January 29, 1993

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                        

No. 92-1269

                      CHARLES N. WATSON,

                    Plaintiff, Appellant,

                              v.

                    C. MARK CATON, ET AL.,

                    Defendants, Appellees.

                                        

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. Morton A. Brody, U.S. District Judge]
                                                   

                                        

                            Before

                    Selya, Cyr and Boudin,
                       Circuit Judges.
                                     

                                        

   Charles N. Watson, on brief pro se.
                    

                                        

                                        

     Per Curiam.   The appellant,  Charles N. Watson,  was an
               

inmate in the Maine  correctional system, incarcerated at the

Downeast  Correctional Facility, and  later at the Charleston

Correctional Facility, at all times relevant to this lawsuit.

In November  1991 Watson filed  a complaint in  federal court

which alleged that the defendants, all officials of the Maine

Department  of  Correction  or  the  Downeast  or  Charleston

prisons, had  violated his federal constitutional  rights, in

violation of 42 U.S.C.   1983.

     Watson's complaint contained four counts, only  three of

which are  at issue  in this appeal.1   In  his first  count,

Watson described injuries  he had sustained to his right hand

before he went to prison.  The injuries had required surgery,

and the hand continued  to cause problems.  After  he entered

prison, beginning in February  1989, Watson sought treatment.

The  specialists he contacted would not travel to the prison,

and  prison  officials  would not  allow  him  to  go to  the

doctors.    According  to  the  complaint,  defendant  Peggie

Mitchie, a  nurse  at  the  Downeast  Correctional  Facility,

refused  to  examine Watson's  hand  because  the injury  had

occurred  before  he  went  to  prison,  and  she  said  that

"therefore she was not responsible  for care or treatment  of

                    

     1The  third count  of  the complaint  related to  dental
treatment  of a broken cap on a  front tooth.  Watson did not
challenge the dismissal of this count in his appellate brief,
and  therefore  has  waived  the  issue.    Pignons  S.A.  de
                                                             
Mecanique  v. Polaroid Corp., 701  F.2d 1, 3  (1st Cir. 1983)
                           
(issues  not  presented  in  appellant's  opening  brief  are
waived).

that hand."   Thereafter Watson says  he continued to  suffer

and  eventually a doctor did examine the hand and recommended

another round of surgery.

     The second  count of  the complaint alleged  that Watson

was injured when he fell through a weak ceiling while working

at the Downeast  prison.  He saw a nurse,  who treated a gash

on  his leg but declined to provide further treatment when he

told  her that he had also injured  his back, saying that his

back  "would be  okay."   Not  until  he transferred  to  the

Charleston prison  did Watson receive treatment  for his back

injury;   but  even  then,  Watson  complained,  the  doctors

prescribed only medication and bed  rest, and failed to order

the  physical   therapy  that   he  thought   was  necessary.

Eventually, the  injury required surgery, and  even after the

operation Watson's back remained "40% impaired."

     Finally, Watson alleged in  his fourth count that, while

housed at the Downeast  Correctional Facility, he purchased a

number of  cassette tapes and compact disks through the mail.

When these items arrived at the prison, officials deemed them

"non-allowable"  and did not deliver them to Watson.  Nor did

they provide  Watson with  a "non-allowable  property sheet,"

which,   Watson  contends,   the  Department   of  Correction

"normally issues" in such  situations.  A corrections officer

destroyed  the tapes and disks, but the prison did not notify

Watson of  either the  delivery or  the destruction until  11

                             -3-

days had passed.

     In  addition to  his  complaint, Watson  filed with  the

district court  an application to proceed  in forma pauperis.
                                                            

Acting  on  this request  before  any of  the  defendants had

responded to the complaint, the district court granted Watson

in  forma pauperis status but dismissed  the complaint on its
                  

own motion under  28 U.S.C.    1915(d) with  a short  opinion

stating  its reasons.   After the  district court  denied his

motion for  reconsideration  and motion  to vacate  judgment,

Watson filed this appeal.

     Under 28 U.S.C.    1915(d) a federal district  court may

dismiss an in  forma pauperis complaint if  the complaint is,
                             

among  other things,  "frivolous."   A  claim is  "frivolous"

within the meaning of section 1915(d) when it is "based on an

indisputably  meritless  legal  theory,"  or  makes  "clearly

baseless" factual contentions.  Neitzke v. Williams, 490 U.S.
                                                   

319, 327 (1989).   We review a section 1915(d)  dismissal for

"abuse of  discretion," Denton v. Hernandez, 112 S. Ct. 1728,
                                           

1734  (1992),   taking  into  account  the  liberal  pleading

standards   applicable  to   complaints  filed   by  pro   se
                                                             

plaintiffs.

     Watson's first two  counts alleged  that the  defendants

failed to provide, or caused delays in providing, appropriate

medical care.  The courts have consistently refused to create

constitutional  claims out of disagreements between prisoners

                             -4-

and doctors about the  proper course of a  prisoner's medical

treatment, or  to  conclude that  simple medical  malpractice

rises to the  level of  cruel and unusual  punishment.   See,
                                                             

e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976);  DesRosiers
                                                             

v. Moran, 949 F.2d 15, 19  (1st Cir. 1991).  However,  prison
        

officials  and doctors  may violate  the Eighth  Amendment if

they  exhibit "deliberate  indifference  to  serious  medical

needs."  Estelle  v. Gamble,  429 U.S. at  106.  The  obvious
                           

case would be a  denial of needed medical treatment  in order

to punish the inmate.   But deliberate indifference  may also

reside in "wanton" decisions  to deny or delay care,   Wilson
                                                             

v. Seiter, 111 S. Ct. 2321, 2326 (1992), where  the action is
         

recklessness,  "not  in  the  tort  law  sense  but  in   the

appreciably  stricter  criminal-law  sense, requiring  actual

knowledge   of   impending    harm,   easily    preventable."

DesRosiers, 949 F.2d at 19.
          

     Watson alleged in the first count of  his complaint that

the  prison nurse refused to  treat him for  an injury, which

proved serious enough to  require surgery, on the non-medical

ground that the state was not responsible for injuries caused

by  events that  occurred before  Watson entered  prison.   A

deliberate refusal to treat a serious medical condition of  a

prisoner  on such  a ground  could hardly  be justified  and,

while  the  allegations  may   prove  untrue,  they  are  not

"fantastic or delusional."   Estelle v.  Gamble, 490 U.S.  at
                                               

                             -5-

328.    We  conclude  that  Watson's   first  count  was  not

frivolous,  although it  may--based on  further information--

prove to be wholly without merit.   How and in what form that

information is obtained is a matter for the district court to

decide in the  first instance; we note that the state has not

yet filed an answer to this charge.

     Watson's  second  count  relating  to  his  back  injury

presents  a different question.   On its face,  the facts set

forth allege only the  kind of disagreement about the  proper

course  of treatment  that does  not rise to  the level  of a

constitutional  violation:  Watson wanted more attention from

the  nurse, who said that  no treatment was  needed; he later

wanted  physical therapy  to be ordered  by the  doctors, who

thought that drugs and rest would do the trick.

     To   append   labels   like  "wanton"   or   "deliberate

indifference" to this conduct, when nothing suggests that the

medical  judgment was  absurd or  that improper  reasons were

given for refusing treatment, cannot alter what is in essence

a claim of  negligence.   The difference  between failing  to

state  a  claim  and making  a  frivolous  claim  is in  some

situations  a question of degree.  In this case we think that

the district court acted within  its considerable discretion,

Wilson, 111 S.  Ct. at  2326, in concluding  that this  count
      

stated no  facts suggesting  more than simple  negligence and

that,   since  simple  negligence  is  not  a  constitutional

                             -6-

violation, the  claim was subject to  dismissal under section

1915(d).2

     Watson's  fourth  count  alleged that  prison  officials

refused to  deliver several cassette tapes  and compact discs

to him, denying those items as "non-allowable" but failing to

give Watson a "non-allowable  property sheet," and failing as

well  to notify  Watson that  the items  had  been delivered.

Instead, Watson says,  a corrections officer destroyed  them.

Watson does not complain directly of the decision to withhold

the property from him,  but rather of the lack  of notice and

the resulting  destruction of  the property before  he had  a

change  to have the items sent  back.  In other words, Watson

has raised an issue of procedural due process.

     The Fourteenth  Amendment says that state  officials may

not deprive persons of property without "due process of law."

U.S.  Const., art.  XIV.   The  process  due depends  on  the

circumstances.    Mathews  v.  Eldridge, 424  U.S.  319,  335
                                       

(1976).  The  cases distinguish sharply  between deprivations

caused by  "random, unauthorized" conduct of state officials,

and deprivations  caused by conduct "pursuant  to established

state  procedure."  See Hudson  v. Palmer, 468  U.S. 517, 532
                                         

(1984).    For the  former,  the state  is  not automatically

                    

     2 Conceivably,  in the  remand in connection  with count
one,  Watson could  move for  leave to  replead count  two to
allege facts amounting to a constitutional violation.   If he
did  so, we  assume  the court  would  give this  motion  due
consideration.  See Denton, 112 S. Ct. at 1734.
                          

                             -7-

liable;3  in the latter case there may be liability where the

state  policy approves or directs the conduct but falls below

constitutional standards.

     In  this  instance, Watson  does  not  suggest that  the

officer's conduct reflected a state policy.  His brief states

that "a [s]upervisor took it upon his  own" to throw away the

property without giving  Watson notice or allowing him the 30

days permitted to prisoners to ship back non-allowable items.

The  complaint itself  asserts  that the  lack  of notice  to

Watson involved  the failure to furnish  him "a non-allowable

property  sheet, which the Department of Corrections normally

issues . . . . "   The clear inference from these allegations

is that the action was a deviation from, and not a reflection

of,  an established  state procedure.   Under  the precedents

cited,  such a  claim has no  legal basis  in a  section 1983

case.

     We affirm  the judgment  below in dismissing  counts two
              

and four  of the  complaint.  As  to count  one, judgment  is

vacated  and the  case  remanded for  further proceedings  in
       

accordance with this opinion.

     So Ordered.
               

                    

     3The  officer allegedly responsible  for the destruction
is apparently not a defendant in this case.   Watson does not
allege that  the state refused to  provide a post-deprivation
remedy for the alleged  wrong by the officer.   See Hudson v.
                                                          
Palmer, 468 U.S. at 533.
      

                             -8-
