Opinion
CIVIL ACTION NO. 03-1274, SECTION "K" (1)
December 15, 2003
ORDER AND REASONS
Plaintiff, Charles J. Griffin, was a prisoner incarcerated within the Orleans Parish Prison system at the time he filed the above-captioned civil action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff challenged the quality of his medical care and named Sheriff Charles Foti, Jr., the Orleans Parish Prison, and Dr. Mike Higgins as defendants. Plaintiff was subsequently allowed to amend his complaint to add Nurse Shamika White as a defendant. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge.
Rec. Docs. 1 and 3; see also Rec. Doc. 25.
Rec. Docs. 13, 14, 15, 38, and 46.
Rec. Doc. 30.
On July 23, 2003, plaintiff's claim against the Orleans Parish Prison was dismissed on the basis that a prison is not a "person" subject to suit under § 1983.
Rec. Doc. 16.
On August 20, 2003, the Court held a Spears hearing to allow plaintiff a meaningful opportunity to advise the Court of the nature and factual bases of his claims. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). At that hearing, plaintiff testified that he had received inadequate medical care for hypertension and depression and that he had been forced to take the wrong medication by Nurse White. The following is a summary of plaintiff's testimony at the Spears hearing regarding the factual bases of his claims.
Regarding his hypertension, plaintiff testified that he had been on the medication Hyzaar for two years prior to entering the Orleans Parish Prison. At the prison, the jail doctors would not prescribe Hyzaar for plaintiff's hypertension; rather, the doctors prescribed plaintiff two other medications which he contends were unsuccessful in treating his condition. Plaintiff testified that he was regularly seen by prison medical staff for his hypertension. Plaintiff stated that he had not filed a grievance regarding the treatment he received for his hypertension, although he had filled out sick call forms.
Regarding his depression, plaintiff testified that he had been taking Paxil for approximately two years prior to his incarceration. Plaintiff was initially continued on Paxil at the prison, but he testified that Dr. Mike Higgins discontinued the Paxil. Plaintiff stated that he subsequently experienced severe bouts of depression, and he was then placed back on the medication by another doctor. Plaintiff testified that the next day Dr. Higgins again discontinued the medication and subsequently refused to reinstate it due to a belief that he had been mocked by plaintiff during a previous incident. Another prison doctor then put plaintiff on Lexapro, but plaintiff states that the medication is not working. Plaintiff stated that he filed grievances regarding these incidents.
Plaintiff also testified that on one occasion during his incarceration he was harmed when Nurse White gave him the wrong medication. Plaintiff testified that Nurse White gave him three pills. Plaintiff advised Nurse White that he was given the wrong medication. Nurse White stated it was in fact his correct medication and that he would be disciplined if he refused the medication. Plaintiff relented and took the medication. Within minutes of taking the medication, plaintiff had chest pains, became dizzy, and "blacked out." When he lost consciousness, he fell and injured his head. Plaintiff stated that he filed a grievance regarding this incident and pursued it through all three levels of the Orleans Parish Prison system's administrative remedy procedure. Plaintiff testified that he received the third-step response to his grievance after this lawsuit was filed.
Plaintiff filed this lawsuit in forma pauperis. An in forma pauperis complaint may be dismissed if it is determined that the action is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief 28 U.S.C. § 1915(e)(2)(B). The Court has broad discretion in determining the frivolous nature of the complaint. Cay v. Estelle, 789 F.2d 318, 325 (5th Cir. 1986), modified on other grounds, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993). In making that determination, the Court has "not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). Thus, a complaint is frivolous "if it lacks an arguable basis in law or fact." Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994); Booker, 2 F.3d at 115 n. 6.
Rec. Doc. 2.
Broadly reading plaintiff's complaint, and fully considering his testimony at the Spears hearing, the Court finds that plaintiff's allegations regarding inadequate medical care for hypertension lack any arguable basis in law and that claim should be dismissed as frivolous and for otherwise failing to state a claim on which relief may be granted.
The court must liberally construe a pro se civil rights complaint.See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994).
The Court notes that plaintiff admitted at the Spears hearing that he had filed no administrative grievances regarding the medical care for his hypertension. Accordingly, it appears that the claim is also subject to being dismissed for failure to exhaust his administrative remedies. 42 U.S.C. § 1997e(a). However, in that the claim is clearly subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court will dismiss it on that basis.
Regardless of whether an inmate is a pretrial detainee or a convicted prisoner, the standard for inadequate medical care is essentially the same. Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (there is "no constitutionally significant distinction between the rights of pretrial detainees and convicted inmates to basic human needs, including medical care"). Both the enjoy the right not to have their serious medical needs met with deliberate indifference on the part of the penal authorities. See Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir. 2001) (pretrial detainee); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (convicted prisoner).
"For an official to act with deliberate indifference, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Harris, 198 F.3d at 159 (quotation marks and citation omitted). "Deliberate indifference is an extremely high standard to meet. . . . [T]he plaintiff must show that officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quotation marks and citations omitted). "[T]he failure to alleviate a significant risk that [the official] should have perceived, but did not is insufficient to show deliberate indifference." Id. (quotation marks omitted).
However, while deliberate indifference to medical needs is actionable under § 1983, negligence and medical malpractice are not. "Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law." Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). "It is clear that negligent medical treatment is not a cognizable basis upon which to predicate a section 1983 action."Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993). "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). In summary, allegations of negligence or malpractice alone are never sufficient to state a claim for constitutionally inadequate medical care. Hall v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999).
Plaintiff does not contend that he was denied treatment for hypertension while he was incarcerated within the Orleans Parish Prison system. Indeed, he candidly testified at the Spears hearing that he was regularly seen by prison doctors for his hypertension. He also testified that the prison doctors had attempted to treat his hypertension with at least two medications, although plaintiff stated that those medications did not work well for him.
The crux of plaintiff's claim is that he disagreed with the prison medical staffs decision not to prescribe particular hypertension medication, i.e. Hyzaar, a medication he had been taking prior to his incarceration. However, a mere disagreement between an inmate and the medical staff concerning whether certain medical treatment is appropriate is not actionable under § 1983. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). The fact that prison doctors discontinued a course of treatment allegedly previously prescribed by plaintiff's private physicians is of no constitutional moment. Differences of opinion among physicians as to the appropriate method of treatment do not constitute deliberate indifference. Campbell v. Martinez, No. Civ. A. 4:03-CV-299-Y, 2003 WL 22410576, at *3 (N.D. Tex. May 14, 2003). Moreover, even if the alternative medications prescribed by prison doctors were ineffective as plaintiff contends, he still has no constitutional claim. "Unsuccessful medical treatment does not give rise to a § 1983 cause of action." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
"Medical decisions that may be characterized as classic examples of matters for medical judgment, such as whether one course of treatment is preferable to another, are beyond the [Eighth] Amendment's purview. Such matters are questions of tort, not constitutional law." Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996) (internal quotation marks, brackets, and citation omitted).
Accordingly, for all of the foregoing reasons, plaintiff's claim regarding inadequate medical care for hypertension is DISMISSED WITH PREJUDICE as frivolous and for otherwise failing to state a claim on which relief may be granted.
To the extent that plaintiff is similarly claiming that he received inadequate medical care for his depression due to the fact that he was not given his medication of choice and that the alternative medications were allegedly ineffective to treat his condition, that claim fails for the same reasons. Accordingly, that claim is likewise DISMISSED WITH PREJUDICE as frivolous and for otherwise failing to state a claim on which relief may be granted.
Therefore, only two of plaintiff's claims remain. First, plaintiff has a claim that he was intentionally and maliciously denied medical care by Dr. Higgins for reasons unrelated to his medical judgment. Second, plaintiff has a claim that Nurse White intentionally gave him the wrong medication. However, it appears that those two claims were not administratively exhausted prior to the filing this lawsuit. Plaintiff has submitted forms to this Court that indicate that the appellate review of his administrative grievance regarding Dr. Higgins was still pending at the time this lawsuit was filed. Similarly, plaintiff testified at the Spears hearing that he received the response to his third-step review of the administrative grievance regarding Nurse Higgins after the lawsuit was filed. However, the Prison Litigation Reform Act of 1995 "plainly requires that administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the action is pending."Wendell v. Asher, 162 F.3d 887, 890 (5th Cir. 1998) (emphasis in original); 42 U.S.C. § 1997e(a). "`Exhaust' is defined as `to take complete advantage of (legal remedies).'" Underwood v. Wilson, 151 F.3d 292, 294 (5th Cir. 1998) (quoting Webster's New Int'l Dictionary 796 (3rd ed. 1981)). A prisoner has not exhausted his administrative remedies unless he has pursued his grievance remedies through conclusion of a multi-step administrative remedy procedure. Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001).
The Court considers this claim as one separate and apart from the claim that plaintiff's medical treatment for his depression was merely inadequate or ineffective.
See Rec. Doc. 42 (attached grievance records).
In light of the foregoing, the Court hereby places plaintiff on notice that it is considering entering summary judgment sua sponte on his remaining claims in favor of the defendants on the ground that plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit.
"Federal District Courts are empowered to enter summary judgment sua sponte so long as the losing party has ten days notice to come forward with all of its evidence in opposition to the motion." Harken Exploration Co. v. Sphere Drake Insurance PLC. 261 F.3d 466, 477 (5th Cir. 2001) (internal quotation marks and citations omitted).
It is ORDERED that on or before January 5, 2004, defendants file with the Court and provide to plaintiff the following documents:
1. Copies of all grievance records, including responses and appeals, regarding grievances filed by plaintiff while he was incarcerated within the Orleans Parish Prison system;
2. A proper affidavit authenticating those grievance records; and
3. A copy of the applicable administrative remedy procedure.
It is FURTHER ORDERED that on or before January 26, 2004, plaintiff file a memorandum in opposition to the entry of summary judgment. If plaintiff has evidence he wishes the Court to consider regarding the issue of exhaustion or in rebuttal to the documents to be filed by defendants, such evidence must be attached to his memorandum in opposition.