dissenting.
I respectfully dissent.
In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court held that deliberate indifference to serious medical needs of prisoners constituted the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment, which bars the infliction of cruel and unusual punishments. However, in Estelle, the Court, through Justice Marshall, wrote that an inadvertent failure to provide adequate medical care cannot be said to constitute “unnecessary and wanton infliction of pain”; that medical malpractice does not become a constitutional violation merely because the victim is a prisoner; and that in order to state a cognizable claim under the Eighth Amendment a prisoner must allege acts or omissions sufficiently harmful to show deliberate indifference to serious medical needs as it is only such indifference that offends “evolving standards of decency,” in violation of the Eighth Amendment.
The gravamen of Archer’s Section 1983 complaint is that she was subjected to cruel and unusual punishment, in violation of the Eighth Amendment.
Archer had been transferred to the Albany County Jail from the Dutchess County Jail with four other female inmates, the transfer having been made necessary by overcrowding in the Dutchess County Jail. On April 23, 1981, her last day at the Albany County Jail, Archer was accused of participating in a “food fight” in the dining room, of defacing county property, and of participating in an assault upon a female correction officer who, as a result, was injured and had to be sent to the hospital. On the same day, Archer was returned to the Dutchess County Jail and within two hours of her arrival was examined by Dr. Broun and members of the nursing staff. Dr. Broun noted that her left wrist was bruised and somewhat swollen, that she had a small lesion on her left knee, and that she had three mild contusions on her right ear — which Archer told Dr. Broun had resulted from the fights in which she had participated earlier in the day at the Albany County Jail. Dr. Broun ordered that she be taken to St. Francis Hospital for X-rays of her left wrist and left knee, and he prescribed 100 mgs. of Sinequan to be taken at bedtime.
*18Before Archer was taken to St. Francis Hospital, a hearing required by the prison regulations was held in the Dutchess County Jail with respect to her participation in the incidents which occurred earlier that day at the Albany County Jail. Other than her subjective complaints of pain, there was no showing that the delay in taking her to the hospital until after the hearing had any adverse effects on her physical condition.1 Following the hearing, she was given a copy of an “Incident Report” filed at approximately 6:45 p.m. on April 23, which charged her with disobedience of orders, destroying/altering county property, inciting a riot and assaulting and causing substantial bodily injury to a correction officer. Archer denied that she was guilty of any misconduct, and the record does not indicate that she lost any good time by reason of this report.
As Judge Werker stated in his opinion, no reasonable person could find that the delay on April 23, due to the hearing, constituted a wanton disregard of Archer’s medical needs or was a proximate cause of her miscarriage on May 5. There is certainly nothing to show “deliberate indifference to serious medical needs of prisoners” or “unnecessary and wanton infliction of pain,” which the Supreme Court in Estelle held was required to state a claim under Section 1983. Nor do I believe that Archer’s subjective statements require a remand to the district court for further proceedings. Given our very limited federal jurisdiction, I would affirm the determination of the district court without prejudice to Archer’s suing in the state courts if she believes she has a claim.
. Archer suffered a miscarriage 13 days later, on May 5, but other than subjective statements contained in her affidavit which is described at some length in the majority opinion, there is not the slightest evidence that she had any symptoms on April 23 relating to her subsequent miscarriage. As Judge Werker found, the first real symptoms of a gynecological problem appeared after April 23.