Ben v. Frazier et al

Filing 36

MEMORANDUM OPINION AND ORDER granting 25 First MOTION for Summary Judgment. Granting 34 MOTION for Summary Judgment.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTR ICT OF TEXAS HOU STON DIVISION

EARL RAMOND BEN, #02381786,
Pla in t iff ,

C IV IL ACTION NO . H-08-3412
DEPUTY BARNARD FRAZIER, JR w et a1.,

De fendan ts . M EM ORA NDUM OPIN ION AND ORDER

E ar l Ramond Ben, a former inmate of the Harris County Jail, f iled a complaint alleging that Deputy Barnard Frazier, exce ssive force against him and used

that Harris County officials

subsequently denied him basic medical care for his injuries.
F ra zier and Harris County have filed Motions for Summary Judgment

( ocket Entry Nos. 25 and D

seeking dismissal of the complaint.
After reviewing the

Ben has not responded to either motion .

p lead ing s and evidence, the court has determined that the motions
shou ld be granted and that this action should be dism issed .

1 . Claim s and Allegations
B en claims that he was a pretrial detainee when Deputy Frazier
assau lted him without provocation on October 1, 2008 . See Docket

Entry Nos.

6, and 9.

He alleges that he was fighting with
Ben asserts that he

anothe r inmate when Frazier intervened .

attemp ted to show that he posed no threat when he was separated but

that Frazier punched him in the left side of the face and kicked
him in the back . He claims that Frazier was acting in accordance

existing jail policy when he assaulted him. Ben claims that he suffered painful injuries his lower

bac k . Ben was not hospitalized, but he was treated and prescribed

Ty len ol 3, a narcotic medication that he claim s was necessary to
he lp cope with the pain . When prescription expired he

a lle ges that the Harris County Jail m ed ical department refused to re fill it despite his repeated requests and grievances. Ben claims

that the defendants subjected him to wanton and unnecessary pain,
and he seeks $250,000.00 in compensatory and punitive damages from
e ach defendant .

II . Defendants' A rg um en ts and Evidence

his Motion for Summary Judgment ( ocket Entry D

25),

F ra zier contends that he did not use excessive force against Ben .

He asserts that his actions were objectively reasonable in view
the situation and the information availab le to him and that he used m in im al force to break up a fight between Ben and another inmate .
He further asserts that the medical records do not support Ben's

allegation that his back was injured as a result of his encounter
w ith Frazier .
o f his motion : A f fid avit N o . 25-1 A ffid avit N o . 25-2

Frazier presents the following evidence in support

M icha el M . Seal, M .D .
Depu ty Bernard Frazier

Do cke t Entry
Do cke t Entry

Harris County has filed a Motion for Summary Judgment ( ocket D
En try No .

ad dre ssing Ben 's claim that he was denied medical Harris County

care in resp on se to his complaints of back pain .

a ssert s that it has a policy to provide inm ate s with access to care
to meet their serious medical needs, as well as their mental and d enta l health needs . It contends that there is no showing that any Harri s County official ignored Ben 's complaints, refused to treat h im , treated him incorrectly, or engaged in any conduct that indica ted a wanton disregard for his serious medical need s . Ha rri s County asserts that Ben was seen after the altercation on October M oreove r , he 2008, but that he refused medical treatment .

no t exhibit any signs that he was seriously

injured. Harris County claims that Ben was examined, evaluated,
treated , and prescribed medications by doctors and nurses num e rou s occasions after the incident with the other inmate and that he was not denied attention for his serious medical needs. Harr is County submits the following in support of this argument : A ffid avit N o . 34-11 Michael M . Seal, M .D . Docket Entry

A ffid avit of Bobby D . Davis, Executive Director of H arr is County Jail Hea 1th Services Docket Entry N o . 34-2

l he affidavit submitted by Harris County ( ocket Entry No. 34T D 1) is the same as that submitted by Frazier ( ocket Entry No. 25D 1). For that reason the court will only refer to the first affidavit copy ( ocket Entry No. 25-1) in this Memorandum Opinion D
and Order .
-

3-

A ffidav it of Dalora Miller, Harris County Jail Records Cu stod ia n - Docket Entry No . 34-3 Ea rl Raymond Ben's Inmate Records - Docket Entry No . 35 The records show that Ben engaged in a fight with another

inmate, Christopher Beal, No. 25-2 at 2)

October 1, 2008.

( ocket Entry D

Deputy Frazier responded to a call for assistance

in handling the disturbance . Id . When Frazier arrived he saw the two inmates striking each other . One inmate, Ben, was on his knees p inn ing the other down . on to Ben's shirt .
figh ting .

The other inmate was on his back holding

80th inmates ignored Frazier's orders to stop

W hen it became clear that the inmates were not going to re sp ond his verbal orders Frazier used his open hands to push Id . This stopped the

Ben off of the inmate he was pinning . figh ting , and Ben stood up .

Frazier ordered Ben to back away.
Both

When Ben complied , Frazier helped the other inmate up .

inma tes were handcuffed and escorted to a safety vestibule .

Fra zier denies deliberately hitting or striking Ben . Id . He
state s that the only contact made was when h e pushed Ben's torso orde r to get him off the other inmate and to break up the fight . He further denies punching Ben the head and states that any He reiterates

cont act he made with Ben 's head was unintentional .

that the two inmates were still fighting when he pushed Ben .

He

also denies kicking Ben or any inmate and states that his sole

p urp o se in making physical c ontac t with Ben was to stop the inmates
-

4-

from fighting and possibly hurting each other.

( ocket Entry D

No. 25-2 at 3)
Ben was examined by nurse after the fight was broken up .

( ocket Entry No . 25-1 at D

The only wound found was

ncut to
Id .

th e left hand , 4t digit,' and Ben refused medical treatment . h ' B en complained saying that
1eg pain the next day

re fu sed treatment

was u E qlready seen and took care of E ic q.' Id. a s '
2 008 , but he did not

B en complained about his back on October

exhibit any signs

injury although he was scheduled

see a

p hysic ian for evaluation .

Ben was seen again on October

2008 .

Id .

It was noted

th at he had blisters on b0th feet , which indicated tinea pedis or ath let e 's foot, for which he was given antifungal cream . There was
also notation that his blood pressure was controlled by

m edica tion .

Ben a lso complained about his back and was given a

thirty-day prescription for Tylenol #3. Ben was seen and treated
for various complaints over next four weeks although none
incident . Id . at 3-5 .

app ea red to be related to the October

Pursuant to Ben's request, his Tylenol #3 prescription was renewed
on November 2008 . Id . at 5 .

Ben 's records indicate that he was also seen for psychiatric p rob lem s . Id . at 4. Ben reported that he would become enraged and
d estru ctive over matters that he could not recall . Id . He

adm itted going for days without sleep and seeing th in gs when he was

on drugs. ( ocket Entry No. 25-1 at 4) He was diagnosed as having D

bipolar

disorder
Id .

and

was

prescribed

Lithium ,

Cymbalta,

and

T razodon e .

Ben was seen on numerous occasions throughout

O ctob e r , November, and December of 2008 and was treated for various

a ilm ent s including skin lesions on his buttocks . Id . at 5. He was a lso treated for his psychiatric disorder although he complained th at the Lithium was causing diarrhea . n ur se saw Ben on January Id .

2009, in response to his back
Id . at On

comp la in ts , and referred him to a physician .

Janu ary 15, 2009, a physician examined Ben and gave him a prescription for Ultram 1O0 mg and Flexeril 10 mg for thirty days . Ben was ex am ined again by physician on February 2009 . Id . The

ev aluat ion noted that he had uchronic back pain in setting of
h erniate d disc and sciatica .' ' Id . He was diagnosed as having

ch ronic back pain and was prescribed Motrin 800 mg and Neurontin m g daily for thirty days . Ben was seen again on March 3, 2009. tha t he had been kicked Id . at 7 . He reported Id .

the back in August of 2008 .

sp ite of Ben's complaints, the examination and x-rays of his spine we re negative . Id . There was report pretib ial edema

a ffe cting the extrem itie s . a salt-free diet .

He was advised to exercise and follow Ben was treated

Nine days later, on M arch

fo r a boil . He was also given medication for his back . The record
re fle cts that doctors and nurses saw Ben throughout late 2008 and

into 2009.

direct exam in ation

Ben 's Harris County Jail

record s reveals numerous instances in which he was treated for

various ailments .
repo rts

See Docket Entry No .

The re are also and threatening

Ben engaging in irrational,

con duct while complaining of his ailments . See , e .n ., Docket Entry

N o . 35-1 at 9-10; Docket Entry No . 35-2 at 7,

Contrary to Ben 's

assert io ns , there is no record of written requests for medical help th at were unanswered or denied .
at 5,

See, e .n ., Docket Entry No . 35-2

Ben 's grievance record reflects that Ben was not clear as to wh ich deputy struck him during fight with the other inmate.

( ocket Entry No. 35-2 at 16) D

Moreover, Ben's description of

Dep uty Frazier was not accurate, and Ben admitted doing a11 of the pun ching during the fight. Id .

1 11 . SAmm nry Judgment Standards A

Summary judgment

proper

the pleadings, depositions,

an sw er s to interrogatories, and admissions on file , together with an y affidavits filed in support of the motion, show that there no genuine issue as to any material fact, and that the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56( ). c

In deciding a motion for summary judgment, the court must determine
whe th er the pleadings and records indicate if there genuine

issu e regarding any material fact and whether the moving party

entitled

judgment as a matter

law . FED.

56( ); c

Celotex Corr . v. Catrett, 106 S. t . 2548, 2552 ( 986); Little v. C 1
Licuid Air Coro ., F.3d 1069, ( th Cir. 1994). 5

The party moving for summary judgment has the initial burden
of demonstrating the absence of a material fact issue . Kee v . Citv

of Rowlett, Tex.,

F.3d 206,

( th Cir. 2001). To meet this 5

bu rden , the movant must p re sent evidence showing that the m ov ant cannot carry burden proof trial . Smith v .

Brenoettsv , 158 F.3d 908, 911 ( th Cir. 1998) 5

The movant may

a ccomp lish this by showing that the non-moving party has presented no evidence

supp ort

of

cla im .

Stah l

v . Novartis

Pharmaceuticals Corp w 283 F.3d 254,

( th Cir. 2002) 5

Once the

m ov ant has met this burden, the burden shifts to the non-movant to
p re sent specific facts showing that there g enu ine issue

trial; otherwise, summary judgment will be entered in favor of the
m ov ant . Hart v . Hairston,
ha s not filed a response .

F .3d 762,

( th 5

2003). Ben

IV . Analysis

B en 's complaint

filed under

U .S . . 5 1983 . To prevail C

unde r section 1983 he must show that the defendants violated his r igh ts secured by the C on st itut io n or laws of the United States and that the violations were committed by a person acting under color o f state law . See James v . Texas Collin Countv, 535 F .3d 365,

( th 5

2008).

With regard to Frazier's alleged assault, Ben
force against him was a m aliciou s a good faith effort to

m ust show that Frazier's use

and sadistic act that was not made

restore order. Valencia v. Wiccins, 981 F. d 1440, 1446 ( th Cir. 2 5
-

8-

1993)

See also Wilkins v . Gaddv, --- S. t . C

2010 WL 596513

( eb . 22, 2010). With regard to Harris County's alleged denials of F
med ica l attention, Ben must show that the denials were the result o f a policy of deliberate indifference to his serious needs for med ica l care . Gibbs v . Grimmette,

F. d 3

( th 5

2001)
A. Deputy Frazier's Use of Force
und i sp uted that Ben was fighting with another inmate
w hen Deputy Frazier intervened . Frazier's duties gave the

autho rity , as well as the duty, to use force

order to restore

order to the jail area. Baldwin v. Stalder, 137 F.3d 836, 840 ( th 5
1998). Frazier had failed to t ake some forceful action, he

m ight have vio lated the other inmate's right to be protected from

Ben's assault.

See Farmer v . Brennan,

S.Ct. 1970 ( 994). 1

Frazie r testifies that he used only enough force to push Ben away from victim . Ben's own report immediately after the fight See

p rov ide s no clear evidence that Frazier actually struck him .

Do cket Entry No . 35-2 at 16. Moreover, Frazier was trying to break up a fight, and of ficers are entitled to some leeway when dealing w ith a physical confrontation . See Hudson v . McMillian, 112 S .CY .

995, 1000 ( 992) ( not every push or shove, even if 1 u

may later

seem unnecessary in the peace of a judge 's chambers, violates
prisoner 's constitutional rights'), quotinc John son v . Glick, 4 81 '
--

1028, 1033 ( d Cir . 1973) 2
-

See also Ramirez v . Knoulton, 542
9-

F. d 124, 3

( th 5

2008) ( ourt should c

second guess an

officer's assessment of a tense and dangerous situation)
B en was examined immediately after the fight, and the only w ound found was a cut on one of his fingers . Ben admits that he

struc k the other inmate during the fight, and he makes no claim

that Frazier injured his hand.
claim is

When making an excessive force
show that was

ne ces sary for an inmate

seriou sly harmed by the defendant guard 's action . W L 596513 at

Wilkins, 2010

citinc Hudson . However, the absence of a serious

injury is a relevant factor in det erm in ing whether a guard's use of
force violated an inmate's rights . Id . at See also Baldwin v .

Stadler, 137 F.3d 836, 839 ( th Cir. 1998) ( hile absence of 5 w

serious injury does not preclude relief,
excessive use of force claim). There

is quite relevant to an
n oth ing in the record that

supp ort s Ben's claim that Frazier punched h im in the left side of th e face and kicked him in the back . His unsupp orted accusation

tha t Frazier hit him after the fight was over, which is undermined

by his grievance record containing no such statement ( ocket Entry D
N o . 35-2 at does not present a triab le issue . See , e .a .,

Douclass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 ( th Cir. 5 1996) ( xp laining that Mconclusory allegations, speculation, and e
un sub stan tiate d assertions are inadequate satisfy the

nonmovant's burden' at summary judgment). Because Frazier found '
Ben striking another inmate who was pinned to the floor, Frazier needed to take quick action to end the fight .
-

See Combs v .

1 0-

Wilkinson, 315 F.3d 548,

( th Cir. 2002) ( uards are entitled 6 g

to wide deference regarding what is necessary to maintain order),
cit in c Hudson, 112 S .Ct . at 995 . Given the totality of the

circumstances,

including

apparent

injury

resulting

from

Fra zie r 's intervention, this court finds that Frazier's actions
w ere reasonable , and Ben 's excessive force claim should be

dism issed as hav ing no factual basis.

B.

M ed ica l Care Ben alleges that he was denied medication after the fight . As

a pretrial detainee, Ben is entitled to basic medical care, and the
o fficia ls at Harris County Jail were ob ligat ed to attend to any

se riou s

conditions

of

which

they

were

aware .

Thompson

v.

Upshur Countv, Tex ., 245 F.3d 447 ( th 5
v . Jones, 835 F .2d 82,

2001). See also Cuoit

1987) ( nmates are entitled i

u rea sonab le medical care unless failure to supply that care is
rea son ab ly related

a legitimate governmental objectivev)
h e was not aware

However, a jail official cannot be held liable

of a serious need or he was merely negligent . Dan ie ls v . Williams,

106 S.CY. 662, 663 ( 986). 1
Miss w 645 ( th 5

See also Hare v. Citv of Corinth,
1996) ( ven gross negligence does e

not establish section 1983 liability).
Ben has named Harris County as the defendant regarding denial o f medical services . Harris County may not be held liable under

section 1983 unless Ben can show that he was injured pursuant to a

jail policy or custom.
Intellicence &

Leatherman v. Tarrant Countv Narcotics

Coordination Unit, 113 S. t . 1160, 1162 ( 993); C 1
Ben

Lawson v. Dallas Countv, 286 F. d 257, 263 ( th Cir. 2002). 3 5
can not rely solely on isolated instances

dep riv at ion s to

e stab li sh Harris County's liability .

Citv of

Oklahoma Citv v .

Tuttle, 105 S. Y . 2427, 2436 ( 985). He must present evidence of C 1
an official policy or a long-standing pattern constitutional

violations .
1994).

Richardson v . Oldham, 12 F.3d 1373, 1378 ( th Cir. 5

H ar ris County has presented records showing that Ben was seen im med iate ly after the fight and treated on a regular basis from th at date forward . This evidence refutes Ben 's claims of

d elib e rate indifference .

Banuelos v . McFarland ,

F .3d 232,

( th Cir. 1995): Mendoza v . Lvnaugh, 989 F.2d 191, 193-95 (5th Cir. 5
1993). Any dispute that Ben may have had with the doctors'

d iagno sis or method of treatment would not be grounds con stitu tiona l violation . Norton v . Dimazana, 286,

( th Cir. 1997). Ben's claim is further undermined by the absence 5

of any evidence that he suffered any injury as a result of being
den ied medical attention .
ab sen ce of any showing

Mendoza, 989 F .2d at 195.

Given the

deliberate indifference or injury,
1 983 . Judgment

Ha rris County cannot be held liable under 42 U .S .C . Th ere fo re , the Defendants' Motions for

Summ a ry

( ocket Entry Nos. 25 and 34) will be granted, an d this action will D
b e dismissed under FED. C IV. P .

Conclu sion
Th e court ORDERS the following :

D ep uty Barnard Frazier 's Motion for Final Summary

Judgment ( ocket Entry No. 25) and Defendant D Harris County's Motion for Summary Judgment ( ocket D Entry No. 34) are GRANTED .
The Complaint Under 42 U . . . 5 1983, Civil Rights SC
A ct filed by TDCJ-CID prisoner Earl Ramond Ben

( ocket Entry No. 1) is DISMISSED with prejudice. D
FED. R . CI . P. 56( ). V c
SIGN ED at Houston , Texas, on this 11th day of March , 2010.

f

SIM LAKE UN ITED STATES DISTRICT JUDGE