
USCA1 Opinion

	




          June 27, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                              ____________________        No. 94-2078                                     GILBERT DIAS,                                Plaintiff, Appellant,                                          v.                 RONALD DUVAL, SUPERINTENDENT, M.C.I. CEDAR JUNCTION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Gilbert Dias on brief pro se.            ____________            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Sondra M.  Korman, Counsel,  Department  of Correction,  on brief  for        _________________        appellees.                                 ____________________                                 ____________________                      Per Curiam.  We  have carefully reviewed the briefs                      __________            and record  and conclude that summary  judgment was correctly            entered for defendants.   We  briefly comment  on several  of            plaintiff's arguments.                      1.   Plaintiff  contends  that  the district  court            should  have  granted  his  request for  additional  time  to            respond to defendants'  motion for summary judgment.   By the            time plaintiff's motion was  docketed, the district court had            already  entered  judgment  for  defendants.    Consequently,            plaintiff's motion, in its  present form, was moot.   At that            point,  if  plaintiff  still  wanted to  file  a  substantive            response  to  defendants'  motion for  summary  judgment,  he            should have timely filed a motion under Fed. R. Civ. P. 59(e)            or Fed.  R. Civ. P. 60(b) asking the district court to vacate            its judgment and consider plaintiff's response.  As plaintiff            did not do either and never filed a substantive opposition to            defendants'  motion for  summary  judgment,  we  confine  our            review to the district  court record and do not  consider any            new  factual allegations  plaintiff raises  in his  appellate            brief.                      2.  The  one instance  in which  plaintiff did  not            receive  one of his four daily dosages of pain medication did            not amount to an Eighth Amendment violation.                      As  for the prescribed medication plaintiff says he            kept  in his cell, plaintiff's January 28, 1993 letter to Lt.            Silva  requested  that  all   his  property  be  mailed  out.                                    ___            Plaintiff did  not specifically  point out an  immediate need            for the  medications.   In those circumstances,  the district            court  could  properly  conclude  that  summary judgment  was            appropriate  because  plaintiff had  not  shown  a basis  for            inferring  that defendants  were deliberately  indifferent to                                             ____________            plaintiff's medical needs.                      Defendants'   submissions  showed   that  plaintiff            consistently   refused  to  comply   with  alternate  feeding            procedures either by remaining silent, saying no, or claiming            he wasn't hungry.  Below, plaintiff described only one of the            meals tendered -- a cheese sandwich.  In these circumstances,            where plaintiff  was repeatedly  afforded  an opportunity  to            come off  alternate feeding but did  not cooperate, plaintiff            may  not   properly  complain  that  defendants   denied  his            medically prescribed diet.                      3.    Plaintiff contends  he  was  deprived of  the            necessities of life in violation of the Eighth Amendment when            he was  placed  on  alternate  feeding and  for  some  period            thereafter.   We  confine our  review to  the  district court                                         -3-            record and do not  consider the new allegations  presented in            plaintiff's appellate brief.  On that basis, we conclude that            the  temporary restrictions,  which,  according to  the  fair            thrust  of the  district court record,  lasted under  a week,            were not  unconstitutionally cruel.  Our affirmance, however,            is  without prejudice  to plaintiff's  bringing a  new action            challenging  the conditions  of his  confinement once  he was            placed  on  alternate  feeding.    In  his  appellate  brief,            plaintiff asserts that he  had no clothes, was confined  to a            cold cell twenty-four hours  a day, was denied  blankets, had            no  running water, and was not allowed to shower from January            26,  1993 until February 16, 1993.  While his allegations are            somewhat vague, undeveloped, and even contradictory at times,            we think  plaintiff should be afforded  a further opportunity            to  clarify  his   allegations,  particularly   in  view   of            plaintiff's unsuccessful attempt below to extend the time for            responding  to  defendants'  motion  for   summary  judgment.            Consequently, we direct that the summary judgment entered for            defendants be  without prejudice to plaintiff's  filing a new            action  challenging the  conditions of  his confinement  from            January 26, 1993 to February 16, 1993.                      4.   Plaintiff contends  he was denied  due process            during  his  disciplinary  hearing.    Summary  judgment  was            properly entered for defendants.  Plaintiff was not convicted            of  any  throwing offense.    Plaintiff's  attacks on  Lopes'                                         -4-            allegations and the evidence  relating to that charge  do not            state  any due process claim.   Freeman v.  Rideout, 808 F.2d                                            _______     _______            949,   951-53  (2d   Cir.  1986)   ("prison  inmate   has  no            constitutionally  guaranteed immunity  from being  falsely or            wrongly  accused   of  conduct   which  may  result   in  the            deprivation of a protected  liberty interest"), cert. denied,                                                            ____________            485 U.S. 982  (1988).  Prison officials gave adequate reasons            for denying  two of plaintiff's requested  witnesses, and the            verbal insolence  finding  was adequately  supported  by  the            evidence.                      We have considered all of plaintiff's arguments and            affirm the judgment below, but  direct that the affirmance is            without  prejudice   to  plaintiff's  filing  a   new  action            challenging the  conditions of  his confinement  from January            26, 1993 until February 16, 1993.                                         -5-
