Payne v. Inman, et al
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Keith Bernard Payne, recommending dismissal with prejudice as frivolous. Signed by Judge Andrew W. Austin. (mc2, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
KEITH BERNARD PAYNE #95671
DR. INMAN, JEFF BLUM, and
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court
pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s complaint and more definite statement. Plaintiff, proceeding
pro se, has been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was hospitalized
at the Austin State Hospital. Plaintiff alleges his Eighth and Fourteenth Amendment rights were
violated when Plaintiff’s blood was removed from him. Plaintiff sues Dr. Inman, Jeff Blum and
After consideration of Plaintiff’s complaint, the Court ordered Plaintiff to file a more definite
statement. Plaintiff indicates he is currently a patient at the Austin State Hospital due to his “mental
state stability check-up.” Plaintiff explains in his more definite statement that Dr. Inman ordered her
staff to withdraw Plaintiff’s blood for testing. Accordingly to Plaintiff, Jeff Blum withdrew the
blood from Plaintiff’s left arm on April 18, 2011, and Ashley Weitz helped hold Plaintiff while the
blood was withdrawn. Plaintiff alleges a “blood knot” formed as a result of the withdrawal of blood.
Plaintiff seeks $90,000.00 in damages due to the “blood knot.”
DISCUSSION AND ANALYSIS
Standard Under 28 U.S.C. § 1915(e)
An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)
if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief
may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972). However, the
petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no
license to harass others, clog the judicial machinery with meritless litigation and abuse already
overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
Eleventh Amendment Immunity
Being sued in their official capacities for monetary damages, Defendants are immune from
suit under the Eleventh Amendment because such an action is the same as a suit against the
sovereign. Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984). The
Eleventh Amendment generally divests federal courts of jurisdiction to entertain suits directed
against states. Port Auth. Trans-Hudson v. Feeney, 495 U.S. 299, 304, 110 S. Ct. 1868, 1871 (1990).
The Eleventh Amendment may not be evaded by suing state agencies or state employees in their
official capacity because such an indirect pleading remains in essence a claim upon the state treasury.
Green v. State Bar of Texas, 27 F.3d 1083,1087 (5th Cir. 1994).
Plaintiff’s claims are merely based on negligence or a disagreement with treatment. He has
not adequately alleged that he has been deprived of a right secured by the Constitution or laws of the
United States. “Section 1983 imposes liability for violation of rights protected by the Constitution,
not for violations of duties of care arising out of [state] tort law.” Baker v. McCollan, 443 U.S. 137,
146, 99 S. Ct. 2689 (1979). Mere negligence is not actionable under § 1983. Daniels v. Williams,
474 U.S. 327, 328, 106 S. Ct. 662 (1986) (concluding that “the Due Process Clause is simply not
implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or
property”); Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S. Ct. 668 (1986) (stating that
“[r]espondents’ lack of due care ... simply does not approach the sort of abusive government conduct
that the Due Process Clause was designed to prevent”); Lemoine v. New Horizons Ranch & Ctr.,
Inc., 174 F.3d 629, 635 (5th Cir. 1999) (stating that “negligence on the part of state officials does
not suffice to make out any due process violation under the Fourteenth Amendment”). Negligence
is simply insufficient to impose liability under § 1983. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir.
1990). In addition, “[d]isagreement with medical treatment alone cannot support a claim under
§ 1983.” Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001).
It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e).
It is further recommended that the Court include within its judgment a provision expressly
and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in
(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant
monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff
from filing any lawsuits in this Court without first obtaining the permission from a District Judge
of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some
combination of these sanctions.
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
SIGNED this 29th day of August, 2011.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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