Ort v. Pinchback, 85-7396

• Decision Date: 15 April 1986
• Docket Number: No. 85-7396,85-7396
• Citation: 786 F.2d 1105
• Parties: Anthony ORT, Plaintiff-Appellant, v. Dr. PINCHBACK; Correctional Medical Systems; Board of Corrections, Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1105

786 F.2d 1105

Anthony ORT, Plaintiff-Appellant, v.Dr. PINCHBACK; Correctional Medical Systems; Board of Corrections, Defendants-Appellees.

No. 85-7396

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

April 15, 1986.

Joseph T. Carpenter, Carpenter & Gidiere, Montgomery, Ala., for Dr. pinchback.

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

Before FAY, JOHNSON and CLARK, Circuit Judges.

PER CURIAM:

Anthony Ort, an Alabama inmate, brought this 42 U.S.C. Sec. 1983 action pro se, claiming that Dr. W.L. Pinchback, Jr., Correctional Medical Systems ("CMS") and the Alabama Board of Corrections acted with deliberate indifference to his serious medical needs.He appeals from the order of the district court granting summary judgment in favor of Dr. Pinchback and dismissing the claims against CMS and the Board of Corrections.We affirm the dismissals but direct the district court to reconsider Ort's motion to amend his complaint to name the proper defendants.We reverse the grant of summary judgment.

Ort suffers from scoliosis and kyphosis, which have caused him to be somewhat humpbacked.On October 3, 1980, he was referred by a prison physician to Dr. Pinchback, a private orthopedic surgeon, for treatment.Prison Management Systems, Inc. contracted for Dr. Pinchback's services.Dr. Pinchback examined Ort on that date and again on October 28, 1982.

As a result of the first examination, Dr. Pinchback concluded that Ort needed a partial exercise program in the physical therapy department to improve his gait and overall posture but that there were no objective physical signs that should limit Ort's ability to work.Ort claims he never underwent the physical therapy recommended by Dr. Pinchback.The record does not tell us why Ort did not receive therapy.

In February, 1982, Dr. J.B. Thomas ordered that Ort be placed on permanent light duty work status.Nonetheless, as a result of his October, 1982, examination, Dr. Pinchback again stated that Ort needed exercise to maintain strength in his back but could not find any "real" reason why Ort could not handle regular work duty.Ort was returned to regular duty status.Once again, Ort was not given any physical therapy.

In his complaint, Ort charged that Dr. Pinchback's failure to treat his back condition, aggravating the deformity and causing him pain, amounted to deliberate indifference to his medical needs.He also claimed that other doctors who had seen him mocked him, put forth little or no effort to help him and gave him no physical therapy.Because he did not know their names, Ort did not include these doctors as defendants but named CMS because it is the entity that oversees Alabama prison medical services.He asked that the doctors' names, which could be found in his medical record, be included in the complaint.Ort later filed a motion to amend his complaint to add as defendants the persons shown in his medical record to have been responsible for his back problems.

A United States Magistrate recommended that CMS be dismissed from the action because it is not a "proper"defendant under 42 U.S.C. Sec. 1983.He offered no explanation for his conclusion.The magistrate also recommended the dismissal of the complaint against the Board of Corrections because no such entity exists.Finally the magistrate recommended that Dr. Pinchback's motion for summary judgment be granted because Dr. Pinchback was not an employee of the Alabama Department of Corrections but rendered services as a private physician and so was not acting under color of state law as required by 42 U.S.C. Sec. 1983.The district court adopted the magistrate's recommendations and denied Ort's motion to amend his complaint as moot.

Ort argues on appeal that a physician who contracts with the state to treat inmates acts under color of state law so as to be subject to liability under 42 U.S.C. Sec. 1983.He does not appear to contest the dismissal of CMS and the Board of Corrections but seems instead to request that he be allowed to amend his complaint to add the proper defendants.Only Dr. Pinchback, represented by private counsel, has responded as appellee.He argues that Ort has failed to state a claim under Sec. 1983 bec...