Opinion
No. 3:20-cv-2842-B-BN
09-16-2020
STEVEN ROLAN, #201901143, Plaintiff, v. LASALLE SOUTHWEST CORRECTIONS, ET AL., Defendants.
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Steven Rolan, an inmate at the Johnson County jail, brings this pro se action against the operator of the jail and individuals employed at the jail, alleging that the defendants have been deliberately indifferent to his medical needs, in violation of his constitutional rights. See Dkt. No. 3. This action has been referred to the undersigned United States magistrate judge for screening under 28 U.S.C. § 636(b) and a standing order of reference from United States District Judge Jane J. Boyle. And the undersigned enters these findings of fact, conclusions of law, and recommendation that the Court should dismiss the complaint without prejudice to Rolan's filing within a reasonable period of time to be set by the Court an amended complaint that cures, if and where possible, the deficiencies outlined below.
Legal Standards
Under the Prison Litigation Reform Act ("PLRA"), where a prisoner - whether he is incarcerated or detained pending trial - seeks relief from a governmental entity or employee, a district court must, on initial screening, identify cognizable claims or dismiss the complaint, or any portion of the complaint, that "is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915A(b)(1).
The fails-to-state-a-claim language of this statute (as well as its sister statute, Section 1915(e)(2)(B)) "tracks the language of Federal Rule of Civil Procedure 12(b)(6)." Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) (per curiam).
And "[i]t is well-established that a district court may dismiss a complaint on its own motion under [Rule] 12(b)(6) for failure to state a claim upon which relief may granted." Starrett v. U.S. Dep't of Defense, No. 3:18-cv-2851-M-BH, 2018 WL 6069969, at *1 (N.D. Tex. Oct. 30, 2018) (citing Carroll v. Fort James Corp., 470 F.3d 1171 (5th Cir. 2006) (citing, in turn, Shawnee Int'l, N.V. v. Hondo Drilling Co., 742 F.2d 234, 236 (5th Cir. 1984))), rec. accepted, 2018 WL 6068991 (N.D. Tex. Nov. 20, 2018), aff'd, 763 F. App'x 383 (5th Cir.) (per curiam), cert. denied, 140 S. Ct. 142 (2019).
A district court may exercise its "inherent authority ... to dismiss a complaint on its own motion ... 'as long as the procedure employed is fair.'" Gaffney v. State Farm Fire & Cas. Co., 294 F. App'x 975, 977 (5th Cir. 2008) (per curiam) (quoting Carroll, 470 F.3d at 1177 (quoting, in turn, Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998)); citation omitted). The United States Court of Appeals for Fifth Circuit has "suggested that fairness in this context requires both notice of the court's intention to dismiss sua sponte and an opportunity to respond." Id. (quoting Lozano v. Ocwen Fed. Bank, FSB, 489 F.3d 636, 643 (5th Cir. 2007) (quoting, in turn, Carroll, 470 F.3d at 1177); internal quotation marks and brackets omitted). These findings, conclusions, and recommendations provides notice, and the period for filing objections to them affords an opportunity to respond. See, e.g., Starrett, 2018 WL 6069969, at *2 (citations omitted)).
Dismissal for failure to state a claim under either Section 1915A(b)(1), Section 1915(e)(2)(B)(ii), or Rule 12(b)(6) "turns on the sufficiency of the 'factual allegations' in the complaint," Smith v. Bank of Am., N.A., 615 F. App'x 830, 833 (5th Cir. 2015) (per curiam) (quoting Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam)), as neither the PLRA, the IFP statute, nor the Federal Rules of Civil Procedure "countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted," Johnson, 574 U.S. at 11.
Instead, plaintiffs need only "plead facts sufficient to show" that the claims asserted have "substantive plausibility" by stating "simply, concisely, and directly events" that they contend entitle them to relief. Id. at 12 (citing FED. R. CIV. P. 8(a)(2)-(3), (d)(1), (e)).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. And "[a] claim for relief is implausible on its face when 'the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.'" Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679); see also Inclusive Communities Project, Inc. v. Lincoln Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) ("'Determining whether a complaint states a plausible claim for relief' is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" (quoting Iqbal, 556 U.S. at 679; citing Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008) ("[T]he degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context."))).
While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not contain detailed factual allegations, a plaintiff must allege more than labels and conclusions, and, while a court must accept all of a plaintiff's allegations as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A threadbare or formulaic recitation of the elements of a cause of action, supported by mere conclusory statements, will not suffice. See id.
This rationale has even more force here, as the Court "must construe the pleadings of pro se litigants liberally," Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006), "to prevent the loss of rights due to inartful expression," Marshall v. Eadison, 704CV123HL, 2005 WL 3132352, at *2 (M.D. Ga. Nov. 22, 2005) (citing Hughes v. Rowe, 449 U.S. 5, 9 (1980)). But "liberal construction does not require that the Court ... create causes of action where there are none." Smith v. CVS Caremark Corp., No. 3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013). "To demand otherwise would require the 'courts to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.'" Jones v. Mangrum, No. 3:16-cv-3137, 2017 WL 712755, at *1 (M.D. Tenn. Feb. 23, 2017) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)).
"Ordinarily, 'a pro se litigant should be offered an opportunity to amend his complaint before it is dismissed.'" Wiggins v. La. State Univ. - Health Care Servs. Div., 710 F. App'x 625, 627 (5th Cir. 2017) (per curiam) (quoting Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009)). But leave to amend is not required where an amendment would be futile, i.e., "an amended complaint would still 'fail to survive a Rule 12(b)(6) motion," Stem v. Gomez, 813 F.3d 205, 215-16 (5th Cir. 2016) (quoting Marucci Sports, L.L.C. v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014)), or where a plaintiff has already amended his claims, see Nixon v. Abbott, 589 F. App'x 279, 279 (5th Cir. 2015) (per curiam) ("Contrary to Nixon's argument, he was given the opportunity to amend his complaint in his responses to the magistrate judge's questionnaire, which has been recognized as an acceptable method for a pro se litigant to develop the factual basis for his complaint." (citation omitted)).
Analysis
Rolan claims that he suffers from lupus and alleges that the jail has "continuously" neglected his medical needs. Dkt. No. 3 at 3, 4; see id. at 4 ("I have filed multiple medical request[s], including step#1 and step#2 grievances, requesting to be seen by a doctor to be treated [for lupus]. Unfortunately none of the requests[s were] granted."). To support his allegations, Rolan attaches to his complaint grievances he filed. See id. at 6-10.
These grievances include the jail's responses, which indicate that Rolan's medical needs have not been ignored: on March 6, 2020, "You were seen by the NP on 2/24/20 she was provided with orders that have been implemented and a referral has been sent for dermatology"; on June 10, 2020, "You were seen by Dr. Wusterhausen & the NP in Feb. You were given medication then. A dermatology appt has been made & you will go in near future. The provide will be by to see you today 6/10/20"; and on June 15, 2020, "The N.P. is trying to schedule you. Scheduling is difficult during this pandemic." Id. at 6, 7, 9.
"[S]ince pretrial detainees and convicted state prisoners are similarly restricted in their ability to fend for themselves, the State owes a duty to both groups that effectively confers upon them a set of constitutional rights that fall under the Court's rubric of 'basic human needs.'" Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en banc). The basic human needs of pretrial detainees are "protected by the Due Process Clause of the Fourteenth Amendment." Alderson v. Concordia Parish Corr. Facility, 848 F.3d 415, 419 (5th Cir. 2017) (citing Cupit v. Jones, 835 F.2d 82, 84-85 (5th Cir. 1987)), which affords them "protections [that are] 'at least as great as ... those available to a convicted prisoner,'" Price v. Valdez, No. 3:16-cv-3237-D, 2017 WL 3189706, at *5 (N.D. Tex. July 27, 2017) (quoting Hare, 74 F.3d at 639; original brackets omitted).
"Constitutional challenges by pretrial detainees may be brought under two alternative theories: as an attack on a 'condition of confinement' or as an 'episodic act or omission.'" Shepherd v. Dallas Cnty., 591 F.3d 445, 452 (5th Cir. 2009) (quoting Hare, 74 F.3d at 644-45); accord Cadena v. El Paso Cnty., 946 F.3d 717, 727 (5th Cir. 2020).
"[T]here is no significant distinction between pretrial detainees and convicted inmates concerning basic human needs such as medical care." Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001). Through the procedural and substantive due process guarantees of the Fourteenth Amendment, then, "the deliberate indifference standard articulated ... in Farmer v. Brennan, 511 U.S. 825, 837-40 (1994), applies to pretrial detainees." Thomas v. Mills, 614 F. App'x 777, 778 (5th Cir. 2015) (per curiam) (citing Hare, 74 F.3d at 643); see also Garza v. City of Donna, 922 F.3d 626, 634 (5th Cir. 2019) ("Our court has based its Fourteenth Amendment case law concerning pretrial detainees on the Supreme Court's Eighth Amendment precedent concerning prisoners. Among those borrowings is our understanding of subjective deliberate indifference." (citations omitted)).
To state a constitutional claim based on how officials at the jail have responded to his requests for medical treatment for his lupus - episodic acts or omissions - Rolan must allege facts to show (or from which the Court may infer) that these officials acted with deliberate indifference such as to cause the "unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). "Deliberate indifference is a degree of culpability beyond mere negligence or even gross negligence; it must amount to an intentional choice, not merely an unintentionally negligent oversight." Alvarez v. City of Brownsville, 904 F.3d 382, 391 (5th Cir. 2018) (en banc) (quoting James v. Harris Cnty., 577 F.3d 612, 617-18 (5th Cir. 2009) (quoting, in turn, Rhyne v. Henderson Cnty., 973 F.2d 386, 392 (5th Cir. 1992))).
"[T]he 'failure to alleviate a significant risk that [the official] should have perceived, but did not' is insufficient to show deliberate indifference." Domino v. Tex. Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Farmer, 511 U.S. at 838); cf. id. ("Deliberate indifference is an extremely high standard to meet."); accord Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018). And a disagreement with medical treatment or a failure to provide additional medical treatment - alone - does not constitute deliberate indifference. See Domino, 239 F.3d at 756; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); see also Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (to establish a constitutional violation, a plaintiff must show that medical staff "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").
The facts Rolan presents to this Court do not show that jail officials have ignored his complaints or otherwise shown "a wanton disregard for [his] serious medical needs." Johnson, 729 F.2d at 1238. He may feel that he is not being evaluated by a specialist (a dermatologist) soon enough, but all Rolan has alleged is that he is frustrated with the jail's efforts to provide him additional medical care. His allegations do not therefore show that the medical care that he has received (or failed to receive) at the jail amounts to a constitutional violation.
Recommendation
The Court should dismiss Plaintiff Steven Rolan's complaint without prejudice to his filing within a reasonable period of time to be set by the Court an amended complaint that cures, if and where possible, the deficiencies outlined above.
A copy of these findings, conclusions, and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions, and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions, and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: September 16, 2020
/s/_________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE