865 F. 2d 263 - Booss v. Mueller Md

MEMORANDUM**

Dennis Booss, a federal prisoner, appeals pro se, claiming that his eighth amendment right to be free from cruel and unusual punishment has been infringed because he received inadequate medical care in prison. Booss filed an action under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against a prison doctor, two of the doctor's assistants and four prison officials. The district court granted the defendants' motion for summary judgment. Booss v. Mueller, No. CV-86-0146-ER (JR) (C.D.Cal. June 29, 1987). We review de novo. Hernandez v. Johnston, 833 F.2d 1316, 1317 (9th Cir.1987).

To state a cognizable eighth amendment claim for inadequate prison medical care, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Mere negligence in treating a prisoner does not amount to an eighth amendment violation. Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988). Conclusory allegations are insufficient to ward off a summary judgment motion; a prisoner must set forth specific facts as to each defendant's deliberate indifference. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir.1988).

Booss claims that Dr. Mueller exhibited deliberate indifference when he failed to refer Booss to a specialist capable of correctly diagnosing his condition until after Booss brought this action. The record, however, reveals that before Booss filed his complaint, Dr. Mueller referred him to a psychiatrist, a dentist, an orthopedist and a surgeon, none of whom was able to ascertain the cause of Booss's pain. After Booss filed his complaint, Dr. Mueller referred him to an ear, nose and throat specialist and to a neurologist, who were similarly unable to make a diagnosis. It was not until Booss was transferred to the United States Medical Center for Federal Prisoners in Springfield, Missouri, that he was correctly diagnosed as suffering from carotidynia. The evidence shows that Dr. Mueller was diligently attempting to treat Booss's condition, although without initial success. The record precludes a finding that he was deliberately indifferent to Booss' medical problems.1

Booss alleges that assistants Nisperos and Yoshimura exhibited deliberate indifference when they failed to provide him with any medication stronger than Tylenol and failed to refer him to a physician other than Dr. Mueller. A difference of opinion between a prisoner and prison medical authorities regarding the proper course of treatment does not infringe the prisoner's constitutional rights. Franklin v. Oregon State Welfare Div., 662 F.2d 1337, 1344 (9th Cir.1981). Booss has presented no evidence indicating that the assistants gave him Tylenol for any reason other than their responsibility to follow the instructions of Dr. Mueller. Booss has likewise presented no evidence suggesting that the assistants' failure to refer him to additional physicians was the product of deliberate indifference; in any event, Dr. Mueller made the desired referrals.

Booss alleges that Warden Christensen, Associate Wardens Sams and Gill, and Hospital Administrator Van Tassle were deliberately indifferent when they took no action after Booss complained of Dr. Mueller's inability to diagnose his condition. The eighth amendment requires that prison officials give prisoners access to adequate medical care. Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982). Prison officials are deliberately indifferent where they "deny, delay or intentionally interfere with medical treatment." Hutchinson, 838 F.2d at 394. The prison officials here provided Booss with a physician who examined Booss on a number of occasions and referred him to a number of specialists. It cannot be said that the officials were deliberately indifferent solely because it took several doctors to determine the source of Booss' pain.

AFFIRMED.