Calvert v. Sharp, 83-6569

Citation748 F.2d 861
Decision Date09 November 1984
Docket NumberNo. 83-6569,83-6569
PartiesCharles Edward CALVERT, Appellee, v. Dr. Nathaniel SHARP, Appellant, and Warden Paul Davis, Maryland House of Correction, Jessup, Maryland; Dr. Bear of the Maryland House of Corrections, Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

David H. Bamberger, Baltimore, Md. (E. Fremont Magee, Baltimore, Md., on brief), for appellant.

Devarieste Curry, Third Year Law Student, Appellate Litigation Clinic, Georgetown University Law Center (Steven H. Goldblatt, Director, Appellate Litigation Clinic, Samuel Dash, Director, Susan Siegal, Appellate Law Fellow, Washington, D.C., Mark J. Swerdlin, Student Counsel, on brief), for appellee.

Before WIDENER, SPROUSE and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

Appellant, Dr. Nathaniel Sharp, is a private physician to whom Respondent, Charles Edward Calvert, was referred. Calvert, an inmate at the Maryland Penitentiary, brought this action against Dr. Sharp and two other defendants pursuant to 42 U.S.C. Sec. 1983 for the violation of his eighth amendment rights by their alleged failure to provide him with medical treatment. Dr. Sharp moved (1) for the dismissal of the complaint for lack of subject matter jurisdiction on the grounds that he did not act under color of state law and (2) for summary judgment. The trial judge denied both motions. Dr. Sharp appealed from the denial of his motion to dismiss the complaint. We reverse.

The central issue is whether Dr. Sharp, in exercising his medical judgment as to what, if any, medical treatment to provide Calvert, can be fairly seen to have acted under color of state law.

I

Dr. Sharp is a private orthopedic specialist employed by Chesapeake Physicians, P.A. (CPPA). CPPA is a Maryland nonprofit professional corporation employing numerous physicians and other health personnel and providing private medical services to the general public throughout the Baltimore area. CPPA also provides medical services to the inmates at the Maryland House of Corrections and the Maryland Penitentiary through a contract with the State of Maryland. Dr. Sharp would examine and treat inmates at these facilities upon referral from other physicians.

Calvert was incarcerated first at the Maryland House of Correction from April 1980 until March 1981 when he was transferred to the Maryland Penitentiary. He suffers several physical ailments, and from April 1980 through May 1982, medical personnel examined or treated him on over seventy different occasions. Calvert was referred to Dr. Sharp on five separate occasions from July 1980 through December 1981. He does not allege that Sharp refused to see him, but that Sharp did not treat him on these visits.

Calvert claimed that such failure violated his eighth amendment rights. Dr. Sharp moved to dismiss the complaint because of a lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). He asserted that under Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), he had not acted under color of state law in exercising his medical judgment. The trial judge denied his motion, holding that Dr. Sharp did act under color of state law according to Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). We disagree and reverse.

II

To maintain a Sec. 1983 action a plaintiff must establish as a jurisdictional requisite that the defendant acted under color of state law. Polk County, 454 U.S. at 315, 102 S.Ct. at 448. A person acts under color of state law "only when exercising 'power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.' " Id. at 317-18, 102 S.Ct. at 449 (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941) ). The ultimate issue in determining if a person is subject to suit under Sec. 1983 is whether the alleged infringement of federal rights is fairly attributable to the state. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982). This is a fact-bound inquiry. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982).

Because Calvert is an inmate we have liberally construed his pro se complaint and his response to Dr. Sharp's motions in making this inquiry. 1 Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). We have also examined the evidence submitted to us in the record in determining that subject matter jurisdiction does not exist. 2 This is proper under a 12(b)(1) motion to dismiss. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982).

III

In Polk County, the Supreme Court held that a public defender, employed by the state, did not act under color of state law in deciding not to perfect an appeal she believed to be frivolous. Although the attorney's employment relationship with the state was a relevant factor, the attorney's function was determinative in resolving whether she acted under color of state law. Polk County, 454 U.S. at 319, 102 S.Ct. at 450. As a matter of law the professional obligations and functions of an attorney establish that an attorney does not act under color of state law when representing a prisoner even though the attorney is employed by the state. Id.

Unlike the attorney in Polk County, Dr. Sharp is privately employed. Private physicians exercise their own judgment and make their own medical decisions according to standards not established by the state. Blum v. Yaretsky, 457 U.S. 991, 1008-09, 102 S.Ct. 2777, 2788, 73 L.Ed.2d 534 (1982). Their physician-patient relationships are the same, with the same obligations and duties, both within and without the prison walls. A private physician is not, and by the nature of his function cannot be the servant of an administrative superior. See The American Medical Association Standards for Health Services in Prisons (Standard 102 states: "Matters of medical ... judgment are the sole province of the responsible physician.") (emphasis added). The American Medical Association Principles of Medical Ethics; The Hippocratic Oath. The ethical obligations of physicians date back to the time of the ancient Greeks. E.g., The Hippocratic Oath.

In his brief Calvert recognizes that a physician owes his ethical obligation and undivided loyalty to his patient. The loyalty owed by Dr. Sharp was potentially adverse to the interests of the state. Dr. Sharp had no supervisory or custodial functions. Compare Polk County with Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (in Estelle and Gamble the physicians were employed directly by the state and had custodial or supervisory functions). Sharp's function and obligation was solely to cure orthopedic problems.

In exercising his judgment in the treatment of inmates, the private physician performs a private function traditionally filled by retained physicians. The professional obligations and functions of a private physician establish that such a physician does not act under color of state law when providing medical services to an inmate. See Hall v. Quillen, 631 F.2d 1154 (4th Cir.1980); see also Blum, 457 U.S. at 1008-09, 102 S.Ct. at 2788; cf. Polk County, 454 U.S. at 319-24, 102 S.Ct. at 450-53 (in which the Supreme Court discusses the obligations and functions of attorneys).

IV

The Supreme Court has advanced a number of other factors to determine if a private act is done under color of state law. The parties discuss two: the dependence of the actor on the state for funds, Rendell-Baker, 457 U.S. at 840-41, 102 S.Ct. at 2771-72 (1982), and the performance by the actor of a "public function", Id. at 842, 102 S.Ct. at 2772.

Dr. Sharp is not dependent upon the State for funds. He is employed by CPPA and not the State. Nor is CPPA dependent on the State for funds. CPPA provided services not just to the two Maryland correctional facilities but to the general public as well. "Acts of ... private contractors do not become acts of the government by reason of their significant or even total engagement in performing public contracts." Id. at 841, 102 S.Ct. at 2771.

Dr. Sharp's position is analogous to that of the public defender found not to be a state actor in Polk County. There the Supreme Court found that the attorney-client relationship did not change even though the state paid the attorney. Polk County, 454 U.S. at 321, 102 S.Ct. at 451. Here the relationship between Dr. Sharp and his patient does not change because the state pays Dr. Sharp's employer.

Nor was Dr. Sharp engaged in a "public function." The ultimate determination is whether the function performed has been " 'traditionally the exclusive prerogative of the State.' " Blum, 457 U.S. at 1011, 102 S.Ct. at 2789 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353, 95 S.Ct. 449, 454, 42 L.Ed.2d 477 (1974)) (emphasis added). The State of Maryland provides that sick prisoners may be removed from an institution if its facilities are inadequate, and they may be taken to any place within the State where adequate...

To continue reading

Request your trial
36 cases
  • Davis v. Hudgins
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 2 Agosto 1995
    ...509 (1981) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)); see also Calvert v. Sharp, 748 F.2d 861, 862 (4th Cir.1984), cert. denied, 471 U.S. 1132, 105 S.Ct. 2667, 86 L.Ed.2d 283 Defendants Hudgins, Simmons, Andleton, Dixon, Dalton, Ellenso......
  • US v. Kensington Hosp.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 13 Marzo 1991
    ...It is undisputed that the typical doctor-patient relationship contains elements of a fiduciary relationship. See, e.g., Calvert v. Sharp, 748 F.2d 861, 863 (4th Cir.1984) ("A physician owes his ethical obligation and undivided loyalty to his patient."), cert. denied, 471 U.S. 1132, 105 S.Ct......
  • West v. Atkins
    • United States
    • U.S. Supreme Court
    • 20 Junio 1988
    ...to his serious medical needs, by failing to provide adequate treatment. Relying on a decision of its controlling court in Calvert v. Sharp, 748 F.2d 861 (CA4 1984), cert. denied, 471 U.S. 1132, 105 S.Ct. 1132, 86 L.Ed.2d 283 (1985), the District Court granted Doctor Atkins' motion for summa......
  • US v. Neufeld
    • United States
    • U.S. District Court — Southern District of Ohio
    • 27 Noviembre 1995
    ...there certainly are elements of a fiduciary relationship between Dr. Neufeld and his patients. See, e.g., Calvert v. Sharp, 748 F.2d 861, 863 (4th Cir.1984) ("A physician owes his ethical obligation and undivided loyalty to his patient."), cert. denied, 471 U.S. 1132, 105 S.Ct. 2667, 86 L.E......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT