James K. Bredar, United States District Judge.
Dorothy F. Gardner, Christopher Gardner, and Brendan Gardner (collectively, "Plaintiffs") brought a wrongful-death action against the United States of America and certain medical and correctional personnel employed at the Federal Correctional Institution, Cumberland ("FCI Cumberland"), a Federal Bureau of Prisons ("BOP") facility located in Maryland. Plaintiffs' claims arise from the 2013 death of Stephen P. Gardner ("the Decedent"), deceased spouse of Dorothy and father of Christopher and Brendan. Plaintiffs named as Defendants Dr. Mohamed Moubarek ("Dr. Moubarek"); Dr. Michael Lin ("Dr. Lin"); Physician Assistant Tom Gera ("PA Gera");
Now pending before the Court is the Individual Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 19.) The issues have been briefed (ECF Nos. 19-1, 43 & 48), and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the reasons explained below, the Court will convert the Individual Defendants' motion via Rule 12(d) of the Federal Rules of Civil Procedure; analyze the case pursuant to the summary-judgment framework of Rule 56; and GRANT the motion, entering judgment for the Individual Defendants on Plaintiffs' Eighth Amendment count.
On December 11, 2008, the Decedent was sentenced in the United States District Court for the Southern District of California to a ninety-seven month term of incarceration after pleading guilty to charges of securities fraud, conspiracy, and obstruction of justice. (ECF No. 19-3 at 1-2.) Because of the Decedent's significant medical history, which included a diagnosis of coronary artery disease and two prior heart attacks, the BOP initially designated him to the Federal Medical Center, Devens ("FMC Devens"), a facility located in Massachusetts. (ECF No. 1 ¶¶ 23-24, 26.) In advance of the Decedent's arrival at FMC Devens, his primary-care physician submitted a letter to the prison medical staff detailing the Decedent's medical history, his required treatment, and his prescription regimen. (Id. ¶¶ 25-30.)
Upon arriving at FMC Devens in April 2009, the Decedent underwent a medical examination; he informed the examining physician that he had last taken nitroglycerin for chest pain in 2007. (ECF No. 20 at 1.) In November of that year, the Decedent requested a medical discharge and reassignment to the Federal Prison Camp, Devens ("FPC Devens") (ECF No. 21 at 1); in connection with this transfer request, the Decedent met with a cardiologist, who reported that from a "cardiac standpoint" the Decedent "appear[ed] to be doing well" and that he had "denied chest pain, dyspnea, orthopnea, PND, palpitations, dizziness or syncope." (ECF No. 22 at 1-2.) Following additional examinations and tests, the Decedent was reassigned to FPC Devens (ECF No. 19-10 at 1); thereafter, in April 2013, he was transferred to FCI Cumberland (ECF No. 19-12 at 1).
Because the Decedent was not placed on any work restrictions at FCI Cumberland, he was assigned a standard job as a janitor/groundskeeper. (ECF No. 1 ¶ 53.) Plaintiffs allege that the Decedent's work crew was supervised by Defendant Officer Bennett (id. ¶ 54), though Officer Bennett attested that he was merely a substitute supervisor during the week of the Decedent's death. (ECF No. 19-28 at 1.)
On July 17, 2013, at approximately 6:00 p.m., Nurse Eckard was summoned to the Decedent's housing unit: he informed her that "he had chest pressure and had just been working out prior to [the] onset of chest pain." (ECF No. 32 at 1.)
On December 22, 2014, Plaintiffs submitted an administrative tort claim to the BOP, which claim the BOP denied by correspondence dated March 26, 2015. (Id. ¶ 5.) On August 5, 2015, Plaintiffs filed a claim with the Maryland Health Care Alternative Dispute Resolution Office. (Id. ¶ 7.) Pursuant to Md. Code Ann., Cts. & Jud. Proc. § 3-2A-06B, Plaintiffs also filed a waiver of arbitration (see ECF No. 1-1); they subsequently filed a Complaint in this Court, charging the Individual Defendants with deliberate indifference in violation of the Eighth Amendment (Count I) and seeking recovery from the United States under the FTCA (Count II) (ECF No. 1). The United States answered Plaintiffs' Complaint (ECF No. 38), while the Individual Defendants moved to dismiss or, in the alternative, for summary judgment (ECF No. 19). Plaintiffs opposed the Individual Defendants' motion (ECF No. 43), and the Individual Defendants replied (ECF No. 48). The matter is ripe for decision.
The Eighth Amendment to the United States Constitution prohibits "cruel and unusual punishments," such as those involving the "unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). In Estelle v. Gamble, the Supreme Court of the United States held that "deliberate indifference to serious medical needs of prisoners" constitutes the wanton infliction of pain, regardless whether the indifference is "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (footnotes omitted). In so holding, the Court cautioned that not every allegation of inadequate medical treatment states a claim under the Eighth Amendment. Id. at 105, 97 S.Ct. 285. Neither an "inadvertent failure to provide adequate medical care" nor "negligen[ce] in diagnosing or treating a medical condition" amounts to deliberate indifference. Id. at 105-06, 97 S.Ct. 285.
Following Estelle, lower courts have crafted a framework for assessing Eighth Amendment deliberate-indifference claims. To prevail on such a claim, the plaintiff must prove two elements: "(1) that the deprivation of a basic human need, as an objective matter, was sufficiently serious; and (2) that, when viewed from a subjective perspective, prison officials acted with a sufficiently culpable state of mind." King v. United States, 536 Fed. Appx. 358, 360 (4th Cir.2013) (emphasis added) (citing De'lonta v. Johnson, 708 F.3d 520, 525 (4th Cir.2013)). As the United States Court of Appeals for the Fourth Circuit has emphasized, courts must "consider prison officials' culpable mental state because `only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.'" Id. at 360 (quoting Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). "To constitute deliberate indifference to a serious medical need, `the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.'" Id. at 361 (alteration in original) (quoting Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir.1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d
Most deliberate-indifference cases address the "denial of medical care to a prisoner rather than the provision of substandard care; `no care,' rather than `bad care.'" Jones v. United States, Civ. No. 1:11cv115, 2012 WL 7681938, at *7 (N.D.W.Va. Dec. 18, 2012), report adopted, 2013 WL 955202 (N.D.W.Va. Mar. 12, 2013), aff'd, 531 Fed.Appx. 306 (4th Cir. 2013) (mem.). To be sure, a claim arising from substandard care may be cognizable — but only in unusual circumstances, such as where the treatment provided is "so cursory as to amount to no treatment at all," King, 536 Fed.Appx. at 362 (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.1999)).
The Individual Defendants have moved to dismiss or, in the alternative, for summary judgment. Such a motion "implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure," Sager v. Hous. Comm'n of Anne Arundel Cty., 855 F.Supp.2d 524, 542 (D.Md.2012), which rule states that "[i]f, on a motion under Rule 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Styling a motion in the alternative (as the Individual Defendants have done here) is "sufficient to provide notice to all parties that the motion may be converted to one for summary judgment," Strothers v. City of Laurel, 118 F.Supp.3d 852, 860 (D.Md.2015).
"Ordinarily, summary judgment is inappropriate `where the parties have not had an opportunity for reasonable discovery.'" Sager, 855 F.Supp.2d at 542 (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir.2011)). Even so, "the party opposing summary judgment `cannot complain that summary judgment was granted without discovery unless that party had made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir.2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.1996)). The opponent typically must file an affidavit or declaration pursuant to Rule 56(d), proffering specific reasons why, without discovery, it cannot present facts essential to its opposition. Rule 56(d) affidavits may not demand discovery for discovery's sake; a Rule 56(d) request is properly denied "where the additional evidence sought ... would not have by itself created a genuine issue of material fact
In this case, Plaintiffs' counsel attached a Rule 56(d) declaration to Plaintiffs' opposition brief, outlining Plaintiffs' proposed discovery. (See ECF No. 43-1.) As a preliminary matter, the Court notes that much of the proposed discovery seems only tangentially related to the key questions before the Court — i.e., whether Plaintiffs have pleaded a plausible case for deliberate indifference, and whether (with discovery) Plaintiffs could reasonably be expected to generate at least a triable question of fact as to any such indifference. Plaintiffs propose to probe the circumstances of July 17, 2013, including the hours the Decedent worked, the number of breaks he took, and the nature of his exercise that evening, as well as any investigatory steps officials undertook in response to the Decedent's death. (Id. at 4-5.) Some of this proposed discovery might yield evidence relevant to Plaintiffs' FTCA claim, but none of it seems especially germane to the Individual Defendants' Eighth Amendment liability.
That said, Plaintiffs' counsel does identify several lines of inquiry that could theoretically lead to relevant evidence, such as (1) the Individual Defendants' knowledge of the Decedent's prior medical history; (2) the Individual Defendants' familiarity with cardiac care and risk prevention; and (3) the BOP's protocols governing cardiac health management. Plainly, if a Defendant admitted on deposition that he or she knew the Decedent required stress testing or light duty and, throwing caution to the wind, acted in blatant disregard of that knowledge, Plaintiffs' deliberate-indifference theory might have some legs.
The problem with this proposed discovery is that it is rooted in nothing more than speculation. There are no concrete factual allegations, and there is nothing in the current record, that would tend to suggest (1) that any Defendant was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed]," and (2) that such Defendant "dr[ew] the inference," Farmer, 511 U.S. at 837, 114 S.Ct. 1970. In the Complaint itself, once the Court pares back legal terms of art and unadorned conclusions about the Individual Defendants' knowledge, the Court is left with few facts from which to infer the source and substance of such purported knowledge. Plaintiffs allege that Nurse Eckard and Dr. Lin reviewed the Decedent's medical history and that Dr. Moubarek cosigned
Because Plaintiffs' Rule 56(d) request — insofar as it relates to their Eighth Amendment claims — is grounded in speculation; because discovery relating to the Individual Defendants' subjective intent would amount to a fishing expedition; and because the Court is obligated to address assertions of qualified immunity at the earliest feasible stage, the Court will exercise its discretion under Rule 12(d) and review the Individual Defendants' motion pursuant to the summary-judgment standard of Rule 56.
"The court shall grant summary judgment if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
The facts themselves, and the inferences to be drawn therefrom, must be viewed in the light most favorable to the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.2008). Even so, the opponent may not rest upon the mere allegations or denials of its pleading but must instead, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial. Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits must be made on personal knowledge with such facts as would be admissible in evidence and must affirmatively show the competence of the affiant to testify to the matters stated therein. Fed. R. Civ. P. 56(c)(4).
In their motion, the Individual Defendants principally argue that they are entitled to summary judgment because "Plaintiffs cannot show that the Individual [] Defendants acted with deliberate indifference in the care and treatment of [the Decedent] as required to establish an Eighth Amendment violation." (ECF No. 19-1 at 10.)
For the reasons discussed in this Part, the Court agrees.
Plaintiffs contend that Nurse Eckard and Dr. Lin exhibited deliberate indifference for the Decedent's medical needs by failing to schedule the Decedent for a cardiac consultation or for certain diagnostic testing (such as a stress test) and by "fail[ing] to indicate that [the Decedent] required ... special accommodations, including light duty work assignments or limited exposure to extreme weather conditions." (ECF No. 1 ¶¶ 40-41, 45, 47.)
As for Plaintiffs' allegations regarding cardiac consultation and stress testing, such allegations (without more) do not state a claim for deliberate indifference. On the contrary, courts have repeatedly rejected Eighth Amendment claims stemming from allegations that medical practitioners failed to provide diagnostic tests — even in cases where such tests might have proved highly beneficial to the prisoner-plaintiffs or where failure to provide such tests may have constituted medical malpractice. See, e.g., Estelle, 429 U.S. at 107, 97 S.Ct. 285 ("[T]he question whether an X-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment."); Barnes v. Wilson, 110 F.Supp.3d 624, 632 (D.Md.2015) ("There is no Eighth Amendment violation where diagnostic tests are declined based on medical assessments of the patient."); Smith v. Mathis, Civ. No. PJM 08-3302, 2012 WL 253438, at *5 (D.Md. Jan. 26, 2012) ("[Plaintiff] complains that Defendants should have conducted diagnostic tests
More broadly, "[d]isagreement with a doctor's particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation." United States v. Clawson, 650 F.3d 530, 538 (4th Cir.2011) (quoting Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir.2010)); see also Jackson, 775 F.3d at 178 ("Though hindsight suggests that [physician's] treatment decisions may have been mistaken, even gravely so, we agree with the district court that [plaintiff's] claim against [physician] is essentially a `[d]isagreement[] between an inmate and a physician over the inmate's proper medical care,' and we consistently have found such disagreements to fall short of showing deliberate indifference." (alterations added and in original) (emphasis added)); Alvarez v. Stewart, Civ. No. RWT-14-1044, 2015 WL 1402429, at *8 (D.Md. Mar. 25, 2015) ("[Plaintiff's] claims for physical therapy and pain medication represent a difference of opinion with his medical providers about the course of his treatment, and as such, do[] not establish requisite deliberate indifference necessary to support an Eighth Amendment claim."); accord Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
As for Plaintiffs' allegations regarding light duty or limited exposure to the elements, there is no indication that Nurse Eckard or Dr. Lin were aware of the need for any such accommodations. In fact, the request for transfer from FPC Devens to FCI Cumberland stated that the Decedent had been assigned a "regular duty work status with no medical restrictions." (ECF No. 19-11 at 1.)
Courts have dismissed deliberate-indifference claims arising from failure to accommodate even in some cases in which the defendants were indisputably on notice of the plaintiff's request for an accommodation. See, e.g., Hailes v. Free, Civ. No. 2:12-cv-00687, 2012 WL 5988726, at *3 (S.D.Ohio Nov. 29, 2012) (plaintiff did not allege facts sufficient to meet the subjective component of deliberate indifference where he complained, inter alia, that doctor refused to prescribe light duty and a bottom bunk); Stamper v. Blackwell, No. 1:10-cv-00155-SKO PC, 2011 WL 1344588, at *3 (E.D.Cal. Apr. 8, 2011) (plaintiff did not plead a plausible claim for deliberate indifference where he alleged, inter alia, that his requests for an egg-crate mattress, a bottom-bunk accommodation, and a light-duty work detail were denied). It follows that where, as here, there is no indication that either Nurse Eckard or Dr. Lin were on notice of any need for special accommodations (and where their fleeting interactions with the Decedent took place months before the alleged "heat wave"), their failure to anticipate and adjust for a nonobvious need does not constitute cruel and unusual punishment.
Finally, even assuming arguendo that Nurse Eckard and/or Dr. Lin should have known that the Decedent required stress testing or a light-duty accommodation, and even if their failure to prescribe such measures amounted to medical malpractice, such failure still would not establish that these Defendants were deliberately indifferent to the Decedent's medical needs — i.e., that they subjectively knew of and disregarded an excessive risk to his safety, Jackson, 775 F.3d at 178. As discussed in Part III.A, supra, once Plaintiffs' conclusory assertions about the Individual Defendants' knowledge are excised from the Complaint, the only factual or quasi-factual allegations supporting such knowledge are (1) the fact that Nurse Eckard and Dr. Lin reviewed the Decedent's medical history and (2) the notion, espoused by Plaintiffs (and their expert), that reasonably trained medical practitioners are familiar with the risk of heat and the importance of certain assessments for patients with heart problems. (See ECF No. 1 ¶¶ 40, 45, 62 & 43-2 at 4-5.) The Court must balance these spare allegations, which correspond more to a negligence standard than to deliberate indifference, against the substantial documentation that defense counsel has supplied. And in light of that documentation, it is simply implausible to contend that Nurse Eckard and Dr. Lin — who, during their fleeting interactions with the Decedent, conducted physical examinations, noted items for follow-up, renewed medications, and ordered additional cardiac testing — were nevertheless callously, wantonly indifferent to the Decedent's cardiovascular health. This is particularly so because there is no evidence (nor any allegation) that the Decedent complained about any cardiac symptoms during these medical appointments. On the contrary, in view of the summary-judgment record, it appears that the Decedent complained of no such symptoms at
In light of the foregoing, no reasonable jury could conclude that Nurse Eckard or Dr. Lin were unconstitutionally indifferent to the Decedent's medical needs. Accordingly, these Defendants are entitled to judgment as a matter of law.
Plaintiffs' claim against Dr. Moubarek is materially identical to their claims against Nurse Eckard and Dr. Lin — i.e., he failed to appreciate the Decedent's need for stress testing and light duty. However, the claim as against Dr. Moubarek is even more attenuated and implausible than were the claims against Nurse Eckard and
Plaintiffs' theory as to Dr. Moubarek's liability is somewhat unclear. To the extent that Plaintiffs seek to hold Dr. Moubarek accountable in his capacity as clinical director at FCI Cumberland, the Court observes that respondeat superior is unavailable in Bivens cases, see Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir.2001). And while supervisors can be held directly liable for the gross misconduct of their subordinates, the bar for imposing such liability is quite high — requiring, among other showings, an "affirmative causal link" between the supervisor's inaction and the plaintiff's constitutional injury.
Perhaps, though, Plaintiffs do not intend to hold Dr. Moubarek liable in his supervisory capacity; perhaps they theorize that, by cosigning Dr. Lin's report, Dr. Moubarek assumed full legal responsibility for its contents (and for related treatment decisions and follow-up) just as though he had examined the Decedent and drafted the report himself. But if that is Plaintiffs' theory, they cite no authority to support it (and the Court is aware of none): on the contrary, courts have rejected claims of deliberate indifference on strikingly similar facts. See, e.g., Peterson v. United States, No. CV 15-00143 AB (RAO), 2015 WL 9311638, at *5 (C.D.Cal. Oct. 19, 2015) (dismissing Bivens claim against doctor who did not personally treat plaintiff but who instead reviewed other practitioners' treatment records and allegedly "rubber stamped" them), report adopted, 2015 WL 9412101 (C.D.Cal. Dec. 21, 2015); Moore v. U.S. Agric. Dep't, Civ. No. 14-114-DLB, 2015 WL 4875316, at *6 (E.D.Ky. Aug. 13, 2015) (dismissing Bivens claim against doctor whose conduct, in simply cosigning records, was insufficient to establish that he was directly involved in the plaintiff's treatment).
No rational jury could find Dr. Moubarek liable for an Eighth Amendment violation on these scant facts; accordingly, he is entitled to judgment as a matter of law.
Finally, Plaintiffs accuse Officer Bennett of violating the Decedent's Eighth Amendment rights by requiring him to "put forth full effort in [his] outdoor work even in extreme weather conditions." (ECF No. 1 ¶ 61.) Plaintiffs characterize Officer Bennett as a taskmaster who "threatened disciplinary sanctions for any inmate who was not perceived as putting full effort into the assigned work." (Id. ¶ 55.)
Even assuming, however, that Officer Bennett was somehow familiar with the Decedent's medical history, such familiarity would not expose him to Eighth Amendment liability because he was entitled to rely on the professional judgment of the medical personnel who were responsible for the Decedent's care. See Krug v. Loranth, No. 1:13-cv-01409-DCN, 2014 WL 4955365, at *7 (D.S.C. Sept. 29, 2014) ("[N]on-medical prison personnel are entitled to rely on the expertise of health care providers." (citing Iko, 535 F.3d at 242)), aff'd, 599 Fed.Appx. 512 (4th Cir.2015) (mem.), cert. denied, No. 15-8205, 2016 WL 1278945 (U.S. Apr. 4, 2016) (mem.); accord Muhammad v. Smith, No. 7:16CV00034, 2016 WL 1464640, at *4 (W.D.Va. Apr. 12, 2016); Ingram v. Warden, Civ. No. WDQ-14-561, 2015 WL 4129222, at *8 (D.Md. July 6, 2015); Dicks v. Flury, Civ. No. GLR-14-1016, 2015 WL 847409, at *5 (D.Md. Feb. 25, 2015); Sloan v. Lee, Civ. No. JKB 13-3843, 2015 WL 273219, at *17 (D.Md. Jan. 20, 2015). In fact, Plaintiffs aver in their Complaint that the Decedent's assignment as a janitor/groundskeeper "resulted directly from the failure of BOP medical staff ... to order any accommodation for [his] medical condition." (ECF No. 1 ¶ 57 (emphasis added).) Plaintiffs further aver that, on the day of his death, the Decedent worked outdoors "[a]s required by the defendant officers in the absence of any contrary orders from the defendant health care providers." (Id. ¶ 67 (emphasis added).) Crucially, Plaintiffs do not allege (and there is certainly no evidence to suggest) that Officer Bennett had any control whatsoever over the Decedent's work assignment. Deliberate indifference requires much more than debatably uncharitable conduct; it requires treatment so incompetent, so inadequate, or so excessive as to shock the conscience, King, 536 Fed.Appx. at 361. Even discounting Officer Bennett's declaration, the Court's conscience is not shocked by the notion that the officer — in compliance with doctors' orders on which he was lawfully entitled to rely — required his charges to work industriously on a hot day.
No reasonable jury could conclude that Officer Bennett violated the Decedent's Eighth Amendment rights, and so the officer is entitled to judgment as a matter of law.
In closing, the Court commends counsel for both parties on their thorough briefing in this matter. Counsel approached the facts and the relevant authorities with care and deliberation, and they articulated their strongest arguments admirably. In the end, however, the Court's analysis is constrained by standards well-settled in the case law — and the standard for establishing and proving an Eighth Amendment deliberate-indifference claim is onerous indeed. "[R]elief under the Eighth Amendment is reserved for cases of cruel and unusual punishment, that is, egregious conduct by prison officials reflecting the `unnecessary and wanton infliction of pain.'" King, 536 Fed.Appx. at 364 (quoting Wilson, 501 U.S. at 297, 111 S.Ct. 2321).
The bar was set high decades ago in Estelle, and it remains high today — and Plaintiffs, despite their best efforts, cannot surmount it.
Plaintiffs allege — on "information and belief" — that Officer Bennett "enforced strict requirements for the crew ... and threatened disciplinary sanctions for any inmate who was perceived as not putting full effort into the assigned work." (ECF No. 1 ¶ 55.) Officer Bennett denied this allegation in his declaration, averring that he "did not subject the inmates [he] supervised to strict working requirements or threaten them with disciplinary sanctions" and that he "encouraged the inmates under [his] supervision ... to work at their own pace, rest as needed, take frequent breaks inside the air conditioned buildings, and drink plenty of water." (ECF No. 19-28 at 1.)
These allegations and expert observations, if true, might have some bearing on Plaintiffs' FTCA claim. But the Eighth Amendment deliberate-indifference standard requires a far more culpable mental state than mere negligence; the defendant must recklessly disregard an excessive risk of which he is subjectively aware. None of Plaintiffs' averments correspond to this high degree of culpability. Cf. Danser v. Stansberry, 772 F.3d 340, 347 (4th Cir.2014) ("`[A]n official's failure to alleviate a significant risk that he should have perceived but did not' will not give rise to a claim under the Eighth Amendment." (citation omitted)).
The Court need not ultimately decide whether Plaintiffs' Eighth Amendment claims could survive Rule 12(b)(6) review, because — after converting the Individual Defendants' motion via Rule 12(d) — the Court need not accept any unsubstantiated allegations as true. But the fact that Plaintiffs' claims would have been suspect even in the forgiving light of Rule 12(b)(6) reinforces the Court's conclusion that conversion, on the particular facts of this case, is appropriate.
In their opposition brief, Plaintiffs contend that the Decedent's work detail at FPC Devens, though technically not light duty, nevertheless involved low-impact work (specifically, training service dogs). (ECF No. 43 at 23 n.9.) Assuming that is so, the Court is unsure what bearing it has on Nurse Eckard's and Dr. Lin's culpability here: the transfer order simply indicates that the Decedent was on regular duty, and there is no indication (nor any allegation in the Complaint) that these medical practitioners were aware of the particular tasks for which the Decedent had been responsible at his prior place of incarceration.
Other cases on which Plaintiffs rely (most of which were decided by courts sitting outside this Circuit) are similarly distinguishable. See, e.g., Ball v. LeBlanc, 792 F.3d 584, 594-95 (5th Cir.2015) (trial judge properly ruled for inmates who suffered from cardiovascular ailments and who complained about excessive heat in housing units where evidence showed that prison maintained a list of vulnerable inmates yet failed to include plaintiffs on list and where, after lawsuit was filed and during court-ordered monitoring period, defendants "surreptitiously installed awnings and began soaking ... exterior walls with water," leading court to infer that defendants subjectively knew of a substantial risk to plaintiffs' health); Blackmon v. Garza, 484 Fed. Appx. 866, 871-73 (5th Cir.2012) (jury question as to deliberate indifference where inmates were kept in mostly sealed dorms without air conditioning or fans during Texas summer heat and where plaintiff testified that he had repeatedly complained to prison infirmary but that infirmary staff refused to document his high blood pressure or health complaints).