917 F. 2d 1304 - Helzer v. Michigan Department of Corrections

Before RALPH B. GUY, Jr. and BOGGS, Circuit Judges; and BERTELSMAN, District 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).

Richard Lee Helzer appeals the dismissal of his civil rights complaint filed under 42 U.S.C. Sec. 1983 as frivolous pursuant to 28 U.S.C. Sec. 1915(d). Helzer alleged that prison officials denied him adequate medical treatment for a back injury. After receiving a special report from prison officials and a response from plaintiff, the magistrate recommended that the complaint be dismissed as frivolous, and plaintiff filed objections. The district court adopted the magistrate's recommendation and dismissed the complaint. Upon consideration, we conclude that the dismissal was proper.

At most, plaintiff has alleged a difference of opinion with respect to the treatment given a difficult injury. The difference of opinion was resolved within one month. Simply put, plaintiff cannot show deliberate indifference to his serious medical needs actionable under Sec. 1983. See Estelle v. Gamble, 429 U.S. 97, 106-07 (1976); Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir.1976). Therefore, plaintiff's complaint is without arguable basis. See Neitzke v. Williams, 109 S.Ct. 1827, 1831 (1989).

Accordingly, the judgment of the district court is affirmed for the reasons stated in the magistrate's report and recommendation filed January 25, 1990, and adopted by the district court on March 8, 1990. Rule 9(b)(5), Rules of the Sixth Circuit.