June 12, 2003.
SUPPLEMENTAL 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 filed on February 27, 2003, the above action filed pro se by Plaintiff was re-referred to the undersigned Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights action brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is currently confined at the Clemens Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) in Brazoria, Texas. He was incarcerated at the Dallas County Jail during the events at issue in this case. Defendants are Dallas County and Parkland Memorial Hospital. The court has not issued process in this case.
Procedural History: On February 12, 2003, the Magistrate Judge issued findings recommending that the complaint, which named the Dallas County Sheriffs Office and the Dallas County Parkland Clinic of the County Jail, be dismissed for failure to name a suable entity or a responsible suable individual as a defendant party. On February 27, 2003, the District Court re-referred this case to the undersigned in light of Plaintiff s motion for leave to file an amended response to the Magistrate Judge's Questionnaire, filed on February 21, 2003, and Plaintiff's motion for leave to file an amended complaint, filed on February 21, 2003.
On March 6, 2003, the Magistrate Judge granted Plaintiff's motion to amend his answer to the questionnaire, and granted in part and denied in part his motion to amend the complaint. Thereafter, on April 23, 2003, the Magistrate Judge issued a supplemental questionnaire to Plaintiff, who filed his answers on May 16, 2003. Contemporaneous with the filing of the answers to the questionnaire, Plaintiff filed an amended complaint, which names Dallas County and Parkland Memorial Hospital as defendants. Statement of Case: The amended complaint alleges Dallas County and the "Jail Clinic" of Parkland Memorial Hospital were deliberately indifferent to Plaintiff's heart condition during his incarceration at the Dallas County Jail from September 25, 2001, until December 21, 2001. Specifically Plaintiff alleges Defendants delayed his prescription medication for ten days, denied him any medical treatment for his heart condition except for checking his blood pressure, and failed to schedule an appointment with a heart specialist. He seeks monetary damages. (Answer to Question 3).
The Magistrate Judge previously denied without prejudice Plaintiff's motion to add claims relating to the denial of medical care for his heart condition since his arrival at the Clemens Unit of TDCJ-ID. See Order filed on March 6, 2003, at 1-2; see also Findings and Recommendation filed on February 12, 2003, at n. 1 on p. 4.
The allegations on which Plaintiff's amended complaint is predicated are as follows:
On September 23, 2001, the Irving City Jail transported Plaintiff to Parkland Hospital because he had triple-by-pass three years earlier and was experiencing severe pain in his left arm. Following two days of testing, "a narrowing artery was [determined to be] the culprit." (Amended Complaint 4). In addition to prescription medications and specific instructions on how to treat Plaintiff's heart condition, the jail was given the necessary documents to schedule an appointment with a heart specialist within thirty days. (Amended Complaint at 4 and affidavit attached to complaint at 2). Plaintiff was then transported to the Dallas County Jail, where a male nurse was given the prescriptions, the necessary instructions, and the appointment information. (Id.). Plaintiff alleges (1) his prescription medications were delayed by ten days; (2) his heart condition was not monitored during the first thirty days at the Dallas County Jail, except for taking his blood pressure; and (3) the appointment with the heart specialist was never made. (Id.). As a result of Defendants' deliberate indifference, Plaintiff became dizzy and passed out on October 12, 2001; jailers apparently "refused to answer emergency medical calls, because they were asleep." (Amended Complaint at 4). In addition to mental pain and anxiety, Plaintiff experienced a narrowing artery in the heart, dizziness, and swelling and poor circulation in his legs due to lack of treatment for his heart condition. (Amended complaint at 4 and Answer to Supplemental Questions 8-9). He alleges that the poor circulation in his legs "has now progressed to being hospitalized with severe leg infections from reoccurring blood clots." (Answer to Supplemental Question 8).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
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 such relief."28 U.S.C. § 1915A(a) and (b) (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Although Plaintiff names as defendant Parkland Memorial Hospital, his allegations are directed to the "jail clinic." Specifically he alleges that the "jail clinic" of Parkland Memorial Hospital "[r]efused to properly treat and follow hospital instructions" regarding the scheduling of an appointment with a heart specialist. (Amended Complaint at 3-4). Clearly Plaintiff does not seek to sue Parkland Memorial Hospital, but rather the jail clinic of Dallas County. Therefore, Parkland Memorial Hospital should be dismissed as a defendant with prejudice.
The only other defendant named in the amended complaint is Dallas County. It is well-established that a governmental entity, such as Dallas County, may be liable under § 1983 for violations of a constitutionally protected rights. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978). Such liability, however, may not be premised on a respondeat superior theory, but may only be found where the constitutional injury is the result of a "policy or custom" that may be fairly attributable to official policymakers. Id. at 694. The Fifth Circuit has defined a "policy or custom" as
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the governmental entity's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or
2. A persistent, widespread practice of government officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.Bennett v. City of Slidell. 735 F.2d 861, 862 (5th Cir. 1984) ( en banc and per curiam).
When the challenge relates to a custom of behavior among non-policymaking employees, which may be contrary to official policy, see Webster v. City of Houston. 735 F.2d 838, 849-54, 856 (5th Cir. 1984) (dissenting opinion), or when the "policy" challenged is not a deliberate choice among alternatives by a policymaker but is instead an inferred, informal policy, see Oklahoma City v. Tuttle. 471 U.S. 808, 820-24 (1985) (plurality opinion), the plaintiff cannot rely on a single instance of unconstitutional conduct, but must establish a "pattern of similar incidents in which citizens were injured or endangered by intentional or negligent . . . misconduct and/or that serious incompetence or misbehavior was general or widespread. . . ."Languirand v. Hayden 717 F.2d 220, 227-28 (5th Cir. 1983). In such "custom" cases, "where the violations are flagrant or severe, the fact finder will likely require a shorter pattern of the conduct to be satisfied that diligent governing body members would necessarily have learned of the objectionable practice and acceded to its continuation." Bennett v. City of Slidell. 728 F.2d 762, 768 (5th Cir. 1984) (en banc).
In answer to the supplemental questionnaire, Plaintiff alleges that although Dallas County has a policy of providing medical care to all its inmates, in practice it has a custom of persistently denying medical care and keeping expenses to a minimum, especially with respect to inmates with serious medical conditions. (Answer to Supplemental Questions 3 and 4). In support of the above allegation, Plaintiff cites the ten-day delay in providing him his prescription medications for his heart condition, and the complete failure to schedule an appointment with a heart specialist and to treat his serious heart condition during the three-month detention at the Dallas County Jail. (Answer to Supplemental Question 4). Plaintiff also makes reference to the numerous instances during which guards refused to take him to the infirmary because he had not submitted a sick-call request, despite the serious nature of his condition. (Id.).
In addition to the customs of persistently denying medical care and keeping expenses to a minimum, Plaintiff alleges that Dallas County has a practice of repeatedly failing to enforce its policy of requiring that guards stay awake during the night shift, and of ensuring that its medical care policies are adhered to and that its employees are properly trained to assess the inmates' medical needs. (Answer to Supplemental Question 3). Plaintiff relies on the one occasion on the night of October 12, 2001, during which guards failed to respond to his repeated calls for medical emergency until the following morning, and even then refused to take him to the infirmary. (Answer to Supplemental Question 4). In addition to this one instance, Plaintiff alleges that it is well known that guards always sleep during the night shift and that inmates are routinely denied medical care. (Id.).
With respect to the policy which requires the submission of a "sick-call" slip before an inmate is permitted to go to the infirmary, Plaintiff alleges that such policy caused deliberate indifference to his serious heart condition because guards repeatedly refused to take him to the infirmary unless he first submitted a "sick-call" slip. (Answer to Supplemental Questions 3 and 4).
Accepting as true the above allegations, the Magistrate Judge concludes that Plaintiff has arguably raised a claim that Dallas County has a custom of denying medical care to inmates which has resulted in deliberate indifference to his narrowing artery condition in his heart. Therefore, Plaintiff's claims against Dallas County are not subject to dismissal at the screening stage.
For the foregoing reasons, it is recommended that process be issued on Dallas County and that Parkland Memorial Hospital be dismissed as a defendant with prejudice.
A copy of this recommendation will be mailed to Plaintiff.
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.