Opinion
2:01-CV-0390
April 4, 2002
REPORT AND RECOMMENDATION
Plaintiff BRIAN D. McQUEEN, 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. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
COMPLAINT
Plaintiff complains that the defendants have been deliberately indifferent to his serious need for dental care. Plaintiff alleges that, on June 1, 1999, he was seen by the dental department after he knocked his two front teeth back to his hard palate in a softball accident. Plaintiff straightened his teeth and was told that no further treatment could be given until enough time had passed to show whether the teeth would live or die. Plaintiff alleges he submitted written requests for dental treatment on August 4, 1999, October 7, 1999, and January 4, 2000. Plaintiff says he was finally seen on January 5, 2000, by defendant CARTER KARR, the dentist, who recommended that a root canal be performed on one of plaintiff's injured front teeth, that several cavities be filled, and that partials be made for the other fifteen teeth plaintiff had lost. Plaintiff states defendant KARR informed him that, before he could receive any of this treatment, he would first have to pass a plaque index test, commonly called the toothbrush test.
Plaintiff states the August 4, 1999, request received a response that an appointment was scheduled, but, he says, he was never seen.
Plaintiff states he failed the plaque index test on January 14, 2000. Plaintiff says he requested another plaque index test on February 13, 2000, and requested dental treatment on April 7, 2000, each time receiving the response that an appointment had been scheduled, but he was not seen. Plaintiff alleges he submitted a third written request for treatment on June 23, 2000 and was seen on June 27, 2000, at which time he failed a second plaque index test administered by defendant BARBAREE, who then informed him he could not receive the treatment earlier recommended by Dr. KARR.
Plaintiff alleges he submitted another written request on August 22, 2000, requesting that he be given, without further delay, the treatment Dr. KARR had recommended seven months earlier. He says he was seen by Dr. KARR on August 25, 2000, and was informed he would not receive the treatment discussed on January 5, 2000, until he had passed the plaque index test. Plaintiff was told that, instead, he could elect to have his painful teeth pulled, regardless of whether a root canal could be performed.
Plaintiff says that, because he wanted to avoid having his front teeth pulled and, instead, wished to have the root canal originally discussed, he requested a third plaque index test; however, his request was denied. Plaintiff's step 1 and step 2 grievances were subsequently denied. Defendant McKINNEY denied plaintiffs step 2 grievance.
Plaintiff alleges he complained in writing to defendant LINTHICUM, TDCJ Director of Health Services, on October 17, 2000, but that she responded on October 25, 2000, that she did not have the authority to order that he be given the recommended treatment. She informed plaintiff she would forward a copy of his complaint to the Texas Tech Medical Director, defendant GONZALEZ, and ask that he investigate the matter. Plaintiff says he wrote defendant GONZALEZ several times thereafter requesting treatment but never received any response. Plaintiff states he continues to suffer great pain from one of the front teeth that had been knocked loose on May 31, 1999, as well as from numerous cavities, but that he has never received the treatment defendant KARR recommended on January 5, 2000, and the dental department had not responded to any of his numerous requests for treatment since August 31, 2000.
Plaintiff requests injunctive relief in the form of an order that defendants perform the root canal, fill his cavities and make partials as discussed on January 5, 2000. He also requests $50,000.00 in compensatory damages from defendants KARR and BARBAREE and $30,000.00 in punitive damages from defendants GONZALEZ, LINTHICUM, and McKINNEY.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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. 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 plaintiffs February 25, 2002, Amended Complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under Title 42, United States Codes section 1983. Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 291-93, 50 L.Ed.2d 251 (1976). Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). However, not every claim of inadequate or improper medical treatment is a violation of the Constitution, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); nor does a disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). "[N]egligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Further, medical records showing sick calls, examinations, diagnoses, and medications may rebut an inmate's allegations of deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
Plaintiff does not have a constitutionally protected right to the medical care of his choice, only to constitutionally adequate medical care. Plaintiff disagrees with the treatment being offered him: extraction; he wishes to obtain a more expensive, cosmetically pleasing, treatment: root canal and partials. Nevertheless, plaintiff has been unable to pass a plaque index test to demonstrate that the more expensive treatment will not be wasted by his failure to take appropriate care of the teeth he has left. Plaintiff has alleged no fact to show how the provision of extractions, as opposed to the dental treatments first outlined by Dr. KARR, which plaintiff prefers, constitutes a substantial risk of serious harm to his health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). It is also noted that any treatment outlined or recommended by Dr. KARR was contingent upon plaintiff passing the plaque test. Plaintiff's inability to pass the plaque test and refusal to accept the alternative treatment offered is the cause for any discomfort he is experiencing. In the face of his refusal to authorize such extractions, prison authorities are not responsible for his suffering. Plaintiff may choose to accept or refuse the treatment offered; but his indecision does not constitute deliberate indifference by prison officials. Accord, Sanders v. United States, 438 F.2d 918, 919 (5th Cir. 1971). Consequently, plaintiff has failed to allege facts which state a claim of deliberate difference on which relief can be granted his assertion of a non-existent right to have the dental care of his choice lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to 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 BRIAN D. McQUEEN be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND 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, utilizing the inmate correspondence reply card or certified mail, return receipt requested, as appropriate. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).