Opinion
2:01-CV-0417
November 20, 2003
REPORT AND RECOMMENDATION
Plaintiff HUBERT JACKSON, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 and has been granted permission to proceed in forma pauperis. Plaintiff names as defendants the following: CITY OF AMARILLO; COUNTY OF POTTER; POTTER COUNTY DETENTION CENTER; SHERIFFS' DEPT. OFFICERS WALTON, JACKSON, SHACKLEFORD, HEDGER, and PEREZ; JANE DOE, a medical staff member who wore no name tag; SERGEANT AGNEW; and JOHN DOE, Medical Administrator of Potter County Detention Center.
Plaintiff complains that the defendants failed to provide him adequate medical care during his two-month stay in the Potter County Detention Center beginning in October 1999.
Plaintiff alleges that, sometime during the month of October, he submitted a sick-call request to see a doctor because of a fever and sore throat. A few days later, finding his first request had produced no result, plaintiff submitted a second sick-call request because chewing and sleeping were becoming difficult. On November 28, 1999, about nine days before his transport from Potter County Detention Center, plaintiff developed a discharge from his ear and asked defendant Deputy WALTON to tell medical personnel, which he did. Plaintiff was seen by defendant JANE DOE, a medical staff member who wore no name tag, who told him he needed an ear wash.
By his December 23, 2002, response to question no. 6 of the Court's Questionnaire, plaintiff stated he was transferred out of the Potter County Detention Center on December 7, 1999.
Feeling this was not adequate, plaintiff submitted another sick-call request and asked Deputy WALTON for more medical care, but WALTON said there was nothing he could do. On December 3rd, plaintiff complained to defendant Deputy JACKSON and submitted a grievance. JACKSON contacted the infirmary and was told medical had already checked plaintiff's ear. Plaintiff later complained to defendants SHACKLEFORD, HEDGER, and JACKSON each of whom told plaintiff there was nothing they could do. On December 4th, defendant Deputy PEREZ responded to plaintiff's grievance by personally informing plaintiff he had spoken with defendant Sgt. AGNEW and was informed that the bulbs were out on the otoscope and it would be December 15th before it could be fixed and plaintiff's ear examined. Plaintiff also asked a defendant Deputy HEDGER, who said there was nothing he could do.
On December 8, 1999, plaintiff was received at the Middleton Unit and, on January 18, 2000, was prescribed amoxicillin. Within a month, he was transported to the Limestone County Detention Center, where he continued to have a problem and, on February 12, 2000, plaintiff saw a doctor, who opined that the infection may not have cleared up and prescribed an additional course of antibiotic.
See plaintiff's February 22, 2002, response to question no. 4 of the Court's Questionnaire.
See plaintiff's February 22, 2002, response to question no. 6 of the Court's Questionnaire.
Plaintiff claims the CITY OF AMARILLO was negligent in the training, supervision, and discipline of the Potter County Detention Center officers and had a hands-off policy concerning officers' illegal acts. Plaintiff further claims the POTTER COUNTY DETENTION CENTER "violated certain Right guaranteed under the United States Constitution by wrongfully, maliciously, without just cause, negligently to give medical services.
Plaintiff claims he suffered resulting impairments of sight and hearing, accompanied by scarring of his eardrum, as well as psychological damage.
Plaintiff requests compensatory and punitive damages, as well as injunctive relief in the form of an order requiring jail officials to place sick-call boxes on each hall, create a "system of follow-up", and allow prisoners to stay under their blankets.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Alt v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff's request for injunctive relief was moot before he ever filed the instant suit. Plaintiff was transferred into state custody was no longer at the Potter County Detention Center at the time of filing. Consequently, plaintiff's request for injunctive relief is MOOT. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
Plaintiff informs the Court that, at the time of the events underlying his claims, he was being detained on a probation revocation relating to an earlier conviction for aggravated assault with a deadly weapon. Consequently, plaintiff was a convicted detainee at that time and must look to the Eighth Amendment prohibition against cruel and unusual punishment for protection against cruel and unusual punishment with respect to the conditions of his confinement.
See plaintiff's February 22, 2002, response to question no. 1 of the Court's Questionnaire.
See plaintiff's December 23, 2002, response to question no. 1 of the Court's Questionnaire.
Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are "serious." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). Nothing about plaintiff's initial complaint of fever and a sore throat would indicate a medical emergency or even a serious medical need and it is commonly recognized that doctors can do little about a cold virus.
When plaintiff developed a discharge, he asked defendants WALTON, JACKSON, SHACKLEFORD, and HEDGER for medical care and now sues them because he feels he did not receive adequate medical care. "[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).
Plaintiff does not allege any of these defendant guards denied him medical care, delayed his access to medical personnel or the medical department, or interfered with any prescribed treatment. Instead, they repeatedly contacted the infirmary and relayed plaintiff's complaints, as well as the replies of medical personnel to those complaints. The conduct of these defendants does not constitute deliberate indifference to any serious medical need; and plaintiff has failed to state a claim against any or all of defendants WALTON, JACKSON, SHACKLEFORD, and HEDGER.
Further, plaintiff's claim against defendant PEREZ is premised on PEREZ' response to his grievance. It appears plaintiff feels PEREZ did not adequately investigate or satisfactorily resolve his grievance. Nevertheless, the narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claim against defendant PEREZ lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff sues the POTTER COUNTY DETENTION CENTER; however, the Potter County Detention Center, named as defendant POTTER COUNTY DETENTION CENTER, is not a legal entity capable of being sued. Guidry v. Jefferson County Detention Center, 868 F. Supp. 189, 191 (E.D. Tex. 1994); Wright v. El Paso County Jail, 642 F.2d 134, 136 N.3 (5th Cir. 1981). Because of plaintiff's pro se status, the remedy is permissive amendment of the complaint to name the correct defendant, and plaintiff has been allowed to add POTTER COUNTY as a defendant.
Plaintiff sues the CITY OF AMARILLO alleging it was negligent in the training, supervision, and discipline of the Potter County Detention Center (PCDC) officers and had a hands-off policy concerning officers' illegal acts. Not only has plaintiff failed to allege any facts to indicate that the CITY OF AMARILLO was involved in the training, supervision, or discipline of Potter County officers or had any policy at all with respect to acts or omissions by Potter County personnel, plaintiff has advanced no theory upon which the CITY OF AMARILLO, a municipality, would be liable for acts or omissions by Potter County officers. The plaintiff must allege some plausible connection between the claim and the defendant(s) named, hi this instance, there is none. Plaintiff's own pleadings demonstrate he was in the custody of Potter County and had no interaction with any CITY OF AMARILLO personnel during his incarceration at the Potter County Detention Center. Consequently, plaintiff has failed to state a claim against the CITY OF AMARILLO on which relief can be granted.
CONCLUSION
For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Claims filed pursuant to Title 42, United States Code, Section 1983, by plaintiff HUBERT JACKSON against defendants WALTON, JACKSON, SHACKLEFORD, HEDGER, PEREZ, POTTER COUNTY DETENTION CENTER, and the CITY OF AMARILLO be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.