Tolbert v. Eyman

• Decision Date: 23 November 1970
• Docket Number: No. 24183.,24183.
• Citation: 434 F.2d 625
• Parties: Hildrie H. TOLBERT, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

434 F.2d 625 (1970)

Hildrie H. TOLBERT, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee.

No. 24183.

United States Court of Appeals, Ninth Circuit.

November 23, 1970.

David K. Yamakawa, Jr., San Francisco, Cal., for appellant.

Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.

Before KOELSCH, CARTER, and HUFSTEDLER, Circuit Judges.

PER CURIAM:

Appellant, Hildrie H. Tolbert, an Arizona state prisoner suing in propria persona for damages and equitable relief under the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, appeals from an order granting the motion of the appellee, Warden Frank Eyman, to dismiss under rule 12(b) (6), Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted.

Appellant's complaint alleges that he is a diabetic. In 1963, he was diagnosed as suffering from diabetic retinopathy, a disease affecting the eye, and received treatment that substantially improved his vision. After his incarceration in 1967, he received insulin only once a day and one pill a day for high blood pressure. Tolbert alleges that he is now nearly blind and that his legs and feet are continually swollen. He informed a prison doctor of his ailments, but the doctor responded that "he would be the first man in medical history if he had the eye condition" of which he complained. Nevertheless, he and another doctor informed appellant that he could have the medication that he desired if he paid for it. Thereafter, appellant's wife twice sent him the medicine, but prison authorities returned it to her each time for "security reasons." Appellant alleges that he was then told that he could receive the medication if it were sent directly by a druggist. Twice Tolbert's druggist sent the medicine, and twice it was returned.

The district court dismissed the complaint on the ground that Tolbert had failed to show medical care and treatment so inadequate as to justify federal intervention.

Prison officials and medical officers have wide discretion in treating prisoners, and a simple claim of malpractice does not give rise to a claim under sections 1981 or 1983. (Riley v. Rhay (9th Cir. 1969) 407 F.2d 496; Stiltner v. Rhay (9th Cir.) 371 F.2d 420, cert. denied (1967) 386 U.S. 997, 87 S. Ct. 1318, 18 L.Ed.2d 346.) However, failure or refusal to provide medical care, or treatment so cursory as to amount to no treatment at all, may, in the case of serious medical problems, violate the Fourteenth Amendment. (Riley v. Rhay, supra; Stiltner v. Rhay, supra, 371 F.2d at 421 n. 3.)

Appellee has attempted, as did the district court, to characterize Tolbert's allegations as showing only a difference of opinion between physician and patient over the proper diagnosis and treatment. Such allegations would not state a claim. However, this argument, even if supported by the record, completely misses the thrust of Tolbert's complaint, which names as defendant not the doctors, but the warden. The gravamen of his claim is not that he was erroneously diagnosed by the prison doctor, but that the warden refused to allow him authorized medicine that he needed to prevent serious harm to his health. These allegations state a perfectly viable claim against the appellee. (See Riley v. Rhay, supr...