Opinion
CIVIL ACTION NO. 3:00-CV-0412-P
May 31, 2001
MEMORANDUM OPINION ORDER
The Court now considers:
1. Plaintiffs Motion for Summary Judgment filed July 28, 2000, Defendant's Response to Plaintiffs Motion for Summary Judgment filed September 12, 2000;
2. Defendant's Motion for Summary Judgment filed September 12, 2000, Plaintiffs opposition to Defendant's Motion for Summary Judgment filed September 21, 2000, Defendant's Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment filed October 2, 2000;
3. Plaintiffs Motion for an Extension of Time for Filing Opposing to Defendant Flangin's Motion for Summary Judgment filed August 22, 2000;
4. Plaintiffs Motion Repliny Under Fed.R.Civ.P. 7(a) filed August 17, 2000;
5. Defendant's Objections to Summary Judgment Evidence Submitted by Plaintiff filed September 12, 2000.
Plaintiff is represented pro se. After reviewing the pleadings and motions, the Court hereby DENIES Plaintiffs Motion for Summary Judgment, DENIES Plaintiffs Motion for an Extension of Time, and GRANTS Defendant's Motion for Summary Judgment. Plaintiffs Motion Repliny is a pleading, not a motion; the Court has considered it, but no action need be taken in response to it.
I. BACKGROUND
Most of the facts are undisputed. Plaintiff was arrested and first seen by the medical staff at the Dallas County Jail on July 29, 1999 and was released on March 8, 2000. Dr. Kathryn Flangin serves as a Dallas County Health and Human Services employee assigned as physician for Inmate Medical Services at the Dallas County Jail, as she did during Mr. Thomas's incarceration. Mr. Thomas suffered from high blood pressure. Before incarceration, Plaintiff took a drug called Norvasc to treat this condition. Plaintiff claims that any drug other than Norvasc causes him to suffer from dizzy spells, swelling, headaches, and eye pain. Dr. Flangin treated Mr. Thomas' high blood pressure with a different medication, Calan, also known as Verapimil hydrochloride. Plaintiff was also given Hydrochlorothiazide (HCTZ) in conjunction with the Calan to treat his blood pressure, which can cause dizziness, light-headedness upon standing up, and stomach irritation. Plaintiff informed nurse Lajuana Wesley that the Verapimil was not helping him. He alleges that despite knowing about the side effects, Dr. Flangin refused to provide Mr. Thomas with Norvasc because Dallas County would not pay for the drug, nor was Mr. Thomas's family permitted to supply him with the drug. Plaintiff alleges many incidents evidencing Defendant's indifference, including when he was "rushed to medical" to treat his symptoms on August 6, 1999 and his many complaints to the medical staff of the medication's ineffectiveness. Plaintiff also claims a delay in receiving medicine after his incarceration, and on one day, Plaintiff did not receive his medication.
Def's App. at 7 (inmate medication records), 13 (Inmate Intake Form).
Def's App. at 1-3 (Affidavit of Kathryn Flangin). The appendices to Def's Motion for Summary Judgment and Response to Plaintiffs Motion for Summary Judgment are the same.
Def's App. at 1, 13.
Def's App. at 13.
Pl's Declaration in Support of Pl's Mot. for Summ. Jdgmt. at 4-9 of 29 pages.
Def's App. at 2, 7.
Def's App. at 2, 7.
Pl's App. at 11, art. to Pl's Mot Summ. Jdgmt. (medical records).
Pl's Decl. at 7.
Pl's App. at 9.
Pl's Exh. A at 12-17.
Plaintiff asserts he did not receive medication until August 18, 1999, twenty days after his arrest. Pl's Mot. Summ. Jdgmt. at 12-13 of 29. However, the medical records indicate he received Calan on August 6 or 7. Pl's App. A. at 9 of 19.
Def's App. at 33-35.
Both Verapimil/Calan and Norvasc can cause the side effects of which Plaintiff complains. Dr. Flangin or her expert Dr. Bowers maintain that Verapimil/Calan is a medically adequate alternative to Norvasc to treat Plaintiffs hypertension, that the minimal side effects never subjected Plaintiff to a substantial risk of serious harm through the use of Calan rather than Norvasc, and that the medical records do not support a finding that Plaintiff should have been prescribed Norvasc and not Calan.
Def's App. at 2, 36-37 (Aff. of Steven Bowers M.D.)
Def's App. at 2-3, 37.
Plaintiff's blood pressure was checked the day he was booked, and yielded a reading of 154/99. Considering that reading and Plaintiffs history of hypertension, Plaintiff was scheduled for three blood pressure checks in accordance with department policy. By the time of his release March 8, 2000, Plaintiff had been given blood pressure checks at least 15 times. Plaintiff claims to have filed over 12 medical requests and two inmate grievances with the Dallas County Jail.
Def's App. at 1, 13.
Def's App. at 1, 6 (Dallas County Health Dept. hypertension protocol), 13, 15, 17 (medical records).
Def's App. at 2, 16-21.
Pl's Decl. in Support of Pl's Mot. for Summ. Jdgmt. at 6.
Mr. Thomas appears to make a 42 U.S.C. § 1983 claim against Dr. Flangin for denial of medical treatment in violation of the Eighth Amendment and for violation of his Due Process rights, as well as a possible claim under the Texas Civil Practice and Remedies Code, V.T.C.A. § 104.001 and § 104.002 (1997).
II. SUMMARY JUDGMENT STANDARD
Summary Judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v, Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323.
Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc.; 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
Finally, the Court has no duty to search the record for triable issues. Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992). The Court need only rely on the portions of submitted documents to which the nonmoving party directs. Id.
III. DISCUSSION
Dr. Flangin filed her Original Answer on May 11, 2000, alleging qualified immunity from claims under § 1983 as a defense, and she realleges the defense in her Motion for Summary Judgment. The Court looks preliminarily to the question of whether Dr. Flangin is entitled to qualified immunity before judging the other arguments of the parties' summary judgment motions.
A. QUALIFIED IMMUNITY
Dr. Flangin, a prison doctor treating a prisoner, is a public official permitted to plead the defense of qualified immunity. Government officials who perform discretionary tasks are entitled to qualified immunity unless their action violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald., 457 U.S. 800, 818 (1982); Gutierrez v. City of San Antonio, 139 F.3d 441 (5th Cir. 1998). See also Schultea v. Wood, 27 F.3d 1112, 1115, 1431-32 (5th Cir. 1994) (public officials entitled to qualified immunity under § 1983 unless Plaintiff violated clearly established constitutional law and the official knew or reasonably should have known that his action violated the plaintiffs constitutional rights). "[Q]ualified immunity is designed to shield from civil liability all but the plainly incompetent or those who knowingly violate the law. . . ." Brady v. Fort Bend County, 58 F.3d 173, 173 (5th Cir. 1995) (internal quotes omitted). The plaintiff bears the burden of negating the defense of qualified immunity. Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994).
The Court employs a three-part test to determine if an official is entitled to qualified immunity: 1) the Court must "determine whether the plaintiff has alleged the deprivation of a constitutional right at all." Kipps v. Callier, 197 F.3d 765, 768 (5th Cir. 1999), quoting Wilson v. Layne, 119 S.Ct. 1692, 1697 (1999); 2) the Court must "determine whether that right was clearly established at the time of the alleged violation." Id.; and 3) the Court "must determine whether the record shows that the violation occurred, or at least gives rise to a genuine issue of material fact as to whether the defendant actually engaged in the conduct that violated the clearly-established right." Callier, 197 F.3d at 768, quoting Morris v. Dearborne, 181 F.3d 657, 666 (5th Cir. 1999). If the actions are found to be unconstitutional, the Court must determine whether the actions were objectively reasonable. 197 F.3d. at 768.
Plaintiff has alleged the deprivation of a constitutional right. It is well settled that an inmate's complaint of inadequate medical care amounts to a constitutional violation if the inmate "allege[s] acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). However, it is only deliberate indifference and an unnecessary and wanton infliction of pain or acts that are repugnant to the conscience that constitute conduct proscribed by the Eighth Amendment. Id. at 104-06. Liability occurs only if the official knows that the inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 847 (1994) (discussing Eighth Amendment right to humane conditions of confinement). See also Hare v. City of Corinth, 74 F.3d 633, 635, 647-48 (5th Cir. 1996) (en banc) (considering a jail official's episodic act or omission as to a pretrial detainee's medical care, and equating right of pretrial detainees with convicted prisoners to be secure in basic human needs).
When determining whether qualified immunity is available to the defendant, the actions of a reasonably competent official are assessed in the light of the legal rules that were clearly established at the time of the action. Anderson v. Creighton, 483 U.S. 635, 638 (1987). During Plaintiffs recent incarceration, the right to medical care from officials not deliberately indifferent was clearly established. See Hare v. City of Corinth, 135 F.3d 320, 327 (5th Cir. 1998).
"[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind"; negligence in medical diagnosis or treatment does not state an Eight Amendment claim of medical mistreatment. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). See also Farmer, 511 U.S. at 835 (finding that "Eight Amendment liability requires more than ordinary lack of due care for the prisoner's interests or safety") (internal quotes omitted); Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993) ("[N]egligent or mistaken medical treatment or judgment does not implicate the eighth amendment and does not provide the basis for a civil rights action"). Nor does disagreement with medical treatment state a claim for Eighth Amendment indifference to medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (affirming the dismissal of suit as frivolous where prisoner claimed medical personnel should have tried different methods of diagnosis and treatment).
This Court considers the correct standard for evaluating qualified immunity. The Fifth Circuit in Hare v. City of Corinth considered police officers' liability for a pre-trial detainee's suicide. 135 F.3d 320 (5th Cir. 1998). The court distinguished the legal standard for the qualified immunity defense, objective reasonableness, from the subjective standard applied to the merits of the case for liability against the defendant, deliberate indifference to the prisoner's serious medical needs. 135 F.3d at 326-28. The court stated, "[o]therwise, a successful claim of qualified immunity in this context would require defendants to demonstrate that they prevail on the merits, thus rendering qualified immunity an empty doctrine." Id. at 328. Under the minimum standard not to be deliberately indifferent, the actions of the defendant are examined to determine whether as a matter of law they were objectively unreasonable. Id. at 328. The Court will assume arguendo that Defendant violated Plaintiffs constitutional rights so as to consider the viability of the qualified immunity defense before reaching the merits of Plaintiff's constitutional claim.
In light of the established law that officials may not act with deliberate indifference to a prisoner's serious medical needs, and viewing all facts in the light most favorable to Plaintiff, Plaintiff has failed to demonstrate as a matter of law that Defendant's actions were objectively unreasonable. Therefore, Defendant is entitled to qualified immunity from suit. There is no evidence that action or inaction by Dr. Flangin caused Plaintiffs discomfort or caused his condition to worsen. The undisputed facts show that Plaintiffs blood pressure was monitored on many occasions to ascertain Defendant's medical needs. Plaintiff was given blood pressure medication on a regular basis. The undisputed medical testimony indicates that the drug Plaintiff was given functions similarly to the drug he desired, and produces similar side effects. Plaintiffs side effects were treated with additional medication. Plaintiffs diagnosis of his own condition is not enough to controvert the medical testimony indicating that his treatment was adequate. See Walker v. Shanksy, 28 F.3d 666, 672 (7th Cir. 1994). The one occasion during which Plaintiff did not promptly receive his medication shows that an oversight occurred, not a deliberate attempt to ignore Plaintiffs medical needs, even assuming the facts alleged by Plaintiff. There is no showing of a substantial risk of serious harm from that episode, nor is there evidence that Dr. Flangin was responsible for Plaintiff not receiving his medication, as opposed to a nurse or medical staff member; the incident is not enough to establish objective unreasonableness of care.
Plaintiff states that his blood pressure became normal after he was transferred to Dawson State Jail/ Texas Department of Corrections and was given "another formula" by a Dr. Mills. However, Plaintiff provides no medical records of blood pressure checks to support his claim, nor does he mention what drug he was given. Even if this evidence were substantiated, it would not be sufficient to show that Defendant acted objectively unreasonably in her treatment of Mr. Thomas.
Pl's Mot. Summ. Jdgmt. at 17-18.
Plaintiff alleges a pattern of denial of care at the jail. The only support for this assertion is the affidavit of Darryl Lynn White, an inmate in Dawson State Jail who claims to have witnessed Plaintiff suffering in the Dallas County Jail. Lynn claims "there were several inmates that had serious medical needs and the medical staff knew of and disregarded their health." Id. This statement is bereft of supporting facts and is largely conclusory as to whether a serious medical need existed for other inmates. The statement is not sufficiently specific to establish a pattern of indifference by Defendant that would establish her unreasonableness, so the Court will not consider it. See Richardson v. Oldham, 12 F.3d 1373, 1380 (5th Cir. 1994) (upholding the striking of affidavits that did not state facts with the specificity required by Fed.R.Civ.P. 56(e)). In addition, White also overheard Nurse Wesley tell Thomas that Dr. Flangin is just waiting for him to leave for State Jail. This statement is hearsay, and therefore should not be considered by this Court, as no exception to the hearsay rule is proffered. See Martin v. John W. Stone Distrib. Inc., 969 F.2d 1559, 1561 (5th Cir. 1992) (citing Fed.R.Civ.P. 56(e)'s requirement that the affiant state admissible facts based on personal knowledge). Regardless, this statement is not sufficiently probative to overcome Plaintiffs burden of objective unreasonableness.
Because Defendant is entitled to qualified immunity as a matter of law, the Court need not rule on the merits of Plaintiff's or Defendant's claims as to whether Dr. Flangin was deliberately indifferent to serious medical needs of Mr. Thomas. Qualified immunity protects Defendant from claims under § 1983, both Eighth Amendment and Due Process. The Due Process claim is further disallowed because the Eight Amendment is the proper protection for a prisoner to invoke rather than nebulous concepts of Due Process. See Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990) (disallowing Due Process claim for prisoner invoking Eighth Amendment). See also Graham v. Connor, 490 U.S. 386, 395 n. 10 (1989) (holding Fourth Amendment is the source of protection for excessive force claim rather than Due Process, and noting that Due Process protects pretrial detainees from excessive force but is at best redundant with Eight Amendment protection after conviction).
Any claim that Plaintiff may raise under the Texas Civil Practice and Remedies Code, V.T.C.A. § 104.001 and § 104.002 cannot stand. These provisions concern indemnification of state employees, and do not create a cause of action nor create a waiver of immunity. See Montana v. Patterson, 894 S.W.2d 812, 815 (Tex.App. 1994).
Lastly, Plaintiffs Motion for an Extension of Time to respond to Defendant's motion for summary judgment, filed before Defendant filed her Motion for Summary Judgment, is DENIED. Plaintiffs justification for the delay was to obtain counsel, yet Plaintiff as of the date of this Order has not informed the Court that he has obtained counsel. The Court has previously denied Plaintiffs request for appointment of counsel, and Plaintiff was capable of filing his own Motion for Summary Judgment without assistance. Plaintiff responded to Defendants' Motion for Summary Judgment.
IV. CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED; Plaintiffs Motion for Summary Judgment is DENIED; Plaintiffs Mot. for an Extension of Time is DENIED.
SO ORDERED.