Opinion
3:01-CV-1084-G.
July 20, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Dallas County Jail in Dallas Texas. Defendants are Dr. Steven Bowers, Nurse Peggy Pena, and Dr. Kathryn Flangin. The court has not issued process in this case. However on June 29, 2001, the magistrate judge conducted a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), overruled on other grounds, Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Prior to the hearing the custodian of medical records maintained at the Dallas County Jail submitted the jail's medical records compiled during Plaintiff's confinement. Plaintiff does not dispute the accuracy of his medical records. Statement of Case: The complaint alleges Defendants failed to provide adequate medical care to control Plaintiff's high blood pressure. Specifically the complaint asserts Dr. Bowers initially prescribed high blood pressure medication without first examining Plaintiff, and subsequently declined to change the medication when Plaintiff complained of adverse side effects. As to Nurse Pena, the complaint asserts she refused to give Plaintiff his blood pressure medication on April 7, 2001, and thought it was humorous when Plaintiff begged for it. The complaint further alleges that Dr. Flangin refused to examine Plaintiff and change his blood pressure medication for almost three months, although he repeatedly complained of adverse side effects and the ineffectiveness of the medication. (Complaint ¶ V). Plaintiff requests monetary damages and "immediate and proper medical care during his incarceration." (Id.).
Plaintiff has been convicted of a state jail felony offense, which is currently on direct appeal. It is unclear whether he was a pretrial detainee during any of the events at issue in this case.
The material facts on which Plaintiff's claims are predicated are as follows:
On August 13, 2000, Plaintiff was prescribed Felodipine 5 mg. for high blood pressure. (See Jail Medical Records — Nurse's Notes, Physician's Orders and Medication Chart for August 13, 2000). In March 2001, Plaintiff began complaining that Felodipine was making him sick and not keeping his blood pressure under control. (Id., Nurse's Notes for March 19, 2001). Beginning on April 6, 2001, until early June 2001, Plaintiff repeatedly requested to see a doctor regarding his blood pressure medication to no avail. (See Complaint, attached "Inmate Request Forms").
On April 7, 2001, Plaintiff submitted an inmate grievance complaint form alleging that Nurse Pena had refused to give him his blood pressure medication, although he came to the door with water ready to take his medication. (See Jail Medical Records — Grievance #011542). The following day, Plaintiff personally accused the nurse of withholding his blood pressure medication. (See Jail Medical Records — Nurse's Notes for April 8, 2000).
In May, Plaintiff began refusing to take Felodipine until he could see a doctor. He stated that Lopressor 10 mg. or 25 mg, had worked for him in the past and, thus, he requested that Dr. Flangin prescribe it for him. (See Jail Medical Records — Nurse's Notes for May 9 until June 6, 2001). The medication chart reflects that on May 21, 2001, Plaintiff was prescribed Lopressor 25 mg. The doctor ordered, however, that Felodipine be discontinued only when the Jail received Lopressor. (Jail Medical Records — Medication Chart and Physician's Orders for May 21, 2001). Plaintiff continued to refuse Felodipine until June 3, 2001, four days before he filed the complaint in this case. (See Jail Medical Records — Nurse's Notes for May 9 until June 6, 2001, and Refusal for Medical Assistance forms). It is unclear when Plaintiff began taking Lopressor 25 mg. On Monday July 2, 2001, two days following theSpears hearing, Dr. Flangin examined Plaintiff and increased Lopressor to 50 mg. (See Letter from Dolena T. Westergard, Assistant District Attorney, dated on July 6, 2001).
The last entry on the jail's medical records is for June 6, 2001.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
To state a colorable claim for the denial of medical care under the Eighth Amendment, convicted inmates must allege acts or omissions "sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind. Id. at 105-06, 97 S.Ct. at 291-92; Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). It requires more than mere negligence in failing to supply medical treatment. Gibbs v. Grimmette, ___ F.3d ___, 2001 WL 672741, *2 (5th Cir. June 15, 2001). Deliberate indifference occurs only when a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837-840, 114 S.Ct. 1970, 1979-80, 128 L.Ed.2d 811 (1994). Disagreement with medical treatment alone cannot support a claim under § 1983. Norton, 122 F.3d at 292.
In the event that Plaintiff was a pretrial detainee on the dates of some of the occurrences at issue in this case, the same standard would apply to his claims. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) (under the Due Process Clause of the Fourteenth Amendment, the same standard applies to pretrial detainees who complain of episodic acts or omissions resulting in the denial of medical care); see also Gibbs v. Grimmette, ___ F.3d ___, 2001 WL 672741, *2 (5th Cir. June 15, 2001); Scott v. Moore, 114 F.3d 51, 53-55 (5th Cir. 1997); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996).
Plaintiff sues Dr. Bowers for prescribing blood pressure medication without first examining him. Accepting this allegation as true, it amounts at most to negligence. Plaintiff offers no facts showing deliberate indifference on the part of Dr. Bowers. Moreover, the jail medical records reflect that Plaintiff's blood pressure was being checked on a regular basis and that it exceeded 140/90. It is well settled that relief is unavailable under § 1983 for claims grounded only in negligence.See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
Plaintiff's claim against Nurse Pena for refusing to give him his blood pressure medication on or about April 7, 2001, fares no better. An occasional missed dose of medication does not implicate the Constitution. "[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute `an unnecessary and wanton infliction of unnecessary pain' or to be `repugnant to the conscience of mankind.'" Estelle, 429 U.S. at 106, 97 S.Ct. at 292. In order to rise to the level of a constitutional violation, a defendant's actions must reflect a degree of wantonness tantamount to knowing willingness that the plaintiff will be harmed by the defendant's conduct.
Here, Plaintiff's allegation that Pena refused to give him his blood pressure medication on one occasion does not approach the threshold of deliberate indifference under the Eighth Amendment. While it is likely that occasional mistakes happened, the record reflects that Plaintiff received comprehensive, ongoing medical care during the past eleven months. He was seen by health care staff on a frequent basis and received medication and counseling. Moreover the jail medical records reflect, and Plaintiff conceded at the Spears hearing, that he refused to take his blood pressure medication on numerous occasions. Therefore, Pena's failure to provide Plaintiff with this blood pressure medication on one occasion amounted, at worst, to negligence. As noted above, negligence, gross negligence, or even recklessness as used in the civil tort sense, are insufficient to support an Eighth Amendment claim. See Daniels, 474 U.S. at 327, 106 S.Ct. at 662; Stewart, 174 F.3d at 534.
Plaintiff's letter dated July 10, 2001, indicates that on June 29, 2001, a nurse "forgot" to give Plaintiff his blood pressure medication. This incident would also fall in the realm of negligence.
Plaintiff's claims against Dr. Flangin for refusing to examine him and change his blood pressure medication likewise lack any merit. On July 2, 2001, Dr. Flangin examined Plaintiff and increased his blood pressure medication. Therefore, his claim against Dr. Flangin is now moot. Insofar as Plaintiff alleges that the new dosage of Lopressor does not keep his blood pressure stable and that Dr. Flangin delayed in examining him, his claims lack an arguable basis in law. A disagreement of opinion as to the effectiveness of a medication and/or the correct dosage does not constitute an actionable civil rights claim, but is at best, a claim of medical malpractice appropriately addressed under state law. See e.g. Estelle, 429 U.S. at 107-108, 97 S.Ct. at 293; Norton, 122 F.3d at 292;Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991);Fielder v. Bosshard 590 F.2d 105, 107 (5th Cir. 1979).
Moreover, delay in providing medical care does not give rise to an eighth amendment violation unless the defendants' deliberate indifference results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Although Plaintiff's blood pressure medication most likely needed to be adjusted, it is self evident that the delay in changing Felodipine for Lopressor and subsequently increasing the dosage of Lopressor was not life threatening. Under these circumstances, Plaintiff's claims against Dr. Flangin do not amount to a constitutional violation.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint by way of a Spears hearing. Because he has failed to allege any cognizable claim for relief against the named Defendants under § 1983, the complaint should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.