Opinion
No. 3:17-CV-1925-M-BH
04-20-2020
DENNIS ROMERO, ID # 17014015, Plaintiff, v. PARKLAND JAIL HEALTH, et al., Defendants.
Referred to U.S. Magistrate Judge FINDINGS, CONCLUSIONS, AND RECOMMENDATION
By Special Order No . 3-251 , this pro se prisoner case has been automatically referred for full case management.
Based on the relevant filings and applicable law, the complaint should be DISMISSED with prejudice.
I. BACKGROUND
Dennis Romero (Plaintiff), an inmate in the Dallas County Jail (Jail), sued the Jail and Parkland Jail Health (Parkland) under 42 U.S.C. § 1983 for failing to warn him about a wet floor and failing to attend to his injuries after he slipped and fell on it. (See doc. 3 at 4.) He claims that Officer Williams, an unnamed African-American Jail security officer, and a janitor were attempting to dry the floor in an area of the infirmary where the inmates were under the influence of psychiatric medication but failed to put up signs or warn inmates about the wet floor. (See doc. 7 at 1.) Plaintiff allegedly sustained injuries to his head, neck, back, and right elbow, for which he was treated by Nurse Latef with a temperature check and an arm wrap or bandage, but he was not properly diagnosed for a head injury, and he was not given medication for his complaints of continuous pain. (See doc. 7 at 1-3, 6.) He sues Nurse Latef and the unnamed head or Director of Parkland in their individual and official capacities for denial of proper medical treatment, deliberate indifference to medical needs, and negligence. (See id. at 3.) He also sues an unnamed custodial supervisor, Officer Williams, and the unnamed African-American Jail security officer in their individual and official capacities for negligence. (See id. at 4.) Plaintiff seeks a c-scan or an x-ray and compensatory damages in the amount of $98,000. (See doc. 3 at 4; doc. 7 at 5-6.) No process has been issued.
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page numbers at the bottom of each filing.
II. PRELIMINARY SCREENING
Plaintiff is an inmate who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous when it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id. at 327. A complaint fails to state a claim upon which relief may be granted when it fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). To avoid dismissal for failure to state a claim, plaintiffs must allege facts sufficient to "raise the right to relief above the speculative level." Twombly, 550 U.S. at 555. Mere "labels and conclusions" nor "a formulaic recitation of the elements of a cause of action" suffice to state a claim upon which relief may be granted. Id.
III. SECTION 1983
Plaintiff sues under 42 U.S.C. § 1983. Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's 'rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). To state a § 1983 claim, Plaintiff must allege facts that show (1) he has been deprived of a right secured by the Constitution and the laws of the United States and (2) the deprivation occurred under color of state law. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005). A. Non-jural Entities
A plaintiff may not bring a civil rights action against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. Darby v. Pasadena Police Dep't, 939 F.2d 311, 313-14 (5th Cir.1991). In Darby, the Fifth Circuit held that "unless the true political entity has taken explicit steps to grant the servient agency with jural authority, the agency cannot engage in any litigation except in concert with the government itself." Id. at 313. It is well-settled that these defendants are not jural entities subject to suit. See, e.g., Bell v. Dallas County Sheriff's Dep't, No. 3:16-CV-3415-L-BH, 2019 WL 4418227, at * 2 (N.D. Tex. Aug. 19, 2019), rec. adopted, 2019 WL 4412740 (N.D. Tex. Sept. 13, 2019); Edwards v. Dallas County Jail Med. Dep't, No. 3:07-CV-0886-G, 2007 WL 2687615, at *2 (N.D. Tex. Sept. 13, 2007). Any remaining claims against Parkland and Jail should be dismissed for failure to state a claim. B. Official Capacity/Municipal Liability Claims
In response to a questionnaire, Plaintiff specifically sued individual defendants in their official capacities. (See doc. 7 at 3, 4.)
Plaintiff's answers to a magistrate judge's questionnaire constitute an amendment to his complaint. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
An official capacity claim is merely another way of pleading an action against the entity of which the individual defendant is an agent. See Kentucky v. Graham, 473 U.S. 159, 165 (1985). Plaintiff's official capacity claims are therefore essentially claims against their government employer, Dallas County (County). See id.; Stiff v. Stinson, No. 3:12-CV-4998-D, 2013 WL 3242468, at *3 (N.D. Tex. June 27, 2013) (citing Graham, 473 U.S. at 165).
Municipalities, including counties, may be held liable under § 1983. Hampton Co. Nat'l Sur., LLC v. Tunica Cty., 543 F.3d 221, 224 (5th Cir. 2008). A municipality may be liable under § 1983 if the execution of one of its customs or policies deprives a plaintiff of his or her constitutional rights. Monell v. Dep't of Social Servs., 436 U.S. 658, 690-91 (1978); Jones v. City of Hurst, Tex., No. 4:05-CV-798-A, 2006 WL 522127, at *3 (N.D. Tex. Mar. 2, 2006) (citing Board of County Comm'rs v. Brown, 520 U.S. 397, 403 (1997)). It is well-settled that a municipality cannot be liable under a theory of respondeat superior, however. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (citing cases). "Under the decisions of the Supreme Court and [the Fifth Circuit], municipal liability under section 1983 requires proof of three elements: a policy maker; an official policy; and a violation of constitutional rights whose 'moving force' is the policy or custom." Id. (citing Monell, 436 U.S. at 694); see also Valle v. City of Houston, 613 F.3d 536, 541-42 (5th Cir. 2010); Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir. 2005). Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law. Monell, 436 U.S. at 691-95.
"Official policy" is defined as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; orWebster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (per curiam); accord Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). Where a policy is facially constitutional, a plaintiff must demonstrate that it was promulgated with deliberate indifference to known or obvious consequences that constitutional violations would result. Piotrowski, 237 F.3d at 579-80 & n.22; accord Peterson v. City of Fort Worth, 588 F.3d 838, 849-50 (5th Cir. 2009), cert. denied, 562 U.S. 827 (2010). "Deliberate indifference of this sort is a stringent test, and 'a showing of simple or even heightened negligence will not suffice' to prove municipal culpability." Piotrowski, 237 F.3d at 579 (citation omitted) (stressing that "Monell plaintiffs [need] to establish both the causal link ('moving force') and the City's degree of culpability ('deliberate indifference' to federally protected rights)").
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.
Plaintiff does not allege any of the elements of a claim for municipal liability, and all of his § 1983 claims against the individuals in their official capacities should be dismissed for failure to state a claim. C. Negligence
Plaintiff specifically sues for negligence in maintaining the jail and in providing him medical care. (See doc. 7 at 3, 4.)
"Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of [state] tort law." Baker v. McCollan, 443 U.S. 137, 146 (1979). Negligence is not actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 328 (1986) (concluding that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property"); Davidson v. Cannon, 474 U.S. 344, 347-48 (1986) (stating that "[r]espondents' lack of due care . . . simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent"). Even if the defendants' alleged negligence caused an unintended injury, Plaintiff has not stated a violation of his constitutional rights. See Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 635 (5th Cir. 1999) (holding that negligence by state officials does not constitute a due process violation under the Fourteenth Amendment). Plaintiff's allegations of negligence are insufficient to impose liability under § 1983. See Brumfield v. Hollins, 551 F.3d 322, 333 (5th Cir. 2008); Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Because his claims of negligence against all defendants are not actionable under § 1983, they should be dismissed for failure to state a claim. D. Respondeat Superior
Plaintiff sues the unnamed head or Director of Parkland and the custodial supervisor. (See doc. 7 at 3, 4.)
Supervisory officials cannot be held liable for the unconstitutional actions of their subordinates based on any theory of vicarious or respondeat superior liability. See Estate of Davis ex rel. McCully v. City of North Richmond Hills, 406 F.3d 375, 381 (5th Cir. 2005). To prevail against a supervisor, a plaintiff must show that: 1) the supervisor's conduct directly caused a constitutional violation; or 2) that the supervisor was "deliberately indifferent" to a violation of a constitutional right. Breaux v. City of Garland, 205 F.3d 150, 161 (5th Cir. 2000). The acts of a subordinate "trigger no individual § 1983 liability." Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th Cir. 1999). There must be some showing of personal involvement by a particular individual defendant to prevail against such individual. Id. A plaintiff cannot make generalized allegations. Howard v. Fortenberry, 723 F.2d 1206 (5th Cir. 1984); Blakely v. Andrade, 360 F.Supp.3d 453, 488-89 (N.D. Tex. 2019).
Here, Plaintiff makes no allegations concerning any personal involvement by the supervisors; he sues them based solely on their positions. His claims against them are subject to dismissal for failure to state a claim. E. Medical Care
Plaintiff alleges that Nurse Latef was deliberately indifferent to the injuries he sustained to his head, neck, back, and right elbow. (See doc. 7 at 3, 6.)
The humane conditions of confinement required by the Constitution include the receipt of adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials violate this requirement only when (1) the deprivation is objectively and sufficiently serious such that the act or omission results in the denial of "the minimal civilized measure of life's necessities" and (2) the official had a culpable state of mind. Id. at 834 (citations omitted). The objective component requires deprivation of a sufficiently serious medical need "[b]ecause society does not expect that prisoners will have unqualified access to health care." Hudson v. McMillian, 503 U.S. 1, 9 (1992). To satisfy the second component, the officials must be deliberately indifferent "to a substantial risk of serious harm to an inmate." Farmer, 511 U.S. at 828. This state of mind requires more than negligence but less than intent to cause harm or knowledge that harm will result from the acts or omissions. Id. at 835. An official is deliberately indifferent when he "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." Id. at 837. This state of mind "is an extremely high standard to meet." Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citations and internal quotation marks omitted). An inmate must show that prison personnel "refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evidence a wanton disregard for any serious medical needs." Domino v. Tex. Dep't Crim. J., 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)); see also Mace v. City of Palestine, 333 F. 3d 621, 626 (5th Cir. 2003) (the defendant must have the subjective intent to cause harm).
Here, Plaintiff concedes that he received medical treatment; he disagrees with the extent of the treatment he received. He complains that he was not given sufficient pain medication, provided x-rays, or diagnosed with a head injury. Disagreement with a course of medical treatment is insufficient to state a § 1983 claim, however. Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001); Norton v. Dimazana, 122 F. 3d 286, 292 (5th Cir. 1997). Neither negligent medical care nor medical malpractice rises to the level of a constitutional violation. Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999); see also Varnado v. Lynaugh, 920 F. 2d 320, 321 (5th Cir. 1991) ("Unsuccessful medical treatment does not give rise to a § 1983 cause of action."). His § 1983 claims against the nurse should therefore be dismissed for failure to state a claim.
IV. STATE LAW
Even if Plaintiff's complaint is liberally construed as asserting a claim of negligence under state law rather than § 1983, it is still subject to dismissal.
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction". Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Courts have "a continuing obligation to examine the basis for jurisdiction" and may sua sponte raise the issue at any time. See MCG, Inc. v. Great Western Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990); Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999). The party seeking the federal forum has the burden of establishing federal jurisdiction. Howery, 243 F.3d at 916. Fed. R. Civ. P. 12(h)(3) requires dismissal of a case if a federal court determines that it lacks subject-matter jurisdiction.
Federal courts have no jurisdiction over state law claims in the absence of diversity jurisdiction under 28 U.S.C. § 1332. Diversity jurisdiction is proper only when complete diversity exists between the parties and "the matter in controversy exceeds the sum or value of $75,000, exclusive ofinterest and costs." See 28 U.S.C. § 1332(a). "Complete diversity" means that a plaintiff may not share citizenship with any defendant. Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992). A party asserting diversity jurisdiction must "distinctly and affirmatively" allege the citizenship of the parties. Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing McGovern v. Am. Airlines, Inc., 511 F.2d 803, 805 (5th Cir. 1991) ). As the party seeking to invoke federal jurisdiction in this case, Plaintiff has the burden to show that diversity jurisdiction exists. See Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991).
Plaintiff has not met his burden to show that complete diversity exists between the parties because he has not alleged that the parties are citizens of different states. Any state law negligence claim should be dismissed for lack of subject-matter jurisdiction.
V. RECOMMENDATION
Plaintiff's complaint should be DISMISSED with prejudice as frivolous under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). This dismissal will count as a "strike" or "prior occasion" within the meaning 28 U.S.C. § 1915(g).
Section1915(g), which is commonly known as the "three-strikes" provision, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
SO RECOMMENDED on this 20th day of April, 2020.
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE