Opinion
No. 3:02-CV-407-M
February 6, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an order of this court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
Plaintiff, an inmate confined in the Gurney Unit of the Texas Department of Criminal Justice, brings this suit pursuant to 42 U.S.C. § 1983 for damages he sustained while he was incarcerated in the Dallas County Jail. He is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis.
Standard of Review
The terms of 28 U.S.C. § 1915A (a) and(b) provide in pertinent part:
The court shall review. . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915 (a) and (b). See also 28 U.S.C. § 1915 (e)(2) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that. . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.") An action is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir. 1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 490 U.S. at 324.
Plaintiff's Allegations
Plaintiffs Complaint names only the Dallas County Jail as Defendant. Plaintiff alleges that Defendant failed to protect him, compelled him to consume unconstitutional foods, failed to issue him toilet paper, subjected him to psychological abuse, denied him adequate legal materials and service of his personal and legal mail, and overcharged him for non-public services, such as telephone calls. Plaintiffs conclusory litany of complaints fails to include a short plain statement of facts that would show he is entitled to relief See FED. R. CIV. P. 8(a). Accordingly, the Court sent Plaintiff questionnaires to bring into focus the factual and legal basis of his claims. See Watson v. Ault, 525 F.2d 886, 891 (5th Cir. 1976). Plaintiff alleges his defense attorneys violated his civil rights during their representation of him on his criminal charges. He also alleges his rights were violated by inadequate medical care at Parkland Hospital and at the Dallas County Jail. He also alleges Southwestern Bell violated his civil rights by charging him too much for local phone calls. The Court has fully considered the Complaint as explained by the auxiliary pleadings, including Plaintiff's answers to the United States Magistrate Judge's questionnaire, filed May 14, 2002, and his answers to the second United States Magistrate Judge's questionnaire, filed October 11, 2002 and determined that Plaintiff's claims should be dismissed as frivolous.
Plaintiff's Claims Against the Dallas County Jail
Plaintiff makes conclusory allegations of unconstitutional prison conditions against the Dallas County Jail. To establish an Eighth Amendment violation regarding conditions of confinement, an inmate must establish: first, that the deprivation alleged was sufficiently serious (i.e., an official's act or omission must have resulted in the denial of "the minimal civilized measure of life's necessities"); and secondly, that the prison official possessed a sufficiently culpable state of mind. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). The required state of mind for cases related to prison conditions is that the official acted with deliberate indifference to an inmate's health or safety. See Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Deliberate indifference is established by showing that the defendant officials "(1) were aware of facts from which an inference of excessive risk to the prisoner's health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed." Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
A plaintiff may not bring a civil rights claim against a servient political agency or department unless such agency or department enjoys a separate and distinct legal existence. See Darby v. Pasadena Police Dept., 939 F.2d 311, 313-14 (5th Cir. 1991). Unless the true political entity has taken explicit steps to grant the servient agency jural authority, the agency cannot engage in any litigation except in concert with the government itself. Darby, 939 F.2d at 313. A pro se plaintiff who names a non-jural entity as defendant should be alerted and given an opportunity to amend before dismissal of his complaint. See Parker v. Fort Worth Police Dept., 980 F.2d 1023, 1026 (5th Cir. 1993). The Dallas County Jail is a non-jural entity that cannot be sued for civil rights violations under 42 U.S.C. § 1983. Accordingly, this Court informed Plaintiff that he must list and identify the individual defendants who allegedly violated his constitutional rights and state specific facts regarding how each defendant personally participated in violating those rights. (United States Magistrate Judge's Questionnaire, May 14, 2002, Question No. 2). In response, Plaintiff named attorneys Franklyn R. Mickelsen and William Fry, an unnamed doctor at Parkland Hospital, and Southwestern Bell Telephone Company. Plaintiff failed to name any individuals who allegedly violated his constitutional rights by subjecting him to the prison conditions recited in his original complaint. Accordingly, Plaintiff's claims of unconstitutional prison conditions against the Dallas County Jail should be dismissed as frivolous.
Plaintiff's Claims Against Attorneys Mickelsen and Fry
To prevail on a civil rights claim an inmate must prove that he was deprived, under color of law, of rights, privileges, or immunities secured by the United States Constitution and laws. 42 U.S.C. § 1983; Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). Under the "color of law" requirement, the defendants in a § 1983 action must have committed the complained-of acts in the course of their performance of duties and have misused power that they possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. United States v. Classic, 313 U.S. 299, 325 (1941); Screws v. United States, 325 U.S. 91, 110 (1944) (plurality opinion). Private attorneys, including public defenders, are not state actors within the meaning of§ 1983. Polk County v. Dodson, 454 U.S. 312, 321-22 (1981).
Plaintiff alleges Mickelsen violated his civil rights by failing to properly assist him as counsel on appeal and by filing frivolous motions to dismiss his appeal. Plaintiff alleges Fry violated his civil rights by refusing to (1) grant him an examining trial and (2) hire an investigator. Hence, Plaintiff's only allegations of constitutional violations against Mickelsen and Fry arose out of the attorneys' representation of Plaintiff on criminal charges. Plaintiff has failed to show that Mickelson and Fry were state actors or that they were acting under color of law. Plaintiffs civil rights claims against his defense attorneys should be dismissed as frivolous.
Plaintiff's Claims Against Parkland Hospital
Plaintiff alleges that on January 8, 2002, he was taken to Parkland Hospital Emergency room to be treated for a broken and fractured left arm. He claims he was told to come back in two weeks for a splint, but when he returned, they refused to put a splint on his arm and instead treated his elbow and shoulder. Plaintiff alleges he is suing Parkland because of its status as employer of the doctor. (Answers 1 and 2 to United States Magistrate Judge's Questionnaire, filed Oct. 11, 1002).
Supervisory officials cannot be held vicariously liable for their subordinates' actions under 28 U.S.C. § 1983. Monell v. Department of Social Services, 436 U.S. 658, 691-95 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.), cert denied, 488 U.S. 851 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). For liability to attach, supervisory officials must (a) affirmatively participate in acts that cause a constitutional deprivation, or (b) implement unconstitutional policies that causally result in the plaintiffs injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987). Plaintiff sues Parkland Hospital only under the doctrine of respondeat superior. These claims should be dismissed as frivolous.
Plaintiff's Claims Against an Unnamed Doctor
Plaintiff alleges he was told to return to Parkland Hospital to receive a splint for a broken arm, but the doctor who treated him treated his elbow and shoulder. (Answer 3 to United States Magistrate Judge's Questionnaire, filed Oct. 11, 1002). He claims the last doctor he saw about his arm said that he was healing. (Answer 4 to United States Magistrate Judge's Questionnaire, filed Oct. 11, 1002).
The Eighth Amendment prohibition against cruel and unusual punishment forbids deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002). The plaintiff must prove objectively that he was exposed to a substantial risk of serious harm. Farmer, 511 U.S. at 834. Additionally, the plaintiff must show that jail officials (or in this case, a doctor) acted or failed to act with deliberate indifference to that risk. Farmer, 511 U.S. at 834. The deliberate indifference standard is a subjective inquiry; the plaintiff must establish that the jail officials were actually aware of the risk, yet consciously disregarded it. Farmer, 511 U.S. at 837, 839. To apply the Farmer test, each individual's subjective deliberate indifference must be examined separately. See Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999). Deliberate indifference requires actual knowledge and conscious disregard of the risk of harm to the plaintiff. Farmer, 511 U.S. at 834. Deliberate indifference cannot be inferred from a prison official's mere failure to act reasonably, i.e., it cannot be inferred from negligence alone. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996) (en banc).
An inmate's disagreement with the kind of medical treatment he has received is insufficient as a matter of law to state an Eighth Amendment violation. See Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997); see also Young v. Gray, 560 F.2d 201, 201 (5th Cir. 1977). Federal courts will not inquire into the adequacy or sufficiency of medical care of state inmates unless prison officials appear to have abused the broad discretion which they possess in this area. See Haskew v. Wainwright, 429 F.2d 525, 526 (5th Cir. 1970).
Plaintiff complains his medical care from the doctor at Parkland Hospital was not appropriate because he should have placed Plaintiff's arm in a sling. The facts in support of Plaintiff's claim against the doctor do not demonstrate deliberate indifference to Plaintiff's serious medical needs. Plaintiff admits the last doctor he saw said that he was healing properly.
The facts do not give rise to a colorable civil rights claim against the unnamed doctor for deliberate indifference to Plaintiff's serious medical needs. Plaintiff does not deny that he received medical treatment; he only complains that the treatment he received was inappropriate. His own pleadings show that he had been examined and treated and that his medical condition was being monitored. Plaintiffs allegations address the nature of the treatment he received rather than any deliberate refusal on the part of the unnamed doctor to provide care. Plaintiffs civil rights claim against the unnamed doctors should be dismissed as frivolous.
Plaintiff's Claims With Respect to His Medical Treatment in 1999
Plaintiff claims that in 1999, he received lacerations and bruises and sent several requests to be examined by a doctor, but his requests were ignored. He claims that a nurse examined him and gave him some ointment. Plaintiff did not identify a physical injury that he suffered as a result of the events that occurred in 1999. The terms of 42 U.S.C. § 1997e(e), enacted as part of the Prison Litigation Reform Act of 1995, provide:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury.
Title VIII, Prison Litigation Reform Act of 1995, Sec. 7(e); 42 U.S.C. § 1997e(e).
To support a claim for mental or emotional suffering, the physical injury must be more than de minimis, but need not be significant. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (holding that a sore, bruised ear, lasting for three days, was de minimis). Plaintiff failed to show that he suffered any physical injury resulting from any lack of treatment by a doctor in 1999, as required by 28 U.S.C. § 1997e(e).
Additionally, this case was filed on February 27, 2002. Because Congress has not provided a statute of limitations for civil rights actions brought under § 1983, federal courts adopt the forum state's general personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249-50 (1989); Piotrowski v. Ciy of Houston, 51 F.3d 512, 514 n. 5 (5th Cir. 1995). In Texas, the pertinent limitation period is two years. Tex. Civ. Prac. Rem. Code Ann. § 16.003(a); Piotrowski, 51 F.3d at 514 n. 5.
Although state law determines the applicable limitation period for a civil rights claim, the claim accrues in accordance with federal law. Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993). Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Id. In this case, Plaintiff should have known the facts in 1999. Therefore, Plaintiff's claim for civil rights violations with respect to medical treatment in 1999 should be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1). See Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (holding that dismissal under 28 U.S.C. § 1915 should be deemed to be dismissal with prejudice unless the district court specifically states its reasons for dismissing without prejudice); Gartrell, 981 F.2d at 256 ("[W]here it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations, those claims are properly dismissed pursuant to [former] § 1915(d)"); see also Slack v. Carpenter, 7 F.3d 418, 419 (5th Cir. 1993) (per curiam).
Plaintiff's Claim Against Southwestern Bell Telephone Company
Plaintiff claims Southwestern Bell caused him damages by overcharging him $5.45 for a fifteen minute collect local telephone call. This claim should be dismissed with prejudice as patently frivolous.
RECOMMENDATION
The Court recommends that this case be dismissed with prejudice as frivolous.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).