Mosher Ex Rel. Estate of Mosher v. Nelson , 589 F.3d 488 ( 2009 )

United States Court of Appeals
For the First Circuit
No. 09-1636
WILLIAM MOSHER, INDIVIDUALLY AND AS ADMINISTRATOR
OF THE ESTATE OF WILLIAM MOSHER, JR.; CAROLYN MOSHER,
BRANDON MOSHER; KACIE MOSHER; KORTNEY MOSHER,
Plaintiffs, Appellants,
v.
KENNETH NELSON, INDIVIDUALLY AND AS SUPERINTENDENT
OF BRIDGEWATER STATE HOSPITAL; ELIZABETH CHILDS,
INDIVIDUALLY AND AS COMMISSIONER OF THE COMMONWEALTH OF
MASSACHUSETTS DEPARTMENT OF MENTAL HEALTH; KATHLEEN M. DENNEHY,
INDIVIDUALLY AND AS COMMISSIONER OF THE COMMONWEALTH OF
MASSACHUSETTS DEPARTMENT OF CORRECTION, BRIDGEWATER STATE
HOSPITAL; THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF MENTAL
HEALTH; COMMISSIONER OF THE COMMONWEALTH OF MASSACHUSETTS; THE
COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF CORRECTIONS;
UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl, Circuit Judge,
and DiClerico,* District Judge.
*
Of the District of New Hampshire, sitting by designation.
Jerrold N. Arnowitz, with whom Arnowitz, Goldberg, and Mann,
LLC, was on brief for appellees.
Daniel G. Cromack, Assistant Attorney General, with whom
Martha Coakley, Attorney General, and Ronald F. Kehoe, Assistant
Attorney General, were on brief for appellees.
December 17, 2009
DICLERICO, District Judge. Following the death of their
son at Bridgewater State Hospital ("BSH"), William and Carolyn
Mosher ("the Moshers") brought a civil rights action, with related
state law claims, against Kenneth Nelson, Superintendent of BSH;
Kathleen Dennehy, Commissioner of the Department of Corrections;
and Elizabeth Childs, Commissioner of the Department of Mental
Health.1 The district court granted summary judgment for the
defendants. The Moshers appeal. For the reasons that follow, we
affirm the judgment of the district court.
I.
BSH is a facility, operated by the Massachusetts
Department of Corrections, that serves as both a prison and a
mental hospital. Most of the patients at BSH have histories of
violence in addition to mental illness. Kenneth Nelson served as
Superintendent of BSH from 1994 until April of 2007. As
Commissioner of the Department of Corrections, Kathleen Dennehy was
the chief executive officer of the department, but she did not have
any direct supervisory role at BSH. Nelson, instead, reported to
an assistant deputy commissioner in the Department of Corrections.
Elizabeth Childs, who was Commissioner of the Department of Mental
1
Other claims and parties were dismissed from the case, and
these dismissals have not been appealed.
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Health, had no role at BSH except to approve the appointment of a
medical director at that facility.2
The Moshers’ son, William Mosher, Jr., was a pretrial
detainee at the Middlesex County jail in July of 2004, when he was
sent to BSH for a thirty-day observation period. After he
assaulted a nurse, Mosher was held in the Intensive Treatment Unit
at BSH until he was moved to Max 2, one of the maximum security
units. His observation period was extended from thirty days to six
months.
In 2004, Max 2 was located in a secure stand-alone
building that included individual patient rooms and common areas.
Patients in Max 2 were not allowed to stay in their rooms during
the day, except during patient count, because the rooms could
shield patients from the observation of the staff, leading to a
concern about suicide. An exception to that rule was a long-
standing practice that allowed patients to remain in their rooms
and visit in other patients’ rooms for a short period from the end
of the morning count, at approximately 11:15 a.m., until lunch. On
August 28, 2004, during the period between the end of the morning
count and lunch, William Mosher, Jr. went into the room of his
neighbor, Bradley Burns. While Mosher was there, Burns strangled
him to death with a tee shirt. No one previously had been killed
2
The Moshers do not appeal summary judgment that was granted
on their claims against Childs.
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at BSH, and no prior violent incidents had been reported to have
occurred during the visiting period between the end of morning
count and lunch. After Mosher’s death, BSH ended the visiting
practice. At the time Burns killed Mosher, Nelson did not know who
Burns was, although he was aware of Mosher because of his prior
attack on a nurse.
William and Carolyn Mosher brought claims under 42 U.S.C.
§ 1983 against the defendants in their individual capacities,
alleging that the defendants’ conduct constituted cruel and unusual
punishment of their son, resulting in his death, and that the
defendants conspired to perpetuate the challenged conditions of
confinement. The Moshers also alleged conspiracies to deprive
their son of constitutional rights under 42 U.S.C. § 1985 and 42
U.S.C. § 1986. They further alleged state law claims for damages
against the defendants in their official capacities. The district
court granted the defendants’ motion for summary judgment,
concluding that the evidence was insufficient to prove the Moshers’
constitutional claims, that the defendants were entitled to
qualified immunity on the constitutional claims, and that the state
law claims were barred by the Eleventh Amendment. The Moshers
appeal the summary judgment decision.
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II.
On appeal, the court reviews the district court’s
decision granting summary judgment under the de novo standard.
Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).
Summary judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(c). The party seeking summary judgment must first
demonstrate the absence of a genuine issue of material fact in the
record. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A party opposing a properly supported motion for summary judgment
must present competent evidence of record that shows a genuine
issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). All reasonable inferences and all credibility
issues are resolved in favor of the nonmoving party. See id. at
255.
III.
The Moshers argue that summary judgment was not
appropriate because a factual dispute exists as to whether Nelson
knew of and disregarded the substantial danger to patients in Max
2 during the morning visiting period and whether Dennehy ignored
complaints about insufficient staffing and security at BSH. The
Moshers also argue that Nelson and Dennehy were not entitled to
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qualified immunity and that Eleventh Amendment immunity does not
apply because their state law claims could be construed to arise
under Title II of the Americans with Disabilities Act. The
defendants argue in support of the district court’s decision on the
civil rights claims and the application of the Eleventh Amendment
to the Moshers’ state law claims. We begin with a consideration of
qualified immunity, which resolves the Moshers’ civil rights
claims.
A. Qualified Immunity
"Qualified immunity is a judge-made construct that
broadly protects public officials from the threat of litigation
arising out of their performance of discretionary functions."
Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir. 2009). The qualified
immunity analysis generally follows a two-step process of deciding
"(1) whether the facts alleged or shown by the plaintiff make out
a violation of a constitutional right; and (2) if so, whether the
right was 'clearly established' at the time of the defendant’s
alleged violation." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st
Cir. 2009). Recently, the Supreme Court gave courts discretion to
address the "clearly established" step without first determining
whether a constitutional right had been violated. Pearson v.
Callahan, ___ U.S. ___, 129 S. Ct. 808, 818-19 (2009). In the
exercise of our discretion, we will use that procedure in this
case.
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The "clearly established" step is itself composed of two
parts, which require the court to decide (1) whether "the contours
of the right [were] sufficiently clear that a reasonable official
would understand that what he is doing violates that right," and
(2) whether in the specific context of the case, "a reasonable
defendant would have understood that his conduct violated the
plaintiffs’ constitutional rights." Maldonado, 568 F.3d at 269(internal quotation marks omitted). The first part addresses the
status of the law at the time of the event in question, focusing on
the clarity of the standard with respect to the asserted
constitutional right. Id. The second part addresses the specific
factual context of the case to determine whether a reasonable
official in the defendant’s place would have understood that his
conduct violated the asserted constitutional right. Id. To be
liable, an official must be on notice that his conduct violates
established law. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
1. Status of the Law
Clearly established law does not depend on identical
circumstances repeating themselves. Instead, notable factual
differences may exist between prior cases and the circumstances at
hand as long as the state of the law at the time gave the defendant
"fair warning" that his action or inaction was unconstitutional.
Id.; accord Safford Unified Sch. Dist. No. 1 v. Redding, ___ U.S.
___, 129 S. Ct. 2633, 2643 (2009). In an area of the law that is
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continuing to evolve, there will be a range extending from an
established core to outer boundaries where there is not clearly
established law. See DeMayo v. Nugent, 517 F.3d 11, 18 (1st Cir.
2008). "The law is considered clearly established either if courts
have previously ruled that materially similar conduct was
unconstitutional, or if a general constitutional rule already
identified in the decisional law applies with obvious clarity to
the specific conduct at issue." Guillemard-Ginorio v. Contreras-
Gomez, 585 F.3d 508, 527 (1st Cir. 2009) (internal quotation marks
omitted).
The Supreme Court has established a general
constitutional standard that "[a] prison official’s 'deliberate
indifference' to a substantial risk of serious harm to an inmate
violates the Eighth Amendment."3 Farmer v. Brennan, 511 U.S. 825,
828 (1994); accord Calderón-Ortiz v. LaBoy-Alvarado, 300 F.3d 60,
63-64 (1st Cir. 2002) ("An inmate may sue a correctional facility
under the Eighth Amendment for failure to afford adequate
protection to inmates from attack by other inmates."). Prison
officials have a constitutional duty "not to be deliberately
indifferent to the risk to prisoners of violence at the hands of
other prisoners." Burrell v. Hampshire County, 307 F.3d 1, 7 (1st
3
"Pretrial detainees are protected under the Fourteenth
Amendment Due Process Clause rather than the Eighth Amendment;
however, the standard to be applied is the same as that used in
Eighth Amendment cases." Burrell, 307 F.3d at 7.
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Cir. 2002). Therefore, in August of 2004, when the events giving
rise to this case occurred, the law was clearly established that a
detainee had a constitutional right not to be punished until
convicted of the charges against him and that a corrections
official would violate the Fourteenth Amendment if he were
deliberately indifferent to a substantial risk of serious harm to
a detainee, including violence inflicted by one detainee upon
another detainee.
In 2004, deliberate indifference, in the constitutional
context, meant that a "prison official subjectively 'must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference.'" Id. at 8 (quoting Farmer, 511 U.S. at 837). That
standard, which has remained in effect up to the present time,
requires "something less than acts or omissions for the very
purpose of causing harm or with knowledge that harm will result"
but "something more than mere negligence." Farmer, 511 U.S. at
835. After the standard was announced in Farmer and before August
of 2004, we addressed the level of culpability required to meet the
deliberate indifference standard in the context of prisoners
inflicting violence on other prisoners.
We considered First Circuit precedent addressing
deliberate indifference to inmate violence in Burrell. 307 F.3d at
9. There, we noted that we vacated summary judgment in the
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defendants’ favor in Giroux v. Somerset County, 178 F.3d 28 (1st
Cir. 1999), where "jail officials inexplicably introduced a person
posing a known danger, another inmate who had repeatedly threatened
Giroux, into the holding cell where Giroux was being kept."
Burrell, 307 F.3d at 9. The jail officials took that action
although they appeared to know that their own actions "would tar
Giroux as an informant and thereby increase the risk to him." Id.In Calderón-Ortiz, we concluded that the plaintiff sufficiently
alleged deliberate indifference to avoid dismissal where inmates
were not classified, leaving more dangerous inmates with vulnerable
inmates and where "prison officials failed to make their regular
patrols of the housing areas, allowing a violent attack to go on
for between half an hour and an hour." Burrell, 307 F.3d at 9.
In contrast, we concluded that the record in Burrell did
not sufficiently show deliberate indifference to avoid summary
judgment because the officials responded reasonably to the risk
that was known to them at the time. Id. at 8. There, Burrell and
his wife complained to prison officials about problems with an
inmate who later attacked Burrell. We concluded that the officials
were not indifferent and instead acted reasonably in not providing
additional protection for Burrell because they knew he was highly
trained in self defense and martial arts, neither Burrell nor his
wife requested protective custody, no history existed of violence
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between Burrell and the inmate who attacked him, and the officials
believed Burrell could and would protect himself.
With the standard in mind, we next consider whether a
reasonable official in Nelson’s position would have been on notice,
given the state of the law in 2004, that his conduct violated the
Fourteenth Amendment.
2. Standard in Factual Context
a. Nelson
In this case, Nelson was aware of the dangers associated
with the BSH patients generally and the patients housed in Max 2.
He was aware of the security rule that the patients in Max 2 were
not allowed to stay in their rooms except during the count because
of the risk of harm, in particular the risk of suicide, when
patients were out of view of the staff.4 Nelson was also aware
that, despite the security rule, a long-standing practice existed
which allowed patients to stay in their rooms and to visit in each
4
The Moshers raise a new argument on appeal, contending that
Nelson violated the Phase Treatment Program at BSH by allowing the
patients to stay in their rooms and visit in other rooms during the
period between the morning count and lunch. They contend that
Nelson’s disregard of the Phase Treatment Program is further
evidence of his deliberate indifference to the substantial risk of
serious harm related to that practice. Because the Moshers failed
to raise that theory below, it is waived here. See, e.g., In re
Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 183
(1st Cir. 2009). The exceptions to waiver do not apply in the
circumstances of this case. Cf. Guillemard-Ginorio, 585 F.3d at
517 (reaching abstention issue despite possible waiver). Even if
the Moshers’ Phase Treatment Program theory were considered,
however, it would not change the outcome.
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others’ rooms during the short period between the end of morning
count and lunch. When patients were in their rooms or in other
patients’ rooms they were subject to reduced supervision because
they could be out of the view and earshot of the staff. Although
the visiting practice had been long-standing, no problems or
incidents related to the practice had been reported to Nelson. In
addition, Nelson had no specific information about Burns, nor any
reason to suspect that Burns might attack Mosher, nor any reason to
believe that Mosher was particularly vulnerable to attack.5
For purposes of qualified immunity, we must decide, given
the state of the law in 2004, whether a reasonable official in
Nelson’s position, with his knowledge of the circumstances that
existed in Max 2 when Burns killed Mosher, would have understood
that the practice of allowing patients to visit in other patients’
rooms following morning count presented a substantial risk of
serious harm to the patients. The district court concluded that,
given the circumstances in Burrell, the law was not clearly
established that failure to change the visiting practice would
constitute a violation of Mosher’s constitutional rights. The
district court held that Nelson was entitled to qualified immunity.
5
Specific information and warnings about inmates are
components of the overall circumstances that contribute to a
determination of deliberate indifference. See, e.g., Giroux, 178
F.3d at 34.
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We agree. No case had held that the same circumstances
that occurred at BSH or materially similar circumstances
constituted a Fourteenth Amendment violation. In addition, the
cases addressing a detainee’s right to be free of punishment before
conviction did not clearly apply to the circumstances that existed
in Max 2 in August of 2004.
It was not clearly established law that in the absence of
a history of violence or individualized threats, a prison
official’s failure to discontinue a long practice of a brief period
of unsupervised visits was deliberate indifference to a substantial
risk of harm to a patient. A reasonable official in Nelson’s
place, given the circumstances and the legal standard, could have
believed that allowing the practice to continue would not lead to
events that would violate a patient’s rights. Therefore, Nelson is
entitled to qualified immunity.
b. Dennehy
The Moshers contend that Commissioner Dennehy violated
their son’s Fourteenth Amendment due process rights by supervisory
acquiescence and gross negligence in understaffing the Max 2 unit
at BSH. The Moshers contend BSH was understaffed in 2004, when
their son was murdered, that the Max 2 unit should have had five or
six officers, and that understaffing was a system-wide problem for
the Department of Corrections. At the time of the murder, however,
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the BSH staffing analysis required three officers in Max 2, and
four officers were on duty.
Without accepting the proposition that understaffing
alone can establish deliberate indifference, on the facts here, a
reasonable official in Dennehy’s position could have reasonably
believed that staffing that met the BSH recommendations was
sufficient to avoid constitutional violations. Therefore, Dennehy
is entitled to qualified immunity.
B. Eleventh Amendment Immunity
The district court granted summary judgment for the
defendants on the Moshers’ state law claims, holding that the
claims are barred by the Eleventh Amendment. On appeal, the
Moshers contend that Eleventh Amendment immunity is not available
to the state because their claims assert violations of the
constitutional rights of a person protected by the Americans with
Disabilities Act ("ADA").6 The Moshers acknowledge that they did
not bring a claim under the ADA in the district court but contend
that their new theory is sufficiently important to be considered
despite their omission. The defendants object that the Moshers
waived their new ADA claim by failing to allege it in their
6
The Moshers’ citation to 42 U.S.C. § 1213 is incorrect. 42
U.S.C. § 12131 provides certain definitions used in the ADA while
§ 12132 prohibits discrimination against qualified individuals
based on a disability. It is unclear what statute the Moshers
intended as the basis for their claim.
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complaint or in the proceedings below and argue that the Eleventh
Amendment bars the Moshers’ state law claims.
As the defendants point out, the Moshers waived the ADA
claim and their new theory based on the ADA by failing to raise
either theory in the district court. In addition, even if the
claims were not waived, the Moshers’ state law claims, brought
against the defendants in their official capacities, were for
wrongful death, negligence, gross negligence, infliction of
emotional distress, loss of consortium, and strict liability.
Contrary to the Moshers’ new theory, they did not allege
constitutional violations as part of their state law claims nor did
they allege violations of the ADA.
The district court properly dismissed the Moshers’ state
law claims as barred by the Eleventh Amendment.
IV.
For the foregoing reasons, summary judgment for the
defendants is affirmed.
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