[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]



# United Stat es Court of Appeals

For the First C ircuit

No. 01-1888 HAROLD OMAR MACK, Plaintiff, Appellant,

v. MICHAEL T. MALONEY, ET AL., Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge ]
Before Boudin, Chief Judge , Campbell, Senior Circuit Judge , and Lipez, Circuit Judge .

Harold Omar Mackon brief pro se. Claudia A. Hunter , Kelly Kalandyk Smith and Hunter & Bobit, P.C. on brief for appellee.

March 28, 20021 The constitutional claimhas been treated below as arising

under the Eighth Amendment. Yet given plaintiff's status as a pretrial detainee, it should probably instead be viewed as resting on the Due Process Clause. See , e.g. , Elliott v. Cheshire County, New Hampshire , 940 F.2d 7, 10 & n.2 (1 st Cir. 1991). -2- Per Curiam . Plaintiff/appellant Harold Mack filed this pro se action under 42 U.S.C. § 1983, complaining inter alia that he had been improperly treated with antipsychotic drugs while being detained prior to trial. Eleven individuals
were named as defendants. In a J une 14, 2001 order, the district court granted a motion to dismiss filed by one of the defendants (David Hammond, M.D.) and certified the matter for immediate appeal under Fed. R. Civ. P. 54(b). We dismiss the appeal on the ground that the Rule 54(b) certification was improvidently granted.

Plaintiff's vague complaint has been construed as advancing three claims against defendant Hammond: (1) a federal constitutional cl aim ; 1 (2) a claim for intentional infliction of emotional distress; and (3) a claim for medical malpractice. The third-listed claimwas referred to a malpractice tribunal,
see , e.g. , Feinstein v. Massachusetts General Hosp. , 643 F.2d 880 (1 st Cir. 1981), whi ch ruledin Hammond's favor. When plaintiff fa iled t o post the required bond, Hammond moved to dismiss the malpractice claim. The district c ourt , adopting the recommendation of a magistrate-judge, granted that motion and issued its Rule 54(b) certification.2 We need not decide whether the emotional-distress claim

likewise remains pending, or whether it instead was effectively incorporatedwithin the matters referred to the tribunal. Cf. Kapp v. Balantine , 380 Mass. 186, 190, 196 (1980) (suggesting that such a claim can properly be submitted to tribunal). -3- In support of the court's certification, Hammond now asserts that its orde r n ot only disposed of the malpractice claimbut "sua sponte" dismissed the other two claims as well. We disagree. Th e magistrate-judge stated that "any Eighth Amendment claims ... should survive" the motion to dismiss. Dkt. # 66, at 2 n.1. The district court made no me nti on of "modif[ying]" this aspect of the report, as Hammond argues; ins tead, it simply "adopted" the report "[f]or the reaso n s stated" therein. Dkt. # 69, at 1. Moreover, in later granting similar motions filed by s ix other defendants, the court expl icitlystated that "the Eighth Amendment claims remain." Dkt. # 81 (margin order). There is n o basis fo r suspecting that the court intended to treat Hammond's motion any differently than the others.

Accordingly, we think it clear that plaintiff's constitutional claim against Hammond remains unadj udic ated. 2 This circumstance alone renders the certification "particularly suspect," Kerseyv. Dennison Mfg. Co. , 3 F.3d 482, 487 (1 st Cir. 1993), since resort to Rule 54(b ) will rarely be appropriate "when the contestants on appeal remain, simultaneously, contestants below," Spiegel v. Trustees of Tufts College , 843-4-

F.2d38, 44 (1 st Cir. 1988). Further, the "substan tial ... prospect of contextual overlap" here between the certified and pending claims, Kersey , 3 F.3d at 487, counsels against interlocutory review.

The di stri ct court did not explain its reasons for the certif icat ion but almost certainly had in mind Hammond's assertion that the pending of th e malpractice claim must be reportedto his insurer and the State Board of Registration of Medicine until a final judgment is entered. We are not unsympathetic to this concern, but no financial consequences of repo rting are alleged and, at least where related unadjusted claims are pending against the sam e defe ndant, it is unclear how interlocutory review of one claim would remove whatever cloud may exist.

The appeal is dismissed without prejudice for want of appellate jurisdiction. The case is remanded to the district court for further proceedings consistent with this opinion. No costs.