Johnson v. Maloney ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 96-2229

       No. 97-1025


                               WALTER D. JOHNSON, JR.,


                                Plaintiff, Appellant,


                                         v.


                              MICHAEL MALONEY, ET AL.,


                               Defendants, Appellees.



                                ____________________


                    APPEALS FROM THE UNITED STATES DISTRICT COURT


                          FOR THE DISTRICT OF MASSACHUSETTS


                   [Hon. Douglas P. Woodlock, U.S. District Judge]


                                ____________________


                                       Before


                               Torruella, Chief Judge,

                          Stahl and Lynch, Circuit Judges.


                                ____________________


            Walter D. Johnson, Jr. on brief pro se.

            Nancy
Ankers
White,
Special Assistant Attorney General, and William

       D. Saltzman, Department of Correction, on brief for appellees.



                                ____________________


                                    June 5, 1997

                                ____________________







                 Per  Curiam.    While  incarcerated  at  MCI-Norfolk  in


            Massachusetts,  plaintiff  Walter  Johnson  suffered   severe


            injuries upon being stabbed by a fellow inmate.  He filed the


            instant  S 1983  action  against  various  prison  officials,


            alleging,  inter alia,  that  they had  exhibited  deliberate


            indifference to  his safety and  health in  violation of  the


            Eighth Amendment.  The district court, after first dismissing


            the
action
for
want
of
prosecution, then declined to vacate the


            order
of
dismissal
on
the independent ground that plaintiff had


            failed  to state  a claim.   See  Fed. R.  Civ. P.  12(b)(6).


            Plaintiff has appealed from both of these rulings.  We affirm


            on the latter ground alone.


                 We acknowledge  the seriousness of  the assault and  the


            severity of plaintiff's  injuries; we find no cause here,  on


            legal grounds, for extended discussion.  It is undisputed, of


            course, that "[p]rison  officials have a duty ... to  protect


            prisoners from  violence at  the hands  of other  prisoners."


            Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting  Cortes-


            Quinones v. Jimenez-Nettleship, 842  F.2d 556, 558 (1st  Cir.


            1988)
(original citation omitted)).  It is likewise clear that


            prison authorities  have a  responsibility to  attend to  the


            "serious medical needs of prisoners."  Estelle v. Gamble, 429


            U.S.
97,
104
(1976).
Yet the Eighth Amendment is violated only


            when  a   prison   official   has   manifested   "'deliberate


            indifference' to a  substantial risk of  serious harm" to  an




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            inmate's safety  or health.   Farmer, 511 U.S.  at 828.   And


            deliberate indifference  requires  a showing  of  "subjective


            recklessness," id. at 839--i.e., a showing that "the official


            knows of and disregards an excessive risk to inmate health or


            safety," id. at 837. 


                 Nothing in plaintiff's amended complaint, even with  all


            reasonable inferences drawn in his favor, would permit such a


            finding.  With respect to the stabbing incident, his  factual


            allegations
provide
no
basis for concluding that the attack was


            in  any  way  foreseeable   or  that  the  named   defendants


            (supervisory
officials all) had any inkling that such an event


            might occur.  Nor, assuming arguendo that the Farmer  inquiry


            does not  foreclose the matter,  has plaintiff proffered  any


            grounds for imposing supervisory liability on defendants  for


            the
behavior
of a subordinate.  See, e.g., Seekamp v. Michaud,


            109
F.3d
802, 808 (1st Cir. 1997).  Similarly, with respect to


            his   medical  treatment,   plaintiff  has   pointed  to   no


            circumstances  that would  permit  a  finding  of  deliberate


            indifference on the part of defendants.


                 For these  reasons, it  "appears beyond  doubt that  the


            plaintiff can prove no set  of facts in support of his  claim


            which
would
entitle
him
to relief."  Conley v. Gibson, 355 U.S.


            41, 45-46  (1957)  (footnote omitted).   We  have  considered


            plaintiff's
remaining claims and find them equally unavailing.






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            We therefore agree with the district court that dismissal for


            failure to state a claim was warranted.


                 Affirmed.
















































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