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NOT FOR PUBLICATION
NOT FOR PUBLICATION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
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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.
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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.
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