At page 626 “gravamen of his claim is not that he was erroneously diagnosed by the prison doctor, but that the warden refused to allow him authorized medicine that he needed to prevent serious harm to his health.”23 citing cases
- Fuller v. Louisville Metro Gov't, No. 3:17-cv-00661 (W.D. Ky. Sept. 20, 2022).However, “in some cases the medical attention rendered may be so woefully inadequate as to amount to no treatment at all.” Westlake v. Lucas, 537 F.2d 857 , 860 n.5 (6th Cir. 1976) (citing Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970…
- (PC) Stephen v. Tileston, No. 2:20-cv-01841 (E.D. Cal. Sept. 22, 2020).Cal. June 10, 2014) (“The 26 Eighth Amendment does not require that [a prisoner] receive ‘unqualified access to health care,’ 27 nor does it entitle to him to the treatment he wants.”) (quoting Hudson v. McMillian, 503 U.S. 1 , 28 9 (1992)…
- Est. of Richie Majors v. Roger Gerlach, No. 19-1457 (6th Cir. July 28, 2020).Moreover, prior to these cases we had already indicated that although in situations “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to se…
- Hubbs v. Cnty. of San Bernardino, CA, 538 F. Supp. 2d 1254 (C.D. Cal. 2008).See, e.g., Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir.1999) (“[A] prison official acts with deliberate indifference when he ignores the instructions of the prisoner’s treating physician or surgeon.”); Hamilton v. Endell, 981 F.2d…
- Cnty. of El Paso v. Dorado, 180 S.W.3d 854 (Tex. App.—El Paso 2006).See Page v. Sharpe, 487 F.2d 567, 569 (1st Cir.1973); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir.1974) (uses the phrase “deliberate indifference”); Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir.1970); Russell v. Sheffer, 528 F.2d 318…
- Cnty. of El Paso v. Dorado, No. 08-03-00421-CV (Tex. App.—El Paso Dec. 1, 2005).See Page v. Sharpe , 487 F.2d 567, 569 (1st Cir. 1973); Williams v. Vincent , 508 F.2d 541, 544 (2d Cir.1974) (uses the phrase “deliberate indifference”); Gittlemacker v. Prasse , 428 F.2d 1, 6 (3rd Cir. 1970); Russell v. Sheffer , 528 F.2…
- Cnty. of El Paso v. Dorado, No. 08-03-00421-CV (Tex. App.—El Paso Sept. 15, 2005).See Page v. Sharpe , 487 F.2d 567, 569 (1st Cir. 1973); Williams v. Vincent , 508 F.2d 541, 544 (2d Cir.1974) (uses the phrase “deliberate indifference”); Gittlemacker v. Prasse , 428 F.2d 1, 6 (3rd Cir. 1970); Russell v. Sheffer , 528 F.2…
- Scott v. Garcia, 370 F. Supp. 2d 1056 (S.D. Cal. 2005). See Estelle, 429 U.S. at 104-05 , 97 S.Ct. 285 (deliberate indifference may be manifest where guards “intentionally interfere with treatment once prescribed”); Wakefield v. Thompson, 177 F.3d 1160, 1165 (9th Cir. 1999) (prison officials ac…
- Jeff K. Peace v. Donna Caldwell, R.N., 892 F.2d 1046 (9th Cir. 1990).Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.1970). 13 The essence of plaintiff's complaint appears to be his objection to the administration of his medications in crushed or powdered form, which he found to be humiliating and infantile.
- Ochoa v. Superior Court, 703 P.2d 1 (Cal. 1985). Westlake, 537 F.2d at p. 860, n. 5 ; Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.1970); Riley v. Rhay, 407 F.2d 496 (9th Cir.1969); Stilner v. Rhay, 371 F.2d 420 , 421 n. 3 (9th Cir.), cert. denied, 386 U.S. 997 , 87 S.Ct. 1318 , 18 L.Ed.…
Show 13 more citing cases
- Holloway v. Dobbs, 715 F.2d 390 (8th Cir. 1983).See Wilbron v. Hutto, 509 F.2d 621, 622 (8th Cir.1975) (per curiam) (prison officials allegedly refused to return prisoner to hospital for required surgery on injured hand and instead forced him to work in fields, causing further injury to…
- Sturts v. City of Philadelphia, 529 F. Supp. 434 (E.D. Pa. 1982).Westlake, 537 F.2d at 860, n. 5 ; Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970); Riley v. Rhay, 407 F.2d 496 (9th Cir. 1969); Stiltner v. Rhay, 371 F.2d 420 , 421 n. 3 (9th Cir.), cert. denied, 386 U.S. 997 , 87 S.Ct. 1318 , 18 L.Ed.…
- Frazier v. Wilson, 450 F. Supp. 11 (E.D. Tenn. 1977). Tolbert v. Eyman, C.A.9th (1970), 434 F.2d 625, 626 [1], Thus, the refusal of the defendant to allow the plaintiff authorized medicine that he needed to prevent serious harm to his health, as claimed by the plaintiff, states “ * * * a perf…
- Dillard v. Pitchess, 399 F. Supp. 1225 (C.D. Cal. 1975).But where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness, the denial of such aid constitutes the deprivation of constitutional due process.” See also, Tolbert v. Eyman, 434 F.2d 625…
- Bjork v. Slaughter, No. 6:18-cv-00107 (D. Mont. June 10, 2021).(recognizing that the “failure or refusal to provide medical care, or treatment so cursory as to amount to no treatment at all, may, in the case of serious medical problems, violate” the constitution)
- Benge v. Corizon Health LLC, No. 2:18-cv-00349 (D. Ariz. Feb. 18, 2021). See 11 Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970). 12 Furthermore, “[a]n inmate challenging denial of treatment must [show] that the 13 denial was ‘medically unacceptable under the circumstances,’ and made ‘in conscious 14 disrega…
- Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985).See Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.1970).
- Carol Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985).See Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.1970).
- Feliciano v. Barcelo, 497 F. Supp. 14 (D.P.R. 1979).(warden refused authorized medicine)
- Edward E. Westlake v. William Lucas, Sheriff of Wayne Cnty., 537 F.2d 857 (6th Cir. 1976).See Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970).
- Wright v. Anding, 390 P.3d 1162 (Alaska 2017).Id. at 105-06, 97 S.Ct. 285 ; see also Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970) ("Prison officials and medical officers have wide discretion in treating prisoners, and a simple claim of malpractice does not give rise to a claim…
- Rosado v. Alameida, 497 F. Supp. 2d 1179 (S.D. Cal. 2007).See, e.g., Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir.1970); see also Martinez v. Mancusi, 443 F.2d 921 , 924 *1195 (2d Cir.1970); White v. Napoleon, 897 F.2d 103, 106-10 (3d Cir.1990). - Here, Plaintiff presented evidence tending to sho…
- Johnson v. Wright, 234 F. Supp. 2d 352 (S.D.N.Y. 2002).The fact that a plaintiff received regular medical care does not preclude a finding of deliberate indifference where the “course of treatment was largely ineffective and [the defendant] declined to do anything more to attempt to improve [t…
Other citing cases
- Alexander v. Fed. Bureau of Prisons, 227 F. Supp. 2d 657 (E.D. Ky. 2002).
- Robert L. Twyman v. Richard A. Crisp, Phillip Kirk, Melvin D. Typer, James E. Sorrells, & Charles E. Stamper, 584 F.2d 352 (10th Cir. 1978).
- Matthews v. Brown, 362 F. Supp. 622 (E.D. Va. 1973).
v.
Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee
Appellant, Hildrie H. Tolbert, an Arizona state prisoner suing in propria persona for damages and equitable relief under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, appeals from an order granting the motion of the appellee, Warden Frank Eyman, to dismiss under rule 12(b) (6), Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted.
[*626] Appellant’s complaint alleges that he is a diabetic. In 1963, he was diagnosed as suffering from diabetic retinopathy, a disease affecting the eye, and received treatment that substantially improved his vision. After his incarceration in 1967, he received insulin only once a day and one pill a day for high blood pressure. Tolbert alleges that he is now nearly blind and that his legs and feet are continually swollen. He informed a prison doctor of his ailments, but the doctor responded that “he would be the first man in medical history if he had the eye condition” of which he complained. Nevertheless, he and another doctor informed appellant that he could have the medication that he desired if he paid for it. Thereafter, appellant’s wife twice sent him the medicine, but prison authorities returned it to her each time for “security reasons.” Appellant alleges, that he was then told that he could receive the medication if it were sent directly by a druggist. Twice ■ Tolbert’s druggist sent the medicine; and twice it was returned.
The district court dismissed the complaint on the ground that Tolbert had failed to show medical care and treatment so inadequate as to justify federal intervention.
Prison officials and medical officers have wide discretion in treating prisoners, and a simple claim of malpractice does not give rise to a claim under sections 1981 or 1983. (Riley v. Rhay (9th Cir. 1969) 407 F.2d 496; Stiltner v. Rhay (9th Cir.) 371 F.2d 420, cert. denied (1967) 386 U.S. 997, 87 S. Ct. 1318, 18 L.Ed.2d 346.) However, failure or refusal to provide medical care, or treatment so cursory as to amount to no treatment at all, may, in the case of serious medical problems, violate the Fourteenth Amendment. (Riley v. Rhay, supra; Stiltner v. Rhay, supra, 371 F.2d at 421 n. 3.)
Appellee has attempted, as did the district court, to characterize Tolbert’s allegations as showing only a difference of opinion between physician and patient over the proper diagnosis and treatment. Such allegations would not state a claim. However, this argument, even if supported by the record, completely misses the thrust of Tolbert’s complaint, which names as defendant not the doctors, but the warden. The gravamen of his claim is not that he was erroneously diagnosed by the prison doctor, but that the warden refused to allow him authorized medicine that he needed to prevent serious harm to his health. These allegations state a perfectly viable claim against the appellee. (See Riley v. Rhay, supra; Coleman v. Johnston (7th Cir. 1957) 247 F.2d 273; McCollum v. Mayfield (N.D.Cal.1955) 130 F.Supp. 112.)
Although the above disposition of appellee’s argument and of the district court’s opinion is sufficient to require reversal, we reach the merits of that argument because the course that this action has taken at trial and on appeal makes it most improbable that the district court, and eventually this court, will not be faced with those issues during later stages of this litigation. Appellee argues that Tolbert has not stated a claim against the doctors because he did not, as he must, allege that they refused or failed to treat him. Moreover, appellee argues that appellant could not have amended his complaint to meet this requirement because his original complaint shows that appellant did receive an examination and that, therefore, he could not claim to the contrary. Appellee relies heavily upon Tolbert’s allegation that the prison physician scoffed at his complaint of eye trouble to establish that appellant was, in fact, given an examination. There is no indication that the doctor’s comment was made during or following an examination. Indeed, the subsequent authorization to purchase medicine seems inconsistent with an initial examination and diagnosis. Tolbert may very well have been given adequate examination, diagnosis, and treatment; but, on the record before us, the poten[*627] tial for strong factual dispute is apparent. This dispute cannot be dealt with by dismissal without leave to amend.
Reversed and remanded.