Quincy West v. Samuel Atkins Rae McNamara James B. Hunt , 815 F.2d 993 ( 1987 )

CHAPMAN, Circuit Judge:

In Calvert v. Sharp, 748 F.2d 861, 863 (4th Cir.1984), cert. denied, 471 U.S. 1132, 105 S.Ct. 2667, 86 L.Ed.2d 283 (1985), we held that “[t]he professional obligations and functions of a private physician establish that such a physician does not act under color of state law when providing medical services to an inmate.” Prisoner West brought this § 1983 action against a private physician who was under contract for part-time employment with the state to provide two orthopedic clinics per week at North Carolina Central Prison Hospital. Because we perceive no valid reason to overrule or distinguish Calvert, we affirm the district court's dismissal of the appellant’s claim.

I.

West tore the Achilles tendon in his left leg while playing basketball on July 30, 1983. Dr. Atkins examined West and concluded that surgery could be avoided if the tendon would grow back together by itself. Atkins therefore placed West’s leg in a cast and prescribed medication. West has alleged that the attention given to his injured leg was so inadequate as to be actionable under 42 U.S.C. § 1983.

North Carolina Central Prison Hospital, where West is imprisoned, has one full-time staff doctor, with additional medical services provided under “contracts for professional services” with area doctors. Dr. Atkins, by contract, conducted two clinics per week at the prison. Atkins also maintained a private practice. It does appear that, because West is a prisoner in “close custody,” he is not free to seek outside medical assistance.

West’s § 1983 theory alleged a denial of his right to be free from cruel and unusual punishment, as defined by the Eighth Amendment. West sought compensatory and punitive damages from Dr. Atkins, compensatory and punitive damages from Rae McNamara, Director of the Division of Prisons of the North Carolina Department of Corrections, and a declaratory judgment against James B. Hunt, Governor of the State of North Carolina.

II.

The Supreme Court held in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), that the deliberate indifference by a state to the serious medical needs of an inmate is a violation of the Eighth Amendment and can support a § 1983 action. To establish a § 1983 claim, a plaintiff must also show that the defendant acted under color of state law, an element which was not in issue in Estelle. The Supreme Court addressed the requirements for establishing that a defendant, who is a professional, acted under color of state law in the case of Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Dodson held that “a public defender does not aet under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Id. at 325, 102 S.Ct. at 453 (footnote omitted). Instead, “[h]eld to the same standards of competence and integrity as a private lawyer, ... a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client.” Id. at 321, 102 S.Ct. at 451. The court noted, moreover, that “[bjecause of their custodial and supervisory functions, the state-employed doctors in [O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975)] and Estelle faced their employer in a very different posture than does a public defender.” Dodson at 320, 102 S.Ct. at 451. Thus the clear and practicable principle enunciated by the Supreme Court, and followed in Calvert, is that a professional, when acting within the bounds of traditional professional discretion and judgment, does not act under color of state law, even where, as in Dodson, the professional is a full-time employee of the state.¹ Where the professional exercises custodial or supervisory authority, which is to say that he is not acting in his professional capacity, then a § 1983 claim can be established, provided the requisite nexus to the state is proved.

In Calvert an inmate sued a private orthopedic specialist for an alleged failure to treat. The defendant was employed by a non-profit professional corporation, which in turn contracted with the state. We held that because private physicians exercise independent, professional judgment and render medical care in accordance with professional obligations, a physician when rendering such medical services does not act under color of state law. The defendant in Calvert had no supervisory or custodial functions.

We find the reasoning suggested by the appellant to differentiate the rule in Dodson from that enunciated in Calvert unpersuasive. Although the opinion in Dodson does point out that a public defender in effect plays a role adversarial to the interests of the state, that reasoning was the basis upon which the Supreme Court concluded that a professional may act without color of state law even when he is a full-time employee. In other words, even a full-time employee who is a professional can act without color of state law where his role in essence is adversarial to the interests of the state. Thus, “a public defender is not amenable to administrative direction in the same sense as other employees of the State.” Dodson at 321, 102 S.Ct. at 451. We do not need to address the problematic issue of whether the nature of the doctor-patient relationship can at times be adverse to the interests of the state. Where the professional is acting within the bounds of professional discretion and obligation, his independence from administrative direction is assured.

The appellant is probably correct in his argument that the rule enunciated in Dodson, and followed in Calvert, has the effect of limiting the range of professionals subject to an Estelle action. This effect, however, is entirely consonant with the requirements of § 1983, which statute subjects the individual to liability only where he has acted under color of state law in violating a constitutional right. In any event, it is not for this court to tamper with ■ the limitation of § 1983 liability established in Dodson. We therefore decline to overrule Calvert v. Sharp.²

III.

The appellant suggests that should this court decline to overrule its prior decision, we should distinguish it. We decline to do so. The fact that the doctor in Calvert was employed by a professional corporation, which in turn had contracted with the state, whereas Dr. Atkins, a sole practitioner, entered into that contract himself, makes no difference. A professional exercises his professional discretion pursuant to his professional obligations whether he practices alone or in a group. The effect of adopting the distinction suggested by the appellant would be to absolve one professional from liability concerning the same course of conduct and wilful failure to treat undertaken by another professional simply on the grounds that the former had associated himself with a group practice. Liability for a constitutional violation arising from a wrong done to an inmate should not rest on the contractual arrangement entered into by the putative defendant with third parties. The effect of such a rule would be to discourage any professional not associated with a group practice from serving the medical needs of prisoners. Such a rule would have the deleterious effect of increasing the cost and reducing the availability of medical services for prisons.

The other grounds of distinction proffered by the appellant are equally unpersuasive.

IV.

We find no reason to disturb the district court’s dismissal of the appellant’s claims against appellees McNamara and Hunt. Pursuant to 28 U.S.C. § 1915(d), claims made by pro se litigants can be dismissed if frivolous: that is, if “it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir.1979), quoting Haines v. Kemer, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

Respondeat superior is not available for § 1983 actions, and so the appellant must allege personal involvement by appellees Hunt and McNamara in the deprivation of his constitutional rights. Because the alleged deprivation of constitutional rights in this case involved the alleged failure to render medical services properly, the “personal involvement” of these appellees must be relevant to the alleged deprivation. The appellant has alleged no facts which would show that appellees McNamara or Hunt had the authority to overrule the medical judgment of Dr. Atkins. The fact that the appellant had mailed to appellee McNamara two letters complaining about Dr. Atkins’ treatment does not suffice to render McNamara liable for Atkins’ medical judgments. We therefore affirm the district court’s dismissal of these claims.

AFFIRMED.

1 . Dodson held that the employment relationship is only a "relevant factor" in determining whether the professional acted under color of state law. The primary consideration, established in Dodson, is the defendant’s "function.” Thus, the plaintiff would have to prove that the employment relationship created such an overbearing environment that the exercise of the independent professional judgment, the primary test, was impossible. The simple allegation of a close employment relationship between the state and the professional, absent any proof that that relationship had the effect of precluding independent judgment, is insufficient to satisfy the “color of state law” element of a § 1983 claim. The employment relationship is but one factor in determining whether the professional exercised independent judgment.

2 . We also reject appellant’s contention that the provision of medical services to the inmates is an "exclusive state function.” Decisions made in the day-to-day rendering of medical services by a physician are not the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. See Blum v. Yaretsky, 457 U.S. 991, 1012, 102 S.Ct. 2777, 2790, 73 L.Ed.2d 534 (1982).