Opinion
No. 2:02-CV-0313.
December 22, 2004
REPORT AND RECOMMENDATION
Plaintiff TERRY RHODES, 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 claims the defendants were deliberately indifferent to his serious medical need when, on July 14, 2002, he was transported to the hospital for an overdose of medication. He states that defendants PRICE and WESTON told the paramedics not to remove plaintiff's metal hand and leg restraints, and he suffered serious burns to his wrists and two toes on his left foot when the paramedics used a defibrillator on plaintiff during transport. Plaintiff says "Medical witnesses" have told him the burns were on him when he arrived in the emergency room and were caused by "inappropriately"-performed defibrillation. Plaintiff states the paramedics did not write it in his medical report because of the burns he had suffered. Plaintiff contends he remained cuffed while at the hospital and his burns were not treated. By plaintiff's April 25, 2003 response to the Court's Briefing Order Questionnaire informing him there is no vicarious liability and giving him an opportunity to amend his identification of defendants, plaintiff did not name anyone on the paramedic staff or at the hospital where he was treated. Instead, plaintiff responded that he wished to add claims against Dr. Timothy Revell who, he says, failed to treat plaintiff's "injure's properly" on plaintiff's return to the Clements Unit.
Plaintiff claims he suffered bad scaring and an infection which caused him to lose feeling in his wrists and toes.
Plaintiff states after he returned to the unit his burns were discovered by Nurse Prior and were treated by cleaning them for about a week.
Plaintiff requests compensatory damages of $500,000.00, punitive damages of $500,000.00, injunctive relief in the form of a transfer to another unit, and that the defendants be prosecuted for attempted murder.
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, Ali 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 the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
"[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). 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).
Plaintiff is apparently arguing defendants PRICE and WESTON knew or should have known he would go into cardiac arrest and defibrillation paddles would be used to revive him, and, consequently, that they should have ordered that he be placed in plastic restraints. Nevertheless, plaintiff alleges no fact to support deliberate indifference by either defendant, that is, that either defendant recognized the possibility he could go into cardiac arrest, that a defibrillator might need to be utilized, or the possibility of burns resulting from the metal restraints on plaintiff's wrists and legs. The definition of "deliberate indifference" under the Eighth Amendment is "subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994); Reeves v. Collins, 27 F.3d. 174 (5th Cir. 1994). In this regard the Supreme Court has cautioned:
The Court recognizes that, by his response to plaintiff's Step 1 grievance, defendant WESTON stated that the prescription did not equal an lethal dose or an overdose and that the order was "that restraints will remain on unless medical deems it necessary to remove them." Nevertheless, for purposes of the PLRA screening process, the Court must accept plaintiff's allegation concerning the substance of the order.
[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; 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.Farmer v. Brennan, 511 U.S. at 837-38, 114 S.Ct. at 1979. "The Eighth Amendment outlaws cruel and unusual `punishments,' not `conditions,' and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court's cases." Id. Plaintiff has alleged no fact showing that either defendant PRICE or defendant WESTON knew of facts indicating the metal restraints, i.e., handcuffs and leg cuffs, could constitute a substantial risk of serious harm to plaintiff or drew the necessary inference from such facts. Consequently, plaintiff has failed to state a claim of deliberate indifference against defendants PRICE and WESTON.
Plaintiff's claim against defendants EMERGENCY MEDICAL SERVICES and NORTHWEST TEXAS HOSPITAL fails because plaintiff has not pointed to any policy by either of these entities that caused his alleged constitutional violation and has not identified any individuals responsible either for establishing or approving such policies or having personal involvement in the alleged constitutional violation. Further, to the extent plaintiff attempts to sue the individual paramedics who applied the defibrillator, plaintiff has alleged no fact to indicate they had the time or the ability to remove his metal restraints or persuade guards to do so. Indeed, the fact that it was necessary to use defibillator paddles to save plaintiff's life would support the opposite conclusion. In any event and at best, plaintiff's claims against the defendant paramedics, EMERGENCY MEDICAL SERVICES, and NORTHWEST TEXAS HOSPITAL are, at most, claims of negligence, if that; 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).
As to plaintiff's claim against defendant TDCJ, actions brought pursuant to Title 42, United States Code, section 1983, are subject to the sovereign immunity bar of the Eleventh Amendment. Richardson v. Southern University, 118 F.3d 450, 453 (5th Cir. 1997). The Eleventh Amendment bars suit against a state or a state official unless the State has waived its sovereign immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). This also applies to cases in which the state is the real party in interest. Hander v. San Jacinto Junior College, 519 F.2d 273, 278 (5th Cir. 1975). The eligibility of the Texas Department of Criminal Justice for Eleventh Amendment immunity is settled law in this circuit. Harris v. Angelina County, 31 F.3d 331, 338 n. 7 (5th Cir. 1994); see, Loya v. Texas Department of Corrections, 878 F.2d 860, 861 (5th Cir. 1989). Therefore, the Texas Department of Criminal Justice is not a "person" within the meaning of section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). Plaintiff's claim against the Texas Department of Criminal Justice, TDCJ, is barred by sovereign immunity and, thus, 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 has stated he wishes to sue defendant Dr. REVELL "for failure to treat [his] injure's properly when [he] was rehoused at the Bill Clemets Unit." Again, plaintiff has not alleged any fact showing defendant REVELL even knew of plaintiff's burns or, if he did, knew that the burns needed medical treatment. Plaintiff, himself, has alleged that, after Nurse Prior discovered his burns, the only treatment he received was cleaning the burns for a week. In addition, plaintiff has not alleged this treatment was inadequate or that defendant REVELL had any reason to know it was inadequate and constituted a substantial danger of serious harm to plaintiff. For these reasons, plaintiff has failed to state a claim of deliberate indifference against defendant REVELL.
Lastly, plaintiff has utterly failed to plead that, before filing suit in federal court, he exhausted administrative remedies against defendant REVELL for the alleged failure to treat his burns, in compliance with Title 42, United States Code, 1997e(a). By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir.), cert. denied, 526 U.S. 1133, 199 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). Further, because dismissal may serve as a deterrent to future premature filings by this plaintiff and other potential litigants, plaintiff's claim against defendant REVELL should be dismissed with prejudice for purposes of proceeding in an in forma pauperis proceeding pursuant to Title 28, United States Code, section 1915(d). Id.
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 Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff TERRY RHODES be DISMISSED WITH PREJUDICE AS FRIVOLOUS, FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED, AND FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(d).The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by first class mail.
IT IS SO RECOMMENDED.