                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

           United States Court of Appeals
                        For the First Circuit
No. 02-1918

                          STEPHEN P. KNIGHT,
                         Plaintiff-Appellant,

                                      v.

              BROCKTON HOSPITAL; THE ARBOUR HOSPITAL,
                       Defendants-Appellees,

       CITY OF BROCKTON; CITY OF BOSTON, Police Department;
                    BROCKTON POLICE DEPARTMENT,
                            Defendants.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS
     [Hon. Edward F. Harrington, Senior U. S. District Judge]


                                   Before

                      Torruella, Circuit Judge,
                 Stapleton,* Senior Circuit Judge,
                    and Howard, Circuit Judge.



     Malcolm J. Barach, for appellant.
     Daniel J. Buoniconti, for appellee, Brockton Hospital.
     Janet J. Bobit, with whom Jeffrey W. Coleman was on the brief,
for appellee, The Arbour Hospital.


                             October 8, 2003




*   Of the Third Circuit, sitting by designation.
               STAPLETON, Circuit Judge.       Appellant Stephen Knight asks

us   to   determine     whether    the   claims   he   asserts   were   properly

referred to a medical malpractice tribunal under Massachusetts Law,

Chapter 231, § 60B.         We hold that they were not and, therefore,

reverse and remand for further proceedings.

                                         I.

               The complaint alleges that the police entered Knight’s

home without a warrant, sprayed mace in his eyes, and took him to

Appellee Brockton Hospital. There, he was examined and transferred

to Appellee Arbour Hospital, where he was “confined for some 21

days without legal justification and without his consent.”

               Based on these factual allegations, Knight asserts claims

under     42   U.S.C.   §   1983   and    Massachusetts    law   against    both

hospitals, the city of Brockton, and its police department.                These

include an illegal search and seizure claim, an invasion of privacy

claim, a false imprisonment claim, an assault and battery claim,

and a claim based on Massachusetts’s involuntary civil commitment

statute, Mass. Gen. L. c 123.

               The Appellee hospitals moved to have the case referred to

the Massachusetts Superior Court for the purpose of convening a

medical malpractice tribunal under Mass. Gen. L. c 231 § 60B.               Over

Knight’s objection, this motion was granted and a tribunal was

convened.       Knight declined to submit evidence to this tribunal,

however, and the Superior Court decided in favor of the hospitals


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for that reason and, pursuant to the statute, directed Knight to

post a $6,000 bond.     Based on Knight’s failure to post a bond, the

district court entered judgment in favor of the hospitals under

Fed. R. Civ. P. 54(b).     This appeal followed.

                                   II.

           Under Massachusetts law, “[e]very action for malpractice,

error or mistake against a provider of health care shall be heard

by a tribunal consisting of a single justice of the superior court,

a physician licensed to practice medicine in the commonwealth . .

. and an attorney authorized to practice law in the commonwealth.

. . .” Mass. Gen. L. ch. 231, § 60B.        “The function of a medical

malpractice tribunal is to separate medical malpractice claims into

two groups: those appropriate for judicial evaluation, and those

involving merely an unfortunate medical error” Millian v. Deaconess

Waltham Hosp., 2001 Mass. Super LEXIS 450, *7 (Mass. Super. 2001).

“[A] tribunal . . . evaluate[s] only the medical aspects of a

malpractice claim for the purpose of distinguishing between” those

types of cases.    Salem Orthopedic Surgeons., Inc. v. Quinn, 386

N.E.2d   1268,   1272   (Mass.   1979).     “The   tribunal   procedure,

therefore, is appropriate only where there is an issue of medical

malpractice, error or mistake.”          Leininger v. Franklin Medical

Center, 534 N.E.2d 1151, 1152 (Mass. 1989) (quotation omitted and

emphasis in original).

           Knight insists that he is not complaining about “medical


                                   -3-
malpractice, error or mistake” and the hospitals are unable to

point to any allegation in the complaint that is contrary to this

assertion. Rather, they suggest that if Knight were required to be

more specific, it would be apparent that he is challenging a

medical decision.           While that may turn out to be the case, the

hospitals did not move to dismiss for failure to state a claim or

for    a    more     definite    statement.       A    plaintiff     is   entitled   to

determine what claims he wishes to have adjudicated and until it

affirmatively appears that a claim involves a challenge to a

medical decision or treatment, a medical malpractice tribunal

convened under the Massachusetts statute has no jurisdiction.

Leininger, 534 N.E.2d at 1152.1               Accordingly, this matter must be

remanded to the district court.

                  We do not, of course, suggest that a referral to a

medical          malpractice    tribunal   will       not   be    appropriate   if   it

subsequently appears that one of Knight’s state law claims presents

a medical issue.          Feinstein v. Massachusetts General Hospital, 643

F.2d       880    (1st   Cir.   1981)   (when    a    federal     district   court   is

exercising its diversity jurisdiction, the Rules of Decision Act,

28 U.S.C. § 1652, requires it to apply the Massachusetts medical

malpractice         statute).      To   the     extent      the   district   court   is



       1
     Contrary to the suggestions of the hospitals, this does not
appear to be a case in which the plaintiff’s claim challenges a
medical decision but attempts to evade the statute by suing on
other than a malpractice theory.

                                           -4-
confronted on remand with an argument that one of Knight’s claims

under § 1983 should be submitted to such a tribunal, we do suggest

that it determine whether the Massachusetts statute was intended to

apply to such claims and whether it would be constitutional if so

applied.

                               III.

           The judgments of the district court are reversed, and

this matter is remanded to that court for proceedings consistent

with this opinion.




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