Opinion
CIVIL ACTION NO. 4:03-CV-299-Y
May 14, 2003
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915(e)(2)(B)
Plaintiff Gregory Campbell, in this suit brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 297 (1971), names as defendants several persons at FMC-Fort Worth: M.C. Martinez, Associate Warden; J.Mills, M.D.; J. Barry, M.D.; L. Huber, M.D.; and P. Trinkle, M.D. He has named the defendants in both their individual and official capacities. On May 1, 2003, this Court held a hearing on Campbell's motion for a preliminary injunction by which he sought an order directing either medical treatment, an organ transplant, and/or compassionate release. The court denied all relief sought in the motion for preliminary injunction at the close of the hearing.
Campbell is proceeding in this action under the in-forma-pauperis statute, 28 U.S.C. § 1915(e). A complaint filed in forma pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915(e)(2)(B), a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim should be dismissed. Case law recognizes that a district court is not required to await a responsive pleading to conduct its § 1915 inquiry. Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." In this circuit, district courts are authorized to conduct hearings to determine whether the allegations of an in-forma-pauperis plaintiff's claims should proceed. This Court has considered the preliminary-injunction hearing, including the testimony and medical records introduced, in reviewing Campbell's allegations under § 1915. After such review and consideration of Campbell's claims, the Court finds that all of Campbell's claims must be dismissed under the authority of this provision.
Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section 28 U.S.C. § 1915(e) requires dismissal not only when an allegation of poverty is untrue or the action is frivolous or malicious, but also when "the action . . . fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(A) and (B) (West Supp. 2003).
See 28 U.S.C.A. § 1915(e)(2) (West Supp. 2003) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time."); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d)).
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
See generally Spears v. McCotter, 766 f.2d 179, 180-81 (5th Cir. 1985) (court may engage a hearing to focus on the prisoner's factual allegations to determine if the claims are frivolous).
The Court has cited any testimony from a preliminary transcript of the May 1, 2003, injunction hearing as "(Tr.)," and cited any of the medical record exhibits suppled by the defendants as "(Gov. Ex.)." The page number references to the transcript may change slightly on any final version.
Campbell alleges that he was first diagnosed with hepatitis C in June 2000, while he was incarcerated at FCI-Lompoc. He also alleges that a consulting physician recommended that he receive an antiviral therapy consisting of a combination of treatments with ribavirin and interferon, and that Campbell be transferred to FMC-Fort Worth for such treatment. Although Campbell was transferred to FMC-Fort Worth in September 2000, he alleges he has never been provided the antiviral therapy. In his complaint against the individual defendants, Campbell has not set forth facts relating to each particular person's specific involvement with Campbell's allegations. Rather, he complains that all of the defendants have exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment in the following respects: denying him the antiviral treatment; refusing to provide recommended medical care and treatment; ignoring the recommended treatment until serious damage was done to his liver and the rest of his body; failing and refusing to provide life-saving treatment in the form of a liver transplant; needlessly causing Plaintiff to suffer great physical harm; needlessly shortening his life; and causing him to suffer pain, discomfort, and anxiety; and placing institutional budgetary concerns over his medical needs by choosing a less costly course of treatment. Other than the injunctive relief the Court has already denied, Campbell seeks a declaratory judgment that he is entitled to compensatory damages of $1,000,000 and punitive damages of $1,000,000. (Compl. § VIII.)
Campbell has alleged that the defendants, an associate warden and four doctors, are all employees of the Bureau of Prisons, and he has sued them in an both an individual and an official capacity. But claims for money damages against individual federal employees in an official capacity based upon allegations of constitutional violations are barred because they are considered suits against the United States which has not waived its sovereign immunity for such claims. Although Campbell has not referenced the Federal Tort Clams Act (FTCA), even assuming his factual allegations could be read to state a claim under the FTCA, government employees enjoy absolute immunity against common law tort claims, and the only proper federal defendant is the United States. Thus, Plaintiff's claims against the individual defendants in an official capacity must be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
Counsel for defendant Dr. Patrick Trinkle was present at the injunction hearing and indicated to the Court that Dr. Trinkle is not employed by the federal government. Because Bivens claims do not lie against private corporations under contract with the federal government, to the extent Campbell's official-capacity claim against Dr. Trinkle is a claim against a private entity, it must be dismissed. See Correctional Services Corporation v. Malesko, 122 S.Ct. 515, 521-523 (2001) (following the logic of FDIC v. Meyer, 510 U.S. at 484-86, where the Court declined to authorize Bivens claims against a federal agency, the Court likewise declined to authorize a constitutional-tort remedy against a private entity.)
See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985); see also Marsden v. Federal B.O.P., 856 F. Supp. 832, 835 (S.D.N.Y. 1994) (claims for money damages against individual federal defendants in an official capacity must be dismissed for lack of jurisdiction).
See Finley v. United States, 490 U.S. 545, 552-53 (1989); see also Marsden, 856 F. Supp. at 835, citing 28 U.S.C. § 1346(b), 2679(a), 2679(b)(1) (other citations omitted).
Deliberate indifference to a prisoner's serious medical needs has been deemed to amount to cruel and unusual punishment under the Eighth Amendment. Such a finding of deliberate indifference, though, "must rest on facts clearly evincing !wanton' actions on the parts of the defendants." This subjective deliberate-indifference standard is now equated with the standard for criminal recklessness:
Estelle v. Gamble, 429 U.S. 97, 104-106 (1976).
11Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985); see also Wilson v. Seiter, 501 U.S. 294, 297 (1991).
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer, 511 U.S. at 837; see also Hare v. City of Corinth, 74 F.3d 633, 648 (5th Cir. 1996)( en banc), opinion after subsequent remand, 135 F.3d 320, 327 (5th Cir. 1998).
Consistent with this standard is the recognition that negligent or mistaken medical treatment or judgment does not implicate the Eighth Amendment and does not provide the basis for a civil-rights action.
See Estelle, 429 U.S. at 106 ("[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner"); see also Varnardo v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (unsuccessful medical treatment, neglect, nor medical malpractice give rise to a § 1983 cause of action) (citations omitted).
Plaintiff's allegations do not give rise to a claim of deliberate indifference to his serious medical needs. Although Campbell has not distinguished the particular involvement of each defendant, for purposes of this review, the Court assumes that each defendant was involved in failing to provide to Campbell the antiviral treatment he sought, even though they were aware of the recommendation for such treatment. Because all of the allegations of deliberate indifference recited by Campbell are variations of a claim that he was denied antiviral treatment even though it was recommended for him, the Court analyzes these claims as one.
As noted above, although there was indication to the Court that Dr. Trinkle is a private physician, for purposes of this § 1915(e) review, the Court has assumed that Trinkle was engaged in actions attributable to the federal government. See West v. Atkins, 487 U.S. 42, 49-52 (private physician acts under color of state law for § 1983 purposes when treating patient in state prison under contract with state).
Except for the claim that he was denied a liver transplant which is discussed infra.
While he was housed at FCI-Lompoc, consulting physician Lawrence S. Riemer, treating Campbell for hepatis-C-induced cirrhosis of the liver, recommended treatment with ribavirin and interferon. (Gov. Exhibit 499.) Campbell claimed at the hearing that while at FMC-Fort Worth, he never got an explanation for not receiving the treatment, but a note in his medical records from May 1, 2001, reveals that Campbell acknowledged his history of hepatitis C and cirrhosis and was "aware that interferon intervention has very little indication at this stage of the disease . . . [Campbell] has not complained." (Gov. Ex. 166.) Physician Cora Denise Ballom, a specialist in family medicine, after reviewing Campbell's medical records, testified that when Campbell arrived at FMC-Fort Worth he had end-stage liver disease, labeled cirrhosis, and defined as when the liver no longer functions. (Tr. 20-21, 28-29), Ballom testified that Campbell's low platelet count, 74,000 at his arrival at FMC-Fort Worth, indicated that he had decompensat ed cirrhosis.(Tr. 39.) Once a patient is at such a stage, a liver biopsy is not appropriate because such procedure may further damage the liver. Dr. Ballom explained that no biopsy was performed on Campbell's liver for just that reason. (Tr. 45.) Ballom also testified that under Bureau of Prisons (BOP) Clinical Guidelines, a patient with end-stage liver disease is no longer a candidate for interferon treatment. (Tr. 21.) Ballom explained that as to a patient with hepatitis C and cirrhosis of the liver, there is an ongoing debate in the medical community over whether antiviral therapy is appropriate.(Tr. 20-22, 26-28.) Dr. Ballom testified that the dispute is over whether antiviral treatment is appropriate for someone with end-stage liver disease, because although interferon may help revive liver cells in the early or middle stages, if the liver is already damaged to the point that there are not a lot of cells to revive, then the patient will not benefit from the interferon treatment. (Tr. 26-28.) Ballom acknowledged that physicians could disagree on whether antiviral treatment was appropriate for Campbell. (Tr. 26.)
Thus, reduced to its core, Campbell's allegation that he was denied antiviral treatment for hepatitis C, with his particular liver-function history, amounts to either a disagreement between Campbell and his physicians about what medical care was necessary, or a disagreement among physicians on the proper course of care for him. A disagreement between an inmate and his physicians as to what medical care is appropriate does not state a claim for deliberate indifference to medical needs. Neither do differences of opinion among physicians as to the appropriate method of treatment amount to deliberate indifference. Campbell has alleged no facts beyond the withholding of antiviral drug treatment that would show that the individual treating physicians or the associate warden wantonly disregarded an excessive risk to Campbell's health. Any deficiency in the treatment of Plaintiff by defendants does not approach the deliberate-indifference standard. Further, although Campbell alleges that the defendants chose a "less-costly course" of treatment, he does not support that allegation with facts, and it appears, based upon Ballom's testimony, that the BOP's policy for provision of antiviral therapy to an inmate suffering with hepatitis C accompanied by cirrhosis, such as Campbell, is supported by valid medical science. Campbell's claims based upon the denial of antiviral treatment must be dismissed.
See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (affirming the dismissal of suit as frivolous where prisoner claimed medical personnel should have tried different methods of diagnosis and treatment); see also Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995), citing Varnado920 F.2d at 321; see also Street v. Corrections Corp. of America, 102 F.3d 810, 816 n. 13 (6th Cir. 1996)(patient's disagreement with his physicians over the proper medical treatment alleges nothing more than a medical malpractice claim, and is not cognizable as a constitutional claim.)
See generally Snipes v. DeTalla, 95 F.3d 586, 590 (7th Cir. 1996) (noting that physician disagreement in treatment alone will not support a constitutional violation), cert. den'd 519 U.S. 1126 (1997); and Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.) (plaintiff's showing of nothing more than a "difference of medical opinion' as to one course of treatment over another insufficient to establish deliberate indifference), citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), cert. den'd, 519 U.S. 1029 (1996).
See generally Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.) (doctor's failure to discover inmate's ulcer, failure to read nurses's notes regarding inmate's incontinence problems, or to ensure that orders were carried out, might constitute negligence, but not deliberate indifference), cert. den'd, 528 U.S. 906 (1999).
Campbell also claims that the failure to afford him a liver transplant is the result of deliberate indifference. Campbell testified that he talked with Dr. Trinkle several times about the viability of a liver transplant for him, and that Trinkle told him that although he had referred patients for transplants no one was getting them. (Tr. 11.) Campbell did not claim that he has initiated the paperwork to apply for a liver transplant, and testimony of FMC-Fort Worth social worker Joelle Koncelik indicated he had not. (Tr. 55.) Dr. Ballom set out the procedures attendant to consideration of an inmate request for organ transplant, and she noted the difficulties that the BOP has had with finding outside facilities willing to contract with the BOP to engage in organ transplants for inmates. (Tr. 22-25.) At this time, the BOP has not yet obtained a contract with any outside medical facility for liver transplantation. (Tr. 25.) Based on this testimony, and the fact that Campbell has not taken the necessary procedural step to begin the process of evaluating whether he is an eligible candidate for a transplant, the failure to provide him a liver transplant cannot be said to be deliberate indifference.
It is therefore ORDERED that all of plaintiff Gregory Campbell's remaining claims asserted in the complaint be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
Campbell just filed a document entitled "Notice of Defendant Retaliation," by which he alleges that his medications have been cancelled in the days since the injunction hearing. Although not properly pleaded, Campbell has not sufficiently stated a retaliation claim, which requires that a prisoner allege (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his exercise of that right, (3) a retaliatory act, and (4) causation. See Jones v. Greninger188 F.3d 322, 324-25 (5th Cir. 1999). An inmate must allege more than a personal belief that he is the victim of retaliation. See Johnson v. Rodriguez, 110 F.3d 299, 231 (5th Cir. 1998).
Including any claims for injunctive or declaratory relief under 28 U.S.C.A. § 2201 (West 1994) or 5 U.S.C.A. § 7 02 (West 1996).