Opinion
No. 3:00-CV-2345-L
July 31, 2002
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiff's Motion for the Appointment of Counsel, filed October 25, 2000; Defendant's Motion for Summary Judgment, filed April 16, 2002; Plaintiff's Motion for Summary Judgment, filed May 16, 2002; Plaintiff's Amended Lawsuit, filed May 16, 2002; Defendant's Objections to Plaintiff's Exhibits in Support of Plaintiff's Motion for Summary Judgment, filed June 7, 2002; Defendant's Motion to Strike, filed June 7, 2002; Plaintiff's Motion for Summary Judgment, filed June 12, 2002; Plaintiff's Amended Lawsuit, filed June 12, 2002; Defendant's Objections to Plaintiff's Exhibits in Support of Plaintiff's Second Motion for Summary Judgment, filed June 27, 2002; and Defendant's Second Motion to Strike, filed June 27, 2002. After careful consideration of these matters, the summary judgment record, and the applicable authority, the court grants Defendant's Motion for Summary judgment and denies as moot Plaintiff's Motion for Appointment of Counsel.
The court assumes that Plaintiff Story intended to amend his complaint with the "amended lawsuits" filed on May 16, 2002 and June 12, 2002. Defendant Dallas County, Texas ("Dallas County") moved to strike the amended lawsuits on June 7, 2002 and June 27, 2002. The court will not strike the documents, because it reaches the same result regarding Defendant Dallas County's aforementioned summary judgment motion whether it considers or excludes the documents. Accordingly, Defendant Dallas County has not been prejudiced by Plaintiff Story's filing of the amended lawsuits, and its Motion to Strike and Second Motion to Strike therefore are denied.
Additionally, Plaintiff filed summary judgment motions on May 16, 2002 and June 12, 2002. Defendant's Objections to Plaintiff's Exhibits in Support of Plaintiff's Motion for Summary Judgment and Objections to Plaintiff's Exhibits in Support of Plaintiff's Second Motion for Summary Judgment set forth various objections to materials that Plaintiff filed with the summary judgment motions. Although Plaintiff Story filed these summary judgment motions, he did not file a response to Defendant Dallas County's summary judgment motion. Instead of treating Defendant's summary judgment motion as unopposed, the court determines that Plaintiff Story's pro se status and the interests of justice justify treating his summary judgment motions as an attempt to respond to Defendant Dallas County's summary judgment motion. Moreover, the court reaches the same result whether it excludes or considers these submissions and related materials. Defendant's Objections to Plaintiff's Exhibits in Support of Plaintiff's Motion for Summary Judgment and Objections to Plaintiff's Exhibits in Support of Plaintiff's Second Motion for Summary Judgment therefore are denied, and the court treats the contentions and materiels related to Plaintiff Story's summary judgment motions as a response to Defendant's summary judgment motion.
I. Facts and Procedural Background
Plaintiff Story sues Defendant Dallas County under 42 U.S.C. § 1983. He contends that Dallas County denied him medical care, and such denial deprived him of his substantive due process rights as guaranteed by the Fourteenth Amendment to the United States Constitution. Plaintiff's claim arises from a neck injury that he received while he was detained in a Dallas County Jail awaiting trial. He contends that Defendant Dallas County was aware of his neck injury but did not treat the injury. Defendant Dallas County contends that it was attentive to Plaintiff Story's medical needs, provided treatment to address those needs, and was not deliberately indifferent to Plaintiff's medical needs.
Plaintiff Story contends that the alleged deliberate indifference by Dallas County led to paralysis over portions of his body. The court does not know the extent of Story's paralysis; however, the court assumes that he has lost the use of his legs, as he is currently confined to a wheelchair. The record also is not clear at what point Story became paralyzed, but it is clear that the paralysis did not occur when he injured his neck, because a Dallas County jail nurse observed that he walked out of his cell on the day he was injured. See Appendix to Defendant's Motion for Summary Judgment at 24.
The court now sets forth the facts on which it relies in ruling on Defendant's summary judgment motion. Defendant Dallas County produces evidence that Plaintiff Story was injured at 5:30 a.m. on October 26, 1998, and the nurse on duty saw him shortly after his injury. That nurse ordered an X-ray and scheduled an examination with a jail physician. Plaintiff Story was examined by the jail physician at 11:00 a.m. the same day, and the physician diagnosed him with possible degenerative joint disease. He therefore was immediately transferred to Parkland Hospital for further evaluation. Following that evaluation, he remained at Parkland Hospital for treatment until October 27, 1998, and returned to the Dallas County Jail once the treatment was complete.
Plaintiff Story contends that he was not removed from his cell to be transferred to Parkland Hospital until 3:30 p.m., and that he was not x-rayed at Parkland Hospital until 11:30 p.m. He sets forth no competent summary judgment evidence to support this time-line of events. The court therefore accepts Defendant Dallas County's competent summary judgment evidence that he was seen by a jail physician at 11:00 a.m., and immediately transferred to Parkland Hospital for X-rays. Morever, even if Parkland Hospital did not actually x-ray him until 11:30 p.m., such fact does not establish, or raise a genuine issue of material fact, that Dallas County was deliberately indifferent to Plaintiff's medical needs.
On November 9, 1998, Plaintiff was again evaluated by a jail physician because he complained of neck pain. The physician referred him to Parkland Hospital for X-rays and a full evaluation by the Hospital's Neurosurgery Clinic, and he was also prescribed several medications to treat his condition and alleviate his pain.
On December 9, 1998, Plaintiff was again examined by a jail physician, and the physician noted that the range of motion in his neck was normal, reviewed his neurological exam and detected no abnormalities, continued his pain medications, and requested an expedited MRI appointment for him at Parkland Hospital. On December 28, 1998, an MRI was performed, and an appointment was scheduled for Plaintiff with Parkiand Hospital's Neurosurgery Clinic on January 27, 1999. On December 29, 1998, a jail physician requested that the Neurosurgery Clinic see him in an expedited fashion, and his appointment therefore was moved from January 27, 1999 to January 13, 1999. On January 13, 1999, he had surgery performed on his neck, and he remained at Parkland Hospital for treatment until January 26, 1999. He thereafter returned to Dallas County Jail, and was examined by a member of the jail medical staff and given a postoperative treatment program. He was transferred out of the Dallas County Jail in March 1999, but before he left he was referred to Parkland Hospital for two additional examinations in February and April 1999. In light of the foregoing, Defendant Dallas County moves for summary judgment dismissal of Plaintiff Story's denial of medical care claim.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis
As previously stated, Plaintiff contends that Dallas County jail personnel were deliberately indifferent to his medical needs as a pretrial detainee. Defendant contends that it provided Plaintiff with reasonable medical care and was not deliberately indifferent to his medical needs. The court agrees.
To recover for a denial of medical care for an episodic act or omission, a pretrial detainee must establish that the jail official "acted or failed to act with subjective deliberate indifference to the detainee's rights. . . ." Hare v. City of Corinth, Miss., 74 F.3d 633, 636 (5th Cir. 1996) (en banc). Negligent inaction by jail personnel does not rise to the level of deliberate indifference. See generally 74 F.3d at 645. Jail personnel must have actual knowledge of the risk of serious injury, and it is not enough that they should have known of the injury. Id. at 649. Accordingly, "the constitutional standard of conduct must step up from negligence — that [is] it must be more than mere or even gross negligence." Id. at 645.
Based on the briefing of Defendant Dallas County, the Dallas County Jail personnel responsible for Plaintiff Story apparently were aware of his injuries. Accordingly, the subjective awareness component of Plaintiff Story's denial of medical care claim is not at issue. The focus of Dallas County is that it was not deliberately indifferent to Story's serious medical needs, and it moves for summary judgment on this ground.
Defendant Dallas County is entitled to summary judgment on this ground, because even when viewing the summary judgment evidence in a light most favorable to Plaintiff Story, there is no evidence that it was deliberately indifferent to his medical needs. Indeed, the facts as previously set forth reflect that jail officials were quite attentive to Story's medical needs. Defendant Dallas County set forth competent summary judgment evidence by affidavits and medical records that the care and treatment it provided Plaintiff Story were reasonable. See Appendix to Defendant's Motion for Summary Judgment. The summary judgment evidence establishes that Defendant Dallas County ensured that Plaintiff Story received extensive care and treatment for his neck injury. The record establishes without cavil that jail personnel or officials were not deliberately indifferent to Story's medical needs. Not only has Plaintiff Story failed to bring forth evidence of deliberate indifference, he has not even brought forth evidence of negligence on the part of Dallas County officials. Accordingly, there simply is nothing in the record that creates a genuine issue of material fact that Defendant Dallas County violated Plaintiff Story's right to medical care. Defendant therefore is entitled to summary judgment dismissal of Plaintiff Story's cause of action for denial of medical care.
Defendant also contends that Plaintiff Story failed to show he was injured by a policy or custom of the County of Dallas. Although the court agrees, and Defendant therefore cannot be liable to Plaintiff, it need not address this contention, because if a plaintiff fails to raise a fact issue concerning the underlying constitutional violation, the governmental entity is not liable as a matter of law. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). In other words, if a plaintiff cannot establish an underlying constitutional violation, the alleged unconstitutional policy as a matter of law cannot be the basis of governmental liability. The issue of an unconstitutional policy therefore is irrelevant and "quite beside the point." See id.
IV. Motion for Appointment of Counsel
Although the court dismisses this action in light of Defendant's Motion for Summary Judgment, it addresses Plaintiff's Motion for Appointment of Counsel, filed October 25, 2000. This motion became moot when attorney Cary W. Schulman ("Schulman") entered an appearance on behalf on Plaintiff Story on June 14, 2001. Plaintiff's Motion for appointment of counsel therefore is denied as moot.
On October 30, 2001, the court granted Schulman leave to withdraw as Plaintiff Story's attorney of record. Story consented to the withdrawal and did not renew his motion for appointment of counsel. He instead prosecuted his interests in this case with relative effectiveness in that he was able to present arguments and submit materials that he believed supported his claim for denial of medical care. As a result, even if Plaintiff Story had renewed his motion for appointment of counsel, the relative simplicity of the legal issues in question and the manner in which Plaintiff Story prosecuted his claim would not have justified an appointment. See generally Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (holding that factors to be considered when appointing counsel are the type and complexity of the case, whether the plaintiff can adequately present his case; whether he can adequately investigate the case; and whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and cross examination).
Moreover, the lack of success of Plaintiff's claim is not attributable to any shortcoming in the presentation of his claim. The underlying facts related to his injury simply are not sufficient to support a claim for denial of medical care. Plaintiff Story acknowledges that Dallas County provided medical care to him, as he concedes that jail personnel examined him when he was injured and provided treatment following his injury. As a result, even if Plaintiff Story had been represented by counsel, the summary judgment evidence and these acknowledgments overwhelmingly indicate that Defendant Dallas County provided him with appropriate care and treatment. In light of the strength of this evidence, the court cannot foresee how Plaintiff Story would have fared better had he been represented by counsel at all times during the process. Accordingly, it is of no moment that Plaintiff Story did not renew his motion for appointment of counsel or that he was not represented by counsel in responding to Defendant's summary judgment motion.
Apparently, there was some debate between Plaintiff Story and his prior counsel of record whether the denial of medical care action should be pursued at all. See Plaintiff's Motion for Withdrawal of Counsel at 1.
V. Conclusion
For the reasons stated herein, Defendant's Objections to Plaintiff's Exhibits in Support of Plaintiff's Motion for Summary Judgment and Objections to Plaintiff's Exhibits in Support of Plaintiff's Second Motion for Summary Judgment are denied. Defendant's Motion to Strike and Second Motion to Strike are denied. Plaintiff's Motion for Appointment of counsel is denied as moot, and Defendant's Motion for Summary Judgment is granted. Accordingly, Plaintiff Story's cause of action for denial of medical care is dismissed with prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.
With respect to costs, Fed.R.Civ.P. 54(d)(1) provides that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Rule 54(d) creates a strong presumption that the prevailing party will be awarded costs. Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985). In this case, however, Plaintiff Story, the losing party, is prose and proceeding in forma pauperis. Story does not have the means to pay costs. Under these circumstances, the court does not believe imposition of costs against Story is warranted. Accordingly, each party shall bear his or its own costs.
It is so ordered.