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CHARLES N. WATSON,
Plaintiff, Appellant,
v.
C. MARK CATON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
___________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
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___________________
__________________
__________________
Per Curiam.
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The appellant,
Charles N. Watson,
was an
a complaint in
federal court
of
prisons, had
Correction
or
Charleston
rights, in
violation of 42 U.S.C.
or
the
Downeast
1983.
at issue
in this appeal.1
In
his first
three of
count,
to cause problems.
After
he entered
The
and
prison
officials
would not
doctors.
According
to
Mitchie, a
nurse
the
refused
occurred
to
at
the
he
went
to
him
complaint,
Downeast
examine Watson's
before
allow
hand
because
and
go to
defendant
Correctional
prison,
to
Peggie
Facility,
the injury
she
the
said
had
that
of
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1The third count of the complaint related to dental
treatment of a broken cap on a front tooth. Watson did not
challenge the dismissal of this count in his appellate brief,
and therefore has waived the issue.
Pignons S.A. de
_________________
Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983)
_________
_____________
(issues not presented in appellant's opening brief are
waived).
that hand."
and
he continued to
suffer
count of
that Watson
prison.
He saw a nurse,
told
back
"would be
okay."
Charleston prison
injury;
but
Not
until
he transferred
even
then,
Watson
to
the
complained,
the
doctors
the
thought
physical
therapy
Eventually, the
that
he
was
necessary.
Watson with
Watson
contends,
a "non-allowable
the
Department
situations.
Nor did
property sheet,"
of
Correction
A corrections officer
destroyed
the tapes and disks, but the prison did not notify
Watson of
either the
delivery or
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11
addition to
district court
Acting
on
his
complaint, Watson
an application to proceed
this request
before
filed with
the
in forma pauperis.
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any of
the
defendants had
28 U.S.C.
its reasons.
motion for
1915(d) with
After the
reconsideration
district court
and motion
opinion
denied his
to vacate
judgment,
court may
other things,
"frivolous."
claim is
"frivolous"
meritless
legal
or
makes
"clearly
dismissal for
(1992),
standards
theory,"
taking
applicable
into
to
account
complaints
the
liberal
filed
by
pleading
pro
se
________
plaintiffs.
Watson's first two
counts alleged
that the
defendants
constitutional
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to
proper course of a
conclude that
level of
prisoner's medical
simple medical
malpractice
punishment.
and doctors
may violate
exhibit "deliberate
needs."
Estelle
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case would be a
indifference
v. Gamble,
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429 U.S. at
to
DesRosiers
__________
However,
the Eighth
The
prison
Amendment if
serious
106.
See,
____
medical
obvious
in order
may also
Wilson
______
v. Seiter, 111 S. Ct. 2321, 2326 (1992), where
______
the action is
recklessness,
but
appreciably
knowledge
"not
in
stricter
of
the
tort
law
criminal-law
impending
harm,
sense
in
sense, requiring
easily
the
actual
preventable."
an injury, which
ground that the state was not responsible for injuries caused
by
events that
occurred before
Watson entered
prison.
on such
the
a ground
allegations
may
"fantastic or delusional."
could hardly
prove
be justified
untrue,
Estelle v.
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they
are
and,
not
at
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328.
We
conclude
that
Watson's
first
count
was
not
frivolous,
although it
may--based on
further information--
second
count
a different question.
of treatment
constitutional
the
to
his
back
On its face,
that does
violation:
physical therapy
not rise to
injury
proper
the level
of a
wanted
relating
no treatment was
to be ordered
needed; he later
by the
doctors, who
append
labels
like
"wanton"
or
"deliberate
judgment was
absurd or
that improper
reasons were
negligence.
claim
situations
The difference
and making
frivolous
a question of degree.
Ct. at
simple
claim
-6-6-
some
negligence
is in
to
2326, in concluding
facts suggesting
since
between failing
is
not
count
negligence and
constitutional
violation, the
1915(d).2
Watson's
refused to
fourth
count
alleged that
prison
officials
well
the items
to notify
Watson that
had
been delivered.
them.
destruction of
of notice and
he had
officials may
Const., art.
circumstances.
(1976).
caused by
The
XIV.
The
Mathews
_______
v.
process
due depends
Eldridge, 424
________
U.S.
on
the
319,
335
between deprivations
and deprivations
to established
state
procedure."
(1984).
For the
See Hudson
___ ______
former,
v. Palmer, 468
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the state
is
not automatically
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2 Conceivably, in the remand in connection with count
one, Watson could move for leave to replead count two to
allege facts amounting to a constitutional violation.
If he
did so, we assume the court would give this motion due
consideration. See Denton, 112 S. Ct. at 1734.
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liable;3
state
constitutional standards.
In
this
instance, Watson
does
not
suggest that
the
complaint itself
Watson involved
property
asserts
that the
lack
of notice
to
issues . . . . "
an established
cited,
state procedure.
Under
the precedents
such a
claim has no
legal basis
in a
We affirm
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the judgment
below in dismissing
section 1983
case.
and four
of the
vacated
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and the
complaint.
case
As
to count
remanded for
counts two
one, judgment
is
further proceedings
in
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3The officer allegedly responsible for the destruction
is apparently not a defendant in this case.
Watson does not
allege that the state refused to provide a post-deprivation
remedy for the alleged wrong by the officer.
See Hudson v.
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Palmer, 468 U.S. at 533.
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