Opinion
2:99-CV-0348
July 29, 2002
REPORT AND RECOMMENDATION
Plaintiff CHRISTOPHER KARONE TURNER AKA CHRISTOPHER ELIJAH EL-AMIN DAMU AKA C. K. TURNER, acting pro se, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-named defendants. Plaintiff filed the instant suit while a prisoner confined in the custody of the Texas Department of Criminal Justice, Institutional Division and has paid the filing fee. Plaintiff is not proceeding in forma pauperis.
In response to the August 3, 2001 dismissal of this cause for failure to pay the filing fee, plaintiff paid the filing fee on August 6th and moved that the case be reopened. The Court granted plaintiff's motion and reopened the instant cause on August 17, 2001.
Plaintiff filed an Amended Complaint on November 1, 2001, and an evidentiary hearing was conducted that same day to hear plaintiffs statement of his claims. By Order Memorializing Order Issued from the Bench, filed of even date with the hearing, the Court gave plaintiff fourteen days in which to file a copy of the TDCJ policy he displayed during the hearing and referenced in argument to the Court, as well as any other documentation, in order to support his position that the use of leg restraints during the March 26, 1999, use of force violated TDCJ policy. Plaintiff responded on November 9, 2001, and, on November 13, 2001, filed a pleading objecting to the Order Memorializing Order Issued from the Bench.
By his November 1, 2001, Amended Complaint, plaintiff complains of a refusal to follow use of force decontamination procedures by defendants BOLAND, KARCHER, TINSLEY, and HALLBERG and of the failure of defendants DUFFY and RODEEN to take corrective or disciplinary action upon receipt of plaintiffs grievances or after review of the use of force tapes. Plaintiff claims the defendants thereby violated his Eighth and Fourteenth Amendment rights.
Specifically, plaintiff alleges that, on March 26, 1999, after a chemical use of force, defendants BOLAND and KARCHER had him placed in a shower stall, refusing his requests to remove his hand and leg restraints and his contaminated clothing. Plaintiff states that moments after KARCHER ordered the water turned on, plaintiff slipped and fell, injuring his head and right shoulder. Plaintiff states he was taken to the infirmary where the nurse flushed his eyes with 1% sodium bicarbonate and documented the bump on plaintiffs head, making an appointment for him to see a doctor.
Plaintiff further alleges that, following an April 5, 1999, chemical use of force, defendant KARCHER used hot water instead of cold, again refused plaintiffs requests for removal of his restraints and contaminated clothes, and denied plaintiff a bar of soap during his shower. Plaintiff alleges that he was then taken to the infirmary where defendant HALLBERG refused to flush his eyes with a 1% sodium bicarbonate solution and told him to rinse his eyes with water from the sink after he got back to his cell. Plaintiff alleges that, on May 20, 1999, defendants TINSLEY and KARCHER performed a chemical use of force and then refused plaintiffs requests for removal of his restraints and contaminated clothes and refused him a bar of soap during his shower. Plaintiff states HALLBERG repeated her conduct of April 5, 1999. Plaintiff also alleges that, on May 26, 1999, defendants TINSLEY, KARCHER, and HALLBERG repeated their conduct of May 20, 1999.
Plaintiff alleges defendants DUFFY and RODEEN investigated plaintiff's grievances and failed to take corrective action and, further, RODEEN reviewed the use of force tapes and took no disciplinary action against defendants BOLAND, KARCHER, and TINSLEY.
Plaintiff states he suffered the March 26, 1999, head injury and headaches, migraines, dizziness, blackouts, excessive stress, distress, hallucinations, "depression and/or attempted suicide."
Plaintiff requests declaratory and injunctive relief, as well as compensatory and punitive damages.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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. 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 plaintiffs pleadings and has viewed the facts alleged by plaintiff in his amended complaint, as well as his hearing testimony and his post-hearing response to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
FURTHER FACTUAL DEVELOPMENT
At the November 1, 2001, Spears hearing, plaintiff testified under oath that, on March 26, 1999, he "jacked the bean slot" and refused KARCHER's order to close it. Plaintiff said that, following administration of the chemical spray, he was taken to the rec yard for fresh air, then to the showers, and lastly, to the infirmary for examination by the medical staff. He asserted that he was denied decontamination which would have complied with the procedures set forth in the TDCJ regulations and that he was forced into the showers while still in iron restraints. Plaintiff stated he was hurt mentally and emotionally and was hurt by burns from the chemical spray. When the Court inquired what plaintiff meant by "burns," plaintiff clarified that he meant only that he suffered a burning sensation from the pepper spray. Plaintiff also argued the force utilized on him was excessive because he was in restraints when placed in the shower and that the use of restraints converted the decontamination into a forced decontamination in violation of TDCJ-ID rules and regulations.
The Court understands "jacking the bean slot" to mean that the inmate places his hand in an opening in the cell door designed to allow delivery of food trays, preventing the closing of that opening.
Plaintiff further testified that, with respect to the April 5th, May 20th, and May 25th incidents, he suffered no further physical injuries, only emotional and mental injuries.
Assistant Warden Michael Starkey testified under oath that an inmate housed in the administrative segregation area could self-decontaminate in his cell without restraints or be decontaminated in the shower at the end of the row. He stated the policy is to remove hand restraints in the shower and that, unless there had been a forced cell move or guards had to go into plaintiff's cell to get him, there should not have been leg restraints on plaintiff.
Regional Grievance Director Chip Satterwhite testified under oath that plaintiff had a history of twenty-three staff assaults, making the use of leg restraints appropriate, especially in light of the fact that plaintiff was first escorted outside to the rec area for fresh air.
Assistant Warden Starkey then stated he had not known of plaintiff's history of staff assaults and agreed that this factor would make a difference regarding the use of leg restraints.
Plaintiff argued it was categorically a violation of TDCJ policy to use leg restraints on him during decontamination, and the Court gave plaintiff a deadline by which to present a copy of the policy to which he was referring. Plaintiff filed his response on November 9, 2001, arguing defendants are not entitled to qualified immunity and attaching selected portions of the TDCJ-ID Use of Force Plan.
Review of the portions of the Use of Force Plan (UOF Plan) submitted by plaintiff shows it provides that the use of chemical agents is considered a major use of force and, further, that the application of restrains in order to restore or preserve order converts a minor use of force into a major use of force, unless such restraints are routinely required. The UOF Plan also provides that "[f]orce will not be utilized to decontaminate an offender" and that a physical examination of the inmate must be conducted by medical personnel whenever there is a use of force. The UOF Plan provides for decontamination by moving the person to fresh air, flushing the contaminated body area with water, removing contact lenses and clothing, and showering. Another excerpt from the UOF Plan provides as follows:
Plaintiff's Exhibit 2 to his November 9, 2001, response at Use of Force Plan at I.B.1. and 2.
Plaintiff's Exhibit 4 to his November 9, 2001, response at Use of Force Plan at subsection f.
Plaintiff's Exhibit 8 to his November 9, 2001, response at Use of Force Plan at subparagraph 8.
severe (1) irrigate eyes with water, (2) can use 1% solution of sodium bicarbonate. Fresh air will relieve tightness of chest. If person has panicked: (1) assure them they will recover, (2) get them to remain quiet, (3) remove clothes, (4) shower.
Plaintiff's Exhibit 6 to his November 9, 2001, response at Use of Force Plan at top of page.
Plaintiff did not provide the pages preceding this excerpt to allow the Court to ascertain the context of this paragraph fragment.
THE LAW AND ANALYSIS
Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under Title 42, United States Codes section 1983. Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 291-93, 50 L.Ed.2d 251 (1976). Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). However, not every claim of inadequate or improper medical treatment is a violation of the Constitution, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); nor does a disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). By his complaint that defendant HALLBERG should have rinsed his eyes with a 1% sodium bicarbonate solution instead of instructing plaintiff to rinse his eyes with water, plaintiff merely alleges HALLBERG should have utilized an alternative method of treatment; however, merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). Thus, it is clear plaintiff has failed to state a claim against defendant HALLBERG on which relief can be granted.
Plaintiff's complaint against defendants BOLAND, KARCHER, and TINSLEY concerning the failure to provide soap and failure to provide water that was cold instead of hot, as well as the failure to remove his clothing, appears to be a claim of deliberate indifference to a serious medical need. 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). Nevertheless, plaintiff has made no allegation indicating defendants had knowledge these omissions created a substantial risk of serious harm to plaintiffs health and, in fact, the only harm plaintiff actually suffered was a burning sensation created by the chemical spray. Plaintiffs claim is clearly based on the fact that TDCJ guidelines were not followed in all respects; however, in the wake of Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), plaintiff has no "created liberty interest of the regulations of Texas Department of Criminal Justice — Institutional Division." The failure of an officer to follow agency procedural regulations or even the relevant state law is not, without more, a constitutional violation, because the relevant constitutional minima may nevertheless have been satisfied. See, e.g.,Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's allegations in this respect do not show that constitutional minima have not been satisfied, and his claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff has also claimed he was harmed during the first use of force, when he slipped and fell in the shower, injuring his head and shoulder. Plaintiff contends placing him in the shower without removing his restraints constituted an excessive use of force and references TDCJ regulations stating that the use of restraints to restore or preserve order converts a minor use of force to a major use of force, as well as a regulation that force shall not be used to decontaminate an offender. Plaintiff has alleged no fact indicating defendants BOLAND and KARCHER did this to cause plaintiff harm, instead of out of a genuine concern for the maintenance of security. Further, in light of plaintiffs extensive background of staff assault and the testimony of prison officials indicating that factor could justify such restraints even during decontamination, plaintiff has not alleged facts showing that the use of restraints constituted deliberate indifference to a substantial risk of serious harm or that BOLAND and KARCHER are not shielded by qualified immunity. Consequently, by his allegations against BOLAND and KARCHER concerning the March 25, 1999, incident, plaintiff has failed to state a claim on which relief can be granted.
Lastly, plaintiff claims defendants RODEEN and DUFFY have violated his constitutional rights by failing to take corrective or disciplinary action after investigating plaintiff's grievances and viewing the use of force tapes. The narrowing of prisoner due process protection announced in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), leaves plaintiff without a federally-protected right to have his grievances investigated and resolved. Any right of that nature is grounded in state law or regulation and the mere failure of an official to follow state law or regulation, without more, does not violate constitutional minima. See, e.g., Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990); Ramirez v. Ahn, 843 F.2d 864, 867 (5th Cir.), cert. denied, 489 U.S. 1085, 109 S.Ct. 1545, 103 L.Ed.2d 849 (1989); Baker v. McCollan, 433 U.S. 137, 146-47, 99 S.Ct. 2689, 2695-2696, 61 L.Ed.2d 433 (1979). Plaintiff's claims against defendants DUFFY and RODEEN lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
For the reasons set forth above, pursuant to 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 claims filed pursuant to Title 42, United States Code, section 1983, by plaintiff CHRISTOPHER KARONE TURNER AKA CHRISTOPHER ELIJAH EL-AMIN DAMU AKA C. K. TURNER be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved 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. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).