Opinion
CIVIL ACTION NO. 1:00-CV-236-C
August 28, 2003
ORDER
Plaintiff, Antonio B. Rodriguez, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging employees of the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") Wallace Unit forced him to work under unsafe conditions, railed to provide adequate medical treatment for his serious medical conditions, denied him meals and clean clothes, retaliated against him, and conspired to deprive him of his civil rights. Rodriguez seeks injunctive relief, declaratory relief, and monetary damages.
BACKGROUND
On October 12, 2000, Rodriguez filed a civil rights complaint and by Order dated October 18, 2000, this Court granted him permission to proceed in forma pauperis. On October 19, 2000, Rodriguez's complaint was referred to the United States Magistrate Judge for screening pursuant to 28 U.S.C. § 1915 and 1915A.
The United States Magistrate Judge immediately ordered Rodriguez to file an amended complaint to set out a short, plain statement of his claims. Rodriguez filed an Amended Complaint on November 13, 2000, and named the following defendants: TDCJ-ID; Gary Johnson, Director of TDCJ-ID; Rodney Cooper, Warden of the TDCJ-ID Wallace Unit; Neal Webb, Assistant Warden of the Wallace Unit; Ronald Pickens, Lieutenant at the Wallace Unit; William Foree, Sergeant at the Wallace Unit; Marley Cribbs, Sergeant at the Wallace Unit; Dr. Richard Hulls; Clifton George Howard, Correctional Officer III at the Wallace Unit; and Donald Harmon, Sergeant at the Wallace Unit. The United States Magistrate Judge conducted an evidentiary hearing and judicial screening by televideo conferencing on March 6, 2001. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (authorizing an evidentiary hearing for a prisoner plaintiff proceeding pro se to expound upon his written complaint). Rodriguez did not consent to have the Magistrate Judge hear his complaint; therefore, the case was transferred back to the docket of this Court by Order dated March 21, 2001.
Rodriguez spelled Defendant Hannon's surname "Hannah," but the Assistant Attorney General advised the Court in a motion to seal records that the name was correctly spelled "Hannon."
By Order dated March 12, 2002, Defendants TDCJ-ID, Johnson, Cooper, Webb, Pickens, Foree, Cribbs, Hulls, Hannon, and Howard were ordered to file an answer or responsive pleading within thirty (30) days from the date the Order was received by the Texas Attorney General's office. Defendants TDCJ-ID, Johnson, Cooper, Webb, Pickens, Foree, and Hulls timely filed a combined answer, partial motion to dismiss, and motion for a more definite statement under Federal Rule of Civil Procedure 7(a) on April 24, 2002. On that same day, the Assistant Attorney General representing the TDCJ-JD defendants advised this Court that Defendants Hannon and Cribbs were no longer employed by the TDCJ-ID and he filed a copy of their last known addresses under seal. Defendant Howard did not file a responsive pleading.
By Orders dated September 4, 2002, the United States Marshal was ordered to serve Defendants Hannon and Cribbs at their last known addresses, and Defendant Howard was ordered to show cause why he had failed to timely file an answer or responsive pleading pursuant to the Court's Order dated March 12, 2002. In addition, this Court dismissed Rodriguez's claims against the TDCJ-ID, his claims against Defendants Johnson, Cooper, Webb, Pickens, Force, and Hults, in their official capacities as employees of the TDCJ-ID, and his claims under the Texas Tort Claims Act; and the Court denied the Defendants' motion for a more definite statement.
Defendant Howard subsequently filed a response to the Court's show cause order and an answer and partial motion to dismiss on September 23, 2002. By Order dated June 11, 2003, Rodriguez's official-capacity claims and state-tort claims against Defendant Howard were dismissed.
Defendant Hannon was dismissed without prejudice for want of service by Order dated June 11, 2003, and Defendant Cribbs filed an answer and partial motion to dismiss on June 16, 2003.
A scheduling order was entered and Rodriguez's complaint was set for trial on September 2, 2003.
On August 20, 2003, Defendants Johnson, Cooper, Webb, Pickens, Foree, Cribbs, Hults, and Howard filed an Amended Motion for Summary Judgment with Amended Brief and Appendix in support thereof. The Appendix ("App.") contained authenticated copies of Rodriguez's prison medical, grievance, and disciplinary records; sworn affidavits from Defendants Johnson, Cooper, and Webb; and portions of an oral deposition from Jesus Vallejo. Rodriguez has not filed a response.
Defendants timely filed a Motion for Summary Judgment with Brief and Appendix on August 15, 2003, but were allowed to file an Amended Motion for Summary Judgment with an Amended Brief and Appendix on August 20, 2003, because they had failed to number the appendix in accordance with the United States District Court Local Rules for the Northern District of Texas, All references hereinafter to the Motion for Summary Judgment shall be to the Defendants' Amended Motion, Brief, and Appendix filed on August 20, 2003.
PLAINTIFF'S COMPLAINT
This Court has reviewed the videotape of the Spears hearing conducted by the Magistrate Judge on March 6, 2001. Thus, "Plaintiffs Complaint" includes the allegations raised in Rodriguez's Amended Complaint and the statements that he made under oath at the Spears hearing. See Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (holding that a plaintiffs testimony at a Spears hearing becomes part of his pleadings).
Rodriguez alleges that on September 23, 1999, while incarcerated in the TDCJ-ID, he was assigned to a community work detail painting walls at the San Angelo State School of the Texas Mental Health and Mental Retardation Department in Carlsbad, Texas, Rodriguez and two other inmates were ordered to stand in a basket that was lifted by a forklift so that they could paint the walls of the second story of a building at the school. As they were painting, the fork lift turned over and the inmates fell to the ground. He complains that TDCJ-ID failed to provide proper safety equipment for the inmates, comply with the requirements of the Occupational Safely and Health Act, provide proper training for the inmates to work under such conditions, and provide adequate medical care after the inmates were injured As a result of the fall, Rodriguez contends that he suffered a broken shoulder, knee, and back.
He argues that Defendant Johnson violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to insure that "his staff did not compel [Rodriguez] to work under conditions that posed a substantial risk and danger to [his] health and safety" and insure that Rodriguez received proper medical care after he was injured.
Rodriguez complains that Defendant Cooper, Warden of the Wallace Unit, failed to provide an adequate number of properly trained workers to supervise and train the inmates before forcing them to work under such dangerous conditions; he failed to insure that Rodriguez received timely and proper medical care after he was injured; and he acted in concert with other TDCJ-ID employees by knowingly and intentionally allowing certain employees to retaliate against Rodriguez by denying him food, clothing, and showers. He also complains that Defendant Webb, the Assistant Warden at the Wallace Unit, failed to insure that the work conditions were safe, the inmates had adequate training, and the medical treatment was timely and adequate.
Rodriguez contends that Defendants Foree and Cribbs acted in concert to threaten him with physical assault; deny him food, clean clothes, and showers for days; and harassed and threatened him with disciplinary actions in an attempt to hinder or interfere with his medical treatment.
Rodriguez next contends that Defendant Dr. Richard Hulls was deliberately indifferent to his serious injuries which resulted in needless suffering in violation of the Eighth Amendment.
Finally, Rodriguez complains that Defendant Howard ordered him and the other inmates to work in the basket despite their objections that it was not safe. He argues that even though Defendant Howard was at the scene when the accident occurred, he had left the inmates unattended in "callous disregard" for their safety.
Rodriguez sued the Defendants in both their individual and official capacities.
To the extent that Rodriguez seeks injunctive relief against the TDCJ-ID and Defendants in their official capacities, the Court finds that such claims have been mooted by Rodriguez's release from the Texas Department of Criminal Justice. See Cooper v. Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1084 (5th Cir. 1991) (holding that a prisoner's complaint requesting equitable relief on jail conditions was rendered moot when the prisoner was transferred to the state prison); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988) (holding that a complaint requesting injunctive relief for unconstitutional conditions at state prison unit was rendered moot when the prisoner was transferred to another unit); and Scott v. Jones, 492 F-2d 131 (5th Cir. 1974) (holding that a complaint requesting injunctive and declaratory relief for denial of psychiatric treatment at a county jail was rendered moot when the prisoner was transferred to the state prison).
MOTION FOR SUMMARY JUDGMENT
Defendants Johnson, Cooper, and Webb request summary judgment because Rodriguez has only sued them under the theory of respondeat superior and such claims are not actionable under 42 U.S.C. § 1983, Defendants Johnson, Cooper, and Webb also argue that they are entitled to qualified immunity.Defendants Howard, Pickens, Force, Cribbs, and Hults request summary judgment because Rodriguez has failed to demonstrate that they violated his constitutional rights and they are entitled to qualified immunity on the claims regarding unsafe work conditions, deliberate indifference to his medical condition, denial of meals and clean clothing, retaliation, and conspiracy.
SUMMARY JUDGMENT STANDARD
A motion for summary judgment permits a court to resolve a lawsuit without conducting a trial if the court determines (1) there is no genuine dispute as to any material facts and (2) the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). A fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute over a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 250. A district court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, when ruling on a motion for summary judgment. Jones v. Collins, 132 F.3d 1048, 1052 (5th Cir. 1998). Although a district court must consider the summary judgment evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the nonmovant, "the nonmovingparty may not rest on the mere allegations or denials of [his] pleadings, but must respond by setting forth specific facts indicating a genuine issue for trial." Goodson v. City of Corpus Christi, 202 F.3d 730, 735 (5th Cir. 2000) (quoting Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999)).
The party moving for summary judgment must first demonstrate that "there is an absence of evidence to support the non-moving party's cause." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party satisfies this requirement by either (1) submitting evidentiary documents that negate the existence of some material element of the non-moving party's claim, or (2) merely pointing out the absence of evidence to support the non-moving party's claim, if the non-moving party will bear the burden of proof on that claim at trial. King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Once the moving party satisfies this initial requirement, the burden shifts to the non-moving party to "go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the moving party supports his motion with evidence, the non-moving party cannot simply rely on conclusory legal allegations but must present affirmative evidence in order to defeat the motion for summary judgment Anderson v. Liberty Lobby, Inc., 477 U.S. at 248-55. See Clark v. America's Favorite Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997) (holding mat unsupported allegations, affidavits, or depositions merely setting forth ultimate or conclusory facts and conclusions of law are insufficient to defeat a motion for summary judgment).
When the non-moving party fails to file a timely response to a proper motion for summary judgment, he cannot satisfy his burden to "designate specific facts showing that there is a genuine issue for trial," and summary judgment must be granted. Stults v. Conoco, Inc., 76 F.3d 651, 656-57 (5th Cir. 1996). See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (quoting Skotak v. Tenneco Resins, 953 F.2d 909, 915 n. 7 (5th Cir. 1992) ("Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment. . . .")). Although a court may not enter a "default" summary judgment when the non-moving party fails to respond to a motion for summary judgment, the non-moving party is relegated to his unsworn pleadings, which do not constitute summary judgment evidence, and the court may accept the moving party's evidence as undisputed. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996). To the extent, however, that a prisoner-plaintiff's allegations are verified under penalty of perjury, they "are deemed competent summary judgment evidence." Al-Raid v. Ingle, 69 F.3d 28, 32 (5th Cir. 1995).
A district court does not have to limit the basis for summary judgment to the facts listed in a motion for summary judgment but may grant summary judgment on facts not briefed by the moving party if the non-moving party has notice of the issue. Turco v. Hoechst Celanese Chem. Group, Inc., 101 F.3d 1090, 1093 (5th Cir. 1996).
FACTS
Because Rodriguez failed to file a response to Defendants' Motion for Summary Judgment, the facts stated by the moving parties may be accepted as undisputed, Eversley v. MBank Dallas, 843 F.2d at 174. This Court has reviewed Rodriguez's Amended Complaint, the Spears testimony, the Defendants' Answers, and the Defendants' Motion for Summary Judgment with Brief and Appendix, and now makes the following findings of fact:
1. On September 23, 1999, and at all times relevant to his complaint, Antonio B. Rodriguez, ID # 856405, was incarcerated in the Texas Department of Corrections.
2. On September 23, 1999, Defendant CO III Howard was the TDCJ-ID security officer in charge of Rodriguez and four other inmates assigned to a community work detail painting buildings at the San Angelo State School in Carlsbad, Texas. Although Defendant Howard relayed instructions from the state school employee to the inmates, he was not in charge of the painting project.
3. After lunch on September 23, 1999, two inmates were assigned to paint the lower part of a building, and Rodriguez and two other inmates were assigned to paint the upper part of the same building. The inmates assigned to paint the upper part of the building were ordered to stand in a basket that was then lifted by a forklift/crane so that they could reach the upper part of the second story building.
4. The operator of the forklift was Jesse Vallejo, Jr., an employee of the San Angelo State School, which is operated by the Texas Department of Mental Health and Mental Retardation. Vallejo was in charge of the painting project and all materials and equipment used by the inmates were provided by the state school.
5. While Vallejo was sitting on the forklift on September 23, 1999, with the engine turned off, he felt the forklift start tilting to the left. After the forklift turned completely on its side, Vallejo jumped out of the driver's seat and ran for a telephone. He did not see what happened to the inmates in the basket.
6. As the forklift was turning over, one of the inmates in the basket jumped onto the roof of the building that was being painted; Rodriguez and the other inmate were thrown to the ground. The basket knocked one of the inmates on the ground off the ladder on which he was standing, and the other inmate on the ground was trapped between the basket and a handrail that led to the door of the building. Defendant Howard was able to jump out of the way of the falling basket and forklift.
7. Rodriguez and two other inmates were transported by ambulance to the San Angelo Community Medical Center. The trapped inmate was finally freed and transported by Life-flight to the San Angelo Community Medical Center.
8. Rodriguez and the two inmates transported by ambulance were treated at the Community Medical Center and released later that night.
9. The trapped inmate suffered internal injuries and underwent emergency surgery, but he died at 5:45 p.m. on September 23, 1999.
10. At the San Angelo Community Medical Center, Rodriguez was examined by Dr. Richard Y. Thorpe for complaints of a headache and right arm injury. The physician noted that Rodriguez was very cooperative and did not appear to be in acute distress. (App. at 153).
11. Dr. Thorpe ordered a CT of Rodriguez's head and x-rays of his C-spine and right humerus. (App. at 153). The findings of the CT were discussed with Dr. Thorpe (App. at 156); the x-rays of the C-spine "demonstrate[d] good alignment" with no fractures or dislocations observed; the x-rays of his right arm revealed "no fracture or dislocation, or other abnormality," and the x-rays of Rodriguez's clavicles showed "no fractures or AC separation." (App. at 157).
12. After he was released from the hospital, Rodriguez was transported to the Wilderness Camp and then to the TDCJ-ID Wallace Unit in Colorado City, Texas, arriving at 9:20 p.m. The TDCJ-ID Clinic Notes state that he was given tylenol and the RN on call was notified and instructed to make an appointment with the "MD/PA in 5 days."
13. On September 24, 1999, Rodriguez was examined by an RN at the Wallace Unit, He had his right arm in a sling and complained of bilateral knee pain, pain in the back of his head and neck, and low back pain. The nurse noted a small abrasion on his knee.
14. Dr. Richard Hulls examined Rodriguez on September 24, 1999, and noted that he had pain in his right shoulder and left knee. He ordered that Rodriguez's left knee be x-rayed and his right arm remain in the sling for 15 days; he prescribed motrin for 15 days; he instructed that Rodriguez not be assigned to work for 15 days; and he requested that a follow-up exam be conducted in one week. (App. at 137).
15. On September 24, 1999, x-rays were taken of Rodriguez's left knee pursuant to Dr. Hults's order. The x-ray report stated that there was a "minimally displaced chondral fracture involving the mid portion of the patellar articular cartilage. Otherwise stable left knee with minimal joint effusion." Dr. Hults initialed the report on September 30, 1999. (App. at 178).
16. On September 25, 1999, Rodriguez was seen at his cell by a licensed vocational nurse ("LVN"). He complained that he needed a wheelchair because his knee was so painful that he had difficulty walking. The nurse advised him that if he would come to the infirmary, she would place warm compresses on his knee and give him pain medication. Rodriguez became argumentative and advised her that he could not walk.
17. Later the same day, security advised the LVN that Rodriguez refused to go to chow without a wheelchair even though he was observed walking to the bathroom. Dr. Hults was notified of Rodriguez's complaints but no new orders were given.
18. On September 26, 1999, the infirmary was advised that Rodriguez was requesting that he be taken to the infirmary in a wheelchair because he could not walk. The officers advised the infirmary that Rodriguez was fully dressed and walking to the bathroom even though he continued to refuse to walk to chow. Rodriguez was subsequently taken to the infirmary in a wheelchair.
19. When Rodriguez arrived at the infirmary on September 26, 1999, he complained that his back and knees hurt but admitted that he had not been taking his prescribed medication. Although he stated that he could not walk, Rodriguez was able to stand up, take two steps, turn around, and sit down without noted difficulty. The nurse also noted that his back was stiff and there was no swelling to his knee. He was given ibuprofen and heat packs were applied to his areas of pain.
20. After the heat treatments, Rodriguez advised the nurse that the heat did not alleviate the pain. He was advised that he could come back for more heat treatments or use a hot towel at his cell. Although Rodriguez walked from the nurse's desk to the waiting room in the infirmary without assistance, he advised the nurse that he could not walk back to his cell. The nurse told Rodriguez to continue his treatments, gave him three days of ibuprofen to keep and take when he returned to his cell, gave him a cell pass for an appointment with the physician on September 27, 1999, and told security to take Rodriguez to chow or his cell Rodriguez refused to leave the infirmary without a wheelchair and advised the nurse that he could not come to his next appointment without a wheelchair.
21. Rodriguez did not show for his physician's appointment on September 27, 1999, and it was rescheduled for September 28, 1999.
22. Rodriguez did not show for his physician's appointment on September 28, 1999, but the results of his x-rays were received. Crutches were ordered for Rodriguez and he was scheduled to be re-evaluated on September 29, 1999.
23. At about 4:25 p.m. on September 28, 1999, Rodriguez was picked up at his cell by a wheelchair and taken to the infirmary where he was placed in the observation unit. He advised the medical staff that he could not use the crutches because of his shoulder injury.
24. At 7:00 a.m. on September 29, 1999, security officers offered to escort Rodriguez to the showers, but he refused.
25. Dr. Hults examined Rodriguez on September 29, 1999, and noted that he could move but was uncooperative. He ordered that x-rays be made of Rodriguez's lumbar spine and right elbow; he ordered an elastic knee "immobilizer" for his left knee; he instructed Rodriguez to discontinue use of the sling on his right aim; and he stated that there was no reason that Rodriguez could not walk with the crutches. After consulting another physician by telephone, Dr. Hults ordered that Rodriguez be sent to the TDCJ-ID Montford Unit for possible arthroscopic surgery to his left knee. (App. at 131).
26. On September 29, 1999, x-rays were made of Rodriguez's right elbow and his L-spine pursuant to orders from Dr. Hults. The report on his elbow noted that he had a "stable right elbow with no acute fracture or dislocation." (App. at 174). The report on Rodriguez's lower spine stated that "[o]verall findings suggest previous healed post-traumatic changes at L1-2 and L2-3. No acute fracture or dislocation noted." (App. at 174).
27. On September 30, 1999, Dr. Hults submitted a request for Rodriguez to be examined by an orthopedic specialist and evaluated for "arthroscopy of his left knee." (App. at 214).
28. Dr. Hults examined Rodriguez on October 1, 1999, and noted that he could walk, albeit slowly, with the crutches.
29. On October 4, 1999, x-rays of Rodriguez's back and right shoulder were made pursuant to a request from Dr. Hulls on October 1, 1999. (App, at 177). The x-rays of his right shoulder showed a "stable right shoulder with degenerative arthritic changes," (App. at 177). The x-rays of his back suggested "previous healed post-traumatic changes involving the raid and upper lumbar Spine from L2 down to L4, stable and unchanged compared to 9-29-99. No acute fracture or dislocation noted." (App. at 177).
30. Dr. Hulls examined Rodriguez on October 4, 1999, and noted that he was waiting on the x-ray reports.
31. Dr. Hulls examined the x-ray of Rodriguez's left knee on October 5, 1999.
32. Rodriguez was transferred to the TDCJ-ID Robertson Unit on October 14, 1999.
33. Rodriguez was examined at the TDCJ-ID Montford Ortho Clinic on October 15, 1999, and an x-ray of his left knee was ordered. The examining physician determined that Rodriguez had the full range of motion of his left knee; the x-ray of his knee was "negative"; and ordered physical therapy for his knee, ibuprofen for the pain, work restrictions for four weeks, and a follow-up exam in four weeks. (App. at 125).
34. The x-ray report from October 15, 1999, states that "in frontal orientation, the tunnel projection suggest[s] slight asymmetric widening of the lateral joint space. The bones appear intact. The lateral projection suggests that a very small effusion may be present; the finding is equivocal." (App. at 154).
35. Rodriguez was transferred back to the Wallace Unit on October 18, 1999, and scheduled for a follow-up exam on November 1, 1999.
36. On October 20, 1999, Rodriguez was transferred to the TDCJ-ID Robertson Unit.
37. On October 22, 1999, Rodriguez was transferred to the TDCJ-ID Ramsey II Unit.
38. Rodriguez had arthroscopic surgery on his left knee on November 10, 2000, at the University of Texas Medical Branch Hospital outpatient clinic in Galveston, Texas. (App. E-l).
39. At all times relevant to the instant complaint, Defendants Johnson, Cooper, Webb, Pickens, Foree, Cribbs, and Howard were employed by the TDCJ-ID, an agency of the State of Texas.
40. At all times relevant to the instant complaint, Defendant Richard Hults was an employee of either the University of Texas Medical Branch at Galveston ("UTMB") or the Texas Tech University Health Services Center ("Tech"), who contract with the Correctional Managed Health Care Advisory Committee to provide health care for TDCJ inmates. There is no employer-employee relationship between TDCJ and those providing direct patient care services. (App. A-l).
QUALIFIED IMMUNITY
"The doctrine of qualified immunity serves to shield . . . government official[s] from civil liability for damages based upon the performance of discretionary functions if the official[s'] acts were objectively reasonable in light of then clearly established law." Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The bifurcated test for qualified immunity requires a court to determine (1) "whether the plaintiff has alleged a violation of a clearly established right and, if so, (2) whether the defendant [official's] conduct was objectively unreasonable." Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999). Thus, when a defendant has filed a motion for summary judgment raising the defense of qualified immunity, a court must first determine whether the facts, "[t]aken in the light most favorable to the party asserting the injury," establish that the defendant officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity," Id. at 201.
If the plaintiff-prisoner has established the violation of a constitutional right, however, a court must then determine whether the right was "clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of that then clearly established law." Palmer v. Johnson, 193 F.3d at 351. This second inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition" Saucier v. Katz, 533 U.S, at 201. See Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997) (holding that the first part of the bifurcated test "will generally involve analysis at a higher level of generality than the second, which focuses not only on the state of the law at the time of the complained of conduct, but also on the particulars of the challenged conduct and/or of the factual setting in which it took place").
"'Clearly established' means that 'the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates'" the plaintiff-prisoner's constitutional rights. Thompson v. Upshur, 245 F.3d at 457 (quoting Anderson v. Creighton, 483 US. 635, 640 (1987)). "If the law did not put the official] on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier v. Katz, 533 U.S. at 202.
A defendant official's "acts are held to be objectively unreasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution. . . ." Thompson v. Upshur, 245 F.3d at 457 (emphasis in original). "The 'defendant's circumstances' includes facts know[n] to the defendant," but "because qualified immunity turns only upon the objective reasonableness of the defendant's acts, a particular defendant's subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity." Id. (emphasis in original).
To address the Defendants' claim to qualified immunity, therefore, this Court must first determine whether Rodriguez has demonstrated the violation of a constitutional right.
"[Section] 1983 is not itself a source of substantive rights; it merely provides a method for vindicating federal rights conferred elsewhere." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 n. 3 (5th Cir. 1999). To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that an individual acting "under color of law" caused the deprivation of a right secured by the United States Constitution. 42 U.S.C. § 1983; Scott v. Moore, 85 F.3d 230, 232 (5th Cir. 1996).
1. Respondent Superior
"Personal involvement is an essential element of a civil rights cause of action." Thompson v, Steele, 709 F.2d 381, 382 (5th Cir. 1983). Thus, supervisory officials are not liable under § 1983 for the actions of their subordinates on theories of vicarious liability or respondeat superior. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). See Pierce v. Texas Dept. of Crim. Justice, Inst. Div., 37 F.3d 1146, 1150 (5th Cir. 1994) ("Vicarious liability does not apply to § 1983 claims."). "Supervisory officials may be held liable only if: (i) they affirmatively participate in acts that cause constitutional deprivation; or (ii) implement unconstitutional policies that causally result in plaintiffs injuries." Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992).
Rodriguez complains that these defendants' failure to train and supervise their subordinates resulted in violations of his constitutional rights. To the extent that he complains that Defendants Johnson, Cooper, and Webb failed to insure his safety and well-being, he must demonstrate that they breached "a duty imposed by state or local law, and this breach cause[d] [his] constitutional injury." Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998). Rodriguez must specifically demonstrate that "(1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiffs rights; and (3) the failure to train or supervise amounts to deliberate indifference." Id. at 911-12.
Defendant Johnson filed a sworn affidavit (App. A) stating that as Director of the TDCJ-ID at the time of the accident, he "would not have been involved in, nor would [he] have had knowledge of, [Rodriguez's] day-to-day work assignment," or "authority over the provisions of health care to [Rodriguez] or any other offenders."
Defendant Cooper filed a sworn affidavit (App. B) stating that as Senior Warden of the Wallace Unit at the time of the accident, he had no personal involvement regarding the circumstance surrounding this accident or decisions regarding [Rodriguez's] medical care. Defendant Cooper has sworn that any information he possesses regarding this accident and the inmate's medical care was obtained as a result of the inquiries and investigation conducted after the accident. He further declares that on all decisions regarding medical care and treatment, he defers to the judgment and decisions of the Unit Health Authority.
Defendant Webb filed a sworn affidavit (App. C) stating that as Assistant Warden of the TDCJ-ID Wallace Unit at the time of the accident, he had no personal involvement regarding the circumstances surrounding the accident on September 23, 1999, nor was he personally involved in making the decisions regarding Rodriguez's medical treatment Defendant Webb has sworn that any information he possesses regarding the accident and Rodriguez's medical care was obtained as a result of the investigation conducted after the accident. Defendant Webb also declares that he "had no knowledge that [Rodriguez] did not receive adequate food, shelter, clothing, and medical care."
Rodriguez has offered no evidence that Defendants Johnson, Cooper, and Webb were personally involved in the accident, the decisions preceding the accident, or his medical treatment after the accident; and, other than his conclusory allegations, he has offered nothing to support his claim that the officials failed to properly train and supervise their subordinates. Rodriguez has not responded to Defendants' motion for summary judgment; therefore, he has failed to present any evidence that would allow a reasonable juror to find that Defendants Johnson, Cooper, and Webb were personally involved in assigning him to work at the state school or his medical care, or that Defendants Johnson, Cooper, and Webb should be held accountable under a theory of supervisory liability. See Stults v. Conoco, Inc., 76 F.3d at 657 (holding that when a nonmoving party fails to respond to a motion for summary judgment, he cannot meet his burden to "designate specific facts showing that there is a genuine issue for trial").
2. Failure to Provide a Safe Work Environment
The Eighth Amendment imposes a duty on prison officials to "provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). See Sampson v. King, 693 F.2d 566, 569 (5th Cir. 1982) ("In general, the state has a responsibility to protect the safety of its prisoners."). A prison official violates this duty when by act or omission he is deliberately indifferent to prison conditions which pose a substantial risk of serious harm. Id. at 834.
"To establish deliberate indifference in the context of the Eighth Amendment, the prisoner must show that the defendants (1) were aware of facts from which an inference of an excessive risk to the prisoner's health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed." Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). See Farmer v, Brennan, 511 U.S. at 837 (holding that the subjective test for deliberate indifference requires that the official both know of and disregard an excessive risk of harm). The legal conclusion of deliberate indifference must rest on facts clearly evincing "obduracy and wantonness, not inadvertence or error in good faith." Whitley v. Albers, 475 U.S. 312, 319 (1986). The Supreme Court has explained that
[w]anton means reckless — without regard to the rights of others. . . . Wantonly means causelessly, without restraint, and in reckless disregard of the rights of others. Wantonness is defined as a licentious act of one man towards the person of another, without regard to his rights; it has also been defined as the conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury after the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure.Smith v. Wade, 461 U.S. 30, 39-40 n. 8 (1983) (quoting 30 American and English Encyclopedia of Law 2 — 4 (2d ed. 1905) (footnotes omitted)). Thus, negligence is not a theory for affixing liability under § 1983. Daniels v. Williams, 474 U.S. 327, 333 (1986); Benavides v. Santos, 883 F.2d 385, 387 (5th Cir. 1989).
"Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer v. Brennan, 511 U.S. at 842, "[T]he 'failure to alleviate a significant risk that [the official] should have perceived, but did not' is insufficient to show deliberate indifference." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. at 838).
Furthermore, "[i]n operating a prison, . . . the state is not constitutionally required to observe all the safety and health standards applicable to private industry." Sampson v. King, 693 F.2d at 569 (citing Ruiz v. Estelle, 679 F.2d 1115, 1159 (5th Cir. 1982)). The state is not "bound by the standards set by the safety codes of private organizations[,]" and any "[standards suggested by experts are merely advisory." Sampson v. King, 693 F.2d at 569.
Rodriguez has failed to present, or point to any evidence hi the record, to support his conclusory allegations that any of the named Defendants acted with "deliberate indifference" to a substantial risk of harm. Although he has been given the opportunity to raise an issue of fact concerning the "deliberate indifference" of the Defendants, when he failed to respond to the Motion for Summary Judgment, he failed to present any evidence which would allow a reasonable juror to find deliberate indifference. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
Although Rodriguez specifically argues that Defendant Howard ignored his and the other inmates' complaints about having to work in the basket, "deliberate indifference cannot be inferred merely from negligent or even a grossly negligent response to a substantial risk of serious harm." Thompson v. Upshur County. TX, 245 F.3d at 459. See Whitley v. Albert, 475 U.S. at 319 (holding that a violation of the Eighth Amendment must involve "more than an ordinary lack of due care for the prisoner's . . . safety") — Furthermore, the summary judgment evidence clearly shows that it was not Defendant Howard's decision for Rodriguez and two other inmates to be lifted in the basket to paint the upper story of the building; rather, it was the state school employee Jesse Vallejo, Jr., who made the decision for the three inmates to be in the basket. Vallejo also stated in his deposition that he was in charge of the painting and Defendant Howard was merely there to "guard" the inmates and relay his instructions. See Bradley v. Puckett, 157 F.3d at 1025 (stating that it is "obduracy and wantonness, not inadvertence or error in good faith" which characterizes conduct prohibited by the Eighth Amendment). See also Choate v. Lockhart, 7 F.3d 1370 (8th Or. 1993) (holding that there was no evidence of prison official's deliberate indifference to safety where an inmate was forced to work on a roof with a saw and the prison did not provide toe rails, rubber-soled shoes, or scaffolding); Warren v. Missouri, 995 F.2d 130 (8th Cir. 1993) (holding that there was no evidence of deliberate indifference where an inmate was forced to work on an industrial table saw and the prison failed to equip the saw with safety features despite knowledge of prior injuries from the saw); and Bibbs v. Armontrout, 943 F.2d 26 (8th Cir. 1991) (finding insufficient evidence of deliberate indifference where an inmate was forced to work on a machine without safety guards because there was no evidence that prison officials "willfully overlooked the condition of the equipment" or that officials knew the safety guards were not used on the machine),
Finally, the Court finds that Rodriguez's claims regarding the accident on September 23, 1999, appear to sound in negligence, and as previously noted, mere negligence is not a theory for affixing liability under § 1983. Daniels v. Williams, 474 U.S. at 33. See Stephens v. Johnson, 83 F.3d 198, 200 (8th Cir. 1996) (holding that in the workplace safety context, mere negligence or inadvertence is insufficient to demonstrate deliberate indifference). Many acts that might constitute a violation of state tort law do not rise to the level of a constitutional violation. Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988).
"Deliberate indifference is an extremely high standard to meet" Domino v. Texas Dep't of Criminal Justice, 239 F.3d at 756. Rodriguez has failed to demonstrate that any Defendants were deliberately indifferent to his safety on September 23, 1999.
3. Failure to Provide Adequate Medical Care
Rodriguez alleges that Defendants Johnson, Cooper, Webb, and Hults were deliberately indifferent to his serious medical needs after the accident on September 23, 1999, and he argues that Defendants Cribbs and Foree interfered with his medical treatment.
To state a claim for the denial of medical care under § 1983, a prisoner must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A serious medical need is one that is "either obvious to the layperson or supported by medical evidence." Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995). See Gaudreault v. Municipality of Salem, Massachusetts, 923 F.2d 203, 208 (1st Cir. 1990) (finding that a serious medical need is one that "has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's treatment")
To demonstrate that a prison official acted with "deliberate indifference," the prisoner must show that the prison official knew of and disregarded an excessive risk to the prisoner's health. Farmer v. Brennan, 511 U.S. at 837. See Wilson v. Setter, 501 U.S. 294, 302-03 (1991) (holding that a prisoner must show a culpable or punitive state of mind on the part of the prison official accused of violating the Eighth Amendment). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105F.3d 1059, 1061 (5th Cir. 1997). Therefore, not every claim of inadequate or improper medical treatment is a violation of the Constitution. Estelle v. Gamble, 429 U.S. at 105-07. For example, complaints of negligence, neglect, unsuccessful treatment, or even medical malpractice do not give rise to constitutional claims. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). See Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir. 1982) (footnote omitted) ("Neither inadvertent failure to provide adequate medical care, nor carelessness, nor even deliberate failure to conform to the standards suggested by experts is cruel and unusual punishment."). An inmate's mere disagreement with his medical treatment also does not give rise to a claim under § 1983. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). "Rather, the [prisoner] must show that the 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 Dept. Of Criminal Justice, 239 F.3d at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
Rodriguez has clearly failed to show that Dr. Hulls or any of the Defendants were "deliberately indifferent" to his serious medical needs. Indeed, the record shows that immediately after he fell from the forklift, Rodriguez was transported by ambulance to the San Angelo Community Hospital. After being examined and treated, the emergency-room physician released Rodriguez and he was transported back to the TDCJ. Rodriguez arrived at the Wallace Unit late in the evening of September 23, 1999, and he was examined the next day, September 24, 1999, by Dr. Hults. Defendants' summary judgment evidence shows that Dr. Hulls examined Rodriguez at least four times between September 24 and October 20, when Rodriguez was transferred off the Wallace Unit. During this time period, Dr. Hults ordered x-rays of Rodriguez's left knee, lumbar spine, right elbow, right shoulder, and back; he prescribed motrin, ibuprofen, and hot packs for Rodriguez's pain; he referred Rodriguez to a specialist at the orthopedic clinic at the Montford Unit; and he ordered an elastic knee "immobilizer" and crutches for Rodriguez. Although Rodriguez may disagree or be dissatisfied with Dr. Hults's medical decisions, he has presented absolutely no evidence that Dr. Hults acted with deliberate indifference in his medical care.
Furthermore, Rodriguez has failed to show that any other Defendants were personally involved with his medical care or treatment. Hence, Rodriguez has failed to show that any of the named Defendants were deliberately indifferent to his serious medical needs while he was incarcerated in the Wallace Unit between September 23, 1999, and October 20, 1999. See Little v. Liquid Air Corporation, 37 F.3d at 1075 (holding that in the absence of proof, the court does not assume "the nonmoving party could or would prove the necessary facts").
4. Denial of Meals, Clean Clothing, and Showers
Although the Eighth Amendment to the Constitution does not mandate comfortable prisons, it does impose duties on prison officials to provide humane conditions of confinement, such as adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. at 833-34. To demonstrate a violation of an inmate's constitutional right to humane conditions, the inmate must show that (1) the condition was so serious as to deprive him of some basic human need, and (2) the prison official responsible for the condition was "deliberately indifferent" to the inmate's health or safety. Id. at 834; Harris v. Angelina County, Texas, 31 F.3d 331, 334 (5th Cir. 1994). A prison official is "deliberately indifferent" when "the official knows of and disregards an excessive risk to inmate health or safety." Id. at 837.
Rodriguez complains generally that Defendants Pickens, Cribbs, Foree, and Webb harassed and interfered with his care after the accident on September 23, 1999, by denying him meals when he could not walk to the chow hall, failing to provide him with clean clothes when he could not walk to pick up his clothes from the laundry, and failing to provide him with a wheelchair so that he could take showers.
Rodriguez admitted at the Spears hearing that he had not filed any grievances regarding his complaints about the denial of showers and clean clothes. He alleged, however, that he had filed grievances about the deprivation of food and that between September 24, 1999, and his transfer on October 20, 1999, he missed two to three meals because he could not get to the chow hall in time to eat but mat most of the time he just did not get to eat. The only grievance located in the summary judgment evidence that complains about the denial of meals was signed by Rodriguez on September 26, 1999, and stated that he had not eaten in three days because his injuries were so debilitating that he could not walk to the chow hall and no one would give him a wheelchair. (App. 1-6). The summary judgment record, however, shows that Rodriguez was provided meals in the infirmary on September 27 and 28, 1999, when he was held there for observation. The summary judgment evidence also includes statements that even though Rodriguez refused to walk to the chow hall, he was observed walking to the bathroom, walking in the infirmary waiting room, and standing to dress himself. Moreover, Dr. Hults issued Rodriguez a pair of crutches on September 28, 1999, and on September 29, 1999, noted in the medical records that there was no reason that Rodriguez could not walk with the crutches.
"The deprivation of food constitutes cruel and unusual punishment only if it denies a prisoner the 'minimal civilized measure of life's necessities.'" Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998) (quoting Wilson v. Setter, 501 US. at 298). "Whether the deprivation of food falls below this threshold depends on the amount and duration of the deprivation." Id. Receiving two meals a day on a regular, permanent basis, may be adequate. Green v. Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986). See Berry v. Brady, 192F.3d 504, 507 (5th Cir. 1999) (finding that a claim for missing eight meals was frivolous). Rodriguez has simply failed to come forward with any evidence sufficient to allow a jury to find that he was denied meals, clean clothing, or showers, and that any of the named Defendants acted with deliberate indifference. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en bane) (holding that conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic arguments are not adequate substitutes for specific facts showing that there is a genuine issue for trial).
5. Retaliation
Rodriguez rather vaguely complains that he was the subject of retaliation because he complained about his injuries and medical care (or lack thereof), "To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his . . . exercise of that right, (3) a retaliatory adverse act, and (4) causation." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). "Causation" requires the prisoner to show that "but for the retaliatory motive the complained of incident . . . would not have occurred." Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
"The [prisoner] must allege more than his personal belief that he is the victim of retaliation." Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999), He "must produce direct evidence of motivation or, the more probable scenario, 'allege a chronology of events from which retaliation may plausibly be inferred.'" Woods v. Smith, 60 F.3d 1161, 1166 (5tii Cir. 1995) (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)). "This places a significant burden on the [prisoner]." Woods v. Smith, 60 F.3d at 1166.
Defendants have moved for summary judgment and Rodriguez has not responded to the motion or provided any documentary or testimonial evidence to support his assertions of retaliation. See Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988) (affirming a grant of summary judgment on a claim of retaliation because the prisoner "never offered any documentary or testimonial evidence to support his assertions" and thus there were no material issues of disputed fact). Moreover, although not required to do so, the Court has reviewed the pleadings and Defendants9 summary judgment evidence but can find no evidence that any Defendant acted with a retaliatory motive or that a chronology of events exists which would even support a reasonable inference of retaliation. See Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988) ("It is a virtual truism that any prisoner who is the subject of an administrative decision that he does not like feels that he is being discriminated against for one reason or another, such as the past filing of a grievance, a complaint about food or a cellmate, or a prior complaint that he was not being treated equally with other prisoners.").
Accordingly, the Court finds that Rodriguez's conclusory allegations of retaliation are insufficient to establish a constitutional claim for retaliation and defeat Defendants' claims to qualified immunity and summary judgment. See Woods v. Smith, 60 F.3d at 1166 ("Mere conclusionary allegations of retaliation will not withstand a summary judgment challenge.").
6. Conspiracy
To the extent that Rodriguez alleges that the Defendants "acted in concert," the Court has generously construed his complaint to raise a complaint of conspiracy. To establish a conspiracy claim cognizable under § 1983, a prisoner must demonstrate (1) an agreement between persons acting under color of law to commit an illegal act, and (2) an actual deprivation of the prisoner's constitutional rights in furtherance of the conspiracy. Hale v. Townley, 45 F.3d 914, 920 (5th Cir. 1995). Conclusory allegations of conspiracy will not support a claim under § 1983. Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). Plaintiff has failed to support his allegations of conspiracy with any facts demonstrating an agreement between the defendants to retaliate against him for filing grievances or to violate any of his constitutional rights. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1992) (holding that a civil rights claim of conspiracy must include allegations of specific operative facts).
A prisoner-plaintiff bears the burden of defeating a defendant prison official's claim to qualified immunity. Al-Rais v. Ingle, 69 F.3d at 33. When a prisoner fails to demonstrate that a constitutional right has been violated, there is no need for a district court to consider the second part of the qualified immunity test. Saucier v. Katz, 533 U.S. at 201. Moreover, when a prisoner fails to "come forward with evidence which would be sufficient to enable [him] to survive a motion for directed verdict at trial" for any material facts on which he will bear the burden of proof at trial, a defendant official's motion for summary judgment must be granted. Stults v. Conoco, Inc., 76 F.3d at 656.
CONCLUSION
For the reasons stated above, the Court finds that Plaintiff Rodriguez has failed to demonstrate that Defendants Johnson, Cooper, Webb, Pickens, Force, Cribbs, Hulls, and Howard violated his constitutional rights by failing to provide him with a safe work environment or proper medical care, clothing, food, and showers; retaliating against him; or conspiring against him. Furthermore, Rodriguez has failed to demonstrate that Defendants Johnson, Cooper, and Webb are liable under claims of respondeat superior. Rodriguez has failed to come forward with any evidence to defeat Defendants' entitlement to qualified immunity; accordingly, Defendants' Motion for Summary Judgment should be granted
SO ORDERED.
Judgment shall be entered accordingly.
All relief not expressly granted is denied and all pending motions are hereby denied.