United States District Court, N.D. Texas, Amarillo Division
JAMES DAVID CLARKE, JR., TDCJ-CID No. 1832072, Plaintiff,
KEVIN D. FOLEY, et al., Defendants.
MEMORANDUM OPINION DISMISSING CIVIL RIGHTS
MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE
JAMES DAVID CLARKE, JR., acting pro se and while a prisoner
incarcerated in the Texas Department of Criminal Justice,
Institutional 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,
plaintiffs civil rights complaint is DISMISSED.
prisoner confined in any jail, prison, or other correctional
facility brings an action with respect to prison conditions
under any federal law, the Court may evaluate the complaint
and dismiss it without service of process, AH v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it 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; 28 U.S.C. § 1915(e)(2). he same standards will
support dismissal of a suit brought under any 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).
time of filing this lawsuit, plaintiff was a prisoner
incarcerated at the Texas Department of Criminal Justice
(TDCJ) Clements Unit in Amarillo, Texas. Plaintiff claims
that three defendants: Warden Kevin D. Foley, Sergeant Hector
S. Ramirez, and Sergeant NFN Luccuro failed to "follow
proper procedures" following an accident. (ECF No. 3).
Immediately following the accident, plaintiff submitted an
1-60 request to see a physician. Plaintiff claims this
failure resulted in a delay of over a month to get an X-ray
of his hand. His hand suffered a fracture. Plaintiff was sent
to see a specialist. Plaintiff claims his hand is still not
"in line" and continues to cause him pain.
Plaintiff asserts that if he had received immediate medical
attention, he would not have needed to see a specialist
because his hand "would probably" have healed with
the bone in its original place if it was set immediately
after the injury.
indifference to serious medical needs of prisoners
constitutes the 'unnecessary and wanton infliction of
pain' . . . proscribed by the Eighth Amendment."
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." Estelle v. Gamble, 429 U.S. 97,
104 (1976). Deliberate indifference is defined as a failure
to act where prison officials have knowledge of a substantial
risk of serious harm to inmate health or safety. Farmer
v. Brennan, 511 U.S. 825 (1994). 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 (5th Cir.
which does not aggravate or exacerbate the medical condition
does not constitute a constitutional violation. Martin v.
Gentile, 849 F.2d 863, 871 (4th Cir. 1988). A delay in
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). Plaintiff
presents no allegation of deliberate indifference, but, at
best, an allegation of medical malpractice or negligence.
However, section 1983 is not a general tort statute, and mere
negligence does not meet the standard for liability under
section 1983. Daniels v. Williams, 474 U.S. 327,
asserts defendants "failed to follow proper
procedure" following his accident where his hand was
injured. Plaintiffs complaint fails to articulate intentional
conduct by the defendants in the delay of medical care.
Plaintiff was provided and submitted an 1-60 request for
medical care. Plaintiff fails to present any factual
allegations that defendants deliberately failed to provide
him access to medical care.
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.