WEST v. ATKINS

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ORAL ARGUMENT OF ADAM STEIN, ESQUIRE ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear argument now in Number 87-5096, Quincy West versus Samuel Atkins.

Mr. Stein, you may proceed whenever you are ready.

Mr. Stein: Mr. Chief Justice, and may it please the Court, the respondent in this case, Dr. Samuel Atkins, was the physician responsible for orthopedic services for some 17,000 prisoners in the North Carolina prison system.

The petitioner, Quincy West, was a North Carolina prisoner.

The United States District Court for the Eastern District of North Carolina granted the respondent summary judgment and a majority of the United States Court of Appeals for the Fourth Circuit sitting en banc affirmed, holding that the respondent did not act under color of law when he was managing the health services of the petitioner.

Petitioner's lawsuit brought under 1983 in the Federal District Court was, of course, based on this Court's decision in Estelle against Gamble, where the Court had held that the deliberate denial of serious medical services constituted... by a prison authority constituted the infliction of cruel and unusual punishment.

And of course, the reason for that is that the prisoner is himself helpless to have medical services unless the state provides it, and in North Carolina that is true.

A prisoner such as petitioner cannot obtain medical services except for the services given to him by the state.

Even if he could afford to hire a doctor, he is not allowed to do so according to North Carolina law.

This then, the case that was brought then was exactly the sort of case that the Court indicated was actionable under 1983 in Estelle.

There were allegations that there was abuse of power by an authority by denying needed medical services, and that it was done by somebody with authority granted by the state to so act.

Unidentified Justice: Mr. Stein, do you take the position that any physician performing services and paid by the state would be liable, in your view, and would constitute state action?

Mr. Stein: Justice O'Connor, I would take that position, but that isn't this case.

It seems to me--

Unidentified Justice: I mean, even a physician serving as a consultant in his own office on a special medical problem?

Just so long as he is paid by the state, then it is state action?

Mr. Stein: --Well, the argument there would be that under Estelle there is an Eighth Amendment obligation on the state to provide medical services to the prisoner, and that if the state has then selected this physician, that person is doing the state's work, but it seems to me that Your Honor has described a fact situation on a spectrum of the least involvement of the state presumably up to the position of a medical director who is a regular employee.

Unidentified Justice: I am just wondering what kind of line-drawing we could have legitimately if we adopted your view of the liability here.

Mr. Stein: Well, my view is that there is no line to be drawn, that indeed the provision of medical services is a state responsibility, but that isn't my case, and I would like to suggest that the facts in the record show that Dr. Atkins in this case was much more like the person who is in charge of the whole medical system, is a regular employee and always has been.

Unidentified Justice: What if the North Carolina law were changed, Mr. Stein, and North Carolina allowed prisoners to contract out and find their own doctors if they had a particular kind of case, and the state said, we will just pay for it?

Mr. Stein: Well, Your Honor, in that circumstance, if the prisoner himself had the choice and the state would pay for all of them, it seems to me that would be a very different case from what we have here.

If the prisoner could choose the best orthopedic physician in the state of North Carolina and he chose that person rather than the state, it seems to me the state's payment would not be so significant.

Unidentified Justice: Mr. Stein, you said he is doing the state's work.

He is doing the state's work, but is he doing the state's punishment?

I mean, this is a cause of action for cruel and unusual punishment.

Don't you have to identify someone in the state system who is responsible for the carrying out of the punishment, just as in the municipal cases you have to identify somebody who is responsible for the municipal policy.

Mr. Stein: It is our position that the state has assigned to Dr. Atkins the responsibility for deciding what, if any, orthopedic services are to be provided to any of its prisoners.

Unidentified Justice: But that is in no sense the punishment that the state is imposing.

They don't sentence you to medical treatment.

Mr. Stein: Well, the punishment is when the doctor, instead of exercising medical judgment, instead takes an action to prevent the prisoner from getting the medical services that he needs.

Unidentified Justice: Well, that is malpractice, but I don't see how it is punishment.

Mr. Stein: Your Honor, I submit that it is a good deal more than malpractice.

The distinction in Estelle, Estelle doesn't reach ordinary malpractice.

If a doctor is simply exercising professional judgment and does it negligently, that is not an Eighth Amendment violation under Estelle and that is not the understanding.

It is my understanding and what the courts have held is that one must show an action beyond medical judgment.

Indeed, it is our position in this case what happened was that Dr. Atkins in his last examination of the petitioner five months after he had first seen him, saw him in his office, said, your achilles tendon has not yet healed, you may need an operation, but you certainly need continuing, regular orthopedic care from me, and that was the medical judgment he entered, and then immediately upon the petitioner leaving the office he wrote on that day in the medical records, I discharged this man from further orthopedic services, and in fact that order was obeyed, despite other prison people trying to get this man to Dr. Atkins.

Unidentified Justice: I see that that goes beyond negligence, but it is not enough to go beyond negligence.

You have to go all the way to punishment, and I don't see how this individual had any responsibility for the administering of the state's punishment.

Mr. Stein: Well, he was given the power to decide whether or not this person would have treatment, just as the guards who are identified in lots of the cases and were identified in the Estelle case, seeing a man needing medical treatment and saying, I am not going to allow you to see the physician, that is an infliction of punishment because that's the only access to the medical care there is.

Unidentified Justice: It's an infliction of harm, but I don't know that anyone would call it an infliction of punishment unless that individual had the responsibility for carrying out the state's sentence.

What about the janitor who wipes up the floors in the prison?

If he is a particularly spiteful fellow and leaves them soaped so that people will... intentionally so that people will slip on them, would you say that is part of... he is administering is cruel and unusual punishment?

Mr. Stein: Justice, I don't know about that case but we are dealing here with medical care which is one of the core functions within the prison system... there are only a few that the Court has identified that must be satisfied to satisfy the Eighth Amendment in maintaining the system.

One is some minimal degree of medical care, I suppose food and clothing and shelter.

And if those aren't provided at a minimal level, then there is a... it violates contemporary standards of decency and is an Eighth Amendment violation.

Unidentified Justice: The person who's responsible for administering the state sentence, if he is knowingly responsible for that, you certainly have him under 1983, but don't you have to reach somebody who is responsible for executing the sentence upon the individual somehow, someone who is in charge of administering the punishment.

Mr. Stein: Well, it is my understanding it is the fact of incarceration which is the punishment, and that everybody who is within the prison system is... and is a prison official is connected with administering the punishment by maintaining the incarceration and by feeding people and so on.

Unidentified Justice: You don't say in the municipal area that every agent of the city is the city for purposes of municipal liability.

We try to reach somebody who establishes policy for the city.

Why shouldn't it be the same for the prison?

Mr. Stein: This is not a municipal case or a Minnell case.

We aren't seeking to seek the state or anyone other than this person who himself committed the act of which we complain.

We say he is like the police officer in Griffin against Maryland who was in fact a private security guard employed by Glen Echo but had been deputized by the county of Maryland to effect arrests, and when he did that arrest, although Maryland had never paid him or trained him or anything, that was found to be state action because he was acting with the authority that was given.

In this instance, if it had been a private doctor with a private person discharging the person from care would have no effect.

You go down the street and see Dr. Jones.

But when Dr. Atkins spoke and said, my patient won't have any more orthopedic care because it was in the prison context that was the end of orthopedic care and indeed although nurses and other health care people and guards and so on sought to have Mr. West cared for by Atkins, Atkins was able to enforce the order and never saw him again, and the suit then followed.

A few--

Unidentified Justice: The case has never been tried out on its facts, has it?

Mr. Stein: --No, it hasn't.

Unidentified Justice: The District Court granted summary judgment.

Mr. Stein: Just summary judgment.

Unidentified Justice: And what were your allegations, deliberate indifference?

Mr. Stein: Yes, sir.

The allegations were, this was a pro se complaint.

The allegations were that Dr. Atkins was deliberately indifferent to the medical needs of petitioner Quincy West, who had torn his achilles tendon, and it sent on for a period of five months, ending up with the appointment with the examination I described on February 14th, where he had begun by saying, you need an operation but I'm going to experiment on you by putting a cast on your leg, had then seen him, and the experiment seemed to have failed.

Each time West would come in, he would ask for some treatment for his pain.

He never received that.

And then finally he was discharged at a time the doctor himself was saying, your achilles tendon hasn't healed, you need further treatment, and we say that is being deliberately indifferent, purposefully withholding the care that he said was needed.

And that is the basis of the claim.

In the... briefly, the prison system in North Carolina, medical care is provided.

There are some 80 units out there.

There are local doctors at each unit who are responsible for primary care and then also to refer for specialty care.

The referrals are then made to Central Prison Hospital, where the state employs specialists to run 12 different specialties, and clinics are held there on Tuesdays and Thursdays.

People are bused in.

If medically able, they are bused out after their appointments, or they are put in the hospital there at Central Prison Hospital.

Dr. Atkins was the person responsible for running the two Tuesday and Thursday orthopedic clinics.

He was also responsible for doing all the orthopedic operations at the Central Prison Hospital.

He was responsible for being on call 24 hours a day.

He was responsible for making rounds at the hospital as often as necessary to see his surgery patients or his other orthopedic patients.

He would do this, of course, in the prison facility.

He'd go through the gates, into Central Prison, into the hospital, would conduct the clinics with clinic supplies, assisted by hospital people, not people of his employ, and the same thing would be true for surgeries and in the hospital.

He had a great deal of responsibility and authority, and would in conducting his business supervise other personnel in carrying out his work at the clinic--

Unidentified Justice: Supervise personnel who were employed by the prison?

Mr. Stein: --Well, the record is not altogether clear on that.

The record is limited to the materials put in by Dr. Atkins on motion for summary judgment.

That is my understanding, and I am taking some inferences on that based on what a doctor would do who--

Unidentified Justice: But my question was, were these people he supervised employees of the prison, and you say... when you say that's my understanding, do you mean yes, they were employees of the prison, or that you really don't know?

Mr. Stein: --Well, I think that we do know that some of them had to have been.

Some of the orders are... would be directed to transporting people back and forth, and the prison provides regular bus transportation among its units back and forth.

We know that there are prison employees who provide medical care at the various units, and they obey the orders of the specialists when the person comes back with the medical records.

We know that he is responsible for directing the care as his patients are there in the hospital.

We submit that a person such as this is like the private policeman in Griffin against Maryland, that this... that his actions are fairly attributable to the state.

He plays an important role within the total health care system and exercises the power to decide what, if any, treatment orthopedic treatment a prisoner will receive, and we see that the facts in this case show that he had the power to deny treatment since after the circumstance where he was telling his patient that you need further care, no further care was forthcoming, and others would repeatedly... Nurse Earp and the physician's assistants on the cellblock, and those are people who are prison employees, would seek to set up appointments, and then it was discovered that an order had been entered, and he never saw him.

Finally, the prisoner filed a formal complaint with the grievance commission there at Central Prison complaining that he wasn't receiving treatment from Atkins, he wasn't able to see him, that he continued to be in pain, and that his leg was swelling, and that seemed to be resolved by establishing an appointment for him with Atkins on June 21st, 1984.

June 21st came and went without him being taken to see Dr. Atkins, and a week later he was, in his words, abruptly transferred to the Caledonia Prison Unit some 75 miles away.

This suit followed a few months later, him never having seen Dr. Atkins again or, the record shows, no further orthopedic care.

Unidentified Justice: Why the... this is a 1983 suit?

Mr. Stein: Yes, sir.

Unidentified Justice: Why that suit instead of an ordinary negligence suit?

Mr. Stein: Well, a negligence suit would have been easier probably, Your Honor, but he chose his forum, and he acted for himself and filed a pro se complaint, and I suppose being in the custody of the State of North Carolina he was looking to the federal court for the vindication of his federal rights, but that was his decision, and that is what he did.

Unidentified Justice: But there would have been... a negligence suit wasn't barred, was it?

Mr. Stein: My understanding of North Carolina law is that he could have filed a negligence suit in state court.

Unidentified Justice: Who could he have sued?

Mr. Stein: Well, he could have sued the doctor.

Unidentified Justice: How about the prison?

Anybody in the prison?

Mr. Stein: Well, he could have sought to bring an action under the State Tort Claims Act, which is a procedure that is administered by the Industrial Commission, and it is heard before a deputy commissioner.

However, once the Fourth Circuit's decision in Calvert against Sharp came down the state started taking the position in the Industrial Commission that doctors such as Dr. Atkins weren't state employees, and therefore you couldn't proceed there.

Unidentified Justice: I see.

Do you understand the Court of Appeals to have held that there is no state action even if a doctor is an employee of the prison?

Mr. Stein: That is my understanding.

Unidentified Justice: It covers any doctor in or out of the prison system.

Mr. Stein: That's my reading of this--

Unidentified Justice: Would not be exercising any state action.

Mr. Stein: --And of course it based its decision on its reading of this Court's rulings in Polk County against Dodson, where there was language in there and some discussion of a public defender's professional obligations which would cause that public defender to be independent, and--

Unidentified Justice: Mr. Stein, I can understand your response to Justice White, but is the Fourth Circuit theory really so apparent?

One can argue that they relied on the Calvert case, and the Calvert case had to do largely with part-time performance, didn't it?

Mr. Stein: --Well, it did, but the language in this case, and emphasized a couple times, is that whenever a professional is acting within the bounds of his professional discretion, he does not act under color of state law.

Unidentified Justice: That certainly is in the opinion, but also the great emphasis on Calvert makes me wonder really what their basic theory was.

I don't get consistency in argument by the Fourth Circuit.

Mr. Stein: Well, we have seen recently some unpublished opinions from the Fourth Circuit where we find that if a doctor, a prison doctor is named in the suit, he is... it is... the broad language is cited, and the case is dismissed.

I think that is the understanding of that court.

Unidentified Justice: On that basis there would never be a recovery.

Mr. Stein: There would never be a recovery against the doctor.

Unidentified Justice: Against the person.

Mr. Stein: Against the person.

Unidentified Justice: Under federal law.

Mr. Stein: Under federal law.

That's right.

And we submit, of course, that the Fourth Circuit got the language of professionalism in Polk County wrong, that what was important in the Polk County case in terms of the professional obligations of the public defender was her professional obligation to be not only independent but to be adversarial to the state.

In fact, the Dodson case, it was litigation where the plaintiff was the State of Iowa, State of Iowa against Dodson, and one looks at that and sees that the police have investigated and preferred charges in the state through its state's attorney.

The district attorney is prosecuting it.

And then look on the defendant's side of the table and see it's against Mr. Dodson, and there is his counsel.

And in those circumstances, and I think that the court said in the peculiar circumstances of the case the state employee was not said to be acting under color of state law.

I would point out that even in that courtroom or in the context of that the lawyer representing the state was a state actor.

Nothing has disturbed the court's rulings on that.

So was the judge, or the judges.

I think it was then before the State Supreme Court.

After Polk County against Dodson, we have the Glover case, where a public defender was sued, and he was found to be acting under color of state law because of his acting in concert and conspiracy with the prosecutor and the judge and other state officials, so that the professionalism of the judge and the professionalism of the prosecutor didn't cause them not to be state actors.

It seems to me that the Polk County case is very limited and peculiar, and I would note that when a public defender acts in a case of a criminal defense lawyer, he is always acting before the courts, and judges have a responsibility if they see something wrong going on to act.

Criminal defendants with some frequency complain about their lawyers, and if the complaint has some merit, the judges will act.

That is not true--

Unidentified Justice: Well, the lawyer can certainly advise the criminal defendant outside of the courtroom, you know, go to the prison.

That isn't conducted in the presence of any judge.

Mr. Stein: --No.

That's right, Your Honor, but the case is pending in a court which would receive a complaint from a prisoner.

It is certainly my experience that when judges receive that, if it looks like there is any merit in it, where there is... in a criminal defense situation, that they will make some inquiry.

And indeed, the rule that was involved in Polk County against Dodson, it was the filing of the Anders brief which was complained about, and the rule there said that the lawyer had to tell the client, I am going to file a no merit brief, and then the person, Mr. Dodson then had the opportunity to tell the Court, I think this is wrong, and please examine it closely.

It just doesn't have its counterpart in the prison system short of litigation.

I would also emphasize in terms of the professionalism idea that there are lots of cases from this Court where professionals have been found to be acting under color of state law.

We cited the Youngberg case, where the act of exercising a professional judgment was found itself to be the state action, and if the actor exceeded the bounds of accepted professional judgment in that instance of providing certain care to a mentally retarded person incarcerated in a state institution, that would be actionable under 1983.

I would mention briefly the Blum case, which was the case involving concededly private physicians and concededly private nursing homes in New York, which is very much in contrast with the setting we have, which is in the Central Prison, behind walls, a core... medical care being a core function of the responsibilities of the state in providing prison services.

And I would like also to mention that we are here construing the Civil Rights Act of 1871 that this Court has often told us was intended to provide remedies as broad as the 14th Amendment, and I certainly do submit that on the facts of this case it seems inconceivable to me that Congress couldn't draw a statute to allow petitioner to bring a lawsuit against this doctor for the things that he said were done.

And finally, I would say to the Court that Estelle and the cases that have followed it have identified in the prison system serious problems in medical care in prisons, reaching constitutional dimensions, but the course of that litigation has substantially improved health care in the prison systems, and the two fine amicus briefs that were filed in this case by the ACLU and the American Public Health Association show that, and I submit that the Court of Appeals decision here in effect cuts Estelle in half, takes the doctors out as potential litigants, and would damage substantially the progress that has been made and turn us in the wrong direction.

If there are no further questions, I will reserve my remaining time.

Chief Justice William H. Rehnquist: Thank you, Mr. Stein.

We will hear now from you, Mr. Safron.

ORAL ARGUMENT OF JACOB L. SAFRON, ESQUIRE ON BEHALF OF THE RESPONDENT

Mr. Safron: Mr. Chief Justice, and may it please the Court, we are not here to argue Estelle versus Gamble, nor are we here to deny the fact that an inmate may sue a doctor in state court under conventional tort liability.

What we are arguing is that a physician in a situation such as Dr. Atkins in this case does not function under color of state law so as to satisfy the jurisdictional requirement of the Civil Rights Act.

Now, in this particular case, Mr. West was playing volleyball on July 30th, 1983, at the Odom Correctional Institution.

He injured his left leg while playing volleyball saw the physician at the unit, and was referred to the orthopedic clinic at Central Prison Hospital, where on August the 9th, 1983, he was presented to Dr. Atkins, who was the orthopedic surgeon conducting that particular clinic.

There are a number of clinics at Central Prison Hospital.

We also have another hospital, McCain Hospital.

There are 130 physicians under contract with the State of North Carolina excluding dentists and psychiatrists.

For the fiscal year ending June 30th, 1987, the State of North Carolina spent $23,345,000 in providing medical care to inmates.

Unidentified Justice: Mr. Safron, let me ask the converse of Justice O'Connor's question of your opponent.

Do you conceive of any factual situation where a physician is liable?

Mr. Safron: Under Estelle, if we have an administrator, but we would deny that under these facts that Dr. Atkins was an administrator.

Although he may have given medical orders to medical staff, we deny that he is an administrator.

He is not responsible for running the prison.

He may give orders to a nurse.

Now, in this situation--

Unidentified Justice: So even if he is employed full-time and exclusively by the state to render medical care to the prisoners, you take the position no liability.

Mr. Safron: --I would take the same position that the en banc opinion of the Fourth Circuit did, Justice O'Connor, that if he is a doctor, performing medicine, and is not an administrator, that he is not functioning under color of state law merely because he is a physician employed by the state to provide medical services.

Unidentified Justice: Well, what if the prison hired on a contract basis prison guards, all of whom are licensed under some state licensing scheme to make them professionals?

Mr. Safron: If Your Honor please--

Unidentified Justice: No liability?

Not state actors.

Mr. Safron: --I am not going to say that, Your Honor.

I'd say this.

We have the case cited by counsel involving private guards who were given arrest powers.

Only the state can arrest, except of course, there is citizen's arrest, but custodial authority... and that is not the case before us, but custodial authority is state action.

Providing medical care, I would submit, is not state action.

Unidentified Justice: That is a little difficult to argue in the face of Estelle, isn't it?

Mr. Safron: Estelle, Your Honor, establishes deliberate indifference.

The defendant doctor in Estelle was the medical administrator of the facility.

He was an administrator.

He was in a supervisory capacity.

Dr. Atkins was not in a supervisory capacity.

Now, I would like to show what happened here.

Mr. West shows up--

Unidentified Justice: Excuse me.

Before you go through that, I don't... from what you've said I don't understand whether you've abandoned the professional requirement or not.

Mr. Safron: --No, not at all, Your Honor.

Unidentified Justice: You are sticking by the... so--

Mr. Safron: Oh, yes, I certainly am.

What I am saying is this.

Unidentified Justice: --So the janitor who soaps the floor would indeed be liable?

Mr. Safron: Well, no.

Unidentified Justice: No?

He is not a professional, I don't think.

Mr. Safron: Let me present these example.

The state obviously has a responsibility to provide medical care.

I am certainly not denying that.

The state also has responsibility to provide food.

If you had some company contracting in the commissary and that company somehow served xx, now, that is not state action.

The same way xx has responsibility to keep the state prison heated.

Unidentified Justice: Excuse me.

So you are abandoning the professional requirement, unless you consider serving food to be a profession.

Mr. Safron: No, certainly not.

Under the facts of this case there is the professional requirement, but if we are moving from that, I would say that color of state law is what is coming into play, and that color of state law could in fact be really unavailable in other situations, serving food, providing heat.

Unidentified Justice: Mr. Stein, getting back to Justice O'Connor's question, you kind of left off between the guard and the doctor as to the difference under the color of state law.

What is the difference under color of state law?

Mr. Safron: Justice Marshall, I would say this.

A doctor is a doctor because he is licensed by a medical authority.

A guard can only be a guard in a prison because he is hired to be a guard.

One is not licensed--

Unidentified Justice: What is the doctor hired to be?

Mr. Safron: --The doctor is hired to provide the very service he provides.

In this case Dr. Atkins had his own practice a half-dozen blocks away from the prison, providing medical services.

Unidentified Justice: But that's not what this case is about.

This case is about what he did as a prison doctor.

That is different from a private doctor, right?

Mr. Safron: Your Honor, this case is about what he did as a physician.

Unidentified Justice: What's the difference between a prison doctor and a guard?

Mr. Safron: I would submit there is a world of difference, Your Honor.

Unidentified Justice: Start on it.

0 [Generallaughter.]

Mr. Safron: A doctor is a doctor, and he has... he is licensed by the state.

He is responsible to his Hippocratic Oath.

He is responsible to the standards established by the American Medical Association and the North Carolina Medical Association in this case, and should he be negligent he would be responsible under tort law using the normal negligence theories in our state court.

Unidentified Justice: And not responsible to the prisoner at all?

Mr. Safron: I didn't say not responsible.

I said responsible under normal theories.

Unidentified Justice: So the only difference is that a doctor is a doctor and a prison guard is a prison guard.

They are both hired by the state, aren't they?

Mr. Safron: They are both hired by the state and that I will not disagree with, but--

Unidentified Justice: And was the guard doing what he was supposed to do, and was the doctor doing what he was supposed to do under the state law?

Mr. Safron: --Well, in this case I would argue, and we haven't gotten to the facts--

Unidentified Justice: Was the doctor operating under color of state law?

Mr. Safron: --No, Your Honor, he was operating under his license.

Unidentified Justice: Was he operating under the state law?

Mr. Safron: He was hired by the state to provide medical services, Your Honor.

Unidentified Justice: He's paid by the state.

Mr. Safron: Oh, yes.

Unidentified Justice: To provide medical services.

Mr. Safron: Yes, he was.

Unidentified Justice: Which allegedly he did wrongly.

Mr. Safron: Allegedly he did wrongly, and therefore--

Unidentified Justice: And therefore the state is not responsible?

Mr. Safron: --He would be liable, as would any other doctor be liable for negligence.

Unidentified Justice: But this wasn't under color of state law?

Mr. Safron: No, it wasn't.

Unidentified Justice: Who else was he hired by at the time he acted in this case?

Who else was he hired by?

Mr. Safron: He was paid by the state to provide medical services to the inmates presented--

Unidentified Justice: The complaint is--

Mr. Safron: --Yes, Your Honor.

Unidentified Justice: --that in doing that he did wrong, and you say the state has no responsibility.

Mr. Safron: This... obviously, Your Honor, even under Section 1983, an individual is responsible.

This is not a case involving whether or not the state is responsible.

The state provided the physician.

The physician tended his patient, and the complaints presented to the physician, the doctor provided the medical care under his medical license, the same medical care that he would provide outside in his office a few blocks away.

Now, in this case--

Unidentified Justice: May I just clarify one thing in my mind?

In your view of the case it makes no difference whether the doctor is an independent contractor or a full-time employee.

Is that correct?

Mr. Safron: --I don't believe it would, but of course under the facts of this case he is a contractor who provided two clients per week.

Unidentified Justice: You rely just on the fact that he's a doctor and doctors are different because they have this professional status.

If it were a food service, you gave an example... supposing they hired a caterer to bring in the... whatever you call these food companies that bring in food from outside, and say they deliberately planned a diet that was not... didn't give the minimum nutritional needs to the prisoners.

They gave them just some stuff that wouldn't be fit to eat, deliberately.

They knew the prisoners would all suffer in their health, and so forth and so on.

Would anybody be liable under Section 1983 in that situation, do you think?

Mr. Safron: I just submit that is a particular scenario I have never given consideration to.

Unidentified Justice: How is that different from this?

If this doctor deliberately mistreated a prisoner, knowing... just assume.

I know these facts are in dispute, of course.

But if you had a doctor who suddenly just decided, I'm going to make some money out of this but I don't want to spend any time on it, give him aspirin, and don't care what the trouble is with him.

Just pay no attention.

Tells the staff to do that.

No liability?

Why is that different than the--

Mr. Safron: You are presenting a difficult case.

Unidentified Justice: --He is not acting as a professional should act, obviously.

If he lives up to the Hippocratic Oath and performs to all the medical standards, nobody is going to be liable for anything.

But you hypothesize a case in which you have a doctor who is deliberately indifferent to the needs of the prisoners who were sent to him for their care, and is there any liability under 1983 in those cases?

Mr. Safron: I would still argue against liability but that is not to stay there is no liability in state--

Unidentified Justice: But why is that different from the food service company?

Mr. Safron: --I really don't know if the food service company would in fact be liable under Section 1983.

Unidentified Justice: Even though they are paid by the state, and they carry out... supposing instead of having a prison you contracted out the prison.

You got a hotel chain or something with private security guards, and you put all your prisoners in custody there and had an independent contractor run the prisons on behalf of the state, and they just figure, we're going to make as much money out of this as we possibly can.

They didn't feed them, they didn't give them bathing facilities or athletic... anything like that, just warehoused them.

Would the state, would anybody be liable if they did that, because if they are not, I suppose that would be quite a convenient way for the state to avoid any legal responsibility for these things.

Mr. Safron: Justice Stevens, I would first of all submit that behind this case, I believe, is the very question you are asking.

The question of privitization--

Unidentified Justice: Right.

Mr. Safron: --is really the specter that is the subscript of the arguments being made.

Unidentified Justice: The question is whether that would mean they could avoid any constitutional responsibilities to these--

Mr. Safron: It would appear to me, and that is not the case in front of us, that there are certain basic obligations that if a private company assumes certain basic obligations and with the intent--

Unidentified Justice: --That would otherwise be state obligations.

Mr. Safron: --That would otherwise be state, but state obligations are still private obligations under Section 1983.

The State of North Carolina or any other state is not a proper defendant in a 1983--

Unidentified Justice: But here we have an individual.

Mr. Safron: --But still--

Unidentified Justice: We have the independent contractor, like my private prison service.

We operate very inexpensively, and we are really rather rough, but are we liable?

Mr. Safron: --In that particular instance it would appear to me that the officials in the state, any state have an obligation to review what services are being provided in that regard, and injunctive relief would certainly be available through the state administrators.

Unidentified Justice: Well, but how about the people furnishing the services?

That's what I thought was being asked about.

Mr. Safron, couldn't you draw a line between whether the services being provided are the services of administering the penalty, of administering the punishment, of taking charge of the custody of the individual, which is indeed the sentence that the state has imposed--

Mr. Safron: That's what I--

Unidentified Justice: --As opposed to those who are doctors and food servers or whatever else?

Mr. Safron: --That's what I--

Unidentified Justice: Isn't that a fairly discernible line?

Mr. Safron: --That was the line I had attempted to start with, Justice.

Unidentified Justice: I know.

I thought maybe you forgot it.

0 [Generallaughter.]

Mr. Safron: That there is a difference between being a prison guard and providing security and providing many of the services, medical, food, clothing, laundry... there's a plethora of obvious responsibilities, but which are separate and apart from punishment and providing the security.

Being a guard, you can only be a guard under color of state law.

You can run a laundry.

You can run a commissary.

You can provide medical services.

You can be a heating contractor.

Unidentified Justice: So your line doesn't depend on whether he is an agent or an independent contractor.

That is just a kind of service.

But medical services are immune, even if provided by full-time employees of the hospital.

That would be Justice Scalia's line, I suppose.

Mr. Safron: Yes, Your Honor.

Unidentified Justice: Because they are not in the business of punishing people.

Mr. Safron: Yes, Justice--

Unidentified Justice: Even if they are deliberately indifferent under the Estelle against Campbell rationale.

Mr. Safron: --The point I am really trying to make is, there is still liability under normal standards of tort law which is much less than the civil rights standard.

Unidentified Justice: That doesn't [inaudible] does it?

Mr. Safron: Not really, Your Honor.

No, it doesn't.

It has to do with if it's punishment, if it's security--

Unidentified Justice: What you are saying is, we don't need Section 1983.

There are lots of good state remedies out there.

Mr. Safron: --Yes, Your Honor, there are.

Now, in this particular case, the situation we have is that on August the 9th, 1983, Mr. West is presented to Dr. Atkins with a complaint of a torn achilles tendon.

Dr. Atkins provided what in fact is the conservative treatment.

I have run through the computer and found a case and I would like to leave... I mean article I would like to leave with the clerk.

Unidentified Justice: But that [inaudible].

Mr. Safron: No, but what I'm trying to say is this.

He provided a conservative treatment, put on a long leg cast on August 9th--

Unidentified Justice: I know, but you would say if he didn't give him any service at all he couldn't be sued under 1983.

Say he gave the most radical treatment.

Mr. Safron: --I'd like to get back to the facts.

That's it here.

He provided the most conservative treatment.

He was paid for his clinic.

In fact, he would have been paid extra for surgery.

At his own election he provided the conservative treatment, put on a long legged cast, ordered Mr. West to return in three weeks, and when he returned in three weeks the cast was broken off at the ankle, permitting--

Unidentified Justice: Now, Mr. Safron, we granted certiorari on two questions involving whether prison doctors are state actors under these circumstances.

Now, you could argue for affirmance on an alternate rationale, but since it was summary judgment it seems to me you've got to take the facts as resolved against you.

Mr. Safron: --If Your Honor please, we of course are arguing in light of Calvert versus Sharp, which was decided by the Fourth Circuit Court of Appeals several weeks before the complaint in this case was served.

Based on Calvert versus Sharp, the response in this case adopted Calvert versus Sharp.

The lack of state action under Polk County versus Dodson, under Blum versus Yaretsky, and the medical record was not developed because obviously we wanted to see if we could trust the Calvert-Sharp rationale.

Unidentified Justice: Yes, and that is what the case is here now for.

The place to develop the medical record or argue about a conservative technique was applied was somewhere back in the trial court if this Court should reverse on the state actor.

Mr. Safron: We are arguing that this is not state action.

We are going back to some of the very recent cases of this Court, the Whitley versus Albers decision involving the shooting, in which this Court held that unless there is wantonness there is no Eighth Amendment violation.

We are supporting... we are going back to the Daniels versus Williams case, the trip and fall in the Pichmond County Jail, that mere negligence is not a civil rights violation.

The Davidson versus Cannon last term in which--

Unidentified Justice: That is not the way the court below decided the case.

They didn't say there was insufficient allegation of deliberate indifference.

They said this fellow was not a state actor.

Mr. Safron: --And that is... and we are relying, of course, on the en banc opinion of the Fourth Circuit that under Polk County versus Dodson, the same way that a full-time public defender is not a state actor, we are submitting that a doctor has his responsibilities under the appropriate standards of medicine the way the attorney who is the public defender has his responsibilities under the appropriate canons of ethics, and that regardless of the fact that one is a full-time employee, that does not turn one into someone who functions under color of state law so as to subject him or her to 1983 jurisdiction, because unless there is in fact jurisdiction over the individual, unless a person is a state actor, there... this is an inappropriate forum under Section 1983.

And, of course, taking Blum versus Yaretsky, we would submit in light of Blum that providing medical care is not the exclusive prerogative of any state.

Doctors provide medical care to patients in and out of prison.

Orthopedic surgeons provide medical care, and this is not the exclusive prerogative so as to give rise to the color of state action, which gives rise to 1983 jurisdiction, and basically that is the argument we are presenting, and that is the argument we are relying on, one which the Fourth Circuit en banc found sufficient, just as false imprisonment does not become a Section 1983 violation, which this Court held in Baker versus McCollam, just as in Paul versus Davis defamation does not become a 1983 violation, doesn't rise to a constitutional violation.

We are submitting that an allegation of malpractice, as this Court stated in Estelle versus Gamble also does not convert allegations of malpractice into a civil rights violation under Section 1983, subjecting that physician to federal court jurisdiction and requiring him to respond in yet another form, and a form which is outside malpractice policies, and as a result--

Unidentified Justice: Well, you take the position, though, I gather, that even if the allegation is that this doctor, simply didn't like the prisoner, thought he was a bad actor, and thought he would get back at him by making him physically suffer and withdrawing and denying medical care, that there can be no liability as a state actor.

I understand that is your argument, right?

Mr. Safron: --At that point, Your Honor, we're getting into language of wantonness that this Court used in Whitley versus Albers.

Unidentified Justice: Make it as bad as you want.

Paint the worst picture possible.

It's a prison doctor.

He's a professional.

He is hired not as a full-time employee, on a contract basis.

But that's what he does.

He wants to make that prisoner suffer, and he does.

Mr. Safron: I would still argue, Your Honor, that there is a forum, and because there was a forum, which is the state courts, under a much reduced standard than under Section 1983, that the inmate has a forum available to him, and with the forum available to him--

Unidentified Justice: Well, why is he not a state actor?

Just refresh my recollection.

Under those circumstances.

Mr. Safron: --He is not a state actor because he is not functioning under color of state law.

He is functioning under his medical license and under the--

Unidentified Justice: You fall back under the professional argument now?

It is just not clear to me, Your Honor.

Mr. Safron: --Under the facts you are presenting, Your Honor, there is no question that that particular doctor would be violating his Hippocratic Oath, would be violating the standards established--

Unidentified Justice: We are talking about whether he is a state actor or not.

Now, what rationale do you rely upon to say he is not a state actor?

Mr. Safron: --The rationale is that he has his medical license, and that--

Unidentified Justice: Falling back on the professional.

Mr. Safron: --that he is a professional.

Unidentified Justice: All right.

I thought in response to Justice Scalia you had backed off that, but now we're back to that.

Mr. Safron: I would argue that he is still the professional, and as the professional his obligations under his medical license, his obligations to the state medical... to the state medical standards, American medical standards, that if he acts in this fashion there is, recourse, recourse at a much lower level than under the Federal Civil Rights Act.

Negligence requires much less than civil rights violation.

Unidentified Justice: Mr. Safron, I had thought--

--Is the point that he... go ahead.

I had thought your point was that he was a state actor but was not a state actor for the purpose of imposing punishment, and that's all that the Eighth Amendment covers, and therefore he can't be a state actor.

He may be a state actor for purposes of some other 1983 violations, but not for the cruel and unusual punishment unless he is a state actor for the purpose of executing the sentence of the state, and doctors are not.

Mr. Safron: Obviously, doctors don't execute sentences, Your Honor.

That's obvious.

Unidentified Justice: Nor are food service people, so really it doesn't depend on the professional thing at all.

Mr. Safron: Whether or not punishment is being imposed is, I think, the crux.

Whether or not--

Unidentified Justice: Well, it is surely being imposed.

The issue is that this person has to be one responsible for--

Mr. Safron: --Well, obviously, but I meant by the particular individual who is asserted to be the state actor.

Unidentified Justice: --You want us to say as a matter of state law a doctor can never impose punishment?

Mr. Safron: It would seem to me, Your Honor, that if the doctor is functioning as a physician--

Unidentified Justice: Now you are back to the physician analogy, and that means the more control the person has over the prisoner, the less obligation he has to the law?

Mr. Safron: --No, Your Honor, control, I think, is the substance, and control over an inmate in terms of imposing the security, imposing the punishment--

Unidentified Justice: You say the more professionalism, the more learning the doctor has, the less control he has over the prisoner?

Mr. Safron: --In terms of the normal requirements, that... he has... he is practicing medicine.

He is not maintaining the security of the institution.

He is not a guard who maintains security.

Unidentified Justice: Was he a prisoner when he was treating him?

Mr. Safron: Mr. West was a prisoner when Dr. Atkins was treating him.

Unidentified Justice: And he was under guard just the same as in the middle of the jailhouse, right?

Mr. Safron: I am sure there were guards present.

Unidentified Justice: Well, it was a prison hospital.

It wasn't a private hospital.

Is that right?

Mr. Safron: Obviously, and I am sure--

Unidentified Justice: So he was still under restraint, subject to the Eighth Amendment.

Mr. Safron: --But not Dr. Atkins' restraint.

Unidentified Justice: Well, he was there.

We are not complaining... we are complaining about what he did while this man was under restraint as a prisoner.

And is there any difference between the hospital and the prison as to that?

Mr. Safron: Yes, Your Honor.

Unidentified Justice: And what is the difference?

Mr. Safron: The doctor is present practicing his profession.

There may be a guard present maintaining the security of the institution.

Unidentified Justice: Suppose he had been in the prison treating him.

Would he still be exempt?

Mr. Safron: He is not an individual imposing security of the institution, Your Honor.

Unidentified Justice: If he was treating him inside of the prison, would he still be exempt under your theory?

Mr. Safron: Justice Marshall, yes, because he is not imposing the security of the institution, he is merely providing the medical care.

There may be a guard present, maintaining the security, but that is not Dr. Atkins' or any other physician's responsibility or mission.

Unidentified Justice: Mr. Safron, if this litigation proceeds to a judgment against Dr. Atkins, will the state indemnify him?

Mr. Safron: No, well, the reason we are here is because the statutes were amended permitting the attorney general to represent medical professionals when claims of civil rights violations arose.

Unidentified Justice: The very fact that you are here out of the State Attorney General's Office on a special assignment perhaps almost indicates, doesn't it, a concession of state action under cover of state law?

Mr. Safron: No, Your Honor.

What happened, the statutes were amended.

In this particular instance, the state does not provide representation in the normal malpractice situation, but a civil rights situation, being outside the medical malpractice policy, in order to hire physicians we were permitted to come in on the civil rights aspects, provide representation, because otherwise the recruiting--

Unidentified Justice: Well, why doesn't the doctor have his own counsel here instead of relying on the state?

I am just saying the overtones are that the state's almost conceding that he acted under color of state law.

Mr. Safron: --No, Your Honor, we are just making sure that we can recruit physicians because when they are sued under color of state law they are on their own.

Unidentified Justice: Let me ask one irrelevant question before you sit down.

I see your red light is on.

There has been a lot of talk about the Hippocratic Oath.

In North Carolina are physicians required to take the Hippocratic Oath?

Mr. Safron: I, in seeing films of graduations of the University of North Carolina School of Medicine, I have seen it being given.

Unidentified Justice: I have, too, but I might say also that in many medical graduations the Hippocratic Oath is not administered.

Mr. Safron: I can't speak nationally, Your Honor.

Chief Justice William H. Rehnquist: Thank you, Mr. Safron.

Mr. Stein, you have three minutes remaining.

ORAL ARGUMENT OF ADAM STEIN, ESQUIRE ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Stein: Thank you, Chief Justice.

Two points about Estelle.

The first is that the doctor in Estelle was sued for what he did as a physician, not what he did as an administrator.

And it is our reading of Estelle that the failure to provide medical care that results in unnecessary suffering is punishment, and this--

Unidentified Justice: Mr. Stein, you can't mean that.

Suppose a state adopts a state Medicare system that all medical services will be provided to the general population at state expense, and you get a physician who does what this physician is alleged to have done here, intentionally withholds care.

Would that be an Eighth Amendment claim for cruel and unusual punishment?

Mr. Stein: --No, because... for several reasons.

The general citizenry aren't incarcerated.

Unidentified Justice: All right, so you don't mean that simply the denial of medical care is in itself cruel and unusual punishment.

Mr. Stein: In the prison.

Unidentified Justice: Ah, in the prison context.

Mr. Stein: Where the prison doctor has the power, as in this case, by withholding, by denying it himself, he is denying it altogether, which is not true in the free world.

Unidentified Justice: So in the example I just gave you, if a doctor treated somebody in the general population and intentionally withheld care, that would not be an Eighth Amendment violation, but under the same general state Medicare scheme, if he treated a prisoner, that would be an Eighth Amendment violation, in the same office, the prisoner is brought to his office, he treats the same individual.

He doesn't even know who are prisoners, who are not prisoners.

In one case he is guilty of acting under color of state law and inflicting cruel and unusual punishment, in the other case not.

Mr. Stein: Well, that is not this case but--

Unidentified Justice: I know that.

Mr. Stein: --I would say that it was if it's in a circumstance where the prisoner has no choice and no access to anyone else.

Unidentified Justice: Of course, we are not concerned here with the underlying constitutional Eighth Amendment issue, are we?

We are concerned with the statutory issue of 1983.

Mr. Stein: And whether the doctor acted under color of law, and that's what I understood.

Unidentified Justice: Yes, and is it not our usual approach to treat the statutory issue first rather than the constitutional issue?

Mr. Stein: It is.

If there are no further questions, I will conclude.

Chief Justice William H. Rehnquist: Thank you, Mr. Stein.

The case is submitted.