Wray v. Correctional Medical Services

Filing 14

REPORT AND RECOMMENDATIONS re 6 Amended Complaint, filed by Chalmers Wray, 2 Complaint filed by Chalmers Wray. Objections to R&R due by 12/4/2009. Signed by Honorable James R. Marschewski on November 16, 2009. (dmc)

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS H O T SPRINGS DIVISION C H A LM E R S WRAY v. C iv il No. 09-6071 PLAINTIFF

CORRECTIONAL MEDICAL SERVICES; DR. BHALRAVI KHAROD, University of Arkansas for Medical Sciences; JONES EYE IN S T IT U T E , University of Arkansas fo r Medical Sciences; DR. LIGGETT, O u a c h ita River Correctional Unit (ORCU), Arkansas Department of Correction; NURSE OWENS, ORCU; VALERIE S. STEVENS, Health Service Administrator, ORCU; DREAM YOUNG, MENTAL HEALTH SUPERVISOR, ORCU; and DR. BLACKMON, Cummins Unit

DEFENDANTS

R E P O R T AND RECOMMENDATION OF THE MAGISTRATE JUDGE T h e plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983. He proceeds pro s e and in forma pauperis. The case is before the undersigned for preservice screening under the p ro v is io n s of the Prison Litigation Reform Act. Specifically, pursuant to 28 U.S.C. § 1915A the c o u rt has the obligation to screen any complaint in which a prisoner seeks redress from a go v e rn m e n ta l entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). On re v ie w , the court is to dismiss the complaint, or any portion of the complaint, that is frivolous, m a lic io u s , or fails to state a claim upon which relief may be granted, or seeks monetary relief fro m a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). See also 28 U.S.C. § 1915(e)(2)(B)(I-iii).

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I . Background A c c o rd in g to the allegations of the amended complaint (Doc. 6), on February 13, 2008, p la in tiff, Chalmers Wray (hereinafter Wray), was taken to the University of Arkansas for Medical S c ie n c e s (UAMS), Jones Eye Clinic, in Little Rock and seen by Dr. Bhalravi Kharod. Dr. K h a ro d examined Wray's eyes and prescribed him medication. At the time Wray stated he was a b le to see clearly through both eyes. Wray states he had recently had laser surgery on both eyes a t UAMS. However, he does not indicate when this surgery was performed or who performed it. W ra y was transported back to the Ouachita River Correctional Unit of the Arkansas D e p a rtm e n t of Correction (ADC) located in Malvern, Arkansas. He was seen there by Dr. Ligge tt. Wray alleges Dr. Liggett violated his rights by forcing him to return to his barracks even th o u gh he was complaining "greatly of pain and redness in [his] right eye." On February 17th, Wray asserts he reported to the unit infirmary and was seen by Nurse O w e n s . Wray learned his prescribed medication still had not arrived. He alleges Nurse Owens " ru d e ly stated she cared less whether [he] could see or not." Wray then wrote grievances about his eyes. On February 18th, while he was in his cell, W ra y alleges he went completely blind in his right eye. He states he was then seen by Valerie S . Stevens, L.P.N. and Dream Young, Health Services Administrator. O n July 7, 2008, Wray was transferred to the Cummins Unit of the ADC located in G ra d y, Arkansas. At the Cummins Unit, Wray states he has been under the treatment of Dr. B la c k m o n . Wray alleges Dr. Blackmon cut off his medication for pain and all his follow-up a p p o in tm e n ts for his eye.

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I I . Discussion S e v e r a l of Wray's claims are subject to dismissal. First, Wray's claims against Dr. K h a ro d and the Jones Eye Institute are subject to dismissal. Section 1983 provides a federal c a u s e of action for the deprivation, under color of law, of a citizen's "rights, privileges, or im m u n itie s secured by the Constitution and laws" of the United States. In order to state a claim u n d e r 42 U.S.C. § 1983, a plaintiff must allege that each defendant acted under color of state law a n d that he or she violated a right secured by the Constitution. West v. Atkins, 487 U.S. 42, 108 S . Ct. 2250, 101 L. Ed. 2d 40 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). The deprivation must be intentional; mere negligence will not suffice to state a claim for d e p riv a tio n of a constitutional right under § 1983. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 6 6 2 , 88 L. Ed. 2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 6 7 7 (1986). Dr. Kharod is a private physician who was not employed by the ADC. In Montano v. H e d g e p e th , 120 F.3d 844 (8th Cir. 1997), the Eighth Circuit set forth the analysis to be applied in determining whether state action exists for purposes of § 1983. Specifically, the court said: In ascertaining the presence of state action, we must examine the record to d e t e rm in e whether "the conduct allegedly causing the deprivation of a federal righ t [is] fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 9 2 2 , 937, 102 S. Ct. 2744, 2753, 73 L. Ed. 2d 482 (1982). Resolving this q u e s tio n entails a journey down a particularly fact-bound path, see id. at 939, 102 S . Ct. at 2754-55, but the Supreme Court has identified two legal touchstones to p ro v id e guidance along the way. To begin with, there can be no "fair attribution" u n le s s the alleged constitutional violation was "caused by the exercise of some righ t or privilege created by the State or by a rule of conduct imposed by the State o r by a person for whom the State is responsible." Id. at 937, 102 S. Ct. at 2753. F u rth e rm o re , "the party charged with the deprivation must be a person who may fa irl y be said to be a state actor. This may be because he is a state official, b e c a u s e he has acted together with or has obtained significant aid from state o ffic ia ls , or because his conduct is otherwise chargeable to the State." Id.; see -3 -

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a ls o Roudybush v. Zabel, 813 F.2d 173, 176-77 (8th Cir.1987) (repeating two part te s t). M o n ta n o , 120 F.3d at 848. In this case, Wray has alleged only that he was treated at the Jones Eye Clinic by a private p h ys ic ia n . There is no allegation that the treatment was rendered pursuant to a contract between th e doctor, or the Jones Eye Clinic, and the ADC. Applying the functional approach adopted by th e Eighth Circuit in Montano, the court believes a private physician treating a detainee at a fa c ility not associated with the prison and utilizing his independent medical judgment is not a n s w e ra b le to the state and does not act under color of state law for purposes of § 1983. See e.g., K o u lk in a v. City of New York, 559 F. Supp. 2d 300, 320 (S.D.N.Y. 2008)(private physician not s ta te actor when he merely provided treatment in accordance with his professional medical ju d gm e n t and was not under a state contract). Next, the claims against Correctional Medical Services (CMS) are subject to dismissal. By order entered on June 16, 2009 (Doc. 3), Wray was advised that CMS could not be held liable fo r the actions of its employees under a theory of respondeat superior. See e.g., Burke v. North D a k o ta Dept. of Corr. & Rehab., 294 F.3d 1043, 1044 (8th Cir. 2002). Instead, Wray was a d v is e d that CMS could be held liable only if "there was a policy, custom, or official action that in flic te d an actionable injury." Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). Wray w a s directed to file an amended complaint identifying any such policy, custom, or official action o n the part of CMS (Doc. 3). The amended complaint (Doc. 6) does not list CMS as a defendant a n d does not mention any policy, custom, or official action on CMS's part. F in a lly, the claims against Dr. Blackmon arose following Wray's transfer to the Cummins U n it of the ADC on July 7, 2008. The Cummins Unit is located in Grady, Arkansas. Grady is -4 -

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lo c a te d in Lincoln County. Lincoln County is within the Pine Bluff Division of the Eastern D is tric t of Arkansas. All actions taken by Dr. Blackmon occurred in the Eastern District of A rk a n s a s . All services provided by Dr. Blackmon, his records, and any health care personnel in v o lv e d in assisting him with Wray's care are located within the Eastern District of Arkansas. The claims against him should therefore be dismissed from this action. I I I . Conclusion F o r the reasons stated, I recommend that the following claims be dismissed for failure to s ta te a claim upon which relief may be granted: (1) the claims against Dr. Kharod and the Jones E ye Institute; and (2) the claims against Correctional Medical Services (CMS). 28 U.S.C. § 1 9 1 5 A (b )(1 ). I further recommend that the claims against Dr. Blackmon be dismissed and p la in tiff be instructed to file to file a separate lawsuit in the Eastern District of Arkansas asserting th e s e claims. Alternatively, I recommend the claims against Dr. Blackmon be severed, a separate c iv il action be opened, and that action be transferred to the Eastern District of Arkansas, Pine B lu ff Division. B y separate order, the complaint will be served on the remaining defendants. W r a y has ten days from receipt of the report and recommendation in which to file w r itte n objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections m a y result in waiver of the right to appeal questions of fact. Wray is reminded that o b je c tio n s must be both timely and specific to trigger de novo review by the district court. D A T E D this 16th day of November 2009. /s/ J.

Marschewski

HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE -5 -

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