Opinion
2:04-CV-0010.
April 28, 2004
REPORT AND RECOMMENDATION
Plaintiff ARCHIE DAMUSE GODIN, 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 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff claims that, after a February 2001 back injury sustained while at the Moore Unit, he spent almost a year at the Lynaugh Unit where he endured medical neglect and was "left to starve six seperate [sic] times. endured being gased [sic] with chemical agents five times. Because [he] could not walk." Concerning this time period, the Court notes that plaintiff's Step 1 grievance no. 2003040949, attached to his complaint, contains his statement that he had an M.R.I. in June of 2001 which did not show a significant amount of damage to his spine. Plaintiff says he was transferred to the Neal Unit on January 4, 2002, after an examination by a free-world doctor who confirmed that plaintiff's "legs were locked up from having had the shakes" because he had been gassed at the Lynaugh Unit the day before. Plaintiff says he received a medical evaluation at the Clements Unit where Dr. Uy prescribed medication and placed plaintiff on Isocal twice a day because he was extremely malnourished. Also, a nurse forcibly straightened plaintiff's legs, after which he regained movement in them. On January 9th, plaintiff says, Dr. Uy told him he would order neurological tests conducted on his spine; however, defendant REVELL cancelled those tests and, instead, ordered electro magnetic tests conducted on his legs. Plaintiff says the tests were "pointless" because at that time there was already movement in his legs.
Plaintiff says after he inappropriately requested a nurse to call a friend for him, he was transferred from the medical department to a cell where he had no means of getting to chow and was left to starve for thirty-seven days. During that time, plaintiff says he was seen by the psych department twice and both times was determined to be "of sound mind." He alleges the psych department said "it was a medical issue" but that his medical records have been altered to reflect otherwise.
Plaintiff alleges that, on February 22, 2002, he was given a quick medical evaluation and then was transported to the high security/closed custody section where he has spent the last twenty-two months with no window, no recreation, and no change to the medical neglect. Plaintiff says defendant REVELL refuses him any further testing, claiming there are no other tests to be done, and prescribes "psychotic" medication to cover up plaintiff's spinal injury, telling everyone there is no injury. Plaintiff further alleges he has been housed in high security/closed custody with violent gang members although he has done nothing wrong and that he's been beaten, had property stolen, and been forced to make store purchases, but has received no relief in response to his letters of complaint to prison officials.
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 frivolous, 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).
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).
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 the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment". 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." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). 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). Further, medical records showing sick calls, examinations, diagnoses, and medications may rebut an inmate's allegations of deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
Plaintiff disagrees with defendant Dr. REVELL's diagnosis of his condition and wants further tests performed. In this respect, plaintiff's pleadings reveal he received an M.R.I. in 2001 and another, unidentified, test which was ordered by REVELL upon his arrival at the Clements Unit. Despite vague and conclusory allegations of "negligence," plaintiff's pleadings make clear the core of his claim is that he has received medical care with which he disagrees and diagnostic tests which have not revealed an injury commensurate with plaintiff's complaints. Plaintiff feels these tests should be followed up with still more tests; however, Dr. REVELL does not agree. Given the facts presents by plaintiff, it is clear he has not alleged facts stating a claim of constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). At most, he has presented facts which might support a claim of medical negligence, which is a tort cognizable in state law and for which remedy must lie in state courts; however, negligence will not support a claim under section 1983. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)
Consequently, plaintiff has failed to state a claim of deliberate indifference against defendant REVELL and his negligence claim lacks an arguable basis in law under section 1983 and is, therefore, frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff's claims against defendants GONZALES, WALKER, and JOHNSON are that they hold supervisory positions and have failed to satisfactorily resolve plaintiff's complaints. To hold a supervisory official liable, the plaintiff must demonstrate: (1) the supervisor either failed to supervise or train the subordinate official; (2) a causal link exists between the failure to train or supervise and the violation of the plaintiff's rights; and (3) the failure to train or supervise amounts to deliberate indifference. Hinshaw v. Doffer, 785 F.2d 1260, 1263 (5th Cir. 1986). For an official to act with deliberate indifference, he "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Plaintiff has alleged no facts which show any failure to supervise defendant REVELL or that there is any causal link between any act or omission of these defendants which has led to the alleged violation of plaintiff's rights. Further, his allegations do not show deliberate indifference by these defendants. Plaintiff has utterly failed to state a claim on which relief can be granted against any one or all of defendants GONZALES, WALKER, and JOHNSON.
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 Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff ARCHIE DAMUSE GODIN be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
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.