Sneed v. Michaels et al

Filing 14

REPORT AND RECOMMENDATION re 1 Complaint and 10 Amended Complaint filed by Bobby R Sneed, Sr.: IT IS RECOMMENDED that Plaintiff's civil rights claims regarding medical care, legal mail and due process should be DISMISSED WITH PREJUDICE as frivolous under 28 U.S.C. 1915(e) and his expungement claim should be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. 1915(e) until such time as the Heck conditions are met. Signed by Magistrate Judge Mark Hornsby on 1/21/09. (crt,Cassanova, M)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA S H R EV E P O RT DIVISION B O B B Y R. SNEED, SR. VERSUS V E N E T I A MICHAELS, ET AL. C I V I L ACTION NO. 06-383-P J U D G E WALTER M A G I S T R A T E JUDGE HORNSBY

R E P O RT AND RECOMMENDATION In accordance with the standing order of this court, this matter was referred to the u n d e r s ig n e d Magistrate Judge for review, report and recommendation. S T A T E M E N T OF CLAIM Bef o re the Court is a civil rights complaints filed in forma pauperis by pro se plaintiff B o b b y R. Sneed, Sr. ("Plaintiff"), pursuant to 42 U.S.C. § 1983. This complaint was r e c e iv e d and filed in this Court on March 3, 2006.1 Plaintiff is currently incarcerated at the F o r c h t Wade Correctional Center, but complains his civil rights were violated while i n c a r ce r a t ed at the David Wade Correctional Center in Homer, Louisiana. He names Ve netia Michaels, Richard Stalder, Sgt. Lonnie Hay, Jerry Goodwin, Angie Huff, LSU M e d i c a l Center, David Wade Correctional Center medical department, Dr. Singson, Master Sgt. Hoof, Master Sgt. West, Nurse Betty Enis, Sue Odom, Earl Benson, Lt. Williams, Sgt.

The Court will not address any claims raised by Plaintiff that occurred after this complaint was filed on March 3, 2006. If Plaintiff wishes to pursue these claims, he should file them in a new and separate complaint. These claims would be barred for failure to exhaust prior to filing this complaint.
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L y l e s , Sgt. Green, Sgt. Greer, Nurse Martin, Sgt. Emerson, Cpt. Robinson, Lt. Solomon, Cp t. Turner, Lt. Col. Hollenhead, K. Major, and E.A. Conway medical staff as defendants. Plainti f f alleges a wide array of complaints. He claims he suffered a stroke which c a u s e d partial loss of function of his right arm, impaired vision, slurred speech, headaches, i m p a ir e d brain function, leg weakness, short term memory loss, severe stress and mental a n g u i s h because the prison medial staff deliberately refused to treat his obvious stroke sympto ms with emergency medical treatment. He claims that on March 3, 2005, he made a n emergency sick call because he was experiencing blurred vision, dizziness, and a h e a d a c h e on his left side. He claims M aster Sgt. Hoof refused to allow him an emergency s i c k call and made him wait with the inmates making routine sick calls. He claims this r e f u s a l significantly eroded the time for administering clot busting drugs which would have l i m it e d the effects of the stroke. He claims the nurse checked his vitals and found them to b e normal. He claims that approximately one hour and 20 minutes later, he was examined b y Dr. Singson. He complains that Dr. Singson gave him no medical treatment and i n s tr u c t e d him to return to his dorm. Plaintiff admits, however, that Dr. Singson placed him o n five days of observation and scheduled him for a call out on March 8, 2005. He claims h e returned to his dorm and laid in his bed because he was too sick to work. P l a i n ti f f claims that while at lunch his health deteriorated and he dropped his food t r a y on the floor. He claims he does not remember returning to his dorm. He claims his son l a t er took him to the infirmary. He claims he was unable to see so his son made an

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e m e r g e n c y sick call and advised the staff that his father was having a stroke. He claims N u r s e Sue Odom attended to him and immediately took him to an examination room. He c la im s she ordered that he be transferred to the hospital. He claims Dr. Singson was present b u t did not examine or treat him. He claims he was placed in a wheelchair and transported to the north security office where he was placed in restraints. He claims he was then t r a n sp o r t e d to the north visitation facility and left there unattended to wait for the prison transport van to return from another hospital trip. He claims he waited approximately 4 5 minutes for the transport van. P l a i n ti f f claims that when the prison transport van returned, the security officers took i t to be refueled and checked before taking him to the hospital. He complains that he was n o t transported to the hospital by ambulance. He further complains that he was not given c l o t busting medication. He claims the trip to the hospital took approximately one and a half h o u r s . He claims that during the trip, Master Sgt. West and Sgt. Hay ignored his repeated r e q u e s ts for help and did not take him to the hospital located in Homer, Louisiana. P l a i n ti f f claims that after arriving at E.A. Conway Hospital, he had to wait with other i n m a t e s approximately 45 minutes before he was seen. He claims he was examined by s e v e r a l medical students. He claims that after he was finally examined by a resident doctor, h e was admitted to the hospital. He claims he was not treated for his condition until he was i n a hospital bed. He claims more than ten hours passed between his first emergency sick

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c a l l and when he received treatment. He claims that several days later he was transported t o LSU Medical Center for further testing and evaluation. P l a i n ti f f claims that on March 15, 2005, he was transported to the prison infirmary. H e claims that after half a day in the infirmary, he was discharged to his dorm. He c o m p l a i n s that no special provisions were made to accommodate his condition. Plaintiff adm its however, that he was issued a duty status effective April 1, 2005 to October 1, 2005, w h i c h limited his duties to the scope of his capabilities and allowed him use of a wheelchair. P l a i n ti f f claims that on April 11, 2005, he was transported to LSU M e d i c a l Center a n d the doctor prescribed medication for him. He complains that he was not given the p r e s c ri b e d medication. He claims that when he was transported to LSU Medical Center, he g o t wet and had to remain wet the entire day. He complains that when he returned to the p r i s o n , he had problems getting his medication. He claims that on April 20, 2005, he saw Dr. Hearn and she ordered speech therapy for him. He claims that on April 25, 2005, he was transp orted to E.A. Conway Hospital. P l a i n ti f f claims that on May 16, 2005, Sgt. Greer questioned him because his brother w a s pushing his wheelchair. He claims Sgt. Greer asked him why he needed his brother to p u s h him when he had just coached a basketball game. P l a i n ti f f claims that on May 17, 2005, Sgt. Green and Sgt. Lyles questioned him b e c a u s e his brother was pushing him in his wheelchair. He claims that after being q u e s t io n e d for a long period of time, he became ill and had to make an emergency sick call.

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H e claims he was treated by Pam Austin who informed Lt. Williams of his condition. He claim s he also made a mental health request. P l a i n ti f f claims that on May 20, 2005, Lt. Benson would not allow him to receive his legal mail. He complains he had to wait until the night shift gave him his legal mail. P l a i n ti f f claims that on June 4, 2005, he was seen by Dr. Hearn. He claims Dr. Hearn told him that she was going to check on locating a speech therapist for him. He claims he r e q u e s te d an ankle "bracklet" and still has not received one. He claims that on June 17, 2 0 0 5 , he was transported to LSU M e d i c a l Center and saw a doctor and a speech therapist. H e claims that on June 18, 2005, he was transported to Forcht Wade Correctional Center for a dental appointment. P l a i n ti f f claims that on August 6, 2005, he awoke choking and unable to breathe. He c l ai m s his brother and son carried him to the infirmary for treatment. He claims he was unab le to speak. He claims the nurse pressed on his chest and caused him great pain. He c la im s the nurse checked his vital signs. He claims she then pulled his file and called D r . Hearn. He claims he was given liquid Tylenol and ordered to return to his dorm. P l a i n ti f f claims that on August 31, 2005, he was denied therapy by Ms. Ward and N u r s e Mary. Plaintiff claims that on November 25, 2005, Nurse Odom discontinued his h a n d therapy. He claims that during the holiday season, no nurses were on duty and S g t . Pugh dispensed the medication.

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P l a i n ti f f claims he has received no rehabilitative therapy for his condition and he is still ill. He claims he has only seen a speech therapist and a brain surgeon once. He further c la im s he has not received the speech therapy prescribed for him by the medical staff at E.A. C o n w a y Hospital. He does admit that the prison staff is attempting to make arrangements with a speech therapist at Louisiana Tech University because E.A. Conway and LSU M ed ica l Center does not provide speech therapy. P l a i n ti f f claims that on October 31, 2006, he was issued a rule violation report for theft. On November 8, 2005, he was convicted and sentenced to 24 weeks loss of incentive w a g e s and six weeks loss of yard and recreation. P l a i n ti f f claims that on November 6, 2005, he was issued a rule violation report for m a l i n g e ri n g by Nurse Martin. He claims Lt. Solomon signed the rule violation report even t h o u g h he knew that Lt. Hickman had suggested that he make the sick call. On November 8, 2 0 0 5 , he was convicted and sentenced to 24 weeks loss of incentive wages and $8.00 resti t u t io n . On December 8, 2008, the Warden affirmed the conviction and sanction but exp ung ed the restitution portion of his sentence. Plaintiff complains that Lt. Col. Hollenhead and K. Major imposed disciplinary sa nc tio ns which interfered with his recovery. Pla int i f f claims Captain Robinson placed him on lock down because an envelope was f o u n d in his cell block with his name on it. He claims Captain Robinson released him when h e discovered he could not write.

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A s relief, Plaintiff seeks a declaratory judgment, injunctive relief, expungement of a disciplinary conviction, compensatory and punitive damages, and any other relief to which h e is entitled. F o r the following reasons, Plaintiff's civil rights should be dismissed. L A W AND ANALYSIS M e d ic al Care Claims P l a i n ti f f filed these claims pursuant to 42 U.S.C. § 1983 of the Civil Rights Act w h i c h provides redress for persons "deprived of any rights, privileges or immunities" by a p e r s o n acting under color of state law. The particular right protected under 42 U.S.C. § 1 9 8 3 in matters which concern alleged denial of or inadequate medical care is the Eighth Am endm ent prohibition against cruel and unusual punishment. T h e lack of proper inmate medical care rises to the level of a constitutional d e p r i v a ti o n under the Eighth Amendment of the United States Constitution only if the e v i d e n c e shows that the prison officials showed "deliberate indifference to serious medical nee ds." Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976); See also Farmer v. B r e n n a n , 511 U.S. 825, 835, 114 S. Ct. 1970, 1978 (1994). It is only deliberate

i n d i f fe r e n c e , "an unnecessary and wanton infliction of pain" or an act "repugnant to the c o n s c i e n ce of mankind," that constitutes conduct proscribed by the Eighth Amendment. Estelle , 429 U.S. at 105-06, 97 S. Ct. at 292; See also Gregg v. Georgia, 428 U.S. 153, 96 S . Ct. 2909 (1976). Further, the plaintiff must establish that the defendants possessed a

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culpa ble state of mind. See Wilson v. Seiter, 501 U.S. 294, 297-302, 111 S. Ct. 2321, 2 3 2 3 - 2 7 (1991); Farmer, 511 U.S. at 838-47, 114 S. Ct. at 1979-84. In addition,

d i s a g re e m e n t with the diagnostic measures or methods of treatment afforded by prison offic ials does not state a claim for Eighth Amendment indifference to medical needs. See N o r t o n v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Finally, a prisoner must also allege a n injury that is more than de minimis, although it need not be significant. See Gomez v. C h a n d l e r, 163 F.3d 921, 924 (5th Cir. 1999). See also Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997). T h e record does not contain facts which sufficiently show that the named Defendants h a v e been deliberately indifferent to any serious medical needs. It has been consistently h e l d that an inmate who has been examined by medical personnel fails to set forth a valid s h o w i n g of deliberate indifference to serious medical needs. Norton v. Dimazana, 122 F.2d 2 8 6 , 292 (5th Cir. 1997); Callaway v. Smith County, 991 F. Supp. 801, 809 (E.D. Tex. 1998); Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); Mayweather v. Foti, 958 F.2d 91 ( 5 th Cir. 1992). Mere negligence, neglect or medical malpractice does not amount to a d e n i a l of a constitutional right. See Daniels v. Williams, 474 U.S. 327, 329-30, 106 S. Ct. 6 6 2 , 664 (1986); Estelle, 429 U.S. at 106, 97 S. Ct. at 292; Lewis v. Woods, 848 F.2d 649, 6 5 1 (5th Cir. 1988). Furthermore, disagreement with methods of treatment afforded by p r i s o n officials does not state a claim for Eighth Amendment indifference to medical needs. S e e Norton, 122 F.3d at 292.

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A s shown below, the record demonstrates that Defendants were attentive to the me dica l needs of Plaintiff. March 3, 2005 Emergency Sick Call ­ Plaintiff admits that he was examined by the n u r s e and she checked his vital signs which were found to be normal. He further admits that h e was examined by Dr. Singson and that Dr. Singson placed him on observation for five days and scheduled him for call out on March 8, 2005. Condition Deteriorated at Lunch ­ Plaintiff admits Nurse Sue Odom attended to him and immediately took him into an examination room. He admits that she ordered that he be transported to E.A. Conway Hospital. Prison Transport Van to E.A. Conway ­ Nurse Sue Odom made the decision to h a v e Plaintiff transported to E. A. Conway Hospital by the prison transport van. D i s a g r e e m e n t with the methods of treatment afforded by prison officials does not state a c l a i m for Eighth Amendment indifference to medical needs. F o r t y - f iv e Minute W a it at Hospital ­ Plaintiff does not allege any harm was c a u s e d by the 45 minute wait with the other prisoners. He admits that he was examined by m e d i c a l students and a resident doctor, then admitted to the hospital and treated. L a c k of Special Accommodations Following Discharge From Infirmary ­ P l a i n ti f f admits he was issued a duty status which was effective April 1, 2005 to October 1, 2 0 0 5 which limited his duties to the scope of his capabilities and allowed him use of a whe elchair. Furthermore, he does not allege which special provisions were needed to

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acco mm odate his condition or that he suffered any harm because he was not granted these pro visio ns. Difficulty Getting Medication after LSU ­ Plaintiff has failed to demonstrate that De fend ants acted with deliberate indifference to his serious medical needs when they failed to give him his medication immediately upon returning to the prison or even for a few days. B e c o m i n g Ill After Questioning re W heelc hair ­ Plaintiff admits that he was t r e a te d by Pam Austin. F a i lu re to Receive Ankle "Bracklet" ­ Disagreement with the methods of treatment a f f o r d e d by prison officials does not state a claim for Eighth Amendment indifference to m e d i c a l needs. Ch o ck in g /U n a b le to Breathe ­ Plaintiff admits that the nurse attempted to render a i d , checked his vitals and called Dr. Hearn. He further admits that she gave him liquid Tylen ol. Denial of Therapy ­ Disagreement with the methods of treatment afforded by prison o f f i c i a l s does not state a claim for Eighth Amendment indifference to medical needs. N o Nurses on Duty During Holiday ­ Plaintiff admits that he received his me dica tion during this time. No Rehabilitative Therapy ­ Plaintiff admits that he was seen by a speech therapist a n d brain surgeon at least once. He further admits that the prison staff attempted to locate a speech therapist for him.

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A gain , the facts alleged by Plaintiff show that Defendants were attentive to Plaintiff's m e d i c a l needs. Plaintiff clearly disagrees with many aspects of his treatment, but

d i s a g re e m e n t with the methods of treatment afforded by prison officials does not state a claim for Eighth Amendment indifference to medical needs. Plaintiff's allegations, if a c c e p t e d as true, may amount to a state law claim for negligence, a tort. However, mere n e g l i g en c e , neglect or medical malpractice does not amount to a denial of a constitutional righ t. The fact that Plaintiff does not believe that his medical treatment was as good as it s h o u l d have been is not a cognizable complaint under the Civil Rights Act. See Spears v. M c C o t t e r, 766 F.2d 179, 181 (5th Cir. 1985). Prisoners are not constitutionally entitled to t h e best medical care that money can buy. See Mayweather v. Foti, 958 F.2d. 91 (5th Cir. 1992). Accordingly, these claims regarding the denial of medical care and inadequate m e d i c a l care should be dismissed with prejudice as frivolous. M ail Claim P l a i n ti f f claims that on May 20, 2005, Lt. Benson would not allow him to receive his l e g a l mail and he had to wait until the night shift to receive it. At the most, Plaintiff has a l l eg e d the mailroom delayed the delivery of his mail by a few hours. Delay in distributing p r i s o n er mail without a showing of harm does not support an actionable civil rights claim. R i c h ar d s o n v. McDonnell, 841 F.2d 120 (5 th Cir. 1988). Plaintiff has failed to allege any action able harm caused by the delay in receiving his mail. Accordingly, Plaintiff's mail c l a i m s should be dismissed with prejudice as frivolous.

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D u e Process Claims Plaintiff claims his November 8, 2005 disciplinary sentences interfered with his re co ve ry. He was sentenced to 24 weeks loss of incentive wages and six weeks loss of yard a n d recreation. Plaintiff also claims that after another incident he was placed in lock-down, b u t later released after the matter was investigated. To the extent Plaintiff contends he was pun ishe d without due process, these claims are not cognizable. In Sandin v. Connor, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the S u p re m e Court clarified when due process protections attach to the prison disciplinary process. The Supreme Court held that the Due Process Clause of the Fourteenth

A m e n d m e n t does not afford an inmate a protected liberty interest that would entitle the inma te to procedural protections in the disciplinary process when the maximum sanction the inma te could receive does not "present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest" and the duration of the prisoner's original s e n t e n c e is not affected. Id. 132 L.Ed.2d at 431. Under the guidance provided by Sandin, t h e Fifth Circuit has held that as a general rule, only sanctions which result in loss of good t im e credit or which otherwise directly and adversely affect release will implicate a cons titutionally protected liberty interest. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). Moreover, in commenting on Sandin, the Fifth Circuit noted that liberty interests w h i c h are protected by the Due Process Clause are generally limited to actions which affect

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t h e quantity of time rather than the quality of time served by a prisoner. Madison v. Parker, 1 0 4 F.3d 765, 767 (5th Cir. 1997) citing Sandin, 115 S.Ct. at 2297. P l a i n ti f f in the instant case does not allege that the disciplinary action affected the d u r a t io n of his sentence or that the disciplinary sentence was atypical of the prison enviro nm ent. To the contrary, Plaintiff's allegations concern the loss of incentive wages a n d yard and recreation and placement in lock down which are far from "extraordinary." This Court finds that under Sandin, Orellana and Madison, the loss of incentive wages and yard and recreation and placement in lock down do not constitute the type of atypical p u n i s h m e n t that presents a significant deprivation which would implicate due process c o n c e r n s . Accordingly, Plaintiff's claims that he was punished without due process of law a r e without merit and should be dismissed with prejudice as frivolous. Ex pun gem ent Claim P l a i n ti f f seeks expungement of a disciplinary conviction. Plaintiff does not give details about which disciplinary conviction he seeks to have expunged. This claim is barred b y Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372 (1994). According to H e c k , an inmate may not attack a prison disciplinary conviction2 in a civil rights action until h e demonstrates that the disciplinary conviction has been invalidated, reversed, expunged o r otherwise declared invalid through a collateral proceeding or a writ of habeas corpus. Id. In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 1589, 137 L.Ed.2d 906 (1997), the Supreme Court approved the application of the Heck doctrine to prison disciplinary proceedings.
2

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Plaintiff's disciplinary conviction has not been invalidated, reversed, expunged, or declared invalid as that is what he is asking this Court to do. Accordingly, Plaintiff's claim that his disciplinary conviction should be expunged should be dismissed with prejudice as frivolous u n d e r 28 U.S.C. § 1915(e) until such time as the Heck conditions are met. CONCLUSION B e c a u s e Plaintiff filed this proceeding in forma pauperis ("IFP"), if this Court finds Pl ain tif f's complaint to be frivolous, it may dismiss the complaint as such at any time, before o r after service of process, and before or after answers have been filed. See 28 U.S.C. § 1915(e); Green v. M cK askle , 788 F.2d 1116, 1119 (5th Cir. 1986); Spears v. McCotter, 7 6 6 F.2d 179, 181 (5th Cir. 1985). District courts are vested with extremely broad d i s c re t i o n in making a determination of whether an IFP proceeding is frivolous and may d i s m i s s a claim as frivolous if the IFP complaint lacks an arguable basis either in law or in fac t. See Hicks v. Garner, 69 F.3d 22 (5th Cir. 1995); Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993); Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989). A cc or di ng ly; I T IS RECOMM E N D E D that Plaintiff's civil rights claims regarding medical care, l e g a l mail and due process should be DISMISSED WITH PREJUDICE as frivolous under 2 8 U.S.C. § 1915(e) and his expungement claim should be DISMISSED WITH P R E J UD I C E pursuant to 28 U.S.C. § 1915(e) until such time as the Heck conditions are m e t.

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O B J E C T IO N S U n d e r the provisions of 28 U.S.C. § 636(b)(1)© and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this Report a n d Recommendation to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objection within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n s set forth above, within ten (10) days after being served with a copy shall b a r that party, except upon grounds of plain error, from attacking, on appeal, the proposed f a c t u a l findings and legal conclusions that were accepted by the district court and that were n o t objected to by the aforementioned party. See Douglas v. U.S.A.A., 79 F.3d 1415 (5th Cir . 1996) (en banc). THUS DONE AND SIGNED, in chambers, in Shreveport, Louisiana, on this 21 st d a y of January, 2009.

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