Opinion
CIVIL ACTION NO. 4:00-CV-409-Y.
April 30, 2002
ORDER OF DISMISSAL UNDER 28 U.S.C. § 1915A(b) AND UNDER 28 U.S.C. § 1915(e)(2)(B)
Plaintiff Salvadore Ramirez was permitted to proceed in the above-styled and numbered cause pursuant to 28 U.S.C. § 1915 by the magistrate judge, and was ordered to pay the full filing fee required by the Prison Litigation Reform Act (PLRA). Although this Court initially dismissed his case under 28 U.S.C. § 1915 (e)(2)(b) and 1915A, the court of appeals remanded the case to this Court, in part, to give Ramirez an opportunity to amend his complaint to state specific claims against any appropriate parties. Ramirez has now filed an amended complaint, and the Court has reviewed that document only in considering Ramirez's claims under the standards of §§ 1915(e)(2) (B) and 1915A.
As the court informed Ramirez in the order to file an amended complaint. See generally Clark v. Tarrant County, 798 F.2d 736, 740 (5th Cir. 1986) (amended complaint entirely supersedes and takes the place of an original pleading, rendering the original complaint of no legal effect).
Ramirez's February 26, 2002, Motion to Learn Status [docket no. 24] is DENIED as moot as a result of this order.
In his amended complaint under 42 U.S.C. § 1983, Ramirez names as the defendants Doctor J. Barry, Doctor Huber, the Federal Bureau of Prisons, and the FMC-Fort Worth hospital, allegedly under contract with "Osteopathic Hospital, Fort Worth, Texas." (Amend. Compl. Style; ¶ I.) Ramirez contends he suffers from chronic diabetes which has resulted in deterioration of the left foot, including callouses and abscesses. He contends that while he was housed at FMC-Lexington, he received a recommendation for thermomold shoes with custom inserts, but that this recommendation was not complied with. (Amend. Compl. § II, ¶ ¶ 1-13.) Ramirez was then transferred to FMC-Fort Worth, where he was seen by Dr. Esterlein. He alleges that although Dr. Esterlein also prescribed thermomold shoes, FMC-Fort Worth Hospital Administrator Dr. Barry denied them. Ramirez alleges that Esterlein then resigned from FMC-Fort Worth as a result of the decisions of Dr. Barry, and that Dr. Barry was removed as the hospital administrator, and reassigned as the treating physician for the inmates in the Fort Worth housing unit at FMC-Fort Worth. Ramirez alleges that in that capacity, Dr. Barry has seen him as a patient "at least once a month for over a year, and that Dr. Barry is now responsible for all medical decisions related to him. (Amend. Compl. § II, ¶ ¶ 16-23.) Ramirez claims that Dr. Barry has refused treatment to him, and refused his request for a wheelchair, and that Dr. Huber, now the hospital administrator, upholds Dr. Barry's decisions. Ramirez alleges that although he is referred to physician assistants for cleaning of the abscesses and infection, no treatment is scheduled. (Amend. Compl. § II, ¶ ¶ 23-28.) Ramirez also alleges that a Dr. Brunig has refused his request to be examined by a specialist. (Amend. Compl. § II, ¶ 29.) Ramirez now seeks an order regarding examination by an independent physician, that he be provided medically adequate treatment, that he be provided a "wheelchair and proper shoes," and "compensatory damages of $250,000 against each defendant." (Amend. Compl. at Prayer.)
To the extent plaintiff Ramirez has named individual defendants employed by the federal government, his complaint is hereby construed as brought under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 297 (1971). Bivens, of course, is the counterpart to 42 U.S.C. § 1983, and extends the protections afforded under § 1983 to parties injured by federal actors. See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) ("A Bivens action is analogous to an action under § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal officials."), citing Abate v. Southern Pacific Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993).
A complaint filed in-forma-pauperis that lacks an arguable basis in law should be dismissed under 28 U.S.C. § 1915. Under 28 U.S.C. § 1915 (e)(2), a district court retains broad discretion in determining at any time whether an in-forma-pauperis claim should be dismissed. Furthermore, as a part of the PLRA, Congress enacted 28 U.S.C. § 1915A, which requires the Court to review a complaint from a prisoner seeking relief from a governmental entity or governmental officer or employee as soon as possible after docketing. Consistent with § 1915A is prior case law recognizing that a district court is not required to await a responsive pleading to conduct its § 1915 inquiry. Rather, § 1915 gives judges the power to "dismiss a claim based on an indisputably meritless legal theory." After review and consideration of Ramirez's claims against the defendants set out in the amended complaint, the Court finds that Ramirez's claims must be dismissed under the authority of these provisions.
Neitzke v. Williams, 490 U.S. 319, 328 (1989). Section 28 U.S.C. § 1915 (e) requires dismissal not only when an allegation of poverty is untrue or the action is frivolous or malicious, but also when "the action . . . fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C.A. § 1915(e)(2)(A) and (B) (West Supp. 2001).
See 28 U.S.C.A. § 1915(e)(2) (West Supp. 2001); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990) (discussing authority to dismiss at any time under prior § 1915(d))
See 28 U.S.C.A. § 1915A(a) (West Supp. 2001).
See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).
With regard to Ramirez's allegations against individual defendants Dr. J. Barry and Dr. Huber regarding the medical care he received while at FMC-Fort Worth, the Court has treated the allegations as claims of a violation of his right to be free from cruel and unusual punishment under the Eighth Amendment. Deliberate indifference to a prisoner's serious medical needs has been deemed to amount to cruel and unusual punishment under the Eighth Amendment. Such a finding of deliberate indifference, though, "must rest on facts clearly evincing wanton' actions on the parts of the defendants.," This subjective deliberate-indifference standard is now equated with the standard for criminal recklessness:
Estelle v. Gamble, 429 U.S. 97, 104-106 (1976).
Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985); see also Wilson v. Seiter, 501 U.S. 294, 297 (1991).
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer, 511 U.S. at 837; see also Hare v. City of Corinth, 74 F.3d 633, 648 (5th Cir. 1996) (en banc), opinion after subsequent remand, 135 F.3d 320, 327 (5th Cir. 1998).
Consistent with this standard is the recognition that negligent or mistaken medical treatment or judgment does not implicate the Eighth Amendment and does not provide the basis for a civil-rights action.
See Estelle, 429 U.S. at 106 ("[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner"); see also Varnardo v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (unsuccessful medical treatment, neglect, nor medical malpractice give rise to a § 1983 cause of action) (citations omitted).
Plaintiff's allegations do not give rise to a claim of deliberate indifference to his serious medical needs. Although Ramirez alleges that Dr. Esterlein resigned from the FMC-Fort Worth medical center because of numerous decisions of Dr. Barry, and that Dr. Barry denied Dr. Esterlein's recommendations concerning the proper treatment to be afforded to Ramirez, this allegation amounts to nothing more than disagreement among physicians on the proper course of care. Such difference of opinion as to the appropriate method of treatment does not amount to deliberate indifference. Ramirez's claims against Dr. Barry arising after the time when Dr. Barry became involved in the direct examination and treatment of Ramirez also fail to state deliberate indifference. Ramirez acknowledges he was seen by Barry on a monthly basis and seen by physician assistants on other occasions. Yet he alleges that Barry's conduct amounted to "negligence," that he is "being denied adequate, accepted medical treatment," and that such failure to provide adequate medical treatment is "pure negligence." (Amend,. Compl. § III. at pages 6-8.) Ramirez's only claim against Dr. Huber is that he has upheld the treatment decisions of Dr. Barry. Ramirez's claims against Dr. Barry and Dr. Huber, his claims of "negligence" and "failure to provide adequate medical care," involve only disagreements with Dr. Barry (as supported by Dr. Huber) about what medical care was necessary. Such disagreement between an inmate and his physicians as to what medical care is appropriate does not state a claim for Eighth Amendment indifference to medical needs. Any deficiency in the treatment of Plaintiff by Dr. Barry and Dr. Huber does not approach the deliberate-indifference standard. As a result, Ramirez's claims against the individual defendants Dr. Barry and Dr. Huber must be dismissed under 28 U.S.C. § 1915A(b)(1) and under 1915(e)(2)(B)(i).
See generally Snipes v. DeTalla, 95 F.3d 586, 590 (7th Cir. 1996) (noting that physician disagreement in treatment alone will not support a constitutional violation), cert. den'd, 519 U.S. 1126 (1997); and Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.) (plaintiff's showing of nothing more than a "difference of medical opinion' as to one course of treatment over another insufficient to establish deliberate indifference), citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989), cert. den'd, 519 U.S. 1029 (1996).
See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (affirming the dismissal of suit as frivolous where prisoner claimed medical personnel should have tried, different methods of diagnosis and treatment); see also Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995), citing Varnado, 920 F.2d at 321; see also Street v. Corrections Corp. of America, 102 F.3d 810, 816 n. 13 (6th Cir. 1996) (patient's disagreement with his physicians over the proper medical treatment alleges nothing more than a medical malpractice claim, and is not cognizable as a constitutional claim.).
See generally Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.) (doctor's failure to discover inmate's ulcer, failure to read nurses's notes regarding inmate's incontinence problems, or to ensure that orders were carried out, might constitute negligence, but not deliberate indifference), cert. den'd, 528 U.S. 906 (1999).
Ramirez again named the Bureau of Prisons (BOP) in his amended complaint. The court of appeals already affirmed that portion of this Court's prior judgment dismissing claims against the BOP under a Bivens theory, without prejudice to Ramirez's right to make a claim under the Federal Tort Claims Act (FTCA). Ramirez has not asserted a claim under the FTCA in the amended complaint and this Court will not read one into Ramirez's amended pleading, as Ramirez expressly chose not to invoke or even refer to the FTCA and did not add the United States as a defendant. Thus, again, Ramirez's claims under Bivens against the BOP must be dismissed.
As Ramirez was informed in this court's earlier opinion, in order to sue successfully under the FTCA, a plaintiff must name the United States as the sole defendant. See Atorie Air, Inc. v. Federal Aviation Administration, 942 F.2d 954, 957 (5th Cir. 1991).
See Jones v. Reich, No. CIV.A. 3-96-CV-2317-D, 1997 WL 376053, *2 (N.D. Tex. June 30, 1997) ( Bivens does not permit suit against federal agencies), citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994).
Ramirez also listed as a defendant the hospital at FMC-Fort Worth, purportedly operated under contract with the "Osteopathic Hospital" in Fort Worth, Texas. And while Ramirez has alleged no additional facts about operation of the FMC-Fort Worth hospital, he has cited case law delineating when a private defendant may be assumed to act under color of law. (Amend. Compl. at 5.) The Supreme Court, however, recently determined that the recovery authorized in Bivens should not be extended to allow recovery against a private corporation operating under contract with the Bureau of Prisons. Thus, Ramirez may not pursue a claim against a private entity under Bivens, and as such, his claims against the FMC-Fort Worth hospital, allegedly operated by the "Osteopathic Hospital," must be dismissed.
See Correctional Services Corporation v. Malesko, 122 S.Ct. 515, 521-523 (2001) (following the logic of FDIC v. Meyer, 510 U.S. at 484-86, where the court declined to authorize Bivens claims against a federal agency, the Court likewise declined to authorize a constitutional tort remedy against a private entity.)
It is therefore ORDERED that all of plaintiff Salvadore Ramirez's claims asserted in the amended complaint be, and they are hereby, DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915A(b)(1) and pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and (ii).