Niemic v. Galas , 286 F. App'x 738 ( 2008 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1763
KEITH NIEMIC,
Plaintiff, Appellant,
v.
STAN GALAS, ET AL.,
Defendants, Appellees,
_____________________
DAVID NOLAN, ET AL.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lipez, Circuit Judge.
Keith Niemic on brief pro se.
James A. Bello, Lisa R. Wichter, and Morrison Mahoney LLP on
brief for appellees.
July 28, 2008
Per Curiam. Appellant Keith Niemic, a Massachusetts
inmate, filed this civil-rights action complaining of inadequate
medical care, denial of court access, and other constitutional and
state-law violations. The twenty named defendants consist of
twelve "corrections defendants," i.e., employees of the Department
of Corrections, and eight "medical defendants," i.e., employees of
UMass Correctional Health ("UMCH"), which is the entity engaged to
provide medical care to inmates. When the medical defendants moved
for summary judgment, Niemic sought a continuance under Fed. R.
Civ. P. 56(f), explaining that he lacked information needed to file
an opposition. The district court denied that request and granted
summary judgment. With the claims against the corrections
defendants still pending, the court then agreed, at the medical
defendants' behest, to enter a separate and final judgment under
Fed. R. Civ. P. 54(b). Niemic now appeals from this ruling.
Having satisfied ourselves that the case is properly before us, we
affirm.
Although neither party has questioned the Rule 54(b)
determination, "we are duty bound to take it up sua sponte" since
the issue "implicates the scope of our appellate jurisdiction."
Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1st Cir.
1988). Rule 54(b) permits a district court, in cases involving
multiple claims or parties, to direct entry of a final judgment "as
to one or more, but fewer than all, claims or parties" if it
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"expressly determines that there is no just reason for delay."
Review of such a certification comprises two steps. We first ask
"whether the judgment has the requisite aspects of finality." Id.The answer to that question is not in doubt here, since the
judgment dismissed all claims against the medical defendants. We
then scrutinize the determination that there is no just reason for
delay. In doing so, we examine "the sufficiency of the district
court's assessments of (1) any interrelationship or overlap among
the various legal and factual issues involved in the dismissed and
the pending claims, and (2) any equities and efficiencies
implicated by the requested piecemeal review." Credit Francais
Int'l, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 706 (1st Cir. 1996).
At our request, the district court provided a written
explanation for its Rule 54(b) determination. It there cited the
need to protect the medical defendants from "unnecessary cost and
apprehension," noting that the case against the other defendants
would likely "continue indefinitely" since they had not yet filed
dispositive motions. Absent from this discussion, however, was any
consideration of the interrelationship between the dismissed and
pending claims. While this omission reduces the degree of
deference owed to the court's explanation, see, e.g., Spiegel, 843
F.2d at 43-44, our independent review reveals only minimal overlap
between the two sets of claims. As narrowed on appeal, the
accusations against the medical defendants are largely confined to
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claims under the Eighth Amendment--to the effect that the treatment
of Niemic's migraine headaches and hepatitis C was so deficient as
to amount to deliberate indifference. These claims carry a
significant potential for overlap with the allegations against only
one of the corrections defendants: Susan Martin, the department's
director of health services. Of the charges against her, the most
noteworthy in this regard is that she, along with several other
supervisors, approved flawed medical decisions concerning the
treatment of Niemic's migraines; such conduct allegedly contributed
to the persistence of his migraine pain and thereby played a role
in the cessation of his hepatitis C treatment. Yet in the
pertinent count of the complaint, the only specific reference to
these events is a charge, brought against Martin and six other
defendants, focusing on "the delay and denial of access to ... a
neurologist."
We find that the claims against Martin are not so
intertwined with the adjudicated claims as to invalidate the Rule
54(b) certification. It is unlikely that this court will be
"confronted in successive appeals with common issues of law or
fact, to the detriment of judicial efficiency." Kersey v. Dennison
Mfg. Co., 3 F.3d 482, 487 (1st Cir. 1993). Moreover, the judgment
here jettisoned certain parties, rather than certain claims, from
the case. Cf. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
579-81 (1st Cir. 1994) (upholding certification in former context);
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Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39-40 (1st Cir.
1991) (same). And while it is difficult to say that there is a
"pressing, exceptional need for immediate intervention" here, id.
at 45, the district court's concern about "unnecessary cost and
apprehension" is a permissible consideration, see, e.g., McKibben
v. Chubb, 840 F.2d 1525, 1528 n.5 (10th Cir. 1988). Although we
find this a close case, we allow the Rule 54(b) determination to
stand.
The merits of the appeal do not require extended
analysis. On the basis of the extant record, an award of summary
judgment for the medical defendants was plainly justified. Niemic
advances a two-pronged Eighth Amendment challenge. First, he
contends that defendants inadequately treated his migraines and
thereby effectively caused him to terminate his hepatitis C
treatment (since the side-effects thereof aggravated the migraine
pain). Yet it is undisputed that, over a span of two and one-half
years, some 21 different medications were prescribed in an effort
to address Niemic's headaches. Far from acting in "wanton
disregard" of his rights, DesRosiers v. Moran, 949 F.2d 15, 18 (1st
Cir. 1991), the medical defendants were "responsive to [Niemic's]
complaints, expended substantial resources trying to get to the
root of his problem, and adopted other measures in an effort to
alleviate his discomfort," Feeney v. Corr. Med. Servs., Inc., 464
F.3d 158, 162-63 (1st Cir. 2006), cert. denied, 128 S. Ct. 105-5-
(2007). Niemic's chief remonstrance appears to be directed at
defendants' refusal to continue him on a narcotic with which he was
initially treated. Yet "disagreement as to the appropriate course
of treatment ... [is] insufficient to prove a constitutional
violation." Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007).
Second, Niemic questions the decision to discontinue the
hepatitis C treatment because of his suspected drug use. The
record establishes that defendants' "common practice" is to require
that patients abstain from the use of illegal substances for one
year prior to receiving such treatment. Niemic provides no basis
to question the medical justification for this practice; indeed,
the (Mason) affidavit on which he relies supports such an approach.
Niemic's cursory challenge to the finding of substance
abuse also falls short, especially since the urinalysis lab report
confirmed the presence of cocaine and morphine. On appeal, Niemic
relies on a 1987 state court document addressing urinalysis
testing, but he did not do so below and, in any event, has not
explained its relevance.
Niemic's principal objection to the summary judgment
motion in the district court was based not on the merits but,
rather, on Fed. R. Civ. P. 56(f)--the "procedural escape hatch for
a party who genuinely requires additional time to marshal facts
essential to justify [his] opposition." Paterson-Leitch Co. v.
Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988)
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(internal quotation marks omitted). On appeal, however, he has
offered no sustained argumentation in support of this issue and,
thus, has forfeited it. See, e.g., United States v. Jiminez, 498
F.3d 82, 88 (1st Cir. 2007).
Even were we to consider the matter, Niemic would fall
short. A party seeking to invoke Rule 56(f) must establish
(i) good cause for his inability to have
discovered or marshalled the necessary facts
earlier in the proceedings; (ii) a plausible
basis for believing that additional facts
probably exist and can be retrieved within a
reasonable time; and (iii) an explanation of
how those facts, if collected, will suffice to
defeat the pending summary judgment motion.
Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1st Cir. 2007).
Also required is a demonstration of "due diligence both in pursuing
discovery before the summary judgment initiative surfaces and in
pursuing an extension of time thereafter." Resolution Trust Corp.
v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). As
Niemic has failed to satisfy several of these criteria, the denial
of Rule 56(f) relief cannot be deemed an abuse of discretion. We
explain briefly.
Niemic cited three justifications for a postponement:
difficulty in accessing his legal papers; delayed access to medical
records; and a "ransacking" of his prison cell. The first, he
explained, was mainly due to his movement between prisons. As to
the second, Niemic complained generally about requests for medical
records or copies thereof being denied. And the prison-cell
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incident, which occurred in his absence shortly after the summary
judgment motion arrived, allegedly resulted in his papers being
strewn about and several discovery requests going missing.
These reasons prove inadequate. For one thing, Niemic
acknowledged gaining access to all of his legal materials two and
one-half months before the summary judgment motion was filed. For
another, he not only failed to describe what medical records were
allegedly withheld from him but, more important, failed to document
that any actually were withheld. The summary judgment motion
itself was accompanied by over 300 pages of medical records, which
Niemic has never described as being incomplete. As to the alleged
ransacking, Niemic did not explain why any missing discovery
requests could not have been promptly redrafted and served.
Moreover, the grievance he filed in connection with that incident
only complained of missing jewelry, not missing papers.
More generally, Niemic never explained in his Rule 56(f)
filings what additional facts likely existed or how they would be
material. Nor did he attempt to do so thereafter. It is
noteworthy that, in the wake of the summary judgment ruling, he
asserted several times that he finally had gained complete access
"to his own (long sought) medical and legal records" and that,
based thereon, a genuine issue of material fact "could easily be
shown." But he never endeavored to make such a showing, either
below or on appeal.
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In a final argument, Niemic faults the district court for
not advising him of the Rule 56 requirements, particularly "the
necessity of filing affidavits." Yet a court is under no duty to
tutor a pro se litigant. Moreover, Niemic's professed ignorance is
belied by the record. Approximately six months before the summary
judgment motion was filed (and twelve months before it was
decided), he submitted a document citing Rule 56(f) and stating
that, because of incomplete discovery, he was not then in a
position to "submit[] the necessary affidavits or other evidence to
oppose" a summary judgment motion.
Affirmed.
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