
USCA1 Opinion

	




          September 26, 1995                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  94-2062                                  BERNARDO FIGUEROA,                                Plaintiff, Appellant,                                          v.                               GEORGE A. VOSE, ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET               Opinion  of this  court  issued on  September  22, 1995,  is          amended as follows:               On page 3, line 11: replace the words "had worked" with "had          not worked".          September 22, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2062                                  BERNARDO FIGUEROA,                                Plaintiff, Appellant,                                          v.                               GEORGE A. VOSE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                  [Hon. Robert W. Lovegreen, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Bernardo Figueroa on brief pro se.            _________________            David J.  Gentile on Memorandum In  Support of  Motion for Summary            _________________        Disposition for appellees.                                 ____________________                                 ____________________                      Per  Curiam.   Bernardo  Figueroa appeals  from the                      ___________            district   court's  judgment  in   favor  of  various  prison            officials  and medical  personnel.   In his  action under  42            U.S.C.   1983, Figueroa  alleged that defendants had violated            his  Eighth Amendment  rights by  denying him  proper medical            care  for certain  eye  ailments.   Because the  record amply            supports   the  district   court's   judgment,   we   affirm,            essentially  for the  reasons given  in the  district court's            decision.  See  Figueroa v.  Vose, 874 F.  Supp. 500  (D.R.I.                       ___  ________     ____            1994).    We add  only the  following comments  about certain            arguments made on appeal.                      First,  although  Figueroa  claims that  the  court            refused to permit  two physicians to  testify on his  behalf,            the  facts  do  not support  his  claim.    In scheduling  an            additional  day  of trial,  the  district  court ordered  the            parties  to present  any  remaining testimony  at that  time.            Figueroa told the court that he had no further witnessess.                      Second, Figueroa  claims that  the  record shows  a            pattern   of  missed   outside  medical   appointments  which            demonstrates  defendants'  deliberate  indifference   to  his            medical needs.   The  record documents  only one  occasion on            which Figueroa  missed an outside medical  appointment due to            circumstances within  the prison's control.   In August 1993,            prison officials brought him to the Rhode Island Hospital eye            clinic  on the wrong day.   They rescheduled the appointment,            however, and the rescheduled  appointment was kept.  Although            a few  appointments were  missed due to  circumstances beyond            the  prison's control,  all  such appointments  were promptly            rescheduled and  kept.   Figueroa  had numerous  appointments            with outside physicians which  were not missed.  Accordingly,            the magistrate  correctly found  that defendants'  failure to            bring Figueroa  to certain medical appointments  did not show            their deliberate indifference to his medical needs.                      Third,  Figueroa argues that  the court  should not            have admitted  into evidence  a computer printout,  which was            prepared by the prison payroll department and which allegedly            showed that  corrections officer  Alfred Lancellotti had  not            worked on April 23 and  24, 1993.  The court  determined that            the printout  verified Lancellotti's trial testimony  that he            had  not worked  on  the  days  in question.    We  need  not            determine whether  the court erred in  admitting the printout            into   evidence,  or   in   determining  that   it  supported            Lancellotti's trial  testimony, since  any  such error  would            have been harmless.  Figueroa hoped  to show that Lancellotti            had worked  on  April 23  and  April 24,  1993, in  order  to            establish two  other facts  that allegedly occurred  on those            days  --  first,  that  Lancellotti  had  heard  one  of  the            defendants,  a  nurse,  tell him  that  she  did  not have  a            particular medication for him; and, second, that  Lancellotti            had signed written requests  by Figueroa for that medication.                                         -3-            Demonstrating  either  of  those  facts would  not  show  the            defendants'  deliberate  indifference  to Figueroa's  medical            needs,  however.   The record  indicates that  the medication            Figueroa  sought was  Naphcon-A, which an  outside specialist            had recommended on April 20, 1993.  But the record also shows            that  prison   staff  doctors   had  never   prescribed  that            medication for Figueroa in April 1993 and that a prescription            by a staff doctor  was required before medication recommended            by  outside   physicians  could   be  given  to   an  inmate.            Consequently, assuming that the  nurse did tell Figueroa that            she did not have  the medication he sought, she  was entirely            right,  and   her  statement  does  not  evidence  deliberate            indifference to Figueroa's medical needs.  Likewise, assuming            that   Figueroa  did   submit  written   requests  for   that            medication,  the  failure  to  give  it  to  him   would  not            demonstrate  defendants'  deliberate   indifference  to   his            medical needs, absent a  showing that the prison unreasonably            delayed in having a staff doctor evaluate the appropriateness            of the medication and then issuing  a prescription.  Figueroa            made no such showing.                      Since  the  facts  Figueroa  ultimately  sought  to            demonstrate  would  not have  shown  defendants' culpability,            showing that  Lancellotti  could have  witnessed the  nurse's            statement  or  signed  Figueroa's  requests  would  not  have            advanced  Figueroa's  cause.   Hence,  the  admission of  the                                         -4-            payroll  printout  allegedly  showing  that  Lancellotti  was            absent from work on the  days in question and could  not have            known about the  events alleged by Figueroa,  and the court's            determination  that  the  printout   confirmed  Lancellotti's            testimony   that  he   was  absent,   could  not   have  been            prejudicial.                        Finally, Figueroa argues that defendants have never            returned him to an outside dermatologist regarding the lesion            on his eyelid.  The  record indicates that there was no  need            to  do so.    The  last  physician  to  evaluate  the  lesion            recommended seeing  a dermatologist again only  if the lesion            did  not heal.  In his appellate papers, Figueroa states that            the lesion left  a scar  on his eyelid,  indicating that  the            lesion has healed.                      Affirmed.                            _________                                         -5-
