Unpublished Dispositionharry Whitney, Plaintiff-appellant, v. William Abshire, Jamrog, Deputy, Dale Foltz, Jay Harness,dean P. Rieger, Elton Scott, James Stegall, R.w.thrams, Defendants-appellees, 924 F.2d 1060 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1060 (6th Cir. 1991)

Feb. 5, 1991

Before KEITH and KRUPANSKY, Circuit Judges, and ENGEL, Senior Circuit Judge.


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 unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Harry Whitney appeals the directed verdict for the defendant prison doctors in this civil rights action filed under 42 U.S.C. § 1983. Plaintiff alleged that defendants were deliberately indifferent to his serious medical needs. The district court granted defendants' motion for a directed verdict at the close of proof following two days of trial before a jury.

Upon consideration, we conclude that the directed verdict was proper. Plaintiff presented no proof of a material fact or issue upon which reasonable persons could differ. See Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1015 (6th Cir. 1987). At most, plaintiff showed a mere difference of opinion with respect to the diagnosis and treatment of his medical condition which does not present a claim cognizable under 42 U.S.C. § 1983. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). After judgment for defendants was granted, plaintiff agreed that the judgment was proper but, as he does before this court, contended that the outcome of the trial was his attorney's fault. However, this contention is not a ground for relief from the verdict.

Accordingly, the judgment of the district court is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.