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January 18, 1979

Edward X. JORDAN, Plaintiff,
William ROBINSON, Commissioner of Bureau of Corrections, James Howard, Supt. State Correctional Institution at Pgh., Pa., Major Weyandt, Prison Guard at State Correctional Institution, Pgh., Pa., Dr. Gilberte, Doctor of State Correctional Institution, Pgh., Pa., Dr. Webster, Surgeon State Correc. Institution, Pgh.,Pa

The opinion of the court was delivered by: COHILL


Plaintiff, Edward X. Jordan, a state prisoner, brought this Pro se civil rights action under 42 U.S.C. § 1983 against various officials and doctors at the State Correctional Institution at Pittsburgh, alleging violations of his constitutional rights in three separate claims. The defendants filed a Motion for Summary Judgment with accompanying affidavits. Oral arguments have been heard. The facts are not in dispute; therefore summary judgment is appropriate under Fed.R.Civ.P. 56, if the pleadings, admissions, and affidavits "show that the moving party is entitled to a judgment as a matter of law."

 In this case we will enter summary judgment for the defendants on all three claims. We will discuss each of the claims separately.

 1. The Medical Claim

 The plaintiff's complaint states (and we will not attempt to point out possible typographical errors by the use of the word "Sic "):

"On 5/2/75, the plaintiff went over to the hospital to see Doctor Gilberte, because he had a CIST on his back, The defendant Dr. Gilberte cut the cist out, without using any kind of medication to numb it, the defendant had flicked cruel and usual punishment, only because he didn't like the plaintiff, Any other inmate that I've seen go over there to get a cist cut out he always got medication to numb the cist before it was cut out. This was and is a violation of of my constitutional rights under the 8th amendment.
On 5/12/75, The plaintiff went over to see the defendant Dr. Webster, surgeon, and on that day the defendant operated on the plaintiff, right above his right eye, When the plaintiff came to this institution he had 20/20 eye sight and now he has to wear glasses because his eye sight had gone bad on his, the plaintiff believes that the operation that DR. Webster done has done damages to his eyes, therefore enflicting cruel and harash punishment on the plaintiff, and thus violated his civil rights under the color of law."

 The defendant doctors filed affidavits specifically denying these allegations; attached to these affidavits were copies of hospital records, showing that novocaine had been administered to the plaintiff before removal of the cyst. Plaintiff did not submit affidavits, as required in Fed.R.Civ.P. 56(e), but since this was a Pro se proceeding, we agreed to accept plaintiff's argument at the hearing as his response to defendants' affidavits.

 Allegations of "cruel and unusual punishment" to prisoners have often been considered by the courts, and tests have been established to determine when such allegations approached constitutional proportions. A typical test was stated by the United States District Court for the Eastern District of Pennsylvania: "conditions of confinement of inhuman and barbaric proportions which shock the conscience of the court constitute cruel and unusual punishment and are actionable under the Civil Rights Act." Newsome v. Sielaff, 375 F. Supp. 1189 (E.D.Pa.1974). See also Kirby v. Blackledge, 530 F.2d 583 (4th Cir. 1976); Mukmuk v. Commissioner of Dept. of Correctional Services, 529 F.2d 272 (2d Cir. 1976), Cert. denied 426 U.S. 911, 96 S. Ct. 2238, 48 L. Ed. 2d 838 (1977). The United States Court of Appeals for the Third Circuit has spoken on the issue of when allegations of improper medical care may amount to valid Eighth Amendment claims. In Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970), Judge Aldisert wrote:

" . . . An allegation of negligent conduct by a state public official is not sufficient, in and of itself, to bring a claim within § 1983.
Without a proper allegation of constitutional deprivation, an action requesting damages for personal injuries sounds only in common law or statutory tort and, because no federal interest is involved, is triable only under state law in a state court.
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 Eight Amendment's prohibition of such punishment that a colorable constitutional claim is presented . . . Many cases describe the necessary additive as "exceptional circumstances' . . . (conduct) so grossly incompetent, inadequate or excessive "as to shock the general conscience or to be intolerable to fundamental fairness.' " 428 F.2d at 6 (1970) (citations and footnotes omitted).

 See also Walnorch v. McMonagle, 412 F. Supp. 270, 274 (E.D.Pa.1976), for the proposition that "in this Circuit, an allegation amounting to nothing more than negligence is insufficient to state an eighth amendment claim for improper or inadequate medical treatment."

 Plaintiff's characterization of the treatment as "cruel and unusual" does not make it so. At oral argument plaintiff admitted that the essence of his medical claims is medical malpractice; he alleged that Dr. Gilberte failed to use novocaine while removing a cyst on plaintiff's back and that Dr. Webster, while excising a lesion above plaintiff's eye, affected and impaired his vision. These are claims of negligence, or, at most, considering plaintiff's charge at oral argument that improper medical procedures were followed in order to harass him, claims of ...

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