to show that a jury could reasonably find that

Groblewski's      decision   not   to   approve      the   request   for   Humira

constituted deliberate indifference to Zingg's serious medical

needs and thus violated her Eighth Amendment right and that, in

any event, Groblewski was entitled to qualified immunity on that

claim.

               On September 29, 2017, the District Court granted the

defendants' motion, without reaching the qualified immunity issue.

The District Court did so on the ground that no reasonable jury

could find that Groblewski acted with deliberate indifference to

Zingg's medical needs.         And, on November 7, 2017, the District

Court entered final judgment for the defendants on Zingg's § 1983

claim    and    dismissed    her   state      law   negligence   claim     without

prejudice, as no federal law claim remained.                 Zingg filed this

timely appeal.

                                        II.

               Zingg argues that the District Court erred in granting

the defendants summary judgment on her § 1983 claim.                 Zingg also




                                     - 5 -
argues that Groblewski is not entitled to qualified immunity, but,

as we will explain, we need not reach that issue.

                                      A.

             Our review of the District Court's grant of summary

judgment is de novo.         Perry v. Roy, 782 F.3d 73, 77 (1st Cir.

2015).     Summary judgment is appropriate only if the moving party

“shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.”           Fed.

R. Civ. P. 56(a).    "We consider a dispute genuine if 'a reasonable

jury, drawing favorable inferences, could resolve it in favor of

the nonmoving party.'”        Ocasio-Hernández v. Fortuño-Burset, 777

F.3d 1, 4 (1st Cir. 2015) (quoting Velázquez–Pérez v. Developers

Diversified Realty Corp., 753 F.3d 265, 270 (1st Cir. 2014)).

             Nevertheless,     “if    the    summary   judgment   record

satisfactorily demonstrates that the plaintiff's case is, and may

be expected to remain, deficient in vital evidentiary support,

this may suffice to show that the movant has met its initial

burden.”     Ocasio-Hernández, 777 F.3d at 4 (quoting Carmona v.

Toledo, 215 F.3d 124, 133 (1st Cir. 2000)).             In making that

assessment, we must keep in mind that “[c]onclusory allegations,

improbable     inferences,     and   unsupported   speculation[   ]    are

insufficient to establish a genuine dispute of fact.” Id. (quoting

Velázquez–Pérez, 753 F.3d at 270).




                                     - 6 -
                                           B.

              The Eighth Amendment, applied to the states through the

Fourteenth Amendment, protects incarcerated people from state

corrections officials' “deliberate indifference to serious medical

needs.”      Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158, 161-62

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

(1976)).      There are both objective and subjective components to a

claim for this type of Eighth Amendment violation.                   Perry, 782

F.3d at 78 (quoting Leavitt v. Corr. Med. Servs., 645 F.3d 484,

497 (1st Cir. 2011)).

              The objective component requires the plaintiff to prove

that she has a medical need "that has been diagnosed by a physician

as mandating treatment, or one that is so obvious that even a lay

person      would    easily   recognize     the    necessity   for   a   doctor’s

attention.”         Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)

(en banc) (quoting Gaudreault v. Municipality of Salem, Mass., 923

F.2d 203, 208 (1st Cir. 1990)).                 The defendants do not dispute

that Zingg put forth evidence sufficient to meet this requirement.

              The subjective component requires the plaintiff to show

that prison officials, in treating the plaintiff's medical needs,

possessed a sufficiently culpable state of mind.                 That state of

mind   is    one     that   amounts   to    deliberate   indifference     to   the

claimant’s health or safety.           Perry, 782 F.3d at 78.




                                       - 7 -
          The "obvious case" that would meet this "deliberate

indifference"   standard    "would    be    a   denial   of   needed   medical

treatment in order to punish the inmate.”            Watson v. Caton, 984

F.2d 537, 540 (1st Cir. 1993).         But, deliberate indifference may

also take the form of “wanton” or criminal recklessness in the

treatment afforded.   Id.

          To show such a state of mind, the plaintiff must provide

evidence that the defendant had "actual knowledge of impending

harm, easily preventable,” id., and yet failed to take the steps

that would have easily prevented that harm.          Such a showing may be

made by demonstrating that the defendant provided medical care

that was “so inadequate as to shock the conscience,” Feeney, 464

F.3d at 162 (quoting Torraco v. Maloney, 923 F.2d 231, 235 (1st

Cir. 1991)), or, put otherwise, that was "so clearly inadequate as

to amount to a refusal to provide essential care."              Torraco, 923

F.2d at 234.

                                     III.

          We begin by examining Zingg's contention that the record

would permit a jury to find that Groblewski knew enough about

Zingg's medical history to make it obvious that the course of

treatment that he approved -- namely, prescribing Dovonex but not

Humira -- would amount to a refusal to provide essential care.

Zingg points out, in this regard, that the record shows that the

dermatologist   who   had    been     treating      Zingg     prior    to   her


                                 - 8 -
incarceration wrote to the MCI-Framingham medical department on

April 10, 2013.       In that letter, the dermatologist stated that

"[s]urface medications have been inadequate to treat her skin

condition" and "[s]urface medications cannot possibly treat her

psoriatic arthritis."

             There is no evidence in the record, however, that would

permit a jury to find that Groblewski was aware of this assessment.

The undisputed record shows that Groblewski did not even become

involved in Zingg's care until July 15.            And, at that point, the

record shows that his involvement was solely in his capacity as

the statewide medical director responsible for reviewing all non-

formulary medication requests.

             Moreover, the undisputed record shows that Groblewski,

in making his decision to deny Humira on July 15, consulted

exclusively the two non-formulary requests that he received from

Casella.   Yet, there is nothing in the non-formulary requests that

would   have    indicated      to   Groblewski   that   Zingg   had    already

unsuccessfully       received       the   treatment     described     in   the

dermatologist's letter.

             With regard to Zingg's medical history and condition,

those non-formulary requests stated only that Zingg had a history

of moderate to severe psoriasis, that she was taking Humira prior

to her incarceration, that she had been using clobetasol at MCI-

Framingham     for   several    months,   and    that   she   had   increasing


                                      - 9 -
psoriasis and joint pain.2   In fact, although the non-formulary

request for Humira concluded that "[Patient] needs to resume her

[H]umira 40 mg every other week as in community," Casella also

requested a non-formulary prescription for Dovonex, which was

"indicated pending Humira approval."

           Of course, a decision to replace the strongest topical

medication for treating psoriasis, which had failed, with a weaker

topical medication, could be concerning.      But, Zingg does not

identify any evidence in the record from which a jury could

reasonably find that Groblewski intended for Dovonex to replace,

rather than to supplement, clobetasol. After all, the record shows

that she had been using clobetasol in the months before Groblewski

approved Dovonex, and her medical records also indicate that she

was prescribed both in the weeks after.     And, while it is true

that Groblewski did not expressly state that he intended for

Dovonex to be used alongside clobetasol, Casella stated in her

deposition that "[Groblewski] wanted to determine whether the

clobetasol and the Dovonex together would provide better relief

[than clobetasol alone]."

          Thus, we do not see how a jury could find that Groblewski

intended for Dovonex to be the exclusive means of treating her


2 The requests also described her condition in more detail,
explaining that she had moderate plaque lesions on her elbows and
that severe psoriasis covered ninety percent of her vulva and inner
thighs.


                              - 10 -
condition, given that we may not credit conclusory allegations in

reviewing a motion for summary judgment.         Ocasio-Hernández, 777

F.3d at 4.    And, the fact that a jury could not reasonably so find

is problematic, as Zingg did not produce any evidence to suggest

that Groblewski knew, when he prescribed Dovonex but not Humira,

that even the combination of clobetasol and Dovonex would not work

for her.

             As stated above, there is no evidence that Groblewski

knew   anything   about   Zingg's   condition   or   topical   medication

history beyond what was in the non-formulary requests.         And those

requests, as we have explained, did not themselves indicate that

the combination of the two ointments would not work.

             In addition, there is no basis in the record from which

a jury could conclude that it is so implausible that the two

medications at issue here -- clobetasol and Dovonex -- would be

effective in combination that it may be reasonably inferred that

Groblewski knew that his prescribed course of treatment would be

ineffective, even if he did not directly say as much.             To the

contrary, the record shows that before Zingg's incarceration, at

times when she was not on Humira, Zingg had taken clobetasol and

Dovonex together, indicating that the two topical medications are

sometimes prescribed in combination and are expected to provide

better relief together than either one would if prescribed alone.

And, it is undisputed that MPCH's treatment protocol for psoriasis


                                - 11 -
requires patients to try two topical medications before moving on

to systemic treatments.          Indeed, even in cases where topical

medications "may not have been effective for the patient in the

community   [before      incarceration],"     MPCH's    treatment   protocol

requires trials of topical medications because "it is not uncommon

to find that such medications, when prescribed in a controlled

environment (such as prison), produce better results."

            Thus,   we    do   not   see    how   we   could   conclude   that

Groblewski, when faced only with the two non-formulary requests

from Casella and MPCH's treatment protocol for psoriasis, acted in

a manner that could reasonably be interpreted as exhibiting a

"deliberate intent to harm" or "wanton disregard" for Zingg's

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

opting to approve the use of a topical drug before approving a

systemic treatment.       That is especially the case given that the

parties do not dispute that the systemic treatment at issue could

pose other risks to Zingg's health that would not be presented by

the topical treatment.

                                      IV.

            Zingg does make a number of other arguments as to why

the District Court's grant of summary judgment on her Eighth

Amendment claim was improper.         But, we are not persuaded.

            First, Zingg asserts that the District Court did not

credit the opinion of her well-qualified expert, who stated that


                                     - 12 -
treating Zingg with only Dovonex after clobetasol was unsuccessful

was akin to "shooting a pistol at an armored car after a missile

had failed."     But, the District Court did not fail to credit that

evidence.

              The District Court found that "[e]ven assuming [the

expert's statement] to be true, . . . the record fail[ed] to

demonstrate deliberate indifference."            The District Court reached

that conclusion after determining that the expert's opinion was

helpful to Zingg only if Groblewski meant to prescribe Dovonex

instead of, and not in addition to, the more potent clobetasol.

And, as the District Court correctly determined, nothing in the

record permitted a jury reasonably to find that Groblewski intended

for Zingg to stop using clobetasol when she began using Dovonex.

Thus, although "the [D]istrict [C]ourt [is] required to assume

that any disputes of material fact--including conflicting opinions

offered by competent experts--could be resolved by the jury in the

[nonmovant's] favor," Jones v. City of Boston, 845 F.3d 28, 32

(1st   Cir.    2016),   the   District   Court    did   not   disregard   that

requirement in determining that Zingg's expert did not provide a

basis for denying the defendants' summary judgment motion as to

her Eighth Amendment claim.

              Zingg next contends that she met her burden at summary

judgment with respect to that claim because she put forth evidence

to show that Groblewski did not gather more information before


                                   - 13 -
denying Humira and prescribing Dovonex.                    As support for this

contention, Zingg points to Leavitt, where we recognized that a

reasonable jury could conclude that a corrections official acted

with deliberate indifference when that official, being aware of a

serious risk to a patient's health, chose not to confirm that risk

by failing to review information that he typically reviewed for

other patients.       645 F.3d at 498-500 (showing that a medical

professional at a county jail with firsthand knowledge of an HIV-

positive    patient's     condition    neglected      to    examine    a     critical

report and to follow up on that patient's symptoms).                       See also

Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994) (noting that a

prison official “would not escape liability if the evidence showed

that he merely refused to verify underlying facts that he strongly

suspected to be true, or declined to confirm inferences of risk

that he strongly suspected to exist”).

             These circumstances, however, are not present here.

Zingg identifies no record evidence that would permit a jury to

find that Groblewski was aware or even "strongly suspected" that

her   condition   required    care     beyond   the    prescribed       course     of

treatment by the protocol.       Rather, Groblewski's decision followed

MPCH's     "general   practice    standards,"      which       Zingg       does   not

challenge    as   being    themselves     inconsistent        with     the    Eighth

Amendment.     And, while those standards require a member of the

medical staff, in this case Casella, to assess the patient and


                                      - 14 -
obtain prior medical records, they require Groblewski only to do

what Zingg does not dispute that he did: review non-formulary

request forms when approving non-formulary medications or defining

alternative treatments.         Therefore, although Groblewski admits

that he could have sought more information about Zingg's case, the

evidence in the record at most supports a finding that Groblewski

"fail[ed] to alleviate a significant risk that he should have

perceived but did not[.]"        Farmer, 511 U.S. at 838.            And, while

such   a   failure,   insofar    as   it   occurred,    is     "no   cause    for

commendation,   [it]   cannot    under     [Supreme    Court    case   law]   be

condemned as the infliction of punishment.”            Id.3

            Finally, Zingg asserts that a jury could find that

Groblewski denied Humira because of its cost and that such a

finding would suffice to permit a jury to find that Groblewski was

deliberately indifferent to her serious medical needs.               To support

this assertion, she cites the fact that MPCH would be covering the

cost for Humira, which is an expensive medication; the fact that

cost containment was important to MPCH, which Groblewski knew; and


3Zingg argues briefly that psoriatic arthritis is not treatable
with topical medication at all and thus that a reasonable jury
could conclude that Groblewski knew that topical medications alone
would be ineffective. Yet, though Groblewski did know that Zingg
had joint pain, which Casella listed on the non-formulary request,
he did not have any information indicating that she had "probable
psoriatic arthritis," which was indicated in Zingg's medical
history. Moreover, until her diagnosis in August 2013 during her
incarceration, Zingg had never been formally diagnosed with
psoriatic arthritis.


                                  - 15 -
the fact that Casella told Zingg, during her April 25 examination,

that Humira would not be approved because of its high cost.

           We are not aware of any authority, however, to support

the proposition that there is a per se Eighth Amendment prohibition

against   corrections     officials     considering   cost,      even    when

considered only in the course of selecting treatment that is aimed

at attending to an incarcerated person's serious medical needs.

See Battista, 645 F.3d at 453 (explaining that the Supreme Court’s

Eighth    Amendment     jurisprudence     “leave[s]      ample   room     for

professional judgment, constraints presented by the institutional

setting, and the need to give latitude to administrators who have

to make difficult trade-offs as to risks and resources.”).              Thus,

even if there were sufficient evidence in the record to show that

Groblewski took cost into account in making his July 15 denial of

Humira in favor of Dovonex, that evidence would not in and of

itself provide a supportable basis for a finding of deliberate

indifference,   given     what   the    record   shows     regarding     what

Groblewski knew about Zingg's condition, MPCH's treatment protocol

for psoriasis, and the potential risks posed by Humira that topical

medications do not pose.4


4 Zingg also argues that her ultimate receipt of proper care several
weeks later does not absolve Groblewski.      It is certainly true
that we have rejected the notion that "the fact that [a patient]
received some treatment, including eventually being transferred to
a hospital, shows that his serious medical needs were not ignored."
Perry, 782 F.3d at 81. However, Zingg's later treatment has no


                                 - 16 -
                                      V.

            For   the   foregoing    reasons,   the   judgment   below   is

affirmed.




bearing on our conclusion that the District Court correctly
determined that the record provided no basis from which a jury
could reasonably find that Groblewski's care, while lacking, was
not constitutionally inadequate.


                                    - 17 -
