(dissenting in part).
I concur in the affirmance of the dismissal of the action against the City of Oklahoma City, Oklahoma. I respectfully dissent from the determination that the Complaint states a civil rights cause of action (42 U.S.C. § 1983) as to appellant Lawson as Chief of Police of Oklahoma City. It is my opinion that the acts and omissions alleged in the Complaint state only an action for negligence and do not constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
The essence of this complaint is that Dewell was arrested by members of the Oklahoma City Police Department on November 25, 1970 for public drunkenness and that at the time of his arrest and incarceration in the city jail he was suffering from diabetic shock. Thereafter his wife reported to the police that Dewell was missing and would be in need of medical treatment. An all-points alert was circulated by the police department, which continued to advise his wife that his whereabouts were unknown, notwithstanding his confinement in the jail. Dewell remained in the jail without medical treatment until November 30, when he lapsed into a diabetic coma and was taken to a hospital for treatment. Permanent injuries are alleged to have resulted from the lack of medical treatment. It is not alleged that he was held in the city jail without a lawful commitment.1 The allegations that the chief of police had by his negligence deprived Dewell of federal constitutional rights were that he “failed to establish 'procedures within the Oklahoma City Police Department whereby jail personnel of the said Department were advised of missing persons listed in all-points bulletins with the Oklahoma City Police Department.”; further, that the chief of police “failed to train personnel of the Oklahoma City Police Department to detect persons suffering from a diabetic condition” and also that he “failed to provide medical personnel to examine persons suffering from a diabetic condition” while confined in the city jail. Recent decisions have expanded the scope of rights under 42 U.S.C. § 1983 and have construed that section liberally to afford a recovery. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Roberts v. Williams, 456 F.2d *884819 (5th Cir. 1972); Whirl v. Kern, 407 F.2d 781 (5th Cir. 1969). Although some cases appear to permit recovery by prisoners upon proof of negligence, no case has been cited, and my research has disclosed none, which holds that the failure to provide procedures and services alleged to have been denied Dewell following his arrest is a denial of a constitutional right. It seems to me that such a requirement places an intolerable burden upon those persons in charge of the operation of state institutions where individuals are committed or arrested persons are received. Usually the discovery of chronic latent ailments necessitates careful laboratory tests. I would affirm the dismissal as to all defendants.
. The Answer filed to the Complaint discloses that Dewell appeared in municipal court on November 27, 1970 and voluntarily plead guilty to the offense of public drunkenness and was ordered to be held in custody until the court’s sentence was fulfilled.