Opinion
No. 2:02-CV-0295.
November 30, 2005
REPORT AND RECOMMENDATION TO GRANT THE MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS BAKER, MERIDA, AND MUNSELLE
On this day came for consideration the Motion for Summary Judgment submitted by defendants BAKER, MERIDA, and MUNSELLE with supporting Memorandum and Affidavit, all filed May 31, 2005, as well as defendants' Supplemental Document filed June 13, 2005. Plaintiff has wholly failed to respond to defendants' motion for summary judgement or to request an extension of time to do so. While the Court cannot grant summary judgment by default because of this failure, Hibernia National Bank v. Administration Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985), the Court is permitted to accept the defendants' evidence as undisputed and may grant summary judgment to the defendants upon a prima facie showing of entitlement. Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988); Bookman v. Shubzda, 945 F.Supp. 999, 1002 (N.D.Tex. 1996).
On December 3, 2005, plaintiff's claims against defendant COLE were dismissed for failure to state a claim on which relief can be granted.
Efforts to serve defendant GUY have been unsuccessful, and summons was returned unexecuted on February 3, 2005.
Plaintiff claims his medical record, showing he suffered from seizures, enlarged heart, and high blood pressure, was reviewed in a classification committee hearing attended by defendants BAKER and MUNSELLE upon his arrival at the Neal Unit. Despite his medical conditions, plaintiff was assigned to a lower bunk in an upper level cell. Plaintiff complained that his medical condition could cause him to fall during a seizure and asked defendant MERIDA to have him moved; however, he was not moved. Further, plaintiff complained to defendant Dr. GUY, about the danger his cell assignment posed to him, but received no medical restriction entitling him to reassignment to a cell on the lower level.
Plaintiff subsequently suffered two seizures in his cell, but received no injuries. On March 23, 2003, plaintiff suffered a third seizure while coming downstairs from his cell and fell, injuring his shoulder, head, and back. Plaintiff was taken to Northwest Texas Hospital, examined and x-rayed. No fractures were found, but plaintiff has since endured lower back and neck pain and contends he has not received proper medical care.
As recognized by the Court in it's September 28, 2004 Order Granting, in Part, Plaintiff's Motion for Leave to File Amended Complaint, plaintiff has amended his request for relief to request damages in the amount of $250,000.00 from each defendant.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), and was incarcerated at the Neal Unit during the time relevant to this cause. Similarly, at all times relevant to this cause, defendant BAKER was employed as a Major of Correctional Officers, defendant MERIDA was employed as a Captain of Correctional Officers, and defendant MUNSELLE was employed as Assistant Warden, all at the Neal Unit in Amarillo, Texas. During the relevant time period, the defendants were employed by TDCJ and acting within the scope of their employment and under color of state law.DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants argue plaintiff has not alleged facts demonstrating their personal involvement in any alleged constitutional violation and that they are entitled to judgment as a matter of law on his claim of deliberate indifference to his safety and serious medical needs. Defendants also argue they are entitled to Eleventh Amendment immunity against plaintiff's claims against them in their officials capacities and are entitled to qualified immunity from his claims against them in their individual capacities.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). Consequently, after adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Only disputes of facts that could affect the outcome of the suit at trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law. Celotex v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552. A motion for judgment as a matter of law is properly granted when the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion, then the motion for judgment as a matter of law should be denied. Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).
If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993).
Although it may be "difficult to imagine factual circumstances in which a trier of fact could find deliberate indifference as defined by Farmer and nevertheless conclude that a reasonable person in defendant's position was not chargeable with knowledge that his or her actions violated the plaintiff's clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998) (quoting Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328 at 6 (N.D.N.Y.Dec. 16, 1994). Consequently, at the qualified immunity stage, the deliberate indifference standard only allows an examination of whether, under the standard not to be deliberately indifferent, the acts or omissions of the defendant were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998).
Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994).
ANALYSIS OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Eleventh Amendment Immunity to Official Capacity ClaimsThe Court notes plaintiff appears to have sued defendants both in their official and their individual capacities; however, suit against defendants in their official capacities for monetary damages is barred by the Eleventh Amendment. The Eleventh Amendment has been interpreted by the Supreme Court to bar suits by individuals against non-consenting states. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). The Eleventh Amendment restricts federal court jurisdiction in those cases in which the state is the real party in interest. Hander v. San Jacinto Junior College, 519 F.2d 273, 278 (5th Cir. 1975). A suit against an official in his official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). Consequently, plaintiff's action for monetary damages against defendants in their official capacities is foreclosed by the Eleventh Amendment and must be dismissed without prejudice. Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996) ("Because [Eleventh Amendment] sovereign immunity deprives the court of jurisdiction, the claims barred by sovereign immunity can be dismissed only under Rule 12(b)(1) and not with prejudice.").
Individual Capacity Claims
As to plaintiff's claims against them in their individual capacities, defendants argue they are entitled to qualified immunity and present evidence to show they acted reasonably and not with deliberate indifference to plaintiff's medically-determined needs. Defendants also argue plaintiff has not shown they had any personal involvement in the alleged constitutional deprivation. Because of plaintiff's failure to respond, defendants' evidence is accepted as undisputed and summary judgment may issue to defendants upon a prima facie showing of entitlement. Eversly v. Mbank, 843 F.2d 172, 174 (5th Cir. 1988); Bookman v. Shubzda, 945 F.Supp. 999, 1002 (N.D.Tex. 1996).
Defendants have presented copies of plaintiff's HSM-18 for the periods before and after plaintiff's March 23, 2002 fall. Review of the HSM-18 in force at the time of plaintiff's fall reveals it was prepared on November 27, 2001 by Dr. McCorkle, at plaintiff's previous unit assignment. Review of plaintiff's housing restrictions on the November 2001 HSM-18 shows plaintiff was restricted to the lower bunk, but had no restriction on his row assignment; he was not restricted to being housed only on the ground floor. Interestingly enough, plaintiff's work restrictions prohibited him from being required to walk more than 880 yards, lift more than 20 pounds, bend at the waist, or work in medical, direct sunlight, or around machinery with moving parts; however, plaintiff had no work restriction on climbing.
An HSM-18 is a TDCJ-ID form showing any medically determined work, housing, transportation, and disciplinary limitations a prisoner may have. The HSM-18 form is prepared by a physician or a nurse acting under a physician's direction.
See defendants' June 13, 2005 Supplemental Affidavit at the Affidavit of Charles Bell, page 1.
Defendants have also presented the Affidavit of Charles Bell, Senior Warden at the Neal Unit, who avers that the Unit Classification Committee does not review inmate medical records because those records are sent to the medical staff. Instead, the UCC relies on the HSM-18 prepared by medical personnel when making classification decisions. Further, Senior Warden BELL avers that prior to the March 23, 2002 incident, plaintiff was cleared to be housed on any floor and Warden COLE, Assistant Warden MUNSELLE, Major BAKER, and Captain MERIDA had no authority to override a decision by the medical staff concerning classification restrictions or to change plaintiff's medical restrictions.
See defendants' June 13, 2005 Supplemental Affidavit, by which defendants cured the missing signature on that same affidavit earlier submitted in the Appendix to their motion for summary judgment.
At the time of his housing assignment to the second floor by defendants MUNSELLE and BAKER, plaintiff's medically determined restrictions listed on his HSM-18 did not prohibit such an assignment. Therefore, the undisputed evidence supports a prima facie showing by defendants MUNSELLE and BAKER that, under the standard not to be deliberately indifferent, their acts or omissions were not objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (5th Cir. 1998). Defendants MUNSELLE and BAKER have shown they are entitled to summary judgment on their plea of qualified immunity and that the evidence of record refutes plaintiff's claim of deliberate indifference to a substantial risk of serious danger to his safety in the second-floor housing assignment.
As to defendant MERIDA, in his original complaint, plaintiff claims MERIDA was the Building Captain and told plaintiff he would be moved due to his condition. Defendants have presented the Affidavit of Charles Bell, Senior Warden at the Neal Unit, who avers that defendant MERIDA had no authority to override a decision by the medical staff concerning classification restrictions or to change plaintiff's medical restrictions. Moreover, when questioned by the Court, plaintiff stated he first informed defendant MERIDA about his condition on the day of the fall when he told MERIDA that another officer hadn't allowed plaintiff to go to the pill window at the appropriate time. Plaintiff says MERIDA responded that plaintiff wasn't going to the pill window and better not go. There is nothing about this exchange that supports plaintiff's allegation that MERIDA knew plaintiff had a serious medical need to be housed on the bottom floor and was deliberately indifferent to such need.
See defendants' June 13, 2005 Supplemental Affidavit, by which defendants cured the missing signature on that same affidavit earlier submitted in the Appendix to their motion for summary judgment.
See plaintiff's January 17, 2003 response to the Court's Questionnaire, at question nos. 8 and 9.
Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). Deliberate indifference requires a "showing that the official was subjectively aware of the risk" of serious harm. Id. at 829, 114 S.Ct. 1970 (emphasis added). Plaintiff has not presented evidence which satisfies this elevated, subjective standard. Plaintiff has failed to defeat defendant MERIDA's defense of qualified immunity and has utterly failed to present evidence of deliberate indifference by this defendant.
CONCLUSION
For the reasons set forth above, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment for defendants BAKER, MERIDA, and MUNSELLE, in their official and individual capacities and that they are entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c).
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that the motion for summary judgment by defendants BAKER, MERIDA, and MUNSELLE be GRANTED and that plaintiff LEVON LEE DENMARK's claims against these defendants in their official capacities be DISMISSED WITHOUT PREJUDICE and plaintiff's claims against these defendants in their individual capacities be DISMISSED WITH PREJUDICE.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by first class mail.
IT IS SO RECOMMENDED.