Davis v. Outlaw

Filing 29

RECOMMENDED DISPOSITION recommending that 23 Defendant's Motion for Summary Judgment be granted and that Plaintiff's claims be dismissed with prejudice. Objections to R&R due by 6/11/2009. Signed by Magistrate Judge Beth Deere on 5/28/09. (hph)

Download PDF
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION R A Y M O N D ALLEN DAVIS, Reg. # 41200-074 V. C A S E NO. 2:08cv209-JLH-BD P L A IN T IF F T . C. OUTLAW, Warden, F C I - Forrest City, Arkansas DEFENDANT 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 C h ie f Judge J. Leon Holmes. 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 f in 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 tif f , a prisoner incarcerated at the Federal Correctional Institution in Forrest C ity, Arkansas, brings this action pro se under Bivens v. Six Unknown Fed. Narcotics A g e n ts , 403 U.S. 388, 91 S.Ct. 1999 (1971). In his Complaint, Plaintiff challenges the B u re a u of Prison's policy requiring inmates to use their own resources to pay for overth e -c o u n te r medications, a policy allegedly enforced by Defendant Outlaw. Defendant Outlaw has filed a motion for summary judgment (docket entry #23). In the motion, Defendant Outlaw argues that the policy requiring federal prisoners to pay f o r over-the-counter medications is constitutionally sound. He also argues that Plaintiff c a n n o t prove that he acted with deliberate indifference to Plaintiff's medical needs, as a m a tte r of law. Plaintiff now has responded to Defendant Outlaw's motion (#28). In his response, Plaintiff contends that Defendant Outlaw's characterization of this la w s u it as a Bivens action is incorrect. Plaintiff claims that this is an action solely for d e c la ra to ry and injunctive relief. Further, Plaintiff argues that he is not alleging that D e f e n d a n t Outlaw acted with deliberate indifference to his medical needs, but rather that th e Bureau of Prisons lacks the authority to enact a policy requiring inmates to pay for o v e r-th e -c o u n te r medications.1 In his response to the motion for summary judgment, Plaintiff plainly states that h e has not alleged that Defendant Outlaw acted with deliberate indifference to his medical n e e d s . As a result, the Court will not address that claim in this Recommendation. 2 1 Based upon the evidence presented, Defendant Outlaw is entitled to summary ju d g m e n t, and his motion (#23) should be GRANTED. III. D is c u s s io n : A. S ta n d a rd S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of s p e c if ic facts which create a genuine issue for trial.") If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). 3 B. B iv e n s Action H e re , Plaintiff attempts to characterize this lawsuit as a declaratory judgment action, rather than an action brought under Bivens v. Six Unknown Fed. Narcotics Agents, s u p r a . However, the fact that Plaintiff seeks only injunctive and declaratory relief does n o t change the nature of this lawsuit. Here, Plaintiff challenges the Bureau of Prison's p o lic y requiring inmates to use their own resources to pay for over-the-counter m e d ic a tio n s . Such a claim has consistently been recognized as an Eighth Amendment c la im . See Blaise v. McKinney, 187 F.3d 640, *1 (8th Cir. 1999) (unpub. table op.) (" E ig h th Amendment's prohibition against cruel and unusual punishment requires prisons to provide basic medical care to inmates, but does not require that medical care be p ro v id e d at no cost"); Reynolds v. Wagner, 936 F. Supp. 1216 (E.D. Pa. 1996) (policy re q u irin g inmates to pay for medical services did not violate Eighth Amendment); J o h n s o n v. Dep't of Public Safety & Correctional Servs, 885 F. Supp. 817 (D. Md. 1995) (u p h o ld in g co-pay requirements for prison medical services despite Eighth Amendment c h a lle n g e ); and Hudgins v. DeBruyn, 922 F. Supp. 144 (S.D. Ind. 1996) (holding that the p riso n policy requiring inmates to pay for over-the-counter medications did not constitute c ru e l and unusual punishment). Accordingly, despite Plaintiff's jurisdictional statement to the contrary, he has filed a Bivens action under 28 U.S.C. 1331.2 The Court recognizes that Plaintiff states that he does not allege a constitutional v io la tio n in this action. However, by arguing that the Bureau of Prisons lacks the a u th o rity to enact the policy at issue, Plaintiff raises a constitutional issue. 4 2 C. O v e r-th e -C o u n te r Medications T h e Eighth Amendment's prohibition against cruel and unusual punishment re q u ire s that prisons provide medical care to inmates. However, prisons are not required to provide this medical care irrespective of cost. See White v. Corr. Med. Servs., 94 F. A p p x . 262, 264 (6th Cir. 2004) (prisons and jails are entitled to charge inmates for n e c e s s itie s and medical care) and Reynolds v. Wagner, 128 F.3d 166, 173-74 (3rd Cir. 1 9 9 7 ) (deliberate indifference standard does not guarantee prisoners the right to be free f ro m cost considerations). Inmates may be constitutionally required to pay for their own m e d ic a l expenses if they can afford to do so. See Blaise v. McKinney, 187 F.3d 640, *1 (8 th Cir. 1999) (unpub. table op.) (stating that Eighth Amendment prohibition against c ru e l and unusual punishment does not require that medical care be provided to inmates f re e of cost); Roberson v. Bradshaw, 198 F.3d 645, 647 (8th Cir. 1999) (holding that " re q u irin g [county] inmates to pay for their own medications if they can afford to do so ... is not a federal constitutional violation"); and Coleman v. Whitney, 2006 WL 3791316, *2 (E .D .L a . 2006)("Programs that require inmates to bear part of their own medical costs re m a in within constitutional bounds so long as the program does not condition the p ro v id in g of necessary medical services on an inmate's ability to pay"). In Garcia v. Lappin, 2006 WL 897857 (W.D.Wis. 2006), a prisoner confined at th e Federal Correctional Institution in Oxford, Wisconsin, raised the same challenge at is su e here. The plaintiff in Garcia alleged that the Bureau of Prisons medication policy 5 requiring inmates to pay for over-the-counter medication violated his rights under the E ig h th Amendment. The Court found the prisoner plaintiff's claim to be without merit: The Eighth Amendment guarantees that the government will not ignore an in m a te 's serious medical needs; it does not guarantee free medical care. Nothing in the Eighth Amendment requires the government to provide at no cost a c o m m o d ity that would not be free outside the prison and that the inmate has the le g a l means to purchase. If a prison official withholds necessary medical care f ro m an inmate with a serious medical need who cannot afford to pay, the o f f ic ia l's action would violate the inmate's constitutional rights, but insisting that a n inmate with sufficient funds pay for his own medical care is neither deliberate in d if f e re n c e nor punishment. A prison official violates the Eighth Amendment by re f u s in g to provide prescribed [over-the-counter] medicine for a serious medical n e e d only if the inmate lacks sufficient resources to pay for the medicine. G a r c ia , 2006 WL 897857 at *3 (internal quotations omitted). For the same reasons, Plaintiff's claim in this case fails. H e re , Plaintiff does not allege that the medical co-pay resulted in medical care b e in g withheld; rather, Plaintiff complains about the fact that he was forced to pay for his o v e r-th e -c o u n te r medication. Because Plaintiff has no constitutional right to receive m e d ic a l care free of cost, his claim fails as a matter of law.3 IV . C o n c lu s io n : T h e Court hereby recommends that Defendant's motion for summary judgment (# 2 4 ) be GRANTED and that Plaintiff's claims be DISMISSED with prejudice. Notably, there is nothing in the record indicating that Plaintiff lacked sufficient f u n d s to pay for the over-the-counter medication at issue. Rather, the evidence shows that P la in tif f had approximately $4,400 available to him while incarcerated at the Federal C o rre c tio n a l Institution in Forrest City (#23-2 at p.5-14). 6 3 DATED this 28th day of May, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?