             United States Court of Appeals
                        For the First Circuit


No. 09-1636

           WILLIAM MOSHER, INDIVIDUALLY AND AS ADMINISTRATOR
         OF THE ESTATE OF WILLIAM MOSHER, JR.; CAROLYN MOSHER,
             BRANDON MOSHER; KACIE MOSHER; KORTNEY MOSHER,

                        Plaintiffs, Appellants,

                                  v.

         KENNETH NELSON, INDIVIDUALLY AND AS SUPERINTENDENT
          OF BRIDGEWATER STATE HOSPITAL; ELIZABETH CHILDS,
      INDIVIDUALLY AND AS COMMISSIONER OF THE COMMONWEALTH OF
 MASSACHUSETTS DEPARTMENT OF MENTAL HEALTH; KATHLEEN M. DENNEHY,
      INDIVIDUALLY AND AS COMMISSIONER OF THE COMMONWEALTH OF
    MASSACHUSETTS DEPARTMENT OF CORRECTION, BRIDGEWATER STATE
HOSPITAL; THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF MENTAL
 HEALTH; COMMISSIONER OF THE COMMONWEALTH OF MASSACHUSETTS; THE
     COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF CORRECTIONS;
             UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL,

                        Defendants, Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Mark L. Wolf, U.S. District Judge]



                                Before

                          Lynch, Chief Judge,
                         Stahl, Circuit Judge,
                    and DiClerico,* District Judge.




     *
         Of the District of New Hampshire, sitting by designation.
     Jerrold N. Arnowitz, with whom Arnowitz, Goldberg, and Mann,
LLC, was on brief for appellees.
     Daniel G. Cromack, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Ronald F. Kehoe, Assistant
Attorney General, were on brief for appellees.



                        December 17, 2009
           DICLERICO, District Judge.         Following the death of their

son at Bridgewater State Hospital ("BSH"), William and Carolyn

Mosher ("the Moshers") brought a civil rights action, with related

state law claims, against Kenneth Nelson, Superintendent of BSH;

Kathleen Dennehy, Commissioner of the Department of Corrections;

and Elizabeth Childs, Commissioner of the Department of Mental

Health.1   The district court granted summary judgment for the

defendants.   The Moshers appeal.          For the reasons that follow, we

affirm the judgment of the district court.

                                      I.

           BSH   is   a   facility,    operated      by   the    Massachusetts

Department of Corrections, that serves as both a prison and a

mental hospital.      Most of the patients at BSH have histories of

violence in addition to mental illness.          Kenneth Nelson served as

Superintendent   of    BSH   from   1994     until   April      of   2007.   As

Commissioner of the Department of Corrections, Kathleen Dennehy was

the chief executive officer of the department, but she did not have

any direct supervisory role at BSH.          Nelson, instead, reported to

an assistant deputy commissioner in the Department of Corrections.

Elizabeth Childs, who was Commissioner of the Department of Mental




     1
      Other claims and parties were dismissed from the case, and
these dismissals have not been appealed.

                                      -3-
Health, had no role at BSH except to approve the appointment of a

medical director at that facility.2

                The Moshers’ son, William Mosher, Jr., was a pretrial

detainee at the Middlesex County jail in July of 2004, when he was

sent       to   BSH   for   a   thirty-day    observation   period.   After   he

assaulted a nurse, Mosher was held in the Intensive Treatment Unit

at BSH until he was moved to Max 2, one of the maximum security

units. His observation period was extended from thirty days to six

months.

                In 2004, Max 2 was located in a secure stand-alone

building that included individual patient rooms and common areas.

Patients in Max 2 were not allowed to stay in their rooms during

the day, except during patient count, because the rooms could

shield patients from the observation of the staff, leading to a

concern about suicide.              An exception to that rule was a long-

standing practice that allowed patients to remain in their rooms

and visit in other patients’ rooms for a short period from the end

of the morning count, at approximately 11:15 a.m., until lunch. On

August 28, 2004, during the period between the end of the morning

count and lunch, William Mosher, Jr. went into the room of his

neighbor, Bradley Burns.            While Mosher was there, Burns strangled

him to death with a tee shirt.               No one previously had been killed



       2
      The Moshers do not appeal summary judgment that was granted
on their claims against Childs.

                                         -4-
at BSH, and no prior violent incidents had been reported to have

occurred during the visiting period between the end of morning

count and lunch.         After Mosher’s death, BSH ended the visiting

practice.   At the time Burns killed Mosher, Nelson did not know who

Burns was, although he was aware of Mosher because of his prior

attack on a nurse.

            William and Carolyn Mosher brought claims under 42 U.S.C.

§ 1983 against the defendants in their individual capacities,

alleging that the defendants’ conduct constituted cruel and unusual

punishment of their son, resulting in his death, and that the

defendants conspired to perpetuate the challenged conditions of

confinement.      The Moshers also alleged conspiracies to deprive

their son of constitutional rights under 42 U.S.C. § 1985 and 42

U.S.C. § 1986.     They further alleged state law claims for damages

against the defendants in their official capacities.             The district

court   granted    the    defendants’      motion   for   summary   judgment,

concluding that the evidence was insufficient to prove the Moshers’

constitutional     claims,    that   the    defendants    were   entitled   to

qualified immunity on the constitutional claims, and that the state

law claims were barred by the Eleventh Amendment.                The Moshers

appeal the summary judgment decision.




                                     -5-
                                       II.

           On    appeal,    the    court     reviews    the    district     court’s

decision granting summary judgment under the de novo standard.

Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).

           Summary judgment is appropriate when "the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law."                 Fed. R. Civ.

P.   56(c).      The   party      seeking     summary   judgment     must        first

demonstrate the absence of a genuine issue of material fact in the

record.   See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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).       All reasonable inferences and all credibility

issues are resolved in favor of the nonmoving party.                     See id. at

255.

                                       III.

           The    Moshers      argue   that     summary       judgment     was     not

appropriate because a factual dispute exists as to whether Nelson

knew of and disregarded the substantial danger to patients in Max

2 during the morning visiting period and whether Dennehy ignored

complaints about insufficient staffing and security at BSH.                        The

Moshers also argue that Nelson and Dennehy were not entitled to


                                       -6-
qualified immunity and that Eleventh Amendment immunity does not

apply because their state law claims could be construed to arise

under Title II of the Americans with Disabilities Act.                     The

defendants argue in support of the district court’s decision on the

civil rights claims and the application of the Eleventh Amendment

to the Moshers’ state law claims.         We begin with a consideration of

qualified   immunity,    which   resolves      the   Moshers’   civil   rights

claims.

A.   Qualified Immunity

            "Qualified    immunity   is    a   judge-made   construct     that

broadly protects public officials from the threat of litigation

arising out of their performance of discretionary functions."

Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir. 2009).              The qualified

immunity analysis generally follows a two-step process of deciding

"(1) whether the facts alleged or shown by the plaintiff make out

a violation of a constitutional right; and (2) if so, whether the

right was 'clearly established' at the time of the defendant’s

alleged violation."      Maldonado v. Fontanes, 568 F.3d 263, 269 (1st

Cir. 2009).   Recently, the Supreme Court gave courts discretion to

address the "clearly established" step without first determining

whether a constitutional right had been violated.                 Pearson v.

Callahan, ___ U.S. ___, 129 S. Ct. 808, 818-19 (2009).                  In the

exercise of our discretion, we will use that procedure in this

case.


                                     -7-
           The "clearly established" step is itself composed of two

parts, which require the court to decide (1) whether "the contours

of the right [were] sufficiently clear that a reasonable official

would understand that what he is doing violates that right," and

(2) whether in the specific context of the case, "a reasonable

defendant would have understood that his conduct violated the

plaintiffs’ constitutional rights."            Maldonado, 568 F.3d at 269

(internal quotation marks omitted).         The first part addresses the

status of the law at the time of the event in question, focusing on

the   clarity   of   the   standard     with   respect    to   the   asserted

constitutional right.      Id.    The second part addresses the specific

factual context of the case to determine whether a reasonable

official in the defendant’s place would have understood that his

conduct violated the asserted constitutional right.              Id.    To be

liable, an official must be on notice that his conduct violates

established law.     Hope v. Pelzer, 536 U.S. 730, 741 (2002).

           1.   Status of the Law

           Clearly established law does not depend on identical

circumstances    repeating       themselves.   Instead,    notable     factual

differences may exist between prior cases and the circumstances at

hand as long as the state of the law at the time gave the defendant

"fair warning" that his action or inaction was unconstitutional.

Id.; accord Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S.

___, 129 S. Ct. 2633, 2643 (2009).          In an area of the law that is


                                      -8-
continuing to evolve, there will be a range extending from an

established core to outer boundaries where there is not clearly

established law.          See DeMayo v. Nugent, 517 F.3d 11, 18 (1st Cir.

2008). "The law is considered clearly established either if courts

have        previously       ruled   that    materially      similar   conduct   was

unconstitutional, or if a general constitutional rule already

identified in the decisional law applies with obvious clarity to

the specific conduct at issue."               Guillemard-Ginorio v. Contreras-

Gomez, 585 F.3d 508, 527 (1st Cir. 2009) (internal quotation marks

omitted).

                  The   Supreme      Court        has   established     a    general

constitutional standard that "[a] prison official’s 'deliberate

indifference' to a substantial risk of serious harm to an inmate

violates the Eighth Amendment."3               Farmer v. Brennan, 511 U.S. 825,

828 (1994); accord Calderón-Ortiz v. LaBoy-Alvarado, 300 F.3d 60,

63-64 (1st Cir. 2002) ("An inmate may sue a correctional facility

under       the     Eighth    Amendment     for    failure    to   afford   adequate

protection to inmates from attack by other inmates.").                        Prison

officials have a constitutional duty "not to be deliberately

indifferent to the risk to prisoners of violence at the hands of

other prisoners."            Burrell v. Hampshire County, 307 F.3d 1, 7 (1st



        3
      "Pretrial detainees are protected under the Fourteenth
Amendment Due Process Clause rather than the Eighth Amendment;
however, the standard to be applied is the same as that used in
Eighth Amendment cases." Burrell, 307 F.3d at 7.

                                             -9-
Cir. 2002).       Therefore, in August of 2004, when the events giving

rise to this case occurred, the law was clearly established that a

detainee had a constitutional right not to be punished until

convicted    of    the   charges   against    him   and    that     a   corrections

official    would    violate    the   Fourteenth        Amendment       if    he   were

deliberately indifferent to a substantial risk of serious harm to

a detainee, including violence inflicted by one detainee upon

another detainee.

            In 2004, deliberate indifference, in the constitutional

context, meant 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.'"       Id. at 8 (quoting Farmer, 511 U.S. at 837).                     That

standard, which has remained in effect up to the present time,

requires "something less than acts or omissions for the very

purpose of causing harm or with knowledge that harm will result"

but "something more than mere negligence."                 Farmer, 511 U.S. at

835.   After the standard was announced in Farmer and before August

of 2004, we addressed the level of culpability required to meet the

deliberate    indifference      standard     in   the    context    of       prisoners

inflicting violence on other prisoners.

            We     considered      First   Circuit       precedent       addressing

deliberate indifference to inmate violence in Burrell. 307 F.3d at

9.     There, we noted that we vacated summary judgment in the


                                      -10-
defendants’ favor in Giroux v. Somerset County, 178 F.3d 28 (1st

Cir. 1999), where "jail officials inexplicably introduced a person

posing a known danger, another inmate who had repeatedly threatened

Giroux,   into   the   holding   cell   where   Giroux   was   being   kept."

Burrell, 307 F.3d at 9.          The jail officials took that action

although they appeared to know that their own actions "would tar

Giroux as an informant and thereby increase the risk to him."            Id.

In Calderón-Ortiz, we concluded that the plaintiff sufficiently

alleged deliberate indifference to avoid dismissal where inmates

were not classified, leaving more dangerous inmates with vulnerable

inmates and where "prison officials failed to make their regular

patrols of the housing areas, allowing a violent attack to go on

for between half an hour and an hour."          Burrell, 307 F.3d at 9.

           In contrast, we concluded that the record in Burrell did

not sufficiently show deliberate indifference to avoid summary

judgment because the officials responded reasonably to the risk

that was known to them at the time.        Id. at 8.     There, Burrell and

his wife complained to prison officials about problems with an

inmate who later attacked Burrell. We concluded that the officials

were not indifferent and instead acted reasonably in not providing

additional protection for Burrell because they knew he was highly

trained in self defense and martial arts, neither Burrell nor his

wife requested protective custody, no history existed of violence




                                   -11-
between Burrell and the inmate who attacked him, and the officials

believed Burrell could and would protect himself.

          With the standard in mind, we next consider whether a

reasonable official in Nelson’s position would have been on notice,

given the state of the law in 2004, that his conduct violated the

Fourteenth Amendment.

          2.   Standard in Factual Context

                  a.    Nelson

          In this case, Nelson was aware of the dangers associated

with the BSH patients generally and the patients housed in Max 2.

He was aware of the security rule that the patients in Max 2 were

not allowed to stay in their rooms except during the count because

of the risk of harm, in particular the risk of suicide, when

patients were out of view of the staff.4     Nelson was also aware

that, despite the security rule, a long-standing practice existed

which allowed patients to stay in their rooms and to visit in each



     4
      The Moshers raise a new argument on appeal, contending that
Nelson violated the Phase Treatment Program at BSH by allowing the
patients to stay in their rooms and visit in other rooms during the
period between the morning count and lunch.      They contend that
Nelson’s disregard of the Phase Treatment Program is further
evidence of his deliberate indifference to the substantial risk of
serious harm related to that practice. Because the Moshers failed
to raise that theory below, it is waived here. See, e.g., In re
Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 183
(1st Cir. 2009). The exceptions to waiver do not apply in the
circumstances of this case. Cf. Guillemard-Ginorio, 585 F.3d at
517 (reaching abstention issue despite possible waiver). Even if
the Moshers’ Phase Treatment Program theory were considered,
however, it would not change the outcome.

                                 -12-
others’ rooms during the short period between the end of morning

count and lunch.          When patients were in their rooms or in other

patients’ rooms they were subject to reduced supervision because

they could be out of the view and earshot of the staff.                    Although

the visiting practice had been long-standing, no problems or

incidents related to the practice had been reported to Nelson.                   In

addition, Nelson had no specific information about Burns, nor any

reason to suspect that Burns might attack Mosher, nor any reason to

believe that Mosher was particularly vulnerable to attack.5

                  For purposes of qualified immunity, we must decide, given

the state of the law in 2004, whether a reasonable official in

Nelson’s position, with his knowledge of the circumstances that

existed in Max 2 when Burns killed Mosher, would have understood

that the practice of allowing patients to visit in other patients’

rooms following morning count presented a substantial risk of

serious harm to the patients.            The district court concluded that,

given       the    circumstances   in   Burrell,   the   law   was   not    clearly

established that failure to change the visiting practice would

constitute a violation of Mosher’s constitutional rights.                       The

district court held that Nelson was entitled to qualified immunity.




        5
      Specific information and warnings about inmates are
components of the overall circumstances that contribute to a
determination of deliberate indifference. See, e.g., Giroux, 178
F.3d at 34.

                                        -13-
              We agree.    No case had held that the same circumstances

that   occurred      at    BSH   or   materially   similar   circumstances

constituted a Fourteenth Amendment violation.            In addition, the

cases addressing a detainee’s right to be free of punishment before

conviction did not clearly apply to the circumstances that existed

in Max 2 in August of 2004.

              It was not clearly established law that in the absence of

a   history     of   violence    or   individualized   threats,   a   prison

official’s failure to discontinue a long practice of a brief period

of unsupervised visits was deliberate indifference to a substantial

risk of harm to a patient.            A reasonable official in Nelson’s

place, given the circumstances and the legal standard, could have

believed that allowing the practice to continue would not lead to

events that would violate a patient’s rights. Therefore, Nelson is

entitled to qualified immunity.

                      b.   Dennehy

              The Moshers contend that Commissioner Dennehy violated

their son’s Fourteenth Amendment due process rights by supervisory

acquiescence and gross negligence in understaffing the Max 2 unit

at BSH.   The Moshers contend BSH was understaffed in 2004, when

their son was murdered, that the Max 2 unit should have had five or

six officers, and that understaffing was a system-wide problem for

the Department of Corrections. At the time of the murder, however,




                                      -14-
the BSH staffing analysis required three officers in Max 2, and

four officers were on duty.

            Without accepting the proposition that understaffing

alone can establish deliberate indifference, on the facts here, a

reasonable official in Dennehy’s position could have reasonably

believed    that   staffing    that   met    the   BSH   recommendations    was

sufficient to avoid constitutional violations.            Therefore, Dennehy

is entitled to qualified immunity.

B.   Eleventh Amendment Immunity

            The district court granted summary judgment for the

defendants on the Moshers’ state law claims, holding that the

claims are barred by the Eleventh Amendment.                 On appeal, the

Moshers contend that Eleventh Amendment immunity is not available

to   the   state   because    their   claims   assert     violations   of   the

constitutional rights of a person protected by the Americans with

Disabilities Act ("ADA").6       The Moshers acknowledge that they did

not bring a claim under the ADA in the district court but contend

that their new theory is sufficiently important to be considered

despite their omission.        The defendants object that the Moshers

waived their new ADA claim by failing to allege it in their




      6
      The Moshers’ citation to 42 U.S.C. § 1213 is incorrect. 42
U.S.C. § 12131 provides certain definitions used in the ADA while
§ 12132 prohibits discrimination against qualified individuals
based on a disability. It is unclear what statute the Moshers
intended as the basis for their claim.

                                      -15-
complaint or in the proceedings below and argue that the Eleventh

Amendment bars the Moshers’ state law claims.

           As the defendants point out, the Moshers waived the ADA

claim and their new theory based on the ADA by failing to raise

either theory in the district court.           In addition, even if the

claims were not waived, the Moshers’ state law claims, brought

against the defendants in their official capacities, were for

wrongful   death,     negligence,    gross   negligence,    infliction    of

emotional distress, loss of consortium, and strict liability.

Contrary   to   the    Moshers’     new   theory,   they   did   not   allege

constitutional violations as part of their state law claims nor did

they allege violations of the ADA.

           The district court properly dismissed the Moshers’ state

law claims as barred by the Eleventh Amendment.

                                      IV.

           For the foregoing reasons, summary judgment for the

defendants is affirmed.




                                     -16-
