
USCA1 Opinion

	




          July 5, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2296                               WILLIAM J. GALLANT, JR.,                                Plaintiff, Appellant,                                          v.                            LARRY E. DUBOIS, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Edward  J. McCormick, III  and McCormick  & Maitland  on brief for            _________________________      _____________________        appellant.            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Sondra  M. Korman,  Counsel, Department  of  Correction, on  brief for        _________________        appellee Larry Dubois.            Bruce R. Henry, Joseph L. Bierwirth,  Jr. and Morrison, Mahoney  &            ______________  _________________________     ____________________        Miller, on brief for appellee Burton Levine, M.D.        ______                                 ____________________                                 ____________________                      Per Curiam.  Having carefully reviewed the parties'                      __________            briefs and the appellate record, we conclude that this appeal            does not  present  a substantial  question.   We  affirm  the            summary judgment  in favor  of the  defendants, for  the same            reasons  stated by  the district  court.   We add  only these            comments.                       Plaintiff   contends   that   the  district   court            improperly ignored  his affidavit.   However,  that affidavit            broadly  contradicts  plaintiff's  own   specific  deposition            testimony and  the letters he  wrote, and no  explanation was            given  for  the contradiction.    In  that circumstance,  the            affidavit  was insufficient to  withstand defendants' motions            for summary  judgment.  See  Colantuoni v. Alfred  Calcagni &                                    ___  __________    __________________            Sons Inc., 44 F.3d 1, 4-5 (1st Cir. 1994).            _________                      Because we  agree with the district  court that the            overwhelming evidence, notwithstanding plaintiff's affidavit,            showed that medical  care was not withheld by defendants, but            rather  was  refused  by  plaintiff,  we  reject  plaintiff's            contention  that  material  issues  of fact  remained  as  to            defendants'  states  of  mind.    Put   another  way,  as  no            indifference  was shown,  no material  issue of  "deliberate"            indifference  remained.    Further,   there  having  been  no            deprivation of medical  care within the  scope of the  Eighth            Amendment, it would  have been futile to  amend the complaint            to  add  another  Department  of  Correction  official  as  a            defendant.                                         -3-                      Affirmed.  See 1st Cir. Loc. R. 27.1.                      ________   ___                                         -4-
