                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 05-1008

                            LLOYD MATTHEWS,

                        Plaintiff, Appellant,

                                     v.

                       EFRAIN VARGAS, 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

                    Torruella, Lynch and Howard,
                          Circuit Judges.


     Lloyd Matthews on brief pro se.
     Stephen G. Dietrick, Deputy General Counsel, and Nancy Ankers
White, Special Assistant Attorney General, on brief for appellees,
Efrain Vargas, Gilbert Lemon, II, Lucien Mandeville, John Faulkner,
Brian Gomes, John Marshall, John McGonagle, John Jones, and Richard
Picard.
     David A. Hilton, Lisa R. Wichter and Morrison Mahoney LLP, on
brief for appellees, Khalid Khan, M.D., Carla Cesario, Kristen
Curry, Maureen Quinty, and Denise MacKinnon.


                           November 20, 2007
            Per   Curiam.     Lloyd    Matthews       sued   numerous    prison

correctional and medical officials who, he alleged, inflicted

unlawful injury and provided inadequate medical care to him.                The

medical   defendants   were   granted       summary    judgment.        Matthews

proceeded to a jury trial against the remaining correctional

defendants, two of whom, Officers Vargas and Lemon, countersued

Matthews for their own injuries.        At the conclusion of the trial,

the claims against certain of these correctional defendants were

dismissed.    As to those who remained, the jury verdict was mixed.

The jury found in favor of the defendants on most of Matthews'

claims.   The jury, however, did find in favor of Matthews against

Lieutenant Picard, awarding Matthews compensatory damages in the

amount of $1.00.    The jury rejected Officer Lemon's counterclaim.

It found in favor of Officer Vargas on his counterclaim and awarded

$1.00 in compensatory damages against Matthews.                 Matthews has

appealed.    We affirm.

1. Discovery and the appointment of counsel

            Matthews' primary complaint on appeal which underlies and

infects all of his claims is his contention that he was denied

discovery.   We reject that contention.        We have carefully reviewed

the extensive record and it is clear that, rather than moving his

case forward, Matthews spent an inordinate amount of time filing

repetitive motions resisting the court's rulings which, contrary to

Matthews' continued assertions, did not deny him all discovery but


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simply refused Matthews' request to conduct deposition discovery in

the manner which he had requested.       This waste of time included at

least three attempts at seeking mandamus relief from our court.

Matthews did obtain some documentary discovery and could have

obtained, but did not, deposition discovery by written questions.

The district court did not abuse its discretion in its handling of

the discovery issues in this case.           See Bogosian v. Woloohojian

Realty Corp., 323 F.3d 55, 64 n.7 (1st Cir. 2003) (reciting the

abuse of discretion standard for discovery rulings).               After more

than six years and 260 separate docket entries, there was no abuse

of discretion in setting this case for trial. Similarly, there was

no abuse of discretion in the district court's denial of Matthews'

repeated motions for appointment of counsel.            See DesRosiers v.

Moran, 949 F.2d 15, 23-24 (1st Cir. 1991) (reciting the district

court    standard   for   appointment   of   counsel   and   the    appellate

standard of review).

2. Summary judgment in favor of the medical defendants

            The district court did not err in granting summary

judgment in favor of the medical defendants.        As he conceded at the

pretrial conference, Matthews lacked evidence, whether through

expert testimony or otherwise, as to the proper level of care and

how the medical defendants had deliberately fallen below that

level.    The district court correctly concluded that, accordingly,

no jury could find that the medical defendants displayed deliberate


                                   -3-
indifference. See Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.

2007) (reliance primarily on the allegations in complaint to oppose

summary judgment on a claim of deliberate indifference does not

satisfy Rule 56 standard); Acosta v. U.S. Marshals Serv., 445 F.3d

509,   514   (1st   Cir.   2006)   (court   is   not   required    to   credit

plaintiff's bare and conclusory assertion that defendants were

deliberately indifferent to serious medical need).                For reasons

already noted, we reject Matthews' contention that he was prevented

from seeking expert testimony to support his claims.

3. Denial of trial witnesses

             The district court did not err in declining to issue

witness subpoenas because Matthews had not provided the appropriate

witness fees, see Fed. R. Civ. P. 45(b)(1), explaining that the

court was not permitted to expend public funds on behalf of a

private litigant in a civil action.         On appeal, Matthews cites no

counter authority.     Nor did the court err or abuse its discretion

in refusing to issue writs of habeas corpus ad testificandum to

inmates.     Matthews did not specify the contents of any expected

testimony, explaining that he had "no idea what his witnesses will

recall of the events at issue."        In any event, none of Matthews'

proposed inmate witnesses were eyewitnesses to the incidents at

issue.   And, the detail which Matthews now provides on appeal as to

the expected testimony of all of his proposed witnesses suggests




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that the testimony would not have been relevant or, if relevant,

would have been cumulative, at best.

4. Claims of harassment and excessive force

           Assuming, without deciding, that Matthews properly raised

and preserved an objection to the district court's refusal to send

his allegations of harassment as a separate claim to the jury,

there was no error.    These claims did not rise to the level of a

constitutional violation. See Skinner v. Cunningham, 430 F.3d 483,

489 (1st Cir. 2005) (slamming cell door, threats, discourtesies,

epithets, and false charges on petty matters do not amount to an

Eighth Amendment violation).    Nor did the court err in refusing to

put to the jury Matthews' complaint about the enforcement of the

prison's strip search policy.

           Matthews' suggestion that he sufficiently raised and

preserved a claim under the Massachusetts Civil Rights Act, Mass.

Gen. Laws ch. 12, § 11, ("MCRA") fares no better.               "The MCRA

creates   no   substantive   civil    rights;   rather,   it   provides   a

mechanism for obtaining relief from the interference, or attempted

interference, with rights conferred by Federal or Massachusetts

law."   Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 593, 747

N.E.2d 729, 745 (2001). Matthews' allegations of harassment do not

rise to the level of a constitutional violation and, on appeal, he

has not identified any other right secured by federal or state law

for which the MCRA might provide legal redress.


                                     -5-
            Similarly, there was no error in the district court's

refusal   to   issue   a   separate   jury   instruction    on   the    use    of

excessive force, concluding that it was satisfied that the charge

given covered it.          Matthews does not point to any particular

deficiency in the charge given.              And, we reject his garbled

contention that the standard of proof for a claim of excessive

force is somehow different from that of an Eighth Amendment claim.

See Whitley v. Albers, 475 U.S. 312, 327 (1986) ("We think the

Eighth    Amendment,   which    is    specifically   concerned      with      the

unnecessary and wanton infliction of pain in penal institutions,

serves as the primary source of substantive protection to convicted

prisoners ... where the deliberate use of force is challenged as

excessive and unjustified.").

5. Claim of retaliation

            Matthews opined that Officers Vargas and Lemon had filed

their counterclaims in retaliation for his own claims against them.

He sought to question these officers as to whether either had ever

been assaulted by other inmates but had failed to sue them for

their    injuries.     The   district   court   precluded    this      line    of

questioning and did not abuse its discretion in doing so.               Torres-

Arroyo v. Rullan, 436 F.3d 1, 7 (1st Cir. 2006) (a decision to

exclude evidence is reviewed for abuse of discretion).                 Citizens

have the right to file counterclaims that, as was the case here,

have an arguable basis.       The court acted within its discretion to


                                      -6-
confine the questioning to the particular incidents at issue here

and to refuse Matthews' desire to explore the possible existence of

potential, but unpursued, claims against other inmates.                  We note

that Matthews was permitted to argue in his closing that Vargas and

Lemon had brought their counterclaims only as an unsuccessful

attempt to intimidate him into dropping his suit.

6. Directed verdicts

                Matthews claims error in the directed verdicts entered in

favor      of    three   defendants,     who   Matthews    had   sued   in   their

supervisory capacity.           Since summary judgment was properly granted

in favor of the medical defendants, there was no error in granting

directed verdicts in favor of Lieutenant Gomes and Superintendent

Marshall.        Similarly, since the jury found against Matthews with

respect to his claims concerning the incidents of October 7, 1997,

there was no error in the directed verdict in favor of Captain

McGonagle.        With no finding of a constitutional violation, there

can   be    no    supervisory     liability.      See     Hatfield-Bermudez    v.

Aldanondo-Rivera, 496 F.3d 51, 63 (1st Cir. 2007).

7. Evidentiary rulings

                Finally, we have considered Matthews' myriad complaints

about various of the district court's evidentiary rulings. Many of

these      complaints     are    terse    recitations     without   substantive

supporting legal argument.               We have considered them all, but

decline to respond point by point.             We reject them all.


                                         -7-
          The judgment of the district court dated November 9, 2004

is affirmed.




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