Opinion
Case No. 05-14014-Civ.
August 1, 2005
REPORT OF MAGISTRATE JUDGE
This Cause is before the Court upon plaintiff Shane Raymond Short's civil rights complaint pursuant to 42 U.S.C. § 1983. [DE 1] The plaintiff is proceeding in forma pauperis. [DE 4]
Short alleges that on July 30, 2004, he was taken to the medical department at the St. Lucie County Jail after a mixture of blood and urine was thrown on him. The medical personnel informed Short that they had no policy or procedure regarding the throwing of bodily fluids, and they did not check him for cuts or abrasions, flush out his eyes or "make sure [he] was given the proper health care," although he was scheduled for an HIV test. The plaintiff seeks injunctive relief from the sole named defendant, Prison Health Services, in the form of an order directing that a policy regarding the throwing of bodily fluids be implemented.
Short previously filed a § 1983 complaint raising this same factual claim but naming only Naty Canales as the defendant in case number 04-14291-Civ-Middlebrooks. Pursuant to a report and recommendation by the undersigned, that complaint was dismissed for failure to state a claim upon which relief could be granted by order of the Honorable Donald Middlebrooks, District Judge, on April 1, 2005.
Analysis
As amended, 28 U.S.C. § 1915 reads in pertinent part as follows:
Sec. 1915 Proceedings in Forma Pauperis
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(e) (2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
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(B) the action or appeal —
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(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief from a defendant who is immune from such relief.
The standard for determining whether a complaint states a claim upon which relief may be granted is the same whether under 28 U.S.C. § 1915(e)(2)(B) and Fed.R.Civ.P. 12(b)(6) or (c).Mitchell v. Farcass, 112 F.3d 1483, 1490 (11 Cir. 1997) ("The language of section 1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil Procedure 12(b)(6)"). When reviewing complaints pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must apply the standard of review set forth in Fed.R.Civ.P. 12(b)(6), and the Court must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. In order to state a claim, a plaintiff must show that conduct under color of state law, complained of in the civil rights suit, violated the plaintiff's rights, privileges, or immunities under the Constitution or laws of the United States. Whitehorn v. Harrelson, 758 F.2d 1416, 1419 (11 Cir. 1985). Pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
An Eighth Amendment claim of inadequate medical care requires a showing of acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs or the unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97 (1976). The standard is met only where egregious conduct is present, as in instances where a prisoner is subjected to repeated examples of delayed, denied, or grossly incompetent or inadequate medical care; prison personnel fail to respond to a known medical problem; or prison doctors take the easier and less efficacious route in treating an inmate. See, e.g., Waldrop v. Evans, 871 F.2d 1030, 1033 (11 Cir. 1989) (summary judgment precluded where cessation of anti-psychotic medication resulted in repeated suicide attempts and self-mutilation); Rogers v. Evans, 792 F.2d 1052, 1058-59 (11 Cir. 1986) (suicide after misdiagnosis and mistreatment of psychosis).
On the other hand, it is well settled that a showing of mere negligence, neglect, or medical malpractice is insufficient to recover on a § 1983 claim. Estelle v. Gamble, supra.
In fact, once an inmate has received medical care, courts are hesitant to find that an Eighth Amendment violation has occurred.Hamm v. DeKalb County, 774 F.2d 1567, (11 Cir.), cert. denied, 475 U.S. 1096 (1986). Treatment violates the Eighth Amendment only if it involves "something more than a medical judgment call, an accident, or an inadvertent failure," Murrell v. Bennett, 615 F.2d 306, 310 n. 4 (5 Cir. 1980). It must be "so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness." Rogers v. Evans, supra at 1058.
In addition, the Courts have long recognized that a difference of opinion between an inmate and the prison medical staff regarding medical matters, including the diagnosis or treatment which the inmate receives, cannot in itself rise to the level of a cause of action for cruel and unusual punishment, and have consistently held that the propriety of a certain course of medical treatment is not a proper subject for review in a civil rights action. Estelle v. Gamble, supra, at 107 ("matter[s] of medical judgment" do not give rise to a § 1983 claim). See Ledoux v. Davies, 961 F.2d 1536 (10 Cir. 1992) (inmate's claim he was denied medication was contradicted by his own statement, and inmate's belief that the needed additional medication other than that prescribed by treating physician was insufficient to establish constitutional violation); Ramos v. Lamm, 639 F.2d 559, 575 (10 Cir. 1980) (difference of opinion between inmate and prison medical staff regarding treatment or diagnosis does not itself state a constitutional violation), cert. denied, 450 U.S. 1041 (1981); Smart v. Villar, 547 F.2d 112, 114 (10 Cir. 1976) (same); Burns v. Head Jailor of LaSalle County Jail, 576 F.Supp. 618, 620 (N.D. Ill., E.D. 1984) (exercise of prison doctor's professional judgment to discontinue prescription for certain drugs not actionable under § 1983).
In this case, plaintiff Short has failed to allege any deliberate indifference to his serious medical needs. He states only that he did not receive a proper examination or unspecified testing after he was contaminated with bodily fluids. The plaintiff has not shown that anyone acted with deliberate indifference, or that any actions resulted in any harm to him. The plaintiff's allegations do not state a constitutional claim for relief, as this type of claim, at best, indicates a mere difference of opinion or negligence, rather deliberate indifference.
Lastly, even if Short otherwise stated an actionable claim, he cannot sue named defendant Prison Health Services, as the gravamen of his claims against this defendant is solely on the basis of respondeat superior.
It has long been established that public officials in supervisory positions cannot simply be held vicariously liable for the acts of their subordinates. Robertson v. Sichel, 127 U.S. 507 (1888); Byrd v. Clark, 783 F.2d 1002, 1008 (11 Cir. 1986). Nor can liability be predicated solely upon the doctrine of respondeat superior in a § 1983 action. Monell v. Department of Social Services, 436 U.S. 658 (1978); Vineyard v. County of Murray, Georgia, 990 F.2d 1207 (11 Cir. 1993). Supervisory liability requires a causal connection between actions of the supervisory official and an alleged deprivation (for example, a showing of knowledge of a history of abuses and failure to take corrective action). Byrd v. Clark, supra at 1008.
The plaintiff has not alleged that there is any causal connection between Prison Health Services and any alleged constitutional deprivation. Accordingly, he cannot support a claim that liability may be predicated solely upon the doctrine ofrespondeat superior.
Moreover, the plaintiff has not stated a cause of action with regard to any implicit claims of negligent hiring and retention of employees. The Eleventh Circuit requires that a plaintiff must show policy or custom in suits against private corporations performing traditional public functions. See Buckner v. Toro, 116 F. 3d 450 (11 Cir.) (extending the application of Monell v. Dept. of Social Services, 436 U.S. 658, 691 (1978) to private corporations such as prison medical service companies performing traditional public functions), cert. denied, 522 U.S. 1018 (1997). In this case, the plaintiff has failed to support any claim for relief that Prison Health Service employees acted in accordance with a custom or policy of acting with deliberate indifference to the medical needs of prisoners.
Conclusion
Based on the foregoing principles, it is recommended that the complaint be dismissed pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii), for failure to state a claim upon which relief may be granted.
Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.