McCracken v. Jones

• Decision Date: 18 October 1977
• Docket Number: 76-1361,Nos. 76-1360,s. 76-1360
• Citation: 562 F.2d 22
• Parties: Leo McCRACKEN and Park Anderson, Appellants, v. Riley Mitchell JONES, Appellee. Riley Mitchell JONES, Cross-Appellant, v. Leo McCRACKEN and Park Anderson, Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 22

562 F.2d 22

Leo McCRACKEN and Park Anderson, Appellants, v. Riley Mitchell JONES, Appellee.

Riley Mitchell JONES, Cross-Appellant, v. Leo McCRACKEN and Park Anderson, Cross-Appellees.

Nos. 76-1360, 76-1361.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 17, 1977.

Decided Aug. 29, 1977.

Rehearing Denied Oct. 18, 1977.

Paul Crowe, Asst. Atty. Gen., Oklahoma City, Okl. (Larry Derryberry, Atty. Gen., and Ross N. Lillard III, Asst. Atty. Gen., Oklahoma City, Okl., with him on the brief), for appellants, cross-appellees.

Fred P. Gilbert, Tulsa, Okl., for appellee, cross-appellant.

Before SETH, PICKETT and McWILLIAMS, Circuit Judges.

SETH, Circuit Judge.

This is a civil rights action filed by a prisoner in an Oklahoma state prison against the two defendants, one of whom was the warden; the other was then the Director of the Department of Corrections. Neither defendant now occupies the position he did when the suit was brought. The case was tried to a jury which returned a verdict of $4,000.00 against each of the defendants. The defendants had filed a motion which was treated as for a directed verdict. They also filed motions for judgment n.o.v. These were denied, and defendants have appealed.

The plaintiff in his complaint asserts that he injured his back on September 20, 1971, while he was in maximum security as he stooped over to pick up something. The complaint also states that he requested medical care, but that he was denied medical care on November 23d. In any event, he was taken to the prison infirmary for examination by the prison doctor soon after he made his complaint. The doctor put him in traction, and kept him in the infirmary for about two weeks.

On December 13, 1971, the then warden, defendant Anderson, directed that plaintiff be sent to the Central State Hospital for examination. He was there examined by two doctors employed by the University of Oklahoma Hospital, one being a resident orthopedic surgeon, the other a surgeon. These two doctors made their diagnosis, and found that there was then no need for surgery. The warden was so advised of their opinion by a letter dated January 5, 1972.

The plaintiff apparently did not agree with the diagnosis by the University doctors nor the treatment prescribed. The doctors had prescribed certain exercises for plaintiff's back, but he did not do the exercises. The plaintiff requested that he be permitted to go to a doctor in private practice, apparently in Muskogee.

As the matter then stood there was no more than a difference of opinion as to the diagnosis and treatment between the prisoner and the medical report the warden received. It is obvious that this cannot serve as a basis for a cause of action. We have so held on many occasions, beginning with Coppinger v. Townsend, 398 F.2d 392 (10th Cir.). See also Smart v. Villar, 547 F.2d 112 (10th Cir.).

The warden shortly thereafter refused to allow the plaintiff to leave the prison and go to Muskogee for an examination by plaintiff's doctor. This was well within the discretion of the warden in the operation of the prison. Again he had the diagnosis of the University doctors, and he was entitled to rely on it for this purpose also and for the same reasons. Thus the plaintiff still disagreed with the authorities as to his medical condition and treatment. The matter thus presented no basis for a cause of action. This is still a difference of opinion situation under Coppinger v. Townsend, 398 F.2d 392 (10th Cir.), referred to above.

The letter to the warden from the University doctors, referred to above, was dated January 5, 1972, and on January 17, 1972, the plaintiff filed suit against the defendants. In the action he asked for a court order that he be permitted to consult his own doctor. Although the record is not entirely clear as to the details, plaintiff apparently also asked that he receive no further treatment at the prison. The court, on plaintiff's motion in the then pending suit, directed that an examination be performed by plaintiff's doctor at the prison. This was done and the private doctor recommended a myelogram. This examination to be at the Muskogee Hospital was ordered by the court, and was performed on March 26th. On April 2d, the plaintiff's back was operated on by his own doctor. The operation was done at the Muskogee Hospital without any reference to the prison authorities.

This operation changed the situation in that it demonstrated a difference of opinion now between the University doctors who had examined the plaintiff and the doctor who operated on plaintiff. The fact that the plaintiff was operated on does not of itself indicate which treatment, exercise or an operation, was correct. It did, of course, establish the difference in professional opinion as to treatment. The doctor who operated testified that the operation was necessary. The defendants were not able to subpoena the University doctor who examined plaintiff nor were they permitted by the court to take his deposition, so that aspect was not developed. Much of the trial was taken up with testimony relating to the correct diagnosis and treatment; however, defendants did not have to bear the risk arising from the variations in the views of the doctors. Again, defendants were entitled to rely on the diagnosis they received from the state medical authorities who examined plaintiff. If anything approaching malpractice had been indicated, the defendants did not have to defend such a charge. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, and Isenberg v. Prasse, 433 F.2d 449 (3d Cir.). Defendants do not guarantee that the prisoners receive...