Sires v. Berman, 87-1243

Citation834 F.2d 9
Decision Date16 September 1987
Docket NumberNo. 87-1243,87-1243
PartiesWilliam S. SIRES, Jr., Plaintiff, Appellant, v. Louis M. BERMAN, et al., Defendants, Appellees. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Margaret H. Marshall with whom Leonard M. Singer, by Appointment of the Court, and Csaplar & Bok, Boston, Mass., were on brief for appellant.

William A. Mitchell, Asst. Atty. Gen., Civ. Bureau, with whom Mark P. Sutliff, Asst. Atty. Gen., Civ. Bureau, and James M. Shannon, Atty. Gen., Boston, Mass., were on brief for appellees William Callahan, Michael Walonis, Cecil Driscoll, Vera Derosa, Joan Dalton, Ruth Balboni, Steven Chretian, Jean Plasse and John Krikorian.

Thomas C. Federico with whom Peter C. Knight, Bruce R. Henry and Morrison, Mahoney & Miller, Boston, Mass., were on brief for appellees Ronald I. Goldberg & Associates, Shirley Greene and John J. McNulty.

Before COFFIN, ALDRICH and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Sires, plaintiff below, appeals from summary judgment on a 42 U.S.C. Sec. 1983 action brought against the medical staff, supervisors and guards of the Massachusetts Correctional Institute at Norfolk (MCI-Norfolk) (nineteen defendants in all) where he is an inmate. The complaint alleges that several of the defendants demonstrated a deliberate indifference to Sires' medical needs in violation of the eighth amendment, while others are accused of submitting a disciplinary report for the purpose of preventing him from asserting his constitutional right of access to courts.

On appeal, Sires mainly challenges the district court's finding that there were no genuine issues of material fact as to the eighth amendment claim and as to the improper disciplinary report claim; and the lifting of default judgments against, with the subsequent entry of summary judgments for some of the defendants.

Background

While an inmate at MCI-Norfolk, Sires underwent a cardiac catheterization in Massachusetts General Hospital (MGH) in Boston. As a result of that and other tests he was diagnosed as having a coronary artery disease. After consultations with the physicians at MGH, Sires elected to undergo by-pass surgery in the future, and returned to MCI-Norfolk where he was placed in the infirmary.

The doctors at MGH recommended he remain in the infirmary only a few days to recover from the catheterization incision. He stayed, however, from February 21, 1981 until April 19, 1981.

One of the medications recommended by the MGH doctors, and prescribed at the infirmary, was nitropaste--nitroglycerin in paste form. This medication is applied externally, and absorbed through the skin. It acts to dilate the blood vessels around the heart, allowing more oxygen to reach the heart. In addition the MGH doctors recommended that Sires be put on a low sodium, low cholesterol diet.

Sires is reported to have acted belligerently during the time that he was in the infirmary, and several clashes occurred between him and the staff there, culminating in the events giving rise to this litigation. The infirmary staff had always applied the nitropaste to him. One evening during medication call, he asked nurse Balboni, who was on duty, to help him again. The nurse was apparently attending to another patient, and told him to "do it yourself," allegedly adding a vulgar statement. Sires claims that, at the time, he was unable to apply the paste anywhere but on his back, since the front of his body was inflamed from previous applications. The nurse did come back later, but another inmate had already helped Sires.

A few days later, when nurse Balboni came back on duty, Sires approached the duty officers, Plasse and Chretian, and said, as he later reported, "that I didn't want to be put in a Trick Bag or Jackpot with this nurse, and if she came out of the left hand side of her mouth with something vile, and refused to treat me that I might do something foolish and nail her." Sires also told the guard, according to the report, that he better be careful because they may meet again. This incident prompted the disciplinary report challenged in the complaint.

After this the medical staff discontinued the practice of assisting Sires with the nitropaste. A couple of infirmary physicians decided Sires could apply it himself, and this decision was later ratified by the original doctor at MGH. After several more altercations Sires was discharged from the infirmary.

Two days later, Sires missed the 8:00 a.m. medication call. He informed the superintendent of the problem. The superintendent referred it to the assistant superintendent, who called the infirmary and was told that Sires could wait for the noon call without adverse effects. In fact, no adverse effects from this delay appear anywhere in the record.

Finally, Sires complains that some of the meals he received did not comply with his prescribed diet. He did, however, discuss these lapses with a dietitian who attempted to ensure that they did not recur.

I. Discussion

A. Deliberate indifference to a serious medical need.

The Supreme Court has recognized that deliberate indifference on the part of prison staff to the serious medical needs of an inmate can constitute cruel and unusual punishment under the eighth amendment. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A plaintiff must satisfy two elements to present a viable claim: he must show a serious medical need, and he must prove the defendant's purposeful indifference thereto.

Sires attempts to satisfy the first of these two elements by arguing that his heart condition is serious, and that the nitropaste is necessary to control it. Assuming that he had an urgent need for the nitropaste--though the record reflects that he also had nitroglycerin pills he could use in an emergency--Sires has not shown a serious need for the application of the paste by a nurse. He could, as he did, have another inmate apply the paste, or, on occasion, apply it himself. In fact, the expert's testimony was to the effect that rarely, if ever, do nitropaste users count upon medical assistance.

He does claim that he once was not helped when he could not apply it himself, and he had to find another inmate to do it for him. The record shows, however, that he simply could have waited until the nurse finished with another patient. Indeed, the fact that he could find another person to apply the paste indicates he really did not need the nurse. He also complains that, after several incidents with the nursing staff, the doctors decided he no longer needed assistance and that this decision was not based on medical factors, but was a post hoc rationalization for the nurses' reluctance to help him. He does not, however, show any ill effects from this deprivation. Sires undeniably has a serious heart condition, but he has not presented any evidence of a serious medical need that has gone unmet.

As the district court found, this is, at worst, a case of a petty squabble with an overworked, or even rude, nurse, something not foreign to the experience of many of us not in prison, and certainly not an indifference that can offend "evolving standards of decency." Estelle v. Gamble, supra, at 106, 97 S.Ct. at 292.

Even if we agreed that the evidence supports an initial inference of a need gone unmet, Sires is far from a threshold showing of deliberate indifference. The worst incident Sires can point to is that a nurse initially refused to give him medicine when he could not apply it himself, but came back to help him when she was done with another patient. Surely the courts should not undertake to tell nurses in which order to attend to their patients.

The next challenged decision, by the doctors, is also...

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