Stone v. Worcester County Sherriffs Office et al

Filing 121

Judge Richard G. Stearns: MEMORANDUM AND ORDER entered re 88 and 91 Motions for Summary Judgment. For the foregoing reasons, defendants' motions for summary judgment are ALLOWED. The Clerk will enter judgment accordingly and close the case. (Pacho, Arnold)

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 18-10011-RGS
STEPHEN STONE
v.
SHERIFF LEWIS EVANGELIDIS, et al.
MEMORANDUM ON DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT
December 17, 2020
STEARNS, D.J.
On October 19, 2016, plaintiff Stephen Stone, a former inmate at the
Worcester County Jail and House of Correction (Jail), apparently attempted
suicide in the back of a transportation van while being driven from Malden
District Court to the Jail. This was the latest in a series of incidents in which
Stone engaged in self-harming behaviors, whether real or feigned, while
incarcerated at the Jail. Stone alleges that Worcester County Sheriff Lewis
Evangelidis, Officers Kevin Barrett and Brian Ruggieri, and the Jail’s Chief
of Psychiatry, Bernard Katz, M.D., failed to provide him with the appropriate
medication and safety protocols to address his suicidal tendencies in
violation of the Eighth Amendment.

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In this lawsuit (now in its third amended iteration), brought under the
Federal Civil Rights Act, 42 U.S.C. § 1983, Stone alleges two specific Eighth
Amendment violations: first, that Dr. Katz refused to prescribe Klonopin,
Stone’s sedative of choice, because of a Jail policy implemented by Sheriff
Evangelidis; second, that Barrett and Ruggieri, the transportation officers,
failed to adequately respond to his suicide attempt on October 19, 2016. For
the following reasons, defendants’ motions for summary judgment will be
granted.1
BACKGROUND
Stone was incarcerated at the Worcester County Jail on two separate
occasions in 2009 and 2010, and then between 2015 and 2017.2 Dr. Katz, a
board-certified forensic psychiatrist, treated Stone for mental health issues
during both incarcerations. Stone has been variously diagnosed with the
following conditions: anxiety, depression, obsessive compulsive disorder,

The Amended Complaint also set out official capacity claims against
Sheriff Evangelidis and Dr. Katz. Am. Compl. (Dkt # 9). Following a
preliminary screening of the Amended Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A, these claims were dismissed. May 10, 2018 Order
(Dkt # 14).
1

These dates are approximate. Stone represents that he returned to
the Jail in July of 2013, Resp. to Katz Statement of Undisputed Material Facts
(SUMF) (Dkt # 107) at 12; Stone Decl. (Dkt # 108) ¶ 2. Dr. Katz states that
Stone’s “continued self-destructive behavior resulted in his reincarceration
. . . in 2015.” Katz Mot. (Dkt # 95) at 4.
2

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bipolar disorder, mixed-psychotic disorder, intermittent explosive disorder,
post-traumatic stress disorder, antisocial personality disorder, borderline
personality disorder, sensory processing disorder, and panic disorder. Ex. E.
to Katz SUMF (Dkt # 96); Resp. to Katz SUMF at 2.
Over time, Stone has been prescribed a cornucopia of psychotropic
drugs, including Klonopin, a benzodiazepine. In 2010, Dr. Katz wrote a
Klonopin prescription for Stone for outpatient treatment following his
release from the Jail. Katz SUMF ¶ 14; Exs. O, P to Katz SUMF.3
Following his reincarceration in 2015, Stone repeatedly requested that
Dr. Katz prescribe Klonopin. Dr. Katz refused. Exs. D, F to Katz SUMF.
According to Stone, Dr. Katz stated that he could not prescribe Klonopin
“because of a policy implemented by Sheriff Evangelidis prohibiting use of
Klonopin and other similar drugs in [the] Worcester House of Corrections.”
Stone Decl. ¶ 2. However, the record indicates that in 2016, Dr. Katz wrote
four prescriptions of Klonopin for other inmates at the Jail.

Ex. 1 to

Worcester Cty. Sheriff’s Off. (WCSO) Defs.’ Mot. (Dkt # 89).

Stone alleges by way of a late-filed affidavit that Dr. Katz had
prescribed Klonopin for him in 2010 while he was incarcerated in the Jail in
addition to the Klonopin prescription he received upon his release. Stone
Decl. ¶ 1; Opp’n to Katz Mot. (Dkt # 106) at 2. The court, however, will not
consider “a later affidavit to contradict” a supported record on summary
judgment. See Escribano-Reyes v. Prof’l Hepa Certificate Corp., 817 F.3d
380, 385, 390-391 (1st Cir. 2016).
3

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Dr. Katz states that there was no medical justification for prescribing
Klonopin to Stone. Dr. Katz – as well as other mental health specialists who
treated Stone in and out of incarceration – determined that Stone exhibited
manipulative and goal-oriented drug-seeking behavior consistent with an
“Axis II” pathology. Exs. D, I to Katz SUMF. Stone routinely undertook
hunger strikes to protest the refusal of his treating doctors to provide him
with Klonopin. Exs. D, F to Katz SUMF. Dr. Katz chose instead to treat Stone
with a regimen of Seroquel, Chlopromazine, Wellbutrin, and Lithium, along
with counseling and monitoring by other mental health professionals. Ex. O
to Katz SUMF.
Treatment notwithstanding, Stone’s attempts to inflict self-harm
continued, including banging his head, cutting his arms with and swallowing
razors, and punching at windows. Resp. to Katz SUMF ¶ 8. On October 19,
2016, the defendant transportation officers, Barrett and Ruggieri, struggled
with Stone outside the Malden District Courthouse while escorting him back
to the transportation van. After being placed in the van, Stone banged his
head on the prisoner’s cage. Barrett reported that Stone had told him that
he had a weapon with him and that he intended to injure himself. 4 Ex. 10 to

4 Officer Christopher Rogola’s Incident Report did not include this fact.

Ex. 10 to WCSO Defs.’ Mot.

4

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Maher Decl. (Dkt # 109). Barrett called his supervisor for instructions and
was told to return to the Jail immediately with the emergency lights turned
on. Ex. 10 to WCSO Defs.’ Mot. During the ride to the Jail, Stone thrashed
about on the van floor out of the full sight of the officers. 5 Barrett again called
his supervisor to report the situation and elected to continue to the Jail, then
just a few minutes away. In the meantime, Stone tied a thermal shirt around
his neck in what appeared to be a suicide attempt. Ex. F to Katz SUMF.
DISCUSSION
Summary judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). “A
fact is material if it has the potential of determining the outcome of the
litigation.” Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008).

It is undisputed that the transportation van did not have an American
Flag obscuring the observation window as alleged in the Third Amended
Complaint. Ex. 11 to WCSO Defs.’ Mot.; Resp. to WCSO Defs.’ SUMF (Dkt
# 105) at 4.
5

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“[I]n ruling on a motion for summary judgment, ‘[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in
his favor.’” Tolan v. Cotton, 572 U.S. 650, 651 (2014), quoting Anderson, 477
U.S. at 255. However, the court cannot “draw unreasonable inferences or
credit bald assertions, empty conclusions, rank conjecture, or vitriolic
invective.” Pina v. Children’s Place, 740 F.3d 785, 795 (1st Cir. 2014),
quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st
Cir. 2007). Rather, a genuine issue of material fact “must be built on a solid
foundation – a foundation constructed from materials of evidentiary
quality.” García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014),
quoting Nieves-Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013).
Dr. Bernard Katz
Stone alleges that Dr. Katz’s refusal to prescribe Klonopin pursuant to
a Jail policy prohibiting administration of the drug amounts to a failure to
provide adequate medical care in violation of the Eighth Amendment.
Whether or not the Jail enforced such a policy (the existence of such a policy
is a matter of dispute),6 the issue is not one of constitutional significance.

According to the records of the contracted pharmaceutical provider
for the Worcester County Jail, Diamond Pharmacy, Klonopin was prescribed
throughout the relevant period, including by Dr. Katz, although the total
number of Klonopin prescriptions written by Jail medical providers
declined. Ex. 1 to WCSO Defs.’ Mot. Separately, another Worcester County
6
6

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To prove an Eighth Amendment violation of inadequate medical care, 7
a prisoner must satisfy two elements – one objective, the other subjective.
First, “the alleged deprivation must be, objectively, ‘sufficiently serious,’ . . .
[it] must result in the denial of ‘the minimally civilized measure of life’s
necessities.’”

Farmer v. Brennan, 511 U.S. 825, 834 (1994), quoting

Wilson v. Seiter, 501 U.S. 294, 298 (1991). In the context of a claim of
deficient medical care, this harm must take the form of a failure to address a
“serious medical need.” See Feeney v. Corr. Med. Servs., Inc., 464 F.3d 158,

Jail psychiatrist, Dr. Robert Karr, wrote in an email that, in prescribing
benzodiazepines, the Jail “operate[s] on a case-by-case basis” and “always
look[s] at an individual’s clinical needs.” Ex. 4 to WSCO Defs.’ Mot. Stone
highlights Dr. Karr’s further statement that “benzodiazepines,
(“Ativan/klonopin/Xanax) are almost always contraindicated in the
population we serve and particularly in the setting we serve them in.” Id.
It is true, as Stone asserts, that Klonopin did not appear on the Jail
formulary in 2015, 2016, or 2017. Ex. 14 to Maher Decl. Stone’s intake form
at the Worcester County Jail in May of 2015 also indicates that he was being
placed in a “benzo detox” protocol. Ex. 7 to Maher Decl. The court, however,
disagrees that these facts “implicitly indicate[] that Mr. Stone would not
receive his prescribed treatment even if necessary.” Opp’n to Katz Mot. at 56. Stone cites no evidence that he did not receive individualized medical
attention. Nor, as his counsel admitted at oral argument, does Stone have
any expert medical evidence that Klonopin conferred any unique treatment
benefit in his case.
Pretrial detainees are protected under the Fourteenth Amendment
Due Process Clause rather than the Eighth Amendment; however, “the
standard to be applied [to determine adequate care] is the same as [the
deliberate indifference standard] used in Eighth Amendment cases.”
Burrell v. Hampshire Cty., 307 F.3d 1, 7 (1st Cir. 2002).
7

7

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161-162 (1st Cir. 2006). Second, a plaintiff must prove that the prison
officials, subjectively, were deliberately indifferent to that need. Wilson, 501
U.S. at 302-303.
1. Serious Medical Need
On the objective element, the parties do not dispute Stone’s serious
mental health issues and his need for treatment; rather they disagree about
whether he has a serious medical need for Klonopin specifically. Drawing a
distinction between the “need for treatment and the need for a specific
course of treatment,” Dr. Katz contends that Stone received the former but
that he was not medically entitled to the latter. Katz Mot. (Dkt # 95) at 8
(emphasis added).

Stone responds that he had an “obvious need” for

Klonopin, as evidenced by the prior prescriptions he had been given for the
drug. Opp’n to Katz Mot. at 5; see, e.g., id. at 6 (“By prescribing Mr. Stone
Klonopin in 2010, Dr. Katz joined the array of providers who recognize that
Mr. Stone has a serious medical need for Klonopin.”).
A serious medical need 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.” Zingg v.
Groblewski, 907 F.3d 630, 635 (1st Cir. 2018), quoting Kosilek v. Spencer,
774 F.3d 63, 82 (1st Cir. 2014); see also Gaudreault v. Mun. of Salem, Mass.,
8

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To establish a serious medical need,

923 F.2d 203, 208 (1st Cir. 1990). 8

“[e]ven a significant risk of future harm may suffice.” Perry v. Roy, 782 F.3d
73, 78-79 (1st Cir. 2015).
There is no medical support for Stone’s argument that he had a serious
need for Klonopin. In Cardona-Santiago v. Corr. Health Servs. Corp., 2015
WL 1417425 (D.P.R. Mar. 27, 2015), the case on which Stone relies, the court
concluded that “a jury reasonably could infer that . . . treating [the plaintiff]
with Neurontin[] . . . recognized the severity of his medical need” for pain
management even though Neurontin “barely had any effect on [that] severe
pain.” Id. at *2, 9. Put differently, past treatment of a condition suggests
that adequate treatment of the condition – not necessarily the same prior
treatment – may be required.

This logic is consistent with the well-

established premise that “[t]he right to be free from cruel and unusual
punishment does not include the right to the treatment of one’s choice.”
Layne v. Vinzant, 657 F.2d 468, 473 (1st Cir. 1981); see also Perry, 782 F.3d
at 78 (“[H]aving a serious medical need does not entitle an inmate to the best

Stone argues that Dr. Katz “attempts to contort the standard” for the
objective prong by claiming that a “serious medical need requires that a lay
person could identify a specific medication,” Opp’n to Katz Mot. at 6;
although the court, like Dr. Katz, is at a loss in grasping the import of the
distinction, as no one denies that Stone has serious medical needs whether
apparent to a layperson or not. Katz Reply (Dkt # 115) at 3.
8

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care ‘that money can buy.’” (internal citation omitted)); United States v.
DeCologero, 821 F.2d 39, 42 (1st Cir. 1987).

At most, Stone’s prior

benzodiazepine prescriptions support that he has a serious medical need for
mental health treatment.

But not a need for prescribing Klonopin in

particular.
2. Deliberate Indifference
To survive summary judgment on the subjective prong of his claim,
Stone must proffer sufficient evidence that Dr. Katz’s refusal to prescribe
Klonopin constituted deliberate indifference to his need for adequate mental
health treatment. Dr. Katz maintains that the decision to withhold this drug
“was rooted in [Stone’s] individual presentation as a patient rather than any
policy of categorical avoidance of a certain class of drugs.” Katz Mot. at 10.
Stone counters that, because Dr. Katz’s treatments “clearly did not work,”
Dr. Katz’s refusal to prescribe Klonopin “denied Mr. Stone care in the face of
clear indications that Mr. Stone needed a different course of medication.”
Opp’n to Katz Mot. at 8.
“Deliberate indifference can aptly be described as ‘recklessness,’ . . .
not in the tort-law sense but in the appreciably stricter criminal-law sense,
requiring actual knowledge of impending harm, easily preventable.”
DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991). Showing this mental
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state “requires evidence that the absence or inadequacy of treatment is
intentional,” Perry, 782 F.3d at 79, or, put otherwise, that conduct is “so
clearly inadequate as to amount to a refusal to provide essential care,”
Torraco v. Maloney, 923 F.2d 231, 234, 235 (1st Cir. 1991), quoting
Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985); see also Farmer, 511
U.S. at 837 (“[T]he official must both be aware of facts from which the
inference can be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.”).
Courts are especially reluctant to find deliberate indifference “[w]here
the dispute concerns not the absence of help, but the choice of a certain
course of treatment.” Torraco, 923 F.2d at 234, quoting Sires v. Berman,
834 F.2d 9, 13 (1st Cir. 1987). It is undisputed that Stone received a battery
of medical treatments while incarcerated at the Worcester County Jail,
including mental health counseling, a complex drug regimen, and close
monitoring

of

his

hunger

strikes.

Dr. Katz

prescribed

numerous

psychotropic drugs, including Seroquel, Chlopromazine, Wellbutrin, and
Lithium. However, Dr. Katz concluded that Klonopin was not indicated
because Stone had exhibited a pattern of manipulation to obtain prescription
drugs at the Jail, Ex. D to Katz SUMF, and Stone had a history of substance
abuse and overdose, Ex. G to Katz SUMF. Stone also repeatedly denied
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having suicidal ideations and instead described his self-injurious behaviors
as calculated to obtain certain responses from mental healthcare providers.
Exs. D, F to Katz SUMF.
A decision “made by a professional . . . is presumptively valid; liability
may be imposed only when the decision by the professional is such a
substantial departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually did not base
the decision on such a judgment.” Youngberg v. Romeo, 457 U.S. 307, 323
(1982). Regardless of any policy discouraging the prescription of Klonopin
at the Jail, Stone presents no evidence that prescribing drugs other than
Klonopin failed to comport with professional standards for mental health
treatment of patients with similar conditions. 9 In fact, the record appears to

Stone’s argument that “Dr. Katz knew Klonopin was an effective
treatment” is well off the mark. Opp’n to Katz Mot. at 9. Even the case law
on which Stone relies confirms that something more is required to prove that
failing to treat a prisoner with an alternative drug amounts to deliberate
indifference. In Darrah v. Krisher, 865 F.3d 361 (6th Cir. 2017), the Sixth
Circuit denied summary judgment to a doctor on a prisoner’s Eighth
Amendment claim because he treated the plaintiff, who suffered from severe
psoriasis, with a “drug of last resort” for that condition in lieu of a drug that
was “the only effective treatment . . . out of a number of other medicines” for
the plaintiff. Id. at 373 (emphasis added). Stone provides no evidence, other
than past Klonopin prescriptions, see Exs. 2, 3, 4, 5 to Maher Decl., to
support the proposition that Klonopin is the only effective treatment, or even
the standard treatment, for his mental illnesses. To conclude from evidence
of one effective modality an absence of alternatives is a stretch.
9

12

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suggest the opposite. Stone similarly did not receive a Klonopin prescription
while receiving treatment from another provider at Bridgewater State
Hospital in 2017 and 2018 – and notably exhibited “a positive response to
his medication[s]” of Abilify, Lithium Carbonate, and Vistaril. Ex. G to Katz
SUMF.
Absent evidence that Dr. Katz departed from an accepted course of
medical treatment, the court will not ascribe fault to his rationale for not
prescribing Klonopin to Stone. “The law is clear that where two alternative
courses of medical treatment exist, and both alleviate negative effects within
the boundaries of modern medicine, it is not the place of our court to ‘second
guess medical judgments.’” Kosilek, 774 F.3d at 90, quoting Layne, 657 F.2d
at 474. That Dr. Katz disagreed with healthcare providers who credited
Stone’s reports of “anxiety and psychosis” and prescribed Klonopin as a
result is no basis to infer deliberate indifference. Opp’n to Katz Mot. at 10.
Nor does evidence that Dr. Katz pursued a “failing course of treatment” in
light of Stone’s purported “mental deterioration caused by his lack of
medication” provide such a basis. Id. at 9-10. 10 Stone’s theory asks this court

This argument also strays from the deliberate indifference standard.
Applying a standard of reasonableness to Dr. Katz’s medical judgment would
convert Stone’s Eighth Amendment claim into one of medical malpractice.
See Palandjian v. Foster, 446 Mass. 100, 104-105 (2006) (describing the
standard applied to medical malpractice claims). Stone declined to assert a
13
10

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to ignore Dr. Katz’s medical diagnosis that Stone was goal-oriented and drug
seeking. There is also no evidence that other providers concluded that
Klonopin was the only effective treatment option for Stone.
Although deliberate indifference is a state-of-mind question typically
reserved for the jury, summary judgment is appropriate when “there is no
evidence of treatment ‘so inadequate as to shock the conscience, . . . or
evidence of acts or omissions so dangerous . . . that a defendant’s knowledge
of a large risk can be inferred.’” Torraco, 923 F.2d at 234, quoting CortesQuinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 1988). Finally,
given the lack of evidence of any constitutional violation, the court need not
reach Dr. Katz’s qualified immunity arguments. See Saucier v. Katz, 533
U.S. 194, 201 (2001) (“If no constitutional right would have been violated
were the allegations established, there is no necessity for further inquiries
concerning qualified immunity.”).

Accordingly, the court will grant

Dr. Katz’s motion for summary judgment.

medical malpractice claim against Dr. Katz even when the court permitted
him to amend his complaint for that purpose. See Nov. 26, 2019 Order (Dkt
# 56). He cannot raise one now, nor can he substitute a more forgiving
reasonableness standard to prove deliberate indifference.
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Sheriff Lewis Evangelidis
Stone alleges that Sheriff Evangelidis’s implementation of a policy
prohibiting the prescription of Klonopin constituted inadequate medical care
in violation of the Eighth Amendment. The parties’ primary dispute on
summary judgment is whether such a policy existed. According to Sheriff
Evangelidis, discovery proves that “the WCSO did not have a policy
prohibiting Klonopin,” and further that, “at all times relevant to this action,
healthcare providers at the [Jail] prescribed Klonopin to inmates.” WCSO
Defs.’ Mot. at 1, 5. Stone responds that he would not have “receive[d] his
prescribed treatment even if necessary” because there was an “inexplicable
decline in Klonopin prescriptions during Sheriff Evangelidis’s tenure.”
Opp’n to WCSO Defs.’ Mot. (Dkt # 104) at 1, 5-6.
The court need not, however, resolve the dispute about the existence of
a no-Klonopin policy because Stone is unable to show that such a policy
would have violated his constitutional rights. The law is plain. “Supervisors
cannot be held liable under a theory of respondeat superior.” Penate v.
Hanchett, 944 F.3d 358, 367 (1st Cir. 2019). And there can be no supervisory
liability for a § 1983 claim “in the absence of an anchoring constitutional
violation.” Nieves v. McSweeney, 241 F.3d 46, 57 (1st Cir. 2001).

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Kevin Barrett and Brian Ruggieri
Stone’s Eighth Amendment claim against officers Barrett and Ruggieri
is that they failed to properly monitor and take steps to prevent his
unsuccessful suicide attempt in the back of the transportation van while
returning to the Jail on October 19, 2016. The parties dispute whether the
officers knew that Stone posed a risk of self-harm11 and, that awareness
notwithstanding, whether qualified immunity attaches. According to Stone,
“a reasonable transportation officer . . . would have known that it violates the
Eighth Amendment to fail to take action when a prisoner with a known
history of self-harm – and who had just threatened to hurt himself –
disappears from view.” Opp’n to WCSO Defs.’ Mot. at 14.

Barrett and Ruggieri premise their motion for summary judgment,
including their qualified immunity argument, in part on their lack of “actual
knowledge of Plaintiff’s elevated risk or [sic] suicide.” WCSO Defs.’ Mot.
at 2; see also id. at 14. The only evidence that Barrett and Ruggieri cite in
this regard is their own discovery responses disclaiming that knowledge.
See, e.g., Exs. 6, 7, 8, 9 to WCSO Defs.’ Mot; WCSO Defs.’ Mot. at 8. By
contrast, Stone cites to Barrett’s October 19, 2016 incident report which
acknowledges that “Stone told [defendants] he had a weapon with him and
he was threatening to hurt himself.” Ex. 10 to Maher Decl.; Opp’n to WCSO
Defs.’ Mot. at 1, 9. The officers also witnessed Stone “banging his head on
the cage in the transportation van.” Opp’n to WCSO Defs.’ Mot. at 9. Stone
also claims that Barrett conceded his awareness in discovery responses that
Stone had engaged in acts of self-harm and had been placed on at least one
suicide watch while at the Jail. Ex. 7 to WCSO Defs.’ Mot.; Opp’n to WCSO
Defs.’ Mot. at 10.
11

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Qualified immunity attaches to discretionary conduct of government
officials that “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”

Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a broad doctrine
that “protect[s] ‘all but the plainly incompetent or those who knowingly
violate the law.’” Rivera v. Murphy, 979 F.2d 259, 263 (1st Cir. 1992),
quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam).
In analyzing a qualified immunity defense, a court dances a “two-step
pavane”: “First, the court must determine whether the plaintiff's version of
the facts makes out a violation of a protected right. Second, the court must
determine whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged misconduct.” Norton v. Rodrigues, 955 F.3d 176, 184
(1st Cir. 2020) (internal marks and citations omitted), quoting McKenney v.
Mangino, 873 F.3d 75, 81 (1st Cir. 2017). It is also within the court’s
“discretion not to engage in the first inquiry, but to go directly to the second.”
Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). The court will do so here.
Whether a constitutional right is “clearly established” is a matter of law
for the court. See Siegert v. Gilley, 500 U.S. 226, 232 (1991). The “contours
of the right” must be “sufficiently clear,” such that, “under the specific facts
of the case, a reasonable defendant would have understood that he was
17

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violating the right.” Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014) (internal
citations omitted). While “general statements of the law are not inherently
incapable of giving fair . . . warning,” they do so only if their application to a
specific set of facts is clear. United States v. Lanier, 520 U.S. 259, 271 (1997).
If there is no “case directly on point . . . existing precedent must have placed
the statutory or constitutional question beyond debate.” Ashcroft v. alKidd, 563 U.S. 731, 741 (2011).
The Eighth Amendment right to adequate medical care in the context
of a risk of suicide by an inmate is established, but only at a high level of
generality: “officers violate the fourteenth amendment due process rights of
a [pretrial] detainee if they display a ‘deliberate indifference’ to the unusually
strong risk that a detainee will commit suicide,” Bowen v. City of
Manchester, 966 F.2d 13, 16 (1st Cir. 1992); see also Elliott v. Cheshire Cty.,
N.H., 940 F.2d 7, 11 n.3 (1st Cir. 1991), 12 by failing to “take some action to
abate a known risk.” Penn v. Escorsio, 764 F.3d 102, 113 (1st Cir. 2014). In
that deliberate indifference is typically a fact-specific inquiry, see Torraco,

To establish deliberate indifference in a prison suicide case, a
plaintiff must show: “(1) an unusually serious risk of harm (self-inflicted
harm, in a suicide case), (2) defendant’s actual knowledge of (or, at least,
willful blindness to) that elevated risk, and (3) defendant’s failure to take
obvious steps to address that known, serious risk.” Manarite v. Springfield,
957 F.2d 953, 956 (1st Cir. 1992) (citations omitted).
12

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923 F.2d at 234, its application has no place at all unless “a jury could
conclude Defendants took effectively no action to abate a known risk.” Penn,
764 F.3d at 113.
In this respect, it is important to anchor what officers Barrett and
Ruggieri did in the facts of the case. Rather than ignoring Stone’s behavior
while being transported on October 19, 2016, Barrett twice called his
supervisor for instructions: first when Stone became “belligerent” while
being loaded in the transportation van at the courthouse, and later when
Stone slipped out of sight in the rear of the van and did not respond to the
officers’ queries. Ex. 10 to WCSO Defs.’ Mot; Ex. 10 to Maher Decl. During
the first call, the officers were instructed to turn on their emergency lights
and return Stone to the Jail immediately, where a Special Operations Team
would be waiting. Ex. 10 to WCSO Defs.’ Mot. When the officers lost
complete visual contact with Stone during transit, they were “just a few
minutes” away from the Jail. Exs. 6, 7 to WCSO Defs.’ Mot. They reported
to their supervisor and made the decision to continue to the Jail rather than
stopping the van and potentially risking a street-side confrontation with
Stone. In retrospect, this may not have been the best choice of action, but it

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Case 1:18-cv-10011-RGS Document 121 Filed 12/17/20 Page 20 of 20

was not an unconstitutional choice. 13 See Taylor v. Barkes, 575 U.S. 822,
822 (2015) (per curiam) (noting that no decision of the Supreme Court
“establishes a[n inmate’s] right to the proper implementation of adequate
suicide prevention protocols”).
ORDER
For the foregoing reasons, defendants’ motions for summary judgment
are ALLOWED. The Clerk will enter judgment accordingly and close the
case.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

Stone suggests that Barrett and Ruggieri violated the Worcester
County Jail Transportation Guidelines, which prohibit officers from allowing
“a prisoner to be out of their sight while in their custody.” Ex. 15 to Maher
Decl.; Opp’n to WCSO Defs.’ Mot. at 10. Violating these protocols, without
more, does not rise to the level of deliberate indifference, which requires
more than mere negligence. See Torraco, 923 F.2d at 234.
13

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