Summary
declining to address issue of qualified immunity where plaintiff failed to establish underlying constitutional violation
Summary of this case from LACY v. NAVARRO COUNTY SHERIFF'S OFFICEOpinion
No. 3-01-CV-1871-BD (M)
June 18, 2002
MEMORANDUM OPINION AND ORDER
Defendants Dallas County, Texas and Dr. Kathryn Flangin have filed a motion for summary judgment in this pro se prisoner civil rights case. For the reasons stated herein, the motion is granted.
I.
On April 27, 2001, Plaintiff Augustus Freeman was booked into the Dallas County Jail on felony DWI and other misdemeanor charges. (Def. App. at 9). Sometime prior to his arrest, plaintiff injured his neck at work. (Plf. Compl. at 4). A private physician diagnosed the injury as two cracked vertebrae and recommended surgery. ( Id.). Although plaintiff notified jail officials of this condition, he claims that the medical staff refused to treat his injury. Specifically, plaintiff alleges that Dr. Kathryn Flangin did not allow him to see a bone specialist and withheld medication. ( Spears Quest. #2). In September 2001, plaintiff exacerbated his neck injury when he slipped and fell in the shower. (Plf. Compl. at 4-5). He was taken to the jail infirmary for treatment, but claims that his medical care was inadequate. ( Id. at 5).
By this suit, plaintiff accuses Dallas County, Texas and Dr. Flangin of deliberate indifference to his medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution. Both defendants move for summary judgment on the ground that plaintiff has failed to state an actionable claim for denial of medical care under 42 U.S.C. § 1983. Dr. Flangin further argues that the claims against her are barred by the doctrine of qualified immunity. Plaintiff was given an opportunity to file a written response to the motion and any controverting evidence, but failed to do so. Accordingly, the summary judgment motion is ripe for determination.
In his original complaint, plaintiff also sued Sheriff Jim Bowles and the Dallas County Jail Medical Department. The claims against those defendants were summarily dismissed as frivolous. Freeman v. Bowles, 2001 WL 1343626 (N.D. Tex. Oct. 29, 2001).
Alternatively, defendants seek dismissal because plaintiff did not comply with a court order requiring him to file a Rule 7(a) reply to the defense of qualified immunity. See ORDER, 12/17/01. In view of the disposition of the summary judgment motion, the Court need not consider dismissal on this alternative ground.
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). A pro se plaintiff's verified complaint and sworn interrogatory answers can be considered as summary judgment evidence to the extent that such pleadings comport with the requirements of Rule 56(e). See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). 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). However, conclusory statements, hearsay, and testimony based on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
Rule 56(e) provides, in relevant part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Fed.R.Civ.P. 56(e).
A.
A civil rights claim based on the denial of adequate medical care arises under 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). A prisoner must show that jail officials acted with deliberate indifference to a serious medical need such as to cause the unnecessary or wanton infliction of pain. Id., 97 S.Ct. at 292. This, in turn, requires proof that defendants 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 has not responded to the motion for summary judgment. Although this failure does not permit the entry of a "default" summary judgment, the court is permitted to accept defendants' evidence as undisputed except as controverted by plaintiffs verified complaint and sworn interrogatory answers. See Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.); Galvan v. Gerald, 1999 WL 632832 at *1 (N.D. Tex. Aug. 19, 1999) (Kaplan, M.J.).
In his pro se complaint and interrogatories answers, plaintiff states that he was refused access to a bone specialist and medical care for a neck injury while incarcerated in the Dallas County Jail. (Plf. Compl. at 4; Spears Quest. #2). However, the first entry in his medical chart regarding any neck pain is dated June 11, 2001 — nearly two months after book-in. (Def. App. at 36). This entry indicates that plaintiff was complaining of "2 fx'd disc in neck from work related accident . . . 11/2000." ( Id.). On June 19, 2001, Dr. Flangin prescribed Robaxin, a muscle relaxer, and ordered x-rays of the cervical spine. ( Id. at 30). The results of those x-rays were negative. ( Id. at 49). Dr. Flangin also requested a copy of plaintiffs prior medical records. ( Id. at 30).
On July 8, 2001, plaintiff complained of "much cervical pain." ( Id. at 36). He requested pain medication and a blanket to support his head on July 17, 2001. ( Id. at 37). The next day, Dr. Flangin renewed her Robaxin order and prescribed Accupral and Motrin for pain. ( Id. at 30, 37). The Accupral dosage was increased after plaintiff continued to experience severe headaches. ( Id. at 31, 37).
The jail records confirm that plaintiff slipped and fell in the shower on September 5, 2001. ( Id. at 26, 28, 40, 81). He was immediately taken to the nurse's station where he was treated with an ice pack and Motrin. ( Id.). Dr. Flangin personally examined plaintiff on September 7, 2001, but found no evidence of a new injury. ( Id.). She prescribed Robaxin and Ibuprofen. ( Id. at 28, 41, 81). Over the next few weeks, plaintiff complained that his neck pain was worsening. On September 28, 2001, Dr. Flangin examined plaintiff again and reviewed his medical chart.
According to the doctor:
Freeman had no edema or swelling of his neck and had no deformity. He was alert, responsive, oriented, with good mobility and an adequate range of motion in all extremities. In addition it was noted that he had a bilateral and equally strong grip in his right and left hands. I continued Freeman's medications for pain relief and muscle relaxation and instructed him to apply hot compresses to his neck three times a day.
( Id. at 81).
On November 26, 2001, after it became apparent that her prior course of treatment was ineffective in controlling plaintiff's neck pain, Dr. Flangin scheduled a neurosurgery consultation at Parkland Memorial Hospital. ( Id.). She also ordered a full CT scan of plaintiff's neck and spine to be completed prior to the consultation. ( Id.). An appointment was subsequently scheduled for March 6, 2002. However, plaintiff was transferred to the TDCJ-ID on January 7, 2002. ( Id.).
In contrast to the specific evidence provided by defendants, plaintiff generally avers that he was denied adequate medical care on "numerous occasions." He also complains that the prescription medications ordered by Dr. Flangin were ineffective to control his neck pain and suggests that "surgery was needed to replace [his] broken bones." (Plf. Compl. at 4) However, plaintiff has failed to adduce any competent evidence that surgery was the only appropriate medical treatment for his condition or that the care provided by jail officials was constitutionally infirm. Consequently, plaintiff has not shown that Dallas County and Dr. Flangin were deliberately indifferent to his medical needs. See Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993) (disagreement over course of treatment does not state actionable civil rights claim).
This statement was allegedly made to plaintiff by unidentified doctors at Baylor Hospital. (Plf. Compl. at 4). As such, it is rank hearsay and does not constitute competent summary judgment evidence.
C.
Dr. Flangin also seeks 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.
CONCLUSION
The Court concludes that the summary judgment evidence, viewed in the light most favorable to plaintiff, establishes that the defendants were not deliberately indifferent to plaintiff's medical needs. Accordingly, defendants' motion for summary judgment is granted.