(Not for Publication in West's Federal Reporter)

          United States Court of Appeals
                         For the First Circuit

No. 10-1079

                             EUGENE F. RECTOR,

                          Plaintiff, Appellant,

                                       v.

                  DEPARTMENT OF CORRECTION, ET AL.,

                         Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Nancy Gertner, U.S. District Judge]


                                    Before

                      Lipez, Howard and Thompson,
                            Circuit Judges.



     Eugene F. Rector on brief pro se.
     Kristin J. Cole, Department of Correction and Nancy Ankers
White, Special Assistant Attorney General, on brief for
appellees.



                               July 20, 2010
           Per Curiam.   Eugene F. Rector has appealed the district

court's dismissal of his civil action, filed pursuant to 42 U.S.C.

§ 1983, for failure to state a claim upon which relief may be

granted.   Rector, civilly committed as a sexually dangerous person

to   the    Massachusetts    Treatment     Center   in   Bridgewater,

Massachusetts, alleged that the double-bunking in that facility

violated his Fourteenth Amendment right to Due Process.     We review

a district court's sua sponte dismissal, de novo.           Gonzalez-

Gonzalez v. United States, 

, 37 (1st Cir. 2001).      Upon

de novo review, we affirm.

           On appeal, Rector contends that the district court erred

in dismissing his complaint without giving him an opportunity to

amend that complaint.    However, Rector had notice of the defect in

his complaint.   His 2009 federal complaint was identical to his

prior 2006 federal complaint. And, in 2006, the district court had

alerted Rector to the defect in that complaint, i.e., that he had

not alleged that he had been harmed or was in danger of being

harmed because of double-bunking.      Moreover, in 2006, the district

court had advised Rector on how to remedy that defect, i.e., to

include "truthful allegations concerning the manner in which the

double-bunking is harmful to him personally" and had specifically

given Rector the opportunity to file an amended complaint.     Rector

declined that opportunity.    Instead, Rector first filed the same

insufficient complaint in 2007 in state court, where he lost (for


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the same reason), and then filed the identical defective complaint

once more in 2009 in federal court.          Clearly, Rector did not lack

notice of the defect of his complaint and the district court did

not err in concluding that, Rector having filed the same defective

complaint twice more after such notice, it need not give Rector

another opportunity to amend.

            As a second argument, Rector contends that he does not

need to demonstrate any actual harm and cites to cases which, for

example, hold that prisons have an obligation to protect inmates

from   threats   from   fellow   prisoners    or   "sufficiently    imminent

dangers."   This avails Rector nothing since he specifically stated

that he was not being threatened or intimidated.         He also cites to

(1) a 1987 case from the District of Idaho that directed that

single cells were constitutionally required for inmates housed in

a unit for psychological treatment in a particular prison due to

treatment needs and personal safety and (2) a 1983 case from the

District    of   Wisconsin   that   held   that,    although   it   was    not

unconstitutional     in   general    to    double-cell    prisoners       with

psychological problems, it was cruel and unusual punishment to

force a non-suicidal inmate to share a cell with a suicidal inmate.

Rector, however, presents nothing to suggest that either his

treatment needs or his personal safety requires a single cell, or

that he is being coerced to share a cell with a suicidal inmate.

Moreover, whatever the current validity of these directives, these


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cases are not precedent for us and predate our decision in Cote v.

Murphy,   

,   152    Fed.   Appx.   6   (1st    Cir.   2005)

(unpublished per curiam).        Rector makes no persuasive argument

suggesting that Cote is no longer good law.

           Rector failed to address, in his main brief, the district

court's alternative grounds for dismissal, i.e., that the action is

barred by the Rooker-Feldman doctrine, as well as res judicata. He

discusses these grounds for the first time only in his reply brief.

For that reason, Rector's contentions are waived.                 Sandstrom v.

ChemLawn Corp., 

, 86 (1st Cir. 1990) (reciting that

arguments not made in the opening brief are waived).             In any event,

Rector's arguments are meritless.

           The   district   court      order   of   dismissal,     entered   on

December 1, 2009, is affirmed.




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