Opinion
No. 7:02-CV-202-R.
March 28, 2005
MEMORANDUM OPINION AND ORDER
Came on this day to be considered Defendants' Motion for Summary Judgment and the Court finds and orders as follows:
Plaintiff has not filed a response to Defendants' motion for summary judgment.
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate who, at the time of the events giving rise to this lawsuit, was confined in the Allred Unit of the Texas Department of Criminal Justice ("TDCJ") in Iowa Park, Texas.
Plaintiff alleges that Defendants Wyatt and Adkins dragged lunch sacks through urine and feces, placed them in a trash can and "fed them to [him] and other inmates before the floor was ever decontaminated. . . ." Complaint ¶ V. Flanagan claims that the contaminated lunch caused an incurable staff infection in his knee and that Defendants Walko and Tucker denied him medical care for the infection. Id.
In his Step 1 TDCJ Grievance (attached to Complaint), Plaintiff alleged that Wyatt and Adkins pulled milk crates containing sack lunches across a floor that was contaminated with urine and feces.
The Eighth Amendment prohibits cruel and unusual punishments. This has been interpreted by the Supreme Court to prohibit physically barbarous punishments, punishments which involve "the unnecessary and wanton infliction of pain," or which are grossly disproportionate to the crime. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399 (1981).
Defendants have presented summary judgment evidence indicating that the staph infection in Plaintiff's knee would not have been caused by eating food contaminated with urine and feces because Staph. Aureus, the infection in Plaintiff's knee, is not generally cultured from urine or feces. Appendix to Defendants' Motion for Summary Judgment pp. 1-2. (hereinafter Appendix at p. ___). Moreover, Plaintiff has a long history of osteoarthritis which predisposes him to joint pain and other problems. Id. Plaintiff has not provided any summary judgment evidence to refute Defendants evidence that the staph infection was not caused by contaminated lunch sacks. Flanagan's subjective belief that the staph infection was caused by contaminated lunch sacks is too speculative to survive summary judgment in light of the evidence provided by Defendants. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain a claim under § 1983).
Even assuming that Wyatt and Adkins pulled the lunches in milk crates across a contaminated floor, which the Court naturally would not condone, Plaintiff cannot prevail on this claim. 42 U.S.C. § 1997e(e) provides 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.
Flanagan had the opportunity to describe his alleged injuries in his complaint, in his answers to the Court's questions and by responding to Defendants motion for summary judgment, which he did not do. The only injury he claims to have suffered is the staph infection which Defendants have shown was not caused by the contaminated lunch sacks. Assuming that the floor of the area near Plaintiff's cell was not cleaned for four days as alleged by Plaintiff, such a condition does not rise to the level of a constitutional violation. See Alexander v. Tippah County, Mississippi, 351 F.3d 626 (5th Cir. 2003) (finding no injury where inmates were in a concrete isolation cell for 24 hours with feces and vomit clogging a drain and spread around the cell by guards spraying a water hose under the door to try and clean it up); Davis v. Scott, 157 F.3d 1003 (5th Cir. 1998) (three-day confinement in crisis management cell with blood on walls and excrement on the floor did not constitute and extreme deprivation so as to violate inmate's Eighth Amendment rights, especially in light of the fact that cleaning supplies were made available). Because Plaintiff has not shown physical injury resulting from contaminated lunch sacks, he can not recover monetary damages. Because Plaintiff no longer resides in the Allred Unit, any claims for injunctive relief are moot. See e.g., Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988); Holland v. Purdy, 457 F.2d 802, 803 (5th Cir. 1972).
Next, Plaintiff claims that Defendants Walko and Tucker denied him medical treatment for the staph infection. Specifically, Plaintiff alleges that Walko refused to evaluated his knee infection when he reported it because the unit was on lockdown. Plaintiff's Answer to the Court's Question No. 3. Flanagan seeks redress against Tucker for allegedly failing to instruct Walko to provide a medical evaluation. Id. at Question No. 6. Plaintiff claims that he was told by Dr. Potter that he could have lost his leg if the infection had gotten any worse. Id.
In order to state a colorable claim for the denial of medical care under the Eighth Amendment, an inmate must allege acts or omissions "sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). "Deliberate indifference" under the Eighth Amendment occurs only where a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, it is well established that negligent or erroneous medical treatment or judgment does not provide a basis for a § 1983 claim. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). As long as jail medical personnel exercise professional medical judgment, their behavior will not violate a prisoner's constitutional rights. See Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S.Ct. 2452, 2461-62 (1982). A disagreement over the appropriate medical treatment constitutes, at most, a possible claim of medical malpractice appropriately addressed under state law. E.g., Estelle v. Gamble, 429 U.S. at 107-08, 97 S.Ct. at 293; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
With regard to Defendant Walko's conduct in allegedly denying Plaintiff medical care, Flanagan states that the sources of his information are Officer Gray and a "pill nurse" names Ms. Harris. Plaintiff's Answer to the Court's Question No. 1. Flanagan alleges that Officer Gray told him Walko would not see him and that Ms. Harris informed Walko of his sickness and that she still refused to see him. Id.
Walko has presented her sworn affidavit stating that she was aware of Flanagan's complaints of gastrointestinal distress during the relevant time period, that he was seen for this condition and that his condition appeared to be stable. Appendix p. 36. Walko states that she was not aware that Flanagan was suffering any serious illness in need of medical attention or that he had been unable to obtain medical care. Id. Walko spends much of her time in the allred Unit infirmary and relies on correctional officers to relay messages to her from inmates. Id. Assuming the truth of Plaintiff's allegation, that two Allred Unit employees told him that Walko would not see him, Plaintiff still has failed to refute Defendants' evidence that Walko herself was unaware of any serious medical problem with Plaintiff. In other words, Plaintiff has failed to show that Walko actually received and ignored the information about his condition that he claims to have sent through other prison employees. In light of Defendants' summary judgment evidence, there is no genuine issue of material fact for trial with regard to Walko.
With regard to Defendant Tucker, Plaintiff claims that she had supervisory authority over Walko and failed in that capacity to ensure that he received proper medical care after he sent her an I-60 internal communication. Plaintiff's Answer to the Court's Question No. 6. To the extent that he seeks redress against Tucker because of her supervisory position, Plaintiff cannot prevail. He cannot recover under § 1983 on a theory of respondeat superior. Tucker cannot be held responsible for the alleged acts or omissions of her subordinates under § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
To state a valid claim, a civil rights plaintiff must establish a causal connection between the acts or omissions of the defendant and the resulting constitutional deprivation. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981). Flanagan has alleged no facts to show either active participation by Tucker in the actions causing the alleged deprivation of his constitutional rights or affirmative adoption by Tucker of policies which were wrongful or illegal and which caused the constitutional deprivation. See Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir. 1980) (requiring a § 1983 plaintiff to "establish a causal connection between an act of the supervisory official and the alleged constitutional violation."). Instead, Plaintiff seeks to establish liability by simply claiming that he sent an I-60 to Tucker and she failed to direct Walko to evaluate his condition. Plaintiff's Answer to the Court's Question No. 6. Careful review of Plaintiff's answers to the Court's questions reflects that he presents nothing more than conclusory allegations regarding the conduct of Tucker. Id. He has failed to articulate facts which, if taken as true, would demonstrate that Tucker was deliberately indifferent to his need for medical care. Id. He has failed to show that Tucker ever received the I-60 or read the I-60. Id. Therefore, he has failed to show that Tucker had subjective knowledge of a substantial risk to his health or safety. Plaintiff has included copies of two I-60s with his original complaint in which he complains of gastrointestinal distress. Neither I-60 appears to be directed to Tucker and there is no indication that either I-60 was received or reviewed by Tucker. Therefore, Plaintiff cannot establish liability on the part of Tucker. A claim that a letter of complaint was mailed to a person in a supervisory position, without more, is insufficient to establish liability on the part of that individual for a deprivation allegedly caused by a subordinate. See Risley v. Hawk, 918 F.Supp 18, 24 (D.D.C. 1996), aff'd, 108 F.3d 1396 (U.S. App. D.C. 1997); Green v. DeBruyn, 1996 WL 476691 *6 (N.D. Ind. 1996).
The Court further finds that Defendants are entitled to qualified immunity from suit. See Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (holding government officials are entitled to qualified immunity from suit when performing discretionary functions unless their conduct violated statutory or constitutional rights, clearly established at the time of the alleged incident, of which a reasonable person would have known). It is clear from the facts of this case, viewed in a light most favorable to Plaintiff that Defendants did not violate Plaintiff's constitutional rights.
The Court has the power to pierce the veil of a pro se plaintiff's allegations and dismiss those claims whose factual contentions are clearly baseless. Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir.), cert. denied, 513 U.S. 883, 115 S.Ct. 220 (1994). Although in forma pauperis complaints are to be construed liberally, the Court is bound by the allegations of the complaint and is not free to speculate that a plaintiff might be able to state a claim if given yet another opportunity to add more facts. Id.
Summary judgment is proper when the pleadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning material facts are genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). However, once the movant has carried his burden of proof, the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988).
When a movant carries his initial burden, the burden then shifts to the nonmovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53; Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden," Douglass, 79 F.3d at 1429, as "the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not significantly probative, however, will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Furthermore, a mere scintilla of evidence will not defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved in favor of the nonmovant, but only when both parties have submitted evidence of contradictory facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of any proof, however, the Court does not assume that the nonmovant could or would prove the necessary facts. Id.
In making its determination on the motion, the Court looks at the full record including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed.R.Civ.P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, "the [Court's] function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The movant's motion for summary judgment will be granted if he meets his burden and the nonmovant fails to make the requisite showing that a genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1119 (5th Cir. 1992).
The summary judgment evidence presented in this case establishes that there are no genuine issues of material fact and that Defendants are entitled to summary judgment as a matter of law.
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED and Plaintiff's complaint is hereby dismissed with prejudice as frivolous.
Title 28, United States Code, Section 1915(e)(2)(B)(i) mandates dismissal of any action filed in forma pauperis if the court determines that the claims raised therein are frivolous. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 (1989); Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). In this case, Plaintiff's claims lack an arguable basis in law and are, therefore, frivolous.
A copy of this order shall be transmitted to Plaintiff and to Counsel for Defendants.
SO ORDERED.