Bruce Rogers v. Shawna Boatright

Case: 12-20063 Document: 00512145612 Page: 1 Date Filed: 02/18/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 18, 2013

No. 12-20063 Lyle W. Cayce

Clerk

BRUCE A. ROGERS,

Plaintiff-Appellant

v.

SHAWNA TALBOT BOATRIGHT, Supervisor, Texas Department of Criminal

Justice-Correctional Institution Division; JOSE L. GARCIA, JR.,

Transportation Driver, Security; HERBERT J. GARCIA, Transportation

Driver, Security,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, JONES, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Bruce A. Rogers, Texas prisoner # 566928, appeals the district court’s sua

sponte dismissal of his civil rights complaint as frivolous and for failure to state

a claim upon which relief may be granted. We REVERSE in part, AFFIRM in

part, and REMAND for further proceedings not inconsistent with this opinion.

FACTS AND PROCEEDINGS

Rogers filed a pro se civil rights complaint in the district court, naming as

defendants corrections officers Jose L. Garcia, Jr. and Herbert J. Garcia, and

their supervisor, Shawna T. Boatright. Rogers complained that he was seriously

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No. 12-20063

injured when the prison van in which he was riding stopped abruptly, and that

he was provided with inadequate and untimely medical care for his injuries.

The following factual statements are in Rogers’s affidavit appended to the

complaint. On the morning of June 10, 2008, Jose Garcia and Herbert Garcia

were transporting Rogers to the Houston Veterans Hospital (“V.A. hospital”) in

a prison van. Jose Garcia was driving the van recklessly, darting in and out of

traffic at high speeds while Rogers was caged in the back. Rogers sat on a

narrow bench that ran the length of the caged portion of the van, shackled in leg

irons and handcuffs that were attached together by a chain. There was no

seatbelt. At one point, Garcia was driving so fast that he had to brake hard to

avoid hitting a vehicle in front of him. Rogers was thrown head-first into the

end of the cage. He could not break his fall because of his leg irons and

handcuffs. Rogers sustained head, neck, spinal, vision, and hand injuries. There

was a three-inch laceration on his scalp and his hand was gouged open to the

bone. He was bleeding profusely. When asked if he was okay, he responded “No,

you got me pretty good, I’m bleeding everywhere.”

Jose Garcia continued on to the V.A. hospital without stopping to check

Rogers’s condition. He called the prison dispatch to report the incident. The

dispatch instructed Garcia to run Rogers through the V.A. hospital, since they

were already there. A V.A. physician interviewed Rogers and instructed Jose

Garcia and Herbert Garcia, “when [the physician] finished with the interview,

x-rays and blood tests[,] to take [Rogers] to the emergency room and EM [sic]

would take care of [Rogers’s] open bleeding wounds.”1 Jose Garcia did not reply

to the physician’s instruction. Instead of taking Rogers to the emergency room,

the officers took him back to the medical department at the Wayne Scott Unit,

1

It appears that there were no x-rays or blood work performed on Rogers that day. In

his opening appellate brief, Rogers seems to indicate that the physician only interviewed him

and intended for the x-rays and blood work to be performed in the emergency room.

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resulting in a five-and-a-half hour delay in the treatment of his injuries. Upon

their return to the prison unit, “Officer Courtney asked if these type[s] of

incidents occurred often and [Garcia] stated ‘Yes’ that just the week before there

had been a [similar] incident where ‘Six’ other inmates were injured due to

having to slam on the brakes. He said, ‘it happens all the time, isn’t a big deal.’”

Rogers is still being treated for serious injuries to his back and for vision

problems resulting from the incident.

The district court permitted Rogers to proceed in forma pauperis (IFP).

In its initial screening of the case, the court determined that Rogers’s complaint

was frivolous and failed to state a claim upon which relief may be granted. The

court concluded that Rogers’s allegations with respect to Jose Garcia’s unsafe

driving merely asserted a claim of negligence or gross negligence and did not

raise a constitutional claim. The court also concluded that Rogers had failed to

allege facts showing that the defendants had acted with deliberate indifference

to his serious medical needs or that Rogers’s medical condition was worsened by

the delay in treatment. Before the defendants filed any responsive pleadings,

the court sua sponte dismissed the complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B).2 Rogers gave timely notice of his appeal, and he has paid the

appellate filing fee.

2

28 U.S.C. § 1915(e)(2) applies to IFP proceedings and states, in pertinent part, the

following:

Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that . . . the

action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such

relief.

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DISCUSSION

A. Standard of Review

This court reviews the dismissal of a civil rights complaint as frivolous for

an abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). A

dismissal of a civil rights complaint for failure to state a claim is reviewed de

novo, using the same standard applicable to dismissals under Federal Rule of

Civil Procedure 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).

Under that standard, a complaint fails to state a claim upon which relief may be

granted when it does not contain “sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation omitted). Allegations of pro se complaints are held to

less stringent standards than formal pleadings drafted by lawyers. Haines v.

Kerner, 404 U.S. 519, 520-21 (1972).

B. Analysis

“To plead a constitutional claim for relief under § 1983, [a plaintiff must]

allege a violation of a right secured . . . by the Constitution or laws of the United

States and a violation of that right by one or more state actors.” Johnson v.

Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994). Under 28 U.S.C. §

1915(e)(2)(B)(i) & (ii), the district court shall dismiss an IFP complaint at any

time if it determines that the complaint is frivolous or malicious or fails to state

a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199, 202

(2007) (holding that Prison Litigation Reform Act mandates early judicial

screening of prisoner complaints). “A complaint is frivolous if it lacks an

arguable basis in law or fact. A complaint lacks an arguable basis in law if it is

based on an indisputably meritless legal theory, such as if the complaint alleges

the violation of a legal interest which clearly does not exist.” Berry, 192 F.3d at

507 (quotations omitted). “A complaint lacks an arguable basis in fact if, after

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providing the plaintiff the opportunity to present additional facts when

necessary, the facts alleged are clearly baseless.” Id. (quotation omitted).

Under the Eighth Amendment, conditions of confinement in state prisons

must be “humane” and “must not involve the wanton and unnecessary infliction

of pain.” Palmer v. Johnson, 193 F.3d 346, 351-52 (5th Cir. 1999) (quoting

Rhodes v. Chapman, 452 U.S. 337, 347 (1981), and Farmer v. Brennan, 511 U.S.

825, 832 (1994)). Eighth Amendment claims have objective and subjective

components. Id. at 352. The deprivation alleged must be “objectively,

sufficiently serious,” and the prison official sued must have a sufficiently

culpable state of mind—that is, the official must have been deliberately

indifferent to the prisoner’s health and safety. Id. (quoting Farmer, 511 U.S. at

834). “To establish deliberate indifference, the prisoner must show that the

defendants (1) were aware of facts from which an inference of an excessive risk

to the prisoner’s health or safety could be drawn and (2) that they actually drew

an inference that such potential for harm existed.” Id. (quotation omitted).3

1. Whether the district court erred in sua sponte dismissing as frivolous

and for failure to state a claim Rogers’s claim that a corrections officer,

knowing that Rogers was shackled and without a seatbelt in a prison van’s

security cage, acted with deliberate indifference to Rogers’s safety by

driving the van recklessly.

The district court erred in sua sponte dismissing at the initial screening

stage Rogers’s claim that Jose Garcia acted with deliberate indifference to his

safety. Rogers alleged in his complaint that he was not provided with a seatbelt

and that he could not protect himself when the prison van stopped abruptly

because he was shackled in leg irons and handcuffs. He alleged that Jose Garcia

knew that other prisoners had been injured when the prison van in which they

3

Rogers has failed to brief his claims against Shawna Boatright and has therefore

waived his claims against her. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Fed.

R. App. P. 28(a)(9) (requiring brief to contain contentions, reasons for them, and citations to

authority and record).

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were riding stopped abruptly. Notwithstanding that knowledge, Garcia drove

the van recklessly and Rogers sustained serious injuries when Garcia had to

brake suddenly to avoid hitting another vehicle.

In Crumbliss v. Darden, 469 F. App’x 325 (5th Cir. Mar. 27, 2012)

(unpublished), a prisoner alleged that he was injured while riding in a prison

van. Crumbliss, 469 F. App’x at 326-27. The prisoner was in a wheelchair with

a halo brace on his leg because of a prior injury. Although the defendant prison

guards knew that there were no tie-down straps in the van for the wheelchair,

the defendant supervisor instructed the guards to use the van to transport the

prisoner. The prisoner’s leg was re-injured when the chair was jostled because

of the way the van was driven by one of the guards. The prisoner sued the two

guards and their supervisor, alleging that the defendants had acted with

deliberate indifference to his safety. The defendants moved for summary

judgment. In granting the motion, the district court held that the prisoner had

not shown that the defendants knew subjectively that the prisoner had been

placed at substantial risk of serious harm. We held that the summary judgment

evidence supported the district court’s conclusion that the defendants had not

acted with deliberate indifference.

In Cooks v. Crain, 327 F. App’x 493 (5th Cir. May 15, 2009) (unpublished),

a prisoner complained that he was being transported in vehicles that lacked

seatbelts. Cooks, 327 F. App’x at 493. In affirming the dismissal of the civil

rights complaint as frivolous, we reasoned that the inmate’s complaint did not

concern a present and continuing harm but merely asserted “the need for an

extra measure of safety against the possibility of harm.” Id. at 494

(distinguishing Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that

prisoner stated an Eighth Amendment claim by alleging that prison officials had

acted with deliberate indifference to his exposure to second-hand tobacco

smoke)); see also Bell v. Norwood, 325 F. App’x 306, 307-08 (5th Cir. Apr. 13,

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2009) (unpublished) (affirming dismissal of civil rights claim because inmate did

not show that prison officials infringed his constitutional rights by transporting

him in a vehicle without seatbelts).

In Jabbar v. Fischer, 683 F.3d 54 (2d Cir. 2012) (citing Cooks and

distinguishing Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008)), the Second

Circuit held that the failure of supervisory prison officials to provide seatbelts

to inmates riding in prison vehicles, standing alone, does not violate an inmate’s

Eighth Amendment rights.

The Eight Circuit, however, has allowed claims to proceed with facts more

similar to those now before us—namely, the additional allegation of reckless

driving. In Brown, an inmate sued the driver of a prison van, alleging that he

was injured when the driver operated the van recklessly after refusing to buckle

the inmate’s seatbelt. Brown, 518 F.3d at 559-60. The inmate was unable to

buckle the seatbelt himself because he was shackled. The Eighth Circuit

affirmed the district court’s order denying the defendant driver’s claim to

qualified immunity and motion for summary judgment. Id. at 559-60.

Rogers alleged that he sustained a serious injury because Jose Garcia

operated the prison van recklessly, knowing that there was a substantial risk

that Rogers would be injured if the van stopped abruptly because Rogers was

shackled in leg irons and handcuffs and was not provided with a seatbelt.

Rogers’s allegation that Jose Garcia told another officer that other inmates

similarly had been injured the prior week and during other incidents, which

“happen[] all the time,” states more than mere negligence. Garcia’s alleged

statement, if true, is sufficient to demonstrate that he knew of the risk to

Rogers. See Palmer, 193 F.3d at 352.

Our holdings in Cooks and Bell and the Second Circuit’s holding in Jabbar

are distinguished because those cases did not involve the additional allegation

that the prisoner was injured when the defendant operated the prison vehicle

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recklessly knowing of the danger to the prisoner. Our holding in Crumbliss is

also distinguished because the complaint there was dismissed after the

defendant’s motion for summary judgment, and not at the initial pleading stage.

We should note, however, that although persuasive and deserving respect, we

are not bound by these decisions.4

In the light of these distinctions, Rogers has a nonfrivolous argument that

Jose Garcia violated his Eighth Amendment right to freedom from cruel and

unusual punishment by acting with deliberate indifference to his safety. See

Brown, 518 F.3d at 559-60. Thus, the district court abused its discretion in sua

sponte dismissing this claim against Jose Garcia at the initial screening stage

and before the filing of any responsive pleadings, and we remand for further

proceedings not inconsistent with this opinion. We, of course, express no opinion

on the ultimate merits of Rogers’s claim.

2. Whether the district court erred in sua sponte dismissing Rogers’s

denial of medical care claim, when corrections officers ignored a

physician’s orders to take Rogers to the emergency room and instead drove

him back to the prison to visit the medical department.

The district did not err in sua sponte dismissing Rogers’s denial of medical

care claim against Jose Garcia and Herbert Garcia.

Prisoners are entitled to receive “‘adequate . . . medical care.’” Easter v.

Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 832). “A

prison official violates the Eighth Amendment’s prohibition against cruel and

unusual punishment when his conduct demonstrates deliberate indifference to

a prisoner’s serious medical needs, constituting an ‘unnecessary and wanton

infliction of pain.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “A

prison inmate can demonstrate an Eighth Amendment violation by showing that

a prison official refused to treat him, ignored his complaints, intentionally

4

Our decisions in Cooks, Bell, and Crumbliss are non-precedential.

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treated him incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs. ” Id. at 464 (quotation

omitted).

Again, there is both an objective and subjective standard. “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 (5th Cir. 2006) (quoting Farmer, 511 U.S. at 847) (holding that prisoner

failed to demonstrate that a physician disregarded a known substantial health

risk, as required to establish deliberate indifference to serious medical need).

“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.” Id. “[D]elay in

medical care can only constitute an Eighth Amendment violation if there has

been deliberate indifference that results in substantial harm.” Easter, 467 F.3d

at 464 (quotation omitted).

Rogers does not dispute that he was examined and treated by a physician

after he was returned by Jose Garcia and Herbert Garcia to his prison unit.

Nevertheless, he complains that the prison physician’s examination was

perfunctory and that his injuries were dismissed as superficial. He states for the

first time on appeal that the extent of his injuries was only fully discovered more

than a year after the incident when an MRI was performed, and that prison

officials have refused to give him morphine as prescribed by his treating

neurologist.

Because Rogers has not sued any medical personnel, the only issue is

whether Jose Garcia and Herbert Garcia acted with deliberate indifference to

Rogers’s medical condition by transporting him to the prison medical department

instead of taking him for immediate evaluation and treatment in the V.A.

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hospital emergency room. Rogers’s argument, liberally construed, is that the

severity of his injuries would have been discovered earlier, and further

exacerbation could have been prevented, if the officers had taken him to the

emergency room as ordered by the V.A. physician.

The district court concluded that Rogers had not alleged facts from which

it could be concluded that the officers knew that ignoring the V.A. physician’s

orders and taking Rogers instead to the prison medical department would pose

a substantial risk of serious harm to Rogers, or that the five-hour delay that

resulted from their decision to take Rogers to the prison medical department had

resulted in substantial harm.

We agree with the district court that the officers did not show deliberate

indifference regarding Rogers’s denial of medical treatment claim. Moreover,

because the officers took Rogers to see a V.A. hospital physician after the

incident and transported him subsequently to the prison medical department for

treatment, they did not act with wanton disregard for Rogers’s serious medical

condition. See Easter, 467 F.3d at 464. Therefore, the district court did not err

in sua sponte dismissing Rogers’s denial of medical care claim.

3. Whether the district court erred in dismissing the denial of medical care

claim without giving Rogers an opportunity to file an amended complaint.

Rogers argues that he should have been given an opportunity to state a

more definite claim prior to dismissal of his complaint under § 1915(e)(2)(B)(i)

& (ii). He contends that the district court should have notified him that it was

considering dismissing his complaint, and that he could have amended his

complaint to clarify that it was not based on a claim of negligence, to show that

the defendants acted under color of state law, and to further demonstrate that

his injuries were sufficiently serious.

As for the claim regarding Rogers’s injury in the van, this issue is moot.

As for the denial of medical care claim, Rogers has not shown on appeal that he

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could have alleged in an amended complaint any additional facts that would

have precluded the district court from reaching its conclusion. Therefore,

allowing Rogers to amend his complaint regarding this claim would have been

futile, and the district court did not err in declining to provide leave to file an

amended complaint. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir.

2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)) (listing futility of

amendment as one of five possible reasons to deny leave to amend complaint);

Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 111 (3d Cir. 2002) (holding

in Prison Litigation Reform Act context that, even if plaintiffs do not seek leave

to amend, “plaintiffs whose complaints fail to state a cause of action are entitled

to amend their complaint unless doing so would be inequitable or futile.”).

CONCLUSION

For the foregoing reasons, we REVERSE in part, AFFIRM in part, and

REMAND for further proceedings not inconsistent with this opinion.

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EDITH H. JONES, Circuit Judge, dissenting.

With due respect to my colleagues, I dissent from the holding that Rogers’

conclusory statements about reckless driving by Officer Jose Garcia suffice to

plead an Eighth Amendment claim for deliberate indifference. My concerns may

be easily listed.

First, there is no constitutional requirement that inmates be buckled with

seatbelts during transportation. Nearly all courts have rejected such claims,

because the use of seatbelts on shackled prisoners presents inevitable,

non-trivial security concerns for other passengers and the guards. See Jabbar

v. Fischer, 683 F.3d 54, 58 (2d Cir. 2012) (citing cases).

Second, this prisoner’s allegations of “reckless driving” are factually

insufficient to meet the demanding constitutional standard and pleading

requirements. To establish deliberate indifference, the prisoner must show that

the prison official knew of and disregarded an excessive risk to inmate health or

safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994). The

prisoner must show both that the official was aware of facts from which the

inference could be drawn that a substantial risk of serious harm existed and that

the official actually drew the inference. Id. The prisoner’s pleadings, moreover,

must allege “sufficient factual matter, accepted as true, to state a claim for relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1970, 1949 (2009) (internal quotation marks and citation omitted).

Rogers’ allegations of Garcia’s excessive speed, reckless driving, and

darting in and out of traffic are conclusory, because he was seated in the back

of a prison van, where his view of surrounding traffic had to be obstructed: the

majority explain that he was seated perpendicular to oncoming traffic. Unlike

the prisoner in the Brown case, relied on by the majority, he neither requested

a seatbelt nor urged Jose Garcia to drive slower or more carefully. That Garcia

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“recklessly” caused the collision is even more doubtful, as Rogers states in his

appellate brief that “Garcia was forced to slam on the transport van’s brakes to

avoid rear-ending a vehicle stopped in the freeway early morning traffic.”

Taking this statement as an addendum to Rogers’s pleadings, two implications

are possible. Either Garcia, even though negligent in his driving, responded to

an unusual, unanticipated situation, negating the inference that he knew a

serious risk of substantial harm to Rogers existed; or Rogers’s allegations lack

sufficient factual detail from which an inference of recklessness can fairly be

drawn.

Similarly lacking are factual allegations that Garcia was actually aware

of a substantial risk of serious harm to Rogers in these circumstances. The only

alleged corroboration to Rogers’ conclusion is Garcia’s statement that prisoners

have been injured during transportation in other instances. This statement,

however, says nothing about whether Garcia was the driver on those occasions,

nothing about whether actual reckless driving occurred, nothing about the type

or extent of injuries sustained, nothing about driving conditions, and nothing

about the use of seatbelts. Thus, I disagree that Garcia’s statement can be

taken to indicate the heightened state of culpability inherent in a constitutional

violation. As the Supreme Court holds, “[An] official’s failure to alleviate a

significant risk that he should have perceived, but did not . . . [cannot] be

condemned as the infliction of punishment.” Farmer, 511 U.S. at 838.

Lack of seatbelts alone, as the majority concede, does not pose “an

excessive risk to inmate health or safety.” Further, because all driving in the

congested and unpredictable traffic of the Houston metropolitan area poses some

risk, the line between negligence and unconstitutional deliberate indifference

must be securely drawn so that the Constitution does not simply become a “font

of tort law.” Daniels v. Willaims, 474 U.S. 327, 332, 106 S. Ct. 662, 665 (1986)

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(internal quotation marks and citation omitted). The only way to preserve this

distinction is to insist on careful factual allegations.

Third, the majority’s reliance on Brown is misplaced for two reasons.

First, allegations of reckless driving were supported in that case by facts. The

facts were that the convoy drove at speeds up to 75 miles per hour; the guards

had refused multiple requests for seatbelts as the prisoners were being loaded

into the vans; the guards “taunted” the inmates about safety concerns; the vans

followed each other too closely; the vans were passing other cars when road

signs “suggested otherwise.” Brown v. Mo. Dep’t of Corr., 353 F.3d 1038, 1040

(8th Cir. 2004). No such facts are pled by Rogers. Second, the majority relies on

the second Brown decision, which denied qualified immunity to two defendants,

Brown v. Fortner, 518 F.3d 552 (8th Cir. 2008), rather than the first Brown

decision, Brown v. Mo. Dep’t of Corr., 353 F.3d 1038 (8th Cir. 2004), which

reversed a dismissal for failure to state a claim. Any unintended reference to a

denial of qualified immunity in the second Brown decision, following discovery

and summary judgment motions, is premature and inapposite to this case.

The majority’s decision to allow this complainant to proceed is

unfortunate, but Rogers must prove far more to overcome Garcia’s likely defense

of qualified immunity and actually sustain his assertions of a constitutional

violation.

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