
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2346                                  DAVID E. GIACALONE,                                Plaintiff, Appellant,                                          v.                               LARRY E. DUBOIS, ET AL.,                                Defendants, Appellees.                                                                                      ____________                                   ADRIAN ALMEIDA,                                 Plaintiff, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            David E. Giacalone on brief pro se.            __________________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Stephen G. Dietrick, Deputy General Counsel, Department of Correction,        ___________________        on brief for appellees.                                 ____________________                                    July 18, 1997                                 ____________________                 Per  Curiam.  We  have reviewed the  parties' briefs and                 ___________            the record on appeal.1   Appellant claimed that the defendant                                 1            prison officials  were  forbidden by  the Eighth  Amendment's            prohibition  against   cruel  and  unusual   punishment  from            withdrawing the opportunity  for yard exercise as  a sanction            for violating a  prison rule.   The district court  dismissed            the complaint.  We affirm.                 Exercise is "an identifiable  human need," and depriving            an  inmate  of the  ability  to exercise  may,  under certain            circumstances, such as an excessively long deprivation, raise            Eighth Amendment concerns.   Wilson v. Seiter,  501 U.S. 294,                                         ______    ______            304 (1991); McGuinness v. Dubois, 893 F. Supp. 2, 3 (D. Mass.                        __________    ______            1995), aff'd, 86  F.3d 1146 (1st Cir.  1996) (unpublished per                   _____            curiam; table decision).  However, that is not the case here.            We  conclude that the  district court correctly  rejected the            claim that the sanction -- loss  of yard exercise for 45 days            -- imposed after appellant  was found guilty of assisting  in            the assault of another inmate by  striking that inmate's head            with  his fists  and with  a  typewriter violated  the Eighth            Amendment.   See May v. Baldwin, 109  F.3d 557, 565 (9th Cir.                         ___ ___    _______            1997); LeMaire  v. Maass,  12  F.3d 1444,  1457-58 (9th  Cir.                   _______     _____                                            ____________________               1The  district court  complaint  was signed  by  appellant               1            David E. Giacalone  and by Adrian  Almeida.  Thereafter,  the            filings  were  signed  only by  Giacalone.    Giacalone alone            signed the notice of appeal and the appellant's brief.   As a            pro  se  prisoner  cannot  represent  a  fellow  inmate,  see                                                                      ___            Herrera-Venegas v.  Sanchez-Rivera,  681 F.2d  41  (1st  Cir.            _______________     ______________            1982), we treat this appeal as pertaining only to Giacalone.                                         -2-            1993); Leonard v. Norris, 797  F.2d 683, 685 (8th Cir. 1986);                   _______    ______            see also McGuinness v. Dubois,  893 F. Supp. at 3 (concluding            ________ __________    ______            that defendants were entitled to qualified immunity for claim            that a sanction of lost yard time imposed for a succession of            disciplinary  convictions,  that   cumulatively  amounted  to            approximately one year, did  not violate clearly  established            Eighth Amendment rights).                 Appellant's citation to state  law and state regulations            in support of his Eighth Amendment claim does not further his            case.  See Michaud v. Sheriff of Essex County, 390 Mass. 523,                   ___ _______    _______________________            526,  458 N.E.2d  702,  704  (1983)  (opining  that  inmates'            standing to  seek relief  based  solely on  the existence  of            conditions  at the  jail which  violate  state Department  of            Public  Health's regulations  is unclear);  Attorney Gen.  v.                                                        _____________            Sheriff of  Worcester County,  382 Mass.  57, 59, 413  N.E.2d            ____________________________            722, 724 (1980) (opining that the Attorney  General, as chief            law  officer, is an  appropriate officer to  seek declaratory            relief as  to scope of  duty to enforce Department  of Public            Health regulations).   In  any event,  "[m]ere violations  of            state law do  not, of course, create  constitutional claims."            Vargas-Badillo v.  Diaz-Torres, No. 96-1895, 1997  WL 276662,            ______________     ___________            at  *2  (1st Cir.  May  30,  1997) (quoting  Roy  v.  City of                                                         ___      _______            Augusta, 712 F.2d 1517, 1522 (1st Cir. 1983)).            _______                 In  light  of  our  disposition  of appellant's  federal            claim,  we have no  need to  reach his  contention, belatedly                                         -3-            raised  in his opposition  to defendants' motion  to dismiss,            that  the   loss  of   yard  sanction   violated  the   state            constitution.                 Affirmed.                 _________                                         -4-
