DocketNumber： 92-1025
Filed Date： 8/10/1992
Status： Precedential
Modified Date： 9/21/2015
August 10, 1992
[NOT FOR PUBLICATION]
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No. 92-1025
KEVIN D. HICKS,
Plaintiff, Appellant,
v.
JAMES EMERSON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Kevin D. Hicks on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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David J. Rentsch, Department of Correction, on brief for
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appellees.
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Per Curiam. Plaintiff Kevin Hicks, an inmate at the
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Massachusetts Correctional Institution (M.C.I.) Norfolk, appeals
from a district court judgment dismissing his 42 U.S.C. 1983
complaint against various officers of the Massachusetts
Department of Correction (DOC) for alleged violations of
plaintiff's right to be free from cruel and unusual punishment
under the Eighth Amendment. We affirm.
The complaint named as defendants four corrections officers
at M.C.I. Norfolk (James Emerson, Paul Hanna, Brian Dawe, Steven
Gannon), three supervisory officials at that facility (former
Superintendent Norman Butler, Superintendent Arthur Latessa, Unit
Manager Shawn Smith), and three additional DOC officials (former
Commissioner Michael Fair, Commissioner George Vose, and Frank
Jones, Associate Commissioner of Health Services).1 The
complaint alleged that plaintiff suffered from asthma and other
health problems as a result of the amputation of his leg and part
of his hip. In a nutshell, plaintiff complained that the
defendants disregarded his medical needs by (1) refusing to give
him utensils to eat dinner in his cell after he returned from the
infirmary on May 5, 1989, (2) refusing to allow plaintiff to
remain on top of his bed and under a blanket when he was cold
during the daytime, and (3) transporting plaintiff to medical
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1Also named as a defendant was Dr. Ronald Goldberg, a
private physician. Plaintiff stipulated to the dismissal of his
complaint against Dr. Goldberg. Defendants Fair and Butler were
dismissed for lack of service of the complaint. Plaintiff does
not challenge these rulings on appeal.
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appointments in painfully tight waist chains which were wholly
unnecessary in view of plaintiff's condition. Plaintiff sought
damages and injunctive relief in the form of orders allowing him
to receive eating utensils and use blankets whenever necessary
and barring the defendants from restraining him with waist
chains.
The government filed a motion to dismiss or, in the
alternative, for summary judgment on behalf of the nine DOC
defendants who had been served with the complaint. This motion
was supported by an affidavit from Superintendent Latessa, which
averred, inter alia, that DOC regulations prohibited plaintiff
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from being under the covers during the daytime (8:00 a.m. to 3:45
p.m.), although he could make his bed and lay down on top of his
blanket, covered with an item of clothing. An exception could be
made if plaintiff procured a doctor's order verifying a medical
need to remain in bed. Although plaintiff had received numerous
letters advising him of this rule, he did not secure a doctor's
note that allowed him to remain in bed.
Plaintiff did not file an opposition to the defendants'
motion. As a result, the district court allowed the motion on
March 28, 1990. Plaintiff filed a motion for reconsideration
that did not raise any additional facts. This motion was denied
on June 13, 1990. This appeal followed the entry of final
judgment dismissing the complaint as to all defendants.
On appeal, plaintiff argues that he was not aware that he
had to file an opposition to the defendants' motion inasmuch as
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he was waiting for a ruling on his motion for appointment of
counsel. This does not excuse plaintiff's omission. "A district
court may insist upon compliance with its local rules." United
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States v. Proceeds of Sale of 3,888 Pounds of Scallops, 857 F.2d
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46, 49 (1st Cir. 1988). At the time of the court's dismissal,
Local Rule 17(a)(2) of the Local Rules of the United States
District Court for the District of Massachusetts required that,
"[a] party opposing a motion, ... shall file an opposition to the
motion within fourteen days after service of the motion, unless
another period is fixed by rule or statute, ... and in the same
document a memorandum of reasons, including citation of
supporting authorities, why the motion should not be granted.
Affidavits and other documents setting forth or evidencing facts
on which the opposition is based shall be filed with the
opposition." With respect to motions for summary judgment, Local
Rule 18 specifically provided that the moving party's statement
of material facts will be deemed admitted unless controverted by
the statement of material facts that the rule required of the
opposing party. As plaintiff filed no opposition, the
defendants' affidavit stands uncontradicted.
On the present record, we conclude that plaintiff was not
entitled to relief. The one-time denial of eating utensils was
not a significant deprivation violative of the Eighth Amendment,
particularly where plaintiff admitted that he chose to discard
his meal. As for plaintiff's complaints about being unable to
remain under his blanket(s), both the exhibits to plaintiff's
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complaint and Superintendent Latessa's affidavit indicate that
the defendants repeatedly invited plaintiff to obtain a doctor's
order verifying his need to remain covered. While plaintiff
argues that the defendants will not accept medical orders with
which they disagree, he alleges no facts to support this
assertion, and he does not claim that any doctor indicated in
writing that plaintiff should be permitted to remain in bed or
under blankets during the day. Finally, among the exhibits to
the plaintiff's complaint is an August 10, 1988 letter from
defendant Jones which indicates that a new medical order had
issued which allowed for the use of loosely applied security
chains. This plainly contradicts plaintiff's claim that the
defendants were deliberately indifferent to his medical needs.
Judgment affirmed.
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