USCA1 Opinion
June 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2118
NAZZARO SCARPA,
Plaintiff, Appellant,
v.
LARRY E. DUBOIS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Nazzaro Scarpa on brief pro se.
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Nancy Ankers White, Special Assistant Attorney General, and
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William D. Saltzman on brief for appellee Larry E. Dubois.
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Per Curiam. On April 26, 1993, while a prisoner in
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the Northeastern Correctional Center (NCC), in Concord,
Massachusetts, Nazzaro Scarpa filed, pro se, a lawsuit,
pursuant to 42 U.S.C. 1983, against Larry E. Dubois, the
Commissioner of Correction. Scarpa sued Dubois, not in his
official capacity, but in his individual capacity. Scarpa
alleged that (a) his cell contained exposed asbestos pipe
insulation; (b) Dubois knew that the insulation was ripped,
but did nothing to protect Scarpa from this exposure; (c)
asbestos was blown about when his window was open; (d) Scarpa
washed white powdery asbestos from his face every morning;
(e) he coughed and choked from the asbestos; and (f) he had
been seen by a doctor, who prescribed medication for an
inflamed throat and ordered a chest x-ray.1 Scarpa alleged
a violation of the Eighth Amendment (made applicable to the
states via the Fourteenth Amendment) and requested five
million dollars in damages.
Scarpa attached to his 1983 complaint a copy of a
letter, dated December 1992, from Howard S. Wensley, Director
of the Division of Community Sanitation of the state
Department of Public Health. The letter was not addressed to
defendant Dubois. Rather, it was addressed to Jake Gadsen,
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1. Scarpa attached to his complaint a label to a
prescription for tetracycline. The label references a Dr.
O'Dwyer. We presume, therefore, that Dr. O'Dwyer also
ordered the x-ray.
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Administrator of NCC. Defendant Dubois was "cc-ed" on the
letter, as were seven governmental officials and agencies.
The letter recited that NCC had been inspected on
November 24, 1992, in accordance with public health laws and
regulations. A 12-page "Report of Condition" was attached to
the letter. The report listed cells and other areas of NCC
where the inspectors had found public health code violations.
The violations listed in the report included, for example,
broken window crank mechanisms, cracked windows, lack of hot
water in a bathroom sink, a badly pitted floor, cigarette
butts on floor, and a chipped toilet bowl. It cited Cell 36
as having "asbestos pipe insulation ripped." The cover
letter from Director Wensley to Administrator Gadsen did not
discuss the existence of asbestos. It did state the
following:
The inspection revealed the need for
extensive window work. Problems include
broken window crank mechanisms, windows
that won't close tightly, and cracked
windows. It was also noted that there is
water leaking through the walls into the
electrical room.
In accordance with Section 451.404
of the previously mentioned regulations
please indicate next to each entry on the
enclosed Report of Condition, a plan of
correction. Said plan of correction
should detail the specific steps that
will be taken and the date by which
compliance should be expected.
In July 1993, Scarpa moved to add Clare Friel, a nurse
at NCC, and Scott McKenna, the Director of Treatment at NCC,
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as additional defendants. Simultaneously, Scarpa moved for
summary judgment. In addition to reiterating the allegations
of his complaint, Scarpa alleged that he submitted several
requests for medical treatment, but had "never been called"
by Friel and that she refused to send him for the ordered x-
ray. He further alleged that he had received a memorandum
from McKenna, which told him to submit a grievance. Scarpa
stated that he had done so, but that the grievance was
"disregarded" (not, we note, that he got no response) and he
was denied the requested treatment.
On August 10, 1993, the district court granted Scarpa's
motion to add Friel and McKenna as defendants. That same
day, the court denied Scarpa's request for summary judgment
and ordered judgment for the defendants, sua sponte.
Judgment entered on August 23 and Scarpa has appealed.
We affirm. To succeed on a claim alleging a violation
of the Eighth Amendment, Scarpa must show both an objective
component (was the deprivation sufficiently serious?) and a
subjective component (did the official/s act with a
sufficiently culpable state of mind?). Wilson v. Seiter, 501
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U.S. 294, 298 (1991); DesRosiers v. Moran, 949 F.2d 15, 18
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(1st Cir. 1991); Sires v. Berman, 834 F.2d 9, 12 (1st Cir.
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1987). In other words, Scarpa must show a deliberate
indifference to a serious medical need. Wilson v. Seiter,
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501 U.S. at 303; see also Hudson v. McMillian, 112 S. Ct.
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995, 1000 (1992).2
At best, Scarpa's complaint alleges only that Dubois
knew that the piping insulation in Cell 36 was ripped and
that he did nothing in response. Scarpa asks that we infer
Dubois' knowledge from the fact that Dubois apparently
received a copy of Director Wensley's letter and report
directed to Administrator Gadsen. That report noted the
ripped insulation in Cell 36 among a 12-page list of
violations. That particular violation was not singled out by
Director Wensley in any manner, as contrasted with the
highlighting of the need for extensive window repair and of
leaking water in the electrical room. Scarpa thus asks that
we infer Dubois' knowledge from a report, directed to
another's attention, in which the reference to ripped
asbestos pipe insulation in Cell 36 was subsumed among more
than 100 other notations of violations.3
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2. We construe Scarpa's complaint as complaining about
Dubois' failure to remove him from Cell 36 and Friel's and
McKenna's conduct in treating his medical condition. The
standard remains the same. "Whether one characterizes the
treatment received by [the prisoner] as inhumane conditions
of confinement, failure to attend to his medical needs, or a
combination of both, it is appropriate to apply the
'deliberate indifference' standard articulated in Estelle [v.
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Gamble, 429 U.S. 97 (1976)]." Wilson v. Seiter, 501 U.S. at
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303 (citation omitted).
3. There is no evidence that exposed asbestos was rampant in
NCC. Cell 36 was the only cell in which ripped pipe
insulation was noted. Apart from it, the only other
reference to asbestos in Director Wensley's report was the
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Even if we were to grant that Dubois' knowledge of the
existence of ripped asbestos pipe insulation in Cell 36 is a
reasonable inference, the mere presence of asbestos does not
violate the Eighth Amendment. See, e.g., McNeil v. Lane, 16
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F.3d 123, 124-25 (7th Cir. 1994) (the mere presence of
asbestos-covered pipes does not constitute an Eighth
Amendment violation); Diaz v. Edgar, 831 F. Supp. 621, 624
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(N.D. Ill. 1993) (same). Scarpa failed to allege, much less
show, that Dubois knew of the dispersal of asbestos powder in
Cell 364 and Scarpa's medical complaints and, thus, that
Dubois acted (or his failure to act was joined) with a
sufficiently culpable state of mind. Scarpa, therefore,
failed to show deliberate indifference on Dubois' part.
In order to establish deliberate
indifference, the complainant must prove
that the defendants had a culpable state
of mind and intended wantonly to inflict
pain. The requisite state of mind may be
manifested by the officials' response to
an inmate's known needs or by denial,
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delay, or interference with prescribed
health care. While this mental state can
aptly be described as "recklessness," it
is recklessness not in the tort-law sense
but in the appreciably stricter criminal-
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notation that "friable asbestos pipe insulation" was found in
the "old boiler room" in the basement.
4. Even granting that Director Wensley's Report of Condition
sufficed to give notice to Dubois of ripped asbestos pipe
insulation in Cell 36, that report did not describe friable
asbestos in Cell 36. Contrast the report's description of
"friable asbestos pipe insulation" found in the old boiler
room in the basement.
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law sense, requiring actual knowledge of
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impending harm, easily preventable.
DesRosiers v. Moran, 949 F.2d at 19 (citations omitted)
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(emphasis added).
As for defendants Friel and McKenna, all that Scarpa's
allegations amount to is a claim that (a) Friel refused to
send him for an ordered x-ray; (b) McKenna instructed him to
file a grievance; and (c) Scarpa did, but he was unhappy with
the results of that process.5 Summary judgment in favor of
McKenna was clearly appropriate. McKenna informed Scarpa of
a procedure by which to get relief. It is perverse to
suggest that such conduct could amount to deliberate
indifference in violation of the Eighth Amendment.
And, in the circumstances of this case, even accepting
as true for purposes of summary judgment, the allegation as
to Friel's conduct, we do not believe that it meets the
threshold for deliberate indifference to a serious medical
need. Scarpa got some treatment, i.e, the prescribed
medication, for his medical complaints. Although he
apparently failed to receive additional ordered treatment, he
was directed to file, and did file, a grievance. That the
grievance process did not produce a renewed order for an x-
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5. As pointed out, supra, at 4, Scarpa does not say that he
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got no response to the grievance; rather, he claims that, in
response, he was denied the requested medical treatment. In
any event, he does not claim that McKenna disregarded the
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grievance.
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ray suggests to us that the prescribing doctor did not
consider the need for an x-ray to be a grave one. Cf. Sires
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v. Berman, 834 F.2d at 13 ("Where the dispute concerns not
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the absence of help, but the choice of a certain course of
treatment, or evidences mere disagreement with considered
medical judgment, we will not second guess the doctors.").
Moreover, the purpose of an x-ray is not preventative
treatment, but to show a presently-existing injury. Harm to
Scarpa exists from the failure to provide the x-ray during
his period of incarceration only if it resulted in a delayed
diagnosis of injury. We note that, subsequent to the filing
of this lawsuit, but prior to the filing of his appellate
brief, Scarpa was released from prison. He, therefore, has
had the opportunity to obtain an x-ray, if he continued to
believe his medical condition warranted one, and to point out
what, if anything, of significance was revealed by a later-
obtained x-ray that would have also shown up in an earlier x-
ray that was refused him. He has not done so. Indeed, his
brief on appeal does not address, with any specificity, the
alleged failure to provide an x-ray. That omission is
telling. See Ryan v. Royal Ins. Co. of Am., 916 F.2d 731,
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734 (1st Cir. 1990) ("It is settled in this circuit that
issues adverted to on appeal in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to
have been abandoned.").
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For the foregoing reasons, we affirm the judgment in
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favor of the defendants.
Affirmed.
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