Opinion
No. 2:03-CV-0158.
October 17, 2005
REPORT AND RECOMMENDATION
Plaintiff STEVEN RANDALL BROWN, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff claims the defendants have been deliberately indifferent to his need for adequate psychiatric care and proper psychiatric medication.
Plaintiff requests an award of $995.00 from each of the defendants as "recompense."
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it 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. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).The Magistrate Judge has reviewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
The Eighth Amendment proscribes medical care that is "sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). A prisoner's disagreement with prison officials regarding medical treatment is insufficient to establish an unconstitutional denial of medical care. Norton v. Dimanzana, 122 F.3d 286, 292 (5th Cir. 1997).
Plaintiff alleges he has had no access to a psychologist since September 30, 2002 and has repeatedly complained to no avail. Plaintiff says he had a Telemed conference with psychiatrist Dr. Butler on August 16, 2002, who raised plaintiff's dosage of Sertraline and stated it would help for plaintiff to speak to "X Jordan Unit psychologist Mrs. Rainey." Plaintiff complains he does not have access to a psychologist, but only to a nurse, defendant Nurse VALDEZ. A review of plaintiff's Step 1 and Step 2 grievance no. 2003048899 and the Step 2 response from prison officials, attached to plaintiff's original complaint, reveals plaintiff refused to see Dr. Dominguez "for any reason" and demanded to see a psychologist. The Step 2 response by prison officials reveals plaintiff was also seen by a psychiatrist on October 23, 2002 by Tele-psychiatry Clinic.
Plaintiff further complains his prescription for Setraline was changed to Prozac on March 13, 2002 and was subsequently discontinued by a Dr. Dominguez on March 19, 2002, but that his medical records don't reflect that the Prozac caused plaintiff "illness, and undue harassments."
It is clear that plaintiff was dissatisfied with the absence of an on-unit psychologist so he could have frequent in-person and, possibly, individual, sessions and that he felt the change in medication was a mistake. Nevertheless, this dissatisfaction is not sufficient to state a claim of constitutional dimension. Not every claim of inadequate or improper medical treatment is a violation of the Constitution, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); nor does a disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference, Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991).
Even if plaintiff's allegations showed the treatment he received was ineffective or even negligent, he has not alleged facts to show it constituted deliberate indifference by any of the named defendants. Further, mere negligent medical care will not support a claim under section 1983. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Consequently, plaintiff's medical care claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff also claims he was denied access to the courts, in part, because he was not given access to the law library in the afternoon as he requested, but was, instead, approved for morning visits. Plaintiff argues his medications made it difficult for him to stay awake and concentrate in the morning and that he needed an afternoon pass to enable him to properly research his legal actions.
Plaintiff further argues defendants GONZALES, VALDEZ, BELL, and NUNN knew of his medical problems and that he was attempting to get access in the law library at specific times. Plaintiff contends that, had he been given different medication and psychiatric care and had he been allowed to access the law library as he wished and had WHITE provided effective assistance of counsel, all before or during the hearing on a motion he submitted in state court for D.N.A. testing, the outcome of the hearing might have been different.
An inmate alleging denial of access to the courts must demonstrate an actual injury stemming from the defendants' unconstitutional conduct. Lewis v. Casey, 518 U.S. 343, 351-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998) (without proving actual injury, the prisoner/plaintiff cannot prevail on an access-to-courts claim); Chriceol v. Phillips, 169 F.3d 313 (5th Cir. 1999). In this case, plaintiff's speculation that it is possible the state court hearing on his motion for D.N.A. testing might have been different does not demonstrate the "actual injury" necessary to show standing. Plaintiff has utterly failed to state an access-to-courts claim.
Lastly, to the extent plaintiff is suing defendant WHITE, his attorney for the state court hearing on his motion for D.N.A. testing, plaintiff cannot state a civil rights claim against this defendant. Two elements are necessary for recovery in this type of suit: (1) the plaintiff must show the defendant deprived him of a right secured by the Constitution and laws of the United States; (2) the plaintiff must show the deprivation was committed under color of law, usually by a state official or a private individual in conspiracy with such an official. Adickes v. Kress, 398 U.S. 144, 149, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). If attorney WHITE was retained counsel, he was not acting under color of state law. Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985). Alternatively, assuming attorney WHITE was court-appointed counsel, this fact does not supply that requirement of state action. McCoy v. Gordon, 709 F.2d 1060, 1062 (5th Cir. 1983), cert. denied, 472 U.S. 1030, 105 S.Ct. 3507, 87 L.Ed.2d 637 (1985); United States ex rel Simmons v. Zibilich, 542 F.2d 259, 261 (5th Cir. 1976) ( per curiam). Thus, plaintiff has failed to state a claim against defendant WHITE on which relief can be granted.
CONCLUSION
For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff STEVEN RANDALL BROWN be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
IT IS SO RECOMMENDED.