Memorial Hospital on four occasions over a three-day period. The
uncontroverted evidence shows that the decedent was examined
twice by a doctor on December 22, 1967, and once on both December
23 and December 24. His illness was diagnosed as alcoholic
withdrawal and chronic asthma. He was given medication twice
daily for these ailments until, on December 26, 1967, he was
taken to court for a hearing on the charge of parole violation.
Later that day, December 26, he was sent to the Cook County Jail
under a one-year sentence. It is further uncontroverted that upon
admission to the County Jail, the decedent was given a medical
examination by a staff physician, Dr. Allen Hester. He was also
given a chest X-ray which, when later interpreted by a
radiologist, did not indicate any heart or lung disease. Dr.
Hester diagnosed the decedent to be suffering from a chronic
alcoholism syndrome. Hopkins was sent to the jail infirmary for
the night instead of to a cell. The next morning, December 27,
1967, the decedent was examined by a staff physician who
immediately sent him to the Cook County Hospital. There, he was
pronounced dead on arrival. The cause of death was determined to
be acute pneumonitis, a type of lung inflammation.
The jurisdiction of this court is invoked under the Civil
Rights Act, 42 U.S.C. § 1983. To sustain a claim under the Civil
Rights Act, the plaintiff must show the violation of a
constitutional right perpetrated under the color of state law.
Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed.
1495 (1945); Ruark v. Schooley, 211 F. Supp. 921 (D.Colo. 1962).
This the plaintiff has failed to do. The plaintiff has failed to
produce any evidence that the decedent was abused, mistreated or
denied medical attention while he was in the custody of the
defendants.*fn1 The evidence, viewed in a light most favorable
to the plaintiff for purposes of this motion, discloses at most
that the medical attention he received could or might have been
negligently administered. Negligence is not actionable under the
Federal Civil Rights Act. Allegations of improper or insufficient
medical treatment do not state a constitutional claim. United
States ex rel. Lawrence v. Ragen, 323 F.2d 410 (7th Cir. 1963);
Mayfield v. Craven, et al., 299 F. Supp. 1111 (E.D.Cal. 1969). The
plaintiff admits that the decedent received medical care and
attention on a number of occasions during his short period of
incarceration. It is not contended that the decedent was denied
any request for medical care. The plaintiff's evidence therefore
charges the defendants with tortious conduct in failing to
correctly diagnose the decedent's diseased condition. This
allegation, if taken as true, does not state a deprivation of a
constitutionally guaranteed right. United States ex rel.
Gittlemacker v. Commonwealth of Pennsylvania, 281 F. Supp. 175
(E.D.Pa. 1968); Henderson v. Pate, 409 F.2d 507 (7th Cir. 1969).
See also Coppinger v. Townsend, et al., 398 F.2d 392 (10th Cir.
1968); United States ex rel. Lawrence v. Ragen, supra.
A motion to dismiss was earlier denied by this court on the
ground that the complaint alleges malicious and willful
misconduct by the defendants in denying and failing to provide
the decedent with medical care. No evidence has been offered by
the plaintiff in support of this allegation. It is an abuse of
the Civil Rights Act to characterize a charge of negligence or
malpractice, properly questions of state law, as a violation of
It is therefore ordered that the defendants' motion for a
directed verdict be, and it is hereby granted, and the cause is