Green v. Hendrick Medical Ctr, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-10553
_______________
ELBERT SILAS GREEN,
Plaintiff-Appellant,
VERSUS
HENDRICK MEDICAL CENTER; UNIT HEALTH ADMINISTRATOR;
NFN COLLIER, D.D.S.; NFN MRS. BROWN;
R.O. LAMPERT, SENIOR WARDEN; JAMES DUKE, ASSISTANT WARDEN;
ROCHELLE MCKINNEY, R.N. M.A.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(1:98-CV-131)
_________________________
March 7, 2001
Before REAVLEY, SMITH, and DeMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Elbert Green, an inmate who since has been
released from prison, sued, pro se and in
forma pauperis (“IFP”), Hendrick Medical
Center, which is the medical contractor for in-
mates of the John Middleton Transfer Facility,
and various administrators, alleging violations
of his Eighth Amendment and due process* 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determined that this opinion should not be
published and is not precedent except under the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.
(continued...)
*(...continued)
47.5.4.

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rights. The district court dismissed these
claims as frivolous. We affirm in part, vacate
in part, and remand for further proceedings.
I.
Green alleged violations of his civil rights
from alleged deliberate indifference to his den-
tal needs. During meals in the facility, officers
forced inmates to eat quickly. Because Green
had loose dentures, eating so quickly caused
painful lacerations, swelling, and bleeding in
his gums. He alleges that this condition
caused him to forego one meal each day.
When Green entered the John Middleton
Transfer Facility in October 1996, Dr. Collier,
the dentist, advised him to replace or reline his
dentures. Green submitted a grievance
seeking treatment for the condition, but Collier
and the warden advised Green that he had to
be in the Texas Department of Criminal Justice
(“TDCJ”) for twelve months to be eligible to
get his dentures relined. The warden
suggested that Green obtain a blended food
pass if he was having trouble eating, but Green
appears to have refused, calling the pass “un-
necessary punishment” and “tactical delay.”
He submitted grievances to no avail.
Green sought declaratory relief and
monetary damages, contending that his lack of
dental treatment violates the Eighth
Amendment. The district court referred the
case to a magistrate judge, who furnished
Green with a questionnaire in lieu of a hearing.
In his responses to the questionnaire, Green
noted that he controlled his loose dentures
with adhesive and had not seen a dentist since
the early 1970’s. He further explained that the
Marshall Formby State Jail, his next facility,
replaced his dentures when twelve months had
elapsed. Green also presented a copy of the
TDCJ’s dental services policy, which set forth
three levels of urgency for dental care.1
The case was transferred to another
magistrate judge, who dismissed it as
frivolous. Green objected, stating that he had
not consented to resolution by a magistrate
judge. The district court agreed and issued its
own dismissal of the claim as frivolous. The
court found that Green was “seen by the
medical department eleven times” between his
entry into TDCJ and when he received new
dentures. It concluded that the defendants had
not acted with deliberate indifference and that
any harm Green had experienced resulted from
negligence only. Green appeals, claiming the
court erred in dismissing his claim as frivolous,
because it (1) failed to construe his pleadings
liberally and (2) relied on medical records de-
veloped after the fact of the complaint and not
provided to him, in violation of the Due
Process Clause.
II.
A district court must dismiss an IFP suit “if
[it] determines that the action is frivolous or
malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A
claim is frivolous if it lacks any arguable basis
in law or fact. Harris v. Hegmann, 198 F.3d
153, 156 (5th Cir. 1999). “A complaint lacks
an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if
the complaint alleges violation of a legal
interest which . . . does not exist.” Harper v.
1 “Priority I needs are emergency or urgent
problems including traumatic injuries, severe pain,
infection, and swelling.” Priority II needs include
“[f]ull dentures or false teeth . . . for offenders with
few teeth or no teeth at all.” Priority III care is
available after an inmate has served at least six
months in the TDCJ system. Priority III care, such
as cleanings, fillings, and partial dentures, are
available after twelve months.

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Showers, 174 F.3d 716, 718 (5th Cir. 1999).
“A complaint is factually frivolous when the
facts alleged are fantastic or delusional
scenarios or the legal theory upon which a
complaint relies is indisputably meritless.”
Harris, 198 F.3d at 156 (internal quotations
omitted). We review a dismissal of an IFP suit
as frivolous for abuse of discretion. Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999).
A.
Green contends the court did not construe
his pleadings liberally. “[C]ourts must liberally
construe pro se pleadings.” United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996). Con-
struing Green’s pleadings liberally, he alleges
that the John Middleton facility treated his
condition as a Priority III when he had a
Priority I emergency. Green believes that his
“severe pain” and “swelling” bring him within
the ambit of Priority I, while Priority III should
be reserved for “cosmetic” treatments.
The district court’s opinion essentially ad-
dresses this issue. In discussing the standard
applicable to Green’s Eighth Amendment
claim, the court notes:
Not every claim of inadequate or
improper medical treatment is a
violation of the Constitution. Estelle v.
Gamble, 429 U.S. 97, 105-07 [(1976)].
“In order to state a cognizable claim, a
prisoner must allege acts or omissions
sufficient ly harmful to evidence
deliberate indifference to serious medical
needs.” Id. at 106.
The Supreme Court has defined de-
liberate indifference as “subjective reck-
lessness” and:
[A] prison official cannot be
found liable under the Eighth
Amendment . . . unless the of-
ficial knows of and disregards
an excessive risk to inmate
health or safety; the official
must both be aware of facts
from which the inference could
be drawn that a substantial risk
of serious harm exists, and he
must also draw the inference.
Farmer v. Brennan, 114 S. Ct.
1970, 1980 (1994).
“It is firmly established that
negligent or mistaken medical treatment
or judgment does not implicate the
eighth amendment and does not provide
the basis for a civil rights action.”
Graves v. Hampton, 1 F.3d 315, 319
(5th Cir. 1993).
Even though the district court did not
directly address whether the prison officials
misprioritized Green’s condition, the decision
to classify a medical problem as a Priority III
rather than a Priority I is part of the doctor’s
diagnosis and recommendation for treatment.
The above reasoning, then, applies the same
to the issue of prioritization as it does to
Green’s more general claim of deliberate in-
difference. Thus, Green gains nothing by a
more liberal construction, and the district court
did not err in that regard. The question
remains, however, whether the court erred in
finding the claim frivolous.
B.
1.
Green sued several of the prison officials in
their supervisory capacities. Supervisory of-
ficials are not liable for the actions of their
subordinates on a theory of vicarious liability
or respondeat superior. Thompkins v. Belt,
828 F.2d 298, 303 (5th Cir. 1987).

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“Supervisory officials may be held liable only
if: (i) they affirmatively participate in acts that
cause constitutional deprivations; or (ii) they
implement unconstitutional policies that
causally result in plaintiff’s injury.” Mouille v.
City of Live Oak, 977 F.2d 924, 929 (5th Cir.
1993).
With respect to Warden Lampert, Assistant
Warden Duke, Nurse McKinney, and Mrs.
Brown, Green has alleged only that they de-
nied his grievances. A denial of a prison griev-
ance, even when officials fail to follow internal
regulations is not tantamount to a con-
stitutional violation. See Hernandez v. Estelle,
788 F.2d 1154, 1158 (5th Cir. 1986).
Moreover, Green has not alleged that these
defendants creat ed the policy in question.
Thus, the district court did not abuse its
discretion in finding that Green’s description
of these defendants’ involvement in his dental
care did not establish liability under § 1983.
The court correctly dismissed these claims as
frivolous.
2.
Green contends that forcing inmates to
finish their meals in five to eight minutes vio-
lates the Eighth Amendment. He intentionally
did not name any of the dining hall supervisors
in his complaint that the district court
dismissed as frivolous; therefore, he challenges
only the constitutionality of the policy.2
The Eighth Amendment requires that in-
mates be provided well-balanced meals with
sufficient nutritional value to preserve health.
Berry, 192 F.3d at 507. If, however, a
deprivation of food does not deny a prisoner
the “minimal measure of life’s necessities,” it
does not violate the Constitution. Id. (quoting
Talib v. Gilley, 138 F.3d 211, 213 n.3 (5th
Cir. 1998). Even missing fifty meals in five
months does not violate the Constitution; in-
deed, two meals per day may be adequate. Id.
Green has no constitutionally-protected right
to consume his meals at a rate that pleases
him.
To the extent that eating quickly
exacerbated his medical condition, Green’s
complaint is not with the dining hall policy, but
with his medical treatment. Prison officials of-
fered Green a blended food pass, which he
refused. An inmate’s disagreement with med-
ical treatment does not give rise to a con-
stitutional claim. Martinez v. Turner, 977
F.2d 421, 423 (8th Cir. 1992). Thus, the court
did not err in dismissing this portion of
Green’s claim as frivolous, because Green
seeks to protect a legal interest that does not
exist.
3.
Collier, by contrast, had personal
involvement in examining Green and denying
him treatment. Green argues that Collier was
deliberately indifferent to his medical needs, by
refusing to replace or reline his dentures soon-
er and by refusing to treat his sore gums. To
succeed on this claim, Green must show that
Collier was deliberately indifferent to his seri-
ous medical needs, knowingly inflicting wan-
ton and unnecessary pain. See Stewart v. Mur-
phy, 174 F.3d 530, 533 (5th Cir.), cert.
denied, 528 U.S. 906 (1999). Inadequate
treatment may rise to the level of a
constitutional violation, but negligent care or
malpractice does not. Id. at 534.
Although this standard raises a high bar to
2 The court dismissed the claim as frivolous in
part because Green did not name the dining hall
supervisors in his complaint. We may affirm the
district court, however, on any basis supported by
the record. Berry, 192 F.3d at 507.

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prisoners’ claims, the facts Green alleges may
support a claim under the Eighth Amendment.
For the dismissal to be proper, Green’s claim
must lack an arguable basis in law or fact; it
must rest on the violation of a legal interest
that does not exist or allege baseless facts.
Berry, 192 F.3d at 507. Green has alleged that
Collier examined him but refused to provide
him with new or relined dentures or to treat his
gums. Although “a prison official is not liable
for the denial of medical treatment ‘unless the
official knows of and disregards an excessive
risk to inmate health or safety,’” Harris, 198
F.3d at 159 (citing Stewart, 174 F.3d at 534),
Green’s claim is not “indisputably meritless.”
Harper, 174 F.3d at 718.
Deprivation of dental treatment may
constitute deliberate indifference. In Harris,
198 F.3d at 159-60, we recognized that a
prisoner presented a cognizable Eighth
Amendment claim where prison officials
denied him access to dental care for his broken
jaw and forced him to eat solid food. One
circuit countenanced an Eighth Amendment
claim where an inmate’s lost dentures caused
him bleeding gums, interfered with his ability
to eat, and permanently damaged his teeth, but
prison officials failed to relieve his pain or
prescribe a soft food diet. See Hunt v. Dental
Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
In Chance v. Armstrong, 143 F.3d 698 (2d
Cir. 1998), the court held that a prison
dentist’s refusal to fill a cavity rose to the level
of deliberate indifference, because the tooth
deteriorated to the point that it had to be
pulled. The Chance court found significant
that the prisoner’s inability to chew properly
caused extreme pain and impaired his daily
activities. Id. at 702-03. Similarly, the court in
Harrison v. Barkley, 219 F.3d 132, 137-39
(2d Cir. 2000), found that a prison dentist was
deliberately indifferent to an inmate’s medical
needs when he left a cavity untreated for one
year after discovering the condition.3
These cases demonstrate that in closely an-
alogous fact situations, courts have recognized
claims of deliberate indifference. Certainly, the
district court might have distinguished Green’s
case from the aforementioned examples on the
basis that he refused the palliative measure
offered him; indeed, Green never asserted that
the blended food would not alleviate his pain.
The court also might find that Green’s
condition lacked sufficient degenerative impact
to require Collier to treat him more quickly.
Additionally, the court might construe
Collier’s actions as merely negligent treatment.
As the district court noted, “[u]nsuccessful
medical treatment does not give rise to a
§ 1983 cause of action,” nor does “mere
negligence, neglect, or medical malpractice.”
Varnando v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991).4
This analysis, though, indicates that Green
has alleged facts sufficient to raise an Eighth
Amendment issue about which reasonable le-
gal minds could differ. Therefore, this claim is
not, on its face, indisputably meritless. The
court may have erred in dismissing this claim
as frivolous.
3 See also Williams v. Scully, 552 F. Supp.
431, 432 (S.D.N.Y. 1982) (finding that making an
inmate wait 5½ months for a cavity filling
presented an issue of material fact as to deliberate
indifference).
4 “Medical malpractice does not become a con-
stitutional violation merely because the victim is a
prisoner.” Estelle v. Gamble, 429 U.S. 97, 106
(1976).

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III.
The district court correctly noted that
“[m]edical records of 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. 1995). If the court relied on properly
authenticated medical records from the John
Middleton facility, then it may have properly
dismissed the claim. Green argues, however,
that the court improperly relied on medical
records from the Marshall Formby facility, the
prison to which he was transferred following
his stay at John Middleton. Green maintains
that after the initial examination, he received
no medical treatment at John Middleton; these
records document treatment after the time of
the alleged Eighth Amendment violation.
A court may base a dismissal under 28
U.S.C. § 1915(e) “on medical or other prison
records if they are adequately identified and
authenticated.” Banuelos v. McFarland, 41
F.3d 232, 234 (5th Cir. 1995). Although we
grant wide discretion to the district court to
dismiss prisoners’ IFP complaints as frivolous,
the court must use authentic and reliable evi-
dence. If such documents are not adequately
authenticated, judgments that rely on them
must be vacated. Wilson v. Barrientos, 926
F.2d 480, 483 (5th Cir. 1991).
The court found that “[b]etween the time
plaintiff entered [the Texas prison system] and
the time he received his new dentures, he was
seen by the medical department eleven times
and was scheduled for thirteen meetings.” The
court does not indicate from which facility
these records came. These documents are not
part of the record on appeal; without them, we
cannot determine the credibility either of
Green or of the records. “[I]f a prisoner’s
version of the facts underpinning a civil rights
action . . . is inherently plausible and internally
consistent, a court may not for purposes of a
[§ 1915(e)] dismissal simply choose to believe
conflicting material facts alleged by the
defendants. It is only for the trier of fact to
decide which party is more believable.”
Wesson v. Oglesby, 910 F.2d 278, 282 (5th
Cir. 1990).
Moreover, if these records were presented
during the magistrate judge’s factfinding pro-
cess in accordance with Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985), overruled on
other grounds by Denton v. Hernandez, 504
U.S. 25 (1992), the district court arguably
used the documents impermissibly to refute
Green’s testimony. See Norton v. Dimazana,
122 F.3d 286, 292 (5th Cir. 1997) (noting that
a defendant may not use medical records to
defeat a prisoner’s testimony at a Spears hear-
ing). In a Spears hearing, “the court should
allow proper cross-examination.” Id. Green
asserts that the court did not allow him to
review or refute this evidence against him.
IV.
Without more before us, we cannot
determine conclusively whether the district
court improperly used and relied on these
records. Further, without resolving the
question of fact as to the institution whence
the records come, we cannot decide whether
the court properly dismissed Green’s claim as
frivolous.
Accordingly, we AFFIRM the dismissal of
Green’s claims against Warden Lampert, As-
sistant Warden Duke, Nurse McKinney, and
Mrs. Brown. We AFFIRM the dismissal of
the claim that the prison dining policy violated
Green’s Eighth Amendment rights. We
VACATE and REMAND the dismissal of the
claims against Dr. Collier for factual findings

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consistent with this opinion. We express no
view as to the appropriate ultimate resolution
of these claims.

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