(Not for Publication in West's Federal Reporter)
United States Court of Appeals
For the First Circuit
No. 10-1079
EUGENE F. RECTOR,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lipez, Howard and Thompson,
Circuit Judges.
Eugene F. Rector on brief pro se.
Kristin J. Cole, Department of Correction and Nancy Ankers
White, Special Assistant Attorney General, on brief for
appellees.
July 20, 2010
Per Curiam. Eugene F. Rector has appealed the district
court's dismissal of his civil action, filed pursuant to 42 U.S.C.
§ 1983, for failure to state a claim upon which relief may be
granted. Rector, civilly committed as a sexually dangerous person
to the Massachusetts Treatment Center in Bridgewater,
Massachusetts, alleged that the double-bunking in that facility
violated his Fourteenth Amendment right to Due Process. We review
a district court's sua sponte dismissal, de novo. Gonzalez-
Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001). Upon
de novo review, we affirm.
On appeal, Rector contends that the district court erred
in dismissing his complaint without giving him an opportunity to
amend that complaint. However, Rector had notice of the defect in
his complaint. His 2009 federal complaint was identical to his
prior 2006 federal complaint. And, in 2006, the district court had
alerted Rector to the defect in that complaint, i.e., that he had
not alleged that he had been harmed or was in danger of being
harmed because of double-bunking. Moreover, in 2006, the district
court had advised Rector on how to remedy that defect, i.e., to
include "truthful allegations concerning the manner in which the
double-bunking is harmful to him personally" and had specifically
given Rector the opportunity to file an amended complaint. Rector
declined that opportunity. Instead, Rector first filed the same
insufficient complaint in 2007 in state court, where he lost (for
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the same reason), and then filed the identical defective complaint
once more in 2009 in federal court. Clearly, Rector did not lack
notice of the defect of his complaint and the district court did
not err in concluding that, Rector having filed the same defective
complaint twice more after such notice, it need not give Rector
another opportunity to amend.
As a second argument, Rector contends that he does not
need to demonstrate any actual harm and cites to cases which, for
example, hold that prisons have an obligation to protect inmates
from threats from fellow prisoners or "sufficiently imminent
dangers." This avails Rector nothing since he specifically stated
that he was not being threatened or intimidated. He also cites to
(1) a 1987 case from the District of Idaho that directed that
single cells were constitutionally required for inmates housed in
a unit for psychological treatment in a particular prison due to
treatment needs and personal safety and (2) a 1983 case from the
District of Wisconsin that held that, although it was not
unconstitutional in general to double-cell prisoners with
psychological problems, it was cruel and unusual punishment to
force a non-suicidal inmate to share a cell with a suicidal inmate.
Rector, however, presents nothing to suggest that either his
treatment needs or his personal safety requires a single cell, or
that he is being coerced to share a cell with a suicidal inmate.
Moreover, whatever the current validity of these directives, these
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cases are not precedent for us and predate our decision in Cote v.
Murphy, 2005 WL 2708221, 152 Fed. Appx. 6 (1st Cir. 2005)
(unpublished per curiam). Rector makes no persuasive argument
suggesting that Cote is no longer good law.
Rector failed to address, in his main brief, the district
court's alternative grounds for dismissal, i.e., that the action is
barred by the Rooker-Feldman doctrine, as well as res judicata. He
discusses these grounds for the first time only in his reply brief.
For that reason, Rector's contentions are waived. Sandstrom v.
ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990) (reciting that
arguments not made in the opening brief are waived). In any event,
Rector's arguments are meritless.
The district court order of dismissal, entered on
December 1, 2009, is affirmed.
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