Opinion
2:04-CV-0096.
October 29, 2004
REPORT AND RECOMMENDATION
Plaintiff GREGORY DARNELL JONES, 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 complains the defendants have repeatedly accessed his computerized records and changed his work restrictions in order to inflict pain and aggravate his medical conditions. Plaintiff says he suffers from high blood pressure and is a non-insulin-dependent diabetic being treated with pills. Plaintiff claims that, on January 21, 2004, the defendants assigned him to the field hoe squad utility #1 in violation of his work restrictions. He states his medically-determined work restrictions are: (1) no lifting greater than 50 lbs.; (2) limited sitting; (3) no walking on wet uneven surfaces; (4) no work in direct sunlight; (5) no work with chemical irritants; (6) no work requiring safety boots; and (7) no work around machines with moving parts. Plaintiff claims his restrictions were determined by: (1) Dr. J. O'Hare; (2) Dr. Nygun; (3) "Dr. Talley And [sic] Moran's"; and (4) Dr. Largent.
Plaintiff requests $10,000.00 in compensatory damages from each defendant.
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, including his complaint and July 26, 2004 Briefing Order Response, and has viewed the facts alleged in his complaint, his Briefing Order Response, and the testimony received at the October 14, 2004 Spears hearing to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The appropriate definition of "deliberate indifference" under the Eighth Amendment is "subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994); Reeves v. Collins, 27 F.3d. 174 (5th Cir. 1994).
Spears Hearing
On October 14, 2004, an evidentiary hearing was conducted by the United States Magistrate Judge in the above-referenced cause pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), to determine the substance of plaintiff's claim and whether service of process should issue.
At the hearing, plaintiff was sworn and testified under oath that this suit, the other eight lawsuits presently pending in this Court, and three more which had not been received by the time of the hearing, allege the same claim with respect to different job assignments and sets of defendants: that plaintiff's work restrictions against work in direct sunlight and against work requiring safety boots, i.e., steel-toed shoes, had been violated.
As of October 14, 2004, at the time of the hearing, plaintiff had pending the following nine cause numbers: 2:04-CV-0096; 2:04-CV-0097; 2:04-CV-0176; 2:04-CV-0197; 2:04-CV-0207; 2:04-CV-0233; 2:04-CV-0239; 2:04-CV-0250; and 2:04-CV-0263. In the afternoon of October 14, 2004, two additional lawsuits from plaintiff was received by the Clerk and filed of record as cause nos. 2:04-CV-0274 and 2:04-CV-0275.
Plaintiff testified he had arrived at the Dalhart Unit on September 11, 2003. He stated that, on January 21, 2004, he was assigned to the utility squad #2, which, he said, was "like a regular hoe squad," requiring inmates to wear steel-toed boots while chopping weeds and picking vegetables.
Mary Holligan, Chief of Classification at the Clements Unit, was sworn and testified plaintiff was assigned to the utility squad on January 21, 2004 and was then assigned to the medical utility squad on March 12, 2004. She further testified her inquiries to Major Hampton at the Dalhart Unit revealed that inmates on the Dalhart Unit hoe squad are not routinely issued steel-toed boots. Further, she stated, the utility squads and the medical utility squads are not allowed steel-toed boots at all and are hardly ever called out to work.
Mrs. Holligan also testified she had obtained from the Dalhart Unit the job descriptions of the two jobs plaintiff had been assigned at the Dalhart Unit since January of this year and presented them to the Court. They are attached hereto as Exhibit A. Review of these job descriptions reveals they do not indicate that the inmate is required to wear steel-toed boots. Doctor Uy, a physician practicing at the Clements Unit infirmary, reviewed plaintiff's medical records and, after being sworn, testified that plaintiff's records show a medically-determined restriction against steel-toed boots. He further testified that his review of plaintiff's medical records revealed no basis for that restriction, such as peripheral neuropathy resulting from plaintiff's diabetes, and that it was his opinion the restriction should be removed. He stated that diabetic patients with poor circulation and peripheral neuropathy may develop sensory problems and, as a result, wear canvas shoes, but a diabetic inmate who has not suffered sensory loss could wear steel toed shoes.
Plaintiff responded that inmates working outside the gate were required to wear steel-toed boots. Plaintiff stated that, in none of his suits, had he ever sued the officer who is alleged to have ordered him to wear steel-toed boots and who took him to the necessities department to be issued such boots.
Upon further inquiry by the Court, plaintiff testified he had worn steel-toed boots on only two days: January 22, 2004 and April 24, 2004. Plaintiff stated the January 22nd date was covered in the instant lawsuit and the April 24th date was covered in his cause no. 2:04-CV-0176. He said that, in both instances, when his grievances concerning being assigned to a job in violation of his work restrictions were received by prison officials, he was no longer required to work. Instead, he said, he would turn out for work and be instructed to return to his cell or housing pod.
When asked what harm he had suffered from wearing steel-toed boots on these two dates, plaintiff responded they made his feet swell, which caused them to hurt. Plaintiff was asked what treatment he received and how often his feet swelled. He responded his feet generally swell about three times a week and that when they did, he got salt from the infirmary or from the kitchen and soaked his feet in salt water.
The facts presented by plaintiff do not support a claim of deliberate indifference to his serious medical needs by the defendants. Initially, the Court notes job assignments are made by the Classification Department at each unit, but that assignment of particular on-the-job tasks are within the purview of the job supervisors. Plaintiff has alleged his job assignment violated his constitutional rights, but he has not sued members of the Dalhart Classification Department, the people who made such assignments. Moreover, review of the job descriptions and the testimony concerning the work squads at the Dalhart Unit reveals inmates in plaintiff's job assignments are not required to wear steel-toed boots.
As to actual performance on the job, plaintiff has testified he has not sued the officer on the job who he alleges ordered him to wear steel-toed boots.
As to the defendants plaintiff did name, plaintiff has alleged no fact indicating the named defendants ever required him to wear steel toed boots and he admits that, the day after he grieved having to work in violation of an unspecified work restriction, they consistently excused him from work. The facts alleged by plaintiff, as supplemented at the Spears hearing, will not support a claim of deliberate indifference to his serious medical need. Thus, plaintiff has failed to state a claim of deliberate indifference on which relief can be granted.
Accepting, for purposes of the Spears hearing, the truth of plaintiff's allegations, his allegations fail to support any claim of harm. Although plaintiff claims the single day's work covered in this lawsuit caused foot swelling, he also testified that, even when not working he suffers foot swelling three days a week, requiring him to obtain salts in which to soak his feet. Thus, plaintiff's own allegations show he was not harmed by any act of the defendants.
With respect to the issue of harm, the Court takes notice of plaintiff's medical records, which were reviewed in open court with the assistance of Dr. Uy. Review of such records shows the following medical care from January through July of 2004.
1/08/04 Plaintiff's HSM-18 was updated per policy.
1/15/04 Plaintiff was seen in chronic clinic for his chronic conditions, diabetes, blood pressure, and cholesterol.
2/14/04 Plaintiff submitted a sick call request for dry skin and was evaluated by a nurse.
2/17/04 Plaintiff was seen by Dr. Basse for his dry skin and refused the cream offered as treatment.
3/04/04 Nurse's entry to change plaintiff's Lovostat medication time to the evening.
4/13/04 Plaintiff was scheduled to see a dietician.
4/23/04 Plaintiff's appointment with the dietician was discontinued and it was noted that dietary counseling would be provided at his next chronic clinic appointment.
7/07/04 Blood was drawn for testing and sent to the lab.
Plaintiff stated the medical records do not show every time he went to the infirmary or to the kitchen for salt to soak his feet, but did not challenge their accuracy in any other respect.
Plaintiff also contended his restriction against work in direct sunlight, which he stated he had when he first arrived at Dalhart, was also violated.
Doctor Uy testified that plaintiff's present work restrictions were the same as those he had in January of 2003. He then read the nurse's entry in plaintiff's medical records for the day he was received at Dalhart and noted they were restriction numbers 9, 13, 17, 23, 24, and 25, with no mention of no. 19.
Work restrict no. 9 states, "No lifting over 50 lbs."
Work restriction no. 13 states, "Limited sitting."
Work restriction no. 17 states, "No walking on wet uneven surfaces."
Work restriction no. 23 states, "No work with chemicals or irritants."
Work restriction no. 24 states, "No work requiring safety boots."
Work restriction no. 25 states, "No work around machines with moving parts."
Work restriction no. 19 states, "No work in direct sunlight."
On this point, Mary Holligan testified plaintiff's work restrictions had been the same since September of 2003 and that neither his December 10, 2003 nor his current HSM-18 contain a restriction on work in direct sunlight. She said work restrictions are determined by medical personnel and that classification and security personnel have no way of changing such records and do not make such determinations.
Plaintiff did not challenge this testimony or the records of his work restriction. He testified that a Dr. Largent at the Jester III Unit had placed the no direct sunlight restriction on plaintiff; nevertheless, plaintiff agreed it was no longer part of his restrictions. Review of plaintiff's HSM-18s contained in his classification records produced for the Spears hearing reveals a March 4, 1999 HSM-18 showing the no work in direct sunlight restriction, but all of plaintiff's earlier and later HSM-18s omit this restriction. In fact, this restriction was removed at least by the time the November 18, 1999 HSM-18 issued while plaintiff was still at the Jester III Unit and still under Dr. Largent's care.
Plaintiff's admission that the sunlight restriction was no longer in his records when he received and worked the job assignments he now complains about defeats his claim that the defendants violated that restriction. Further, plaintiff has alleged no fact to support a claim that defendants had this restriction removed while he was still at the Jester III Unit or stated why they would do so.
Consequently, it is clear plaintiff's claim in this respect, if not fanciful, is purely speculative and lacks any arguable factual basis.
Based on the above, it is clear that plaintiff has failed to state any claim on which relief can be granted against any of the defendants and the instant cause should be dismissed.
Exhaustion of Administrative Remedies and Amendment of Claim
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).
In response to question no. III of the complaint form inquiring whether the plaintiff has exhausted both steps of the grievance procedure, plaintiff has marked "Yes." Review of plaintiff's grievances, however, reveals he merely grieved the violation of unspecified work restrictions and did not state how his work assignment violated them nor did plaintiff specifically complain at all of wearing steel-toed boots at any time.
Thus, even if plaintiff were to amend and sue the officer who allegedly ordered him to wear steel-toed boots and/or who requires him to wear them when not working, his grievances are insufficient to alert prison officials to that problem. It is clear plaintiff has not exhausted administrative remedies on a claim against the officer who actually required him to wear the steel toed boots. Therefore, this claim would be barred by Title 42, United States Code, section 1997e(a); and amendment is futile. Thus, plaintiff has plead his best case and no further factual statement is needed. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986).
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 GREGORY DARNELL JONES be DISMISSED 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 any attorney of record by certified mail, return receipt requested.
IT IS SO RECOMMENDED.