Opinion
2:00-CV-0352.
June 9, 2003.
REPORT AND RECOMMENDATION
Plaintiff JARVIS M. KIMBLE, SR., 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 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis
Plaintiff complains that, before his transfer to the Neal Unit, he was diagnosed with sleep apnea by a physician at the Lynaugh Unit and was approved by UTILIZATION MANAGEMENT for treatment with a CPAP machine. Plaintiff was then transferred and arrived at the Neal Unit on April 24,2000. Once there, he asked if the CPAP machine would be coming and a Dr. Lee opined that he needed a "proper sleep study test" to see if the machine might harm rather than help him. Plaintiff complains that, despite being given an extra pillow, he snores so loud he almost had an altercation with his cellmate on July 27, 2000.
Plaintiff informs the Court a CPAP machine provides nsals Continuous Positive Airway Pressure as treatment for obstructive sleep apnea and is usually the first treatment utilized because of its rapidity and ease of application.
Plaintiff claims Dr. Lee's request for a sleep study test was denied by defendant UTILIZATION MANAGEMENT ON June 5, 2000. On June 6, 2000, plaintiff complained to the Patient Liaison Program that he was not getting proper medication attention and, on June 16, 2000, he was called to the Neal Unit infirmary to go to the Clements Unit for a sleep test and a determination whether surgery would help him. Plaintiff complains the sleep test was improperly administered, consisting of nothing more than a check of his vital signs when he was awakened every two hours, and that defendant Dr. REVELL wasn't on unit at the time, but, instead, had gone to the Dalhart Unit. When Dr. REVELL returned on June 19th, he informed plaintiff he didn't have sleep apnea, although he had all the symptoms of it, and that the medical staff said he had snored once in three days. He also told plaintiff that if he didn't lose weight, he could get sleep apnea.
Plaintiff's grievances and letters of complaint, some of which were directed to defendant Dr. GONZALEZ, Assistant Medical Director of Texas Tech Correctional Health Care, failed to produce any satisfactory resolution. On August 18, 2000, plaintiff saw a Dr. Greenhau at the Neal Unit Infirmary and was told there was no way two different doctors could have made two conflicting diagnoses and that she would request approval for a sleep study; however, the approval was denied by the UTILIZATION MANAGEMENT. Further on or about October 2,2000, plaintiff saw a Dr. Porter at the Neal Unit Infirmary who requested the CPAP machine again for plaintiff.
By his February 20, 2001, response to question no. 2 of the Court's Questionnaire, plaintiff informs the Court he received a CPAP machine for treatment on November 1, 2000. He says that since then he has twice told the nurse that he can't adapt to the machine because it makes him feel like he's smothering. Plaintiff says the nurse responded if he didn't use the machine, it would be taken away.
Plaintiff requests monetary damages in an unspecified amount.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or from an officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, All 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 1 14, 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 to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under Title 42, United States Codes section 1983. Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 291-93, 50 L.Ed.2d 251 (1976). Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). However, not every claim of inadequate or improper medical treatment is a violation of the Constitution, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); nor does a disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320,321 (5th Cir. 1991). "[N]egligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Further, medical records showing sick calls, examinations, diagnoses, and medications may rebut an inmate's allegations of deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
Plaintiff's complaint was initially based on the failure to provide him with a CPAP machine; however, by his February 20, 2001, response to question no. 2 of the Court's Questionnaire, plaintiff informs the Court he received a CPAP machine for treatment on November 1, 2000. Now, plaintiff's complaint appears to be dissatisfaction with the treatment received, rather than a complaint of any failure to treat.
Plaintiff is dissatisfied with the delay in receiving the CPAP machine; the way in which the sleep test was administered at the Clements Unit in Dr. REVELL's absence; the conclusions Dr. REVELL drew the from the test; the repeated failure by UTILIZATION MANAGEMENT to approve another sleep test administered in the manner plaintiff feels most effective; and the results of treatment with the CPAP machine. Plaintiff's dissatisfaction with the methods of testing and treatment does not elevate his claims to a constitutional level. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991).
By the facts presented, plaintiff presents no allegation of deliberate indifference, but, at best, an allegation of medical malpractice or negligence. However, section 1983 is not a general tort statute, and mere negligence does not meet the standard for liability under section 1983. Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986). Thus, by his claims against defendants REVELL and UTILIZATION MANAGEMENT, plaintiff has failed to state a claim on which relief can be granted.
Further, plaintiff has utterly failed to allege that he has suffered any physical injury which may support his request for monetary damages for mental anguish and stress. The Prison Litigation Reform Act requires a physical injury before a prisoner can recover for psychological damages. 42 U.S.C. § 1997e(e) ("No federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury."). The "physical injury" required by section 1997e(e) "must be more than de minimus [sic], but need not be significant." Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). By his failure to allege any physical injury to support his request for monetary relief, plaintiff has failed to state a claim on which relief can be granted.
Plaintiff's claims against defendant SMITH and GONZALES are that these persons failed to adequately investigate and resolve his letters of complaint. 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 or other complaints 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 claims against defendants SMITH and GONZALES lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
For the reasons set forth above and pursuant to Title 28, United States Code, section 1915(e)(2) and 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 Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff JARVIS M. KIMBLE, SR., 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.