Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1763

KEITH NIEMIC,

Plaintiff, Appellant,

v.

STAN GALAS, ET AL.,

Defendants, Appellees,

_____________________

DAVID NOLAN, ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Selya, Senior Circuit Judge,

and Lipez, Circuit Judge.

Keith Niemic on brief pro se.

James A. Bello, Lisa R. Wichter, and Morrison Mahoney LLP on

brief for appellees.

July 28, 2008
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Per Curiam. Appellant Keith Niemic, a Massachusetts

inmate, filed this civil-rights action complaining of inadequate

medical care, denial of court access, and other constitutional and

state-law violations. The twenty named defendants consist of

twelve "corrections defendants," i.e., employees of the Department

of Corrections, and eight "medical defendants," i.e., employees of

UMass Correctional Health ("UMCH"), which is the entity engaged to

provide medical care to inmates. When the medical defendants moved

for summary judgment, Niemic sought a continuance under Fed. R.

Civ. P. 56(f), explaining that he lacked information needed to file

an opposition. The district court denied that request and granted

summary judgment. With the claims against the corrections

defendants still pending, the court then agreed, at the medical

defendants' behest, to enter a separate and final judgment under

Fed. R. Civ. P. 54(b). Niemic now appeals from this ruling.

Having satisfied ourselves that the case is properly before us, we

affirm.

Although neither party has questioned the Rule 54(b)

determination, "we are duty bound to take it up sua sponte" since

the issue "implicates the scope of our appellate jurisdiction."

Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1 Cir. st

1988). Rule 54(b) permits a district court, in cases involving

multiple claims or parties, to direct entry of a final judgment "as

to one or more, but fewer than all, claims or parties" if it
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"expressly determines that there is no just reason for delay."

Review of such a certification comprises two steps. We first ask

"whether the judgment has the requisite aspects of finality." Id.

The answer to that question is not in doubt here, since the

judgment dismissed all claims against the medical defendants. We

then scrutinize the determination that there is no just reason for

delay. In doing so, we examine "the sufficiency of the district

court's assessments of (1) any interrelationship or overlap among

the various legal and factual issues involved in the dismissed and

the pending claims, and (2) any equities and efficiencies

implicated by the requested piecemeal review." Credit Francais

Int'l, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 706 (1st Cir. 1996).

At our request, the district court provided a written

explanation for its Rule 54(b) determination. It there cited the

need to protect the medical defendants from "unnecessary cost and

apprehension," noting that the case against the other defendants

would likely "continue indefinitely" since they had not yet filed

dispositive motions. Absent from this discussion, however, was any

consideration of the interrelationship between the dismissed and

pending claims. While this omission reduces the degree of

deference owed to the court's explanation, see, e.g., Spiegel, 843

F.2d at 43-44, our independent review reveals only minimal overlap

between the two sets of claims. As narrowed on appeal, the

accusations against the medical defendants are largely confined to
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claims under the Eighth Amendment--to the effect that the treatment

of Niemic's migraine headaches and hepatitis C was so deficient as

to amount to deliberate indifference. These claims carry a

significant potential for overlap with the allegations against only

one of the corrections defendants: Susan Martin, the department's

director of health services. Of the charges against her, the most

noteworthy in this regard is that she, along with several other

supervisors, approved flawed medical decisions concerning the

treatment of Niemic's migraines; such conduct allegedly contributed

to the persistence of his migraine pain and thereby played a role

in the cessation of his hepatitis C treatment. Yet in the

pertinent count of the complaint, the only specific reference to

these events is a charge, brought against Martin and six other

defendants, focusing on "the delay and denial of access to ... a

neurologist."

We find that the claims against Martin are not so

intertwined with the adjudicated claims as to invalidate the Rule

54(b) certification. It is unlikely that this court will be

"confronted in successive appeals with common issues of law or

fact, to the detriment of judicial efficiency." Kersey v. Dennison

Mfg. Co., 3 F.3d 482, 487 (1 Cir. 1993). Moreover, the judgment st

here jettisoned certain parties, rather than certain claims, from

the case. Cf. Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,

579-81 (1 Cir. 1994) (upholding certification in former context); st
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Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39-40 (1 Cir. st

1991) (same). And while it is difficult to say that there is a

"pressing, exceptional need for immediate intervention" here, id.

at 45, the district court's concern about "unnecessary cost and

apprehension" is a permissible consideration, see, e.g., McKibben

v. Chubb, 840 F.2d 1525, 1528 n.5 (10 Cir. 1988). Although we th

find this a close case, we allow the Rule 54(b) determination to

stand.

The merits of the appeal do not require extended

analysis. On the basis of the extant record, an award of summary

judgment for the medical defendants was plainly justified. Niemic

advances a two-pronged Eighth Amendment challenge. First, he

contends that defendants inadequately treated his migraines and

thereby effectively caused him to terminate his hepatitis C

treatment (since the side-effects thereof aggravated the migraine

pain). Yet it is undisputed that, over a span of two and one-half

years, some 21 different medications were prescribed in an effort

to address Niemic's headaches. Far from acting in "wanton

disregard" of his rights, DesRosiers v. Moran, 949 F.2d 15, 18 (1st

Cir. 1991), the medical defendants were "responsive to [Niemic's]

complaints, expended substantial resources trying to get to the

root of his problem, and adopted other measures in an effort to

alleviate his discomfort," Feeney v. Corr. Med. Servs., Inc., 464

F.3d 158, 162-63 (1 Cir. 2006), cert. denied, 128 S. Ct. 105 st
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(2007). Niemic's chief remonstrance appears to be directed at

defendants' refusal to continue him on a narcotic with which he was

initially treated. Yet "disagreement as to the appropriate course

of treatment ... [is] insufficient to prove a constitutional

violation." Ruiz-Rosa v. Rullán, 485 F.3d 150, 156 (1 Cir. 2007). st

Second, Niemic questions the decision to discontinue the

hepatitis C treatment because of his suspected drug use. The

record establishes that defendants' "common practice" is to require

that patients abstain from the use of illegal substances for one

year prior to receiving such treatment. Niemic provides no basis

to question the medical justification for this practice; indeed,

the (Mason) affidavit on which he relies supports such an approach.

Niemic's cursory challenge to the finding of substance

abuse also falls short, especially since the urinalysis lab report

confirmed the presence of cocaine and morphine. On appeal, Niemic

relies on a 1987 state court document addressing urinalysis

testing, but he did not do so below and, in any event, has not

explained its relevance. 

Niemic's principal objection to the summary judgment

motion in the district court was based not on the merits but,

rather, on Fed. R. Civ. P. 56(f)--the "procedural escape hatch for

a party who genuinely requires additional time to marshal facts

essential to justify [his] opposition." Paterson-Leitch Co. v.

Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1 Cir. 1988) st
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(internal quotation marks omitted). On appeal, however, he has

offered no sustained argumentation in support of this issue and,

thus, has forfeited it. See, e.g., United States v. Jiminez, 498

F.3d 82, 88 (1 Cir. 2007). st

Even were we to consider the matter, Niemic would fall

short. A party seeking to invoke Rule 56(f) must establish 

(i) good cause for his inability to have

discovered or marshalled the necessary facts

earlier in the proceedings; (ii) a plausible

basis for believing that additional facts

probably exist and can be retrieved within a

reasonable time; and (iii) an explanation of

how those facts, if collected, will suffice to

defeat the pending summary judgment motion.

Rivera-Torres v. Rey-Hernandez, 502 F.3d 7, 10 (1 Cir. 2007). st

Also required is a demonstration of "due diligence both in pursuing

discovery before the summary judgment initiative surfaces and in

pursuing an extension of time thereafter." Resolution Trust Corp.

v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1 Cir. 1994). As st

Niemic has failed to satisfy several of these criteria, the denial

of Rule 56(f) relief cannot be deemed an abuse of discretion. We

explain briefly.

Niemic cited three justifications for a postponement:

difficulty in accessing his legal papers; delayed access to medical

records; and a "ransacking" of his prison cell. The first, he

explained, was mainly due to his movement between prisons. As to

the second, Niemic complained generally about requests for medical

records or copies thereof being denied. And the prison-cell
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incident, which occurred in his absence shortly after the summary

judgment motion arrived, allegedly resulted in his papers being

strewn about and several discovery requests going missing. 

These reasons prove inadequate. For one thing, Niemic

acknowledged gaining access to all of his legal materials two and

one-half months before the summary judgment motion was filed. For

another, he not only failed to describe what medical records were

allegedly withheld from him but, more important, failed to document

that any actually were withheld. The summary judgment motion

itself was accompanied by over 300 pages of medical records, which

Niemic has never described as being incomplete. As to the alleged

ransacking, Niemic did not explain why any missing discovery

requests could not have been promptly redrafted and served.

Moreover, the grievance he filed in connection with that incident

only complained of missing jewelry, not missing papers.

More generally, Niemic never explained in his Rule 56(f)

filings what additional facts likely existed or how they would be

material. Nor did he attempt to do so thereafter. It is

noteworthy that, in the wake of the summary judgment ruling, he

asserted several times that he finally had gained complete access

"to his own (long sought) medical and legal records" and that,

based thereon, a genuine issue of material fact "could easily be

shown." But he never endeavored to make such a showing, either

below or on appeal.
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In a final argument, Niemic faults the district court for

not advising him of the Rule 56 requirements, particularly "the

necessity of filing affidavits." Yet a court is under no duty to

tutor a pro se litigant. Moreover, Niemic's professed ignorance is

belied by the record. Approximately six months before the summary

judgment motion was filed (and twelve months before it was

decided), he submitted a document citing Rule 56(f) and stating

that, because of incomplete discovery, he was not then in a

position to "submit[] the necessary affidavits or other evidence to

oppose" a summary judgment motion.

Affirmed.