Opinion
No. 3-04-CV-0877-L.
June 1, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se prisoner civil rights action brought by Plaintiff Cullen T. Davis, a former inmate in the Dallas County Jail, against two jail nurses and Sheriff Jim Bowles. On April 26, 2004, plaintiff tendered a complaint to the district clerk and filed an application to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories were then sent to plaintiff in order to obtain additional information about the factual basis of his suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Plaintiff filed his interrogatory answers with the district clerk on May 25, 2004. The court now determines that this case is frivolous and should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).
Plaintiff is currently incarcerated in the Hutchins State Jail.
II.
Plaintiff complains that he was denied medical care for hypertension, depression, and unspecified heart problems. Specifically, plaintiff alleges that on November 20, 2003, a nurse "Vivian" gave him ibuprofen instead of his prescription blood pressure medication. As a result, plaintiff's blood pressure spiked to 180/108 and he was taken to the medical floor for observation. On December 24-25, 2003, plaintiff states that he suffered "severe headaches and depression" when the same nurse refused to give him Prozac. Finally, on November 29, 2003, plaintiff was given another inmate's EKG test results by a nurse "White." By this suit, plaintiff seeks monetary damages and other relief the court deems appropriate.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Plaintiff's medical care claims are governed by the "deliberate indifference" standard of the Eighth Amendment to the United States Constitution. U.S. CONST. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). In order to establish a constitutional violation, plaintiff must show that jail officials acted with deliberate indifference to his medical needs such as to cause the "unnecessary or wanton infliction of pain." Id., 97 S.Ct. at 292. This, in turn, requires proof that defendants were subjectively aware of a substantial risk of serious harm and failed to take reasonable measures to abate that risk. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996), citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994).
The factual allegations contained in plaintiff's pro se complaint and interrogatory answers are insufficient to state a claim for denial of medical care. Under the Prison Litigation Reform Act, "[n]o federal civil action may be brought by a prisoner confined in jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury." 28 U.S.C. § 1997e(e). The Fifth Circuit has held that a "physical injury" must be more than de minimis, but need not be significant. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Even assuming that the two jail nurses were deliberately indifferent to plaintiff's medical needs, he has failed to allege anything more than a de minimis injury resulting therefrom. Plaintiff claims that his blood pressure briefly increased to 180/108 when nurse "Vivian" failed to give him his prescription medication, that he suffered headaches and depression for two days when the same nurse withheld his Prozac, and that he was given the wrong EKG test results by nurse "White." None of these allegations, if proved, are sufficient to establish "physical injury" under the PLRA. See, e.g. Alexander v. Tippah County, Mississippi, 351 F.3d 626, 630-31 (5th Cir. 2003), cert. denied, ___ S.Ct. ___, 2004 WL 875582 (U.S. Apr. 26, 2004) (nausea and vomiting caused by raw sewage on floor of jail cell was de minimis injury); Siglar, 112 F.3d at 193 (sore ear lasting for three days was de minimis).
Even if plaintiff were able to allege a constitutional violation based on the denial of medical care, he has failed to state a claim against Sheriff Jim Bowles. Supervisory officials cannot be held vicariously liable for the actions of their subordinates under 42 U.S.C. § 1983. See Jett v. Dallas Independent School District, 491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 104 S.Ct. 248 (1983) (personal involvement is essential element in civil rights cause of action). Instead, supervisors are liable only if: (1) they affirmatively participate in the acts that cause a constitutional deprivation; or (2) implement unconstitutional policies that result in injury to the plaintiff. Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993). Plaintiff's claims against Sheriff Bowles do not meet either requirement.