Opinion
No. 2:99-CV-0407
April 9, 2002
REPORT AND RECOMMENDATION
Plaintiff JESSE HAMPTON, 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 says he was badly injured in a 1986 car accident, was diagnosed with degenerative disc disease and arthritis in his spine in 1987, and has chronic pain in his cervical spine and lower back. He says he also was diagnosed in June of 1992 with testicular cancer, was successfully treated, and recovered. Further, since 1991, he had been restricted to working a maximum of four hours a day and, in 1994, was medically unassigned permanently. Plaintiff complains that, on June 20, 1997, about a month after he arrived at the Clements Unit, Dr. Ratnarajah removed plaintiff's HS-18 restrictions, despite the medical history recounted above. The removal of his work restrictions resulted in his assignment to the hoe squad, where he received three cases for refusing to work. Plaintiff states that, after an investigation by an officer, Dr. Ratnarajah reinstated some of plaintiff's medical restrictions and medically unassigned him. Plaintiff claims Dr. Ratnarajah "work under DR. REVELL" and that defendant REVELL "is the Head Doctor on this unit, if, he didn't know about this matter above, he should have." Further, plaintiff complains, defendant REVELL removed his HS-18 restrictions without consultation and/or a medical examination on March 4, 1998.
An HS-18 is a TDCJ-ID form showing any medically determined work limitations a prisoner may have.
The exhibit 5A(1) plaintiff references to show that Dr. Ratnarajah declared him to be medically unassigned does not support that contention, but only shows some medical limitations were returned.
Subsequent to the removal of his work restrictions by Dr. REVELL, defendant TINSLEY, Chief of Classification, assigned plaintiff to work in the shoe factory where he was given the job of buffing glue off of shoes. Plaintiff says defendant TINSLEY did not first review his work record and see that he had been a "four-hour worker" on his last job, from 1990 to June 10, 1992. Plaintiff alleges the glue can label for the glue showed it contained a chemical known to cause cancer. He alleges he wrote a letter of complaint concerning defendant TINSLEY's action to defendant RICH, the Warden.
Plaintiff also states he wrote a letter of complaint to defendant JOHNSON but that he "was prejudice to his plaintiffs by not looking into this matter himself [sic et passim]" on September 16, 1999. Further, plaintiff claims JOHNSON should have investigated his complaint of a bogus grievance submitted on plaintiff's behalf by an Officer Boland and signed by Warden Rodeen. Review of the attachments to plaintiff's original complaint, especially pages 2, 3, 4, 5, and 6 of his Exhibit 8, shows defendant Officer Boland was a counsel substitute whom the warden asked to look into plaintiff's complaint, submitted on an I-60 and addressed to the Warden, complaining of the handling of a grievance. Someone, plaintiff alleges Officer Boland, attached the I-60 to a step 1 grievance form and processed it as a grievance. Plaintiff received a response on August 3, 1998. Plaintiff contends this constituted falsification of state records.
An 1-60 is a form utilized for miscellaneous requests to prison officials by inmates.
By his April 6, 2000, response to question no. 9 of the Court's Questionnaire, plaintiff alleges defendant BAINS did not personally review plaintiff's medical records or ensure that defendant REVELL properly diagnosed plaintiff's conditions or correctly re-evaluated his work restrictions.
Plaintiff claims defendant McCOY, a grievance investigator for the unit, would not respond to plaintiff's grievance and that defendant ELLINBURG gave a "negligent response" to a grievance Warden RICH should have answered. Plaintiff further alleges he told defendant Mr. WILLIAMS, the "head boss" of the shoe factory, that the glue he was buffing off the shoes was hazardous to his health, but defendant WILLIAMS laughed at him and told him he misread the label. Plaintiff received six major disciplinary cases for refusing to work in the shoe factory, losing cleven years of accumulated good time credit against his sentence.
Lastly, plaintiff makes no factual allegations against defendant PRICE, but claims he showed deliberated indifference to plaintiff's medical needs.
By his April 6, 2000, response to question no. 10 of the Court's Questionnaire, plaintiff states he wants the defendants "to be held responsible for their actions and be punished accordingly" and a monetary award to reimburse him for "pain, mental anguish and suffering." Plaintiff also requests restoration of his line class and good time lost as a result of the disciplinary cases involved in his complaint.
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 5.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 Snears 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 both in his complaint and in his April 6, 2000, response to the Court's Questionnaire to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
To the extent plaintiff requests restoration of goodtime lost in the disciplinary cases he received, a claim for good-time credits is foreclosed by Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and plaintiff must seek such relief through habeas.Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1973).
Plaintiff has presented no copy nor has he presented specific allegations of having submitted a step 2 grievance concerning Dr. Ratnarajah's alleged June 20, 1997, removal of his work restrictions and does not appear to have exhausted administrative remedies on that claim. Moreover, in the absence of a federal statute of limitations for civil rights actions, the two-year Texas general personal injury limitations period is applied. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993). If plaintiff did grieve this claim through both steps of the grievance process, allowing time for normal filing and processing of any grievance on this matter, a final denial by prison officials would have occurred on or about one hundred and five days after the June 20, 1997, removal of restrictions, or about October 3, 1997. Plaintiff signed and, presumably, mailed his original complaint on December 21, 1999; by application of the Mailbox Rule, it was filed the date of mailing. Thus, his claim against defendant RATNARAJAH appears to be barred both by the exhaustion of administrative remedies requirement, Title 42 United States Code, section 1997e(a), and by the statute of limitations.
In the Texas prison system, deadlines for responses to prisoner grievances are governed by the provision of Administrative Directive, AD-03.82 (rev.2) issued September 1, 1999. AD-03.82 (rev.2) establishes a deadline of 15 days for submission of the step 1 grievance (A.D.-03.82 (rev.2)VII.B.3.) and 40 calendar days for response by officials (A.D.-03.82 (rev.2)VII.B.5.); as well as a deadline of 15 calendar days from receipt of the response for submission of an appeal (A.D.-03.82 (rev.2)VII.C.1.) and 35 calendar days from receipt of the Step 2 form for response by prison officials (A.D.-03.82 (rev.2)VII.C.4.). In addition, A.D.-03.82 (rev.2) provides for a 40-day extension at either step to allow investigation and response, if notice is given. (A.D.-03.82 (rev.2)VII.G.). Thus, where notice of an extension was given, prison regulations provide for a potential total of seventy-five days in which to respond to a step 1 grievance or seventy days in which to respond to a step 2 grievance.
Further, absent unusual circumstances, it is the policy of prison grievance officials to allow no more than 90 calendar days to pass from the filing of the grievance to a final appeal decision. Board Policy BP-03.77 (rev.4) VIII., issued September 1, 1999.
By his April 6, 2000, response to questions 1 and 2 of the Court's Questionnaire, plaintiff argues defendant REVELL could not change his work restrictions without first conducting a CT scan or an MRI because a 1994 x-ray of plaintiff's cervical spine reflected:
There is rather pronounced ostephytic lipping at C3, 4, 5, and 6 levels. There is also narrowing of the disc spaces particularly at the CS to 6 and C6 to 7 levels there could be some encroachment on the intervertebral foramina on the left, Ct scan or MRI would be necessary for determination of any nerve root involvement. No recent fracture or acute bone pathology can be identified.
See page 5 of plaintiff's hand-printed List of Claims attached to his original complaint.
Because defendant REVELL did not first order an MRI or CT scan, plaintiff argues, he acted with deliberate indifference to plaintiff's serious medical need. Plaintiff appears to be trying to make similar allegations against Doctors Ratnarajah, Basse, and Ridge, as well. Further, plaintiff argues that Doctors Ratnarajah, Basse, and Ridge are supervised by defendant REVELL, and if REVELL didn't know of their acts, he should have.
Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under Title 42, United States Codes section 1983. Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 291-93, 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).
Plaintiff's allegations that the defendant physicians could not change his work restrictions unless they first performed a CT scan or an MRI are simply allegations that they should have utilized additional diagnostic measures and constitute, at best, a claim of negligence, not deliberate indifference, see Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991); however, section 1983 imposes liability for deprivation of constitutionally protected rights, not for violations of tort duties of care; Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. 1990); see, also, Daniels v. Williams, 474 U.S. 327, 331-34, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Moreover, to the extent plaintiff feels defendant REVELL was responsible because of his supervisory capacity, his allegation is that if defendant REVELL didn't know, he should have. This is merely reliance on REVELL's supervisory position and a theory of respondeat superior; however, theories of vicarious liability, such as respondeat superior, cannot support a cause of action under section 1983. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
Consequently, plaintiff has failed to state a claim against defendant REVELL or Doctors Ratnarajah. Basse, or Ridge on which relief can be granted.
Plaintiff's claim against defendant TINSLEY is that she gave him work assignments which violated his 1991, 1992, 1994, and 1998 work restrictions. Plaintiff has alleged he received six major disciplinary cases for refusing to work because he felt his shoe factory job violated his work restrictions, ultimately losing eleven years of accumulated good time credit. To find in plaintiff's favor, the Court would have to make factual determinations that would call into question the validity of the disciplinary cases and the determination of guilt therein. Therefore, plaintiff's civil rights claims cannot be considered and, in fact, do not accrue until after the Heck conditions have been met. Accord, Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996) (civil rights claim that officers used excessive force during arrest could not be maintained where plaintiff's conviction of battery of officer, based on that incident, had not been invalidated because a finding in plaintiff's favor would necessarily imply the invalidity of plaintiff's arrest and conviction for battery of officer). Plaintiff's complaint and attachments demonstrate these six disciplinary cases have not been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995) (quoting Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994)). Consequently, plaintiff's civil rights claims concerning his work assignment in violation of his medical restrictions lack an arguable basis in law and are frivolous until the Heck conditions have been met. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).
Of course, plaintiff's 1991, 1992, and 1994 work restrictions were not in force at the time of TINSLEY's acts and/or omissions. Plaintiff makes it clear that TINSLEY did not give him a job assignment until his 1991, 1992, and 1994 work restrictions had been withdrawn. As for the March 4, 1998, HSM-18 by Dr. REVELL which plaintiff references and attaches to his original complaint as Exhibit #5A(2), that document shows plaintiff was not medically unassigned, as plaintiff seems to think. In fact, he was restricted from working in the medical department or in food service and was restricted from work requiring climbing or walking on wet uneven surfaces. Those are the only work restrictions contained on the March 4, 1998 HSM-18. Plaintiff's allegations do not indicate that any of these conditions were violated. Instead, he alleges he was worked more than four hours at a time, was required to stand most of that time, was strip-searched in cold temperatures, and had to work with glue containing a carcinogen.
The Heck court, concerned with the relationship between habeas corpus claims and civil rights claims, broadly held that any section 1983 claim which attacks the unconstitutionality of a conviction (or imprisonment, as the case may be) does not accrue until that conviction (or sentence) has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal courts issuance of a writ of habeas corpus." Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995) (quoting Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994)).
Further support for this approach is found in Clarke v. Stalder, 154 F.3d 186 (5th Cir. 1998), where the Fifth Circuit declined to address plaintiff's claim that a Louisiana prison rule was facially unconstitutional because resolution of the issue would have preclusive effect in any state court habeas action. See, also, Clayton-El v. Fisher, 96 F.3d 236, 243 (7th Cir. 1996) (if plaintiff proved in a section 1983 action that the result of the disciplinary process was invalid, this proof would have preclusive effect in a state court habeas corpus action challenging the recision of his good time credits); Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996)(plaintiff's First Amendment claims were so entangled with the propriety of the disciplinary result that a ruling in plaintiff's favor would necessarily imply the invalidity of the disciplinary result and the lengthened sentence).
Plaintiff's claims against defendants McCOY, ELLINBURG, PRICE, JOHNSON, and BAINES are that his letters of complaint were not properly investigated and resolved. Further, plaintiffs disagrees with the handling of his 1-60, in which he complained of Randolph McVey's job performance as a grievance administrator, which 1-60 plaintiff alleges was submitted by Boland as a grievance and subsequently denied by Rodeen. The narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Further, the processing of one of plaintiff's 1-60's as a grievance does not appear to violate his constitutional rights in anyway, despite plaintiff's contention that it amounts to falsification of state documents. Any right to have his complaints, whether presented in an 1-60 or in a grievance, processed in a particular way or investigated and resolved is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 443 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claims against defendants McCOY, ELLINBURG, PRICE, JOHNSON, and BAINES, as well as any claim against Boland or Rodeen in connection with processing his 1-60 as a grievance, 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).
Finally, plaintiff alleges defendant WILLIAMS, the supervisor of the shoe factory, ignored his complaint that the glue he was buffing off the shoes was hazardous to his health, telling plaintiff he misread the label. Plaintiff has presented no copy of, nor has he presented specific allegations of having submitted, a step 2 grievance concerning WILLIAMS' response to his complaint about the glue. Instead, plaintiff attached a step 1 grievance in which he included that complaint along with other matters. That grievance was denied, and there is no indication, and no particularized allegation from plaintiff, that he ever proceeded to step 2 of the grievance process on that issue. Consequently, it does not appear plaintiff has exhausted administrative remedies on this claim and it is, therefore, barred by Title 42, United States Code, 1997e(a).
In addition, plaintiff attached the glue label to his original complaint as Exhibit #10. It reads, in relevant part, as follows:
CAUTION: May cause eye and skin irritation. Warning: Product contains a chemical known to the State of California to cause cancer.
The label also warns against eye contact and repeated or prolonged skin contact, recommends protective eyewear and adequate ventilation and has instructions for spill cleanup, storage, and use, as well as instructions for treatment if irritation develops.
Clearly plaintiff has presented no evidence the glue product has been banned or that its use is restricted. Plaintiff states he does not know whether he contracted cancer from buffing the glue off shoes in the shoe factory. It is worth noting that plaintiff was apparently removed from the shoe factory and reassigned to the medical squad at an undisclosed date before March 26, 1999. Consequently, the duration of his exposure was clearly limited. As a former cancer patient, plaintiff's fear of cancer is understandable; however, plaintiff has alleged no fact to indicate he is more susceptible to developing cancer than someone who has not been treated for testicular cancer. Further, plaintiff has alleged no fact showing the glue was used in any manner which deviated from the recommended methods. The warning concerning a conclusion reached by an agency of the State of California does not show plaintiff was, indeed, exposed to a carcinogen in such an amount or manner as to present a substantial danger of serious harm or that defendant WILLIAMS was aware of and disregarded such a substantial danger of serious harm. Consequently, plaintiff has failed to state a claim of deliberate indifference by defendant WILLIAMS.
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 JESSE HAMPTON 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).