June 27, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2078
GILBERT DIAS,
Plaintiff, Appellant,
v.
RONALD DUVAL, SUPERINTENDENT, M.C.I. CEDAR JUNCTION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Gilbert Dias on brief pro se.
Nancy Ankers White, Special Assistant Attorney General, and
Sondra M. Korman, Counsel, Department of Correction, on brief for
appellees.
Per Curiam. We have carefully reviewed the briefs
and record and conclude that summary judgment was correctly
entered for defendants. We briefly comment on several of
plaintiff's arguments.
1. Plaintiff contends that the district court
should have granted his request for additional time to
respond to defendants' motion for summary judgment. By the
time plaintiff's motion was docketed, the district court had
already entered judgment for defendants. Consequently,
plaintiff's motion, in its present form, was moot. At that
point, if plaintiff still wanted to file a substantive
response to defendants' motion for summary judgment, he
should have timely filed a motion under Fed. R. Civ. P. 59(e)
or Fed. R. Civ. P. 60(b) asking the district court to vacate
its judgment and consider plaintiff's response. As plaintiff
did not do either and never filed a substantive opposition to
defendants' motion for summary judgment, we confine our
review to the district court record and do not consider any
new factual allegations plaintiff raises in his appellate
brief.
2. The one instance in which plaintiff did not
receive one of his four daily dosages of pain medication did
not amount to an Eighth Amendment violation.
As for the prescribed medication plaintiff says he
kept in his cell, plaintiff's January 28, 1993 letter to Lt.
Silva requested that all his property be mailed out.
Plaintiff did not specifically point out an immediate need
for the medications. In those circumstances, the district
court could properly conclude that summary judgment was
appropriate because plaintiff had not shown a basis for
inferring that defendants were deliberately indifferent to
plaintiff's medical needs.
Defendants' submissions showed that plaintiff
consistently refused to comply with alternate feeding
procedures either by remaining silent, saying no, or claiming
he wasn't hungry. Below, plaintiff described only one of the
meals tendered -- a cheese sandwich. In these circumstances,
where plaintiff was repeatedly afforded an opportunity to
come off alternate feeding but did not cooperate, plaintiff
may not properly complain that defendants denied his
medically prescribed diet.
3. Plaintiff contends he was deprived of the
necessities of life in violation of the Eighth Amendment when
he was placed on alternate feeding and for some period
thereafter. We confine our review to the district court
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record and do not consider the new allegations presented in
plaintiff's appellate brief. On that basis, we conclude that
the temporary restrictions, which, according to the fair
thrust of the district court record, lasted under a week,
were not unconstitutionally cruel. Our affirmance, however,
is without prejudice to plaintiff's bringing a new action
challenging the conditions of his confinement once he was
placed on alternate feeding. In his appellate brief,
plaintiff asserts that he had no clothes, was confined to a
cold cell twenty-four hours a day, was denied blankets, had
no running water, and was not allowed to shower from January
26, 1993 until February 16, 1993. While his allegations are
somewhat vague, undeveloped, and even contradictory at times,
we think plaintiff should be afforded a further opportunity
to clarify his allegations, particularly in view of
plaintiff's unsuccessful attempt below to extend the time for
responding to defendants' motion for summary judgment.
Consequently, we direct that the summary judgment entered for
defendants be without prejudice to plaintiff's filing a new
action challenging the conditions of his confinement from
January 26, 1993 to February 16, 1993.
4. Plaintiff contends he was denied due process
during his disciplinary hearing. Summary judgment was
properly entered for defendants. Plaintiff was not convicted
of any throwing offense. Plaintiff's attacks on Lopes'
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allegations and the evidence relating to that charge do not
state any due process claim. Freeman v. Rideout, 808 F.2d
949, 951-53 (2d Cir. 1986) ("prison inmate has no
constitutionally guaranteed immunity from being falsely or
wrongly accused of conduct which may result in the
deprivation of a protected liberty interest"), cert. denied,
485 U.S. 982 (1988). Prison officials gave adequate reasons
for denying two of plaintiff's requested witnesses, and the
verbal insolence finding was adequately supported by the
evidence.
We have considered all of plaintiff's arguments and
affirm the judgment below, but direct that the affirmance is
without prejudice to plaintiff's filing a new action
challenging the conditions of his confinement from January
26, 1993 until February 16, 1993.
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