Filed: Oct. 02, 2006
Latest Update: Feb. 21, 2020
Summary: SUSAN J. MARTIN, ET AL.Morrison Mahoney, LLP, on brief for defendants, appellees Aaron, Lazare, M.D.Castello also appeals the district court's denial of his Fed. 59(e) motion to alter or amend judgment.for the combination drug therapy.F.3d 62, 66 (1st Cir.the exhibits from this particular pleading.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1534
KERRY M. CASTELLO,
Plaintiff, Appellant,
v.
SUSAN J. MARTIN, ET AL.,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, and Howard, Circuit Judges.
Kerry M. Castello, on brief pro se.
Stephen G. Dietrick, Deputy General Counsel, Legal Division,
Department of Correction and Nancy Ankers White, Special Assistant
Attorney General, on brief for defendant, appellee Susan J. Martin.
James A. Bello, Morrison Mahoney, LLP and Lisa R. Wichter,
Morrison Mahoney, LLP, on brief for defendants, appellees Aaron
Lazare, M.D., Arthur Brewer, M.D., and Donna Jurdak, R.N.
October 2, 2006
Per Curiam. Kerry M. Castello, a pro se prisoner,
appeals the district court's entry of summary judgment dismissing
his civil rights complaint in which he asserts an Eighth Amendment
claim for deliberate indifference to his serious medical needs.
Castello also appeals the district court's denial of his Fed. R.
Civ. Pro. 59(e) motion to alter or amend judgment. We have
carefully reviewed the record and affirm substantially for the
reasons stated in the district court's memorandum decision, adding
only the following.
Castello was diagnosed with the Hepatitis C virus ("HCV")
in October 2001, while incarcerated at MCI-Norfolk. Since at least
2003, when UMass Correctional Health ("UMCH") began providing
medical services for the Massachusetts Department of Corrections,
Castello has demanded that he receive a particular treatment for
his HCV: a combination drug therapy using pegylated interferon and
ribavirin. UMCH has monitored Castello's medical condition through
regular blood tests and a liver biopsy, which have consistently
shown that Castello suffers from a mild form of the disease.
In October 2003, pursuant to the UMCH Protocol for
treating inmates with HCV, Castello was placed on the waiting list
for the combination drug therapy. Castello has been informed that
budget constraints limit the number of inmates who can receive the
combination drug therapy, and those inmates with more severe forms
of the disease have priority on the treatment list. When the
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evidentiary record closed in the district court, Castello's medical
condition remained essentially unchanged and he was still waiting
for the combination drug therapy.
On this record, which we have reviewed de novo, indulging
every inference in Castello's favor, Rathbun v. Autozone, Inc., 361
F.3d 62, 66 (1st Cir. 2004), we agree with the district court's
conclusion that Castello failed to show "acts or omissions
sufficiently harmful to evidence deliberate indifference to serious
medical needs." Miranda v. Munoz,
770 F.2d 155, 259 (1st Cir.
1985) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). While
it is clear that Castello strongly disagrees with the medical care
he is receiving, it is also clear that UMCH is providing "decent,
timely heath care ... at a level reasonably commensurate with
modern medical science and of a quality acceptable within prudent
professional standards." United States v. DeCologero,
821 F.2d 39,
42 (1st Cir. 1987). Castello's own evidence, submitted in support
of his summary judgment motions, shows that modern medical science
has reached a consensus that treatment generally is appropriate for
patients suffering more severe cases of HCV, where a liver biopsy
shows moderate inflammation and necrosis and portal or bridging
fibrosis. E.g., National Institutes for Health Consensus
Development Statement, "Management of Hepatitis C: 2002." None of
these conditions were detected in Castello's liver biopsy. On this
record, Castello failed to show that he has suffered an objectively
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serious deprivation, or that appellees have subjectively acted in
"wanton disregard" of his rights. DesRosiers v. Moran, 949 F.2d
15, 19 (1st Cir. 1991) (citing Rhodes v. Chapman,
452 U.S. 337, 347
(1981)). See also Bender v. Regier,
385 F.3d 1133, 1135 (8th Cir.
2004) ("Treatment for [HCV] patients with mild liver problems may
be safely deferred.").
Castello also challenges the district court's refusal to
strike the medical defendants'1 opposition to his motion for
summary judgment and cross-motions for summary judgment, filed two
weeks late, without prior permission or explanation. Although we
do not condone such disregard of a court-ordered deadline, where
there is no showing of repeated failures to adhere to deadlines,
bad faith or prejudice, and the delay is minimal, we find no abuse
of discretion in the district court's actions. Stonkus v. City of
Brockton School Dep't, 322 F.3d 97, 101 (1st Cir. 2003). We also
find no abuse of discretion in the court's refusal to strike the
exhibits attached to defendants' late-filed pleading because of
defendants' failure to authenticate the exhibits by affidavit, as
required by the plain language of Rule 56(e). Again, we do not
condone this serious omission, see Carmona v. Toledo,
215 F.3d 124,
131 (1st Cir. 2002), but conclude that because each of the disputed
1
The "medical defendants" are appellees Dr. Lazare, Dr.
Brewer, and Nurse Brewer, all represented by private counsel.
Appellee Susan Martin is represented by a Special Assistant
Attorney General for the Department of Corrections.
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exhibits (except for the Brewer Affidavit, which was properly
authenticated pursuant to Rule 56(e)) was filed with the court and
properly authenticated by Castello in support of his summary
judgment pleadings, no purpose would have been served by striking
the exhibits from this particular pleading.
Finally, we find no abuse of discretion in the court's
denial of Castello's Rule 59(e) motion. The minor factual errors
in the district court's memorandum decision, while unfortunate, are
not dispositive.
Affirmed.
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