
USCA1 Opinion

	




          September 26, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1038                                 DR. VIJAI B. PANDEY,                                Plaintiff, Appellant,                                          v.                              FRANK H. FREEDMAN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Dr. Vijai B. Pandey on brief pro se.            ___________________            Donald K. Stern,  United States  Attorney, and  Thomas E.  Kanwit,            _______________                                 _________________        Assistant  United States  Attorney, on  brief for  appellees  Frank H.        Freedman, et al.            Dianne  M.  Dillon  on brief  for  appellees  William J.  Fennell,            __________________        Esquire and Dusel, Murphy, Fennell, Liquori & Powers.                                 ____________________                                 ____________________                      Per  Curiam.  Plaintiff-appellant, Vijai B. Pandey,                      ___________            appeals from the district  court's dismissal of his complaint            for  failure  to  state a  claim  upon  which  relief can  be            granted, among other grounds.  The district court granted the            federal defendants' motion to dismiss in the following order:            "Allowed for all of  the reasons set forth in  the supporting             _______            memorandum  of the  federal  defendants."   Having  carefully            reviewed  the  complaint,   the  parties'   briefs  and   the            memorandum  of the  federal  defendants in  support of  their            motion  to  dismiss,  we  conclude that  the  district  court            properly dismissed  the complaint  in its entirety.   We  add            only the following comments.                      I.  Claims against federal defendants.                          __________________________________                      A.  Heck v. Humphrey                          ____    ________                      Appellant's complaint is essentially  a reiteration            of  the  issues   raised  in  his  appeal  from  his  federal            conviction and sentence for bank  fraud.  It contains  claims            of constitutional  violations by probation  officers, judges,            clerks, prosecutors and other  federal actors involved in his            conviction and sentencing.   Pursuant to Heck v. Humphrey,                                                        ____    ________   _            U.S.   , 114 S. Ct. 2364 (1994), Pandey "cannot establish the                 __            elements  of a  Bivens action until  his conviction  has been                            ______            declared invalid or otherwise  impugned . . . ."   Stephenson                                                               __________            v. Reno, 28 F.3d 26, 27  (5th Cir. 1994); see also Tavarez v.               ____                                   ___ ____ _______            Reno,  54  F.3d 109  (2d Cir.  1995).   We  affirmed Pandey's            ____                                         -2-            conviction and sentence in  United States v. Pandey,  No. 91-                                        _____________    ______            2219,  1992 WL 348046 (1st Cir. Nov. 23, 1992).  Accordingly,            the district  court did  not err  in dismissing  those claims            against the  federal defendants  that call into  question the            validity of Pandey's conviction and sentence.                       B.  Eighth Amendment Claims                          _______________________                      Pandey's   complaint   includes  claims   that  the            conditions  in which he  was kept by  prison officials during            the three weeks  between his  sentence and his  arrival at  a            medical facility constituted cruel and unusual punishment  in            violation  of the Eighth  Amendment.  Although  not barred by            Heck,   Pandey's  Eighth   Amendment  claims   were  properly            ____            dismissed for failure to state a claim.                      This court's  review of  a dismissal under  Fed. R.            Civ. P. 12(b)(6)  is plenary.   See, e.g.,  Miranda v.  Ponce                                            ___  ____   _______     _____            Fed. Bank, 948 F.2d 41, 44 (1st Cir. 1991).   The question is            _________            whether, accepting  the factual allegations  in the complaint            as true, and construing  them in the light most  favorable to            Pandey, the complaint indicates any facts which could entitle            him to  relief.  See Gooley v. Mobil Oil Corp., 851 F.2d 513,                             ___ ______    _______________            514 (1st Cir. 1988).   Because it was filed  pro se, Pandey's                                                         ___ __            complaint is  entitled to an extra degree  of solicitude. See                                                                      ___            Rodi v. Ventetuolo, 941 F.2d 22, 23 (1st Cir. 1991).            ____    __________                      "[I]t is now settled that 'the treatment a prisoner            receives  in  prison and  the  conditions under  which  he is                                         -3-            confined   are   subject  to   scrutiny   under   the  Eighth            Amendment.'" Farmer v. Brennan,    U.S.    , 114 S. Ct. 1970,                         ______    _______  __      ___            1976 (1994) (citation omitted).   There are two prerequisites            to an Eighth Amendment violation by a prison official:                      First, the deprivation  alleged must  be,                      objectively,  "sufficiently  serious;"  a                      prison  official's  act or  omission must                      result  in  the  denial  of  "the minimal                      civilized measure of life's necessities,"                      . . . .                           The second  requirement follows from                      the principle that "only  the unnecessary                      and wanton infliction of  pain implicates                      the Eighth  Amendment." .  . .  In prison                      conditions  cases [the  prison official's                      state of mind] must be one of "deliberate                      indifference" to inmate health or safety.            Id. at  1977.   The requirement of  "deliberate indifference"            ___            has  a subjective  component:  "a prison  official cannot  be            found liable under the Eighth Amendment for denying an inmate            humane conditions of confinement unless the official knows of            and disregards an  excessive risk to inmate health or safety;            the  official  must both  be aware  of  facts from  which the            inference could be drawn  that a substantial risk of  serious            harm exists, and he  must also draw the  inference."  Id.  at                                                                  ___            1979.                      Pandey's  allegations  concerning   the  size   and            condition of  the cells in which  he was kept, the  denial of            lunch during an  eight-hour trip  and of baby  oil, soap  and            other comforts  while incarcerated, as  well as the  delay in            placing  him in a medical facility, even if accepted as true,                                         -4-            fail to meet the  first requirement of "sufficiently serious"            deprivations.   See Hudson v. McMillian, 503 U.S. 1, 9 (1992)                            ___ ______    _________            ("[E]xtreme  deprivations   are  required  to   make  out   a            conditions-  of-confinement  claim.")    The  district  court            sentenced  Pandey to  a  medical facility  so  that he  could            receive treatment  for chronic  fatigue.  The  complaint does            not  allege  that  delay   in  treatment  of  that  condition            presented a serious health risk to Pandey.                      While  the  denial   of  prescribed  medicine  (for            diabetes  and   high  blood  pressure)   could  constitute  a            sufficiently  serious  harm, the  complaint  fails to  allege            facts   which  would   support  a   finding   of  "deliberate            indifference."   "When, as here, a convict  claims that state            prison officials violated the Eighth Amendment by withholding            essential  health care,  he must  prove that  the defendants'            actions amounted  to  'deliberate indifference  to a  serious            medical  need.'"  DesRosiers v.  Moran, 949 F.2d  15, 19 (1st                              __________     _____            Cir. 1991).                        Pandey  failed  to  allege facts  showing  that the            defendants  themselves  (the  prison   wardens)  knew  of  an            excessive risk to his health or safety if the proper medicine            was not  promptly supplied.    The complaint  states that  on            three occasions Pandey wrote to one of the warden defendants.            The   first   communication    allegedly   "detail[ed]    his            debilitating   medical  condition"   and  need   for  medical                                         -5-            attention.    The  next day  he  was  allegedly  seen by  two            physician's  assistants.  The  second communication is merely            alleged to have requested the warden's personal assistance in            obtaining proper medical care.  Finally, Pandey alleges  that            he wrote to the  warden on December 8, 1991,  indicating that            his medication was about to run out.  On December 12, 1991, a            physician's  assistant provided  him  with  medicine for  the            diabetes  and high  blood  pressure from  which he  allegedly            suffered.    The  complaint's  allegations  that  Pandey  was            provided with the  wrong medicine in  an untimely manner,  at            most  state a  claim of  negligence,  but not  of "deliberate            indifference."   Pandey did not  allege that he  informed the            warden that he would experience a serious medical reaction if            he did not immediately receive the proper medicine.  (Nor did            he allege that such  a reaction resulted from the  failure to            timely   provide  the  proper   medicine.)    Therefore,  the            pleadings fail to allege that the defendant warden was "aware            of  facts  from which  the inference  could  be drawn  that a            substantial risk of serious harm exists."  Farmer, __ U.S. at                                                       ______            __, 114 S. Ct. at 1979.                 Pandey  alleges  frequent   complaints  to   physician's            assistants and  others with whom he had  immediate contact at            the prison.  Supervisors, however, cannot be held liable in a            Bivens claim  on  the  sole  basis of  their  supervision  of            ______            others. Cf. Gutierrez-Rodriguez  v. Cartagena, 882  F.2d 553,                    ___ ___________________     _________                                         -6-            562  (1st Cir.  1989)  (liability under     1983 may  not  be            predicated upon a theory of respondeat superior).                      Pandey failed  to allege that  sufficiently serious            symptoms  resulted from  his  failure to  receive the  proper            medication,  much  less  that  the defendants  knew  of  such            symptoms.  See Mahan v. Plymouth County House of Corrections,                       ___ _____    ____________________________________            No.  94-1835,  slip op.  at 9-10  (1st  Cir., Sept.  7, 1995)            (holding   that  prison  officials   were  not  "deliberately            indifferent" if they did  not learn of "the serious  symptoms            that [plaintiff]  actually experienced while  detained" as  a            result  of  the  withholding  of prescribed  medication).                Therefore, the  complaint failed to  state a claim  of Eighth            Amendment violations by the wardens or other prison officials            named as defendants.                      II.  Non-federal Defendants                           ______________________                      A.    Dismissal  of  Claims  against  Attorney                            ________________________________________                 Fennel          and Law Firm.                 _______         ____________                      The district  court granted  motions to  dismiss by            William  Fennel,  Pandey's court  appointed  attorney  in his            criminal case, and by Fennel's law firm.  "A private attorney            who is  sued for  actions allegedly taken  as court-appointed            counsel does not act  under color of state law  [for purposes            of   1983]."  Malachowski v. City of Keene, 787 F.2d 704, 710                          ___________    _____________            (1st  Cir.), cert. denied, 479 U.S. 828 (1986).  Similarly, a                         _____ ______            federal court-appointed attorney is also shielded from claims            of  constitutional  violations   "since  a  Bivens-type  suit                                                        ______                                         -7-            requires federal action in the same manner as   1983 requires            state action."   Housand v. Heiman, 594 F.2d 923, 924 n.1 (2d                             _______    ______            Cir.  1979).    Pandey's  wholly  conclusory  allegations  of            conspiracy between Fennell and the United States Attorney are            not sufficient to convert the private attorney's actions into            federal action for purposes  of the Bivens claims.   See Page                                                ______           ___ ____            v. Sharpe, 487 F.2d 567, 570 (1st Cir. 1973).               ______                      With respect to the state-based  claims of attorney            malpractice and negligence,  they are essentially repetitions            of the issues raised in Pandey's motion in the district court            to have his attorney Fennell removed from representing him in            the criminal case.  They  were specifically determined by the            district court, and affirmed by this court, in the antecedent            criminal  case.    Therefore,  collateral  estoppel precludes            Pandey from  again  raising  the  issue of  the  adequacy  of            Fennell's representation in this  civil case.  "The principle            that collateral estoppel precludes  raising issues in a civil            case  already decided in a prior criminal trial has been long            established."   Glantz v. United States, 837 F.2d 23, 25 (1st                            ______    _____________            Cir. 1988)  (citations omitted).   Accordingly,  the district            court did not err in allowing Fennell's motion to dismiss.                      The  claim  against  Fennell's  law firm  was  also            properly dismissed.   Although  named as  a defendant  in the            caption,  the law  firm is not  mentioned in the  body of the            complaint.   Therefore,  the district  court did  not  err in                                         -8-            ruling  that Pandey had failed  to state a  claim against the            law firm.                      On appeal,  Pandey claims that  the district  court            erred in  denying his  motions for default  judgments against            Fennell  and his  law  firm for  failure  to timely  file  an            answer.  Fed. R.  Civ. P. 6(b)(2) provides that  "upon motion            made  after the  expiration of  [a] specified  [time] period,            [the court for cause shown may at any time in its discretion]            permit the  act to be done  where the failure to  act was the            result of excusable neglect . . . "   The reason given by the            defendant lawyer and law firm for moving for an extension was            the  voluminous length  and  scope of  the  complaint.   "The            district  court  is  afforded  great leeway  in  granting  or            refusing enlargements . . .  and its decisions are reviewable            only  for  abuse  of  that  discretion."  Maldonado-Denis  v.                                                      _______________            Castillo-Rodriguez, 23  F.3d  576, 583-84  (1st  Cir.  1994).            __________________            Given  the length and  scope of  the complaint,  the district            court did not abuse its discretion in ruling that the failure            to timely file a response was "excusable neglect."                         B.  Denial of Motion for Default Judgment against                            _____________________________________________                          Robert E. Kenney.                          ________________                      Pandey  appeals from the district court's denial of            his motion for a  default judgment against Robert E.  Kenney,            the  attorney who  briefly represented  him on  appeal before            Pandey obtained his dismissal.  The district court denied the                                         -9-            motion for the reason that no proper service of the defendant            had been made.                       Fed.  R. Civ.  P.  4(c)(2)   provides, in  relevant            part,  that "[s]ervice may be  effected by any  person who is            not a  party and  who  is at  least 18  years of  age."   The            summons indicates  that service  upon Kenney was  effected by            appellant's daughter Pramila.   Count LXXVII of the complaint            includes  a   claim  of   loss  of  consortium   by  Pramila.            Therefore, she is a party to  the case.  See Poulin v. Greer,                                                     ___ ______    _____            18  F.3d 979, 980 n.1  (1st Cir. 1994).   Service upon Kenney            was  not effected  and  the district  court  did not  err  in            denying Pandey's motion for a default judgment.                      For  the  foregoing  reasons, in  addition  to  the            reasons  given  by  the  district  court,  the  dismissal  of            appellant's  complaint is  summarily affirmed.   See  Loc. R.                                       __________________    ___            27.1.                                         -10-
