Opinion
No. 2:01-CV-0390
April 18, 2002
ORDER OF DISMISSAL
Plaintiff BRIAN D. McQUEEN, acting pro se and while a prisoner confined 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-named defendants. On April 4, 2002, a Report and Recommendation was filed by the United States Magistrate Judge analyzing plaintiff's claims under Title 42, United States Code, section 1997e(c)(1), and recommending dismissal with prejudice as frivolous and for failure to state a claim on which relief can be granted.
Plaintiff filed his Objections on April 10, 2002.
By his Objections, in relevant part, plaintiff argues the Magistrate Judge did not address his claim of a complete denial of the dental care originally recommended by Dr. KARR on January 5, 2000, or his claim of a denial of dental care for cavities from August 25, 2000 until February 26, 2001. Plaintiff further contends the Magistrate Judge ignored his allegation that, while in the infirmary on November 4, 2000, he told a nurse that he had numerous cavities which were causing him pain and for which he had not received treatment from the dental department despite numerous requests.
Review of the factual assertions in plaintiff's complaint and of his attachments to his original complaint make clear, and plaintiff does not now dispute, that he was informed the root canal, partial, and filling of his cavities were contingent upon his passing the plaque index test. Plaintiff also states he failed it twice and that alternative care, extraction, was offered. Plaintiff has not asserted, either in his complaint or his objections, any fact indicating the extractions do not constitute constitutionally-adequate treatment of his dental needs or that they present a substantial danger of serious harm to him. Further, plaintiff's allegations show he did not consent to treatment by tooth extraction at any time during the period of which he complains. Plaintiff does not present factual allegations which connect the failure to fill his cavities for the period from August 25, 2000 until February 25, 2001, to any act or omission by any of the named defendants; however, his factual allegations do show any failure to provide treatment is due to plaintiff's failure to consent to extraction and any failure to provide the treatment of plaintiff's choice is due to plaintiff's failure to qualify by passing the plaque index test. These facts do not support a claim of deliberate indifference to his serious medical needs.
Plaintiff's February 13, 2000, and his April 10, 2000, requests for plaque tests demonstrates plaintiff's understanding in this regard.
Lastly, although plaintiff argues the Magistrate Judge ignored his allegation that, while in the infirmary on November 4, 2000, he told a nurse that he had numerous cavities which were causing him pain and for which he had not received treatment from the dental department despite numerous requests, plaintiff has failed to allege any fact which connects any act or omission by the unidentified nurse with any of the defendants. Consequently, this allegation does not support a claim against any of the defendants in this cause.
The Court has made an independent examination of the records in this case and has examined the Magistrate Judge's Report and Recommendation, as well as plaintiff's objections.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.
IT IS THEREFORE ORDERED that, pursuant to Title 42, United States Code, section 1997c(c)(1), the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff BRIAN I). McQUEEN IS DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Any motions still pending are hereby DENIED.
The Clerk will mail a copy of this Order to the plaintiff and to any attorney of record by first class mail. The Clerk will also mail a copy of this Order to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, Texas 78711, and to Claire Lane at the United States District Court for the Northern District of Texas, Dallas Division.