James v. Welch

USCA1 Opinion

        September 23, 1996      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________





        No. 96-1452



                                 KEVIN ROBERT JAMES,



                                Plaintiff, Appellant,



                                          v.



                                 ROCK WELCH, ET AL.,



                                Defendants, Appellees.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
___________

                            Cyr and Stahl, Circuit Judges.
______________



                                 ____________________



            Kevin Robert James on brief pro se.
__________________

            Christopher C.  Taintor and Norman, Hanson  & Detroy  on brief for
_______________________     ________________________

        appellees.





                                 ____________________





                                 ____________________







































                      Per   Curiam.      Plaintiff's  papers,   liberally
____________



            construed, could be  read as complaining about both  the type



            of   dental  treatment   supplied   (e.g.,  fillings   versus



            extraction) and the delay in furnishing it.  It is clear from



            plaintiff's appellate brief that  he is no longer challenging



            the decision to save  his teeth rather than to  extract them,



            and  plaintiff  has  instead   redirected  his  focus  on  an



            allegedly  unconstitutional  delay  in furnishing  treatment.



            His complaint,  however, failed   to  allege  that the  named
_____



            defendants  were  responsible  for  the  delay.    In  short,
__________



            plaintiff failed adequately to allege deliberate indifference



            on the part of the  named defendants.  The magistrate-judge's



            report alerted  plaintiff to the deficiency  in general terms



            and,  effectively,  afforded  plaintiff  an   opportunity  to



            supplement his pleadings.  When plaintiff's objections to the



            magistrate-judge's report failed to cure the  deficiency, the



            court  did  not  abuse   its  discretion  in  dismissing  the



            complaint.   See Purvis v.  Ponte, 929 F.2d  822, 826-27 (1st
___ ________________



            Cir.  1991) (upholding     1915(d) dismissal  of a  factually



            inadequate complaint where plaintiff failed,  despite notice,



            to remedy the omissions).



                 Plaintiff   contends  he   should  have   been  afforded



            discovery.  We  disagree.  Plaintiff failed  to allege enough



            to warrant  discovery.  Plaintiff  claimed to have  copies of



            his  medical  request slips  and  responses to  them,  yet he







                                         -2-



























            failed to state, for  example, to whom he reported  his pain,



            when, and what the response (or lack of response) was.



                 Affirmed.  Loc. R. 27.1.
________































































































                                         -3-