
USCA1 Opinion

	




          March 29, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1725                                   BRUCE T. RAINERI,                                Plaintiff, Appellant,                                          v.                  HILLSBOROUGH COUNTY HOUSE OF CORRECTIONS, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                [Hon. Martin F. Loughlin, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Bruce T. Raineri on brief pro se.            ________________            Carolyn  M.  Kirby,  Assistant  County  Attorney,  on  brief   for            __________________        appellee Hillsborough County House of Corrections.            Wilbur  A.  Glahn,  III,  McLane,  Graf,  Raulerson  &  Middleton,            _______________________   ________________________________________        Professional Association, Duane, Morris & Heckscher, Allen C. Warshaw,        ________________________  _________________________  ________________        and Mary P. Patterson on brief for appellee Pennsylvania Institutional            _________________        Health Services, Inc.            Amy L.  Fracassini, Robert  J. Lanney,  and Sulloway  & Hollis  on            __________________  _________________       __________________        brief for appellee Barbara Condon.                                  ____________________                                 ____________________                      Per  Curiam.   Appellant  Bruce T.  Raineri appeals                      ___________            from  the dismissal  of his  complaint based  on 42  U.C.S.              1983.  He asserted that health providers at the New Hampshire            jail where he was  incarcerated violated the Eighth Amendment            by providing  constitutionally deficient medical care.  After            carefully reviewing the record and the briefs of the parties,            we  agree with the reasoning  of the district court contained            in its  Order, dated  June 24,  1993.   We add the  following            comments concerning the grant of summary judgment to appellee            Barbara  Condon and  the dismissal  of the  complaint against            Hillsborough  County House of  Corrections (Hillsborough) and            its  medical  provider,  Pennsylvania   Institutional  Health            Services, Inc. (PIHS).                      To prevail  on a  motion for summary  judgment, the            moving party must "show that there is no genuine issue  as to            any material fact  and that the moving party is entitled to a            judgment as a matter  of law."  Fed. R. Civ. P.  56(c).  Once            the  movant has met this  standard, the burden  shifts to the            non-moving party to establish the existence  of "at least one            issue that  is  both `genuine'  and  `material.'"   Kelly  v.                                                                _____            United States,  924 F.2d 355,  357 (1st Cir.  1991) (citation            _____________            omitted); Fed. R. Civ. P. 56(e).                      In support  of  her motion  for  summary  judgment,            Condon submitted  her own affidavit  and appellant's  medical            records.    She  argues,  and  the  dispensary  cards  (which            chronicle each contact appellant  had with the medical staff)            show,  that the first  time appellant brought  up the problem            with  the  timing  of his  morning  dose  of  insulin was  on            September 28 or  29, 1992.   About three  days later,  Condon            instituted  the change  in the  time at  which appellant  ate            breakfast to conform to his request that the insulin be given            within one-half hour of  his morning meal.   The rest of  the            dispensary  cards  reveal  that  from  June  23,  1992  until            September  28, 1992,  insulin was  given to  appellant daily,            apparently without complaint.                      In  opposition  to  the  summary  judgment  motion,            appellant  did  not  file  any  affidavits  or  other  record            evidence            However, his complaint is "verified" in the sense that it was            made  under  "the  pains  and  penalties  of  perjury."    In            Sheinkopf  v. Stone, 927 F.2d  1259 (1st Cir.  1991), we held            _________     _____            that, under  certain circumstances, a  verified complaint can            suffice for  Rule  56 purposes.    Id. at  1262.   Thus,  the                                               ___            factual statements in the  complaint, to the extent  they can            be deemed  to come  within appellant's knowledge,  are "fully            tantamount  to  a  counter-affidavit, and  hence,  worthy  of            consideration."  Id. at  1262-63.  Conclusory allegations are                             ___            disregarded.  Id. at 1262.                            ___                      To state an Eighth Amendment claim, appellant  must            adduce  evidence concerning his medical treatment that raises                                         -3-            an  inference that  Condon's actions  amounted to  the wanton            infliction of unnecessary  pain.  See Estelle v.  Gamble, 429                                              ___ _______     ______            U.S.  97, 104  (1976).   "Deliberate indifference  to serious            medical needs of prisoners" satisfies this standard.  Id.  In                                                                  ___            turn, this standard  has two components:   (1) the subjection            of the prisoner to  a "sufficiently serious deprivation"; and            (2) acts that amount  to "wanton disregard" of the  rights of            the  inmate.  DesRosiers v. Moran, 949  F.2d 15, 18 (1st Cir.                          __________    _____            1991).   Negligence  and inadvertence  in  providing  medical            treatment  do   not  state   a  valid  claim   of  deliberate            indifference.  Estelle, 429 U.S. at 105-06.                           _______                      Appellant states  in Complaint A that he complained            frequently, if not daily, about the scheduling of his morning            dose  of  insulin.   Given  that  this allegation  is  within            appellant's knowledge,  we think that the  district court was            correct  in crediting  this assertion.   However,  it  is not            sufficient to  defeat Condon's summary judgment  motion.  The            record plainly  reveals that  appellant received, on  a daily            basis, the insulin he  required.  Moreover, he  was monitored            closely by the medical staff, often being seen more than once            per day.                      Where a prisoner's dispute is not with the lack  of            help,  but  with  his  course  of  treatment,  we  have  been            reluctant  to  find  deliberate  indifference.    Torraco  v.                                                              _______            Maloney,  923 F.2d  231, 234  (1st Cir.  1991).   A treatment            _______                                         -4-            regime can  amount to  deliberate indifference only  where it            effectively results  in a  complete denial of  basic care  --            that is, treatment which  is so deficient that it  shocks the            conscience.  Id.  This is not such a case.                         ___                      Basically, appellant fails to assert any facts that            satisfy the  first component  of the  deliberate indifference            standard -- a "sufficiently  serious deprivation" as a result            of Condon's  actions.   All  that  appellant alleges  in  his            verified complaint is that  he suffered "irreparable harm" as            the result of the  treatment he received.1  This  is the kind            of  conclusory  allegation that  is  to  be disregarded  even            though contained in a verified complaint.  See Sheinkopf, 927                                                       ___ _________            F.2d  at 1262.   In  the absence  of an  adequately supported            factual scenario  that  appellant suffered  specific  medical            consequences  related  to Condon's  treatment  choices  -- an            essential  element  of  his   case  --  summary  judgment  is            appropriate.  See Celotex Corp. v. Catrett, 477 U.S. 317, 322                          ___ _____________    _______            (1986).                      Finally,  there was  no error  in the  dismissal of            appellant's complaint against Hillsborough.  Appellant failed                                            ____________________            1.  Appellant asserts, for the first time on appeal, that due            to Condon's refusal to reschedule his insulin doses, he  went            into a  diabetic reaction on four occasions and suffered from            severe  headaches  --  a  symptom of  an  impending  diabetic            reaction.   Issues  not presented  below normally  are deemed            waived.  Knight  v. Mills, 836  F.2d 659, 664  n.6 (1st  Cir.                     ______     _____            1987).   We see  no reason to  depart from this  rule in this            case.                                         -5-            to  allege that  any  action  or  omission  on  the  part  of            Hillsborough  was taken  pursuant  to an  official policy  or            custom.   See  Monell  v.  New  York  City  Dep't  of  Social                      ___  ______      __________________________________            Services, 436 U.S. 658, 694 (1978).  As for PIHS,  it may not            ________            be held liable solely on the  basis that it was the  employer            of Condon.  See id. at 691.                        ___ ___                      The judgment of the district court is affirmed.                                                            ________                                         -6-
