APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-3040).
Van Dusen, Hunter and Weis, Circuit Judges.
The distinction between conduct necessary to support recovery under 42 U.S.C. § 1983 and that establishing liability under state tort law is at issue in this appeal. The district court awarded damages to a prisoner against a warden and guards because of their failure to provide medical care. Our examination of the record demonstrates that the plaintiff failed to prove the intentional conduct characterizing a constitutional infringement. Accordingly, we vacate the judgment of the district court.
Several inmates assaulted plaintiff, a federal pretrial detainee at Holmesburg Prison in Philadelphia in 1974. He brought this action in the district court, grounding his 42 U.S.C. § 1983 and a pendent state law cause of action on allegations that the warden and guard defendants failed to protect him from attack and thereafter denied him medical care for six days. After a non-jury trial, the district judge found that the officials had exercised reasonable care in protecting plaintiff from the other inmates and, consequently, found no constitutional violation on the assault count. However, the court determined that plaintiff had been denied medical care and awarded compensatory damages in the amount of $1,000.00.
In the assault, which occurred on October 10, 1974, the plaintiff suffered injuries to his jaw, head, face and right hand. Although guards arrived on the scene within minutes after the incident, Hampton did not ask for any medical attention until two days later, when he spoke to defendants Mayo and Penbrock, the officers then on duty.
Plaintiff testified that he put out sick call slips on October 13 but did not see any medical personnel in the next five days. He said that the doctor determined which inmates he would see. On the 18th of October, Hampton saw the prison nurse and showed her his injuries. She told him the doctor would be in the following day, but it was not until October 20 that Dr. Westby examined plaintiff and prescribed aspirin. On October 24, plaintiff complained to the doctor that aspirin was not effective. Four days later, he was taken to Philadelphia General Hospital for out-patient treatment.
According to the warden's testimony, a prisoner going on routine sick call was to notify his block officer at 8:30 in the morning. However, a doctor was not available every day and occasionally there could be as much as a three-day interval between visits by the physician. In emergency situations, however, prisoners were taken to specified hospitals in the area.
The district judge found:
"There is ample evidence to indicate that Hampton reported for sick call. There is no testimony to establish that the guards forwarded his request nor is there evidence that Burk [the warden] was unaware of Hampton's request. The record will not support an assumption that the guards carried out their obligation to report or that Burk undertook his obligation to provide medical treatment. We believe that the totality of the circumstances supports a conclusion that entitles Hampton to compensatory damages to be assessed against Warden Burk and Guards Mayo and Penbrock.
". . . From October 12th to October 18th medical treatment was denied. We believe it is proper to assume that plaintiff suffered some pain and discomfort during this period of time. We are unable to state with any degree of certainty that immediate medical treatment would have ameliorated the pain but we do think compensation is payable for the failure to provide an opportunity to a doctor to attempt to alleviate the pain. Perhaps medication would have been helpful."
The court did not address plaintiff's pendent state law claims.
The plaintiff bases his claim under 42 U.S.C. § 1983 upon his assertion that the denial of medical treatment amounted to cruel and unusual punishment. It is questionable whether the Eighth Amendment's prohibition against cruel and unusual punishment is applicable to a pretrial detainee, the most accepted view being that the amendment's proscription applies only after conviction. See the discussion in Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973); Anderson v. Nosser, 456 F.2d 835 (5th Cir. en banc), cert. denied, 409 U.S. 848, 93 S. Ct. 53, 34 L. Ed. 2d 89 (1972); cf. Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). But this does not mean there is no constitutional protection for a pretrial detainee. It would be anomalous to afford a pretrial detainee less constitutional protection than one who has been convicted. United States ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3d Cir. 1976); Johnson v. Glick, supra ; Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 YALE L.J. 941 (1970). The source of that protection is properly found in the Due Process or, in some instances, the Equal Protection Clause,*fn1 See Williams v. United States, 341 U.S. 97, 95 L. Ed. 774, 71 S. Ct. 576 (1951); Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945); Tyrrell v. Speaker, supra; Rhem v. Malcolm, supra; Johnson v. Glick, supra; Anderson v. Nosser, supra, with decisions interpreting the Cruel and Unusual Punishment Clause serving as useful analogies. Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976). However, we do not think it appropriate to discuss the precise source of the right because, while it may have significance in other contexts, it is not controlling here. The facts mandate a finding that there has been no constitutional deprivation, whatever the derivation.
In Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251, 45 U.S.L.W. 4023 (1976), the Supreme Court distinguished medical malpractice cases cognizable under state tort law and those rising to the level of a constitutional abridgement. After discussing the government's obligation to furnish medical service to prisoners, the Court ...