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Leavitt v Correctional Medical Services, Inc.

Case No. 10-1432 (C.A. 1, Jun. 29, 2011)

Plaintiff-appellant Raymond D. Leavitt, an inmate of the Maine corrections system, seeks a civil rights remedy for the alleged denial of adequate medical care for human immunodeficiency virus (HIV) by healthcare professionals at the York County Jail (YCJ) and the Maine State Prison (MSP). Claiming that correctional medical officials acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment, Leavitt brought suit under 42 U.S.C. § 1983 against a number of defendants, including Alfred Cichon, a physician assistant at YCJ; Correctional Medical Services, Inc. (CMS), the private contractor that provided medical care at MSP; and CMS employees Todd Tritch, Edie Woodward, Charlene Watkins, and Teresa Kesteloot. In separate orders, the district court granted summary judgment for Cichon and the CMS defendants, and Leavitt appeals.

We agree with the district court that Leavitt's evidence could not, as a matter of law, establish that the CMS defendants' actions violated the Eighth Amendment. However, we conclude that Leavitt has established a material dispute as to whether Alfred Cichon acted with deliberate indifference to his serious medical needs. We thus affirm the entry of summary judgment in favor of the CMS defendants, reverse the entry of summary judgment in favor of Cichon, and remand for further proceedings.


Appellant is, and was at all times material to this case, HIV-positive. He was incarcerated at YCJ from September 6, 2006, through February 17, 2007, at which point he was transferred to MSP. He claims that the defendants inappropriately denied him treatment for HIV for the entirety of his 167-day stay at YCJ and for nearly seventeen months of his incarceration at MSP. This delay in the reinitiation of antiretroviral therapy for HIV, Leavitt alleges, "constituted a continuum of harm," which resulted in short- and long-term negative consequences for his health. We chronicle his treatment history in some detail as presented in the summary judgment record, presenting the facts in the light most favorable to Leavitt and drawing all reasonable inferences in his favor. Burrell v. Hampshire Cnty., 307 F.3d 1, 3 (1st Cir. 2002).

A. Leavitt's Treatment at YCJ

1. Initial Clinic Visit

At the time of his incarceration at YCJ, Leavitt suffered from HIV, hepatitis C, bipolar disorder, anxiety, and hypothyroidism. On October 5, 2006, about one month into his detention at YCJ, Leavitt had his first -- and only -- clinical interaction with defendant Alfred Cichon. Cichon was the physician assistant who worked at the jail most frequently, about sixteen hours per week, and he also was president of Allied Resources for Correctional Health, Inc. (ARCH), the corporation that provided contract healthcare services to inmates at YCJ.


Judge(s): Kermit Lipez
Jurisdiction: U.S. Court of Appeals, First Circuit
Related Categories: Civil Rights , Constitutional Law , Health Care , Torts
Circuit Court Judge(s)
Michael Boudin
Jeffrey Howard
Kermit Lipez

Trial Court Judge(s)
John Woodcock, Jr.

Appellant Lawyer(s) Appellant Law Firm(s)
James Billings Lipman Katz & McKee PA

Appellee Lawyer(s) Appellee Law Firm(s)
Jennifer Rush Norman Hanson & DeTroy LLC
Christopher Taintor Norman Hanson & DeTroy LLC
Paul Catsos Thompson & Bowie LLP
Elizabeth Peck Thompson & Bowie LLP



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investigating his may complaint, to review earlier entries in his specific circumstances of each case." smith, 316 f.3d at 185 "deliberate indifference" to leavitt's medical needs, as required she interpreted it to mean that leavitt should not restart treatment antiretroviral regimen in short order and would not have suffered hiv-positive; said that he was experiencing night sweats, chills, allow leavitt's eighth amendment claims against the cms defendants his tongue and swollen nodes on his neck, and that he needed to eighth amendment, leavitt brought suit under 42 u.s.c. § 1983 its stock. cichon testified at his deposition that ycj put its 27, was delayed on account of bad weather, and leavitt did not summary judgment for cichon and the cms defendants, and leavitt defendants, appellees, cms, a number of its employees, various persons employed by mdoc, cichon acted with deliberate indifference, we do not see how the york county jail (ycj) and the maine state prison (msp). are able to pay for these medications." additionally, cichon msp's grievance review officer reviewed kesteloot's memo and15 records, he insists he had been taking his hiv medications "on a escalated to 297,562. watkins reviewed these results a little over assistant, and charlene watkins, a family practitioner nurse, as as promised, approved leavitt's referral to vtc. treatment, and recommended genotype testing to determine leavitt's desrosiers v. moran, 949 f.2d 15, 18-19 (1st cir. 1990)). these effects, leavitt submitted affidavit evidence that during his file" or to "lull[ leavitt] into complacency." the district court the other letters of guidance issued by the board related to8 requesting medical treatment or medications at ycj was to file an 161 (1st cir. 2006). although a "state-of-mind issue such as the broader problem in the care of hiv-positive inmates at msp or to those slips were submitted on august 10, 2007, january 6,16 university of new england, before regaining the contract in 2004. -22- psoriasis. cichon denied all three requests. the task eventually may contribute to a civil rights deprivation." "move[d] precipitously" to refer leavitt to an infectious disease maine state board of licensure in medicine ("medical board") for (11th cir. 2004); montgomery, 294 f.3d at 500. nevertheless, "misrepresenting to medical board staff the status of his license he received at ycj and msp. see monmouth cnty., 834 f.2d at 347 march appointment at vtc, stating "will need to start him back on point prior to his appointment with cichon. even though cichon claims not to recollect seeing leavitt's22 defendants refused to provide him with treatment for his hiv over leukoplakia (a white, film-like protrusion on the lateral side of the terms of the consent agreement, cichon's license to practice whether cichon acted with deliberate indifference to his serious in june 2009 arch lost the contract to cms because of the "cost statement about not treating hiv because of cost constraints, he -37- supervisory physician licensed by the medical board," and/or purportedly said to leavitt that he would not provide him with hiv cell count and high viral load. relatedly, leavitt complains that the principle that government officials may be held liable only "on force when leavitt himself acknowledges that kesteloot's only focus b. analysis no. 10-1432 appellant had been incarcerated since september. patients who take and official capacities, alleging that their refusal to administer "follow up with [vtc] as scheduled." under the supreme court's eighth amendment jurisprudence. on18 dispute that ought to be resolved by a jury. see anderson v.24 care may offend the eighth amendment if their "acts or omissions in addition to serving as president of arch, cichon was an underlying constitutional tort is required to proceed 485 f.3d at 156. the standard encompasses a "narrow band of so ordered. changing the frequency of dosage of a medication for another contractor for whom arch presumably would have had to pay. first time in seventeen years that an omission of this type 6. leavitt's filing of a formal grievance 5. cichon's professional record him. while the appointment never took place, there is no evidence with tritch's approval, appellant was examined in may physician assistant who worked at the jail most frequently, about his hiv medications constituted violations of 42 u.s.c. § 1983 and off point, leavitt should nonetheless have been immediately long history of hiv and that he previously had been prescribed the boudin, lipez, and howard, -6- eighth amendment claim against healthcare providers in their vtc's medical director represented that by "[n]o urgent11 also assigned significant weight to the fact that leavitt did not the various adverse effects of untreated hiv. with regard to25 4. the december follow-up appointment at vtc and its chronic care clinic, in which they are seen typically at three- delayed until he filed his grievance. these allegations have little bio reference and cms, and woodward did not take steps to obtain leavitt's not. this is precisely the sort of genuine and material follow-up appointment for leavitt. 1. leavitt's claim against cichon submit any imrfs or make further complaints to the medical updated lab work she thought was required before leavitt could be of leavitt's antiretroviral therapy from september 2006 to july leavitt return in four to six weeks, noting that it would "likely conditions under which he is confined are subject to scrutiny under although appellant was aware that the method for to a trial simply because he has asserted a cause of action to id. (citing monmouth cnty. corr. institutional inmates v. lanzaro, until almost two and a half months later. thrush and a rash. he again requested hiv and hepatitis c leavitt's group liability theory may accurately reflect -14- 1948 (2009))). it may be true that the care leavitt received at27 was evidence of a systemic problem at msp or follow up on leavitt androscoggin county jail (acj), cumberland county jail, and -43- for staff to distribute medications only twice a day. furthermore, cichon argues that the seriousness of the underlying medical fever, nausea, and vomiting; and complained that he had not follow-up appointment had been scheduled. she thus concluded in a -8- 2008, and july 4, 2008. on august 10, 2007, leavitt submitted a prison sick-call a week later, but still did not start leavitt on antiretroviral ("[w]here denial or delay causes an inmate to suffer a life-long 429 (from 296 in april), and by december 2008, his cd4 cell count wrongdoing on tritch's part in dealing with referrals. reduce to the theory that they ought to have been more proactive in the genotype results from bio reference. treatment exacerbated an injury should summary judgment be granted slips to the mdoc expressly for hiv, and on thirteen occasions16 5 meeting, including an allegation that a jail officer refused to services administrator at msp. reliance was not in good faith. see whitley v. albers, 475 u.s. also entered into a consent agreement with the maine board of cell count of 355 as recently as april 2006. because the jail is so small and we are not equipped financially to watkins did not start leavitt on his medications 1. initial clinic visit period of his incarceration at ycj, leavitt suffered from night satisfy cms and to remain competitive against other contractors. namely one of 'deliberate indifference' to an inmate's health or various infractions involving other patients that happened around -25- could have been attributable to hiv. woodward prescribed an weight of 170 pounds. he still suffers from warts and rashes, "supervise[d], train[ed], or hire[d] a subordinate with deliberate liability under 42 u.s.c. § 1983 for the violation of his eighth assistant three days after his transfer. at this time, leavitt leavitt's complete blood count differential, cd4 cell count, and a jury could further infer that cichon had a financial have to wait until you [get] to the maine state prison where they medical director of cms in maine; edie woodward, a physician "a party against whom summary judgment is sought is [not] entitled against cichon, which the district court consolidated on december purposeful or reckless decision to ignore the viral load report or viral load. these labs, like all tests and medications prescribed complained of a rash, which she knew could have been a fungal refusal to provide essential care'" (quoting sires v. berman, 834 in making this credibility determination, the district court24 bowie, llp, were on brief, for appellee alfred cichon. the inmate; however, it concluded that because cichon had consulted -31- to leavitt, he reacted expeditiously. perhaps tritch was not as november, however, that tritch, without having seen leavitt again physician's prescription of four times a day to two times a day in the risk of opportunistic disease or death from any cause over punishment cruel and unusual. farmer, 511 u.s. at 838. follow up is at a minimum sub-optimal, perhaps even negligent. follow-up appointment in four to six weeks. at the end of may medical services as a physician assistant without having a more likely to be susceptible to opportunistic infections and/or (1994) (quoting rhodes v. chapman, 452 u.s. 337, 349 (1981); norman, hanson & detroy, llc, were on brief, for appellees october 5 clinic appointment and leavitt's transfer to msp, cichon until after a new round of blood tests. even if watkins's eighth amendment standard of deliberate indifference. see feeney, the fact that he had never before missed a lab report, a reasonable hiv. kesteloot, who was responsible for reviewing all healthcare-14 certainly, they both relied on inaccurate or imperfect data in specified that deliberate indifference requires that "the official occurred, that he would have considered a viral load of 143,000 to antiretroviral regimen for at least a month, if not longer, by the be higher "than [he] would like to see it," and that he would have while a jury is free to consider this fact in determining whether pursued the results of leavitt's genotype test when bio reference decision to order the lab tests and medical history; it is correctional officials and healthcare providers in their individual order that leavitt be "referred to an infectious disease doctor for failed to report them, and watkins should have taken steps to submitted sick-call slips for thrush, rashes, or diarrhea.17 (second and third alterations in original) (citation omitted) proceeded in accordance with that interpretation, ordering the the time of leavitt's incarceration. these infractions included 843 n.8 (noting that a prison official "would not escape liability cancer in the future. -23- woodward and watkins behaved in ways consistent with their professed 624 (7th cir. 2010) (holding that "only in the rare instance that correctional officials may not ignore medical conditions that are a nine-month period despite their prior determination that the -20- actions violated the eighth amendment. however, we conclude that referrals to specialists and second to follow up on leavitt after prior to august 2007, but leavitt does not allege any specific tests and requested leavitt's treatment records. leavitt's labs for inmates, were paid for by ycj. 4. arch's contractual relationship with ycj inadequate or delayed medical care, a plaintiff must satisfy both and viral load reports were subpoenaed from ycj and entered into slip in which he complained: "as a result of being denied meds for "the cms defendants." cir. 2009). given the amount of evidence on causation and injury particular patient but instead attends to whoever shows up at the as to the second inquiry, that of a "serious" deprivation judgment in favor of cichon.26 with cms nursing staff. kesteloot's focus in investigating the cms defendants argue that leavitt has waived his claim29 with symptoms, including thrush, leukoplakia, and seborrheic with other evidence in the summary judgment record, added up to defendant edie woodward in june 2007, when she treated him for a incarceration at ycj he suffered from nightsweats, chills, fevers, that referral had been made, he would have been put back onto his hepatitis c treatment, but from that point forward was no longer treatment. woodward ordered various medications to treat his kesteloot; and remand for further proceedings consistent with this patient's response to treatment, but is also generally helpful in the eighth amendment.'" farmer v. brennan, 511 u.s. 825, 83221 7. the reinitiation of leavitt's hiv treatment truvada/kaletra now," she should have started his antiretroviral treatment was necessary). leavitt's actions would, as a matter of law, excuse cichon's cir. 1985))); ferranti v. moran, 618 f.2d 888, 891 (1st cir. 1980) among other things, the violations of his physician assistant's the cd4 cell count report indicated that leavitt had a lower than a factfinder to conclude that cichon ignored the viral load report, updated cd4 cell count and viral load to provide a baseline for thrush disappeared and he no longer experienced night sweats and settled that 'the treatment a prisoner receives in prison and the "the standard applied under the fourteenth amendment [governing the these dates range from july 26, 2007, to july 4, 2008.17 reasonably infer that cichon was aware that leavitt's health was at body of medical literature suggesting that the lower a patient's for the subjective inquiry, the supreme court has knew of these events, and thus they are immaterial to the follow up on the results of the viral load test, cichon argues that immediately. instead, on april 14, watkins ordered updated blood more, insufficient to allow a jury to find deliberate indifference. evidence of the cms defendants' deliberate indifference, we see no 2. leavitt's first consultation with specialists clinic at the time he or she is working. regardless, this theory existence of deliberate indifference usually presents a jury cell count of 355. moreover, they showed that at the time of i. private entity operating in its capacity at msp at the time in -28- based on this series of events, no reasonable factfinder their official capacities contact the prison for additional information. there is no -33- treatment, or one that is so obvious that even a lay person would -26- the course of the trial, as compared with patients who received leavitt presented evidence that cichon's omission not incarcerated at msp, leavitt on three occasions submitted sick-call msp. by contract, cms provides medical care at msp, as well as normal count of 415 and noted that the "[m]ild decrease in cd4 after his initial consult with the specialists there. at the he would have found that number to be sufficiently alarming that he determined by reference to the effect of the delay of treatment." that care,' the deliberate indifference standard has been met." the lab reports from the blood work cichon ordered were serious medical needs." estelle v. gamble, 429 u.s. 97, 106 care until august 10, 2007. after examining appellant, tritch not28 accept the hiv medications that a friend brought to ycj for capacity as physician assistant, time he was seen at the clinic; and that leavitt's cd4 count was handicap or permanent loss, the medical need is considered leavitt finally saw the vtc specialists again on june 25. leavitt's first clinical interaction at msp came in the -7- "start hiv antiviral meds asap." the next day, tritch, who had not b. edie woodward and charlene watkins and in his official capacity as medical doctor; edie woodward, of his hiv. tritch also submitted an order for leavitt to return evidence of cichon's financial interest in minimizing costs, amendment claim, even if the inmate has "no serious current teresa kesteloot. in separate orders, the district court granted1 that his initial appears on the first page of the lab report, which 1990). "the 'seriousness' of an inmate's needs may also be medications had not been restarted following his march 12 visit to resistance. unfortunately we do not have his genotype at this reach a jury on the issue of serious medical need. for the reasons set forth, we vacate the district court's the medical board concluded that cichon was "providing9 antiretroviral treatment. teresa kesteloot, individually and in her official capacity as care [is accompanied by the] . . . intentional refusal to provide infection and a symptom of hiv. she observed in her progress notes cf. wilson v. seiter, 501 u.s. 294, 303 (1991) (emphasizing that only ordered updated blood work, but also took the unusual step of restarted. in that original complaint, he brought suit for money determination of whether cichon was deliberately indifferent to was subject to a number of probationary conditions, including as the balancing judgments are within the realm of reason and made at this point, cichon purportedly made a statement that antiretroviral drugs truvada and kaletra. the records also damages suit against an official in an official capacity is novo. summary judgment is appropriate if there is no genuine issue have an aids-defining illness or severe symptoms of hiv infection.12 under a separate order, from which leavitt does not appeal. been made. but carelessness or inadvertence falls short of the requested fixadent for his dentures and cream to treat his the record is unclear as to whether leavitt was being held21 to have with tritch. she did not, however, put in a second order had risen to 550, thus indicating the reconstitution of his immune msp's chief administrative officer was also denied. agent." burrell, 307 f.3d at 7. thus the question is whether there seborrheic dermatitis -- conditions that vtc providers interpreted leavitt's medical records from acj and the cd4 cell count4 president of arch and its largest shareholder, cichon had a against kesteloot by failing to "separately address" that claim in cf. sealock v. colo., 218 f.3d 1205, 1211-12 (10th cir. 2000) time frame was in accordance with usual practice to check an hiv of material fact and the moving party is entitled to judgment as a in investigating his complaint was on whether his current concerns cd4 counts." -18- a. todd tritch (relying on similarly "candid testimony" to reverse a district 41, 44 (1st cir.1999)). united states court of appeals symptoms"); see also smith, 316 f.3d at 188 (holding that "an eighth intention to treat leavitt: each saw him in the chronic care clinic while certainly relevant to cichon's defense, does not preclude a but does not know if her predecessor ever acted on leavitt's first would have "move[d] precipitously" to refer leavitt to a specialist. it was her fault for not sending a fax to vtc. she then promptly -3- leavitt filed the pro se complaint underlying this case official"). if not properly treated. see brown v. johnson, 387 f.3d 1344, 1351 abstract, that is relevant for eighth amendment purposes."); napier to deal with leavitt's chronic medical condition. see monmouth interpretation was incorrect, it is uncontroverted that she court's entry of summary judgment in favor of a correctional deliberate indifference in failing first to sign off on necessary appropriate. kesteloot concluded her investigation after being fatigue, gastrointestinal problems, including vomiting and 1. leavitt's initial treatment at msp health in general was "normal." appellant told cichon that he was for the referral to vtc. in their individual capacities. christopher c. taintor, with whom jennifer a.w. rush and correctional medical services, inc., todd tritch, edie woodward, clinic, leavitt complained of a rash on his underarms, fatigue, and he also changed the frequency of dosage of medication for another elizabeth k. peck, with whom paul c. catsos and thompson & otherwise apparent."). we have concluded that "[d]eliberate month intervals. appellant is, and was at all times material to this case, with respect to watkins, leavitt points to one other symptoms of hiv include fevers, night sweats, loss of accordingly. f.2d 461, 468 (1st cir. 1975). the non-moving party must present in responding to a complaint to the medical board brought13 the results from the lab tests tritch ordered reported cichon about an array of symptoms, including night sweats, chills, work and a follow-up visit to vtc. the lab results indicated that f.3d ___, 2011 wl 1902165, at *5 (1st cir. may 20, 2011) ("[s]o long without a licensed supervisory physician. subsequently, cichon9 that cichon had been admonished by the state medical licensing 2007, a cms provider noted vtc's recommendation and ordered a keeping him alive for the past 10 years and keeping his symptoms requested and received from vtc a faxed copy of its note from defendants involved in this appeal: dr. todd tritch as the regional timely manner constitutes deliberate indifference to his serious place. complications of hiv. viral load, which measures the amount of healthcare services contract out for bid every two years, that infections or other consequences of hiv/aids. vtc's medical11 they also offered an alternative ground for granting summary18 individually and in his official capacity as commissioner of the woodward, watkins, and kesteloot in their individual and official represents that there can be a lag in cd4 count decline after question, it can be held liable as a municipality for the purpose the april 1 letter at some point after she assumed her position, viral load of 143,000. cichon also claims not to have seen this not rise to the requisite level of deliberate indifference."). to lipez, circuit judge. plaintiff-appellant raymond d. indifference in this context may be shown by the denial of needed disagreement over the interpretation of vtc's instruction is unconstitutional conduct of their subordinates under a theory of beginning november 2004 arch had a two-year contract with ycj with cichon directed the arch nursing staff to obtain observed that leavitt was "close to aids," that he had thrush on before -16- leavitt's statement of material facts raises a few2 finally, we reach leavitt's claims against cms and its report to cms, which stated, "hiv: no urgent indication for . . . 1993))). treatment for hiv for the entirety of his 167-day stay at ycj and see gaudreault, 923 f.2d at 208; see also smith, 316 f.3d at 186 ordered testing and follow-up appointments when appropriate. record does not bear his initial. he asserts that this is the level and increase in cd8 subset" was "indicative of component of an eighth amendment claim," the "wantonness" of an presented expert testimony that he suffered a detrimental decrease -17- infectious disease specialist or to otherwise treat his hiv in a be 'repugnant to the conscience of mankind,'" estelle, 429 u.s. at mcmillian, 503 u.s. 1, 8 (1992)). it is obvious that hiv is a october 2006 cd4 test report, it is undisputed that he initialed antiretroviral treatment for his hiv while at ycj. safety," and second, that the deprivation alleged was "objectively, cannot provide the basis for recovery: "it is axiomatic that the amendment claim). a. deliberate indifference treatment for patients with cd4 cell counts above 350 who did not kennedy v. town of billerica, 617 f.3d 520, 531-32 (1st cir. -11- system. in his labs of february 27, 2009, he dropped to a been on antiretroviral therapy. however, in 2007-2008 vtc used the smith v. carpenter, 316 f.3d 178, 187 n. 12 (2d cir. 2003) (citing disclosed that leavitt had a history of alcohol abuse that may have cms defendant charlene watkins took over woodward's reason that the patient could not receive them." moreover, the8 therapy" immediately because leavitt is "not a novel patient," but "treatment-naive" patients ­- hiv-positive patients who had never knowledge of impending harm, easily preventable.'" feeney, 464 to at least march 15, 2007. a break from antiretroviral therapy may become resistant to one or count of 460 and an elevated viral load over 97,000. the10 -35- with the inmate's physician before implementing the change, his with vtc about his care; and were working for the same employer and having concluded that leavitt failed to put forth sufficient31 the lab that processed leavitt's blood work, experienced a 837. we cannot conclude that leavitt has satisfied his burden. conduct": subpar care amounting to negligence or even malpractice cichon was given several "letters of guidance" by the proof of injury." risk. see ruiz-rosa, 485 f.3d at 157. december appointment, leavitt complained of fatigue and presented concluded that his hiv medications should have been started sooner. for the district of maine progression to develop the clinical symptoms and risks of never occurred, she did not determine why the appointment did not phone calls would be made, but there is no evidence that their defendant was "aware of facts from which the inference could be hiv is a serious and potentially life-threatening medical amendment right against cruel and unusual punishment.20 numbers of cd4 subsets. his expert testified that the interruption evidence in leavitt's chart of any subsequent communication between leavitt's medical expert testified that if leavitt had been25 department about his hiv after the october clinic appointment. insinuates the first theory, and the record simply does not bear out hiv medications. although leavitt concedes the veracity of these supported motion for summary judgment."). the record shows that the tongue), psoriasis, and seborrheic dermatitis. during the . . . be condemned as the infliction of punishment," let alone condition does not alone establish the "serious medical need" prong time, there was disagreement in the medical community as to the load report. that cichon missed this report and neglected to take any other steps to follow up on leavitt's hiv condition. on february 17, 2007, leavitt transferred from ycj to could communicate with each other. these allegations, he contends, on the issue of causation," and thus reversing the district court's patient from four to two times a day because the jail contracted and cms. the only theory that he continues to press is their19 complaint. is any basis for imposing liability against the entity. referred to him for care in october 2006 and presented with a cd4 (holding that "disagreement on the appropriate course of treatment is statistically more likely to be susceptible to opportunistic evidence of his desire to lower the costs of medical care at ycj. leavitt did not see an infectious disease specialist or restart v. pereira-castillo, 590 f.3d 31, 49 (1st cir. 2009) (reiterating reinitiate his antiretroviral therapy, are enough to put the by choosing not to review the viral load report, as its results as indications of immunological decline from hiv. he continues to 2009 because ycj "perceived that there [would be] a cost savings incident as a ground for his deliberate indifference claim. he cichon acknowledges that his failure to account for the report was 923 f.2d at 234 (observing that "'[w]here the dispute concerns not with vtc was scheduled. this was a reasonable response to leavitt's 2007 by a team of hiv specialists at the virology treatment center c. teresa kesteloot29 investigate whether the delay in leavitt's treatment was part of a can be no liability predicated on municipal policy or custom. see against him by leavitt, tritch stated that leavitt's "hiv viral condition was normal and he did not complain of fatigue, night medical needs and that the district court erred in granting summary judgment in favor of cichon, tritch, woodward, watkins, kesteloot, license for which he was disciplined by the medical board. under resistance to particular hiv medications. vtc also suggested that detention at ycj, leavitt had his first -- and only -- clinical testified that arch eventually lost the ycj contract to cms in june treatment had been appropriate -- a determination that she was not d. procedural history that cichon required immediate treatment. see farmer, 511 u.s. at this circuit has not expressly held that private entities30 in the course of her inquiry, kesteloot learned that [are] sufficiently harmful to evidence deliberate indifference to interest in not confirming that the risk was imminent and, hence, and "with no clear reason that the patient could not receive them." employees in their official capacities. cms concedes that as a leavitt's chart, concluded that his hiv medications should have been allegedly advised leavitt, "you don't need to stay on the [hiv] reviewed a portion of his medical chart, and discussed his care that even under the version of the objective inquiry that cichon failure to do so was a symptom of deliberate indifference. see an inmate to an unreasonable risk of future harm"). we thus who had been on medications for a time and then stopped. at the infections and cancer in the future. 2. after leavitt's clinic visit examined leavitt. tritch confirmed that the latter was suffering memorandum to her mdoc supervisors that leavitt "appears to have of a judge . . . ."). patients. 2005) ("willful blindness and deliberate indifference are not mere starting hiv medications." that order, and all requests to refer drawn that a substantial risk of serious harm exists," and that each to insure that there would be no further delays in his treatment. -32- or error in good faith, that characterize the conduct prohibited by -29- amendment claim is . . . [necessarily] contextual' and fact- predicated on the physician assistant's failure to review and condition. information and followed up in "about a week" with the chosen the absence of help, but the choice of a certain course of worsening fatigue and malaise, and "great fear and uncertainty or medical need, we have held that "[a] medical need is 'serious' urges us to undertake, leavitt has presented sufficient evidence to summary judgment in favor of cms, tritch, woodward, watkins, and untreated, could be fatal; were aware of his active hiv symptoms; could not, as a matter of law, establish that the cms defendants' demonstrated through circumstantial evidence"). after all, cichon supervisory [allopathic] physician" licensed by the medical board, clipboard and reviewed by cichon each time he visited the jail. corrected this inaccurate assertion to the board. specialist if he had reviewed the report. cichon understood that report; the copy of it subpoenaed from ycj and entered into the it is undisputed that cichon knew that leavitt suffered warrant disciplinary action." also its largest shareholder, with ownership of over a quarter of cichon testified that arch had a two-year contract with the jail evidence of adverse effects, may be relevant to both components." refer him to an infectious disease specialist without first take place or take any steps to expedite the process. at the october clinic, leavitt complained of intermittent leavitt was next seen at the chronic care clinic by cms clinic on september 1 and october 22, 2007. at the september immediate complaints, requested updated blood work, and put in a (vtc) in portland, maine. at that time, leavitt again requested to to succeed on an eighth amendment claim based on liability of persons sued in their individual capacities under -13- to treatment for hiv or hiv-related symptoms. leavitt did,5 however, write one or more letters to ycj's medical department, undisputed that this was the proper course of action prior to condition "without appropriate evaluation" and "with no clear § 1983. see sullivan v. city of springfield, 561 f.3d 7, 14 (1st he provided medical care without a supervising physician -- a the patient is on antiretroviral therapy. delay in the reinitiation of antiretroviral therapy for hiv, b. serious medical need watkins at the chronic care clinic, whereupon he asked her why his he then prescribed him kaletra and truvada. through february 17, 2007, at which point he was transferred to the americans with disabilities act (ada). he later voluntarily did not include a genotype as ordered. apparently, bio reference, § 1983 liability. still, the parties agree that cms may be held leavitt's hiv disease was stable. currently, he is at a healthy facts that he strongly suspected to be true, or declined to confirm count of 415, he would have gathered the necessary medical which the official culpably ignores or turns away from what is although this cd4 count represents a slight improvement over10 cir. 2002) ("[t]he mere loss . . . of . . . medical records does ruiz-rosa, 485 f.3d at 156 ("allegations made in a plaintiff's health services administrator of maine state prison; charlene leavitt does not allege that any particular cms defendant27 with the possibility of extensions and that the renewal of arch's officials, like tritch, be held liable for the conduct of their informed leavitt that he could not reinstate his hiv medications or 834 f.2d 326, 347 (3d cir. 1987)). we note that "the subjective at 162 (quoting watson v. caton, 984 f.2d 537, 540 (1st cir. the cms defendants, reverse the entry of summary judgment in favor allegations pertaining to events that took place before the october as examples of this uncertainty, leavitt points to a 2006 rights remedy for the alleged denial of adequate medical care for sweats, or any objective symptoms of hiv. finally, the records glitch. it is undisputed that when tritch finally saw the august resources for correctional health, inc. (arch), the corporation would signal that he had reviewed them.4 related complaints brought by msp inmates, received the grievance no dispute that this was the proper response to a request for evidence for a reasonable factfinder to conclude that each cms no later than may 1, at which point she spoke with leavitt, exacerbation of his underlying condition. soon after leavitt acquiring his medical history, information about his medications teresa kesteloot, and charlene watkins. "the constitution 'does not mandate comfortable prisons,' in good faith, the officials' actions are not "deliberate therapy. has been on many agents prior and likely has some some deficiencies in the provision of health services at msp. the indifference toward the possibility that deficient performance of decision also relied on department of health and human services indication," he anticipated that a follow-up appointment or another 2009, and the district court granted on march 2, 2010, summary be reinstated on his hiv medications. vtc sent a consultation after leavitt started antiretroviral medications, his confirm that an appointment with vtc had been scheduled as ordered. untreated hiv and to "detoxing" from the withdrawal of correctional medical services, inc.; todd tritch, individually a subjective and objective inquiry: he must show first, "that serious medical need determination"; "[s]imilar evidence, including although we conclude that the record is insufficient to dinkel, individually and in her official capacity as rn at maine recovery and the greater the risk of hiv- and non-hiv-related practitioner nurse; alfred cichon, judgment in favor of cichon: that leavitt offered "insubstantial kesteloot did not look into why his antiretroviral therapy had been to begin, cichon himself concedes that if he had seen the there was insufficient evidence that defendants acted with load had risen to greater than 100,000. it was not until13 serious medical condition, as the condition can be life-threatening claiming that correctional medical officials acted with deliberate form of an intake appointment with a cms-employed physician letter to his complaint to kesteloot. kesteloot became aware of true that kesteloot did not investigate whether leavitt's treatment -34- prisoner's underlying medical condition, considered in the indicating that patients who begin treatment at lower cd4 cell abnormally low the last two times he was tested, in april and it. moreover, it is undisputed that he reviewed leavitt's records lab results in november, he approved leavitt's referral to vtc. it the district court granted summary judgment against a19 circuit judges. woodward reviewed these recommendations and ordered an hiv viral v. menino, 175 f.3d 75, 77 (1st cir. 1999). nor can supervisory about one month later, another cms provider wrote an cd4 cell count is when he starts or restarts antiretroviral make recommendations for therapy at that time." later that month, capacities. we focus first on the claims against these defendants is also undisputed that in june 2008, it was tritch who reviewed appeals. for the first circuit positive health care were faxed to ycj, where they were reviewed medications because they are too costly. moreover, as the leavitt's precise status makes no difference to our analysis, as system, including mdoc, should focus on the troubling implications must both be aware of facts from which the inference could be drawn the possibility of extensions, and that such extensions were indifference to his serious medical needs in violation of the complaint in october 2008, also pro se, naming as defendants only leavitt. there is nothing in the record to suggest that cichon iii. cir. 1985))); cf. montgomery, 294 f.3d at 500 (holding that inmate 312, 319 (1986) ("it is obduracy and wantonness, not inadvertence treatment,'" deliberate indifference may be found [only if] the regular basis" before he entered ycj. a second amended complaint. leavitt's medical needs. count and lower viral load are generally desirable. in granting summary judgment for cichon, the district from hiv, hepatitis c, bipolar disorder, anxiety, and and in his official capacity as warden of maine state prison; drugs. nor did she confirm if the follow-up visit to vtc had respondeat superior" (quoting ashcroft v. iqbal, 129 s. ct. 1937, treatment, the lesser the expectation of long-term immunologic -15- that this omission was anything more than an unfortunate scheduling we agree with the district court that leavitt's evidence for a follow-up visit specifically with him the next month. that against woodward and watkins, leavitt's allegations the consultation report recommended that leavitt return for a leavitt takes issue with kesteloot's failure, in legitimate inferences from the facts are jury functions, not those 3. the remainder of leavitt's stay at ycj at the october 5 clinic visit, cichon performed a routine appointment, however, was not scheduled as tritch ordered, and it at ycj as a probation violator or as a pre-trial detainee, but favor. burrell v. hampshire cnty., 307 f.3d 1, 3 (1st cir. 2002). in short order, leavitt's medical records from the damages and injunctive relief against cms, ycj, msp, and various 485 f.3d at 155. 2008 constituted a "continuum" of harm that makes him statistically healthcare provider). leavitt presented expert testimony that if that his labs had just been drawn, and that a follow-up appointment his immunological reserve to protect him from opportunistic -9- therapy immediately. watkins claims that because the report also medication history, and previous drug resistance testing. his -30- and low blood count from claiming him as a victim of aids." leavitt wrote a letter on april 1, 2007 to kesteloot's14 untreated; that leavitt had not had access to his prescribed with a chronic health condition "without appropriate evaluation" he said, "we don't give away [hiv] medications here at this jail[,] leavitt's incarceration at acj on july 11, 2006, his medical seen leavitt for over ten months, reviewed leavitt's chart and in the appreciably stricter criminal-law sense, requiring actual assessing the risk of short-term progression of hiv. a higher cd4 new order for the follow-up appointment that leavitt was supposed msp was generally inadequate. however, to make out a cognizable were being addressed, and not on whether past treatment had been ("[i]t's the particular risk of harm faced by a prisoner due to the the risk, even if the harm ultimately was not avoided."). it is liberty lobby, inc., 477 u.s. 242, 255 (1986) ("credibility 2010).31 state prison; matthew turner, individually and in his official there." june 29, 2011 established that leavitt's labs on april 6, 2006 had shown an satisfied that leavitt had recently been seen by clinic providers, sanchez, 590 f.3d at 49 (quoting camilo-robles v. zapata, 175 f.3d conclude that leavitt has established a material dispute as to ordering that leavitt's follow-up appointment specifically be with aftermath decisions. we need not resolve the issue of waiver; we conclude on f.3d at 162 (quoting watson, 984 f.2d at 540). leavitt filed three non-hiv-related imrfs, in which he5 gaudreault v. municipality of salem, 923 f.2d 203, 208 (1st cir. which state of mind is a material element," hahn v. sargent, 523 rx with cd4 at 460," meaning that leavitt then had a good buffer in treatment regimen. the expert also testified that "knowing the however, her failure to take these affirmative steps is, without cnty., 834 f.3d at 346 ("[w]here 'knowledge of the need for medical load was undetectable" as of august 2007. tritch has never they'll fix you right up." we refer to defendants cms and its employees collectively as1 the parties state that the cd4 cell count is the best3 jury from finding that his subsequent failure to examine the viral would have obliged him, in his own words, "to move precipitously" his consolidated objection to the magistrate judge's recommended and the warden of msp. leavitt later filed a pro se complaint a plaintiff can proffer no evidence that a delay in medical claims of pre-trial detainees] is the same as the eighth amendment judgment in favor of all of the defendants, on the ground that arrived at msp, he began suffering from thrush, leukoplakia, and -12- question," torraco v. maloney, 923 f.2d 231, 234 (1st cir. 1991), coupled with the simple fact that it took over seventeen months to cichon acted with deliberate indifference to his serious medical watkins, individually and in her official capacity as family msp. he claims that the defendants inappropriately denied him infectious disease specialist. generally, cms providers use the at msp. she wrote an order in february related to leavitt's ninety days as a sanction for his providing medical services services from around 1996 to 2003. arch was then replaced by the antiretroviral therapy was interrupted and not restarted until that provided contract healthcare services to inmates at ycj. restarting antiretroviral treatment. authorities for unprofessional conduct that could be interpreted as cichon making inappropriate comments about race and sex to favorable to leavitt and drawing all reasonable inferences in his same information and recommendations to guide treatment of patients "behavior did not rise to a level of misconduct sufficient to ycj had previously contracted with arch for healthcare6 "failing to notify the medical board that he no longer had a a. standard of review mata v. saiz, 427 f.3d 745, 752 (10th cir. 2005) (reiterating the prison officials possessed a sufficiently culpable state of mind, put back on truvada and kaletra. in this context, their vtc. it turned out that no consultation report from, or record of, dermatitis, that vtc interpreted as indications of immunological (quoting ancata v. prison health servs., 769 f.2d 700, 704 (11th entry of summary judgment in favor of a nurse on an inmate's eighth [hiv specialists] out there, the majority of people would have v. madison cnty., 238 f.3d 739, 742 (6th cir. 2001). we conclude amendment claim may be based on a defendant's conduct in exposing because the jail contracted for staff to distribute medications (alterations in original) (citation omitted) (quoting hudson v. sufficiently serious." burrell, 307 f.3d at 8. c. leavitt's current health and prognosis restarted on antiretroviral therapy because of his history of low as an alternative for granting summary judgment in favor of26 prison's medical department operates on a clinic model. inmates see leavitt offers nothing beyond conclusory allegations that their the ordinary course of business they would have been placed on a hiv+ my immune system is low resulting in thrush[,] and it seems as opinion. each side shall bear its own costs on this appeal. (1976). dismissed his claims against ycj and msp and filed an amended genotype" to the lab work she had requested for leavitt the plaintiff, appellant, "to constitute 'an unnecessary and wanton infliction of pain' or to at the time of his incarceration at ycj, leavitt suffered leavitt also appeals the district court's grant of osteopathic licensure in january 2008, in which he admitted to, decline from hiv. vtc reported to cms that leavitt now met the more of the drugs used as part of the regimen. cichon thus the merits that leavitt does not have a triable claim against dependent on whether ycj was "happy with [arch]." cichon also6 been followed appropriately." she took no additional steps to15 medications. he submitted these letters to a ycj officer at some summary judgment record, presenting the facts in the light most maine department of corrections; jeffrey merrill, individually cichon, the district court concluded that "leavitt has hold the burden of providing expensive medication"; "[you will] restarting antiretroviral treatment. constitutional violation by the employees of the municipality, there on myriad occasions, treated him for his immediate complaints, and since msp's medical department operates on a clinic subordinates solely under a theory of respondeat superior. sanchez that follow-up visit, which was scheduled for february predecessor with a similar grievance, and attached a copy of that vtc in one month. dramatically low cd4 cell count of 252. but as of june 2009, wasn't right he was being kept off his hiv meds since they had been director subsequently explained that he decided to defer standard [governing the claims of convicted inmates]." ruiz-rosa, leavitt had been at various points non-compliant with taking his 105-06; see also alsina-ortiz v. laboy, 400 f.3d 77, 82 (1st cir. contract depended on keeping ycj "happy." he also testified that (dhhs) guidelines recommending the deferral of antiretroviral that leavitt's cd4 cell count had fallen to 424 and that his viral that the one-month follow-up consultation recommended by vtc in may concerns were being addressed. physician assistant also ordered an appointment "asap" with an determinations, the weighing of the evidence, and the drawing of claims no recollection of seeing these results, but acknowledges leavitt's visit, which stated: "hiv disease: needs to restart hiv a. leavitt's treatment at ycj impeded his compliance with antiretroviral therapy, and that started sooner, and put in the order for antiretroviral drugs. it is undisputed that during the four months between the ordered blood tests, and reviewed leavitt's records. this conduct, understood was serious and potentially life-threatening if left requested a follow-up appointment in one month. position. watkins first saw leavitt on february 26, 2008, when he "unfortunate" and that a referral to a specialist ought to have these dhhs guidelines were explicitly addressed to12 leavitt has established a material dispute as to whether alfred preventable.'" ruiz-rosa, 485 f.3d at 156 (citing feeney, 464 f.3d 2. leavitt's claims against the individual cms defendants instances in which he acted allegedly to advance that interest, and constipation, and psoriasis -- symptoms that he attributed to his chronicle his treatment history in some detail as presented in the never neglected to review any other patient report. given the "assuming the conduct is harmful enough to satisfy the objective study showing that patients with cd4 counts above 350 whose question of the defendants' deliberate indifference to a jury. the contrary, each time he became aware of potentially serious harm 3. leavitt's treatment in summer and fall of 2007 grant of summary judgment in favor of cichon; affirm the grant of for nearly seventeen months of his incarceration at msp. this had access to his medical charts; had the ability to communicate . . . may present a colorable claim of negligence[] but . . . falls -39- including his own explicit statement to that effect, the past robert costigan, individually and in his official capacity as "because '[t]he objective component of an eighth savings" that the latter apparently provided. inmate medical request form (imrf), he did not submit one related summary judgment stage. see, e.g., gayton v. mccoy, 593 f.3d 610, ii. though i'm being denied meds for that also." that same day, tritch defendants. at the time of their meeting, cichon knew that leavitt 3. leavitt's claims against cms and its employees in of suits filed under § 1983. as for the cms employees, "[a]30 above rule from farmer and noting that "this level of intent can be summary judgment on his § 1983 claim against cms employees tritch, said he was hiv-positive and asked to resume antiretroviral cichon's deprivation of care subjected leavitt to serious harm, both v. return to vtc until march 12. about a month later, leavitt saw leavitt did not return to vtc until december, six months attention received is 'so clearly inadequate as to amount to a results for his current cd4 cell count and viral load. there is3 withholding medications from a patient with a chronic health white, cracked, and painful toes -- all symptoms she recognized be more particularized. because leavitt's case against cichon is appetite, weight loss, wasting syndrome, chronic diarrhea, thrush, specific, the serious medical need inquiry must be tailored to the complaint. see burrell, 307 f.3d at 8 ("[p]rison officials . . . gastrointestinal problems, including vomiting and constipation. counts have a greater risk of not fully reconstituting the normal term "asap" when there is some degree of concern about a patient's to refuse to provide leavitt with a referral or other treatment. tantamount to a dispute over the exercise of professional judgment either intentionally or recklessly, "'not in the tort law sense but the summary judgment record as part of cichon's affidavit. been treated for hiv. cichon also ordered lab work to determine inferences of risk that he strongly suspected to exist"); see also negligence; these concepts are directed at a form of scienter in tantamount to a suit against the entity of which the official is an serious."). the wealth of evidence he presented also shows that he insubstantial proof of injury caused by cichon" as required under corrections (mdoc). cms employed the four other individual patient without first informing the patient, as well as7 correctional officials to provide inmates with adequate medical round of blood tests would take place within three months. this and initialed by cichon. the records indicated that leavitt had a finally, cichon stated that in seventeen years, he had -41- short-term and long-term. see helling, 509 u.s. at 33 (holding that patients to outside consultations, had to be approved by defendant leavitt's medical records from the various facilities where he had regarding his future as a result of his hiv drug interruption." kesteloot. physician assistant at ycj; correctional medical services, inc. liable as though it were a municipality, and so we have proceeded notes that leavitt's follow-up visit to vtc was overdue and future, and that such prospective harm can be the basis of an eighth b. leavitt's treatment at msp physical examination of leavitt, concluding that the latter's leavitt's grievance appears to be that tritch acted with complications over the short term. leavitt further cites studies chills. by july 2008, leavitt's cd4 cell count had rebounded to that a substantial risk of serious harm exists, and he must also official's conduct depends only "upon the constraints facing the available in the record, this issue cannot be resolved at the technical problem; in its report to cms, it stated that it would complaint, standing alone, are not enough to oppose a properly stated a prima facie eighth amendment case, where he alleged that medical needs. the cornerstone of his claim is the missed viral including one to cichon, requesting the resumption of his hiv should be treated analogously to municipalities for the purpose of heightened supervision and reporting requirements. from this record, a factfinder could conclude that -5- was too quick to decide that cichon's version was credible and we note the acknowledgment of the cms defendants that "the care [leavitt] received ultimately fell short of the mark." those that visit had been placed in his cms file. watkins told him that directed arch nursing staff to gather leavitt's medical history, of that acknowledgment. virus present in the bloodstream, is most helpful in assessing a interaction with defendant alfred cichon. cichon was the2 and insufficient to support a constitutional claim. see torraco, short of alleging a constitutional violation"). of cichon, and remand for further proceedings. never saw leavitt again, did not refer leavitt to a specialist, or wisdom of the deferred treatment approach. leavitt's expert summary judgment. the magistrate judge recommended on december 31, -27- 7, 2008, over seven months after vtc deemed him eligible under the draw the inference." farmer 511 u.s. at 837; see also ruiz-rosa, from acj, which indicated that appellant had a below-normal cd4 leavitt no longer pursues his ada claim against any of the20 to go to a jury because of the stringent constitutional standard, -10- had been without his hiv medications for at least one month, as survive summary judgment, leavitt must present enough evidence for from thrush and ordered updated blood work to assess the condition estimate of an hiv-positive individual's risk of short-term in early january, woodward entered an order to "add medical board suspended cichon's physician assistant license for in february 2009. seven months later, all the defendants moved for load, an immune function panel, and a follow-up appointment with variety of other defendants, including those employed by mdoc, in his cd4 count because of the "continuum" of inadequate treatment indifference."). leavitt had been seen recently at the chronic care clinic, and that indeed, leavitt himself does not take issue with cichon's23 testified that although leavitt's cd4 count was above dhhs's cut- if the evidence showed that he merely refused to verify underlying health. nevertheless, the follow-up with the specialist never took rash. woodward assumed the follow-up appointment with vtc had been brief, for appellant. we should focus on the seriousness of the effects of this omission. never took place. 5. leavitt's march visit to vtc denied leavitt's grievance. leavitt's appeal of that decision to load report and to follow up on leavitt's condition, in combination cannot be deliberately indifferent if they responded reasonably to tritch approved leavitt's referrals to outside specialists28 collective and vicarious liability theories. he alleges that "[a]ll reordered it. the next month, woodward stopped working full time since his last visit to vtc on march 12, labs had been drawn and a recommend they obtain a cd4, [viral load,] and a genotype." vtc follow up on leavitt to ensure that there would be no further challenged deprivation of care, rather than the severity of the york county jail; maine state prison; martin a. magnusson, some other facilities operated by the maine department of constitutes the key fact in dispute in leavitt's case against him. responsible for the operation of the maine correctional healthcare raymond d. leavitt, leavitt argues that cichon's failure to refer him to an 464 f.3d at 162; cf. montgomery v. pinchak, 294 f.3d 492, 500 (3d and cms employees todd tritch, edie woodward, charlene watkins, and hypothyroidism. on october 5, 2006, about one month into his received his antiretroviral medications. he also lamented that "it asserts that when watkins received the consultation report from his jury could conclude that cichon acted with deliberate indifference grievance with mdoc through cms defendant teresa kesteloot, in -38- october 2006. according to leavitt, he had also complained to22 -19- have perceived but did not, while no cause for commendation, cannot leavitt eventually obtained the services of an attorney reinitiating antiretroviral treatment so that he could obtain defendants. -21- their cd4 count dropped to 250 experienced a significant increase "very likely to cause serious illness and needless suffering" in the delays in his treatment. in the intervening period, leavitt filed a formal which he protested that he was not receiving treatment for his the basis of their own acts or omissions," and not "for the if it is one that has been diagnosed by a physician as mandating time. will need to start him back on truvada/kaletra now. will sweats, chills, fever, fatigue, psoriasis, nausea, and the medical board found that he withheld medications from a patient vtc subsequently sent a consultation report to cms in which it healthcare providers at msp; and teresa kesteloot as the health involved in his care. found a regimen for him and gotten him back on antiretroviral chart, including lab results from march that indicated a low cd4 competent evidence that shows a genuine issue for trial. ruiz-rosa we review a district court's summary judgment ruling de [hon. john a. woodcock, jr., u.s. district judge] a way of monitoring the patient's condition, regardless of whether does not give rise to a constitutional claim, feeney, 464 f.3d at (cms), the private contractor that provided medical care at msp; against a number of defendants, including alfred cichon, a individually and in her official capacity as physician assistant; the cruel and unusual punishments clause."); battista v. clarke, __ and compliance with taking those medications, and blood test medications to be healthy, and just as soon as you get to the [msp] on january 23, 2008, woodward observed in her progress -4- "a patient with ongoing hiv disease who has a history of very low his antiretroviral drugs to keep him alive. a jury could thus prison administrative coordinator of maine state prison; jonna needs. we thus affirm the entry of summary judgment in favor of previous month. those lab results were reported on january 18 but appeal, leavitt challenges the district court's grant of summary viral load report indicating that leavitt's viral load was 143,000, appeal from the united states district court as further support for his theory, leavitt points out defendant did, in fact, "draw the inference." farmer 511 u.s. at following up on his care -- that, for example, woodward should have could conclude that tritch acted with deliberate indifference. to tritch. from hiv, a medical condition that the physician assistant additional information about leavitt's immune status, viral load, only exposed him to these short-term effects, but also led to the only twice a day. the board found that cichon should have informed the latter. tritch did not became personally involved in leavitt's model, patients are usually not followed by particular providers. leavitt's chart that appointments had been ordered or that follow-up need to reach the issue of "serious medical need." inmates with chronic diseases, including hiv, are assigned to the care as punishment and by decisions about medical care made hiv-positive. he was incarcerated at ycj from september 6, 2006, committing to intervene more personally in his care. leavitt only section 1983 must be gauged in terms of their own actions." rogan matter of law. feeney v. corr. med. servs., inc., 464 f.3d 158, in short- and long-term negative consequences for his health. we patient's cd4 and viral load counts every three to four months as court emphasized that even after cichon purportedly made the human immunodeficiency virus (hiv) by healthcare professionals at deliberate indifference. as leavitt suggests, cichon may well23 the reported results from april and october 2006, leavitt's expert leavitt's complaint was not on trying to determine whether past and supervisory relationship" for the period from november 2, 2006, criteria for starting antiretroviral therapy for hiv, requested an in his brief, leavitt appears to press a mix of individual capacity, he must demonstrate that there is sufficient leavitt alleges, "constituted a continuum of harm," which resulted of the eighth amendment inquiry. he insists that the inquiry must easily recognize the necessity for a doctor's attention." were subsequently drawn and reported, showing an abnormal cd4 cell under a municipal liability theory. where, as here, there is no dhhs guidelines. during the seventeen months he had been actually been scheduled. ultimately, leavitt did not return to vtc that leavitt was due for a follow-up visit to vtc. -24- treatment. the physician assistant ordered a new round of blood recommended that "they obtain a cd4, [viral load,] and a genotype," -42- or was being scheduled, and she accordingly entered an order for aware as one would like a medical professional to be, but "an antifungal cream for leavitt's skin and feet. even though she knew have ordered the lab tests and medical reports simply to "paper his continuous antiretroviral therapy. leavitt also references a great -36- helling v. mckinney, 509 u.s. 25, 31 (1993)). the failure of the cms defendants" knew he had hiv, a disease that, if left james a. billings, with whom lipman, katz & mckee was on v. rullán, 485 f.3d 150, 156 (1st cir. 2007). qualified to make -- but solely on whether leavitt's current 162; rather, the treatment provided must have been so inadequate as in april 2008, when his antiretroviral therapy had not yet been official's failure to alleviate a significant risk that he should recklessly with 'actual knowledge of impending harm, easily in the interim, leavitt saw woodward at the chronic care cd4 counts and because he suffered from hepatitis c. sixteen hours per week, and he also was president of allied antiretroviral therapy is discontinued. suffer from rashes, warts, fatigue, and malaise. leavitt also addressed to him and routed to the medical office at ycj, where in undetectable viral load of less than 75 and an abnormally low cd4 various providers, each of whom is not charged with following a the frequency of medications was changed from the7 -40- immunodeficiency state and/or recent viral infection." cichon leavitt finally restarted antiretroviral therapy on july but neither does it permit inhumane ones"; accordingly, "it is now f.2d 9, 13 (1st cir. 1987); miranda v. munoz, 770 f.2d 255, 259 (1st leavitt, an inmate of the maine corrections system, seeks a civil fever, and nausea, and told the physician assistant that he needed deliberate indifference inquiry may overlap with the objective his cd4 cell count had plummeted to 296 and his viral load had 9, 2008 with the previous complaint into what the court styled as the viral load report indicated a higher than normal financial stake in keeping treatment and referral costs low to

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