
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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  for  Summary  Disposition,  for            ____________________        appellees.                                 ____________________                                   January 14, 1994                                 ____________________                      Per Curiam.   Gaylon Massey filed an action  in the                      __________            district court pursuant  to 42 U.S.C.   1983.  At the time of            the events  described in  the  complaint, he  was a  pretrial            detainee at the  Suffolk County Jail.   His complaint alleged            that  his  constitutional   rights  were  violated   by  jail            personnel by the  use of excessive force, by their deliberate            indifference  to his  medical needs  and  by the  involuntary            administration of psychotropic drugs.  The district court, in            a  margin  order,  granted  defendants'  motion  for  summary            judgment  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  on   such  a  claim,  plaintiff   must            establish  that defendants' actions  amounted to  the "wanton            infliction of unnecessary pain."  Estelle v. Gamble, 429 U.S.                                              _______    ______            97, 104 (1976).  "Deliberate indifference to  serious medical            needs of  prisoners" satisfies this  standard.  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  the dispute  concerns  not the  absence  of            help, but  the choice  of a certain  course of  treatment, or            evidences mere disagreement with considered medical judgment,            we will  not second guess the doctors."  Sires v. Berman, 834                                                     _____    ______            F.2d 9,  13 (1st Cir.  1987).  In this  situation, deliberate            indifference  may  be established  only "where  the attention            received is `so clearly inadequate  as to amount to a refusal            to provide  essential care.'"   Torraco v. Maloney,  923 F.2d                                            _______    _______            231, 234 (1st Cir. 1991)  (quoting Miranda v. Munoz, 770 F.2d                                               _______    _____            255, 259 (1st Cir. 1985)).  There is nothing in the record to            show  any refusal 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  is no material            question  of  fact  that  defendants  were not  "deliberately            indifferent" to  plaintiff's medical needs.   Discovery would            not aid plaintiff.                      B.  Involuntary Medication with Psychotropic Drugs                          ______________________________________________                      It  has been  clear  since  February  1990  that  a            prisoner  "possesses   a  significant  liberty   interest  in            ________            avoiding the  unwanted administration of  antipsychotic drugs            under  the Due Process  Clause of the  Fourteenth Amendment."                                         -3-            See  Washington  v.  Harper, 494  U.S.  210,  221-22 (1990).2            ___  __________      ______            Harper  involved a  challenge to  the  state of  Washington's            ______            procedures for  medicating  prisoners housed  in its  Special            Offender Center  (SOC), an institution  for convicted  felons            with serious  mental illnesses.   The  specific question  the            Court  addressed was whether  a judicial hearing  is required            before  a  state  may  treat  a  mentally-ill  prisoner  with            antipsychotic drugs against his will.  Id. at 213.  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.  Qualified            immunity  protects state actors  from damages claims  under              1983  "insofar  as  their conduct  does  not  violate clearly            established statutory  or  constitutional rights  of which  a            reasonable person would  have known."  Harlow  v. Fitzgerald,                                                   ______     __________            457 U.S.  800, 818 (1982).   That is, "[t]he contours  of the            right must be  sufficiently clear that a  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  after  Harper  issued in                                                        ______            February.  However, we do  not think the right established in            Harper bears a  sufficient relationship to the  right alleged            ______            here.  That is, there  was no caselaw in August  or September            1990 that  clearly established that a pretrial detainee had a            right  under  the  Fourteenth  Amendment  to  the  procedures            announced  in Harper before  he could be  given antipsychotic                          ______            medicine in an emergency situation.                      C.  Excessive Force                          _______________                      The standards  governing the use of excessive force            are set out  in Whitley v. Albers,  475 U.S. 312 (1986).   To                            _______    ______            show an  Eighth Amendment  violation when  force is used,  an            inmate   must  demonstrate   "the   unnecessary  and   wanton            infliction of  pain."3  Id.  at 320.  This  inquiry, in turn,                                    ___            depends on "`whether force was applied in a good faith effort            to  maintain  or   restore  discipline  or   maliciously  and            sadistically for the very purpose  of causing harm.'"  Id. at                                                                   ___            320-21  (quoting Johnson  v. Glick, 481  F.2d 1028,  1033 (2d                             _______     _____            Cir.), cert.  denied, 414  U.S. 1033  (1973)).   Finally, the                   _____________            Court has  recognized that  deference should  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  use of practices  and policies            that they believe  are necessary to maintain  the security of            the institutions they run.  Id. at 321-22.                                        ___                      To  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."  Fed.  R. Civ. P. 56(c).  Once the movant has            met this  standard, the burden shifts to the non-moving party            to establish  the existence  of "at least  one issue  that is            both  `genuine' and `material.'"  Kelly v. United States, 924                                              _____    _____________            F.2d 355,  357 (1st  Cir. 1991)  (citation omitted);  Fed. R.            Civ. P. 56(e).   Here, plaintiff did not  file any affidavits            or  other  record  evidence  in  opposition  to  the  summary            judgment motion.                      Turning to  defendants' evidence,  we do  not think            that  the record  is adequate  to  support summary  judgment.            Plaintiff  alleges in  his complaint  that  he was  "severely            beating [sic] by several of the  defendants which resulted in            a  separation [sic]  shoulder, lacerations  to  the face  and            head, bruises  to the chest,  arms and groin area,  caused by            the excessive use of force."   He also claims that defendants            caused  the  "unnecessary  and wanton  infliction  of  pain."            Next, plaintiff states that when he insisted on finishing his            meal, his  food tray was  grabbed and that the  jailer shoved            him; he  then  states that  he  was jumped  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  threw down  his spoon,  said he was  not            going back  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  S.E.R.T.            concerning precisely in what manner plaintiff was  restrained            and how much force actually  was used to subdue plaintiff and            take him to a cell.  The only references to the  incident are            contained  in  the  reports  of  the  two  officers  who  had            originally  called the  S.E.R.T.    They  state  simply  that            plaintiff "was restrained and taken to the 6-1 unit."                      In their  motion for  summary judgment,  defendants            simply assert that the officers  "used no more force than was            necessary."   They cite,  in support of  this conclusion, the            log book  for August 31st;  the only relevant  information on            the page in  question simply states that at  5:25 p.m., "Sert            team  called   to  move   inmate  Gaylon   Massey  to   6-1."            Significantly,  there are no affidavits from  any of the jail                                      __            personnel stating that  they did not use any  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  general, grants of summary judgment in cases of            this kind have  rested upon affidavits describing  the actual            event and refuting the suggestion of undue force.  See, e.g.,                                                               ___  ____            Tarpley  v. Greene,  684 F.2d  1, 4  (D.C. Cir.  1982) (where            _______     ______            plaintiff  filed a     1983  action  claiming  that  officers            assaulted him during a  search of his home, summary  judgment            appropriate  because   defendant  filed   an  "uncontroverted            affidavit" denying assault took place).  Even if jail records            were treated as a substitute, the records here -- as noted --            also fail  to provide  such a description  of the  nature and            extent of the  force used.   Thus, we  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.   Accordingly, we                                         -8-            express   no  view  on   whether  summary  judgment   may  be            appropriate  if and when officer affidavits addressed to this            incident are submitted.                       The judgment of  the district court is  affirmed as                                                              ________            to the  claims  of  deliberate  indifference  to  plaintiff's            medical  needs  and  the  involuntary  administration  of  an            antipsychotic drug.  The judgment  is vacated as to the claim                                                  _______            that defendants  used excessive  force in  removing plaintiff            from the dining  area and the matter is  remanded for further                                                     ________            proceedings.                                         -9-
