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Zingg v. Groblewski

United States Court of Appeals, First Circuit

October 29, 2018

JENNA ZINGG, Plaintiff, Appellant,


          David Milton, with whom Howard Friedman, Georgi Vogel Rosen, and Law Offices of Howard Friedman, P.C. were on brief, for appellant.

          Tory A. Weigand, with whom Morrison Mahoney LLP was on brief, for appellees.

          Before Torruella, Thompson, and Barron, Circuit Judges.


         In 2015, Jenna Zingg ("Zingg"), a pretrial detainee at the Massachusetts Correctional Institute-Framingham ("MCI-Framingham"), sued Dr. Thomas Groblewski ("Groblewski") and the Massachusetts Partnership for Correctional Healthcare ("MPCH") in the United States District Court for the District of Massachusetts. She brought a Massachusetts state law claim for common law negligence and a federal law claim, pursuant to 42 U.S.C. § 1983, for a violation of her right under the Eighth Amendment of the United States Constitution, as incorporated against the states by the Fourteenth Amendment, to be free from cruel and unusual punishment. See U.S. Const. amends. VIII, XIV. The District Court granted the defendants' motion for summary judgment on the § 1983 claim and dismissed Zingg's state law negligence claim without prejudice. We affirm.


         The following facts are not in dispute. Jenna Zingg entered MCI-Framingham on March 12, 2013, as a pretrial detainee. She had a long history of psoriasis and had tried a variety of treatments, including clobetasol, the most potent topical steroid available; Dovonex, a weaker topical vitamin D analog; and Humira, a systemic treatment that targets the immune system.

         Zingg responded well to Humira, which she had been taking for about nine months prior to entering MCI-Framingham. However, Zingg did not receive her regularly scheduled Humira injections after entering MCI-Framingham, and her psoriasis worsened.

         On April 25, after Zingg submitted repeated requests for medical attention, she was examined by Patricia Casella, a physician's assistant at MCI-Framingham who worked for MPCH, the contractor that provides all medical and mental health services to individuals held in Massachusetts Department of Correction facilities. At that examination, Casella prescribed Zingg with clobetasol, which was a formulary medication, meaning that it was pre-approved for administration by MPCH.

         Zingg's psoriasis became more and more severe, even while she was using clobetasol, and she submitted increasingly urgent requests for medical attention between July 1 and July 11. On July 12, Casella again examined Zingg and, noting the deterioration of her condition, prescribed her Humira and Dovonex, which was prescribed pending approval of a prescription for Humira. Both of these medications, however, were non-formulary medications and, as such, were not pre-approved to be administered to MPCH's patients. Thus, the pharmacy forwarded the requests to Dr. Thomas Groblewski, who, as the statewide medical director for MPCH, was responsible for approving all non-formulary prescription requests made by MPCH practitioners.

         On July 15, Groblewski approved the Dovonex request but denied the request for Humira. The pharmacy sent Casella a denial of the Humira request that same day.

         Zingg's psoriasis continued to get worse while she used Dovonex, and, on August 6, MPCH approved a request for Zingg to see a dermatologist at Lemuel Shattuck Hospital. At her August 9 appointment with the dermatologist, Zingg was diagnosed with severe psoriasis and mild psoriatic arthritis, admitted as an in-patient, and screened for risk of infection. She was given an initial dose of Humira on August 11 and discharged to MCI-Framingham the next day. She received a second Humira shot at the prison on August 27 and was released from prison on September 5, by which time she had experienced significant improvement in her condition.

         All of the events at issue took place in 2013. Zingg filed this suit on March 11, 2015. In the suit, she brought a claim under § 1983, alleging that Groblewski, and, vicariously, MPCH, acted with deliberate indifference to her serious medical needs in violation of her federal constitutional right under the Eighth Amendment to adequate medical care while incarcerated.[1] She also brought a claim under Massachusetts law, alleging that the same defendants were negligent in providing her proper medical care.

         Following discovery, the defendants moved for summary judgment on Zingg's § 1983 claim. They did so on the grounds that she had failed to show that a jury could reasonably find that Groblewski's decision not to approve the request for Humira constituted deliberate indifference to Zingg's serious medical needs and thus violated her Eighth Amendment right and that, in any event, Groblewski was entitled to qualified immunity on that claim.

         On September 29, 2017, the District Court granted the defendants' motion, without reaching the qualified immunity issue. The District Court did so on the ground that no reasonable jury could find that Groblewski acted with deliberate indifference to Zingg's medical needs. And, on November 7, 2017, the District Court entered final judgment for the defendants on Zingg's § 1983 claim and dismissed ...

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