Lopez Morales v. Otero Fernandez
| Decision Date | 28 September 1990 |
| Docket Number | OTERO-FERNANDE,LOPEZ-MORALE,ET,P,No. 89-2133,89-2133 |
| Parties | Unpublished Disposition NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Antoniolaintiff, Appellant, v. MercedesAL., Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Appeal From the United States District Court for the District of Puerto Rico; Jose Antonio Fuste, District Judge.
Francisco M. Dolz-Sanchez, for appellant.
Reina Colon De Rodriguez, Assistant Solicitor General, Department of Justice, with whom Jorge E. Perez Diaz, Solicitor General, and Norma Cotti Cruz, Deputy Solicitor General, were on brief, for appellees.
Before TORRUELLA, SELYA and CYR, Circuit Judges.
Anthony Lopez Torres died on October 18, 1987, while incarcerated at La Pica Penal Camp in Jayuya, Puerto Rico. On October 17, 1988, the decedent's mother, Antonia Lopez Morales, instituted the present civil rights action under 42 U.S.C. Sec. 1983 alleging that the defendant officials of the Commonwealth of Puerto Rico Corrections Administration, in their individual and official capacities, acted with deliberate indifference to decedent's serious medical condition, in violation of the Eighth Amendment to the United States Constitution, by ordering and effecting decedent's transfer to and detention at La Pica Penal Camp. 1 The district court entered summary judgment for all defendants. Plaintiff appealed. We affirm.
Plaintiff requested and received two extensions of time to respond to defendants' first motion for summary judgment. Plaintiff did not request an extension of time to respond to the amended motion for summary judgment. Instead, on October 27, 1989, some forty days after her response to the amended motion for summary judgment was due, plaintiff moved to record depositions by other than stenographic means. See Fed.R.Civ.P. 30(b)(4). The court did not act on the motion to record depositions but granted summary judgment to all defendants on the grounds that plaintiff did not (1) plead a sufficient causal nexus between defendants' actions and decedent's death or (2) demonstrate an actionable constitutional claim in opposition to the amended motion for summary judgment.
Plaintiff failed to satisfy either the express requirements of Federal Rule of Civil Procedure 56(f) 2 or the criteria for an acceptable alternative proffer.
We recently delimited the contours of Rule 56(f) in Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988). When a nonmovant fails to satisfy the strictures of Rule 56(f), "the alternative proffer must simulate the rule in important ways." Id. at 988. The written opposition to the motion must be made in some "authoritative manner," such as under penalty of perjury; it should articulate a "plausible basis" for the party's belief that specific material facts support the opposition to the motion; it should elucidate that those facts can be discovered within a reasonable time; and it "must demonstrate good cause for failure to have conducted the discovery earlier." Id. Although we stress that an alternative proffer may be sufficient even though it does not fully satisfy all criteria, "we suggest that counsel desirous of forestalling the swing of the summary judgment axe would do well to heed the tenor and spirit of the criteria which we have mentioned." Id. at 989.
Plaintiff's motion to record depositions by non-stenographic means fell far short of meeting the alternative proffer criteria prescribed in Paterson-Leitch. The motion merely sought to substitute a tape recording for the customary stenographic deposition. The motion did not advert, even in a general way, to the subject matter of the proposed depositions. The motion failed to allege that there were specific, material, discoverable facts with which to oppose summary judgment, much less what those facts were or the anticipated timing and manner of their discovery. The motion was not vouchsafed in an "authoritative manner." Even though plaintiff had two months to respond after receiving defendants' amended motion for summary judgment, the motion to record depositions did not explain why this had not been adequate time to conduct the necessary discovery, much less why such discovery had not been accomplished during the twelve months since plaintiff filed her complaint. See Herbert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984) ().
As for the merits of the case, the burden was on plaintiff to demonstrate a genuine issue of material fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Brennan v. Hendrigan, 888 F.2d 189, 191 (1st Cir.1989). Plaintiff in the instant case pointed up no genuine issue of material fact to the district court. In their summary judgment motion, defendants asserted that there was an absence of evidence, see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Brennan, 888 F.2d at 191, on two essential elements of plaintiff's section 1983 claim: plaintiff failed to show a causal connection between specific defendants' actions and plaintiff's federal deprivation; and plaintiff failed to allege a deprivation of a constitutional right under the eighth amendment. The district court dismissed the complaint on both grounds. Since we find that plaintiff plainly failed to establish a deprivation of a constitutional right, we need not address the issue of causation.
To establish an eighth amendment violation, plaintiff must demonstrate that defendants' actions amounted to "unnecessary and wanton infliction of pain," Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Accord Whitley v. Albers, 475 U.S. 312, 320 (1986). 3 The Supreme Court has held that "deliberate indifference to serious medical needs of prisoners" satisfies these elements. Estelle, 429 U.S. at 104. Yet, the Court has also indicated that "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause." Whitley, 475 U.S. at 319.
Plaintiff's "deliberate indifference" Plaintiff alleges that the prison transfer itself evidenced deliberate indifference to decedent's medical condition, since there was no oxygen, ambulance, or twenty-four hour medical staff at La Pica. 4 Even were we to conclude that this could constitute deliberate indifference, there is no factual allegation, and no evidence mentioned or provided, which indicates that any named defendant who had any role in determining the appropriateness of decedent's transfer knew or should have known that the medical facilities available at or near La Pica were inadequate for decedent's needs. In fact, the only defendant who is alleged to have participated in the transfer, Dr. Poupart, was shown only to have received and approved a recommendation from State Penitentiary Superintendent Clemente DeJesus to transfer decedent to La Pica for the purpose of "better placement." 5 This hardly demonstrates or intimates deliberate indifference to decedent's medical needs.
claims under the eighth amendment were based on (1) decedent's transfer to La Pica Camp, where there were inadequate medical facilities; (2) the unavailability of adequate medical care on the premises at La Pica when decedent...
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