Sandifer v. Tanner et al

Filing 13

ORDER AND REASONS ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS 6 . Signed by Judge Ivan L.R. Lemelle.(ijg)(NEF: MJ Shushan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT E. SANDIFER

CIVIL ACTION

VERSUS

CASE NO. 14-2992

ROBERT C. TANNER, ET AL.

SECTION B (1)

ORDER AND REASONS

Plaintiff,
Judge’s

Robert

Report

and

E.

Sandifer

objects

Recommendation

to

the

recommending

Magistrate

dismissal

of

Plaintiff’s 42 U.S.C. § 1983 petition for failure to state a
claim

upon

which

independently
applicable

relief

can

considered
law,

the

the

be

granted.

The

complaint,

the

Magistrate

Judge's

Court,

having

record,

the

Report

and

Recommendation, and the untimely objections to the Magistrate
Judge's

Report

and

Recommendation,

hereby

approves

the

Magistrate Judge's Report and Recommendation and adopts it as
its

opinion

herein.

IT

IS

ORDERED

that

the

findings

of

the

Magistrate Judge be AFFIRMED and Petitioner’s 42 U.S.C. § 1983
petition be DISMISSED WITH PREJUDICE.
I.

PROCEDURAL HISTORY

Plaintiff, Robert E. Sandifer, a state prisoner, filed this
civil

action

defendants:

pursuant

Warden

to

Robert

42
C.

U.S.C.
Tanner;

§

1983.

Assistant

He

names

Warden

as

Wayne
1

Cook; Dr. Casey McVea.1 On January 23, 2015, the Magistrate Judge
issued

a

Report

and

Recommendation,

recommending

that

the

complaint be dismissed with prejudice as “frivolous and/or for
failing

to

state

a

claim

on

which

relief

may

be

granted.”2

Plaintiff objects.
I.

FACTUAL ALLEGATIONS

In his lawsuit, plaintiff claims that he has been denied
adequate medical care.
13,

2013,

plaintiff

Petitioner alleges as follows: On August
consulted

Dr.

McVea,

the

prison

doctor,

concerning a rash. After conducting an examination, Dr. McVea
diagnosed plaintiff as having an allergic reaction to an unknown
substance and prescribed a topical cream. When that cream failed
to

resolve

different

plaintiff’s
cream.

condition,

Although

Dr.

plaintiff

McVea
requested

prescribed
to

see

a
a

specialist Dr. McVea refused.
Plaintiff later sent a letter of complaint to Assistant
Warden Cook. On September 23, 2014, Cook responded, stating:
I have received your letter of complaint that you have
made several sick calls about your rash, and it has
not improved. You stated that you have had blood work
done as well as other tests, and you are requesting
that you be allowed to see a specialist. I checked and
you are scheduled to see Dr. McVea tomorrow. He is the
Medical authority at RCC and is competent and
1

Rec. Doc. No. 1 at 15. Although plaintiff refers to “Dr. Soil” throughout the complaint, plaintiff has not listed this
person as a “Defendant.”
2
Rec. Doc. No. 6.

2

compassionate. Hopefully he will be able to find a
solution to your problem. Only Dr. McVea is able to
make a specialist referral. I am sorry that I cannot
provide you with a more favorable response, but
perhaps your visit tomorrow will find a solution for
your discomfort.3

Plaintiff then sent a letter to Warden Tanner. On September
29, 2014, Cook responded stating:
Your letter to Warden Tanner regarding your medical
problem has been forwarded to me for a response. Your
complaint is that your condition has not improved since
your visit with Dr. McVea. You stated that you have not
received the results of various tests that have been
conducted. You indicated that you are also requesting
that you be allowed to see a specialist. Neither Warden
Tanner nor I are medical doctors. Dr. McVea is the
Medical
Authority
at
RCC
and
is
competent
and
compassionate. Hopefully, he will be able to find a
solution to your problem. He alone is able to make a
specialist referral. If you are continuing to experience
a problem with a rash, you will need to make another sick
call. I am sorry that I cannot provide you with a more
favorable response.4

Plaintiff

next

filed

a

formal

administrative

grievance.

However, prior to receiving a response, he again saw Dr. McVea
on October 1, 2014. At that visit, Dr. McVea agreed to schedule
a dermatology consultation.
On

October

14,

2014,

Warden

Tanner

denied

plaintiff’s

administrative grievance, stating:

3
4

Rec. Doc. No. 1 at 24.
Rec. Doc. No. 1 at 25.

3

Response to requested dated, received in this office
9/10/2014.
Your
complaint
has
been
reviewed
and
investigated. A review of your medical record has also been
conducted.
According to your medical record, you made a sick call on
July 15, 2014, complaining of having a rash under your
arms, chest, and hands. When Dr. Casey McVea, Health Care
Authority, reviewed this health care encounter, he ordered
that you be scheduled a routine appointment to see him.
This appointment was scheduled for September 24, 2014.
However, because of Dr. McVea attending a conference, this
appointment was rescheduled for October 1, 2014. During
your appointment on October 1, 2014, Dr. McVea prescribed
Benadryl three times a day and Dove soap. Dr. McVea also
made a referral for you to be seen in the Dermatology
Clinic. Once we receive a confirmed appointment, you will
be transported accordingly.
No further relief is warranted for this complaint. Your
request for remedy has been denied.5

Plaintiff
However,
Louisiana

that

then
appeal

Department

appealed

the

denial

was

denied

by

the

of

Public

Safety

of

his

grievance.

Headquarters
and

of

the

Corrections

on

November 25, 2014. That denial stated:
Response to Request Dated
Office on 10/23/2014:

10/14/2014,

Received

in

this

Your request for an Administrative Review of ARP #RCC-2014490 has been received. A qualified member of the
Headquarters staff has reviewed your request in order to
render a fair and impartial response. Your statement has
been considered as well as your medical records. The
medical staff is well aware of your medical condition and
has adequate information upon which to past a determination
of your medical concerns and the treatment necessary. As
stated in the first step response and which is supported by
your medical records, a treatment plan has been given for
your medical concerns and when the medical staff is
5

Rec. Doc. No. 1 at 7.

4

informed of your appointment date and time, you will be
transported accordingly. Medical opinion is controlling.
The medical care you have received and continue to receive
is deemed adequate. No further investigation will be
conducted as this issue has been clearly addressed in the
first step response.
Therefore, your request for relief is denied.6

However, by the time that appeal was denied, plaintiff had
already been allowed to consult a specialist. Specifically, on
October 7, 2014, plaintiff participated in a tele-med conference
with

a

dermatologist

who

prescribed

an

oral

medication.

Unfortunately, plaintiff alleges that the oral medication also
did not work, and his problem remains unresolved.7
In order to conduct the screening mandated by federal law,
the Magistrate Judge obtained and reviewed certified copies of
plaintiff’s
foregoing

records.8

medical

information

and

Those

show

that

records

corroborated

plaintiff

was

the

ultimately

diagnosed as having Tinea Versicolor, a fungal infection of the
skin. Over the course of his treatment he was prescribed various
medications

and

antihistamine),
Temovate

other

products,

Diflucan

ointment

(a

(an

topical

including
oral

Benadryl

antifungal

corticosteroid),

(an

oral

medication),
Kenalog

cream

(another topical corticosteroid), Selenium Sulfide shampoo, and
Dove soap.
6

Rec. Doc. No. 1 at 8.
Rec. Doc. No. 1 at 12.
8
Rec. Doc. No. 6 at 4; Rec. Doc. No. 8.
7

5

II.

LAW AND ANALYSIS
a. Standard of Review

Federal Rule of Civil Procedure 72 requires that the Court
conduct a de novo review of the plaintiff’s Objections to the
Report and Recommendation, the proposed findings, conclusions
and

recommendations.

plaintiff’s

The

complaint

Court

“under

must

also

less

stringent

the

construe

the

standards

applicable to pro se litigations.” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983); Gallegos v. Slidell Police Dept., No. 076636, 2008WL1794170 (E.D. La. April 18, 2008).
b. Plaintiff’s Objection is Untimely
The first issue that must be resolved is whether plaintiff
submitted his objections to the Magistrate Judge’s Report and
Recommendation

in

Recommendation

the

objections
preserve

thereto

the

right

a

timely

had
to

to

be

any

In

Judge

Magistrate

manner.

made

filed

further

his

Report

and

that

any

clear

within

fourteen

judicial

review.

days

to

Because

plaintiff was served on January 23, 2015, his objection was due
on

February

6,

2015.

Under

the

“prison

mailbox

rule,”

an

inmate’s pleading is deemed to have been filed on the day it was
handed over to prison authorities for mailing. Stoot v. Cain,
570

F.3d

669,

671

(5th

Cir.

2009)(per

curiam);

Cousin

v.

Lensing, 310 F.3d 843, 847 (5th Cir. 2002).
6

If the application is received the day after the expiration
date, there is a rebuttable presumption that the petition was
filed timely. Mead v. Cain, 243 F. App’x 874 (5th Cir. 2007). In
a case where the presumption is not applicable, the timeliness
is determined by the postmark on the envelope by the United
States Postal Service. Id. Here, the presumption does not apply
as

the

pleading

was

received

more

than

one

day

after

the

expiration date.
In this case, applying the prison mailbox rule as stated in
Mead, plaintiff’s objections are untimely. On February 11, 2015,
plaintiff submitted for filing a letter to the Court, informing
that

he

was

having

difficulty

accessing

the

prison’s

law

library.9 However, this letter itself was untimely, and plaintiff
failed to otherwise (timely) move for an extension of time to
file an objection. Plaintiff’s objections were not postmarked
until

February

12,

2015,

six

days

late.10

Plaintiff

has

not

presented any evidence that he deposited the objection with the
prison authorities earlier than February 12, 2015. Thus, for the
purposes of his objection, this court must use February 12, 2015
postmark as the filing date, which makes plaintiff’s objection
untimely

in

violation

of

the

Magistrate

Judge’s

orders.

See

Mead, 243 F. App’x. at 874.
9

Rec. Doc. No. 9.
Fed. R. Civ. P. 72 provides a 14 day time limit for objecting to a magistrate’s Report and Recommendation.

10

7

c. The Magistrate Judge was Correct in Finding the
Plaintiff’s Complaint Fails to State a Claim Upon
which Relief can be Granted.
Even

if

this

court

considers

plaintiff’s

untimely

objection, the allegations as asserted fail to state a claim
upon

which

relief

can

be

granted,

thus

requiring

dismissal

pursuant to 18 U.S.C. §§ 1915A, 1915(e)(2). When a prisoner sues
an officer or employee of a governmental entity pursuant to 42
U.S.C. § 1983, the Court is obliged to evaluate the complaint
and dismiss it without service of process, if it is frivolous or
fails to state a claim upon which relief can be granted. 28
U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2); Ali v. Higgs, 892 F.2d
438, 440 (5th Cir. 1990). Federal law provides:
On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the
complaint, if the complaint(1)
(2)

is frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. §
1915A(b).

With regard to actions filed
as
the
instant
lawsuit,
Notwithstanding any filing
thereof, that may have been
dismiss the case at any time
that...the action or appeal(1)
(2)
(3)

in forma pauperis, such
federal
law
provides:
fee, or any portion
paid, the court shall
if the court determines

is frivolous or malicious;
fails to state a claim upon which relief may
be granted; or
seeks monetary damages against a defendant
who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
8

A claim is frivolous if it lacks an arguable basis in law
or in fact. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993);
see Denton v. Hernandez, 504 U.S. 25 (1992). A civil rights
complaint fails to state claim upon which relief can be granted
if it appears that no relief could be granted under any set of
facts that could be proven consistent with the allegations of
the complaint. Factual allegations must be enough to raise a
right to relief above the speculative level. In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(citation,
footnote, and quotation marks omitted). Of course, in making
this

determination,

the

Court

must

assume

that

all

of

the

plaintiff’s allegations are true.
As the Magistrate Judge noted:
The United States Supreme Court has explained:
A claim has facial plausibly when the plaintiff pleads
factual content that allows the court to draw the
reasonable inference that the defendant is liable for
the misconduct alleged...it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely
inconsistent with a defendant’s liability, it stops
short of the line between possibility and plausibility
of entitlement to relief.11

Claims against Warden Robert C. Tanner, Assistant Warden Wayne
Cook, Dr. McVea and “Dr. Soil”

11

Rec. Doc. No. 6 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

9

The

Magistrate

Judge

dismissed

the

claims

against

the

Warden Tanner and Assistant Warden Cook, reasoning as follows:
“They are not medical professionals, and they had no direct
involvement with plaintiff’s medical care. Although they hold
supervisory positions at the jail, supervisory officials cannot
be held vicariously liable for the actions of their subordinates
pursuant to 42 U.S.C. § 1983.”12 Thus, to the extent plaintiff
seeks to assert claims against Warden Tanner and Warden Cook for
the actions or inactions of Dr. McVea and/or “Dr. Soil,” the
claims cannot stand and must be dismissed.
On the underlying medical claim, the Magistrate Judge noted
that

a

prisoner’s

constitutional

right

to

medical

care

is

violated only if his “serious medical needs” have been met with
“deliberate indifference” on the part of penal authorities.13
Although the Magistrate Judge addressed this issue, plaintiff
here

objects

that

he

has

made

a

showing

of

deliberate

indifference to his medical needs on the part of the defendants.
A showing of deliberate indifference requires the prisoner
to submit evidence that prison 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.’” “’Deliberate indifference ‘is an extremely
high standard to meet.’”

12

Rec. Doc. No. 6 at 6 (citing e.g. Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); Oliver v. Scott, 276 F.3d 736,
742 (5th Cir. 2002)).
13
Rec. Doc. No. 6 at 7 (citing Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999)).

10

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)(emphasis
added).
The law and facts however, do not support plaintiff’s claim
of deliberate indifference. The Court first notes that a rash
may not be considered a “serious medical need” for the purposes
of constitutional law.
2014WL644321,

at

*8

See e.g. Guy v. Carter, No.

(E.D.

La.

Feb.

14,

2014).

13-5730,

Second,

all

complaints, grievances and requests by plaintiff were promptly
addressed and responded to by penal officials. “Medical records
of

sick

rebut

an

calls,

examinations,

inmate’s

diagnoses,

allegations

of

and

deliberate

medications

may

indifference.”

Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
Plaintiff does not claim defendants ignored his complaints,
refused to treat him, or intentionally treated him incorrectly.
Rather, plaintiff alleges neglect on the part of defendants.14
Plaintiff’s allegations of medical negligent undermine his claim
of

deliberate

disagrees

with

indifference.
the

manner

in

To

the

which

extent
in

his

that

plaintiff

complaints

were

addressed and/or with the overall medical treatment, “an inmate
has

no

constitutional

right

to

an

adequate

and

effective

grievance procedure or to have his complaints investigated and

14

Rec. Doc. No. 11 at 4.

11

resolved to his satisfaction.”15 To the extent plaintiff contends
that the treatment he received has failed to successfully cure
him, federal constitutional protections are not violated just
because

treatment

is

unsuccessful

or

because

despite treatment. Gobert, 463 F.3d at 346.

pain

persists

Further, as the

Magistrate Judge noted:
Moreover, 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. 07611, 2007 WL2007992, at *4
(E. D. La. July 5, 2007); Cerna v. Texas Tech
Mechanical Staff, No. 2:03-CV-0322, 2004WL 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, 2013).16

In

sum,

plaintiff’s

claim

for

deprivation

of

“adequate

medical care” is frivolous and lacks basis in law or fact. The
allegations

of

negligence

here

do

not

support

the

requisite

“deliberate indifference” to plaintiff’s constitutional right to
medical care. The Court agrees that there is no basis to second
guess the medical judgments at issue. Such judgments are better
left

to

the

expertise

of

medical

professionals.

Westlake

v.

15

Rec. Doc. No. 6 at 7 (citing Bonneville v. Basse, 536 Fed. App’x 502, 503 (5th Cir. 2013); Propes v. Mays, 169 Fed.
App’x 183, 184-85 (5th Cir. 2006); Geiger v. Jowers, 404 F. 3d 371, 373-74 (5th Cir. 2005))
16
Rec. Doc. No. 6 at 9.

12

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
reluctant

of

the

to

treatment,

second

guess

federal
medical

courts

are

generally

judgments

and

to

constitutionalize claims which sound in state tort law).
III.

CONCLUSION

Accordingly, and for the reasons enumerated above,
IT IS ORDERED that the findings of the Magistrate Judge be
AFFIRMED and Petitioner’s 42 U.S.C. § 1983 petition be DISMISSED
WITH PREJUDICE.

New Orleans, Louisiana, this 7th day of May, 2015.

____________________________
UNITED STATES DISTRICT JUDGE

13