Opinion
3:02-CV-1895-N.
July 23, 2003.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Nature of the Case:
Plaintiff brings this complaint pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in forma pauperis. II. Parties:
Plaintiff was confined in the Kaufinan County Jail when the events in his complaint occurred. Defendants are the Kaufinan County Sheriff Department, Sheriff David Byrnes, Doctor William Fortner, District Attorney Bill Conradt and attorney Dan Wood.
III. Statement of the Case:
Plaintiff alleges he sustained an injury to his genitals while incarcerated in the Kaufinan County Jail. He states that on March 26, 2002, he was examined by Defendant Dr. Fortner and that Dr. Fortner informed him he would need to see a specialist. Plaintiff states that he informed his court appointed attorney, Dan Wood, that he needed to see a medical specialist but his attorney did not respond. He states that he wrote to Chief Stone regarding the need to see a specialist. He states that Defendant Sheriff Byrnes made him another appointment to see Dr. Fortner. On August 13, 2002, he saw Dr. Fortner and Dr. Fortner told him he could not see a specialist because of the cost to the county. (Compl. p. 4; Magistrate Judge's Questionnaire, Answer 4). Plaintiff alleges the actions of Defendants deprived him of his rights to adequate medical care.
In response to the Magistrate Judge's Questionnaire, however, Plaintiff states that on September 7, 2002, he was taken to see Doctor Jeremy Chester at Presbyterian Hospital of Kaufman County. (Magistrate Judge's Questionnaire, Answer 4). He states that Doctor Chester prescribed pain medication and instructed the jail to make Plaintiff an appointment with the urology department. ( Id.). Plaintiff states he had an appointment with the urology center on September 12, 2002, and that he was given pain medication and was told to return in 2 weeks. ( See Attachments to Magistrate Judge's Questionnaire).
IV. Preliminary Screening
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous if it "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court finds Plaintiff's claims should be dismissed as frivolous.
For an inmate to establish a § 1983 claim of deliberate indifference to a serious medical need, he must allege a deprivation of medical care sufficiently serious to show that the state has abdicated a constitutionally-required responsibility to attend to his medical needs, and that the prison officials knew of and disregarded an excessive risk to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 833 (1994). The deliberate indifference must rise to a level of unnecessary and wanton infliction of pain proscribed by the Eight Amendment. Id. at 835-47. Negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a § 1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999); see also Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (finding disagreement as to the correct medical treatment does not constitute an actionable civil rights claim).
Plaintiff's claims in this case do not rise to the level of a constitutional violation. Plaintiff states he was examined by Dr. Fortner for his injury. Dr. Fortner referred Plaintiff to Presbyterian Hospital of Kaufman County where he was seen by another doctor. Finally, Plaintiff was also evaluated by a specialist in the urology department. Plaintiff's complaint and answers to the Magistrate Judge's Questionnaire show that he received treatment for his injury. Although he may have wanted more or different treatment, he has not stated a violation of his constitutional rights. See Estelle v. Gamble, 429 U.S. 97, 107 (1976). Plaintiff's complaint should be dismissed.
RECOMMENDATION
The Court recommends that Plaintiff's claims pursuant to 42 U.S.C. § 1983 be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A(b).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Am, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).