Giacalone v. DuBois ( 1997 )

[NOT FOR PUBLICATION]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
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1995), aff'd, 86 F.3d 1146 (1st Cir. 1996) (unpublished per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.
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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