Unpublished Dispositionkelly R. Witt, Plaintiff-appellant, v. Head Nurse Watts and Dewey Sowders, Warden, Defendants-appellees, 802 F.2d 461 (6th Cir. 1986)

ORDER

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action under 42 U.S.C. § 1983, plaintiff alleges that the defendants violated his eighth amendment right to be free from cruel and unusual punishment. Plaintiff claims this occurred in the course of his being treated for an ankle injury sustained 'in a prison football game. The district court granted summary judgment for defendants and this appeal followed. On appeal the parties have briefed the issues, plaintiff proceeding pro se.

Upon consideration, we affirm. In the context of the instant case, an eighth amendment violation is demonstrated when deliberate indifference to a prisoner's medical needs is exhibited. Estelle v. Gamble, 429 U.S. 97 (1976). This does not mean, however, that every instance of medical malpractice automatically becomes a constitutional violation because the victim is a prisoner. Byrd v. Wilson, 701 F.2d 592 (6th Cir. 1983); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976). Plaintiff herein has alleged, at best, a claim of medical malpractice. The evidence reveals that he was given prompt medical treatment from the inception of his injury to the time of filing the complaint. We are unable to find any deliberate indifference to his serious medical needs in the record before us. We affirm for these reasons and for the reasons advanced by the district court.

It appears therefore that the question on which decision of the cause depends is so unsubstantial as not to need further argument, Rule 9(d) (3), Rules of the Sixth Circuit,

It is ORDERED that the final order of the district court be and it is hereby affirmed.