
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        June 6, 1994            [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                 ____________________                     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.            ______________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        William D. Saltzman on brief for appellee Larry E. Dubois.        ___________________                                 ____________________                                 ____________________                      Per Curiam.  On April 26, 1993, while a prisoner in                      __________            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,                                            ____________________            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,                                         -3-            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,                                                       ______     ______                                         -4-            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                                            ____________________            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-                                            ____________________            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-                                            ____________________            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                ______            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.").                                         -8-                 For  the foregoing  reasons, we  affirm the  judgment in                                                  ______            favor of the defendants.                 Affirmed.                 _________                                         -9-
