Bonneville v. Basse et al

Filing 13

ORDER OF DISMISSAL: re: 3 Complaint. Ordered that the Civil Rights Complaint is dismissed with prejudice as frivolous and without prejudice for failure to state a claim on which relief can be granted. (Ordered by Judge Mary Lou Robinson on 10/12/2012) (egb)

IN THE LTNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION

JEFFERY SCOTT BONNEVILLE, PRO SE,
TDCJ-CID No. 1244488,
Previous TDCJ-CID No. 712525,
Previous TDCJ-CID No. 753537,
Previous TDCJ-CID No. 764323,
Previous TDCJ-CID No. 1026071.

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Plaintifl

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v.

2:12-CV-0200

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DAVID BASSE, Unit Health Authority;
KELLE WALLACE, FHA; and

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CHARLES R. MoDUFFIE. Warden.

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Defendants.

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ORDER OF DISMISSAL
Plaintiff JEFFERY SCOTT BONNEVILLE, while a prisoner confined in the Texas
Department of Criminal Justice, Correctional Institutions Division, filed suit pursuant to Title 42,

United States Code, section 1983 complaining against the above-named defendants and has been
granted permission to proceed informa pauperis.

On September 21,2012, a Report and Recommendation was issued by the United States
Magistrate Judge analyzingplaintiff s complaint and recommending dismissal with prejudice as

frivolous and without prejudice for failure to state a claim on which relief can be granted.

Plaintiff filed his Objections on October 5,2012. On October I0,2012, plaintiff filed a
"Motion to Amend Original Complaint" in which he amends his statement of claim and his
request for relief.

Originally, plaintiff claimed he was'obeing refused medical treatment," wasooin severe
pain," and that his "medications by Dr. BASSE have been taken away." The medications plaintiff
identified were his Ibuprofen for his chronic arthritis andZantac for his acid reflux. Plaintiff
complained of having been charged a $100.00 yearly healthcare feer when he received some
dental work a few months before Dr. BASSE discontinued his medications; and his request for

relief merely stated he wanted to be paid for the work he had to do in prison.

Now plaintiff admits he actually is still receiving Zarrtac, although the dosage has been
reduced. Further, he is still prescribed 600 mg. Ibuprofen, but he must now pick it up from the

pill window, instead of being given

a

month's supply which he is allowed to "KOP," "Keep On

Person." Plaintiff says he feels he can't stand in line for 30-45 minutes at the pill window in
order to get his Ibuprofen and that, if count interferes, he could have to wait for two hours. The

Court further notes that, in his October 5,2012 Objections, plaintiff informed the Court he had
access to free acetaminophen from the guards, 325 mg. twice a day.

Plaintiff says that, at some point, he went to
was popping and

it wouldn't support plaintiff

s

see defendant

Dr. BASSE because his knee

weight. Plaintiff say she was given 600 mg.

Ibuprofen KOP, but was refused a knee brace or a walking aid.
In his Objections, plaintiff states he has fallen several times and put in a sick call on
September 13,2012, for which he saw nurse Wallace. Plaintiff says his blood pressure was over
200 and that he received a pass excusing him from work and was scheduled to see the doctor, but

rThis assessment was made per section 501.063 of the Texas Government Code which requires each inmate, except
those confined in halfivay houses, to pay a $100.00 yearly healthcare fee which covers all ofhis inmate-initiated visits to a health
care provider until the anniversary date ofthe assessment ofthat fee. Tex. Gov't Code $ 501.063(a).

Dr. BASSE missed the appointment. Plaintiff says he fell again and hurt his side but was refused
immediate care at the infirmary and was, instead, rescheduled to see Dr. BASSE.
In his Amended Complaint, at page 4, plaintiff says he went to the infirmary the next day
and saw defendant BASSE, but Dr. BASSE did not palpate

plaintiff

s

back or side. Plaintiff says

he was unable to do the bending and twisting Dr. BASSE asked him to do and that Dr. BASSE
checked

plaintiff

s

knee. Plaintiff says that when he asked for muscle relaxants, he was ordered

out of the office.

Plaintiff requests immediate medical care from another physician.
In his Step 2 grievance no. 2012118635 submitted with his complaint, plaintiff states he
was given exercises to do for his back pain but that the exercises hurt his hemia so he quit.

Plaintiff saw the doctor on November 18, 2011, two months before the assessment of his annual
health services fee. His pain medication was apparently discontinued at that time.

Plaintiff renewed his complaint about his back pain. As shown by the response to

plaintiff

s Step 1 grievance no.2012118635, he sawthe doctor again on March 5,2012, at which

time defendant Dr. BASSE found plaintiff s lumbar x-rays were nonnal, that he walked upright

with a fluid motion, and that he did not meet the level of medical necessity required for treatment.
Plaintiff was instructed to continue doing the prescribed exercises. Plaintiff was also informed
that, in addition to purchasing non-steroidal anti-inflammatory medication through the
commissary, he could obtain non-aspirin pain relievers from the guards at all times.
Even if plaintiff s allegations were suffrcient to state a claim of medical negligence,

"negligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh,
989 F.2d

l9I,195 (5th Cir. 1993).

Plaintiff s new allegations show he has continually been provided Zantac and pain
relievers. Moreover, plaintiff does not allege he cannot get the free acetaminophen available from
the guards or that he does not have the funds to purchase still more non-steroidal anti-

inflammatory medicine from the commissary.

Plaintiff s dissatisfaction with the treatment provided by Dr. BASSE does not support
claim of deliberate indifference to a serious medical need. Plaintiff

s

a

pain is treated, as is his acid

reflux. Moreover, plaintiff has access to still more pain relievers, both free and for purchase at
the commissary. The fact that defendant Dr. BASSE has not authorized the medicine KOP and
has not provided

plaintiff with

a knee brace or muscle relaxants,

which plaintiff thinks he needs,

does not support a claim of deliberate indifference to a serious medical need. The facts contained

in plaintiff s grievances attached to his complaint show plaintiff has not been ignored, but instead
has received responsive care by defendant Dr.

BASSE. While plaintiff is dissatisfied with

defendant Dr. BASSE's determination that his condition requires only daily exercises and the use

of commercially-available non-aspirin for pain management, this disagreement over the method
of treatment does not elevate his claim to constitutional dimension. Varnado v. Collins,920 F.2d

320,321(5thCir. 1991); Spearsv. McCotter,766F.2dl79 (5thCir. 1985). The sameholdstrue
for plaintiff

s

heartburn.

For the reasons set forth above, plaintiff has failed to state a claim of deliberate

indifference against defendant Dr. BASSE.
The Court has made an independent examination of the records in this case and has
examined the Magistrate Judge's Report and Recommendation, as well as the objections Motion

to Amend Original Complaint filed by the plaintiff.

The Court is of the opinion that the Report and Recommendation of the United States
Magistrate Judge should be ADOPTED by the United States District Court, as supplemented
herein.

This Court, therefore, does OVERRULE plaintiffls objections, and does hereby ADOPT
the Report and Recommendation of the United States Magistrate Judge, as supplemented herein.

IT IS THEREFORE ORDERED that the Civil Rights Complaint by JEFFERY SCOTT
BONNEVILLE is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND WITHOUT
PREJUDICE FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE
GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Any pending motions are DENIED.
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-Office 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

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,.'l'''' {/

day of October,2}T2.

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