Opinion
No. 2:01-CV-0321.
July 28, 2004
MEMORANDUM OPINION, ORDER GRANTING DEFENDANT BASSE'S MOTION FOR SUMMARY JUDGMENT, AND ORDER DISMISSING DEFENDANT BASSE
On this day came for consideration the Motion for Summary Judgment submitted by defendant DAVID BASSE with supporting Brief and Appendix, all filed July 2, 2004. Plaintiff has failed to file a response and his July 26, 2004 motion for extension has been denied.
The Court notes that, by his motion for extension, plaintiff does not claim he has been prevented from asserting facts to rebut defendant's motion for summary judgment or from presenting evidence, rather than legal argument.
By his March 8, 2002, Amended Complaint, plaintiff claims that, after a May 21, 2000, assault by another inmate, defendant BASSE "failed to see, evaluate or exam plaintiffs injuries and ordering medications with no knowledge of plaintiffs injuries showed utter indifferences to plaintiffs serious medical needs and reckless disregard to care, which caused unnecessary wanton infliction of pain and suffering . . . as a form of retaliation [sic et passim]." The Court construes this as a claim of retaliation and deliberate indifference to plaintiff's serious medical needs in violation of the Eighth Amendment. Based on the same factual allegations, plaintiff also brings a state tort action against BASSE for medical negligence and medical malpractice.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), and was incarcerated at the Clements Unit during the time relevant to this cause. Similarly, at all times relevant to this cause, defendant BASSE was a licensed physician employed by Texas Tech University Medical Department at the Clements Unit.
PLAINTIFF'S CLAIM
Plaintiff alleges that, on May 21, 2000, he was assaulted by another inmate who hit him in the face, breaking his nose. Plaintiff states he was escorted to the infirmary by two guards who informed him his nose was broken. At the infirmary, plaintiff was first seen by a Nurse Towery who told him he would need some stitches and, upon learning plaintiff was thirsty, left to get him some water. Plaintiff says defendant Nurse FERGUSON entered and, on seeing plaintiff, asked him if he were the inmate who had written a grievance against defendant Dr. BASSE. When plaintiff asked her for water, she told him to leave, she wasn't a waitress, and he wasn't going to get any water.
Plaintiff alleges he was taken to a pre-hearing detention cell where he tended his own injuries by taping his lip and nose with tape from his Bible, putting butter on his lips, and using wet sheets to decrease the swelling. He states he was released from pre-hearing detention on May 25, 2000 and placed in transit status. On May 26, 2000, plaintiff submitted a sick call request. Plaintiff says that, on May 27, 2000, he was given a ten-pack of Ibuprofen by Nurse Towery as ordered by defendant BASSE. He alleges Nurse Towery told him she had thought he had already been seen by a doctor and stated he should have been seen. On June 6th, plaintiff filed a grievance against the medical department. Plaintiff alleges that x-rays subsequently showed his nose was broken; however, he states his requests to have it set have been denied by Dr. Ridge based on the belief that inmates will most likely get into another fight and have the nose re-broken. Plaintiff says he suffers nasal drainage, allergies, breathing problems and frequent nose bleeds as a result. Further, plaintiff claims to have sustained significant vision loss in his left eye, and now suffers a tic and migraine headaches, all of which, he says, could have been avoided had he been given proper medical care.
Plaintiff's March 8, 2002, Amended Complaint at typewritten page {24} 20 4-16 XX.
Plaintiff requests injunctive relief, as well as compensatory and punitive damages.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant BASSE presents evidence and argues plaintiff has failed to present any evidence to support his claims and has failed to defeat BASSE's entitlement to qualified immunity. Plaintiff has failed to respond and adduce evidence or to point to evidence already in the record which supports his claims.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where 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. Federal Rule of Civil Procedure 56(c). Consequently, after adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Because the consequences of summary judgment are so severe, the court must be careful to avoid premature termination of legitimate lawsuits merely because of unskilled presentations. Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980). In determining a movant's request for summary judgment, all reasonable inferences must be made in favor of the party opposing the motion. Phillip's Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). Only disputes of facts that could affect the outcome of the suit at trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law. Celotex v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Upon such a showing, the burden of production shifts to the nonmovant to delineate specific facts which demonstrate the presence of a genuine issue of material fact. Id.; Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992). A motion for judgment as a matter of law is properly granted when the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion, then the motion for judgment as a matter of law should be denied. Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993).
Although it may be "difficult to imagine factual circumstances in which a trier of fact could find deliberate indifference as defined by Farmer and nevertheless conclude that a reasonable person in defendant's position was not chargeable with knowledge that his or her actions violated the plaintiff's clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. Hare v. City of Corinth, 135 F.3d 320, 328 (1998) (quoting Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328 at 6 (N.D.N.Y.Dec. 16, 1994). Consequently, at the qualified immunity stage, the deliberate indifference standard only allows an examination of whether, under the standard not to be deliberately indifferent, the acts or omissions of the defendant were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998).
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).
ANALYSIS OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff's medical records presented by defendant show that, on May 21 or 22, 2000, defendant BASSE reviewed nurse Towery's assessment of plaintiff's condition following his May 21st attack [Appendix p. 231]. Nurse Towery noted superficial laceration to plaintiff's face with mild to moderate edema to his bottom lip. No other injuries were noted. She also noted a suggested treatment of saltwater rinses for ten days and motrin, 600 mg. twice a day for ten days. Doctor BASSE reviewed the file and authorized the treatment, his orders being noted on May 22nd [Appendix p. 231]. Then on the 22nd, Dr. BASSE discontinued the motrin [Appendix p. 231]. Nevertheless, plaintiff alleges he received a ten-pack of Ibuprofen. The Court notes plaintiff was also being treated for complaints of right elbow pain, for which he had been x-rayed on May 15th, but there is no indication in the record which condition the Ibuprofen was to treat or who authorized it.
The first indication in plaintiff's medical records of injury to his nose is on May 30, when an HSA was received from plaintiff asking for the x-ray results for his elbow and complaining that he thought his nose was broken [Appendix p. 230]. Plaintiff was seen by Nurse Towery again on June 2nd in response to the May 30th HSA and was scheduled for a doctor's appointment [Appendix p. 230, 229]. He saw Dr. Ridge on June 5, who diagnosed, in relevant part, probable nasal fracture and allergic rhinitis. Doctor Ridge ordered an x-ray [Appendix 229, 228].
An HSA is a TDCJ-CID form utilized by inmates to submit requests for health care services.
When plaintiff was seen by Dr. BASSE on June 19th, it was for follow-up of his hand-x-ray. Plaintiff's x-ray of his nose had not been performed on the 16th because plaintiff was a no-show [Appendix p. 227]. BASSE noted plaintiff's complaints of vision problem in his left eye and noted he found no abnormality on examination. He also scheduled an x-ray of plaintiff's nasal bones and treated his complaints, prescribing Indocin [Appendix 227]. Plaintiff has presented no evidence showing how defendant BASSE could have known of his nose injury before June 19th. Further, plaintiff has not indicated what additional treatment BASSE could have provided him without the x-rays which he ordered. Thus, the record is devoid of any evidence to support deliberate indifference by defendant BASSE.
Although the medical records only show an x-ray was not performed because of plaintiff's no-show, the August 3, 2000, response to plaintiff's Step 2 grievance no. 2000124235, attached to plaintiff's August 14, 2001, complaint shows the x-ray to be performed was for his nose.
Plaintiff was next seen by Dr. Ridge on June 27, 2000, for a follow-up both of his nasal injury and his right elbow problem. Doctor Ridge prescribed benadryl and sudafed, and diagnosed a nasal fracture. He also examined plaintiff's eyes and found no evidence of eye damage.
On July 7, 2000, plaintiff was again seen by Dr. Ridge who noted, in relevant part, plaintiff's complaint of sneezing when he was out in the fields and his request to have his nose fixed. He also noted plaintiff's x-rays were negative and diagnosed allergic rhinitis, deviated nasal septum and noted plaintiff's request for a consultation with an ENT specialist to repair his nasal fracture and that he had told plaintiff he probably couldn't get this done.
On July 31, 2000, plaintiff was seen by Dr. BASSE in preparation for an orthopedic telemed conference concerning his elbow. Doctor BASSE again examined plaintiff's eyes and found no redness, no excessive tearing, and that the pupil reacted to light and showed no bulge.
Defendant has presented an Affidavit by Dr. Timothy Revell stating, in part, that dispensation of over-the-counter pain medication, such as Ibuprofen, without personal examination by the physician is common and provides quick pain relief. Doctor Revell also avers x-rays of plaintiff's nose revealed only a minimally displaced fracture which will usually heal without any problem and needs no significant treatment unless it is mal-aligned or needs to be reduced. He opines that the treatment provided by Dr. Ridge and defendant Dr. BASSE did not deviate from the standard of care in the free world. [Defendant's Appendix 3, pp. 264-265.]
Plaintiff has not even alleged, much less offered evidence to show that defendant BASSE was on duty in the infirmary the day of his injury. Further, he has offered no evidence to show defendant BASSE knew any facts that day or any day soon after from which he could infer plaintiff needed to see a physician.
When the Court considers Nurse Towery's initial evaluation of plaintiff's condition as involving only superficial facial lacerations along with Dr. Revell's uncontested affidavit testimony that a physician may commonly rely on a nurse's evaluation and prescribe over-the-counter pain medication based upon that evaulation, it does not appear that providing Ibuprofen, if the Ibuprofen was authorized by defendant BASSE, was unreasonable or constituted deliberate indifference to plaintiff's serious medical need. Indeed, assuming plaintiff's injuries to be severe and to require immediate medical attention, plaintiff has pointed to no avenue by which defendant BASSE would have obtained knowledge of that fact before June 19th, the day he actually saw plaintiff for follow-up of his hand x-ray. Defendant BASSE did not personally examine plaintiff until June 19th, twenty-nine days after the attack; and the record contains no indication that BASSE refused to see plaintiff or conspired to avoid seeing him. On June 19th, BASSE noted plaintiff's complaints concerning his eye and examined the eye, recording no indication of injury. He also responded to plaintiff's complaints concerning his nose by ordering an x-ray of his nasal bones. This conduct does not evince deliberate indifference, but indicates care responsive to each of plaintiff's complaints.
Although plaintiff's sworn complaint contains his statement that later medical examinations reveal he has lost considerable and significant sight in his left eye, as well as a tic and migraine headaches, plaintiff has pointed to no evidence which shows these are the result of deliberate indifference to his injuries by defendant Dr. BASSE or anyone else, rather than an unavoidable consequence from them. Lastly, despite plaintiff's allegation of retaliatory motive by defendant BASSE, he has offered no evidence to support this claim.
In light of the treatment recounted above, as well as additional later treatment shown by plaintiff's medical records, it is clear that plaintiff disagrees with his physicians concerning whether he should have surgery to realign his nose; however, this is not sufficient to state a claim of constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991); Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The evidence of record shows plaintiff has received medical care responsive to his complaints and has utterly failed to present evidence by defendant BASSE acted unreasonably or with deliberate indifference to his serious medical needs. Further, plaintiff has failed to show defendant BASSE acted or failed to act because of retaliatory intent.
CONCLUSION
For the reasons set forth above, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, the Court finds there is no material issue of disputed fact which precludes entry of summary judgment for defendant BASSE; and defendant BASSE is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c).
IT IS HEREBY ORDERED:
Defendant BASSE's motion for summary judgment is, therefore, GRANTED and plaintiff TRACY MURRY's claims against defendant DAVID BASSE are DISMISSED WITH PREJUDICE. The Court declines to exercise pendent jurisdiction of plaintiff's claims against defendant BASSE based in state law and tort law and such claims are DISMISSED WITHOUT PREJUDICE.
IT IS SO RECOMMENDED.