1

 Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CASEY ROSS BUNCH §

§

Plaintiff, §

§

VS. § NO. 3-05-CV-1707-L

§ 

SHERIFF LUPE VALDEZ, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se civil rights action brought by Plaintiff Casey Ross Bunch, an inmate in the

Dallas County Jail, against Sheriff Lupe Valdez, various UTMB officers, and two jail employees.

On August 24, 2005, plaintiff tendered a complaint to the district clerk and filed an application to

proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit

indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed

in forma pauperis and allowed the complaint to be filed. A Spears1

 questionnaires then was sent

to plaintiff in order to obtain additional information about the factual basis of his suit. Plaintiff

answered the questionnaire on September 27, 2005. The court now determines that this action

should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2). 

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 1 of 7 PageID 46
II.

Plaintiff alleges that he has been denied adequate medical care, sanitary living conditions,

and access to the law library at various times during his four-month incarceration in the Dallas

County Jail. More particularly, plaintiff complains that he was improperly classified as suicidal

upon book-in and placed in a cell without clothes, a sleeping mat, bedding, or personal hygiene

items for three days. Plaintiff further contends that he did not receive prompt or proper medical

treatment for a staph infection. In an unrelated claim, plaintiff alleges that he was denied access to

the jail law library and legal materials needed to challenge his criminal conviction. By this suit,

plaintiff seeks $250,000 in damages and "lifetime medical care."

III.

A district court may summarily dismiss a complaint filed in forma pauperis if it concludes

that the action:

(1) is frivolous or malicious;

(2) fails to state a claim upon which relief can be granted; or

(3) seeks money relief against a defendant who is immune from

such relief. 

28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); HensonEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to

state a claim "if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232,

81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164,

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 2 of 7 PageID 47
113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most

sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the

present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

A.

The court initially observes that plaintiff has failed to state a claim for relief against: (1)

Dallas County Sheriff Lupe Valdez; (2) Dr. John Stobo, President of UTMB; and (3) Dr. Ben

Raimer, Vice President of Correctional Health Care Services for UTMB. As supervisors, these

defendants are liable only if: (1) they affirmatively participated in acts that caused a constitutional

deprivation; or (2) implemented unconstitutional policies that resulted in injury to plaintiff. Mouille

v. City of Live Oak, Texas, 977 F.2d 924, 929 (5th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993).

It is clear from plaintiff's interrogatory answers that none of these defendants were personally

involved in any of the alleged constitutional deprivations made the basis of this suit. Instead,

plaintiff alleges that Valdez "is required to make sure officers are properly trained in both how to

handle a medical condition such as mine and to treat inmate[]s with basic human respect." (See

Spears Quest. #8). Plaintiff blames Stobo and Raimer because "someone was in charge of

answering my medical requests for emergency medical care, and they weren't answered." (See

Spears Quest. #7 & 8). Nowhere does plaintiff identify any specific policies that violate his

constitutional rights. Nor does he allege any facts linking these non-existent policies to any of the

defendants. Consequently, plaintiff has failed to state a claim for relief against Valdez, Stobo, and

Raimer in their individual capacities. See Jett v. Dallas Independent School Dist., 491 U.S. 701,

736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989); Morgan v. Dallas Co. Sheriff's Dep't., No. 3-04-

CV-2172-D, 2005 WL 57282 at *2 (N.D. Tex. Jan. 11, 2005) (Kaplan, J.), rec. adopted, 2005 WL

2075796 (N.D. Tex. Aug. 26, 2005).

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 3 of 7 PageID 48
B.

Plaintiff first contends that he was denied adequate medical care for a staph infection. In

order to prevail on this claim, plaintiff must show that jail officials acted with deliberate indifference

to his medical needs such as to cause the "unnecessary or wanton infliction of pain." Estelle v.

Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); see also Norton v. Dimazana,

122 F.3d 286, 291 (5th Cir. 1997). This, in turn, requires proof that the jail medical staff was

subjectively aware of a substantial risk of serious harm and failed to take reasonable measures to

abate that risk. Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996), citing Farmer v. Brennan,

511 U.S. 825, 847, 114 S.Ct. 1970, 1984, 128 L.Ed.2d 811 (1994). 

By his own admission, plaintiff was examined by a nurse at book-in on May 21, 2005.

Although he did not receive immediate treatment for a staph infection, plaintiff was given two

different kinds of antibiotics on June 1, 2005. (See Plf. Am. Compl. at 1). To the extent plaintiff

disagrees with his course of treatment, such a claim is not actionable under 42 U.S.C. § 1983. See

Kelly v. Alford, No. 3-03-CV-1259-P, 2003 WL 22456810 at *2 (N.D. Tex. Oct. 23, 2003) (Kaplan,

J.), citing Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). Nor has plaintiff shown that he

suffered substantial harm due to the 10-day delay in receiving treatment for his staph infection.

Where, as here, the only injuries alleged are minor scarring and mental anguish, a brief delay in

providing medical care does not rise to the level of a constitutional violation. See Cluke v. Bowles,

No. 3-04-CV-0666-M, 2004 WL 2002247 at *3-4 (N.D. Tex. Sept. 7, 2004), rec. adopted, 2004 WL

2805827 (N.D. Tex. Dec. 6, 2004) (medical care claim summarily dismissed on initial screening

where prisoner suffered only residual scarring and loss of hair due to 45-day delay in treating staph

infection). 

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 4 of 7 PageID 49
C.

Next, plaintiff complains that he was improperly classified as suicidal upon book-in and

placed in a cell without clothes, a sleeping mat, bedding, or personal hygiene items for three days.

This claim is also governed by the "deliberate indifference" standard of the Eighth Amendment. See

Farmer, 114 S.Ct. at 1976, citing Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 2480, 125

L.Ed.2d 22 (1993). Assuming plaintiff can show that jail officials were deliberately indifferent to

the conditions of his confinement, this claim still fails because plaintiff suffered no physical harm.

The PLRA provides that "[n]o Federal civil action may be brought by a prisoner confined

in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in

custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e). The injury required by

this statute "must be more than de minimus [sic], but need not be significant." Alexander v. Tippah

County, Mississippi, 351 F.3d 626, 630-31 (5th Cir. 2003), cert. denied, 124 S.Ct. 2071 (2004). In

his interrogatory answers, plaintiff states only that he is left with the "memories and horrors" of

being placed in a filthy cell without clothing or a bed. (See Spears Quest. #8). This is insufficient

to establish "physical injury" under the PLRA. See, e.g. Bargalla v. Valdez, No. 3-05-CV-0593-M,

2005 WL 1163304 at *2 (N.D. Tex. May 13, 2005) (allegation that plaintiff suffered "unnecessary

pain and suffering" insufficient to establish physical injury); Morgan, 2005 WL 57282 at *2 (same

as to allegation of "undue pain . . . on a regular basis").

D.

Finally, plaintiff contends that he has been denied access to the law library and legal

materials. This claim must be analyzed under the more general right of access to the courts. See

Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977). Such a right "is

founded in the Due Process Clause and assures that no person will be denied the opportunity to

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 5 of 7 PageID 50
 2

 The court further notes that plaintiff was represented by counsel at all stages of his criminal trial. (Spears

Quest. #4(c)). Under such circumstances, there is no constitutional right of access to a law library. See Carballo v.

Federal Bureau of Prisons, No. 04-30965, 124 Fed.Appx. 284, 285 (5th Cir. Mar. 23, 2005); Piper v. Alford, No. 3-02-

CV-2640-P, 2003 WL 21350215 at *2 (N.D. Tex. Jun. 4, 2003). 

present to the judiciary allegations concerning violations of fundamental constitutional rights."

Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L. Ed.2d 935 (1974). The right of

access to the courts is also recognized as one aspect of the First Amendment right to petition the

government for grievances. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S.

508, 510, 92 S.Ct. 609, 611, 30 L.Ed. 2d 642 (1972); Taylor v. Sterrett, 532 F.2d 462, 470-72 (5th

Cir. 1976). However, no court has ever extended this right beyond the ability to prepare and

transmit necessary legal documents. See Wolff, 94 S.Ct. at 2984; Brewer v. Wilkinson, 3 F.3d 816,

821 (5th Cir. 1993), cert. denied, 114 S.Ct. 1081 (1994).

Plaintiff has failed to explain how the actions of jail officials interfered with his right of

access to the courts. He alleges only that, by not having access to the names and addresses of

lawyers and copies of unspecified motions, he was "swayed into a plea bargain not fitting my

crime." (See Spears Quest. #3). This vague allegation is wholly insufficient to state a constitutional

violation. See Swaissi v. Cotten, No. 3-01-CV-1607-D, 2002 WL 492905 at *3 (N.D. Tex. Mar. 28,

2002) (Kaplan, J.), citing Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606

(1996) (inmate must demonstrate that inadequate law library hindered efforts to pursue an actual

legal claim).2

RECOMMENDATION

Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 6 of 7 PageID 51
being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: September 30, 2005.

 

 

 Case 3:05-cv-01707-L Document 10 Filed 09/30/05 Page 7 of 7 PageID 52