      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 02-1428

                       BERNARDO FIGUEROA,

                     Plaintiff, Appellant,

                               v.

                   JOSEPH A. DINITTO, ET AL.,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ernest C. Torres, U.S. District Judge]


                            Before

                       Boudin, Chief Judge,
              Torruella and Lipez, Circuit Judges.




    Bernardo Figueroa on brief pro se.
    Michael B. Grant on brief for appellees.



                       December 9, 2002
            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        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


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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 (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


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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 (1999); Hudson v.

McMillian, 503 U.S. 1, 9 (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 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




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  and will "continue to suffer serious physical injury or death

  at the hands of Virginia prison guards."1

              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);



     1
      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.

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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.




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