The opinion of the court was delivered by: DAVIS
JOHN MORGAN DAVIS, District Judge.
This Civil Rights action under 42 U.S.C. § 1983 was brought by a former inmate of Montgomery County Prison against the Prison Board (which has since been dismissed), the Warden, and the Prison Physician. Both the Warden and the Physician have moved for Summary Judgment in separate motions.
The plaintiff has two basic theories on which he predicates this action: (A) that plaintiff was ill and due to his illness he fell out of bed several times and was injured, but was not treated for the illness or injuries; (B) that plaintiff was ill due to drug addiction and yet the defendants refused to administer methadone detoxification to plaintiff. We will consider these two theories separately.
I. PHYSICIAN'S MOTION FOR SUMMARY JUDGMENT.
A. FAILURE TO GIVE PROPER MEDICAL TREATMENT.
The Civil Rights Act of 1871, 42 U.S.C. § 1983 provides as follows:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
There are two arguments the physician makes to avoid the operation of this Statute: (1) We are not dealing with the deprivation of any Federal right, privilege, or immunity, as required by the Statute, but only with a case of alleged medical malpractice, (2) the Statute applies only to prison officials, not to prison doctors.
1. DEPRIVATION OF FEDERAL RIGHT.
The mere claim of lack of proper medical attention, in and of itself, does not come within the above Civil Rights Statute. Gittlemacker v. Prasse, 428 F.2d 1 (3rd Cir. 1970); Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3rd Cir. 1969), cert. denied 396 U.S. 935, 90 S. Ct. 278, 24 L. Ed. 2d 234; Stiltner v. Rhay, 371 F.2d 420 (9th Cir. 1967), cert. denied 386 U.S. 1025, 87 S. Ct. 1384, 18 L. Ed. 2d 466; Commonwealth ex rel. Gatewood v. Hendrick, 368 F.2d 179 (3rd Cir. 1966), cert. denied 386 U.S. 925, 87 S. Ct. 899, 17 L. Ed. 2d 797 (1967). The ailment or injury alleged must be treatable and sufficiently severe that medical treatment is needed to prevent undue suffering or permanent residual injury. Refusal to provide treatment in such circumstances can amount to cruel and unusual punishment in violation of the Eighth Amendment. Gittlemacker, supra 428 F.2d at p. 6; Stiltner, supra 371 F.2d at p. 421, n. 5; Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961); Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957); McCollum v. Mayfield, 130 F. Supp. 112 (M.D. Cal. 1955); Gordon v. Garrson, 77 F. Supp. 477 (E.D. Ill. 1948); Chester J. Antieau, Federal Civil Rights Acts: Civil Practice, 859.
As explained in Gittlemacker, supra 428 F.2d at p. 6:
[Allegations] of improper medical treatment by prison officials did not assert "a denial of rights secured by the federal Constitution of laws." . . . [and] an allegation of negligent conduct by a state public official is not sufficient, in and of itself, to bring a claim within section 1983. More is needed than a naked averment that a tort was committed under the color of state law; the wrongdoing must amount to a deprivation of a right, privilege, or immunity secured by the Constitution and the laws of the United States . . . .
It is only where an inmate's complaint of improper or inadequate medical treatment depicts conduct so cruel or unusual as to approach a violation of the Eighth Amendment's prohibition of such punishment that a colorable constitutional claim is presented.
In the present case the record is insufficient to conclude that there is "no genuine issue of fact" as to whether or not the injuries are severe enough to amount to cruel or unusual punishment, and thereby give rise to a cause of action under 42 U.S.C. § 1983. ...