Beck v. Lamour

Filing 4

ORDER OF DISMISSAL dismissing Complaint without prejudice; denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 11/10/2011. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES BECK,
Plaintiff,
vs.

Case No.

2:11-cv-646-FtM-29DNF

DR. JACQUES LAMOUR,
Defendant.
________________________________
ORDER OF DISMISSAL
I.
This matter comes before the Court upon review of the Civil
Rights Complaint (Doc. #1, Complaint), filed on November 8, 2011.
Plaintiff, who is proceeding pro se, initiated this action as a
civil detainee1 at the Florida Civil Commitment Center (hereinafter
“FCCC”).2

Plaintiff seeks leave to proceed as a pauper.

Doc. #2.

Despite Plaintiff’s non-prisoner status, the Complaint remains
subject to initial review under 28 U.S.C. § 1915(e)(2)(B)(i)(iii).3

Pursuant to 28 U.S.C. § 1915, the Court is required to

1

Plaintiff does not specify whether he has had his civil
commitment trial. Nevertheless, Plaintiff is civilly detained at
the FCCC.
2

Plaintiff did not accompany the filing of his Complaint with
a motion to proceed in forma pauperis and the Court will not direct
Plaintiff to do so because the action is subject to dismissal.
3

The Court recognizes that certain portions of the Prison
Litigation Reform Act are not applicable to Plaintiff as a civil
detainee. Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).
The United States Court of Appeals for the Eleventh Circuit
(continued...)

review Plaintiff’s Complaint to determine whether the complaint is
frivolous, malicious or fails to state a claim.
1915(e)(2)(B)(i)-(iii).

See 28 U.S.C. §

In essence, § 1915(e)(2) is a screening

process, to be applied sua sponte and at any time during the
proceedings.

The Court, nonetheless, must read Plaintiff’s pro se

allegations in a liberal fashion.

Hughes v. Lott, 350 F.3d 1157,

1160 (11th Cir. 2003)
A complaint filed in forma pauperis which fails to state a
claim under

Federal

Rule

automatically frivolous.
(1989).

of

Civil Procedure 12(b)(6)

is

not

Neitzke v. Williams, 490 U.S. 319, 328

Rather, the test for granting a § 1915 dismissal is

whether the claim lacks arguable merit either in law or fact.

Id.

at 325; Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309
(11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001).
Additionally, § 1915 requires dismissal when the legal theories
advanced are “indisputably meritless,” Nietzke, 490 U.S. at 327;
when the claims rely on factual allegations which are "clearly
baseless” Denton v. Hernandez, 504 U.S. 25, 32 (1992); or, when it

3

(...continued)

previously found that a district court did not error by dismissing
a Complaint filed by a civil detainee for failure to state a claim
under the in forma pauperis statute, 28 U.S.C. Section 1915
(e)(2)(B). Id. at 1260. Other Courts have also found that section
1915(e)(2)(B) is not limited to prisoners, but applies to all
persons proceeding in forma pauperis. See Calhoun v. Stahl, 254
F.3d 845 (9th Cir. 2001).
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appears that the plaintiff has little or no chance of success.
Bilal, 251 F.3d at 1349.
Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws.”

To state a

claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)
defendants deprived him of a right secured under the United States
Constitution or federal law, and (2) such deprivation occurred
under color of state law.

Arrington v. Cobb County, 139 F.3d 865,

872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1288 (11th Cir. 2001).
and

establish

an

In addition, a plaintiff must allege

affirmative

causal

connection

between

defendant’s conduct and the constitutional deprivation.

the

Marsh v.

Butler County, Ala., 268 F.3d 1014, 1059 (11th Cir. 2001); Swint v.
City of Wadley, Ala., 51 F.3d 988, 999 (11th Cir. 1995); Tittle v.
Jefferson County Comm'n, 10 F.3d 1535, 1541 n.1 (11th Cir. 1994).
II.
The Complaint names Jacques Lamour, the medical doctor at the
FCCC, as the sole Defendant.

Complaint at 1.

Plaintiff alleges

that Defendant Lamour violated his rights under the Eighth and
Fourteenth Amendments of the United States Constitution and under
Article 1, section 2, of the Florida Constitution, by showing
deliberate indifference to his serious medical needs, specifically
a herniated disc in his neck.

Id. at 2-3.

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The

gravamen

of

the

Complaint

is

that

Plaintiff

went

approximately five months with “no treatment” for his herniated
disc in his neck.

Id. at 4.

Specifically, Plaintiff claims that

on or about March 1, 2010, he began experiencing “pain in the
neck.”

Id. at 3.

Plaintiff alleges his “subjective complaints

about pain in the neck” were not taken seriously.
According

to

the

Complaint,

the

FCCC

medical

Id. ¶ 4

department

saw

Plainitff on August 2, August 7, August 17, August 20, August 23,
and October 9, 2010.

Further, on an unspecified date, Defendant

Lamour took an x-ray of Plaintiff.

Id.

¶4, ¶6.

Plaintiff also

acknowledges that he saw a specialist for his neck condition on
August 15, 2010.

Id. at 4, ¶5.

Additionally, Plaintiff was given

an MRI of his neck on September 13, 2010, and an MRI of his lower
back on September 15, 2010.

Id. at 5, ¶8.

Plaintiff underwent

surgery for the herniated disc in his neck on September 23, 2010.
Id. at 5, ¶9.

As relief, Plaintiff seeks $500,000 in “general

damages” and $500,000 in “punitive damages.”

Id. at 6.

III.
The

Court

finds

that

Complaint

is

subject

to

dismissal

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim.

Even

liberally

construing

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the

facts

alleged

in

the

Complaint, the Court finds the action fails to state a cruel and
unusual punishment claim under the United States Constitution.4
“[D]eliberate indifference to [the] serious medical needs of
[a] prisoner [ ] constitutes the unnecessary and wanton infliction
of pain . . . proscribed by the Eighth Amendment.”

Farrow v. West,

320 F.3d 1235, 1243 (11th Cir. 2003)(quoting Estelle v. Gamble, 429
U.S. 97, 104 (1976)); Campbell v. Sikes, 169 F.3d 1353 (11th Cir.
1999). In order to state a claim for a violation under the Eighth
Amendment, a plaintiff must allege “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical
needs.”

Estelle, 429 U.S. at 106.

plaintiff

to

satisfy

an

objective

This showing requires a
and

a

subjective

inquiry.

Farrow, 320 F.3d at 1243 (citing Taylor v. Adams, 221 F.3d 1254,
1257 (11th Cir. 2000)).
A plaintiff must first show that he had an “objectively
serious

medical

need.”

Id.

“[A]

serious

medical

need

is

considered ‘one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.’”

Farrow

v. West, 320 F.3d 1235, 1243 (11th Cir. 2003) (citing Hill v.
Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).
In either situation, “the medical need must be ‘one that, if left

4

Because the Court finds the federal claims will not proceed,
the Court will not exercise pendent jurisdiction over Plaintiff’s
claim arising under the Florida Constitution.
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unattended, pos[es] a substantial risk of serious harm.”

Id.

(citing Taylor, 221 F.3d at 1258)(alteration in original); see also
Andujar v. Rodriquez, 486 F.3d 1199, 1203 (11th Cir. 2007) (finding
that

a

condition

affecting

ability

involving
to

walk,

more
and

than

pain

“superficial”

that

caused

wounds,

crying

was

objectively, sufficiently serious), cert. denied sub. nom, 128
S.Ct. 385 (2007).
Second, a plaintiff must establish that a defendant acted with
“deliberate indifference” by showing: (1) subjective knowledge of
a risk of serious harm (i.e., both awareness of facts from which
the inference could be drawn that a substantial risk of serious
harm exists and the actual drawing of the inference); (2) disregard
of that risk; and (3) conduct that is more than gross negligence.
Bozeman

v.

Orum,

422

F.3d

1265,

1272

(11th

Cir.

2005).

Inadvertence or mere negligence in failing to provide adequate
medical care does not rise to a constitutional violation.
320 F.3d at 1243.

Farrow,

Rather, “medical treatment violates the Eighth

Amendment only when it is ‘so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness.’”

Harris v. Thigpen, 941 F.2d 1495, 1505

(11th Cir. 1991) (quoting Rogers v. Evans, 792 F.2d 1052, 1058
(11th Cir. 1986)).
The Supreme Court has stated that decisions such as whether an
x-ray,

additional

diagnostic

techniques,

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or

other

forms

of

treatment are indicated are “[c]lassic example[s] of matters for
medical judgment.”

Estelle, 429 U.S. at 107. The course of

treatment chosen by a medical official would appear to be such “a
classic example of a matter for medical judgement.”

Id.

A

complete denial of readily available treatment for a serious
medical condition obviously constitutes deliberate indifference.
Harris v. Coweta County, 21 F.3d 388, 393 (11th Cir. 1994).
However, no constitutional violation exists where an inmate and a
prison medical official merely disagree as to the proper course of
medical treatment.

Harris, 941 F.2d at 1505.

Even where medical care is ultimately provided, a prison
official

may

nonetheless

act

with

deliberate

indifference

by

delaying the treatment of serious medical needs, even for a period
of hours, though the reason for the delay and the nature of the
medical need is relevant in determining what type of delay is
constitutionally intolerable.

See id. at 393-94; Brown v. Hughes,

894 F.2d 1533, 1537-39 (11th Cir. 1990). Plaintiff seeking to show
that

a

delay

in

medical

treatment

amounted

to

deliberate

indifference “must place verifying medical evidence in the record
to

establish

the

detrimental effect

treatment to succeed.”

of

the delay

in

medical

Hill v. Dekalb Reg'l Youth Pet. Ctr., 40

F.3d 1176, 1188 (11th Cir. 1994), abrogated in part on other
grounds by Hope v. Pelzer, 536 U.S. 730, 739 n. 9 (2002)); see also
Farrow v. West, 320 F.3d 1235, 1244 n. 12 (11th Cir. 2003) (“In

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Hope v. Pelzer, 536 U.S. 730 (2002) . . . the Supreme Court
criticized part of the qualified immunity analysis in Hill, but not
Hill's analysis of what constitutes a serious medical need of
prisoners.”).
The Court accepts as true all of the Plaintiff’s allegations
in the Complaint. Plaintiff claims he began experiencing pain from
a herniated disk in his neck in March 2010.

The Court assumes

arguendo that a herniated disk in the neck constitutes a serious
medical need.

However, beyond Plaintiff’s conclusory allegations

that Defendant Lamour was deliberately indifferent to Plaintiff’s
serious medical need, the Complaint does not contain any facts
supporting a finding that Lamour possessed the requisite knowledge,
or acted with the requisite culpability.
In fact, the Complaint alleges that only six months from the
date Plaintiff initially complained of experiencing pain in his
neck, Plaintiff underwent surgery for a herniated disk in his neck.
Plaintiff acknowledges that Defendant Lamour initially ordered an
x-ray for him at an unspecified time.

The medical department at

the FCCC saw Plaintiff weekly during the months of August and
September. Plaintiff acknowledges that he was transported and seen
by a medical specialist in early September and given two MRI’s in
mid-September,

before

he

underwent

surgery.

To

the

extent

Plaintiff attempts to attribute liability on Defendant Lamour based
on the five-month delay from his initial complaints of pain to the

-8-

date

he

saw

detrimental

a

“specialist,”

effect

of

Plaintiff

the

delay

in

has

not

medical

alleged

any

treatment.

Consequently, Plaintiff has not alleged any facts indicating that
Defendant Lamour was aware of a substantial risk of serious harm to
Plaintiff and that Lamour actually drew that inference. Therefore,
the Complaint must be dismissed for failure to state claim under §
1915(e)(2)(b)(ii).
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff’s Complaint is DISMISSED, without prejudice,

pursuant to § 1915(e)(2)(B)(ii).
2.

Plaintiff’s motion for leave to proceed in forma pauperis

(Doc. #2) is DENIED.
3.

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly, and close this case.
DONE AND ORDERED at Fort Myers, Florida, on this
of November, 2011.

SA: alj
Copies: All Parties of Record

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