Flowers v. Bowles ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10248
Summary Calendar
_____________________
MICHAEL CARVER FLOWERS,
Plaintiff-Appellant,
v.
JIM BOWLES, Sheriff, and MEDICAL DIRECTOR,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(July 25, 1995)
Before KING, JOLLY, and PARKER, Circuit Judges.
PER CURIAM:*
Michael Carver Flowers brought suit under 42 U.S.C. § 1983,
claiming that he was unconstitutionally denied medical care while
incarcerated. Flowers' claim was dismissed with prejudice
pursuant to 28 U.S.C. § 1915(d), and Flowers now appeals. We
affirm in part and reverse and remand in part.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
I. BACKGROUND
Flowers, a Texas Department of Criminal Justice prisoner,
filed a complaint pursuant to 42 U.S.C. § 1983, alleging that he
was denied medical care while incarcerated in two Dallas County
jails between January 13 and March 21, 1993. Flowers named
Sheriff Jim Bowles and an unidentified medical director as
defendants.
Flowers was first incarcerated at the Lew Sterrit Jail.
There, Flowers claims he told a prison nurse that he had recently
undergone back surgery and needed various medications prescribed
for his pain. Flowers alleges that, despite his request, he was
deprived of these medications during the time he was interned in
the jail.
After three days, Flowers was transferred to a second
facility, where he claims he approached a guard about acquiring
the medication for his back pain. According to Flowers, the
guard gave him request forms, which Flowers maintains he mailed
repeatedly to both Sheriff Bowles and the medical director.
Flowers further contends that he did not receive a reply from
either the sheriff or the medical director during the sixty-four
days he was incarcerated in the center.
Flowers filed his complaint on March 28, 1994. On August
19, 1994, the magistrate judge sent an interrogatory to Flowers,
asking Flowers to better define his cause of action. When
Flowers did not respond within thirty days, the magistrate judge
recommended that the district court dismiss the action for
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failure to prosecute. Flowers promptly objected that he had
never received the interrogatory. The district court sided with
Flowers, holding that because it was possible Flowers had not
received the interrogatory, dismissal was inappropriate.
Additionally, the district court instructed the magistrate judge
to reissue the document to Flowers.
After Flowers replied to the new interrogatory in full, the
magistrate judge recommended that the district court dismiss the
complaint as frivolous. The magistrate judge first noted that he
was uncertain whether Flowers was a pre-trial detainee or a
convicted prisoner at the time he was allegedly denied his
medication. Thus, the magistrate judge could not determine
whether to apply a Fourteenth Amendment standard, which would
govern the denial of medical care to a pre-trial detainee, or an
Eighth Amendment standard, which would govern the denial of
medical care to a convicted prisoner. Nevertheless, the
magistrate judge determined Flowers had not stated an arguable
§ 1983 claim under either standard. Specifically, the magistrate
judge maintained that Flowers had failed to demonstrate that the
individual defendants had denied him medical care.
Flowers filed an objection to the recommendation, alleging
that he was a pre-trial detainee for one month while incarcerated
in the county jail and was thereafter a convicted felon.
Additionally, Flowers claims that he cannot communicate fluently
in English, but that he could show the personal involvement of
the defendants, if given the opportunity. Despite Flowers'
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objections, the district court adopted the magistrate judge's
recommendation and dismissed Flowers' complaint as frivolous.
II. STANDARD OF REVIEW
A § 1983 plaintiff who proceeds in forma pauperis is subject
to dismissal if his complaint is "frivolous" within the meaning
of 28 U.S.C. § 1915(d). Under § 1915(d), an in forma pauperis
complaint is frivolous if it lacks an arguable basis in law or in
fact. Denton v. Hernandez, 112 S.Ct. 1728, 1733 (1992).
We review a § 1915(d) dismissal only for an abuse of
discretion because a determination of frivolousness -- whether
legal or factual -- is a discretionary one. Denton, 112 S.Ct. at
1734; Moore v. Mabus, 976 F.2d 268, 270 (5th Cir. 1992). In
reviewing for an abuse of discretion, we consider whether (1) the
plaintiff is proceeding pro se; (2) the court inappropriately
resolved genuine issues of disputed fact; (3) the court applied
erroneous legal conclusions; (4) the court has provided an
adequate statement of reasons for dismissal which facilitates
intelligent appellate review; and (5) the dismissal was with or
without prejudice. Denton, 112 S.Ct. at 1734.
III. ANALYSIS
We agree that Flowers has failed to allege an arguable
claim against either the sheriff or the unnamed medical director
for the three days of medical treatment he was allegedly denied
in the Lew Sterrit Jail. Under § 1983, supervisory officials
cannot be held liable for the actions of their subordinates on
any vicarious liability theory. Thompkins v. Belt, 828 F.2d 298,
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303 (5th Cir. 1987). Rather, a supervisor is liable only if he
is personally involved in a constitutional deprivation or if
there is a sufficient causal connection between the supervisor's
wrongful conduct and the constitutional violation. Id.Supervisory liability also exists under § 1983 if the supervisory
official implements a policy so deficient that the policy itself
is a repudiation of constitutional rights and is the moving force
behind the constitutional violation. Id. During his three days
of incarceration in the Lew Sterrit Jail, Flowers claims that he
informed a nurse of his need for medication. Flowers has alleged
no further facts indicating that either the sheriff or the
medical director knew of his need for medication or that they
acted directly or indirectly to deny him his medication.
Accordingly, Flowers has alleged no set of facts which could form
an arguable basis of liability against the named defendants and
his claim with regard to detention in the Lew Sterrit Jail is
therefore legally frivolous.
With regard to his claims arising after he was moved to the
second facility, Flowers has alleged facts which could implicate
personal involvement by both defendants in the alleged
constitutional violation. Moreover, Flowers asserts claims that
may arise under both the Eighth and Fourteenth Amendments. That
is, any constitutional deprivations Flowers can prove occurred
while he was still a pre-trial detainee involve claims under the
Fourteenth Amendment, see Grabowski v. Jackson County Public
Defenders Office, 47 F.3d 1386, 1386 (5th Cir. 1995), reh'g en
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banc granted, No. 92-7728, 94-60089 (March 14, 1995); see also
Bell v. Wolfish, 441 U.S. 520, 537 (1979), and any constitutional
deprivations Flowers can prove occurred after he was convicted
involve claims under the Eighth Amendment. Estelle v. Gamble,
429 U.S. 97, 97 (1976).
In order to prevail on an Eighth Amendment claim, the
Supreme Court has held that a convict must prove that a defendant
acted with deliberate indifference to his serious medical needs.
Estelle, 429 U.S. at 97. The standard for recovery on a
Fourteenth Amendment claim, which has previously been more
liberal than its Eighth Amendment counterpart, is currently under
review by the en banc court. See Hare v. City of Corinth, 36 F.3d
412, 415 (5th Cir. 1994), reh'g en banc granted, No. 93-7192
(Dec. 8, 1994). Even assuming arguendo that we were to adopt a
Fourteenth Amendment standard as strict as that currently
required to prove an Eighth Amendment claim, it is clear that
Flowers' claim is not legally frivolous.
Because § 1983 does not provide for supervisory liability,
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987), the sheriff
and the medical director in the case at bar would not be liable
unless Flowers could prove that they were personally involved in
denying Flowers' alleged written requests for medical treatment.
On the other hand, if Flowers proved that the sheriff or the
medical director was personally and deliberately indifferent to
his written requests, he could prevail on his claim against that
defendant. Furthermore, the post-operation back pain Flowers
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alleges he suffered at the time of his incarceration could meet
the Eighth Amendment standard of "serious medical need." In
short, because Flowers has alleged facts which present an
arguable claim even under an Eighth Amendment standard, the
district court's dismissal of Flowers' claims arising from the
period after he was transferred from the first facility
constituted an abuse of discretion.
IV. CONCLUSION
For the foregoing reasons, the district court's judgment is
AFFIRMED in part and REVERSED and REMANDED in part.
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