Opinion
C.A. No. 01-422 ML
May 29, 2003
Scott P. Tierney, Esq., Appellant Counselors.
James R. Lee, Esq., Parissa D. Beers, Esq., Appellee Counselors.
Report and Recommendation
Plaintiff Frank Bertram, an inmate incarcerated at the Adult Correctional Institutions, filed a Complaint pursuant to 42 U.S.C. § 1983 and named as defendants numerous employees and officials at the Rhode Island Department of Corrections. This matter is before the Court on Defendants Marocco, Wall, and White's motion for summary judgment, filed pursuant to Fed.R.Civ.P. 56. Plaintiff through counsel, filed an objection. This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend:
(1) Marocco, Wall, and White's motion for summary judgment be granted on plaintiffs 42 U.S.C. § 1983 official capacity claims;
(2) Wall and White's motion for summary judgment be granted on plaintiffs Eighth Amendment claims;
(3) Marocco's motion for summary judgment be denied on plaintiffs Eighth Amendment claims;
(4) Marocco, Wall, and White's motion for summary judgment be granted on plaintiffs Fourteenth Amendment Equal Protection Clause claims; and
(5) Marocco, Wall, and White's motion for summary judgment be granted on plaintiffs state law negligence claims.
Background
In considering a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Viewing the evidence in that manner, the undisputed facts of this case, unless otherwise indicated, are as follows:In 1989, the Rhode Island Department of Corrections ("RI DOC") legally began confining the plaintiff, Frank Bertram, at the Adult Correctional Institutions, Cranston, Rhode Island. Following the plaintiffs participation in a riot, the RI DOC transferred the plaintiff to the Connecticut Department of Corrections ("CDOC"), to be confined in one of their facilities.
For inmates in the custody of the RI DOC but housed at out of state confinement facilities, it is the practice and policy of the RI DOC to require the out of state confinement facility to seek written authorization before providing non-routine, non-emergency medical care to Rhode Island inmates. The responsibility for providing authorization for an inmate's medical care rested with Dr. Spaulding, the Medical Director of the RI DOC at the times relevant in the Complaint. Dr. Spaulding, however, delegated some of this responsibility to defendant Joséph Marocco, the Assistant Director of Health Services.
In July 2000, the medical staff at the CDOC diagnosed the plaintiff with mild degenerative changes in his spine. When the plaintiff complained of back pain in October 2000, the medical staff at the CDOC prescribed medication and placed restrictions on the plaintiffs activity. Thereafter, plaintiff complained of losing control of his legs, of "patchy numbness," and indicated he felt "off balance." With these new symptoms, the CDOC admitted the plaintiff to their infirmary. On October 26, 2000, the CDOC transferred the plaintiff to the John Dempsey Hospital in Connecticut, with defendant Joséph Marocco's approval. While at the hospital, plaintiff received treatment and diagnostic services, including a head MRI, a physician's evaluation, a neurological evaluation, and blood work.
When the plaintiff returned to the CDOC on or about October 30, 2000, a Dr. Silvis examined him and determined that additional medical tests were needed. On November 9, 2000, the CDOC provided the RIDOC with a request that the plaintiff be permitted to have a lumbar MRI. On November 22, 2000, defendant Marocco approved the request and plaintiffs lumbar MRI occurred on December 8, 2000. The lumbar MRI indicated that the plaintiff had spinal stenosis, neuroforaminal stenosis, and scohosis. Plaintiff received additional medication and a cane to assist him in ambulating.
Dr. Silvis further examined on December 13, 2000. A report dated January 5, 2001 based upon that examination indicates that the CDOC requested from the RIDOC authorization to have a neurological consultation of the plaintiff. It is disputed whether the RIDOC in fact received such a request. However, CDOC officials informed the plaintiff that the RIDOC was in fact aware of the request, but declined to approve it because the RI DOC did not wish to pay for any more tests.
In March 23, 2001 letter to defendant AT. Wall, Director of the RIDOC, plaintiff indicated that he was having difficulty receiving treatment at the CDOC. Plaintiff complained to Wall of long delays in the RIDOC's approval of his treatment. Defendant Wall, in response, wrote to the plaintiff and indicated that he was instructing Joséph DiNitto, Associate Director of Classification at the RIDOC, to address the plaintiffs concerns. DiNitto, in turn, indicated to the plaintiff that he would forward plaintiffs concerns to defendant Marocco.
Plaintiff wrote a second letter to Wall on April 2, 2001, again complaining of the process required in order for him to receive medical treatment. Wall received the letter and indicated to the plaintiff that defendant Dr. Spaulding would make an assessment of plaintiffs concerns and correspond with the CDOC. Plaintiffs attorney in his criminal case also wrote a letter to Wall requesting that he look into the adequacy of plaintiffs medical treatment. Wall responded to plaintiffs attorney, indicating that the plaintiffs medical concerns were being appropriately addressed.
Meanwhile, also on April 2, 2001, CDOC again requested that the RIDOC approve a neurosurgical consultation for the plaintiff. Dr. Spaulding and Marocco were both aware of the CDOC request. However, approval for the neurosurgical consultation was not forthcoming. Instead, on May 23, 2001, plaintiff was returned to the RIDOC for confinement in one of their facilities.
When the plaintiff returned to the physical custody of the RIDOC, Dr. Motola, a physician at the RIDOC, examined the plaintiff and determined that he in fact needed a neurological consultation. Dr. Motola supplied such a request. Still, the neurological consultation was not forthcoming. Plaintiff wrote to Dr. Spaulding and Marocco, complaining again about the inadequacies of his medical treatment, since his condition was worsening.
On December 20, 2001, Dr. Bansal, another physician at the RI DOC, examined the plaintiff and requested a neurologist consultation "ASAP." On December 27, 2001, plaintiff was finally examined by a neurologist at Rhode Island Hospital. Following the examination by the neurologist, it was discovered that plaintiff had a fourth condition, a cyst on his spine. Plaintiff was thereafter examined by Dr. McLennan, a neurosurgeon. Dr. McLennan advised the plaintiff that the cyst had been there for a year and a half and that the surgery at this point may not be an option. Nonetheless, on February 12, 2002, plaintiff was taken to Miriam Hospital for neurosurgery. Following the surgery, plaintiff received physical therapy. The parties dispute whether the plaintiffs condition has improved.
Discussion
A. Summary Judgment Standard
Summary judgment's role in civil litigation is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial". Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Summary judgment can only be granted when "the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56 has a distinctive set of steps. When requesting summary judgment, the moving party must "put the ball in play, averring `an absence of evidence to support a nonmoving party's case.'" Garside, 895 F.2d at 48 (quoting Celotex v. Catrett, 477 U.S. 317, 325 (1986)). The nonmovant then must document some factual disagreement sufficient to deflect brevis disposition. Not every discrepancy in the proof is enough to forestall summary judgment; the disagreement must relate to some issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986).
On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See id. at 256-257. This evidence "can not be conjectural or problematic; it must have substance in the sense that it limits differing versions of the truth which a fact finder must resolve at an ensuing trial." Mack v. Great Atl. Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). Evidence that is merely colorable or is not significantly probative cannot deter summary judgment. Anderson, 477 U.S. at 256-257.
Plaintiff has brought suit under 42 U.S.C. § 1983. Section 1983 provides, in pertinent part:
Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983.
In order to maintain a section 1983 action, the conduct complained must be committed by a person acting under color of state law and the conduct must have deprived the plaintiff of a constitutional right or a federal statutory right. Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also Baker v. McCollan, 443 U.S. 137 (1979) (constitutional deprivations);Maine v. Thiboutot, 448 U.S. 1 (1980) (statutory deprivations).
Here, defendants Marocco, Wall, and White advance three arguments in support of their motion for summary judgment on plaintiffs Section 1983 claims. First, defendants appear to assert that they may not be sued in their official capacity under 42 U.S.C. § 1983. Second, they contend that the undisputed facts demonstrate that no Constitutional provisions were offended. Third, they contend they are protected by the doctrine of qualified immunity. I will discuss each of their contentions in turn.
1. Official Capacity Claims
Defendants appear to assert in their motion that they should be granted summary judgment on plaintiffs claims insofar as they are brought against the defendants in their official capacity. In Will v. Michigan, 491 U.S. 58 (1989), the United States Supreme Court stated unequivocally that "a State is not a person within the meaning of § 1983." Id. at 64. "A suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Id. at 71. Thus, "neither a State nor its officials acting in their official capacities are `persons' under § 1983." Id.
Here, plaintiffs complaint indicates that he is suing Marocco, Wall and White in both their official and individual capacities. However, pursuant to the Supreme Court's ruling in Will, defendants can not be sued in their official capacities. Accordingly, Marocco, Wall, and White's motion for summary judgment should be granted insofar as the plaintiff seeks to hold them liable in their official capacities. I so recommend. 2. Eighth Amendment Claim
The Court notes that a state official in his or her official capacity, when sued for injunctive relief, would be a person under Section 1983 because official capacity actions for prospective injunctive relief are not treated as actions against the State. See Will v. Michigan, 491 U.S. 58, 71 n. 10. Here, plaintiff has abandoned all claims for injunctive relief. See Plaintiffs Notice to Abandon Request for Injunctive Relief, filed with the Clerk of Court on September 30, 2002.
Next, defendants contend that the undisputed facts demonstrate that no constitutional provisions were violated. Plaintiff has brought suit alleging an Eighth Amendment violation. The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. The Cruel and Unusual Punishments Clause was designed to protect those convicted of crimes, and can limit the type of punishment that is imposed. Ingraham v. Wright, 430 U.S. 651, 664 (1977). After an individual is incarcerated, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment. Whitely v. Albers, 475 U.S. 312, 318-319 (1986). "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause. . . ." Id. What is required to establish the unnecessary and wanton infliction of pain varies according to the nature of the alleged Eighth Amendment violation. Hudson v. McMillian, 503 U.S. 1, 9 (1992).
The failure to provide medical attention to an injured prisoner can be an Eighth Amendment violation. See e.g., Layne v. Vinzant, 657 F.2d 468 (1st Cir. 1981); Rosen v. Chang, 758 F. Supp. 799 (D.R.I. 1991). "In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Officials must intentionally delay or completely deny access to medical care. Id. at 104-05.
Deliberate indifference to an inmate's medical needs requires a two part inquiry. First, the court must ask whether the inmate's medical needs are objectively serious(objective prong). Second, the court must ask whether the defendants had the necessary intent, akin to criminal recklessness(subjective prong). Only when both prongs are met, can the defendants be held accountable for an Eighth Amendment violation.
a. Objective Prong
Deliberate indifference to the medical needs of an inmate amount to an Eighth Amendment violation only when the needs of the inmate are serious. Hudson, 503 U.S. at 9. The seriousness of an inmate's medical needs are measured objectively. A serious medical need is one 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. Estelle, 429 U.S. at 104-105; Mahan v. Plymouth House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995).
Here, the undisputed facts indicate that the plaintiff had a serious medical need. The facts demonstrate that the plaintiff was diagnosed with three conditions: spinal stenosis, neuroforaminal stenosis, and scohosis. Following this diagnosis, it is undisputed that Dr. Silvis on January 5, 2001 requested from the RIDOC approval for the plaintiff to have a neurological consultation. When an answer was not forthcoming on this request, the CDOC again requested a neurological consultation for the plaintiff. Instead of providing approval, the plaintiff was returned to the physical custody of the RIDOC where Dr. Motola examined the plaintiff. Dr. Motola too indicated that a neurological consultation was necessary and requested approval. Still, no approval was forthcoming. Dr. Bansal on or about December 20, 2001, examined the plaintiff and requested approval for the neurological consultation, this time "ASAP".
Finally, plaintiff was approved for a neurological consultation and it was discovered that the plaintiff had in fact a fourth condition, a cyst on his spine. Thus, this delay of a neurological examination for little more than a year — from January 5, 2001, when Dr. Silvis first requested approval from the RI DOC, to January 31, 2002 — when the consultation occurred, forms the basis of this litigation.
I find that plaintiff has set forth facts demonstrating that his medical needs were serious, considering plaintiffs four diagnosed conditions, and more significantly, the fact that a neurological consultation was requested by three different doctors at two different confinement facilities.
Defendants in their motion for summary judgment do not challenged that the plaintiff had serious medical needs. Rather, the defendants mount a challenge to the second prong of the deliberate indifference standard, contending that the plaintiff has no evidence to indicate that the they had the requisite state of mind to sustain an Eighth Amendment violation.
b. Subjective Prong
In addition to satisfying the objective prong, plaintiff must also set forth evidence which demonstrates the subjective prong. Deliberate indifference requires a state of mind akin to criminal recklessness; that the official knew of and consciously disregarded a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Here, the Court will evaluate the conduct of defendants Marocco, Wall, and White separately to determine whether plaintiff can demonstrate the subjective component. The Court is mindful that the facts must be viewed in a light most favorable to the plaintiff, the nonmoving party.
i. Defendant Marocco
The undisputed facts indicate that defendant Marocco was the Assistant Director of Health Services at the RIDOC, and that he, along with co-defendant Dr. Spaulding, was responsible for approving treatment for inmates. The undisputed facts demonstrate Marocco corresponded with the CDOC and provided approval of some of plaintiffs medical care. Marocco received correspondence from the plaintiff, the CDOC, A.T. Wall, and Joséph DiNitto concerning the plaintiffs medical needs. Thus, the undisputed facts indicate the Marocco was aware of the plaintiffs medical needs.
The facts also demonstrate that a January 5, 2001 written report at the CDOC requested approval from the RIDOC for a neurological consultation for the plaintiff. Marocco disputes, however, that such a request was ever received. Despite being requested as necessary by a licensed physician, there is evidence, which Marocco disputes, indicating that the decision to withhold this consultation was due to monetary constraints. That is, Marocco did want to pay for the consultation.
On April 2, 2001, the CDOC again requested from the RI DOC approval for a neurological consultation. It is undisputed that this request was received by Marocco and Spaulding, but no approval for treatment was forthcoming. Instead, plaintiff was transferred back to the RIDOC where he was examined by Dr. Motola, the RIDOC's own physician. Following the examination, Dr. Motola requested a neurological consultation for the plaintiff on or about May 25, 2001. Still, the neurological consultation was not forthcoming. Plaintiff wrote letters complaining to Marocco about the lack of treatment, with little or no response, all while plaintiffs condition continued to worsen.
Finally, Dr. Bansal, another RIDOC physician, examined the plaintiff and requested a neurological consultation. Then, after almost a year from when first requested by the CDOC, plaintiff received the neurological consultation. The consultation revealed a cyst in the plaintiffs spine, which had been there for the past year and a half.
Here, there are sufficient facts from which a jury could infer that Marocco had a "state of mind akin to criminal recklessness." First, an issue of fact remains as to whether the Marocco actually received the first request from the CDOC seeking a neurological consultation. If Marocco received such a request, this would add fuel to plaintiffs claim.
However, even without the first request from the CDOC, there are still two requests from two different doctors (Dr. Silvis at the CDOC April 2, 2001; Dr. Motola at the RIDOC on or about May 25, 2001) seeking a neurological consultation for the plaintiff which Marocco knew about, yet failed to timely approve. Marocco may not, consistent with the Eighth Amendment, ignore requests for the treatment of inmates by the prisons' own doctors. Estelle, 429 U.S. at 104-105. Moreover, plaintiff has demonstrated a nefarious motive for the denial of medical care: that medical treatment was withheld, allowing his condition to deteriorate, because Marocco did not want to pay for any more treatment.
The state has legally incarcerated Bertram, and with that incarceration comes a duty under the Eighth Amendment for the state to provide medical care. The state may not choose to deny necessary medical care based on its expensive cost, where, as here, it has been requested by the prisons' doctors.
Taking the facts in the light most favorable to the plaintiff demonstrates that Marocco knew of the plaintiffs medical needs, Marocco knew of requests for medical treatment but failed to timely approve the requests because he didn't want to pay for it, all while plaintiffs condition continued to deteriorated. These facts are sufficient to sustain an Eighth Amendment claim and overcome the summary judgment hurdle. See Farmer v. Brennan, 511 U.S. at 837-842. Accordingly, Marocco's motion for summary judgment should be denied with respect to plaintiff's Eighth Amendment claim. I so recommend.
ii. Defendant Wall
The undisputed facts indicate that defendant Wall, as a matter of policy and practice at the RI DOC, was not responsible for approving or denying requests for medical treatment for inmates. With respect to plaintiffs lack of timely treatment, the only knowledge that Wall had resonates from three letters he received. In two of those letters, which Wall admits he received, plaintiff indicated that he was not satisfied with the treatment at the CDOC. Thereafter, Wall received a third letter from plaintiffs attorney which also indicated a possible lack of proper medical care at the CDOC. Wall then instructed that the plaintiff be transferred back to the ACI. Following the plaintiffs return to the ACI, the undisputed facts demonstrate that Wall had no knowledge that the plaintiff required any specific medical treatment. No facts demonstrate that Wall was aware of Spaulding and Marocco's failure to approve a neurological consultation.
Since the plaintiff has failed to set forth facts demonstrating that Wall had any knowledge of plaintiff's medical needs, Wall can not be held accountable for an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. at 837. Accordingly, Wall's motion for summary judgment should be granted on plaintiffs Eighth Amendment claim.
iii. Defendant White
With respect to defendant White, no facts indicate that Defendant White had any involvement with the Plaintiffs alleged lack of medical care. The undisputed facts indicate the RIDOC employs defendant White as a nurse at the ACI. However, plaintiff has failed to demonstrate that White had any knowledge of the lack of timely treatment or that White had any responsibility for approving or denying requests for medical treatment. Without any facts connecting White to any wrongdoing, plaintiffs Eighth Amendment claim against him must fail. See e.g., id. Accordingly, I recommend that White's motion for summary judgment on plaintiffs Eighth Amendment claim be granted.
3. Fourteenth Amendment Equal Protection Claim
Next, defendants Marocco, Wall, and White have moved for summary judgment on plaintiffs Fourteenth Amendment equal protection claim. Defendants asserts that the plaintiff can not demonstrate that he was treated differently from other inmates.
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV. The essence of equal protection is that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). The state may apply the law differently based on distinctive factual circumstances if the distinction is rationally related to a legitimate government purpose. When, however, the distinction is based upon a "suspect classification" or effects a fundamental right, the constitutional scrutiny sharpens its focus to determine whether the classification is narrowly tailored to serve a compelling governmental interest. Plyer v. Doe, 457 U.S. 202, 216-17 (1982). A fundamental right is one that is otherwise guaranteed in the Constitution. Id. at 217 note 15.
Here, plaintiff has failed to demonstrate, by pointing to facts in the record, how he was treated differently from other inmates. Indeed, no other inmate has been identified by the plaintiff as being in similar factual circumstances. Moreover, plaintiff has failed to articulate any arguments on his equal protection claim. This court will not search the record for evidence nor fashion legal arguments for the plaintiff.
In any event, plaintiff has failed to set forth facts demonstrating that these defendants violated the Equal Protection Clause. Accordingly, Marocco, Wall and White's motion for summary judgment should be granted on plaintiffs equal protection claim. I so recommend.
4. Qualified Immunity
Marocco, Wall, and White also contend that they are entitled to qualified immunity. Persons acting under the color of state law are liable under 42 U.S.C. § 1983 for infringing upon constitutional rights of private individuals. But, this liability is not absolute: the doctrine of qualified immunity provides a safe harbor for a wide range of mistaken judgments. See Malley v. Briggs, 475 U.S. 335 (1986). Through this doctrine, "the law strives to balance its desire to compensate those whose rights are infringed by state actors with an equally compelling desire to shield public servants from undue interference with the performance of their duties and from threats of liability, which though unfounded, may nevertheless be unbearably disruptive." Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992).
Here, I need not reach Wall and White's arguments, since the undisputed facts demonstrate that they have no constitutional liability. The only relevant inquiry at hand is whether Marocco is entitled to qualified immunity on plaintiffs Eighth Amendment claim, since that is the only constitutional claim that has thus far survived the summary judgment hurdle.
Determining whether qualified immunity is available to a particular defendant at a particular time is a trifurcated inquiry. First, the court must ask whether the plaintiff has demonstrated an alleged violation of a constitutional right. If so, then the court ask whether the contours of that right were sufficiently established at the time of the alleged violation. Finally, courts ask whether an objectively reasonable official would have believed that the action taken or omitted violated that right. Hatch v. DCYF, 274 F.3d 12, 19 (1st Cir. 2001).
In the instant case, the first two inquires are easily met. Plaintiff has demonstrated facts indicating an Eighth Amendment violation by Marocco. See Supra Section B, 2, a and b, i; See also Estelle, 429 U.S. at 104-105. Moreover, it has long been clearly established that when inmates are denied access to medical care, or access to medical care is intentionally delayed, the Eighth Amendment is violated. See Estelle, 429 U.S. at 104-105.
The third inquiry, however, requires a more careful examination. The Court must inquire as to whether an objectively reasonable official would have believed that the action taken or omitted violated that right. That is, the Court must determine whether Marocco reasonably should have comprehended that his specific actions transgressed plaintiffs Eighth Amendment rights.
A determination of objective reasonableness "will often require examination of the information" possessed by the defendant officials.Anderson v. Creighton, 483 U.S. 635, 641 (1987). Although the immunity question should be resolved, where possible, in advance of trial, pretrial resolution sometimes will be impossible because of a dispute in the material facts. Swain v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997). In such a case, the factual issues must be decided by a trier of fact thereby precluding summary judgment. See id. Only after the facts are settled can the court determine whether the actions were objectively reasonable as to fall under the umbrella of qualified immunity. See id.
This is such a case. Here, Marocco asserts that he is entitled to qualified immunity. As a basis, he asserts that he "approved in a timely manner, each of the request received from the Connecticut Department of Corrections" and once the plaintiff returned to Rhode Island, Marocco "approved on a priority basis, Plaintiffs neurosurgery."
However, to the extent that Marocco contends that he approved in a timely manner, each of the request received from the CDOC, this fact is disputed. First, it is disputed whether Marocco received the January 5, 2001 request from the CDOC for a neurological examination. In any event, this request was not approved by Marocco.
Second, plaintiff has supplied this Court with evidence which demonstrates that Marocco received the April 5, 2001 request from the CDOC for a neurological consultation. Yet, plaintiff demonstrated that approval for the consultation was not forthcoming, despite Marocco's assertions. In fact, the evidence indicates that the neurological consultation did not occur until December 2001. Thus, his asserted factual basis for qualified immunity is disputed.
The crux of the issue at this stage is whether Marocco should have known that his actions violated plaintiffs Eighth Amendment rights. Plaintiff has demonstrated facts, which Marocco disputes, indicating that Marocco knew that the plaintiff required neurological consultation from January 5, 2001 but yet failed to approve that consultation. The evidence indicates that the neurological consultation was requested again in April 2001 by Dr. Silvis and again in May of 2001 by Dr. Motola. Still, a neurological consultation was not forthcoming. Finally, in December 2001, Dr. Bansal, requested the neurological consultation again, this time "ASAP". Finally, plaintiff received a neurological consultation.
This long delay, says the plaintiff, was all because prison officials — defendants Marocco and Spaulding — did not want to spend money on plaintiff's medical needs. Thus, these facts, if so proven at trial, can demonstrate an Eighth Amendment violation. These facts, if proven at trial, also indicate Marocco is not entitled to qualified immunity. An objectively reasonable person should have known that denying or delaying approval of the plaintiffs medical treatment, here over the course of a year, violated the Eighth Amendment. Prison officials may not substitute the judgment of medical professionals for their own in determining what is a necessary medical procedure.
Factual issues need to be resolved to determine whether this defendant's conduct was reasonable so as to entitled him to immunity.Kelley v. Laforce, 288 F.3d 1, 7-9 (1st Cir. 2002). These factual disputes need to be resolved by a trier of fact. At this stage, it is premature to cloak Marocco with qualified immunity.
C. State Law Negligence Claim
In his Complaint, plaintiff also asserts state law negligence claims against the defendants. Marocco, Wall, and White, have moved for summary judgment, contending plaintiff has no evidence to sustain this claim. Plaintiff, in opposing the defendants' motion for summary judgment, had an affirmative duty to identify in the record evidence which supports this claim. However, plaintiff failed to do so. Plaintiff has failed to urge in his objection, or demonstrate that he possesses any evidence establishing the appropriate standard of care, any evidence indicating a deviation from the standard of care, or any evidence demonstrating causation. Schenck v. Roger Williams General Hospital, 382 A.2d 514, 516 (R.I. 1977); Boccasile v. Cajun Music Limited, 694 A.2d 686, 690 (R.I. 1997). Without such proffer or evidence, plaintiffs state law negligence claim in effect fail to state a claim. Accordingly, Marocco, Wall, and White's motion for summary judgment should be granted on plaintiffs negligence claims. I so recommend.
Conclusion
For the reasons stated above, I recommend:
(1) Marocco, Wall, and White's motion for summary judgment be granted on plaintiffs 42 U.S.C. § 1983 official capacity claims;
(2) Wall and White's motion for summary judgment be granted on plaintiffs Eighth Amendment claims;
(3) Marocco's motion for summary judgment be denied on plaintiffs Eighth Amendment claims;
(4) Marocco, Wall, and White's motion for summary judgment be granted on plaintiffs Fourteenth Amendment Equal Protection Clause claims; and
(5) Marocco, Wall, and White's motion for summary judgment be granted on plaintiffs state law negligence claims.
Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).