Leavitt v. Correctional Medical Services, et al

Filing

OPINION issued by Michael Boudin, Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [10-1432]

Case: 10-1432

Document: 00116227060

Page: 1

Date Filed: 06/29/2011

Entry ID: 5561763

United States Court of Appeals
For the First Circuit
No. 10-1432
RAYMOND D. LEAVITT,
Plaintiff, Appellant,
v.
CORRECTIONAL MEDICAL SERVICES, INC.; TODD TRITCH, individually
and in his official capacity as Medical Doctor; EDIE WOODWARD,
individually and in her official capacity as Physician Assistant;
TERESA KESTELOOT, individually and in her official capacity as
Health Services Administrator of Maine State Prison; CHARLENE
WATKINS, individually and in her official capacity as Family
Practitioner Nurse; ALFRED CICHON,
Defendants, Appellees,
YORK COUNTY JAIL; MAINE STATE PRISON; MARTIN A. MAGNUSSON,
individually and in his official capacity as Commissioner of the
Maine Department of Corrections; JEFFREY MERRILL, individually
and in his official capacity as Warden of Maine State Prison;
ROBERT COSTIGAN, individually and in his official capacity as
Prison Administrative Coordinator of Maine State Prison; JONNA
DINKEL, individually and in her official capacity as RN at Maine
State Prison; MATTHEW TURNER, individually and in his official
capacity as Physician Assistant,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Lipez, and Howard,
Circuit Judges.

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James A. Billings, with whom Lipman, Katz & McKee was on
brief, for appellant.
Elizabeth K. Peck, with whom Paul C. Catsos and Thompson &
Bowie, LLP, were on brief, for appellee Alfred Cichon.
Christopher C. Taintor, with whom Jennifer A.W. Rush and
Norman, Hanson & DeTroy, LLC, were on brief, for appellees
Correctional Medical Services, Inc., Todd Tritch, Edie Woodward,
Teresa Kesteloot, and Charlene Watkins.

June 29, 2011

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LIPEZ, Circuit Judge.

Date Filed: 06/29/2011

Entry ID: 5561763

Plaintiff-appellant Raymond D.

Leavitt, an inmate of the Maine corrections system, seeks a civil
rights remedy for the alleged denial of adequate medical care for
human immunodeficiency virus (HIV) by healthcare professionals at
the York County Jail (YCJ) and the Maine State Prison (MSP).
Claiming that correctional medical officials acted with deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment, Leavitt brought suit under 42 U.S.C. § 1983
against

a

number

of

defendants,

including

Alfred

Cichon,

a

physician assistant at YCJ; Correctional Medical Services, Inc.
(CMS), the private contractor that provided medical care at MSP;
and CMS employees Todd Tritch, Edie Woodward, Charlene Watkins, and
Teresa Kesteloot.1

In separate orders, the district court granted

summary judgment for Cichon and the CMS defendants, and Leavitt
appeals.
We agree with the district court that Leavitt's evidence
could not, as a matter of law, establish that the CMS defendants'
actions violated the Eighth Amendment.

However, we conclude that

Leavitt has established a material dispute as to whether Alfred
Cichon acted with deliberate indifference to his serious medical
needs.

We thus affirm the entry of summary judgment in favor of

1

We refer to defendants CMS and its employees collectively as
"the CMS defendants."
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the CMS defendants, reverse the entry of summary judgment in favor
of Cichon, and remand for further proceedings.
I.
Appellant is, and was at all times material to this case,
HIV-positive.

He was incarcerated at YCJ from September 6, 2006,

through February 17, 2007, at which point he was transferred to
MSP.

He claims that the defendants inappropriately denied him

treatment for HIV for the entirety of his 167-day stay at YCJ and
for nearly seventeen months of his incarceration at MSP.

This

delay in the reinitiation of antiretroviral therapy for HIV,
Leavitt alleges, "constituted a continuum of harm," which resulted
in short- and long-term negative consequences for his health.

We

chronicle his treatment history in some detail as presented in the
summary judgment record, presenting the facts in the light most
favorable to Leavitt and drawing all reasonable inferences in his
favor.

Burrell v. Hampshire Cnty., 307 F.3d 1, 3 (1st Cir. 2002).

A. Leavitt's Treatment at YCJ
1. Initial Clinic Visit
At the time of his incarceration at YCJ, Leavitt suffered
from

HIV,

hepatitis

hypothyroidism.

C,

bipolar

disorder,

anxiety,

and

On October 5, 2006, about one month into his

detention at YCJ, Leavitt had his first -- and only -- clinical

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interaction

with

defendant

Page: 5

Alfred

Date Filed: 06/29/2011

Entry ID: 5561763

Cichon.2

was

Cichon

the

physician assistant who worked at the jail most frequently, about
sixteen hours per week, and he also was president of Allied
Resources for Correctional Health, Inc. (ARCH), the corporation
that provided contract healthcare services to inmates at YCJ.
At the October 5 clinic visit, Cichon performed a routine
physical examination of Leavitt, concluding that the latter's
health in general was "normal."

Appellant told Cichon that he was

HIV-positive; said that he was experiencing night sweats, chills,
fever,

nausea,

and

vomiting;

and

complained

that

he

had

not

received his antiretroviral medications. He also lamented that "it
wasn't right he was being kept off his HIV meds since they had been
keeping him alive for the past 10 years and keeping his symptoms
and low blood count from claiming him as a victim of AIDS."
At this point, Cichon purportedly made a statement that
constitutes the key fact in dispute in Leavitt's case against him.
He said, "We don't give away [HIV] medications here at this jail[,]
because the jail is so small and we are not equipped financially to
hold the burden of providing expensive medication"; "[you will]

2

Leavitt's Statement of Material Facts raises a few
allegations pertaining to events that took place before the October
5 meeting, including an allegation that a jail officer refused to
accept the HIV medications that a friend brought to YCJ for
Leavitt. There is nothing in the record to suggest that Cichon
knew of these events, and thus they are immaterial to the
determination of whether Cichon was deliberately indifferent to
Leavitt's medical needs.
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have to wait until you [get] to the Maine State Prison where they
are able to pay for these medications."

Additionally, Cichon

allegedly advised Leavitt, "You don't need to stay on the [HIV]
medications to be healthy, and just as soon as you get to the [MSP]
they'll fix you right up."
At the time of their meeting, Cichon knew that Leavitt
had been without his HIV medications for at least one month, as
appellant had been incarcerated since September. Patients who take
a break from antiretroviral therapy may become resistant to one or
more of the drugs used as part of the regimen.

Cichon thus

informed Leavitt that he could not reinstate his HIV medications or
refer

him

to

an

infectious

disease

specialist

without

first

acquiring his medical history, information about his medications
and compliance with taking those medications, and blood test
results for his current CD4 cell count and viral load.3

There is

no dispute that this was the proper response to a request for
restarting antiretroviral treatment.

3

The parties state that the CD4 cell count is the best
estimate of an HIV-positive individual's risk of short-term
progression to develop the clinical symptoms and risks of
complications of HIV. Viral load, which measures the amount of
virus present in the bloodstream, is most helpful in assessing a
patient's response to treatment, but is also generally helpful in
assessing the risk of short-term progression of HIV.
A higher CD4
count and lower viral load are generally desirable.
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2. After Leavitt's Clinic Visit
Cichon

directed

the

ARCH

nursing

staff

to

obtain

Leavitt's medical records from the various facilities where he had
been treated for HIV.

Cichon also ordered lab work to determine

Leavitt's complete blood count differential, CD4 cell count, and
viral load.

These labs, like all tests and medications prescribed

for inmates, were paid for by YCJ.
In
Androscoggin

short

order,

County

Jail

Leavitt's
(ACJ),

medical

Cumberland

records
County

from

the

Jail,

and

Positive Health Care were faxed to YCJ, where they were reviewed
and initialed by Cichon.

The records indicated that Leavitt had a

long history of HIV and that he previously had been prescribed the
antiretroviral

drugs

Truvada

and

Kaletra.

The

records

also

established that Leavitt's labs on April 6, 2006 had shown an
undetectable viral load of less than 75 and an abnormally low CD4
cell count of 355.

Moreover, they showed that at the time of

Leavitt's incarceration at ACJ on July 11, 2006, his medical
condition was normal and he did not complain of fatigue, night
sweats, or any objective symptoms of HIV.

Finally, the records

disclosed that Leavitt had a history of alcohol abuse that may have
impeded

his

compliance

with

antiretroviral

therapy,

and

that

Leavitt had been at various points non-compliant with taking his
HIV medications.

Although Leavitt concedes the veracity of these

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records, he insists he had been taking his HIV medications "on a
regular basis" before he entered YCJ.
The lab reports from the blood work Cichon ordered were
addressed to him and routed to the medical office at YCJ, where in
the ordinary course of business they would have been placed on a
clipboard and reviewed by Cichon each time he visited the jail.
The CD4 cell count report indicated that Leavitt had a lower than
normal count of 415 and noted that the "[m]ild decrease in CD4
level

and

increase

in

CD8

subset"

was

"indicative

immunodeficiency state and/or recent viral infection."

of

Cichon

claims no recollection of seeing these results, but acknowledges
that his initial appears on the first page of the lab report, which
would signal that he had reviewed them.4
The viral load report indicated a higher than normal
viral load of 143,000.

Cichon also claims not to have seen this

report; the copy of it subpoenaed from YCJ and entered into the
record does not bear his initial.

He asserts that this is the

first time in seventeen years that an omission of this type
occurred, that he would have considered a viral load of 143,000 to
be higher "than [he] would like to see it," and that he would have
"move[d] precipitously" to refer Leavitt to an infectious disease
specialist if he had reviewed the report.

4

Cichon understood that

Leavitt's medical records from ACJ and the CD4 cell count
and viral load reports were subpoenaed from YCJ and entered into
the summary judgment record as part of Cichon's affidavit.
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HIV

is

Document: 00116227060

a

serious

and

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Date Filed: 06/29/2011

potentially

Entry ID: 5561763

life-threatening

medical

condition.
3. The Remainder of Leavitt's Stay at YCJ
It is undisputed that during the four months between the
October 5 clinic appointment and Leavitt's transfer to MSP, Cichon
never saw Leavitt again, did not refer Leavitt to a specialist, or
take any other steps to follow up on Leavitt's HIV condition.
Leavitt did not see an infectious disease specialist or restart
antiretroviral treatment for his HIV while at YCJ.
Although

appellant

was

aware

that

the

method

for

requesting medical treatment or medications at YCJ was to file an
Inmate Medical Request Form (IMRF), he did not submit one related
to treatment for HIV or HIV-related symptoms.5

Leavitt did,

however, write one or more letters to YCJ's medical department,
including one to Cichon, requesting the resumption of his HIV
medications.

He submitted these letters to a YCJ officer at some

point prior to his appointment with Cichon.
Symptoms of HIV include fevers, night sweats, loss of
appetite, weight loss, wasting syndrome, chronic diarrhea, thrush,
leukoplakia (a white, film-like protrusion on the lateral side of
the tongue), psoriasis, and seborrheic dermatitis.

During the

period of his incarceration at YCJ, Leavitt suffered from night

5

Leavitt filed three non-HIV-related IMRFs, in which he
requested Fixadent for his dentures and cream to treat his
psoriasis. Cichon denied all three requests.
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sweats,

Document: 00116227060

chills,

fever,

Page: 10

fatigue,

Date Filed: 06/29/2011

psoriasis,

Entry ID: 5561763

nausea,

and

gastrointestinal problems, including vomiting and constipation.
4. ARCH's Contractual Relationship with YCJ
In addition to serving as president of ARCH, Cichon was
also its largest shareholder, with ownership of over a quarter of
its stock.

Cichon testified at his deposition that YCJ put its

healthcare services contract out for bid every two years, that
beginning November 2004 ARCH had a two-year contract with YCJ with
the possibility of extensions, and that such extensions were
dependent on whether YCJ was "happy with [ARCH]."6

Cichon also

testified that ARCH eventually lost the YCJ contract to CMS in June
2009 because YCJ "perceived that there [would be] a cost savings
there."
5. Cichon's Professional Record
Cichon was given several "letters of guidance" by the
Maine State Board of Licensure in Medicine ("Medical Board") for
various infractions involving other patients that happened around
the time of Leavitt's incarceration.

These infractions included

changing the frequency of dosage of a medication for another
patient

without

first

informing

the

patient,7

as

well

as

6

YCJ had previously contracted with ARCH for healthcare
services from around 1996 to 2003. ARCH was then replaced by the
University of New England, before regaining the contract in 2004.
7

The frequency of medications was changed from the
physician's prescription of four times a day to two times a day
because the jail contracted for staff to distribute medications
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withholding medications from a patient with a chronic health
condition "without appropriate evaluation" and "with no clear
reason that the patient could not receive them."8

Moreover, the

Medical Board suspended Cichon's physician assistant license for
ninety days as a sanction for his providing medical services
without a licensed supervisory physician.9

Subsequently, Cichon

also entered into a consent agreement with the Maine Board of
Osteopathic Licensure in January 2008, in which he admitted to,
among other things, the violations of his physician assistant's
license for which he was disciplined by the Medical Board.

Under

the terms of the consent agreement, Cichon's license to practice
was subject to a number of probationary conditions, including
heightened supervision and reporting requirements.

only twice a day. The Board found that Cichon should have informed
the inmate; however, it concluded that because Cichon had consulted
with the inmate's physician before implementing the change, his
"behavior did not rise to a level of misconduct sufficient to
warrant disciplinary action."
8

The other letters of guidance issued by the Board related to
Cichon making inappropriate comments about race and sex to
patients.
9

The Medical Board concluded that Cichon was "providing
medical services as a physician assistant without having a
supervisory [allopathic] physician" licensed by the Medical Board,
"failing to notify the Medical Board that he no longer had a
supervisory physician licensed by the Medical Board," and/or
"misrepresenting to Medical Board staff the status of his license
and supervisory relationship" for the period from November 2, 2006,
to at least March 15, 2007.
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B. Leavitt's Treatment at MSP
On February 17, 2007, Leavitt transferred from YCJ to
MSP.

By contract, CMS provides medical care at MSP, as well as

some

other

facilities

Corrections

(MDOC).

operated
CMS

by

employed

the
the

Maine
four

Department

other

of

individual

defendants involved in this appeal: Dr. Todd Tritch as the Regional
Medical Director of CMS in Maine; Edie Woodward, a physician
assistant, and Charlene Watkins, a family practitioner nurse, as
healthcare providers at MSP; and Teresa Kesteloot as the Health
Services Administrator at MSP.
Since MSP's medical department operates on a clinic
model, patients are usually not followed by particular providers.
Inmates with chronic diseases, including HIV, are assigned to the
chronic care clinic, in which they are seen typically at threemonth intervals.
1. Leavitt's Initial Treatment at MSP
Leavitt's first clinical interaction at MSP came in the
form

of

an

intake

appointment

with

a

CMS-employed

physician

assistant three days after his transfer.

At this time, Leavitt

said

resume

he

was

treatment.

HIV-positive

and

asked

to

antiretroviral

The physician assistant ordered a new round of blood

tests and requested Leavitt's treatment records.

Leavitt's labs

were subsequently drawn and reported, showing an abnormal CD4 cell

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count of 460 and an elevated viral load over 97,000.10

The

physician assistant also ordered an appointment "ASAP" with an
infectious disease specialist.

Generally, CMS providers use the

term "ASAP" when there is some degree of concern about a patient's
health. Nevertheless, the follow-up with the specialist never took
place.
About one month later, another CMS provider wrote an
order that Leavitt be "referred to an infectious disease doctor for
starting HIV medications."

That order, and all requests to refer

patients to outside consultations, had to be approved by defendant
Tritch.
2. Leavitt's First Consultation with Specialists
With Tritch's approval, appellant was examined in May
2007 by a team of HIV specialists at the Virology Treatment Center
(VTC) in Portland, Maine. At that time, Leavitt again requested to
be reinstated on his HIV medications.

VTC sent a consultation

report to CMS, which stated, "HIV: No urgent indication for . . .
rx with CD4 at 460," meaning that Leavitt then had a good buffer in
his

immunological

reserve

to

protect

him

from

infections or other consequences of HIV/AIDS.11

opportunistic
VTC's medical

10

Although this CD4 count represents a slight improvement over
the reported results from April and October 2006, Leavitt's expert
represents that there can be a lag in CD4 count decline after
antiretroviral therapy is discontinued.
11

VTC's medical director represented that by "[n]o urgent
indication," he anticipated that a follow-up appointment or another
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director

subsequently

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explained

Date Filed: 06/29/2011

that

he

decided

Entry ID: 5561763

to

defer

reinitiating antiretroviral treatment so that he could obtain
additional information about Leavitt's immune status, viral load,
medication history, and previous drug resistance testing.

His

decision also relied on Department of Health and Human Services
(DHHS)

guidelines

recommending

the

deferral

of

antiretroviral

treatment for patients with CD4 cell counts above 350 who did not
have an AIDS-defining illness or severe symptoms of HIV infection.12
The consultation report recommended that Leavitt return for a
follow-up appointment in four to six weeks.

At the end of May

2007, a CMS provider noted VTC's recommendation and ordered a
follow-up appointment for Leavitt.
3. Leavitt's Treatment in Summer and Fall of 2007
Leavitt was next seen at the chronic care clinic by CMS
defendant Edie Woodward in June 2007, when she treated him for a

round of blood tests would take place within three months. This
time frame was in accordance with usual practice to check an HIV
patient's CD4 and viral load counts every three to four months as
a way of monitoring the patient's condition, regardless of whether
the patient is on antiretroviral therapy.
12

These DHHS guidelines were explicitly addressed to
"treatment-naive" patients –- HIV-positive patients who had never
been on antiretroviral therapy. However, in 2007-2008 VTC used the
same information and recommendations to guide treatment of patients
who had been on medications for a time and then stopped. At the
time, there was disagreement in the medical community as to the
wisdom of the deferred treatment approach.
Leavitt's expert
testified that although Leavitt's CD4 count was above DHHS's cutoff point, Leavitt should nonetheless have been immediately
restarted on antiretroviral therapy because of his history of low
CD4 counts and because he suffered from hepatitis C.
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rash. Woodward assumed the follow-up appointment with VTC had been
or was being scheduled, and she accordingly entered an order for
"follow up with [VTC] as scheduled."
On August 10, 2007, Leavitt submitted a prison sick-call
slip in which he complained: "As a result of being denied meds for
HIV+ my immune system is low resulting in thrush[,] and it seems as
though I'm being denied meds for that also."
examined Leavitt.

That same day, Tritch

Tritch confirmed that the latter was suffering

from thrush and ordered updated blood work to assess the condition
of his HIV.

Tritch also submitted an order for Leavitt to return

for a follow-up visit specifically with him the next month.

That

appointment, however, was not scheduled as Tritch ordered, and it
never took place.
The results from the lab tests Tritch ordered reported
that Leavitt's CD4 cell count had fallen to 424 and that his viral
load had risen to greater than 100,000.13

It was not until

November, however, that Tritch, without having seen Leavitt again
as promised, approved Leavitt's referral to VTC.
In the interim, Leavitt saw Woodward at the chronic care
clinic on September 1 and October 22, 2007.

At the September

clinic, Leavitt complained of a rash on his underarms, fatigue, and

13

In responding to a complaint to the Medical Board brought
against him by Leavitt, Tritch stated that Leavitt's "HIV viral
load was undetectable" as of August 2007.
Tritch has never
corrected this inaccurate assertion to the Board.
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white, cracked, and painful toes -- all symptoms she recognized
could have been attributable to HIV.

Woodward prescribed an

antifungal cream for Leavitt's skin and feet. Even though she knew
that the one-month follow-up consultation recommended by VTC in May
never occurred, she did not determine why the appointment did not
take place or take any steps to expedite the process.
At the October clinic, Leavitt complained of intermittent
thrush and a rash.
treatment.

He again requested HIV and hepatitis C

Woodward ordered various medications to treat his

immediate complaints, requested updated blood work, and put in a
new order for the follow-up appointment that Leavitt was supposed
to have with Tritch.

She did not, however, put in a second order

for the referral to VTC.
4. The December Follow-up Appointment at VTC and Its
Aftermath
Leavitt did not return to VTC until December, six months
after his initial consult with the specialists there.

At the

December appointment, Leavitt complained of fatigue and presented
with

symptoms,

including

thrush,

leukoplakia,

and

seborrheic

dermatitis, that VTC interpreted as indications of immunological
decline from HIV.

VTC reported to CMS that Leavitt now met the

criteria for starting antiretroviral therapy for HIV, requested an
updated CD4 cell count and viral load to provide a baseline for
treatment, and recommended genotype testing to determine Leavitt's
resistance to particular HIV medications.
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VTC also suggested that

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Leavitt return in four to six weeks, noting that it would "likely
make recommendations for therapy at that time."

Later that month,

Woodward reviewed these recommendations and ordered an HIV viral
load, an immune function panel, and a follow-up appointment with
VTC in one month.
In early January, Woodward entered an order to "add
genotype" to the lab work she had requested for Leavitt the
previous month.

Those lab results were reported on January 18 but

did not include a genotype as ordered.
the

lab

that

processed

Leavitt's

Apparently, Bio Reference,
blood

work,

experienced

a

technical problem; in its report to CMS, it stated that it would
contact

the

prison

for

additional

information.

There

is

no

evidence in Leavitt's chart of any subsequent communication between
Bio Reference and CMS, and Woodward did not take steps to obtain
the genotype results from Bio Reference.
On January 23, 2008, Woodward observed in her progress
notes

that

Leavitt's

reordered it.
at MSP.

follow-up

visit

to

VTC

was

overdue

and

The next month, Woodward stopped working full time

She wrote an order in February related to Leavitt's

hepatitis C treatment, but from that point forward was no longer
involved in his care.
CMS
position.

defendant

Charlene

Watkins

took

over

Woodward's

Watkins first saw Leavitt on February 26, 2008, when he

complained of a rash, which she knew could have been a fungal

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infection and a symptom of HIV.

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Entry ID: 5561763

She observed in her progress notes

that Leavitt was due for a follow-up visit to VTC.
5. Leavitt's March Visit to VTC
That follow-up visit, which was scheduled for February
27, was delayed on account of bad weather, and Leavitt did not
return to VTC until March 12.

About a month later, Leavitt saw

Watkins at the chronic care clinic, whereupon he asked her why his
medications had not been restarted following his March 12 visit to
VTC.

It turned out that no consultation report from, or record of,

that visit had been placed in his CMS file.

Watkins told him that

it was her fault for not sending a fax to VTC.

She then promptly

requested and received from VTC a faxed copy of its note from
Leavitt's visit, which stated: "HIV disease: Needs to restart HIV
therapy.

Has been on many agents prior and likely has some

resistance.
time.

Unfortunately we do not have his genotype at this

Will need to start him back on Truvada/Kaletra now.

recommend they obtain a CD4, [viral load,] and a genotype."

Will
VTC

requested a follow-up appointment in one month.
Watkins
immediately.

did

not

start

Leavitt

on

his

medications

Instead, on April 14, Watkins ordered updated blood

work and a follow-up visit to VTC.

The lab results indicated that

his CD4 cell count had plummeted to 296 and his viral load had
escalated to 297,562. Watkins reviewed these results a little over
a week later, but still did not start Leavitt on antiretroviral

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drugs.

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Entry ID: 5561763

Nor did she confirm if the follow-up visit to VTC had

actually been scheduled. Ultimately, Leavitt did not return to VTC
until almost two and a half months later.
6. Leavitt's Filing of a Formal Grievance
In

the

intervening

period,

Leavitt

filed

a

formal

grievance with MDOC through CMS defendant Teresa Kesteloot, in
which he protested that he was not receiving treatment for his
HIV.14 Kesteloot, who was responsible for reviewing all healthcarerelated complaints brought by MSP inmates, received the grievance
no later than May 1, at which point she spoke with Leavitt,
reviewed a portion of his medical chart, and discussed his care
with

CMS

nursing

staff.

Kesteloot's

focus

in

investigating

Leavitt's complaint was not on trying to determine whether past
treatment had been appropriate -- a determination that she was not
qualified to make -- but solely on whether Leavitt's current
concerns were being addressed.
In the course of her inquiry, Kesteloot learned that
Leavitt had been seen recently at the chronic care clinic, and that
since his last visit to VTC on March 12, labs had been drawn and a
follow-up appointment had been scheduled.

14

She thus concluded in a

Leavitt wrote a letter on April 1, 2007 to Kesteloot's
predecessor with a similar grievance, and attached a copy of that
letter to his complaint to Kesteloot. Kesteloot became aware of
the April 1 letter at some point after she assumed her position,
but does not know if her predecessor ever acted on Leavitt's first
complaint.
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memorandum to her MDOC supervisors that Leavitt "appears to have
been followed appropriately."15

She took no additional steps to

investigate whether the delay in Leavitt's treatment was part of a
broader problem in the care of HIV-positive inmates at MSP or to
follow up on Leavitt to ensure that there would be no further
delays in his treatment.
7. The Reinitiation of Leavitt's HIV Treatment
Leavitt finally saw the VTC specialists again on June 25.
VTC subsequently sent a consultation report to CMS in which it
observed that Leavitt was "close to AIDS," that he had thrush on
his tongue and swollen nodes on his neck, and that he needed to
"start HIV antiviral meds ASAP."

The next day, Tritch, who had not

seen Leavitt for over ten months, reviewed Leavitt's chart and
concluded that his HIV medications should have been started sooner.
He then prescribed him Kaletra and Truvada.
Leavitt finally restarted antiretroviral therapy on July
7, 2008, over seven months after VTC deemed him eligible under the
DHHS

guidelines.

During

the

seventeen

months

he

had

been

incarcerated at MSP, Leavitt on three occasions submitted sick-call

15

MSP's grievance review officer reviewed Kesteloot's memo and
denied Leavitt's grievance. Leavitt's appeal of that decision to
MSP's chief administrative officer was also denied.
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slips to the MDOC expressly for HIV,16 and on thirteen occasions
submitted sick-call slips for thrush, rashes, or diarrhea.17
C. Leavitt's Current Health and Prognosis
After Leavitt started antiretroviral medications, his
thrush disappeared and he no longer experienced night sweats and
chills.

By July 2008, Leavitt's CD4 cell count had rebounded to

429 (from 296 in April), and by December 2008, his CD4 cell count
had risen to 550, thus indicating the reconstitution of his immune
system.

In his labs of February 27, 2009, he dropped to a

dramatically low CD4 cell count of 252.
Leavitt's HIV disease was stable.
weight of 170 pounds.

But as of June 2009,

Currently, he is at a healthy

He still suffers from warts and rashes,

worsening fatigue and malaise, and "great fear and uncertainty
regarding his future as a result of his HIV drug interruption."
As examples of this uncertainty, Leavitt points to a 2006
study

showing

that

patients

with

CD4

counts

above

350

whose

antiretroviral therapy was interrupted and not restarted until
their CD4 count dropped to 250 experienced a significant increase
in the risk of opportunistic disease or death from any cause over
the course of the trial, as compared with patients who received
continuous antiretroviral therapy. Leavitt also references a great

16

Those slips were submitted on August 10, 2007, January 6,
2008, and July 4, 2008.
17

These dates range from July 26, 2007, to July 4, 2008.
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body of medical literature suggesting that the lower a patient's
CD4

cell

count

is

when

he

starts

or

restarts

antiretroviral

treatment, the lesser the expectation of long-term immunologic
recovery and the greater the risk of HIV- and non-HIV-related
complications over the short term.

Leavitt further cites studies

indicating that patients who begin treatment at lower CD4 cell
counts have a greater risk of not fully reconstituting the normal
numbers of CD4 subsets. His expert testified that the interruption
of Leavitt's antiretroviral therapy from September 2006 to July
2008 constituted a "continuum" of harm that makes him statistically
more likely to be susceptible to opportunistic infections and/or
cancer in the future.
D. Procedural History
Leavitt filed the pro se complaint underlying this case
in April 2008, when his antiretroviral therapy had not yet been
restarted.

In that original complaint, he brought suit for money

damages and injunctive relief against CMS, YCJ, MSP, and various
correctional officials and healthcare providers in their individual
and official capacities, alleging that their refusal to administer
his HIV medications constituted violations of 42 U.S.C. § 1983 and
the Americans with Disabilities Act (ADA).

He later voluntarily

dismissed his claims against YCJ and MSP and filed an amended
complaint in October 2008, also pro se, naming as defendants only
CMS, a number of its employees, various persons employed by MDOC,

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and the Warden of MSP.

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Leavitt later filed a pro se complaint

against Cichon, which the district court consolidated on December
9, 2008 with the previous complaint into what the court styled as
a second amended complaint.
Leavitt eventually obtained the services of an attorney
in February 2009. Seven months later, all the defendants moved for
summary judgment. The magistrate judge recommended on December 31,
2009, and the district court granted on March 2, 2010, summary
judgment in favor of all of the defendants, on the ground that
there

was

insufficient

evidence

that

defendants

acted

with

"deliberate indifference" to Leavitt's medical needs, as required
under the Supreme Court's Eighth Amendment jurisprudence.18

On

appeal, Leavitt challenges the district court's grant of summary
judgment in favor of Cichon, Tritch, Woodward, Watkins, Kesteloot,
and CMS.19

The only theory that he continues to press is their

liability under 42 U.S.C. § 1983 for the violation of his Eighth
Amendment right against cruel and unusual punishment.20

18

They also offered an alternative ground for granting summary
judgment in favor of Cichon: that Leavitt offered "insubstantial
proof of injury."
19

The district court granted summary judgment against a
variety of other defendants, including those employed by MDOC,
under a separate order, from which Leavitt does not appeal.
20

Leavitt no longer pursues his ADA claim against any of the
defendants.
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II.
A. Standard of Review
We review a district court's summary judgment ruling de
novo. Summary judgment is appropriate if there is no genuine issue
of material fact and the moving party is entitled to judgment as a
matter of law.

Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158,

161 (1st Cir. 2006).
existence

of

Although a "state-of-mind issue such as the

deliberate

indifference

usually

presents

a

jury

question," Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991),
"a party against whom summary judgment is sought is [not] entitled
to a trial simply because he has asserted a cause of action to
which state of mind is a material element," Hahn v. Sargent, 523
F.2d 461, 468 (1st Cir. 1975).

The non-moving party must present

competent evidence that shows a genuine issue for trial. Ruiz-Rosa
v. Rullán, 485 F.3d 150, 156 (1st Cir. 2007).
B. Analysis
"The Constitution 'does not mandate comfortable prisons,'
but neither does it permit inhumane ones"; accordingly, "it is now
settled that 'the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under
the Eighth Amendment.'"21

Farmer v. Brennan, 511 U.S. 825, 832

21

The record is unclear as to whether Leavitt was being held
at YCJ as a probation violator or as a pre-trial detainee, but
Leavitt's precise status makes no difference to our analysis, as
"the standard applied under the Fourteenth Amendment [governing the
claims of pre-trial detainees] is the same as the Eighth Amendment
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(1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981);
Helling v. McKinney, 509 U.S. 25, 31 (1993)).

The failure of

correctional officials to provide inmates with adequate medical
care may offend the Eighth Amendment if their "acts or omissions
[are] sufficiently harmful to evidence deliberate indifference to
serious medical needs."

Estelle v. Gamble, 429 U.S. 97, 106

(1976).
To

succeed

on

an

Eighth

Amendment

claim

based

on

inadequate or delayed medical care, a plaintiff must satisfy both
a subjective and objective inquiry: he must show first, "that
prison officials possessed a sufficiently culpable state of mind,
namely one of 'deliberate indifference' to an inmate's health or
safety," and second, that the deprivation alleged was "objectively,
sufficiently serious."

Burrell, 307 F.3d at 8.

For

inquiry,

the

subjective

the

Supreme

Court

has

specified that deliberate indifference requires that "the official
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."
485 F.3d at 156.

Farmer 511 U.S. at 837; see also Ruiz-Rosa,
The standard encompasses a "narrow band of

conduct": subpar care amounting to negligence or even malpractice
does not give rise to a constitutional claim, Feeney, 464 F.3d at

standard [governing the claims of convicted inmates]."
485 F.3d at 155.
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Ruiz-Rosa,

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162; rather, the treatment provided must have been so inadequate as
"to constitute 'an unnecessary and wanton infliction of pain' or to
be 'repugnant to the conscience of mankind,'" Estelle, 429 U.S. at
105-06; see also Alsina-Ortiz v. Laboy, 400 F.3d 77, 82 (1st Cir.
2005) ("Willful blindness and deliberate indifference are not mere
negligence; these concepts are directed at a form of scienter in
which the official culpably ignores or turns away from what is
otherwise

apparent.").

We

have

concluded

that

"[d]eliberate

indifference in this context may be shown by the denial of needed
care

as

punishment

recklessly

with

and

by

'actual

decisions

knowledge

of

about

medical

impending

care

harm,

made

easily

preventable.'" Ruiz-Rosa, 485 F.3d at 156 (citing Feeney, 464 F.3d
at 162 (quoting Watson v. Caton, 984 F.2d 537, 540 (1st Cir.
1993))).
As to the second inquiry, that of a "serious" deprivation
or medical need, we have held that "[a] medical need is 'serious'
if it is one that has been diagnosed by a physician as mandating
treatment, or one that is so obvious that even a lay person would
easily

recognize

the

necessity

for

a

doctor's

attention."

Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir.
1990).

"The 'seriousness' of an inmate's needs may also be

determined by reference to the effect of the delay of treatment."
Id. (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987)).

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We note that "the subjective

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deliberate indifference inquiry may overlap with the objective
serious medical need determination"; "[s]imilar evidence, including
evidence of adverse effects, may be relevant to both components."
Smith v. Carpenter, 316 F.3d 178, 187 n. 12 (2d Cir. 2003) (citing
DesRosiers v. Moran, 949 F.2d 15, 18-19 (1st Cir. 1990)).
1. Leavitt's Claim Against Cichon
a. Deliberate Indifference
Leavitt argues that Cichon's failure to refer him to an
infectious disease specialist or to otherwise treat his HIV in a
timely manner constitutes deliberate indifference to his serious
medical needs.
load report.

The cornerstone of his claim is the missed viral
That Cichon missed this report and neglected to

follow up is at a minimum sub-optimal, perhaps even negligent.
Cichon acknowledges that his failure to account for the report was
"unfortunate" and that a referral to a specialist ought to have
been made.

But carelessness or inadvertence falls short of the

Eighth Amendment standard of deliberate indifference.

See Feeney,

464 F.3d at 162; cf. Montgomery v. Pinchak, 294 F.3d 492, 500 (3d
Cir. 2002) ("[T]he mere loss . . . of . . . medical records does
not rise to the requisite level of deliberate indifference.").

To

survive summary judgment, Leavitt must present enough evidence for
a factfinder to conclude that Cichon ignored the viral load report,
either intentionally or recklessly, "'not in the tort law sense but
in the appreciably stricter criminal-law sense, requiring actual

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knowledge of impending harm, easily preventable.'"

Entry ID: 5561763

Feeney, 464

F.3d at 162 (quoting Watson, 984 F.2d at 540).
It is undisputed that Cichon knew that Leavitt suffered
from

HIV,

a

medical

condition

that

the

physician

assistant

understood was serious and potentially life-threatening if left
untreated; that Leavitt had not had access to his prescribed
antiretroviral regimen for at least a month, if not longer, by the
time he was seen at the clinic; and that Leavitt's CD4 count was
abnormally low the last two times he was tested, in April and
October 2006.22

According to Leavitt, he had also complained to

Cichon about an array of symptoms, including night sweats, chills,
fever, and nausea, and told the physician assistant that he needed
his antiretroviral drugs to keep him alive.

A jury could thus

reasonably infer that Cichon was aware that Leavitt's health was at
risk.

See Ruiz-Rosa, 485 F.3d at 157.
A jury could further infer that Cichon had a financial

interest in not confirming that the risk was imminent and, hence,
that Cichon required immediate treatment.

See Farmer, 511 U.S. at

843 n.8 (noting that a prison official "would not escape liability
if the evidence showed that he merely refused to verify underlying
facts that he strongly suspected to be true, or declined to confirm

22

Even though Cichon claims not to recollect seeing Leavitt's
October 2006 CD4 test report, it is undisputed that he initialed
it. Moreover, it is undisputed that he reviewed Leavitt's records
from ACJ, which indicated that appellant had a below-normal CD4
cell count of 355 as recently as April 2006.
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inferences of risk that he strongly suspected to exist"); see also
Mata v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005) (reiterating the
above rule from Farmer and noting that "this level of intent can be
demonstrated through circumstantial evidence").

After all, Cichon

purportedly said to Leavitt that he would not provide him with HIV
medications
president

of

because
ARCH

they
and

are

its

too

largest

costly.

Moreover,

shareholder,

Cichon

as

the

had

a

financial stake in keeping treatment and referral costs low to
satisfy CMS and to remain competitive against other contractors.
Cichon testified that ARCH had a two-year contract with the jail
with the possibility of extensions and that the renewal of ARCH's
contract depended on keeping YCJ "happy."

He also testified that

in June 2009 ARCH lost the contract to CMS because of the "cost
savings" that the latter apparently provided.
As further support for his theory, Leavitt points out
that Cichon had been admonished by the state medical licensing
authorities for unprofessional conduct that could be interpreted as
evidence of his desire to lower the costs of medical care at YCJ.
The Medical Board found that he withheld medications from a patient
with a chronic health condition "without appropriate evaluation"
and "with no clear reason that the patient could not receive them."
He also changed the frequency of dosage of medication for another
patient from four to two times a day because the jail contracted
for staff to distribute medications only twice a day. Furthermore,

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he provided medical care without a supervising physician -- a
contractor for whom ARCH presumably would have had to pay.
Finally, Cichon stated that in seventeen years, he had
never neglected to review any other patient report.
evidence

of

Cichon's

financial

interest

in

Given the

minimizing

costs,

including his own explicit statement to that effect, the past
instances in which he acted allegedly to advance that interest, and
the fact that he had never before missed a lab report, a reasonable
jury could conclude that Cichon acted with deliberate indifference
by choosing not to review the viral load report, as its results
would have obliged him, in his own words, "to move precipitously"
to deal with Leavitt's chronic medical condition.

See Monmouth

Cnty., 834 F.3d at 346 ("[W]here 'knowledge of the need for medical
care [is accompanied by the] . . . intentional refusal to provide
that care,' the deliberate indifference standard has been met."
(second and third alterations in original) (citation omitted)
(quoting Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th
Cir. 1985))); cf. Montgomery, 294 F.3d at 500 (holding that inmate
stated a prima facie Eighth Amendment case, where he alleged that
defendants refused to provide him with treatment for his HIV over
a nine-month period despite their prior determination that the
treatment was necessary).
In granting summary judgment for Cichon, the district
court emphasized that even after Cichon purportedly made the

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statement about not treating HIV because of cost constraints, he
directed ARCH nursing staff to gather Leavitt's medical history,
ordered blood tests, and reviewed Leavitt's records. This conduct,
while certainly relevant to Cichon's defense, does not preclude a
jury from finding that his subsequent failure to examine the viral
load report and to follow up on Leavitt's condition, in combination
with other evidence in the summary judgment record, added up to
deliberate indifference.23

As Leavitt suggests, Cichon may well

have ordered the lab tests and medical reports simply to "paper his
file" or to "lull[ Leavitt] into complacency."

The district court

was too quick to decide that Cichon's version was credible and
Leavitt's not.

This is precisely the sort of genuine and material

dispute that ought to be resolved by a jury.24
Liberty

Lobby,

Inc.,

477

U.S.

242,

255

See Anderson v.

(1986)

("Credibility

23

Indeed, Leavitt himself does not take issue with Cichon's
decision to order the lab tests and medical history; it is
undisputed that this was the proper course of action prior to
restarting antiretroviral treatment.
24

In making this credibility determination, the district court
also assigned significant weight to the fact that Leavitt did not
submit any IMRFs or make further complaints to the medical
department about his HIV after the October clinic appointment.
While a jury is free to consider this fact in determining whether
Cichon acted with deliberate indifference, we do not see how
Leavitt's actions would, as a matter of law, excuse Cichon's
purposeful or reckless decision to ignore the viral load report or
to refuse to provide Leavitt with a referral or other treatment.
Cf. Wilson v. Seiter, 501 U.S. 294, 303 (1991) (emphasizing that
"assuming the conduct is harmful enough to satisfy the objective
component of an Eighth Amendment claim," the "wantonness" of an
official's conduct depends only "upon the constraints facing the
official").
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determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those
of a judge . . . .").
b. Serious Medical Need
"Because

'[t]he

objective

component

of

an

Eighth

Amendment claim is . . . [necessarily] contextual' and factspecific, the serious medical need inquiry must be tailored to the
specific circumstances of each case."

Smith, 316 F.3d at 185

(alterations in original) (citation omitted) (quoting Hudson v.
McMillian, 503 U.S. 1, 8 (1992)).

It is obvious that HIV is a

serious medical condition, as the condition can be life-threatening
if not properly treated.

See Brown v. Johnson, 387 F.3d 1344, 1351

(11th Cir. 2004); Montgomery, 294 F.3d at 500.

Nevertheless,

Cichon argues that the seriousness of the underlying medical
condition does not alone establish the "serious medical need" prong
of the Eighth Amendment inquiry.
be more particularized.

He insists that the inquiry must

Because Leavitt's case against Cichon is

predicated on the physician assistant's failure to review and
follow up on the results of the viral load test, Cichon argues that
we should focus on the seriousness of the effects of this omission.
See Gaudreault, 923 F.2d at 208; see also Smith, 316 F.3d at 186
("[I]t's the particular risk of harm faced by a prisoner due to the
challenged deprivation of care, rather than the severity of the
prisoner's

underlying

medical

condition,

-32-

considered

in

the

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abstract, that is relevant for Eighth Amendment purposes."); Napier
v. Madison Cnty., 238 F.3d 739, 742 (6th Cir. 2001).

We conclude

that even under the version of the objective inquiry that Cichon
urges us to undertake, Leavitt has presented sufficient evidence to
reach a jury on the issue of serious medical need.
To begin, Cichon himself concedes that if he had seen the
viral load report indicating that Leavitt's viral load was 143,000,
he would have found that number to be sufficiently alarming that he
would have "move[d] precipitously" to refer Leavitt to a specialist.
Cf. Sealock v. Colo., 218 F.3d 1205, 1211-12 (10th Cir. 2000)
(relying on similarly "candid testimony" to reverse a district
court's entry of summary judgment in favor of a correctional
healthcare provider).

Leavitt presented expert testimony that if

that referral had been made, he would have been put back onto his
antiretroviral regimen in short order and would not have suffered
the various adverse effects of untreated HIV.25

With regard to

these effects, Leavitt submitted affidavit evidence that during his
incarceration at YCJ he suffered from nightsweats, chills, fevers,

25

Leavitt's medical expert testified that if Leavitt had been
referred to him for care in October 2006 and presented with a CD4
count of 415, he would have gathered the necessary medical
information and followed up in "about a week" with the chosen
treatment regimen. The expert also testified that "knowing the
[HIV specialists] out there, the majority of people would have
found a regimen for him and gotten him back on antiretroviral
therapy" immediately because Leavitt is "not a novel patient," but
"a patient with ongoing HIV disease who has a history of very low
CD4 counts."
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fatigue,

Page: 34

gastrointestinal

Date Filed: 06/29/2011

problems,

including

Entry ID: 5561763

vomiting

and

constipation, and psoriasis -- symptoms that he attributed to his
untreated

HIV

and

to

"detoxing"

from

the

withdrawal

of

antiretroviral treatment.
Leavitt presented evidence that Cichon's omission not
only exposed him to these short-term effects, but also led to the
exacerbation of his underlying condition.

Soon after Leavitt

arrived at MSP, he began suffering from thrush, leukoplakia, and
seborrheic dermatitis -- conditions that VTC providers interpreted
as indications of immunological decline from HIV.
suffer from rashes, warts, fatigue, and malaise.

He continues to
Leavitt also

presented expert testimony that he suffered a detrimental decrease
in his CD4 count because of the "continuum" of inadequate treatment
he received at YCJ and MSP.

See Monmouth Cnty., 834 F.2d at 347

("[W]here denial or delay causes an inmate to suffer a life-long
handicap

or

serious.").

permanent

loss,

the

medical

need

is

considered

The wealth of evidence he presented also shows that he

is statistically more likely to be susceptible to opportunistic
infections and cancer in the future.
From

this

record,

a

factfinder

could

conclude

that

Cichon's deprivation of care subjected Leavitt to serious harm, both
short-term and long-term. See Helling, 509 U.S. at 33 (holding that
correctional officials may not ignore medical conditions that are
"very likely to cause serious illness and needless suffering" in the

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future, and that such prospective harm can be the basis of an Eighth
Amendment

claim,

even

if

the

inmate

has

"no

serious

current

symptoms"); see also Smith, 316 F.3d at 188 (holding that "an Eighth
Amendment claim may be based on a defendant's conduct in exposing
an inmate to an unreasonable risk of future harm").

We thus

conclude that Leavitt has established a material dispute as to
whether Cichon acted with deliberate indifference to his serious
medical needs and that the district court erred in granting summary
judgment in favor of Cichon.26
2. Leavitt's Claims Against the Individual CMS Defendants
Leavitt

also

appeals

the

district

court's

grant

of

summary judgment on his § 1983 claim against CMS employees Tritch,
Woodward, Watkins, and Kesteloot in their individual and official
capacities.

We focus first on the claims against these defendants

in their individual capacities.
In

his

brief,

Leavitt

appears

to

press

a

mix

of

collective and vicarious liability theories. He alleges that "[a]ll

26

As an alternative for granting summary judgment in favor of
Cichon,
the
district
court
concluded
that
"Leavitt
has
insubstantial proof of injury caused by Cichon" as required under
§ 1983. See Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st
Cir. 2009). Given the amount of evidence on causation and injury
available in the record, this issue cannot be resolved at the
summary judgment stage. See, e.g., Gayton v. McCoy, 593 F.3d 610,
624 (7th Cir. 2010) (holding that "only in the rare instance that
a plaintiff can proffer no evidence that a delay in medical
treatment exacerbated an injury should summary judgment be granted
on the issue of causation," and thus reversing the district court's
entry of summary judgment in favor of a nurse on an inmate's Eighth
Amendment claim).
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the CMS defendants" knew he had HIV, a disease that, if left
untreated, could be fatal; were aware of his active HIV symptoms;
had access to his medical charts; had the ability to communicate
with VTC about his care; and were working for the same employer and
could communicate with each other.

These allegations, he contends,

coupled with the simple fact that it took over seventeen months to
reinitiate

his

antiretroviral

therapy,

are

enough

to

put

the

question of the defendants' deliberate indifference to a jury.
Leavitt's group liability theory may accurately reflect
some deficiencies in the provision of health services at MSP.

The

prison's medical department operates on a clinic model. Inmates see
various providers, each of whom is not charged with following a
particular patient but instead attends to whoever shows up at the
clinic at the time he or she is working.

Regardless, this theory

cannot provide the basis for recovery: "It is axiomatic that the
liability of persons sued in their individual capacities under
section 1983 must be gauged in terms of their own actions."
v. Menino, 175 F.3d 75, 77 (1st Cir. 1999).

Rogan

Nor can supervisory

officials, like Tritch, be held liable for the conduct of their
subordinates solely under a theory of respondeat superior.

Sanchez

v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (reiterating
the principle that government officials may be held liable only "on
the basis of their own acts or omissions," and not "for the
unconstitutional conduct of their subordinates under a theory of

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respondeat superior" (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937,
1948 (2009))).27

It may be true that the care Leavitt received at

MSP was generally inadequate.
Eighth

Amendment

claim

However, to make out a cognizable

against

healthcare

providers

in

their

individual capacity, he must demonstrate that there is sufficient
evidence for a reasonable factfinder to conclude that each CMS
defendant was "aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists," and that each
defendant did, in fact, "draw the inference."
837.

Farmer 511 U.S. at

We cannot conclude that Leavitt has satisfied his burden.
a. Todd Tritch
Leavitt's grievance appears to be that Tritch acted with

deliberate indifference in failing first to sign off on necessary
referrals to specialists and second to follow up on Leavitt after
committing to intervene more personally in his care.

Leavitt only

insinuates the first theory, and the record simply does not bear out
the latter.

Tritch did not became personally involved in Leavitt's

care until August 10, 2007.28

After examining appellant, Tritch not

27

Leavitt does not allege that any particular CMS defendant
"supervise[d], train[ed], or hire[d] a subordinate with deliberate
indifference toward the possibility that deficient performance of
the task eventually may contribute to a civil rights deprivation."
Sanchez, 590 F.3d at 49 (quoting Camilo-Robles v. Zapata, 175 F.3d
41, 44 (1st Cir.1999)).
28

Tritch approved Leavitt's referrals to outside specialists
prior to August 2007, but Leavitt does not allege any specific
wrongdoing on Tritch's part in dealing with referrals.
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only ordered updated blood work, but also took the unusual step of
ordering that Leavitt's follow-up appointment specifically be with
him.

While the appointment never took place, there is no evidence

that this omission was anything more than an unfortunate scheduling
glitch.

It is undisputed that when Tritch finally saw the August

lab results in November, he approved Leavitt's referral to VTC.

It

is also undisputed that in June 2008, it was Tritch who reviewed
Leavitt's chart, concluded that his HIV medications should have been
started sooner, and put in the order for antiretroviral drugs.
Based on this series of events, no reasonable factfinder
could conclude that Tritch acted with deliberate indifference.

To

the contrary, each time he became aware of potentially serious harm
to Leavitt, he reacted expeditiously.

Perhaps Tritch was not as

aware as one would like a medical professional to be, but "an
official's failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation, cannot
. . . be condemned as the infliction of punishment," let alone
punishment cruel and unusual.

Farmer, 511 U.S. at 838.

b. Edie Woodward and Charlene Watkins
Against

Woodward

and

Watkins,

Leavitt's

allegations

reduce to the theory that they ought to have been more proactive in
following up on his care -- that, for example, Woodward should have
pursued the results of Leavitt's genotype test when Bio Reference
failed to report them, and Watkins should have taken steps to

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confirm that an appointment with VTC had been scheduled as ordered.
Leavitt offers nothing beyond conclusory allegations that their
failure to do so was a symptom of deliberate indifference.

See

Ruiz-Rosa, 485 F.3d at 156 ("Allegations made in a plaintiff’s
complaint, standing alone, are not enough to oppose a properly
supported motion for summary judgment.").

The record shows that

Woodward and Watkins behaved in ways consistent with their professed
intention to treat Leavitt: each saw him in the chronic care clinic
on myriad occasions, treated him for his immediate complaints, and
ordered

testing

and

follow-up

appointments

when

appropriate.

Certainly, they both relied on inaccurate or imperfect data in
Leavitt's chart that appointments had been ordered or that follow-up
phone calls would be made, but there is no evidence that their
reliance was not in good faith.

See Whitley v. Albers, 475 U.S.

312, 319 (1986) ("It is obduracy and wantonness, not inadvertence
or error in good faith, that characterize the conduct prohibited by
the Cruel and Unusual Punishments Clause."); Battista v. Clarke, __
F.3d ___, 2011 WL 1902165, at *5 (1st Cir. May 20, 2011) ("[S]o long
as the balancing judgments are within the realm of reason and made
in

good

faith,

the

officials'

actions

are

not

"deliberate

indifference.").
With respect to Watkins, Leavitt points to one other
incident as a ground for his deliberate indifference claim.

He

asserts that when Watkins received the consultation report from his

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March appointment at VTC, stating "Will need to start him back on
Truvada/Kaletra now," she should have started his antiretroviral
therapy immediately.

Watkins claims that because the report also

recommended that "they obtain a CD4, [viral load,] and a genotype,"
she interpreted it to mean that Leavitt should not restart treatment
until

after

a

new

round

of

blood

interpretation

was

incorrect,

it

tests.
is

Even

if

uncontroverted

Watkins's
that

she

proceeded in accordance with that interpretation, ordering the
updated lab work she thought was required before Leavitt could be
put

back

on

disagreement

Truvada
over

the

and

Kaletra.

interpretation

In

this

of

VTC's

context,

their

instruction

is

tantamount to a dispute over the exercise of professional judgment
and insufficient to support a constitutional claim.

See Torraco,

923 F.2d at 234 (observing that "'[w]here the dispute concerns not
the

absence

of

help,

but

the

choice

of

a

certain

course

of

treatment,'" deliberate indifference may be found [only if] the
attention received is 'so clearly inadequate as to amount to a
refusal to provide essential care'" (quoting Sires v. Berman, 834
F.2d 9, 13 (1st Cir. 1987); Miranda v. Munoz, 770 F.2d 255, 259 (1st
Cir. 1985))); Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)
(holding that "disagreement on the appropriate course of treatment
. . . may present a colorable claim of negligence[] but . . . falls
short of alleging a constitutional violation").

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c. Teresa Kesteloot29
Leavitt

takes

issue

with

Kesteloot's

failure,

in

investigating his May complaint, to review earlier entries in his
chart, including lab results from March that indicated a low CD4
cell count and high viral load.

Relatedly, Leavitt complains that

Kesteloot did not look into why his antiretroviral therapy had been
delayed until he filed his grievance. These allegations have little
force when Leavitt himself acknowledges that Kesteloot's only focus
in investigating his complaint was on whether his current concerns
were being addressed, and not on whether past treatment had been
appropriate.

Kesteloot concluded her investigation after being

satisfied that Leavitt had recently been seen by clinic providers,
that his labs had just been drawn, and that a follow-up appointment
with VTC was scheduled. This was a reasonable response to Leavitt's
complaint.

See Burrell, 307 F.3d at 8 ("[P]rison officials . . .

cannot be deliberately indifferent if they responded reasonably to
the risk, even if the harm ultimately was not avoided.").

It is

true that Kesteloot did not investigate whether Leavitt's treatment
was evidence of a systemic problem at MSP or follow up on Leavitt
to insure that there would be no further delays in his treatment.

29

The CMS defendants argue that Leavitt has waived his claim
against Kesteloot by failing to "separately address" that claim in
his consolidated objection to the magistrate judge's recommended
decisions. We need not resolve the issue of waiver; we conclude on
the merits that Leavitt does not have a triable claim against
Kesteloot.
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However, her failure to take these affirmative steps is, without
more, insufficient to allow a jury to find deliberate indifference.
3. Leavitt's Claims Against CMS and Its Employees in
Their Official Capacities
Finally, we reach Leavitt's claims against CMS and its
employees in their official capacities.

CMS concedes that as a

private entity operating in its capacity at MSP at the time in
question, it can be held liable as a municipality for the purpose
of suits filed under § 1983.30
damages

suit

against

an

As for the CMS employees, "[a]

official

in

an

official

capacity

is

tantamount to a suit against the entity of which the official is an
agent." Burrell, 307 F.3d at 7. Thus the question is whether there
is any basis for imposing liability against the entity.
An underlying constitutional tort is required to proceed
under a municipal liability theory.

Where, as here, there is no

constitutional violation by the employees of the municipality, there
can be no liability predicated on municipal policy or custom.

See

Kennedy v. Town of Billerica, 617 F.3d 520, 531-32 (1st Cir.
2010).31

30

This circuit has not expressly held that private entities
should be treated analogously to municipalities for the purpose of
§ 1983 liability. Still, the parties agree that CMS may be held
liable as though it were a municipality, and so we have proceeded
accordingly.
31

Having concluded that Leavitt failed to put forth sufficient
evidence of the CMS defendants' deliberate indifference, we see no
need to reach the issue of "serious medical need."
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III.
Although we conclude that the record is insufficient to
allow Leavitt's Eighth Amendment claims against the CMS defendants
to go to a jury because of the stringent constitutional standard,
we note the acknowledgment of the CMS defendants that "the care
[Leavitt] received ultimately fell short of the mark."

Those

responsible for the operation of the Maine correctional healthcare
system, including MDOC, should focus on the troubling implications
of that acknowledgment.
For the reasons set forth, we vacate the district court's
grant of summary judgment in favor of Cichon; affirm the grant of
summary judgment in favor of CMS, Tritch, Woodward, Watkins, and
Kesteloot; and remand for further proceedings consistent with this
opinion.

Each side shall bear its own costs on this appeal.
So ordered.

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