Opinion
Civil Action 21-689-BAJ-RLB
04-04-2023
MARIO FUNES #574671 v. TIMOTHY HOOPER, ET AL.
NOTICE
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law, and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
This matter comes before the Court on the Motion to Dismiss filed on behalf of defendant Timothy Hooper (R. Doc. 19). The Motion is opposed. See R. Doc. 22.
The pro se Plaintiff, an inmate incarcerated at Louisiana State Penitentiary (“LSP”), filed this proceeding pursuant to 42 U.S.C. § 1983 against Timothy Hooper, and other persons identified as John or Jane Doe, complaining that his constitutional rights were violated due to deliberate indifference to his serious medical needs. He seeks monetary and injunctive relief.
None of the Doe defendants have been served. See R. Docs. 11, 12, 14, and 15. Pursuant to the requirements of Rule 4(m) of the Federal Rules of Civil Procedure, failure to serve a defendant within 90 days of commencement of an action is cause for dismissal of that defendant from the proceeding. Although a pro se plaintiff may rely on service by the U.S. Marshal if requested, he may not remain silent and do nothing to request or effectuate such service. No further action has been taken by the plaintiff to identify or serve these defendants. Accordingly, the Doe defendants should be dismissed for failure to serve them as required by Rule 4(m).
Defendant first seeks dismissal on jurisdictional grounds, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, of Plaintiff's claims against him in his official capacity. Section 1983 does not provide a federal forum for a litigant who seeks monetary damages against either a state or its officials acting in their official capacities, specifically because these officials are not seen to be “persons” within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). In addition, in Hafer v. Melo, 502 U.S. 21 (1991), the United States Supreme Court addressed the distinction between official capacity and individual capacity lawsuits and made clear that a suit against a state official in an official capacity for monetary damages is treated as a suit against the state and is therefore barred by the Eleventh Amendment. Id. at 25. Accordingly, to the extent the plaintiff may be asserting a § 1983 claim against defendant Hooper in his official capacity for monetary damages, any such claims are subject to dismissal.
Turning to Plaintiff's claims that are not subject to dismissal on the basis of Eleventh Amendment immunity, Defendant next asserts, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, that Plaintiff has failed to state a claim upon which relief may be granted. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court clarified the standard of pleading that a plaintiff must meet in order to survive a motion to dismiss pursuant to Rule 12(b)(6). Specifically, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, supra, at 555. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, supra, 556 U.S. at 678, quoting Bell Atlantic Corp. v. Twombly, supra. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. It follows that, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not ‘show[n]' ‘that the pleader is entitled to relief.' ” Id. at 679. “Where a Complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.' ” Id. at 678 (internal quotation marks omitted).
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court “must accept as true all of the factual allegations contained in the Complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further, “[a] document filed pro se is ‘to be liberally construed' ... and ‘a pro se Complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' ” Id. (citation omitted). Notwithstanding, the court need not accept “a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986), or “naked assertions [of unlawful conduct] devoid of further factual enhancement.” Ashcroft v. Iqbal, supra, 556 U.S. at 678 (internal quotation marks omitted).
Plaintiff's Allegations
In his Complaint, Plaintiff alleges the following: For several years the plaintiff had pain in his leg. In 2017 an x-ray was taken which revealed a foreign body in the plaintiff's leg. The plaintiff was not informed of this finding until October of 2020 when the foreign body caused a blood clot to form in the plaintiff's leg. The foreign body was surgically removed on November 24, 2020. Defendant Hooper knew or should have known that surgery was required and should have taken steps to shorten the time between discovery of the foreign body and its surgical removal.
Qualified Immunity
In response to the plaintiff's allegations, Defendant asserts that he is entitled to qualified immunity in connection with Plaintiff's claims. The qualified immunity defense is a familiar one and, employing a two-step process, operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473 F. App'x. 398 (5th Cir. 2012). As enunciated in Saucier v. Katz, 533 U.S. 194 (2001), the first step in the analysis is to consider whether, taking the facts as alleged in the light most favorable to the plaintiff, the defendant's conduct violated the plaintiff's constitutional rights. Id. at 201. Second, the district court looks to whether the rights allegedly violated were clearly established. Id. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as a broad, general proposition. Id. The relevant, dispositive inquiry in determining whether a constitutional right was clearly established is whether it would have been clear to a reasonable state official that his conduct was unlawful in the situation which he confronted. Id.
Undertaking the qualified immunity analysis, the Court finds that Defendant's motion should be granted. Plaintiff's allegations, accepted as true, fail to state a claim for deliberate indifference to his serious medical needs, or any other constitutional violation.
Deliberate Indifference
A prison official violates the Eighth Amendment's prohibition of cruel and unusual punishment if the official shows deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-06 (1976). The official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety” and “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists”. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The official also must draw that inference. Id.
Failed treatments, negligence, and medical malpractice are insufficient to give rise to a claim of deliberate indifference. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). A prisoner who disagrees with the course of treatment or alleges that he should have received further treatment also does not raise a claim of deliberate indifference. Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Instead, an inmate must show that prison officials denied him treatment, purposefully provided him improper treatment, or ignored his medical complaints. Id. A delay in treatment may violate the Eighth Amendment if the delay was the result of the prison official's deliberate indifference and substantial harm including suffering occurred during the delay. Easter v. Powell, 467 F.3d 459, 464-65 (5th Cir. 2006).
Personal Involvement
In order for a prison official to be found liable under § 1983, the official must have been personally and directly involved in conduct causing an alleged deprivation of an inmate's constitutional rights, or there must be a causal connection between the actions of the official and the constitutional violation sought to be redressed. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). Any allegation that a defendant is responsible for the actions of subordinate officers or coemployees under a theory of vicarious responsibility or respondeat superior is alone insufficient to state a claim under § 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009), citing Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). See also Bell v. Livingston, 356 F. App'x. 715, 716-17 (5th Cir. 2009) (recognizing that “[a] supervisor may not be held liable for a civil rights violation under any theory of respondeat superior or vicarious liability”). Further, in the absence of direct personal participation by a supervisory official in an alleged constitutional violation, an inmate plaintiff must allege that the deprivation of his constitutional rights occurred as a result of a subordinate's implementation of the supervisor's affirmative wrongful policies or as a result of a breach by the supervisor of an affirmative duty specially imposed by state law. Lozano v. Smith, supra, 718 F.2d at 768.
In the instant matter, the plaintiff has not alleged that defendant Hooper was personally involved in his medical care. The plaintiff does not assert any action or inaction on the part of defendant Hooper that shows that this defendant denied him treatment, purposefully provided him improper treatment, or ignored his medical complaints. The plaintiff alleges only that defendant Hooper knew or should have known that surgery was required to remove the foreign body from the plaintiff's leg. The plaintiff has not made any factual allegations in support of this claim in his Complaint.
In his Opposition, the plaintiff asserts that defendant Hooper had knowledge of the plaintiff's lack of medical care due to a grievance filed by the plaintiff. However, the grievance attached to the plaintiff's Complaint shows that the plaintiff was diagnosed with DVT (deep vein thrombosis) in October of 2018, was started on blood thinners, and was monitored and examined, as needed, by both the prison's medical providers and various outside providers. See R. Doc. 5-1.
To the extent the plaintiff alleges that defendant Hooper is responsible for the actions of his subordinates who provided the aforementioned treatment, a theory of vicarious responsibility or respondeat superior is alone insufficient to state a claim under § 1983. The plaintiff has not alleged that defendant Hooper was personally involved in any action that resulted in a violation of the plaintiff's constitutional rights, or that his constitutional rights were violated due to a subordinate's implementation of defendant Hooper's affirmative wrongful policies.
As evidenced by the grievance attached to the plaintiff's Complaint, the plaintiff was receiving treatment for his condition. What the plaintiff alleges herein is that he should have received additional treatment, in the form of foreign body removal, at an earlier date. A disagreement with treatment does not state a claim for deliberate indifference. Domino v. Tex. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Grievances
To the extent the plaintiff asserts that defendant Hooper, failed to properly handle his grievances, an inmate does not have a constitutional right to have his prison disciplinary or administrative proceedings (including informal complaints) properly investigated, handled, or favorably resolved, Mahogany v. Miller, 252 F. App'x. 593, 595 (5th Cir. 2007), and there is no procedural due process right inherent in such a claim. As stated by the United States Court of Appeal for the Fifth Circuit in Geiger v. Jowers, 404 F.3d 371 (5th Cir. 2005) (in the context of the handling of an administrative grievance):
Insofar as [the plaintiff] seeks relief regarding an alleged violation of his due process rights resulting from the prison grievance procedures, the district court did not err in dismissing his claim as frivolous…[The plaintiff] does not have a federally protected liberty interest in having these grievances resolved to his satisfaction. As he relies on legally nonexistent interest, any alleged due process violation arising from the alleged failure to investigate his grievances is indisputably meritless. Id. at 373-74.
Supplemental Jurisdiction
To the extent that Plaintiff's allegations may be interpreted as seeking to invoke the supplemental jurisdiction of this court over potential state law claims, a district court may decline the exercise of supplemental jurisdiction if a plaintiff's state law claims raise novel or complex issues of state law, if the claims substantially predominate over the claims over which the district court has original jurisdiction, if the district court has dismissed all claims over which it had original jurisdiction, or for other compelling reasons. 28 U.S.C. § 1367. In the instant case, having recommended that Plaintiff's federal claims be dismissed, the Court further recommends that the exercise of supplemental jurisdiction be declined.
RECOMMENDATION
It is the recommendation of the Magistrate Judge that Defendant's Motion to Dismiss (R. Doc. 19) be granted dismissing the plaintiff's 1983 claims against defendant Hooper, with prejudice. It is further recommended that the plaintiff's claims against all John or Jane Doe defendants be dismissed, without prejudice, pursuant to Federal Rule of Civil Procedure 4(m). It is further recommended that the Court decline the exercise of supplemental jurisdiction over any potential state law claims, and that this action be dismissed.