Bass v. Sullivan, 76-1069

• Decision Date: 07 April 1977
• Docket Number: No. 76-1069,76-1069
• Citation: 550 F.2d 229
• Parties: Carl BASS, Petitioner-Appellant, v. L. B. SULLIVAN, Commissioner of the State of Alabama Board of Correction, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 229

550 F.2d 229

Carl BASS, Petitioner-Appellant, v. L. B. SULLIVAN, Commissioner of the State of Alabama Board of Correction, et al., Respondents-Appellees.

No. 76-1069.

United States Court of Appeals Fifth Circuit.

April 7, 1977.

Richard H. Gill, Montgomery, Ala. (Court appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., Eric A. Bowen, Asst. Atty. Gen., Charles A. Stakely, Jr., Rushton, Stakely, Johnston & Garrett, Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before GEWIN, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

In December of 1974, Carl Bass escaped from an Alabama prison and remained at large in the countryside in near and sub-freezing temperatures for a week before being recaptured. In obedience to established policy, prison authorities first took him immediately to the prison system's Mt. Meigs hospital facility, where he was found to be suffering from general exhaustion and from swollen feet and ankles. A course of treatment commenced, but within two weeks it became necessary to amputate both of his legs at or about the knee. This suit, in which Bass invokes 42 U.S.C. § 1983 to claim damages for cruel and unusual punishment resulting from denial of medical care, followed. After a bench trial, the district court denied all relief. Bass' major points on appeal address the standard of liability applied by the trial court and the sufficiency of the evidence to sustain its findings. To these we now turn.

Denial of Medical Care as Cruel and Unusual Punishment.

The Supreme Court has recently written definitively on this subject. Estelle v. Gamble, ¹ like this case, was a § 1983 civil rights action against a prison physician and other officials claiming cruel and unusual punishment by inadequate treatment. Reversing our panel, the Court upheld the District Court's dismissal of Gamble's pro se complaint against the physician as alleging, at most, malpractice and insufficient to state a claim under 42 U.S.C. § 1983.

The Court commenced its analysis by reiterating the test for cruel and unusual punishment: whether the conduct in question runs counter to evolving standards of decency or involves the unnecessary and wanton infliction of pain. ² Noting likewise that a prisoner, being disabled to provide for his own medical care, is entitled to such care from the public, the Court concluded that "deliberate indifference" to a prisoner's serious illness or injury would give rise to a § 1983 claim. ³ No less will do:

". . . an inadvertent failure to provide adequate medical care cannot be said to constitute a 'wanton infliction of unnecessary pain' or to be 'repugnant to the conscience of mankind.' Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend 'evolving standards of decency' in violation of the Eighth Amendment." ⁴

In a footnote to the passage quoted, the Court observes that the various Courts of Appeal broadly agree with the Court's "deliberate indifference" standard. Various cases are cited, that from this circuit being Newman v. Alabama, 503 F.2d 1320 (1974), cert. denied, 421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed.2d 102 (1975) ("callous indifference").

Had the district court applied the "callous indifference" standard of Newman, we would without difficulty conclude that a test in essential agreement with Gamble had been employed. The court chose instead to quote at length from the district court opinion in Newman and to enunciate as its test that of Novak v. Beto, ⁵ an older authority. Novak inquires whether there was such a neglect of plaintiff's basic medical needs as justly to be termed barbarous or shocking to the conscience. Whether Novak's barbarous/shocks-the-conscience test is "in essential agreement" with the deliberate indifference test of Gamble seems to us a close question at first blush. In the same footnote which mentions Newman, however, the Supreme Court cites Ninth and Tenth Circuit cases which employ the Novak standard ⁶ as illustrations of the circuits' essential agreement among themselves. In view of this, though of course the Supreme Court's formulation should henceforth be used, we conclude that the test applied by the district court was, though not the best formulation, a permissible one.

Bass' treatment: deliberate indifference?

We observe at the outset that there is little ground upon which to rest a conclusion of indifference by the treating physician, Dr. Baranowski. It is possible on this record to argue carelessness; it is possible to argue the deliberate creation of a charade or simulacrum of treatment insidiously designed to injure rather than to cure; but it is very difficult to make even a colorable showing of indifference. Dr. Baranowski saw Bass on either the first or second day after his return and virtually every day thereafter. By his instructions, Bass received whirlpool and heat-cradle treatments, intravenous infusions, drugs designed to increase circulation in his affected members, two antibiotics (though in very moderate dosages), analgesic pain relievers, oxygen for a respiratory problem, and on occasion a tranquilizer. He was under the care of at least three different licensed professional nurses, apparently having one in sole attendance on him most of the time after the seriousness of his condition became apparent. The orders governing his treatment were changed from time to time by Dr. Baranowski and finally, when hope was lost, Dr. Baranowski arranged for the necessary operation to remove his gangrenous legs. All this took place in the space of about two weeks.

Whatever this course of treatment may indicate, it is not indifference. Whether it might constitute malpractice is not our concern; Gamble teaches that malpractice will not lie under § 1983, and Bass has his malpractice suit on file in the state court system. The only remaining logical possibility for liability is that Dr. Baranowski, in a fiendish course of action reminiscent of King's Row, deliberately set out to injure rather than benefit Bass. To believing this there are various impediments. The first is that no adequate...