Neal v. Vogelgesang

U.S. DISTRICT COURT

NORTHERN DISTRICT OF TE

IN THE UNITED STATES DISTRICT co FILED

FOR THE NORTHERN DISTRICT OF TEXA

AMARILLO DIVISION

DANIEL NEAL, § Or U.S. DISTRICT cou

TDCJ-CID No. 01624027, § Deputy

Plaintiff,

Vv. 2:18-CV-026-Z-BR

RIC VOGELGESANG, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

DISMISSING CIVIL RIGHTS COMPLAINT

Plaintiff, Daniel Neal, acting pro se and while a prisoner incarcerated in the Texas

Department of Criminal Justice (“TDCJ”), Correctional Institutions Division, has filed suit

pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced

Defendants and has been granted permission to proceed in forma pauperis. For the following

reasons, Plaintiff's civil rights Complaint is DISMISSED.

BACKGROUND

On April 1, 2019, Plaintiff filed his Amended Complaint. ECF No. 18. Plaintiff sues

Defendants Ric Vogelgesang, Leslie Lindsey, and Myra L. Walker. See id.

In his Amended Complaint, Plaintiff articulates failures in the medical care he received

while incarcerated at the TDCJ Clements Unit in Amarillo, Texas. See id. Plaintiff claims that on

August 24, 2017, he was denied a medical appointment because the officers refused to wait for

him to finish brushing his teeth to take him to the appointment. See id. at 7. Plaintiff was concerned

his medications might be discontinued the following month if he was not seen by a provider as

scheduled, so a nurse came to his cell to discuss the missed appointment. See id.

Plaintiff complains that Defendants discontinued certain medications even though

Plaintiff's medical records did not support such an action. See id. Specifically, Plaintiff asserts

Defendant Lindsey discontinued his “Effexors” on September 13, 2017. See id. at 13. Plaintiff

asserts that he provided notice that the Effexors did not work without his Benadryl! prescription,

and that the discontinuation was inappropriate for this reason. See id. However, the response to the

Step 2 grievance filed by Plaintiff indicates that the Defendant Lindsey discontinued his

medication because he did not take it regularly. See id. at 10. Further, Plaintiff submitted his lab

work from August 28, 2017, indicating he was tested for compliance with his medication on that

date, prior to the discontinuation of the prescription. See id. at 20. Plaintiff asserts he was later put

back on “Effexors”. See id. at 23.

Plaintiff claims Defendant Lindsey retaliated against him by discontinuing his medication

and not scheduling a new appointment because he told Mental Health Services that he would file

a lawsuit about his medical care. See id. at 27.

Plaintiff's claims against Defendant Vogelgesang are based on his supervisory capacity of

Defendant Lindsey. Plaintiff claims Defendant Vogelgesang failed to correct the medical mistakes

committed by his subordinates. See id. Plaintiff's claims against Defendant Walker are based on

Defendant Walker’s denial of Plaintiff's Step 2 grievance for these claims. See id. at 28.

STANDARDS

When a prisoner confined in any jail, prison, or other correctional facility brings an action

with respect to prison conditions under federal law, the Court may evaluate the complaint and

dismiss it without service of process if the complaint is frivolous', malicious, fails to state a claim

upon which relief can be granted, or seeks monetary relief from a defendant who is immune from

such relief. 28 U.S.C. §§ 1915A, 1915(e)(2); see also Ali v. Higgs, 892 F.2d 438, 440 (Sth Cir.

1990). The same standards will support dismissal of a suit brought under federal law by a prisoner

confined in any jail, prison, or other correctional facility, where such suit concerns prison

conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be conducted for every pro se

complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991).

ANALYSIS

“[D]eliberate indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain’... proscribed by the Eighth Amendment.” Estelle v.

Gamble, 429 U.S. 97, 104 (1976). Such indifference may be “manifested by prison doctors in their

response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to

medical care or intentionally interfering with the treatment once prescribed.” Jd. Medical records

showing sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations

of deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (Sth Cir. 1995). A delay in

A claim is frivolous if it lacks an arguable basis in law or in fact. Booker v. Koonce, 2 F.3d 114, 115 (Sth Cir. 1993);

see also Denton v. Hernandez, 504 U.S. 25 (1992).

2 Green vs. McKaskle, 788 F.2d 1116, 1120 (Sth Cir. 1986) (“Of course, our discussion of Spears should not be

interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should

be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together

with the Watson questionnaire.”)

medical care to a prisoner can constitute an Eighth Amendment violation only if there has been

deliberate indifference, which results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195

(5th Cir. 1993).

Deliberate indifference “is an extremely high standard to meet.” Hernandez v. Tex. Dep’t

of Protective & Regulatory Servs., 380 F.3d 872, 882 (5th Cir. 2004). (““We begin by emphasizing

that our court has interpreted the test of deliberate indifference as a significantly high burden for

plaintiffs to overcome.”). A prison official acts with deliberate indifference “only if (A) he knows

that inmates face a substantial risk of serious bodily harm and (B) he disregards that risk by failing

to take reasonable measures to abate it.” Gobert v. Caldwell, 463 F.3d 339, 346 (Sth Cir. 2006)

(citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)); see also Reeves v. Collins, 27 F.3d 174,

176-77 (Sth Cir. 1994)). Unsuccessful medical treatment, acts of negligence or medical

malpractice do not constitute deliberate indifference, nor does a prisoner’s disagreement with his

medical treatment, absent exceptional circumstances. Hall v. Thomas, 190 F.3d 693 (Sth Cir.

1999); Stewart v. Murphy, 174 F.3d 530, 537 (Sth Cir.1999); Banuelos v. McFarland, 41 F.3d 232,

235 (Sth Cir. 1995); Varnado v. Lynaugh, 920 F.2d 320, 321 (Sth Cir. 1991).

A showing of deliberate indifference requires the prisoner to submit evidence that prison

officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or

engaged in any similar conduct that would clearly evince a wanton disregard for any serious

medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (Sth Cir. 1985) (internal punctuation

omitted). The Fifth Circuit has defined a “serious medical need” as “one for which treatment has

been recommended or for which the need is so apparent that even a layman would recognize that

care is required.” Gobert, 463 F.3d at 345 n.12 (emphasis added).

Here, Plaintiff does not allege deliberate indifference, rather, at best he alleges malpractice

or negligence. However, 42 U.S.C. § 1983 is not a general tort statute, and mere negligence does

not meet the standard for liability. Daniels v. Williams, 474 U.S. 327, 331-34 (1986). Plaintiff

acknowledges that medical tests were performed (blood work), and medical visits occurred both

before and after the discontinuation of his medication. See ECF No. 20, at 13-20. Further,

Plaintiffs claims that Defendant Lindsey acted out of retaliation based on a threatened lawsuit are

entirely conclusory. A prisoner has a heavy burden to establish a claim of retaliation; he must do

more than make mere conclusory allegations. Woods v. Smith, 60 F.3d 1161, 1166 (Sth Cir. 1995);

see Johnson v. Rodriguez, 110 F.3d 299, 310 (Sth Cir. 1997). Thus, Plaintiff's claims against

Defendant Lindsey should be dismissed for failure to state a claim.

Plaintiff's claims against Defendant Vogelgesang are based solely on his supervisory

capacity. In 42 U.S.C. § 1983 suits, liability of government officials for the unconstitutional

conduct of their subordinates may not rest solely upon a theory of respondeat superior or vicarious

liability. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (citing Robertson v. Sichel, 127 U.S. 507,

515-16 (1888)); see also Roberts v. City of Shreveport, 397 F.3d 287, 292 (Sth Cir. 2005) (“Under

section 1983, supervisory officials are not liable for the actions of subordinates on any theory of

vicarious liability.”). Thus, supervisory officials are not subject to vicarious liability under 42

U.S.C. § 1983 for the acts or omissions of their subordinates. See Mouille v. City of Live Oak, Tex.,

977 F.2d 924, 929 (Sth Cir. 1992).

Absent direct personal participation in the alleged constitutional violation, a plaintiff must

prove that each individual defendant either implemented an unconstitutional policy that directly

resulted in injury to the plaintiff or failed to properly train a subordinate employee. See Porter v.

Epps, 659 F.3d 440, 446 (Sth Cir. 2011); Thompkins v. Belt, 828 F.2d 298, 303-04 (Sth Cir. 1987).

Thus, Plaintiff's claims against defendant Vogelgesang should be dismissed with prejudice.

Finally, Plaintiffs claims against Defendant Walker for her response to Plaintiff's Step 2

grievance are frivolous. A prisoner does not have a constitutionally protected interest in having his

complaints and grievances resolved to his satisfaction. Geiger v. Jowers, 404 F.3d 371, 374 (Sth

Cir. 2005).

CONCLUSION

For the reasons set forth above and pursuant to Title 28, United States Code, sections

1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(a), it is ORDERED

that the Civil Rights Complaint by Plaintiff filed pursuant to Title 42, United States Code, section

1983 be DISMISSED without prejudice for failure to state a claim and with prejudice as frivolous.

SO ORDERED.

November LO, 2020. Me

MAYTHEW J. KACSMARYK

TED STATES DISTRICT JUDGE