Opinion
2:03-CV-0334
January 21, 2004
REPORT AND RECOMMENDATION
Plaintiff MICHAEL G. SCOTT, 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 and has been granted permission to proceed in forma pauperis.
Plaintiff alleges that, on October 30, 2002, he found a band-aid in his dinner served to him by defendant ADAMS. He says that when he tried to show it to him, ADAMS ignored him. Plaintiff says he finally got an officer to call a supervisor, defendant HILL, who viewed the band-aid and refused to take plaintiff to the hospital or to see a doctor. Plaintiff alleges his blood was taken for testing thirteen days later but no one will tell him the results.
Plaintiff claims defendants ADAMS and HILL ignored his pleas for help. Plaintiff also claims defendants WALKER and WARD covered up the "attempt to kill on murder that harm [plaintiff] permanently toward the future to conceal [his] true innocent on D.N.A. testing." Plaintiff further claims defendant BAKER lied "on [plaintiffs] 1-60 that final shot of the vaccine done of Hepatitis B but wasn't by documents that permanently damage [plaintiff] internal bodily injury toward the future of D.N.A. testing! [punctuation in the original]."
Plaintiff has attached copies of the Step 1 and Step 2 grievances he filed concerning the incident recounted above, grievances no. 2003040096. In it, plaintiff appears to argues that the band-aid was or should have been tested to see if it was infected with Hepatitis A and he contends defendant WALKER conspired to cover up an attempted murder. By the response, officials tell plaintiff that defendant HILL acted properly in that she notified the Food Service Department and advised plaintiff to go to the Medical Department at a later date for testing. Further, officials inform plaintiff he had a test on November 12, 2002, and that the results were negative, indicating that he did not have hepatitis.
Plaintiff states, "[i]t's no doubt that I'd contract Hepatitis A by the content's on it that's was bake in the sauce of the "Meatloaf' of the band-aide by officials knowingly and intentionally knowingly to conceal of it existed."
Plaintiffs prayer for relief states:
That shows this case is related upon my False Imprisonment by motive on Attempt to Kill upon Murder to concealing my true actual innocence by D.N.A. testing to be conducted by Good Cause of interest base on immediately speedy release!! And damages!!
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).The Magistrate Judge has reviewed plaintiffs pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
To the extent plaintiff is requesting immediate release from confinement, he must pursue such relief by way of a petition for writ of habeas corpus. Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
Plaintiff has also requested damages, and the Court construes his claims against the defendants as deliberate indifference to a serious medical need and a conspiracy to cover-up an attempt to kill him. The Court notes that plaintiff does not allege any of the defendants were part of the attempt to kill him and does not allege any of them had advance knowledge of the band-aid in his food.
Concerning the conspiracy claim, plaintiff has alleged no material fact to support his conclusory assertions of conspiracy. Conclusory allegations lacking reference to material facts are not sufficient to state a claim of conspiracy under section 1983. McAfee v. 5th Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert. denied, 493 U.S. 1083, 110 S.Ct. 1141, 107 L.Ed.2d 1046 (1990). Consequently, plaintiff has failed to state a claim of conspiracy on which relief can be granted.
Although plaintiff claims defendants WARD and WALKER engaged in a cover-up of the incident, he alleges no fact to support this allegation. The Court notes these two defendants denied the step 1 and step 2 grievances plaintiff attached to his original complaint; however, the narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). For these reasons, any claim against defendants WALKER and WARD based on plaintiffs dissatisfaction with their handling of his grievances lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
By his complaint that defendants ADAMS and HILL ignored his pleas for help, plaintiff is asserting a claim of deliberate indifference to his serious medical need of treatment for having ingested food in which the band-aid had been found. The appropriate definition of "deliberate indifference" under the Eighth Amendment is "subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994); Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994). In this regard the Supreme Court has cautioned:
[A] prison official cannot be found liable under the Eighth Amendment . . . 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 could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Farmer v. Brennan, 511 U.S. at 837-38, 114 S.Ct. at 1979. It is only under exceptional circumstances that a prison official's knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk.
Plaintiff claims defendant ADAMS ignored his pleas for help; however, he does not allege ADAMS knew he had found a band-aid or had reason to know that plaintiffs health was endangered by this fact. Moreover, a supervising officer, defendant HILL, was called and plaintiff showed her the band-aid and told her where he found it. Plaintiff agrees he was tested about twelve days later and does not contradict the grievance response that he was informed by the medical department that an immediate test would be useless or that defendant HILL contacted the Food Service Department and reported the incident. Consequently, plaintiffs allegations fail to show either defendant had knowledge of facts indicating the failure to take plaintiff to the infirmary for immediate medical attention would create a substantial risk of serious harm and ignored such facts. Further, the facts do show that HILL took steps to report the matter. For this reason, plaintiff has failed to state a claim of deliberate indifference against either defendant ADAMS or defendant HILL.
See the official response to plaintiffs step 1 grievance attached to the original complaint.
See the official response to plaintiffs step 2 grievance attached to the original complaint.
Of equal importance is plaintiffs failure to allege any way in which he was ultimately harmed by this incident. By way of his step 2 grievance response, plaintiff was informed his test results were negative. Notwithstanding plaintiffs receipt and submission of this information to the Court, plaintiff alleges he was never informed of the test results. If this is so, plaintiff does not know whether he contracted any disease or suffered any harm and, thus, cannot allege a cause of action.
Plaintiffs allegation that he was never informed of the test results is puzzling. Plaintiff does not allege he ever inquired nor does he state what response he received to his inquiry. Even if no nurse or doctor ever contacted him specially to inform him of the test results, plaintiffs step 2 grievance response states the results were negative, thus informing him of the results, In any event, an inmate can review his own medical records upon request; and almost a year elapsed between the testing of plaintiff's blood and the filing of this lawsuit, during which time plaintiff could have lodged such a request, had it processed by prison officials, and conducted such a review to discover the test results. Additionally, plaintiff does not allege any way in which the failure to inform him of test results harmed him nor does he identify any defendant who was at fault in this respect.
Lastly, plaintiff claims defendant BAKER, R.N., "lied on [plaintiff's] I-60 that final shot of vaccine done of Hepatitis B but wasn't by documents that permanently damage me [sic] internal bodily injury toward the future of D.N.A. testing!" Plaintiff has alleged no fact to support his allegation that any inaccuracy in an 1-60 response from defendant BAKER was a lie instead of an error. Further, plaintiff does not provide any facts to explain how he was harmed by this inaccuracy or what any of this has to do with D.N.A. testing.
CONCLUSION
Plaintiff must provide all the necessary facts to support his attempted claims against the defendants, and may still do so by way of a timely amended complaint, filed within the fourteen-day response period for the instant Report and Recommendation; however, as set forth above, plaintiffs present allegations fail to state a claim against any one or more of the defendants on which relief can be granted.
For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff MICHAEL G. SCOTT be DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO RECOMMENDED.