Sills v. Edwards et al

Filing 31

RECOMMENDED DISPOSITION recommending that plaintiff's complaint and amended complaint be dismissed with prejudice; that this dismissal count as a "strike," and that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith. Signed by Magistrate Judge Beth Deere on 7/20/09. (bkp) (Docket entry modified on 7/21/2009 to correct the filing event and the description of the document filed.) (thd).

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION L E O N A R D A. SILLS A D C #138335 V. CASE NO. 2:08CV00198 SWW/BD DEFENDANTS PLAINTIFF W E N D Y KELLEY, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h e following Recommended Disposition has been sent to United States District J u d g e Susan Webber Wright. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that fin d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground P la in tiff Leonard A. Sills filed this 42 U.S.C. 1983 action (docket entry #1), a lo n g with a Motion for Leave to Proceed in forma pauperis (#2), in the Western District o f Arkansas. The Western District transferred Plaintiff's case to this Court (#3, #4). On December 8, 2008, this Court denied Plaintiff's Motion for Leave to Proceed in fo r m a pauperis because Plaintiff was no longer incarcerated in the Arkansas Department o f Correction ("ADC") and the pending motion did not reflect Plaintiff's post-release fin a n c ia l status. Plaintiff was ordered to file a current motion to proceed in forma p a u p e ris within thirty days of the entry of the Court's Order (#5). In addition, the Court noted that Plaintiff's Complaint (#1) failed to allege an in ju ry , as required to state a claim for deliberate indifference to a serious medical needs, a n d ordered Plaintiff to file an amended complaint which included allegations of his in ju ry . Plaintiff was required to file the amended complaint within thirty days of the e n try of the Court's Order (#5). The Plaintiff was warned that failure to fully comply w ith the Order could result in dismissal of his action under Local Rule 5.5(c)(2) of the E a ste rn District of Arkansas and the Federal Rules of Civil Procedure. Plaintiff failed to respond to the Court's Order and this action was dismissed w ith o u t prejudice (#8, #11, #12). On March 30, 2009, Plaintiff moved to reopen this c a s e , and his motion was granted ((#16, #17). Plaintiff received the notice of dismissal of h is case in February (#16), yet he still had not filed a motion for leave to proceed in forma p a u p e ris or an amended complaint as ordered (#5). Plaintiff eventually filed a motion for 2 leave to proceed in forma pauperis (#24), which this Court granted (#25). This Court th e n granted Plaintiff's motion to stay (#21), in which he alleged he could not provide in fo rm a tio n necessary to amend his complaint until he was paroled in July. Plaintiff has n o w filed an amended complaint (#30), even though he was not paroled. Plaintiff's C o m p la in t (#1) and Amended Complaint (#30) fail to state a claim for relief and should b e dismissed with prejudice. III. Screening F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. 1915A. The Court must dismiss a c o m p la in t, or portion thereof, if the prisoner has raised claims that: (a) are legally friv o lo u s or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C 1915A(b). To state a claim under 42 U.S.C. 1983, a plaintiff must allege that the conduct of a defendant acting under color of state law deprived him of a right, privilege, or immunity s e c u re d by the federal Constitution or laws of the United States. 42 U.S.C. 1983. While a court must accept the factual allegations in the complaint as true and h o ld a plaintiff's pro se complaint "to less stringent standards than formal pleadings d ra fte d by lawyers," Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a p la in tiff still must assert facts sufficient to state a claim as a matter of law. Martin v. S a r g e n t, 780 F.2d 1334, 1337 (8th Cir. 1985). 3 IV. Analysis Plaintiff filed this action alleging that his Eighth Amendment rights were violated b y deliberate indifference to his serious medical needs. Specifically, Plaintiff alleges that h e was denied medication prescribed to him prior to his incarceration. Plaintiff does not a lle g e any injury resulting from the denial of medication, although he does state the p o te n tia l for injury to himself and others if he is not given the medication (#30). The Eighth Amendment to the United States Constitution prohibits the infliction of c ru e l and unusual punishment. Jenson v. Clark, 94 F.3d 1191 (8th Cir. 1996). Deliberate in d iffe re n c e by prison personnel to an inmate's serious medical needs violates the in m a te 's Eighth Amendment right to be free from cruel and unusual punishment. Estelle v . Gamble, 429 U.S. 97, 104-05 (1976). An Eighth Amendment claim that prison officials were deliberately indifferent to th e medical needs of inmates involves both an objective and a subjective component. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Inmates must demonstrate (1) that th e y suffered objectively serious medical needs, and (2) that the prison officials actually k n e w of, but deliberately disregarded, those needs. Id. A serious medical need is "one th a t has been diagnosed by a physician as requiring treatment, or one that is so obvious th a t even a layperson would easily recognize the necessity for a doctor's attention." Id. at 778. To show deliberate indifference, "[t]he prisoner must show more than negligence, m o re even than gross negligence, and mere disagreement with treatment decisions does 4 not rise to the level of a constitutional violation." Estate of Rosenberg v. Crandell, 56 F .3 d 35, 37 (8th Cir. 1995). "[T]he failure to treat a medical condition does not constitute p u n is h m e n t within the meaning of the Eighth Amendment unless prison officials knew th a t the condition created an excessive risk to the inmate's health and then failed to act on th a t knowledge." Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). As long as this th re s h o ld is not crossed, inmates have no constitutional right to receive a particular or re q u e s te d course of treatment, and prison doctors remain free to exercise their in d e p e n d e n t medical judgment. Id. Plaintiff's Complaint (#1) and Amended Complaint (#30) allege what amounts to a d is a g re e m e n t with treatment decisions and a failure to prescribe and provide a particular m e d ic a tio n . Although this Court is sympathetic to Plaintiff's alleged serious mental c o n d itio n , settled law is clear. Disagreement with treatment decisions does not rise to the le v e l of a constitutional violation. Popoalii v. Correctional Medical Services, 512 F.3d 4 8 8 , 499 (8th Cir. 2008) (quoting Estate of Rosenberg, 56 F.3d at 37). Plaintiff has no constitutional right to receive a particular or requested course of tre a tm e n t. Long, 86 F.3d at 765. If the Defendants in this case filed a motion for s u m m a ry judgment with an affidavit from Dr. Edwards admitting exactly what Plaintiff a lle g e s , they would be entitled to judgment as a matter of law. Plaintiff's Complaint (#1) states that Dr. Edwards determined that Plaintiff did not n e e d the medications prescribed by "free world" psychiatrists. Although unnecessary to th e disposition of this matter, attachments to Plaintiff's Complaint establish that another 5 unnamed psychiatrist also determined that Plaintiff did not need the medications he re q u e s ts (#1, p. 6). Even though "free world" psychiatrists prescribed the medication P la in tiff now seeks, such a disagreement in treatment does not establish a constitutional v io la tio n . See Noll v. Petrovky, 828 F.2d 461, 462 (8th Cir. 1987), cert. denied, 484 U.S. 1 0 1 4 , 108 S.Ct. 718 (1988) (stating that disagreement between physicians regarding tre a tm e n t "raises question of medical judgment; it does not show deliberate in d iffe re n c e " ). Defendants "do not violate the Eighth Amendment when in the exercise o f their professional judgment, they refuse to implement a prisoner's requested course of tre a tm e n t." Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009) (quoting Long, 86 F.3d at 7 6 5 ). Accordingly, Plaintiff's Complaint (#1) and Amended Complaint (#30) should be d is m is s e d with prejudice. V. C o n c lu s io n T h e Court recommends that Plaintiff's Complaint (#1) and Amended Complaint (# 3 0 ) be DISMISSED WITH PREJUDICE. In addition, the Court recommends that the d is m is s a l count as a "strike" for purposes of 28 U.S.C. 1915(g), and that the District C o u rt certify that an in forma pauperis appeal taken from the order and judgment d is m is s in g this action would be frivolous and not taken in good faith. D A T E D this 20th day of July, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 6

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