Opinion
3:98-CV-59-AH
September 5, 2002
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties, the provisions of 28 U.S.C. § 636(c), and the District Court's Order of Reassignment filed on June 8, 2001, came onto be considered Defendants' motion for summary judgment filed on January 15, 2002, Plaintiff's opposition filed on March 4, 2002, and Defendants' reply filed on April 8, 2002, and the court finds and orders as follows:
The Defendants have asserted various grounds as to why summary judgment should be granted in their individual capacities. However, consideration of these bases is pretermitted because the court finds that Plaintiff has not established that there is a genuine issue of fact to show that he suffered an injury which is cognizable under § 1983.
Defendants Feinglass and McMillan contend that Plaintiff's suit against them is barred by limitations. Defendants Bowles, McKinney, Gresham and Allcorn argue that Plaintiff has failed to show any personal involvement which they had in the circumstances giving rise to the alleged assault of Plaintiff by his fellow inmate, Travis Washington. Dallas County claims that Plaintiff cannot establish a causal link between any official policy of the county and the alleged injury to Plaintiff. Finally, all Defendants, served in their individual capacities invoke the defense of qualified good faith immunity.
Prior to the consents of the parties and the District Court's order of reassignment the undersigned magistrate judge filed a recommendation on February 18, 1998, in which I recommended that Plaintiff's pro se complaint alleging an Eighth Amendment violation be dismissed at the "screening stage" (See 28 U.S.C. § 1915A) because he did not allege any conduct on the part of the then named Defendants which violated the standards under Farmer v. Brennan, 511 U.S. 825, 845, 114 S.Ct. 1970, 1984 (1994) and alternatively because the claimed injury was de minimus and therefore failed to satisfy the requirements of 42 U.S.C. § 1997e(c).
Plaintiff appealed the judgment of the District Court pursuant to which Plaintiff's complaint was dismissed and on October 23, 1998, the Fifth Circuit vacated the District Court's judgment and remanded Plaintiff's case to the District Court for further proceedings. The Court found that Plaintiff's complaint alleged that Defendants were on notice of the risks of injury to Plaintiff when he was housed in the same tank with Travis Washington. The Court further found that there was nothing before the District Court to show the extent of Plaintiff's injuries and that his claims that he suffered "blurred vision, headaches and a bruised throat, continuing through the date on which he filed his answers to the questionnaire" were more than sufficient to withstand a § 1915(e)(2)(B)(i) dismissal.
Following remand, Plaintiff was granted leave to file his second amended complaint on May 12, 2000. In this amended complaint Plaintiff alleged that he was assaulted by Washington with a metal object and sustained injuries to his back and neck as well as broken bones in his right hand. He further alleged that his requests for medical treatment were refused. See Second Amended Complaint at ¶¶ 78-83. On November 20, 2000, the court appointed Jay Madrid as counsel for Plaintiff.
Many of the facts are not disputed and are briefly summarized as follows:
The official records of the Dallas County Jail regarding Plaintiff's confinement are found in the exhibits attached to Leslie Sweet's affidavit. Defendants' Appendix Exhibit 10.
Plaintiff was received at the Dallas County Jail on March 9, 1997, after having been convicted and sentenced for multiple criminal offenses in the Commonwealth of Massachusetts. He was initially confined in tank 5W7 and was transferred to tank 9P8 on March 20, 1997. On July 15, 1997, Caldwell requested transfer because he was fearful that another inmate in the tank would harm him. On July 16, 1997, Plaintiff refused to be transferred to tank 4E4, because he felt his life would be in danger. As a result, he was placed in a single cell designated as 2EU92 where he remained until July 21, 1997, when he was returned to tank 5W7.
On August 16, 1997, Plaintiff was transferred to tank 5P7 where he remained until October 31, 1997, during which period the alleged assault which gave rise to Plaintiff's § 1983 action occurred. On October 31, 1997, he was transferred to tank 6P5 at the direction of Lt. Berry, who noted the transfer was "to keep down trouble," suggesting that the atmosphere in the tank was less than harmonious. See Defendants' Appendix Exhibit 10 at 0076. He remained in 6P5 until he was returned to Massachusetts on June 21, 1998, to serve the remainder of his sentences.
Plaintiff was seen on a number of occasions by the Dallas County Jail medical personnel. See Defendants' Appendix Exhibit 10 at pages 45; 79-84; Exhibit 11, Affidavit of Mary Boyd and attachments at pages 0088-93.
Caldwell' s jail records also include incident reports — Defendants' Exhibit 10 at pages 0049; 0053 and 0068; records of refusals to accept medical care — Id. at 0054-59 and a grievance filed by him on November 14, 1997. Id. at 0061-63 and 0085.
In his Appendix filed with his response to Defendants' motion for summary judgment Caldwell included Depo. Exhibit 3 to an excerpt from Defendant McKinney's deposition (Exhibit 1-A). However, this exhibit is not included in the official records of Dallas County Jail and McKinney denied ever having seen it. Id at 0018. He likewise denied ever having seen two other exhibits, purporting to be grievances addressed to him and which are also not contained in Plaintiff's jail records.
Plaintiff filed his complaint on January 13, 1998, and therefore it is governed by the provisions of the Prison Litigation Reform Act of 1996 (the "PLRA"). 42 U.S.C. § 1997e(e) of the PLRA provides in pertinent part that:
No federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury. (Emphasis added).
In interpreting this limitation on prisoner suits, the Fifth Circuit held in Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), that in order to satisfy the "physical injury" requirement the alleged injury must be more than de minimus. Applying this standard the Fifth Circuit held that the bruise which lasted three days, caused when the defendant prison guard allegedly without provocation twisted the plaintiff's ear, was de minimus and therefore did not state a cognizable claim.
Although the claims in Siglar and in the present case both arise under the Eighth Amendment, the complaint in Siglar was based on the guard's excessive use of force, while in Caldwell' s case there is no claim that any defendant used force against him. It only stands to reason that the injury upon which a Farmer v. Brennan claim is based must be at least as serious as an injury caused by the excessive use of force.
Obviously the magistrate judge is not unmindful of the fact that the Fifth Circuit found that Caldwell's complaint was sufficient to avoid dismissal at the screening stage, prior to the issuance of process. However, at this stage of the proceedings a different standard applies. The screening stage contemplates review of a complaint consistent with a motion to dismiss under Rule 12 where all facts alleged in a complaint must be assumed to be true, and where only the pleadings themselves can be considered. Under Rule 56, once a party has moved for summary judgment and has made an initial showing that no genuine issue of fact is presented, the party opponent may not merely rely on his pleadings, but must come forward with competent evidence that refutes the movant' s summary judgment materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-5, 106 S.Ct. 2505, 2514 (1986) ("the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.").
Horton v. Cockrell, 70 F.3d 397 (5th Cir. 1995) cited in the Fifth Circuit per curiam opinion remanding this case, was governed by the less restrictive provisions of 28 U.S.C. § 1915(d) which applied to prisoner suits filed prior to the PLRA.
The summary judgment evidence raises serious questions as to whether any physical assault of Caldwell even occurred on October 27, 1997. The description of the assault and his injuries alleged in his original complaint are different in kind and nature from that alleged in his Second Amended Complaint. Further, there is no evidence in the record except for Plaintiff's statement that he was assaulted by Travis Washington, even though the jail records show that Caldwell was capable of and in fact filed a grievance alleging an incident which occurred on November 14, 1997, Defendants' Appendix 60-61, and notwithstanding the fact that on two occasions prior to October 27, 1997, his requests for transfers were honored by jail personnel. However, consistent with the requirements for considering motions for summary judgment, the court assumes that Washington physically assaulted Plaintiff on October 27, 1997, as claimed.
The court now turns to the case dispositive issue before it, i.e. whether a reasonable finder of fact could find the injury caused as a result of the assault by Travis Washington was more than de minimus.
The record reflects that Plaintiff was seen by medical personnel at the Dallas County Jail between the date of his admission and his return to Massachusetts on multiple occasions. See Defendants' Appendix, Exhibit 11. The records show that he was seen and treated for a minor problem on March 9, 1997, and for hives in late August 1997. He received Benadryl for this condition in August and November 1997. In December 1997 he was taken to Parkland Hospital due to bleeding gums. When seen at Parkland on December 24, 1997, an EKG revealed a systolic heart murmur. On December 27, 1997, Caldwell reported a history of heart disease, see also December 29, 1997 and December 30, 1997, nurse's notes. The record also contains numerous refusals to accept treatment between the dates of December 25, 1997, and January 6, 1998 (Appendix at pages 69-74).
Conspicuous by its absence is any request for medical care on or after October 27, 1997, for injuries consistent with those alleged in his Second Amended Complaint. Despite the fact that he claimed to have suffered from blurred vision, headaches and a bruised throat as late as February 3, 1998, the date on which he signed his answers to the magistrate judge's previously served questionnaire, and the fact that he now alleges that he suffered broken bones in his right hand as a result of the assault, he has neither produced any evidence that any bones were broken, nor in any of the nineteen nurse's note entries subsequent to October 27, 1997, through January 14, 1998, did Caldwell complain of any injuries sustained as a result of an assault. Under such circumstances no reasonable jury could find that Caldwell sustained a injury which was more than de minimus.
IT IS, THEREFORE, ORDERED that summary judgment is granted in favor of all Defendants in this action.
A copy of this Memorandum Opinion and Order shall be transmitted to Plaintiff and counsel for the parties.