Opinion
No. 7:01-CV-107-R
June 19, 2002
MEMORANDUM OPINION AND ORDER
Came on this day to be considered Defendants' Motion for Summary Judgment and Plaintiff's response thereto and the Court finds and orders as follows:
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Defendants are officers at the Allred Unit. Plaintiff claims that Defendants used excessive force against him, denied him medical care and unlawfully retaliated against him.
On September 5, 2000, Plaintiff complained about a food tray served to him by Defendant Kendrick and asked to see a supervisor. Attachment to Complaint p. 3. Plaintiff claims that Kendrick refused the request and then slammed the steel food slot door on him causing serious injury to his left hand, fingers and arm. Id. Henderson claims that his thumb is permanently disfigured with numbness. Id.
"To prevail on an eighth amendment excessive force claim, a plaintiff must establish that force was not applied in a good-faith effort to maintain or restore discipline, [but] maliciously and sadistically to cause harm and that he suffered an injury." Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir. 1996) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999 (1992)).
Upon review of the summary judgment evidence, it appears that the force used against Plaintiff was not applied maliciously and sadistically in an effort to cause harm. In his own affidavit, Plaintiff states that, when Officer Kendrick returned to pickup the food tray, Plaintiff pushed the tray partially through the food slot but refused to release the tray. Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment; Affidavit of Alfred Henderson at p. 2. He demanded to see Kendrick's supervisor and informed Kendrick that he would not release the tray. Id. Kendrick grabbed the tray and pulled it through the food slot pulling Plaintiffs right arm through at the same time. Id. Plaintiff then placed his left hand in the food slot door demanding to see a supervisor. Id. At this point, Plaintiff claims that Henderson slammed the food slot door on his hand. Id.
When an inmate forces the food door open on his cell door and refuses to remove his hand or arm, it is commonly known as "jacking the bean slot." See Appendix to Defendants' Brief in Support of Motion for Summary Judgment (noting that Henderson's medications were withheld on September 6, 2000 because he was "jacking the bean slot.")
In situations such as this, "[prison officials] are entitled to wide-ranging deference." See Baldwin v. Stalder, 137 F.3d 836, 840 (5th Cir. 1998) (finding that the use of mace to quell a disturbance caused by inmates on a bus did not constitute excessive force). "The amount of force that constitutionally permissible . . . must be judged by the context in which that force is deployed." Id. (quoting Ikerd v. Blair, 101. F.3d 430, 434 (5th Cir. 1996)). The use of force does not constitute cruel and unusual punishment when reasonably necessary to subdue a recalcitrant prisoner. Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 360 (1975); see Williams v. Hoyt, 556 F.2d 1336, 1339-40 (5th Cir. 1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1530 (1978) (affirming jury verdict for the defendants where evidence was sufficient to show that mace was used only for the control of unruly prisoners and was, therefore, not excessive). Under Plaintiffs own description of the facts, the force was applied only after he refused to release a food tray and then placed his hand on the food slot door. See Whitley v. Albers, 475 U.S. 312, 324-25, 106 S.Ct. 1078, 1086-87, (1986) (holding that shooting prisoner in the leg, without prior verbal warning while quelling a prison riot, did not constitute excessive force under the circumstances).
Moreover, prison medical records indicate that Plaintiff suffered no physical injury as a result of the use of force. Defendants' Motion for Summary Judgment, Appendix Exhibit "A" pp. 4-8. 42 U.S.C. § 1997e(e) provides that:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered-while in custody without a prior showing of physical injury.
On September 5, 2000, the date of the use of force, Plaintiff was seen at his cell by a nurse. Defendants' Motion for Summary Judgment, Appendix Exhibit "A", p. 5. Swelling and small cuts to his left thumb were noted and he was given an ice pack. Id. On September 8, 2000, superficial abrasions and slight swelling were seen in Plaintiff's left thumb. Id. at p. 6. Henderson was diagnosed with a thumb sprain and he was given naproxen 500 mg for pain. Id. On September 13, 2000, Plaintiff's thumb was x-rayed. The radiologist's report reads as follows:
There is no soft tissue swelling or bony abnormality identified. There is no fracture or dislocation.
CONCLUSION: NORMAL LEFT THUMB.
Id. at p. 4. Small cuts, abrasions and swelling are insufficient to state a physical injury for purposes of liability under the Civil Rights Act. See Siglar v. Hightower, 112 F.3d 191, 193.94 (5th Cir. 1997) (holding that a sore bruised ear lasting for three days did not constitute a physical injury as requited to state a claim for excessive force); Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex 1997) (holding that sore muscles, scratches, abrasions and bruises do not constitute a "physical injury" within the meaning of § 1997e(e)). Therefore, Plaintiffs claim of excessive force against Defendant Kendrick must fail.
Next, Plaintiff claims that, on September 6, 2000, Oscar Paul used excessive force against him by maliciously snatching papers out of his hands causing Plaintiff to lose his balance and fall. Attachment to Complaint pp. 5-6. Henderson claims t.hat his previously injured knee popped out of placed and that the fall re-injured his lower back. Id. A review of Plaintiffs medical records reflects that, although Henderson complained about his thumb, he did not complain about any pain in his lower back or knee until two-days later when it was noted that he had a knee sprain but no dislocation. Defendants Motion for Summary Judgment, Appendix Exhibit "A" p. 6. Plaintiff has failed-demonstrate that Defendant Paul snatched the papers out of his hand maliciously and sadistically in an effort to cause harm and he has failed to show that he suffered any injury as required under Siglar. Accordingly, this claim must fail.
Plaintiff claims that Defendants conspired to deny him medical care. Specifically, he claims that Defendant Paul instructed another guard named Mr. Cook to order Plaintiff to climb stairs to see the doctor when Paul knew that this was in conflict with Henderson's medical restrictions and abilities. Attachment to Complaint p. 4. Henderson claims that, despite the fact he climbed the stairs as directed, he should have been taken up in an elevator. Id. Plaintiff also complains that Defendants conspired to delay his visit with a doctor until September 8, 2000, two days after his thumb was injured. Id.
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 to 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 US. 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 105, 107 (5th Cir. 1979).
As previously discussed, Plaintiff was seen in his cell by a nurse on the day of the alleged injury to his thumb and he was given an ice pack for swelling. Defendants Motion for Summary Judgment, Appendix Exhibit "A" p. 5. He was seen by a physician two days later and, after continued complaints, he was given an x-ray which revealed no injury to his thumb. Id. at. pp. 4-6. Moreover, the medical record reflects that Henderson "does not have does not need stair restrictions." Id. at p. 5. Thus, it is clear that Henderson cannot prevail on this claim. His conclusory allegations do not provide a basis for recovery under § 1983. While Henderson may argue that the ice pack, the naproxen and the x-ray were insufficient, this is nothing more than a disagreement over the care he was afforded. Plaintiff has provided absolutely no factual support for his claim that Defendants conspired to deny him medical care.
Finally, Plaintiff claims that Defendants unlawfully retaliated against him by using excessive force and by denying him medical care all because he complained about his food tray and asked to see a supervisor. See Attachment to Complaint.
Prison officials may not retaliate against an inmate for the exercise of a constitutionally protected right. Woods v. Smith, 60 F.3d 1161, 1165 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975 (1986). In order to prove retaliation an inmate must: (1) allege the violation of a specific constitutional right and (2) establish that the incident would not have occurred but for a retaliatory motive. Johnson v. Rodriguez, 110 F.3d 299, 313 (5th Cir.), cert. denied, 522 U.S. 995, 118 S.Ct. 559 (1997). Woods, 60 F.3d at 1166. This places a significant burden on the inmate. Mere conclusory allegations are insufficient. Woods, 60 F.3d at 1166; Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988). The inmate must produce direct evidence of motivation or "allege a chronology of events from which retaliation may plausibly be inferred." Woods, 60 F.3d at 1166 (quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
In the case at bar, Plaintiff has failed to articulated facts which would indicate that he was exercising any constitutionally protected right when he refused to return his food tray and placed his hand, in food slot. He has also failed to show that the actions taken against him were initiated by Defendants for retaliatory purposes or with any retaliatory motive. Henderson's conclusory allegations of retaliation are simply insufficient to state a claim. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800 (1996); Richardson v. McDonnell, 841 F.2d 120, 122-23 (5th Cir. 1988).
The Court also finds that Defendants are entitled to qualified immunity from suit. The merits of Plaintiff's excessive force, medical care and retaliation claims 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 violation of a constitutional right. 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 tights, clearly established at the time of the alleged incident, of which a reasonable person would have known). It is clear, from the evidence before this Court, that Defendants' actions did not give rise to any issue of constitutional magnitude.
Summary judgment is proper when the pleadings 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 in, 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, 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. Indust. 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 matter 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 Defendants are entitled to summary judgment as a matter of law.
For the foregoing reasons, Defendants' motion for summary judgment is GRANTED and Plaintiff's complaint is hereby dismissed with prejudice as frivolous.
Title 28, United States Code, Section 1915(e)(2)(B)(j) 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 P.2d 51, 52 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct. 2863 (1991). In this case, Plaintiffs claims 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.
SO ORDERED.