Summary
holding that a prisoner who was not provided pain medication following the suturing of a head wound — but who received anesthetic at the time of the suturing — failed to demonstrate "a sufficiently serious medical need" to support his § 1983 claim
Summary of this case from Gilbert v. FrenchOpinion
3:02-CV-2527-P
June 18, 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 the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil rights complaint brought by a former inmate of the Dallas County Jail pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently confined at the Eastham Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Lovelady, Texas. He was incarcerated at the Dallas County Jail at the time of filing this action and during the events at issue in this case.
Defendants are Dallas County Sheriff Jim Bowls, Sgt Rounds, Deputy J. Watson, Deputy J. Temple, and Nurse Karen Hewitt.
Although the amended complaint does not list Dr. Flanagan as a defendant, at the hearing on February 12, 2003, Plaintiff specifically stated that Dr. Flanagan was a named defendant.
The court has not issued process in this case. However, on February 12, 2003, the Magistrate Judge held a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to receive evidence relating to Plaintiff's request for medical care as alleged in his amended complaint and motion for restraining order (TRO), filed on January 13, 2003. Subsequently, on April 27, 2003, the Magistrate Judge issued a questionnaire to Plaintiff who filed his answers and supplemental answers on April 25 and 28, 2003, respectively.
Statement of Case: Plaintiffs amended complaint seeks monetary relief for denial of medical care for two pre-existing medical conditions, and for denial of pain medication following the suturing of a head wound on December 10, 2002. (Amended complaint at 3 and 4 and handwritten attachment). The amended complaint further alleges that Defendants stole money from his inmate trust account, denied due process during the grievance process, and failed to investigate his grievances. (Id.). Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
In addition to monetary damages, the amended complaint seeks injunctive relief. Plaintiff was transferred to TDCJ-ID following the February 12, 2003 Spears hearing. (See Notice of Address Change filed on March 20, 2003). This transfer renders his claims for prospective injunctive relief moot. See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001); Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5ih Cir. 1991); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).
Insofar as Plaintiff requests that the Defendants be prosecuted for their conduct in this action (see complaint filed on November 19, 2002, at 2), his claim has no basis in law. No one has a constitutional right to have charges filed against a third person.Oliver v. Collins, 904 F.2d 278, 280-81 (5th Cir. 1990).
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 Ms 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. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff seeks to sue Jim Bowles, Sheriff of Dallas County, for failing to respond to the numerous grievances and letters requesting medical care. To be liable under § 1983, an individual must be personally involved in the acts causing the deprivation of a person's constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983). It is settled that supervisory officials cannot be held vicariously liable for their subordinates' actions under § 1983.See Monell v. Dep't of Social Servs., 436 U.S. 658, 691-95 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir. 1988);Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials may be held liable only if they (i) affirmatively participate in acts that cause constitutional deprivations, or (ii) implement unconstitutional policies that causally result in plaintiff's 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).
The complaint, as supplemented by the answers to the questionnaire, fails to state any facts showing that the Dallas County Sheriff was "personally involved" in the alleged denial of medical care. Plaintiff merely states that the Sheriff failed to respond to grievances and letters which Plaintiff had sent him regarding the lack of medical care. (Answer to Question 4 and Supplement filed on April 5, 2003). Plaintiff does not allege any other facts which this court could liberally construe to allege that the Sheriff was personally involved in the alleged denial of medical care. (Id.).
Next Plaintiff seeks to sue Nurse Hewitt and Dr. Flanagan for denying medical care for his pre-existing medical conditions — i.e., acute prostatitis and possible retinoblastoma. To state a colorable claim for the denial of medical care under the Eighth Amendment, convicted inmates must allege acts or omissions "sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind. Id. at 105-06, 97 S.Ct. at 291-92;Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). It occurs only when a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Fanner v. Brennan, 511 U.S. 825, 837-840 (1994). Under the Due Process Clause of the Fourteenth Amendment, the same standard applies to pretrial detainees who complain of episodic acts or omissions resulting in the denial of medical care. Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996).
Prior to his arrest and incarceration at the Dallas County Jail, Plaintiff was being treated for acute prostatitis and possible retinoblastoma, the latter of which caused him cluster migraine headaches. (Amended complaint at handwritten attachment). He claims he was taking Proscar (generic name Finasteride) for his prostatitis, and three prescription pain relievers for his migraine headaches. (Plaintiff's evidence in support of TRO, filed on February 18, 2003). On May 1, 2002, two months before his arrest, Plaintiff sought emergency medical care at Parkland Memorial Hospital for retro-orbital pain in his right eye, and migraine headaches, which were concentrated on the right side of his head. (See Medical records submitted prior to Spears hearing). He was released with two prescriptions (Lortab and Phenergan), and instructed to make an appointment at the neurology clinic for immediate CT scan and MRI. (Id. and Supplement to the complaint filed on December 23, 2002, at letter to John W. Price).
PROSCAR is prescribed for men with benign prostatic hyperplasia or BPH. See Proscar.com.
On July 8, 2002, at the time of his booking into the Dallas County Jail, Plaintiff informed the booking officer of his pre-existing medical conditions and his immediate need for medical attention and prescription medications. (Amended complaint at handwritten attachment and supplement to amended complaint). Although Plaintiff repeated these requests verbally and in writing for the next five months, he claims his pre-existing medical conditions were ignored. (Id). As of the filing of his complaint on November 19, 2002, Plaintiff alleged he had neither been examined by a doctor nor provided medications for his pre-existing medical conditions.
The medical records, provided by Dallas County before theSpears hearing, reflect that on July 13, 2002, Plaintiff's chart was received and reviewed by the on-duty nurse and doctor. Plaintiff's medical records from Parkland Memorial Hospital were then requested On July 22, 2002, Plaintiff had his vital signs taken and lab tests done, including a Prostate-Specific Ag test (PSA). Thereafter, on September 16, 2002, Plaintiff was examined by Nurse Hewitt. His medical records, including the medical records from Parkland Memorial Hospital, were then forwarded to Dr. Flanagan, who reviewed them on September 19, 2002. On September 25, 2002, Plaintiff was again seen in the nurses office about the medications that he had been taking at the time of his arrest for his pre-existing medical conditions. Subsequently on November 9, 2002, Dr. Flanagan requested urology and ophthalmology referrals for Plaintiff. However, the first available appointment was not until April 24, 2003 for the urologist, and March 5, 2003, for the opthalmologist. On December 22, 2002, Dr. Flanagan also ordered two prescription medications for Plaintiff (Proscar and Inderal) and a second PSA, which was conducted on January 8, 2003.
It is unclear if and when Plaintiff received these medications.
At the Spears hearing on February 12, 2003, Plaintiff informed the court that a few weeks earlier he had received a supply of Propranolol, ½ tablet four times daily, which is commonly used to treat many ailments including migraine headaches. See RxList, http://www.rxlist.com/cgi.generic/propran_ids.htm. He explained, though, that he neither saw a doctor nor was given any instructions from a medical officer before the medication was taken to his tank. Due to the lack of information, Plaintiff stated that he had not taken the Propranolol.
Following Plaintiff's transfer to TDCJ, he was given three prescription medications:
(1) Doxazosin 1mg. (starting on April 4, 2003) for Benign Prostatic Hyperplasia, see http://www.rxlist.com/cgi/generic/doxazo_ids.htm;
(2) Ranitidine 150 mg. (starting on April 1, 2003) to prevent the recurrence of ulcers and to treat other conditions where the stomach makes too much acid, see http://ranitidine.com, and
(3) Propranolol 20 mg. (starting on April 16, 2003), for migraine headaches.
(See Amended response to questionnaire, filed on April 28, 2003, at last attachment).
Accepting as true Plaintiff's allegations as to the denial of medical care for his preexisting medical conditions, he has failed to raise a claim cognizable under § 1983. Plaintiff offers no facts showing deliberate indifference to a serious medical need. He alleges he was never examined by a doctor nor provided medications for his pre-existing medical conditions. While a doctor did not physically examine Plaintiff, his pre-existing medical conditions were timely brought to the doctor's attention; lab tests, including a PSA, were done on two separate occasions; and referrals to a urologist and opthalmologist were ordered. The record further discloses that medications for his pre-existing prostatis and retinoblastoma were ordered in December 2002, and that he ultimately received a prescription for migraine headaches in mid January 2003.
Insofar as Plaintiff asserts that Dr. Flanagan and Nurse Hewitt misdiagnosed the severity of his pre-existing conditions, his claims do not rise to a constitutional violation. A disagreement of opinion as to the correct medical treatment does not constitute an actionable civil rights claim, but at most, a possible claim of medical malpractice appropriately addressed under state law. E.g. Estelle, 429 U.S. at 107-108; Norton, 122 F.3d at 292; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard 590 F.2d 105, 107 (5th Cir. 1979).
Nor can Plaintiff raise a claim under § 1983 for delay in providing medical care and prescription medications for his pre-existing medical conditions. Delay in providing medical care does not give rise to an eighth amendment violation unless the defendants' deliberate indifference results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Although Plaintiff suffered from prostatitis and possible retinoblastoma, which caused cluster migraine headaches, it is equally self-evident that his conditions were not life threatening. Nor has he alleged that the delay in providing medical care has resulted in substantial harm. Moreover, Plaintiff's own evidence concedes that he did not continuously take Proscar for prostatitis and pain medications for his migraines since the two conditions were first diagnosed in 1998 and 2001 respectively. (Plaintiff's arguments and evidence in support of temporary injunction, filed on February 18, 2003). Under these circumstances, Plaintiff's claim of delay in initially providing him medical care and medications for his pre-existing medical conditions does not amount to a constitutional violation.
In addition to the above pre-existing medical claims, Plaintiff complains about Defendants' failure to prescribe a pain reliever following the suturing of a head wound on December 10, 2002. He alleges that Nurse Hewitt interfered with the treatment of his head wound in retaliation for the filing of this civil rights action. Following the suturing of the wound, and while Plaintiff was being bandaged, Defendant Hewitt allegedly ordered that Plaintiff be removed from the infirmary, which prevented Plaintiff from requesting a pain reliever. (Supplement to amended complaint, filed on Dec. 23, 2002, at first inmate grievance). Plaintiff's written requests for pain medication, submitted following his return to his tank, were allegedly ignored. (Id. at inmate requests dated December 10 and 11, 2002).
Accepting as true Plaintiffs allegations as to the denial of pain medication, he has failed to allege acts or omissions sufficiently harmful to evidence a deliberate indifference to a serious medical need.Estelle, 429 U.S. 97, 106. The denial of pain medication following the suturing of a head wound, while reprehensible if true, does not amount to a sufficiently serious medical need. Plaintiff had been given an anesthetic at the time of the suturing. That the doctor and/or nurse did not prescribe pain medication as a matter of course following the suturing of the head wound provides further support for the conclusion that Plaintiff's condition was not serious.
Next Plaintiff complains about the unauthorized withdrawal of funds from his inmate trust account by Sgt. Rounds, the inmate trust fund and vault manager of the Dallas County Jail.
The Supreme Court has held that the unintentional loss of life, liberty or property does not state a cause of action under § 1983.Daniels v. Williams, 474 U.S. 327, 328 (1986); Davidson v. Cannon, 474 U.S. 344, 347 (1986). Where mere negligence is involved in causing a deprivation or damage to property, no procedure for compensation is constitutionally required. Id. Therefore, insofar as Plaintiffs claim for theft of his money is grounded on negligence, it lacks an arguable basis in law and should be dismissed as frivolous.
To the extent Plaintiff seeks redress for the intentional theft of money from his inmate trust account, the United States Supreme Court has held that the intentional deprivation of property by state employees does not constitute a civil rights violation as long as the state provides a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984); accord Nickens v. Melton, 38 F.3d 183, 184-85 (5th Cir. 1994); Holloway v. Walker, 790 F.2d 1170, 1174 (5th Cir. 1986) (finding no breach of federally guaranteed constitutional rights, even where a high level state employee intentionally engages in tortious conduct, as long as the state system as a whole provides due process of law). "In essence, the doctrine protects the state from liability for failing to provide a predeprivation process in situations where it cannot anticipate the random and unauthorized actions of its officers." Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). The plaintiff bears the burden to establish that the state's postdeprivation remedy is inadequate. Id. at 94-95.
Under Texas state common-law, Plaintiff may sue for conversion to remedy his alleged property loss. Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994); Myers v. Adams, 728 S.W.2d 771 (Tex. 1987). Conversion occurs when there is an unauthorized and unlawful exercise of dominion and control over the personal property of another which is inconsistent with the rights of the owner. Beam v. Voss, 568 S.W.2d 413, 420-21 (Tex.Civ.App.-San Antonio 1978, no writ). If Defendant Round exercised unauthorized and unlawful control over Plaintiff's money, he has a cause of action in conversion. Such a common-law action in state court would be sufficient to meet constitutional due process requirements. Murphy, 26 F.3d at 543-44. In light of this adequate state common-law remedy, Plaintiff's claim based on the alleged theft of money from his inmate trust account fails to state a claim upon which relief can be granted.
Plaintiff's claim that Officers Watson and Temple failed to investigate his grievances fully and completely fares no better. An inmate does not have a constitutional entitlement to an adequate grievance procedure.See e.g., Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (there is no constitutional right to participate in grievance procedures);Antonelli v. Sheahan, 81 F.3d 1422, 1430-31 (7th Cir. 1996) (inmates do not have a constitutional right to an adequate grievance procedure; any right to inmate grievance procedure is procedural, not substantive, right and, thus, state's inmate grievance procedures do not give rise to liberty interest protected by due process clause);Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam) (inmates do not have a constitutional right to participate in grievance procedures); Jenkins v. Henslee, 2002 WL 432948, *2 (N.D.Tex. Mar 15, 2002) (NO. 3-01-CV-1996-R). Although exhaustion of administrative remedies is a condition precedent to filing a suit arising under § 1983, see 42 U.S.C. § 1997e(a), its ineffectiveness or altogether absence does not give rise to a constitutional claim. Hence any alleged violation of the grievance procedure as alleged in Plaintiff's complaint does not amount to a constitutional violation.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint at the Spears hearing as well as by way of questionnaire. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (reaffirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (same); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (same). Because he has failed to allege any cognizable claim for relief against the named Defendants under § 1983, the complaint should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1) and 1915(e)(2)(B)(i).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiffs complaint with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
It is further recommended that Plaintiff's motions for appointment of counsel (docket #9), for reconsideration of the motion for appointment of counsel (docket #10), and for a temporary restraining order (docket #12) be denied as moot.
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.