Opinion
CIVIL ACTION NO. 1:02-CV-085-C
January 20, 2004
ORDER
Plaintiff, Rhet Barker, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on May 2, 2002, against Warden Duke, Warden Cook, Major Green, Officer Wilke, Dr. Lehrer, and John Doe. Plaintiff alleged that Defendant Wilke used excessive force against him, and that Defendant Lehrer failed to treat him for his medical condition known as Tourette Syndrome. He also challenged certain prison disciplinary cases he received while incarcerated.
Plaintiff sued Defendants Duke, Cook, and Green in their supervisory capacities. On May 21, 2003, all claims against Defendants Duke, Cook, and Green were dismissed, and judgment was entered as to these Defendants.
Defendant John Doe was later identified as Sgt Hawkins, an investigator with regard to one of the disciplinary cases being challenged. All claims challenging the disciplinary cases were dismissed on May 21, 2003, under Heck v. Humphrey, 512 U.S. 477, 487 (1994), and all claims against Defendant Hawkins were also dismissed. Judgment was entered as to all claims against Defendant Hawkins.
The two remaining Defendants — Defendants Lehrer and Wilke — were ordered to file an answer and their joint answer was filed on June 27, 2003, Thereafter, both Defendants filed motions for summary judgment, together with summary judgment evidence. Plaintiff has not responded to either motion.
The Court has now considered the motions for summary judgment filed by Defendants Lehrer and Wilke, the summary judgment evidence presented, Plaintiffs sworn complaint, including supplemental complaints, and Plaintiffs sworn testimony given at the evidentiary hearing held before the United States Magistrate Judge pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
The Fifth Circuit has summarized the summary judgment standard in Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999):
The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine issue of material fact. If the moving party carries its initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine issue of material fact. This showing requires more than some metaphysical doubt as to the material facts. While the party opposing the motion may use proof filed by the movant to satisfy its burden, only evidence not argument, not facts in the complaint — will satisfy the burden.Surge, at 465 [internal citations and quotations omitted].
"A dispute about a material fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "In making its determination, the court must draw all justifiable inferences in favor of the nonmoving party." Id. (citation omitted).
"Disputed facts preclude summary judgment if the evidence is such that a reasonable jury could return a verdict for the nonmovant. In determining whether summary judgment was appropriate, courts must view the inferences to be reasonably drawn from the underlying facts in the record in the light most favorable to the non-movant." Evans v. Ball, 168 F.3d 856, 859 (5th Cir. 1999) [internal citations omitted].
Plaintiff alleges that Defendant Lehrer failed to treat him for his medical condition known as Tourette Syndrome. The Court has considered Plaintiffs sworn pleadings and his sworn testimony given at the Spears hearing, together with the summary judgment evidence presented by Defendant Lehrer. Defendant has supported his motion for summary judgment with sworn affidavits from Lek Tratnik, M.D. and A. Nafrawi, M.D, Additional summary judgment evidence consists of relevant portions of Plaintiff's TDCJ grievance file with business records affidavit, relevant portions of Plaintiff's psychiatric records with business records affidavit, and an affidavit from Susan Schumacher, Assistant Administrator TDCJ Offender Grievance, Plaintiff has not responded to Defendant Lehrer's motion for summary judgment.
Plaintiff was incarcerated in the Robertson Unit when the alleged complaint about denial of medical treatment arose. The summary judgment evidence shows that Plaintiff did not exhaust his administrative claims with regard to the medical treatment by Defendant Lehrer.
A prisoner must exhaust prison grievance remedies before he can pursue a civil rights claim pursuant to 42 U.S.C. § 1983. Porter v. Nussle, 534U.S. 516, 524 (2002) (The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001) ("an inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues"); Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001) (A prisoner is required "to exhaust `available "remedies', whatever they may be." A "failure to do so prevents him from pursuing a federal lawsuit at this. time.")
The Court finds that Plaintiff has failed to exhaust his administrative remedies regarding his medical claims against Defendant Lehrer. Even if Plaintiff had exhausted his claims against Defendant Lehrer, his claims are without merit
Not every claim of inadequate or improper medical treatment is a violation of the Constitution. Estelle v. Gamble, 429 U.S. 97, 105-107 (1976). "In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 106.
The Supreme Court has defined deliberate indifference as "subjective recklessness" and
[a] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference,Farmer v. Brennan, 511 U.S. 825, 837 (1994).
"It is firmly established that negligent or mistaken medical treatment OF judgment does not implicate the eighth amendment and does not provide the basis for a civil rights action." Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993).
"Unsuccessful medical treatment does not give rise to a § 1983 cause of action" nor does "mere negligence, neglect or medical malpractice." Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001).
An inmate's disagreement with his medical treatment does not give rise to a constitutional claim. Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992).
A "delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference, which results in substantial harm." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
"[A]lthough inadequate medical treatment may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not." Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999). Plaintiff must demonstrate that defendants "refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged hi any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Deliberate indifference to medical needs will violate the Eighth Amendment only if those needs are "serious." Hudson v. McMillian, 503 U.S. 1, 9 (1992). 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); Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1 st 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").
The summary judgment evidence presented by Defendant Lehrer indicates that Tourette Syndrome is not a condition that threatens to cause serious medical needs. See sworn affidavit from Dr. Tratnik, a psychiatrist, who states that Tourette Syndrome is a neurological condition that can be controlled by medication and is not a life-threatening disease or disorder. The summary evidence also shows that Plaintiff did not always take the medication prescribed for his condition and did not think the medication helped.
The Court has reviewed the summary judgment evidence and has considered the Plaintiffs sworn pleadings and his testimony, given under oath, at the Spears hearing. The summary judgment evidence indicates that Plaintiff has failed to exhaust his administrative remedies as to his claims against Defendant Lehrer. Further, Plaintiff has failed to show that Defendant Lehrer was deliberately indifferent to a serious medical need.
Plaintiff has alleged mat Defendant Wilke used excessive force against him while he was incarcerated in the Robertson Unit.
The Supreme Court in Hudson v. McMillian, supra, held that a correctional officer's use of excessive force could constitute cruel and unusual punishment of a prisoner, contrary to the Eighth Amendment. A court is to determine "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7.
The Fifth Circuit in Hudson, on remand from the Supreme Court, stated that the factors to be considered include "1. the extent of the injury suffered; 2. the need for the application of force; 3, the relationship between the need and the amount of force used; 4. the threat reasonably perceived by the responsible officials; and 5. any efforts made to temper the severity of a forceful response." Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992).
"[T]o succeed on an excessive force claim, the plaintiff bears the burden of showing: `(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable." Goodson v. City of Corpus Christi, 202 F.3d 730, 740) (5th Cir. 2000) (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)).
With regard to the physical injury requirement, the Fifth Circuit has found mat "the law in this Circuit is that to support an Eighth Amendment excessive force claim a prisoner must have suffered from the excessive force a more than de minimis physical injury, but there is no categorical requirement that the physical injury be significant, serious, or more than minor." Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999). "[Without] this de minimis threshold, every `least touching' of a [prisoner] would give rise to a section 1983 claim. . . . Not only would such a rule swamp the federal courts with questionable excessive force claims, it would also constitute an unwarranted assumption of federal judicial authority to scrutinize the minutiae of state detention activities." Riley v. Dorton, 115 F.3d 1159, 1167 (5th Cir. 1997).
Not "every malevolent touch by a prison guard gives rise to a federal cause of action." Hudson v. McMillian, 503 U. S, at 6.
Under 42 U.S.C. § 1997e(e), a prisoner is prohibited from recovering for mental or emotional injury without a prior showing of physical injury.
Plaintiff claims that on February 11, 2002, upon returning from the chow hall, Defendant Wilke hit Plaintiff with a closed fist on the left side of his forehead. At the Spears hearing, Plaintiff testified that he had a lump" on his forehead after the assault. He did not go to the infirmary until three days later. The authenticated medical records note:
The patient was seen in the clinic on 14 February 02 at 5:27 a.m. when he alleged to the nurse that he was assaulted three days ago. Mr. Barker claims the officer hit him on the left forehead just above the eyebrow. The staff recorded no obvious injury notes. No deformity palpated and no treatment was needed.
Dr. Nafrawi testified in his sworn affidavit that there was no evidence of an injury to support Plaintiffs allegations of assault or use of force.
The conclusion of the internal investigation was that the "investigation did not produce any credible evidence or witnesses to support the allegation that Officer Wilke used excessive/unecesssary Use of Force against Offender Barker by pushing him or punching him in the head with his fist"
The Court has reviewed the summary judgment evidence and has considered the Plaintiffs sworn pleadings and his testimony, given under oath, at the Spears hearing. The summary judgment evidence indicates that Plaintiff has failed to show that Defendant Wilke used excessive force against him; and even if Defendant Wilke assaulted him, Plaintiff has failed to show that such force was applied "maliciously and sadistically to cause harm" or that he suffered more than a de minimis injury.
The Court finds the following:
(1) Defendant Lehrer's Motion for Summary Judgment should be granted and Plaintiffs claims against Defendant Lehrer should be dismissed as frivolous.
(2) Defendant Wilke's Motion for Summary Judgment should be granted and Plaintiffs claims against Defendant Wilke should be dismissed as frivolous.
(3) Any pending motions are denied.
SO ORDERED,
The trial setting for April 5, 2004, is hereby vacated.