Opinion
7:98-CV-092-R
January 18, 2001
MEMORANDUM OPINION AND ORDER
Came on this day to be considered Defendant Murthy's motion for summary judgment and Plaintiff's response thereto and the Court finds and orders as follows:
Plaintiff has named three physicians as defendants in this action. This order pertains only to Defendant Murthy.
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate who, at the time of the events giving rise to his complaint, was confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. On June 29, l998, questions were issued to Plaintiff, his answers to which were filed on July 29, 1998. Thereafter, process was issued to all Defendants.
Bezotte claims that he was denied proper medical care for the treatment of a swollen testicle which resulted in amputation of the testicle. Complaint ¶ V. He seeks monetary damages, declaratory relief and injunctive relief. Id. Dr. Murthy claims that he never denied Plaintiff medical care, that he is entitled to qualified immunity on Bezotte's federal claims and that Plaintiff's pendent state law claim of negligence is barred by the statute of limitations. See Defendant Murthy's Motion for Summary Judgment.
In order to state a colorable claim for the denial of medical care under the Eighth Amendment, an inmate must allege acts or omissions "sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). "Deliberate indifference" under the Eighth Amendment occurs only where a prison official subjectively knows of and disregards a substantial risk the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994; Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, it is well established that negligent or erroneous medical treatment or judgment does not provide a basis for a § 1983 claim. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). As long as jail medical personnel exercise professional medical judgment, their behavior will not violate a prisoner's constitutional rights. See Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S.Ct. 2452, 2461-62 (1982). A disagreement over the appropriate medical treatment constitutes, at most, a possible claim of medical malpractice appropriately addressed under state law. E.g., Estelle v. Gamble, 429 U.S. at 107-08, 97 S.Ct. at 293; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard, 590 F.2d l05, 107 (5th Cir. 1979).
The records submitted by Defendant reflect that, on February 16, 1996, a medical examination by Dr. Murthy revealed a recurrent left inguinal hernia for which surgical repair was indicated. Defendant Murthy's Motion for Summary Judgment, Exhibits A B. On April 10, 1996, Plaintiff underwent a left inguinal hernia repair and hydrcelectomy which was performed by Dr. Murthy. Id. On May 3, 1996, Plaintiff returned to Dr. Murthy with swelling in his scrotum. Id. Murthy drained 60cc of serous anginous fluid from Plaintiff's scrotal sack and noted that there was no evidence of other complications from the surgery. Id. He informed Plaintiff that fluid could build up again and that it may again require aspiration. Id. Murthy called the Allred Unit infirmary to inform them of Plaintiff's condition. Id.; Defendant Murthy's Reply to Plaintiff's Response to the Motion for Summary Judgment, Exhibit A. Murthy states in his affidavit that this was the last contact he had with Plaintiff and that, after May 3, 1996, neither Plaintiff nor anyone on his behalf requested further medical treatment from Murthy. Defendant Murthy's Motion for Summary Judgment, Exhibit A. Murthy also states that he was not informed that Bezotte was having additional complications or that he needed further medical treatment. Id.
A hydrocele is a collection of fluid. Dorland's Illustrated Medical Dictionary 622 (26th ed. 1985).
Bezotte claims that, because of the swelling and aspiration of the testicle on May 3, 1996, Murthy was on notice that there were complications following the surgery. He argues that Murthy failed to prescribe medication for pain, swelling and infection and that Murthy had a duty to follow-up with additional treatment for his testicle. Plaintiff's Response to Defendant's Motion for Summary Judgment p. 3.
Plaintiff's allegations regarding Murthy's failure to prescribe medication are without merit. Similarly, any claim by Plaintiff that Murthy failed to properly perform the surgery is without merit. There is no evidence before the court showing that the surgery itself resulted in a denial of medical care and there is no evidence to show that medication was indicated after the surgery. To the extent that these claims are presented by Plaintiff, they represent a challenge to the nature of the medical care provided to him by Murthy rather than any lack thereof. While Plaintiff may disagree with Defendant Murthy's assessment and treatment of his hernia and swollen testicle, such a disagreement is insufficient to state a claim under § 1983.
Based on the record before this Court, Plaintiff's claim that Murthy failed to follow-up with treatment of his swollen testicle must also fail. Murthy was a physician retained by contract to provide surgical care to TDCJ inmates in a hospital or in his private office or clinic. Defendant Murthy's Motion for Summary Judgment, Exhibit C. He was not under agreement to provide medical care services at the correctional facility. Id. As Plaintiff concedes in his complaint, Dr. Kalmanov and Dr. Enns were the treating physicians within the Allred Unit. See Complaint ¶ V.
Although Plaintiff claims that Dr. Murthy refused to provide follow-up care for his swollen testicle, he has failed to document any request for such pare made by himself or by anyone on his behalf Plaintiff claims that Dr. Kalmanov and Dr. Enns told him that Dr. Murthy would not see him again. Here Plaintiff's claim fails. Absent any competent supporting summary judgment evidence, Plaintiff's unsubstantiated assertions do not suffice to create a genuine issue of material fact. Especially in light of Defendant's summary judgment evidence.
Moreover, Plaintiff, as a state inmate, has no constitutional right to select which physician will provide medical care. While it is arguable that Dr. Murthy may have been in the best position to provide follow-up care, Plaintiff's implied assertion that it was Murthy's constitutional duty to provide such care is without merit. In a situation such as this, where surgery is performed by a contract surgeon located outside the prison medical system, it would be the duty of prison personnel and the prison medical staff to see that appropriate post-surgical medical care is provided — whether it is provided by the same surgeon or by another qualified physician.
The Court finds that Defendant Murthy is entitled to qualified immunity from suit. The merits of Plaintiff's medical care claim have been addressed herein because his allegations are inextricably intertwined with a key issue necessary to resolve the question of qualified immunity — i.e. whether there was a denial of medical care by Dr. Murthy. See Gibson v. Rich, 44 F.3d 274, 277 (5th Cir. 1995) (holding government officials are entitled to qualified immunity from suit when performing discretionary functions unless their conduct violated statutory or constitutional rights, clearly established at the time of the alleged incident, of which a reasonable person would have known). In his response to Murthy's motion for summary judgment, Plaintiff has had ample opportunity to set forth the facts of his case with particularity and he's had ample opportunity to challenge Defendant's qualified immunity defense as required under Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc). It is clear from the facts of this case as established by the summary judgment evidence and viewed in a light most favorable to Plaintiff, that Murthy provided medical care to Plaintiff and that his actions in doing so did not give rise to any issue of constitutional magnitude. Plaintiff has failed to provide any factual detail which could overcome Murthy's qualified immunity defense. See Schultea, 47 F.3d at 1430 (reaffirming the heightened pleading standard of Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985) for claims against individuals).
Plaintiff seeks redress under pendent jurisdiction for medical negligence under the state laws of Texas. Plaintiff's Answer to the Court's Question No. 12. The statute of limitations for such claims in Texas is two-years. Tex.Rev.Civ.Stat.Ann, art. 4590i § 10.01 (West Supp. 2000). Under Texas law, Plaintiff's claim of medical negligence accrued on May 3, 1996, the last date he was treated by Dr. Murthy. See Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987). His federal complaint was signed on May 15, 1998 and filed on May 27, 1998. Both dates fall outside the two-year limitation period and Plaintiff has set forth no argument which could result in equitable tolling. Thus, even assuming that the "mailbox rule" is applicable and that Plaintiff placed his complaint in the prison mail system on May 15, 1998, his state law c aims are clearly barred by limitations.
Although he originally alleged that the hernia repair surgery was performed by Murthy in June of 1996, Complaint ¶ V, Bezotte does not dispute the accuracy of the medical records submitted by Dr. Murthy which indicate that the surgery was performed on April 10, 1996 and that Murthy last saw him on May 3, 1996. See Plaintiff's Response to Dependant's Motion for Summary Judgment. Thus, any Eight Amendment claims against Murthy for denial of medical care on these dates and prior to May 15, 1996 are barred by the two-year statute of limitations applicable to claims under § 1983. Plaintiff presents no argument, facts or circumstances which could result in equitable tolling of the limitation period. Furthermore, Bezotte states that, on May 14, 1996, Dr. Kalmanov told him that Murthy would not see him again. Plaintiff's Answer to the Court's Question No. 1. Thus, assuming the truth of his allegation, that Murthy refused to see him, and assuming that Plaintiff had some viable cause of action against Murthy for failure to provide follow-up care, his claim accrued on or before May 14, 1996 and is, therefore, barred by limitations.
No statute of limitations is set forth under 42 U.S.C. § 1983. However, the United States Supreme Court has held that the statute of limitations for a civil rights action is to be determined by reference to the prescriptive period for personal injury actions in the forum state. Hardin v. Straub, 490 U.S. 536, 109 S.Ct. 1998 (1989); Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573 (1989). In Texas, the prescriptive period for such claims is two years. Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon 1986).
"Under federal law, a [§ 1983] cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action" Gartrell v Gaylor, 981 F.2d 254, 257 (5th Cir. 1993).
Summary judgment is proper when the p1eadings and evidence illustrate that no genuine issue exists as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Slaughter v. Southern Talc Co., 949 F.2d 167, 170 (5th Cir. 1991). Disputes concerning material facts are genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Substantive law provides that an issue is "material" if it involves a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994). The nonmovant is not required to respond to the motion until the movant properly supports his motion with competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). However, once the movant has carried his burden of proof the nonmovant may not sit idly by and wait for trial. Page v. DeLaune, 837 F.2d 233, 239 (5th Cir. 1988).
When a movant carries his initial burden, the burden then shifts to the nonmovant to show that the entry of summary judgment is inappropriate. Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53; Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). Although the nonmovant may satisfy this burden by tendering depositions, affidavits, and other competent evidence, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden," Douglass, 79 F.3d at 1429, as "the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Merely colorable evidence or evidence not significantly probative, however, will not defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11. Furthermore, a mere scintilla of evidence will not defeat a motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994).
Summary judgment evidence is viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986); Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). In addition, factual controversies are resolved in favor of the nonmovant, but only when both parties have submitted evidence of contradictory facts, thus creating an actual controversy. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). In the absence of any proof; however, the Court does not assume that the nonmovant could or would prove the necessary facts. Id.
In making its determination on the motion, the Court looks at the full record including the pleadings, depositions, answers to interrogatories, admissions, and affidavits. Fed.R.Civ.P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). However, "the [Court's] function is not to weigh the evidence and determine the truth of the latter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. The movant's motion for summary judgment will be granted if he meets his burden and the nonmovant fails to make the requisite showing that a genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c); Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1119 (5th Cir. 1992).
The summary judgment evidence presented in this case establishes that there are no genuine issues of material fact and that Defendant Dr. Murthy is entitled to summary judgment as a matter of law.
For the foregoing reasons, Defendant Murthy's motion for summary judgment is GRANTED and Plaintiff's claims against Murthy are hereby dismissed with prejudice as frivolous.
Title 28, United States Code, Section 1915(e)(2)(B)(i) mandates dismissal of any action filed in forma pauperis if the court determines that the claims raised therein are frivolous. An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 (1989); Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). In this case, Plaintiff's claims against Murthy lack an arguable basis in law and are, therefore, frivolous.
A copy of this order shall be transmitted to Plaintiff and to Counsel for Defendants.