Zingg v. Groblewski , 907 F.3d 630 ( 2018 )

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,
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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.
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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.
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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
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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).
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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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.
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