Opinion
No. 3:02-CV-2215-N
March 20, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at Wynne Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Huntsville, Texas. Defendants are the City of Garland, Chief of Police Larry R. Wilson, Lt. K. R. Davis, Police Officers M.G. Clark, Luca Shupe, D. Banda, and J. Puckett, and three John Does jail officers from the Garland Police Department. The court has not issued process in this case. However, on November 1, 2002, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on December 6, 2002.
Statement of Case: The amended complaint alleges Defendants Shupe and Clark used excessive force in arresting Plaintiff, while Defendants Banda and Puckett looked on. Shupe and/or Clark allegedly struck Plaintiff in the head with a blunt object. Clark then ordered a dog to attack and bite while Plaintiff's back was turned and his hands were up in the air. On the way to the police car, Shupe slammed Plaintiff into the hot hood of his police car, poked fingers in Plaintiff's eyes and squeezed Plaintiff's testicles extremely hard. Following booking at the Garland City Jail, Shupe and three John Doe officers allegedly denied Plaintiff medical care for the wounds caused by the dog bite and the lump on his head. Thereafter, Chief of Police Wilson and Lt. Davis failed to conduct an unbiased investigation and failed to discipline any of the officers involved. Plaintiff requests monetary damages for his physical pain and mental suffering.
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915 (e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact."Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The complaint alleges Defendants denied Plaintiff medical care following the excessive force incident on April 23, 2002. To state a colorable claim for the denial of medical care under the Eighth Amendment, convicted inmates must allege acts or omissions "sufficiently harmful to evidence a deliberate indifference to serious medical needs."Estelle v. Gamble, 429 U.S. 97, 106 (1976); Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind." Norton, 122 F.3d at 291. It occurs when 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, 837-840 (1994). Under the Due Process Clause of the Fourteenth Amendment, the same standard applies to pretrial detainees, such as Plaintiff, who complain of episodic acts or omissions resulting in the denial of medical care. Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996).
Plaintiff asserts that Shupe and John Doe (3rd Shift on April 23, 2002) denied him any medical attention following his arrest for the swelling and puncture holes caused by the dog bite and the large lump on his head. (Answer to Question 12 and Amd. Compl., ¶ V Statement of Claim, p. 8-9). On April 24, 2002, at 11:00 a.m., Plaintiff was transported to the emergency room at Baylor Medical Center of Garland where he remained until about 7:00 p.m. that evening. (Answer to Questions 2 and 9). Along with a CAT scan and X-rays, a tetanus shot was administered and prescriptions for an antibiotic and a pain reliever were prepared. (Answers to Questions 10 and 12). The following day Plaintiff experienced two instances of denial of medical care. During the first shift, from 6:00 a.m. to 2:00 p.m., John Doe denied him breakfast and the morning dose of his pain medication and antibiotics. During the second shift, from 2:00 p.m. until 10:00 p.m., Plaintiff was again denied his dose of pain medication and antibiotic. (Answer to Question 12 and Amended Complaint, ¶ V Statement of Claim at p. 7-8).
In his amended complaint, submitted one month after the answers to the questionnaire, Plaintiff alleges that the failure of the above Defendants "to provide medical care and medication for [his] head injury and dog bite wound constitutes the tort of negligence under the law of Texas." (Complaint, ¶ V Statement of Complaint at 11). It is well settled that relief is unavailable under § 1983 for claims grounded only in negligence. See Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
Insofar as Plaintiff seeks to allege deliberate indifference to a serious medical condition (as he did in answer to questions 14 and 15 of the Magistrate Judge's Questionnaire), his contentions lack an arguable basis in law. Delay in providing medical care does not give rise to an eighth amendment violation unless the Defendants' deliberate indifference results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Plaintiff does not allege that he suffered substantial harm because of the denial of medical attention before he was transported to the emergency room and because of the delay in providing him prescription medications after his return to the Garland City Jail. While the wound apparently "became fully infected and extremely painful" (Answer to Question 12), Plaintiff does not allege any adverse consequences as a result of the delay in providing him medical care apart from headaches, which continue to afflict him. (Answer to Question 11). Under these circumstances, Plaintiff's claims of delay in providing medical care do no amount to a constitutional violation. Therefore, Plaintiff's claims against Defendants Shupe and the three John Doe officers lack an arguable basis in law and should be dismissed as frivolous.
The District Court should decline to exercise supplemental jurisdiction over Plaintiff's state law negligence claims against Shupe and the three John Doe officers and should dismiss the claims without prejudice. See 28 U.S.C. § 1367 (a).
Next Plaintiff seeks to sue Chief of Police Wilson and Lt. Davis for failing to conduct an unbiased investigation and for refusing to discipline the police officers involved in the alleged constitutional violations. He requests monetary relief for his emotional pain and suffering. (Amd. Compl., ¶ VI Relief, at p. 1-2).
Under the Prison Litigation Reform Act ("PLRA"), prisoners filing suit must demonstrate a physical injury to sustain a claim for damages. 42 U.S.C. § 1997e(e); Harper v. Showers, 174 F.3d 716, 719 n. 5 (5th Cir. 1999). Section 1997e(e) states: "No federal civil action may be brought by a prisoner. . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The Fifth Circuit has strictly construed the physical injury requirement, precluding claims by prisoners who demonstrate only mental or emotional injury and barring physical injury claims where the injury alleged is de minimus. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (prisoner's §§ 1983 action dismissed where court found that a bruised ear lasting for three days did not constitute a physical injury).
Plaintiff's own allegations reflect that he suffered only emotional pain and suffering because of the allegedly biased investigation and refusal to discipline the police officers involved in his arrest and subsequent denial of medical care. (Amd. Compl. ¶ VI Relief at p. 1-2). As a result § 1997e(e) bars his claims against Defendants Wilson and Davis.
Alternatively Plaintiff's claims fail to raise a federal constitutional claim. An inadequate or invalid investigation is insufficient to state a civil rights claim unless another recognized constitutional right is involved. See, e.g., Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (police chief was not individually liable, under § 1983, to claimant raped by police officer based on police chiefs failure to investigate rape, inasmuch as failure to investigate did not rise to level of separate constitutional violation of claimant's right); Burchett v. Self, 30 F.3d 133, 1994 WL 276865, *2 (6th Cir. 1994) (unpublished) (failure to investigate does not raise a constitutional claim); Scher v. Chief Postal Inspector, 973 F.2d 682, 683-84 (8th Cir. 1992) (inmates failed to state Bivens claim based on refusal of post office employees to investigate complaint regarding prison administrators' treatment of their mail); Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (lack of police investigation, by itself, was not a deprivation of a constitutional right); Malloy v. City of New York, 1996 WL 648927, *2 (S.D.N.Y. Nov. 07, 1996) (unpublished) (there is no constitutional right to an investigation or arrest of an individual who has committed an assault upon a prisoner unless the omission or inadequacy of the investigation itself resulted in a deprivation of a constitutional right). Additionally, a refusal to discipline a subordinate employee does not raise a constitutional claim.
Plaintiff's civil conspiracy claims fare no better. A claim for civil conspiracy requires allegations of facts sufficient to show that there was an agreement among the defendants to inflict a wrong or injury upon the plaintiff and an overt act that results in damages. Crowe v. Lucas, 595 F.2d 985, 993 (5th Cir. 1979). In the present case, however, no allegations exist that would allow inference that Defendants conspired to deprive Plaintiff of his constitutional rights. Plaintiff's complaint, even when supplemented by the answers to the magistrate judge's questionnaire, does not present facts showing an agreement between the Defendants named in the complaint. See Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986). Plaintiff does not allege that the Defendants ever met or talked about Plaintiff, either before or after the excessive use of force. (Answer to Questions 17-18). There is a complete absence of any allegation of fact to show that the Defendants had any plan to hurt Plaintiff "'Mere conclusory allegations of conspiracy cannot, absent reference to material facts,' state a substantial claim of federal conspiracy under 42 U.S.C. § 1983." Hale, 786 F.2d at 690 (quotingArsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir. 1982)). It appears that anytime Plaintiff dislikes or disapproves of a particular event or outcome, he labels it an act of conspiracy by yet another defendant.
In addition to the individual officers, Plaintiff seeks to sue the City of Garland. It is well established that a local government entity such as a county or municipality cannot be held liable for a constitutional violation under a theory of vicarious liability or respondeat superior.See Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). Instead, liability may be imposed "only where the municipality itself causes the constitutional violation at issue." Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403-404 (1997); City of Canton v. Harris, 489 U.S. 378, 385 (1989). To prevail on a § 1983 claim against a municipality, the plaintiff must therefore demonstrate that the city acted pursuant to a policy or custom that was the cause of an alleged deprivation of rights protected by the Constitution. Bryan County, 520 U.S. at 403. The Fifth Circuit has defined a "policy or custom" as:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) ( en banc and per curiam).
In his amended complaint, Plaintiff alleges the City of Garland
Failed to adequately train officers [in the] use of force during arrest. Failed to have policy limiting amount of excessive force used without any need or provocation. Failed to have policy requiring mandatory medical attention after animal bite. Failed to have competent officers or medical staff to provide medication as needed or prescribed.
(Amd. Comp., ¶ IV "Parties to Suit," at 5).
In answer to the questionnaire, Plaintiff refuses to identify any facts to establish the existence of a custom or policy of the City of Garland. (See Answers to questions 3 and 4).
Plaintiff's conclusory allegations that the City of Garland failed to train police officers regarding use of force, medical attention following a canine bite, and distribution of prescription medications are insufficient to satisfy Plaintiff's burden of pleading that an official policy or custom exists. The amended complaint wholly fails to allege relevant facts as to what violations occurred and how these violations resulted from the City's policy. In addition to failing to establish that there was a policy or custom, Plaintiff has failed to identify how the City's policy was the moving force behind his injuries. At best, Plaintiff has pled facts which support a single incident of excessive force and denial of medical care against himself The Supreme Court explained in Bryan County, 520 U.S. at 407-08, that:
the existence of a pattern of tortious conduct by inadequately trained employees may tend to show that the lack of proper training, rather than a one-time negligent administration of the program or factors peculiar to the officer involved in a particular incident, is the "moving force" behind the plaintiff's injury.
By failing to allege facts that suggest a pattern of conduct or a continued adherence to a program, Plaintiff has not pled the deliberate indifference necessary to trigger municipal liability. In the instant case, the only connection between the alleged acts of the officers and the City of Garland is the fact of their employment, and this is clearly insufficient to establish municipal liability under section 1983. In the absence of an allegation of a pattern of conduct or a continued adherence to a program, the Magistrate Judge cannot find the deliberate indifference necessary to trigger liability against the City of Garland. As such Plaintiff's § 1983 cause of action against the City of Garland should be dismissed.
Accepting as true Plaintiff's allegations as to the force used by officers Clark and Shupe, the Magistrate Judge concludes that Plaintiff has arguably raised a claim for excessive use of force in violation of the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989) ("all claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard"). Plaintiff's allegations that Clark and Shupe viciously struck him in the head with a blunt object and ordered a dog to attack and bite him while his back was turned raise claims that the force used may have been excessive to the need and objectively unreasonable. See Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir. 1996) (setting out the elements of an excessive force claim). Plaintiff's claims that Banda and Puckett failed to intervene and stop the excessive use of force also arguably raise actionable claims. Therefore, Plaintiff's claims against Police Officers Clark, Shupe, Banda, and Puckett are not subject to dismissal at the screening stage. RECOMMENDATION:
Insofar as Plaintiff alleges that Clark and Shupe verbally abused him during his arrest, his claim lacks an arguable basis in law. (Amd. Compl., ¶ V at p. 3). The Fifth Circuit has held that verbal abuse or harassment does not amount to an Eighth Amendment violation. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citing Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993)).
For the foregoing reasons, it is recommended that Plaintiff's claims be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b) and 1915(e)(2), except for his claims of excessive use of force against Defendants Clark, Shupe, Banda, and Puckett. Plaintiff's state law negligence claims should be dismissed without prejudice.
It is further recommended that the District Court enter an order dismissing with prejudice the City of Garland, Chief of Police Larry R. Wilson, Lt. K. R. Davis and the three John Doe Officers from the Garland Police Department. See 28 U.S.C. § 1915A(b) and 1915(e)(2).
It is further recommended that Plaintiff's motion to have amended complaint and summons served by U.S. Marshal, filed on January 13, 2003, be granted. The clerk should be ordered to issue summons for Defendants M.G. Clark, Lucas Shupe, Demarcus Banda, and J. Puckett at 217 N. 5th Street, Garland, Texas 75040, and deliver the summons and copies of the amended complaint in this case to the United States Marshal Office. The U.S. Marshal shall serve the summons and copies of the complaint on the defendants and file a return of service in the case pursuant to Fed.R.Civ.P. 4(c).
The Clerk will mail a copy of this recommendation to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.