George v. Cartwright et al

Filing 4

RECOMMENDED DISPOSITION recommending 2 Plaintiff's Complaint be dismissed without prejudice; and recommending 1 Plaintiff's application to proceed in forma pauperis be denied as moot. Objections to R&R due by 9/30/2008. Signed by Magistrate Judge Beth Deere on 09/16/08. (hph)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION MARCUS GEORGE v. C A S E NO.: 5:08CV00253 JLH/BD PLAINTIFF J O H N N Y CARTWRIGHT, e t al. DEFENDANTS RECOMMENDED 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 o u rt Chief Judge J. Leon Holmes. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B a c k gro u n d : P la in tif f is an Arkansas Department of Correction ("ADC") inmate housed at the W .C . Brassell Detention Center. Plaintiff brings this action pro se under 42 U.S.C. 1983 (docket entry #2). In his Complaint, Plaintiff alleges that on June 3, 2008, he was in ju re d while mowing the lawn using ADC-issued equipment. Plaintiff states that a rock " sh o t out" from the lawn mower into his mouth causing Plaintiff to choke. Plaintiff c laim s that he told Major Lowe what had occurred, but that Major Lowe did nothing to a ss is t him. Plaintiff then started coughing up blood. At that time, Sgt. Cartwright took P la in tif f to the Varner Unit infirmary where x-rays were taken. Plaintiff then was taken to the hospital where the rock was removed. Plaintiff names as Defendants Johnny C a r tw r ig h t, Michael Lowe, John Doe, the Head Warden at the Varner Unit, Larry Norris, a n d Ray Hobbs, in both their individual and official capacities. III. Discussion: A. S ta n d a r d F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e r n m e n t a l entity, officer, or employee. 28 U.S.C. 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are frivolous, malicious, f a il to state a claim upon which relief may be granted, or seeks monetary relief from a d e f e n d a n t who is immune from such relief. 28 U.S.C 1915A(b). 2 T o state a cognizable claim under 42 U.S.C. 1983, a plaintiff must allege that the c o n d u c t of a defendant acting under color of state law deprived him of a right, privilege, or im m u n ity secured 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 hold a plaintiff's pro se complaint "to less stringent standards than formal pleadings drafted by la w ye rs ," Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a plaintiff still must a ss e rt facts sufficient to state a claim as a matter of law. Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985). Based on Plaintiff's Complaint, the Court finds that Plaintiff has fa iled to state a cognizable claim under 42 U.S.C. 1983. Accordingly, the Court re c o m m e n d s DISMISSAL of Plaintiff's Complaint. B. 1. A n a lys is N e g lig e n c e Claim T h e basis of Plaintiff's Complaint is that Defendants allowed Plaintiff to sustain an in ju ry while using ADC-issued mowing equipment. Plaintiff complains that he was injured b e c au s e the mower that he was using contained no "bag" and that the equipment was not w o rk in g properly. Plaintiff's Complaint does not contain any allegation of any intentional conduct by a n y of the named Defendants; nor does it allege any violation of the Constitution or federal law . Instead, Plaintiff attempts to hold Defendants liable for what appears to be, at most, n e g lig e n t conduct. Mere negligence is insufficient to establish liability under 1983. See 3 T e r r e ll v. Larson, 396 F.3d 975, 978 (8th Cir. 2005). Accordingly, Plaintiff's negligence c la im against Defendants fails to state a claim for relief under 42 U.S.C. 1983.. 2. D e lib e ra te- In d if f e re n c e Claim P la in tif f claims that Defendant Lowe ignored Plaintiff's medical needs. Prison o f f ic ia ls or their agents violate the Eighth Amendment if they commit "acts or omissions s u f f ic ie n tly harmful to evidence deliberate indifference to [an inmate's] serious medical n e e d s." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1976). The Eighth Circuit C o u rt of Appeals has interpreted this standard as including both an objective and a s u b je c tiv e component: "The [plaintiff] must demonstrate (1) that [he] suffered [from] o b je c tiv e ly serious medical needs and (2) that the prison officials actually knew of but d e lib e ra te ly disregarded those needs." Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1 9 9 7 ). "The prisoner must show more than negligence, more even than gross negligence, a n d mere disagreement with treatment decisions does not rise to the level of a constitutional v io la tio n ." Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Further, to s u c c ee d on a claim for deliberate indifference, a plaintiff must bring the claim against the in d iv id u a ls responsible for the inmate's medical care. Keeper v. King, 130 F.3d 1309, 1314 (8 th Cir. 1997). Here, despite Defendant Lowe's alleged reaction, or lack thereof, to Plaintiff's m e d ic a l needs, it appears that Plaintiff received prompt medical attention for the injury that h e sustained. He has alleged no enhanced injury resulting from a delay in medical 4 tre a tm e n t caused by Defendant Lowe's failure to respond. Furthermore, Plaintiff has not a lle g e d that Defendant Lowe was aware of the alleged seriousness of his medical condition. Rather, based upon Plaintiff's allegations, it is not clear that Defendant Lowe even heard P lain tiff 's complaints.1 While Defendant Lowe might have been more attentive to P la in tif f 's needs, his failure to respond rises, at most, to gross negligence. IV . C o n c lu s io n : T h e Court recommends that Plaintiff's Complaint (#2) be DISMISSED WITHOUT P R E J U D IC E and that his application to proceed in forma paupers (#1) be DENIED as m o o t. D A T E D this 16th day of September, 2008. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE Plaintiff states in his Complaint that he brought this matter to Defendant Lowe's a tte n tio n , but that Defendant Lowe acted as if he did not hear Plaintiff. 5 1

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