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finding that plaintiff had not presented facts showing imminent danger of serious physical injury resulting from denial of treatment for his Hepatitis C
Summary of this case from Jackson v. United StatesOpinion
2:04-CV-0132.
June 2, 2004.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff CECIL RAY PATTERSON, acting pro se, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendants and requesting permission to proceed in forma pauperis.
Under the "three strikes" provision of the Prison Litigation Reform Act (PLRA), a prisoner who has had three prior actions or appeals, brought during detention, dismissed as frivolous, malicious, or for failure to state a claim, is barred from further proceeding in forma pauperis in such actions, unless the case fits into the narrow exception enumerated in Title 18, United States Code, section 1915(g). A prisoner who has sustained three dismissals qualifying under the "three strikes" provision may still pursue any claim, "but he or she must do so without the aid of the i.f.p. procedures." Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
The Court notes that plaintiff CECIL RAY PATTERSON has previously been informed he has accumulated at least three dismissals which fulfill the "three strikes" provision of the PLRA.
Cause no. 2:97-CV-0236 was dismissed as frivolous and for failure to state a claim on which relief could be granted. Although reversed in part on appeal, the Court of Appeals affirmed this Court's dismissal of plaintiff's claims against defendants GUERRERO, ROBERTS, and TDCJ-ID as frivolous and for failure to state a claim on which relief can be granted. Consequently, this case counts as a "strike" against plaintiff.
Cause no. 2:99-CV-0125 was dismissed on May 19, 1999, as frivolous and for failure to state a claim on which relief can be granted. Plaintiff's appeal was dismissed on January 11, 2000, as frivolous; and the Fifth Circuit informed plaintiff in the memorandum opinion of dismissal that he had accumulated three strikes and could no longer proceed in forma pauperis in any civil action or appeal filed while he is incarcerated unless it met the parameters set forth in Title 28, United States Code, section 1915(g).
Plaintiff argues the instant suit falls within the scope of the section 1915(g) exception; however, the claims presently asserted are substantially similar to those in cause no. 2:99-CV-0167, dismissed by this Court on March 14, 2000 after a determination that it did not fall under subsection (g).
Plaintiff alleged: (1) he had been denied care and treatment in the form of Interferon/Ribavirin therapy for Hepatitis A, B, and C; (2) he had been denied work restrictions or accommodations based on his Hepatitis, TB, and respiratory distress; (3) defendant WILLIAMS in the boot factory refused plaintiff's job change requests; (4) defendant JOHNSON enforced rules, including punishment, for plaintiff's inability to work; (5) plaintiff was not awarded good time for work as many other inmates are; and (6) plaintiff was subjected to sleep deprivation "as a control tool and detriment to health."
By his original complaint herein, plaintiff complains of the medical care he has received at the Clements Unit for his Hepatitis C. Plaintiff requests injunctive relief requiring prison officials to provide him the medical care he feels is necessary, as well as compensatory and punitive damages. By his June 19, 2004, motion to amend, plaintiff amends to request further relief in the form of a declaration by the Court that Hepatitis C is a "disability" under the Americans with Disabilities Act and that plaintiff is entitled to being protected from working or living in a "chemical-laden environment." Specifically, plaintiff requests to be relieved from his work assignment in the shoe factory, additional nutrition, a healthier environment, and monetary damages in an unspecified amount. By his June 6, 2003, motion to amend, plaintiff seeks to add the following defendants: WILLIAMS GONZALES, Director of Texas Tech Health Services; AL MARKS, Clinical Administrator; SUZANNE PAUL, Physicians Extender; and JACK SHAFER, R.N. Plaintiff complains of severe stomach pain and faults defendants for doing nothing to treat it but give him Ibuprofen, speculating that they may simply be waiting for him to develop bleeding or become unconscious. The proposed amendments are attached to and incorporated in plaintiff's motions and are considered as if they had been incorporated in plaintiff's original complaint.
Plaintiff's contention that defendants rely primarily on a series of liver function tests to determine the dormancy or aggressiveness of the disease, the extent of liver damage present, and whether Interferon/Ribavirin treatment is appropriate is merely a complaint that they are treating him in compliance with generally-accepted medical standards. The fact that there may some experts who feel the standard of care should be revised does not support a claim of deliberate indifference by the defendants or indicate that plaintiff is in imminent danger of serious physical injury. Further, plaintiff points out that soon after filing this suit, his ALT levels as shown by his liver function tests, decreased and normalized. Plaintiff alleges no fact showing his Hepatitis is severe enough to mandate Interferon/Ribavirin therapy or liver biopsy. Concerning his complaint that his symptomatic pain is not adequately treated, the Court turns to the Clinic Notes attached to plaintiff's August 11, 2003, motion to file exhibits. These Clinic Notes cover the period April 16, 2003 through May 28, 2003. The April 16, 2003, entry by St. Paul, RN, MSN, CDE, FNP-C, shows plaintiff was noted as "unwilling to not go without medication for OA pain" and was, therefore, prescribed an "NSAD". He was prescribed Indocin for thirty days K.O.P. On May 14, 2003, plaintiff complained of stomach pain and was seen by St.Paul, RN, MSN, CDE, FNP-C, who noted plaintiff's complaints of vomiting, diarrhea, and intermittent and constant abdominal pain; however, her physical examination produced no clinical signs. She diagnosed "subjective abdominal pain v. drug-seeking behavior," noting also plaintiff's chronic Hepatitis C and osteoarthritis. She discontinued plaintiff's Indocin and prescribed Ibuprofen, noting the need for a follow-up in two weeks.
K.O.P. is the acronym for "Keep On Person," a practice in the prison of allowing an inmate to keep a medication in his personal possession.
The facts presented by plaintiff do not support any contention that he is in imminent danger of serious physical injury resulting from the failure to provide him with the tests and treatment he wants for his stomach pain and Hepatitis C or that his needs have been met with deliberate indifference. Instead, they demonstrate his complaints have been noted, he has been examined, and steps have been taken to address his symptoms and monitor the need for further treatment of the underlying cause. Plaintiff clearly disagrees with the treatment he has received and feels more tests should be conducted; however, a disagreement with a doctor over the method and result of medical treatment does not 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). 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). The facts presented by plaintiff in his pleadings and the medical records he has submitted fail to state a claim on which relief can be granted.
Plaintiff has alleged no fact to support his hypothesis that working in the boot factory is harmful to him because of his HCV status or shown that defendants have drawn such an inference and ignored it. His request for a special diet containing more nutrition suffers from the same defect.
Lastly, to state a claim under the Americans with Disabilities Act ("ADA), plaintiff must allege: (1) he is disabled within the meaning of the Act; (2) he is being excluded from participation in, or being denied benefits of services, programs, or activities by the defendants, or has otherwise been discriminated against by the defendants; and (3) the exclusion, denial, or discrimination was because of his disability. Lightbourn v. County of El Paso, 118 F.3d 421, 428 (5th Cir. 1997). Plaintiff has failed to allege he suffered any exclusion, denial, or discrimination because of his alleged disability or show how this has placed him in imminent danger of serious physical injury.
While plaintiff disagrees with his doctors over the method and result of his present medical treatment and the restrictions which are medically appropriate, this does not state a claim of deliberate indifference, Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), or show plaintiff is in imminent danger of serious physical injury, 42 U.S.C. § 1915(g).
The grounds presented in the instant suit do not fall within the statutory exception.
Because plaintiff has already sustained the "three strikes" and can no longer avail himself of the provisions for proceeding in forma pauperis, plaintiff's motion to proceed in forma pauperis is DENIED and the instant cause is DISMISSED WITHOUT PREJUDICE TO REFILING WITH PREPAYMENT OF THE FILING FEE.
PLAINTIFF IS WARNED THAT THE SUBMISSION OF DOCUMENTS HE KNOWS TO BE FRIVOLOUS OR REPETITIVE MAY CONSTITUTE A VIOLATION OF RULE 11, FEDERAL RULES OF CIVIL PROCEDURE, AND GIVE RISE TO SANCTIONS. PLAINTIFF IS COUNSELED AGAINST THE SUBMISSION OF REPETITIVE CLAIMS IN THE FUTURE.
IT IS SO ORDERED.