Giacalone v. DuBois ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 96-2346 

                                 DAVID E. GIACALONE,

                                Plaintiff, Appellant,

                                          v.

                               LARRY E. DUBOIS, ET AL.,

                                Defendants, Appellees.


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                                   ADRIAN ALMEIDA,
                                 Plaintiff, Appellee.
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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
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                                 ____________________

                                        Before

                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________

            David E. Giacalone on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        Stephen G. Dietrick, Deputy General Counsel, Department of Correction,
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        on brief for appellees.


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                                    July 18, 1997
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                 Per  Curiam.  We  have reviewed the  parties' briefs and
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            the record on appeal.1   Appellant claimed that the defendant
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            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,
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            304 (1991); McGuinness v. Dubois, 893 F. Supp. 2, 3 (D. Mass.
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            1995), aff'd, 86  F.3d 1146 (1st Cir.  1996) (unpublished per
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            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.
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            1997); LeMaire  v. Maass,  12  F.3d 1444,  1457-58 (9th  Cir.
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               1The  district court  complaint  was signed  by  appellant
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            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
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            Herrera-Venegas v.  Sanchez-Rivera,  681 F.2d  41  (1st  Cir.
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            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);
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            see also McGuinness v. Dubois,  893 F. Supp. at 3 (concluding
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            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,
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            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.
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            Sheriff of  Worcester County,  382 Mass.  57, 59, 413  N.E.2d
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            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,
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            at  *2  (1st Cir.  May  30,  1997) (quoting  Roy  v.  City of
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            Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983)).
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                 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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