United States District Court, N.D. Mississippi, Greenville Division
M. VIRDEN UNITED STATES MAGISTRATE JUDGE.
matter comes before the court on the pro se prisoner
complaint of Demetrius Barber, who challenges the conditions
of his confinement under 42 U.S.C. § 1983. For the
purposes of the Prison Litigation Reform Act, the court notes
that the plaintiff was incarcerated when he filed this suit.
The plaintiff has brought the instant case under 42 U.S.C.
§ 1983, which provides a federal cause of action against
“[e]very person” who under color of state
authority causes the “deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws.” 42 U.S.C. § 1983. The plaintiff alleges
that the defendants failed to provide him with adequate
medical care for his broken finger. For the reasons set forth
below, the instant case will be dismissed for failure to
state a claim upon which relief could be granted.
March 29, 2015, while housed at the Wilkinson County
Correctional Facility (“WCCF”), Demetrius Barber
broke a finger on his right hand. On March 30, 2015, the next
day, he visited Dr. James Burke at WCCF. Dr. Burke
acknowledged that Barber's finger was broken and ordered
x-rays; however, the x-ray technician was out that day, and
Dr. Burke sent Barber back to his cell. Mr. Barber filled out
a sick call request for an x-ray of his finger and underwent
an x-ray on April 3, 2015. Though Mr. Barber does not know
the results of the x-ray, Dr. Burke told him that he would be
scheduled to see a specialist.
Mr. Barber submitted another sick call request, Dr. Burke saw
him on April 7, 2015, but stated that he could not find the
x-ray. Barber questioned Dr. Burke about the absence of the
test results and lack of treatment, to which Burke responded,
“Shut the fuck up!” Dr. Burke showed Mr. Barber a
drawing of his finger and told Barber that he would not treat
him. Dr. Burke did, however, schedule Mr. Barber for a May
13, 2015, appointment with an off-site specialist.
was transported to Natchez on May 13, where a technician took
x-rays. Barber was then returned to WCCF. On June 6, 2015,
prison staff told him that he could not eat because he was
scheduled for surgery the next day. He was transported to the
Natchez hospital on June 7, 2015 for surgery, but the
receptionist stated that he did not have an appointment that
day. He was transported to Natchez for surgery again on the
following day (June 8), but the receptionist again stated
that he did not have an appointment or any paperwork for
surgery that day. Prison staff then transported him to a
clinic in Natchez on June 30, 2015, but he still received no
treatment for his broken finger.
25, Mr. Barber filed a grievance regarding the lack of
treatment for his broken finger, and the response was that he
had been seen several times for this problem. Mr.
Barber's complaint is that “[He] did eventual[ly]
get seen about the broken finger, but that is all [he] got
was seen. [He] never got any treatment ….” In
sum, medical personnel examined Mr. Barber's injury, and
he eventually visited an off-site surgeon. However, the only
treatment he received was two x-rays and a prescription for
ibuprofen. Mr. Barber's injured finger is crooked and
does not bend properly - and causes pain on the back of his
hand and the surrounding fingers.
Claim Against the Medical Defendants
case, Drs. Burke and Riley, the medical defendants in the
present suit, took appropriate action and referred Mr. Barber
to a private specialist for treatment of his broken finger.
As such, Mr. Barber has not stated a valid claim under 42
U.S.C. § 1983 against these two defendants.
Specialist Is Not a State Actor
present case, it was the private specialist who decided not
to perform the surgery or otherwise treat the injury. Relief
under 42 U.S.C. § 1983 is only available to preserve a
plaintiff's federal constitutional or statutory rights
against a defendant acting under color of state law.
See 42 U.S.C. § 1983. Thus, a § 1983
plaintiff may only pursue his civil rights claims against
someone who is a state actor. The bone specialist is merely a
provider of medical services to the general public; as such,
he does not qualify as a state actor under 42 U.S.C. §
1983. See, Albright v. Longview Police Dep't,
884 F.2d 835, 841 (5th Cir. 1989). Thus, Mr.
Barber's claims against the private doctor should be
dismissed for failure to state a claim upon which relief
could be granted.
Specialist's Negligent Actions Fail to State a §
extent that Mr. Barber alleges that the private specialist
failed to schedule surgery properly, this claim sounds wholly
in negligence, which is not a claim under 42 U.S.C. §
1983. Negligent conduct by prison officials does not rise to
the level of a constitutional violation. Daniels v.
Williams, 474 U.S. 327, 106 S.Ct. 662 (1986),
Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668
(1986). As such, these allegations must be dismissed for
failure to state a claim upon which relief could be granted.
Riley, a Supervisor, Is Not Liable for Acts ...