Fox v. GEO et al
Filing
33
Memorandum Opinion and Order dismissing Plaintiff's Complaint as legally frivolous. Final Judgment shall be entered on this date in favor of all Defendants. Signed by Magistrate Judge Linda R. Anderson on 10/15/2013. (ACF)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
JAMES L. FOX
PLAINTIFF
VS.
CIVIL ACTION NO. 4:12CV26-LRA
THE GEO GROUP, ET AL
DEFENDANTS
MEMORANDUM OPINION AND ORDER
James L. Fox, pro se, [hereinafter “Plaintiff”] and Attorney Robert T. Bailey,
counsel for The GEO Group, Inc. [hereinafter “Defendant” or "GEO"], appeared before the
undersigned United States Magistrate Judge on the 18th day of October, 2012, at the
Federal Courthouse in Jackson, Mississippi, for an omnibus hearing. Defendants Sandra
Atwood and Sharp, nurses, and Dr. Fisher, all of whom were no longer employed by GEO
Group, have not been served with process. The Court scheduled this hearing for various
pretrial purposes, including a Spears hearing. The hearing was conducted in an attempt to
insure the just determination of this pro se prisoner litigation and to determine whether or
not Plaintiff's claims were supported by a factual or legal basis.
The Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) (as amended), applies to
prisoner proceedings in forma pauperis and provides that "the court shall dismiss the case at
any time if the court determines that . . .(B) the action or appeal -- (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief." Since Plaintiff was granted in
forma pauperis status, Section 1915(e)(2) applies to his case.
Fox was a state inmate incarcerated in the East Mississippi Correctional Facility
[EMCF] in Meridian, Mississippi, during the period of time covered by the Complaint. He
is now housed at the State Penitentiary in Parchman, Mississippi.
Plaintiff explained his claims under oath at the hearing. According to Plaintiff, he
has had an eye disease, keratoconus, for about seven years. Keratoconus is a condition in
which the normally round shape of the cornea is distorted and a cone-like bulge develops,
resulting in significant visual impairment. After he was housed at EMCF, GEO sent him to
an "outside clinic" for this eye disease. Now, Plaintiff wants to have surgery but the doctor
told him that it would not help. He has worried himself sick about his eyes and is afraid he
will lose his sight. These Defendants have made disrespectful remarks to him regarding his
sight. He does not really know if surgery will help but wants to try it. He believes that
Defendant Dr. Fisher is "holding back" and will not help him like he should. Dr. Fisher has
checked his eyes on three or four occasions but does not care about his eyes, according to
Plaintiff. He has prescribed medication for eye pain for Plaintiff.
Although Plaintiff's written complaint was lengthy, he summarized his claims by
testifying that he believes he needs eye surgery and that EMCF won't let him have the
surgery. His eyes were treated by various doctors while at EMCF, but they would not
provide the surgery; he is not satisfied with what the doctors tell him. Plaintiff confirmed
that EMCF did send him to "outside" doctors on multiple occasions. When he asked to
have the surgery, EMCF refused. Plaintiff filed in this case the written proceedings relating
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to the complaint he filed with the Administrative Remedy Program [ARP], and the Court
has considered these documents in rendering this opinion. Nurse Atwood wrote on March
3, 2008, that Plaintiff saw Dr. Butler in August 2007; Dr. Butler told him he was not a
candidate for surgery; Dr. Butler was the final authority as to this issue. The ARP response
also states that Plaintiff was scheduled to see Dr. Butler again on February 27, 2008, but
Plaintiff left without informing the medical personnel.
Plaintiff's ARP response dated December 22, 2011, stated that Plaintiff saw Dr.
Fisher on July 19, 2011, and again on August 16, 2011. The response confirms that he was
also seen by Dr. Moore on June 16, 2011, for eye drops. Neither party disputes the
accuracy of the information contained in the ARP proceedings.
Considering every assertion by Plaintiff as true, the Court still finds that he has failed
to state a constitutional claim or a claim upon which relief can be granted. Plaintiff's
allegations equal only contentions that these Defendants have been negligent in their
handling of his complaints regarding his eye care. 42 U.S.C. § 1983 has never been
interpreted to provide that simple negligence on the part of a prison official is a basis for a
constitutional violation. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon,
414 U.S. 344 (1986); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
The Eighth Amendment prohibition against cruel and unusual punishment forbids
deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble, 429
U.S. 97, 104 (1976). The Fifth Circuit Court of Appeals has clearly stated that
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"[u]nsuccessful medical treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference, nor does a prisoner's disagreement with his medical
treatment, absent exceptional circumstances." Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006), citing Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993). In this case,
Plaintiff only charges that Defendants refuse to get him the eye surgery that he claims he
needs. Yet Plaintiff acknowledges that he is not even certain that surgery is the right
treatment, and he acknowledges that he has been seen by physicians for his eyes on many
occasions. He is also no longer housed at EMCF, and any care he receives at this time is no
longer provided by these Defendants. The circumstances in this case are not so exceptional
so as to constitute "deliberate indifference" to Plaintiff's serious medical needs and do not
rise to a constitutional violation.
In Gobert, the Court of Appeals for the Fifth Circuit summarized the case law
regarding the standard of "deliberate indifference" to the medical concerns of prisoners in
part as follows:
... A prison official acts with deliberate indifference "only if
[(A)] he knows that inmates face a substantial risk of serious
bodily harm and [(B)] he disregards that risk by failing to take
reasonable measures to abate it." Unsuccessful medical
treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference, nor does a prisoner's
disagreement with his medical treatment, absent exceptional
circumstances. "Furthermore, the decision whether to provide
additional treatment 'is a classic example of a matter for medical
judgment.'" A showing of deliberate indifference requires the
prisoner to submit evidence that prison officials "'refused to
treat him, ignored his complaints, intentionally treated him
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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.'"
463 F.3d at 346 (citations and footnotes omitted).
Plaintiff's own testimony, as well as the pleadings, confirm that he was provided
with conservative, non-surgical treatment for his eyes while he was housed at EMCF. The
Court finds that this regular treatment prevents any finding that Plaintiff was being
mistreated or that any Defendant acted with subjective deliberate indifference. Case law
from the Fifth Circuit confirms that Plaintiff is not entitled to his choice of treatments.
Gobert , 463 F.3d at 346; Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992). The Court
cannot second-guess the medical decisions made by prison personnel in such circumstances.
The Court finds that Fox cannot maintain his action under the controlling law
governing actions brought under 42 U.S.C. § 1983. Under the case of Cay v. Estelle, 789
F.2d 318 (5th Cir. 1986), as modified by Neitzke v. Williams, 490 U.S. 319 (1989) and
Denton v. Hernandez, 504 U.S. 25 (1992), the claims of the Plaintiff must have an arguable
basis in law or fact; otherwise, dismissal under 28 U.S.C. § 1915 is appropriate. Given
these undisputed facts, and based on the totality of the circumstances, the Court concludes
as a matter of law that these Defendants did not violate the United States Constitution
regarding Plaintiff's medical care for his eye disease. Fox’s claims have no basis either in
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law or in fact and, therefore, are frivolous1 and fail to state a claim on which relief may be
granted.
For these reasons, IT IS HEREBY ORDERED that this action is dismissed with
prejudice pursuant to 28 U.S.C. §1915(e)(2)(B)(i) and(ii). Final Judgment in favor of all
Defendants shall be entered on this date.
SO ORDERED, this the 15th day of October 2013.
/s/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE
1
“Frivolous” in this context is a legal term of art that indicates that, although the Plaintiff’s
allegations are serious to him, and may, indeed, be based on a tangible injury, the theory on which
his claims are based are “indisputably meritless” in a legal sense. See Allison v. Kyle, 66 F.3d 71,
73 (5th Cir. 1995).
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