UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-40180
JOHN THOMAS BAGLEY
Plaintiff-Appellant,
VERSUS
WAYNE SCOTT, ETC., ET AL
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(6:96-CV-460)
November 19, 1997
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.
PER CURIAM:1
This is an appeal from a ruling by the United States District
Court for the Eastern District of Texas, Judge William M. Steger,
presiding, affirming a decision by Magistrate Judge Judith K.
Guthrie to dismiss with prejudice a civil rights suit filed by the
Appellant, John Thomas Bagley (“Bagley”). Upon review of the
pleadings, briefs, and record on file, we AFFIRM the decision of
the district court in part and REVERSE AND REMAND in part.
Background
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
The Appellant, John Thomas Bagley, Texas Prisoner No. 652853,
filed a §1983 civil rights suit against the Defendants, Texas
Department of Criminal Justice (“TDCJ”) Director Wayne Scott
(“Scott”), TDCJ Skyview Unit Senior Warden Sharon Dishongh (“Warden
Dishongh”), and TDCJ employee Dr. Laurence Taylor (“Dr. Taylor”),
regarding his treatment at the Skyview Psychiatric Unit
(“Skyview”). Bagley claims that the Defendants violated his rights
under the Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and
Fourteenth Amendments of the United States Constitution, as well as
Article I of the Texas Constitution and the Civil Rights Act of
1871. Pursuant to these allegations, Bagley filed a §1983 suit
against the Defendants.
Magistrate Judge Judith K. Guthrie allowed Bagley to proceed
in forma pauperis, and following a Spears1 hearing, recommended
that the District Court dismiss the complaint pursuant to 28 U.S.C.
§1915A(b)(1). Bagley objected to this, but the District Court,
after a de novo review, overruled Bagley’s objections, and
dismissed the complaint with prejudice.
Bagley states that he was confined at Skyview for a mental
health evaluation from October 27, 1995, to November 3, 1995.
Bagley has been diagnosed as a paranoid schizophrenic, with
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985)(establishing
courtroom hearing as substitute for motion for more definite
statement in pro se cases), overruled on other grounds, Neitzke v.
Williams, 490 U.S. 319, 324 (1989).
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delusions of persecution. In his brief, Bagley says that he was
confined because he walked “to the left of a [yellow line] painted
upon the floor of the Estelle Unit, without attempting to harm
myself or others...” Despite the vagueness of this statement and
the Defendants’ unexplained failure to file a brief in this appeal,
we were able to glean from the evidence in the record that Bagley
was transported to Skyview because he manifested delusional
behavior.
Bagley claims that everything in his cell at Skyview,
including the spigot from which he was supposed to get drinking
water, was covered in dried human excrement, which was not his.
Bagley states that he complained of this, and two days later, an
inmate came to clean the cell, but merely smeared the excrement
around with a mop. Bagley alleges that these conditions caused him
to develop rashes and small tumors on face, hands, and feet, and
these conditions constituted abuse and a violation of his civil
rights. Regarding this issue, the Defendants offered the affidavit
of Warden Dishongh regarding the standard operating procedure for
daily cleaning of inmate cells and the extensive sanitization of
cells in preparation for new inmates. The information in this
affidavit, though not specific to Bagley’s case, would tend to show
that if normal cleaning procedures were followed (and there is no
independent evidence to show they were not), Bagley’s cell would
have been clean when he entered it and cleaned regularly
thereafter. Also, Nurse Molly Johnson (“Nurse Johnson”) testified
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at the Spears hearing that Bagley’s medical records showed he
suffered from athlete’s foot and had a ganglion cyst removed from
his thumb, and that this cyst was unrelated to any unsanitary
conditions in Bagley’s cell.
Bagley also alleges that he was forcibly medicated with
psychotropic drugs. Bagley signed papers stating that he did not
want to take psychotropic drugs (it should be noted that the files
on this are somewhat illegible, but we will assume that his refusal
included injections of psychotropic drugs). Bagley states that he
did not resist the “use of force team” because he feared he would
be beaten if he refused to take the drugs. Bagley claims that he
has had various adverse reactions to the psychotropic drugs,
including heart palpitations, pain and ringing in his ears,
vertigo, foul breath, and other maladies. During the Spears
hearing, Nurse Johnson was asked what the procedure was for
forcibly medicating a patient with psychotropic drugs. She stated
that two doctors had to agree in writing that a patient needed to
be forcibly medicated. She further stated that Bagley’s medical
records show that Bagley “refused his oral medication and that the
doctors had ordered injectable by force if he refused the oral, he
did refuse the oral but he took the injections without any problem
at all.” When the magistrate asked further about the procedures
used, Nurse Johnson replied that she did not have all of Bagley’s
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records from Skyview.
As stated, Bagley claims he did not want to be treated with
the psychotropic drugs and that he did not resist the injections
only because he feared for his safety. He states this in his brief
and testified to this in the Spears hearing. The other TDCJ
employees who testified at the hearing made it clear that they did
not have personal knowledge of the forcible medication procedures
at the facility.
Magistrate Judge Guthrie dismissed the claims against Scott
because Bagley did not allege any facts which would support a
theory of vicarious liability implicating Scott in the alleged
constitutional violations. Similarly, the claims against Warden
Dishongh were dismissed because Bagley alleged no unconstitutional
act or omission on Warden Dishongh’s part and she could not be
liable under §1983 based on theories of respondeat superior.
Magistrate Judge Guthrie determined that the forcible
medication claims should be dismissed on the ground that while
Bagley refused to take the drugs orally, he subsequently agreed to
the injections and did not inform medical personnel that he refused
to do so. Bagley’s claim against Dr. Taylor2 was therefore
dismissed. As a result of the above dismissals, the magistrate
2
Dr. Taylor was referred to, mysteriously, as “Dr. Stanley” in
the magistrate’s recommendation.
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held that Bagley’s claims lacked a basis in law and recommended
that the district court dismiss his claims as frivolous pursuant to
28 U.S.C. §1915A(b)(1). The district court adopted the
recommendation and dismissed the suit with prejudice.
Standard of Review
The Prison Litigation Reform Act amended 28 U.S.C. §1915 to
require the district court to dismiss in forma pauperis prisoner
civil rights cases if the court determines that the action is
frivolous, malicious, or does not state a claim upon which relief
may be granted. 28 U.S.C. §1915(e)(2)(B); see also 28 U.S.C.
§1915A(b)(1). A complaint filed in forma pauperis may be dismissed
if it lacks an arguable basis in fact or law. 28 U.S.C.
§1915(e)(2)(B); Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). 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. Neitzke v. Williams, 490 U.S. at 327. An action is
frivolous if it lacks an arguable basis in fact or in law. Graves
v. Hampton, 1 F.3d 315, 317 (5th Cir. 1993). This court reviews a
§1915 dismissal for abuse of discretion. Id.
Discussion and Analysis
Bagley testified that he filed suit against Wayne Scott, the
Director of the Texas Department of Criminal Justice,
Institutional Division, because, according to Bagley, Scott’s
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position as Director makes him responsible for what occurs in the
prison system. In order to successfully plead a cause of action
under §1983, a plaintiff must enunciate a set of facts which
illustrate a defendant’s participation in the wrong alleged.
Jacquez v. Procunier, 801 F.2d 789 (5th Cir. 1986). Bagley has
not even alleged that Scott personally took part in the events in
question. The only other way he could be implicated is if Scott
was vicariously liable due to his supervisory capacity, under a
theory of respondeat superior. Respondeat superior does not
apply in §1983 actions. Williams v. Luna, 909 F.2d 121, 123 (5th
Cir. 1990); Bush v. Viterna, 795 F.2d 1203, 1206 (5th Cir. 1986).
Therefore, Bagley’s argument lacks a legal basis, and dismissal
by the district court was appropriate and within its discretion.
Eason, 14 F.3d at 9; Graves, 1 F.3d at 17.
Similarly, Bagley files suit against Warden Dishongh because
she is warden of the Skyview Unit and is, in his view,
responsible for anything that happens there. While it is true
that horrible prison conditions that deny a prisoner “the minimal
civilized measure of life’s necessities” can constitute an Eighth
Amendment violation, a prisoner must allege that the prison
officials acted with a culpable state of mind, which includes
deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 298
(1991). However, even if we assume that the conditions in the
cell are as Bagley said they were (a fact which was never
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proven), and that these alleged conditions constituted an Eighth
Amendment violation (a matter which we do not pass on at this
time), Bagley failed to allege facts linking Warden Dishongh to
the conditions in the cell. He is essentially arguing the same
respondeat superior theory which is unavailable to him in his
suit against Scott, and as such, the district court properly
dismissed his claim against Warden Dishongh. We, therefore,
affirm Judge Guthrie’s decision to dismiss the claims against
Warden Dishongh.
Bagley also claims that he was involuntarily treated with
psychotropic drugs during his incarceration, and that such
treatment violated his Constitutional rights. He filed suit
against Dr. Taylor based on this theory. The Supreme Court has
stated that, under the Due Process Clause, prison inmates have a
significant liberty interest in avoiding the unwanted
administration of psychotropic drugs. Washington v. Harper, 494
U.S. 210, 221 (1990). However, a prisoner may be treated with
such drugs against his will if he “is dangerous to himself or
others and the treatment is in the inmate’s medical interest.”
Id. at 227. In Harper, the Court found that principles of due
process were satisfied if the following occurred before an inmate
was made to take psychotropic drugs involuntarily: a psychiatrist
analyzed him and recommended drug treatment, a hearing was held
before an independent group of doctors and administrators, and
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the inmate received prior notice of the hearing. Id. at 215-216.
Further, the inmate should be given an explanation of the need
for medication, an opportunity to present evidence and witnesses,
an opportunity to cross-examine adverse witnesses, and the
assistance of an independent lay advisor who understands the
issues involved. Id. at 216.
Bagley claims his rights were violated because he was not
given the type of notice and hearing required under Harper.
However, the Harper requirements are not triggered when the drug
treatment is voluntary. Magistrate Judge Guthrie cited an
unpublished case of this Circuit, Pugh v. Collins, No. 96-40306
(5th Cir. November 21, 1996)(unpublished) as the basis for her
dismissal of the claims against Dr. Taylor. In Pugh, this
Circuit held that the Due Process protections of Washington v.
Harper are not implicated if there is no refusal or objection,
duly communicated to prison officials, regarding the ingestion or
injection of psychotropic drugs. The facts in Pugh are similar:
an inmate in Skyview executed a written refusal to take
psychotropic drugs orally, did not refuse to take such drugs via
injection, and sued after the fact. In Pugh, the magistrate held
that these facts did not constitute a Due Process violation under
Harper, and we affirmed.
However, Pugh is not completely on point because Bagley did
execute a written refusal for the injections, and more
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importantly, the notes of the staffers are not completely clear
as to whether they knew of Bagley’s refusal to take the
psychotropic drugs. Indeed, it is possible that they did know of
the refusal, and that he communicated such a refusal on the spot.
If so, the hurdle of voluntary consent was not overcome, and the
staffers would have been precluded under Harper from giving
Bagley the medication. As stated, the notes are unclear on this
point, and further investigation is necessary.
Bagley is a paranoid schizophrenic in need of psychiatric
assistance. Such assistance sometimes requires drug therapy. We
realize this, and we do not wish to add any procedural hurdles
over and above those set by the Supreme Court in Harper, nor do
we retreat from our decision in Pugh. The problem is, the
evidence in the record is not clear as to whether the “use of
force team” was aware of Bagley’s refusal to take the
psychotropic medication. The notes of the staffers on this issue
may in fact point to such an awareness of Bagley’s refusal,
thereby opening the door to suit. We do not pass on the
substance of the evidence or on whether or not Bagley did or did
not refuse treatment in such a way as to trigger the Harper
requirements, nor do we pass on whether the actions of the
Defendants passed Constitutional muster in this matter. We
simply believe the evidence before us is not clear enough to
affirm Judge Guthrie’s decision to dismiss Bagley’s claims on
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this issue with prejudice. Had the state or Dr. Taylor deigned
to send a brief, these matters could conceivably have been
clarified, but alas, this did not occur, so we do not have the
benefit of an explanation on this matter. Therefore, Bagley’s
involuntary medication claim against Dr. Taylor under §1983
should not have been so summarily dismissed, and we reverse and
remand for further investigation and proceedings on this issue.
Conclusion
Given the foregoing, we believe that the district court did
not abuse its discretion in regard its dismissal of the claims
against Scott and Warden Dishongh, and we AFFIRM the decision of
the district court on those issues. We do not believe that the
facts surrounding the involuntary medication claim are so clear,
however, and we REVERSE AND REMAND for further proceedings on
that issue.
AFFIRMED IN PART, REVERSED IN PART.
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