Cady Ex Rel. Estate of Galambos v. Walsh ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2040
KATHERINE M. CADY, as Personal Representative
of the Estate of Paul Victor Galambos, III,
Plaintiff, Appellee,
v.
BARBARA WALSH; MICHAEL TRUEWORTHY; LINDA WILLIAMS,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Kayatta, Circuit Judges.
Michael E. Saucier, with whom Robert C. Hatch, Hillary J.
Bouchard, and Thompson & Bowie were on brief, for appellants.
Eric M. Mehnert, with whom Hawkes & Mehnert, LLP was on brief,
for appellee.
June 4, 2014
LYNCH, Chief Judge. Katherine Cady, on behalf of the
estate of her son, Paul Victor Galambos, III, brought this 42
U.S.C. § 1983 action after Galambos's death from self-inflicted
injuries that he suffered while he was a pretrial detainee at the
Cumberland County Jail (CCJ). The action alleged that employees of
Corizon, Inc., the private company providing healthcare services at
CCJ, were deliberately indifferent to Galambos's serious medical
needs in violation of his Fourteenth Amendment rights. The
defendants sought summary judgment, arguing that they were within
a category of private employees protected by qualified immunity by
virtue of their duties, and were also entitled to immunity on the
particular facts.
The district court assumed dubitante that the employees
fell into a category of private employees eligible for qualified
immunity, and denied the summary judgment motions filed by
defendants Michael Trueworthy, Barbara Walsh, and Linda Williams,
all employees of Corizon. It reasoned, after a detailed review of
the facts, that there remained material and disputed issues of fact
as to the claims against all three individuals which precluded the
grant of immunity at this point.
The three defendants now appeal, arguing that they are
entitled to qualified immunity. The plaintiff, noting there are
material issues of fact in dispute, including conflicts in the
opinions of expert witnesses, argues that there is no appellate
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jurisdiction under the doctrine of Johnson v. Jones, 515 U.S. 304
(1995), even if the defendants were theoretically eligible for the
protections of qualified immunity. Like the district court, we
bypass the question of whether qualified immunity is categorically
unavailable to these defendants, because the district court's
denial of immunity turned on findings that there remain disputed
issues of material fact and inference. We do not have jurisdiction
over this interlocutory appeal under Johnson. We dismiss this
appeal for want of appellate jurisdiction.
I.
We have jurisdiction over an interlocutory appeal of a
denial of summary judgment on qualified immunity only insofar as
the appeal rests on legal, rather than factual grounds. See
Johnson, 515 U.S. at 313. We therefore summarize the facts in the
light most favorable to the non-moving party, taking as
unchallenged any inferences that the district court drew in that
party's favor.
A. Background and Named Defendants
Corizon is a private independent contractor that provided
healthcare services to inmates at CCJ under a contract with CCJ
effective January 1, 2007 through December 31, 2009.1 Corizon was
1
Corizon was paid a management fee for its services. It is
unclear from the record what the relationship was between costs
incurred and the management fee. The parties have not adequately
briefed that question.
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responsible for healthcare at CCJ, and to that end developed a set
of governing policies and procedures. Corizon was also required to
regularly confer with the Cumberland County Sheriff or his designee
concerning both existing healthcare procedures and any changes to
those procedures.
1. Michael Trueworthy
Defendant Michael Trueworthy, a psychiatric Nurse
Practitioner, worked as a per diem employee of Corizon from August
through December 2008, and reported directly to Dr. Alfonso Corona,
Corizon's psychiatrist for CCJ. Trueworthy saw inmates for
medication evaluation and management, and renewed prescriptions for
inmates who had already been prescribed those medications. He was
never on-call during his employment at CCJ, and was not present at
the facility for all emergencies. Generally, social workers at CCJ
would provide Trueworthy with lists of inmates for him to attend to
during his shifts.
2. Barbara Walsh
Defendant Barbara Walsh, a Registered Nurse, became
Corizon's director of nursing in 2006, and she was employed in that
position during the 2008 events that gave rise to this case. She
supervised the infirmary and the nursing staff. She described CCJ
as "chaotically busy." She reported directly to Corizon's Health
Services Administrator, Diane North. North is not a named
defendant. Walsh was a party to the "constant discussion among the
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Corizon staff" regarding sending inmates out to the emergency room
(ER). The cost of having an inmate transported to a local ER by
ambulance had risen dramatically, and was nearly $3,000 in the fall
of 2008. Corizon apparently wanted to keep costs contained, and
also assure that nurses were performing only medically necessary
actions. In light of these concerns, Walsh instructed the nursing
staff to contact her at any time, even when she was not on duty, so
that she could assess a given situation before deciding to send an
inmate out to the ER for additional care. According to the
parties' stipulated facts, the reason given for this policy was
that "the [staff nurses'] excuse of their nursing licenses being at
risk was not an acceptable basis for a decision to send an inmate
out to the ER."
3. Linda Williams
Defendant Linda Williams, a Licensed Clinical Social
Worker, was responsible for assessing inmates' current mental
health status. She undertook these health assessments from outside
inmates' cells, and never entered Galambos's cell to assess him.
When Galambos first came to CCJ, Williams took part in his intake
and initial evaluations and subsequent evaluations. From December
2 through December 11, 2008, Williams observed Galambos each day
and spoke with him on some days.
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B. Events at CCJ
Galambos entered CCJ as a pretrial detainee on August 3,
2008, following his arrest for robbery, refusal to submit to
arrest, and violation of bail conditions. He had an extensive
history of mental illness and substance abuse, was diagnosed at the
time with schizoaffective disorder, had a history of suicide
attempts, and had previously received in-patient psychiatric
treatment.
On his arrival at CCJ, Galambos resisted being
fingerprinted and headbutted an intake officer. His condition was
described by the plaintiff's expert as "actively psychotic,"2 and
a jury could so conclude. He initially refused his medications and
he was placed on suicide watch, where he remained for a few days.
At this point, Corizon's mental health staff, including Williams,
was aware of Galambos's history of mental illness. They had access
to his past records, including from his stay at an in-patient
treatment program at Spring Harbor Hospital called ACCESS, where
Galambos had been admitted in the past, most recently in June 2008.
2
The three Corizon defendants objected to the magistrate
judge's admission of statements from the plaintiff's two experts,
Dr. Grassian and Dr. Jagminas, on the grounds that they did not
research standards of mental health care for inmates and were
relying on a malpractice standard of care. The magistrate judge
did not conduct an exhaustive Rule 702 inquiry, but also overruled
the defendants' objections and included several statements from the
experts in the Recommended Decision.
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Dr. Grassian, one of the plaintiff's experts, said the record shows
no evidence that Trueworthy ever reviewed those records.
Galambos agreed to take an oral dose of Haldol on August
6, at which point he was "stepped down" to "psych" watch from
suicide watch. He was taken off psych watch on August 10.
During September 2008, Galambos underwent additional
evaluations that resulted in a medication recommendation.
Trueworthy offered a recommendation and medication plan on
September 12, which recommended continued use of the medications he
was on when he entered CCJ: Zyprexa (for psychosis) and Cogentin
(for potential side effects of Zyprexa). Trueworthy was aware that
Galambos had a history of suicide attempts and believed that
Galambos's prognosis was poor without proper medication management.
Nonetheless, Trueworthy said he believed that because Galambos was
"logical and involved" as of September 12, Trueworthy did not need
to see him regularly. The plaintiff's expert, Dr. Grassian, has
noted that on September 9, Galambos was observed to be actively
psychotic; Dr. Grassian opined that Trueworthy's September 12 plan,
which left Galambos's medication regimen unchanged, was a violation
of "any standard of care." He also opined that the failure of the
record to note Galambos's activity from September to November was
unacceptable.
By November, Williams did note that Galambos exhibited a
pattern of irregular acceptance of his medication. There is a
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dispute over whether CCJ could forcibly administer medication to
inmates. On November 8, Galambos submitted a medical request slip
asking that he be given Seroquel instead of Zyprexa. There was no
response and, according to the plaintiff's expert, the record
contains no explanation for ignoring Galambos's request.
Trueworthy and Dr. Corona had previously discussed safety issues
surrounding prescribing Seroquel in a correctional setting, but it
was listed on Corizon's medication formulary at the time.
On November 8, Galambos was placed in maximum security
after assaulting another inmate, and he remained there until
November 12. During this period, Galambos asked to see the
psychiatrist and reiterated his medication change request. On
November 11, Debra Konieczko, a Licensed Clinical Social Worker who
had treated Galambos when he was in the ACCESS program, visited
Galambos in CCJ. After meeting with Galambos and observing that he
was "highly agitated and anxious," "demonstrating psychomotor
agitation," and was "difficult to interrupt," Konieczko spoke with
a Corizon social worker about Galambos. The Corizon social worker
met with Galambos and reportedly did not observe the problems that
Konieczko noted. After Galambos was allowed out of maximum
security on November 12, he continued to ask to switch to Seroquel,
saying that Zyprexa made him feel sedated in the morning and unable
to sleep at night.
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On November 15, Corizon accepted from Galambos a signed
"release of responsibility" form that allowed him to refuse the
Zyprexa. On November 17, he again asked to see a psychiatrist for
a change in medication, and also asked for a change of housing,
reporting that other inmates were threatening to kill him. No
change in medication took place, and on November 17, Trueworthy
renewed Galambos's Zyprexa and Cogentin prescriptions.
Galambos's chart indicates that at some point on December
1, he completed a "Request Slip" seeking mental health services, on
which he indicated: "I need to find out what meds will work for
me." Also on December 1, Galambos met with Trueworthy to discuss
his medication situation for the first time since Galambos began
requesting new medication in early November. Galambos told
Trueworthy that he had not taken the Zyprexa for a week.
Trueworthy did not discuss substitute medications with Galambos.
That Galambos was no longer on his medication did not concern
Trueworthy, because Trueworthy "believed that Galambos already
would have had problems [due to stopping his medication] since he
had not been taking Zyprexa for a while" as of that date.
As of this December 1 meeting, Trueworthy discontinued
all of Galambos's psychiatric medications, which meant that
Galambos would no longer be offered medication on a daily basis.
Trueworthy did not see Galambos again, and he maintains that he
never saw Galambos's December 1 Request Slip.
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Sometime in the 24 hours following his meeting with
Trueworthy, Galambos verbally threatened to commit suicide to a
correctional officer. Social worker Williams met with Galambos on
December 2 to discuss the threat, and at the meeting he told her
that he was not serious about committing suicide and that he wanted
to change his housing assignment so he was not housed with
pedophiles. According to Williams, it was common for inmates to
complain about being housed with inmates charged with sex crimes.
But according to Dr. Grassian's assessment of Galambos's records,
Williams made no effort to determine whether Galambos was or was
not housed with pedophiles and so did not make the differential
diagnosis as to whether his fears were reasonable or delusional.
Dr. Grassian opined that Williams should have undertaken such an
inquiry. On December 2 Williams was not concerned that Galambos
was suicidal based on her overall assessment, which included that
Galambos told her he was not suicidal. Dr. Grassian called
Williams's assessment at this juncture and failure to inquire
further into Galambos's mental state a "cavalier dismissal of his
suicidality," and opined that it was "grossly negligent" and "a
failure to meet her professional responsibilities." The record
suggests that Williams did not discuss Galambos's medication
situation with him on this date. The information that he was not
on any medication was set forth in his file.
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Despite Williams's assessment, Galambos in fact tried to
commit suicide that night. On the evening of December 2, Galambos
was found in his cell with a self-inflicted stab wound in his neck,
made with a pencil that was found under his bed. The stab wound
narrowly missed his carotid artery. The plaintiff characterizes
this as a suicidal action and a sign of how very sick and in need
of care Galambos was. He was sent outside the jail to Brighton
First Care, an affiliated medical center, for appropriate medical
services. He was placed on suicide watch upon his December 3
return to CCJ. On December 3, Williams observed that Galambos was
talking to himself, laughing, and standing naked in front of the
window. He was not responsive to her attempts to engage him in
conversation. Williams placed a call to Dr. Corona regarding
Galambos's condition, and Dr. Corona recommended giving him a dose
of Abilify, which was done. The next day, Williams again observed
Galambos and thought that he was talking to someone who was not
there and did not appear to be thinking coherently.
On December 5 and 6, Galambos continued to regress. He
reported to Williams that he was hearing voices and that he felt
like someone had "stolen his brain." Dr. Corona observed that
Galambos was "floridly psychotic" when he examined him on December
6. Dr. Corona and Williams both observed Galambos standing on the
table in his cell, talking to the wall. The Facility Hot Book
indicates that on December 7 the water was turned off in Galambos's
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cell because he had been trying to fill the sink and inhale the
water. On December 8, Galambos's condition continued to worsen,
and he was unable to hold a conversation.
In the afternoon, Galambos did what is referred to at
several points in the record as a "swan dive": he stood naked on
top of the table in his cell, and while a staff member was trying
to talk him down, he jumped into the air and spun around to land on
his upper back and shoulders on the cement floor of the cell. The
staff members were concerned and immediately brought Galambos to
the medical unit to receive emergency attention. However, he was
not sent out to a hospital that day for treatment of his injuries.
He was badly bruised by the fall, and though the
diagnosis would not be confirmed until two days later when he was
sent out to a hospital following a different incident, he sustained
several broken ribs and a transverse process fracture. One of the
plaintiff's experts also opined that Galambos likely suffered a
concussion and had a serious head injury.
When Galambos was in the medical unit following this
incident, Director of Nursing Walsh performed a "'walk through'
assessment" of him, but did not document her observations.
Galambos was placed on suicide observation in a cell in the medical
unit, but was not admitted to the medical infirmary, where he would
have been seen by a doctor. Walsh could not recall Galambos
receiving any x-ray services in the medical unit either. Walsh
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asserts that she did not consider this incident to be an emergency
situation, and that she considered Galambos's jump from the table
"aberrant behavior" rather than a "serious suicide attempt."
Until this point, Williams said that she felt that CCJ
was capable of treating Galambos. It was only after the "swan
dive" incident that Williams felt that Galambos should be
transferred to Riverview, a psychiatric facility.3 Acting within
her authority, she then faxed the transfer requests for Galambos
and another inmate on the morning of December 9. She had not done
so for Galambos before and in particular had not done so after
Galambos stabbed himself in the neck with a pencil. Soon after
making this inquiry, she learned that Riverview did not have the
capacity to admit Galambos at that point and that he would be put
on the waiting list. A Riverview staff member suggested to
Williams that Spring Harbor, a private hospital, might be an
alternative placement. There is no evidence that Williams
attempted to follow up on the Spring Harbor option. Williams did
not contact Dr. Corona at this point, nor did anyone else.
Rather than being placed in some sort of outside medical
facility, Galambos remained in his cell, on suicide watch, in the
medical unit.
3
Dr. Grassian has opined that had Galambos been in a
psychiatric hospital, he would not have had a table or platform
from which he could have done a swan dive, and the walls would have
been padded.
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On December 10, Williams found Galambos lying on the
floor of his cell with blood on his face. He was not responsive to
her. A nurse treated his wounds, and Galambos told her that he
fell off his toilet and was suicidal. Williams placed a call to
the Maine Attorney General's Office to explore the possibility of
securing an expedited transfer to Riverview. Later that afternoon,
a correctional officer observed Galambos lurch forward and down and
after making no attempt to break his fall, hitting his nose and
face on the floor. This, in addition to his injuries from the
December 8 jump from the table, would have caused him significant
pain. Walsh spoke with Galambos and asked if she could give him
some medication. He responded, "yes, I'll take anything at this
point." Based on this consent, Walsh sought and received an order
for a heavy dose of emergency psychotropic medication to be
administered. In the view of the plaintiff's expert, Galambos was
overdosed in a dangerous manner, and that may have been a
contributing factor in his death.
To deal with Galambos's obviously out-of-control
behavior, several staff members, including Walsh and Health
Services Administrator North, decided that the use of restraints
was necessary. Galambos was put into a pro-restraint chair,
covered with a blanket to preserve his privacy, and was given this
heavy, emergency dose of medication before he was strapped in. At
this point, he was observed to be calm and cooperating. When he
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was strapped into the chair at approximately 2:40 PM, he began
yelling loudly. He was told that he would be released from the
restraint chair when he calmed down and stopped yelling. One of
the plaintiff's experts, Dr. Jagminas, opined that given Galambos's
injuries from the December 8 incident -- including broken ribs --
being strapped into a chair would have been very painful. About
ninety minutes later, after he had calmed down, he was released
from the restraint chair, and was released back to his cell in the
medical unit at about 4 PM.
Walsh believed the use of the restraint chair was
appropriate because Galambos "was in a crisis," consisting of "his
various actions of self-harm, but also . . . being completely
undressed, urinating, . . . and yelling." By contrast, the
plaintiff's experts believe the appropriate response was not
overmedication and restraint, but placement in a psychiatric
hospital. Dr. Grassian has opined that under the circumstances --
and given how bruised Galambos was from jumping off the table and
landing on his back and shoulders -- putting him in a restraint was
"very, very dangerous." Dr. Grassian also opined that the
emergency dose of medication given to Galambos that afternoon
overmedicated him in a dangerous manner.
By 6 PM that evening, after his release from the
restraint chair, Galambos was observed pacing and banging his head
off the wall in his cell. At about 6:10 PM, he was given an
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intramuscular injection of Ativan while officers restrained him.
The needle broke off the syringe as the medication was being
administered, so after the treating nurse obtained a new syringe,
Galambos received the full dose at about 6:20 PM. By 6:30 PM, he
was naked on the floor of his cell, had urinated on the floor, and
was largely incoherent. The treating nurse called Corizon's
medical director, Dr. Todd Tritch,4 to evaluate Galambos.
Dr. Tritch found contusions on the front of Galambos's
head with fresh blood, along with contusions on his right shoulder.
Dr. Tritch recommended Galambos be sent to the hospital ER at Maine
Medical Center (MMC) for a comprehensive assessment. The
responding emergency medical technicians that arrived to take
Galambos to the ER were told about Galambos's most recent,
presenting problems, but were not told about Galambos's somersault
from the table in his cell two days earlier. Walsh asserts that
there was no need to advise the medical center about that incident.
Galambos was admitted to MMC with fractures of the transverse
process and multiple rib fractures, and was kept overnight at the
hospital for observation.
On December 11, Williams, working with Galambos's
attorney, began the process of having Galambos civilly committed so
that he could be transferred to Riverview upon his release from the
4
Plaintiff has stipulated the dismissal of her claims
against Dr. Tritch, and we do not discuss them here.
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emergency room. However, Riverview required intake to take place
during the facility's regular hours, and so Galambos could not go
directly from MMC to Riverview. He was discharged back to CCJ at
around 5 PM on December 11. Upon his return to CCJ, Galambos was
housed in a cell under Suicide Watch Observation. That cell was
under "one-on-one" watch, which required a CCJ correctional officer
to keep constant visual contact on Galambos at all times. That
evening, Galambos complained to the correctional officers that he
was in pain, and he was given ibuprofen. He then shoved the paper
medication cup into his nostril, where it was removed by the nurse
on duty with tweezers. Galambos was then given a dose of Haldol
"for a psychiatric or behavioral emergency."
At approximately 7:20 in the morning on December 12, a
correctional officer observed Galambos get up and then fall face
down on the floor, and then get up and fall again, striking his
head against the wall. When the staff members entered his cell to
assist him, they discovered that Galambos was not responsive and
had no pulse. He was pronounced dead soon after.
The cause of death was later determined to be acute
pulmonary thromboemboli, caused by deep leg vein thrombosis, caused
in turn by self-inflicted blunt force trauma. According to two
physicians testifying as experts on behalf of the plaintiff, the
heavy dose of emergency medication on December 10 (which rendered
Galambos nearly comatose) and the use of the pro-restraint chair
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following the injuries Galambos sustained when he jumped off the
table both significantly increased the risk of developing
thrombosis and were likely contributing factors in causing
Galambos's death.
C. Procedural History
On January 9, 2012, Cady filed a Third Amended Complaint
in the District of Maine raising a claim under 42 U.S.C. § 1983
that defendants Trueworthy, Walsh, and Williams5 were deliberately
indifferent to Galambos's serious medical needs.6 On October 24,
Trueworthy, Walsh, and Williams each filed a motion for summary
judgment, arguing that their performance did not fall so low as to
constitute deliberate indifference and that they were entitled to
qualified immunity.
On March 22, 2013, the magistrate judge issued a
thorough, 86-page Recommended Decision denying the defendants'
motions for summary judgment. The recommendation expressed doubt
5
Cady also named Cumberland County and several county
employees as defendants. The district judge granted all of the
county defendants' motions for summary judgment, and they are not
involved in this appeal.
Corizon, Inc. was also a named defendant, and the district
court denied its motion for summary judgment. The company has not
appealed that decision; the only claims before us now are the ones
against defendants Trueworthy, Walsh, and Williams.
6
Cady also brought a claim under the analogous Maine Civil
Rights Act, Me. Rev. Stat. tit. 5, § 4682. The parties do not
dispute that the two claims are analyzed co-extensively. See
Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) ("The disposition
of a 42 U.S.C. § 1983 claim also controls a claim under the [Maine
Civil Rights Act].").
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that these defendants, as employees of a private corporation
performing state functions, would be entitled to qualified immunity
under Richardson v. McKnight, 521 U.S. 299 (1997), but in light of
the relative uncertainty surrounding that question of law, the
magistrate judge included an alternative recommendation, in which
she assumed that qualified immunity would be available to these
defendants.
Under that alternative recommendation, the magistrate
judge concluded that as to each of the three defendants, there
remained genuine issues of fact in dispute as to whether their acts
and omissions constituted deliberate indifference. See Coscia v.
Town of Pembroke, 659 F.3d 37, 39 (1st Cir. 2011) ("A state and its
subdivisions are under a substantive obligation imposed by the Due
Process Clause of the Fourteenth Amendment to refrain at least from
treating a pretrial detainee with deliberate indifference to a
substantial risk of serious harm to health."). On that basis, the
magistrate judge recommended denying the defendants' motions for
summary judgment.
As to each defendant, the magistrate judge concluded that
even if they were not categorically disqualified from claiming
qualified immunity, the record was sufficient for a "reasonable
finder of fact" to conclude "based on the evidence and permissible
inferences therefrom" that each defendant "knew or should have
known that Galambos's psychotic condition reflected an extremely
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serious medical need that, if left untreated, would generate a
substantial risk of serious harm to his health and safety." Cady
v. Cumberland Cnty. Jail, No. 2:10-cv-00512, 2013 WL 3967486, at
*26, *28, *30 (D. Me. Aug. 1, 2013); cf. Coscia, 659 F.3d at 39
(noting that for pretrial detainees, proof of deliberate
indifference "requires a showing of greater culpability than
negligence but less than a purpose to do harm" and may "consist of
showing a conscious failure to provide medical services where they
would be reasonably appropriate").
As to Trueworthy, the magistrate judge concluded that a
jury could find that the decision to order a stop to the offering
of prescribed medications on December 1 was an act of deliberate
indifference that may have been a substantial factor in bringing
about Galambos's rapid decompensation in the days that followed.
The magistrate judge also noted that a reasonable juror could
consider the absence of counseling to be further evidence of
deliberately indifferent medical care; Trueworthy contends that
Corizon policies called for counseling at the December 1 juncture,
but also contends "that there is no evidence that counseling did
not occur, even if he did not do it himself."
The magistrate judge found that based on the record, a
reasonable finder of fact could have concluded the following as to
Walsh: she knew about Galambos's rapid regression in December 2008;
she was directly involved in his care based on her triage
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responsibilities; the December 8 jump from the table deserved an
emergency response by health practitioners or, at the least,
demonstrated a need to change the permissive approach to Galambos's
refusal to take his medication; the failure to send him out to the
ER on December 8 was likely related to the fact that he had been
sent out on December 2 after the pencil-stab incident; the December
10 incident was a foreseeable consequence of a deliberately
indifferent approach to medical care; the use of the restraint
chair followed from a deliberately indifferent approach to
Galambos's care; and that these events involved "supervisory
acquiescence and participation directly related to the
deprivation." Cady, 2013 WL 3967486, at *28.
Finally, as to Williams, the magistrate judge recognized
that though Williams had taken affirmative steps, including an
unsuccessful December 9 effort at having Galambos transferred to
Riverview, the total picture, the decisions she made, and the
timing of her actions could support a finding of deliberate
indifference in light of Galambos's ever-escalating psychosis and
attempts at suicide:
Although Williams did something or assessed
something at each new stage of Galambos's
slide into psychosis, it does not follow that
she is insulated from liability on that basis.
Nor is it appropriate at summary judgment for
Williams to expect the court to view the
[December 2] pencil stab incident as
superficial or a mere gesture, let alone to
color the entire course of events based on an
evaluation of the significance of that one
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incident. That event, which a reasonable
finder of fact could regard as a serious
suicide attempt, occurred more than a week
before Galambos's death and the change in
medication recommendation did not change the
fact that Galambos continued to reject
medication and continued to slide deeper into
psychosis. While it is true that Williams is
not responsible for Galambos's refusal to take
his medications or for the existence of a
table in his cell, what is of concern here is
the nature of her response in light of these
and other facts known to her at the time. One
possible finding on this record is that
Williams's acts and omissions demonstrated
deliberate indifference to serious medical
needs and a substantial risk of serious harm.
Id. at *30 (record citations omitted) (emphasis added).
After making a de novo determination of all matters
addressed by the magistrate judge, the district court adopted the
Recommended Decision in full. In particular, the district court
agreed with the magistrate judge's "prudent decision to assume for
the sake of argument that the Corizon defendants are entitled to
qualified immunity," and agreed that even if qualified immunity
were available as a defense, it would fail. Id. at *1. The court
denied the defendants' motions for summary judgment, leaving the
deliberate indifference claims for trial. This appeal followed.
II.
Ordinarily, we hear appeals only from final orders and
decisions. See 28 U.S.C. § 1291; Whitfield v. Municipality of
Fajardo, 564 F.3d 40, 45 (1st Cir. 2009). Certain collateral
orders are essentially "final decisions" and are therefore
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immediately appealable under 28 U.S.C. § 1291. See Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). To fit
within this collateral order doctrine, an order must "[1]
conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the action
[the 'separability requirement'], and [3] be effectively
unreviewable on appeal from a final judgment." P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)
(quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978))
(internal quotation mark omitted).
Because the "qualified immunity defense is, in part, an
immunity from trial as well as an immunity from damage awards," a
pre-trial denial of the defense may, in some cases, be immediately
appealable. Stella v. Kelley, 63 F.3d 71, 73 (1st Cir. 1995); see
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). In Johnson v.
Jones, 515 U.S. 304 (1995), the Supreme Court limited the
circumstances in which a denial of qualified immunity is reviewable
on an interlocutory basis. The Johnson Court held that a district
court's conclusion that a summary judgment record in a qualified
immunity case raised a genuine issue of fact as to whether the
defendants were involved in the alleged events was not immediately
appealable under the collateral order doctrine. 515 U.S. 313-18;
see Plumhoff v. Rickard, ___ S. Ct. ___, 2014 WL 2178335, at *5
(2014).
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Johnson relied in part on the "separability" requirement
of the collateral order doctrine. The Court reasoned:
Where . . . a defendant simply wants to appeal
a district court's determination that the
evidence is sufficient to permit a particular
finding of fact after trial, it will often
prove difficult to find any such "separate"
question -- one that is significantly
different from the fact-related legal issues
that likely underlie the plaintiff's claim on
the merits.
Id. at 314. Questions of "evidentiary sufficiency" -- i.e.,
whether the record is capable of supporting a particular factual
finding, rather than a particular legal conclusion -- "are not
sufficiently distinct to warrant interlocutory appeal." Mlodzinski
v. Lewis, 648 F.3d 24, 27 (1st Cir. 2011); see also Stella, 63 F.3d
at 75 (holding that Johnson "permits immediate review of a
qualified immunity claim when the issue appealed concerns not what
facts the litigants might (or might not) be able to prove, but,
rather, whether a given set of facts shows a violation of a
federally protected right"). If appellate courts were to overlook
this separability problem in the context of fact-based qualified
immunity appeals and accept jurisdiction, those courts "may well be
faced with approximately the same factual issue again, after
trial," and interlocutory review would prove an unwise use of
appellate resources. Johnson, 515 U.S. at 316-17; see also Tang v.
State of R.I., Dept. of Elderly Affairs, 120 F.3d 325, 326 (1st
Cir. 1997) ("Johnson's limitation on immediate review rests
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primarily on a prudential desire to avoid bringing evidentiary
disputes to the appeals court except as part of a final
judgment.").
In applying Johnson, we have said that "a summary
judgment order which determines that the pretrial record sets forth
a genuine issue of fact, as distinguished from an order that
determines whether certain given facts demonstrate, under clearly
established law, a violation of some federally protected right, is
not reviewable on demand," at least so long as that perception is
not infected by an error of law. Stella, 63 F.3d at 74 (emphasis
added). It follows that a "district court's pretrial rejection of
a qualified immunity defense is not immediately appealable to the
extent that it turns on either an issue of fact or an issue
perceived by the trial court to be an issue of fact." Id. (citing
Johnson, 515 U.S. at 318-20) (emphasis added).
So too here. The magistrate judge's opinion -- adopted
in full by the district court -- denied summary judgment on the
basis of the conclusion that there are genuine issues of fact and
inference on the deliberate indifference claims against these three
defendants. The opinion includes separate determinations as to
each defendant, makes clear what portions of the record support
those determinations, and outlines at length the permissible
inferences that the magistrate judge believed a reasonable juror
might draw from the evidence. Cf. Tang, 120 F.3d at 326-27
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(holding that Johnson precluded interlocutory appeal even where the
district court did not identify "specific factual issues or explain
its ruling" and simply denied defendants' motion for summary
judgment because it agreed that "the vast majority of the facts are
in dispute").
Though the defendants urge us to view this appeal as
presenting a pure issue of law (whether they are entitled to
qualified immunity individually as a matter of law on the facts),
they nowhere develop the argument that, even drawing all the
inferences as the district court concluded a jury permissibly
could, they are entitled to judgment as a matter of law.7 Cf.
Carter v. State of Rhode Island, 68 F.3d 9, 12 (1st Cir. 1995)
(holding that Johnson also applies to bar interlocutory review of
district court's conclusions as to intent because resolving matters
of intent "based on evidentiary proffers at summary judgment
entails a quintessential factual assessment"); Stella, 63 F.3d at
75 ("[W]e lack the power to inquire into, or address, . . . the
fact-based question of what the evidence does (or does not) show
7
The "purely legal" question of whether the qualified
immunity defense is even available to Trueworthy, Walsh, and
Williams is not necessarily dispositive here. Even if we were to
consider and decide the question of whether they are entitled to
raise a qualified immunity defense, that decision would not, on its
own, compel reversal of the denial of summary judgment in the
defendants' favor, as the district court held that even if the
defense were available, it fails at the summary judgment stage
here. See Mlodzinski, 648 F.3d at 27-28 (noting that an interest
in avoiding advisory opinions was one factor motivating Johnson's
core holding).
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concerning whether the [defendants'] actions violated the asserted
right . . . .").
The defendants are correct that we have "assumed
interlocutory appellate jurisdiction where defendants have accepted
as true all facts and inferences proffered by plaintiffs, and
[where] defendants argue that even on plaintiffs' best case, they
are entitled to immunity." Mlodzinski, 648 F.3d at 28. And we
may, consistent with Johnson, exercise review even where the
defendants accept the plaintiffs' version only for the sake of
argument. See 515 U.S. at 318; see also Berthiaume v. Caron, 142
F.3d 12, 16 (1st Cir. 1998) ("[A] defendant who concedes arguendo
the facts found to be disputed is not barred by Johnson from taking
an interlocutory appeal on a legal claim that the defendant is
nevertheless entitled to qualified immunity on facts not
controverted."). However, that formulation does not confer
jurisdiction in this case. The defendants' briefing before us
plainly disputes both the facts identified by the magistrate judge
as well as the inferences proffered by the plaintiff and deemed
reasonable by the magistrate judge.
With respect to each individual defendant, the
defendants' briefing objects to the way the district court
construed the facts and argues that the district court and
magistrate judge erred in their conclusions as to what a reasonable
juror could find. Those fact-based arguments are inextricably
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intertwined with whatever "purely legal" contentions are contained
in the defendants' briefs: were we to attempt to separate the legal
from the factual in order to address only those arguments over
which we might permissibly exercise jurisdiction, we simply would
not know where to begin. Cf. Johnson, 515 U.S. at 318. It is not
merely that the Statement of Facts in the defendants' brief, as in
most briefs, shades the district court's determinations in a
favorable manner. Such a tactic would, on its own, be insufficient
to defeat jurisdiction. Rather, the defendants' brief repeatedly
attacks the district court's factual conclusions, making no effort
to separate fact-based arguments from "purely legal" ones.
For example, in its three-page section on Walsh's
liability, the brief characterizes the district court's
determinations as "unsupported in the record" and "conclusory," and
argues that "[c]ontrary to the District Court's conclusion, the
failure to send Galambos for emergency room care was based on the
judgment of the nursing staff at the time that Galambos did not
have any injury requiring hospital treatment." As the defendants
acknowledge, this assertion runs directly counter to the district
court's determination that
[t]he record is sufficient to permit a
reasonable finder of fact to conclude
. . . that the failure to send Galambos out on
December 8 likely related to the fact that he
had been sent out on December 2 for the pencil
wound and Walsh's insistence that loss of a
nursing license was no good excuse for a send-
out.
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Cady, 2013 WL 3967486, at *28. Such a fact-based challenge would,
of course, not defeat jurisdiction if it were advanced in the
alternative. But nowhere in the defendants' brief does there
appear any developed argument that the defendants are entitled to
summary judgment even if the district court's conclusions about the
record were correct.
Other such fact-based challenges abound. Though the
district court plainly determined that a reasonable factfinder
could conclude that Williams knew of the risk to Galambos after the
December 2 pencil-stabbing incident, the defendants' brief asserts
that "[c]ontrary to the District Court's conclusion, an emergency
transfer to a psychiatric facility was not, in . . . Williams'
judgment, required until after the table jump." There is no
argument that Williams was not liable even if, as the district
court concluded, she perceived such a risk. Similarly, though the
district court concluded that a reasonable jury could find that
Trueworthy failed to address any issues with Galambos prior to
discontinuing his medications, the defendants' brief characterizes
that determination as "conclusory and unsupportable on the
undisputed record," but nowhere argues that it is insufficient as
a legal matter to support liability. That issue, like the others
we mention (and like many others raised in the defendants' brief)
represents "the very type of factual dispute that Johnson holds to
be premature so far as appellate review is concerned." Tang, 120
-29-
F.3d at 326. Because the defendants' brief so clearly does not
"accept[] as true all facts and inferences proffered" by the
plaintiff, Mlodzinski, 648 F.3d at 28, we do not credit the
defendants' assertion, in response to an earlier Order to Show
Cause from this court, that they "accept the factual judgments made
below."
Finally, the defendants' objection to the district
court's analysis of whether the constitutional rights in play were
"clearly established" also does not transform this appeal into one
that turns on a pure issue of law. See Stella, 63 F.3d at 75
(concluding under Johnson that we can "examine the existence vel
non of a constitutionally protected right" but not the fact-based
question of what the evidence does or does not show). The
defendants do not separate their qualified immunity arguments from
their merits-based ones, and neither set of arguments concedes,
even if only for the sake of argument, that the district court was
correct in its determinations regarding what inferences were
permissible on the summary judgment record. Because the defendants
fail to pose even the qualified immunity question in a manner that
would permit us to conclude that "the answer to it does not depend
upon whose account of the facts is correct," see Stella, 63 F.3d at
75, we lack the authority to provide an answer.
This case fits squarely within Johnson, and we do not
have jurisdiction to review it at this stage.
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III.
This appeal is dismissed for want of appellate
jurisdiction. So ordered.
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