Jones v. Basse et al

Filing 7

MEMORANDUM Opinion and Order of Dismissal - The Civil Rights Complaint filed by pltf is dismissed with Prejudice as Frivolous and for failure to state a claim on which relief can be granted. (Ordered by Judge Mary Lou Robinson on 6/17/2011) (plh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION
ALBERT LEE JONES, PRO SE,
also known as ALBERT JONES,
TDCJ-CID No. 1663399,
Previous TDCJ-CID No. 805962,
TDCJ-CID No. 1205451.

$
$
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Plaintiff,

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$

V.

BASSE;

Dr. NFN
Mrs. NFN TENORIO, Nurse petitioner;
Mrs. NFN WALLACE, Administrator,

and

2:11-CV-0088

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$
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Defendants.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff ALBERT LEE JONES, 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.

On May 6,2071, a Report and Recommendation issued recommending that plaintiff

s

claims be dismissed with prejudice as frivolous and for failure to state a claim on which
relief
can be granted. Plaintiff responded by

filing an Amended complaint.

JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or offrcer or employee of a
govemmental entity, the Court must evaluate the complaint and dismiss it without
service

of

process'
a

Ali

v. Higgs,892 F.2d 438, 440 (5th Cir. 1990),

if it is frivolousr, malicious, fails to state

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 concems prison conditions. 42
U.S.C.
I

997e(c)(

1)

. A Spears hearing need not be conducted for every pro se complai nt. Wilson v.

Barrientos, 926 F.2d480, 483 n.4 (5thCir. 1991)2.
The District 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
The Eighth Amendment proscribes medical care that is "sufficiently harmful to evidence
deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.5. 97, 106,97 S.Ct.

285,291,50 L.Ed.2d 251 (1976). A prisoner's disagreement with prison officials regarding
medical treatment is insufficient to establish an unconstitutional denial of medical care. Norton
v. Dimanzana,I22 F.3d 286, 292 (Sth Cir.1997).

The appropriate definition of "deliberate indifference" under the Eighth Amendment is

"subjective recklessness as used in the criminal law." Farmer v. Brennan.

5ll

U.S. 825. 837.

rA claim is frivolous
ifit lacks an arguable basis in law or in fact, Booker v. Koonce,2 F.3d I 14, I l5 (5th Cir. 1993);
see'Dentonv. Hernandez,504u.s.25,ll2 s.ct. 1228, 1233, ll8 L.Ed.2d340(lgg2).
2C7

Green v. McKaskle,788 F.2d 1116, ll20 (5th Cir. 1986) ("Ofcourse, 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 l1'atson
questionnaire. ").

2

114S.Ct. 1970, 1980, 128L.Ed.2d811 Q99l;Reevesv.Collins,27F.3d.I74(SthCir. 1994).
In this regard the Supreme Court has cautioned:

[A] prison official cannot be found liable under the Eighth Amendment . . . unless
the official knows of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.
Farmer v. Brennan, 511 U.S. at 837-38, 114 S.Ct. at 1979. It is only under exceptional
circumstances that a prison offtcial's knowledge of a substantial risk of harm may be infened by
the obviousness of the substantial risk.

By his Amended Complaint, plaintiff repeats his allegation that he had an interview with
a medical care

provider, Nurse Griffin, about having a toenail pulled, but, when the nurse spoke

with defendant Dr. BASSE, he stated he wouldn't pull any toenails unless they start to bleed or
get infected. Plaintiff states his toe nail is already infected and is causing him pain.

Plaintiff

s amended complaint is not very different from his original

complaint. plaintiff

does not allege the nurse agrees that his toenail is infected, that the mrse has told defendant

BASSE the toenail is infected, that plaintiff has ever been seen by defendant BASSE, or that
defendant BASSE knows his toenail is infected. Plaintiff asserts defendant BASSE has omitted

giving him the medical care he needs. All plaintiff has alleged is facts which, at most, might
support a claim of negligence, if even that. Negligence will not support an award of relief under
section 1983. Mendozav. Lynaugh,989 F.2d 191, 195 (5th Cir. 1993). Consequently, plaintiff

claim against defendant BASSE lacks an arguable basis in law and is frivolous.

s

As to defendant TENORIO, plaintiff claims she has failed to respond reasonably.

Plaintiff has failed to present any factual allegation concerning defendant TENORIO and has
failed to state a claim ofany sort against this defendant.
Concerning defendant WALLACE, plaintiff identifies her as an administrator, and claims
she has deprived

him of

a basic human

need. Assuming that the human need in question is

medical care, plaintiff does not allege defendant WALLACE is a medical care giver or has ever
given him medical care. It appears his claim against her is based entirely upon her supervisory

position; however, the acts of subordinates trigger no individual section 1983 liability for
supervisory officers. Champagne v. Jeffirson Parish Sheriff s Office,l88 F.3d 3I2,314(5th Cir.

1999). A supervisory official may be held liable only when he or she 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,64I F.2d

345, 346 (5th Cir. l98l ) (per curiam ). Plaintiff has alleged no fact demonstrating personal
involvement by defendant WALLACE and has alleged no fact showing any causal connection
between her act(s) or omission(s) and the alleged constitutional

violation. Consequently,

plaintiffs allegations against defendant WALLACE fail to state a claim on which relief can be
sranted.

CONCLUSION
Plaintiff has had the opportunity to amend his complaint and has further enjoyed the
benefit of a Questionnaire designed to elicit the relevant facts. It appears plaintiff has stated his
best case, Bazrowx v. Scott,136 F.3d 1053, 1054 (5th

4/1

I-0088

4

Cir. 1998), and there is no need for

a

further factual statement from plaintiff . Jacquez v. Procunier, 80I F.2d 789,792 (SthCir. 1986).
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),the Civil Rights

Complaint filed pursuant to Trtle 42, United States Code, Section 1983, by plaintiff ALBERT
LEE JONES is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO
STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
The Clerk shall send a copy of this order to plaintiff and to any attorney of record. The

Clerk shall also mail copies of this order to TDCJ-Offrce of the General Counsel. P.O. Box
13084, Austin,

TX

78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern

District of Texas, Tyler Division.
IT IS SO ORDERED.
Signed this

the , ',

day of June ,2011.

United States District Judse

4/l l-0088