Opinion
No. 3-00-CV-1203-BD
April 16, 2002
MEMORANDUM OPINION AND ORDER
Defendants Steven P. Bowers, Kathryn Flangin, and Mary Boyd have filed a motion for summary judgment in this prisoner civil rights case. For the reasons stated herein, the motion is granted.
I.
Plaintiff James Byers Estes alleges that he was denied adequate medical care while incarcerated in the Dallas County Jail. On December 14, 1999, plaintiff asked to see a doctor about a pre-existing back condition and his treatment regimen. His request was not honored until two weeks later and the treatment ultimately provided was not effective. On February 12, 2000, plaintiff requested medical attention for a rib injury sustained when he fell in the shower. Plaintiff waited nine days for x-rays, which revealed a fractured rib.
By this action, plaintiff sues two jail doctors and a nurse for civil rights violations under 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment as to all claims and causes of action. The issues have been briefed by the parties and the motion is ripe for determination.
II.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Thurman v. Sears, Roebuck Co., 952 F.2d 128, 131 (5th Cir.), cert. denied, 113 S.Ct. 136 (1992). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Matter of Gleasman, 933 F.2d 1277, 1281 (5th Cir. 1991).
A movant who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). However, the non-movant must go beyond the pleadings and designate specific facts in the record which show that there is a genuine issue for trial. See Celotex, 106 S.Ct. at 2553; Topalian, 954 F.2d at 1131. All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993).
III.
Plaintiff alleges that he was denied adequate medical care for a pre-existing back condition and a fractured rib sustained in a fall at the jail. The Court will address each complaint in turn.
A.
A civil rights claim based on the denial of adequate medical care is controlled by the Eighth Amendment to the United States Constitution. U.S. CONST. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Plaintiff must show that the defendants acted with deliberate indifference to his medical needs such as to cause the unnecessary or wanton infliction of pain." Estelle, 97 S.Ct. at 292. This requires proof that jail officials were subjectively aware of a substantial risk of serious harm and failed to take reasonable measures to abate that risk. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996), citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994).
B.
Plaintiff first alleges that he did not receive pain medication for a degenerative back condition. The summary judgment evidence shows that plaintiff was booked into the Dallas County Jail at approximately 2:00 p.m. on December 14, 1999. At that time, plaintiff told the intake nurse that he had not taken any medication during the past month but had previously been on Valium. (Def. App. at 2-3, 20-21). The next morning, plaintiff was assigned to a medical tank in the jail infirmary. Dr. Steven Bowers ordered a Librium taper to help plaintiff withdraw from the effects of Valium and set up an appointment to see him in one week. ( Id. at 2-3, 26).
Plaintiff also reported that he suffered from a bi-polar disorder. (Def. App. at 20). He was referred to the psychiatry department for evaluation and treatment and received various psychiatric medications while incarcerated. ( Id. at 16, 92-103). Plaintiff does not complain about his treatment for this psychiatric condition.
On December 15, 1999, plaintiff requested medical attention for a cut finger, a sprained wrist, and back pain. Another kite was sent to the medical department on December 17, 1999. That day, a nurse examined plaintiff and recommended 600 m.g. of Motrin for his back. Dr. Bowers approved this recommendation and started plaintiff on a three-day course of Motrin therapy. This treatment regimen was extended to five days on December 20, 1999. Plaintiff also received Folic acid and Thiamine. ( Id. at 3, 27-28). On December 22, 1999, Dr. Bowers noted that plaintiff had no problems with the Librium taper and ordered him transferred to the general jail population. ( Id. at 3-4, 28). The next day, plaintiff was sent to the North Tower of the Lew Sterrett Jail. Dr. Bowers telephoned the North Tower to alert the medical staff that plaintiff might need follow-up care for a sprained wrist. He also advised Dr. Kathryn Flangin, the physician assigned to that facility, that plaintiff was taking Folic acid and Thiamine. ( Id. at 4). Dr. Flangin continued plaintiff on those medications. ( Id. at 8, 29).
On December 24, 1999, plaintiff asked to see a doctor for pain associated with his back condition. ( Id. at 66). The medical staff responded that plaintiff was scheduled to see a doctor on January 4, 2000 and was already receiving Motrin. ( Id. at 8, 67). One week later, plaintiff was transferred to the closed behavioral unit of the West Tower. for acting "inappropriately." ( Id. at 30). The physician assigned to that unit, Dr. McCorkle, examined plaintiff on January 4, 2000 and continued his treatment regimen. Dr. McCorkle also prescribed Flexoril, a muscle relaxer. With few exceptions, plaintiff received these medications regularly from January 7, 2000 until April 22, 2000 when he was transferred to the TDCJ-ID. ( Id. at 14, 31, 52).
The summary judgment evidence, viewed in the light most favorable to plaintiff, suggests that he may not have received daily doses of Motrin from December 26, 1999 to January 7, 2000. However, this brief delay does not rise to the level of a constitutional violation. See, e.g. Ladd v. Hannigan, 1997 WL 153772 at 1 (10th Cir. Apr. 3, 1997) (20-day delay in receipt of prescription medication does not amount to civil rights violation); Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995) (refusal to administer prescription drugs for seven days not deliberate indifference when jail officials were unaware of adverse symptoms); Krivan v. Dallas County, 2002 WL 83768 at 3 (N.D. Tex. Jan. 14, 2002) (13-day delay in receipt of HIV medication not deliberate indifference); Russell v. Enser, 496 F. Supp. 320, 327-28 (D.S.C. 1979), aff'd, 624 F.2d 1095 (4th Cir. 1980) (delay in receipt of prescription medication not deliberate indifference when no need shown or request made). Moreover, neither Dr. Bowers nor Dr. Flangin were responsible for plaintiff's treatment during much of this time. Instead, Dr. McCorkle treated plaintiff after he was transferred to the West Tower of the Lew Sterrett Jail on December 30, 1999. Notably, plaintiff has not sued Dr. McCorkle. Finally, to the extent that plaintiff argues that Motrin therapy was not the appropriate course of treatment for his back pain, he has failed to state a constitutional violation. See Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993) (disagreement over course of treatment is not actionable under section 1983). Defendants are entitled to summary judgment as to this claim.
The evidence is somewhat confusing in this regard. Although plaintiff's chart suggests that he was receiving Motrin on December 29, 1999, the medication record indicates that this prescription was not renewed until January 7, 2000. ( Compare Def. App. at 52 67). For summary judgment purposes, the Court must assume that plaintiff did not receive any pain medication between December 26, 1999, when the five-day order written by Dr. Bowers expired, and January 7, 2000, when the prescription was renewed by Dr. McCorkle.
C.
Plaintiff further contends that he was denied adequate medical care for a fractured rib. The summary judgment evidence shows that plaintiff slipped and fell in the shower on February 11, 2000. He sought medical attention the next day. Upon examination, the nurse noted bruising on the right side of the rib area. No treatment was given at that time. On February 16, 2000, plaintiff returned to the infirmary for evaluation of a possible rib fracture. X-rays were ordered on February 17, 2000, but were not taken until February 21, 2000. The results showed a fracture of the fourth rib on the left side. Dr. Flangin prescribed ibuprofen, but later noted that plaintiff was already taking a similar dose of Motrin. (Def. App. at 9, 33-34). According to Dr. Flangin, "[t]he treatment for a fractured rib is to prescribe analgesics while the rib heals itself" ( Id. at 9). Plaintiff continued to take Motrin, an analgesic, and Flexoril, a muscle relaxer, until April 22, 2000 when he was transferred to the TDCJ-ID. ( Id.).
Plaintiff did not immediately report the injury because he wanted to visit with his family. (Def. App. at 33).
Although x-rays were not taken until nine days after plaintiff reported his rib injury, this delay does not constitute deliberate indifference on the part of Dr. Flangin or the jail medical staff. As previously noted, brief delays in treatment, standing alone, do not give rise to a civil rights violation. See Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (lack of medical evidence that delay in treatment adversely affected inmate precludes claim of deliberate indifference); Olson v. Finney, 885 F. Supp. 1480, 1483-84 (D. Kan. 1995) (delay in ordering x-rays for injured tailbone did not constitute deliberate indifference where prisoner received pain medication and recommended course of treatment did not change based on results of x-rays). Moreover, plaintiff was already receiving analgesic therapy for back pain when he fell and broke his rib. This is the same course of treatment recommended for a rib fracture. See Olson, 855 F. Supp. at 1484. In his response, plaintiff suggests that "a broken rib even when on pain medication can increase the amount of pain that a person is in." (Plf. Resp. at 4). Not only is this argument not supported by any evidence, but it constitutes nothing more than a disagreement over the appropriate course of treatment, which is not actionable under 42 U.S.C. § 1983. See Graves, 1 F.3d at 319; Olson, 855 F. Supp. at 1484. Defendants are entitled to summary judgment as to this claim.
IV.
Defendants also seek summary judgment on the grounds of qualified immunity. Jail officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates a "clearly established . . . constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Since plaintiff has not proved a constitutional violation, this terminates the qualified immunity analysis.
V.
Finally, the Court sua sponte notes that plaintiff has failed to state a viable claim against Dallas County, Texas. In order to establish a claim against this governmental entity, plaintiff must show that the unconstitutional actions of jail officials resulted from an official policy, custom, or practice. See Monell v. Department of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Plaintiffs First Amended Complaint contains no such allegation. Nor has plaintiff established an underlying constitutional violation. Accordingly, the claims against this defendant are dismissed as frivolous. See 28 U.S.C. § 1915(e)(2).
Plaintiff names Dallas County as a defendant in his First Amended Complaint. However, this defendant has not been served with process or voluntarily entered an appearance in the case.
CONCLUSION
There are no genuine issues of material fact and defendants are entitled to judgment as a matter of law. Accordingly, defendants' motion for summary judgment is granted as to Steven P. Bowers, Kathryn Flangin, and Mary Boyd. Plaintiff's claims against Dallas County, Texas are dismissed as frivolous under 28 U.S.C. § 1915(e)(2). The Court will enter a final judgment in favor of all defendants by separate order.