Cleveland v. Gusman et al
ORDER and REASONS re: 17 Motion for Summary Judgment. ORDERED that defendants' 17 Motion for Summary Judgment is GRANTED and that plaintiff's federal civil rights claims are DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Daniel E. Knowles, III on 5/4/15. (plh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVIS CLEVELAND SMITH
MARLIN GUSMAN, ET AL.
ORDER AND REASONS
Plaintiff, Davis Cleveland Smith, filed the instant civil action pursuant to 42 U.S.C. § 1983
against Orleans Parish Sheriff Marlin Gusman, Earl Weaver, Chief Bordelon, Melvin Howard, Mike
Tidwell, Robert Martin, Charles Reed, Mary Goodwin, Phil Barre, Dr. Samuel Gore, Carlos Louque,
and Bonita Pittman. In this lawsuit, plaintiff, who is no longer incarcerated, claimed that he was
subjected to unconstitutional conditions while confined within the Orleans Parish Prison system.
The parties consented to the jurisdiction of the undersigned United States Magistrate Judge.1
The defendants have filed a motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.2 Plaintiff has filed no opposition to that motion.3
Rec. Doc. 14.
Rec. Doc. 17.
The motion for summary judgment was noticed for submission on April 22, 2015. Rec. Doc.
17-3. This Court's Local Rules provide: "Each party opposing a motion must file and serve a
memorandum in opposition to the motion with citations of authorities no later than eight days before
the noticed submission date." Local Rule 7.5.
In reviewing a motion for summary judgment, the Court may grant the motion when no
genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). There is no "genuine issue" when the record taken as a whole could not lead a
rational trier of fact to find for the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
"Procedurally, the party moving for summary judgment bears the initial burden of informing
the district court of the basis for its motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact." Taita Chemical Co., Ltd. v.
Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and brackets omitted).
The party opposing summary judgment must then "go beyond the pleadings and by [his] own
affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate
'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (quoting Fed. R. Civ. P. 56); see also Provident Life and Accident Ins. Co. v. Goel,
274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to search the record for evidence to
support a party's opposition to summary judgment; rather, "[t]he party opposing summary judgment
is required to identify specific evidence in the record and to articulate the precise manner in which
the evidence supports his or her claim." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998). Conclusory statements, speculation, and unsubstantiated assertions are not
competent summary judgment evidence and will not suffice to defeat a properly supported motion
for summary judgment. Id.; Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir.
Having carefully reviewed the unopposed motion, the Court finds that the defendants are
entitled to judgment as a matter of law for the following reasons.
As noted, plaintiff alleges that, while he was incarcerated within the Orleans Parish Prison
system as a pretrial detainee,4 he was subjected to unconstitutional conditions of confinement. It is
clear that "the Fourteenth Amendment prohibits the imposition of conditions of confinement on
pretrial detainees that constitute punishment." Collins v. Ainsworth, 382 F.3d 529, 540 (5th Cir.
2004) (internal quotation marks omitted). Nevertheless, the jurisprudence recognizes that the
judiciary is ill equipped to micro-manage a jail's day-to-day operations, and federal courts are
therefore loath to intervene when detainees complain of mere inconveniences. Further, such judicial
restraint is appropriate because the federal constitution simply is not concerned with a de minimis
level of imposition on pretrial detainees. Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979); Ruiz v.
El Paso Processing Center, 299 Fed. App'x 369, 371 (5th Cir. 2008). As explained below, it is
apparent that plaintiff's numerous complaints regarding the conditions of his confinement concerned
inconveniences which did not constitute "punishment" or otherwise rise to the level of constitutional
In his complaint, plaintiff provided a laundry list of grievances. For example, he argued that
the jail was generally in poor condition, alleging that tiles were missing from the bathroom floor,
a light fixture on the tier was "out and hanging from the ceiling," and camera wiring was exposed.5
However, he has presented no evidence whatsoever that those conditions resulted from a punitive
Rec. Doc. 3, p. 3.
Rec. Doc. 3, p. 12.
motive, rather than from mere negligence. Further, the conditions themselves, while lamentable,
were not inherently unconstitutional. See, e.g., Lee v. Hennigan, 98 Fed. App'x 286 (5th Cir. 2004)
(rejecting a claim that defendants violated an inmates "constitutional rights by maintaining unsafe
shower facilities," noting that problem did not result from a punitive intent and that "[t]he fact that
a detention interfered with a prisoner's desire to live as comfortably as possible does not convert the
conditions of confinement into punishment").
Plaintiff also complained that the jail was unclean.6 Obviously, there is a point beyond
which a prison's conditions are so unsanitary as to render them unconstitutional. See, e.g., Gates v.
Cook, 376 F.3d 323, 338 (5th Cir. 2004) (confinement in "'extremely filthy' [cells] with crusted fecal
matter, urine, dried ejaculate, peeling and chipping paint, and old food particles on the walls" was
unconstitutional). That said, it must be remembered that, although prisons should be reasonably
clean, "[t]he Constitution does not require that prisons be completely sanitized or as clean or free
from potential hazards as one's home might be." McAllister v. Strain, Civ. Action No. 09-2823,
2009 WL 5178316, at *3 (E.D. La. Dec. 23, 2009); accord Talib v. Gilley, 138 F.3d 211, 215 (5th
Cir. 1998) ("[T]he Constitution does not mandate prisons with comfortable surroundings or
commodious conditions."). Again, while the conditions described by plaintiff may have been
unpleasant, they were not so egregious as to be unconstitutional.
Plaintiff next claimed that there was mold and rust.7 However, the jurisprudence has
repeatedly held that the mere fact that mold is present in a jail does not render an inmate's
Rec. Doc. 3, p. 12.
Rec. Doc. 3, p. 13.
confinement unconstitutional. See, e.g., Eaton v. Magee, Civ. Action No. 2:10-cv-112, 2012 WL
2459398, at *5 (S.D. Miss. June 27, 2012) ("Plaintiff's claim that the bathroom and shower area are
unsanitary and contain black mold fails to rise to the level of a constitutional violation."); Barnett
v. Shaw, No. 3:11-CV-0399, 2011 WL 2200610, at *2 (N.D. Tex. May 18, 2011) (allegation of
"excessive amount of black mold in the showers and sinks" was insufficient to raise a claim for
constitutional violation), adopted, 2011 WL 2214383 (N.D. Tex. June 7, 2011); Reynolds v.
Newcomer, Civ. Action No. 09-1077, 2010 WL 234896, at *10 (W.D. La. Jan. 19, 2010) (plaintiff's
complaints of "the presence of black mold in living areas, eating areas, and shower areas" were
found to "rise to no more than a de minimis level of imposition with which the Constitution is not
concerned" (quotation marks omitted)); McCarty v. McGee, No. 2:06cv113, 2008 WL 341643, at
*3 (S.D. Miss. Feb. 5, 2008) ("Plaintiff's claim that the shower he was forced to share with other
inmates is polluted and covered in mold and fungus, causing him to catch athlete's foot and
ringworm, fails to rise to the level of a constitutional violation."). Similarly, the presence of rust in
a jail does not rise to the level of a constitutional violation or otherwise warrant relief in a federal
civil rights action. See, e.g., Maddox v. Gusman, Civ. Action No. 14-2435, 2015 WL 1274081, at
*3 (E.D. La. Mar. 19, 2015); Simmons v. Gusman, Civ. Action No. 14-1907, 2015 WL 151113, at
*4 (E.D. La. Jan. 12, 2015); Penn v. Jones, Civ. Action No. 13-0830, 2014 WL 31351, at *2 (W.D.
La. Jan. 2, 2014).
Plaintiff also complained that "gnats [were] numerous and an ongoing problem."8 However,
the mere presence of pests, such as gnats, likewise does not amount to a constitutional violation.
Rec. Doc. 3, p. 12.
See, e.g., Simmons, 2015 WL 151113, at *4; Clark v. Gusman, Civ. Action No. 11-2673, 2012 WL
1825306, at *5 (E.D. La. Mar. 29, 2012), adopted, 2012 WL 1825302 (E.D. La. May 18, 2012);
Murray v. Edwards County Sheriff's Department, 453 F. Supp. 2d 1280, 1292 (D. Kan. 2006), aff'd,
248 Fed. App'x 993 (10th Cir. 2007); Smith v. Barber, 316 F. Supp. 2d 992, 1028-29 (D. Kan. 2004).
Plaintiff next complained of various plumbing problems. For example, he alleged that not
all showers were operational, that not all toilets worked properly, and that inmates were without
access to hot water for a period of two weeks.9 While such plumbing problems are undoubtedly
annoying, they are not actionable under federal law because the Constitution does not protect
inmates from those types of "life's occasional inconveniences." Holloway v. Gunnell, 685 F.2d 150,
156 (5th Cir. 1982); Maddox, 2015 WL 1274081, at *4; Scott v. Gusman, Civ. Action No. 10-2706,
2011 WL 666851, at *7 (E.D. La. Feb. 14, 2011); Rue v. Gusman, Civ. Action No. 09-6480, 2010
WL 1930936, at *5 (E.D. La. May 11, 2010). Plaintiff's claim concerning the lack of hot water for
a two-week period similarly fails because inmates simply have no constitutional right to hot water.
Mann v. Smith, 796 F.2d 79, 85 (5th Cir. 1986); Johnson v. Desoto County Sheriff Department, Civ.
Action No. 13cv43, 2013 WL 3944284, at *2 (N.D. Miss. July 31, 2013).
Plaintiff also complained that the ceiling leaked.10 However, such "leaks, while unpleasant,
are not unconstitutional." Bean v. Pittman, Civ. Action No. 14-2210, 2015 WL 350284, at *4 (E.D.
La. Jan. 26, 2015); accord Davies v. Fuselier, No. 00-30554, 2001 WL 360709, at *3 (5th Cir. Mar.
15, 2001); Simmons v. Gusman, Civ Action No. 14-1907, 2015 WL 151113, at *5 (E.D. La. Jan.
Rec. Doc. 3, p. 12.
Rec. Doc. 3, p. 12.
12, 2015); McAllister v. Strain, Civ. Action No. 09-2824, 2009 WL 5088752 (E.D. La. Dec. 23,
Plaintiff next complained that the air conditioning system remained on even during the
winter.11 It cannot be doubted that exposure to "extreme cold" is actionable in some circumstances.
See, e.g., Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 1999). Here, however, there is no evidence
that the air conditioning subjected plaintiff to "extreme cold" or that he suffered from any type
disability which made him particularly vulnerable to harm as a result of uncomfortably cool
conditions. Accordingly, his allegations fall far short of what is required to state a cognizable §
Plaintiff also complained that inmates were denied "yard privileges for at least two
months."12 Even if that is true, it does not rise to the level of a constitutional violation. Even severe
restrictions on or complete denials of outdoor recreation have been found to be constitutional. See,
e.g., Chavis v. Fairman, No. 92-C-7490, 1994 WL 55719, at *5 (N.D. Ill. Feb. 22, 1994)
("Generally, even dramatic restrictions on outdoor exercise do not violate the Eighth Amendment
(or due process, where pretrial detainees are at issue) so long as prisoners have ample opportunity
to enjoy indoor activity."), aff'd, 51 F.3d 275 (7th Cir. 1995); Rue v. Gusman, Civ. Action No. 096480, 2010 WL 1930936, at *9 (E.D. La. May 11, 2010); Broussard v. Phelps, Civil Action No. 862126, 1987 WL 18153, at *3 (E.D. La. Oct. 6, 1987) (no constitutional deprivation shown where
prisoner was allowed outdoor recreation only twice in a seventeen month period in light of the fact
Rec. Doc. 3, p. 12.
Rec. Doc. 3, p. 13.
that he was allowed to leave his cell for an hour each day and cell was large enough for indoor
Plaintiff next claimed that inmates were "housed in a mixture of different offenses and
classifications and mental health problems."13 While such a practice is not optimal, it also is not per
se unconstitutional. For example, as United States Magistrate Judge Joseph C. Wilkinson, Jr., in an
opinion subsequently adopted by United States District Judge Carl Barbier, explained with respect
to an analogous claim that pretrial detainees were being housed with convicted prisoners:
In Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981), the Fifth Circuit stated that
[t]he confinement of pretrial detainees indiscriminately with
convicted persons is unconstitutional unless such a practice is
'reasonably related to the institution's interest in maintaining jail
security,' or physical facilities do not permit their separation. Of
course, if a particular pretrial detainee has a long record of prior
convictions or is likely to be violent, imposition of greater security
measures is warranted .... Nonetheless, pretrial detainees have a due
process right to be considered individually to the extent security and
space requirements permit.
Id. at 1374 (quoting Bell v. Wolfish, 441 U.S. 520, 531 (1979)) (additional citations
omitted) (emphasis added). Thus, the Fifth Circuit in Jones recognized that the
housing of pretrial detainees with convicted inmates may raise constitutional
concerns, but only if their classification together is handled indiscriminately without
justification, Pembroke v. Wood County, 981 F.2d 225, 228 (5th Cir. 1993), but it
also recognized that some circumstances will permit the housing of pretrial detainees
with convicted inmates.
Significantly, the classification of inmates is an administrative function of the
prison. Jones, 636 F.2d at 1376. Courts accord great deference to prison officials'
administrative decisions and will not interfere with legitimate administration without
a constitutional violation. Bell, 441 U.S. at 547-48; Smith v. Bingham, 914 F.2d
740, 742 (5th Cir. 1990). "Inmates have a federal right to due process at prison
classification ... only if state law contains 'substantive predicates' limiting the prison
Rec. Doc. 3, p. 13.
administrators' discretion to classify, assign, and punish inmates." Ricker v. Leapley,
25 F.3d 1406, 1409 (8th Cir. 1994); accord Woods v. Edwards, 51 F.3d 577, 582 (5th
Cir. 1995) (citing Hewitt v. Helms, 459 U.S. 460, 469-70 (1983)); Canterino v.
Wilson, 869 F.2d 948, 953 (6th Cir. 1989) (citing Hewitt, 459 U.S. at 472).
"Classification of inmates in Louisiana is a duty of the [jailer] and an inmate has no
right to a particular classification under state law." Woods, 51 F.3d at 581-82
Thus, "[i]nmates have no protectable property or liberty interest in custodial
classification. The classification of prisoners is a matter within the discretion of
prison officials. Absent an abuse of discretion, federal courts are loathe to interfere
with custodial classifications established by prison officials." Whitley v. Hunt, 158
F.3d 882, 889 (5th Cir. 1998) (citations omitted), abrogated on other grounds by
Booth v. Churner, 532 U.S. 732, 735 (2001); accord Jones v. Roach, No. 05-60530,
2006 WL 2474746, at *1 (5th Cir. Aug. 28, 2006); Wilkerson v. Stalder, 329 F.3d
431, 436 (5th Cir. 2003).
The Fifth Circuit's decision in Jones v. Diamond specifically states that
limitations on physical facilities might justify housing pretrial detainees with
convicted inmates, that pretrial detainees have a right to be considered individually
only to the extent that security and space requirements permit and that imposition of
greater security measures is warranted if an inmate has a long record of prior
convictions or is likely to be violent. Jones, 636 F.2d. at 1374.
McKay v. Terrebonne Parish Sheriff's Office, Civ. Action No. 06-5570, 2007 WL 163059, at *4-5
(E.D. La. Jan. 17, 2007) (footnote omitted); accord Bland v. Terrebonne Parish Criminal Justice
Complex, Civ. Action No. 09-4407, 2009 WL 3486449, at *4-5 (E.D. La. Oct. 23, 2009). In the
instant case, plaintiff does not allege that the housing decisions within the Orleans Parish Prison
system were made indiscriminately without justification or that the decisions were not reasonably
related to the institution's interest in maintaining jail security. Accordingly, his conclusory and
unsupported claim must be dismissed.
Plaintiff also claimed that the jail was "always overcrowded and inmates sleep on the
floor."14 However, the mere fact that inmates are confined in overcrowded conditions does not in
Rec. Doc. 3, p. 13.
and of itself amount to a constitutional deprivation. See, e.g., Rhodes v. Chapman, 452 U.S. 337,
347-50 (1981); Castillo v. Cameron County, Texas, 238 F.3d 339, 354 (5th Cir. 2001) ("[A]lthough
overcrowding may give rise to unconstitutional conditions, overcrowding itself is not per se
unconstitutional."); Price v. New Orleans Parish Criminal Sheriff, Civ. Action No. 09-3573, 2009
WL 2139702, at *3 (E.D. La. July 13, 2009); Thompson v. Stalder, Civ. Action No. 06-659, 2008
WL 874138 (M.D. La. April 1, 2008) ("[T]he law is clear that the mere fact that an inmate may be
double-celled for a period of time does not, as a matter of law, state a claim of constitutional
dimension. It has been held that such a claim, without more, does not violate an inmate's
constitutional rights."); Kelly v. Gusman, Civ. Action No. 07-611, 2007 WL 2007992, at *3 (E.D.
La. July 5, 2007). Further, as to plaintiff's contention that inmates sleep on the floor, that allegation
is likewise insufficient to state a nonfrivolous claim. There is no allegation that inmates were
without mattresses, and requiring inmates to sleep on the floor with a mattress is permissible because
the Constitution does not require elevated beds. See Mann v. Smith, 796 F.2d 79, 85 (5th Cir.
1986); accord Sanders v. Kingston, 53 Fed. App'x 781, 783 (7th Cir. 2002); Finfrock v. Jordan, No.
95-3395, 1996 WL 726426, at *1 (7th Cir. Dec. 6, 1996); Hamm v. DeKalb County, 774 F.2d 1567,
1575 (11th Cir. 1985); McCarty v. McGee, Civ. Action No. 2:06cv113, 2008 WL 341643, at *3
(S.D. Miss. Feb. 5, 2008).
Plaintiff next complained that inmates were "denied basic grooming tools such as nail
clippers."15 As an initial matter, the Court notes that plaintiff has not alleged that nail clippers were
unavailable for purchase through the jail commissary. Further, in any event, a denial of nail clippers
Rec. Doc. 3, p. 13.
does rise to the level of a constitutional deprivation. See, e.g., Harris v. Fischer, No. 11 Civ. 6260,
2014 WL 3859242, at *27 (S.D.N.Y. Aug. 1, 2014); Harbridge v. Pasillas, No. 1:10-cv-00473, 2011
WL 130157, at *14-15 (E.D. Cal. Jan. 14, 2011), reconsideration granted in part on other grounds,
2012 WL 639476 (E.D. Cal. Feb. 24, 2012); Banks v. York, 515 F. Supp. 2d 89, 106 (D.D.C. 2007).
Plaintiff also complained that clothing and bedding was "hard to obtain" and in poor
condition.16 Obviously, "prison officials must ensure that inmates receive adequate ... clothing."
Farmer v. Brennan, 511 U.S. 825, 832 (1994). Similarly, officials are generally required to provide
necessary bedding, although it is not per se unconstitutional to deprive an inmate of bedding for a
limited period of time. See, e.g., McAllister v. Strain, Civ. Action No. 08-5174, 2009 WL 500560,
at *2-3 (E.D. La. Feb. 25, 2009). Here, however, plaintiff's allegations are insufficient to state a
nonfrivolous claim. For example, he does not allege that he personally was ever actually denied
clothing or bedding for any reason, much less for a punitive reason. And while the items provided
may not have been to his liking, that simply is not the test for constitutionality. Therefore, his bare
allegations challenging the general availability and acceptability of clothing and bedding fall far
short of what is required to state a deprivation of a constitutional magnitude.
Plaintiff next complained that the prison laundry sometimes lost items sent out for cleaning.
Even if that is true, a negligent loss of an inmate's clothing by prison officials is not cognizable in
a federal civil rights action if an adequate state remedy exists. Loftin v. Thomas, 681 F.2d 364, 365
(5th Cir. 1982). It is clear that "Louisiana provides an adequate tort postdeprivation remedy for
procedural due-process claims relating to negligent or intentional property loss claims by inmates."
Rec. Doc. 3, p. 15.
Gross v. Normand, 576 Fed. App'x 318, 320 (5th Cir. 2014), cert. denied, 135 S. Ct. 1498 (2015).
Therefore, even if plaintiff experienced such a loss, and even if the item lost was his personal
property (as opposed to jail property), any claim for that loss must be brought in the state courts.
In summary, the Court notes that it is not unsympathetic to plaintiff's various complaints
concerning the conditions of his confinement. However, for the reasons explained herein, the issue
before the Court is not whether the conditions of plaintiff's confinement were unpleasant or
uncomfortable – rather, it is only whether the conditions were unconstitutional. Although the
conditions alleged in this case leave much to be desired, they simply were not unconstitutional.
Accordingly, these claims concerning the general conditions of confinement must be dismissed.
Lastly, plaintiff also claimed that he was denied adequate medical care while incarcerated.
Specifically, he alleged that he received no medical care for an injury to his wrist on August 5, 2013.
He further alleged that he waited five months for a dental visit.17
Obviously, all inmates, regardless of whether they are pretrial detainees or convicted
prisoners, have a right to medical care in jail. However, that right is a limited one which is violated
only if the inmates' "serious medical needs" are met with "deliberate indifference" on the part of
penal authorities. See Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir. 2001);
Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999).
The United States Fifth Circuit Court of Appeals has explained that "[a] serious medical need
is one for which treatment has been recommended or for which the need is so apparent that even
laymen would recognize that care is required." Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir.
Rec. Doc. 3, p. 14.
2006). Here, there is no evidence that either plaintiff's injured wrist or dental problems rose to the
level of a "serious medical need."
Further, in any event, even if plaintiff could demonstrate that one or both of his conditions
constituted a "serious medical need," he cannot show the "deliberate indifference" necessary to
support his claim. Regarding the "deliberate indifference" requirement, the United States Fifth
Circuit Court of Appeals has explained:
Deliberate indifference is an extremely high standard to meet. It is
indisputable that an incorrect diagnosis by prison medical personnel does not suffice
to state a claim for deliberate indifference. Rather, the plaintiff must show that
officials refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs. Furthermore, the decision whether to
provide additional treatment is a classic example of a matter for medical judgment.
And, the failure to alleviate a significant risk that the official should have perceived,
but did not is insufficient to show deliberate indifference.
Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quotation
marks, brackets, and citations omitted). "Deliberate indifference encompasses only unnecessary and
wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997); see also Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
In support of their motion, the defendants have provided the Court with a certified copy of
plaintiff's mail records from the jail. Those records include the following documentation concerning
plaintiff's injured wrist and dental problems:
An x-ray was taken of plaintiff's wrist. The result was normal, showing no
Rec. Doc. 17-6, p. 30.
Plaintiff was seen by a nurse practitioner for complaints of continuing wrist
pain. The nurse practitioner noted that there was "no swelling/redness," that
there was "good ROM," and that "x-ray neg for fracture." Nevertheless, she
prescribed ibuprofen as needed.19
Plaintiff submitted a sick call request stating: "I put a dental sick call in back
in July or August and never received any feedback. My head still hurts from
a few teeth that are giving me problems, and I would still like to have them
checked out. Thank you." The evaluating nurse noted that there was "i
visible swelling or deformity to cheeks" but referred plaintiff to a dentist.20
Plaintiff was seen by a dentist who extracted one tooth and prescribed
ibuprofen and amoxicillin.21
Plaintiff submitted a sick call request for another dental visit. He was again
referred to the dentist.22
Plaintiff was seen by a dentist who extracted one tooth and prescribed
ibuprofen, amoxicillin, and Ultram.23
Rec. Doc. 17-6, p. 22.
Rec. Doc. 17-6, p. 6.
Rec. Doc. 17-6, p. 33.
Rec. Doc. 17-6, p. 4.
Rec. Doc. 17-6, p. 31.
It is clear that "[m]edical records of sick calls, examinations, diagnoses, and medications may
rebut an inmate's allegations of deliberate indifference." Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1995). That is certainly the case here.
Clearly, plaintiff's complaint regarding his injured wrist was not ignored. On the contrary,
his wrist was x-rayed within two days of the purported injury. Although that x-ray was normal and
showed no fracture, he was nevertheless prescribed pain medication as needed to minimize any
In light of the x-ray results, it is unclear what additional medical care plaintiff believes was
necessary. However, even if he believes that more should have been done for him, that is of no
moment. Absent exceptional circumstances, an inmate's disagreement with his medical treatment
simply does not constitute deliberate indifference. Gobert, 463 F.3d at 346. And, as already noted,
"the question of whether ... additional ... forms of treatment is indicated is a classic example of a
matter for medical judgment." Estelle v. Gamble, 429 U.S. 97, 107 (1976). Generally, such matters
of professional medical judgment are better left to the expertise of medical personnel rather than to
the legal expertise of judges. Federal courts are therefore reluctant to second-guess such medical
decisions in federal civil rights actions. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)
("Where a prisoner has received some medical attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second guess medical judgments and to
constitutionalize claims which sound in state tort law."); Castro v. Louisiana, Civ. Action No.
08-4248, 2008 WL 5169401, at *4 (E.D. La. Dec. 8, 2008) ("[M]edical judgments are not to be
lightly second-guessed in a federal civil rights action."). There is no basis whatsoever to engage in
such second-guessing here.
The foregoing conclusion also is not changed by the fact that plaintiff's medical care "may
not have been the best money could buy." Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992); accord
Gobert, 463 F.3d at 349 ("[D]eliberate indifference exists wholly independent of an optimal standard
of care."); McMahon v. Beard, 583 F.2d 172, 174 (5th Cir. 1978). In fact, the federal constitution
does not require even that an inmate's medical care be free from negligence or medical malpractice.
Hall v. Thomas, 190 F.3d 693, 697-98 (5th Cir. 1999); see also Kelly v. Gusman, Civ. Action No.
07-611, 2007 WL 2007992, at *4 (E.D. La. July 5, 2007); Cerna v. Texas Tech Medical Staff, No.
2:03-CV-0322, 2004 WL 42602, at *2 (N.D. Tex. Jan. 7, 2004). Rather, claims of negligence or
medical malpractice present issues of state law for state courts, not federal constitutional issues for
a federal court. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Coleman v. Terrebonne Parish
Criminal Justice Complex, Civ. Action No. 13-4325, 2013 WL 6004051, at *4 (E.D. La. Nov. 13,
In summary, the determinative issue before the Court is not whether the medical treatment
plaintiff received for his injured wrist was subpar in some respect, whether his medical problem
persisted despite treatment, or whether he was dissatisfied with his care; rather, it is only whether
he had a serious medical need which was met with deliberate indifference.
He did not.
Accordingly, his medical claim concerning his injured wrist must be dismissed.
Plaintiff's claim concerning his dental care fares no better. Although he alleged that he first
submitted a sick call request for dental care in July of 2013, his records contain no such request.
Rather, although a dental problem was noted during his general health assessment on July 9, 2013,
the notes from that assessment, which was signed by plaintiff, stated: "pt will initiate dental s/c
request."24 However, he did not bother to submit such a sick call request for dental care until more
than three months later on October 31, 2013. After submitting that request, he was then seen by the
dentist approximately six weeks later on December 11, 2013. Even if plaintiff considers that to have
been an unwarranted delay, mere delay is insufficient to create § 1983 liability unless substantial
harm resulted. Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993); Bennett v. Louisiana ex
rel. Department of Public Safety and Corrections, No. 07-31189, 2009 WL 102080, at *4 (5th Cir.
Jan. 15, 2009); Davis v. Kuykendall, 242 Fed. App'x 961, 962-63 (5th Cir. 2007). Here, plaintiff
has not alleged, much less submitted evidence to prove, that substantial harm resulted from the
delay. Therefore, his claim concerning his dental care must likewise be dismissed.
For all of the foregoing reasons, the Court finds that the defendants are entitled to judgment
as a matter of law. Accordingly,
IT IS ORDERED that the defendants' unopposed motion for summary judgment, Rec. Doc.
17, is GRANTED and that plaintiff's federal civil rights claims are DISMISSED WITH
New Orleans, Louisiana, this fourth day of May, 2015.
DANIEL E. KNOWLES, III
UNITED STATES MAGISTRATE JUDGE
Rec. Doc. 17-6, pp. 8-9.
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