David R. Ferranti v. John J. Moran, 618 F.2d 888, 1st Cir. (1980)
David R. Ferranti v. John J. Moran, 618 F.2d 888, 1st Cir. (1980)
2d 888
Counsel for appellant points to a pair of statements in the pleadings and argues
therefrom that appellant has alleged a complete denial of medical treatment.
Those statements, contained in appellant's affidavit, read: "Was seen severeal
(sic ) times for proper treatment of this said injurie (sic ) and was there fore (sic
) denied any treatment by Dr. B. Thomas and L. Vitto Prison (sic ) doctors.
Was also denied any medication and outside treatment by A (sic ) back M.D.
expert." If construed as suggested, these allegations would give us considerable
pause, for the denial of all treatment for a painful back injury would strongly
suggest an attitude of deliberate indifference. On the other hand, the numerous
complaints of improper medical treatment, see note 2 supra, together with the
ambiguity of the statements quoted above, militate against the construction
proffered by counsel. But because we are remanding this case on other
grounds, we see no reason to attempt to decipher this language; any grounds
which appellant might have for alleging a complete denial of medical care can
be incorporated, in a less ambiguous fashion, by an amended complaint prior to
any evidentiary hearing.
of this nature. We disagree. That the guard is alleged to have acted "viciously"
and "knowingly" suffices to support a conclusion not simply that he acted
negligently, an allegation rejected in Bonner as adequate grounds for a 1983
claim but rather that the guard's action was "either intentional or in reckless
disregard of (appellant's) constitutional rights." Id. at 567. Accordingly,
dismissal for failure to state a claim is inappropriate.
8
Appellant alleges that, in response to the filing of his first lawsuit, he was
denied a timely transfer to minimum security, denied permission to consult an
outside specialist for his back injuries, and harassed by the medical staff.4
These allegations are unaccompanied by any supporting factual recitations.
However, as we observed in McDonald, a retaliatory state of mind typically is
not susceptible to proof by direct evidence that can be averred in a complaint.
610 F.2d at 18. Here, an inference of retaliation is warranted from the
chronology of events recited, see id., and from the allegation that appellant's
first suit complains of prison conditions and is directed at prison officials.
Compare Leonardo v. Moran, 611 F.2d 397, 398 (1st Cir. 1979) (uncertainty as
to nature and object of inmate's prior lawsuit required dismissal of retaliation
claim). In addition, appellant alleges two acts of interference with his ability to
obtain legal assistance: a "tampering" with his legal mail and a prohibition, of
unknown duration, on his bringing personal papers to his consultations with
attorneys. Again, these are bald assertions, devoid of factual explication. But
whether they alone make out a cognizable claim is a matter we need not decide.
See App. 3 ("denied me any suffsient (sic ) med treatment"); id. at 4 ("denied
adquete (sic ) med. treatment"); id. ("not given correct med."); id. at 8 ("denied
prober (sic ) medical treatment"); id. at 15 ("dening (sic ) me my proper
medical treatment") (emphasis added)