July 14, 1993         [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                          

No. 91-2183

                         SHERMAN MILLER,

                      Plaintiff, Appellant,

                                v.

                DEPARTMENT OF CORRECTION, ET AL.,

                      Defendants, Appellees.

                                          

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]
                                                      

                                          

                              Before

                      Selya, Cyr and Boudin,
                         Circuit Judges.
                                       

                                          

     Sherman Miller on brief pro se.
                   
     Scott Harshbarger, Attorney General,  and Timothy A. Mullen,
                                                                
Assistant Attorney General, on brief for appellees.

                                          

                                          

          Per Curiam.   Pro se plaintiff  Sherman Miller  appeals
          Per Curiam.
                              

from  a district  court judgment  for the  defendants in  this 42

U.S.C.    1983  action.   For  the  reasons discussed  below,  we

affirm.  

                                I

          Miller is sixty-five years  old.  For most of  the past

fifteen years, he has been a resident of the Treatment Center for

Sexually Dangerous Persons  located in Bridgewater, Massachusetts

(hereinafter:  "Treatment  Center" or "BTC").   Following a  1978

conviction  for rape, Miller was committed to the BTC pursuant to

a Suffolk  Superior  Court  order  adjudicating  him  a  Sexually

Dangerous Person ("SDP")  pursuant to  M.G.L. c. 123A,    6  (re-

pealed) and  directing that he  "be voluntarily committed  to the
                                               

Treatment Center  . . . ." (emphasis supplied).   In 1984, Miller

commenced this civil rights action.  The amended complaint sought

declaratory and injunctive relief and damages for alleged consti-

tutional deprivations  attending his confinement at the BTC.  All

named defendants  are state  officials  formerly responsible  for

operations  at the BTC.1  Although the amended complaint asserted

seven claims, only two  are implicated by this appeal.   Miller's

first claim alleged  that the defendants  violated his  constitu-

tional right of access to the courts by maintaining an inadequate

                    

     1The defendants are former Department of Corrections Commis-
sioner Michael  Fair, Charles  Gaughan (former Superintendent  of
the Massachusetts Correctional Institution at Bridgewater), James
Callahan  (former  Commissioner  of   the  Department  of  Mental
Health), Richard  Boucher (former  Administrator of the  BTC) and
Mildred Gil (law librarian at the BTC).

                                2

law library and restricting library access.  The other  surviving

claim alleged that the defendants violated Miller's constitution-

al right  to rehabilitative treatment.   Miller alleged  that the

defendants failed to develop an individual treatment plan ("ITP")

for  him although he believed  such plans had  been developed for

other  BTC patients and  that the denial  of an ITP  violated his

right to due  process and equal  protection under the  Fourteenth

Amendment.2  He sought injunctive relief requiring defendants  to

develop  an ITP which would afford him a realistic opportunity to

improve his mental condition, and requiring defendants to  afford

him adequate access to the BTC law library.

          On December  10, 1985,  the  district court  granted  a

preliminary injunction on Miller's "access to the courts"  claim.

The order required  the defendants to  obtain certain  additional

volumes for the  law library  and to ensure  that Miller  receive

reasonable  photocopying  services.   Miller's  criminal sentence

expired on May 8, 1989.  No significant judicial proceedings took

place thereafter until the  case was called for trial  in January

1991.  Relying on the expiration of his criminal sentence, Miller

sought release from  the BTC by instituting  a state-court habeas

corpus proceeding.  On  March 20, 1991, the superior  court ruled

that  Miller had  been involuntarily  committed to  the Treatment
                                    

Center  and, therefore, was  not entitled  to release  until such

time as  his adjudication as  a SDP  was revoked under  M.G.L. c.

                    

     2Miller  alleged that  the defendants  discriminated against
him because of his unique "voluntary"  commitment status and that
the  BTC maintained  that  Miller's right  to participate  in its
programs  was inferior  to  that of  involuntarily committed  BTC
patients. 

                                3

123A,   9.3  Thus, but  for his status as a SDP, Miller  would be

a  free man.  Nevertheless, he has never submitted an administra-

tive request for release or reclassification.

          Miller's   1983  action was called for trial in January

1991.  Both sides sought a continuance; the BTC had lost its case

file and Miller required  further discovery.  The district  judge

continued the trial to April but  warned that belated dispositive

motions  would not be  allowed to delay the  trial further.  Four

days before the  rescheduled trial, defendants filed  a motion to

dismiss  or for summary judgment, based on this court's March 22,

1991 decision in  Langton v.  Johnston, 928 F.2d  1206 (1st  Cir.
                                      

1991).  Langton resolved an appeal from a class action, Bruder v.
                                                              

Johnston, brought on  behalf of all patients civilly committed to
        

the BTC.4  The  Langton plaintiffs sought to have  the defendants
                       

    all of them state officials responsible for operations at the

BTC     held in contempt of certain consent decrees requiring the

establishment of various therapeutic, educational, and vocational

programs at the BTC.   See generally Williams v. Lesiak, 822 F.2d
                                                       

1223 (1st Cir. 1987) (describing consent decrees).  Like  Miller,

the Langton  plaintiffs had raised an  inadequate treatment claim
           

that  alleged, inter  alia,  that the  defendants  had failed  to
                          

                    

     3The superior court ruling was based  on the statements made
by the committing  judge during the course of the SDP hearing, as
well  as Miller's own  conduct.  The  Massachusetts Appeals Court
affirmed.  See  Miller v. Tink,  33 Mass.  App. Ct. 1103  (1992),
                              
further rev. denied, 413 Mass. 1106 (1992).
                   

     4We refer to  Bruder and Langton  interchangeably.  We  note
                                     
that  Miller's     1983 action  and  Bruder  were  pending before
                                           
different district judges at roughly  the same time, although the
Bruder  suit  was filed  two years  after  Miller's suit  and the
      
Miller  case was not resolved until almost two years after Bruder
                                                                 
was decided.   Miller unsuccessfully filed a motion  to intervene
as a class representative in Bruder.  See also infra note 14.
                                                    

                                4

provide treatment  reasonably designed  to  bring about  the  pa-

tients' recovery.  See 928 F.2d at 1212.  Our decision in Langton
                                                                 

upheld  the district court's ruling that  the defendants were not

in contempt  of  the  consent decrees  but  rather  had  achieved

substantial compliance  with  those decrees  notwithstanding  the

fact that the  ITPs of many patients were  not being fully imple-

mented.  We also observed that the BTC had a "current and compre-

hensive law  library."   See  id. at  1213, 1216,  1220-23.   The
                                 

defendants contended  that Langton barred  Miller's claims  under
                                  

the doctrine  of res  judicata  or collateral  estoppel.   Miller
                              

moved to strike defendants' dispositive motion.5

          When the case was called for trial, defendants'  motion

to dismiss/for summary  judgment and Miller's  motions to  strike

and compel  discovery  remained  pending.    The  district  court

initially told Miller that he would  not have to file a  response

to  defendants'  motion  and  instructed  defendants'  counsel to

assert  their  legal arguments  in the  context  of a  motion for

directed verdict.   Miller, however, was not  prepared for trial.

He  had not subpoenaed any  witnesses, being uncertain  as to how

the  court would proceed on the pending motions.6  Loath to delay

the resolution of Miller's claims any longer, the  district court

                    

     5Shortly before defendants filed their motion to dismiss/for
summary  judgment, Miller  moved  to compel  discovery and  for a
judgment of contempt.   He sought to compel Michael  Stevens, the
Chairman  of the  BTC's  Reintegration Review  Board ("RRB"),  to
complete his  deposition and produce documents.   Miller's motion
to  strike argued  that defendants  improperly moved  for summary
judgment before discovery was completed.

     6Miller complained that  he had been unable  to complete the
deposition of Michael Stevens, Chairman of the BTC's RRB.  Miller
hoped to  elicit Stevens'  admission that Miller's  treatment was
not  being  based on  professional  judgment  under Youngberg  v.
                                                             
Romeo, 457 U.S. 307 (1982).
     

                                5

expressed  a preference  for  proceeding  to  trial.   But  after

hearing defendants'  arguments, the court  expressed some  uncer-

tainty as  to whether  the  case would  be tried  or resolved  on

defendants'  motion.7   The  court  recessed to  allow  Miller to

prepare a subpoena for Stevens,  as well as a witness list  and a

proffer indicating how Miller's evidence might defeat defendants'

Langton/Bruder  defense.   After the  recess, Miller  submitted a
              

witness  list identifying  six witnesses  on  his "access  to the

courts"  claim and  seven witnesses  on his  inadequate treatment

claim.8  He  argued that Bruder did not bar  these claims because
                               

(1) Bruder was not decided  on constitutional grounds; (2) Miller
          

had  not been  a party  to  Bruder, in  part due  to his  alleged
                                  

voluntary commitment status; (3) many of the issues Miller sought

                    

     7The district court  explained to Miller, "If you don't have
a proffer of evidence that would establish if credited that there
is a cause of action remaining in the face of the legal arguments
the  defendant is asserting, then whether we  do it as a trial or
                                                                 
do  it as a motion  for a summary judgment, it's  time to end the
                                          
case . . . ." (emphasis added).

     8Miller's proffer indicated that  he expected two members of
the  BTC's  Reintegration Review  Board      Dr.  Mark Sokol  and
Michael  Stevens     to identify  the treatments  recommended for
Miller that had not been provided.  Miller further indicated that
he  wished to question  Dr. Albert Jurgela,  Director of Clinical
Services, to find out why various recommended treatments had  not
been  provided.  Miller complained  that the BTC  refused to give
him clozapine    a drug  Miller had taken for six or  seven years
prior to his  incarceration and  which allegedly  allowed him  to
function normally in society    even though the BTC's RRB specif-
ically recommended it.  He implied  that his only hope of release
might  rest on securing clozapine therapy.  Miller wanted to call
Dr. Daniel Kreigman and Dr. Martin Miller to inquire  why the BTC
was not giving him clozapine.  He expressed the hope that another
witness, Dr. Guy Seymour, would testify that Miller suffered from
schizophrenia, thus justifying the use of clozapine.  (continued)
     In  support of  his  "access to  the  courts" claim,  Miller
sought to prove that certain restrictions  on his movement within
the law  library violated the  constitutional right of  access to
the  courts of  inmates he  was assisting in  his capacity  as an
appointed research assistant.  

                                6

to raise concerning his treatment arose after Bruder was decided,
                                                    

and  (4) Bruder merely determined that the state was not required
               

to  implement all  treatments recommended  in a  particular SDP's

ITP, it did not decide what the state was required  to provide to

a SDP,  such  as Miller,  whose  criminal sentence  had  expired.

Defendants reiterated  their argument that  Langton/Bruder barred
                                                          

Miller's remaining claims.

          The  district court  concluded that  the case  could be

resolved by affording  Miller an opportunity  to file  affidavits

and memoranda in opposition to defendants' arguments.  The  court

adjourned the  "trial" after  one day,  allowing Miller  leave to

submit such  filings.    Thereafter,  Miller filed  a  number  of

submissions  in support  of  his claims.    With respect  to  his

inadequate  treatment  claim, Miller  averred  that  he had  been

adjudicated  a SDP  and committed  to the  BTC in 1979,  that the

BTC's RRB had formulated  an extensive treatment plan for  him on

November 1, 1989, but that  he had "not been afforded one  of the

behavioral and pharmacological  treatment modalities  recommended

by the [RRB]."  He reiterated his complaint that he  had not been

treated with clozapine, notwithstanding the RRB's recommendation.

          On June 11,  1991, the district court issued a memoran-

dum of  decision denying relief on  Miller's inadequate treatment

claim.   The  court ruled  that it  was not  necessary to  decide

whether Langton/Bruder barred  the claim under  the doctrines  of
                      

res  judicata and collateral  estoppel.  The  court ruled instead
             

that Langton/Bruder precluded relief under the doctrine of  stare
                                                                 

decisis.   Noting that Miller had based  his inadequate treatment
       

                                7

claim largely on the fact that he had not been given clozapine as

recommended by the RRB, the court reasoned:  

          In light of the recognition by the courts  in
          Bruder and  Langton  that patients  were  not
                             
          receiving all of the treatment recommended in
          their individual treatment plans,  . . . pla-
          intiff  has failed  to demonstrate  a genuine
                                                       
          issue of  material fact on the  claim of con-
                                                       
          stitutionally inadequate treatment . . . [and
                                            
          the] defendants are entitled to judgment as a
          matter of law.  (Emphasis supplied.)

          The court awarded Miller partial relief on his  "access

to the  courts" claim,9 but  held that he  had not stated  an ac-

tionable claim  for denial of access  to the courts on  behalf of

his  fellow  patients because  he  failed  to allege  that  those

patients had no  avenue of  access to the  courts except  through

Miller.  

          Miller  filed  a  motion  for  partial reconsideration,

arguing that  the district court  erred in construing  his inade-

quate treatment claim as similar to that raised by the plaintiffs

in Langton/Bruder.  Relying on his May 13, 1991 affidavit, Miller
                 

argued that, unlike the Langton  plaintiffs, he was not complain-
                               

ing  that he had  not received all  the treatments  that had been
                                  

recommended  for him.  Rather, Miller's complaint was that he had

not received any of the behavioral and pharmacological  treatment
                

modalities that had been recommended for him by the  RRB in 1989.

Miller argued  that simply because the BTC was not able to imple-

ment  all of the programs  recommended in each  patient's ITP did
         

not mean that the BTC had no obligation to implement  some of the
                                                          

                    

     9The court issued a  judgment declaring that as  of December
10, 1985,  the BTC  law library was  constitutionally inadequate.
Miller was awarded  $500 for attorney fees incurred  in enforcing
the district court's December 10, 1985 preliminary injunction.

                                8

programs repeatedly recommended for him.  Miller further  averred

that his group  therapist and another staff  person were recently

"bumped," which would leave him without treatment.

          The defendants  filed an  opposition which included  an

affidavit from Dr.  Jurgela and  copies of the  RRB's reports  on

Miller's  11/1/89  and 7/25/90  status  reviews.10   Dr.  Jurgela

attested  that  Miller's  therapist  continued to  provide  group

therapy  to Miller  notwithstanding the  fact  that she  had been

"bumped,"  and that Miller also received treatment in the form of

weekly "house  meetings" led  by  another staff  clinician.   Dr.

Jurgela acknowledged, however, that the current RRB report recom-

mended  that  Miller   receive  individual  therapy,  personality

testing,  general  behavioral  and plethysmographic  assessments,

covert conditioning, relapse prevention, and anger and depression

management, but that Miller had not received any of these assess-

ments or treatments.11   He also acknowledged that  a psychophar-

macological consultation had been recommended for Miller, presum-

ably a reference to  the recommended clozapine therapy.   The RRB

reports confirmed Miller's allegation that the RRB had recommend-

ed a trial use of clozapine in 1989 and that, as of July 1990, he

had received neither clozapine nor the other recommended services

noted  immediately above.   The  1989 RRB  report  concluded that

Miller  remained a  SDP whose prognosis  was poor.   The 1990 RRB

report noted that  services might  be lacking for  Miller and  if

                    

     10Under the consent decree, the RRB is required to  evaluate
each  patient, on an annual  basis, to determine  the progress of
therapy and the advisability of permitting the patient to reenter
the community on a limited basis.  See Langton, 928 F.2d at 1210.
                                              

     11Dr. Jurgela noted that Department of Mental Health ("DMH")
policy prohibited the use of plethysmography at any DMH facility.

                                9

that were the case, as opposed to Miller simply resisting servic-

es that had been offered, "such conditions should be corrected as

soon  as possible."  Miller responded  to the defendants' opposi-

tion, arguing  that defendants' evidence established  that of the

ten  treatment modalities that had been recommended by the RRB in

1989, he had received only one (group therapy).

          The district court rejected Miller's contentions on the

ground that  Miller  had "not  demonstrated  a genuine  issue  of

material fact on  the adequacy  of treatment claim."   The  court

reiterated that "the Treatment Center is not obligated to  imple-

ment the  [ITP] drawn up  by the  [RRB] in all  its details"  and

found that Miller's claim that  he had "not been afforded  one of

the  behavioral and  pharmacological treatment  modalities recom-

mended by the [RRB]" in 1989 was "a factual assertion not clearly

supported  by  the  ambiguous  language  in"  Miller's  affidavit

because  Miller  had failed  to identify  a treatment  other than

clozapine that he had not received.  The court further found that

Miller's claim that he  was no longer receiving any  treatment   

since certain staff members had been "bump[ed]"    merely assert-

ed "sketchy facts  and unsupported conclusions"  which failed  to

comply with  Fed. R. Civ.  P. 56(e).   The court  denied Miller's

motion  for partial  reconsideration and  his amended  motion for

partial reconsideration.

          Miller then  filed  other  postjudgment  motions:    to

supplement the pleadings, reopen the case,  and amend the pleadi-

ngs to conform to the facts  set forth in Miller's September  23,

1991 affidavit ("Supplementary Affidavit").  In the first motion,

Miller argued that further reconsideration  was warranted because

                                10

the court had failed to  apprise him of the requirements  of Rule

56(e).  Miller's Supplementary Affidavit spelled out each  recom-

mended treatment  with  which  he  had not  been  provided  since

1986.12   The court  declined further reconsideration,  asserting

that  its June  11, 1991  decision was  not based  on defendants'

motion for summary judgment,  therefore Miller's alleged unaware-

ness of the requirements of Rule 56(e) was irrelevant.  The court

further found that Miller's Supplementary Affidavit  disclosed no

set  of facts that might entitle him to relief and that amendment

of  the pleadings following "trial"  was not in  the interests of

justice.  The  court held that  Miller's Supplementary  Affidavit

was  not part  of the record.   Miller's motions  were denied and

this appeal followed.

                                II

          The district court orders disposing of Miller's postju-

dgment motions  are reviewable  for "abuse of  discretion."   See
                                                                 

Desenne v. Jamestown  Boat Yard,  968 F.2d 1388,  1392 (1st  Cir.
                               

1992)(deci-sion on Rule 59(e) motion for reconsideration reviewed

for  abuse of  discretion); Rodriguez-Antuna  v. Chase  Manhattan
                                                                 

Bank Corporation, 871 F.2d  1, 3 (1st Cir. 1989)(denials  of Rule
                

60(b) motions may be reversed only for abuse of  discretion).  We

find  that the district  court acted well  within its discretion,

particularly  in view  of the  extreme tardiness of  Miller's re-

quests  for relief  in an  action commenced  in 1984.   Moreover,

                    

     12Among these  were  treatments for  anger,  depression  and
self-control management, personality testing,  relapse prevention
treatment  and plethysmographic  assessment.   But  cf. note  11,
                                                       
supra.
     

                                11

Miller misapprehends the district court ruling on his  inadequate

treatment claim.  The district  court correctly ruled that Miller

failed  to  provide evidentiary  support,  or  even a  sufficient

proffer of evidence,  to support the  claim of inadequate  treat-

ment, since he  failed to show that  the claim was not  precluded

under  the doctrine  of  stare decisis  by  Langton/Bruder.   The
                                                          

district court arrived at  its decision on the basis  of Miller's

ambiguous affidavit attesting that "he had 'not been afforded one
                                                                 

of the behavioral and pharmacological treatment modalities recom-

mended by the [RRB]' . . . ."   Memorandum of August 26, 1991, at

p.  2.   The  district  court  supportably construed  the  quoted

language as  a  reference  to  the BTC's  failure  to  administer

clozapine,  as recommended  by the RRB.   Id.  at 4.   Relying on
                                             

Langton, the district court ruled  that, without more, the  BTC's
       

mere failure  to  provide  this  one  recommended  treatment  was

insufficient  to demonstrate  a genuine  issue of  material fact.

Id. at pp. 3-4.   As concerns  the alleged "bumping" of  Miller's
   

"therapists," see  id. at 4,  the district court  correctly noted
                      

that the term "bumping" is ambiguous and conclusory.  Id. at 4-5.
                                                         

Thus, the district  court's disposition of  Miller's motions  for

reconsideration and for relief from judgment, see id. at pp. 5-6,
                                                     

constituted no abuse of its discretion.

          Thereafter,   Miller   filed  additional   postjudgment

motions.   See   Memorandum of  November 4,  1991.   The district
              

court denied Miller's motion to amend the pleadings to conform to

his  Supplementary Affidavit.   See  Fed.  R. Civ.  P. 15(a),(b).
                                   

Here, we believe the district court erred in holding that Miller-

's "Supplementary Affidavit reveal[ed] no set of facts that would

                                12

entitle  plaintiff to  relief  under the  law  as stated  in  the

Memorandum and Order of June 11, 1991."   Id. at 3.  The June  11
                                             

order relied on  Langton/Bruder, but the  Supplementary Affidavit
                               

filed by  Miller materially altered the  record evidence tendered

in support of his inadequate treatment claim by relating numerous

other procedures  and therapies recommended for Miller by the RRB

which were not afforded him by the BTC.  In our view, the Supple-

mentary Affidavit may well have raised a genuine issue of materi-

al  fact as  to whether  Miller's constitutional  claim based  on

inadequate  treatment was actionable.  Nevertheless, the district

court did not  abuse its  discretion.  This  court determined  in

Langton that  it was  unnecessary,  indeed inadvisable,  for  the
       

district court to  address the constitutional  claim to  adequate

treatment "because the  existing consent decrees 'require[d]  the

provision of  adequate treatment for  [BTC] patients' at  a level

beyond that  required by any  applicable constitutional  minima."

Langton,  928 F.2d at 1217.   And so it  is here.  Thus, although
       

Miller attempted to  assert a constitutional  right to  treatment

based on professional judgment under Youngberg v. Romeo, 457 U.S.
                                                       

307, 323 (1982), and  such cases as Ohlinger v.  Watson, 652 F.2d
                                                       

775, 777 (9th Cir. 1981) (holding that sex offenders committed to

indeterminate  life  sentences  have  a  constitutional right  to

treatment providing a realistic opportunity for cure or  improve-

ment), and  Cameron v. Tomes, 783  F. Supp. 1511, 1516  (D. Mass.
                            

1992) (holding  that  involuntarily  committed  SDP  at  BTC  has

constitutional  right to  treatment based  on professional  judg-

                                13

ment), modified,  slip op. 92-1343 (1st Cir.,  March 31, 1993),13
               

we  think  the district  court did  not  abuse its  discretion by

dismissing Miller's postjudgment motion to amend the pleadings so

late in the day.

                               III

          Miller further argues that the district court erred  in

holding that Langton bars his inadequate treatment claim  because
                    

he was not a party to Langton.  Nevertheless, and notwithstanding
                             

the dispute over whether Miller was voluntarily or  involuntarily

committed to the BTC, see supra note 3 &amp; accompanying text, it is
                               

clear that  he is among  the plaintiff  class in  Langton/Bruder,
                                                                

which is defined as "all individuals  who are presently or in the

future will be civilly  committed to the Treatment Center."   See
                                                                 

Bruder, slip  op. at  p. 43.14   Moreover,  both  Miller and  the
      

Bruder plaintiffs charged that the treatment  received at the BTC
      

was not constitutionally adequate.  

          Finally, even if Miller's  rights under the  applicable

consent decree  were violated, the appropriate  vehicle for their

enforcement  is not  a  section 1983  action  but an  action  for

contempt (like the one  filed by the Bruder plaintiffs  two years
                                           

after Miller commenced this action).  See, e.g., DeGidio v. Pung,
                                                                

                    

     13We decided  that Cameron's  claim was  a challenge to  the
conditions of  confinement.  See  slip op. at  pp. 12-13.   Thus,
                                
whether SDPs have a constitutional right to  treatment remains an
open question in this circuit.  See slip op. at  11-12; Knight v.
                                                              
Mills, 836 F.2d 659, 668 &amp; n.13 (1st Cir. 1987).
     

     14Miller's motion to intervene in Bruder sought intervention
                                             
as  a named class representative.  Its denial imported no finding
that  Miller  was not  adequately  represented  by the  plaintiff
class.

                                14

920 F.2d  525, 534 (8th Cir.  1990); Green v.  McKaskle, 788 F.2d
                                                       

1116, 1123 (5th Cir. 1986).  Cf. Welch v. Spangler, 939 F.2d 570,
                                                  

572 (8th Cir.  1991).  Any  other rule would  tend to  discourage

governmental authorities  from entering  into consent decrees  in

public law litigation, encourage the splintering of civil  rights

claims on an individual  basis, and promote disrespect for  judi-

cial decrees  duly entered following careful  proactive review of

the often  complex mix of individual  and institutional consider-

ations involved in such litigation.

                                IV

          Miller next  contends that the district  court erred in

holding  that he lacked standing to assert a constitutional right

of access to the courts on the part of certain other BTC patients

whom he assisted.  Before the district court, Miller alleged that

he had been appointed as the legal research assistant for minimum

privilege  and segregation patients on June  21, 1989 (five years

after he  commenced this action).   His responsibilities included

instructing such  patients on the procedure  for requesting legal

materials, assisting  their preparation of  legal pleadings,  and

obtaining  and returning books for  patients.  On  March 31, 1991

(approximately two weeks before trial), the Department of Correc-

tions  ("DOC")  imposed   certain  restrictions  which  allegedly

prevented  Miller from  performing his  duties as  legal research

assistant.  As of that date, Miller was prohibited from obtaining

books from  the shelves of the law library.   As a result, he was

no longer able to Shepardize cases  nor to procure cases cited in

texts.   In addition, Miller  had to request books  in advance so

that  some other person could retrieve them.  Miller alleged that

                                15

books  requested by him often  were not produced  when Miller and

the patients arrived at the library.  Other limitations allegedly

impinged on Miller's ability to communicate with the  patients he

was supposed  to assist.15   Miller  alleged that these  restric-

tions foreclosed  meaningful legal  research assistance  to other

patients  and that he was  the only legal  assistance afforded to

BTC.

          The district  court rejected the right  of access claim

because  Miller had not pleaded a third party claim and failed to

show that the patients he had  been assisting had no other avenue

of relief.   We affirm the dismissal of the third party claim; it

came too late.  Cf. Andrews v. Bechtel Power Corp., 780 F.2d 124,
                                                  

139 (1st Cir.  1985) (upholding  denial of motion  to amend  com-

plaint after  commencement of  trial,  where complaint  had  been

filed seven years earlier).

          Affirmed; no costs.
                            

                    

     15For example, Miller was required to sit at one table while
the patients he assisted  sat at separate tables in  the library.
Miller also claimed that often he was not notified by corrections
officers that his assistance had been requested by patients.

                                16
