124 Ga. App. 369 (1971)
183 S.E.2d 574
WELSH et al.
v.
FOWLER et al.
46124.
Court of Appeals of Georgia.
Argued April 5, 1971.
Decided September 7, 1971.
*370 Albert P. Feldman, for appellants.
Neely, Freeman & Hawkins, Albert H. Parnell, Long, Weinberg, Ansley & Wheeler, Meade Burns, for appellees.
BELL, Chief Judge.
1. Enumerations 1, 3, 5, 6 and 7 all concern the sustaining of objections to questions propounded to the plaintiff husband and another witness called in his behalf by his counsel. The trial court was not informed as to the expected answer or content of this excluded evidence. Refusing to allow questions on direct examination cannot be held to be error where no offer of proof was made which would disclose to the trial judge that the evidence excluded had materiality or relevance to issues in the case. Griggs v. Dodson, 223 Ga. 164, 171 (154 SE2d 252); Anderson v. Jarriel, 224 Ga. 495 (3) (162 SE2d 322); State Hwy. Dept. v. Willis, 106 Ga. App. 821 (1) (128 SE2d 351).
2. Enumeration 8 concerns the refusal of the trial judge to allow plaintiffs' witness who had testified and had been excused to be recalled. The reason for the exclusion was that after being excused this witness remained in the courtroom where he heard the testimony of other witnesses. Even if there was an abuse of discretion by the trial judge in not allowing the witness to be recalled, which we do not decide, applying the same principle as in Division 1 there can be no reversible error as no offer of proof was made as to the expected testimony of this witness.
*371 3. Enumeration 3 complains of the exclusion of plaintiff husband's testimony that after his fall, a carpenter present "went down into the ditch to see if there were any nails in it. He came back holding a small nail like this (indicating)." The court in sustaining an objection to this testimony instructed the jury to disregard what the carpenter "intended to do or what he did." While it is not clear from the judge's instruction that all this testimony, including the description of the nail which is the only part that appears to have any materiality, was excluded, no further offer of proof was made that the small nail came from the window frame in question. See Division 1.
4. The plaintiff husband testified that he was performing his work in a normal way at the time of his fall. Then he was asked if this was an accepted way to perform this work in his trade. Objection was made to this testimony and to the latter question which was sustained. There was no error. It is obvious that the purpose of this evidence was to show that by doing this work in his "normal" way he was therefore in the exercise of ordinary care. "An actor will not be allowed to show conformity with his own individual habits in order to prove due care." Dawkins v. Jones, 119 Ga. App. 796 (168 SE2d 881). As to the question as whether it was the "accepted" way to perform, no offer of proof was made so as to inform the court what answer was expected. Enumeration 4 has no merit.
5. Enumerations 9 and 10 complain of the failure of the court to charge two of plaintiff's requested instructions, both concerning fixing damages for pain and suffering; mutilation of the person; impaired capacity to pursue the ordinary application of life, and diminished capacity to labor. The substance of these requests was covered in the court's charge. Failure to give a request in the exact language is not error. Hardwick v. Price, 114 Ga. App. 817, 821 (152 SE2d 905).
6. The court instructed the jury that the plaintiff would not be entitled to recover damages of defendant Moore for any injuries caused by plaintiff's negligence; on comparative negligence; on the duty to apprehend and ascertain danger and the avoidance of the consequences of discovered danger; assumption of risk; forseeability of probable harm; and that if the husband's injuries resulted *372 from his own erroneous judgment, the doctrine of comparative negligence would not apply. These instructions were all warranted by the evidence and are not erroneous for any reason advanced. Enumerations 12, 13, 14, 15, 16 and 17 are without merit.
7. In preliminary instructions to the jury, the court advised that the pleadings "will be out with you for your inspection." The court also instructed with reference to the answer of the defendant Moore that those paragraphs of plaintiffs' complaint which have not been "admitted or denied" in defendants' answer will be treated as being denied and the plaintiffs must prove the truth of those allegations in his complaint. At the conclusion of the whole charge, the trial judge told the jury to retire to the jury room, but not to begin deliberations until the court "sends" the pleadings into the jury room which will be a signal to begin deliberations. Thereupon the court heard exceptions to the charge from counsel. Plaintiffs objected to pleadings "being sent out" to the jury. Counsel for the defendant Moore joined in this objection and the court ruled that it would not "send them out." Now plaintiffs enumerate as error the "sending" of the pleadings to the jury. While we know of no provision of statute or any case, and none has been cited, that prohibits furnishing the pleadings to the jury, there can be no error here as the transcript clearly shows that the jury was never given the pleadings and hence could not have examined them. Error is also enumerated as to the court's charge on the pleadings. As the pleadings were never placed in the jury's hands at plaintiffs' insistence, the court's charge on the consideration of the pleadings could not be the source of any harm to plaintiffs. Enumerations 11 and 18 have no merit.
8. Enumeration 19 complains of the charge "I further charge you that if you do not find the injuries of plaintiff to be permanent, you should entirely disregard the probable length of life of the plaintiff and you should not even take that into consideration." The instruction was excepted to on the ground that the evidence is uncontradicted that plaintiff husband's injuries were permanent and thus an instruction on temporary disability was not warranted. This charge followed a prior instruction on the permanency of plaintiff's injuries and consideration of his life expectancy in connection with damages for future pain and suffering. *373 In determining whether a plaintiff is entitled to recover for future pain and suffering, it is proper for the jury to ascertain, from the evidence, whether the injury which occasioned the suffering is permanent or merely temporary. Southern R. Co. v. Wright, 6 Ga. App. 172 (64 SE 703). The gist of the whole instruction correctly informed the jury that in order for it to award damages for future pain and suffering, it must find that the injury is permanent, nothing more and nothing less. Southern R. Co. v. Wright, supra. This does not amount to an instruction on temporary disability as claimed. The instruction was not erroneous.
9. Under any theory of liability for negligence, the evidence introduced with all reasonable deductions demanded a verdict for the defendants J. J. Fowler, Inc., and J. J. Fowler, individually. The grant of their motions for directed verdict, which is the subject of enumeration 20, was not error.
10. As to the plaintiff wife's claim for her loss of consortium, the jury returned a verdict in favor of the defendant. It is contended that since the husband recovered in his case, it was error to enter judgment on the jury's verdict in the wife's case. One spouse's right of action for the loss of the other's society is a derivative one, stemming from the right of the other. Hightower v. Landrum, 109 Ga. App. 510 (4) (136 SE2d 425). It does not follow that in separate suits by the husband and wife, but tried together, that if the husband recovers for injuries based on the negligence of a third person the wife is ipso facto entitled to recover damages in some amount for the loss of her husband's consortium. The question of damages is a matter left for determination by a jury. Code § 105-2015. The evidence as to her loss of her husband's society consisted of her own testimony and authorized the jury to find that the wife suffered no damage. It is the duty of the appellate court to construe the evidence most strongly in support of a verdict which has been approved by the trial judge. Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 496 (37 SE2d 393).
11. The verdict for the husband for $5,150 is not inadequate. The fact that the verdict may have approximated the amount of the special damages does not show bias, prejudice or gross mistake on the part of the jury. This is especially true in a situation where the rule of comparative negligence was applicable. Murray *374 v. Woods, 106 Ga. App. 267 (126 SE2d 828). Enumeration 22 is not meritorious.
Judgments affirmed. Pannell and Deen, JJ., concur.


     Case: 14-30797      Document: 00513072150         Page: 1    Date Filed: 06/09/2015

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                      No. 14-30797                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    June 9, 2015
                                                                           Lyle W. Cayce
              Plaintiff – Appellee,                                             Clerk

v.

LUTRICIA S. FEAST,

              Defendant – Appellant.

                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:13-CR-253-1

Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       Lutricia S. Feast pleaded guilty to one count of making and subscribing
a false individual income tax return and one count of aiding and assisting in
the preparation of a false and fraudulent individual income tax return, in
violation of 26 U.S.C. § 7206(1) and (2). As part of her sentence, the district
court imposed restitution, and Feast appeals the restitution award. Because

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-30797        Document: 00513072150        Page: 2    Date Filed: 06/09/2015

                                       No. 14-30797
the district court mistakenly relied on 18 U.S.C. § 3663A to impose restitution,
we vacate the district court’s restitution order and remand for resentencing.
                                              I.
      Feast, a professional income tax preparer, admitted that she failed to
report $830,986.50 of her income for tax years 2006 through 2009 and falsified
22 federal income tax returns for other taxpayers that resulted in the United
States being owed $96,915. However, Feast pleaded guilty to only two counts:
falsifying her return for the 2008 tax year by failing to report $280,170 in
additional income, and assisting in the preparation of an individual income tax
return for another taxpayer that contained a false deduction. The counts did
not incorporate by reference the allegations contained in the preamble of the
information. The factual basis attached to Feast’s plea agreement stated that
as a result of underreporting her income for tax years 2006 through 2009, Feast
owed the government $287,860. It also stated that Feast owed an additional
$94,681 as a result of falsifying tax returns for other taxpayers. In other words,
the factual basis set forth the amount that Feast owed the government due to
all of the conduct alleged in the information, including the conduct that was
alleged in the preamble.
      At rearraignment, Feast stipulated to the accuracy of the factual basis,
including its loss amounts, 1 and she pleaded guilty to both counts.                    The

      1   The exchange occurred as follows:

      THE COURT: The defendant admits that she underreported her income for
      numerous tax years. The defendant admits that from 2006 to 2009 she received
      $830,986.50 from [her tax-preparation business], none of which was declared
      on her income tax return. The defendant admits that she owes the United
      States $287,860. The defendant admits that on her 2008 tax return she falsely
      listed her income as $14,400 when in fact she earned an additional $280,170
      which she knowingly failed to report to the Internal Revenue Service. Are those
      statements true, Ms. Feast?

      THE DEFENDANT: Yes, sir.
                                              2
    Case: 14-30797      Document: 00513072150       Page: 3    Date Filed: 06/09/2015

                                   No. 14-30797
presentence investigation report (PSR) stated that, based on Feast’s stipulated
factual basis, Feast owed $382,541 in restitution pursuant to 18 U.S.C. §
3663A.    The district court adopted the PSR, imposed 24 months of
imprisonment and one year of supervised release on each count, to run
concurrently, and ordered Feast to pay $382,541 in restitution. The restitution
was to be paid “immediately,” with any of Feast’s tax refunds to be applied
toward restitution. If Feast did not pay restitution immediately, she was
ordered to satisfy any unpaid balance in monthly installments while she was
on supervised release. The judgment specifically provided that making these
monthly payments was a condition of supervised release, as was the
application of Feast’s tax refunds toward restitution. Feast did not raise any
objection to the restitution award in the district court, and she timely noticed
this appeal.
                                          II.
      Feast first argues that the district court was not statutorily authorized
to award restitution. We review the legality of the restitution award de novo
even though Feast did not object in the district court. See United States v.
Nolen, 472 F.3d 362, 382 (5th Cir. 2006) (noting that while the defendant did
not object at sentencing to the district court’s statutory authority for imposing
restitution, “because he is claiming that [the restitution award] is illegal, we
review it de novo”). The district court adopted the PSR, which stated that
restitution was authorized under § 3663A, but during its oral pronouncements
at sentencing, the district court did not specify the statutory basis for

      THE COURT: The defendant admits that by falsifying tax returns for her
      clients, the United States is owed an additional $94,681. Is that statement
      true?

      THE DEFENDANT: Yes, sir.
                                          3
     Case: 14-30797       Document: 00513072150         Page: 4     Date Filed: 06/09/2015

                                       No. 14-30797
restitution. Feast’s offenses of conviction arose under Title 26 of the United
States Code, and she did not agree to pay restitution in the plea agreement.
Therefore, as the government concedes, § 3663A—which mandates restitution
for certain crimes that do not arise under Title 26—could not serve as the basis
for the award. 2
       The government argues, however, that 18 U.S.C. § 3583(d) authorized
the district court to impose restitution as a condition of supervised release, and
that the district court ordered restitution pursuant to § 3583(d).                   Section
3583(d) generally authorizes a sentencing court to impose as a condition of
supervised release any discretionary condition of probation found in
§ 3563(b)—which includes awarding restitution to the victim of the offense.
See § 3563(b)(2). We have held that § 3583(d) “permit[s] a restitution award
regardless of the limitations set out in § 3663(a).” 3 United States v. Dahlstrom,
180 F.3d 677, 686 (5th Cir. 1999). In particular, we have held that § 3583(d)
permits restitution awards for tax offenses even though “[§ 3663] does not
expressly cover tax offenses.” United States v. Miller, 406 F.3d 323, 329 (5th
Cir. 2005).
       Although the government is correct that the district court could have
ordered restitution as a condition of supervised release, the district court did
not do so.     As noted above, the PSR cited only § 3663A as the basis for

       2 The Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A, requires
that restitution be awarded to the victim when the defendant is convicted of certain
enumerated offenses. § 3663A(a)(1). Offenses under Title 26 are not among them.
§ 3663A(c)(1). The MVRA also requires an award of restitution to persons other than the
victim of the offense, but only if the parties agree to such an award in the plea agreement.
§ 3663A(a)(3). The Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. § 3663,
contains similar provisions for certain enumerated offenses, but restitution under that act is
discretionary.

       3As we explained in footnote 2, supra, the VWPA, § 3663, is the discretionary
counterpart to the MVRA, § 3663A.
                                              4
    Case: 14-30797      Document: 00513072150     Page: 5   Date Filed: 06/09/2015

                                   No. 14-30797
restitution, and the district court adopted the PSR without correcting that
error.     Moreover, the district court ordered that restitution was payable
immediately. As Feast correctly observes, we have previously held that a
restitution award due prior to the commencement of a term of supervised
release is a component of the sentence, not a condition of supervised release.
United States v. Howard, 220 F.3d 645, 647 (5th Cir. 2000). The government
argues that the immediate nature of the restitution award should not prevent
us from characterizing it as a condition of supervised release, citing United
States v. McDonald, 108 F. App’x 916 (5th Cir. 2004), and Miller, 406 F.3d 323.
However, the government’s attempt to distinguish Howard is unavailing.
McDonald, which is unpublished, does not explain why a district court can
order immediate payment of restitution as a condition of supervised release.
See 108 F. App’x at 917. In addition, Miller did not consider whether the
immediate nature of a restitution award is inconsistent with characterizing it
as a condition of supervised release. Miller held only that a district court did
not plainly err in making restitution immediately payable because the
defendant had not shown that the payment schedule was unrealistic. 406 F.3d
at 328.
         While it is true that during the sentencing hearing, the district court
discussed restitution after it discussed the mandatory conditions of release and
before it discussed the special conditions, the district court also discussed
mandatory special assessments and statutory fines during that time, which
are not conditions of supervised release. Moreover, while the judgment lists
restitution-related conditions of supervised release, those conditions would
only take effect if Feast failed to immediately pay restitution. Therefore, in
light of the district court’s adoption of the PSR, which specifically referenced
§ 3663A as the statutory basis for restitution, and in light of the immediate
nature of the restitution award, neither the transcript of the sentencing
                                        5
     Case: 14-30797       Document: 00513072150         Page: 6     Date Filed: 06/09/2015

                                       No. 14-30797
hearing nor the judgment itself reflects an intention to award restitution as a
condition of supervised release.
         As an alternative argument, the government contends that we may
affirm on the ground that the district court’s error did not affect Feast’s
substantial rights because restitution would have been lawful under § 3583(d).
However, as we have already explained, we review the legality of a sentence
de novo, not for plain error. Nolen, 472 F.3d at 382 & n.52. By adopting the
PSR without correction and by making restitution due immediately, the
district court imposed restitution pursuant to § 3663A, not § 3583(d). This was
error.
                                            III.
         All that remains for us to determine is the proper disposition. Feast asks
us to vacate the restitution award “inasmuch as it was not imposed in a
statutorily authorized manner.” As we have noted, the district court imposed
restitution because it mistakenly believed that § 3663A required it. However,
as we have also explained and as Feast concedes, § 3583(d) could serve as a
discretionary basis for restitution. Accordingly, we vacate the restitution order
and remand for resentencing. See Nolen, 472 F.3d at 382 (reversing the district
court’s restitution order and remanding for resentencing because the district
court erroneously relied on § 3663 to award restitution). 4
                                             IV.
         For the foregoing reasons, we VACATE the district court’s restitution
order and REMAND for resentencing.

         Because resentencing is required, we need not determine whether the district court
         4

committed plain error by awarding restitution for losses beyond those attributed to Feast’s
counts of conviction. We note, however, that restitution awards are ordinarily limited to “the
loss caused by the specific conduct that is the basis of the offense of conviction.” Hughey v.
United States, 495 U.S. 411, 413 (1990); see also Nolen, 472 F.3d at 382 n.53.
                                              6


379 F.Supp.2d 103 (2005)
Thomas MACLEOD, Plaintiff,
v.
Donald KERN, et al., Defendants.
No. CIV.A.03-11483-NMG.
United States District Court, D. Massachusetts.
July 15, 2005.
*104 James A. Bello, Morrison, Mahoney LLP, Boston, for Umass Correctional Health, Arthur Brewer, Geri Chrisman, June Binney, Vivian Donnelly, Dr. Donald Kern, Defendants.
Stephen G. Dietrick, MA Department of Correction, Boston, for Lisa Mitchel, Timothy Hall, Defendants.
Bruce R. Henry, Morrison Mahoney LLP, Boston, for Correctional Medical Services, Umass Correctional Health, University of Massachusetts Medical Center, Arthur Brewer, Dr. Donald Kern, Geri Chrisman, June Binney, Vivian Donnelly, Defendants.
Boaz N. Levin, Morrison Mahoney LLP, Boston, for June Binney, Defendant.
Charles M. Wyzanski, Attorney General's Office, Boston, for Massachusetts Department *105 of Public Health, Murphy, Jennifer, Defendants.

MEMORANDUM & ORDER
GORTON, District Judge.
In this civil rights action brought pursuant to 42 U.S.C. § 1983, Thomas MacLeod ("MacLeod") challenges the conditions of his incarceration in a state correctional facility. MacLeod has filed a Motion for Sanctions and defendants Timothy Hall, Lisa Mitchell and Bernard Brady have filed a Motion to Stay Discovery and a Motion for Summary Judgment.
I. Background
A. Factual Background
MacLeod, appearing pro se, is an inmate in the custody of the Massachusetts Department of Correction ("the DOC"). At the time the events giving rise to this action took place, he was housed at the Old Colony Correctional Center ("the OCCC"), in Bridgewater, Massachusetts. On January 5, 2004, MacLeod filed a complaint alleging violations of 42 U.S.C. § 1983 against a number of parties allegedly having associations with the facility: Donald Kern, Geri Crisman, Arthur Brewer, Correctional Medical Services, University of Massachusetts Medical Center, June Binney, Vivian Donnelly, University of Massachusetts Correctional Health, Jennifer Murphy, Massachusetts Department of Public Health, former Superintendent Timothy Hall ("Hall"), former Deputy Superintendent Lisa Mitchell ("Mitchell") and Acting Superintendent Bernard F. Brady ("Brady").
The pending motions concern only Hall, Mitchell and Brady, who will collectively be referred to as "the DOC defendants". MacLeod alleges that the food, water and medical care he received from the DOC defendants at the OCCC were constitutionally inadequate. The DOC defendants respond that they are entitled to summary judgment because plaintiff's claims lack evidentiary support.
MacLeod alleges that the food at the facility is unsafe and lacking in nutritional value but the evidence shows that the menus at the OCCC are subject to nutritional guidelines and that a registered dietician certifies the nutritional content of all meals. The DOC defendants assert that, in general, the meals are designed to be low in salt, fat and cholesterol and high in fiber.
Although most of the food is cooked at the OCCC, some is cooked at a central facility and brought in by truck. During transit, the food is stored in "volrath boxes" which keep it at a temperature above 140 degrees Fahrenheit. Upon arrival, the food is placed into warming devices that heat it to 180 degrees Fahrenheit. According to the National Restaurant Association, the "safe handling temperature" of food is 135 degrees Fahrenheit. MacLeod argues that the handling of the food results in the loss of "most, if not all" of its nutritional value but he fails to offer any evidence in support of that contention.
The food is served to the prisoners on trays which contain scratches or grooves. After each use, the trays are washed in an industrial dishwasher that reaches temperatures of 190 degrees Fahrenheit. MacLeod alleges that the trays are, however, unsanitary because the grooves could house bacteria and fungus. He also alleges that the truck used to transport the food is unsanitary but MacLeod offers no evidence that he, or any prisoner, has ever become ill as a result of unsafe food handling.
MacLeod's second claim is addressed to the water quality at the facility. He states that the water has been "yellow and undrinkable" *106 on multiple occasions. He speculates that it could contain "contaminants". He offers no evidence, however, that the water has caused him or any other prisoner to become ill. To the contrary, the DOC defendants offer evidence that the water quality is checked on a monthly basis by facility personnel and they have submitted records verifying that the quality has always been acceptable. They also offer a "Letter of Recognition" that the facility received from the Massachusetts Executive Office of Environmental Affairs Department of Environmental Protection commending the facility on the drinking water quality. Plaintiff provides no evidence that the water is unsafe, instead speculating that tests by an independent lab could yield such evidence.
Finally, MacLeod criticizes the medical care he has received at the OCCC.[1] MacLeod suffers from Hepatitis C, a condition which has caused him to have repeated interaction with the medical staff. In November 2000, MacLeod discovered a lump protruding from the lower right quadrant of his abdomen. Although he visited the prison infirmary on multiple occasions during the following year, the problem persisted.
In April 2001, Dr. Kern ordered MacLeod to undergo an x-ray. The x-ray "showed a mass." As a result, MacLeod was referred to Lemuel Shattuck Hospital in Jamaica Plain, Massachusetts ("the Shattuck") where he underwent an ultrasound on April 26, 2001. The results were inconclusive.
MacLeod sent a formal grievance to defendant Correctional Medical Services ("CMS") and defendant Dr. Arthur Brewer ("Dr. Brewer"), then Medical Director of CMS. MacLeod also sent a grievance to defendant Geri Chrisman ("Chrisman"), a registered nurse and the Administrator of Health Services at OCCC. Consequently, Chrisman interviewed MacLeod on May 14, 2001.
On September 17, 2001, "the lump was observed" at the prison infirmary and it was recommended that MacLeod see a surgeon. He consulted with the unidentified surgeon on September 30, 2001, and a provider consultation report was completed. Dr. Kern subsequently received and reviewed the report.
On June 4, 2002, a computerized tomography scan ("CT scan") was performed on MacLeod. MacLeod was subsequently referred to the gastrointestinal clinic at the Shattuck in September 2002 after "blood was detected in [his] stool." MacLeod "had a gauntlet of tests" at the Shattuck, including a colonoscopy and upper gastrointestinal exam.
During an annual physical, a substitute doctor noticed the lump and allegedly concluded that it was a hernia. On February 14, 2003, however, Dr. Kern informed MacLeod that there was "no lump", even though the pain had allegedly increased.
On various occasions, MacLeod protested about the medical services he was receiving by sending complaints to the defendants. In an April 21, 2003 letter signed by Dr. Brewer, MacLeod was notified that his case had been reviewed with Chrisman but that "[i]t appears that the medical staff is addressing your problem appropriat[e]ly." A June 11, 2003 letter from defendant Mitchell similarly notes that she had reviewed the grievances with Chrisman.
*107 MacLeod next met with a surgeon at the Shattuck in late November 2003. The surgeon identified the presence of a hernia and scheduled surgery. The surgeon also allegedly stated that a CT scan was "needed to access [sic] any damage or other problems".
On February 3, 2004, MacLeod saw Dr. Stephen J. Drewniak, who prescribed a medication designed to treat plaintiff's Hepatitis C. Sometime thereafter, Dr. Brewer informed plaintiff he would be ineligible to receive the medication before January, 2005 because he had to be free of narcotics for one full year prior to treatment in order for it to be effective. The denial prompted another round of grievances by MacLeod to which Martin responded by reiterating that the recipient had to be free of narcotics for one year prior to receiving the medication.
B. Procedural History
MacLeod commenced the instant action on July 15, 2003 by filing a Motion to Proceed in forma pauperis, which was subsequently allowed. On July 6, 2004, the University of Massachusetts Medical Center moved to dismiss. On July 15, 2004, Murphy and the Massachusetts Department of Public Health did the same. On August 5, 2004, plaintiff moved for a preliminary injunction to compel the defendants to provide him with the Hepatitis C medication he sought. The motions were all referred to Magistrate Judge Bowler. On February 8, 2005, M.J. Bowler filed a Report and Recommendation which recommended that 1) the Motion for a Preliminary Injunction be denied, 2) the Motion to Dismiss of the Massachusetts Department of Public Health be allowed and 3) the Motion to Dismiss of the University of Massachusetts Medical Center and Murphy be allowed to the extent that they were defendants in their official capacities but not in their individual capacities. This Court accepted and adopted those recommendations on March 17, 2005.
On November 19, 2004, the DOC defendants filed a Motion for Summary Judgment and, shortly thereafter, they filed a Motion to Stay Discovery pending its resolution. Plaintiff filed a Motion for Sanctions based upon defendants' alleged failure to respond to interrogatories.
II. Legal Analysis
A. Legal Standard
The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991)(quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990)). The burden is upon the moving party to show, based upon the pleadings, discovery and affidavits, "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the entire record in the light most hospitable to the non-moving *108 party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir.1993). If, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate.
B. Analysis
Plaintiff's claims are divisible into two parts: those relating to his medical treatment and those relating to the food and water supply at the prison facility. In moving for summary judgment, the DOC defendants have submitted evidence addressed to both.
Defendants offer evidence that food was transported and stored at a sufficiently high temperature and that it was either cooked at the facility or was transported to it in a sanitary environment. The record contains no evidence that inmates ever became sick from the food. Defendants also provide evidence that a nutritionist certified the menus at the facility as being adequately nutritious and there is no evidence that the nutrition is lost during handling.
Defendants provide records demonstrating that the water supply of the facility was tested for contaminants on a monthly basis and there is no evidence that the water was ever found to be unsafe. To the contrary, the facility received a commendation from the state on the quality of its water.
There is also ample evidence that plaintiff's medical care was adequate. Correspondence between plaintiff and defendants detail a lengthy medical history, during which plaintiff was examined by several doctors and transported to outside facilities as necessary for tests. When procedures were found to be necessary (e.g. surgery), they were scheduled without delay.
Plaintiff objects to the fact that he was denied a particular prescription to treat his hepatitis C but the records make clear that the treatment was denied as a result of a medical judgment that it would have been ineffective in light of plaintiff's narcotics use. Plaintiff fails to present any evidence calling that medical decision into question. Thus, defendants offer strong evidence that the food, water and medical care provided to plaintiff were adequate.
Plaintiff's opposition is fatally flawed because he offers no evidence in support of his claims. Instead, he claims that "[a]t this embryonic state of these proceedings, the plaintiff does not need to prove his allegations". Plaintiff misunderstands the inquiry under Fed.R.Civ.P. 56 because, although he need not "prove" his allegations to avoid summary judgment, he must offer sufficient evidence to establish the existence of a genuine issue of material fact. He has not done so.
For instance, he speculates that an independent laboratory could find the water at the facility to be contaminated but the water quality records fail to bear out his claim. He asserts that the food at the facility is cooled too much, resulting in the loss of "most, if not all of it's [sic] nutritional content" but he provides no basis for that conclusion. He states that, as a result of unsanitary conditions, the risk of food-borne illness is "quite obvious", notwithstanding the complete absence of evidence that any prisoner has ever become sick or that the bacteria he refers to has ever been found to be present. He states that the truck used to transport the food is unsanitary but apparently he has never seen or examined the vehicle.
*109 Speculation and conclusory allegations, unaccompanied by evidentiary support, do not suffice to avoid summary judgment. Accordingly, the DOC defendants' Motion for Summary Judgment will be allowed.[2] Defendants' Motion for a Stay of Discovery will be denied, as moot.
Plaintiff's Motion for Sanctions will be denied because contrary to his assertion, the defendants did respond to plaintiff's interrogatories. They asserted objections on the ground that a motion for summary judgment was pending, a reasonable response under the circumstances and, in any event, not one which would justify sanctions.

ORDER
In accordance with the foregoing, the Motion for Summary Judgment of Hall, Mitchell and Brady (Docket No. 75) is ALLOWED, their Motion to Stay Discovery (Docket No. 72) is DENIED, as moot, and plaintiff's Motion for Sanctions (Docket No. 73) is DENIED.
So ordered.
NOTES
[1]  Factual background relating to plaintiff's medical history is adopted, in part, from the Report and Recommendation of Magistrate Judge Marianne B. Bowler, accepted and adopted by this Court on March 17, 2005.
[2]  Plaintiff's claims against the DOC defendants are also dismissible on the ground of qualified immunity because the plaintiff offers no evidence that they acted with "wantonness" or "deliberate indifference" as required by case law.


763 F.2d 84
In the Matter of John DICKINSON, A potential witness beforethe grand jury.John DICKINSON, Appellant,v.UNITED STATES of America, Appellee.
No. 1100, Docket 85-6018.
United States Court of Appeals,Second Circuit.
Argued April 18, 1985.Decided May 28, 1985.

David W. Ely, New York City (Ivan S. Fisher, Fisher & Ely, P.C., New York City, of counsel), for appellant.
Peter A. Norling, New York City (Raymond J. Dearie, U.S. Atty., Allyne R. Ross, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.
Before MESKILL, NEWMAN and PIERCE, Circuit Judges.
PIERCE, Circuit Judge:

1
John Dickinson ("Dickinson") appeals from an order of the United States District Court for the Eastern District of New York (Nickerson, Judge ), dated December 28, 1984, denying his motion to terminate an order holding him in civil contempt for refusing to testify before a grand jury, pursuant to 28 U.S.C. Sec. 1826 (1982), removing the direction for his commitment to custody, and imposing on him a daily fine of $1,500 until he agrees to testify, the term of the grand jury expires, or the grand jury determines it no longer requires his testimony.

2
Dickinson argues on appeal that the district court's imposition of a $1,500 daily fine as a modification of his civil contempt sanction of incarceration was improper.  He contends that:  1) imposition of a fine in the situation herein would have no greater coercive effect than incarceration has had;  2) given his poverty, imposition of a daily fine violates due process in that the fine would be in essence a form of future punishment for a present refusal to testify;  and 3) once a finding has been made that incarceration is of no coercive effect, as occurred herein, imposition of a daily fine is prohibited by prior decisions of this Court.  The government argues that:  1) since the testimony sought by the grand jury relates to funds which at one time were in Dickinson's possession and might, if located, be subject to forfeiture pursuant to 18 U.S.C. Sec. 1961 et seq.  (1982) or 21 U.S.C. Sec. 848 (1982), there is reason to believe that a fine would be more coercive than incarceration;  2) although the coercion of actual payment may not be present, the pressure of ultimate payment is presently felt;  and 3) prior decisions of this Court do not in principle preclude imposition of a fine following the release of a contemnor from confinement if the court has reason to believe the fine would be more coercive than the confinement.

3
We hold that the district court did not abuse its discretion in finding that, in view of the circumstances herein, a fine might be more coercive than incarceration.  In addition, the district court properly concluded that prior law permits imposition of a fine against Dickinson, despite the court's finding that incarceration was without coercive effect.  Moreover, we hold that, even if Dickinson is financially unable to pay the fine as it accrues daily, the knowledge that he will eventually have to pay may presently coercive him to testify, and, as such, the fine is not punitive in nature.

4
We therefore affirm the decision of the district court.

BACKGROUND

5
On June 18, 1982, the United States District Court for the Eastern District of New York, Neaher, Judge, sentenced Dickinson to a term of three years imprisonment for his felony conviction for willfully failing to report the transportation of currency outside the United States, in violation of the Currency and Foreign Transactions Reporting Act ("Reporting Act"), 31 U.S.C. Secs. 1101, 1059(2) (1976).  The district court also sentenced Dickinson to concurrent one-year terms of incarceration for his conviction on three counts of making false statements in passport applications, in violation of 18 U.S.C. Sec. 1542 (1976).

6
The Reporting Act violation arose from Dickinson's transport of $860,000 in cash from the United States to Great Britain on August 29, 1980.  In a decision dated April 21, 1983, this Court reversed the Reporting Act felony conviction, finding, however, that the underlying misdemeanor Reporting Act violation survived as a lesser included offense.   United States v. Dickinson, 706 F.2d 88 (2d Cir.1983).  On July 28, 1983, the district court resentenced Dickinson to a one-year term, to run consecutively to the sentence previously imposed for the passport violations, and to a $1,000 fine.

7
While the felony conviction was on appeal, Dickinson was convicted in the United States District Court for the Western District of Washington for violations of narcotics laws and was given a six-year prison sentence, to run concurrently with his Eastern District of New York sentence.

8
On September 3, 1983, Dickinson was produced in the Eastern District of New York pursuant to a writ of habeas corpus ad testificandum.    His testimony was sought by a grand jury, investigating violations of the Reporting Act.  On February 15, 1984, Dickinson appeared before the grand jury, which sought information from him about his failure to report the $860,000 in cash which he transported out of the United States.  Specifically, the grand jury sought to question him concerning "the identity of the legal or beneficial owners, and the direct sources and recipients of the transported funds for which he was convicted," as well as his unexplained possession of additional currency at the time of the arrest.  Dickinson refused to testify, citing his rights under the first, fourth, fifth, sixth, and ninth amendments to the United States Constitution.  After having been granted use immunity pursuant to 18 U.S.C. Secs. 6002, 6003 (1982), on April 4, 1984, he was ordered by the district court to testify before the grand jury.  He still refused to do so, and, by order dated April 6, 1984, the district court adjudged him to be in civil contempt and ordered him incarcerated until he responded to the grand jury's questions, or until the term of the grand jury expired, or the grand jury determined that it no longer required his testimony.  Since at the time of the contempt order Dickinson was still in custody for his criminal convictions, the effect of the order was to interrupt his service of his criminal sentences for so long as he was committed pursuant to the civil contempt order.

9
Eight months after incarceration based on the civil contempt order, by motion dated December 10, 1984, Dickinson moved to terminate the order.  He argued that the incarceration had failed to coerce him to respond to the grand jury's inquiry and that there was no substantial likelihood that it ever would.  In particular, he contended that, at the Metropolitan Correctional Center, where he was lodged, he had not been receiving necessary medical treatment.  He stated that, as a "brittle diabetic," he was in need of regular insulin injections, exercise, and an appropriate diet.  He asserted that his physical condition was steadily deteriorating because he was routinely fed sweets and permitted to exercise only once per week.  He claimed that both his willingness to endure not simply incarceration, but worsening health, and his daily fear of a medical emergency in order to persist in his refusal to testify demonstrated the steadfastness of his position and was predictive of the unlikelihood of future coercion.

10
On December 28, 1984, "in the light of (1) the length of the sentence [Dickinson was] serving for a narcotics violation of which he was convicted in the Western District of Washington, (2) the extent of the remaining term of the grand jury [which was convened on January 30, 1984], and (3) his evident determination not to feel coerced by additional incarceration," the district court modified the order of civil contempt and removed the direction for his commitment to custody.  In lieu thereof, the court imposed on Dickinson a daily fine of $1,500 until he gives testimony, the term of the grand jury expires, or the grand jury determines that it no longer requires Dickinson's testimony.  It is from this order that Dickinson appeals.

11
* The primary purpose of the imposition of a sanction for civil contempt is to coerce the contemnor into future compliance and to remedy past non-compliance, rather than to punish him.   Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966);  Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d 126, 130 (2d Cir.1979).  Since "due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed," Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972), once a contemnor establishes that there is no "substantial likelihood" that continued confinement would accomplish its coercive purpose, the confinement becomes punitive in nature, at which point due process requires its termination.   Soobzokov v. CBS, Inc., 642 F.2d 28, 31 (2d Cir.1981).  Herein, considering the length of the sentence Dickinson was serving for his narcotics violation, the extent of the remaining term of the grand jury, and Dickinson's apparent determination not to testify, the district court found that continued confinement of Dickinson had lost its remedial force.  Under the circumstances herein, we find the district court's conclusion to be reasonable.  We therefore find that the district court properly terminated Dickinson's incarceration for contempt.

II

12
Apropos the district court's imposition of a fine on Dickinson for each day he persists in his refusal to testify, we find that, given the wide discretion accorded a district court in fashioning a remedy for civil contempt, Vuitton, 592 F.2d at 130, and, given the district court's responsibility to make an "individualized decision" in assessing the most effective coercive remedy, Simkin v. United States, 715 F.2d 34, 38, 39 (2d Cir.1983), imposition of a fine on Dickinson was also justifiable.

13
As the government notes, the district court's discretion clearly permits, as a coercive device, the imposition of a fine.   Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 670 (2d Cir.), cert. denied, 463 U.S. 1215, 103 S.Ct. 3555, 77 L.Ed.2d 1400 (1983).  Thus, there is no question that the district court herein had the power, at least initially, to impose a coercive fine.  Dickinson contends, however, that imposition of a fine on a contemnor following his release from custody is improper, as a release from custody implies that the lesser coercive sanction of a fine will be equally without coercive effect.

14
We find that the circumstances in the instant case support the district court's conclusion that a fine well might be more coercive on Dickinson than incarceration.  The testimony sought by the grand jury and refused by Dickinson related to Dickinson's transportation of $860,000 in cash outside the United States.  In addition, during Dickinson's trial for his Reporting Act violation, evidence was adduced showing Dickinson's access to large sums of cash prior to his Reporting Act violation and up until his arrest thirteen months later.  In light of Dickinson's connection to this money, the district court concluded that his refusal to testify may have been based, at least in part, on his concern that revealing the identity of those holding a stake in the $860,000 transported by him in 1980, or in the other assets he allegedly possessed, might ultimately lead to criminal forfeiture of the assets, thereby precluding Dickinson from ever having access to the money.  Consequently, the court concluded that while "[o]rdinarily imprisonment is a more coercive sanction than a fine," in this case, imposition of a fine on Dickinson might be more coercive than incarceration.  Given the circumstances herein, we find the district court's conclusion to be a proper exercise of the court's discretion.

15
Next, Dickinson contends that imposition of the fine violates due process.  According to him, he is without any funds.  He therefore maintains that the fine constitutes a future punishment for a present contempt, or a punitive, rather than a coercive sanction.  We find this argument unpersuasive.  If Dickinson were truly without assets, he could have filed an affidavit of poverty, but he has not done so;  if he presently does have access to resources, then a fine may well have a coercive effect.  As the government states, even if he is without assets and is unable to render payment out of current funds, the pressure of having to pay in the future would be presently felt and could have a coercive effect.

16
Finally, Dickinson argues that this Court's holding in Soobzokov v. CBS, Inc., 642 F.2d 28 (2d Cir.1981), precludes the imposition of a coercive fine following the release of a contemnor from confinement.  In Soobzokov, upon appellant's continued refusal to answer certain questions asked of him during a deposition, the district court, on March 24, 1980, held appellant in contempt and ordered him incarcerated.  Eleven days later, on April 4, 1980, the court ordered appellant's release, finding that his confinement "[would] not achieve the purpose for which it was intended."   Id. at 30.  In place of the confinement, however, the court ordered appellant to pay a fine for each day that he continued to refuse to answer the questions.  While recognizing that the district court has wide discretion in fashioning a remedy for civil contempt, id. at 31, this Court held that the district court's discretion is "not unlimited," id., and that once the court "determin[ed] that imprisonment, the harshest sanction ..., would not work, [it was improper for the court to] impose[ ] the 'less Draconian' measure of a continuing daily fine."    Id.

17
Contrary to Dickinson's contention, it is our view that Soobzokov does not stand for the general proposition that a fine may never be imposed on a contemnor after the district court has determined that incarceration will not have the desired effect. Rather, this Court's ruling in Soobzokov merely states that, under the "peculiar facts of [that] case," id. at 31, the district court erred in concluding that a fine would be more coercive than imprisonment.

18
The situation herein is distinguishable from that in Soobzokov.    Whereas the district court in Soobzokov did not enunciate any reasons to support its conclusion, the district court herein articulated a rational basis for its finding that a fine would be more coercive than incarceration.  Furthermore, Dickinson, unlike the contemnor in Soobzokov, was already in prison.  Therefore, while the additional term of incarceration brought about by Dickinson's commitment to custody under the contempt order would logically have some present coercive effect, the actual coercive effect would not be particularly strong until the point at which the original sentence would have otherwise expired.  In Soobzokov, on the other hand, the contemnor was faced with a choice of immediate incarceration under the contempt order or none at all.  Moreover, imposition of a $1,500 daily fine on the facts of this case as discussed above is likely to have a greater coercive effect than the $50 daily fine imposed in Soobzokov.

19
We note this Court's statement in Simkin, 715 F.2d at 38, concerning the coercive effect of a civil contempt sanction, that "a district judge has virtually unreviewable discretion both as to the procedure he will use to reach his conclusion, and as to the merits of his conclusion."

20
For the foregoing reasons, we find that the district court did not abuse its discretion in concluding that a monetary sanction would be more coercive than incarceration.  We therefore affirm the decision of the district court.

21
Affirmed.


184 U.S. 140 (1902)
UNITED STATES
v.
EWING.
No. 225.
Supreme Court of United States.
Argued November 12, 13, 1901.
Decided February 24, 1902.
APPEAL FROM THE COURT OF CLAIMS.
*145 Mr. Assistant Attorney General Pradt for the United States.
Mr. Harvey Spalding for Ewing.
MR. JUSTICE PECKHAM, after stating the above facts, delivered the opinion of the court.
The question at issue between the parties is as to the proper construction of the act of Congress approved March 3, 1883, and which is set forth in the foregoing statement of facts. It is contended, on the part of the petitioner, that when application is made to the Postmaster General for a readjustment of salary between the period from 1864 to 1874 it is his duty, *146 under the statute of 1883, to compare the salary which the petitioner received in each biennial period with what he would have received in commissions on the receipts of his office, as shown by the sworn returns of the receipts and business of such office, under the statute of 1854 during the same term, and if on such comparison it should appear that the salary thus allowed was ten per centum, or more, less than such commissions, then to readjust the salary for the biennial term by allowing the petitioner the difference between the salary and the commission for that particular term. This has been done by the Court of Claims in its judgment in this case.
The Government, on the other hand, contends that to do so would be a plain violation of the statute, which provides that the readjustments shall be made in accordance with the mode prescribed in section 8 of the act of June 12, 1866, and that they shall date from the beginning of the quarter succeeding that in which such sworn returns of receipts and business or quarterly returns were made. In other words, the petitioner claims that upon a comparison of the actual salary paid him in a two-year period, with what he would have received for the same period upon the basis of commissions on the sum of the quarterly returns for that period, if the salary paid him were ten per cent less than the commissions, he was entitled to be paid the difference for that particular biennial term, whereas the Government contends that by virtue of the statute the readjustment is to date from the immediately succeeding quarter.
Going back to the statute of 1854, providing for compensation by commission, we find the act authorized the Postmaster General to allow the commissions to postmasters at the rates named therein and to be based on the postage collected at their respective offices in each quarter of the year. Then came the act of July 1, 1864, providing for payment to postmasters by salary, and classifying them according to the salary received. There were five classes thus made, and they were arranged at the commencement by reference to the compensation paid to the office for the two years next preceding July 1, 1864. The second section of the act provides for a review by the Postmaster General once in two years, and a readjustment of the salaries *147 on the basis of the preceding section, but any change made in the salary, the statute provided, should not take effect until the first of the quarter next following such order. In special cases, upon satisfactory representation, the Postmaster General might also review and readjust the salary assigned to any office as much oftener than once in two years as he might deem expedient.
Prior to this act of 1864 it will be seen that postmasters received their compensation by commission based upon each quarterly return of the amount of sales made at the particular office, but under the act of 1864, instead of compensation by commission, postmasters were to be paid under that act salaries for two years based upon the average amount of the receipts at their offices, as shown by their quarterly returns for the two years preceding the first day of July, 1864, as provided for in the act of June 22, 1854, and this salary was to be reviewed every two years.
Thus at the end of a biennial period the amount of receipts, as shown by the quarterly returns for the past two years, was taken, and upon that amount the salary for the coming two years was fixed, so that, assuming from 1864 to 1866 the amount of the quarterly receipts made a total of $2000, that sum would be fixed upon as the salary for the two years from 1866 to 1868. It was obviously an effort to make the compensation by salary equivalent to the compensation by commissions, and this was the way in which it was to be done. It is equally obvious that a failure to attain this result would frequently occur in the practical operation of the act. The amount of the compensation by salary from 1866 to 1868, for instance, fixed by a resort to the quarterly returns for the two years preceding, would, in rapidly growing communities, fail to reach the amount of compensation which the postmasters would have received had it been fixed by commissions for those years, 1866 to 1868.
The amount of the sales of stamps might have quadrupled in those years over the amount of such sales for the period from 1864 to 1866, and yet, as the compensation for the years from 1866 to 1868 was measured by the sales from 1864 to 1866, there was no relief to be had, and the postmaster in such case *148 would have received less salary than the amount of the compensation he would have received had he been paid by commissions on sales of stamps as under the act of 1854. Such being the obvious result of the act of 1864, the second section was amended in 1866, which amendment provided that when the salary allowed as fixed, pursuant to the provisions of the act of 1864, proved to be ten per centum less than it would have been on the basis of commissions, under the act of 1854, fixing the compensation, then in that event the Postmaster General was directed to review and readjust the salaries under the provisions of that act. And even then the readjustment would not take effect until the first day of the quarter next following the order for the same, as that is the condition of the act of 1864, which is not altered in that respect by the act of 1866. It has been held that under this statute of 1866 no action could be maintained in the Court of Claims until there had been a readjustment of the salary of the petitioner for the period for which he claimed to recover. United States v. McLean, 95 U.S. 750.
The quarterly returns mentioned in the act of 1866 do not refer to any one quarterly return during the biennial term. The question arose in McLean v. Vilas, 124 U.S. 86, when, referring to the amendment of 1866 to the act of 1864, the court, through Mr. Justice Miller, said: "What quarterly returns are here meant, as showing that the salary is ten per cent less than the commissions under the act of 1854? The argument of counsel is, that when one quarterly return shall show this condition of affairs, the Postmaster. General, on the request of the postmaster, must make a readjustment, but such is not the language of the statute. The expression used is `when the quarterly returns' shall show this, and inasmuch as the law had already established that readjustments must be made on the basis of the quarterly returns for two years, it is reasonable to suppose that that was the meaning of Congress in this proviso."
Under such a construction, the readjustment could not be had until eight quarterly returns of the biennial period had been made, so that it would appear therefrom that the salary allowed during that term was at least ten per centum less than *149 it would have been, if fixed on the basis of commissions under the act of 1854, in which case the Postmaster General was directed to review and readjust salaries under the provisions of said section, but the change was not to take effect until the first day of the quarter next following such order of the Postmaster General. Then comes the act of 1883, which also provides for a case for readjustment of salary where sworn returns of receipts and business have been made, or where quarterly returns, in conformity to the then existing regulations, have been made, showing that the salary allowed was ten per centum less than it would have been upon the basis of commissions under the act of 1854. In such case the Postmaster General was authorized and directed to readjust those salaries in accordance with the mode prescribed in section 8 of the act of June 12, 1866, already referred to.
The sworn quarterly returns referred to in the act of 1883 are those contained in the biennial period, and the act does not refer to one return alone, any more than did the act of 1866. Having stated the circumstances in which a readjustment could be had, the act of 1883 proceeded to state from what period such readjustment should take effect, and it stated that it was "to date from the beginning of the quarter succeeding that in which such sworn returns of receipts and business or quarterly returns were made." This language is plain and unambiguous, and the court is bound by its terms. The readjustment cannot take effect in the same term for which the sworn returns were reviewed. It is postponed to the beginning of the next quarter.
It is said that as thus construed the statute leads in many cases to great injustice, and hence such construction should not be adopted. The difficulty is that any other construction violates the clear directions of the law, and although the result may be to withhold its benefits from some who might be regarded as otherwise entitled to it, yet we cannot for that reason alter its terms so as to include them, and thus ourselves enact instead of construing the law.
In United States v. Verdier, 164 U.S. 213, 219, it was held that the act of 1883 created an indebtedness voluntarily assumed *150 by the Government in regard to those who claimed under its provisions. It rested entirely with Congress to say who should have its benefits and how the same should be arrived at, and from what date the readjustment should take effect, and as Congress has plainly stated the date there is nothing for the court to do but follow the clear direction of the statute. If Congress had intended to provide for the readjustment taking effect at the commencement of a biennial term subsequent to that in which the quarterly returns were made upon which the compensation was fixed, we are at a loss to think of what language it could use which would more certainly and specifically prove that intention than does the language actually used in this statute.
The method of reviewing and readjusting the salaries of postmasters under the act of 1883 with reference to the acts of 1864 and 1866, pursued by the Post Office Department, by which the readjustments based upon the quarterly returns have been made prospectively for the next biennial term thereafter, was approved by Congress as a correct administration of the act of March 3, 1883, and the readjustments which had been made under that act and in that method by the Department, were ratified as a correct disposition of the claims which had been considered and disposed of, and Congress enacted that in considering all claims not yet readjusted the same method thus approved by it should be pursued, and it directed that any and every different method of readjustment of salaries during the period between 1864 and 1874 should be prohibited. 24 Stat. 256, 307, sec. 8; act approved August 4, 1886. When this act was passed the salary of the petitioner had not been readjusted.
While the declaration of Congress in the act of 1886, approving the construction which had been put upon the act of 1883 by the Post Office Department, and ratifying its method of reviewing and readjusting salaries under that act, could have no binding force upon the courts as to the proper construction of that act in cases of salaries already readjusted, yet its direction, "that in considering all claims not yet readjusted, the same method shall be pursued which is hereby approved; and any and every different method of readjustment of salaries of *151 such postmasters and late postmasters during the period between July 1, 1864, and July 1, 1874, than is herein approved, is hereby prohibited," is a valid legislative enactment and must be followed by the courts. The readjustment of the salary of petitioner has not been according to this direction.
Construing the acts of 1883 and 1886 as we think their terms require, the judgment of the Court of Claims is erroneous, and must be reversed and the case remanded to that court with instructions to enter a judgment in conformity to the directions of those statutes and the opinion of this court.
We feel called upon to say that the charges of misconduct, maladministration and fraud against the officers of the Post Office Department, so freely scattered through the pages of the briefs of counsel for appellee, are entirely unwarranted by anything contained in the record before us, and ought not to have been made.
Reversed.
MR. JUSTICE McKENNA did not sit in this case and took no part in its decision.


                                                                  [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                          FILED
                                                               U.S. COURT OF APPEAL
                                                                ELEVENTH CIRCUIT
                            _____________
                                                                  APRIL 16, 2013
                              No. 09-11718                          JOHN LEY
                            _____________
                                                                     CLERK
                  D. C. Docket No. 08-80254-CV-DTKH

TIARA CONDOMINIUM ASSOCIATION, INC.,
A Florida non-profit corporation,
In its own name and as agent for all owners
of record of all individual condominium
parcels with the Tiara Condominium,

                                                     Plaintiff-Appellant,

                                  versus

MARSH & MCLENNAN COMPANIES, INC.,
a Delaware Corporation,
MARSH, INC.,
MARSH, USA, INC.,

                                                     Defendants-Appellees.

                             ______________

                Appeal from the United States District Court
                    for the Southern District of Florida
                             ______________

                              (April 16, 2013)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and EDENFIELD, *
District Judge.

DUBINA, Chief Judge:

        As we stated in our earlier opinion reported at Tiara Condominium

Association, Inc., v. Marsh & McClennan Companies, Inc., 607 F.3d 742 (11th Cir.

2010), this appeal arises from a contract between an insurance broker and the

association responsible for managing the condominium tower located on Singer

Island, Florida. The tower suffered extensive wind damage from two hurricanes in

September 2004. The condominium association claimed that the broker caused

part of its losses by failing to procure an adequate insurance policy for the

condominium. In our earlier opinion, we were able to resolve the issues raised on

appeal with respect to the association’s claims for breach of contract, breach of the

implied covenant of good faith and fair dealing, and negligent misrepresentation.

We affirmed the district court’s grant of summary judgment on all of those claims.

Concerning the claims for negligence and breach of fiduciary duty, because we

concluded that Florida law was unclear, we certified the following question to the

Supreme Court of Florida concerning Florida’s application of the economic loss

rule:

        *
        Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
                                             2
      CERTIFICATION FROM THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT

OF FLORIDA, PURSUANT TO FLA. R. APP. P. 9.150(a). TO THE

SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:

      DOES AN INSURANCE BROKER PROVIDE A “PROFESSIONAL

SERVICE” SUCH THAT THE INSURANCE BROKER IS UNABLE TO

SUCCESSFULLY ASSERT THE ECONOMIC LOSS RULE AS A BAR TO

TORT CLAIMS SEEKING ECONOMIC DAMAGES THAT ARISE FROM THE

CONTRACTUAL RELATIONSHIP BETWEEN THE INSURANCE BROKER

AND THE INSURED?

      In certifying our question, we noted that the Supreme Court of Florida

retains the discretion to restate the issue and to answer the question in the manner it

chooses. See Stevens v. Battelle Mem’l Inst., 488 F.3d 896, 904 (11th Cir. 2007).

The Supreme Court of Florida did precisely that. It restated the certified question

as follows:

      DOES THE ECONOMIC LOSS RULE BAR AN INSURED’S SUIT

AGAINST AN INSUANCE BROKER WHERE THE PARTIES ARE IN

CONTRACTUAL PRIVITY WITH ONE ANOTHER AND THE DAMAGES

SOUGHT ARE SOLELY FOR ECONOMIC LOSSES?

                                          3
      The Supreme Court of Florida answered its question in the negative and held

that the application of the economic loss rule was limited to products liability

cases. Accordingly, based on the opinion the Supreme Court of Florida filed with

the Eleventh Circuit Court of Appeals on March 11, 2013, and attached hereto as

“Appendix I,” we vacate the district court’s grant of summary judgment in favor

of Marsh on Tiara’s claims for negligence and breach of fiduciary duty and remand

those claims for the district court to reconsider them in light of the Supreme Court

of Florida’s opinion.

      VACATED and REMANDED.

                                          4


662 So.2d 251 (1995)
BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE
v.
Walter V. YARBROUGH.
1931244.
Supreme Court of Alabama.
May 19, 1995.
Joe H. Little, Jr., Mobile, and J.M. Druhan and D. Charles Holtz, Mobile, for Appellant.
James E. Atchison and Mona A. Vivar, Mobile, for Appellee.
BUTTS, Justice.
This Court granted the Rule 5, Ala.R.App. P., petition of the Board of Water and Sewer Commissioners of the City of Mobile (hereinafter the "Board") for permission to appeal *252 the circuit court's denial of its motion for a summary judgment in an action against the Board filed by Walter V. Yarbrough, a resident of Mobile and a customer of the Board.
The Board provides water and sewer service to customers within the Mobile city limits and to customers in some areas outside the city limits. On August 20, 1993, Yarbrough filed an action against the Board, on behalf of himself and all other members of a class of persons who had been paying for, but not receiving, the Board's sewer service. Yarbrough sought an injunction to prevent the Board from continuing to charge him and other members of the class for sewer service and sought a refund for the charges they had paid in the past. Although the lawsuit was brought as a class action, it was never certified as such by the circuit court.
On December 17, 1993, the Board moved for a summary judgment, which the circuit court denied on May 27, 1994.

I.
In 1952, the Board was incorporated as a public corporation pursuant to the predecessor of Ala.Code 1975, § 11-50-340, and in that year it began to operate the City of Mobile's existing water and sewer systems within the city limits and in some of the surrounding areas. On March 8, 1954, the Board adopted a resolution combining the water system and the sewer system as a single system for the purposes of operation and financing. The Board noted that raw sewage was being emptied into Mobile Bay and other public waterways and that both the sewer system and the water treatment facilities needed to be expanded and upgraded. The resolution also authorized the Board to continue the city's practice of charging a rate for its services based on the customer's water usage, termed a "water rate." There was no separate charge for sewer service, whether the customer actually used the sewer system or not. The proceeds collected from the water rate were used to defer the costs of both the water service and the sewer service provided by the single system. The Board did not set a different water rate for those customers outside the city limits to which it provided only water service; the Board stated in its resolution that because of the increased cost of supplying water outside the city limits, the uniform water rate was equitable.
On March 21, 1966, the Board adopted another major resolution affecting its operations. The new resolution incorporated much of the text of the 1954 resolution. However, the Board increased its service charges and renamed the "water rate," calling it the "combined water and sewer rate." Like the water rate, the "combined rate" for water and sewer service was based solely on water usage. The resolution also noted that the Board treated 40% of its revenue derived from the combined rate as revenue attributable to the sewer system. The resolution set a rate for water usage for customers outside the city limits at levels higher than the combined rate and also set a separate sewer service charge for those customers where sewer service was available.
The Board, on August 3, 1970, adopted another comprehensive resolution updating the rules controlling its operations. The Board increased its combined rate for customers within the city limits and, for the first time, identified within the combined rate an exact rate for water service, including state and local taxes on that service, and another rate for sewer service, which was not taxed. The Board continued to apply the combined rate on the basis of its customers' water usage. The manner in which the Board's customers outside the city limits were billed for water and sewage system usage remained the same.
On November 24, 1975, the Board again adopted a comprehensive resolution updating its rules. With regard to the issues of this lawsuit, the resolution merely increased the Board's combined rate; it did not change the manner in which that rate was to be applied on the basis of water usage. The Board adopted another resolution increasing the Board's combined rate, on August 4, 1986. Again, the manner in which the combined rate was to be applied was not changed.
However, in August 1993, the Board stopped applying the combined rate to its customers within the city limits and began *253 applying a billing rate to water customers that did not reflect the added cost of operating the sewer system. The Board's sewer system customers were charged a separate rate for sewer service. However, the Board's water-only customers were charged a flat monthly fee relating to the sewer system in addition to the rate for the water use. Yarbrough states that he is now charged $6.87 per month for sewer service, even though his residence is not connected to the city's sewer system.
Yarbrough has resided at the same address in Mobile since 1967. When he purchased the house, it was located outside the city limits and the city's sewer system did not extend to that area. Even though Yarbrough's house is now within the city limits and the sewer system has been extended to that area, the house is still connected to a septic tank rather than to the sewer system. Yarbrough states that once the city limits expanded in the late 1980's to include his residence, his water bills "doubled or tripled" even though he was using only water and not the city's sewer system. He claims that he complained to a representative of the Board, but was informed that he had to pay the combined rate for water and sewer service. Yarbrough claims that he also complained to the Board in August 1993, when his bills began showing separate charges for the water and sewer systems, complaining that he was also being charged a flat fee relating to the sewer system, even though his house was not connected to it. However, there is no evidence in the record that Yarbrough ever made the Board aware, before August 1993, that he was paying his utility bills under protest.

II.
There are two issues involved in this appeal. The first issue is whether the Board was authorized to charge customers within the Mobile city limits a "combined rate" for water and sewer service based solely on the amount of water usage, regardless of whether the customer received sewer service. Yarbrough claims that the Board's prior practice of charging a combined rate to water customers within the city limits who did not receive sewer service violates Ala.Code 1975, § 11-50-351(b), which states that rates, fees, and charges for the use of services provided by the water or sewer system "shall be just and equitable." His complaint questioned "the right of the Mobile Water System to charge the members of the class for services it did not provide" to the class.
The Board contends that its historical use of a combined rate based on water usage as a means to finance the operations and maintenance of both its water and sewer systems is expressly authorized by § 11-50-351 and this Court's opinion in Campbell v. Water Works & Sanitary Sewer Board of the City of Montgomery, 270 Ala. 33, 115 So.2d 519 (1959). First, the Board argues that § 11-50-351 authorizes it to use any of several different methods to charge for its services, including a rate reduction to customers where sewer services are not provided, but it argues that that Code section does not mandate such a billing method. The Board also contends that the Campbell holding clearly allows it to charge a rate for water service that will provide enough surplus revenue to maintain its sewer system. Finally, it argues that although Yarbrough's house is connected to a septic tank rather than to the city's sewer system, Yarbrough should not be allowed to deny that he enjoys the benefits of the healthier environment created as a result of the city's operation of a sewer system.
We agree with the Board that Campbell is dispositive of this issue. In Campbell, this Court faced the same issues raised now by Yarbrough, which were then phrased:
"(1) whether the board may set its [water] rates sufficiently high to operate and expand its combined systems and service its debts or, in other words, may make a profit on the sale of water and use that profit for all its legal corporate purposes and (2) whether the proposed single [combined] charge for water discriminates against any person who is exempt from sewer charges or who has no sewer charges."
270 Ala. at 36, 115 So.2d at 522. In Campbell, we noted that in Mitchell v. City of Mobile, 244 Ala. 442, 13 So.2d 664 (1943), this Court had held that a municipal utility board *254 had the authority to set its rates so as to create a surplus. 270 Ala. at 37, 115 So.2d at 522. The Campbell Court then stated that "the surplus which will not be needed for the maintenance of the water system can be used for other corporate purposes, such as the maintenance of its sewer system." 270 Ala. at 37, 115 So.2d at 523. Finally, the Court concluded that the surplus created need not be spent in a manner that equally benefits every person in the city, and it held that "[t]he rate which is paid for any utility may be used to provide some type of service which the particular user does not receive." 270 Ala. at 38, 115 So.2d at 524. That holding is applicable here.
Moreover, although Yarbrough's house is not connected to the city's sewer system and, thus, he did not receive the same direct benefit as others for the additional fee he paid during the Board's use of the combined rate billing method, he did receive an important indirect benefit. As noted in the Board's resolutions, it has spent large sums of money to continuously expand and upgrade the sewer system in order to prevent the spread of pollution and pestilence. We agree with the following statement in the Board's 1954 resolution:
"The citizens of the City of Mobile and environs, including those within the police jurisdiction and served by the water system, are directly or indirectly affected by the results of the pollution of [public] waters and the beneficial results to be obtained by the elimination of the pollution will be a public benefit to the entire community and citizens thereof."
(Emphasis added.)
Yarbrough responds by arguing that the critical language in Campbell is not that the Board is authorized to charge a rate for water that will create a revenue surplus available to pay for other services, but that all the customers of the water system must pay a "reasonable, equitable or uniform rate." 270 Ala. at 38, 115 So.2d at 524. He argues that it is not equitable for the Board to charge water customers within the city whose residences are not connected to the sewer system, such as him, a sewer-related fee, while not charging a sewer-related fee to similar, water-only customers outside the city.
Yarbrough fails to note, however, that the Board's water-only customers outside the city limits have historically paid a water rate higher than the combined rate charged to customers inside the city limits. This higher rate charged to water customers outside the city limits is a reflection of the fact that although the city may have a duty based on its police powers to provide a source of treated and purified water to its residents, it does not owe such a duty to persons outside the city limits, to whom providing such a service greatly increases its costs. Similarly, because a municipality has the authority under its police powers to control sanitary matters within its limits by operating a sewer system, it has the corresponding authority to generate sufficient revenues from its residents, the persons who benefit from it most, to carry out its undertaking to operate a sewer system. Moreover, the rate historically charged by the Board to water and sewer service customers outside the city limits has also been much higher than the combined rate paid by city residents; that fact is a reflection of the increased costs.
We conclude that the Board's historical practice of charging a combined rate based on water usage, to all its customers inside the city, both water and sewer customers and water-only customers, is not contrary to law. See Campbell, supra; Marshall Durbin & Co. of Jasper, Inc. v. Jasper Utilities Board of the City of Jasper, 437 So.2d 1014 (Ala. 1983). We also hold that its practice of not charging water-only customers outside the city a combined rate, which it charges its water-only customers inside the city limits, is not unreasonable or inequitable.

III.
In August 1993, the Board stopped charging its customers a combined rate based on water usage and began charging them separately for water and sewer use, charging water-only customers like Yarbrough an additional flat fee related to operation and maintenance of the sewer system. Thus, the second issue raised by Yarbrough's complaint is whether the Board is authorized *255 to continue its current billing practice. Yarbrough argues that because his house is not connected to the sewer system, the Board has no authority to charge him a fee of $6.87 per month relating to the maintenance of that utility system.
We find little distinction between the Board's historical practice of charging a combined rate based solely on water usage, which created a revenue surplus sufficient to maintain the sewer system, and the Board's current billing practice toward city residents. Although the distinctly separate flat fee for the sewer system being charged to water-only users more clearly reveals to those customers that they are being charged for a service they do not receive a direct benefit from, we have already noted the substantial indirect benefit provided to all city residents by the Board's operation of a sewer service. Thus, we do not find it contrary to law for the Board to charge water-only customers within the Mobile city limits a monthly fee used to assist in providing the revenue necessary to operate the Board's sewer system.

IV.
The circuit court should have granted the Board's motion for a summary judgment. We reverse the order denying that motion, and we remand this case for the circuit court to enter a summary judgment in favor of the Board.
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, KENNEDY and COOK, JJ., concur.
HOUSTON, J., concurs in the result in part and dissents in part.
HOUSTON, Justice (concurring in the result in part and dissenting in part).
In my opinion, there is a genuine issue of material fact that must be resolved. Is the $6.87 flat monthly fee for sewerage, when assessed against one who receives no sewerage service, "just and equitable," as Ala.Code 1975, § 11-50-351(b), requires? I do not believe that the appeal from the ore tenus bond validation in Campbell v. Water Works & Sanitary Sewer Board of the City of Montgomery, 270 Ala. 33, 115 So.2d 519 (1959), answered this question as a matter of law.