
USCA1 Opinion

	




          August 10, 1992                                [NOT FOR PUBLICATION]                                 ___________________          No. 92-1025                                               KEVIN D. HICKS,                                Plaintiff, Appellant,                                          v.                                JAMES EMERSON, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]                                          __________________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ___________________               Kevin D. Hicks on brief pro se.               ______________               Nancy Ankers  White, Special Assistant Attorney General, and               ___________________          David  J.  Rentsch,  Department   of  Correction,  on  brief  for          __________________          appellees.                                  __________________                                  __________________                    Per Curiam.   Plaintiff Kevin Hicks,  an inmate at  the                    __________          Massachusetts  Correctional Institution (M.C.I.) Norfolk, appeals          from a  district court  judgment dismissing  his 42  U.S.C.  1983          complaint   against   various  officers   of   the  Massachusetts          Department   of  Correction  (DOC)   for  alleged  violations  of          plaintiff's right  to be free  from cruel and  unusual punishment          under the Eighth Amendment.  We affirm.                The complaint  named as defendants four corrections officers          at M.C.I.  Norfolk (James Emerson, Paul Hanna, Brian Dawe, Steven          Gannon),  three supervisory  officials at  that facility  (former          Superintendent Norman Butler, Superintendent Arthur Latessa, Unit          Manager Shawn Smith), and three additional DOC officials  (former          Commissioner Michael  Fair, Commissioner George  Vose, and  Frank          Jones,  Associate  Commissioner   of  Health  Services).1     The          complaint alleged  that plaintiff suffered from  asthma and other          health problems as a result of the amputation of his leg and part          of his  hip.    In  a nutshell,  plaintiff  complained  that  the          defendants disregarded  his medical needs by (1) refusing to give          him utensils to eat dinner in his cell after he returned from the          infirmary  on May  5, 1989,  (2) refusing  to allow  plaintiff to          remain on top  of his bed  and under a  blanket when he was  cold          during  the daytime,  and (3)  transporting plaintiff  to medical                                        ____________________               1Also  named  as a  defendant  was  Dr. Ronald  Goldberg,  a          private physician.  Plaintiff stipulated to  the dismissal of his          complaint against Dr. Goldberg.  Defendants Fair and  Butler were          dismissed for lack of  service of the complaint.   Plaintiff does          not challenge these rulings on appeal.                                         -2-          appointments in painfully  tight waist chains  which were  wholly          unnecessary in  view of plaintiff's condition.   Plaintiff sought          damages and injunctive  relief in the form of orders allowing him          to receive eating  utensils and use  blankets whenever  necessary          and barring  the  defendants  from  restraining  him  with  waist          chains.                  The  government  filed  a  motion  to  dismiss  or,  in  the          alternative, for  summary  judgment on  behalf  of the  nine  DOC          defendants  who had been served with  the complaint.  This motion          was supported by an affidavit from Superintendent Latessa,  which          averred, inter alia,  that DOC  regulations prohibited  plaintiff                   _____ ____          from being under the covers during the daytime (8:00 a.m. to 3:45          p.m.), although he could make his bed and lay  down on top of his          blanket, covered with an item of clothing.  An exception could be          made  if plaintiff procured a doctor's  order verifying a medical          need to remain  in bed.  Although plaintiff had received numerous          letters  advising him of this rule,  he did not secure a doctor's          note that allowed him to remain in bed.                 Plaintiff did  not file  an  opposition to  the  defendants'          motion.  As  a result, the  district court allowed the  motion on          March 28,  1990.   Plaintiff filed  a motion  for reconsideration          that  did not raise any additional  facts. This motion was denied          on June  13,  1990.   This  appeal followed  the  entry of  final          judgment dismissing the complaint as to all defendants.               On appeal, plaintiff  argues that he was  not aware that  he          had  to file an opposition to  the defendants' motion inasmuch as                                         -3-          he was  waiting for  a ruling on  his motion  for appointment  of          counsel.  This does not excuse plaintiff's omission.  "A district          court  may insist upon compliance with  its local rules."  United                                                                     ______          States  v. Proceeds of Sale of 3,888 Pounds of Scallops, 857 F.2d          ______     ____________________________________________          46, 49  (1st Cir. 1988).   At the time of  the court's dismissal,          Local  Rule 17(a)(2)  of  the Local  Rules of  the  United States          District Court  for the District of  Massachusetts required that,          "[a] party opposing a motion, ... shall file an opposition to the          motion within fourteen days  after service of the motion,  unless          another  period is fixed by rule or  statute, ... and in the same          document  a  memorandum   of  reasons,   including  citation   of          supporting  authorities, why  the motion  should not  be granted.          Affidavits and other documents setting forth or evidencing  facts          on  which  the  opposition is  based  shall  be  filed  with  the          opposition."  With respect to motions for summary judgment, Local          Rule 18  specifically provided that the  moving party's statement          of material facts will be deemed admitted  unless controverted by          the statement  of material facts  that the  rule required of  the          opposing  party.     As  plaintiff  filed   no  opposition,   the          defendants' affidavit stands uncontradicted.                  On the  present record, we  conclude that plaintiff  was not          entitled  to relief.  The one-time  denial of eating utensils was          not a significant deprivation violative of the Eighth  Amendment,          particularly where plaintiff  admitted that he  chose to  discard          his meal.   As  for plaintiff's complaints about being unable  to          remain  under his  blanket(s), both  the exhibits  to plaintiff's                                         -4-          complaint  and Superintendent  Latessa's affidavit  indicate that          the defendants repeatedly invited plaintiff to obtain a  doctor's          order  verifying his  need to  remain covered.   While  plaintiff          argues that the  defendants will not  accept medical orders  with          which  they  disagree,  he  alleges  no  facts  to  support  this          assertion, and  he does not  claim that  any doctor indicated  in          writing that plaintiff  should be permitted to  remain in bed  or          under blankets during  the day.  Finally,  among the exhibits  to          the  plaintiff's complaint  is  an August  10,  1988 letter  from          defendant  Jones  which indicates  that a  new medical  order had          issued  which allowed  for the  use  of loosely  applied security          chains.   This plainly  contradicts  plaintiff's claim  that  the          defendants were deliberately indifferent to his medical needs.               Judgment affirmed.               __________________                                         -5-
