Opinion
7:00-CV-255-R.
October 16, 2001.
ORDER OF DISMISSAL
This is an action fled pursuant to 42 U.S.C. § 1983 by an inmate who, at the time of filing, was confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Plaintiff, Freddie M. Rogers, claims that Defendants denied him proper medical care and denied him access to the courts. See Complaint. He seeks injunctive relief and monetary damages. On July 24, 2001, questions were issued to Plaintiff, his answers to which were filed on September 24, 2001.
Rogers has named twenty defendants from whom he seeks relief for denying him medical care for the treatment of diabetes, aging, chronic arthritis, an infected penis, a paralyzed left hand, possible Alzheimer's disease, blurred vision, memory loss, boils, high blood pressure, reduced stamina and strength, limited standing, limited mobility, clothing and gripping difficulties, lifting limitations, kneeling and stooping difficulties, limited sitting, a bad left knee, a bad left foot, a bad back and a bad neck. Plaintiff's Answer to the Court's Question No. 1. Additionally, Plaintiff claims to have been denied medical care for "Hypretention." Id.
In order to state a colorable claim for the denial of medical care under the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). "Deliberate indifference" under the Eighth Amendment occurs only where a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, it is well established that negligent or erroneous medical treatment or judgment does not provide a basis for a § 1983 claim. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). As long as jail medical personnel exercise professional medical judgment, their behavior will not violate a prisoner's constitutional rights. See Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S.Ct. 2452, 2461-62 (1982). A disagreement over the appropriate medical treatment constitutes, at most, a possible claim of medical malpractice appropriately addressed under state law. E.g., Estelle v. Gamble, 429 U.S. at 107-08, 97 S.Ct. at 293; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
In the case at bar, Plaintiff was given the opportunity to expound on the factual allegations of his complaint byway of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). A review of Plaintiff's answers reflects the following:
Plaintiff sent numerous letters and/or I-60 prisoner complaint forms to various Defendants from whom he seeks redress in this action. For each of the following Defendants, Plaintiff claims that he or she had some supervisory authority over the Allred Unit or its medical department and failed to take action based upon his letters and complaints: Harry Edwards, William E. Gonzales, Lannette Linthicum, Michael Kelly and Dr. Revell. Rogers claims that, because he sent letters of complaint, each of these Defendants were aware of his medical condition and failed to take action to see that their subordinates provided the care he needed. See Plaintiff's Answers to the Court's Questions No. 4-9, 22-24, 37-39 58-60. Unfortunately, Plaintiff cannot recover under § 1983 on a theory of respondeat superior. These Defendants cannot be held responsible for the alleged acts or omissions of his subordinates under § 1983. Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018 (1978); Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
To state a valid claim, a civil rights plaintiff must establish a causal connection between the acts or omissions of the defendant and the resulting constitutional deprivation. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981). Rogers has alleged no facts to show either active participation by these Defendants in the actions causing the alleged deprivation of his constitutional rights or affirmative adoption by these defendants of policies which were wrongful or illegal and which caused the constitutional deprivation. See Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir. 1980) (requiring a § 1983 plaintiff to "establish a causal connection between an act of the supervisory official and the alleged constitutional violation."). Instead, Plaintiff seeks to establish liability by simply claiming that he mailed letters and complaints. Careful review of Plaintiff's answers to the Court's questions reflects that he presents nothing more than conclusory allegations regarding the involvement of these five Defendants. He has failed to articulate facts which, if taken as true, would demonstrate that any of these Defendants were deliberately indifferent to his need for medical care. See Plaintiff's Answers to the Court's Questions No. 6, 9, 24, 39 60. Plaintiff has failed to allege that any of these Defendants read or even received his letters. He has failed to show that any of these Defendants had subjective knowledge of a substantial risk to his health or safety. A claim that letters of complaint were mailed to a person in a supervisory position, without more, is insufficient to establish liability on the part of that individual for a deprivation allegedly caused by a subordinate. See Risley v. Hawk, 918 F. Supp. 18,24 (D.C. 1996), aff'd, 108 F.3d 1396 (U.S.App.D.C. 1997); Green v. DeBruyn, 1996 WL 476691 *6 (N.D. Ind. 1996). Certainly, inmates are not be permitted to establish § 1983 liability against prison supervisory personnel by mailing letters of complaint to those individuals, thereby, circumventing the established prison grievance process. To hold otherwise would render the prison grievance process meaningless to inmates except as a procedural prerequisite to filing suit in federal court against every official to whom they sent a letter of complaint.
To the extent, if any, that Plaintiff's claims against these five Defendants are grounded in negligence, the claims are without merit. Allegations of negligence do not present a cognizable basis for relief under the Civil Rights Act. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986) (holding that negligence is not actionable under § 1983); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986) (same). Therefore, Rogers cannot prevail on his claims against Harry Edwards, William E. Gonzales, Lannette Linthicum, Michael Kelly or Dr. Revell.
Next, Plaintiff seeks to hold seven Defendants liable because, he claims, they were in a position fully investigate his complaints and failed to do so. Plaintiff claims that he sent letters detailing his complaints of inadequate medical care to George Crippen, Guy Smith, Allen Hightower, John McAuliffe, Ruth Yarut, Sandra Gaven and Rachell McKinney. Plaintiff's Answers to the Court's Questions No. 16, 19, 25, 28, 43, 49 61. Again, Plaintiff seeks to establish § 1983 liability on the part of individual Defendants by simply claiming that he mailed letters to them. Rogers has failed to set forth facts that would show either active participation by these Defendants in the actions causing the alleged constitutional deprivation or affirmative adoption by these defendants of policies which were wrongful or illegal and which caused the deprivation. See Wanger, 621 F.2d at 679. A review of Plaintiff's answers to the Court's questions reveals nothing more than conclusory allegations regarding the alleged deliberate indifference of these seven Defendants. Rogers has failed to articulate facts which, if taken as true, would demonstrate that any of these Defendants were deliberately indifferent to his need for medical care. See Plaintiff's Answers to the Court's Questions No. 18, 21, 27, 30, 45, 51 63. His allegation that each of these Defendants failed to conduct a proper or adequate investigation constitutes shear speculation and, as such, is insufficient to maintain an action against these Defendants. A claim that letters of complaint were mailed to a person in a position to investigate, without more, is insufficient to establish liability on the part of that individual for a deprivation allegedly caused by someone else.
In his answers to the Court's questions, Plaintiff seeks voluntary dismissal of his claims against Defendants Kevin Foy, Wayne Scott, S.O. Woods, Dr. Story and Angela Milbern. Plaintiff's Answers to the Court's Questions No. 31, 34, 40, 52 66. Liberally construed as a motion to dismiss these Defendants, Plaintiff's request is granted and these five Defendants are hereby dismissed as parties to this action. The Court notes that Angela Milbern was the only Defendant from whom Plaintiff's sought relief on his claim of denial of access to the Courts. This claim has, therefore, been abandoned by Plaintiff and is hereby dismissed.
According to Plaintiff, the four remaining Defendants, Alexander Kalmanov, Dr. Puig, Dr. Womble and John Wilson, were actually involved in providing medical care to Plaintiff at the Allred Unit. As previously noted, Plaintiff was given the opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiff's complaint). However, he failed to allege any facts which, if taken as true, would indicate that he was denied medical care by any of these four Defendants. See Plaintiff's Answers to the Court's Questions No. 12, 15, 48 57. Roger claims that Drs. Kalmanov and Puig were deliberately indifferent to his health and safety by refusing to provide him with proper and adequate medical care because they did not give him a "proper" examination, they did not provide him with medication and they failed to refer him to a specialist for his infected penis. See Plaintiff's Answers to the Court's Questions No. 12 15. Such allegations are conclusory in nature and, as such, fail to state a claim under the Civil Rights Act. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278,284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain a claim under § 1983). Similarly, Plaintiff has failed to state facts which, taken as true, demonstrate that Defendants Dr. Womble or John Wilson were deliberately indifferent to his need for medical care. Plaintiff's conclusory allegations are subject to dismissal. At most, Plaintiff has alleged nothing more than a disagreement over the medical care he was provided at the Allred Unit. The fact that Alex Kalmanov may have called Plaintiff names as alleged in his complaint is without moment. Name calling is not actionable under the Civil Rights Act.
The Court has the power to pierce the veil of a pro se plaintiff's 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.), cert. denied, 513 U.S. 883, 115 S.Ct. 220 (1994). Although in forma pauperis complaints are to be construed liberally, the Court is bound by the allegations of the complaint and is not free to speculate that a plaintiff might be able to state a claim if given yet another opportunity to add more facts. Id.
A district court may dismiss a complaint filed by a prisoner proceeding in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is "based on an indisputably meritless legal theory." Nietzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis in law.
IT IS THEREFORE ORDERED that the complaint is hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
SO ORDERED.