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finding that plaintiff who alleged that he suffered "a skin infection resulting in pain, discomfort, sores, disfigurement of his face and neck, scarring, and low self-esteem" as a result of PFB failed to state a claim of deliberate indifference to his serious medical need
Summary of this case from Latham v. JohnsonOpinion
2:04-CV-0180.
September 6, 2005
REPORT AND RECOMMENDATION
Plaintiff JIMMIE SMALL, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 and has been granted permission to proceed in forma pauperis.
Plaintiff alleges that, on August 2, 2004, about a week after receiving a clipper shave from the unit barber, he developed a skin infection. Plaintiff claims he has been treated with Benzoyl Peroxide, Trifamicinlone and Sulfamethoxazol Trimeth but none of the medications has prevented his infection from worsening. He says he now has Pseudofolliculitis Barbae and has permanent scars on both sides of his face.
Specifically, plaintiff alleges defendant COLE failed to insure the training officer's compliance with the applicable rules; defendant DAMRON failed to properly train and supervise the inmate barbers; defendant SUTTON failure to insure proper and adequate medical treatment.
By his September 9, 2004 Amended Complaint, plaintiff adds defendants DR. RONALD LACY and LEONARD COWDEN, P.A. Plaintiff alleges both LACY and COWDEN based their treatments of his skin infection on visual observation and neither ever cultured it to precisely identify it or prescribe the proper medication. Plaintiff also alleges defendants LACY and COWDEN each failed to refer plaintiff to a dermatologist specializing in skin infections, failed to lift plaintiff's facial hairs out of his skin, and failed to use reasonable care. Plaintiff further alleges defendant LACY failed to make follow-up appointments, and failed to take pictures of plaintiff's skin infection. Plaintiff accuses both LACY and COWDEN of deliberate indifference, negligence, and medical malpractice.
By his December 3, 2004 "Amended Pleading to the Original Pleading", which the Court construes to be a further elaboration of plaintiff's original complaint, plaintiff alleges defendant DAMRON failed to adequately train and supervise inmate barbers, failed to provide proper sanitary equipment and supplies, failed to investigate or remedy the unsanitary conditions, and failed to warn offenders of the danger of unsanitized clipper blades and equipment.
Plaintiff alleges defendant SUTTON is the medical administrator at the Neal Unit and is responsible for ensuring the provision of medical care and scheduling medical appointments outside the prison. Plaintiff says he sent various I-60s to defendant SUTTON but SUTTON failed and refused to act on his complaints of inadequate medical care.
By his August 8, 2005 supplementation of his complaint, plaintiff alleges defendants WILKS, JUARES, and LAYTON have been deliberately indifferent to his serious medical need by ignoring the medical pass presented by plaintiff and ordering him to clipper shave his face so that he was clean-shaven.
Plaintiff requests "cosmetic medical attention," an examination by a dermatologist, compensatory damages of $125,000.00 jointly against defendants LACY, COWDEN, SUTTON, COLE, and DAMRON and $50,000.00 in punitive damages from each defendant. Plaintiff then goes on to request $50,000.00 from each defendant for pain and suffering, "injunctive relief" of $50,000.00 from each defendant, and $50,000.00 from each defendant for mental anguish. Plaintiff further requests that all the inmate barbers be properly trained, certified barbers approved by the State Board of Barber examiners, that all inmate barbers be properly monitored, that they stop using the Neal Unit mop-room for a barber shop, stop cutting hair in the Neal Unit dayroom, be screened for communicable diseases, be provided proper equipment, and be required to clean the floor thoroughly after each day's use.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
"[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Such indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are "serious." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992).
To state a claim of deliberate indifference, plaintiff must allege "a prison official knew of and disregarded `an excessive risk to inmate health or safety.'" Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (citing Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). "For an official to act with deliberate indifference, `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. (citing Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir. 1998) (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970).
In his March 2, 2005 response to the Court's Questionnaire, plaintiff was required to state each and every fact to show that his pseudofolliculitis barbae constituted a serious risk to his health or safety. Plaintiff responded, in relevant part, that he had suffered a facial injury, i.e., a skin infection resulting in pain, discomfort, sores, disfigurement of his face and neck, scarring, and low self-esteem. Plaintiff's allegations demonstrate that, even if he was required by defendants WILKS and JUARES to be clean-shaven in violation of a valid medical pass, the violation did not rise to the level of cruel and unusual punishment forbidden by the Eighth Amendment. Shabazz v. Barnauskas, 790 F.2d 1536, 1538 (11th Cir. 1986) (overruled on an unrelated point); accord, Cleveland v. Thaler, 64 Fed.Appx. 417, unpublished, 2003 WL 1524643, March 17, 2003 (5th Cir. 2003) (citing Shabazz with approval). Consequently, plaintiff's claims of deliberate indifference to his serious medical need lack an arguable basis in law and are frivolous.
Plaintiff claims that, after his March 16, 2005 transfer to the Roach unit, he was re-diagnosed and given another clipper shave pass with instructions that only his upper lip had to be clean shaven. Plaintiff says that he showed the pass to defendants WILKS and JUARES, explaining TDCJ policy on such matters, and was ordered to shave his entire beard, causing him to shave over the pus filled bumps, sores, keloids, and inflammation, pseudofolliculitis and staphylococcus on his face. Plaintiff claims these guards interfered with his prescribed medical treatment by requiring him to be clean-shaven.
Plaintiff has presented no factual allegation to show any basis for a claim of any sort against defendant LAYTON and has, therefore, failed to state a claim against this defendant on which relief can be granted.
Plaintiff challenges the decision of defendants LACEY and COWDEN to continue treating plaintiff's skin infection with Benzoyl Peroxide, Trifamicinlone, and Sulfamethoxazol Trimeth and monitoring plaintiff's progress rather than referring him to a specialist. Plaintiff's allegations against defendants LACY and COWDEN show only a difference of opinion as to the proper course of treatment; however, a disagreement with a doctor over the method and result of medical treatment does not require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that LACY and COWDEN should have undertaken additional diagnostic measures such as a culture of the infection does not elevate plaintiff's claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). The plaintiff has failed to allege any fact supporting deliberate indifference to his serious medical need by these defendants. Instead, plaintiff has alleged mere negligence or medical malpractice, if that; however, "negligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Plaintiff has failed to state a claim on which relief can be granted.
Plaintiff's allegation is that defendant Dr. LACY examined him on or about August 9, 2003 and diagnosed inflammatory skin infection. He says LACY saw plaintiff "on numerous occasions up until 9/23/03," at which time plaintiff informed "medical staff" he was dissatisfied with the cream provided as medical treatment. Plaintiff requested evaluation by a dermatologist on March 28, 2004 and was denied by Dr. LACY.
On September 23, 2003, plaintiff saw defendant P.A. COWDEN who also based his diagnosis of inflammatory skin infection on a visual examination. Plaintiff was further examined by P.A. COWDEN on July 23, 2003, October 29, 2003, and January 15, 2004. He says his repeated requests for a referral to a dermatologist were denied. Further, plaintiff saw P.A. COWDEN on March 31, 2004 and on April 6, 2004, but, despite attempting to do so, COWDEN could not lift plaintiff's hair out of his skin and only pulled two hairs.
Plaintiff's claim against defendant COLE is based on COLE's supervisory position and plaintiff's argument that he is responsible for protecting prisoners from unsafe conditions but failed to remedy the conditions of the barber shop. Plaintiff argues defendant COLE should have known the deficiencies of the barber shop or that these deficiencies were obvious. Plaintiff's claim against defendant SUTTON, the Unit Health Administrator, is that he sent her several I-60s but she did not satisfactorily resolve his complaints concerning medical care and the barber shop.
The acts of subordinates trigger no individual section 1983 liability for supervisory officers. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th Cir. 1999). A supervisory official may be held liable only when he or she is either personally involved in the acts causing the deprivation of a person's constitutional rights, or there is a sufficient causal connection between the official's act and the constitutional violation sought to be redressed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) ( per curiam). Plaintiff has alleged no fact demonstrating personal involvement by defendant COLE or defendant SUTTON and has alleged no fact showing any causal connection between any act or omission by either of them and the alleged constitutional violation. Consequently, plaintiff's allegations against COLE and SUTTON fail to state a claim on which relief can be granted.
Lastly, plaintiff claims defendant DAMRON has not properly trained or supervised the inmate barbers at the Neal Unit and has not provided them with the necessary supplies to ensure proper sanitation. When asked to state facts to support these claims, plaintiff stated, on his March 2, 2005, Questionnaire response, that he has seen various violations of prison policies relating to barber shops; however, he has stated no factual allegation to support a claim of any specific failure by DAMRON to train or supervise. Further, for an official to act with deliberate indifference, he "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." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Plaintiff has not alleged facts which would show defendant DAMRON knew a substantial risk of serious harm existed and drew that inference, but ignored it. At most, plaintiff's facts state a claim of negligence against defendant DAMRON, with recovery based upon a theory of respondeat superior, which is not sufficient to support a cause of action under section 1983. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). Thus, plaintiff has failed to state a claim of deliberate indifference by defendant DAMRON on which relief can be granted.
CONCLUSION
For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff JIMMIE SMALL be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
IT IS SO RECOMMENDED.