Davis v. Outlaw
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)
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
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
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
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).
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
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
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
DATED this 28th day of May, 2009.
____________________________________ U N IT E D STATES MAGISTRATE JUDGE
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