USCA1 Opinion

March 14, 1995

NOT FOR PUBLICATION
NOT FOR PUBLICATION
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
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Gibson,* Senior Circuit Judge,
____________________

and Stahl, Circuit Judge.

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John J. O'Connor with whom Allen N. David and Peabody & Arn
________________
_______________
______________
were on brief for appellant.
Thomas M. Elcock with whom Morrison, Mahoney & Miller was
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____________________________
brief for appellees Phin Cohen, M.D. and Ronald Goldberg, M.D.
Herbert C. Hanson, Senior Litigation Attorney, Massachuse
___________________
Department of Correction, with whom Nancy A. White, Special Assist
_______________
Attorney General, was on brief for appellees Clair Wilson and Eve
Alborghetti.
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*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
their

for an alleged Eighth

provision to

him

of

medical

episode involves delays in referring

an appendectomy
avoid

Amendment violation in
treatment.

main

him to a hospital where

was performed, successfully but

painful complications

The

that were

too late to

eventually overcome.

The district court granted summary

defendants,

and Dias

appeals.

judgment in favor of
Although the appeal

frivolous, we think (reviewing

the matter de novo)

_______

the

is not
that the

district court was correct.

The facts are set
court's

forth in some detail in

14-page opinion

constitutional

standard

and
of

need

not

misconduct

the district

be repeated.
in

such

The
case--

"deliberate indifference" to the prisoner's needs rather than

mere negligence--is settled.
(1976).
a

Estelle v. Gamble, 429 U.S. 97

_______
______

The only issue is the application of the standard to

particular

set

of facts.

reasonable jury could find

The

question

is whether

such deliberate indifference.

a
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

different times,

attack on October 1, 1989.

both nurses provided treatment

-2-2-

At

to Dias for

the pain

in his side that

his symptoms
severity of
provided

should

he reported.

have alerted

them

his affliction, there

them

with

vomiting) that he
any fault in

the

full

While
to the

nature

is no indication

list

of

their treatment of him,

and

that he

symptoms

has described on the appeal.

variety negligence--and may well

he says that

(nausea,

If there was

it was at most

garden

not have been negligence at

all.
The

next

to see

Goldberg.

He

immediate

surgery,

about

10:30 p.m.,

correctly diagnosed appendicitis,

primary physician.
was

Dias, at

responsible

and contacted
There is

for the

Dr.

Cohen,

no evidence that

wait

of several

suffered before Dr. Goldberg examined him.

was Dr.

recommended
who was

the

Dr. Goldberg

hours

that Dias

Dias also asserts

that Dr. Goldberg had continuing responsibility and therefore

shares in the blame for what Dr. Cohen did next.
is thin but need not be pursued

This theory

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.
resolve

on

operated more

It
this

is possible--the matter
record--that

quickly.

But once

the

is difficult

hospital

Dias had been

should

to
have

sent to the

hospital,

he

was

in its

immediate

care

and

not in

Dr.

-3-3-

Cohen's.

Dias'

deliberate

argument,

therefore, is

indifference was

in failing

that Dr.
to

Cohen's

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

Shattuck would have

for it to occur
why

were

indicated,

provided for it

presumably

or (at worst)

elsewhere; at least Dias provides

Dr. Cohen should have thought otherwise.

hospital may
not make

have erred,

Dr. Cohen

indifference.
Affirmed.
_________

arranged
no reason

Of course, the

perhaps grievously, but

liable, let alone

Lemuel

guilty of

that does
deliberate

Thus, there was nothing to submit to the jury.

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