Opinion
No. 2:03-CV-0312.
March 17, 2005
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ORDER DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND ORDER OF DISMISSAL
Plaintiff VENCE LAMOR THOMPSON, acting pro se and proceeding in forma pauperis while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. On May 19, 2004, defendants filed a Motion for Summary Judgment with supporting Brief and Appendix, and plaintiff filed his response on June 9, 2004. Plaintiff also filed a Motion for Partial Summary Judgment with supporting memorandum on September 10, 2004.
A Report and Recommendation was filed March 3, 2005, by the United States Magistrate Judge analyzing defendants' motion for summary judgment and recommending that it be granted, analyzing plaintiff's motion for partial summary judgment and recommending that it be denied, and recommending that plaintiff's claims be dismissed with prejudice.
Plaintiff filed his objections on March 15, 2005. By his objections, plaintiff submits a copy of defendant MAXEY's interrogatory responses, referenced in plaintiff's response and in the supporting brief to his motion for partial summary judgment, and argues she should have arranged for his keloids to be treated with Accutane and should have provided treatment or arranged for him to receive treatment for the pain resulting from his keloids. Plaintiff should have attached these interrogatory responses to his Response or his Motion for Partial Summary Judgment; nevertheless, the Court will consider them now.
Plaintiff was, and apparently still is, under the mistaken impression these responses were filed of record; however, as the certificate of service plainly shows, they were sent only to plaintiff, in compliance with the practice in this district.
Review of defendant MAXEY's interrogatory responses reveals no evidence to support plaintiff's claim that she should or could have provided him treatment. Plaintiff was Dr. BASSE's patient, and defendant MAXEY was a nurse whose job it was to assist inmates in the resolution of their complaints concerning medical care. Plaintiff has not produced evidence showing defendant MAXEY was deliberately indifferent to his serious medical needs. Plaintiff has no constitutional right to an alternate treatment from a nurse when plaintiff disagrees with the treatment prescribed by his physician. Plaintiff's claim in this respect 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). As to MAXEY's ability to provide plaintiff with over-the-counter medication, plaintiff does not plead he ever asked her for any and she refused, or that she was his only source for such pain relievers.
The Court has made an independent examination of the records in this case, has examined the Magistrate Judge's Report and Recommendation, as well as the objections filed by the plaintiff.
The Court is of the opinion that the objections of the plaintiff should be OVERRULED and that the Report and Recommendation of the United States Magistrate Judge should be ADOPTED by the United States District Court, as supplemented herein.
This Court, therefore, does OVERRULE plaintiff's objections, and does hereby ADOPT the Report and Recommendation of the United States Magistrate Judge in this case, as supplemented herein.
IT IS THEREFORE ORDERED that defendants' motion for summary judgment is GRANTED; and plaintiff's motion for partial summary judgment is DENIED. Plaintiff's claims are hereby DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail.
IT IS SO ORDERED.