Lowe, Jr v. Palo Pinto County Sheriff's Department et al

Filing 7

Memorandum Opinion and Order. The court ORDERS that plaintiff's claims in this action be, and are hereby, dismissed with prejudice pursuant to the authority of 28 u.s.c. § 1915A(b). (see order for specifics) (Ordered by Judge John McBryde on 4/15/2015) (mpw)

li .S. DISTRI:-=c-:-T-::C-O_U_R_T_ _ ,-.
NORTHEIU~'

DISTRICT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
RICHARD E. LOWE, JR.,

vs.

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PALO PINTO COUNTY SHERIFF'S
DEPARTMENT, ET AL.

APR I 5 2015

CLERK, U.S. DISTRICT COURT
By ____~----------

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Plaintiff,

Defendant.

Oepur:"

NO. 4:15-CV-285-A

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MEMORANDUM OPINION AND ORDER
Now before the court is the complaint filed by Richard E.
Lowe, Jr., naming as defendants the Palo Pinto County Sheriff's
Department, Sheriff Ira Mercer, Captain Walt Rucker, Deputy Vest,
Sergeant Rice, and Sergeant Booker.
I.

Screening Under 28 U.S.C.

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1915A

Plaintiff is presently incarcerated at the Lindsey State
Jail.

As a prisoner seeking redress from government officials,

plaintiff's complaint is subject to preliminary screening under
28 U.S.C.

§

1915A.

{5th Cir. 1998).

See Martin v. Scott, 156 F.3d 578, 579-80
Section 1915A{b) {1) provides for sua sponte

dismissal if the court finds that the complaint is either
frivolous or fails to state a claim upon which relief may be
granted.

A claim is frivolous if it "lacks an arguable basis in

either fact or law."
{1989).

Neitzke v. Williams, 490 U.S. 319, 325

A complaint fails to state a claim upon which relief can

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be granted when, assuming that all the allegations in the
complaint are true even if doubtful in fact, such allegations
fail to raise a right to relief above the speculative level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In evaluating whether the complaint states a valid claim for
relief, the court construes the allegations of the complaint
favorably to the pleader.
(1975).

Warth v. Seldin, 422 U.S. 490, 501

However, the court does not accept conclusory

allegations or unwarranted deductions of fact as true, and a
plaintiff must provide more than labels and conclusions or a
formulaic recitation of the elements of a cause of action.
Twombly, 550 U.S. at 555; Tuchman v. DSC Commc'ns Corp., 14 F.3d
1061, 1067 (5th Cir. 1994).
Having now considered the allegations in the complaint, the
court concludes that it should be dismissed in its entirety under
the provisions of 28 U.S.C.

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1915A.
II.

Plaintiff's Claims
Plaintiff complains of events that occurred in December 2013
when he was housed in the Palo Pinto County Jail. The allegations
of the complaint itself are very sparse, but somewhat augmented
by documents attached thereto. It appears that on or about
December 14, 2013, plaintiff got into a fight with another inmate
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and suffered injuries to his face. Plaintiff alleges that some of
his facial bones were broken and that he bled from his nose and
coughed blood for several days thereafter. Plaintiff alleges that
defendants refused to take him to the emergency room. Two of the
documents attached to the complaint reflect that plaintiff had a
CT scan on December 23, 2013, and that he agreed that day to be
transferred from Palo Pinto General Hospital to John Peter Smith
Hospital to receive treatment from another doctor. The three
inmate request forms attached to the complaint (and presumably by
which plaintiff made his written request for medical care) are
dated December 21. And, a letter dated December 20 notes that the
right side of plaintiff's head has been numb; that he fears his
bones will heal out of place; that neither the sheriff nor the
captain had been to see him; and that, although some of the
jailers had wanted to help, he believed orders had been given by
"ranking authority" or "ranking officials" to deny treatment.
There is no proof that plaintiff exhausted available
administrative remedies. Nor is there any indication that
plaintiff suffered any lasting consequences as a result of his
alleged injuries and deprivation.

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III.
Analysis
It is apparent that neither Sheriff Ira Mercer nor Captain
Walt Rucker had any personal involvement in the events giving
rise to plaintiff's claims, as the attachments to the complaint
reflect that neither of them would come to see plaintiff.
(Plaintiff appears to be of the belief that if either of them had
seen him, he would have gotten relief, i.e., medical attention.)
Thus, plaintiff has apparently sued the sheriff and the captain
based solely on their supervisory positions. However, supervisory
officials cannot be held liable under

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1983 on any theory of

vicarious liability. See, e.g., Mouille v. City of Live Oak,
Tex., 977 F.2d 924, 929 (5th Cir. 1992). Accordingly, plaintiff's
claims against defendants Mercer and Rucker must be dismissed.
All of the individual defendants appear to be sued in their
official capacities. Official capacity suits "generally represent
only another way of pleading an action against an entity of which
an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 165
(1985) (citation omitted). Thus, these claims are claims against
the employer of the jailers, which plaintiff alleges is the Palo
Pinto Sheriff's Department. However, the Palo Pinto Sheriff's
Department is not an entity capable of being sued. Darby v.
Pasadena Police Dep't, 939 F.2d 311, 313 (5th Cir. 1991).

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The

proper defendant would be Palo Pinto County. Rogers v. Nueces
County Jail, No. C-07-410, 2007 WL 4367814, *4 (S.D. Tex. Dec.
13, 2007).
Regardless, plaintiff has alleged no facts that could
support an action against such defendant.

Section 1983 does not

allow a governmental entity to be held vicariously liable for the
actions of its officers under a theory of respondeat superior.
42 U.S.C.

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403 (1997) .

1983; Bd. of Cnty. Comm•rs v. Brown, 520 U.S. 397,
A governmental entity may be liable under

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1983 if

the execution of one of its customs or policies deprives a
plaintiff of a constitutional right.
Serv., 436 U.S. 658, 690-91 (1978).
under

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Monell v. Dep•t of Social
To hold a county liable

1983 thus requires the plaintiff to "initially allege

that an official policy or custom was a cause in fact of the
deprivation of rights inflicted." Spiller v. Texas City Police
Dep't, 130 F.3d 162, 167 (5th Cir. 1997) (internal quotation marks
and citation omitted). To meet that requirement, a plaintiff must
allege: "a policymaker; an official policy; and a violation of
constitutional rights whose •moving force' is the policy or
custom."
2005)

Cox v. City of Dallas, 430 F.3d 734, 748 (5th Cir.

(internal citations omitted); Piotrowski v. City of

Houston, 237 F.3d 567, 578 (5th Cir. 2001). Moreover, the
description of a policy or custom and its relationship to the

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underlying constitutional violation "cannot be conclusory; it
must contain specific facts." Spiller, 130 F.3d at 167. The
general rule is that allegations of isolated incidents are
insufficient to establish a custom or policy. Fraire v. City of
Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).
Here, plaintiff does not identify a policymaker, an official
policy, or a violation of constitutional rights brought about by
such policy or custom. Nor does he allege more than an isolated
incident of denial of medical care. For that reason, his claim
against the Palo Pinto Sheriff's Department must be dismissed.
To the extent that plaintiff intended to sue the jailers in
their individual capacities, such claims must also be dismissed.
Not every claim by a prisoner that he received inadequate medical
care states an Eighth Amendment violation. Estelle v. Gamble, 429
U.S. 97, 104-05 (1976). For a prison official's deliberate
indifference to serious medical needs to rise to the level of a
constitutional violation, a prisoner must establish that the
official knew of and disregarded an excessive risk to the
prisoner's health or safety. Farmer v. Brennan, 511 U.S. 825, 837
(1994). "[T]he 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." Id. An
official's "failure to alleviate a significant risk that he
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should have perceived but did not" does not constitute an Eighth
Amendment violation. Id. At 838.
Plaintiff's own pleading shows that, although he was worried
at the time about how his face might heal, his jailers did not
share that concern. In fact, one of them noted that her sister
had suffered a similar injury and recovered just fine without
intervention. Although plaintiff mentions pain in the December 20
letter, it is plain that he feared pain in the event his bones
did not heal properly and had to be re-set. As plaintiff noted in
the same letter, his face was numb and swollen. Further, the
record reflects that two days after plaintiff made his written
requests for medical attention, he was examined at the local
hospital.

(By that time, the swelling had apparently gone down

such that aCT scan could be performed.) In sum, the pleading
does not contain sufficient facts to establish that plaintiff's
jailers were deliberately indifferent to a serious medical need
such that plaintiff would be entitled to the relief he seeks.

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IV.

Order
The court ORDERS that plaintiff's claims in this action be,
and are hereby, dismissed with prejudice pursuant to the
authority of 28

u.s.c.

§

1915A(b).

SIGNED April 15, 2015.

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