Rehearing and Rehearing En Banc Denied September 23, 1981.
ALDRICH, Senior Circuit Judge.
These are cross appeals following a jury trial of a Civil Rights action, 42 U.S.C. § 1983. Plaintiff, Robert M. Layne, is a Massachusetts prisoner serving a sentence for kidnapping and for the shooting of two state policemen for which he will not be eligible for parole for some time. The now remaining defendants
Defendants' basic complaint is that the evidence did not warrant findings against them. In part they point to the fact that much of their conduct — or nonconduct — occurred before the leading Supreme Court case of Estelle v. Gamble, 1976, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, quoted by the court in the charge. We find this irrelevant. a) There were a number of similar lower court cases decided prior to Estelle, as the Court there noted, 429 U.S. at 106 n.14, 97 S.Ct. at 292 n.14. b) To the extent that Estelle, or any of these cases, represented new law, it was that the courts would enforce liability for such behavior, not that, until then, conduct there held actionable was moral or proper or acceptable. It should not require a Supreme Court decision to point out that a superintendent of a prison does not have the choice of whether to be a good samaritan or to pass by, Luke 10:33, at least what he sees. Rather, we hold that while defendants are not "charged with predicting the future course of constitutional law," Pierson v. Ray, 1967, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288, they are expected to conform to "the evolving standards of decency that mark the progress of a maturing society." Estelle, ante, 429 U.S. at 102, 97 S.Ct. at 290.
On the other hand, a case involving nonconduct may, and this one does, present far more difficult questions than the case of an easily recognizable, affirmative act. E.g., Furtado v. Bishop, 1 Cir., 1979, 604 F.2d 80, cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (physical beatings). The difficulties are compounded when it is supervisory officials, rather than those with direct, day-to-day contact with the prisoner, who are sought to be charged, and particularly so when the latter are acquitted. Because "an inadvertent failure to provide medical care" is not actionable, even if negligent, Estelle, ante, 429 U.S. at 105-06, 97 S.Ct. at 291-92, and because there is no respondeat superior liability under section 1983, Kostka v. Hogg, 1 Cir., 1977, 560 F.2d 37, 40, see Sims v. Adams, 5 Cir., 1976, 537 F.2d 829, 831-32, the ultimate question
Before turning to the evidence we note two guiding principles governing our review. The first is that while, on a defendant's motion, it is axiomatic that the evidence is to be viewed in the light most favorable to the plaintiff, the "field of vision" encompasses, to a degree, uncontradicted evidence introduced by the defense. Grayson v. Pride Golf Tee Co., 1 Cir., 1970, 433 F.2d 572, 576; Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, 656 and n.6, cert. denied, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194. This principle is particularly applicable to documentary evidence, the existence of which — although in some cases its truthfulness — is not affirmatively denied by plaintiff. Such documents, where prepared by others and part of the institutional records, are part of the picture before supervisory defendants as bearing on their knowledge and state of mind.
The second principle relates to the fact that none of the present defendants, except Moquin, testified. Plaintiff seeks to invoke the rule that if a party who is shown to have knowledge of a fact fails to testify, there is an inference that his testimony would not be favorable to him. Cf. Commercial Ins. Co. v. Gonzales, 1 Cir., 1975, 512 F.2d 1307, 1314-15, cert. denied, 423 U.S. 838, 96 S.Ct. 65, 46 L.Ed.2d 57 (unproduced document). Such an inference, however, cannot, of itself, be used to satisfy the opponent's burden of proof.
Contentions in plaintiff's brief that "the jury could infer, in the absence of evidence to the contrary, that defendant Gaughan...." are unsound. If there was an independent basis for an inference with respect to Gaughan, the jury could draw it, and could do so whether there was evidence to the contrary or not. Plaintiff, however, seeks to create the inferences solely from the fact that defendants did not testify. This cannot be done.
Turning to the evidence, plaintiff escaped from a Connecticut mental institution, where he was being held for observation pending trial on federal charges. Later he was stopped for questioning by two Massachusetts state troopers, whom he shot. On September 14, 1971 he was apprehended.
Sept. 16-20, 1971 Massachusetts General Hospital Sept. 20 - Dec. 1, 1971 MCI Bridgewater Dec. 1 - Jan. 11, 1972 Worcester County Jail Jan. 11 - June 6, 1972 Bridgewater June 6 - June 19, 1972 Worcester Superior Court for trial and sentence June 19 - June 28, 1972 MCI Walpole June 28 - July 10, 1972 MCI Norfolk July 10 - Dec. 21, 1972 Walpole Dec. 21, 1972 New England Medical Center
Dec. 22, '72 - Feb. 13, 1973 Walpole Feb. 13 - Feb. 28, 1973 Lakeville Sanitarium Feb. 28 - March 6, 1973 Norfolk March 6 - Sept. 13, 1973 Walpole (Aug. 29, 1973 - suit brought) Sept. 13 - April 4, 1974 Bridgewater (Mar. 7, 1974, supplemental complaint) April 5, 1974 - to date Walpole
Charles W. Gaughan (Bridgewater) (September 1971 — June 1972)
The original complaint, written pro se, and in considerable detail, charged Gaughan with wrongfully removing plaintiff from the Massachusetts General Hospital, and the supplemental complaint charged him, and others, with depriving plaintiff of his papers to interfere with the prosecution of this suit, as to which latter the jury acquitted him. Neither charged him with improper medical treatment in any other respect, but plaintiff did so, successfully, at the trial, and as the pleadings could have been amended, F.R.Civ.P. 15(b), we will consider it to have been done.
Upon his arrival at Bridgewater plaintiff had been diagnosed as having, inter alia, a brain concussion and possible brain contusion — a "bruise on the brain." Due to deterioration in his condition he was transferred the day after his arrival to Massachusetts General Hospital. His Discharge Summary four days later diagnosed a "cerebral contusion of right hemisphere with probable hemiparesis of the left arm and left leg with anesthesia of his left arm." Recommendations included "[t]o further evaluate the etiology of his decreased function of his left arm" and "[f]ull psychiatric examination." The report noted that while a patient in his condition would not ordinarily be discharged so soon, this was done on the "understanding that Bridgewater has competent medical facilities, and ... this patient poses a serious danger to himself and surrounding personnel," and that Bridgewater was "very grateful to have the patient in greater security than they felt we could afford here."
In his original complaint, and extensively in his brief on appeal, plaintiff charges that the discharge was "against medical advice." Gaughan counters that it was the Bridgewater doctors, and not he, who were responsible for the discharge. We find both contentions unwarranted.
There is a permissible inference that Gaughan was responsible for plaintiff's discharge. At the same time, not only do we not read the hospital record as advising against it,
Whether or not a jury would be warranted in finding this course of treatment substandard, even to the point of malpractice, is not the issue; as already noted, the only permissible basis for liability is deliberate indifference on the part of the defendant. Estelle v. Gamble, ante, 429 U.S. at 105-06, 97 S.Ct. at 291-92. Thus, "[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law." Westlake v. Lucas, 6 Cir., 1976, 537 F.2d 857, 860 n.5; see Ferranti v. Moran, ante, 618 F.2d at 890-91. We do not say that treatment received may never be "so clearly inadequate as to amount to a refusal to provide essential care." Thomas v. Pate, 7 Cir., 1974, 493 F.2d 151, 158, cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119. A study of the record, however, makes clear that the evidence did not warrant such a finding here. Unlike Dr. Pastorello's 1974 letter to Superintendent Vinzant at Walpole, post, there is nothing in the medical records to alert Gaughan that plaintiff's treatment was inadequate. Rather, it appeared that he was not cooperating with what he got.
The Absolved Defendants (July 1972 — September 1973)
Following his conviction plaintiff was sent briefly to Walpole, and thence to the hospital at MCI-Norfolk. During his stay there, of which he does not complain, he was examined and a program of rehabilitative therapy was prescribed. However, on July 10, 1972, he requested to be discharged, against the advice of the Medical Director, Dr. Della Penna. He admitted completing the request form, but testified this was because "Dr. Della Penna was talking about sending me to Bridgewater and I didn't care to go to Bridgewater." He was returned to Walpole that day.
Douglas Vinzant (Walpole) (September 13, 1973)
On September 13, 1973 plaintiff was transferred from Walpole back to Bridgewater, an action which the supplemental complaint charges was improperly due to this suit. He had given the complaint to prison authorities for mailing on August 29 or 31, but it did not reach the district court until September 12. On September 5, Douglas Vinzant replaced defendant John Moriarty as superintendent at Walpole. On September 10, plaintiff wrote the court inquiring as to the lack of acknowledgement of his complaint, and on September 13, on according to him ten minutes notice, he was taken to Bridgewater. Although plaintiff charged several defendants with an improper transfer, the jury found only Vinzant liable. The court set this finding aside, and ordered judgment for the defendant.
The items in this picture are diverse. On the one side it may be said that the correspondence in dates between the institution of suit and the transfer raises an inference of retaliation. Cf. Ferranti v. Moran, ante, 618 F.2d at 892; McDonald v. Hall, 1 Cir., 1979, 610 F.2d 16, 18. Circumstantial force may be thought added by the disappearance of plaintiff's legal materials, for which, however, he sued Bridgewater, but not Vinzant or other Walpole defendants. Cf. Ferranti, ante, 618 F.2d at 892; Russell v. Oliver, 4 Cir., 1977, 552 F.2d 115, 116. On the other hand, as we observed in McDonald while rejecting a motion to dismiss,
The case against plaintiff's inferences was substantial. In the first place, Dr. Pastorello testified that the person responsible was himself.
Second, against plaintiff's testimony that the transfer was sudden and without warning, alleged in his complaint as preventing him from getting his legal materials together, is the statement in his letter three days earlier, "I have ... been locked up in my cell here in the hospital today, and notified that I may be very shortly sent to Bridgewater."
Third, there was ample evidence that the transfer was for the reason stated in the Transfer Summary — "Medical Treatment." Pastorello testified that he requested it so that plaintiff would receive treatment for a drug addiction. This was a valid reason on its face, and were an inquisitive Superintendent to seek corroboration, he could find it in plaintiff's then recent (June, 1973) disciplinary conviction for possession of syringe parts. Plaintiff, moreover, admitted at trial that he had had a drug problem, though he claimed it had been cleared up. At Bridgewater he was placed in the Addiction Center Hospital. His testimony that he did not there receive any treatment for his addiction, if conceivably true, gave no basis for attributing this to the Walpole defendants. In short, on this record any possible inference to be derived from the circumstances of the transfer were fully met by the evidence of a medical reason. The mere chronology alleged in the complaint, while sufficient to withstand a motion to dismiss, cannot get plaintiff to the jury once defendants have produced evidence of a legitimate reason. A contrary rule would take away the "wide latitude afforded prison officials in ordering transfers," McDonald, ante, 610 F.2d at 18-19; see Meachum v. Fano, 1976, 427 U.S. 215, 226-29, 96 S.Ct. 2532, 2539-40, 49 L.Ed.2d 451, by effectively insulating from transfer the inmate who once files a complaint against prison officials.
Parenthetically, we cannot but remark on the singularity of the jury's finding an improper motive on the part of Vinzant, who was not named as a defendant in the original suit, while absolving Pastorello, who was named, and who acknowledged responsibility for the request and for furnishing the reason. If the reason was false, Pastorello should have been held liable. If it was sound, there was no basis for charging Vinzant for accepting it. Cf. Mt. Healthy City School Dist. Board of Ed. v. Doyle, 1977, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. But quite aside from this, there is substantial question whether Vinzant even participated. The complaint was delivered for mailing a week before he came to Walpole. While Pastorello testified that he sought transfer approval of the "superintendent" "through channels," he was not asked, and did not say, which superintendent this was. Chronologically, it could have been either.
As we noted in McDonald, ante, a prisoner, in making a circumstantial case that he was transferred for improper reasons, has a heavy burden. Even a lesser burden cannot be met by proof of "[c]ircumstances equally consistent with several hypotheses." Mutual Life Ins. Co. v. Hess, 5 Cir., 1947, 161 F.2d 1, 4; see NLRB v. Patrick Plaza Dodge, Inc., 4 Cir., 1975, 522 F.2d 804, 809. Viewing this record as a whole, we agree with the district court that it offered no more than speculation and conjecture as to either action, or bad faith, on the part of Vinzant.
Walter Moquin (Bridgewater) (September 1973 — April 1974)
Plaintiff's supplemental complaint, in addition to asserting the transfer claim,
We agree with the district court. Plaintiff's first obligation was to show that the papers came into Moquin's possession or control. He received no help in this regard from Moquin. Moquin testified that the effects of a transferred inmate would ordinarily be sent to Bridgewater's "BX unit" — not under his control — for storage; that he would send for them on the inmate's request; that he determined what an inmate was allowed to have in his cell; that he did not remember plaintiff asking for the materials, and that there were no restrictions on legal materials in a prisoner's cell. Another Bridgewater guard testified that on Layne's request he searched the BX unit for Layne's law books, and found none. Ultimately some, but not all, of plaintiff's law books were found in storage, but not his papers.
Plaintiff's own testimony on the subject was cryptic.
The testimony does not give a time frame, nor does it suggest whether Moquin was referring to the pilfered materials, or to the materials that were eventually returned.
For all that appears, the papers never left Walpole. Had they come, there was no evidence that Moquin would have been the one to receive them, and, not named in the original complaint, he would have had no motive to search them out. We agree with the district court that there was no affirmative basis for finding that he was responsible for their nonappearance.
Charles W. Gaughan (Bridgewater) (September 1973 — April 1974)
Although in general we resist commenting upon plaintiff's brief, we cannot avoid doing so with respect to the charges against Gaughan for this second incarceration at Bridgewater as summarized in the reply brief. We quote from page 6 of that brief, footnotes omitted.
With respect to the "detailed pleadings," the only details concerning Gaughan, or Bridgewater as a whole, were the charge of plaintiff's improper removal from Mass. General (long past, and difficult to be arrogant about), the fact that confinement in the hospital section kept him from freedom afforded the general population, and the deprivation of his legal papers for which Gaughan was absolved by the jury. As to the personal appeal, plaintiff's entire testimony was as follows.
Pursuit of that complaint would have led to a unanimity of views of fault on the part of the plaintiff. Five doctors, the Supervisor of Nurses, and Moquin signed a letter addressed to Gaughan dated March 27, 1974.
To: Charles W. Gaughan, Superintendent
Conditions have reached the point where a Conference was held yesterday by the Medical Staff, all of whom were present as well as Mr. Walter Moquin, Supervising Corr. Officer of the Add. Center Hospital, and Miss Mary Philbin, Supervisor of Nurses.
The conference, while dealing with problems in general, actually focused on two (2) of our Inmates, Warren Stanton BX-1502, and one Robert Layne BX-1690.
The above referred to are a constant source of trouble to all parties concerned; the Medical and Nursing Staffs, Correction, and other Inmates. To cite a few examples, they both watch their TVs until the early hours of the morning, are consequently asleep when the Doctor and Mr. Moquin make their rounds between 8 and 8:30 A.M., get up at their leisure (usually around 9:30 or 10 A.M.) and then demand their breakfast — and get it.
Further, these two men are constantly demanding medication at all hours of the day and night; not necessarily medication prescribed, but medication they want. Conversely, when the mood strikes them they refuse medication, usually in an arrogant and surly manner, stating either that they just don't want it, or it isn't what they want.
The aforementioned merely touches on the attitude and demeanor of these two men however a lengthy and detailed day by day summary of their actions would be redundant serve, no useful purpose.
In conclusion, the feeling of all those in attendance at said Conference was and is that such conduct on the part of these two Inmates, should not and cannot be tolerated any longer.
This leaves us with no alternative other than to respectfully request as well as strongly recommend that these two men be brought before the Classification Board for whatever action it may deem necessary and expedient under the circumstances.
No doubt it was this letter that prompted the complaint in plaintiff's brief that he was transferred "back to Walpole to punish him for surliness," a charge overlooking the fact that plaintiff was the one who requested the transfer and which request was passed on in a letter dated April 3, 1974 from Gaughan to Commissioner Hall who approved it, post, not to mention the fact that plaintiff had previously charged that his transfer from Walpole to Bridgewater was for punishment.
It is true that as early as 1972 a Dr. Lebeaux had recommended physiotherapy for plaintiff, and that it became ultimately apparent, what between insufficient facilities and lack of uniform cooperation by plaintiff,
Before leaving Gaughan we comment briefly on the matter of the alleged confiscation of plaintiff's leg brace. Plaintiff's
Douglas Vinzant (Walpole) (April — December 1974)
Plaintiff arrived back at Walpole on April 4, 1974, and was placed back in the infirmary in Dr. Pastorello's charge. The latter discharged him, over his protest, to the general population after a few days, saying he did not want him in the infirmary any more because he was being uncooperative. A letter to Vinzant dated April 25, 1974 reads as follows.
I am submitting the following information regarding inmate Robert M. Layne who was transferred back to M.C.I. Walpole from M.C.I. Bridgewater on April 5, 1974.
This inmate was confined as a patient in the infirmary when I assumed duty here in November, 1972. I was informed that he had been in the infirmary since about July, 1972, having been sent here from M.C.I. Norfolk.
On physical examination, he was found to have a left side hemi-paresis which he attributed to severe head injuries sustained from a beating by the police. This inmate was confined to a wheel chair. His daily activities consisted of lying in bed all the a.m. and part of the afternoon. His meals, breakfast and lunch, were brought to his room and remained there uneaten ninety-nine percent (99%) of the time. When he finally did arise, he spent the remainder of the day in his wheel chair. Usually he stayed up very late into the evening and often after midnight.
As physician here, I made many efforts to rehabilitate him. He was sent to the New England Medical Center Hospital for special tests; admitted to Lakeville Hospital for ambulatory training and self-care; transferred to M.C.I. Norfolk Hospital for further training and care and finally returned back to the infirmary at M.C.I. Walpole.
I again tried to rehabilitate and help him become independent in all activities of daily living and ambulation with leg brace and cane. He resisted all efforts to do so. He resumed his routine of lying in bed all the a.m. and part of the p.m., then up all night; engaging in activities which were contrary to administrative and medical directives.
On September 13, 1973, at my request, he was transferred to M.C.I. Bridgewater to the Hospital and Drug Unit for treatment. He remained there from that date to April 5, 1974 when he was sent back to Walpole.
A copy of the letter I received from Bridgewater regarding his daily activities while there is attached to this report. I believe it is self-explanatory.
Since his return to Walpole, he has again resumed his usual role of remaining in bed all a.m. and wheel chair in p.m. I kept him in the infirmary for five days (April 5 — April 10) and then discharged him to population.
This inmate is in a wheel chair. It is very difficult for him to get into or out of his cell without marked difficulty and without help from other inmates. In addition, in the population block, there is no way that he can bathe except from the lavatory bowl in his cell. Because of the above conditions he doesn't get to his meals in the dining room; never bathes himself, etc.
He is not receiving any physiotherapy nor any rehabilitative treatment because it is impossible to do so at this institution.
Here he will do nothing to help himself although he states he wants to.
This inmate does not belong at M.C.I. Walpole. He should be transferred to M.C.I. Norfolk or to some other institution better able to help him.
I strongly recommend this and urge you to consider him for transfer as soon as possible.
I will be pleased to discuss this case in more detail with you if you so desire.
Plaintiff was not transferred. What is more to the present point, Pastorello did not testify to any response from Vinzant to this letter, and Vinzant did not testify at all. Not only is it the first independent record, apart from Gaughan's letter to Hall earlier that same month,
At the same time, we do not disagree with the district court's view that the obstacles facing Vinzant were so apparent that he was not chargeable with punitive damages for concluding to do nothing. In charging the jury on liability the court properly stated that it was plaintiff's burden to prove deliberate indifference to a serious medical need. Punitive damages, it said, required action "intentionally malicious, or with reckless disregard.... I am distinguishing reckless disregard or malicious conduct from deliberate indifference." We agree that the standard for awarding punitive damages is properly higher than the standard governing compensatory damages in this context. We need not specify at this time whether that additional component is properly termed willfulness, outrageousness, or maliciousness. Cf. Alicea Rosado v. Garcia Santiago, 1 Cir., 1977, 562 F.2d 114, 121. We do not accept the contrary view of the Fifth Circuit in Fielder v. Bosshard, 5 Cir., 1979, 590 F.2d 105.
Frank Hall, Commissioner of Corrections (Oct. 1, 1973 to date of trial.)
Plaintiff's entire case against Hall is so shortly (but fully) stated in plaintiff's Reply Brief, that we copy it in full, adding our comment.
Footnote 12 referred to the principle that a mailed letter is presumably received. It did not mention the fact that the Supplemental Complaint, if read, would have alerted Hall to the fact that plaintiff did not like conditions at Bridgewater and preferred Walpole. Footnote 13, correspondingly, would have shown that plaintiff was requesting to be returned to Walpole. Footnote 14 showed that Hall acceded promptly to the transfer, scarcely a basis for criticism.
Footnote 15 refers to plaintiff's testimony that he wrote Hall from Bridgewater and "several other times after being in Walpole." No letters were ever produced. Beyond plaintiff's statement that they related to his "condition," there was nothing to show their contents, or their reasonableness on their face, or the dates.
Admittedly Hall took no action (after acceding to plaintiff's transfer back to Walpole) so far as the record shows, but this is scarcely comparable to plaintiff's cited case, Fults v. Pearsall, E.D.Tenn., 1975, 408 F.Supp. 1164, in which malice was inferred from a deputy sheriff's shooting a believed misdemeanant to prevent his escape.
Manifestly the Commissioner of Corrections, with his broad responsibilities over an entire state prison system, is and must be remote from individual prisoners unless something striking is brought to his attention. If he knew the contents of the original complaint, he knew it related to events prior to his taking office. Having read the Supplemental Complaint, he knew its thrust was punishment and denial of access to the
From the standpoint of top echelon inquiry, naturally this now asserted excuse for the long continuous non-prosecution of complaints to the Classification Board was in no way apparent on the record. We find no basis for charging Hall with wilful indifference to improper treatment.
As a result of the foregoing, the court's actions in directing verdicts are in each instance sustained. Its refusal to direct verdicts for Gaughan and Hall are reversed, and judgments are to be entered in favor of all defendants except as to Vinzant on issue 1 as put to the jury: the violation of a duty to plaintiff by deliberate indifference to a serious medical need.
This last possibly raises a question which no party addressed at the time, nor has it been adverted to since. For reasons that do not appear, after putting issue 1 to the jury, listing — with a check space for each — all nine defendants, the court's jury form put the following.
Consistent thereto space was provided for a single answer. As previously recounted, the jury checked Yes as to three defendants on issue 1, and answered 1A $75,000.
The period during which plaintiff was in Gaughan's custody ran from September, 1971 to June, 1972, (with a brief interval) and again from September, 1973 to April, 1974. Plaintiff was in Hall's overall custody from October, 1973 to the date of the trial, January, 1980, a total of eight years. Vinzant's only connection was during the nine months of April to December, 1974. Under principles familiar to lawyers, but presumably not to the jurors, who were given no instruction on the subject, the effect of the answer was to charge each of the three ultimately designated defendants jointly and severally with the full figure.
Affirmed in part, reversed in part, and remanded.