UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-40231
Summary Calendar
GEORGE RODRIGUEZ, SR.,
Plaintiff-Appellant,
VERSUS
MR. WOODS, Warden; MR. BURTON, Food Service Administrator;
D. MARTIN, Hospital Administrator; S. RIOS, Physician’s Assistant,
G. ARIZMENDI, Physician’s Assistant; E. CABUSAO, Physician’s Assistant;
M. BLANCAS, Physician’s Assistant; W. DUTEIL, Chief Doctor; MRS. RAMOS,
X-Ray Technician; JANET RENO, Attorney General; GAYNELLE GRIFFIN JONES,
U. S. Attorney; UNITED STATES OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-94-CV-202
March 18, 1999
Before WISDOM, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
George Rodriguez, an inmate at a federal correctional facility at the time this lawsuit was
filed, appeals the district court’s ruling granting summary judgment for the defendants. Rodriguez
sued several defendants, all prison personnel, in their individual capacity, under 42 U.S.C. § 1983,
alleging civil rights violations in the form of deliberate indifference to a serious medical condition.
We affirm in part, and reverse in part.
Contrary to the allegations in the complaint, this case does not involve 42 U.S.C. §1983.
The defendants are federal prison personnel, and therefore not persons acting under color of state
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published
and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
authority.2 Because Rodriguez has specifically pleaded that the defendants were being sued in their
individual capacity, he may nonetheless seek damages for co nstitutional violations. Such a claim,
however, is properly handled as a Bivens action, not as a §1983 claim. 3 While the district court
erred in treating this matter as a § 1983 action, the erro r was harmless, for the same substantive
standards of a §1983 claim apply to a Bivens action.4
Rodriguez injured his right knee in a fall. He was examined, and a radiologist located a
fracture of the right knee. Rodriguez’s knee was then placed in a cast. Several days later, Rodriguez
was examined again. This examination, conducted by a different physician, revealed no fracture, and
the cast was removed. Rodriguez contends that prison personnel were deliberately indifferent to his
medical needs by failing to take X-rays immediately, by not noticing the “fracture” immediately, and
by prematurely removing the cast on his knee. A prison official acts with deliberate indifference “only
if he knows of and disregards an excessive risk to inmate health or safety.”5 There is no such
violation with regard to Rodriguez’s injured right knee. “A medical decision not to order an X-ray,
or like measures, does not represent cruel and unusual punishment. At most it is medical
malpractice.”6 A claim of medical malpractice does not become a constitutional violation simply
because the plaintiff is a prisoner.7 Viewing the evidence in the light most favorable to the
nonmovant, there is no genuine issue as to any material fact, and the movant is entitled to judgment
as a matter of law.8
Rodriguez further argues that the defendants were deliberately indifferent to a serious medical
2
Leffall v. Dallas Independent School District, 28 F.3d 521, 525 (5th Cir. 1994).
3
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
4
Carlson v. Green, 446 U.S. 14, 19 (1980).
5
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
6
Estelle v. Gamble, 429 U.S. 106, 107 (1976).
7
Id. at 106.
8
Fed. R. Civ. P. 56(c).
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condition regarding his left knee. Rodriguez had had problems with this knee since 1966. In 1992,
while Rodriguez was incarcerated, an orthopedic surgeon recommended total knee replacement
surgery. Due to the logistical problems of prison populations, Rodriguez could not be transferred
to receive this surgery. In July, 1994, a second doct or concluded that Rodriguez was not
permanently disabled, and the surgery was therefore unnecessary. As with his right knee, the failure
to treat was t herefore because of a difference in medical opinions, and did not give rise to a
constitutional violation.
On August 23, 1994, Rodriguez had further X-rays taken of his left knee. These tests
revealed advanced degenerative joint disease of the left knee. After this diagnosis, the Health
Services Administration of the prison made two requests for Rodriguez to be transferred to a medical
facility. These requests were denied. Rodriguez was eventually released from prison without further
treatment of his knee. The record does not indicate why Rodriguez never received any further
treatment. The standard of deliberate indifference encompasses delays in obtaining medical treatment
for serious injuries.9 Reviewing the record in the light most favorable to Rodriguez, there is a genuine
issue of material fact as to whether prison official were deliberately indifferent to the condition of his
left knee after the August 23, 1994, diagnosis. In such a situation, summary judgment is improper.
As to the claim of deliberate indifference to Rodriguez’s left knee after August 23, 1994, the
district court’s granting of summary judgment is REVERSED and REMANDED. As to all other
claims, the district court’s granting of summary judgment is AFFIRMED.
9
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
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