Opinion
No. 3-04-CV-1463-R.
December 20, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a pro se civil rights action brought by Plaintiff Ronald Combs, a former inmate at the Dallas County Jail, against the Dallas County Sheriff's Department, Sheriff Jim Bowles, and Dr. Steven P. Bowers. On July 7, 2004, plaintiff filed a pro se complaint and an application to proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this action, the court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Written interrogatories then were sent to plaintiff in order to obtain additional information about the factual basis of this suit. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Although plaintiff responded to the interrogatories, his answers were inconclusive. On December 17, 2004, the court held a Spears hearing to investigate the factual basis of the complaint in more detail. Plaintiff appeared at the hearing and testified under oath regarding the claims alleged in his complaint. The court now determines that this case should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
Plaintiff was released from custody shortly after this case was filed. He remains on probation and currently resides at the Dallas County Judicial Treatment Center in Wilmer, Texas.
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).
II.
Plaintiff generally alleges that he was denied adequate medical care while incarcerated in the Dallas County Jail from May 28, 2004 to July 19, 2004. His claims arise out of an incident that occurred on June 30, 2004, when another inmate struck plaintiff in the head and poured scalding water over his body. As a result of that incident, plaintiff suffered second and third-degree burns to his chest and right arm. Plaintiff was immediately taken to the jail infirmary where a nurse dressed his wounds and gave instructions to change the bandages three times per day.
Shortly after midnight on July 3, 2004, plaintiff asked Officer Elliot to take him to the nurse's station so his bandages could be changed. Elliot refused and began to taunt plaintiff. At one point, Elliot approached plaintiff in a threatening manner and stated, "Burn white boy, burn." Plaintiff alleges that his bandages were not changed until one or two days later. During that period, his skin dried out and began to crack. For the duration of his confinement in the Dallas County Jail, plaintiff states that his burns were treated only once a day instead of three times daily. Plaintiff also developed a staph infection, although he is uncertain whether the infection was caused by improper wound care.
Plaintiff further alleges that he was denied Tylenol, Advil and Darvocet for pain, Wellbutron for a psychiatric disorder, and antibiotics for an infection. This occurred at least ten times during plaintiff's confinement for periods ranging from 24 to 48 hours. Plaintiff also complains that the commissary staff refused to sell him over-the-counter pain medication and salve. During the time plaintiff was unmedicated, the pain caused by his burns went unabated and he became more depressed. However, plaintiff admits that he never became suicidal or attempted to harm himself or others. Nor did he suffer any physical injury, other than intermittent pain, as a result of sporadic delays in receiving his medications. By this suit, plaintiff seeks unspecified damages for pain and suffering and injunctive relief.
A.
A district court may summarily dismiss a complaint filed in forma pauperis if it concludes that the action:
(1) is frivolous or malicious;
(2) fails to state a claim upon which relief can be granted; or
(3) seeks money relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2)(B). 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, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to state a claim "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).
B.
A civil rights claim based on the denial of adequate medical care is governed by the "deliberate indifference" standard of the Eighth Amendment to the United States Constitution. U.S. CONST. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). In order to establish a constitutional violation, plaintiff must show that jail officials acted with deliberate indifference to his medical needs such as to cause the "unnecessary or wanton infliction of pain." Id., 97 S.Ct. at 292. This, in turn, requires proof that defendants were subjectively aware of a substantial risk of serious harm and failed to take reasonable measures to abate that risk. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996), citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994).Plaintiff has failed to state a claim against any of the defendants named in his complaint. The court initially observes that the Dallas County Sheriff's Department is not a legal entity subject to suit. See Magnett v. Dallas Co. Sheriff's Dep't, 1998 WL 51355 at *1 (N.D. Tex. Jan. 20, 1998) (Kaplan, M.J.) (citing cases). Nor has plaintiff stated a claim against Sheriff Jim Bowles or Dr. Steven Bowers. These defendants, both of whom supervise certain aspects of jail operations, are not liable for the actions of their subordinates under 42 U.S.C. § 1983. See Jett v. Dallas Independent School District, 491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 104 S.Ct. 248 (1983) (personal involvement is an essential element in civil rights cause of action). As supervisors, Sheriff Bowles and Dr. Bowers are liable only if: (1) they affirmatively participated in acts that caused a constitutional deprivation; or (2) implemented unconstitutional policies that resulted in injury to plaintiff. Mouille v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993). It is clear from plaintiff's interrogatory answers and testimony at the Spears hearing that none of these defendants was personally involved in the alleged constitutional deprivations made the basis of this suit. Instead, plaintiff maintains that Sheriff Bowles is responsible for the actions of Officer Elliot. Plaintiff sues Dr. Bowers because jail nurses failed to administer certain medications as prescribed by him. Such allegations are insufficient to state a claim against these defendants in their individual capacities.
Ordinarily, the court would allow plaintiff to amend his complaint to sue the proper defendants. However, at the Spears hearing, the only other potential defendant identified by plaintiff was Officer Elliot. Even if Elliot verbally taunted plaintiff and refused to take him to the nurse's station to have his bandages changed, such conduct is not actionable under the facts presented here. See, e.g. Daniels v. Murray, 2002 WL 1125481 at *1 (N.D. Tex. May 23, 2002) (Kaplan, M.J.) (verbal abuse, standing alone, does not give rise to cause of action under section 1983); Alexander v. Tippah Co., Mississippi, 351 F.3d 626, 630-31 (5th Cir. 2003), cert. denied, 124 S.Ct. 2071 (2004) (prisoner must allege more than de minimis injury to maintain civil rights action under PLRA). Nor can plaintiff sue for brief delays in receiving prescription medication. See Williams v. Dallas Co., 2003 WL 21662823 at *4 (N.D. Tex. Jul. 14, 2003) (Kaplan, M.J.), rec. adopted, 2003 WL 22359487 (N.D. Tex. Sept. 9, 2003) (Fitzwater, J.); Estes v. Bowers, 2002 WL 628755 at *2 (N.D. Tex. Apr. 17, 2002) (Kaplan, M.J.), aff'd, 73 Fed.Appx. 747 (5th Cir. 2003); Krivan v. Dallas Co., 2002 WL 83768 at *3 (N.D. Tex. Jan. 14, 2002).
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).