Opinion
No. 75-1616.
Submitted February 11, 1976.
Decided March 5, 1976.
Robert Courtney, filed brief, pro se.
Jack T. Lassiter, Asst. Atty. Gen., Jim Guy Tucker, Atty. Gen., Little Rock, Ark., filed brief, for appellee.
Before LAY, STEPHENSON and WEBSTER, Circuit Judges.
This is a pro se civil rights action brought by Robert Courtney, an inmate at Cummins Unit of the Arkansas Department of Correction. His petition alleged the deprivation of needed medical care, and named as respondent Dr. Carl Adams, a prison physician. Acting pursuant to 28 U.S.C. § 1915(d), the district court dismissed the petition as frivolous. Petitioner has taken this appeal.
The petition was filed as a "supplemental Pleading Amendment" to a class action then pending in the district court. The district court held that petitioner had already "rested his case" in the class suit, and thus treated the pleading as a separate civil rights action.
Petitioner contends that this procedural decision by the district court was error. However, in view of petitioner's failure to state a claim for relief, see discussion infra, the merits of this contention need not be reached.
The Honorable G. Thomas Eisele, Chief Judge, United States District Court for the Eastern District of Arkansas.
In his petition Courtney alleged that he has a growth next to his heart which "seemed to be enlarging," and that he has been scheduled for a major operation. In order to relieve the continuous pain he allegedly experiences, petitioner sought from Dr. Adams a prescription for pain-killing medication and an advance in the date of his operation. Petitioner alleges that the doctor prescribed a medicine only "about the same as aspirin" and that the date for his operation was not advanced.
As grounds for dismissing the petition, Judge Eisele held that it evidenced "a mere disagreement with the prison physician as to what is necessary and proper for the petitioner's medical care." We concur in this characterization of the petition. Since the law is clear that such a medical disagreement fails to state a claim for relief, Mason v. Ciccone, 517 F.2d 73 (8th Cir. 1975); Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973); Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970), the district court proceeded correctly in dismissing the petition.
The judgment of the district court is affirmed.