United States Court of Appeals,
Fifth Circuit.
No. 96-40912 Summary Calendar.
Joseph H. NORTON, Plaintiff-Appellant,
v.
E.U. DIMAZANA, M.D.; Texas Department of Criminal Justice, Defendants-Appellees.
Sept. 22, 1997.
Appeal from the United States District Court for the Southern District of Texas.
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Texas prisoner Joseph Norton appeals the district court's
dismissal as frivolous of his 42 U.S.C. § 1983 complaint alleging
that the deliberate indifference of the prison staff to his medical
needs violated his Eighth Amendment rights. He also asserts that
the fee provisions of the Prison Litigation Reform Act violate his
right of access to the courts, that the district court abused its
discretion by employing irregular procedures in deciding his case,
that the court must provide him a copy of the transcript from his
in forma pauperis hearing, and that the district court erred by
denying his motion for counsel. Finding no reversible error, we
affirm.
I
For years, Norton has experienced serious, painful problems
associated with a prolapsed rectum; basically he has suffered from
1 grossly inflamed external hemorrhoids and encountered difficulties
in retracting the muscles of his rectum after a bowel movement. In
such cases, the muscles of Norton's sphincter are expelled from his
anus, and reinserting them is too painful for Norton to accomplish
alone. Prison medical staff, on many such occasions, rendered
their assistance. They also gave Norton supplies, such as gloves
and lubricants, to aid him in performing the job himself. For
several years, Norton experienced these and associated problems in
prison. Over the two-year span preceding this lawsuit, he saw
medical professionals, both inside and outside the prison, at least
monthly. Despite constant attention, Norton's condition has
improved little.
Norton filed a complaint contending that approximately forty
prison officials and prison medical staff members were deliberately
indifferent to his serious medical needs, in violation of his
Eighth Amendment rights. Among other things, he complains that
prison officials should have attempted different diagnostic
measures or alternative modes of treatment. He requests damages,
injunctive relief, and appointment of counsel. Norton also alleged
that, when the district court required him to provide information
about his prison trust fund account, prison officials intentionally
withheld information about the account. However, the District
Clerk received the account information in timely enough fashion to
compute and assess the initial, partial filing fee.
The district court conducted a hearing on Norton's motion for
leave to proceed in forma pauperis ("i.f.p.") and on his allegation
2 that prison officials intentionally withheld account information.
At this hearing, the court also sought to focus the issues asserted
by Norton's complaint, and Norton testified at the hearing about
the facts he alleged. The court orally granted Norton leave to
proceed i.f.p. Then the court called a recess in the hearing,
during which it ordered the defense attorney to review Norton's
medical records. When the court reconvened, the judge noted that,
in his opinion, the prison had not ignored Norton's physical
condition. The judge nonetheless ordered the defense attorney to
speak with doctors and file a report regarding Norton's medical
condition.
The court subsequently issued a written order denying Norton's
motion for leave to proceed i.f.p. and assessed a partial filing
fee of $24 (twenty percent of the $120 district court filing fee),
as required by the Prison Litigation Reform Act, Pub.L. No. 104-
134, 110 Stat. 1321 (1996) ("PLRA" or "Act"). See 28 U.S.C. §
1915(b)(1)-(2) (setting out PLRA fee provisions).
The attorney for the defendants subsequently filed the report
requested by the district court, with an attached affidavit by one
Dr. Owen Murray and a certified copy of Norton's prison medical
records. The district court reviewed the report, dismissed
Norton's complaint as frivolous under 28 U.S.C. § 1915(e)(2)(b)(1),
and denied Norton's motion for appointment of counsel as moot.
Norton timely appealed.
In an earlier order, we granted Norton's motion for leave to
proceed i.f.p. on appeal; assessed a $40 initial, partial filing
3 fee for the appeal; ordered Norton to pay the remainder of the
$105 filing fee in installments pursuant to the PLRA; and denied
Norton's motion for production of a transcript of the i.f.p.
hearing in the district court. Norton v. Dimazana, No. 96-40912
(5th Cir. Feb.27, 1997) (unpublished). We now address the merits
of Norton's appeal.
II
On appeal, Norton raises five issues: (1) whether the filing
fee provisions of the PLRA violate prisoners' right of access to
the courts; (2) whether the district court erred in dismissing his
section 1983 suit as frivolous; (3) whether the erratic procedure
by which the district court denied him i.f.p. status and dismissed
his appeal violates Norton's right to due process; (4) whether
this court erred in denying his request for a transcript of the
i.f.p. hearing; and (5) whether the district court erred in
denying his motion for appointment of counsel.
A
Construing his brief liberally, we first address Norton's
assertion that the fee provisions of the PLRA deny prisoners
constitutionally guaranteed access to the courts. In Bounds v.
Smith, the Supreme Court articulated a "fundamental constitutional
right of access to the courts[,]" 430 U.S. 817, 828, 97 S.Ct. 1491,
1498 52 L.Ed.2d 72 (1977), which requires prison officials to
guarantee prisoners a reasonably adequate opportunity to present
claimed violations of fundamental constitutional rights to the
courts. Lewis v. Casey, --- U.S. ----, ----, 116 S.Ct. 2174, 2180,
4 135 L.Ed.2d 606 (1996). Although other courts have addressed the
issue, see Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997);
Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997), petition for
cert. filed, --- U.S.L.W. ---- (U.S. No. 97-5072) (June 20, 1997);
Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997), the question of
whether the PLRA's fee provisions unconstitutionally deny access to
the courts is an issue of first impression in this circuit.
Norton does not specify whether he is challenging the
district court's assessment of fees for his original suit, for his
appeal, or both. He did not challenge the assessment of a partial
filing fee in the district court proceeding, and he paid the fee
that the court imposed. The district court made no explicit
findings regarding the constitutionality of the PLRA fee
provisions. We normally review contentions not raised in the
district court for plain error. Douglass v. United Services Auto.
Ass'n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc ). To prevail on
plain error review, an appellant must show: (1) that an error
occurred; (2) that the error was plain, which means clear or
obvious; (3) the plain error affects substantial rights; and (4)
refusal to correct the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. Highlands
Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th
Cir.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d
786 (1995).
This case is on slightly different footing from the normal
failure to assert a claim, since a liberal reading of Norton's
5 brief also presents a challenge to the imposition of fees on
appeal. Obviously, Norton could not have challenged the assessment
of appellate fees during his district court proceeding.
Nevertheless, we find that under either plain error or de novo
review, the fee provision does not unconstitutionally deny
prisoners access to the courts.
The fee provision of the PLRA provides:
(b)(1) ... [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount of a filing fee. The court shall assess and, when funds exist, collect, as a partial payment of any court fees required by law, an initial partial filing fee of 20 percent of the greater of—
(A) the average monthly deposits to the prisoner's account; or
(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.
(2) After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.
28 U.S.C. § 1915(b), as amended by the PLRA. The PLRA provides
that prisoners proceeding i.f.p. are responsible for paying the
full amount of the filing fee; however, the statute provides that
impecunious litigants may pay the fee over time, if necessary. The
PLRA also provides that no prisoner shall be denied access to the
courts because he or she has insufficient funds to pay the initial,
partial filing fee. 28 U.S.C. § 1915(b)(4), as amended by the PLRA
("In no event shall a prisoner be prohibited from bringing a civil
6 action or appealing a civil or criminal judgment for the reason
that the prisoner has no assets and no means by which to pay the
initial partial filing fee."). The federal statute, of course,
does not affect a prisoner's ability to bring actions in state
court or through state administrative proceedings.
"While the precise contours of a prisoner's right of access to
the courts remain somewhat obscure, the Supreme Court has not
extended this right to encompass more than the ability of an inmate
to prepare and transmit a necessary legal document to a court."
Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir.1993) (footnotes
omitted), cert. denied, 510 U.S. 1123, 114 S.Ct. 1081, 127 L.Ed.2d
397 (1994). It is apparent that the fee provisions of the PLRA do
not hinder prisoners' abilities to prepare or transmit their cases
or appeals to court.
To be sure, the Act's fee provisions do change the terms of
i.f.p. litigation: litigants proceeding under the statute must now
pay at least part of the fee up front, and whenever able, i.f.p.
litigants will now be responsible for making monthly installment
payments toward repaying the full amount of the filing fee (usually
$105 for an appeal). 28 U.S.C. § 1915(b)(1)-(2); see also 28
U.S.C. § 1913 note (Judicial Conference Schedule of Fees).
Previously, i.f.p. litigants were not responsible for prepaying any
of the filing fee, and although such litigants technically remained
liable for the full amount of the fee, few in fact ever paid it.
See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) ("All
§ 1915 has ever done is excuse prepayment of docket fees; a
7 litigant remains liable for them, and for other costs, although
poverty may make collection impossible.").
The obligation to pay filing fees, over time if necessary, is
not an unconstitutional denial of access to the court system. As
we have noted before, "there is no absolute "right' to proceed in
a civil action without paying a filing fee; this is a procedural
privilege that Congress may extend or withdraw." Strickland v.
Rankin County Corr. Facility, 105 F.3d 972, 975 (5th Cir.1997);
Startti v. United States, 415 F.2d 1115, 1116 (5th Cir.1969).
Furthermore, section 1915(b)(4) contains an explicit guarantee that
no prisoner will be barred from pursing a civil action, or from
appealing a civil or criminal judgment, because he or she does not
have enough money. 28 U.S.C. § 1915(b)(4). This saving provision
sufficiently guarantees that all prisoners will have access to the
courts, regardless of their income. Nicholas, 114 F.3d at 21.
The fee provisions of the PLRA, in a sense, level the playing
field between incarcerated i.f.p. litigants and other litigants in
the federal courts. Non-i.f.p. litigants must generally consider
the cost of filing when deciding whether to bring a civil action or
appeal in federal courts. The PLRA changes the rules of i.f.p.
litigation, requiring indigent prisoners for the first time to make
the same prudential decisions about the merits of their lawsuits
that everyone else makes before filing. Adepegba v. Hammons, 103
F.3d 383, 386 (5th Cir.1996). This limits the access of indigent
prisoners to the courts no more than the filing fee restricts
non-i.f.p. litigants. To the contrary, the PLRA provisions
8 allowing repayment over time allow impecunious prisoners to bring
actions even when they are unable to pay filing fees up front.
This allows them more access to the courts than most non-prisoners
receive. We therefore find that the fee provisions of the PLRA do
not unconstitutionally limit the access of indigent prisoners to
the courts.
B
Norton challenges the district court's dismissal as frivolous
of his section 1983 suit claiming deliberate indifference to his
serious medical needs, in violation of the Eighth Amendment. The
district court dismissed his suit under 28 U.S.C. § 1915(d), now
redesignated as § 1915(e)(2)(B)(i) by section 804 of the PLRA. We
review district court dismissals as frivolous for abuse of
discretion. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir.1997).
The district court may dismiss a case as frivolous under
either the old section 1915(d) or the new section 1915(e)(2)(b)(i)
if it lacks an arguable basis in law or in fact. McCormick, 105
F.3d at 1061. In order to show that his medical care violated the
Eighth Amendment, Norton must allege that prison officials were
deliberately indifferent to his serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).
Deliberate indifference encompasses only unnecessary and wanton
infliction of pain repugnant to the conscience of mankind. Id. at
105-06, 97 S.Ct. at 291-92. "Subjective recklessness," as used in
the criminal law, is the appropriate test for deliberate
9 indifference. Farmer v. Brennan, 511 U.S. 825, 838-40, 114 S.Ct.
1970, 1980, 128 L.Ed.2d 811 (1994).
It is amply clear that prison officials were neither reckless
nor deliberately indifferent to Norton's admittedly serious medical
needs. In fact, the record demonstrates that quite the opposite
was true. There is extensive evidence in the record that prison
officials afforded Norton a great deal of care and attention.1
1 In July of 1994, Norton requested that prison officials grant him sick leave from work because the muscles in his rectum would not retract. At a subsequent doctor visit, the physician took note of Norton's hemorrhoidal condition and prescribed Anusol and Metamucil. The doctor did not note that Norton's rectum was prolapsed.
In August of the same year, Norton submitted another sick-call request, again complaining of rectal prolapse and pain. A physician diagnosed severe rectal prolapse, but no bleeding. The doctor prescribed Psyllium powder, Ibuprofen, and more Anusol. The doctor also referred Norton to a proctologist and gave him a lay-in pass for two days.
Norton was in and out of the hospital often between September and December 1994, complaining of constant rectal pain. On his first such visit, the physician diagnosed external hemorrhoids, but no rectal prolapse. The doctor continued Norton's prescription for Psyllium and Ibuprofen. A week after this visit, Norton went to the prison infirmary with a prolapsed rectum. He reported that he had suffered such a condition twelve times in the previous year. Doctors reinserted Norton's rectum and instructed him to drink water. Two weeks later, a nurse had to reinsert Norton's rectum again. A physician gave Norton a pass for a plastic donut for his hemorrhoids later in October. In early November, Norton suffered another prolapsed rectum that he could not self-correct. A nurse issued Norton gloves and lubricant for future self-reinsertion, prescribed Motrin, and had a nurse reinsert Norton's sphincter.
Norton was back in the prison infirmary in December 1994, complaining of a prolapsed rectum and requesting another self-care kit. Infirmary staff repositioned Norton's rectum and gave him more gloves and lubricant. In January 1995, prison officials changed Norton's medical classification to reflect Norton's obvious problems with anal expulsion. The
10 The medical records indicate that Norton was afforded
extensive medical care by prison officials, who treated him at
least once a month for several years, prescribed medicine, gave him
medical supplies, and changed his work status to reflect the
infirmary staff gave him more self-treatment supplies two weeks later.
Prison officials referred Norton to a specialist at the University of Texas Medical Branch ("UTMB") in February 1995. The physician there noted no rectal prolapse during the evaluation, but recommended a stool softener, a lifting restriction to no more than ten pounds, and a change in job assignment to a position with little walking or standing. The clinic notes from Norton's next visit to the prison clinic reflect the recommendations given by the UTMB physician. The prison physician gave Norton Metamucil, restricted Norton to a lower bunk and a ground-floor cell in the prison, restricted him to walking 100 yards, and limited him to lifting ten pounds and sedentary work. However, the prison physician listed Norton's "bad knee" as the reason for the restrictions. During this time, Norton requested a new plastic donut, since his old one had sprung a leak. The prison provided a new donut the next day.
In April 1995, the inmate clinic reported that Norton was doing well with his prescriptions and restrictions, although he was still expelling his sphincter muscles during bowel movements. The clinic gave Norton a new plastic donut and a new self-help kit. The following month, the clinic reinserted Norton's rectum again, gave him a new donut and some latex gloves, and noted that his condition could worsen with walking.
This would become something of a routine for Norton; even with the equipment to reinsert his own rectum, on several occasions he could not perform the repositioning on his own and was forced to go to the clinic. Physicians and nurses in the clinic reinserted Norton's rectum in May and June, three times in August, and again in November and December. Norton requested a referral to the hospital at UTMB. The prison provided him hemorrhoidal cream and directed him to record each episode of prolapse in order to justify a referral.
Subsequent to all of this treatment, Norton filed the instant lawsuit claiming that the prison had been indifferent to his medical needs.
11 seriousness of his problem. Norton's complaints about the
treatments he has received, and the facts he alleges, simply do not
state a claim for deliberate indifference.
Norton also alleges that medical personnel should have
attempted different diagnostic measures or alternative methods of
treatment. Disagreement with medical treatment does not state a
claim for Eighth Amendment indifference to medical needs. Young v.
Gray, 560 F.2d 201, 201 (5th Cir.1977); Spears v. McCotter, 766
F.2d 179, 181 (5th Cir.1985). The district court correctly
dismissed this action as frivolous.
C
Next, Norton loosely asserts that the erratic procedure by
which the district court denied him i.f.p. status and dismissed his
appeal violates his right to due process. During its consideration
of Norton's request to proceed i.f.p., the district court evidently
conducted a hearing on Norton's claims in order to focus the issues
in this case. Although the court session was not characterized as
a Spears hearing, it apparently served that purpose. See 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, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).
In a Spears hearing, the district court may make only limited
credibility determinations, Cay v. Estelle, 789 F.2d 318, 326-27
(5th Cir.1986), overruled on other grounds, Denton v. Hernandez,
504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), and the court
12 must take care that the evidence considered is authentic and
reliable. Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.1991).
The court should allow proper cross-examination and should require
that the parties properly identify and authenticate documents. Id.
A defendant may not use medical records to refute a plaintiff's
testimony at a Spears hearing, Williams v. Luna, 909 F.2d 121, 124
(5th Cir.1990), but the court may require the defendants in
prisoner-rights cases to construct an administrative record to
assist the court in determining whether the complaint is frivolous.
Cay, 789 F.2d at 323 n. 4; Martinez v. Aaron, 570 F.2d 317, 319
(10th Cir.1978) (establishing procedure approved in Cay ).
In this case, the district court, in compliance with Cay,
asked the defendants to prepare an administrative record, including
evidence from Norton's doctors. The defendants presented the court
with Norton's medical records and the affidavit of Dr. Owen Murray.
Dr. Murray's affidavit was not subject to cross-examination.
Norton suggests that the fact that he was unable to
cross-examine the affiant violates his right to due process.
However, the district court did not rely on Dr. Murray's affidavit
in dismissing Norton's complaint. Instead, the court decided that,
based on the medical records before it, Norton's claims were
meritless. The district court's decision to allow Dr. Murray's
affidavit to be considered in the Spears hearing, to the extent
that it was erroneous, is harmless error. Fed.R.Civ.P. 61.
D
Norton contends that this court erred in denying his request
13 for a transcript of his i.f.p./Spears hearing in the district
court. A court reporter was present for the hearing, but there is
no tape of the hearing or transcript in the record.
"Fees for transcripts furnished ... to persons permitted to
appeal in forma pauperis shall ... be paid by the United States if
... a circuit judge certifies that the appeal is not frivolous (but
presents a substantial question)." 28 U.S.C. § 753(f). In order
to succeed on a motion for production of transcripts at government
expense, a party must also show why the transcripts are necessary
for proper disposition of his appeal. Harvey v. Andrist, 754 F.2d
569, 571 (5th Cir.), cert. denied, 471 U.S. 1126, 105 S.Ct. 2659,
86 L.Ed.2d 276 (1985).
Norton contends that the transcript was necessary to review
the imposition of a partial filing fee, to determine his indigent
status on appeal, and to substantiate his due process claim
discussed in section C of this opinion. Norton's indigence is not
disputed in this appeal, and the district court determined his
i.f.p. status based on the financial information Norton submitted
to the court. Furthermore, we have held that his due process claim
and his underlying Eighth Amendment claim are frivolous. Finally,
Norton has not shown why the transcript is necessary to challenge
the district court's order on appeal. Therefore we find that he
does not meet the requirements of section 753(f), and we affirm the
denial of his motion for production of a transcript.
E
The district court also denied Norton's motion for
14 appointment of counsel, which Norton cites as error. We review a
district court's decision not to appoint counsel for abuse of
discretion. Jackson v. Dallas Police Dep't, 811 F.2d 260, 261 (5th
Cir.1986). A district court should appoint counsel in a civil
rights case only if presented with exceptional circumstances. Id.
A district court should consider four factors in making this
determination:
(1) the type and complexity of the case; (2) whether the indigent litigant is capable of adequately presenting his case; (3) whether the litigant is in a position to investigate the case adequately; (4) whether the evidence will consist in large part of conflicting testimony, thus requiring skill in presentation and cross-examination.
Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982). We have
reviewed the record in this case, and we cannot say that the
district court abused its discretion. It is clear from Norton's
medical records that his civil rights claim is meritless, and, in
the end, the presence of counsel will not change this record.
III
Therefore we AFFIRM the district court's dismissal of Norton's
civil rights claim as frivolous and AFFIRM the denial of his motion
for production of a transcript at government expense. Furthermore
we DENY as untimely Norton's motion to file a reply brief. See
Fed.R.App.P. 31(a); 5th Cir.R. 31.4.1.