Opinion
Civil Action No. 3:02-CV-0455-L.
June 22, 2004
MEMORANDUM OPINION AND ORDER
Before the court is Defendants' Motion for Summary Judgment, filed May 7, 2004. Plaintiff Ben Anderson ("Plaintiff") did not respond to the motion for summary judgment. After careful consideration of the motion, evidence, record and applicable law, the court grants Defendants' Motion for Summary Judgment as to Defendant Dr. J. Capps ("Dr. Capps"), however, for the reasons stated herein, dismisses without prejudice the action against Defendant Correctional Officer NFN Williams ("Williams"). I. Factual and Procedural Background
Plaintiff's failure to respond does not, of course, permit the court to enter a "default" summary judgment. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988); see also Resolution Trust Corp. v. Starkley, 41 F.3d 1018, 1022-23 (5th Cir. 1995). Although Plaintiff did not respond to Defendants' motion, his complaint and responses to the magistrate judge's questionnaire are verified and thus may be considered by the court.
Within Defendants' Motion for Summary Judgment, Williams moves to dismiss this action against him because of procedural deficiencies. The court agrees that dismissal is warranted; however, dismissal by way of summary judgment for procedural deficiencies is inappropriate, as summary judgment is a decision on the merits.
This is a pro se inmate civil rights case brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). At the time of the incidents giving rise to this lawsuit, Plaintiff was incarcerated at the Federal Detention Center in Seagoville, Texas ("FDC Seagoville"). On May 22, 2000, Plaintiff arrived at FDC Seagoville as a pretrial detainee. Approximately six years earlier in 1994, Plaintiff fractured his right tibia and subsequently underwent multiple surgeries on his right leg. At the time of his arrival at FDC Seagoville, Plaintiff had a cast on his right lower leg and was using a cane. The staff at FDC Seagoville provided Plaintiff with a lower-bunk bed permit and issued him crutches. Plaintiff contends that for approximately two months, Williams, a correctional officer, assigned him to a second-floor cell.
On May 30, 2000, Plaintiff visited the FDC's Health Services clinic ("the clinic") and informed the medical staff that he had removed his cast because it was cutting off the circulation to his foot. Plaintiff also informed the medical staff that prior to his incarceration, he had received medical treatment for his leg at Parkland Hospital in Dallas, Texas ("Parkland"). The medical staff documented multiple bony deformities in the lower third of Plaintiff's right leg with multiple surgical scars. A physician's assistant decided to review Plaintiff's medical records from Parkland before recasting his leg; however, Plaintiff was prescribed anti-inflammatory medication.
On June 1, 2000, Plaintiff returned to the clinic and complained of leg pain at night and skin irritation on the leg from which the cast was removed. He was prescribed another type of anti-inflammatory medication, an anti-itch medication, and a skin cream. On June 6, 2000, Plaintiff received prescriptions for pain and a refill for the anti-itch medication.
On June 7, 2000, Plaintiff again complained about the injury to his right leg. Specifically, he wrote on the injury assessment form that a FDC staff member, identified in this lawsuit as Williams, woke him up and ordered him to clean his cell and that he slipped on the floor while mopping, hitting his leg on a locker. The physician's assistant observed a small bruise on Plaintiff's right lower leg, but no laceration. The physician's assistant cleaned the area of the bruise and recommended that Anderson apply an ice pack, continue taking prescribed pain medication, and return to the clinic as necessary.
Two days later, on June 9, 2000, Dr. Capps, the Clinical Director at the Federal Correctional Institution and FDC in Seagoville, ordered x-rays of Plaintiff's lower leg which were taken on June 12, 2000. The x-rays indicated deformities with evidence of healed angulated fractures of the tibia and fibula, the presence of a separated intramedullary wire in the tibia, and generalized osteoporosis of the bones.
On June 27, 2000 and July 3, 2000, Plaintiff visited the clinic to obtain refills for his anti-itch medication. He did not complain about any problems related to the bruising on his leg. On July 12, 2000, Dr. Capps again examined Plaintiff. From July 21, 2000 until November 14, 2000, Plaintiff made five visits to the clinic, during which he was seen by a physician's assistant and received refills for his medications. During his November 14, 2000 visit, Plaintiff requested an appointment with Dr. Charles Reinert ("Dr. Reinert"), the orthopedic specialist who treated him at Parkland before his incarceration. Six days later, Dr. Capps wrote a consultation request for Plaintiff to be examined by a different orthopedic specialist, Dr. Charles Mitchell ("Dr. Mitchell"). On November 30, 2000, Dr. Mitchell examined Plaintiff and reviewed his x-rays. As a result, Dr. Mitchell recommended amputation to which Plaintiff was opposed.
On December 1, 2000, Dr. Capps told Plaintiff that he was attempting to contact Dr. Reinert, and Plaintiff agreed to wear a padded cast until he could be evaluated by Dr. Reinert. Plaintiff was not given a cast until December 1, 2000 because he had removed his cast in May 2000 against medical advice, refused to wear braces and splints, and complained of a skin rash on his leg.
On December 8, 2000, Dr. Mitchell spoke with Dr. Reinert who said that he would not accept Plaintiff as a patient because of Plaintiff's noncompliance with treatment. On December 13, 2000, Plaintiff visited the clinic and was examined by a physician's assistant who prescribed additional pain medication after consulting with Dr. Capps. On June 27, 2001, Dr. Mitchell again examined Plaintiff, provided him with a new cast and recommended amputation. On June 28, 2001, after complaining about tightness in his new cast, a physician's assistant removed Plaintiff's new cast, cleaned his leg, applied another cast and refilled a prescription for one of his pain medications. On September 7, 2001, Dr. Capps again examined Plaintiff.
From December 27, 2000 until December 20, 2001, Plaintiff was given refills for his pain medications on seven occasions, and from January 10, 2001 until January 2, 2002, he was provided new casts on seven occasions. On January 2, 2002, Plaintiff was transferred to the United States Penitentiary in Beaumont, Texas for non-medical reasons.
On March 4, 2002, Plaintiff filed suit against Williams, Dr. Capps, and Sam L. Pratt ("Pratt"), the warden at FDC Seagoville. Specifically, Plaintiff contends that Williams, Dr. Capps and Pratt were deliberately indifferent to his pre-existing leg injury in violation of the Fifth and Eighth Amendments and that their conduct violated four policy statements of the Bureau of Prisons and the Code of Federal Regulations. On May 29, 2002, the court dismissed with prejudice as frivolous Plaintiff's claims against Pratt and found that Plaintiff arguably raised claims for deliberate indifference under the Fifth and Eighth Amendment against Williams and Dr. Capps (collectively "Defendants"). Accordingly, the court ordered process to be served on Defendants. The process on Williams was returned unexecuted on June 4, 2002 because there were several employees at FDC Seagoville with the surname of Williams.
Deliberate indifference claims made by pretrial detainees are cognizable under the due process clause, while similar claims made by convicted prisoners are cognizable under the Eighth Amendment. Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir. 2000) (citing Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir. 1986)). It appears that during the relevant time period, Plaintiff was incarcerated as both a pretrial detainee and a convicted prisoner. See Def. App. at 2 ¶ 3 and Resp. to M.J.'s Questionnaire, Question No. 1. That Plaintiff was incarcerated as both a pretrial detainee and a convicted prisoner is of no moment, as the same standard is used for each. See fn.3, infra.
On August 5, 2002, Defendants moved to dismiss Plaintiff's claims for, among other reasons, his failure to effect service on Williams within 120 days of filing the complaint. By order, dated December 27, 2002, the court, among other things, directed Plaintiff to provide sufficient information with respect to the identity of Williams no later than February 21, 2003 so that service of process could be effected. Plaintiff was admonished that failure to do so would result in dismissal of this action without prejudice as to Defendant Williams. As of this date, Plaintiff has failed to provide the requested information, and thus Williams has not been served. Defendants subsequently filed an answer. Defendants now move for summary judgment.
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. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
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
Plaintiff contends that Dr. Capps and Williams were deliberately indifferent to the medical needs relating to his pre-existing leg injury. Specifically, Plaintiff contends that Dr. Capps was deliberately indifferent by failing to x-ray or recast his leg for approximately six months and failing to administer the proper pain medication or antibiotics. Plaintiff further contends that Williams was deliberately indifferent by assigning him to a second-floor cell and ordering him to mop his cell.
Dr. Capps counters that he is entitled to qualified immunity because he provided Plaintiff with reasonable medical care and was not deliberately indifferent to his medical needs. Dr. Capps primarily couches his motion for summary judgment as one based on qualified immunity; however, he also sets forth argument and evidence which establishes that he did not act with deliberate indifference to Plaintiff's medical care. Williams counters that he should be dismissed from this case, as Plaintiff failed to perfect service on him.
A. Dr. Capps
A court need not undergo a qualified immunity analysis before addressing the merits of a claim when the evidence establishes that the movant is entitled to judgment as a matter of law on the merits. See Barker v. Norman, 651 F.2d 1107, 1124 (5th Cir. 1981) ("We emphasize, too, that if the defendant has established beyond dispute that he did not engage in the complained-of conduct, then summary judgment is appropriate. A summary judgment on these grounds, however, has nothing to do with the qualified immunity defense; rather, it is based on the plaintiff's inability to prove the facts essential to recovery[,] i.e., that the officer acted in a manner presumptively violative of the plaintiff's rights."); see also Quives v. Campbell, 934 F.2d 668, 669 671 (5th Cir. 1991) Fifth Circuit affirmed decision of district court, which granted defendants' motion for summary judgment on the basis of qualified immunity, on the merits without reaching the issue of qualified immunity.). In other words, if no constitutional violation is alleged or established, it is unnecessary to address the issue of qualified immunity.
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, 74 F.3d at 636. In other words, Plaintiff must show that Dr. Capps was aware of a substantial risk of serious harm and failed to take reasonable measures to abate that risk. See id. at 649 (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)). Negligent inaction by jail personnel does not rise to the level of deliberate indifference. See generally id. 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.
The deliberate indifference standard is used for measuring both a pretrial detainee's due process rights and a convicted prisoner's Eighth Amendment rights to be secure in their basic human needs. Hare v. City of Corinth, 74 F.3d 633, 647 (5th Cir. 1996) ( en banc) ("Since the Supreme Court has consistently adhered to a deliberate indifference standard in measuring a convicted prisoners' Eighth Amendment rights to medical care and protection from harm, we adopt a deliberate indifference standard in measuring the corresponding set of due process rights of pretrial detainees.")
Based on Dr. Capps' declaration, he was aware of Plaintiff's pre-existing leg injury. Accordingly, the subjective awareness component of Plaintiff's denial of medical care claim is not at issue. The focus is therefore whether Dr. Capps was deliberately indifferent to Plaintiff's serious medical needs.
Dr. Capps is entitled to summary judgment on this ground because, even when viewing the summary judgment evidence in a light most favorable to Plaintiff, there is no evidence that Dr. Capps was deliberately indifferent to Plaintiff's medical needs. The facts as previously set forth reflect that Dr. Capps and other FDC Seagoville medical personnel were quite attentive to Plaintiff's medical needs. Dr. Capps set forth competent summary judgment evidence that the care and treatment he provided Plaintiff were reasonable. Specifically, the summary judgment evidence establishes that Dr. Capps or his medical staff ensured that Plaintiff received care and treatment for his leg injury and resulting pain. By way of example, between June 1, 2000 until January 2, 2002, Plaintiff was examined by Dr. Capps or his medical staff approximately fifteen times and was examined by an orthopedic specialist twice. Accordingly, there simply is nothing in the record that creates a genuine issue of material fact that Dr. Capps was deliberately indifferent to Plaintiff's medical care. Dr. Capps therefore is entitled to judgment as a matter of law on this claim.
At most, one could argue that Dr. Capps arguably was negligent; however, even if true, negligent conduct is inadequate to establish a constitutional violation of a denial of medical care. See Hare, 74 F.3d at 645.
B. Qualified Immunity As an Alternative Basis for Summary Judgment
The court has determined that Dr. Capps is entitled to summary judgment on the merits; however, even if Dr. Capps is not entitled to summary judgment on the merits of Plaintiff's denial of medical care claim, he is entitled to summary judgment on the basis of qualified immunity.
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Dr. Capps has pleaded this defense.
In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999), citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiff's claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr v. Lyford, 171 F.3d at 339; Evans v. Ball, 168 F.3d at 860; Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1305 (5th Cir. 1995), cert. denied, 517 U.S. 1191 (1996).
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson v. Creighton, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
In Anderson v. Creighton, 483 U.S. at 641, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster v. City of Lake Jackson, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson v. Creighton, 483 U.S. at 640. For an official, however, to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce v. Smith, 117 F.3d at 882; Stefanoff v. Hays County, 154 F.3d at 525.
In conducting the three step analysis, the court determines that Plaintiff has alleged a violation of a constitutional right, namely, denial of medical care; and he has also established that the right was clearly established at the time of the incidents made the basis of this lawsuit. See generally Hare, 74 F.3d 633 (discussing constitutional right of prisoners and pretrial detainees to be secure in their basic human needs, including the right to medical care). Plaintiff, however, has not established or raised a genuine issue of material fact that Dr. Capps's conduct on the occasions in question were objectively unreasonable. Based upon the medical attention received by Plaintiff, as set fort earlier in this opinion, a reasonable public health official standing in the shoes of Dr. Capps could have believed that Dr. Capps's conduct was lawful in light of clearly established law and the information he possessed at the time he or his staff treated or provided medical assistance to Plaintiff. Even if public health officials of reasonable competence could disagree on the conduct or action taken by Dr. Capps, immunity should be recognized. Moreover, Plaintiff has not shown that Dr. Capps was plainly incompetent or knowingly violated the law. Accordingly, Dr. Capps is entitled to qualified immunity, which is an alternative basis for granting summary judgment in his favor.
C. Correctional Officer Williams
Williams contends that Plaintiff failed to comply with the court's December 27, 2002 order, and therefore Plaintiff's claim against him should be dismissed. On August 5, 2002, Defendants moved to dismiss Plaintiff's claims for, among other reasons, his failure to effect service on Williams within 120 days of filing the complaint. By order, dated December 27, 2002, the court, among other things, directed Plaintiff to provide sufficient information with respect to the identity of Williams no later than February 21, 2003 so that service of process could be effected. Plaintiff was admonished that failure to do so would result in dismissal of this action without prejudice as to Williams pursuant to Fed.R.Civ.P. 41 (b).
As of this date, Plaintiff has failed to provide the requested information, and thus Williams has not been served. Although Williams filed an answer in this case, he did so after first asserting the defect in service of process. The defense of insufficiency of service of process is waived if not raised in a pre-answer motion or, if no motion is made, an answer. See Golden v. Cox Furniture Mfg. Co., Inc., 683 F.2d 115, 118 (5th Cir. 1982); see also Fed.R.Civ.P. 12(h)(1). Plaintiff has not only failed to effect service on Williams but has also failed to comply with the court's December 27, 2002 order. Williams is therefore entitled to dismissal of this action against him. See Fed.R.Civ.P. 4(m) and 41(b).
When Plaintiff failed to comply with the court's order, Williams should have moved for dismissal pursuant to Fed.R.Civ.P. 4(m) and 41(b).
IV. Conclusion
Plaintiff has failed to raise genuine issues of material fact with respect to his deliberate indifference claim against Defendant Dr. J. Capps; this claim therefore fails as a matter of law. Accordingly, the court grants Defendants' Motion for Summary Judgment as to Defendant Dr. J. Capps. Plaintiff's claim against Defendant Dr. J. Capps is therefore dismissed with prejudice. Further, Plaintiff has failed to effect service on Defendant Williams and has failed to comply with the court's order to provide more information regarding Williams' identity so that service can be effected. Accordingly, Plaintiff's claim against Defendant Correctional Officer Williams is dismissed without prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.
It is so ordered.