September 26, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1038
DR. VIJAI B. PANDEY,
Plaintiff, Appellant,
v.
FRANK H. FREEDMAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Dr. Vijai B. Pandey on brief pro se.
Donald K. Stern, United States Attorney, and Thomas E. Kanwit,
Assistant United States Attorney, on brief for appellees Frank H.
Freedman, et al.
Dianne M. Dillon on brief for appellees William J. Fennell,
Esquire and Dusel, Murphy, Fennell, Liquori & Powers.
Per Curiam. Plaintiff-appellant, Vijai B. Pandey,
appeals from the district court's dismissal of his complaint
for failure to state a claim upon which relief can be
granted, among other grounds. The district court granted the
federal defendants' motion to dismiss in the following order:
"Allowed for all of the reasons set forth in the supporting
memorandum of the federal defendants." Having carefully
reviewed the complaint, the parties' briefs and the
memorandum of the federal defendants in support of their
motion to dismiss, we conclude that the district court
properly dismissed the complaint in its entirety. We add
only the following comments.
I. Claims against federal defendants.
A. Heck v. Humphrey
Appellant's complaint is essentially a reiteration
of the issues raised in his appeal from his federal
conviction and sentence for bank fraud. It contains claims
of constitutional violations by probation officers, judges,
clerks, prosecutors and other federal actors involved in his
conviction and sentencing. Pursuant to Heck v. Humphrey,
U.S. , 114 S. Ct. 2364 (1994), Pandey "cannot establish the
elements of a Bivens action until his conviction has been
declared invalid or otherwise impugned . . . ." Stephenson
v. Reno, 28 F.3d 26, 27 (5th Cir. 1994); see also Tavarez v.
Reno, 54 F.3d 109 (2d Cir. 1995). We affirmed Pandey's
-2-
conviction and sentence in United States v. Pandey, No. 91-
2219, 1992 WL 348046 (1st Cir. Nov. 23, 1992). Accordingly,
the district court did not err in dismissing those claims
against the federal defendants that call into question the
validity of Pandey's conviction and sentence.
B. Eighth Amendment Claims
Pandey's complaint includes claims that the
conditions in which he was kept by prison officials during
the three weeks between his sentence and his arrival at a
medical facility constituted cruel and unusual punishment in
violation of the Eighth Amendment. Although not barred by
Heck, Pandey's Eighth Amendment claims were properly
dismissed for failure to state a claim.
This court's review of a dismissal under Fed. R.
Civ. P. 12(b)(6) is plenary. See, e.g., Miranda v. Ponce
Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991). The question is
whether, accepting the factual allegations in the complaint
as true, and construing them in the light most favorable to
Pandey, the complaint indicates any facts which could entitle
him to relief. See Gooley v. Mobil Oil Corp., 851 F.2d 513,
514 (1st Cir. 1988). Because it was filed pro se, Pandey's
complaint is entitled to an extra degree of solicitude. See
Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).
"[I]t is now settled that 'the treatment a prisoner
receives in prison and the conditions under which he is
-3-
confined are subject to scrutiny under the Eighth
Amendment.'" Farmer v. Brennan, U.S. , 114 S. Ct. 1970,
1976 (1994) (citation omitted). There are two prerequisites
to an Eighth Amendment violation by a prison official:
First, the deprivation alleged must be,
objectively, "sufficiently serious;" a
prison official's act or omission must
result in the denial of "the minimal
civilized measure of life's necessities,"
. . . .
The second requirement follows from
the principle that "only the unnecessary
and wanton infliction of pain implicates
the Eighth Amendment." . . . In prison
conditions cases [the prison official's
state of mind] must be one of "deliberate
indifference" to inmate health or safety.
Id. at 1977. The requirement of "deliberate indifference"
has a subjective component: "a prison official cannot be
found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference." Id. at
1979.
Pandey's allegations concerning the size and
condition of the cells in which he was kept, the denial of
lunch during an eight-hour trip and of baby oil, soap and
other comforts while incarcerated, as well as the delay in
placing him in a medical facility, even if accepted as true,
-4-
fail to meet the first requirement of "sufficiently serious"
deprivations. See Hudson v. McMillian, 503 U.S. 1, 9 (1992)
("[E]xtreme deprivations are required to make out a
conditions- of-confinement claim.") The district court
sentenced Pandey to a medical facility so that he could
receive treatment for chronic fatigue. The complaint does
not allege that delay in treatment of that condition
presented a serious health risk to Pandey.
While the denial of prescribed medicine (for
diabetes and high blood pressure) could constitute a
sufficiently serious harm, the complaint fails to allege
facts which would support a finding of "deliberate
indifference." "When, as here, a convict claims that state
prison officials violated the Eighth Amendment by withholding
essential health care, he must prove that the defendants'
actions amounted to 'deliberate indifference to a serious
medical need.'" DesRosiers v. Moran, 949 F.2d 15, 19 (1st
Cir. 1991).
Pandey failed to allege facts showing that the
defendants themselves (the prison wardens) knew of an
excessive risk to his health or safety if the proper medicine
was not promptly supplied. The complaint states that on
three occasions Pandey wrote to one of the warden defendants.
The first communication allegedly "detail[ed] his
debilitating medical condition" and need for medical
-5-
attention. The next day he was allegedly seen by two
physician's assistants. The second communication is merely
alleged to have requested the warden's personal assistance in
obtaining proper medical care. Finally, Pandey alleges that
he wrote to the warden on December 8, 1991, indicating that
his medication was about to run out. On December 12, 1991, a
physician's assistant provided him with medicine for the
diabetes and high blood pressure from which he allegedly
suffered. The complaint's allegations that Pandey was
provided with the wrong medicine in an untimely manner, at
most state a claim of negligence, but not of "deliberate
indifference." Pandey did not allege that he informed the
warden that he would experience a serious medical reaction if
he did not immediately receive the proper medicine. (Nor did
he allege that such a reaction resulted from the failure to
timely provide the proper medicine.) Therefore, the
pleadings fail to allege that the defendant warden was "aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists." Farmer, U.S. at
, 114 S. Ct. at 1979.
Pandey alleges frequent complaints to physician's
assistants and others with whom he had immediate contact at
the prison. Supervisors, however, cannot be held liable in a
Bivens claim on the sole basis of their supervision of
others. Cf. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553,
-6-
562 (1st Cir. 1989) (liability under 1983 may not be
predicated upon a theory of respondeat superior).
Pandey failed to allege that sufficiently serious
symptoms resulted from his failure to receive the proper
medication, much less that the defendants knew of such
symptoms. See Mahan v. Plymouth County House of Corrections,
No. 94-1835, slip op. at 9-10 (1st Cir., Sept. 7, 1995)
(holding that prison officials were not "deliberately
indifferent" if they did not learn of "the serious symptoms
that [plaintiff] actually experienced while detained" as a
result of the withholding of prescribed medication).
Therefore, the complaint failed to state a claim of Eighth
Amendment violations by the wardens or other prison officials
named as defendants.
II. Non-federal Defendants
A. Dismissal of Claims against Attorney
Fennel and Law Firm.
The district court granted motions to dismiss by
William Fennel, Pandey's court appointed attorney in his
criminal case, and by Fennel's law firm. "A private attorney
who is sued for actions allegedly taken as court-appointed
counsel does not act under color of state law [for purposes
of 1983]." Malachowski v. City of Keene, 787 F.2d 704, 710
(1st Cir.), cert. denied, 479 U.S. 828 (1986). Similarly, a
federal court-appointed attorney is also shielded from claims
of constitutional violations "since a Bivens-type suit
-7-
requires federal action in the same manner as 1983 requires
state action." Housand v. Heiman, 594 F.2d 923, 924 n.1 (2d
Cir. 1979). Pandey's wholly conclusory allegations of
conspiracy between Fennell and the United States Attorney are
not sufficient to convert the private attorney's actions into
federal action for purposes of the Bivens claims. See Page
v. Sharpe, 487 F.2d 567, 570 (1st Cir. 1973).
With respect to the state-based claims of attorney
malpractice and negligence, they are essentially repetitions
of the issues raised in Pandey's motion in the district court
to have his attorney Fennell removed from representing him in
the criminal case. They were specifically determined by the
district court, and affirmed by this court, in the antecedent
criminal case. Therefore, collateral estoppel precludes
Pandey from again raising the issue of the adequacy of
Fennell's representation in this civil case. "The principle
that collateral estoppel precludes raising issues in a civil
case already decided in a prior criminal trial has been long
established." Glantz v. United States, 837 F.2d 23, 25 (1st
Cir. 1988) (citations omitted). Accordingly, the district
court did not err in allowing Fennell's motion to dismiss.
The claim against Fennell's law firm was also
properly dismissed. Although named as a defendant in the
caption, the law firm is not mentioned in the body of the
complaint. Therefore, the district court did not err in
-8-
ruling that Pandey had failed to state a claim against the
law firm.
On appeal, Pandey claims that the district court
erred in denying his motions for default judgments against
Fennell and his law firm for failure to timely file an
answer. Fed. R. Civ. P. 6(b)(2) provides that "upon motion
made after the expiration of [a] specified [time] period,
[the court for cause shown may at any time in its discretion]
permit the act to be done where the failure to act was the
result of excusable neglect . . . " The reason given by the
defendant lawyer and law firm for moving for an extension was
the voluminous length and scope of the complaint. "The
district court is afforded great leeway in granting or
refusing enlargements . . . and its decisions are reviewable
only for abuse of that discretion." Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 583-84 (1st Cir. 1994).
Given the length and scope of the complaint, the district
court did not abuse its discretion in ruling that the failure
to timely file a response was "excusable neglect."
B. Denial of Motion for Default Judgment against
Robert E. Kenney.
Pandey appeals from the district court's denial of
his motion for a default judgment against Robert E. Kenney,
the attorney who briefly represented him on appeal before
Pandey obtained his dismissal. The district court denied the
-9-
motion for the reason that no proper service of the defendant
had been made.
Fed. R. Civ. P. 4(c)(2) provides, in relevant
part, that "[s]ervice may be effected by any person who is
not a party and who is at least 18 years of age." The
summons indicates that service upon Kenney was effected by
appellant's daughter Pramila. Count LXXVII of the complaint
includes a claim of loss of consortium by Pramila.
Therefore, she is a party to the case. See Poulin v. Greer,
18 F.3d 979, 980 n.1 (1st Cir. 1994). Service upon Kenney
was not effected and the district court did not err in
denying Pandey's motion for a default judgment.
For the foregoing reasons, in addition to the
reasons given by the district court, the dismissal of
appellant's complaint is summarily affirmed. See Loc. R.
27.1.
-10-