Opinion
7:00-CV-156-R.
December 4, 2001.
ORDER OF DISMISSAL
This is an action filed pursuant to 42 U.S.C. § 1983 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice ("TDCJ") in Iowa Park, Texas. Plaintiff claims that Defendant Norwood used excessive force against him when he sprayed Plaintiff with a chemical agent in an effort to remove him from his cell at the Allred Unit. Complaint ¶ V. Bradshaw alleges that he was, thereafter, denied medical care for the burning pain and other symptoms associated with the chemical agent and that a false disciplinary action was brought against him. Id. He also seeks monetary damages against the unknown manufacturer of the chemical agent on grounds of negligence. Id.
"To prevail on an eighth amendment excessive force claim, a plaintiff must establish that force was not `applied in a good-faith effort to maintain or restore discipline, [but] maliciously and sadistically to cause harm' and that he suffered an injury." Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir. 1996) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999 (1992)).
In the case at bar, Plaintiff states no facts which would establish that the chemical agent was used by Defendant Norwood maliciously and sadistically in an effort to cause harm. See Plaintiff's Answer to the Court's Question No. 5. Plaintiff concedes that he refused to leave his cell. Id. He argues that Norwood should have engaged in negotiations prior to using the chemical agent and he states that, if he had known that a chemical agent would be used, he would have "simply left the cell." Id.; Plaintiff's Answer to the Court's Question No. 11.
Assuming the truth of Plaintiff's factual allegations, the use of force, applied only after Plaintiff refused to move out of his cell and accept a new housing assignment, was clearly justified. In situations such as this, "[prison officials] are entitled to wide-ranging deference." See Baldwin v. Stalder, 137 F.3d 836, 840 (5th Cir. 1998) (finding that the use of mace to quell a disturbance caused by inmates on a bus did not constitute excessive force). "The amount of force that is constitutionally permissible . . . must be judged by the context in which that force is deployed." Id. (quoting Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996)). The use of mace or tear gas does not constitute cruel and unusual punishment when reasonably necessary to subdue a recalcitrant prisoner. Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 360 (1975); see Williams v. Hoyt, 556 F.2d 1336, 1339-40 (5th Cir. 1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1530 (1978) (affirming jury verdict for the defendants where evidence was sufficient to show that mace was used only for the control of unruly prisoners and was, therefore, not excessive). Plaintiff clearly states that he notified Allred Unit officials that he did not wish to move to a new prison building. Plaintiff's Answers to the Court's Questions No. 5, 11 19. He thereafter refused to move. Thus, Plaintiff cannot prevail on his excessive force claim.
Plaintiff claims that, as a result of the use of a chemical agent, he suffered burning and stinging skin, shortness of breath, temporary blindness, uncontrollable twitching of the eye, blurred vision, irritation and dryness of the nose and throat, blistering skin, rapid heart beat, mental anguish, shock and fear. Plaintiff's Answer to the Court's Question No. 7. Bradshaw claims that the unknown nurse denied him medical care for these injuries. Complaint ¶ V.
In order to state a colorable claim for the denial of medical care under the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). "Deliberate indifference" under the Eighth Amendment occurs only where a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, it is well established that negligent or erroneous medical treatment or judgment does not provide a basis for a § 1983 claim. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). As long as jail medical personnel exercise professional medical judgment, their behavior will not violate a prisoner's constitutional rights. See Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S.Ct. 2452, 2461-62 (1982). A disagreement over the appropriate medical treatment constitutes, at most, a possible claim of medical malpractice appropriately addressed under state law. E.g., Estelle v. Gamble, 429 U.S. at 107-08, 97 S.Ct. at 293; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
In the case at bar, Plaintiff was given the opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). However, he failed to state facts which would demonstrate that he was denied medical care at the Allred Unit. Plaintiff claims that the unknown nurse "undoubtedly approved the use of chemical agents." Plaintiff's Answer to the Court's Question No. 10. He states that the nurse examined him immediately after the use of force but failed to ask him any questions about the effects of the chemical. Id. He claims that the nurse erroneously determined that he had no injuries. Id. Although Plaintiff disagrees with the nurse's determination, such a disagreement does not rise to the level of a civil rights violation. Indeed, Plaintiff concedes that he did not seek any additional medical care for his alleged injuries at the time of the incident. See Plaintiff's answer to the Court's Question No. 8. His conclusory allegation that the nurse's determination was erroneous is insufficient to maintain a civil rights action.
Plaintiff claims that wrongful disciplinary action was taken against him for refusing to accept a cell assignment. Complaint ¶ V. This claim, if true, would necessarily imply the invalidity of the disciplinary action and is, therefore, currently barred under the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). See Edwards v. Balisok, 520 U.S. 641, 646-48, 117 S.Ct. 1584, 1588-89 (1997) (holding that a claim based on allegations that would necessarily imply the invalidity of a disciplinary hearing is not cognizable in a civil rights action unless the disciplinary action has been reversed, expunged or otherwise invalidated).
Similarly, Plaintiff s claims against the unknown manufacture of the chemical agent are without merit. Claims grounded in negligence are not actionable under 42 U.S.C. § 1983. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986). Moreover, 42 U.S.C. § 1983 affords redress only for conduct committed by an entity acting under color of state law and does not ordinarily involve conduct of a private corporation. See Thibodeaux v. Bordelon, 740 F.2d 329 (5th Cir. 1984). Plaintiff has failed to set forth a claim which would indicate that the unknown manufacturer acted under color of state law. See Complaint ¶ V.
To the extent that Plaintiff seeks civil redress against the unknown chemical manufacturer for his alleged injuries under state substantive law, his claims shall be dismissed. When a complaint presents no federal question, 28 U.S.C. § 1332 requires complete diversity of citizenship and $75,000 in controversy to invoke the jurisdiction of a federal court. Plaintiff has failed to plead diversity of citizenship. Complaint ¶ IV.A B. Moreover, Plaintiff does not make a claim for damages in excess of $75,000. Complaint ¶ V. Because there is no apparent diversity of citizenship and because the amount in controversy appears insufficient, Plaintiff's complaint, construed as a diversity action, shall be dismissed for lack of jurisdiction.
A district court may dismiss a complaint filed in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is "based on an indisputably meritless legal theory." Nietzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis in law.
IT IS THEREFORE ORDERED that Plaintiff's civil rights claims are hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
IT IS FURTHER ORDERED that Plaintiff's complaint, liberally construed as a diversity action, is hereby dismissed without prejudice for lack of jurisdiction pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure.
The Clerk of Court shall transmit a true copy of this order to Plaintiff.
SO ORDERED