Boretti v. Wiscomb

Decision Date09 July 1991
Docket NumberNo. 90-1427,90-1427
Citation930 F.2d 1150
PartiesDavid G. BORETTI, Plaintiff-Appellant, v. Beverly A. WISCOMB, R.N., Wanda M. Baldwin, R.N., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

David G. Boretti, pro. se.

John H. Dise, Jr., Craig, Farber, Downs & Dise, Detroit, Mich., for defendants-appellees.

Before KEITH and MARTIN, Circuit Judges and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

The pro se plaintiff-appellant, David G. Boretti, appeals the district court's grant of summary judgment to defendant-appellee, Beverly A. Wiscomb, R.N., a nurse at the Oakland County Jail where plaintiff was incarcerated, in this 42 U.S.C. Sec. 1983 suit for a violation of the Eighth Amendment's cruel and unusual punishment clause. 1


This is a prisoner civil rights suit in which the pro se plaintiff David G. Boretti, a state prisoner, alleges that he was denied medical care during the time that he was housed in a holding cell at the Oakland County Jail in Pontiac, Michigan from December 30, 1987 until January 4, 1988. Plaintiff received a gunshot wound to his left thigh about three weeks before he was transferred to the jail on December 30. On December 12, 1987, he was hospitalized at Botsford Hospital for this leg wound, which was incurred while he was an escapee. At Botsford Hospital, he underwent surgery for the gunshot wound. The doctors informed him that the surgery could have failed and resulted in amputation of his leg. After surgery, he was transferred to Jackson Prison. At Jackson, he was treated at the infirmary, was discharged, and was sent back to his cell block on December 26, 1987.

The discharge instructions on his medical record from the Jackson infirmary reads as follows:

12-26-87: Discharge instructions for medical record. Pt. discharged from DWH following s/p care for GSW L thigh. Discharge instructions include:

1. Regular diet

2. Drsg csg daily (2x2's)

3. Shower

4. Ambulate to crutches

5. Motrin 800 mg po tid prd X 2 weeks

6. Follow w/ Dr. Brown internal med clinic in 1 week.

On December 30, 1987, plaintiff was transferred to the Oakland County Jail, where he was placed in a holding cell. The incidents of which plaintiff complains took place between December 30, 1987 and January 4, 1988. Plaintiff alleges in his complaint the following:

At approximately 2 p.m. on the afternoon of December 30, 1987, plaintiff was booked at the Oakland County Jail and notified the booking deputies of his medical needs for treatment of the wound and pain medication. The deputies then informed him that they had called the infirmary and told the infirmary about his medical needs for bandage changes for the wound and that he had requested medication for pain. On the afternoon of December 30, 1987, defendant Wiscomb, a nurse at the jail, was notified by the officer at booking that plaintiff had been moved from the booking area to a holding cell on R-2. The holding cells had no beds and plaintiff was forced to sleep on the cement floor. Plaintiff was given no dressings for the wound. His crutches were taken away at booking, but since the holding cells were so small, plaintiff did not think he would require them while there.

Four hours later, defendant Wiscomb made her medical rounds to the holding cells of R-2. At this time, plaintiff was on the floor of the cell. With much effort, he went to the cell door to talk with the defendant and restated his medical requirements for treatment of the wound and medication for pain. Plaintiff alleges that he emphasized that his left thigh was hurting severely and that the bandages were filthy. Defendant Wiscomb, upon hearing his statement, informed plaintiff that she had no intention of contacting the doctor and that he could see the doctor in five days and then walked away.

On December 30, 1987, defendant Wiscomb made a second medical round to the holding cells area at approximately 8 p.m. Plaintiff requested that she take a look at his leg and informed her that he had to resort to using toilet tissue with soap and water to clean the wound area. He attempted to show her the necessity of clean bandages and requested medication for the severe pain he was experiencing. Defendant Wiscomb responded that she was busy passing out medication and that she did not have time for him and could not be bothered with his petty excuses.

On the morning of December 31, 1987, plaintiff again sought medical attention from the day shift nurse on duty. Plaintiff alleges he relayed a message through the roving deputy, who came by on his rounds to check on the inmates in the holding cells, and that defendant Wanda M. Baldwin, R.N., was given the message as she began her morning rounds with medication for the prisoners. While she stopped to issue medication to an inmate, plaintiff again requested bandages and medication and asked to be transferred to another cell location where he would not have to sleep on the floor. He told nurse Baldwin that the coldness of the floor was increasing the severity of his leg pain. The nurse stated that she knew all about him, that at the moment she did not have any time for him, that she was not going to disturb the doctor over the holiday week-end, and that plaintiff would just have to make do until Tuesday when the doctor came in. Plaintiff alleged he had another inmate hand nurse Baldwin a sick call slip later in the day, but it never got to the infirmary.

There are two sick call slips in the record, which plaintiff states are in his handwriting, which indicate that on 12/30/87 and 1/2/88 he complained of swelling and pain and asked for pain medication. There is also a sick call slip in the record issued on 12/30/87, which plaintiff alleges indicates that his wound was red, swollen, draining, and the suture was ruined. Plaintiff alleges that this slip is in defendant Wiscomb's handwriting.

In his complaint, plaintiff alleges that while he was in the holding cell from December 30, 1987 through January 4, 1988, defendants Wiscomb and Baldwin refused to provide him with dressings for his wound or to change the dressing on his wound, refused to offer him any treatment for his wound, and refused to give him his prescribed pain medication. He alleges their conduct interrupted the treatment plan prescribed by his treating physician at the Jackson infirmary. Plaintiff alleged that as a result of defendants' violation of their responsibilities, he sustained severe pain and was forced to dress his wound with toilet paper, soap, and water in order to keep it from becoming infected and that he feared the possibility of losing his left leg because of the pain and lack of treatment.

On January 4, 1988, the first business day following the New Year's holiday, plaintiff was seen by the medical staff at the jail, who called the Jackson jail infirmary for confirmation of his pain medication of motrin and inspected his wound. After contacting Jackson to verify his medication of motrin, he was given motrin as previously prescribed. The wound had not become infected and healed normally.

Plaintiff filed this civil action in the United States District Court for the Eastern District of Michigan on August 10, 1989, naming Beverly A. Wiscomb, R.N., and Wanda M. Baldwin, R.N., as defendants in this 42 U.S.C. Sec. 1983 suit. Defendant Baldwin, who apparently has changed jobs since the incident, never received service of process as plaintiff was unable to obtain a correct address for her. Defendant Wiscomb filed a motion for summary judgment.

The district court referred the case to a United States magistrate who recommended that defendant Baldwin be dismissed pursuant to Fed.R.Civ.P., Rule 4, for lack of service. On January 30, 1990, the magistrate also recommended that defendant Wiscomb's motion for summary judgment be granted. The district court accepted the magistrate's report and recommendation by a final order of February 23, 1990, which was entered on February 26, 1990. Plaintiff's notice of appeal was received in this court on March 27, 1990. However, the appeal was not entered on the docket until April 3, 1990. Defendant Wiscomb filed a motion to dismiss the appeal for lack of jurisdiction because of a late notice of appeal. The motion to dismiss was denied by this court by order on June 19, 1990, because it was deemed that the notice of appeal was filed on March 27, 1990 within thirty days of entry of judgment as provided by Fed.R.App.P. 4(a)(1).


This court must decide whether plaintiff Boretti sufficiently stated a claim that defendant Wiscomb exhibited deliberate indifference to a serious medical need in violation of the Eighth Amendment's cruel and unusual punishment clause. 2

The Supreme Court has articulated the standard by which to judge whether a prisoner's medical treatment is in violation of the Eighth Amendment's prohibition against cruel and unusual punishment.

These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose. The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common-law view that "it is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself."

We therefore conclude that deliberate indifference to serious medical needs of prisoners...

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