*Of the District of Maine, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-2611

MARÍA ALSINA-ORTIZ; THE ESTATE OF ORLANDO OCASIO-ALSINA,

(composed of María Alsina-Ocasio)

Plaintiffs, Appellants,

v.

ZOÉ LABOY; CONJUGAL PARTNERSHIP OCHOA-LABOY; SIXTO MARRERO;

CÁNDIDA ROSA ORTIZ-ZAYAS, a/k/a JANE DOE 98CV1893; CONJUGAL

PARTNERSHIP DOE-GUZMÁN; EMILIO CASTILLO; MERCEDES ROSADO, a/k/a

MARY DOE; 98CV1893; CONJUGAL PARTNERSHIP CASTILLO ROSADO; ILEANA

TORRES-MOJICA; JOE DOE 98CV1893; CONJUGAL PARTNERSHIP DOE-TORRES;

CONJUGAL PARTNERSHIP TORRES-MÉNDEZ; CLARK DOE 98CV1893; CONJUGAL

PARTNERSHIP MELECIO-AYALA, a/k/a CONJUGAL PARTNERSHIP MELECIODOE; JAKE DOE 98CV1893,

Defendants, Appellees.

__________

DELFOS OCHOA, a/k/a JOHN DOE 98CV1893; ELLIOT MELECIO-VEGA;

AMARILIS AYALA-MARTÍNEZ, wife of Dr. Elliot Melecio-Vega; ERNESTO

TORRES-ARROYO; OLGA I. MÉNDEZ-FLORES, a/k/a NANCY DOE 98CV1893;

AIDA GUZMÁN; ILEANA TORRES-MOJICA,

Defendants. 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella, Circuit Judge,

and Carter,* District Judge. 
Glenn Carl James-Hernández with whom James Law Offices was on

brief for appellants.

Irene S. Soroeta-Kodesh, Assistant Solicitor General,

Department of Justice, Office of the Solicitor General, with whom

Roberto J. Sánchez-Ramos, Solicitor General, and Kenneth PamiasVelázquez, Deputy Solicitor General, were on brief for appellees

Zoé Laboy, Sixto Marrero and Emilio Castillo.

March 9, 2005
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BOUDIN, Chief Judge. This case arises out the death in

prison of Orlando Ocasio Alsina ("Ocasio") and the subsequent suit

of his mother and heir, María Alsina Ortiz ("Alsina"), against

various Puerto Rico prison officials.

On November 8, 1997, Ocasio--then an inmate at the

Bayamón prison in Puerto Rico--was injured by a blow to the head in

a prison riot. He received medical attention at a regional

hospital but was left with head pain, convulsions, and one side of

his body paralyzed. CT scans showed no brain damage and Ocasio was

returned to his cell at Bayamón on November 15. It is his

treatment, or the lack of it, during the next six weeks that is the

present subject of this litigation.

Drawing permissible inferences in favor of Alsina, it

appears likely that during this six-week period Ocasio was in

considerable pain, was seriously disabled, cried and screamed in

pain and, half paralyzed, could not get about. There is some

evidence that Emilio Castillo, then a prison guard lieutenant in

contact with Ocasio, was aware of his plight but did nothing to

secure medical care for him.

Within a few weeks after the injury, family members

visited Ocasio; his mother made efforts to secure a wheelchair and

further medical care for him, and made pleas to the prison staff on

Ocasio's behalf. A wheelchair was provided on December 17, two

days after a request was made. On December 23, a local court
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granted a motion brought by Ocasio, requiring that he be provided

with further medical evaluation and treatment.

On January 1, 1998, Ocasio was transferred to the

infirmary at the Río Piedras prison hospital, where he was

diagnosed with AIDS and toxoplasmosis (a parasitic infection).

Medical records indicate that there was a threat by this time that

his brain function would be impaired by lack of oxygen due to

inflammation. Starting the next day, Ocasio was treated for

approximately two weeks at an outside medical center, and he

continued to take medication after his return to Bayamón; in March

he was again admitted for medical care, sometimes receiving

treatment in hospital facilities and sometimes in prison facilities

under supervision.

Ocasio died on May 11, 1998; an autopsy found his cause

of death to have been brain inflammation associated with AIDS. On

August 5, 1998, his mother brought suit in federal court asserting

claims under 42 U.S.C. § 1983 (2000) and under state law against a

number of defendants, charging both prison officials and medical

personnel with a variety of derelictions. Over the next 21 months

there was extensive discovery and eventually motions for summary

judgment by the defendants.

Ultimately the magistrate judge recommended that the

motions be granted, relying in part on his assessment of the merits

and in part on what he found to be Alsina's failure to comply with
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a local rule requiring that the party opposing summary judgment

file a concise statement of material facts allegedly in dispute.

The district judge wrote his own opinion along the same lines,

sustaining the recommended disposition and dismissing the federal

claims with prejudice and the local law claims without prejudice.

This appeal followed.

On appeal Alsina has abandoned her federal claims against

everyone (e.g., medical personnel) except for three defendants: Zoe

Laboy-Alvarado ("Laboy"), who was in December 1997 Administrator of

Corrections in Puerto Rico; Sixto Marrero-Rodríguez ("Marrero"),

then sub-director of the Bayamón Correctional Complex; and

Castillo, the prison guard already mentioned. We confine our

discussion to these defendants.

As to all three, the central charge was that they were

liable under section 1983 for violation of the Eighth Amendment

(protecting against cruel and unusual punishment) by exhibiting

deliberate indifference to Ocasio's patent and severe medical

needs. See Estelle v. Gamble, 429 U.S. 97, 101-06 (1976).

However, Alsina's theories as to just how the defendants were

individually liable were multiple and presented with less than

perfect clarity.

In some renditions, Alsina seemingly claimed that the

three defendants were responsible for providing medical care to

Ocasio and failed in this duty. The district court rejected any
2The consent decree derives from a class action started in the

1980s and designed to reform conditions and health care in the

Puerto Rico prison system. The consent decree included a medical

care plan developed and entered into by the Administration of

Corrections and the Department of Health in response to the

litigation. See Carlos Morales Feliciano v. Roselló González, 13

F. Supp. 2d 151, 156-61 (D.P.R. 1998).

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such theory: it said that under the governing division of

responsibilities, based in part on a federal consent decree,2 the

actual furnishing of prison health care in Bayamón was the duty of

the Commonwealth Department of Health--not the Administration of

Corrections with which all three defendants were alone associated.

Alsina does not challenge this ruling on appeal.

Instead, she argues that at least the prison authorities

have a duty to notify the health professionals if and when

prisoners need medical attention. Cf. Estelle, 429 U.S. at 104-05;

Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985). The

defendants do not deny such a responsibility; instead, they say

that Alsina failed to file a compliant motion of contested facts

and that, on the resulting record, the three defendants lacked

knowledge sufficient to trigger a responsibility to summon medical

help any earlier than it was provided.

A local rule of the district court (then Rule 311.12, now

revised and renumbered as Rule 56) requires that a party seeking

summary judgment supply a list of the allegedly uncontested facts

on which it relies (together with record citations) and that the

opposing papers include "a separate, short, and concise statement
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of the material facts" (again with "specific" record references)

that the opponent asserts require a trial. This "anti-ferret" rule

aims to make the parties organize the evidence rather than leaving

the burden upon the district judge.

Where the party opposing summary judgment fails to

comply, the rule permits the district court to treat the moving

party's statement of facts as uncontested, Cosme-Rosado v. SerranoRodriguez, 360 F.3d 42, 46 (1st Cir. 2004), and we have regularly

upheld its enforcement. See, e.g., Morales v. A.C. Orssleff's

EFTF, 246 F.3d 32, 32-35 (1st Cir. 2001). However, whether the

rule has been violated is a different question, easily answered

where the opponent fails to file any statement or omits all record

citations but less so where the deficiency is of a different kind.

In this instance, Laboy and Marrero offered 14 paragraphs

of allegedly uncontested facts in four pages; Alsina's

corresponding statements as to just these two defendants spanned 60

pages and 130 facts--many being irrelevant, repetitive or

unsupported by record citation. There is no mechanical rule

rendering a long statement insufficiently "short" and "concise";

after all, a case could have a great many material contested facts.

And in this instance Alsina was making a number of quite different

claims against different defendants based on different theories.

Nevertheless, having reviewed the opposing statements

filed by Alsina, we do not think the statements even arguably
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comply with the spirit or letter of the rule. Burying the district

court in a mass of supposedly material contested facts, many

irrelevant and many unsupported by citations, creates the very

morass from which the rule aims to protect the district judge. In

this case, Alsina simply dumped an undigested record on the judge,

expecting him to do counsel's job.

That fact alone is not necessarily decisive of the

outcome in this case. It mainly means that the district judge can

accept the moving party's allegedly uncontested facts as true, but

whether or not this justifies summary judgment for the moving party

depends upon the legal and factual configuration that results.

See, e.g., Guzman-Rosario v. United Parcel Serv., Inc., 2005 WL

248072, at *2 (1st Cir. Feb. 3, 2005). In the case of Castillo,

summary judgment was not appropriate; but as to Laboy and Marrero,

we think summary judgment was properly granted. We begin with the

claims against the latter two defendants.

In this instance, the complaint charged that the two

supervising officials (Laboy and Marrero) "knew or should have

known" that Ocasio was getting inadequate care; and as to Marrero

it alleged that he must have known because family complaints about

Ocasio's condition were made to the prison staff. However, any

claim that either of them knew is defeated by defendants' explicit

assertions in their statement of uncontested facts that they did
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not know about Ocasio's suffering. As it happens, there is no

direct evidence to show that they did.

Specifically, no evidence suggests that Laboy--at the top

of the hierarchy--had any knowledge of Ocasio's situation that

could be the premise for a claim of deliberate indifference.

Alsina points us to some evidence that the family complained to

Marrero’s staff, which (depending upon the circumstances) might or

might not permit an inference of knowledge. But, under the antiferret rule, Marrero’s flat denial of notice is conclusive. As to

the "should have known" claim, negligence is not a basis for

liability under an Eighth Amendment theory. Farmer v. Brennan, 511

U.S. 825, 835-40 (1994); Maldonado-Denis v. Castillo-Rodriguez, 23

F.3d 576, 582 (1st Cir. 1994).

Yet Alsina's complaint might be regarded as also making

a somewhat different claim against these defendants: that they at

least knew in general of a pattern or practice of subordinates that

menaced the constitutional rights of prisoners and had authority to

take remedial measures, but instead were deliberately indifferent

to this threat. There is case law that supports such a theory,

although showing that such an omission caused a particular injury

may be quite difficult. Maldonado-Denis, 23 F.3d at 582-83; see

also Miranda, 770 F.2d at 260.

To prevail on such a theory Alsina would have to show

that (1) during the relevant time period Laboy or Marrero knew of
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a continuing pattern of culpable failures by guards or other prison

staff to refer to health providers those prisoners with colorable

complaints or manifest symptoms, and (2) that, having authority

over the subject, Laboy or Marrero made no reasonable attempt to

remedy such deficiencies. See Miranda, 770 F.2d at 260-61. A

further problem would be to show that Ocasio’s suffering or death

would have been prevented by reasonable remedial efforts.

Neither the magistrate judge nor the district judge dealt

directly with such a "pattern or practice" theory. Their

discussion properly rejected claims premised on the prison

authorities' overall responsibility for health care and on claims

assuming actual knowledge of Ocasio's condition by Laboy and

Marrero; neither judge directly responded to the supervisory theory

outlined above. This may be due in part to Alsina's somewhat

cloudy articulation of the theory; nonetheless, it was suggested

and we will not treat it as forfeit but rather consider it on the

merits.

Here, Alsina charged that there was widespread knowledge

by high prison officials in Puerto Rico that prison medical care

was very poor; this, Alsina says, was apparent from the consent

decree, published reports, newspaper stories, and the like.

Defendants' statement of uncontested facts did not negate this

awareness; indeed, in their depositions neither defendant denied

having some familiarity with health care problems in the system,
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although neither professed a very precise recollection about what

exactly he or she had read and when. Because the consent decree

mandated future training of prison personnel, it can also be

inferred that inadequate training had been a problem prior to the

consent decree.

But knowledge of earlier inadequate training--and even

knowledge that it remained a prison responsibility to give guards

some training--is a mile away from showing willful blindness or

deliberate indifference to a supposed continued failure of

training. There was no evidence adduced by Alsina that the

training regime for guards in place after the transfer of general

responsibility for care to the Department of Health had failed on

a large scale (Castillo is one case) and--more to the point--no

proof that, if it had, either defendant knew that it had or was

willfully blind or indifferent to that failure.

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. See Farmer, 511 U.S. at 839-40; FebusRodriguez v. Betancourt-Lebron, 14 F.3d 87, 92 (1st Cir. 1994).

Alsina has pointed to no evidence whatever that either Laboy or

Marrero knew in late 1997 that there was a continuing pattern by

guards--specifically, of failures to report inmate medical needs--

from which the defendants then averted their eyes.
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The story is different as to Castillo. The complaint

charged that Castillo knew of Ocasio's medical needs and did

nothing (also that he "should have known," but that allegation is

insufficient). Castillo filed no separate statement of uncontested

facts but merely adopted the statement of other defendants--which

contained no denial of knowledge on Castillo's part. Accordingly,

the anti-ferret rule does not preclude Alsina from arguing that

Castillo did have knowledge of Ocasio's desperate condition and did

nothing about it.

The statement of undisputed facts does state that Ocasio

never filed a formal complaint of inadequate care, but this hardly

negates the possibility that he was manifestly in need of

attention. Further, in discovery one inmate testified that

Ocasio's fellow prisoners had told Castillo of Ocasio's need for

medical treatment, and that these requests were ignored; another

inmate testified that Ocasio himself requested of Castillo that he

be relocated to a medical facility to treat what he suspected was

a blood clot or head injury, and that Castillo ignored him.

The helpful joint brief filed on defendants' behalf makes

several different arguments as to Castillo. One theme, that

Castillo was not a care provider, is no answer. So far as appears,

prison officials still had a duty to report health needs to the

doctors. Castillo might deny knowledge of such a duty, but he has
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not done so; and, of course, the denial might well not be credible

or sufficient.

The defense brief also asserts that Castillo, himself not

a health care professional, should not be expected to parse

symptoms, especially of someone already under medical care.

Reasonable reliance on others and lack of expertise may both be

fair points. But if Castillo knew of prolonged, manifest, and

agonizing pain being suffered by Ocasio and did nothing to advise

others, we can hardly say it would be impossible to find deliberate

indifference.

Finally, the defendants' brief mentions Alsina's supposed

failure to prove precisely when Castillo ignored Ocasio's

complaints. However, two prisoners testified that Castillo learned

of Ocasio's condition in mid-November--shortly after Ocasio was

returned to his cell from the regional hospital following the riot.

Alsina has offered enough evidence as to Castillo--that he got

complaints and had knowledge of Ocasio's extreme suffering--to

raise a trial-worthy issue.

None of the allegations of the other prisoners concerning

Castillo may be true and, if true, there may be other reasons why

Castillo is not guilty of deliberate indifference. Even if there

were complaints, Castillo might still have believed that nothing

more could be done by doctors. Or Castillo may have passed

information about Ocasio on to superiors or to health authorities.
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But given the evidence already recounted, summary judgment in his

favor was not warranted, nor has Castillo thus far adduced facts

sufficient to merit qualified immunity.

The judgment dismissing Alsina's claims against Laboy and

Marrero is affirmed; as to Castillo, the judgment is vacated and

the case remanded for further proceedings. Each side shall bear

its own costs on this appeal.

It is so ordered.