Opinion
3:03-CV-2241-D
February 18, 2004
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 District 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 pretrial detainee pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently confined at the Dallas County Jail in Dallas, Texas. Defendant is the Medical Department Staff at the Lew Sterrett Justice Center (also known as the Dallas County Jail and hereinafter referred to as such). The court has not issued process in this case. However, on December 3, 2003, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on December 9, 2003.
Statement of Case: The complaint alleges that, following his booking at the Dallas County Jail on May 1, 2003, Plaintiff experienced undue delays in receiving medical attention for a shoulder injury and bruised ribs. (Complaint at 4 and answer to Question 3). He requests monetary compensation.
In addition to damages, Plaintiff requests release from confinement. Such a request is cognizable only in a habeas corpus action pursuant to 28 U.S.C. § 2241, et. seq. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (where a petitioner attacks the duration of his confinement, `"the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983.'"); see also Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (a petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures);Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (same).
In answer to the questionnaire Plaintiff specifies that he did not see a doctor until June 16, 2003, one and one-half month after his initial incarceration, and only after writing a grievance. (Answer to Question 7). This doctor allegedly did not "pay . . . a lot of attention" to Plaintiff; she gave him "some pills," presumably for pain, and ordered x-rays. (Id.). Plaintiff was ultimately x-rayed one and one-half month later, only after submitting yet another grievance. (Id.). According to Plaintiff on October 10, 2003, a nurse informed him that the x-rays were negative and that he would need to see a bone specialist. (Id.). This nurse also prescribed Ibuprofen for pain. (Id.). On November 3, 2003, Dr. Holbrook injected steroids in Plaintiffs shoulder pursuant to the advice of a bone specialist, who had suggested the steroid injection first and an appointment only if the injection did not improve Plaintiffs condition. (Id.). At the November 11, 2003 visit, Dr. Holbrook prescribed Ibuprofen because Plaintiff claimed his shoulder had worsened since the steroid injection. (Id.). Dr. Holbrook also informed Plaintiff that he did not need to see a bone specialist. (Id.).
Plaintiff concedes his ribs have healed completed. (Answer to Question 5). His shoulder, however, still hurts. (Id.). He surmises his shoulder was either dislocated or fractured when he was first booked at the Dallas County Jail, but that it had healed on its own by the time of the x-rays. (Id.). Plaintiff complains of a knot on his collar bone caused by the healing of his injured shoulder without medical attention. (Id.). Plaintiff also complains of inability to sleep and relax "because of moving the wrong way and not having anything to take away the pain." (Answer to Question 6). 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:
It appears Plaintiff exhausted his administrative remedies,see 42 U.S.C. § 1997e(a), prior to filing this suit.See Complaint at ¶¶ III and V, and Answer to Questions 7 and 11 (explaining the filing of grievances and the responses received).
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. § 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). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
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);Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind."Norton, 122 F.3d at 291. It occurs when a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer 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. Mace v. City of Palestine, 333 F.3d 621, 625-26 (5th Cir. 2003);Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999); Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996).
Accepting as true Plaintiffs allegations as to the denial and delay in providing medical attention for his shoulder and ribs injury, he has failed to raise a claim cognizable under § 1983. In answer to the questionnaire Plaintiff identifies four nurses and two doctors at the Dallas County Jail, who provided medical attention since his incarceration on May 1, 2003. (Answer to Question 7). While he alleges these individuals were both negligent and deliberately indifferent to his condition, (Answer to Question 9), he offers no facts showing deliberate indifference on their part. (Answer to Question 10). Plaintiff concedes that he received medical attention for his shoulder injury. He only disagrees with the type of medical care that he received. Specifically he states that the medical personnel should have acted on his numerous requests for medical attention and complaints of pain by conducting a thorough examination "instead of a two minute fly by." (Id.). A disagreement of opinion as to the correct medication and/or 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).
Relief is unavailable under § 1983 for claims grounded only in negligence. See Daniels v. Williams, 474 U.S. 327 (1986);Davidson v. Cannon, 474 U.S. 344 (1986); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
In addition to denial of medical care, Plaintiff complains about the delay in providing medical care — i.e., the delay in first seeing a doctor, in having his shoulder x-rayed, and in receiving the x-ray results and follow-up care. Delay in providing medical care does not give rise to an eighth amendment violation, or a fourteenth amendment violation in the event of a pre-trial detainee, unless the deliberate indifference of the medical staff results in substantial harm.Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Although Plaintiff suffered from a shoulder injury and bruised ribs, it is equally self-evident that his injuries were not life threatening. Plaintiffs own allegations concede that his ribs and affected shoulder have healed, although the latter may have caused a knot to protrude on his collar bone. Under these circumstances, Plaintiffs claim of delay in providing medical care does not amount to a constitutional violation.
Plaintiff has been given an opportunity to expound on the factual allegations of his complaint 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 plaintiffs 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). A review of the complaint, supplemented by the answers to the magistrate judge's questionnaire, demonstrates that Plaintiff cannot allege a claim cognizable under § 1983 against the Medical Department Staff at the Dallas County Jail. Accordingly, the complaint should be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiffs complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b)(1).
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.