Weber v. Weferling ( 1995 )

USCA1 Opinion

        May 30, 1995            [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-1024



                                 JERRY WILLIAM WEBER,



                                Plaintiff, Appellant,



                                          v.



                                   MARIE WEFERLING,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Jerry William Weber on brief pro se.
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            Valerie   Stanfill  and  Berman  &  Simmons,  P.A.  on  brief  for
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        appellee.





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                      Per  Curiam.   Plaintiff  contends  that deliberate
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            indifference is established by his uncontradicted allegations



            that  (1)  he  advised   defendant  a  Minnesota  doctor  had



            successfully  prescribed  Triamcinolone for  plaintiff's skin



            condition after  hydrocortisone had worsened the problem, (2)



            he  urged defendant to review the  Minnesota records, (3) but



            defendant refused to check  the record and instead prescribed



            hydrocortisone,  which,  once again,  exacerbated plaintiff's



            skin condition.



                      We  agree with  the  magistrate judge  and district



            court that  plaintiff failed  to raise any  genuine issue  of



            material   fact  for   trial.     Defendant's  uncontradicted



            affidavit stated that  both Triamcinolone and  hydrocortisone



            are used to treat skin  conditions like plaintiff's, but that



            Triamcinolone,  while  stronger,  has  more   risk  for  side



            effects.  Because defendant, a physician's assistant, did not



            feel  comfortable  prescribing  Triamcinolone,   she  advised



            plaintiff  to see a doctor.  Plaintiff eventually did see the



            doctor,  who  prescribed   Triamcinolone,  which   alleviated



            plaintiff's problem.   Plaintiff acknowledged below  that his



            skin  problems would come and  go and that  defendant was not



            responsible   for   the  delay   in  scheduling   a  doctor's



            appointment.     Rather,  plaintiff's   contention  was  that



            defendant's   refusal  to   heed  plaintiff's   warning  that



            hydrocortisone had exacerbated  a past flare  up or to  check







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            the medical record and ascertain that a doctor had previously



            prescribed  Triamcinolone successfully  manifested deliberate



            indifference to plaintiff's medical needs.



                      We  disagree.  Neither defendant's failure to check



            plaintiff's  record   before  treating  his  eczema  nor  her



            knowledge  that  hydrocortisone  had  failed  on  a  previous



            occasion  shows deliberate indifference to plaintiff's needs.



            At best, there was a disagreement among medical professionals



            as to the course of treatment.  Such  a disagreement does not



            rise  to the level of a constitutional violation.  See Watson
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            v. Caton, 984 F.2d 537, 540 (1st Cir. 1993); Sires v. Berman,
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            834  F.2d 9,  13  (1st Cir.  1987).   Defendant  did not  bar



            plaintiff from a  remedy which  had worked in  the past;  she



            told him to consult the prison  doctor.  The referral was not



            a  refusal to treat plaintiff,  but rather a  further step in



            the management  of plaintiff's problem.   That several months



            elapsed  before plaintiff  actually  saw the  doctor was  not



            defendant's fault, as plaintiff acknowledged below.



                      Affirmed.
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