MICHAEL EARIELO vs. KAYLA C. CARLO & another. [Note 1]

NEYMAN, J. The plaintiff, Michael Earielo, brought this action under 42 U.S.C. § 1983 (2000) seeking damages for the alleged violation of his Federal constitutional rights while he was a pretrial detainee at the Worcester County jail and house of correction (jail). Kayla Carlo and Sheila LaPointe, licensed practical nurses (defendants or nurses), appeal from the denial of their motion for summary judgment predicated on qualified immunity. [Note 2]

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We affirm. [Note 3]

Facts. Although the defendants dispute the plaintiff's version of events, we view the facts of record in the light most favorable to the nonmoving party (i.e., the plaintiff), as required by the summary judgment standard. [Note 4] See, e.g., Sea Breeze Estates, LLC v. Jarema, 94 Mass. App. Ct. 210, 215 (2018).

In the days leading up to his arrest, the plaintiff used heroin intravenously. He arrived at the jail on June 1, 2010, complaining of "dope-sickness." He was placed in the detoxification ward of the infirmary. Upon his arrival, he had no back pain. The protocol required the nursing staff to administer certain prescribed medications and monitor him.

The next day, the plaintiff complained to a "young skinny nurse" (Carlo) about the onset of sharp back pain as well as difficulties walking and standing. [Note 5] He also lost his appetite that day. His medical records, however, did not make any references to any of his complaints. Carlo suggested that sleeping on the cement floor of the Worcester police station the prior evening "could be the cause of the back pain." Despite a medical order that the plaintiff's vital signs be taken every shift, only one set was taken that day.

When, on the morning of June 3, the plaintiff reported that his

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back pain had increased, Carlo purportedly responded, "[C]ome [on] Mike, you just want pain medicine. I know your type, you come in strung out, you put [on] a couple of pounds, you leave and you're right back in." Carlo wrote in the medical records for that day that the plaintiff had no complaints.

On his fourth day in the detoxification program, the plaintiff's pain grew worse and he "couldn't even feel [his] legs." He had been "dope-sick plenty of times," and felt that he was suffering from something different. He also asked to see a doctor. In lieu of a doctor, Kathleen Titus, a physician's assistant, prescribed some medication without seeing or examining him. As his condition deteriorated, showering helped provide some relief, but the pain was severe. He experienced "so much pain and delusion," and he "wasn't sleeping" and "wasn't eating." He also defecated in his pants and lost control of his bowel movements.

At 4 a.m. on June 5, a Saturday, Christine Joudrey, the night nurse, noted that the plaintiff had been up most of the night complaining of back pain, and she believed that he needed to be evaluated by a doctor. [Note 6] Both Carlo and LaPointe, who had assessed the plaintiff on June 1 and 2, knew that the plaintiff was an intravenous drug user and was at higher risk for infections than the general population. When the plaintiff asked to see a doctor again, Carlo and "a female nurse who was in her [forties]" (LaPointe) told the plaintiff that he "was faking and there was nothing wrong with [him]." [Note 7] Carlo concluded that the plaintiff's pain was worsening and that his medical baseline had changed in the past two days. Carlo indicated in the plaintiff's medical records that she would refer him to a doctor if his pain persisted all weekend.

LaPointe also saw the plaintiff on June 5, and noted that he was moved to a single cell room with a hospital bed due to vomiting

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and complaints of back pain. [Note 8] She testified that if an inmate told her he was in serious pain, her usual practice was to check vital signs and assess him; if he was "really" in pain, her practice was to call the doctor.

Over the next two days, the plaintiff continued vomiting and complaining about the severe pain and an inability to walk, eat, or sleep. [Note 9] The nurses promised him that a doctor would see him. No doctor came. On Monday, June 7, 2010, Carlo noted that the plaintiff's vital signs were stable, and that his "complaint of back pain related to sleeping on hard floor of police station" the prior week. Despite his inability to walk and severe pain, the plaintiff was cleared from medical watch and released to the general population.

Carlo and LaPointe had no contact with the plaintiff for the next three days. The plaintiff spent that time confined to his bunk, unable to move or eat solid foods. He was unable to walk to the medication line. [Note 10] Both the plaintiff and his cellmate submitted sick call slips that met with no response. During one evening, a concerned correction officer heard the plaintiff groaning and obtained a high-dose Tylenol pill for him in violation of protocol.

On the morning of June 10, another inmate reported to two correction officers that the plaintiff was "feeling ill." When the officers went to the plaintiff's cell, the plaintiff reported that his back was hurting, and that he could not walk. One of the officers stated, "[F]uck these people [in the medical department]. They don't want to do shit." The officers retrieved a wheelchair and brought him to the infirmary. The officers had to lift the plaintiff onto the examining table because he "could not get up on [his] own." While the plaintiff listed his symptoms to Titus, including a sensation that his back was "on fire," loss of feeling, numbness, and a pins and needles sensation in his legs, Titus performed a brief physical examination. Titus concluded that he had a back strain. When Titus told the plaintiff that there was nothing wrong

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with him, he became upset and refused to return to the general population. Titus then returned the plaintiff to the detoxification unit of the infirmary for further monitoring.

Over the next day, the plaintiff's condition deteriorated. Because he could not get out of bed, he urinated and defecated on himself. The other inmates complained about the stench. He also "vomited multiple times," and "became severely dehydrated and disoriented." When Carlo approached him on the morning of June 11, he refused to get out of bed due to the pain. She insisted that he get up, and she recorded a seven out of ten on the pain scale. At the time, she thought the plaintiff's back pain was caused by a back strain.

On June 11, at 8 p.m., LaPointe noted several episodes of incontinence and vomiting and called Dr. Geraldine Somers, the medical director. LaPointe knew incontinence was not a normal symptom of detoxification. Neither LaPointe nor Carlo recorded any vital signs that day. Dr. Somers instructed LaPointe to increase the fluids and call her back a couple of hours later. [Note 11] Dr. Somers eventually visited the plaintiff in person and observed him lying in bed, unable to stand. She noted that he "appear[ed] yellow, dehydrated with sunken eyes," and that he had "chapped lips," a "distended, tense, diffusely tender" belly, low oxygen saturation, and an elevated heart rate. The plaintiff recalled Dr. Somers stating, "Get this man to a hospital ASAP."

When the emergency medical technicians arrived to transfer the plaintiff from his cell to the hospital, they found him lying in ammonia-scented, urine-soaked bedding and clothing. Staff confirmed that he had been unable to move for two days. The plaintiff underwent emergency surgery for an epidural abscess with sepsis. He woke up a month later, a quadriplegic. While the plaintiff has regained most of the use of his arms and legs since 2010, he sustained permanent scarring and disabilities.

Discussion. The plaintiff contends that the nurses acted with deliberate indifference to his serious health needs in violation of his rights under the Eighth Amendment to the United States Constitution. See Leite v. Bergeron, 911 F.3d 47, 53 (1st Cir. 2018). The nurses moved for summary judgment, contending that the evidence, at best, set forth a claim of negligence. They also claimed qualified immunity. A judge denied the motion and the

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nurses appealed therefrom. Their appeal centers on the issue of qualified immunity.

We review de novo the denial of the nurses' motion for summary judgment. See Carey v. Commissioner of Correction, 479 Mass. 367, 369 (2018). "To survive a motion for summary judgment, a nonmoving plaintiff must designate specific facts showing that there is a genuine issue for trial" (quotations and citations omitted). Torres v. Commissioner of Correction, 427 Mass. 611, 614, cert. denied, 525 U.S. 1017 (1998).

"The doctrine of qualified immunity shields government officials, performing discretionary tasks, from liability for civil damages . . . insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known" (quotation and citation omitted). Ahmad v. Department of Correction, 446 Mass. 479, 484 (2006). "For a right to be clearly established, the unlawfulness of the defendants' conduct must be 'apparent' based on then existing law." Id., citing Anderson v. Creighton, 483 U.S. 635, 640 (1987).

Courts resolving qualified immunity claims at summary judgment perform a two-step inquiry, asking whether the facts adduced by the plaintiff "make out a violation of a constitutional right" and, if so, whether that right was "'clearly established' at the time of [the] defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009). See Clancy v. McCabe, 441 Mass. 311, 317 (2004). A negative answer to either query results in the application of qualified immunity in favor of the defendant official. The second prong of the analysis requires a showing that, to overcome immunity, "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted" (citation omitted). Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009). The objective legal reasonableness of the defendant's actions is a question of law for the courts. Ahmad, 446 Mass. at 484. The defendants contend that the plaintiff cannot overcome their qualified immunity under either prong of the standard. We conclude that the law was clearly established for purposes of qualified immunity and that genuine issues of material fact exist regarding the alleged violation of the plaintiff's constitutional rights, so as to preclude summary judgment.

1. Violation of a constitutional right. Under the first prong of the analysis at the summary judgment stage, "[w]e must determine . . . whether the plaintiff has introduced sufficient evidence to create a genuine issue of material fact that [the defendants]

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violated [his] constitutional rights." Clancy, 441 Mass. at 317. An inmate has a constitutional right under the Eighth Amendment to the United States Constitution to adequate medical care. [Note 12] See Farmer v. Brennan, 511 U.S. 825, 832 (1994) (under Eighth Amendment, "prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care"). Deliberate indifference to an inmate's serious medical needs constitutes "unnecessary and wanton infliction of pain," Estelle v. Gamble, 429 U.S. 97, 104 (1976), quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976), and is a cognizable constitutional violation actionable under § 1983, [Note 13] Estelle, supra at 105. In this context, an official acts with deliberate indifference where "he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." [Note 14] Farmer, supra at 847.

Relevant case law provides that mere negligence does not rise to the level of a constitutional violation. See Leavitt v. Correctional Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) ("subpar care amounting to negligence or even malpractice does not give rise to a constitutional claim"). Here, however, a reasonable jury could find that the defendants were more than negligent, and that they knowingly or recklessly disregarded an excessive risk to the plaintiff's health. See Estelle, 429 U.S. at 105-106. On the plaintiff's version of the facts, Carlo concluded (and stated out loud) that the plaintiff was "faking it," failed to have the plaintiff

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evaluated by a doctor as needed on June 5, ignored the plaintiff's repeated requests to see a doctor or go to a hospital, and returned him to the general population despite his persistent, severe pain. [Note 15] The loss of feeling in his legs and his inability to move, as reported by the plaintiff, were not consistent with a back strain. Moreover, when the plaintiff's symptoms required prompt medical evaluation and intervention, both Carlo and LaPointe, a jury could find, ignored his repeated complaints of pain and corroborative symptoms. That Carlo did not associate the plaintiff's back pain with the possibility of an abscess does not necessarily relieve her of potential liability. See Farmer, 511 U.S. at 842 (official's actual knowledge of substantial risk of harm to inmate's health may be found from fact that risk was obvious; whether official had requisite knowledge was question of fact).

Although the application of the relevant standard to LaPointe's alleged conduct is a closer question on the record before us, a jury could infer that she, too, acted with deliberate indifference by, inter alia, ignoring the plaintiff's multiple symptoms and delaying the call to a doctor. Given the evidence of their authority to call for a doctor or to send the plaintiff to the hospital, the nurses cannot find shelter in their adherence to a treatment regimen prescribed by the doctor and the physician's assistant. On the record before us, there was information, albeit disputed, that both nurses knew that the plaintiff faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to address it. The facts in the summary judgment record were thus sufficient to allow a jury to find that both acted with deliberate indifference. See Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011) ("subjective intent is often inferred from behavior and even in the Eighth Amendment context . . . a deliberate intent to harm is not required. . . . Rather, it is enough for the prisoner to show a wanton disregard sufficiently evidenced 'by denial, delay, or interference with prescribed health care'" [citation omitted]). Cf. Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976) ("a prisoner states a proper cause of action [under § 1983] when he alleges that prison authorities have denied reasonable requests for

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medical treatment in the face of an obvious need for such attention where the inmate is thereby exposed to undue suffering or the threat of tangible residual injury").

2. Clearly established law. "On a motion for summary judgment, the relevant question [at the second prong of the analysis] is whether a reasonable official could have believed his actions were lawful in light of clearly established law and the information the official possessed at the time of his allegedly unlawful conduct" (quotation omitted). Clancy, 441 Mass. at 317, quoting Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 91 (1st. Cir. 1994). Existing law need only give the defendants "fair warning that their conduct violated the plaintiff's constitutional rights." Suboh v. District Attorney's Office of the Suffolk Dist., 298 F.3d 81, 93 (1st Cir. 2002). See Maldonado, 568 F.3d at 269. In other words, "[t]o overcome a claim of immunity, it is not necessary for the courts to have previously considered a particular situation identical to the one faced by the government official." Caron v. Silvia, 32 Mass. App. Ct. 271, 273 (1992). "It is enough, rather, that there existed case law sufficient to clearly establish that, if a court were presented with such a situation, the court would find that the plaintiff's rights were violated." Id., quoting Hall v. Ochs, 817 F.2d 920, 925 (1st Cir. 1987). See United States v. Lanier, 520 U.S. 259, 271 (1997), quoting Anderson, 483 U.S. at 640 ("a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though 'the very action in question has [not] previously been held unlawful'").

We are not persuaded by the nurses' argument that the law was not clearly established. To the extent that the defendants challenge the clarity of the law, we agree that the unpublished decisions and those postdating 2010 relied upon by the plaintiff are inadequate by themselves to show that the law was clearly established. However, where, as here, the purported violation is so egregious and obvious, the plaintiff does not need to identify a preexisting case on point or a consensus of persuasive authority. See Lanier, 520 U.S. at 271-272; Raiche v. Pietroski, 623 F.3d 30, 38-39 (1st Cir. 2010) (if conduct clearly violates constitutional right, prior case law precisely on point unnecessary to put reasonable official on notice that conduct was unlawful). See also Ahearn v. Vose, 64 Mass. App. Ct. 403, 420 (2005) (discussion of what constitutes "clearly established" constitutional rights in context of qualified immunity analysis). Compare Krupien v. Ritcey, 94 Mass. App. Ct. 131, 136-137 (2018) (determining that alleged

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conduct violated clearly established right even though exact factual circumstances were unprecedented).

Since at least 1976, the Supreme Court has made clear and reaffirmed that "deliberate indifference to serious medical needs of prisoners . . . [is] proscribed by the Eighth Amendment." Estelle, 429 U.S. at 104. See Helling v. McKinney, 509 U.S. 25, 32 (1993) ("'deliberate indifference to serious medical needs of prisoners' violates the [Eighth] Amendment because it constitutes the unnecessary and wanton infliction of pain contrary to contemporary standards of decency" [citation omitted]). See also Ziglar v. Abbasi, 137 S. Ct. 1843, 1864 (2017) ("The Court has long made clear the standard for claims alleging failure to provide medical treatment to a prisoner -- 'deliberate indifference to serious medical needs'" [citation omitted]). Here, viewing the facts under the summary judgment standard, as we must, the record compels a determination that the defendants should have recognized that the plaintiff was in dire need of medical help, and that they withheld such care. The line of cases cited above furnished to the defendants "fair warning" that their alleged conduct violated the plaintiff's constitutional rights. Suboh, 298 F.3d at 93.

Conclusion. To be clear, there are many factual disputes in this case. A jury, crediting the nurses' version of events, could find that the nursing care provided to the plaintiff was adequate or, at worst, amounted to simple negligence. A jury could also choose not to credit the plaintiff's version of events. These matters, however, are not amenable to resolution at this stage. In short, because the nurses have not established that their actions were protected by qualified immunity as a matter of law, summary judgment was properly denied.

Order denying motion for summary judgment affirmed.