Chauncey v. Pelfrey

Full title: BILLY SHAWN CHAUNCEY, PRO SE, TDCJ-ID NO. 823703, Plaintiff, v. C…

Court: United States District Court, N.D. Texas

Date published: Apr 7, 2004

2:01-CV-0400 (N.D. Tex. Apr. 7, 2004)

Opinion

2:01-CV-0400

April 7, 2004

REPORT AND RECOMMENDATION OF PARTIAL DISMISSAL

CLINTON AVERITTE, Magistrate Judge

Plaintiff BILLY SHAWN CHAUNCEY, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 and has been granted permission to proceed in forma pauperis.

Plaintiff alleges that, on November 7, 1999, he awoke with severe jaw pain but, when he went to the infirmary, defendant PELFREY told him he was faking and to go to work. He says defendant PELFREY refused his request for antibiotics on November 9^th, even though his jaw was obviously severely infected and swollen.

Plaintiff alleges a Nurse Aguillar noticed the swelling on November 12^th and stated she would call the dentist. On November 16, 1999, plaintiff was sent to the Briscoe Unit where defendant Dr. RENICKE stated his jaw was too swollen to operate and asked why plaintiff hadn't received treatment earlier. Plaintiff says RENICKE then pulled the tooth above his infected tooth without plaintiff's permission after telling plaintiff it was necessary to relieve pressure on the infected tooth.

Plaintiff was apparently returned to his unit because he alleges on November 17^th, he again went to the infirmary complaining of pain and swelling and was refused medication or treatment by defendant Nurse PELFREY. Plaintiff states he was given antibiotics on November 25^th, but his jaw, tongue, and ear were so swollen by November 28^th that he was taken to the Medina County Emergency Room where the staff noted an emergency medical condition existed. Plaintiff does not allege that he received any treatment there.

Plaintiff alleges the next day a Dr. MAMOUS extracted tooth #32 and broke a root to tooth #31. Plaintiff says he was transferred to Garza West on December 4, 1999, where a Dr. Crainer noted the broken root and told him to report it to his dentist. Plaintiff appears to have been returned to his original unit of assignment the next day because he alleges that, on December 6, 1999 and December 8, 1999, defendant PELFREY refused him treatment but finally said she would call the dentist.

On December 10, 1999, plaintiff was seen by defendant Dr. RENICKE who determined he needed to be seen by a specialist. Over the next few days, plaintiff's requests to see a dentist and for pain medication were refused.

Plaintiff alleges defendant PELFREY told him on December 25, 1999, that he would be seen in twenty-four hours but that it did not happen.

On January 3, 2000, plaintiff was transferred to UTMB and was examined by defendant Dr. MAMOUS who opined that the root was exposed but did not taken any action.

Plaintiff complains that he was then placed in transit and was refused pain medication until January 18, 2000.

Plaintiff states he was returned to his original unit of assignment on January 20, 2000, where defendant PELFREY told him she did not know why he was there and that he was supposed to be at a 24-hour care unit receiving treatment.

Plaintiff alleges that subsequently he was examined by numerous dentists who admit the tooth in question is damaged but say they cannot fix it due to TDCJ-ID policy. He says they would not identify who was responsible for the policy.

Plaintiff states that, on August 28, 2001, he was examined by defendant Dr. JETTON who refused to acknowledge plaintiff's problem with his tooth and, when plaintiff insisted he was in pain from the tooth, ordered that security remove plaintiff from the dental department, thereby denying plaintiff treatment.

Plaintiff requests an award of monetary damages equaling $100.00 for each day for pain and suffering, and that the prison system be ordered to "fix the tooth the dentist broke."

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 frivolous¹, 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)².

1 A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

2 Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").

The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS

By his December 26, 2001 response to the Court's Questionnaire, plaintiff admits that he was offered an alternative, less satisfactory treatment for his tooth with the broken root. He wants a root canal, but says he has been offered extraction. Plaintiff states that, although RENICKE and a Dr. Netherly have recommended a root canal, the tooth does not fall in the category of those for which TDCJ policy approves a root canal instead of extraction.

Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under Title 42, United States Codes section 1983. Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 291-93, 50 L.Ed.2d 251 (1976). Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id.

Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). However, 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). "[N]egligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

Moreover, a delay which does not aggravate or exacerbate the medical condition does not constitute a constitutional violation. Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988). A delay in medical care to a prisoner can constitute an Eighth Amendment violation only if there has been deliberate indifference, which results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

By his claims against defendant RENICKE, plaintiff complains of RENICKE's pulling a tooth on November 16, 1999, to relieve pressure on the infected tooth, his failure to operate on the infected tooth that same day, and his December 10, 1999, opinion that plaintiff needed to see a specialist. By his December 26, 2001, response to Question no. 17 of the Court's Questionnaire, plaintiff admits that defendant RENICKE followed up on his December 10^th opinion by submitting his recommendation that plaintiff be seen by the specialist, Dr. MAMOUS and that he was seen by MAMOUS on January 3, 2000. To the extent plaintiff complains of RENICKE's November 16, 1999 failure to operate on the infected tooth and his extraction that day of a tooth without plaintiff's express permission, RENICKE explained to plaintiff that the infected tooth was too infected for him to extract it and also explained why he felt it was necessary to pull the upper tooth. While plaintiff may disagree with RENICKE concerning these decisions and this treatment, this disagreement is not sufficient to state a claim under section 1983. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). Further, to the extent plaintiff feels RENICKE should have gotten approval for the root canal he recommended, plaintiff does not suggest that RENICKE is responsible for making or implementing the policy which prevents approval of that recommendation. Plaintiff has utterly failed to state a claim against defendant RENICKE on which relief can be granted.

While plaintiff is clearly dissatisfied with the extraction of tooth #32 and damage to tooth #31 by defendant Dr. MAMOUS, plaintiff does not allege any fact showing the damage to tooth #31 was the result of deliberate indifference. Instead, the facts alleged might support, at most, a claim of medical negligence; however, negligent medical care does not constitute a valid section 1983 claim. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Further, given the TDCJ policy which offers plaintiff extraction of tooth #31 but not a root canal, and plaintiff's unwillingness to consent to extraction, plaintiff has not alleged how defendant MAMOUS' failure to do anything more than examine plaintiff on January 3, 2000, constituted deliberate indifference.

Plaintiff complains that the UNKNOWN DEFTS "failed to properly process grievances, provide information relating to identity of other defendants, failed to identify person responsible for policy." Plaintiff has no federally protected due process right in the processing of his grievances or in receiving information concerning the identity of various persons in prison administration. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). In the context of actions arising under Title 42, United States Code, section 1983, a plaintiff is required to state specific facts rather than conclusory allegations in his complaint. O'Quinn v. Manuel, 773 F.2d 605 (5th Cir. 1985), as amended. By these vague and conclusory allegations, plaintiff utterly fails to state a claim against any of the UNKNOWN DEFTS.

Lastly, plaintiff has not designated whether he is suing defendant PELFREY and JETTON in their individual or officials capacities, or both. The Court notes suit against defendants in their official capacities for monetary relief is barred by the Eleventh Amendment. Eleventh Amendment immunity is an explicit constitutional limitation on the federal judicial power. Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 907, 79 L.Ed.2d 67, 77 (1984). The Eleventh Amendment restricts federal court jurisdiction only in those cases in which the state is the real party in interest. Hander v. San Jacinto Junior College, 519 F.2d 273, 278 (5th Cir. 1975). A suit against an official in his official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). Consequently, plaintiff's claims for monetary relief against defendants PELFREY and JETTON in their official capacities is foreclosed by the Eleventh Amendment. Thus, plaintiff's claims for monetary relief against these defendants in their official capacities lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

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 Claims filed against defendants RENICKE, MAMOUS, and UNIDENTIFIED DEFTS pursuant to Title 42, United States Code, Section 1983, by plaintiff BILLY SHAWN CHAUNCEY be DISMISSED FOR FAILURE TO STATE A CLAM ON WHICH RELIEF CAN BE GRANTED. It is the further RECOMMENDATION of the Magistrate Judge to the United States District Judge that the claims for monetary relief against defendants PELFREY and JETTON in their official capacities be DISMISSED AS FRIVOLOUS.

The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

IT IS SO RECOMMENDED.