Opinion
7:01-CV-033-R
February 27, 2002
ORDER OF DISMISSAL
This is an action filed 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. On January 16, 2002, questions were issued to Plaintiff, his answers to which were filed on February 19, 2002. Ted claims that he was subjected to the use of excessive force, that he was denied medical care and that his rights under the Americans with Disabilities Act have been violated. Complaint ¶ V. He seeks monetary damages and injunctive relief. 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)).
In the case at bar, Plaintiff claims that a chemical agent was wrongfully sprayed on him by Defendant Richard Barnett. Complaint ¶ V; Plaintiff's Answer to the Court's Question No. 1. Unfortunately, he states no facts which would establish that the chemical agent was used by Barnett maliciously and sadistically in an effort to cause harm. See Plaintiff's Answer to the Court's Question No. 4. Plaintiff concedes that the chemical agent was sprayed only after he was directed to stop making a banging noise. Plaintiff's Answer to the Court's Question No. 1. Assuming the truth of Plaintiff's factual allegations, the use of force, applied only after Plaintiff's persistent disruptiveness, was justified. 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 is 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 mace or tear gas 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).
Moreover, Plaintiff has failed to demonstrate that he suffered any physical injury as a result of the use of force. See Plaintiff's Answer to the Court's Question No. 6.
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.
The only specific "injury" Plaintiff claims to have suffered is burning in the groin area. Plaintiff's Answer to the Court's Question No. 6. Such a result from a use of gas does not constitute "physical injury" as required under § 1997e(e). 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 required 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)). Teel cannot prevail on this claim.
Next, Teel claims that Defendants denied him proper medical care after his knee was pulled out of it's socket. Complaint ¶ V In order to state a colorable claim for the denial of medical care under the Eighth Amendment, "a prisoner 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 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 105, 107 (5th Cir. 1979).
In the case at bar, Plaintiff was given the opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of pro se plaintiffs complaint). A review of Plaintiffs answers reflects that he has failed to articulate facts which, taken as true, would demonstrate that any Defendant was deliberately indifferent to his need for medical care. See Plaintiff's Answers to the Court's Questions No. 12, 15, 18, 21 24. His conclusory allegations, without more, are insufficient to establish liability under § 1983. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain a claim under § 1983). At most, Plaintiff has alleged a disagreement over the medical care he was provided at the Allied Unit. To the extent, if any, that Plaintiffs claims against these Defendants are grounded in negligence, the claims are without merit. Allegations of negligence do not present a cognizable basis for relief under the Civil Rights Act. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986) (holding that negligence is not actionable under § 1983); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986) (same).
Finally, Plaintiff claims that his rights under the Americans with Disabilities Act were violated. Complaint ¶ V. Specifically, Plaintiff claims that he was denied a handicap shower facility for 22 days despite the fact that he wears knee braces and uses crutches to walk. Plaintiff's Answer to the Court's Question No. 27.
Title II of the Americans With Disabilities Act of 1990 (ADA) prohibits public entities, including state prisons, from discriminating against a qualified individual with a disability because of that individual's disability. 42 U.S.C. § 12132; Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 208, 118 S.Ct. 1952, 1953 (1998). The purpose of the ADA is to eliminate discrimination against people with physical disabilities and to provide enforceable standards with which to address such discrimination. Lightbourn v. County of El Paso, Tex., 118 F.3d 421, 430 n. 9 (5th Cir. 1997), cert. denied, 522 U.S. 1052, 118 S.Ct. 700 (1998).
To establish a Title II claim under the ADA, a plaintiff must show: (1) that he is a qualified individual within the meaning of the act, (2) that he is being excluded from participation in, or being denied benefits of services, programs or activities for which the defendant is responsible, or that he has otherwise been discriminated against by the defendant and (3) that such exclusion, denial of benefits or discrimination is by reason of the plaintiffs disability. Lightbourn, 118 F.3d at 428.
A review of Teel's answers to the Court's questions reveals no facts which could demonstrate that he suffered discrimination because of his alleged disability. See Plaintiff's Answer to the Court's Question No. 28. Other than Ted's conclusory allegation that Defendants knew of his disability, he has provided this Court with nothing to support his ADA claim. Therefore, his claim of discrimination under the Americans with Disabilities Act must fail.
"A prisoner's rights are diminished by the needs and exigencies of the institution in which he is incarcerated, lie thus loses those rights that are necessarily sacrificed to legitimate penological needs." Moore v. Carwell, 168 F.3d 234, 236-37 (5th Cir. 1999) (quoting Elliott v. Lynn, 38 F.3d 188. 190-91 (5th Cir. 1994)), cert. denied, 514 U.S. 1117, 115 S.Ct. 1976 (1995).
A district court may dismiss a complaint filed by a prisoner proceeding in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). 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, 1831-32 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235. 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is "based on an indisputably meritless legal theory." Nietzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis in law.
IT IS THEREFORE ORDERED that the complaint is hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(D)(i).