Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.nazzaro Scarpa, Plaintiff, Appellant, v. Larry E. Dubois, et al., Defendants, Appellees, 25 F.3d 1037 (1st Cir. 1994)

On April 26, 1993, while a prisoner in 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 Sec. 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, 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, 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 U.S. 294, 298 (1991); DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir. 1991); Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987). In other words, Scarpa must show a deliberate indifference to a serious medical need. Wilson v. Seiter, 501 U.S. at 303; see also Hudson v. McMillian, 112 S. Ct. 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 

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 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 (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, 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- law sense, requiring actual knowledge of impending harm, easily preventable.

DesRosiers v. Moran, 949 F.2d at 19 (citations omitted) (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-ray suggests to us that the prescribing doctor did not consider the need for an x-ray to be a grave one. Cf. Sires v. Berman, 834 F.2d at 13 ("Where the dispute concerns not 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, 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.").

For the foregoing reasons, we affirm the judgment in favor of the defendants.

Affirmed.