Brumley v. Livingston et al

Filing 29

MEMORANDUM OPINION and ORDER of Dismissal. This complaint is dismissed with prejudice and all pending motions are denied. Signed by Magistrate Judge Judith K. Guthrie on 8/7/10. (ljw, )

Brumley v. Livingston et al

Doc. 29

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS LU F K IN DIVISION

C LIF T O N BRUMLEY, #779894 VS. B R A D LIVINGSTON, ET AL.

§ § § C IV IL ACTION NO. 9:10cv27

M E M O R A N D U M OPINION AND O R D E R OF DISMISSAL P lain tiff Clifton Brumley, a prisoner confined at the Eastham Unit of the Texas prison system, p ro ceed in g pro se and in forma pauperis, filed the above-styled and numbered civil rights lawsuit p u rsu an t to 42 U.S.C. § 1983. The complaint was transferred to the undersigned with the consent of th e parties pursuant to 28 U.S.C. § 636(c). F acts of the Case T h e original complaint was filed on February 26, 2010. On August 5, 2010, the Court co n d u cted an evidentiary hearing, in accordance with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1 9 8 5 ), to consider the Plaintiff's claims. The hearing was conducted "to dig beneath the conclusional allegatio n s; to reduce the level of abstraction upon which the claims rest; to ascertain exactly what scen ario the prisoner claims occurred, as well as the legal basis for the claim." Id. at 180. A Spears h earin g is "in the nature of a motion for more definite statement." Id. at 180-181. The Plaintiff testified as to the factual basis of his claims. Regional Grievance Supervisor Ginger Lively, Assistant W ard en William Motal and Nurse Tara Patton testified under oath about prison policies and in fo rm atio n contained in the Plaintiff's prison records.

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The initial thrust of the Plaintiff's lawsuit focused on the medical care provided to him. On A p ril 5, 2005, Defendant Nurse Hough examined him for a swollen right knee. Her initial assessment w as a spider bite, and antibiotics were prescribed. The swelling became worse, and Nurse Hough d ecid ed that the illness was an antibiotic resistant staph infection, MRSA. Nurse Hough arranged a tele-v id eo conference with a doctor at Hospital Galveston. The doctor told him that the condition was serio u s, and he prescribed Vancomycin. The Plaintiff asserted that he subsequently learned that Brown R eclu se Spider bites were not treated with antibiotics and that other prisoners had received similar tr e a tm e n t. T h e Plaintiff saw Nurse Hough about a hernia in May 2006. Nurse Hough told him that referrals were not made unless there was an emergency. He saw Nurse Hough again on September 6 , 2006. He described symptoms of severe immune response with swollen lymph nodes. She did not th in k there was anything wrong, but she ordered lab tests. The lab tests came back showing "his white b lo o d cell count was higher than normal and could be an indication of a disease such as an infection o r leukemia." In the mean time, the hernia became worse as the months went by. Dr. Williams d ecid ed the situation was bad enough for a referral in March 2007. In May, the Plaintiff was referred fo r surgery. The Plaintiff was taken to Hospital Galveston on July 2, 2007. When asked about his gen eral health, the Plaintiff told a doctor about the swollen lymph nodes, fever and infection. The P lain tiff expressed his fear of having cancer. The doctor prescribed antibiotics and told him that he w o u ld have surgery three weeks after starting the antibiotics. The Plaintiff testified that he did not receiv e the antibiotics when he returned to the Eastham Unit, and he still has not had a hernia o p eratio n . On July 19, 2007, Physician Assistant Culley called the Plaintiff to the infirmary and told h im that he had thyroid disease and would be started on medication for hypothyroidism.

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The Plaintiff reviewed his medical records on June 8, 2009, and he learned that Nurse Hough d o cu m en ted abnormalities in his thyroid stimulating hormones. He also learned that Dr. Williams ex p ressed the opinion that the Plaintiff was cancerphobic because of his repeated requests for cancer tests. The Plaintiff testified that these facts reveal an attitude by medical personnel that show a lack o f concern for the well being of inmates. T h e Plaintiff went on to testify generally about the poor conditions in administrative segregatio n at the Eastham Unit. He has been confined in administrative segregation since 1996 after an escape. He asserted that he did nothing more than walk away from a job when he had an outside jo b . He expressed the opinion that his actions did not amount to a security threat and warrant ongoing co n fin em en t in administrative segregation. The Plaintiff testified that conditions in administrative segregatio n have deteriorated since 2002. He is supposed to receive two hours a day of recreation, but h e does not receive any recreation on some days. The explanation usually provided is staffing sh o rtages. He is supposed to get clean clothes every day when he showers, but he does not get an ex ch an ge of clothes every day. He likewise does not get a shower every day. The Plaintiff also testified that the quality of the food has gone down. The food is transported to administrative segregatio n in a hot box and left there for a period of time before it is distributed. Occasionally the fo o d sits in the boxes for up to an hour. It is served cold. Officials also stopped distributing copies o f the menu. He needs the menu in order to decide when to buy food from the commissary. The Plaintiff testified that he sued Executive Director Brad Livingston because he is resp o n sib le for policies and implements the policies under which the prison system is operated. Wardens Sweetin and Oliver are responsible for the Eastham Unit and are personally involved in the p o licies. He sued UTMB-CMHC Executive Director Owen Murray because he is responsible for the

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medical care provided to inmates. Murray implemented the policies regarding medical care. He sued N u rse Hough for her actions regarding his medical problems in 2005 and 2006. He stressed that she k n ew about his thyroid problems as early as September 2006. The Plaintiff also alleged that he had been the victim of retaliation. He believes that he has b een treated differently because he has filed grievances. For example, he has been kept in the shower in the past for an hour, as opposed to five to ten minutes. He acknowledged that other inmates in ad m in istrativ e segregation have likewise been kept in the shower for extended periods of time. He testified that his special diet for his thyroid problems was not immediately provided after it was p rescrib ed . He again testified that he has been treated differently, which he attributes to retaliation for w ritin g grievances. He added that writing grievances is a waste of time since they are always denied, b u t he has to exhaust his administrative remedies in order to file a federal civil rights lawsuit. He n o ted that Warden Oliver has denied many of his grievances. N u rse Tara Patton testified under oath from the Plaintiff's medical records. She testified that h e has been diagnosed with a bilateral inguinal hernia, which is a hernia in the groin area. His hernia h as been easily reducible, which means that it can be easily put back in place. Surgery is not p erfo rm ed unless a hernia becomes strangulated. She noted that there are dangers with either option, b u t surgery is not performed if the hernia can be easily put back in place. The Plaintiff has also been d ia g n o sed with hypothyroidism, which means that his thyroid does not produce enough hormones. The Plaintiff was prescribed synthetic hormones. Nurse Patton testified that swollen lymph nodes can b e caused by hypothyroidism. On September 6, 2006, Nurse Hough saw him after he complained ab o u t fever and chills. He was fine at that time, but she ordered the lab tests. With respect to the sp id er bite, Nurse Patton testified that obviously Nurse Hough did not see the spider bite the Plaintiff,

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but his condition looked like a spider bite to her. An abscess developed secondary to the spider bite, w h ich resulted in the infection being drained and antibiotics being prescribed. W ard en Motal testified that there are two options for recreation in administrative segregation. The options are one hour of recreation for seven days or two hours for five days. The warden has the o p tio n to choose either method. He testified that inmates in administrative segregation are encouraged to shower every day to cut down on stench. With respect to hot boxes, prison officials are required to plug in the hot boxes for at least twenty minutes once they arrive on the housing wings. This is req u ired in order to bring the food temperature back up to standards. The Plaintiff replied that he had n o t seen anyone plug in the hot boxes. Warden Motal finally testified that inmates who escape are n o rm ally kept in administrative segregation for the duration of their sentences. The Unit Classification C o m m ittee and State Classification Committee routinely conduct reviews of an inmate's continued co n fin em en t in administrative segregation, but he is unaware of any inmate being released from ad m in istrativ e segregation after having escaped from prison. D iscu ssio n and Analysis T h e first and most obvious point about the Plaintiff's medical claims is that they concern in cid en ts that occurred from April 2005 to July 2007, while the lawsuit was not filed until February 2 6 , 2010. There is no federal statute of limitations for 42 U.S.C. § 1983 actions; the relevant statute o f the forum state furnishes the limitations period, but federal law determines the date the accrual co m m en ces. Owens v. Okure, 488 U.S. 235 (1989). The statute of limitations in Texas for § 1983 actio n s is two years. Burrell v. Newsome, 883 F.2d 416, 419 (5th Cir. 1989); Pete v. Metcalfe, 8 F.3d 2 1 4 , 217 (5th Cir. 1993).

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The Plaintiff's complaints about the medical care he received involved matters that occurred m o re than two years before the lawsuit was filed. The claims are time-barred. The claims fail to state a claim upon which relief may be granted and are frivolous in that they lack any basis in law and fact. Such claims should be dismissed pursuant to 28 U.S.C. § 1915A(b)(1). It is also noted that the only person the Plaintiff named as a defendant that had actual contact w ith him was Nurse Hough. All of his complaints about her involved incidents that occurred up to M ay 2006. Once again, such complaints are time-barred. The Plaintiff's remaining claims are against su p erv iso ry officials. In order to successfully plead a cause of action in a civil rights case, a plaintiff m u s t ordinarily articulate a set of facts that illustrates the defendant's participation in the alleged w ro n g. Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986). Livingston, Murray, Sweetin and O liv er did not participate in any alleged acts of misconduct. They were sued because of their su p erv iso ry roles, but the doctrine of respondeat superior does not apply in § 1983 actions. Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978). Under 42 U.S.C. § 1983, supervisory officials are not liable for subordinates' actions on any vicarious liability theory. A supervisor may be held liab le if either of the following exists: (1) his personal involvement in the constitutional deprivation, o r (2) sufficient causal connection between the supervisor's wrongful conduct and the constitutional v io latio n s. Thompkins v. Belt, 828 F.2d 298, 303-304 (5th Cir. 1987). Neither condition was satisfied. T h e Plaintiff tried to base a claim for a meritorious lawsuit against Warden Oliver because he sign ed the responses to Step 1 grievances denying his complaints. Congress requires inmates to ex h au st their "administrative remedies as are available . . ." 42 U.S.C. § 1997e(a). A prison system is not required to establish grievance procedures, and inmates do not have a basis for a lawsuit because a prison system has not established grievance procedures or fails to adhere to it. 42 U.S.C. § 1997e(b).

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The Fifth Circuit has made it clear that inmates do not have a basis for a meritorious civil rights lawsuit ju st because they are unhappy with grievance procedures: G eiger does not have a federally protected liberty interest in having these grievances resolved to his satisfaction. As he relies on a legally nonexistent interest, any alleged due process v io latio n arising from the alleged failure to investigate his grievances is indisputably meritless. G eig er v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Congress established the exhaustion requirement to give prisons and jails the first opportunity to address complaints by inmates, but inmates do not have a basis for a lawsuit because they are dissatisfied with the grievance procedures. The Plaintiff does n o t have a basis for a potentially meritorious civil rights lawsuit against Warden Oliver because he d en ied his grievances or because he is dissatisfied with the grievance procedures. A p art from the statute of limitations and failure to sue people who can be held accountable, the P lain tiff's lawsuit should be dismissed for the additional reason that it lacks merit. With respect to his m ed ical claims, he could have a basis for a potentially meritorious civil rights lawsuit if he could show th at specific defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 4 2 9 U.S. 97, 105-07 (1976); Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir. 1989). In Farmer v. B ren n a n , 511 U.S. 825, 835 (1994), the Supreme Court noted that deliberate indifference involves m o re than just mere negligence. The Court concluded that "a prison official cannot be found liable u n d er the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to in m ate health or safety; . . . the official must both be aware of facts from which the inference could b e drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 8 3 7 . See also Reeves v. Collins, 27 F.3d 174, 175 (5th Cir. 1994). In Domino v. Texas Department of Criminal Justice, the Fifth Circuit discussed the high stan d ard involved in showing deliberate indifference as follows:

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Deliberate indifference is an extremely high standard to meet. It is indisputable that an incorrect diagnosis by medical personnel does not suffice to state a claim for deliberate in d ifferen ce. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Rather, the plaintiff m u st show that the officials "refused to treat him, ignored his complaints, intentionally treated h im incorrectly, or engaged in any similar conduct that would clearly evince a wanton d isregard for any serious medical needs." Id. Furthermore the decision whether to provide ad d itio nal treatment "is a classic example of a matter for medical judgment." Estelle, 429 U.S. at 107. And, the "failure to alleviate a significant risk that [the official] should have perceived, b u t did not" is insufficient to show deliberate indifference. Farmer, 511 U.S. at 838. 2 3 9 F.3d 752, 756 (5th Cir. 2001). Complaints about the adequacy of medical treatment do not am o u n t to a violation of federal rights. See Estelle v. Gamble, 429 U.S. at 107; Jackson v. Cain, 864 F .2 d at 1244; Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Dissatisfaction with medical treatm en t or diagnosis does not constitute "deliberate indifference" to a serious medical need and does n o t rise to the level of the denial of a constitutional right. Estelle v. Gamble, 429 U.S. at 106; Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). In the present case, Nurse Hough provided medical care to him when she observed a condition th at she thought was a spider bite. Antibiotics were prescribed. When the condition did not improve, sh e arranged a tele-video conference with a doctor at Hospital Galveston. The doctor prescribed V an co m ycin for a staph infection. The facts surrounding this problem reveal that she was responsive to his medical needs. She was not deliberately indifferent. N u rse Hough subsequently saw the Plaintiff for the hernia. This Court dealt with another

claim by an inmate regarding a hernia in Clark v. Adams, No. 9:05cv208, 2006 WL 1305164 (E.D. Tex. May 9, 2006). Clark sued the attending doctor, who concluded that the hernia was easily reduced or put back into place and that surgery was unnecessary. Clark sued the doctor for failing to refer him for surgery to fix the hernia. The Court concluded that the case was frivolous because the inmate had received extensive medical care, including medication, a truss and medical

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restrictions, and that his disagreement with the doctor as to whether surgery was necessary failed to surmount the "extremely high standard" required to show deliberate indifference. Id. at *6. The Fifth Circuit affirmed this Court's decision. Clark v. Adams, 233 Fed. Appx. 400 (5th Cir. 2007). It was noted that Clark's disagreement with the doctor's conclusion did not provide a basis for a potentially meritorious civil rights lawsuit. Id. at 401. The Plaintiff's complaint that medical personnel have not surgically fixed the hernia amounts to a disagreement with a medical decision and does not provide a basis for a potentially meritorious civil rights lawsuit.
The Plaintiff also complained about the care he received for hypothyroidism. Once again, h o w ev er, Nurse Hough ordered blood tests when the Plaintiff complained about fever and chills. There was some evidence of thyroid problems at that time. He started receiving synthetic hormones a few months later. At most, the Plaintiff has a basis for a claim again her for a delay in receiving syn th etic hormones, but a "delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference, which results in substantial harm." Mendoza v. Lynaugh, 989 F .2 d 191, 195 (5th Cir. 1993). The Plaintiff has not shown that she was deliberately indifferent or that h e experienced substantial harm in the delay in receiving synthetic hormones. T he Plaintiff's complaints about conditions in administrative segregation are likewise frivolous. The Eighth Amendment prohibits the imposition of cruel and unusual punishment. The standard of d eterm in in g whether the conditions are cruel and unusual "must draw its meaning from the evolving stan d ard s of decency that mark the progress of a maturing society." Rhodes v. Chapman, 452 U.S. 3 3 7 , 346 (1984). Conditions "alone or in combination" may amount to a constitutional violation. Id. at 347. On the other hand, "[t]o the extent that such conditions are restrictive and even harsh, they are p art of the penalty that criminal offenders pay for their offenses against society." Id. The

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"Constitution does not mandate comfortable prisons." Id. at 349. At the same time, in order to state a cognizable claim, a prisoner must allege facts showing that jail officials acted with a culpable state o f mind -- that they acted with deliberate indifference. Wilson, 501 U.S. 294, 302-303 (1991); Alberti v. Sheriff of Harris County, Texas, 937 F.2d 984, 1004 (5th Cir. 1991). Finally, in order to state a claim , a prisoner must allege facts showing that he received more than a de minimis injury due to co n d itio n s. Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th Cir. 2003). The Fifth Circuit has considered a variety of cases which illustrate the type of conditions that are necessary to be considered cruel and unusual. In Bienvenu v. Beauregard Parish Police Jury, 705 F .2 d 1457 (5th Cir. 1983), the court held that allegations of a cold, rainy, roach-infested jail cell, with in o p erativ e toilet facilities stated a cause of action. Similarly, allegations of cold cells with rats craw lin g all over prisoners state a cause of action. Foulds v. Corley, 833 F.2d 52 (5th Cir. 1987). The Fifth Circuit rejected claims similar to those of the Plaintiff in Mikeska v. Collins, 900 F.2d 8 3 3 (5th Cir. 1990) and Johnson v. Texas Bd. of Criminal Justice, 281 Fed. Appx. 319, 322 (5th Cir. 2 0 0 8 ). Inmates do not have a basis for a potentially meritorious lawsuit because of an occasional d en ial of recreation or showers. Vinson v. Texas Board of Corrections, 901 F.2d 474, 475 (5th Cir. 1 9 9 0 ). On the other hand, a failure to provide showers for several months may state a claim. Bradley v. Puckett, 157 F.3d 1022 (5th Cir. 1998). The temporary denial of hygiene items likewise fails to state a claim. Thomas v. Owens, 345 Fed. Appx. 892, 895 (5th Cir. 2009). Issues concerning food have been brought to the attention of the Fifth Circuit on many o ccasio n s. The State must furnish its prisoners with reasonably adequate food. Newman v. Alabama, 5 5 9 F.2d 283, 291 (5th Cir. 1977). The meals must be well balanced and containing nutritional value to preserve health. Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977). "The fact that the food

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occasionally contains foreign objects or sometimes is served cold, while unpleasant, does not amount to a constitutional deprivation." Hamm v. DeKalb County, 774 F.2d 1567, 1575 (5th Cir. 1985). The p riso n system is not required to provide inmates with three meals a day. Green v. Ferrell, 801 F.2d 7 6 5 , 770 (5th Cir. 1986). The medical records reveal that the Plaintiff is 5'10" and weighs 161 pounds, w h ich gives a normal Body Mass Index of 23. He has not been denied reasonably adequate food. He d o es not have a basis for a claim because the food is served cold. The Plaintiff has not alleged facts sh o w in g that the conditions of his confinement amount to cruel and unusual punishment. T h e Plaintiff's claims about the conditions in administrative segregation should be dismissed fo r the additional reason that he has not shown that any of the Defendants possessed a culpable state o f mind and that they acted with deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 297 (1991). O v erall, the Plaintiff's claims about the conditions of his confinement fail to state a claim upon which relief may be granted and are frivolous in that they lack any basis in law and fact. Such claims should b e dismissed pursuant to 28 U.S.C. § 1915A(b)(1). T h e Plaintiff also complained about being confined in administrative segregation since 1996 after his escape. The case law is clear that the Plaintiff does not have a basis for a claim because he h as been confined in administrative segregation. Sandin v. Connor, 515 U.S. 472, 484 (1995); Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). "[A]bsent extraordinary circumstances, administrative segregatio n as such, being an incident to ordinary life as a prisoner, will never be a ground for a co n stitu tio n al claim." Pichardo v. Kinker, 73 F.3d 612, 612 (5th Cir. 1996). The Plaintiff has not sh o w n extraordinary circumstances in this case. Moreover, inmates are confined in administrative segregatio n for being an escape risk. Hay v. Waldron, 834 F.2d 481, 486 n.8 (5th Cir. 1987). His co n fin em en t in administrative segregation after his escape does not violate the Constitution.

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The Plaintiff finally alleged that he had been the victim of retaliation. In particular, he has been treated differently because he has filed grievances. To state a valid claim for retaliation under section 1 9 8 3 , a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate again st the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Stewart, 132 F.3d 225, 231 (5th Cir. 1998); Jones v. Greninger, 188 F.3d 322, 324-25 (5 th Cir. 1999). Officials may not retaliate against an inmate for using the grievance system. Jackson v. Cain, 864 F.2d 1235, 1249 (5th Cir. 1989). A plaintiff must allege facts showing that the defendant p o ssessed a retaliatory motive. See Whittington v. Lynaugh, 842 F.2d 818, 820 (5th Cir. 1988); Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193 (5th Cir. 1985). The inmate must allege more than his personal belief that he was the victim of retaliation. Johnson v. Rodriguez, 110 F .3 d 299, 310 (5th Cir.), cert. denied, 522 U.S. 995 (1997); Jones v. Greninger, 188 F.3d at 324-25. Mere conclusory allegations of retaliation are not enough. Moody v. Baker, 857 F.2d 256, 258 (5th C ir. 1988). T h e Plaintiff has made only vague and conclusory claims of retaliation. For example, the fact th at he may have been kept in the shower longer than normal, which other inmates have also ex p erien ced , does not support an inference of retaliation. Moreover, he has not shown that any of the D efen d an ts possessed a retaliatory motive. The claim fails to state a claim upon which relief may be gran ted and is frivolous in that it lacks any in law and fact. The retaliation claim should be dismissed p u rsu an t to 28 U.S.C. § 1915A(b)(1). A fter reviewing various allegations of retaliation, the Fifth Circuit, in Martinez v. Griffin, 840 F .2 d 314, 314-15 (5th Cir. 1988), made the following observations, which are equally applicable in th e present case:

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This case is one of an increasing number of examples of attempts by prisoners to use th e courts as a general grievance procedure to complain about whatever matters having to do with their incarceration they do not like. The courts are not administrators of the p riso ns. The courts are not the general administrative grievance procedures set up to h ear prisoner complaints. The jurisdiction of the federal courts basically is limited in th e case of the treatment of state prisoners to violations of the United States C o n stitu tio n and civil rights acts in suits brought under 42 U.S.C. § 1983. O n ce again, the instant claim, like the entire lawsuit, is frivolous. F in ally, it is noted that the Plaintiff stated at the beginning of the Spears hearing that he wanted to withdraw his consent. There is no absolute right to withdraw a validly given consent to trial before a magistrate judge and such motions may be granted only on a showing of good cause or extraordinary circu m stan ces. Carter v. Sea Land Services, Inc., 816 F.2d 1018, 1021 (5th Cir. 1987); Diaz v. S u p erio r Energy Services LLC, 341 Fed. Appx. 26, 26 (5th Cir. 2009). The Plaintiff does not have a basis for having consent withdrawn just because he changed his mind. The motion should be denied. In conclusion, the Plaintiff's claims in this lawsuit fail to state a claim upon which relief may b e granted and are frivolous in that they lack any basis in law and fact. The lawsuit should be d ism issed pursuant to 28 U.S.C. § 1915A(b)(1). It is therefore O R D E R E D that the civil rights complaint is DISMISSED with prejudice pursuant to 28 U .S .C . § 1915A(b)(1). All motions not previously ruled on are DENIED.

So ORDERED and SIGNED this 7

day of August, 2010.

____________________________ JUDITH K. GUTHRIE UNITED STATES MAGISTRATE JUDGE

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