Ramirez v. Stacks

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-41447
Summary Calendar Charles R. Fulbruge III
Clerk
ALFRED R RAMIREZ
Plaintiff-Appellant
v.
DAVID STACKS, individually and in his official capacity as Senior
Warden; DAVID ONURA, individually and in his official
capacity as Legal Custodian over confinement; ROBERT YOUNG,
individually and in his official capacity as Physician
Assistant; DR BETTY WILLIAMS, individually and in her official
capacity as Dr at University of Texas Medical Branch;
DR STANLEY D ALLEN, individually and in his official capacity
as Dr for University of Texas Medical Branch; MIKE MEGNA,
individually and in his official capacity as University of Texas
Medical Brach Administrator; GLENDA ADAMS, individually and in
her official capacity as Agency for University of Texas Medical
Branch Administrator; SHANTA CRAWFORD, individually and in her
official capacity as University of Texas Medical Branch Employee
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:06-CV-15
Before KING, DAVIS and CLEMENT, Circuit Judges.
No. 06-41447
PER CURIAM:*
Alfred R. Ramirez, Texas prisoner # 593092, appeals from the district
court’s dismissal of his 42 U.S.C. § 1983 action as frivolous. Ramirez contends
that he received constitutionally inadequate medical care. He further contends
that the magistrate judge made impermissible credibility and factual findings
that should have been made by a jury.
Ramirez’s medical records were authenticated. The magistrate judge thus
could rely on those records to make findings as to whether Ramirez received
constitutionally inadequate care for his tibia fracture, without making
impermissible credibility determinations. See Banuelos v. McFarland, 41 F.3d
232, 235 (5th Cir. 1995).
The records in Ramirez’s case do not indicate deliberate indifference to his
serious medical needs. The medical personnel treating Ramirez were concerned
about cancer early on--a September 1, 2003, x-ray indicated osteochondroma,
and a December 11, 2003, bone scan raised concern about cancer. A January 28,
2004, MRI did not settle the issue whether Ramirez’s exostosis was caused by
cancer or a stress fracture. However, the possibility of a compression fracture
was noted on September 4, 2003, yet the issue of cancer versus a fracture
evidently was not decided until after a March 31, 2004, CT scan. The records
suggest that it took medical personnel several months to diagnose the problem
correctly, but that they ran numerous medical tests and attempted to diagnose
the problem.
Once the fracture was diagnosed definitively, as reflected by an April 12,
2004, x-ray, Ramirez received a leg cast and crutches. When the cast frayed, it
was wrapped in a bandage and Ramirez was given a garbage bag to wrap around
it during showers. When the cast broke, the prison physician contacted the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
2
No. 06-41447
University of Texas Medical Branch (UTMB) and immobilized Ramirez’s knee
until he could be returned to UTMB for the cast to be fixed. UTMB personnel
discussed various treatment options with Ramirez on May 3, 2004. Ramirez was
wearing his long leg cast during his visit with the prison physician on June 4,
2004, though he evidently was not wearing it on June 11, 2004. However, he
received shower passes and cane passes that lasted well into 2005. Moreover,
Ramirez was given pain medications throughout the period, albeit commonly
available ones.
The medical records indicate that medical personnel at the Eastham Unit
and at UTMB knew about Ramirez’s tibia problem, that they worked to diagnose
it, and that they treated it in a medically appropriate manner. Ramirez thus has
not demonstrated that the defendants knew of a substantial risk of harm to his
health and that they disregarded the risk by failing to take reasonable measures
to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). Moreover, the delay
in Ramirez’s diagnosis and treatment did not cause him substantial harm--an
August 1, 2005, x-ray did not indicate recent or acute bone pathology, though a
broad based exostosis remained. Ramirez thus has not shown that the delay
constituted an Eighth Amendment violation. See Mendoza v. Lynaugh, 989 F.2d
191, 195 (5th Cir. 1993).
The district court’s determination that Ramirez’s allegations lacked a basis
in law and, therefore, were frivolous, was not an abuse of discretion. See Denton
v. Hernandez, 504 U.S. 25, 31-33 (1992). We therefore affirm the dismissal of
Ramirez’s action as frivolous.
The district court’s dismissal of Ramirez’s action counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). We warn Ramirez that once he accumulates three strikes, he
may not proceed in forma pauperis (IFP) in any civil action or appeal unless he
“is under imminent danger of serious physical injury. § 1915(g).
AFFIRMED. SANCTION WARNING ISSUED.
3