USCA1 Opinion
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[NOT FOR PUBLICATION]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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