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Jones v. Commissioner, NH, 97-1288 (1997)

Court: Court of Appeals for the First Circuit Number: 97-1288 Visitors: 7
Filed: Nov. 21, 1997
Latest Update: Mar. 02, 2020
Summary: Defendants, Appellees.William H. Jones, Jr. on brief pro se.the district court.States Dep't of Agric., 102 F.3d 1273, 1283 (1st Cir.of review).summary judgment in favor of Cunningham.[Jones's] non-receipt of medical meals.
USCA1 Opinion












[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________


No. 97-1288

WILLIAM H. JONES, JR.,

Plaintiff, Appellant,

v.

COMMISSIONER, NH DEPARTMENT OF CORRECTIONS, ET AL.,

Defendants, Appellees.

____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge] ___________________

____________________

Before

Selya, Boudin and Lynch,
Circuit Judges. ______________

____________________

William H. Jones, Jr. on brief pro se. _____________________
Philip T. McLaughlin, Attorney General, Martin P. Honigberg, ______________________ _____________________
Senior Assistant Attorney General, and Jennifer Brooks Gavilondo, __________________________
Attorney, Civil Bureau, New Hampshire Attorney General's Office, on
brief for appellees.


____________________

November 19, 1997
____________________
















Per Curiam. Plaintiff-appellant William H. Jones, __________

Jr. appeals following a district court judgment in favor of

various prison and halfway house officials on his claims

brought pursuant to 42 U.S.C. 1983. We affirm.

Jones complains that the district court erred in

setting aside an entry of default against Corporal Frank

Cassidy. We review a district court decision to set aside a

default solely for abuse of discretion. Leshore v. County of _______ _________

Worcester, 945 F.2d 471, 472 (1st Cir. 1991). Having _________

reviewed the record, we find no abuse of discretion in the

instant case. We add that although Jones lists the grant of

summary judgment in favor of Cassidy as an issue on appeal,

he nowhere makes a developed argument that summary judgment

was in error. Under the circumstances, we deem the issue

waived. See King v. Town of Hanover, 116 F.3d 965, 970 (1st ___ ____ ________________

Cir. 1997). We add that even if the issue were not waived,

summary judgment would be proper for the reasons stated by

the district court.

Jones also contends that the district court erred

in granting summary judgment in favor of Officer Darren

Basoukas Corporal Stephen Nolan, and Warden Michael

Cunningham. Having reviewed the grant of summary judgment de __

novo, we find no reversible error. See Dubois v. United ____ ___ ______ ______

States Dep't of Agric., 102 F.3d 1273, 1283 (1st Cir. 1996), ______________________





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cert. denied, 117 S. Ct. 2510 (1997) (setting forth standard _____________

of review).

The claims against Basoukas and Nolan stemmed from

Jones's allegations that he was denied insulin and a

hypodermic needle on May 24, 1994 when he signed out of the

halfway house to go to work. Both Basoukas and Nolan

submitted affidavits denying any personal involvement in the

alleged incident. Jones failed to submit any countervailing

evidence on this point, and, contrary to his suggestion, the

records submitted by defendants do not establish Nolan's

presence at the "signing out." His tardy unsworn allegation

to this effect, made in a pretrial statement, was

insufficient to defeat summary judgment. See DeNovellis v. ___ __________

Shalala, 124 F.3d 298, 305-06 (1st Cir. 1997) ("The very _______

mission of the summary judgment procedure is to pierce the

pleadings and to assess the proof in order to see whether

there is a genuine need for trial." (quoting Fed. R. Civ. P.

56(e) advisory committee's note to 1963 amendment)). F o r

similar reasons, we reject Jones's challenge to the grant of

summary judgment in favor of Cunningham. The claim against

Cunningham at issue on appeal stemmed from the alleged denial

of special diet meals at the halfway house. We agree with

the district court that Jones failed to show "[a] link

between defendant Cunningham's alleged indifference and

[Jones's] non-receipt of medical meals." Jones introduced no



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evidence, by way of affidavit or otherwise, that he ever made

any member of Calumet House aware that his medical condition

required a special diet. His tardy, unsworn allegations to

the effect that staff knew he was on a special diet, made for

the first time in his pretrial statement, are not grounds for

reversal.

Affirmed. _________







































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Source:  CourtListener

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