Opinion
No. 3:03-CV-2688-P.
March 31, 2005
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendants Dallas County, Texas, Jim Bowles ("Sheriff Bowles"), Rene Funk ("Nurse Funk"), and Micahela Perijoc, M.D.'s ("Dr. Perijoc") (together "Defendants") Motion for Summary Judgment, filed on August 30, 2004. Plaintiff Festus M. Okwilagwe ("Plaintiff") filed his response on September 27, 2004. After a thorough review of the pleadings, the briefing, the summary judgment evidence, and the applicable law, the Court GRANTS Defendants Motion for Summary Judgment.
Plaintiff incorrectly styled his Complaint by naming Dr. Micahela Perijoc as Dr. Penjoc Mihaela.
I. Background
On September 22, 1999, Plaintiff was booked into the Dallas County Jail and detained as an illegal alien. Sweet Aff. at 2 (Defs.' App. at 9). Within seven days of Plaintiff's admission to the jail, the Tuberculosis Eradication Team of the Dallas County Department of Health and Human Services ("the TBE Team") offered him a diagnostic skin test for tuberculosis, but Plaintiff declined the skin test. Bowers Aff. at 2 (Defs.' App. at 58). Nevertheless, on September 28, 1999, Plaintiff submitted to a chest x-ray, and the results of this x-ray provided no evidence of an active tuberculosis infection. Id.
On August 9, 2000, Plaintiff apparently submitted to a second diagnostic skin test, and the test results indicated that he had been exposed to tuberculosis. Id. Despite Plaintiff's argument that "[no one] paid any attention to this positive test," Pl.'s Resp. at 4, a chest x-ray also performed at this time revealed no evidence of an active tuberculosis infection, and Plaintiff "did not have any symptoms indicative of an active tuberculosis infection such as coughing up blood, losing weight, running fever or night sweats." Id. Accordingly, Defendants chose not to provide the plaintiff with prophylactic medication because they determined that Plaintiff faced a greater risk from the side effects of the medicine than from an actual tuberculosis infection. Id.
Plaintiff made numerous formal requests for medical attention from May 18, 2001, through November 16, 2001, none of which were indicative of an active tuberculosis infection. Compare e.g., Defs.' App. at 71; 72; 76; 149; with Bowers Aff. at 3 (Defs.' App. at 59). Over this time period, Defendants provided Plaintiff with consistent medical treatment evidenced by over 60 pages of medical records. See Defs.' App. at 63-140. For example, Defendants provided Plaintiff with medication to treat his ailing back and instructed him on the proper usage of such medicine. Id.
Additionally, on August 18, 2000, Plaintiff submitted a request to see a nurse during which he complained of a stuffy nose, headache and fever. (Pl.'s Resp. at 4.) Although outside the listed period, such a request exhibits such another example of Plaintiff's copious medical demands.
Notwithstanding Plaintiff's abundant and multifarious requests, on August 23, 2001, Plaintiff complained of right upper back pain which caused numbness in his right arm from his shoulder through his hand. Def.'s App. at 72. However, the nurse who treated Mr. Okwilagwe determined that he "[appeared] to be in no acute distress [at] this time" and that he was "able to move all of his extremities." Id. As a further measure, on September 10, 2001, Plaintiff submitted to another x-ray ("September x-ray"). Cf. id. at 75. Thereafter, in a written request dated September 26, 2001, Plaintiff complained that he had been having severe back pain for three months and that he had lost use of his right arm. Id. at 149.
On October 4, 2001, Plaintiff met with Dr. Perijoc who analyzed the September x-ray and determined that Plaintiff was suffering from arthritis. Cf. Perijoc Aff. at 2 (Defs.' App. at 53). Afterwards, on October 31, 2001, Plaintiff filed a grievance and put Defendants on official notice that he had been experiencing sharp, constant pain in his scapular/thoracic area which radiated into his neck, back, and legs, causing numbness from his chest to his knees and muscle spasms in his legs, back and abdomen. Okwilagwe Aff. at 2 (Pl.'s Ex. D2). On November 14, 2001, Plaintiff submitted a written request to prison personnel indicating that he was experiencing severe lower extremity weakness and that he required assistance to walk. See Defs.' App. at 160. Subsequently, the nursing staff told Plaintiff that a doctor would see him the following week. Two days after Plaintiff's last written request, he became paralyzed, and Dr. Perijoc sent him to Parkland Hospital. Bowers Aff. at 2-3 (Defs.' App. at 58-59).
On November 16, 2001, the Parkland Hospital medical staff diagnosed Plaintiff with tuberculosis of the spine. Bowers Aff. at 3 (Defs.' App. at 59). This type of tuberculosis is difficult to diagnose, in part, because no accurate blood test exists to detect tuberculosis of the spine. Id.
Plaintiff alleges that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to provide medical care. Specifically, he alleges Defendants' conduct resulted in "permanent physical damage to his spine, [that he] sustained pain and mental anguish in the past and future, and [that he] sustained permanent impairment in the past and future to his detriment." Pl.'s Reply Pursuant to Rule 7(a) at 3. Plaintiff asserts further that Defendants violated his Eight Amendment right against cruel and unusual punishment by acting, or failing to act, with deliberate indifference to the risk of a tuberculosis infection. Pl.'s Reply Pursuant to Rule 7(a) at 1. Finally, Plaintiff complains that Defendants ignored his need for medical attention after he tested positive for tuberculosis. Pl.'s Reply Pursuant to Rule 7(a) at 2.
Defendants respond to these claims by asserting that at all times their actions were taken in the good faith performance of their discretionary duties as governmental officials or employees of Dallas County, Texas. Defendants contend further that their actions were objectively reasonable, and that they did not violate any clearly established constitutional or federally protected right. The Court now considers Defendants' Motion for Summary Judgment based solely on the affirmative defense of qualified immunity.
The Court focuses solely on the affirmative defense of qualified immunity because if Defendants are entitled to qualified immunity there is no need to discuss the other issues of this case. Additionally, on June 10, 2004, the Court issued its Summary Judgement Briefing Schedule that stated the parties should limit their arguments to the qualified immunity issue.
II. Summary Judgment Legal Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. See id. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. See id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) ( en banc).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
III. Qualified Immunity
The defense of qualified immunity "shields government officials performing discretionary functions from civil liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Pfannsteil v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). Qualified immunity is an affirmative defense, and it must be raised by the defendant. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001). To call it an affirmative defense, however, is a bit misleading. It is not merely a defense to liability; rather, it provides immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified immunity protects state officials from suit when it appears that a reasonable official, in light of clearly established law and the information known to the defendant at the time she acted, could have believed that the defendant's actions were lawful. Anderson v. Creighton, 483 U.S. 635, 641 (1987). The focus of a court's inquiry into qualified immunity is on the so-called "objective legal reasonableness of an official's acts." Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982).
"The qualified immunity analysis is a two-step process." Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001). "The first step is to determine whether the plaintiff has alleged a violation of a clearly established constitutional right." Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997). "The second step requires the court to determine whether [the defendants'] conduct was objectively reasonable under existing clearly established law." Glenn, 242 F.3d at 312.
In determining whether the plaintiff has alleged a violation of a clearly established constitutional right, this Court recognizes that failure to provide medical care is a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 97 (1976). In order to allege a constitutional violation "under the Eighth Amendment an inmate must allege acts or omissions `sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Bias v. Woods, No. 7:99-CV-033-R, 2002 WL 1750792, at *1 (N.D. Tex. 2002) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "[D]eliberate indifference" occurs only where an individual acting under the color of law subjectively knows of and disregards a substantial risk to an inmate's health or safety. Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). To prove that an prison official subjectively knows of an inmate's substantial health risk, the inmate must prove that a state official was aware of facts from which the official could draw an inference that a substantial risk of serious harm exists, and he must actually draw that inference. Id. (citing Farmer, 511 U.S. at 837).
To satisfy the "deliberately indifferent" standard, Plaintiff "must show that [Defendants] refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Domino v. Texas Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001) (internal quotations omitted). Accordingly, a prison official must have a sufficiently culpable state of mind to act with deliberate indifference. Hall v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999).
Furthermore, "[i]t is indisputable that an incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference." Domino, 239 F.3d at 756. "While mere negligence in giving or failing to supply medical treatment would not support an action under Section 1983, a knowing and willful failure to provide or permit a prisoner access to needed medical care would violate clearly established constitutional rights." Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982); compare Bias, 2002 WL 1750792, at *2 (finding that a doctor's failure to provide medical attention to a comatose prisoner and subsequent decision to transfer the prisoner 150 miles to another hospital constituted unreasonable behavior) with Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). "Delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference, which results in substantial harm." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Furthermore, "medical records of 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).
In deciding whether an individual acted objectively reasonable, a court must determine "whether a reasonable person would have believed that his conduct conformed to the constitutional standard in light of the information available and the clearly established law." Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir. 2000). Therefore, law enforcement officers who "reasonably but mistakenly commit a constitutional violation are entitled to immunity." Id. (internal citations omitted). Accordingly, in the context of a failure to provide medical treatment analysis, a prison official who reasonably but mistakenly provides improper medical care acts objectively reasonable. See Domino, 239 F.3d at 756.
The Court must review the evidence in the light most favorable to the plaintiff. Pfannsteil, 918 F.2d at 1183. The plaintiff has the burden of coming forward with summary judgment evidence sufficient to create a genuine issue as to whether the defendant's conduct was objectively unreasonable in light of clearly established law. See id.
a. Nurse Funk
With respect to Nurse Funk, the record reveals no evidence that she was ever involved with respect to any of Plaintiff's claims. See Funk Aff. at 2 (Defs.' App. at 50) ("[The] medical records establish that [Nurse Funk] had no personal involvement whatsoever in the medical care or treatment of the plaintiff during his confinement in the Dallas County Jail between September 22, 1999[,] and March 1, 2002."). Indeed, Plaintiff concedes this point as he makes no argument to the contrary. Accordingly, Defendants' Motion for Summary Judgment with respect to Nurse Funk is GRANTED.
b. Sheriff Bowles
As with Nurse Funk, the record reveals no evidence that Sheriff Bowles was ever involved with respect to any of Plaintiff's claims. Cf. Bowles Aff. at 1 (Defs.' App. at 46) ("[Sheriff Bowles had no personal involvement whatsoever in the medical care or treatment of the plaintiff during his confinement in the Dallas County Jail between September 22, 1999[,] and March 1, 2002."). Specifically, no evidence indicates Sheriff Bowles ever saw any of Plaintiff's medical records.
In fact, the only plausible claim against Sheriff Bowles is that he did not follow the Dallas County Human Health and Services policy that a tuberculosis skin test be done when a prisoner first enters jail. However, such conduct fails to qualify as deliberate indifference. As stated before, to satisfy the "deliberately indifferent" standard, Plaintiff "must show that [Defendants] refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs." Domino, 239 F.3d at 756 (emphasis added) (internal quotations omitted). As an x-rays was performed, the lack of the initial skin test can be classified as negligence at most, and such action does not rise to the violation of a clearly established constitutional right. See Williams, 671 F.2d at 901. In sum, the record fails to produce any willful conduct Sheriff Bowles ignored any of Plaintiff's medical needs. Accordingly, Defendants' Motion for Summary Judgment with respect to Sheriff Bowles is GRANTED.
c. Dr. Perijoc
Third, with respect to Dr. Perijoc, the record evinces no acts of deliberate indifference against Plaintiff. Indeed, contrary to Plaintiff's assertions, the record reveals concern for Plaintiff's condition. For instance, in October 20001, Dr. Perijoc treated Plaintiff on several occasions for degenerative joint disease and arthritis. Perijoc Aff. at 2 (Defs.' App. at 53). Moreover, in light of the difficulty in diagnosing spinal tuberculosis, even if Dr. Perijoc improperly diagnosed Plaintiff's condition, and incorrect diagnosis does not rise to the level of deliberate indifference. Domino, 239 F.3d at 756. As with Sheriff Bowles, the record fails to produce any willful conduct Dr. Perijoc ignored any of Plaintiff's medical needs. Accordingly, Defendants' Motion for Summary Judgment with respect to Dr. Perijoc is GRANTED.
IV. Dallas County
On a final note, although the three named individuals are entitled to qualified immunity, the claims against Dallas County remain. Therefore, if Plaintiff desires more discovery against Dallas County with respect to his claims, counsel for both parties should confer and submit a proposed scheduling order within 30 days of the date of this Order.
V. Conclusion
For the aforementioned reasons, this Court GRANTS Defendants' Motion for Summary Judgment as it relates to Sheriff Bowles, Nurse Funk, and Dr. Perijoc.