March 29, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1725
BRUCE T. RAINERI,
Plaintiff, Appellant,
v.
HILLSBOROUGH COUNTY HOUSE OF CORRECTIONS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Cyr, Circuit Judges.
Bruce T. Raineri on brief pro se.
Carolyn M. Kirby, Assistant County Attorney, on brief for
appellee Hillsborough County House of Corrections.
Wilbur A. Glahn, III, McLane, Graf, Raulerson & Middleton,
Professional Association, Duane, Morris & Heckscher, Allen C. Warshaw,
and Mary P. Patterson on brief for appellee Pennsylvania Institutional
Health Services, Inc.
Amy L. Fracassini, Robert J. Lanney, and Sulloway & Hollis on
brief for appellee Barbara Condon.
Per Curiam. Appellant Bruce T. Raineri appeals
from the dismissal of his complaint based on 42 U.C.S.
1983. He asserted that health providers at the New Hampshire
jail where he was incarcerated violated the Eighth Amendment
by providing constitutionally deficient medical care. After
carefully reviewing the record and the briefs of the parties,
we agree with the reasoning of the district court contained
in its Order, dated June 24, 1993. We add the following
comments concerning the grant of summary judgment to appellee
Barbara Condon and the dismissal of the complaint against
Hillsborough County House of Corrections (Hillsborough) and
its medical provider, Pennsylvania Institutional Health
Services, Inc. (PIHS).
To prevail on a motion for summary judgment, the
moving party must "show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). Once
the movant has met this standard, the burden shifts to the
non-moving party to establish the existence of "at least one
issue that is both `genuine' and `material.'" Kelly v.
United States, 924 F.2d 355, 357 (1st Cir. 1991) (citation
omitted); Fed. R. Civ. P. 56(e).
In support of her motion for summary judgment,
Condon submitted her own affidavit and appellant's medical
records. She argues, and the dispensary cards (which
chronicle each contact appellant had with the medical staff)
show, that the first time appellant brought up the problem
with the timing of his morning dose of insulin was on
September 28 or 29, 1992. About three days later, Condon
instituted the change in the time at which appellant ate
breakfast to conform to his request that the insulin be given
within one-half hour of his morning meal. The rest of the
dispensary cards reveal that from June 23, 1992 until
September 28, 1992, insulin was given to appellant daily,
apparently without complaint.
In opposition to the summary judgment motion,
appellant did not file any affidavits or other record
evidence
However, his complaint is "verified" in the sense that it was
made under "the pains and penalties of perjury." In
Sheinkopf v. Stone, 927 F.2d 1259 (1st Cir. 1991), we held
that, under certain circumstances, a verified complaint can
suffice for Rule 56 purposes. Id. at 1262. Thus, the
factual statements in the complaint, to the extent they can
be deemed to come within appellant's knowledge, are "fully
tantamount to a counter-affidavit, and hence, worthy of
consideration." Id. at 1262-63. Conclusory allegations are
disregarded. Id. at 1262.
To state an Eighth Amendment claim, appellant must
adduce evidence concerning his medical treatment that raises
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an inference that Condon's actions amounted to the wanton
infliction of unnecessary pain. See Estelle v. Gamble, 429
U.S. 97, 104 (1976). "Deliberate indifference to serious
medical needs of prisoners" satisfies this standard. Id. In
turn, this standard has two components: (1) the subjection
of the prisoner to a "sufficiently serious deprivation"; and
(2) acts that amount to "wanton disregard" of the rights of
the inmate. DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir.
1991). Negligence and inadvertence in providing medical
treatment do not state a valid claim of deliberate
indifference. Estelle, 429 U.S. at 105-06.
Appellant states in Complaint A that he complained
frequently, if not daily, about the scheduling of his morning
dose of insulin. Given that this allegation is within
appellant's knowledge, we think that the district court was
correct in crediting this assertion. However, it is not
sufficient to defeat Condon's summary judgment motion. The
record plainly reveals that appellant received, on a daily
basis, the insulin he required. Moreover, he was monitored
closely by the medical staff, often being seen more than once
per day.
Where a prisoner's dispute is not with the lack of
help, but with his course of treatment, we have been
reluctant to find deliberate indifference. Torraco v.
Maloney, 923 F.2d 231, 234 (1st Cir. 1991). A treatment
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regime can amount to deliberate indifference only where it
effectively results in a complete denial of basic care --
that is, treatment which is so deficient that it shocks the
conscience. Id. This is not such a case.
Basically, appellant fails to assert any facts that
satisfy the first component of the deliberate indifference
standard -- a "sufficiently serious deprivation" as a result
of Condon's actions. All that appellant alleges in his
verified complaint is that he suffered "irreparable harm" as
the result of the treatment he received.1 This is the kind
of conclusory allegation that is to be disregarded even
though contained in a verified complaint. See Sheinkopf, 927
F.2d at 1262. In the absence of an adequately supported
factual scenario that appellant suffered specific medical
consequences related to Condon's treatment choices -- an
essential element of his case -- summary judgment is
appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
Finally, there was no error in the dismissal of
appellant's complaint against Hillsborough. Appellant failed
1. Appellant asserts, for the first time on appeal, that due
to Condon's refusal to reschedule his insulin doses, he went
into a diabetic reaction on four occasions and suffered from
severe headaches -- a symptom of an impending diabetic
reaction. Issues not presented below normally are deemed
waived. Knight v. Mills, 836 F.2d 659, 664 n.6 (1st Cir.
1987). We see no reason to depart from this rule in this
case.
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to allege that any action or omission on the part of
Hillsborough was taken pursuant to an official policy or
custom. See Monell v. New York City Dep't of Social
Services, 436 U.S. 658, 694 (1978). As for PIHS, it may not
be held liable solely on the basis that it was the employer
of Condon. See id. at 691.
The judgment of the district court is affirmed.
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