July 14, 2003.
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendants Dallas County, J.M. Jameson, J.M. Floyd, J.G. Temple, J. Watson, Dr. Steven Bowers, Dr. Kathryn Flangin, and Vernall Cole have filed a motion for summary judgment in this prisoner civil rights action. For the reasons stated herein, the motion should be granted.
This action is brought by seven current or former Dallas County Jail inmates against two physicians, five detention officers, and a law library supervisor. Succinctly stated, plaintiffs contend they "have been denied access to adequate medical, dental, eye, and psychiatric care, and they have suffered unhealthy and unsafe conditions." (Plf. Sec. Am. Compl. at 2, ¶ 1). More particularly, Donny Lee Williams, Juan Hernandez, Freddie Davis, and Leonard Brown allege they were denied adequate medical care for a variety of ailments during their incarceration. Williams suffers from severe back pain and sores on his face and head. ( Id. at 5-6, ¶¶ 23-26). Hernandez sustained injuries to knee, back, and neck in an automobile accident at the time of his arrest. ( Id. at 7, ¶¶ 28-30). Davis was diagnosed with a hernia shortly before he was incarcerated. ( Id. at 16-17, ¶¶ 45-46). According to these plaintiffs, jail officials all but ignored their medical problems despite numerous grievances and requests for treatment. Brown, who has hypertension and a rare blood disorder, alleges that the jail medical staff failed to monitor his condition and prescribed the wrong medication which caused him to suffer a severe allergic reaction. ( Id. at 8-12, ¶¶ 33-36). Williams, Hernandez and Davis, along with Jimmy Mamoth and Carlos Estrada, also complain that they were not given an eye examination or provided with corrective lenses for nearsightedness. ( Id. at 6, ¶ 27; at 8, ¶ 32; at 13, ¶ 39; at 14, ¶ 41; at 17, ¶ 47). Mamoth further alleges that he was denied dental treatment for severe periodontal disease, while another inmate, Eric Martinez, contends that he was not treated for a psychiatric disorder. ( Id. at 12-13, ¶¶ 37-38; at 15-16, ¶ 43-44).
In their Second Amended Complaint, plaintiffs attempt to sue various "Jane and/or John Doe" defendants who are employed at the jail. Because the federal rules make no provision for joining fictitious defendants in an action under a federal statute, the claims against these unnamed parties should be summarily dismissed as frivolous See Vollmer v. Bowles, 1997 WL 102476 at *2 (N.D. Tex. Feb. 28, 1997) (Fitzwater, J.), citing Sigurdson v. Del Guercio, 241 F.2d 480, 482 (9th Cir. 1956). Plaintiffs also sue M.G. Gibson, who has neither been served nor entered an appearance in the case.
Various plaintiffs also assert non-medical claims arising out of the conditions of their confinement. Hernandez alleges that he was assaulted by another inmate due to an inadequate classification system at the jail. ( Id. at 7-8, ¶ 31). Mamoth, who does not eat meat for religious reasons, complains that the alternative meals provided by the jail are nutritionally deficient. ( Id. at 14, ¶ 4). Estrada alleges that he was denied access to the law library which deprived him of the right to participate in the defense of his criminal trial. ( Id. at 14-15, ¶ 42).
All plaintiffs now join forces on their disparate claims to sue Dallas County and the individual defendants for civil rights violations under 42 U.S.C. § 1983. Defendants have filed a motion for summary judgment as to all claims and causes of action. As grounds for their motion, defendants argue that: (1) plaintiffs have failed to establish a constitutional violation with respect to any of their claims; (2) there is no basis for municipal liability against Dallas County; and (3) the individual defendants are entitled to qualified immunity. The issues have been fully briefed by the parties and the motion is ripe for determination.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A party seeking summary judgment who does not have the burden of proof at trial must point to the absence of a genuine fact issue. Tubacex, Inc. v. M/V Risan, 45 F.3d 951,954 (5th Cir. 1995). The burden then shifts to the non-movant to show that summary judgment is not proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 (1992). All evidence must be viewed in the light most favorable to the party opposing the motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993). However, conclusory statements, hearsay, and testimony based on conjecture or subjective belief are not competent summary judgment evidence. Topalian, 954 F.2d at 1131.
As a preliminary matter, the court notes that plaintiffs have failed to respond to many of the grounds raised by defendants in their motion for summary judgment. In their motion, defendants argue that plaintiffs have not established any of the constitutional violations made the basis of this suit. This includes their claims that: (1) Juan Hernandez was denied adequate medical care for his knee, back, and neck injuries; (2) jail officials failed to protect Hernandez from an assault by another inmate; (3) Eric Martinez was denied adequate psychiatric care for major depression, a bipolar disorder, attention deficit hyperactivity disorder, and chemical dependancy; (4) Carlos Estrada was denied access to the law library; (5) Jimmy Mamoth did not receive adequate dental care; (6) jail officials failed to provide Mamoth with a nutritionally adequate meat-free diet; and (7) Hemandez, Estrada, Mamoth, Donny Lee Williams, and Freddie Davis were not given an eye examination or provided with corrective lenses for nearsightedness. ( See Def MSJ at 1-5). Defendants not only informed the court and plaintiffs of the basis for their motion, but identified portions of the record which they believe demonstrate the absence of a genuine issue of material fact as to each claim. See Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001). Having met this initial burden, it is incumbent upon plaintiffs to come forward with specific evidence showing a genuine factual issue for trial. See TIG Insurance Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002). Plaintiffs have failed to meet this burden with respect to the claims set forth above.
As defendants point out, there is no evidence that Hernandez was denied adequate medical care, that Mamoth was denied adequate dental care, that Martinez was denied adequate psychiatric care, or that any of the plaintiffs were denied adequate eye care. Nor is there any evidence that the defendants failed to protect Hemandez from being assaulted by another inmate, deprived Estrada of access to the law library, or furnished Mamoth with an inadequate diet. Consequently, defendants are entitled to summary judgment as to these claims. Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater, J.) (where plaintiff fails to respond to summary judgment motion, court may accept defendants' evidence as undisputed); see also Galvan v. Gerald, 1999 WL 632832 at *1 (N.D. Tex. Aug. 19, 1999) (Kaplan, M.J.) (same).
Plaintiffs focus their response on the medical care claims asserted by Williams, Brown, and Davis. The court will address these claims in turn.
A civil rights claim based on the denial of adequate medical care arises under the Eighth Amendment to the United States Constitution. U.S. CONST. amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285,291,50 L.Ed.2d 251 (1976). A prisoner must show that jail officials acted with deliberate indifference to his medical needs such as to cause the "unnecessary or wanton infliction of pain." Gamble, 97 S.Ct. at 292. This, in turn, requires proof that jail officials were subjectively aware of a substantial risk of serious harm and failed to take reasonable measures to abate that risk. Hare v. City of Corinth, 74 F.3d 633,649 (5th Cir. 1996), citing Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L. Ed 2d 811 (1994).
Donny Lee Williams alleges that he was denied medical care for severe back pain and sores on his face and head. Williams first requested pain medication and antifungal shampoo on November 14,2000. (Plf. MSJ App. at 250-51). Another request for pain medication and shampoo was submitted on December 15, 2000. ( Id. at 252; Def. MSJ App. at 308). After Williams made a third request for pain medication, he was examined by a jail nurse on January 17,2001. (Def. App. at 37). The nurse observed "several raised areas" on his head and around his hairline. She also noted that Williams complained of a "crooked spine." ( Id.). Williams was given Motrin for back pain. Dr. Kathryn Flangin reviewed the chart and ordered a lumbar spine x-ray which was negative for scoliosis. ( Id. at 33, 37). On February 9, 2001, Dr. Flangin prescribed ibuprofin and gave Williams a medicated shampoo. ( Id. at 34, 310). Williams was scheduled to see the doctor again on February 15, 2001, but canceled the visit because he "had already received his [shampoo] and his Motrin and he didn't need anything else." ( Id. at 310).
Dr. Flangin testified that nothing in the medical records suggested that Williams had a serious medical problem. ( Id. at 106). Although he did not receive pain medication and antifungal shampoo for more than two months after his initial request, there is no evidence that this delay was the result of deliberate indifference on the part of any defendant or caused substantial harm. Accordingly, defendants are entitled to summary judgment as to this claim.
Approximately 17 months prior to his incarceration, Leonard Brown had surgery to replace a defective heart valve. Brown also suffers from hypertension and a rare disorder that causes his blood to become extremely thick at times and extremely thin at other times. The summary judgment evidence shows that Brown informed jail officials of his condition and the medications he was taking at book-in on December 19, 2000. (Plf. MSJ App. at 188). Rather than giving him Hyzaar, his prescribed medication, Dr. Flangin ordered Lopressor for high blood pressure and Coumadin, a blood thinner. (Def. MSJ App. at 106). On December 26, 2000, Brown was seen by a jail nurse after complaining of blurred vision, light-headedness, and throbbing pain on the side of his face and in his back and shoulders. (Plf. MSJ App. at 203). Brown told the nurse that he stopped taking his blood pressure medication because he can only tolerate Hyzaar or Cozar and those medications were not available. ( Id. at 191). The nurse notified Dr. McCorkle of Brown's condition. ( Id. at 203). Between December 28, 2000 and February 6, 2001, Brown was examined by the medical staff at least 18 different times. ( See id. at 204-07). His blood pressure was taken at regular intervals and blood was drawn for laboratory testing. ( Id.). On January 13, 2001, Brown asked to see a doctor because of side effects he attributed to his blood pressure medication. ( Id. at 189). However, five days later, Brown told Dr. Flangin that he was no longer experiencing any problems. (Def. MSJ App. at 106). On February 3, 2001, Brown filed another grievance complaining that he still had not received his "proper medicine." (Plf. MSJ App. at 239). According to Dr. Flangin, "[t]he first time Brown requested Hyzaar was February 11, 2001 and I prescribed Hyzaar for him on February 12, 2001." (Def. MSJ App. at 106).
During this time, Brown's blood pressure fluctuated from a high of 165/95 and 159/100 to a low of 144/88. (Plf. MSJ App. at 204-07).
Although the court agrees that Brown suffers from a serious medical condition, there is no evidence that he has been harmed by the eight-week delay in receiving his desired blood pressure medication. See, e.g. Estes v. Bowers, 2002 WL 628755 at *2 (N.D. Tex. Apr. 17, 2002) (Kaplan, M.J.) (brief delay in receipt of prescription medication not actionable under section 1983); Krivan v. Dallas County, 2002 WL 83768 at *3 (N.D. Tex. Jan. 14, 2002) (Fitzwater, J.) (same). Nor is there any evidence of deliberate indifference on the part of the jail medical staff. Brown's blood pressure was monitored regularly during his incarceration and he was examined by nurses and doctors on numerous occasions. Furthermore, Brown was given blood pressure medication and a blood thinner. The fact that he may have experienced some unpleasant side effects from this medication does not rise to the level of a constitutional violation. Significantly, none of the three grievances filed by Brown identified the medication he wanted the doctor to prescribe. Brown merely informed jail officials that he had not received "my proper medicine." When he finally asked Dr. Flangin to prescribe Hyzaar, she did so the very next day. Defendants are entitled to summary judgment as to this claim.
In his complaint, Brown also alleges that he was unable to have several teeth extracted because the jail medical staff failed to perform the necessary blood work or provide him with antibiotics prior to the scheduled procedure. ( See Plf. Sec. Am. Compl. at 140-41, ¶ 36). This claim is not addressed by Brown in his response to defendants' motion for summary judgment.
4.Freddie Davis complained of an abdominal hernia when he arrived at the Dallas County Jail on July 30, 2000. (Plf. MSJ App. at 240). He was examined by a jail nurse and given Motrin for pain. ( Id.; Def. MSJ App. at 18). Although Dr. Flangin agreed to see Davis "if needed," he refused to see the doctor on August 11, 2000. (Def MSJ App. at 18). Davis returned to the infirmary on August 21,2000. Upon examination, the nurse noted a 12-centimeter protrusion in the right lower quadrant of his abdomen. ( Id. at 18). Davis made similar complaints on August 24 and 29, 2000, and was seen by a nurse both times. ( Id. at 19). Dr. Flangin reviewed the notes of each visit and determined that Davis did not have a serious medical condition that warranted further medical attention at that time. ( Id. at 107).
Davis did not seek treatment again until October 20, 2000. ( Id. at 20). Dr. Flangin examined him on October 31,2000, at which time she noted "no obstruction related to his hernia and no other symptoms that indicated his condition was serious or required immediate attention." ( Id. at 107). This assessment was confirmed by an x-ray that showed no abdominal obstruction. ( Id.). Nevertheless, on December 6, 2000, Dr. Flangin referred Davis to Parkland Hospital for a surgical consultation. ( Id. at 108). Once this referral was made, it was up to the surgeons to determine if and when Davis' hernia should be repaired. ( Id.).
Even when viewed in the light most favorable to plaintiff, the summary judgment evidence fails to establish deliberate indifference on the part of any defendant in this case. It is clear that Davis received treatment for his hernia while incarcerated in the Dallas County Jail. His condition was monitored by Dr. Flangin and other members of the jail medical staff. Although he presented no symptoms that indicated his condition was serious, Dr. Flangin referred Davis to Parkland Hospital for a surgical consultation on December 6, 2000. The fact that Davis believes this referral should have been made sooner does not give rise to a civil rights violation under 42 U.S.C. § 1983. See Graves v. Hampton, 1 F.3d 315, 320 (5th Cir. 1993) (disagreement over the course of medical treatment is not actionable under section 1983). Defendants are entitled to summary judgment as to this claim.
Dallas County also moves for summary judgment on the ground that there is no basis for municipal liability under 42 U.S.C. § 1983. In order to establish their claim against the County, plaintiffs must show that the actions of jail officials resulted from an official policy, custom, or practice. Monell v. Department of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). This may include persistent or widespread practices which, although not officially authorized, "are so common and well settled as to constitute a custom that fairly represents municipal policy." Campbell v. City of San Antonio, 43 F.3d 973, 977 (5th Cir. 1995), quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). However, isolated incidents are insufficient to show a custom or practice for purposes of section 1983 liability. See Fraire v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir.), cert. denied, 113 S.Ct. 462 (1992).
In this case, there is no evidence of a formal policy or a persistent and widespread practice that was a "moving force" behind any constitutional violation. Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.), reh'g en banc denied, 257 F.3d 159 (5th Cir.) (Table), cert. denied, 122 S.Ct. 53 (2001). Without such evidence, there is no basis for municipal liability under section 1983.
Finally, the individual defendants seek summary judgment based on their qualified immunity defense. Jail officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates a "clearly established . . . constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Since plaintiffs have not proved a constitutional violation, this terminates the qualified immunity analysis.
There are no genuine issues of material facts and defendants are entitled to judgment as a matter of law. Accordingly, their motion for summary judgment should be granted.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of defendants' motion for summary judgment in the above styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Am, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) 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 or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).