July 5, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2296
WILLIAM J. GALLANT, JR.,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
Edward J. McCormick, III and McCormick & Maitland on brief for
appellant.
Nancy Ankers White, Special Assistant Attorney General, and
Sondra M. Korman, Counsel, Department of Correction, on brief for
appellee Larry Dubois.
Bruce R. Henry, Joseph L. Bierwirth, Jr. and Morrison, Mahoney &
Miller, on brief for appellee Burton Levine, M.D.
Per Curiam. Having carefully reviewed the parties'
briefs and the appellate record, we conclude that this appeal
does not present a substantial question. We affirm the
summary judgment in favor of the defendants, for the same
reasons stated by the district court. We add only these
comments.
Plaintiff contends that the district court
improperly ignored his affidavit. However, that affidavit
broadly contradicts plaintiff's own specific deposition
testimony and the letters he wrote, and no explanation was
given for the contradiction. In that circumstance, the
affidavit was insufficient to withstand defendants' motions
for summary judgment. See Colantuoni v. Alfred Calcagni &
Sons Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).
Because we agree with the district court that the
overwhelming evidence, notwithstanding plaintiff's affidavit,
showed that medical care was not withheld by defendants, but
rather was refused by plaintiff, we reject plaintiff's
contention that material issues of fact remained as to
defendants' states of mind. Put another way, as no
indifference was shown, no material issue of "deliberate"
indifference remained. Further, there having been no
deprivation of medical care within the scope of the Eighth
Amendment, it would have been futile to amend the complaint
to add another Department of Correction official as a
defendant.
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Affirmed. See 1st Cir. Loc. R. 27.1.
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