Scarpa v. Dubois

• Court: Court of Appeals for the First Circuit
• Decided: June 6, 1994
• Docket: 93-2118
• Status: Published

Opinion

USCA1 Opinion

June 6, 1994            [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-2118 

                                   NAZZARO SCARPA,

                                Plaintiff, Appellant,

                                          v.

                               LARRY E. DUBOIS, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Nazzaro Scarpa on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
            ____________________
        William D. Saltzman on brief for appellee Larry E. Dubois.
        ___________________

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Per Curiam.  On April 26, 1993, while a prisoner in
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            the  Northeastern  Correctional  Center  (NCC),  in  Concord,

            Massachusetts,  Nazzaro  Scarpa  filed,  pro  se,  a lawsuit,

            pursuant  to 42 U.S.C.    1983, against Larry  E. Dubois, the

            Commissioner of Correction.   Scarpa sued Dubois,  not in his

            official capacity,  but in  his individual capacity.   Scarpa

            alleged  that (a)  his cell  contained exposed  asbestos pipe

            insulation; (b)  Dubois knew that the  insulation was ripped,

            but  did nothing  to protect  Scarpa from this  exposure; (c)

            asbestos was blown about when his window was open; (d) Scarpa

            washed white  powdery asbestos  from his face  every morning;

            (e)  he coughed and choked from  the asbestos; and (f) he had

            been  seen  by a  doctor,  who prescribed  medication  for an

            inflamed throat and  ordered a chest x-ray.1   Scarpa alleged

            a  violation of the Eighth Amendment  (made applicable to the

            states  via  the  Fourteenth  Amendment)  and requested  five

            million dollars in damages.

                 Scarpa  attached to  his    1983 complaint  a copy  of a

            letter, dated December 1992, from Howard S. Wensley, Director

            of  the  Division  of   Community  Sanitation  of  the  state

            Department of Public Health.  The letter was not addressed to

            defendant Dubois.   Rather, it was addressed  to Jake Gadsen,

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            1.  Scarpa   attached  to   his  complaint   a  label   to  a
            prescription for  tetracycline.   The label references  a Dr.
            O'Dwyer.    We  presume,  therefore, that  Dr.  O'Dwyer  also
            ordered the x-ray.

                                         -2-

Administrator of NCC.   Defendant Dubois  was "cc-ed" on  the

            letter, as were seven governmental officials and agencies.

                 The  letter  recited  that  NCC had  been  inspected  on

            November 24, 1992, in accordance with public health laws  and

            regulations.  A 12-page "Report of Condition" was attached to

            the letter.  The  report listed cells and other areas  of NCC

            where the inspectors had found public health code violations.

            The violations  listed in  the report included,  for example,

            broken window crank mechanisms,  cracked windows, lack of hot

            water in a  bathroom sink,  a badly  pitted floor,  cigarette

            butts on  floor, and a chipped toilet bowl.  It cited Cell 36

            as  having  "asbestos pipe  insulation  ripped."   The  cover

            letter from Director Wensley  to Administrator Gadsen did not

            discuss  the  existence  of  asbestos.    It  did  state  the

            following:

                           The inspection revealed the need for
                      extensive window work.   Problems include
                      broken  window crank  mechanisms, windows
                      that  won't  close  tightly, and  cracked
                      windows.  It was also noted that there is
                      water leaking through the walls  into the
                      electrical room.

                           In  accordance with  Section 451.404
                      of  the previously  mentioned regulations
                      please indicate next to each entry on the
                      enclosed  Report of Condition,  a plan of
                      correction.    Said  plan  of  correction
                      should  detail  the  specific steps  that
                      will  be  taken  and  the  date by  which
                      compliance should be expected.

                 In July 1993, Scarpa  moved to add Clare Friel,  a nurse

            at  NCC, and Scott McKenna, the Director of Treatment at NCC,

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as additional defendants.   Simultaneously, Scarpa moved  for

            summary judgment.  In addition to reiterating the allegations

            of his  complaint, Scarpa  alleged that he  submitted several

            requests for  medical treatment, but had  "never been called"

            by Friel  and that she refused to send him for the ordered x-

            ray.   He further alleged  that he had  received a memorandum

            from McKenna, which told  him to submit a grievance.   Scarpa

            stated  that he  had  done so,  but  that the  grievance  was

            "disregarded"  (not, we note, that he got no response) and he

            was denied the requested treatment.

                 On August 10, 1993,  the district court granted Scarpa's

            motion to add  Friel and  McKenna as defendants.   That  same

            day, the  court denied Scarpa's request  for summary judgment

            and  ordered   judgment  for  the  defendants,   sua  sponte.

            Judgment entered on August 23 and Scarpa has appealed.

                 We affirm.  To  succeed on a claim alleging  a violation

            of the Eighth Amendment, Scarpa  must show both an  objective

            component (was the  deprivation sufficiently serious?)  and a

            subjective  component   (did  the   official/s  act  with   a

            sufficiently culpable state of mind?).  Wilson v. Seiter, 501
                                                    ______    ______

            U.S.  294, 298 (1991); DesRosiers  v. Moran, 949  F.2d 15, 18
                                   __________     _____

            (1st Cir.  1991); Sires v. Berman,  834 F.2d 9, 12  (1st Cir.
                              _____    ______

            1987).    In  other  words, Scarpa  must  show  a  deliberate

            indifference to  a serious medical  need.  Wilson  v. Seiter,
                                                       ______     ______

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501 U.S.  at 303; see  also Hudson v.  McMillian, 112  S. Ct.
                              ___  ____ ______     _________

            995, 1000 (1992).2

                 At  best, Scarpa's  complaint  alleges only  that Dubois

            knew that the  piping insulation  in Cell 36  was ripped  and

            that he did nothing in response.   Scarpa asks that we  infer

            Dubois'  knowledge  from  the  fact  that  Dubois  apparently

            received  a  copy of  Director  Wensley's  letter and  report

            directed  to Administrator  Gadsen.   That  report noted  the

            ripped  insulation  in  Cell  36  among  a  12-page  list  of

            violations.  That particular violation was not singled out by

            Director  Wensley  in  any  manner, as  contrasted  with  the

            highlighting of the  need for extensive window  repair and of

            leaking  water in the electrical room.  Scarpa thus asks that

            we  infer  Dubois'  knowledge  from  a  report,  directed  to

            another's  attention,  in  which  the   reference  to  ripped

            asbestos  pipe insulation in Cell  36 was subsumed among more

            than 100 other notations of violations.3

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            2.  We  construe  Scarpa's  complaint  as  complaining  about
            Dubois'  failure to remove him  from Cell 36  and Friel's and
            McKenna's  conduct in  treating his  medical condition.   The
            standard remains  the same.   "Whether one  characterizes the
            treatment  received by [the  prisoner] as inhumane conditions
            of  confinement, failure to attend to his medical needs, or a
            combination  of   both,  it  is  appropriate   to  apply  the
            'deliberate indifference' standard articulated in Estelle [v.
                                                              _______
            Gamble, 429  U.S. 97 (1976)]."  Wilson v. Seiter, 501 U.S. at
            ______                          ______    ______
            303 (citation omitted).

            3.  There is no evidence that exposed asbestos was rampant in
            NCC.   Cell  36  was  the  only cell  in  which  ripped  pipe
            insulation  was  noted.    Apart  from  it,  the  only  other
            reference to  asbestos in  Director Wensley's report  was the

                                         -5-

Even if we were  to grant that Dubois' knowledge  of the

            existence  of ripped asbestos pipe insulation in Cell 36 is a

            reasonable inference, the mere  presence of asbestos does not

            violate  the Eighth Amendment.  See, e.g., McNeil v. Lane, 16
                                            _________  ______    ____

            F.3d  123,  124-25 (7th  Cir.  1994)  (the mere  presence  of

            asbestos-covered   pipes  does   not  constitute   an  Eighth

            Amendment violation); Diaz  v. Edgar, 831  F. Supp. 621,  624
                                  ____     _____

            (N.D.  Ill. 1993) (same).  Scarpa failed to allege, much less

            show, that Dubois knew of the dispersal of asbestos powder in

            Cell  364 and  Scarpa's  medical complaints  and, thus,  that

            Dubois  acted (or  his  failure to  act  was joined)  with  a

            sufficiently  culpable  state  of mind.    Scarpa, therefore,

            failed to show deliberate indifference on Dubois' part.

                      In   order    to   establish   deliberate
                      indifference, the  complainant must prove
                      that the defendants  had a culpable state
                      of mind and intended wantonly  to inflict
                      pain.  The requisite state of mind may be
                      manifested by the officials'  response to
                      an inmate's  known  needs or  by  denial,
                                   _____
                      delay,  or  interference with  prescribed
                      health care.  While this mental state can
                      aptly be described as  "recklessness," it
                      is recklessness not in the tort-law sense
                      but in the appreciably stricter criminal-

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            notation that "friable asbestos pipe insulation" was found in
            the "old boiler room" in the basement.

            4.  Even granting that Director Wensley's Report of Condition
            sufficed to  give notice  to Dubois  of ripped  asbestos pipe
            insulation in Cell 36,  that report did not  describe friable
            asbestos in  Cell 36.   Contrast the report's  description of
            "friable asbestos  pipe insulation"  found in the  old boiler
            room in the basement.

                                         -6-

law sense, requiring actual  knowledge of
                                           ______
                      impending harm, easily preventable.

            DesRosiers  v.  Moran, 949  F.2d  at  19 (citations  omitted)
            __________      _____

            (emphasis added).

                 As for  defendants Friel and McKenna,  all that Scarpa's

            allegations  amount to is a  claim that (a)  Friel refused to

            send  him for an ordered x-ray; (b) McKenna instructed him to

            file a grievance; and (c) Scarpa did, but he was unhappy with

            the results of that  process.5  Summary judgment in  favor of

            McKenna was clearly appropriate.   McKenna informed Scarpa of

            a  procedure by  which to  get  relief.   It  is perverse  to

            suggest  that  such   conduct  could  amount  to   deliberate

            indifference in violation of the Eighth Amendment.

                 And, in  the circumstances of this  case, even accepting

            as true for purposes  of summary judgment, the  allegation as

            to  Friel's  conduct, we  do not  believe  that it  meets the

            threshold for  deliberate indifference  to a  serious medical

            need.    Scarpa  got  some  treatment,  i.e,  the  prescribed

            medication,  for  his   medical  complaints.    Although   he

            apparently failed to receive additional ordered treatment, he

            was directed to  file, and did  file, a grievance.   That the

            grievance process did not  produce a renewed order for  an x-

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            5.  As pointed out, supra, at 4,  Scarpa does not say that he
                                _____
            got  no response to the grievance; rather, he claims that, in
            response, he was denied the requested medical treatment.   In
            any event,  he does  not claim that  McKenna disregarded  the
                                                 _______
            grievance.

                                         -7-

ray  suggests  to  us that  the  prescribing  doctor did  not

            consider the need for an x-ray to  be a grave one.  Cf. Sires
                                                                ___ _____

            v.  Berman, 834 F.2d at  13 ("Where the  dispute concerns not
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            the absence of  help, but the  choice of a certain  course of

            treatment, or  evidences  mere disagreement  with  considered

            medical judgment, we will not second guess the doctors.").

                 Moreover, the  purpose of  an x-ray is  not preventative

            treatment, but to show a presently-existing injury.   Harm to

            Scarpa exists  from the failure  to provide the  x-ray during

            his  period of incarceration only if it resulted in a delayed

            diagnosis  of injury.  We note that, subsequent to the filing

            of this lawsuit,  but prior  to the filing  of his  appellate

            brief, Scarpa  was released from prison.   He, therefore, has

            had  the opportunity to obtain  an x-ray, if  he continued to

            believe his medical condition warranted one, and to point out

            what,  if anything, of significance  was revealed by a later-

            obtained x-ray that would have also shown up in an earlier x-

            ray  that was refused him.  He has  not done so.  Indeed, his

            brief on appeal does  not address, with any  specificity, the

            alleged  failure  to provide  an  x-ray.    That omission  is

            telling.   See Ryan v. Royal  Ins. Co. of Am.,  916 F.2d 731,
                       ___ ____    ______________________

            734  (1st Cir.  1990) ("It  is settled  in this  circuit that

            issues  adverted  to  on  appeal  in  a  perfunctory  manner,

            unaccompanied by some developed argumentation, are deemed  to

            have been abandoned.").

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For  the foregoing  reasons, we  affirm the  judgment in
                                                  ______

            favor of the defendants.

                 Affirmed.
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