Mack v. Maloney

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1888
HAROLD OMAR MACK,
Plaintiff, Appellant,
v.
MICHAEL T. MALONEY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Harold Omar Mack on brief pro se.
Claudia A. Hunter, Kelly Kalandyk Smith and Hunter & Bobit,
P.C. on brief for appellee.
March 28, 2002
Per Curiam. Plaintiff/appellant Harold Mack filed
this pro se action under 42 U.S.C. § 1983, complaining inter
alia that he had been improperly treated with antipsychotic
drugs while being detained prior to trial. Eleven individuals
were named as defendants. In a June 14, 2001 order, the
district court granted a motion to dismiss filed by one of the
defendants (David Hammond, M.D.) and certified the matter for
immediate appeal under Fed. R. Civ. P. 54(b). We dismiss the
appeal on the ground that the Rule 54(b) certification was
improvidently granted.
Plaintiff's vague complaint has been construed as
advancing three claims against defendant Hammond: (1) a federal
constitutional claim;1 (2) a claim for intentional infliction
of emotional distress; and (3) a claim for medical malpractice.
The third-listed claim was referred to a malpractice tribunal,
see, e.g., Feinstein v. Massachusetts General Hosp., 643 F.2d
880 (1st Cir. 1981), which ruled in Hammond's favor. When
plaintiff failed to post the required bond, Hammond moved to
dismiss the malpractice claim. The district court, adopting
the recommendation of a magistrate-judge, granted that motion
and issued its Rule 54(b) certification.
1
The constitutional claim has been treated below as arising
under the Eighth Amendment. Yet given plaintiff's status as a
pretrial detainee, it should probably instead be viewed as resting
on the Due Process Clause. See, e.g., Elliott v. Cheshire County,
New Hampshire, 940 F.2d 7, 10 & n.2 (1st Cir. 1991).
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In support of the court's certification, Hammond now
asserts that its order not only disposed of the malpractice
claim but "sua sponte" dismissed the other two claims as well.
We disagree. The magistrate-judge stated that "any Eighth
Amendment claims ... should survive" the motion to dismiss.
Dkt. # 66, at 2 n.1. The district court made no mention of
"modif[ying]" this aspect of the report, as Hammond argues;
instead, it simply "adopted" the report "[f]or the reasons
stated" therein. Dkt. # 69, at 1. Moreover, in later granting
similar motions filed by six other defendants, the court
explicitly stated that "the Eighth Amendment claims remain."
Dkt. # 81 (margin order). There is no basis for suspecting
that the court intended to treat Hammond's motion any
differently than the others.
Accordingly, we think it clear that plaintiff's
constitutional claim against Hammond remains unadjudicated.2
This circumstance alone renders the certification "particularly
suspect," Kersey v. Dennison Mfg. Co., 3 F.3d 482, 487 (1st Cir.
1993), since resort to Rule 54(b) will rarely be appropriate
"when the contestants on appeal remain, simultaneously,
contestants below," Spiegel v. Trustees of Tufts College, 843
2
We need not decide whether the emotional-distress claim
likewise remains pending, or whether it instead was effectively
incorporated within the matters referred to the tribunal. Cf. Kapp
v. Balantine, 380 Mass. 186, 190, 196 (1980) (suggesting that such
a claim can properly be submitted to tribunal).
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F.2d 38, 44 (1st Cir. 1988). Further, the "substantial ...
prospect of contextual overlap" here between the certified and
pending claims, Kersey, 3 F.3d at 487, counsels against
interlocutory review.
The district court did not explain its reasons for
the certification but almost certainly had in mind Hammond's
assertion that the pending of the malpractice claim must be
reported to his insurer and the State Board of Registration of
Medicine until a final judgment is entered. We are not
unsympathetic to this concern, but no financial consequences of
reporting are alleged and, at least where related unadjusted
claims are pending against the same defendant, it is unclear
how interlocutory review of one claim would remove whatever
cloud may exist.
The appeal is dismissed without prejudice for want of
appellate jurisdiction. The case is remanded to the district
court for further proceedings consistent with this opinion. No
costs.
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