MAX O. COGBURN, JR., United States Magistrate Judge.
THIS MATTER is before the court upon defendants' Motion to Dismiss. In response to that motion, plaintiff, who is proceeding pro se, filed a Motion to Amend Complaint. Having considered plaintiff's motion and defendants' objection, that motion is hereby allowed. The substantive additions to the complaint contemplated by plaintiff's motion have been considered in reviewing defendants' Motion to Dismiss.
The complaint submitted by the plaintiff is, at best, an incomplete statement. After reading it in a light most favorable to plaintiff, it appears to the undersigned that he is alleging to be a former state inmate who was subjected to excessive force and medical malpractice at the hands of the North Carolina Department of Correction. There is, however, no connection between that allegation and those against the named defendants, who appear to be private physicians and surgeons.
Plaintiff attempts to link these doctors to his custodial complaints by stating that defendants knew he had filed "federal charges" against the North Carolina Department of Correction, apparently concerning the alleged excessive force and medical malpractice claims. After providing him with arthroscopic surgery, plaintiff contends, these defendants falsified their own medical records to "cover up" medical malpractice by doctors in the employ of the North Carolina Department of Correction.
Defendants have moved to dismiss, claiming that plaintiff has not alleged that they were acting under color of state law and, therefore, have failed to state a claim against them under 42, United States Code, Section 1983. Defendants have moved for dismissal pursuant to Rule 12(b), Federal Rules of Civil Procedure, contending that plaintiff has failed to state a cognizable claim. Rule 12(b) authorizes dismissal based upon a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832(1989); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41(1957). As the Court discussed inNeitzke:
This procedure [for dismissal], operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts . . . a claim must be dismissed, without regard to whether it is based on outlandish legal theory . . . . What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations."
Id., at 1832 (citation omitted). For the limited purpose of making a recommendation as to disposition of defendants' motion, the undersigned has accepted as true the facts alleged by plaintiff in the complaint, as amended, and viewed them in a light most favorable to him.
Plaintiff appears to bring his action under 42, United States Code, Section 1983, which provides, as follows:
Every person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
(emphasis added). Plaintiff, patently, has failed to allege that these physicians were state actors.
Assuming arguendo that plaintiff had made such allegation, the Supreme Court established in West v. Atkins, 487 U.S. 42(1988), that a private physician, who is either under contract to treat patients or to whom patients are referred, acts under the color of state law where the state delegates its duty to provide adequate medical care to that physician. While an inference may be drawn from the pleadings that these defendants were contracted to provide plaintiff with a specialized medical service, plaintiff has failed to allege that such entity inflicted any constitutional wrong.
Reviewing the complaint in a light most favorable to plaintiff, it appears, at most, that he believes he was misdiagnosed. Disagreements between a healthcare provider and an incarcerated patient, however, cannot form the basis of an eighth-amendment claim under Section 1983,Russell v. Sheffer, 528 F.2d 318 (4th Cir. 1975); and plaintiff has alleged no extraordinary circumstances which would justify allowing a Section 1983 action to proceed, Wright v. Collins, 766 F.2d 841 (4th Cir. 1985). Plaintiff's only allegation is that these defendants "falsified, lied and deliberately misdiagnosis to cover-up medical negligence for the Dept. of Correction." Complaint, at 1 (errors in original).
Plaintiff has not specified how he believes this conduct violated his constitutional rights. Reading the complaint in a light most favorable to him, it appears to allege that defendants' conduct violated his eighth-amendment right to be free from cruel and unusual punishment. In order to state a cause of action under Section 1983 for an eight-amendment deprivation, a plaintiff must allege deliberate indifference to a serious medical need, constituting unnecessary and wanton infliction of pain proscribed by such amendment. Estelle v. Gamble, 429 U.S. 97(1976). Dismissal is appropriate, however, when no viable claim has been stated, even though the complaint contains a detailed description of the underlying facts. Estelle v. Gamble, supra, at 106-09. Having read the complaint in this case, the undersigned finds that plaintiff has provided a sufficiently detailed factual account of the events leading up to his claim, but under the requirements of Estelle v. Gamble, such facts cannot state a viable claim against these particular defendants. An allegation of misdiagnosis, even when accompanied by a speculative allegation of subjective intent, amounts only to the state-law tort of medical malpractice, not to a tort of constitutional magnitude for which Section 1983 is reserved. Conclusory allegations sounding in malpractice or negligence do not state a federal constitutional claim. Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). The undersigned, therefore, must recommend that defendants' Motion to Dismiss under Rule 12(b)(6) be granted and this action dismissed in its entirety with prejudice.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that defendants' Motion to Dismiss be ALLOWED, and that this action be DISMISSED in its entirety.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140(1985), reh'g denied, 474 U.S. 1111(1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208(1984).
This Memorandum and Recommendation is entered in response to defendants' Motion to Dismiss (#8).