Pandey v. Freedman

Opinion

USCA1 Opinion

September 26, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1038



                                 DR. VIJAI B. PANDEY,



                                Plaintiff, Appellant,



                                          v.



                              FRANK H. FREEDMAN, ET AL.,



                                Defendants, Appellees.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]



                                 ____________________



                                        Before



                               Selya, Boudin and Lynch,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Dr. Vijai B. Pandey on brief pro se.
            ___________________

            Donald K. Stern,  United States  Attorney, and  Thomas E.  Kanwit,
            _______________                                 _________________

        Assistant  United States  Attorney, on  brief for  appellees  Frank H.

        Freedman, et al.

            Dianne  M.  Dillon  on brief  for  appellees  William J.  Fennell,
            __________________

        Esquire and Dusel, Murphy, Fennell, Liquori & Powers.


____________________


____________________



Per  Curiam.  Plaintiff-appellant, Vijai B. Pandey,
                      ___________



            appeals from the district  court's dismissal of his complaint



            for  failure  to  state a  claim  upon  which  relief can  be



            granted, among other grounds.  The district court granted the



            federal defendants' motion to dismiss in the following order:



            "Allowed for all of  the reasons set forth in  the supporting
             _______



            memorandum  of the  federal  defendants."   Having  carefully



            reviewed  the  complaint,   the  parties'   briefs  and   the



            memorandum  of the  federal  defendants in  support of  their



            motion  to  dismiss,  we  conclude that  the  district  court



            properly dismissed  the complaint  in its entirety.   We  add



            only the following comments.



                      I.  Claims against federal defendants.
                          __________________________________



                      A.  Heck v. Humphrey
                          ____    ________



                      Appellant's complaint is essentially  a reiteration



            of  the  issues   raised  in  his  appeal  from  his  federal



            conviction and sentence for bank  fraud.  It contains  claims



            of constitutional  violations by probation  officers, judges,



            clerks, prosecutors and other  federal actors involved in his



            conviction and sentencing.   Pursuant to Heck v. Humphrey,   
                                                     ____    ________   _



            U.S.   , 114 S. Ct. 2364 (1994), Pandey "cannot establish the
                 __



            elements  of a  Bivens action until  his conviction  has been
                            ______



            declared invalid or otherwise  impugned . . . ."   Stephenson
                                                               __________



            v. Reno, 28 F.3d 26, 27  (5th Cir. 1994); see also Tavarez v.
               ____                                   ___ ____ _______



            Reno,  54  F.3d 109  (2d Cir.  1995).   We  affirmed Pandey's
            ____


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conviction and sentence in  United States v. Pandey,  No. 91-
                                        _____________    ______



            2219,  1992 WL 348046 (1st Cir. Nov. 23, 1992).  Accordingly,



            the district  court did  not err  in dismissing  those claims



            against the  federal defendants  that call into  question the



            validity of Pandey's conviction and sentence. 



                      B.  Eighth Amendment Claims
                          _______________________



                      Pandey's   complaint   includes  claims   that  the



            conditions  in which he  was kept by  prison officials during



            the three weeks  between his  sentence and his  arrival at  a



            medical facility constituted cruel and unusual punishment  in



            violation  of the Eighth  Amendment.  Although  not barred by



            Heck,   Pandey's  Eighth   Amendment  claims   were  properly
            ____



            dismissed for failure to state a claim.



                      This court's  review of  a dismissal under  Fed. R.



            Civ. P. 12(b)(6)  is plenary.   See, e.g.,  Miranda v.  Ponce
                                            ___  ____   _______     _____



            Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991).   The question is
            _________



            whether, accepting  the factual allegations  in the complaint



            as true, and construing  them in the light most  favorable to



            Pandey, the complaint indicates any facts which could entitle



            him to  relief.  See Gooley v. Mobil Oil Corp., 851 F.2d 513,
                             ___ ______    _______________



            514 (1st Cir. 1988).   Because it was filed  pro se, Pandey's
                                                         ___ __



            complaint is  entitled to an extra degree  of solicitude. See
                                                                      ___



            Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).
            ____    __________



                      "[I]t is now settled that 'the treatment a prisoner



            receives  in  prison and  the  conditions under  which  he is


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confined   are   subject  to   scrutiny   under   the  Eighth



            Amendment.'" Farmer v. Brennan,    U.S.    , 114 S. Ct. 1970,
                         ______    _______  __      ___



            1976 (1994) (citation omitted).   There are two prerequisites



            to an Eighth Amendment violation by a prison official:



                      First, the deprivation  alleged must  be,

                      objectively,  "sufficiently  serious;"  a

                      prison  official's  act or  omission must

                      result  in  the  denial  of  "the minimal

                      civilized measure of life's necessities,"

                      . . . .

                           The second  requirement follows from

                      the principle that "only  the unnecessary

                      and wanton infliction of  pain implicates

                      the Eighth  Amendment." .  . .  In prison

                      conditions  cases [the  prison official's

                      state of mind] must be one of "deliberate

                      indifference" to inmate health or safety.



            Id. at  1977.   The requirement of  "deliberate indifference"
            ___



            has  a subjective  component:  "a prison  official cannot  be



            found liable under the Eighth Amendment for denying an inmate



            humane conditions of confinement unless the official knows of



            and disregards an  excessive risk to inmate health or safety;



            the  official  must both  be aware  of  facts from  which the



            inference could be drawn  that a substantial risk of  serious



            harm exists, and he  must also draw the  inference."  Id.  at
                                                                  ___



            1979.



                      Pandey's  allegations  concerning   the  size   and



            condition of  the cells in which  he was kept, the  denial of



            lunch during an  eight-hour trip  and of baby  oil, soap  and



            other comforts  while incarcerated, as  well as the  delay in



            placing  him in a medical facility, even if accepted as true,


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fail to meet the  first requirement of "sufficiently serious"



            deprivations.   See Hudson v. McMillian, 503 U.S. 1, 9 (1992)
                            ___ ______    _________



            ("[E]xtreme  deprivations   are  required  to   make  out   a



            conditions-  of-confinement  claim.")    The  district  court



            sentenced  Pandey to  a  medical facility  so  that he  could



            receive treatment  for chronic  fatigue.  The  complaint does



            not  allege  that  delay   in  treatment  of  that  condition



            presented a serious health risk to Pandey.



                      While  the  denial   of  prescribed  medicine  (for



            diabetes  and   high  blood  pressure)   could  constitute  a



            sufficiently  serious  harm, the  complaint  fails to  allege



            facts   which  would   support  a   finding   of  "deliberate



            indifference."   "When, as here, a convict  claims that state



            prison officials violated the Eighth Amendment by withholding



            essential  health care,  he must  prove that  the defendants'



            actions amounted  to  'deliberate indifference  to a  serious



            medical  need.'"  DesRosiers v.  Moran, 949 F.2d  15, 19 (1st
                              __________     _____



            Cir. 1991).  



                      Pandey  failed  to  allege facts  showing  that the



            defendants  themselves  (the  prison   wardens)  knew  of  an



            excessive risk to his health or safety if the proper medicine



            was not  promptly supplied.    The complaint  states that  on



            three occasions Pandey wrote to one of the warden defendants.



            The   first   communication    allegedly   "detail[ed]    his



            debilitating   medical  condition"   and  need   for  medical


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attention.    The  next day  he  was  allegedly  seen by  two



            physician's  assistants.  The  second communication is merely



            alleged to have requested the warden's personal assistance in



            obtaining proper medical care.  Finally, Pandey alleges  that



            he wrote to the  warden on December 8, 1991,  indicating that



            his medication was about to run out.  On December 12, 1991, a



            physician's  assistant provided  him  with  medicine for  the



            diabetes  and high  blood  pressure from  which he  allegedly



            suffered.    The  complaint's  allegations  that  Pandey  was



            provided with the  wrong medicine in  an untimely manner,  at



            most  state a  claim of  negligence,  but not  of "deliberate



            indifference."   Pandey did not  allege that he  informed the



            warden that he would experience a serious medical reaction if



            he did not immediately receive the proper medicine.  (Nor did



            he allege that such  a reaction resulted from the  failure to



            timely   provide  the  proper   medicine.)    Therefore,  the



            pleadings fail to allege that the defendant warden was "aware



            of  facts  from which  the inference  could  be drawn  that a



            substantial risk of serious harm exists."  Farmer, __ U.S. at
                                                       ______



            __, 114 S. Ct. at 1979.



                 Pandey  alleges  frequent   complaints  to   physician's



            assistants and  others with whom he had  immediate contact at



            the prison.  Supervisors, however, cannot be held liable in a



            Bivens claim  on  the  sole  basis of  their  supervision  of
            ______



            others. Cf. Gutierrez-Rodriguez  v. Cartagena, 882  F.2d 553,
                    ___ ___________________     _________


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562  (1st Cir.  1989)  (liability under     1983 may  not  be



            predicated upon a theory of respondeat superior).



                      Pandey failed  to allege that  sufficiently serious



            symptoms  resulted from  his  failure to  receive the  proper



            medication,  much  less  that  the defendants  knew  of  such



            symptoms.  See Mahan v. Plymouth County House of Corrections,
                       ___ _____    ____________________________________



            No.  94-1835,  slip op.  at 9-10  (1st  Cir., Sept.  7, 1995)



            (holding   that  prison  officials   were  not  "deliberately



            indifferent" if they did  not learn of "the serious  symptoms



            that [plaintiff]  actually experienced while  detained" as  a



            result  of  the  withholding  of prescribed  medication).    



            Therefore, the  complaint failed to  state a claim  of Eighth



            Amendment violations by the wardens or other prison officials



            named as defendants.



                      II.  Non-federal Defendants
                           ______________________



                      A.    Dismissal  of  Claims  against  Attorney
                            ________________________________________

                 Fennel          and Law Firm.
                 _______         ____________



                      The district  court granted  motions to  dismiss by



            William  Fennel,  Pandey's court  appointed  attorney  in his



            criminal case, and by Fennel's law firm.  "A private attorney



            who is  sued for  actions allegedly taken  as court-appointed



            counsel does not act  under color of state law  [for purposes



            of   1983]."  Malachowski v. City of Keene, 787 F.2d 704, 710
                          ___________    _____________



            (1st  Cir.), cert. denied, 479 U.S. 828 (1986).  Similarly, a
                         _____ ______



            federal court-appointed attorney is also shielded from claims



            of  constitutional  violations   "since  a  Bivens-type  suit
                                                        ______


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requires federal action in the same manner as   1983 requires



            state action."   Housand v. Heiman, 594 F.2d 923, 924 n.1 (2d
                             _______    ______



            Cir.  1979).    Pandey's  wholly  conclusory  allegations  of



            conspiracy between Fennell and the United States Attorney are



            not sufficient to convert the private attorney's actions into



            federal action for purposes  of the Bivens claims.   See Page
                                                ______           ___ ____



            v. Sharpe, 487 F.2d 567, 570 (1st Cir. 1973).
               ______



                      With respect to the state-based  claims of attorney



            malpractice and negligence,  they are essentially repetitions



            of the issues raised in Pandey's motion in the district court



            to have his attorney Fennell removed from representing him in



            the criminal case.  They  were specifically determined by the



            district court, and affirmed by this court, in the antecedent



            criminal  case.    Therefore,  collateral  estoppel precludes



            Pandey from  again  raising  the  issue of  the  adequacy  of



            Fennell's representation in this  civil case.  "The principle



            that collateral estoppel precludes  raising issues in a civil



            case  already decided in a prior criminal trial has been long



            established."   Glantz v. United States, 837 F.2d 23, 25 (1st
                            ______    _____________



            Cir. 1988)  (citations omitted).   Accordingly,  the district



            court did not err in allowing Fennell's motion to dismiss.



                      The  claim  against  Fennell's  law firm  was  also



            properly dismissed.   Although  named as  a defendant  in the



            caption,  the law  firm is not  mentioned in the  body of the



            complaint.   Therefore,  the district  court did  not  err in


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ruling  that Pandey had failed  to state a  claim against the



            law firm.



                      On appeal,  Pandey claims that  the district  court



            erred in  denying his  motions for default  judgments against



            Fennell  and his  law  firm for  failure  to timely  file  an



            answer.  Fed. R.  Civ. P. 6(b)(2) provides that  "upon motion



            made  after the  expiration of  [a] specified  [time] period,



            [the court for cause shown may at any time in its discretion]



            permit the  act to be done  where the failure to  act was the



            result of excusable neglect . . . "   The reason given by the



            defendant lawyer and law firm for moving for an extension was



            the  voluminous length  and  scope of  the  complaint.   "The



            district  court  is  afforded  great leeway  in  granting  or



            refusing enlargements . . .  and its decisions are reviewable



            only  for  abuse  of  that  discretion."  Maldonado-Denis  v.
                                                      _______________



            Castillo-Rodriguez, 23  F.3d  576, 583-84  (1st  Cir.  1994).
            __________________



            Given  the length and  scope of  the complaint,  the district



            court did not abuse its discretion in ruling that the failure



            to timely file a response was "excusable neglect."   



                      B.  Denial of Motion for Default Judgment against  
                          _____________________________________________

                          Robert E. Kenney.
                          ________________



                      Pandey  appeals from the district court's denial of



            his motion for a  default judgment against Robert E.  Kenney,



            the  attorney who  briefly represented  him on  appeal before



            Pandey obtained his dismissal.  The district court denied the


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motion for the reason that no proper service of the defendant



            had been made. 



                      Fed.  R. Civ.  P.  4(c)(2)   provides, in  relevant



            part,  that "[s]ervice may be  effected by any  person who is



            not a  party and  who  is at  least 18  years of  age."   The



            summons indicates  that service  upon Kenney was  effected by



            appellant's daughter Pramila.   Count LXXVII of the complaint



            includes  a   claim  of   loss  of  consortium   by  Pramila.



            Therefore, she is a party to  the case.  See Poulin v. Greer,
                                                     ___ ______    _____



            18  F.3d 979, 980 n.1  (1st Cir. 1994).   Service upon Kenney



            was  not effected  and  the district  court  did not  err  in



            denying Pandey's motion for a default judgment.



                      For  the  foregoing  reasons, in  addition  to  the



            reasons  given  by  the  district  court,  the  dismissal  of



            appellant's  complaint is  summarily affirmed.   See  Loc. R.
                                       __________________    ___



            27.1.


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