USCA1 Opinion

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[NOT FOR PUBLICATION]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,

____________________
Sondra M. Korman, Counsel,
_________________

Department

of Correction,

appellees.

____________________

____________________

on brief

Per Curiam.
__________

and record

We

have carefully reviewed the briefs

and conclude that summary

entered for defendants.

We

judgment was correctly

briefly comment

on several

of

plaintiff's arguments.

1.

should

have

Plaintiff

granted

respond to defendants'

contends

his

entered

judgment

plaintiff's motion, in its

point,

if

plaintiff

request for

the district

additional

motion for summary judgment.

time plaintiff's motion was

already

that

still

court

time

to

By the

docketed, the district court had

for

defendants.

Consequently,

present form, was moot.

wanted to

file

At that

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

review to the district

new

factual allegations

brief.

summary

judgment,

we

court record and do not

plaintiff raises

confine

our

consider any

in his

appellate

2.

receive

The

one instance

in which

plaintiff did

not

one of his four daily dosages of pain medication did

not amount to an Eighth Amendment violation.

As

kept

for the prescribed medication plaintiff says he

in his cell, plaintiff's January 28, 1993 letter to Lt.

Silva

requested

Plaintiff did

for the

that

all
___

his

not specifically

medications.

property

be

point out an

In those circumstances,

mailed

out.

immediate need

the district

court

could

appropriate

inferring

properly

because

conclude

that

plaintiff had

that defendants

summary judgment

not

shown

were deliberately
____________

a basis

was

for

indifferent to

plaintiff's medical needs.

Defendants'

consistently

refused

submissions

showed

to

with

comply

that

plaintiff

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.

where plaintiff

come off

may

not

was repeatedly

afforded

alternate feeding but did

properly

complain

medically prescribed diet.

In these circumstances,

that

an opportunity

to

not cooperate, plaintiff

defendants

denied

his

3.

Plaintiff contends

he

was

deprived of

the

necessities of life in violation of the Eighth Amendment when

he was

placed

thereafter.

on

We

alternate

confine our

feeding and

review to

for

the

some

period

district court

-3-

record and do not

consider the new allegations

presented in

plaintiff's appellate brief.

On that basis, we conclude that

the

which,

temporary restrictions,

thrust

of the

were not

is

district court record,

unconstitutionally cruel.

without prejudice

challenging

placed

on

the conditions

alternate

cold cell twenty-four hours

26,

of his

feeding.

the

lasted under

fair

a week,

Our affirmance, however,

to plaintiff's

plaintiff asserts that he

no

according to

bringing a

new action

confinement once

In

his

appellate

he was

brief,

had no clothes, was confined

a day, was denied

to a

blankets, had

running water, and was not allowed to shower from January

1993 until February 16, 1993.

While his allegations are

somewhat vague, undeveloped, and even contradictory at times,

we think

to

plaintiff should be afforded

clarify

his

allegations,

a further opportunity

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

action

without prejudice to plaintiff's

challenging the

conditions of

filing a new

his confinement

from

January 26, 1993 to February 16, 1993.

4.

during

his

Plaintiff contends

disciplinary

hearing.

properly entered for defendants.

of

any

throwing offense.

he was denied

Summary

judgment

was

Plaintiff was not convicted

Plaintiff's

-4-

due process

attacks on

Lopes'

allegations and the evidence

relating to that charge

state

any due process claim.

949,

951-53

(2d

constitutionally

wrongly

accused

Cir.

for denying

("prison

guaranteed immunity

of

conduct

deprivation of a protected

485 U.S. 982

1986)

Freeman v.
_______

(1988).

which

Rideout, 808 F.2d

_______

inmate

from being

may

do not

result

has

no

falsely or

in

the

liberty interest"), cert. denied,

____________

Prison officials gave adequate reasons

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

without

prejudice

challenging the

to

direct that the affirmance is

plaintiff's

conditions of

filing

his confinement

26, 1993 until February 16, 1993.

new

action

from January

-5-