
USCA1 Opinion

	




          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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -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-                                         -8-
