Opinion
No. 7:01-CV-018-R
May 5, 2002
ORDER OF DISMISSAL
This is an action filed pursuant to 42 U.S.C. § 1983 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Perk, Texas. Mallard claims that he was denied proper medical care and tortured by Defendant Palmer. Complaint ¶ V. Specifically, Mallard alleges that Dr. Palmer failed to administer anesthesia when he removed a piece of pencil lead from Plaintiff's finger. Complaint ¶ V. Mallard claims that this caused a degree of pain and suffering that rose to the level of a constitutional violation. Id. He seeks monetary damages and injunctive relief. Id. at ¶ VI.
In order to state a colorable claim for the denial of medical care under the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). "Deliberate indifference" under the Eighth Amendment occurs only where 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, 114 S.Ct. 1970, 1979 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, it is well established that negligent or erroneous medical treatment or judgment does not provide a basis for a § 1983 claim. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). As long as jail medical personnel exercise professional medical judgment, their behavior will not violate a prisoner's constitutional rights. See Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S.Ct. 2452, 2461-62 (1982). A disagreement over the appropriate medical treatment constitutes, at most, a possible claim of medical malpractice appropriately addressed under state law. E.g., Estelle v. Gamble, 429 U.S. at 107-08, 97 S.Ct. at 293; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
In the case at bar, Plaintiff was given the opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). A review of Plaintiff's answers reflects that he has failed to articulate facts which, taken as true, would demonstrate that Defendant Palmer was deliberately indifferent to his need for medical care. See Plaintiff's Answers to the Court's Questions No. 5 7. Plaintiff concedes that Dr. Palmer eventually administer a 2% Lidocaine injection directly into Plaintiff's finger to alleviate pain during the surgical procedure. Plaintiff's Answer to the Court's Questions No. 2. Plaintiff's conclusory allegation that he was denied proper medical care, without more, is insufficient to establish liability under § 1983. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain a claim under § 1983). At most, Plaintiff's complaint suggests a disagreement with Dr. Palmer over whether or not anesthesia was necessary for this particular procedure. To the extent, if any, that Plaintiff's action against Dr. Palmer is grounded in negligence, the complaint is without merit. Allegations of negligence do not present a cognizable basis for relief under the Civil Rights Act. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986) (holding that negligence is not actionable wider § 1983); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986) (same).
Plaintiff next claims that Dr. Palmer decided not to administer anesthesia so that he could torture Plaintiff with the resulting pain in violation of the constitutional prohibition against cruel and unusual punishment. Complaint ¶ V. The Eighth Amendment prohibits cruel and unusual punishments. This has been interpreted by the Supreme Court to prohibit physically barbarous punishments, punishments which involve "the unnecessary and wanton infliction of pain," or which are grossly disproportionate to the crime. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399 (1981). A review of Plaintiff's answers to the Court's questions reflects that he has failed to set forth facts which would demonstrate that Dr. Palmer inflicted pain during the surgery for purposes of torture and punishment in violation of the Eight Amendment. See Plaintiff's Answer to the Court's Question No. 4. Indeed, Plaintiff concedes that the surgery was successful in that Dr. Palmer removed the pencil lead from his finger. Id. Nowhere does Plaintiff state that he was forced to undergo the surgery or that he was forced to endure the continuation of surgery alter the alleged onset of pain. See Complaint and Plaintiff's Answers to the Court's Questions. Attempting to remove a lead splinter from a finger with a pair of tweezers and without anesthesia simply does not rise to the level of cruel and unusual punishment. And, as noted above, Dr. Palmer administered anesthesia at some point during the procedure.
With regard to Defendant Ann Escalera, Plaintiff seeks voluntary dismissal. Plaintiff's Answer to the Court's Questions No. 8.
A district court may dismiss a complaint filed by a prisoner proceeding in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th dir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in. law if it is "based on an indisputably meritless legal theory." Nietzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis in law.
IT IS THEREFORE ORDERED that the complaint against Dr. Palmer is hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).
IT IS FURTHER ORDERED that the complaint against Ann Escalera is hereby dismissed pursuant to Plaintiff's request.
A copy of this order shall be transmitted to Plaintiff.