
USCA1 Opinion

	




          March 14, 1995                                 NOT FOR PUBLICATION                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2054                                    GILBERT DIAS,                                Plaintiff, Appellant,                                          v.                               GEORGE A. VOSE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Gibson,* Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John J. O'Connor  with whom Allen  N. David  and Peabody &  Arnold            ________________            _______________      _________________        were on brief for appellant.            Thomas  M. Elcock  with whom  Morrison,  Mahoney  & Miller  was on            _________________             ____________________________        brief for appellees Phin Cohen, M.D. and Ronald Goldberg, M.D.            Herbert  C.  Hanson,  Senior  Litigation  Attorney,  Massachusetts            ___________________        Department of Correction, with whom Nancy A.  White, Special Assistant                                            _______________        Attorney General, was on  brief for appellees Clair Wilson  and Evelyn        Alborghetti.                                  ____________________                                 ____________________        ____________________        *Of the Eighth Circuit, sitting by designation.                 Per Curiam.  Gilbert  Dias, a prisoner in Massachusetts'                 __________            custody, brought this section 1983 action against two doctors            and two nurses  for an alleged Eighth  Amendment violation in            their  provision to  him  of  medical  treatment.   The  main            episode involves delays in referring  him to a hospital where            an appendectomy  was performed, successfully but  too late to            avoid  painful complications  that were  eventually overcome.            The district court granted summary  judgment in favor of  the            defendants,  and Dias  appeals.   Although the appeal  is not            frivolous, we think (reviewing  the matter de novo)  that the                                                       _______            district court was correct.                 The facts are set  forth in some detail in  the district            court's  14-page opinion  and  need  not  be repeated.    The            constitutional  standard  of  misconduct  in  such  a  case--            "deliberate indifference" to the prisoner's needs rather than            mere negligence--is settled.   Estelle v. Gamble, 429 U.S. 97                                           _______    ______            (1976).  The only issue is the application of the standard to            a  particular  set  of facts.    The  question  is whether  a            reasonable jury could find  such deliberate indifference.  As            the district court said, the choice between trial and summary            judgment is often a matter of degree.  We need add only a few            words to the district court's discussion of the facts.                 The  nurses were the first ones to encounter Dias on the            occasion of his appendicitis  attack on October 1, 1989.   At            different times,  both nurses provided treatment  to Dias for                                         -2-                                         -2-            the pain  in his side that  he reported.  While  he says that            his symptoms  should  have alerted  them  to the  nature  and            severity of  his affliction, there  is no indication  that he            provided  them  with  the  full  list  of  symptoms  (nausea,            vomiting) that he  has described on the appeal.  If there was            any fault in  their treatment of him,  it was at most  garden            variety negligence--and may well  not have been negligence at            all.                 The  next  to see  Dias, at  about  10:30 p.m.,  was Dr.            Goldberg.  He  correctly diagnosed appendicitis,  recommended            immediate  surgery,  and contacted  Dr.  Cohen,  who was  the            primary physician.   There is  no evidence that  Dr. Goldberg            was  responsible  for the  wait  of several  hours  that Dias            suffered before Dr. Goldberg examined him.  Dias also asserts            that Dr. Goldberg had continuing responsibility and therefore            shares in the blame for what Dr. Cohen did next.  This theory            is thin but need not be pursued  because Dr. Cohen is himself            not liable.                 It  is undisputed that Dr. Cohen had Dias sent that same            evening to Lemuel Shattuck  Hospital where he arrived shortly            after midnight; surgery was  performed early in the afternoon            of October 2.   It  is possible--the matter  is difficult  to            resolve  on  this  record--that  the  hospital   should  have            operated more  quickly.  But once  Dias had been  sent to the            hospital,  he  was  in its  immediate  care  and  not in  Dr.                                         -3-                                         -3-            Cohen's.   Dias'  argument,  therefore, is  that Dr.  Cohen's            deliberate  indifference was  in failing  to  send Dias  to a            hospital with an "emergency staff" closer to the prison where            surgery might more easily have been performed at once.                 But appendectomies are not performed in emergency rooms.            If  immediate  surgery   were  indicated,  presumably  Lemuel            Shattuck would have  provided for it  or (at worst)  arranged            for it to occur  elsewhere; at least Dias provides  no reason            why  Dr. Cohen should have thought otherwise.  Of course, the            hospital may  have erred,  perhaps grievously, but  that does            not make  Dr. Cohen  liable, let alone  guilty of  deliberate            indifference.  Thus, there was nothing to submit to the jury.                 Affirmed.                    _________                                                              -4-                                         -4-
