Opinion
3:03-CV-3056-D.
October 18, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Nature of the Case:
Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis. II. Parties:
Plaintiff was confined in the Johnson County Jail when the events in his complaint occurred. Defendants are the Johnson County Jail, the Johnson County Sheriff's Office, Sheriff Bob Alford, Nurse Terry, Nurse Joyce and Correctional Officer M. Jeter.
III. Statement of the Case:
Plaintiff states Defendants unlawfully denied him dental treatment while he was incarcerated in the Johnson County Jail. Plaintiff states he was examined by Nurse Terry who told him that he might have a small hole in his tooth. Nurse Terry prescribed penicillin, a pain reliever and medicine to "coat his stomach." Plaintiff was also examined by Nurse Joyce and was given a tube of orasol gel to stop the pain. Plaintiff states these medications were refilled on a regular basis. Plaintiff states Defendants informed him he could be seen by a dentist, but the only treatment the dentist could provide was a dental extraction.
Plaintiff alleges this dental treatment was inadequate. He states he should have been examined by a dentist rather than nurses. He also states that he should have been provided alternative treatment to extraction. Further, Plaintiff argues that Defendants should have an emergency dental program and that Defendants' 72-hour response time for sick calls is unlawful. Plaintiff alleges that once he was transferred to the T.R. Havins Unit, the personnel told him that his tooth was infected and that he would need a root canal.
Plaintiff seeks five hundred thousand dollars in damages and a court order that Defendants provide proper dental treatment.
IV. Preliminary Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous if it "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court finds Plaintiff's claims should be dismissed as frivolous.
For an inmate to establish a § 1983 claim of deliberate indifference to a serious medical need, he must allege a deprivation of medical care sufficiently serious to show that the state has abdicated a constitutionally-required responsibility to attend to his medical needs, and that the prison officials knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The deliberate indifference must rise to a level of unnecessary and wanton infliction of pain proscribed by the Eight Amendment. Id. at 835-47. Negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a § 1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999); see also Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (finding disagreement as to the correct medical treatment does not constitute an actionable civil rights claim).
Plaintiff's claims in this case do not rise to the level of a constitutional violation. Although treatment of Plaintiff's tooth may be more desirable and preferable to Plaintiff than an extraction, denying Plaintiff his preferred treatment does not constitute an Eighth Amendment violation. See McQueen v. Karr, 2002 WL 31688891 (5th Cir. 2002) (finding no Eighth Amendment violation where prisoner argued he was entitled to restorative dental care instead of tooth extraction); Sanders v. United States, 438 F.2d 918, 919 (5th Cir. 1971) (finding that "[s]ince petitioner does not wish to undergo extensive dental extractions, the prison authorities are not to be held responsible for the cause of his suffering."); Del Muro v. Federal Bureau of Prisons, No. 5:03-CV-214-B, 2004 WL 1542216 (N.D. Tex. July 8, 2004) (finding no Eight Amendment violation where prisoner argued he was entitled to crowns and/or a bridge rather than tooth extraction)
Plaintiff's complaint and answers to the Magistrate Judge's Questionnaire show that he received treatment for his tooth. Although he may have wanted more or different treatment, he has not stated a violation of his constitutional rights. See Estelle v. Gamble, 429 U.S. 97, 107 (1976). Plaintiff's complaint should be dismissed.
RECOMMENDATION
The Court recommends that Plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed with prejudice as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).