Gallant, Jr. v. DuBois , 89 F.3d 823 ( 1996 )

89 F.3d 823

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
William J. GALLANT, Jr., Plaintiff, Appellant,
v.
Larry E. DUBOIS, etc., et al., Defendants, Appellees.

No. 94-2296.

United States Court of Appeals, First Circuit.

July 5, 1996.

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.

Before SELYA, CYR and BOUDIN, Circuit Judges.

PER CURIAM.

1

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.

2

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).

3

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.

4

Affirmed. See 1st Cir. Loc. R. 27.1.