USCA1 Opinion

March 29, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1725
BRUCE T. RAINERI,
Plaintiff, Appellant,
v.
HILLSBOROUGH COUNTY HOUSE OF CORRECTIONS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
__________________________
____________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
____________________
Bruce T. Raineri on brief pro se.

________________
Carolyn M. Kirby, Assistant County Attorney, on brief
__________________
appellee Hillsborough County House of Corrections.
Wilbur A. Glahn, III, McLane, Graf, Raulerson & Middlet
_______________________
_____________________________________
Professional Association, Duane, Morris & Heckscher, Allen C. Warsh
________________________ _________________________ ______________
and Mary P. Patterson on brief for appellee Pennsylvania Institutio
_________________
Health Services, Inc.
Amy L. Fracassini, Robert J. Lanney, and Sulloway & Hollis
__________________ _________________
__________________
brief for appellee Barbara Condon.
____________________
____________________

Per Curiam.
___________
from

the dismissal

1983.

Appellant

of his

Bruce T.

complaint based

Raineri appeals
on 42

U.C.S.

He asserted that health providers at the New Hampshire

jail where he was

by providing

incarcerated violated the Eighth Amendment

constitutionally deficient medical care.

After

carefully reviewing the record and the briefs of the parties,

we

agree with the reasoning

in its

Order, dated

June 24,

of the district court contained

1993.

We add the

following

comments concerning the grant of summary judgment to appellee

Barbara

Condon and

the dismissal

Hillsborough

County House of

its

provider,

medical

of the

complaint against

Corrections (Hillsborough) and

Pennsylvania

Institutional

Health

Services, Inc. (PIHS).

To prevail

on a

motion for summary

judgment, the

moving party must "show that there is no genuine issue

any material fact

and that the moving party is entitled to a

judgment as a matter
the

of law."

movant has met this

Fed. R. Civ. P.

standard, the burden

non-moving party to establish the existence

issue that

is

United States,
_____________

as to

both `genuine'
924 F.2d 355,

and

56(c).

Once

shifts to the

of "at least one

`material.'"

357 (1st Cir.

Kelly
_____

v.

1991) (citation

omitted); Fed. R. Civ. P. 56(e).

In support
Condon submitted
records.

She

of

her motion

her own affidavit

argues,

and

the

chronicle each contact appellant

for

summary

judgment,

and appellant's
dispensary

cards

medical
(which

had with the medical staff)

show,
with

that the first

the

timing

September 28 or
instituted

time appellant brought

of his

morning

29, 1992.

the change

dose

of

About three

in the

time at

up the problem
insulin was

days later,

on

Condon

which appellant

ate

breakfast to conform to his request that the insulin be given

within one-half hour of
dispensary

cards

September

his morning meal.

reveal

28, 1992,

that

from

insulin was

The rest of

June

23,

given to

1992

the
until

appellant daily,

apparently without complaint.

In
appellant

opposition

did

not

to

file

the

any

summary

judgment

affidavits

or

motion,

other

record

evidence
However, his complaint is "verified" in the sense that it was
made

under

Sheinkopf
_________

"the

pains

and

v. Stone, 927 F.2d

_____

penalties

1259 (1st Cir.

that, under

certain circumstances, a

suffice for

Rule

56 purposes.

factual statements in the

be deemed

to come

tantamount

to

consideration."
disregarded.

of

perjury."

1991), we held

verified complaint can

Id. at
___

1262.

complaint, to the extent

within appellant's knowledge,

counter-affidavit, and

Id. at
___

1262-63.

hence,

Thus,

the

they can
are "fully
worthy

of

Conclusory allegations are

Id. at 1262.
___

To state an Eighth Amendment claim, appellant

adduce

In

must

evidence concerning his medical treatment that raises

-3-

an

inference that

Condon's actions

infliction of unnecessary
U.S.

97, 104

(1976).

pain.

amounted to

the wanton

See Estelle v.
___ _______

Gamble, 429
______

"Deliberate indifference

to serious

medical needs of prisoners" satisfies this standard.

turn, this standard
of the prisoner to

has two components:

inmate.

1991).

do

indifference.

(1) the subjection

to "wanton disregard" of the

DesRosiers v. Moran, 949

__________
_____

Negligence

treatment

In

a "sufficiently serious deprivation"; and

(2) acts that amount

the

Id.
___

not

F.2d 15, 18 (1st Cir.

and inadvertence

in

state

claim

valid

rights of

providing
of

medical

deliberate

Estelle, 429 U.S. at 105-06.

_______

Appellant states

in Complaint A that he complained

frequently, if not daily, about the scheduling of his morning

dose

of

insulin.

Given

appellant's knowledge,
correct

in crediting

sufficient to

that

this allegation

we think that the

this assertion.

is

within

district court was

However,

defeat Condon's summary judgment

it

is not

motion.

The

record plainly

reveals that

basis, the insulin he

appellant received, on

required.

Moreover, he

a daily

was monitored

closely by the medical staff, often being seen more than once
per day.
Where a prisoner's dispute is not with the lack
help,

but

with

reluctant
Maloney,
_______

to

his

find

923 F.2d

course

of

deliberate
231, 234

treatment,

we

indifference.

(1st Cir.

have
Torraco
_______

1991).

of
been
v.

A treatment

-4-

regime can

amount to

effectively results

deliberate indifference only

in a

that is, treatment which

conscience.

Id.
___

complete denial of

where it

basic care

is so deficient that it

--

shocks the

This is not such a case.

Basically, appellant fails to assert any facts that

satisfy the

first component

of the

deliberate indifference

standard -- a "sufficiently

serious deprivation" as a result

of Condon's

that

actions.

All

verified complaint is that

appellant alleges

in

his

he suffered "irreparable harm" as

the result of the

of

conclusory

treatment he received.1

allegation that

is

to

at 1262.

In

factual scenario
consequences
essential

that

related

element

appropriate.

the absence

of

of an

his

case

adequately supported
specific

treatment
--

even

See Sheinkopf, 927

___ _________

appellant suffered
to Condon's

is the kind

be disregarded

though contained in a verified complaint.

F.2d

This

choices

summary

medical
-- an

judgment

is

See Celotex Corp. v. Catrett, 477 U.S. 317, 322

___ _____________
_______

(1986).
Finally,

there was

no error

in the

appellant's complaint against Hillsborough.

dismissal of

Appellant failed

____________________
1. Appellant asserts, for the first time on appeal, that due
to Condon's refusal to reschedule his insulin doses, he went
into a diabetic reaction on four occasions and suffered from
severe headaches -- a symptom of an impending diabetic
reaction.
Issues not presented below normally are deemed
waived. Knight v. Mills, 836 F.2d 659, 664 n.6 (1st Cir.
______
_____
1987).
We see no reason to depart from this rule in this
case.
-5-

to

allege that

Hillsborough
custom.

any

action

was taken

See
___

Monell
______

or

omission

pursuant
v.

the

part

of

official policy

or

New York City Dep't of Social

__________________________________

Services, 436 U.S. 658, 694 (1978).

________
be held liable solely on the
of Condon.

to an

on

As for PIHS,

basis that it was the

it may not
employer

See id. at 691.

___ ___
The judgment of the district court is affirmed.
________

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