Perry v. Roy , 782 F.3d 73 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1466
RICO PERRY,
Plaintiff, Appellant,
v.
SUSIE ROY; CLAIRE ROCHA,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Benjamin M. McGovern, with whom Amanda O. Amendola and Holland
& Knight LLP, were on brief, for appellant.
Tory A. Weigand, with whom James A. Bello and Morrison Mahoney
LLP, were on brief, for appellees.
April 3, 2015
TORRUELLA, Circuit Judge. This appeal stems from an
action pursuant to 42 U.S.C. § 1983 filed in the United States
District Court for the District of Massachusetts by Appellant Rico
Perry ("Perry"), an inmate at the Bristol House of Correction,
against Susie Roy ("Nurse Roy") and Claire Rocha ("Nurse Rocha,"
and together with Nurse Roy, "Appellees"), both of whom were staff
nurses at said correctional institution. The complaint alleged
that the medical treatment Perry received from Appellees for
injuries resulting from a violent scuffle with prison guards did
not meet the constitutional standard required by the Eighth and
Fourteenth Amendments.
Perry now challenges the grant of summary judgment in
favor of Appellees and the resulting dismissal of his § 1983
action. Because the record establishes that there are issues of
material fact in dispute that need to be decided by a factfinder,
we remand this case to the district court for proceedings
consistent with this opinion.
I. Background
A. Factual History
We review the facts in the light most favorable to
Perry, the party opposing summary judgment. Rockwood v. SKF USA
Inc., 687 F.3d 1, 3 (1st Cir. 2012) (citing Agusty-Reyes v. Dep't
of Educ., 601 F.3d 45, 48 (1st Cir. 2010)).
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On Saturday, June 9, 2007, at approximately 1:10 a.m.,
while Perry was being booked into the Bristol facility following
transfer from another correctional center, a fight broke out
between him and several correctional officers. During the course
of this incident, the officers caused serious injuries to Perry.
Within five minutes of this altercation, Perry was
evaluated by Nurse Roy, who asked him about his injuries. Perry
swears that his mouth was "pouring blood" from a long gash, his jaw
was "clenched," and he had a lump on his head. Although he could
barely talk, Perry was able to tell Nurse Roy that he was in pain
and that his jaw was broken. He claims further that Nurse Roy did
not "thoroughly examine" him, nor did she ever "come to focus on
his jaw." Nurse Roy did, however, observe and diagnose a cracked
tooth, clean the open wound, provide Perry with gauze, rinse his
mouth with saline water, and advise Perry to obtain a sick slip for
the tooth to enable him to see a dentist, who would be available
the following Tuesday, June 12, 2007. But he was not given ice or
aspirin for his pain, or otherwise provided any treatment for the
jaw. Perry then requested to file a grievance report. Nurse Roy
relates a fundamentally different story, backed up by her notes.
She says that Perry complained only of the cut (not a broken jaw),
that she checked his jaw, and that he could open it wide and
verbalize without difficulty. For summary judgment purposes,
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though, we must assume that Perry's version of the exam (or lack
thereof) might be believed by the jury.
Approximately one hour after the incident with the
correction officers and the evaluation by Nurse Roy, Perry was
formally booked into the Bristol facility. Later that night, while
in his cell, Perry passed out and was awakened by Nurse Roy, who
applied smelling salts to him. He asked Nurse Roy to be taken to
the hospital again, but this request was also ignored.
At around 4:10 a.m., he complained to a second attending
nurse, Nurse Rocha, that he had been beaten by correctional
officers and had an unattended broken jaw. Perry requested again
to be taken to a hospital. Nurse Rocha examined Perry through a
glass window for less than a minute and noted that Perry had an
"egg" on his forehead. Although Nurse Rocha initially said she
would help him, her willingness to help came to naught after she
spoke to Lt. Robert Shubert, who had been involved in the incident
where Perry was hurt. Perry claims that the officer asked her to
let Perry "sleep it off." Thereafter, Nurse Rocha denied all
further care. Perry does, however, concede that Nurse Rocha told
Lt. Shubert that she did not believe he had a broken jaw. Nurse
Rocha claims that, despite telling her that he had a broken jaw,
Perry denied having any pain at that time. Finally, Nurse Rocha
entered a note for someone to notify the medical unit if Perry
"began to suffer from nausea/vomiting or vertigo."
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At approximately 5:30-6:00 p.m. that same day --
seventeen hours after the beating -- Perry was examined again, this
time by a third nurse, due to his complaint of jaw pain and
shortness of breath. Perry had developed swelling of the jaw and
also some wheezing. This resulted in his immediate transfer to St.
Luke's Hospital, where, within two hours of his arrival, he was
diagnosed with an acute bilateral mandibular fracture. The
attending physician, Dr. David Fuerman, also noted tenderness and
swelling on Perry's forehead, jaw, neck, and cervical spine as well
as bilateral shallow breath and bilateral rib pain. He classified
Perry's injuries as "critical injuries" caused by the use of a
"tremendous amount of force."
Perry was transferred out of St. Luke's to Massachusetts
General Hospital ("M.G.H.") because neither the attending
physician, Dr. Fuerman, nor any member of the St. Luke's medical
staff was qualified to treat Perry's severe mandibular fractures.
Despite the district court not having the benefit of expert witness
testimony presented by the plaintiff to support his contentions
regarding his serious medical need, Dr. Fuerman testified that,
although he had on occasion released patients with broken jaws back
to a stable home environment, he did not release Perry back to the
Bristol House of Correction in part because "[w]ith an injury this
significant, with the amount of force required to fracture the
mandible and have a laceration in the base of his mouth, waiting 20
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hours to bring him in for medical attention, I didn't know that he
would receive appropriate attention." Instead, Perry underwent
surgery at M.G.H. to repair the mandibular fracture. Dr. Fuerman
also testified that Perry required "critical care" when he arrived
at the hospital and that he spent sixty minutes caring for Perry.
B. Procedural History
Perry filed this § 1983 action for deliberate
indifference to his serious medical needs in violation of the
Eighth and Fourteenth Amendments. In his amended complaint he
requested compensatory and punitive damages, as well as attorney's
fees.
The district court dismissed the claim on summary
judgment, reasoning that Perry failed to establish that the
Appellees were deliberately indifferent to his medical needs by
ignoring his requests to go to the hospital or provide treatment to
his broken jaw. In the district court's opinion, the fact that
Perry had been provided at least some treatment contradicts the
showing that the Appellees knew that his condition was sufficiently
serious when he requested to go to the hospital, but opted to
ignore it. Also, Perry was sent to the hospital seventeen hours
after the incident, which seemed reasonable to the district court,
since it only demonstrated that the condition worsened over time
and was treated appropriately as it progressed.
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Furthermore, the district court concluded that: (1) Perry
had not established that the Appellees acted with a culpable state
of mind in ignoring his requests for additional treatment; (2) the
Appellees provided the medical treatment they saw fit according to
the information they had at the time they made the decisions; and
(3) any issues of fact would be immaterial to that conclusion. On
the issue of whether the Appellees had a culpable state of mind,
the court added that the fact that Perry alleged that Nurse Rocha
denied him care with the intent to punish him for being involved in
the brawl after talking to an officer was not a material fact in
controversy but rather was simply an "improbable or overly
attenuated inference[], unsupported conclusion[], and rank
speculation" that it need not consider. Considering the facts in
the light most favorable to Perry, as we are required to do, we
disagree that there is no issue of material fact and that Appellees
were entitled to summary judgment.
II. Discussion
A. Standard of Review and Summary Judgment
A grant of summary judgment must be reviewed de novo.
Ortiz-Bonilla v. Federación de Ajedrez de P.R., Inc., 734 F.3d 28,
40 (1st Cir. 2013) (citing Shafmaster v. United States, 707 F.3d
130, 135 (1st Cir. 2013)); Calvi v. Knox Cnty., 470 F.3d 422, 426
(1st Cir. 2006). All facts in the record, as well as all
reasonable inferences to be drawn therefrom, are drawn in favor of
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the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013). Summary judgment is only appropriately
granted "where there is no genuine issue of material fact, and the
moving party is entitled to judgment as a matter of law." Vives v.
Fajardo, 472 F.3d 19, 21 (1st Cir. 2007) (citing Fed. R. Civ. P.
56(c)).
A genuine issue of material fact "must be built on a
solid foundation -- a foundation constructed from materials of
evidentiary quality." García-González v. Puig-Morales, 761 F.3d
81, 87 (1st Cir. 2014) (internal quotation marks omitted) (quoting
Nieves–Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013)).
The district court's role is limited to assessing whether there
exists "evidence [] such that a reasonable jury could return a
verdict for the nonmoving party." Showtime Entm't, LLC v. Town of
Mendon, 769 F.3d 61, 69 (1st Cir. 2014) (alteration in original)
(internal quotation marks omitted) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
B. Deliberate Indifference
"Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted." U.S.
Const. amend. VIII. Ever since the passing of the Bill of Rights,
courts have derived from this text the principles that govern the
permissible conditions for providing the medical treatment that
prisoners must be afforded. See Kosilek v. Spencer, 774 F.3d 63,
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82 (1st Cir. 2014) (en banc), petition for cert. filed (March 17,
2015) (No. 14-1120). The failure to provide medical care "may
actually produce physical torture or a lingering death." Id.
(quoting Brown v. Plata, 131 S. Ct. 1910, 1928 (2011)) (internal
quotation marks omitted).
Consequently, the Constitution requires that care be not
"so inadequate as to shock the conscience." Torraco v. Maloney,
923 F.2d 231, 235 (1st Cir. 1991) (internal quotation marks
omitted). Prison officials, therefore, violate the Eighth and
Fourteenth Amendments' prohibition against "cruel and unusual"
punishments when they exhibit "deliberate indifference" to a
detainee's serious medical needs. Feeney v. Corr. Med. Servs., 464
F.3d 158, 163 (1st Cir. 2000) (citing Estelle v. Gamble, 429 U.S.
97, 105-06 (1976)).
To succeed on a claim of deliberate indifference based on
inadequate or delayed medical care, "a plaintiff must satisfy both
a subjective and objective inquiry." Leavitt v. Corr. Med. Servs.,
645 F.3d 484, 497 (1st Cir. 2011). Objectively, he must establish
that the deprivation was "sufficiently serious." Id.; see also
Kosilek, 774 F.3d at 82 ("[T]o prove an Eighth Amendment violation,
a prisoner must satisfy both of two prongs: (1) an objective prong
that requires proof of a serious medical need, and (2) a subjective
prong that mandates a showing of prison administrators' deliberate
indifference to that need.") (citing Estelle, 429 U.S. at 106).
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Subjectively, a plaintiff must show "that prison
officials possessed a sufficiently culpable state of mind, namely
one of 'deliberate indifference' to an inmate's health or safety."
Leavitt, 645 F.3d at 497 (quoting Burrell v. Hampshire Cnty., 307
F.3d 1, 8 (1st Cir. 2002)).
1. Objective Test: "Serious Medical Need"
As to the objective prong, we have held that a serious
medical need does not require that an inmate receive the best
possible treatment "that money can buy." Kosilek, 774 F.3d at 85
(quoting United States v. DeCologero, 821 F.2d 39, 42 (1st Cir.
1987)). However, a serious medical need is "one that is so obvious
that even a lay person would easily recognize the necessity for a
doctor's attention." Gaudreault v. Municipality of Salem, Mass.,
923 F.2d 203, 208 (1st Cir. 1990). Even a significant risk of
future harm may suffice. Kosilek, 774 F.3d at 85 (citing Helling
v. McKinney, 509 U.S. 25, 35 (1993)).
In the instant case, given the force involved in the
altercation, and accepting Perry's version of his symptoms as
presented to the nurses (a clenched jaw that would not open fully
and was causing pain sufficient for him to announce that he thought
it was broken), a lay person could find it obvious that the nurses
should at least have examined the jaw.
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2. The Subjective Test: "Wanton Disregard"
The subjective prong relies entirely on whether the
Appellees had a purposeful intent while neglecting Perry's
treatment. See Estelle, 429 U.S. at 105. The purposeful intent,
also known as deliberate indifference, requires evidence that the
absence or inadequacy of treatment is intentional. Id. (holding
that "an inadvertent failure to provide adequate medical care" is
not a constitutional violation); Watson v. Caton, 984 F.2d 537, 540
(1st Cir. 1993) ("The courts have consistently refused . . . to
conclude that simple medical malpractice rises to the level of
cruel and unusual punishment."). The typical example of a case of
deliberative indifference would be one in which treatment is denied
"in order to punish the inmate." Id. Additionally, a showing of
"wanton disregard" would be grounds for deliberate indifference.
Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011).
C. Analysis
1. Deliberate Indifference to a Serious Medical Need
As previously stated, the district court concluded that
Perry failed to overcome both hurdles. On the objective test,
despite finding that a broken jaw is a "serious injury," it
reasoned that this was somehow cured by the fact that Perry was
transferred to a hospital for additional medical treatment "within
approximately seventeen hours after the injury allegedly occurred."
Because Perry's physical symptoms substantially worsened over time,
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this change in the information available to the prison's medical
staff ultimately led the third nurse to conclude that Perry
required emergency transfer to the hospital. The court then
concluded that to the extent that certain facts were in dispute,
they were not material to the resolution of the case, because they
did not have "the potential of affecting the outcome of the case."
The district court also found that Perry had failed to
establish that the Appellees were deliberately indifferent to his
needs under the subjective prong. In this respect the court
concluded that, "[e]ven assuming that [Perry] informed both
defendants that his jaw was broken, that he asked to be taken to
the hospital, and that both nurses refused to do so, that [was]
insufficient, without more, to establish deliberate indifference."
Because neither Nurse Roy nor Nurse Rocha had knowledge of the full
extent of Perry's injuries at the time of each evaluation, and they
did not deliberately deny him medical treatment, the court held
that the subjective prong was not met. The Appellees argue in
their brief that any issue in dispute is immaterial.
We find, however, that there are material facts in
dispute, which -- taken together on the record as a whole, and if
believed by a reasonable jury -- could lead to the sustainable
conclusion that the Appellees were deliberately indifferent to
Perry's complaints of a broken jaw. Moreover, we find that these
disputed material issues of fact could affect the district court's
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analysis of both the objective and subjective prongs. These
factual issues include: whether Perry was barely able to speak or
open his mouth since his first evaluation by Nurse Roy; whether
Perry stated that he had a broken jaw and requested to go to the
hospital; whether these facts, together with the gash, pain, and
bleeding, amounted on their own to a serious medical need; whether,
if such complaints were in fact made, mere cursory inspection of
Perry's tooth -- without any inspection of his jaw -- was
sufficient to justify postponing any treatment of the broken jaw
given the other injuries to Perry's mouth and face that were
clearly present; whether Perry asked again to go to the hospital
when Nurse Roy woke him up with smelling salts after passing out;
whether Nurse Rocha said she would help him but then denied further
treatment after talking to Lt. Shubert who asked her to let Perry
"sleep it off"; whether, despite having a broken jaw, Perry denied
having any pain at all times as claimed by the Appellees; and
whether the medical need may have been one that was so obvious
"that even a lay person would easily recognize the necessity for a
doctor's attention." Gaudreault, 923 F.2d at 208.
When examining the record as a whole, we disagree with
the district court's holding that the treatment offered by the
Appellees based on the information they had at the time was
necessarily appropriate. The fact that the condition worsened over
time says nothing of the condition at the times Perry was
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evaluated; a reasonable jury could have found that this shows that
the medical condition was serious all along, thus meeting the
objective prong. See id. Other issues of material fact in
controversy are whether the delay in receiving treatment for the
broken jaw was for seventeen hours or more; and, if so, whether
such a delay was objectively reasonable given the circumstances, or
if there is any evidence of a detriment to his health by this
delay, be it permanent or not. It is also in dispute whether
Appellees subjectively knew of Perry's serious medical need but
deliberately ignored it. While Appellees allege they did not
believe he had a broken jaw, Perry asserts he specifically told
them that his jaw was broken, the testimony of the treating
physician shows that his injuries were severe, and Perry's
condition worsened over time. Moreover, even though Appellees
opted for a wait-and-see approach and instructed the medical unit
to be contacted if conditions worsened, Perry's allegations are
that all of these conclusions were based on non-thorough
examinations, one of which was conducted through a window, for less
than a minute.
2. The District Court Incorrectly Weighed the Evidence
The district court erred in its weighing of Perry's
testimony that he received no treatment for his serious medical
need. "[I]n ruling on a motion for summary judgment, '[t]he
evidence of the non-movant [Perry] is to be believed, and all
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justifiable inferences are to be drawn in his favor.'" Tolan v.
Cotton, 134 S. Ct. 1861, 1863 (2014) (per curiam) (quoting
Anderson, 477 U.S. at 255) (citation omitted). Perry's
interactions with Nurses Roy and Rocha are central matters in
dispute. If Perry's testimony about those interactions has to be
accepted as true for summary judgment purposes, it means that
neither Roy nor Rocha performed any meaningful, thorough
examination (i.e., were deliberately indifferent), that Rocha was
in fact told by Lt. Shubert to ignore Perry's pleas so as to let
him sleep it off, and that this "medical" advice was accepted by
Nurse Rocha. All of these facts, if believed by a reasonable jury,
could lead to a supportable conclusion that Perry's case meets the
wanton disregard standard for deliberate indifference under the
subjective prong. Notably, Perry does not complain of the quality
of the treatment received at the hands of the Appellees, which
would present a malpractice allegation. Rather, he alleges that he
received no treatment at all after being evaluated by the
Appellees, despite their knowledge of his complaints and his
visible serious medical needs.
Finally, we note that in analyzing the objective prong,
the district court found that the fact that Perry received some
treatment, including eventually being transferred to a hospital,
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shows that his serious medical needs were not ignored.1 The
Appellees simply provided some additional treatment as the
condition evolved over time. Appellees argue that such additional
treatment necessarily defeats a plaintiff's claim under the
objective prong. If we were to accept this premise, no deliberate
indifference case would ever go to trial so long as someone managed
to take an inmate to the hospital right before he or she died, as
we can easily presume serious medical conditions do not necessarily
improve on their own over time. This is precisely why the
Constitution protects an inmate from a significant risk of future
health harms. See Helling, 509 U.S. at 35; see also DesRosiers v.
Moran, 949 F.2d 15, 19 (1st Cir. 1991) (The mental state
"requir[es] actual knowledge of impending harm, easily
preventable.").
Notwithstanding the foregoing, we do agree with Appellees
that in order to prevail, Perry must prove that it was obvious that
he had a serious need for greater or more immediate medical
attention than he claims Appellees provided, and that Appellees
failed to provide any care for his jaw sooner not merely because
they were negligent, but because they were deliberately indifferent
to that need. We hold only that if all issues of fact, including
1
The district court and the Appellees also consider this
additional treatment as relevant to the subjective prong, but for
the reasons already discussed, we believe that a reasonable jury
could find for Perry on that prong.
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credibility, were resolved in Perry's favor, there would be enough
information for a jury to so find here.
In sum, this case presents triable issues of fact to be
resolved by factfinders.
III. Conclusion
The decision of the district court is reversed and this
case is remanded for proceedings consistent with this opinion.
REVERSED and REMANDED.
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