IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

THADDEUS DONTRELL JOHNSON, §

TDCJ-CID # 5185966, §

§

Plaintiff, §

§

v. § 2:05-CV-0315

§

JANIE COCKRELL, JOE OLIVER, §

C. WAKEMON, L. LUCIOUS, §

RICHARD ORR, and PATRICA PRIOR, §

§

Defendants. §

REPORT AND RECOMMENDATION

The claims in the instant suit were severed and transferred from the United States District

Court for the Northern District of Texas, Wichita Falls Division, to the United States District

Court for the Northern District of Texas, Amarillo Division, by Order issued November 30,

2005.

Plaintiff THADDEUS DONTRELL JOHNSON, acting pro se and while a prisoner

confined in the Texas Department of Criminal Justice, Correctional Institutions Division, has

filed suit pursuant to Title 42, United States Code, section 1983 complaining against the abovereferenced defendants and has been granted permission to proceed in forma pauperis. 

Plaintiff claims the defendants have been deliberately indifferent to his serious medical

needs connected with his mental health.

Plaintiff requests an award of $125,000.00 compensatory damages for “violations of

psychiatric care and moral damage” and $135,000.00 punitive damages.

 

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1

A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993);

see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

2

Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th 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.").

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JUDICIAL REVIEW

When a prisoner seeks redress from a governmental entity or officer or employee of a

governmental entity, the Court must evaluate the complaint and dismiss it without service of

process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous1, 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). The 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)2

.

The Magistrate Judge has reviewed the facts alleged by plaintiff to determine if his claim

presents grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS

By his January 19, 2006 response to the Court’s Questionnaire, plaintiff was required to

list each act or omission by each defendant on which he bases his claim against that defendant.

As to defendant COCKRELL, plaintiff states he was harmed by the “policies and

procedures that were subjected upon actors of the agency/TDCJ etc.” Plaintiff states he cut his

own arms, took an overdose of medication, and was denied an unidentified vested liberty

 

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interest.

Plaintiff alleges, on May 7, 2003, defendant OLIVER discontinued plaintiff’s

prescription for Loxapine and substituted Molindone without plaintiff’s consent or informing

him of the substitution. Plaintiff also states OLIVER placed plaintiff on numerous medications

“with the knowledge that these meds would not help, which caused the plaintiff multiple selfinflicted lacerations and had to be transferred via ambulance to NWTH E.R. on 8-5-03.”

Plaintiff alleges defendant WAKEMON failed to document plaintiff’s known allergies to

Trazadone on the New Intake Nursing Assessment dated May 20, 2003, resulting in plaintiff’s

suffering priapism on August 12, 2003.

Plaintiff alleges defendant LUCIOUS failed to monitor plaintiff for “decomposition” as

stated in plaintiff’ individual treatment plan, allowing numerous disciplinary cases on May 11,

May 29, May 30, August 2, August 23, August 22, and September 12.

Plaintiff alleges defendant ORR prescribed Trazadone on August 12, 2003 despite

plaintiff having informed the defendant that it caused him to suffer priapism on July 1, 2003. 

Plaintiff states defendant ORR insisted that plaintiff take the medication from September 5, 2003

through September 8, 2003, arguing that plaintiff’s records did not note any allergy to it and,

upon plaintiff’s refusal, he recommended that plaintiff needed “a long stay at Skyview, Montfort,

etc.”

Plaintiff alleges defendant PRIOR and Unknown Agency Members falsified documents,

and that, from September 5, 2003 to September 8, 2003, plaintiff was not fed adequately and was

not given a suicide blanket because defendant PRIOR stated he was hostile and refused to talk. 

Further, plaintiff says, during that time, the defendant discontinued his anti-psychotic medication

 

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Atenolol and Benadryl, subjecting plaintiff to adverse side effects.

The acts of subordinates do not trigger any individual section 1983 liability for

supervisory officers. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th

Cir. 1999). Supervisory officials may be held liable only if they (1) affirmatively participate in

acts that cause constitutional deprivation, or (2) implement unconstitutional policies that causally

result in plaintiff’s injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also

Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985), cert. denied, 480 U.S. 916

(1987). Plaintiff does not claim any personal involvement by defendant COCKRELL; instead,

he claims he was harmed by the “policies and procedures that were subjected upon actors of the

agency/TDCJ etc.” Plaintiff does not identify any such policy or procedure nor does he claim

the policies or procedures were wrongful or unconstitutional. Plaintiff has failed to state a claim

against defendant COCKRELL on which relief can be granted.

“[D]eliberate 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, 97 S.Ct.

285, 291, 50 L.Ed.2d 251 (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, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994). However, not

every claim of inadequate or improper medical treatment is a violation of the Constitution, 

Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976); nor does a

 

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disagreement with a doctor over the method and result of medical treatment require a finding of

deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Merely alleging that

a prison doctor should have undertaken additional diagnostic measures or utilized an alternative

method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins,

920 F.2d 320, 321 (5th Cir. 1991).

Plaintiff’s allegations of inadequate psychiatric care against the remaining defendants

also fail to state a claim of constitutional dimension. By alleging defendant WAKEMON failed

to document plaintiff’s known allergies and defendant LUCIOUS failed to monitor plaintiff,

plaintiff has stated claims of mere negligence, at best. Further, his allegations that Dr. ORR

prescribed Trazadone despite plaintiff’s insistence that it would cause him to suffer priapism, or

that Dr. ORR recommended “a long stay at Skyview, Montfort, etc.”due to plaintiff’s refusal to

take the prescribed medication only indicate that plaintiff disagreed with Dr. ORR concerning

the proper treatment of his psychiatric needs and does not support a claim that he ignored facts

indicating plaintiff was in substantial danger of serious harm and acted with deliberate

indifference to plaintiff’s serious medical needs.

Moreover, plaintiff’s allegation that defendant OLIVER, identified as a psychiatrist at the

Neal Unit, substituted a formulary medication for a non-formulary medicine, i.e., substituted

Molindone for Loxapine, and then prescribed various medications knowing they would be

ineffective lacks any allegation of fact showing how OLIVER could know the medications he

prescribed would not be effective. Plaintiff’s expression of his opinion as to the probable

efficacy of these medications is not a sufficient basis to charge defendant OLIVER with

knowledge that they would not improve or help manage plaintiff’s condition.

 

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Plaintiff’s alleges defendant PRIOR, whom he identifies as a clinical psychiatrist at the

Clements Unit, falsified his medical records by noting he was hostile and refused to

communicate, resulting in the failure to provide plaintiff a “suicide blanket” for three days. This

allegation conflicts with plaintiff’s allegation that “unknown medical staff falsified documents

stating plaintiff having [sic] suicide blanket” and showing he was adequately fed but that he was

not. Plaintiff does not state any basis for any contention that he has a constitutionally protected

right to accurate medical records; and defendant PRIOR is both obligated and free to record

whatever she feels is cogent, even if plaintiff disagrees with its accuracy. As to the records

wrongly showing plaintiff’s meals and possession of a suicide blanket, plaintiff does not indicate

who made the inaccurate entries nor does he allege any fact showing that person or persons knew

the entries were inaccurate. In short, plaintiff does not allege any fact showing an attempt to

deprive him of food or blanket instead of mere negligence. Consequently, as to defendant

PRIOR and the unknown medical staff, plaintiff has failed to allege facts to support a claim of

deliberate indifference and has failed to state a claim on which relief can be granted.

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(c)(1), it is the

RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil

Rights Complaint filed pursuant to Title 42, United States Code, section 1983, by plaintiff

THADDEUS DONTRELL JOHNSON be DISMISSED WITHOUT PREJUDICE FOR

FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.

INSTRUCTIONS FOR SERVICE

 

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The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 28th day of February 2007.

 ______________________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the “entered” date directly

above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or

transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or

electronic means, three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). 

Therefore, any objections must be filed on or before the fourteenth (14th) day after this

recommendation is filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R.

Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local

Rules of the United States District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on all other parties. A party’s failure to

timely file written objections to the proposed findings, conclusions, and recommendation

contained in this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

 

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