USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2346
DAVID E. GIACALONE,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellees.
____________
ADRIAN ALMEIDA,
Plaintiff, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Stahl and Lynch, Circuit Judges. ______________
____________________
David E. Giacalone on brief pro se. __________________
Nancy Ankers White, Special Assistant Attorney General, and ____________________
Stephen G. Dietrick, Deputy General Counsel, Department of Correction, ___________________
on brief for appellees.
____________________
July 18, 1997
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Per Curiam. We have reviewed the parties' briefs and ___________
the record on appeal.1 Appellant claimed that the defendant 1
prison officials were forbidden by the Eighth Amendment's
prohibition against cruel and unusual punishment from
withdrawing the opportunity for yard exercise as a sanction
for violating a prison rule. The district court dismissed
the complaint. We affirm.
Exercise is "an identifiable human need," and depriving
an inmate of the ability to exercise may, under certain
circumstances, such as an excessively long deprivation, raise
Eighth Amendment concerns. Wilson v. Seiter, 501 U.S. 294, ______ ______
304 (1991); McGuinness v. Dubois, 893 F. Supp. 2, 3 (D. Mass. __________ ______
1995), aff'd, 86 F.3d 1146 (1st Cir. 1996) (unpublished per _____
curiam; table decision). However, that is not the case here.
We conclude that the district court correctly rejected the
claim that the sanction -- loss of yard exercise for 45 days
-- imposed after appellant was found guilty of assisting in
the assault of another inmate by striking that inmate's head
with his fists and with a typewriter violated the Eighth
Amendment. See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. ___ ___ _______
1997); LeMaire v. Maass, 12 F.3d 1444, 1457-58 (9th Cir. _______ _____
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1The district court complaint was signed by appellant 1
David E. Giacalone and by Adrian Almeida. Thereafter, the
filings were signed only by Giacalone. Giacalone alone
signed the notice of appeal and the appellant's brief. As a
pro se prisoner cannot represent a fellow inmate, see ___
Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41 (1st Cir. _______________ ______________
1982), we treat this appeal as pertaining only to Giacalone.
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1993); Leonard v. Norris, 797 F.2d 683, 685 (8th Cir. 1986); _______ ______
see also McGuinness v. Dubois, 893 F. Supp. at 3 (concluding ________ __________ ______
that defendants were entitled to qualified immunity for claim
that a sanction of lost yard time imposed for a succession of
disciplinary convictions, that cumulatively amounted to
approximately one year, did not violate clearly established
Eighth Amendment rights).
Appellant's citation to state law and state regulations
in support of his Eighth Amendment claim does not further his
case. See Michaud v. Sheriff of Essex County, 390 Mass. 523, ___ _______ _______________________
526, 458 N.E.2d 702, 704 (1983) (opining that inmates'
standing to seek relief based solely on the existence of
conditions at the jail which violate state Department of
Public Health's regulations is unclear); Attorney Gen. v. _____________
Sheriff of Worcester County, 382 Mass. 57, 59, 413 N.E.2d ____________________________
722, 724 (1980) (opining that the Attorney General, as chief
law officer, is an appropriate officer to seek declaratory
relief as to scope of duty to enforce Department of Public
Health regulations). In any event, "[m]ere violations of
state law do not, of course, create constitutional claims."
Vargas-Badillo v. Diaz-Torres, No. 96-1895, 1997 WL 276662, ______________ ___________
at *2 (1st Cir. May 30, 1997) (quoting Roy v. City of ___ _______
Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983)). _______
In light of our disposition of appellant's federal
claim, we have no need to reach his contention, belatedly
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raised in his opposition to defendants' motion to dismiss,
that the loss of yard sanction violated the state
constitution.
Affirmed. _________
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