Green v. Hendrick Medical Ctr ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10553
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ELBERT SILAS GREEN,
Plaintiff-Appellant,
VERSUS
HENDRICK MEDICAL CENTER; UNIT HEALTH ADMINISTRATOR;
NFN COLLIER, D.D.S.; NFN MRS. BROWN;
R.O. LAMPERT, SENIOR WARDEN; JAMES DUKE, ASSISTANT WARDEN;
ROCHELLE MCKINNEY, R.N. M.A.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:98-CV-131)
_________________________
March 7, 2001
Before REAVLEY, SMITH, and DeMOSS, Elbert Green, an inmate who since has been
Circuit Judges. released from prison, sued, pro se and in
forma pauperis (“IFP”), Hendrick Medical
JERRY E. SMITH, Circuit Judge:* Center, which is the medical contractor for in-
mates of the John Middleton Transfer Facility,
and various administrators, alleging violations
*
Pursuant to 5TH CIR. R. 47.5, the court has of his Eighth Amendment and due process
determined that this opinion should not be
published and is not precedent except under the
*
limited circumstances set forth in 5TH CIR. R. (...continued)
(continued...) 47.5.4.
rights. The district court dismissed these three levels of urgency for dental care.1
claims as frivolous. We affirm in part, vacate
in part, and remand for further proceedings. The case was transferred to another
magistrate judge, who dismissed it as
I. frivolous. Green objected, stating that he had
Green alleged violations of his civil rights not consented to resolution by a magistrate
from alleged deliberate indifference to his den- judge. The district court agreed and issued its
tal needs. During meals in the facility, officers own dismissal of the claim as frivolous. The
forced inmates to eat quickly. Because Green court found that Green was “seen by the
had loose dentures, eating so quickly caused medical department eleven times” between his
painful lacerations, swelling, and bleeding in entry into TDCJ and when he received new
his gums. He alleges that this condition dentures. It concluded that the defendants had
caused him to forego one meal each day. not acted with deliberate indifference and that
any harm Green had experienced resulted from
When Green entered the John Middleton negligence only. Green appeals, claiming the
Transfer Facility in October 1996, Dr. Collier, court erred in dismissing his claim as frivolous,
the dentist, advised him to replace or reline his because it (1) failed to construe his pleadings
dentures. Green submitted a grievance liberally and (2) relied on medical records de-
seeking treatment for the condition, but Collier veloped after the fact of the complaint and not
and the warden advised Green that he had to provided to him, in violation of the Due
be in the Texas Department of Criminal Justice Process Clause.
(“TDCJ”) for twelve months to be eligible to
get his dentures relined. The warden II.
suggested that Green obtain a blended food A district court must dismiss an IFP suit “if
pass if he was having trouble eating, but Green [it] determines that the action is frivolous or
appears to have refused, calling the pass “un- malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A
necessary punishment” and “tactical delay.” claim is frivolous if it lacks any arguable basis
He submitted grievances to no avail. in law or fact. Harris v. Hegmann, 198 F.3d
153, 156 (5th Cir. 1999). “A complaint lacks
Green sought declaratory relief and an arguable basis in law if it is based on an
monetary damages, contending that his lack of indisputably meritless legal theory, such as if
dental treatment violates the Eighth the complaint alleges violation of a legal
Amendment. The district court referred the interest which . . . does not exist.” Harper v.
case to a magistrate judge, who furnished
Green with a questionnaire in lieu of a hearing.
In his responses to the questionnaire, Green 1
“Priority I needs are emergency or urgent
noted that he controlled his loose dentures
problems including traumatic injuries, severe pain,
with adhesive and had not seen a dentist since infection, and swelling.” Priority II needs include
the early 1970’s. He further explained that the “[f]ull dentures or false teeth . . . for offenders with
Marshall Formby State Jail, his next facility, few teeth or no teeth at all.” Priority III care is
replaced his dentures when twelve months had available after an inmate has served at least six
elapsed. Green also presented a copy of the months in the TDCJ system. Priority III care, such
TDCJ’s dental services policy, which set forth as cleanings, fillings, and partial dentures, are
available after twelve months.
2
Showers, 174 F.3d 716, 718 (5th Cir. 1999). Amendment . . . unless the of-
“A complaint is factually frivolous when the ficial knows of and disregards
facts alleged are fantastic or delusional an excessive risk to inmate
scenarios or the legal theory upon which a health or safety; the official
complaint relies is indisputably meritless.” must both be aware of facts
Harris, 198 F.3d at 156 (internal quotations from which the inference could
omitted). We review a dismissal of an IFP suit be drawn that a substantial risk
as frivolous for abuse of discretion. Berry v. of serious harm exists, and he
Brady, 192 F.3d 504, 507 (5th Cir. 1999). must also draw the inference.
Farmer v. Brennan, 114 S. Ct.
A. 1970, 1980 (1994).
Green contends the court did not construe
his pleadings liberally. “[C]ourts must liberally “It is firmly established that
construe pro se pleadings.” United States v. negligent or mistaken medical treatment
Riascos, 76 F.3d 93, 94 (5th Cir. 1996). Con- or judgment does not implicate the
struing Green’s pleadings liberally, he alleges eighth amendment and does not provide
that the John Middleton facility treated his the basis for a civil rights action.”
condition as a Priority III when he had a Graves v. Hampton, 1 F.3d 315, 319
Priority I emergency. Green believes that his (5th Cir. 1993).
“severe pain” and “swelling” bring him within
the ambit of Priority I, while Priority III should Even though the district court did not
be reserved for “cosmetic” treatments. directly address whether the prison officials
The district court’s opinion essentially ad- misprioritized Green’s condition, the decision
dresses this issue. In discussing the standard to classify a medical problem as a Priority III
applicable to Green’s Eighth Amendment rather than a Priority I is part of the doctor’s
claim, the court notes: diagnosis and recommendation for treatment.
The above reasoning, then, applies the same
Not every claim of inadequate or to the issue of prioritization as it does to
improper medical treatment is a Green’s more general claim of deliberate in-
violation of the Constitution. Estelle v. difference. Thus, Green gains nothing by a
Gamble, 429 U.S. 97, 105-07 [(1976)]. more liberal construction, and the district court
“In order to state a cognizable claim, a did not err in that regard. The question
prisoner must allege acts or omissions remains, however, whether the court erred in
sufficient ly harmful to evidence finding the claim frivolous.
deliberate indifference to serious medical
needs.” Id. at 106. B.
1.
The Supreme Court has defined de- Green sued several of the prison officials in
liberate indifference as “subjective reck- their supervisory capacities. Supervisory of-
lessness” and: ficials are not liable for the actions of their
subordinates on a theory of vicarious liability
[A] prison official cannot be or respondeat superior. Thompkins v. Belt,
found liable under the Eighth 828 F.2d 298, 303 (5th Cir. 1987).
3
“Supervisory officials may be held liable only deprivation of food does not deny a prisoner
if: (i) they affirmatively participate in acts that the “minimal measure of life’s necessities,” it
cause constitutional deprivations; or (ii) they does not violate the Constitution. Id. (quoting
implement unconstitutional policies that Talib v. Gilley, 138 F.3d 211, 213 n.3 (5th
causally result in plaintiff’s injury.” Mouille v. Cir. 1998). Even missing fifty meals in five
City of Live Oak, 977 F.2d 924, 929 (5th Cir. months does not violate the Constitution; in-
1993). deed, two meals per day may be adequate. Id.
Green has no constitutionally-protected right
With respect to Warden Lampert, Assistant to consume his meals at a rate that pleases
Warden Duke, Nurse McKinney, and Mrs. him.
Brown, Green has alleged only that they de-
nied his grievances. A denial of a prison griev- To the extent that eating quickly
ance, even when officials fail to follow internal exacerbated his medical condition, Green’s
regulations is not tantamount to a con- complaint is not with the dining hall policy, but
stitutional violation. See Hernandez v. Estelle, with his medical treatment. Prison officials of-
788 F.2d 1154, 1158 (5th Cir. 1986). fered Green a blended food pass, which he
Moreover, Green has not alleged that these refused. An inmate’s disagreement with med-
defendants creat ed the policy in question. ical treatment does not give rise to a con-
Thus, the district court did not abuse its stitutional claim. Martinez v. Turner, 977
discretion in finding that Green’s description F.2d 421, 423 (8th Cir. 1992). Thus, the court
of these defendants’ involvement in his dental did not err in dismissing this portion of
care did not establish liability under § 1983. Green’s claim as frivolous, because Green
The court correctly dismissed these claims as seeks to protect a legal interest that does not
frivolous. exist.
2. 3.
Green contends that forcing inmates to Collier, by contrast, had personal
finish their meals in five to eight minutes vio- involvement in examining Green and denying
lates the Eighth Amendment. He intentionally him treatment. Green argues that Collier was
did not name any of the dining hall supervisors deliberately indifferent to his medical needs, by
in his complaint that the district court refusing to replace or reline his dentures soon-
dismissed as frivolous; therefore, he challenges er and by refusing to treat his sore gums. To
only the constitutionality of the policy.2 succeed on this claim, Green must show that
The Eighth Amendment requires that in- Collier was deliberately indifferent to his seri-
mates be provided well-balanced meals with ous medical needs, knowingly inflicting wan-
sufficient nutritional value to preserve health. ton and unnecessary pain. See Stewart v. Mur-
Berry, 192 F.3d at 507. If, however, a phy, 174 F.3d 530, 533 (5th Cir.), cert.
denied, 528 U.S. 906 (1999). Inadequate
treatment may rise to the level of a
2
The court dismissed the claim as frivolous in constitutional violation, but negligent care or
part because Green did not name the dining hall malpractice does not. Id. at 534.
supervisors in his complaint. We may affirm the
district court, however, on any basis supported by Although this standard raises a high bar to
the record. Berry, 192 F.3d at 507.
4
prisoners’ claims, the facts Green alleges may deliberately indifferent to an inmate’s medical
support a claim under the Eighth Amendment. needs when he left a cavity untreated for one
For the dismissal to be proper, Green’s claim year after discovering the condition.3
must lack an arguable basis in law or fact; it
must rest on the violation of a legal interest These cases demonstrate that in closely an-
that does not exist or allege baseless facts. alogous fact situations, courts have recognized
Berry, 192 F.3d at 507. Green has alleged that claims of deliberate indifference. Certainly, the
Collier examined him but refused to provide district court might have distinguished Green’s
him with new or relined dentures or to treat his case from the aforementioned examples on the
gums. Although “a prison official is not liable basis that he refused the palliative measure
for the denial of medical treatment ‘unless the offered him; indeed, Green never asserted that
official knows of and disregards an excessive the blended food would not alleviate his pain.
risk to inmate health or safety,’” Harris, 198 The court also might find that Green’s
F.3d at 159 (citing Stewart, 174 F.3d at 534), condition lacked sufficient degenerative impact
Green’s claim is not “indisputably meritless.” to require Collier to treat him more quickly.
Harper, 174 F.3d at 718. Additionally, the court might construe
Collier’s actions as merely negligent treatment.
Deprivation of dental treatment may As the district court noted, “[u]nsuccessful
constitute deliberate indifference. In Harris, medical treatment does not give rise to a
198 F.3d at 159-60, we recognized that a § 1983 cause of action,” nor does “mere
prisoner presented a cognizable Eighth negligence, neglect, or medical malpractice.”
Amendment claim where prison officials Varnando v. Lynaugh, 920 F.2d 320, 321 (5th
denied him access to dental care for his broken Cir. 1991).4
jaw and forced him to eat solid food. One
circuit countenanced an Eighth Amendment This analysis, though, indicates that Green
claim where an inmate’s lost dentures caused has alleged facts sufficient to raise an Eighth
him bleeding gums, interfered with his ability Amendment issue about which reasonable le-
to eat, and permanently damaged his teeth, but gal minds could differ. Therefore, this claim is
prison officials failed to relieve his pain or not, on its face, indisputably meritless. The
prescribe a soft food diet. See Hunt v. Dental court may have erred in dismissing this claim
Dep’t, 865 F.2d 198, 200 (9th Cir. 1989). as frivolous.
In Chance v. Armstrong, 143 F.3d 698 (2d
Cir. 1998), the court held that a prison
dentist’s refusal to fill a cavity rose to the level 3
of deliberate indifference, because the tooth See also Williams v. Scully, 552 F. Supp.
deteriorated to the point that it had to be 431, 432 (S.D.N.Y. 1982) (finding that making an
inmate wait 5½ months for a cavity filling
pulled. The Chance court found significant
presented an issue of material fact as to deliberate
that the prisoner’s inability to chew properly indifference).
caused extreme pain and impaired his daily
activities. Id. at 702-03. Similarly, the court in 4
“Medical malpractice does not become a con-
Harrison v. Barkley, 219 F.3d 132, 137-39 stitutional violation merely because the victim is a
(2d Cir. 2000), found that a prison dentist was prisoner.” Estelle v. Gamble, 429 U.S. 97, 106
(1976).
5
III. action . . . is inherently plausible and internally
The district court correctly noted that consistent, a court may not for purposes of a
“[m]edical records of sick calls, examinations, [§ 1915(e)] dismissal simply choose to believe
diagnoses, and medications may rebut an conflicting material facts alleged by the
inmate’s allegations of deliberate indifference.” defendants. It is only for the trier of fact to
Banuelos v. McFarland, 41 F.3d 232, 235 decide which party is more believable.”
(5th Cir. 1995). If the court relied on properly Wesson v. Oglesby, 910 F.2d 278, 282 (5th
authenticated medical records from the John Cir. 1990).
Middleton facility, then it may have properly
dismissed the claim. Green argues, however, Moreover, if these records were presented
that the court improperly relied on medical during the magistrate judge’s factfinding pro-
records from the Marshall Formby facility, the cess in accordance with Spears v. McCotter,
prison to which he was transferred following 766 F.2d 179 (5th Cir. 1985), overruled on
his stay at John Middleton. Green maintains other grounds by Denton v. Hernandez, 504
that after the initial examination, he received U.S. 25 (1992), the district court arguably
no medical treatment at John Middleton; these used the documents impermissibly to refute
records document treatment after the time of Green’s testimony. See Norton v. Dimazana,
the alleged Eighth Amendment violation. 122 F.3d 286, 292 (5th Cir. 1997) (noting that
a defendant may not use medical records to
A court may base a dismissal under 28 defeat a prisoner’s testimony at a Spears hear-
U.S.C. § 1915(e) “on medical or other prison ing). In a Spears hearing, “the court should
records if they are adequately identified and allow proper cross-examination.” Id. Green
authenticated.” Banuelos v. McFarland, 41 asserts that the court did not allow him to
F.3d 232, 234 (5th Cir. 1995). Although we review or refute this evidence against him.
grant wide discretion to the district court to
dismiss prisoners’ IFP complaints as frivolous, IV.
the court must use authentic and reliable evi- Without more before us, we cannot
dence. If such documents are not adequately determine conclusively whether the district
authenticated, judgments that rely on them court improperly used and relied on these
must be vacated. Wilson v. Barrientos, 926 records. Further, without resolving the
F.2d 480, 483 (5th Cir. 1991). question of fact as to the institution whence
the records come, we cannot decide whether
The court found that “[b]etween the time the court properly dismissed Green’s claim as
plaintiff entered [the Texas prison system] and frivolous.
the time he received his new dentures, he was
seen by the medical department eleven times Accordingly, we AFFIRM the dismissal of
and was scheduled for thirteen meetings.” The Green’s claims against Warden Lampert, As-
court does not indicate from which facility sistant Warden Duke, Nurse McKinney, and
these records came. These documents are not Mrs. Brown. We AFFIRM the dismissal of
part of the record on appeal; without them, we the claim that the prison dining policy violated
cannot determine the credibility either of Green’s Eighth Amendment rights. We
Green or of the records. “[I]f a prisoner’s VACATE and REMAND the dismissal of the
version of the facts underpinning a civil rights claims against Dr. Collier for factual findings
6
consistent with this opinion. We express no
view as to the appropriate ultimate resolution
of these claims.
7