Opinion
No. 2:02-CV-0134.
October 13, 2004
REPORT AND RECOMMENDATION
Plaintiff RODOLFO GONZALES, acting pro se and while a prisoner incarcerated 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 states that, on April 29, 2001, the day after his dosage of doxepin was increased, he suddenly developed facial paralysis, including an inability to close his right eye. Plaintiff's doxepin prescription was then cancelled. Plaintiff states he received daily eye dressing changes until May 3, 2001, when defendant Dr. BASSE ordered eye ointment and an eye patch for fifteen days. Plaintiff complains defendant Dr. BASSE and the nursing staff "laughingly" told him he was to treat himself and cure himself, as there was nothing more they could do. He states he suffered extreme pain and was forced to keep returning to the infirmary to plead for medical care and request to be allowed to see a specialist. He says BASSE responded falsely that there was nothing he or anyone else could do.
Plaintiff complains that after nineteen days, his right eye was "still in bad shape" and he had developed an ear infection. He was seen by a Dr. Klein at Klein Eye Center who stated plaintiff needed to be taken to a hospital on an emergency basis because, due to BASSE's "delay, and `deliberate indifference,'" plaintiff's cornea was tearing and plaintiff was developing a hole a in the back of his eye. Plaintiff says Dr. Klein stated any further delay could result in the loss of plaintiff's eye. Plaintiff was taken to Lubbock and seen by eye specialists who then performed surgery on his eye the next day.
In his original complaint, plaintiff states he still has the stitches, can barely see out of the eye, and will have to artificially lubricate his eye for the rest of his life.
Plaintiff complains he was provided pain medication only seven days for his eye, despite numerous requests, and, upon his return to the unit in September, his "medically unassigned" classification was removed by defendant Dr. Dominguez. He states he was assigned a job which he was not fit to perform, resulting in numerous disciplinary cases. Plaintiff further claims doctors have failed to treat the psoriasis that covers 65% of his body and that he has been subjected to mistreatment, retaliation, and interference with his medical care by various security officers such as defendant ALSOBROOK.
Plaintiff requests monetary damages of $1,000,000.00.
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 plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).
"A prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired." Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999).
In response to question no. III of the complaint form inquiring whether the plaintiff has exhausted both steps of the grievance procedure, plaintiff marked "Yes" and attached five step 2 grievances to his original complaint. Review of these grievances reveal three were rejected at step 1 as not complying with prison rules for filing a valid grievance and two do not concern acts or omissions by the named defendants.
Grievance no. 2001162513, signed by plaintiff on May 4, 2001, complained of the onset of facial paralysis and the alleged inadequate treatment by defendant BASSE and the medical staff, as well as the failure to provide a substitute drug for pain relief and treatment of withdrawal symptoms when the doxepin was discontinued immediately after onset of the facial paralysis. The grievance was refused at step 1 because it requested a remedy that prison officials considered inappropriate, Dr. BASSE's removal from employment. When plaintiff submitted a step 2 appeal, he was instructed that he could not appeal a step 1 grievance which had been refused for processing and that he should have corrected the step 1 grievance and resubmitted it (numbered pp. 71-72 of plaintiff's attachments to his original complaint). Despite this instruction, plaintiff never appears to have submitted a corrected step 1 grievance; instead, he submitted two step 2 grievances which were rejected because they were not accompanied by a step 1 grievance which had been processed (numbered pp. 73-74 and 75-78 of plaintiff's attachments to his original complaint).
The remaining step 2 grievances attached by plaintiff to his complaint do not concern any claim against any of the defendants. Plaintiff's step 2 grievance submitted June 4, 2001 (numbered pp. 80-81 of plaintiff's attachments to his original complaint) complained of two threats from a C.O. Zint. Plaintiff's step 2 grievance no. 2001238356 (numbered p. 83 and the unnumbered page which follows it of plaintiff's attachments to his original complaint) complained of acts or omissions by officers Austin, Stones, and Bryd.
Thus, although plaintiff asserts he has utilized the grievance system, his attachments demonstrate he has not submitted a valid grievance concerning his claims against defendant BASSE and has not exhausted administrative remedies concerning any claim asserted against this defendant. Further, plaintiff has not grieved through step 2 of the grievance system concerning defendant DOMINGUEZ's alleged wrongful removal of plaintiff's "medically unassigned" status or any act or omission by defendant BAXTER. Therefore, plaintiff has failed to exhaust administrative remedies as to his claims against these defendants as well.
Finally, plaintiff's vague allegation in his complaint of general mistreatment by officers, including ALSOBROOK, is not sufficient to state a claim against ALSOBROOK. By its July 22, 2002, Briefing Order, the Court gave plaintiff an opportunity to cure this defect and plead specific facts concerning his claim against ALSOBROOK. Plaintiff's July 29, 2002, response to question no. 1, requiring plaintiff to state each and every act or omission on which he bases his claim for liability against defendant ALSOBROOK, is unresponsive. Review of the grievances referenced in the response and attached thereto fails to reveal even a single step 2 grievance concerning an act or omission by defendant ALSOBROOK. Plaintiff states he submitted a step 1 grievance which did not receive a response, but he does not indicate he ever followed-up with another step 1 or a step 2 reasserting his grievance and informing officials of his missing step 1 grievance.
Moreover, review of the grievances reveals the August 8, 2001 step 1 grievance concerned the confiscation of some prescription ophthalmic ointment because plaintiff did not have a medical pass, or blue card, to have such ointment on his person. The May 27, 2001 step 1 grievance concerned a refusal to remove his handcuffs so he could apply some cream on his psoriasis while he was waiting for transport. Neither of these instances demonstrates deliberate indifference to a serious medical need. Plaintiff was not prevented from applying his psoriasis cream at a more appropriate time and there is no indication his inability to apply it while chained for transport had any effect on his ailment. Further, plaintiff was given a blue card for possession of his ophthalmic ointment when he saw the doctor later. Although plaintiff says he was still denied his ophthalmic ointment, he does not indicate defendant ALSOBROOK was responsible for that.
In any event, it is clear plaintiff has not exhausted administrative remedies with respect to either incident.
By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998). Consequently, plaintiff's claims 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
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 RODOLFO GONZALES be DISMISSED AS FRIVOLOUS AND WITH PREJUDICE FOR PURPOSES OF PROCEEDING IN AN IN FORMA PAUPERIS PROCEEDING PURSUANT TO TITLE 28, UNITED STATES CODE, SECTION 1915(b). Underwood v. Wilson, 151 F.3d 292 (5th Cir. 1998); 42 U.S.C. § 1997e(a).
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to any attorney of record by first class mail.
IT IS SO RECOMMENDED.