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UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
BERNARDO FIGUEROA,
Plaintiff, Appellant,
v.
JOSEPH A.DINITTO, ET AL.,
Defendants, Appellees.
No. 02-1428
52 Fed. Appx. 522
December 9, 2002, Decided
NOTICE: RULES OF THE FIRST CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
Per Curiam. In this appeal, Rhode Island state inmate Bernardo
Figueroa, proceeding pro se, appeals from the district court's dismissal of his
42 U.S.C. § 1983 action against Joseph DiNitto, Associate Director/Chief [*523]
of Classification at the Rhode Island Department of Corrections
("RIDOC"). We affirm in part, vacate in part, and remand for further
proceedings, as described below.
1. We agree with the district court that summary judgment in
DiNitto's favor was warranted relative to Figueroa's retaliation claim,
essentially for the reasons stated by the magistrate judge in his report and
recommendation dated March 14, 2002, which the district court accepted in an
order dated March 29, 2002.
2. We conclude that Figueroa has waived his right to question
the dismissal of his court access claim. See Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir. 2000)
(indicating that failure to object to a magistrate judge's ruling waives the
right to appellate consideration).
3. We affirm dismissal of the Eighth Amendment claim insofar as
it is based on Figueroa's transfer to and confinement at Powhatan Correctional
Center in Virginia. DiNitto has liability only if he knew of the allegedly
harmful conditions at that facility. See
Calderon-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 64 (1st Cir. 2002) (in
order to establish a prison official's deliberate indifference, a plaintiff must show: "(1) the defendant knew
of (2) a substantial risk (3) of serious harm and (4) disregarded that
risk") (citing Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S.
Ct. 1970 (1994)). There is no allegation in the complaint from which we can
infer such knowledge.
4. We
affirm the dismissal of the Eighth Amendment claim to the extent it is based on
Figueroa's general living conditions at Wallens Ridge State Prison in Virginia.
Figueroa alleged that he had not committed
disciplinary infractions while imprisoned in that state, but nonetheless
was confined to a cell with another prisoner for 23-24 hours a day, without any
opportunity to work or participate in educational, vocational, or rehabilitation programs, and
that he had been denied medical, dental, and mental health care. The medical
claim, being completely conclusory, was properly dismissed. The remaining
conditions of confinement, even viewed in totality, fail to establish the kind
of "extreme deprivation" that might violate the Eighth Amendment. See
In re Long Term Administrative Segregation of Inmates Designated as Five
Percenters, 174 F.3d 464, 471-72 (4th Cir.) (rejecting Eighth Amendment claim
where, due to their high-security classification, inmates spent 23 hours a day
isolated in their cells without radio or TV; left only for showers and
recreation, including 5 hours of exercise per week; and had no access to prison
work, school, or study programs), cert. denied sub nom. Mickle v. Moore, 528 U.S. 874, 145 L. Ed.
2d 151, 120 S. Ct. 179 (1999); Hudson v. McMillian, 503 U.S. 1, 9, 117 L. Ed.
2d 156, 112 S. Ct. 995 (1992) (holding that only "extreme
deprivations" would support an Eighth Amendment claim based on conditions
of confinement because "routine discomfort" is part of the penalty
inmates pay for their crimes) (citation omitted).
5. We vacate dismissal of
the Eighth Amendment claim insofar as it is based on the actions of guards at
Wallens Ridge State Prison. For present purposes, we assume that the following
facts alleged in the complaint are true:
In March
2000, Figueroa was transferred from the Powhatan Correctional Center to Wallens
Ridge, a super-maximum facility also located in Virginia. Upon arrival,
correctional officers "repeatedly and unnecessarily restrained . . . and
threatened [him] with injury from electroshock weapons, chemical weapons,
shot-guns, and police dogs[.]" On June 27, 2000, Figueroa wrote to
DiNitto, explaining his "serious problems" in Virginia and [*524]
asking to be returned to Rhode Island. Further correspondence followed,
but the outcome was that DiNitto declined to intervene. Figueroa also alleged
that DiNitto was deliberately indifferent to the risk that he had and will
"continue to suffer serious physical injury or death at the hands of
Virginia prison guards."
n1
In the
district court, DiNitto contended that Virginia, rather than Rhode Island, was
responsible for conditions at Wallens Ridge and that Figueroa's only recourse
was against Virginia prison authorities. The district court seemingly agreed, although its rationale was tersely
expressed.
In our
view, this ground of disposition is not adequate. Figueroa's Rhode Island
conviction gave this state custody over him until he was legally discharged or
had served his sentence, see R.I. Gen. Laws § 11-25-17; id. § 12-19-25, and it
is Rhode Island that has arranged for Figueroa to serve a portion of his sentence in
Virginia. If Figueroa is being subjected to unconstitutional conditions in
Virginia on a continuing basis and Rhode Island knows of these conditions but
refuses to relocate Figueroa, Rhode Island officials might (depending upon the
circumstances) be held responsible. See Cortes-Quinones v. Jimenez-Nettleship,
842 F.2d 556, 562 (1st Cir. 1988); Stewart v. Winter, 669 F.2d 328, 332 (5th
Cir. 1982); Benjamin v. Malcolm, 803 F.2d 46, 51 (2d Cir. 1986); Pinto v.
Nettleship, 737 F.2d 130, 131, 133 n.1 (1st Cir. 1984).
Accordingly,
this claim must be remanded for further consideration. At the same time, we
recognize that Figueroa has offered only marginally defensible allegations.
Guns, chemical spray and even guard dogs are employed at prisons; and
conclusory or unspecific references to "threats," "unreasonable" behavior by
guards, and unspecified physical or mental harm may be viewed with some
skepticism, especially when buried in a "kitchen sink" complaint. The
district court is entitled to make Figueroa specify in detail the underlying factual allegations
before proceeding with this claim.
To the extent described above, we vacate the dismissal of the
Eighth Amendment claim and remand for further proceedings.
The
judgment is affirmed in part, vacated in part, and remanded for proceedings
consistent with this opinion.
FOOTNOTES:
n1 The latter statement is located in the
section of the complaint laying out his legal claims, not in the section
describing the factual basis of the complaint. It is far from clear that this
is intended to be a factual allegation rather than a summary of the standard of
liability taken from judicial opinions.