Berry v. Uy et al

Filing 5

REPORT AND RECOMMENDATION - For the reasons set forth above and pursuant to Title 28, USC, sections 1915A and 1915(e)(2), as well as Title 42, USC, section 1997e(a), it is the Recommendation of the Mag Judge to the Dist Judge that the civil rights complaint filed by pltf be dismissed with prejudice as frivolous and for failure to state a claim on which relief can be granted. (Ordered by Magistrate Judge Clinton E Averitte on 11/13/09) (plh)

FILED
NOVEMBER 13, 2009
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION __________________________________________ MARK EDWARD BERRY, PRO SE, TDCJ-CID No. 1371888, Plaintiff, v. JULITO P. UY and NFN JAMES, Defendants. § § § § § § § § § §
KAREN S. MITCHELL CLERK, U.S. DISTRICT COURT

2:09-CV-0209

REPORT AND RECOMMENDATION Plaintiff MARK EDWARD BERRY, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis. Plaintiff alleges that, in November of 2007, he received all his restrictions back while on the Montford Unit, but, in July of 2008, defendant Dr. UY began to rescind those restrictions. Plaintiff states he can't walk anymore without assistance because of defendant Dr. UY and that it took him over a year to get a cane, which he received in August of 2008. Plaintiff complains that, on August 22, 2009, the cane will be taken away from him and he will "lose [his] walking prevlges [sic]." Plaintiff accuses defendant Dr. UY of improper medical practice ­ disobeying orders of doctors and putting plaintiff's life in danger in violation of the Eighth Amendment. Plaintiff also states he wrote defendant JAMES, Director of Doctors at the Clements Unit, about his complaints, and JAMES responded she backed her doctors 100%.

Plaintiff requests that defendant Dr. UY face criminal prosecution and be barred from the practice of medicine. He also requests a monetary award in an unspecified amount to compensate him for past and future pain. JUDICIAL REVIEW When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous1, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991)2. The Magistrate Judge has reviewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants. THE LAW AND ANALYSIS "[D]eliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Such

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, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
2 Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").

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indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). However, not every claim of inadequate or improper medical treatment is a violation of the Constitution, Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); nor does a disagreement with a doctor over the method and result of medical treatment require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). "[N]egligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Further, merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). Plaintiff's vague and conclusory pro se complaint, even when liberally construed, states, at best, a claim of negligence against defendant Dr. UY. However, section 1983 is not a general tort statute, and mere negligence does not meet the standard for liability under section 1983. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); Daniels v. Williams, 474 U.S. 327, 33134, 106 S.Ct. 662, 664-67, 88 L.Ed.2d 662 (1986). The fact that defendant Dr. UY disagrees with the decision of one or more Montford physicians as to the restrictions which should be imposed on plaintiff, or that UY simply feels the need for such restrictions no longer exists, does
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not show he is deliberately indifferent to plaintiff's serious medical needs. Plaintiff's claim against this defendant lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). As to defendant JAMES, to the extent plaintiff's claim is based on JAMES' supervisory position, the acts of subordinates trigger no individual section 1983 liability for supervisory officers. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314(5th Cir. 1999). A supervisor may be held liable only when he is either personally involved in the acts causing the deprivation of a person's constitutional rights, or there is a sufficient causal connection between the official's act and the constitutional violation sought to be redressed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.1987); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir.1981) (per curiam). If plaintiff is alleging defendant JAMES did not adequately investigate his complaint or satisfactorily resolve his disagreement with Dr. UY's treatment, plaintiff does not allege she knew of any facts showing his serious medical needs were being met with deliberate indifference. All she appears to have had before her was plaintiff's own assessment of his medical needs, which is not sufficient to place her on notice of his condition. CONCLUSION For the reasons set forth above and pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(a), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff MARK EDWARD BERRY be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
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INSTRUCTIONS FOR SERVICE The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available. IT IS SO RECOMMENDED. ENTERED this 13th day of November 2009.

_____________________________________ CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE * NOTICE OF RIGHT TO OBJECT * Any party may object to these proposed findings, conclusions and recommendation. In the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is eleven (11) days from the date of filing as indicated by the "entered" date directly above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). Therefore, any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the "entered" date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be made in a written pleading entitled "Objections to the Report and Recommendation." Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

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