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USCA1 Opinion

August 10, 1992


[NOT FOR PUBLICATION]

___________________
No. 92-1025

KEVIN D. HICKS,
Plaintiff, Appellant,
v.
JAMES EMERSON, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
__________________________
___________________
Before
Breyer, Chief Judge,
___________

Campbell, Senior Circuit Judge,


____________________
and Selya, Circuit Judge.
_____________
___________________

Kevin D. Hicks on brief pro se.


______________
Nancy Ankers White, Special Assistant Attorney General, and
___________________
David J. Rentsch, Department
of Correction, on brief for
__________________
appellees.
__________________
__________________

Per Curiam.
__________
Massachusetts
from a

Department

against
of

judgment dismissing
various

Correction

plaintiff's right

to be free

under the Eighth Amendment.


The complaint
at M.C.I.
Gannon),

an inmate at

the

Correctional Institution (M.C.I.) Norfolk, appeals

district court

complaint

Plaintiff Kevin Hicks,

officers
(DOC)

for

his 42

of

the

alleged

from cruel and

U.S.C.

1983

Massachusetts
violations

of

unusual punishment

We affirm.

named as defendants four corrections officers

Norfolk (James Emerson, Paul Hanna, Brian Dawe, Steven


three supervisory

officials at

that facility

(former

Superintendent Norman Butler, Superintendent Arthur Latessa, Unit

Manager Shawn Smith), and three additional DOC officials


Commissioner Michael
Jones,

Associate

complaint alleged

Fair, Commissioner George

Commissioner

of

Health

(former

Vose, and

Frank

Services).1

that plaintiff suffered from

The

asthma and other

health problems as a result of the amputation of his leg and part


of his

hip.

In

a nutshell,

defendants disregarded

plaintiff

complained

that

the

his medical needs by (1) refusing to give

him utensils to eat dinner in his cell after he returned from the
infirmary

on May

remain on top
during

5, 1989,

of his bed

the daytime,

(2) refusing
and under a

and (3)

to allow

plaintiff to

blanket when he was

transporting plaintiff

cold

to medical

____________________

1Also named as a defendant was Dr. Ronald Goldberg, a


private physician. Plaintiff stipulated to the dismissal of his
complaint against Dr. Goldberg. Defendants Fair and Butler were
dismissed for lack of service of the complaint.
Plaintiff does
not challenge these rulings on appeal.
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appointments in painfully
unnecessary in

tight waist chains

view of plaintiff's condition.

damages and injunctive

which were

wholly

Plaintiff sought

relief in the form of orders allowing him

to receive eating
and barring

the

utensils and use


defendants

from

blankets whenever
restraining

him

necessary
with

waist

chains.
The

government

alternative, for
defendants

filed

summary

motion

to

judgment on

who had been served with

dismiss

behalf

or,

of the

the complaint.

in

the

nine

DOC

This motion

was supported by an affidavit from Superintendent Latessa,


averred, inter alia,
_____ ____

that DOC

regulations prohibited

which

plaintiff

from being under the covers during the daytime (8:00 a.m. to 3:45
p.m.), although he could make his bed and lay
blanket, covered with an item of clothing.
made

if plaintiff procured a doctor's

need to remain
letters

in bed.

down on top of his

An exception could be

order verifying a medical

Although plaintiff had received numerous

advising him of this rule,

he did not secure a doctor's

note that allowed him to remain in bed.


Plaintiff did
motion.
March 28,
that

As

not file

a result, the
1990.

an

13,

1990.

Plaintiff filed

This

the

defendants'

district court allowed the

did not raise any additional

on June

opposition to

a motion

motion on

for reconsideration

facts. This motion was denied

appeal followed

the

entry of

final

judgment dismissing the complaint as to all defendants.


On appeal, plaintiff
had

argues that he was

to file an opposition to

not aware that

he

the defendants' motion inasmuch as


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he was

waiting for

counsel.
court

a ruling on

his motion

for appointment

This does not excuse plaintiff's omission.

may insist upon compliance with

of

"A district

its local rules."

United
______

States
______

v. Proceeds of Sale of 3,888 Pounds of Scallops, 857 F.2d


____________________________________________

46, 49

(1st Cir. 1988).

Local

Rule 17(a)(2)

District Court

of

At the time of
the Local

for the District of

the court's dismissal,

Rules of

the

United States

Massachusetts required that,

"[a] party opposing a motion, ... shall file an opposition to the


motion within fourteen days
another

after service of the motion,

period is fixed by rule or

document

memorandum

supporting

of

authorities, why

unless

statute, ... and in the same

reasons,

including

the motion

citation

should not

be granted.

Affidavits and other documents setting forth or evidencing


on

which

the

opposition."
Rule 18

opposition is

based

shall

with

the

moving party's statement

of material facts will be deemed admitted

opposing

filed

facts

With respect to motions for summary judgment, Local

specifically provided that the

the statement

be

of

of material facts

party.

As

unless controverted by

that the

plaintiff

filed

rule required of

the

no

the

opposition,

defendants' affidavit stands uncontradicted.


On the
entitled

present record, we

to relief.

conclude that plaintiff

The one-time

was not

denial of eating utensils was

not a significant deprivation violative of the Eighth


particularly where plaintiff
his meal.
remain

As

admitted that he

Amendment,

chose to

discard

for plaintiff's complaints about being unable

under his

blanket(s), both

the exhibits

to

to plaintiff's

-4-

complaint

and Superintendent

Latessa's affidavit

indicate that

the defendants repeatedly invited plaintiff to obtain a


order

verifying his

argues that the


which

they

need to

defendants will not

disagree,

assertion, and

he

he does not

writing that plaintiff


under blankets during
the

issued
chains.

Jones

alleges

is

Finally,
an August

which indicates

which allowed
This plainly

no

claim that

the day.

for the

use

contradicts

While

plaintiff

accept medical orders


facts

that a

to

support

with

this

any doctor indicated

should be permitted to

plaintiff's complaint

defendant

remain covered.

doctor's

in

remain in bed

or

among the exhibits

to

10,

1988 letter

new medical

of loosely

from

order had

applied security

plaintiff's claim

that

defendants were deliberately indifferent to his medical needs.


Judgment affirmed.
__________________

the

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