Opinion
Civil Action No. 5:03-CV-083-BG.
August 20, 2004
ORDER OF DISMISSAL
Plaintiff Lonnie Ray Warren filed his civil rights complaint pursuant to 42 U.S.C. § 1983 against Defendants David Gutierrez, Sheriff, Lubbock County Jail; Sheila Pitts, LVN; and Vernon Farthing, M.D.
Warren complains that on March 7, 2003, he was injured while unloading five gallon buckets of paint at the Lubbock County Jail. He was taken to the Lubbock County Jail infirmary and was diagnosed as having a strained muscle in his back. He disagrees with this diagnosis because Dr. Farthing could not explain the lack of pain before the injury and so much pain afterward. He alleges he should have had a full medical evaluation. Warren seeks immediate treatment by a specialist; five million dollars for negligent treatment, pain and suffering; and lifetime medical and disability coverage for his back.
After reviewing the complaint, Warren's testimony at the evidentiary hearing and the authenticated records provided by Lubbock County, the court is of the opinion that this action should be and is hereby dismissed.
On July 10, 2003, this court conducted a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Warren testified that he arrived at the Lubbock County Jail on July 12, 2002. Prior to his accident with the paint on March 7, 2003, he had strained his back the week before moving a heavy load but felt like it would be alright. He did no heavy lifting the following week, and then this accident happened. He agreed that he was seen by the medical staff on the date of his accident, bed rest and pain medications were prescribed, and he was put on first doctor call; that he was seen on March 11, 2003 and was advised to continue his ibuprofen; that on March 17, 2003, x-rays were taken of his lower back; that on March 19, 2003, Dr. Farthing diagnosed him as having disc disease and put him on work restriction for 90 days; that on April 16, 2003, his medication was changed to Lortab; that on April 18, 2003 an MRI was performed on his back; that on April 24, 2003, the MRI results were reviewed with him and he was told not to lift heavy things and to continue his current medication; and that on May 14, 2003, he was examined by Dr. Farthing and cleared for release to general population.
The court is required to dismiss any action brought with respect to prison conditions under section 1983 or any other federal law by a prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C. § 1997e; see also 28 U.S.C. § 1915A (requiring the court to review complaints in civil actions in which a prisoner seeks redress from a governmental entity, officer, and employee, and to dismiss complaints or any portion of them on the same bases described in 42 U.S.C. § 1997e) and 28 U.S.C. § 1915(e)(2) (requiring dismissal at any time of in forma pauperis cases for the same reasons). A claim may be dismissed as frivolous if it lacks an arguable basis in fact or law. Nietzke v. Williams, 490 U.S. 319, 325 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). An evidentiary hearing may be used to assist the court in determining whether cases should be dismissed or allowed to proceed to trial. Spears, 766 F.2d 179. Dismissals can be based on authenticated prison records. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
Deliberate indifference to a serious medical need of a prisoner, which states a cause of action under § 1983, constitutes the "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A delay in medical care can only amount to an Eighth Amendment violation if there has been a deliberate indifference, resulting in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). However, a complaint alleging negligence in treatment does not state a constitutional claim. See Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (citation omitted).
Warren complains that his back injury was misdiagnosed. His situation as he describes it is similar to that of the plaintiff in Estelle v. Gamble, 429 U.S. at 107: "Respondent contends that more should have been done by way of diagnosis and treatment . . . ." The Supreme Court rejected this argument and said that whether additional or other forms of treatment were indicated was a "classic example of a matter for medical judgment. A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act." Id. (footnote omitted).
Similarly, in Norton v. Dimazana, 122 F.3d 286 (5th Cir. 1997), the Fifth Circuit Court of Appeals noted that the prisoner had been "afforded extensive medical care by prison officials"; the court then rejected the prisoner's contention "that medical personnel should have attempted different diagnostic measures or alternative methods of treatment." Id. at 292. "Disagreement with medical treatment does not state a claim for Eighth Amendment indifference to medical needs." Id. (citations omitted). Incorrect diagnosis or unsuccessful treatment is insufficient to establish deliberate indifference. See, e.g., Johnson v. Treen, 759 F.2d 1236, 1238-39 (5th Cir. 1985). "Further, delay is medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference, which results in substantial harm." Mendoza, 989 F.2d at 195.
Based on the foregoing, it is, therefore,
ORDERED that this civil rights complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1)-(2). See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
Any pending motions are denied as moot.
This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915(g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997).
A copy of this order shall be mailed to all parties appearing pro se, to any attorney of record, and to John Grace, Assistant District Attorney, Lubbock County Courthouse, Post Office Box 10536, Lubbock, Texas 79408.
Judgment shall be entered accordingly.