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determining that a herniated disc and degenerative spinal disease were not serious medical needs
Summary of this case from Curran v. AleshireOpinion
Civil Action No. 3:00-CV-0662-L
November 29, 2002
MEMORANDUM OPINION AND ORDER
Before the court is Defendants Myers and Peterson's Motion for Summary Judgment, filed April 19, 2002. After careful consideration of the motion, Plaintiff's response, the summary judgment evidence, and applicable law, the court grants Defendants Myers and Peterson's Motion for Summary Judgment.
I. Factual and Procedural Background
This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff, Kenneth Ray Lusk ("Lusk" or "Plaintiff"), is an inmate confined at the Dallas County Jail. Defendants are Gregory Myers ("Myers") and Martin Peterson ("Peterson") (collectively, "Defendants"), Detention Services Officers for the Dallas County Jail.
On December 13, 1999, at approximately 3:05 p.m., Myers, along with Peterson and five other detention officers, commenced a routine search for contraband in tank No. 03SH08, a housing unit in the Susan Kays Jail Facility. At that time, there were twenty-four (24) inmates in the tank, including Lusk. Myers instructed the inmates to gather their personal belongings, after which he and the other officers escorted them to the jail's gymnasium. Once inside the gym, the officers directed the inmates to space themselves five feet apart along the wall; to place their personal possessions (which had been placed in crates) two feet in front of them on the floor; and then to turn around and place their hands against the wall. The officers further directed the inmates to remain in this position until the search was completed.
According to Lusk, after standing in the ordered position for a while, he asked Myers if he could sit on the floor or go to a holding cell until it was time for his belongings to be searched because his medical condition prevented him from standing with his hands against the wall for a prolonged period of time. Lusk told Myers that he suffered from a herniated disc and a degenerative spinal condition in his back; that he was under a doctor's treatment for the condition; and that Myers could verify the information by checking his medical files. Myers, in response, told Lusk that "he could care less what [his] medical files say[;] if [he] took [his] hands off that wall, he [Myers] was going to slam [him] to the floor." Pl.'s Compl. at "Statement of Claim," page one. Lusk requested to speak with Peterson, the officer in charge of the shakedown. Peterson told Lusk that he did not care what his medical files said, he was to do as he was told. Lusk then requested to speak with the doctor or nurse, to which Myers and Peterson responded that the nurse (Sue Watson) did not want to see him. Lusk told Myers and Peterson that he was in a great deal of pain and could no longer stand in the ordered position. Thereafter, Lusk took his hands off the wall, placed them behind his back and proceeded to sit on the gymnasium floor. Peterson then ordered Myers to write an incident report recommending disciplinary action for Lusk's failure to obey a direct order.
Plaintiff's Complaint alleges that he had been standing in the position for about 10 to 15 minutes. Plaintiff's answers to the Magistrate Judge's Questionnaire to Plaintiff states that Lusk stood in the position for about 20 to 30 minutes.
The court notes Plaintiff's Complaint and answers to the magistrate judge's Questionnaire to Plaintiff allege that Plaintiff asked Myers if he could have a seat on the floor; however, Plaintiff's response to Defendants' summary judgment motion states for the first time that he asked a detention officer by the name of Johnston if he could sit on the floor and that Johnston left the gymnasium after he told him that he could have a seat on the floor because he knew about his back. Since Plaintiff's Complaint and answers to the magistrate judge's questionnaire are accompanied by a declaration or verification which state that the allegations made therein are true under penalty of perjury, and Plaintiff's response does not, the court disregards the allegation contained in the response to the extent it conflicts with the allegations contained in Plaintiff's pleadings.
The term "shakedown" is the word used by the parties to denote a routine search for contraband.
Defendants, on the other hand, tell a slightly different story. According to Myers, while searching another inmate, he noticed Lusk sitting on the gymnasium floor. Myers states that he ordered Lusk to stand up, turn around and place his hands against the wall. Lusk refused, stating that he had a bad back that prevented him from complying with Myers's order. Myers states that Lusk did not appear to be injured, and that he was unaware that Lusk suffered from any medical condition. Myers further states that he went next door to the nurse's station to inquire about Lusk's alleged medical condition. Myers spoke with Nurse Sue Watson, the nurse on duty. After reviewing Lusk's medical chart, Nurse Watson informed Myers that Lusk did not have a medical condition that would prevent him from complying with the order. In addition, Myers checked the Dallas County Sheriff's Department computer for information concerning Lusk's medical condition — there was no indication in the record that Lusk had a medical problem when he was booked into the Dallas County Jail on October 21, 1999. Thereafter, Myers returned to the gymnasium and informed Lusk of what he had discovered. Myers states that he again ordered Lusk to stand to his feet and place his hands against the wall. Lusk again refused to comply with Myers's direct order.
Myers states that he next used his two-way radio to call his immediate supervisor, Peterson, who was next door searching the housing unit for contraband. Myers informed Peterson that Lusk was being uncooperative. A few minutes later, Peterson arrived at the gym. Peterson asked Lusk to explain why he would not comply with Myers's direct order. Lusk repeated his reason to Peterson, that is, he had a medical problem (bad back) that prevented him from standing with his hands against the wall. Peterson states that Lusk suggested that he verify his (Lusk's) medical condition with the nurse. Peterson states that he then proceeded to the nurse's station and spoke with Nurse Watson, who informed him that Lusk did not have a medical condition that would prevent him from standing with his hands against the wall. Peterson returned to the gym, and relayed this information to Lusk. Thereafter, Peterson states that he ordered Lusk to stand to his feet and place his hands against the wall, and Lusk refused to do so. Peterson states that he informed Lusk that he was in violation of Rule B-5 (refusing to obey an order of any deputy or staff member) and that he would file an incident report recommending that disciplinary action be taken. Shortly thereafter, the detention services officers completed the search and escorted the inmates to their housing unit without further incident.
On March 27, 2000, Lusk filed this action against the Dallas County Sheriff's Department and eight Dallas County officials, including Myers and Peterson, pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the Eighth Amendment and seeking compensation for mental anguish, mental, physical and emotional stress and tension. Defendants now move for summary judgment on Plaintiff's claims.
0n September 30, 2002, the court issued an order dismissing Plaintiff's claims against all of the named Defendants, except his claims against Myers and Peterson in their individual capacities.
II. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458.
Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
III. Analysis A. Plaintiff's Claim Under 42 U.S.C. § 1983 for Denial of Medical Care
As previously stated, Lusk brings this action pursuant to 42 U.S.C. § 1983 based on Defendants' alleged violation of his Eighth Amendment rights. Specifically, Lusk contends that at the time of the shakedown, he suffered from a great deal of pain in his back and Defendants were deliberately indifferent to his serious medical needs. Although it is not initially clear from the record whether Plaintiff falls in the category of a pretrial detainee or convicted prisoner, the court notes Plaintiff's Rule 7(a) Reply wherein Lusk acknowledges that he is a prisoner. See Pl.'s Rule 7(a) Reply at 2, 4. and 6. Accordingly, the court will analyze Plaintiff's claim under the Eighth Amendment, as opposed to a denial of due process under the Fourteenth Amendment.
A prison official violates the Eighth Amendment when he acts with deliberate indifference to a prisoner's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976). To defeat agrant of summary judgment in favor of Defendants on his Eighth Amendment claim, Lusk must prove objectively, or raise a genuine issue of material fact, that he was exposed to a substantial risk of serious harm, and that jail officials acted or failed to act with deliberate indifference to that risk. See Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To act with "deliberate indifference," a prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. "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." Lawson, 286 F.3d at 262 (citing Farmer, 511 U.S. at 837). In addition, the facts underlying a claim of "deliberate indifference" must clearly evince the medical need in question and the alleged official dereliction. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (citing Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981)).
In this case, Lusk maintains that, while searching inmates for contraband, Myers and Peterson required that he remain standing, with his hands on the wall, despite his repeated assertions that he was "in a great deal of pain" because of a "herniated disc and degenerative spinal condition in his back." Lusk further maintains that when he asked to speak with a doctor or a nurse, Myers and Peterson told him that Nurse Watson did not want to see him. Accepting as true Plaintiff's allegations, Lusk has failed to create a genuine issue of material fact whether he had a serious medical need on December 13, 1999, that either required immediate medical attention or prevented him from participating in the shakedown. A review of the record establishes that Plaintiff's medical need, if any, was not serious.
First, both Myers and Peterson state that Lusk did not appear to be suffering from a serious medical problem, that is, exposed to a substantial risk of serious harm. These statements are uncontested. Other than Lusk's subjective statement that he was "in a great deal of pain" and suffered from a "herniated disc and a degenerative spinal condition," the officers were aware of no facts from which they could draw an inference that a substantial risk of serious harm existed. In other words, at the time of the shakedown, there was no objective evidence, that is, facts perceived by the officers based on their personal observations or reports from medical personnel, to put them on notice that Lusk was suffering from a medical condition, let alone one that required immediate medical attention. Moreover, even assuming that Lusk suffered from a back injury, he points to no competent summary judgment evidence which shows that subjecting him to at most a 15-minute frisk would result in significantly more injury to his back or unnecessary and wanton infliction of pain.
Second, even if one were to conclude that a serious medical need existed at the time of the shakedown, Lusk has failed to create a genuine issue of material fact whether the officers were deliberately indifferent to that need. The record shows that after Lusk told Myers and Peterson that he had a medical condition that prevented him from standing against the wall, they each went to the nurse's station to inquire about Lusk's medical status. It is uncontested that both officers spoke with Nurse Watson; that she reviewed Lusk's medical chart; and that she told Myers and Peterson that Lusk did not have a medical condition that would prevent him from standing with his hands against the wall during a search for contraband. It is also undisputed that Myers checked the Dallas County Sheriff's Department computer for information regarding Lusk's medical condition and found no evidence in his records indicating that he suffered from the condition about which he complained. Lusk also does not dispute the information contained on his Booking Information Sheet, see Defs.' App. at 67, which reflects that Lusk did not report any medical problems at the time of his book-in on October 21, 1999. If Myers and Peterson inquired about Lusk's medical condition and talked with medical personnel about his condition, this evidence, which has not been controverted by competent summary judgment evidence, establishes that these officers were not deliberately indifferent to Lusk's serious medical needs.
As previously noted, Plaintiff filed a response to Defendants' summary judgment motion; however, the response is neither verified nor supported by a declaration. To defeat summary judgment, the nonmovant must produce competent summary judgment evidence. All Lusk has produced in response to the summary judgment motion are his contentions and assertions, which could be true, but he offers no affidavit, sworn statement, declaration pursuant to 28 U.S.C. § 1746, admissions of Defendants, answers to interrogatories by Defendants, deposition excerpts, certified documents or other competent summary judgment evidence to support his contentions and assertions. On the other hand, Defendants have offered competent summary judgment evidence to support their contentions and defenses. Therefore, to the extent Plaintiff's response asserts factual allegations that are not contained in his complaint or answers to the magistrate judge's interrogatories, or contradict the allegations contained in his pleadings, it will not be considered, as the response is not competent summary judgment evidence.
Lusk has failed to create a genuine issue of material fact whether an actionable claim exists for denial of medical care under the Eighth Amendment. Defendants are therefore entitled to judgment as a matter of law on this claim.
B. Defendants' Assertion of Qualified Immunity
Defendants Myers and Peterson contend that they are entitled to qualified immunity and are, therefore, not liable to Lusk on his Eighth Amendment claim. The court agrees, and concludes that even if Defendants are not entitled to summary judgment on the merits, they are, for the reasons stated herein, entitled to summary judgment on the basis of qualified immunity.
Government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A defendant official must affirmatively plead the defense of qualified immunity. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Myers and Peterson have pleaded this defense.
In deciding a motion for summary judgment that raises the defense of qualified immunity, the court must first decide "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, 119 S.Ct. 1292, 1295 (1999), citing Siegert v. Gilley, 500 U.S. 226, 232-33 (1991); see also Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999). The second prong of the test requires the court to make two separate inquiries: whether the right allegedly violated was clearly established at the time of the event giving rise to the plaintiff's claim, and if so, whether the conduct of the defendant was objectively unreasonable. Evans v. Ball, 168 F.3d 856, 860 (5th Cir. 1999). Although many cases continue to state that the determination of the qualified immunity issue requires the application of a bifurcated test, the analytical framework for resolving issues of qualified immunity necessarily requires, or may require, a three-step analysis. See Kerr v. Lyford, 171 F.3d 330 at 339 (5th Cir. 1999); Evans v. Ball, 168 F.3d at 860; Hare v. City of Corinth, Mississippi, 135 F.3d 320, 326 (5th Cir. 1998); Eugene v. Alief Independent School District, 65 F.3d 1299, 1305 (5th Cir. 1995).
Whether a defendant acted within the scope of his authority performing a discretionary function and whether a reasonable official in his position would have deemed his conduct unconstitutional are not to be considered by the court unless each part of the three-step inquiry has been answered affirmatively on behalf of the plaintiff. Kerr v. Lyford, 171 F.3d at 339. In other words, only after a plaintiff demonstrates the existence and violation of a clearly established constitutional or statutory right is the defendant required to show that he was performing a discretionary function and that a reasonable official would not have considered his actions to be unconstitutional at the time of the incident in question. Id. at 338.
A right is "clearly established" only when its contours are sufficiently clear that a reasonable public official would have realized or understood that his conduct violated the right in issue, not merely that the conduct was otherwise improper. See Anderson v. Creighton, 483 U.S. 635, 640 (1987); Foster v. City of Lake Jackson, 28 F.3d 425, 429 (5th Cir. 1994). Thus, the right must not only be clearly established in an abstract sense but in a more particularized sense so that it is apparent to the official that his actions [what he is doing] are unlawful in light of pre-existing law. Anderson, 483 U.S. at 640; Stefanoff v. Hays County, 154 F.3d 523, 525 (5th Cir. 1998); and Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997).
In Anderson v. Creighton, 483 U.S. at 641, the Supreme Court refined the qualified immunity standard and held that the relevant question is whether a reasonable officer or public official could have believed that his conduct was lawful in light of clearly established law and the information possessed by him. If public officials or officers of "reasonable competence could disagree [on whether an action is legal], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986); Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) ( citing Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994)). Conversely, an official's conduct is not protected by qualified immunity if, in light of clearly established pre-existing law, it was apparent the conduct, when undertaken, would be a violation of the right at issue. Foster, 28 F.3d at 429. To preclude qualified immunity, it is not necessary for a plaintiff to establish that "the [specific] action in question has previously been held unlawful." Anderson, 483 U.S. at 640; however, for an official to surrender qualified immunity, "pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what the defendant is doing violates federal law in the circumstances." Pierce v. Smith, 117 F.3d at 882; Stefanoff 154 F.3d at 525.
Assuming without deciding that Lusk has satisfied the first and second prongs of the three-prong test, Myers and Peterson are entitled to qualified immunity because Lusk has failed to establish, or raise a genuine issue of material fact, that their conduct was objectively unreasonable. To determine whether Lusk suffered from a medical condition, Myers and Peterson personally observed him; had conversations with him; and talked to medical personnel about his medical status, specifically, Nurse Sue Watson, who after reviewing his medical chart reported that Lusk did not suffer from a medical condition that would prevent him from standing with his hands against the wall while the officers searched for contraband. Given the totality of the facts — Lusk's subjective statements, the officers' personal observations of him, and the officers' conversations with Nurse Watson — a reasonable competent detention services officer could have concluded that Lusk was not suffering from a serious medical need and that the officers were not deliberately indifferent to that need. The actions of Myers and Peterson were consistent with those of a reasonable detention services officer who had been informed that one in custody was suffering from an injury or medical condition. Stated another way, even assuming that reasonable officials could disagree with respect to the actions taken by Myers and Peterson, they are still entitled to qualified immunity because the doctrine of qualified immunity protects the officers from liability when there is disagreement by competent officers about the propriety of an officer's conduct or actions. Defendants are entitled to qualified immunity because Lusk failed to raise a genuine issue of material fact that Myers and Peterson's conduct was objectively unreasonable.
IV. Conclusion
For the reasons stated, Lusk has failed to establish, or create a genuine issue of material fact, whether Defendants acted with deliberate indifference to a serious medical need. Defendants Myers and Peterson are therefore entitled to judgment as a matter of law on Lusk's Eighth Amendment claim for denial of medical care. Accordingly, Defendants Myers and Peterson's Motion for Summary Judgment is granted, and Plaintiff's claims against these Defendants are hereby dismissed with prejudice. Judgment will issue by separate document pursuant to Fed.R.Civ.P. 58.