Opinion
Civil Action No. 01-3525, Section "K" (2)
February 25, 2002
REPORT AND RECOMMENDATION
Plaintiff, Arthur Nathan Orwig, is a prisoner currently incarcerated in the St. Tammany Parish Jail. He filed this complaint pro se and in forum pauperis pursuant to 42 U.S.C. § 1983 against various medical personnel who work at the jail, including Nurse Farol, Nurse George, Nurse Cynthia, Alan Crawford, physician's assistant; and Dr. Peter R. Galvan; alleging that he has received inadequate medical care during his incarceration. He also sued Warden Marlin Peachey, alleging that he has complained to the Warden about his medical treatment, to no avail. Record Doc. No. 1, Complaint at ¶ IV. Plaintiff seeks medical treatment, compensatory and punitive damages, id. at ¶ V, and transfer to another prison facility. Record Doc. No. 20.
On February 4, 2002, I conducted a telephone conference in this matter. Participating were plaintiff pro se and Allison H. Penzato, R. Bradley Lewis and Marilyn R. Cohen, representing defendants. Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and its progeny.
THE RECORD
Orwig testified that he is currently incarcerated based on his criminal conviction on December 18, 2001 on two counts of distribution of pain pills. He stated that he is currently serving a sentence of ten years imprisonment.
Plaintiff confirmed that all of his claims in this case arise exclusively from his incarceration in the St. Tammany Parish Jail, where he was first placed on June 12, 2001, several days after having been arrested on the charges for which he was later convicted. He stated that he has been continuously housed in the St. Tammany Parish jail since that date.
Orwig confirmed that his claim in this case is that he has not received medical care for various medical problems he was experiencing before his incarceration and that continue to require treatment. He complained that he has not received medical care, despite the fact that he informed defendant Dr. Galvan on several occasions after he was taken into custody about his problems and his pre-incarceration treatment and testing at hospitals in Bogalusa and New Orleans. Orwig stated that Dr. Galvan failed to obtain his medical records (including "upper GI" test results) concerning his various physical conditions from before his incarceration and that I've been setting here in pain the whole time that I've been here, and nothing's been done to do anything to help to relieve my pain.
Plaintiff testified that he had received the verified medical records submitted by defendants in response to my order, Record Doc. Nos. 3 and 28, but he alleged conclusorily that they are not accurate. Specifically, he explained that the medical records contain only an MRI concerning his back, but not the results of other tests conducted prior to his incarceration, including an "upper GI" and an ultrasound. He also complained that the records do not contain "20 or 30" of the requests for medical treatment and records that he sent to Dr. Galvan and that the records of medications he was provided in jail are "all out of order and messed up." For example, he complained that sometimes when he was provided with various medications at the jail, instead of being given the medicine in the manner Dr. Galvan wrote in the records, "I'd get them for seven days, get them for 13 days, take them back off, give me for 12 days."
Orwig complained that he was never on any of the various medications provided to him in the jail long enough for the medicine to be effective in helping any of his problems. He testified, for example, that at one point Dr. Galvan was providing him with 300 milligrams of a medication he could only describe as "Cestene, Cistene, something like that," but he complained that he was never given Prevacid, a different medication for treatment of duodenal ulcers. Plaintiff also testified that "the only thing I've been on since I've been here actually is Elavil and Vistaril, and that's the argument I've had with him [Dr. Galvan] since I've been here, too, is Elavil and Vistaril they tell me is for back pain, stomach pains, chest pains, headache pains, sleeping. Vistaril and Elavil is supposed to be for everything." Orwig testified that he was given these medications at the jail until about a month ago, when Dr. Galvan took him off these medications the last time he saw plaintiff. Plaintiff testified that since he filed this suit, he and Dr. Galvan have had "problems talking, so I told him I didn't even want to see him the last time I seen him."
Later in his testimony, plaintiff confirmed that this may be a reference to Cimetidine, also known in generic form as Tagamet, a short-term treatment for duodenal and gastric ulcers and other gastroesophageal reflux disease, Physician's Desk Reference, 51st ed. at 2694, which the verified medical records confirm was provided to Orwig in the jail during July 2001.
During his testimony Orwig confirmed the reference in the verified medical records that in addition to Vistaril and Elavil, he was also given Cimetidine for his ulcers on three different occasions at the jail, "one time for 13 days, and another time for 12 days, and another time for 12 or 13 days." He also confirmed the reference in the verified medical records that at the beginning of his incarceration he was provided with 500 milligrams of Tylenol, "which I refused to take, . . . because the type of ulcers I have, I was told by my doctor at Bogalusa Charity, Dr. Silva, that Tylenol is part of . . . what has caused the type of ulcers that I have." Contrary to his earlier testimony, Orwig also confirmed the reference in the medical records that he was given Aciphex and Previcid at the jail by Dr. Galvan for a short time in June or July 2001, maybe seven days, as treatment for his gastrointestinal problems. He also confirmed the reference in the medical records that he was given 150 milligrams of Zantac at the jail for his gastrointestinal complaints, but only for about 12 or 13 days. Orwig stated that he was given Elavil nightly until about a month ago for sleeping, hiatal hernia, ulcers and stress, and then had Vistaril added to his medication regimen for about a month, ending also about a month ago.
Orwig testified that Dr. Galvan also provided him with Valium for about three months during his stay in the jail, but he did not know exactly what it was for. He confirmed the reference in his medical records that he has been placed on a bland diet because of his ulcers "the whole time since I've been here."
Asked about the reference in his written submissions to a back injury he suffered prior to his incarceration, plaintiff testified that he fell from a two-story roof before his arrest, and a neurologist at Charity Hospital named Dr. Messinger was treating his back before his arrest. He said he had explained to Dr. Galvan that he has a "serious back injury," although he could not say exactly what may be wrong with his back. In nearly incomprehensible fashion, he testified that on the night before his arrest, Dr. Messinger at Charity Hospital had conducted two MRI's of his back, "and she said if nothing was found on that, . . . that anything that was serious she would have to do further testing, but she wanted to get me in as immediately as possible to get something done because my back is a serious problem and something that could be life-threatening or it could hurt me to where I could wind up not being able to walk." He complained that Dr. Galvan had done nothing for his back problem.
Orwig testified that in addition to his back problems and ulcers, he is now experiencing problems swallowing his food, nauseousness, occasional vomiting and chest pains. He confirmed the indication in the verified medical records that he was taken from the jail to the emergency room at Lallie Kemp Hospital on June 25, 2001, after he was examined by Dr. Galvan twice at the jail shortly after his arrest. Orwig testified that Dr. Galvan had referred him to the hospital for further treatment and "got upset" with one of the nurses when Orwig was not brought to the hospital from the jail immediately. He stated that he was brought to the hospital on June 25, 2001, because he had blood in his stool and a lot of pain in his stomach and back. Plaintiff testified that at the hospital, a stool sample was taken, but no blood was found, and "they put me on some medications, Gaviscon (sp) and Nexium," which he said he never received when he was brought back to the jail "because I was told the doctor makes the decision on what medications you get and you don't get" in the jail. Orwig denied that he has requested large amounts of narcotic medications while he has been in jail. He stated that all he has attempted to do while in the St. Tammany Parish jail is get the same kind of medications and treatment he was receiving for his problems before he was taken into custody. He confirmed the reference in the medical records that during his examination at Lallie Kemp, which lasted a few hours, chest x-rays were taken and a series of abdominal tests were also conducted before he was sent back to the jail.
Plaintiff also confirmed the reference in his medical records that he saw a doctor at the jail again in July 2001. He estimated that he has been seen by a doctor at the jail "about six times in eight months" and that he has also been taken from the jail to a hospital "maybe three times, four at the max." He said he has been taken to Lallie Kemp several times, but one trip to Charity Hospital in New Orleans and one trip to Lallie Kemp were wasted because no testing or examination were done.
Orwig testified that on one trip to Charity Hospital in New Orleans during his incarceration a "GI series" of tests was conducted. He clarified that the medical records contain references to two separate GI series of tests, one on or about June 5, 2001, at Charity Hospital in New Orleans (before his arrest) and the second on or about August 20, 2001, at Lallie Kemp hospital during his incarceration. He confirmed that MRI's were taken at Charity Hospital in New Orleans on June 5, 2001, and forwarded to the jail at Dr. Galvan's request in September 2001. He complained that it took Dr. Galvan four months to obtain these records because the medical department at the jail forgot to have Orwig execute a medical release form.
Orwig testified that after Dr. Galvan received and reviewed his medical records from Charity Hospital he met with Dr. Galvan, who asked Orwig "what was really going on, to tell him the truth." Plaintiff stated that it appeared Dr. Galvan did not believe anything Orwig had told him about his condition had been true. He said Dr. Galvan told him the Charity Hospital records did not establish that he had ulcers before he came to jail, "and I agreed with him that maybe my ulcers could be gone now, I'm having the same problems now that I had before I came to jail."
He also confirmed the reference in the medical records that he was taken back to Lallie Kemp Hospital from the jail on October 26, 2001, that an abdominal ultrasound was conducted at that time and that the result was normal.
Asked to specify his complaints against each defendant, plaintiff testified that Dr. Galvan and his medical staff have made mistakes in treating him since he has been in jail, including specifically that the defendants did not obtain his pre-incarceration medical records sooner and that he was not provided with additional outside testing, since the testing already performed had shown nothing. He complained, "I don't understand what's taking so long," and he added that there are other medical records from his pre-incarceration treatment that have not been obtained by Dr. Galvan.
Plaintiff testified that his complaint against defendant Alan Crawford is that Crawford is a physician's assistant to Dr. Galvan, who has also examined Orwig once or twice. He said Crawford arranged to provide him with Paxil, which he has now been taking for one or two months. Plaintiff said he sued Warden Peachy because he has sent the warden grievances concerning his medical care, but the warden has done nothing. Orwig said he sued Nurses Cynthia and George because they did not take his complaints or medical requests seriously and treated him as a nuisance rather than as a patient. Orwig said he sued Nurse Farol because she was responsible for handing out medicine, and she is currently the head nurse at the jail.
Orwig added that since he filed this lawsuit, he has received no medical care, and he has seen a doctor only once during that time, although he continues to be in pain. He testified that he has been told that he has an appointment to see a doctor in a week, but he complained that certain people in the jail get preferential treatment. He testified that he continues to get medication for his nausea "off the cart" but he continues to be in pain. He stated: "Something is wrong with me. The tests they've done, they haven't found anything, but I'm telling you I'm hurting."
On cross-examination, plaintiff confirmed that he has received medication for his stomach problems, but he claimed that there is no medication that can cure ulcers in the short time it was provided to him. He also confirmed that he has had several different tests concerning his gastrointestinal problems, including abdominal ultrasound, upper GI series and an abdominal series, all repeated since his incarceration began, "but they haven't found anything on that, and I don't understand why they let me set here for eight months and not have another test done. Something's going on because I am hurting, I'm in a lot of pain." He complained that he has made nine requests for medical treatment in the last month, but he has not yet been seen by a doctor during that time.
On further cross-examination, he testified that he requested the narcotic drugs Soma and Darvocet when he was first incarcerated, but he was told by Dr. Galvan that he would not receive that or Ultram, which Orwig alleged is a non-narcotic drug. He alleged that he has a serious back problem for which he is not receiving treatment. He complained that the Elavil and Vistaril that Dr. Galvan has prescribed have nothing to do with his back problems. He said his brother-in-law is a pharmacy manager and he believes that the medications he is receiving are not appropriate for treatment of his medical problems.
Despite plaintiff's conclusory statements to the contrary, the verified medical records, Record Doc. No. 28, which plaintiff reviewed with the court during his testimony, confirm the material portions of his testimony. They reflect that plaintiff was seen by doctors numerous times, x-rayed, tested in other ways, examined and provided with various medications for pain. The various tests conducted at Lallie Kemp hospital on June 25 and August 20, 2001 show normal gastrointestinal conditions,no acute abnormalities of the gastrointestinal tract or chest and no ulcerative lesions. The MRI of his cervical spine performed at Charity Hospital in New Orleans on June 5, 2001, mere days before his incarceration began, is normal.
Prior to the telephone conference, three motions to dismiss were filed by defendants Alan Crawford, Warden Marlin Peachey, Nurse Farol and Peter R. Galvan, M.D., and are pending before the court. Record Doc. Nos. 21, 23 and 25. Before the conference, plaintiff filed a motion for transfer to a state Department of Corrections of facility. Record Doc. No. 20. After the conference, plaintiff filed a motion to amend his complaint, Record Doc. No. 30, but the motion merely reiterated complaints about his medical treatment that Orwig had described in his Spears testimony. Both of plaintiff's motions are also pending before the court.
ANALYSIS
I. STANDARDS OF REVIEW
"A federal court may dismiss a claim in forma pauperis `if satisfied that the action is frivolous or malicious.'" Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (quoting former 28 U.S.C. § 1915(d), now incorporated in 28 U.S.C. § 1915(e), as amended). A complaint is frivolous "if it lacks an arguable basis in law or fact." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). The law "`accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual 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. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
The purpose of a Spears hearing is to dig beneath the conclusional allegations of a pro se complaint, to ascertain exactly what the prisoner alleges occurred and the legal basis of the claims. Spears, 766 F.2d at 180. "[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners." Davis, 157 F.3d at 1005. The information elicited at such an evidentiary hearing is in the nature of an amended complaint or a more definite statement under Fed.R.Civ.P. 12(e). Wilson v. Barrientos, 926 F.2d 480, 481 (5th Cir. 1991); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir. 1990). "Upon development of the actual nature of the complaint, it may also appear that no justiciable basis for a federal claim exists." Spears, 766 F.2d at 182.
The Court may make only limited credibility determinations in a Spears hearing, Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citingCay v. Estelle, 789 F.2d 318, 326-27 (5th Cir. 1986), overruled on other grounds by Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728 (1992)), and may consider and rely upon documents as additional evidence, as long as they are properly identified, authentic and reliable. "The Court should allow proper cross-examination and should require that the parties properly identify and authenticate documents. A defendant may not use medical records to refute a plaintiff's testimony at a Spears hearing."Id. (citing Wilson, 926 F.2d at 482-83; Williams v. Luna, 909 F.2d 121, 124 (5th Cir. 1990)).
After a Spears hearing, the complaint may be dismissed as legally frivolous if it lacks an arguable basis in law, Jackson v. Vannoy, 49 F.3d 175, 176-77 (5th Cir. 1995); Moore v. Mabus, 976 F.2d 268, 269 (5th Cir. 1992), or "as factually frivolous only if the facts alleged are `clearly baseless,' . . . [or] when the facts alleged rise to the level of the irrational or wholly incredible." Id. at 270.
"`A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.'" Davis, 157 F.3d at 1005 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). "When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal under Rule 12(b)(6) is appropriate; however, dismissal under the section 1915(d) standard is not." Moore, 976 F.2d at 269. A prisoner's in forma pauperis complaint which fails to state a claim may be dismissed sua sponte at any time under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
In this case, plaintiff's complaint may be dismissed under 28 U.S.C. § 1915(e) and 42 U.S.C. § 1997e(c)(1), either as frivolous because it lacks an arguable basis in law or under Rule 12(b)(6) in light of his testimony explaining the factual basis of his claims. Plaintiff's complaint, as amended by his testimony at the Spears hearing, fails to state a claim of violation of constitutional rights cognizable under Section 1983 under the broadest reading.
Pro se civil rights complaints must be broadly construed, Moore, 30 F.3d at 620, and I have broadly construed the complaint in this case.
II. MEDICAL CARE
It appears that Orwig was a pretrial detainee for part of the time and a convicted prisoner at all other times about which he complains. Before the Fifth Citcuit' s decision in Hare v. of Corinth, 74 F.3d 633 (5th Cir. 1996), it appeared that prison officials must provide pretrial detainees with reasonable medical care unless the failure to provide it was reasonably related to a legitimate government interest. Bell v. Wolfish, 441 U.S. 520, 539 (1979); Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987); Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992). The inquiry was "whether the denial of medical care . . . was objectively reasonable in light of the Fourteenth Amendment's guarantee of reasonable medical care and prohibition on punishment of pretrial detainees." Pfannstiel v. City of Marion, 918 F.2d 1178, 1186 (5th Cir. 1990), abrogated on other grounds as recognized in Martin v. Thomas, 973 F.2d 449, 455 (5th Cir. 1992).
In Hare, however, the Fifth Circuit held:
(1) that the State owes the same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm, during their confinement; and (2) that a state jail official's liability for episodic acts or omissions cannot attach unless the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee but responded with deliberate indifference to that risk.Hare, 74 F.3d at 650. The Fifth Circuit explained that for the Bell "reasonable relationship" test to be applicable, the pretrial detainee must be able to show that a prison official's act either "implement[s] a rule or restriction or otherwise demonstrate[s] the existence of an identifiable intended condition or practice" or that the "official's acts or omissions were sufficiently extended or pervasive, or otherwise typical of extended or pervasive misconduct by other officials, to prove an intended condition or practice." Id. at 645. If the pretrial detainee is unable to prove either, the incident will be considered to be an episodic act or omission and the deliberate indifference standard enunciated in Estelle v. Gamble, 429 U.S. 97, 104 (1976), will apply.Id.
In Estelle, the Supreme Court held that a convicted prisoner may succeed on a claim for damages under 42 U.S.C. § 1983 for inadequate medical care only if he demonstrates that there has been "deliberate indifference to serious medical needs" by prison officials or other state actors. Only deliberate indifference, "an unnecessary and wanton infliction of pain . . . or acts repugnant to the conscience of mankind," constitutes conduct proscribed by the Eighth Amendment. Id. at 105-06;accord Gregg v. Georgia, 428 U.S. 153, 182-83 (1976); Hare, 74 F.3d at 650. "Deliberate indifference" means that a prison official is liable "only if he knows that the inmates face a substantial risk of serious harm and [he] disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). The Farmer definition applies to Eighth Amendment medical claims. Reeves, 27 F.3d at 176.
An inmate must satisfy two requirements to demonstrate that a prison official has violated the Eighth Amendment. "First, the deprivation alleged must be, objectively, `sufficiently serious'; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834 (quotation omitted). Thus, plaintiff must show deliberate indifference to his "serious medical needs" to satisfy this prong. Wilson v. Seiter, 501 U.S. 294, 297 (1991); Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).
Further, the plaintiff must establish that the defendant possessed a culpable state of mind. Farmer, 511 U.S. at 838 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). A prison official cannot be held liable "unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. If the court finds that one of the components of the test is not met, it need not address the other component. Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
The Supreme Court has recently reaffirmed that "deliberate indifference" is a stringent standard of fault, requiting proof that a municipal actor disregarded a known or obvious consequence of his action. Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1391 (1997). . . . The "deliberate indifference" standard permits courts to separate omissions that "amount to an intentional choice" from those that are merely "unintentionally negligent oversight[s]."Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 551 (5th Cir. 1997) (citations omitted) (emphasis added). "`Subjective recklessness,' as used in the criminal law, is the appropriate test for deliberate indifference." Norton, 122 F.3d at 291.
In the instant case, plaintiffs pleadings as expanded by his testimony establish that nothing more than episodic acts or omissions as defined inHare are at issue in this case. Thus, the "deliberate indifference" standard applies and plaintiff must allege facts sufficient to establish that defendants knew he faced a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it. In this case, Orwig fails completely to allege such facts.
Orwig's testimony negates any inference that defendants acted with deliberate indifference to his serious medical needs. Initially, it cannot be concluded that the conditions he described, including gastrointestinal problems and back pain, presented serious medical needs that posed a substantial risk of harm during his incarceration. See Martin v. Tyson, 845 F.2d 1451, 1457-58 (7th Cir. 1988) (delay in treating tooth ache and ear infection not sufficiently serious); Griffin v. DeRobertis, 557 F. Supp. 302, 306 (N.D. Ill. 1983) (aches and sore throat not serious); Banks v. Mannoia, 890 F. Supp. 95, 99 (N.D.N.Y. 1995) ("`bowel problems'" and headaches not serious medical problems). Although the United States Court of Appeals for the Fifth Circuit has not defined "serious medical need," a majority of the other circuits have adopted the following definition. "A medical need is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citing Mahan v. Plmouth County House of Corrections, 64 F.3d 14, 18 (1st Cir. 1995); Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); Sheldon v. Pezley, 49 F.3d 1312, 1316 (8th Cir. 1995); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Hill v. Dekalb Reg'l Youth Detention Ctr., 40 F.3d 1176, 1186 (11th Cir. 1994)). These "involve life-threatening conditions or situations where it is apparent that delay would detrimentally exacerbate the medical problem." Hill, 40 F.3d at 1187.
Similarly, the Ninth Circuit regards a medical condition as "serious" when "the failure to treat a prisoner's condition could result in further significant injury or the `unnecessary and wanton infliction of pain,'"McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled in part on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997), and considers the following to be indications that a prisoner has a serious medical need: "The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Id. at 1059-60.
These definitions "contemplate a condition of urgency, in that if [treatment is] delayed or denied it may produce death, degeneration, or extreme pain." Hetzel v. Swartz, 31 F. Supp.2d 444, 448 (M.D. Pa. 1998) (citing Monmouth County, 834 F.2d at 347). "The `seriousness' of a detainee's medical needs may be determined by reference to the effect of the delay of treatment." McNally, 46 F. Supp.2d at 54.
Although Orwig's testimony expresses his own lay concern that his conditions are serious and even life-threatening, the verified medical records of his substantial and continuous treatment, which he confirmed, establish no such serious condition. The various tests concerning his stomach problems establish that he does not have ulcers. The MRI's of his cervical spine are normal. His condition is not a serious condition as that term is employed for purposes of constitutional analysis.
Even assuming, however, that plaintiff's medical condition was serious, he has alleged facts, confirmed by the medical records, that negate any inference of deliberate indifference by these defendants. Plaintiff's complaint, as amended by his testimony and confirmed by the medical records, shows that he has received frequent, extensive and constitutionally appropriate medical care while incarcerated in the St. Tammany Parish jail. Defendants have consistently responded to plaintiff's constant complaints. He has been examined by doctors on numerous occasions and taken to hospitals outside the jail for testing and evaluation. He was provided with a wide array of medications for pain and his alleged gastrointestinal problems. Although plaintiff has alleged delay in medical care between the times he has requested treatment and the times it was provided, and he has expressed dissatisfaction with the effectiveness and appropriateness of the particular treatment provided, none of his allegations rise to the level of deliberate indifference necessary to establish a constitutional violation cognizable in this court under Section 1983.
First, mere delay in receiving care is not in and of itself a constitutional violation. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990); Simons v. Clemens, 752 F.2d 1053, 1056 (5th Cir. 1985). Regardless of the length of delay, plaintiff at a minimum must show deliberate indifference to serious medical needs. Wilson, 501 U.S. at 298. The delay about which plaintiff complains did not cause "a life-long handicap or permanent loss" sufficient to constitute a serious medical need for constitutional purposes. See Hill v. Dekalb Reg'l Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994) (citing Monmouth County v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) ("Where the delay [in medical care] results in an inmate's suffering `a life-long handicap or permanent loss, the medical need is serious.'")); Wesson, 910 F.2d at 283-84 (minor delay in escorting injured prisoner to prison infirmary for treatment of swollen wrists with some bleeding cannot be construed as deliberate indifference to serious medical needs). No such permanent loss resulting from delay has been alleged in this case. On the contrary, the extensive testing reflected in the medical records shows nothing objectively wrong with him.
Second, while it is clear from plaintiff's allegations and testimony that he is not satisfied with the speed, appropriateness or effectiveness of his medical care, it is equally clear that the medical care provided was substantial, reasonable and constitutionally adequate. Certainly, no finding of deliberate indifference to his medical needs can be made based on this record. Plaintiff was seen by doctors numerous times, x-rayed, examined, tested repeatedly and in various ways and provided with medications in response to his complaints. Contentions like Orwig's that amount to a mere disagreement with the speed, quality or extent of medical treatment or even negligence do not give rise to a Section 1983 claim. "[A]lthough inadequate medical treatment may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not." Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (citation omitted) (active treatment of prisoner's serious medical condition, which ultimately resulted in death, does not Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) ("Where the delay [in medical care] results in an inmate's suffering `a life-long handicap or permanent loss, the medical need is serious.'")); Wesson, 910 F.2d at 283-84 (minor delay in escorting injured prisoner to prison infirmary for treatment of swollen wrists with some bleeding cannot be construed as deliberate indifference to serious medical needs). No such permanent loss resulting from delay has been alleged in this case. On the contrary, the extensive testing reflected in the medical records show nothing objectively wrong with him.
Second, while it is clear from plaintiff's allegations and testimony that he is not satisfied with the speed, appropriateness or effectiveness of his medical care, it is equally clear that the medical care provided was substantial, reasonable and constitutionally adequate. Certainly, no finding of deliberate indifference to his medical needs can be made based on this record. Plaintiff was seen by doctors numerous times, x-rayed, examined, tested repeatedly and in various ways and provided with medications in response to his complaints. Contentions like Orwig's that amount to a mere disagreement with the speed, quality or extent of medical treatment or even negligence do not give rise to a Section 1983 claim. "[A]lthough inadequate medical treatment may, at a certain point, rise to the level of a constitutional violation, malpractice or negligent care does not." Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (citation omitted) (active treatment of prisoner's serious medical condition, which ultimately resulted in death, does not constitute deliberate indifference, even if treatment was negligently administered); see Norton, 122 F.3d at 291-92; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Mendoza, 989 F.2d at 193 (prisoner's disagreement with the type or timing of medical services provided cannot support a Section 1983 claim); Wesson, 910 F.2d at 284 (allegations establishing provision of medical treatment found inconsistent with inference of deliberate indifference). Therefore, plaintiff's complaints in this case about his medical care are legally frivolous and fail to state a claim for relief under Section 1983. His baseless complaint must be dismissed.
III. PENDING MOTIONS
Defendants have filed motions to dismiss. Because I have recommended that plaintiff's complaint is legally frivolous and fails to state a claim upon which relief can be granted, it is unnecessary for the court to address the pending motions. Accordingly, I recommend that defendants' various motions to dismiss, Record Doc. Nos. 21, 23 and 25, be DISMISSED WITHOUT PREJUDICE as moot.
Orwig has filed a motion to amend his complaint. Record Doc. No. 30. Because the facts on which plaintiff bases his claims establish that any claims he might assert under Section 1983 are legally frivolous and fail to state a cognizable claim that his constitutional rights have been violated in any way, it would be futile to permit plaintiff to amend his complaint. Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993). Accordingly, I recommend that plaintiff's motion to amend be DENIED.
Finally, in his letter to the court dated January 10, 2002, Record Doc. No. 20, plaintiff requests the "courts (sic) assistance in having me shiped (sic) to a D.O.C. facility." A prisoner has no constitutional right of any kind springing from the Constitution itself or from any protected liberty or property interest arising from state law to be housed in any particular facility or to be transferred from one prison facility to another, even if life in one prison may be much more disagreeable than in another. Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Meachum v. Fano, 427 U.S. 215, 224-225 (1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Tighe v. Wall, 100 F.3d 41, 42 (5th Cir. 1996); Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995); Jackson v. Cain, 864 F.2d 1235, 1250 (5th Cir. 1989); Maddox v. Thomas, 671 F.2d 949, 950 (5th Cir. 1982). In addition, nothing in plaintiff's complaint adequately alleges a constitutional violation upon which injunctive relief of this sort might properly be based. Accordingly, it is recommended that plaintiff's motion for transfer to another prison facility be DENIED.
RECOMMENDATION
For all of the foregoing reasons, it is RECOMMENDED that plaintiff's complaint be DISMISSED WITH PREJUDICE as legally frivolous and/or for failure to state a claim under 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
IT IS FURTHER RECOMMENDED that the motions to dismiss filed by defendants Alan Crawford, Warden Marlin Peachey, Nurse Farol and Peter R. Galvan, M.D., be DISMISSED WITHOUT PREJUDICE AS MOOT.
IT IS FURTHER RECOMMENDED that plaintiff's motions to amend and for transfer to another prison facility be DENIED.
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).