Figueroa v. Dinitto , 52 F. App'x 522 ( 2002 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 02-1428
BERNARDO FIGUEROA,
Plaintiff, Appellant,
v.
JOSEPH A. DINITTO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Bernardo Figueroa on brief pro se.
Michael B. Grant on brief for appellees.
December 9, 2002
Per Curiam. In this appeal, Rhode Island state
inmate Bernardo Figueroa, proceeding pro se, appeals from the
district court's dismissal of his 42 U.S.C. § 1983 action
against Joseph DiNitto, Associate Director/Chief of
Classification at the Rhode Island Department of Corrections
("RIDOC"). We affirm in part, vacate in part, and remand for
further proceedings, as described below.
1. We agree with the district court that summary
judgment in DiNitto's favor was warranted relative to
Figueroa's retaliation claim, essentially for the reasons
stated by the magistrate judge in his report and recommendation
dated March 14, 2002, which the district court accepted in an
order dated March 29, 2002.
2. We conclude that Figueroa has waived his right to
question the dismissal of his court access claim. See Sands v.
Ridefilm Corp., 212 F.3d 657, 663 (1st Cir. 2000) (indicating
that failure to object to a magistrate judge's ruling waives
the right to appellate consideration).
3. We affirm dismissal of the Eighth Amendment claim
insofar as it is based on Figueroa's transfer to and
confinement at Powhatan Correctional Center in Virginia.
DiNitto has liability only if he knew of the allegedly harmful
conditions at that facility. See Calderon-Ortiz v. Laboy-
Alvarado, 300 F.3d 60, 64 (1st Cir. 2002) (in order to
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establish a prison official's deliberate indifference, a
plaintiff must show: "(1) the defendant knew of (2) a
substantial risk (3) of serious harm and (4) disregarded that
risk") (citing Farmer v. Brennan, 511 U.S. 825 (1994)). There
is no allegation in the complaint from which we can infer such
knowledge.
4. We affirm the dismissal of the Eighth Amendment
claim to the extent it is based on Figueroa's general living
conditions at Wallens Ridge State Prison in Virginia. Figueroa
alleged that he had not committed disciplinary infractions
while imprisoned in that state, but nonetheless was confined to
a cell with another prisoner for 23-24 hours a day, without any
opportunity to work or participate in educational, vocational,
or rehabilitation programs, and that he had been denied
medical, dental, and mental health care. The medical claim,
being completely conclusory, was properly dismissed. The
remaining conditions of confinement, even viewed in totality,
fail to establish the kind of "extreme deprivation" that might
violate the Eighth Amendment. See In re Long Term
Administrative Segregation of Inmates Designated as Five
Percenters, 174 F.3d 464, 471-72 (4th Cir.) (rejecting Eighth
Amendment claim where, due to their high-security
classification, inmates spent 23 hours a day isolated in their
cells without radio or TV; left only for showers and
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recreation, including 5 hours of exercise per week; and had no
access to prison work, school, or study programs), cert.denied
sub nom. Mickle v. Moore, 528 U.S. 874 (1999); Hudson v.
McMillian, 503 U.S. 1, 9 (1992) (holding that only "extreme
deprivations" would support an Eighth Amendment claim based on
conditions of confinement because "routine discomfort" is part
of the penalty inmates pay for their crimes) (citation
omitted).
5. We vacate dismissal of the Eighth Amendment claim
insofar as it is based on the actions of guards at Wallens
Ridge State Prison. For present purposes, we assume that the
following facts alleged in the complaint are true:
In March 2000, Figueroa was transferred from the
Powhatan Correctional Center to Wallens Ridge, a super-maximum
facility also located in Virginia. Upon arrival, correctional
officers "repeatedly and unnecessarily restrained . . . and
threatened [him] with injury from electroshock weapons,
chemical weapons, shot-guns, and police dogs[.]" On June 27,
2000, Figueroa wrote to DiNitto, explaining his "serious
problems" in Virginia and asking to be returned to Rhode
Island. Further correspondence followed, but the outcome was
that DiNitto declined to intervene. Figueroa also alleged that
DiNitto was deliberately indifferent to the risk that he had
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and will "continue to suffer serious physical injury or death
at the hands of Virginia prison guards."1
In the district court, DiNitto contended that
Virginia, rather than Rhode Island, was responsible for
conditions at Wallens Ridge and that Figueroa's only recourse
was against Virginia prison authorities. The district court
seemingly agreed, although its rationale was tersely expressed.
In our view, this ground of disposition is not
adequate. Figueroa's Rhode Island conviction gave this state
custody over him until he was legally discharged or had served
his sentence, see R.I. Gen. Laws § 11-25-17; id. § 12-19-25,
and it is Rhode Island that has arranged for Figueroa to serve
a portion of his sentence in Virginia. If Figueroa is being
subjected to unconstitutional conditions in Virginia on a
continuing basis and Rhode Island knows of these conditions but
refuses to relocate Figueroa, Rhode Island officials might
(depending upon the circumstances) be held responsible. See
Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 562 (1st
Cir. 1988); Stewart v. Winter, 669 F.2d 328, 332 (5th Cir.
1982); Benjamin v. Malcolm, 803 F.2d 46, 51 (2d Cir. 1986);
1
The latter statement is located in the section of the
complaint laying out his legal claims, not in the section
describing the factual basis of the complaint. It is far from
clear that this is intended to be a factual allegation rather than
a summary of the standard of liability taken from judicial
opinions.
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Pinto v. Nettleship, 737 F.2d 130, 131, 133 n.1 (1st Cir.
1984).
Accordingly, this claim must be remanded for further
consideration. At the same time, we recognize that Figueroa
has offered only marginally defensible allegations. Guns,
chemical spray and even guard dogs are employed at prisons; and
conclusory or unspecific references to "threats,"
"unreasonable" behavior by guards, and unspecified physical or
mental harm may be viewed with some skepticism, especially when
buried in a "kitchen sink" complaint. The district court is
entitled to make Figueroa specify in detail the underlying
factual allegations before proceeding with this claim.
To the extent described above, we vacate the
dismissal of the Eighth Amendment claim and remand for further
proceedings.
The judgment is affirmed in part, vacated in part,
and remanded for proceedings consistent with this opinion.
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