Opinion
2:99-CV-0348.
September 25, 2001.
REPORT AND RECOMMENDATION
Plaintiff CHRISTOPHER KARONE TURNER AKA CHRISTOPHER ELIJAH EL-AMIN DAMU AKA C. K. TURNER, acting pro se, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. Plaintiff filed the instant suit while a prisoner confined in the custody of the Texas Department of Criminal Justice, Institutional Division and has paid the filing fee. Plaintiff is not proceeding in forma pauperis.
By his complaint, plaintiff challenges four uses of force occurring between March 26, 1999, and May 25, 1999, alleging the defendants violated his due process rights by misusing chemical agents to subdue him and denied him sufficient or immediate medical care in violation of his Eighth Amendment rights. Plaintiff also states he slipped while decontaminating in the showers after one of the uses of force and injured his head in the fall. Plaintiff alleges he also suffered "severe bum to the skin and eyes". Plaintiff requests declaratory and injunctive relief, as well as $8,000.00 compensatory relief per incident and $180,000,000.00 in punitive damages.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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. 42 U.S.C. § 1997e(c)(1). ASpears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993);see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with theWatson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff both in his complaint and in his response to the Court's Questionnaire to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Plaintiff sues the Clements Unit for deliberate indifference, failure to train the staff, cruel and unusual punishment, "malpractices" and the violation of his due process. Plaintiff gives no specifics and, in any event, suit against this entity is barred by the Eleventh Amendment. The Clements Unit is a subdivision of the Texas Department of Criminal Justice. It is settled law that the Texas Department of Criminal Justice is eligible for Eleventh Amendment immunity. Harris v. Angelina County, 31 F.3d 331, 338 n. 7 (5th Cir. 1994); see, Loya v. Texas Department of Corrections, 878 F.2d 860,861 (5th Cir. 1989). The Texas Department of Criminal Justice, including its subdivisions, is an agency of the State of Texas and any recovery from this defendant would necessarily come from state coffers. Therefore, the Texas Department of Criminal Justice is not a "person" within the meaning of section 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). Consequently, plaintiff's claim against the "TDCJ CLEMENTS UNIT" is barred by the Eleventh Amendment and, thus, 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).
Plaintiff sues defendant Dr. CHARLES RIDGE because he didn't order a CAT scan to help him diagnose and treat plaintiff's complaint of headaches. Plaintiff feels defendant RIDGE should have order a CAT scan because "it's a part of due process of law. And it is the respectful manner." By his January 26, 2000, response to Question no. 21 of the Court's Questionnaire, plaintiff makes it clear that defendant RIDGE and a Dr. Orr examined and treated plaintiff for his repeated complaints of headache and that plaintiff was variously prescribed Salsalate, Amitriptilyine, and Ibuprofen over a seven or eight month period in treatment of such headaches. Plaintiff was also given a head x-ray. "[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment". Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed."Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Not every claim of inadequate or improper medical treatment is a violation of the Constitution, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).; nor does a disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). "[N]egligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Plaintiff's claim against defendant RIDGE is simply one of negligence or medical malpractice as plaintiff pleads in his January 23, 2000, response to Question no. 22 of the Court's Questionnaire. Plaintiff disagrees with defendant RIDGE and feels he should have utilized an additional test in order to make his diagnosis. Plaintiff's disagreement with his physician does not rise to a constitutional level and is frivolous.
See plaintiff's January 26, 2000, response to question no. 19 of the Court's Questionnaire.
Alternatively, review of the grievances submitted with his complaint reveals plaintiff has failed to exhaust administrative grievances concerning his complaint against defendant Dr. CHARLES RIDGE. When afforded an opportunity to supplement with any additional grievances, plaintiff submitted Step 2 grievance no. 2000012424, which he purportedly signed October 25, 1999. The grievance was resolved in a timely fashion on November 8, 1999, after plaintiff filed the instant suit which he signed and presumably mailed on October 25, 1999.
By operation of the Mailbox Rule, October 25, 2999, is the date the complaint is considered to have been filed for purposes of review.
Title 42, United States Code, 1997e(a), as amended by the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Consequently, plaintiff's failure to exhaust administrative remedies before filing suit bars consideration of his claim against defendant RIDGE. By choosing to file and pursue suit before meeting the section 1997e exhaustion of administrative remedies requirement, plaintiff has sought relief to which he was not entitled. Underwood v. Wilson, 151 F.3d 292 (5th Cir.), cert. denied, 526 U.S. 1133, 199 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). Further, because dismissal may serve as a deterrent to future premature filings by this plaintiff and other potential litigants, plaintiff's claim against defendant RIDGE should be dismissed with prejudice for purposes of proceeding in an in forma pauperis proceeding pursuant to Title 28, United States Code, section 1915(d). Id.
CONCLUSION
For the reasons set forth above, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights claims against defendant TDCJ CLEMENTS UNIT and the Civil Rights Claims against defendant Dr. CHARLES RIDGE, filed pursuant to Title 42, United States Code, section 1983, by plaintiff CHRISTOPHER KARONE TURNER AKA CHRISTOPHER ELIJAH EL-AMIN DAMU AKA C. K. TURNER be DISMISSED WITH PREJUDICE AS FRIVOLOUS.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.
This Report and Recommendation does not address plaintiff's claims against defendants RODEEN, DUFFY, BOLAND, KARCHER, HALLBERG, and TINSLEY.