Palmisano v. Franco

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 22, 2001
• Docket: 00-50763
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50763 Summary Calendar

JOSEPH C. PALMISANO,

Plaintiff-Appellant,

versus

R.V. FRANCO, Warden; J. GARBOW, Associate Warden - Federal Correctional Institute La Tuna; SARRANO, Dr., Head of Medical Services - Federal Correctional Institute La Tuna,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-97-CV-307-H -------------------- June 21, 2001

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Joseph C. Palmisano, federal prisoner #03712-082, appeals

the summary-judgment dismissal of his civil rights action filed

pursuant to Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). He also seeks to file

a supplemental reply brief. Palmisano’s motion to file a

supplemental reply brief is GRANTED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50763 -2-

In his complaint, Palmisano alleged that the appellees were

deliberately indifferent to his medical needs when they failed to

provide timely and adequate medical care and when they exposed

him to environmental tobacco smoke. He also averred that the

appellees retaliated against him for attempting to obtain copies

of his medical records in order to challenge the conditions of

his confinement and for pursuing administrative remedies and

violated the Due Process Clause of the Fifth Amendment on the

basis of race by forcing him to live under a Mexican culture,

which included being served primarily Mexican food.

Palmisano has not raised or briefed any issues relating to

his claim of retaliation or the denial of due process on appeal.

Thus, Palmisano has abandoned the claims on appeal. Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

The district court, in granting summary judgment in favor of

the appellees, determined that the appellees were not

deliberately indifferent to Palmisano’s medical needs and were

otherwise entitled to qualified immunity. This court reviews a

grant of summary judgment de novo. Abbott v. Equity Group, 2

F.3d 613, 618 (5th Cir. 1993).

We have reviewed the briefs and the record on appeal and

conclude that the district court did not err in granting summary

judgment in favor of the appellees. The summary-judgment

evidence revealed that Palmisano was under almost constant

treatment for his heart condition during the 10 months he was

incarcerated at FCI La Tuna. Palmisano was seen by the medical

staff 32 times; 16 of those occasions related specifically to his No. 00-50763 -3-

heart condition. Palmisano was extensively monitored and treated

with medication. The Bureau of Prisons’ staff furthermore

accommodated Palmisano, such as assigning him to a lower bunk and

to a non-smoking section of the dormitory. A prisoner’s

disagreement with the medical treatment simply does not state a

claim for Eighth Amendment indifference to medical needs. Norton

v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).

To the extent that Palmisano’s argument is that there was a

delay in referring him to a specialist, although a delay in

medical care can constitute an Eighth Amendment violation only if

there has been deliberate indifference that results in

substantial harm, in the instant case, there was no delay in

treatment. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.

1993). The record was replete with evidence of constant and

extensive monitoring of Palmisano’s medical condition. Moreover,

disagreement with the timing of medical services provided cannot

support a Bivens claim. Id. at 193.

To the extent that Palmisano avers that he was injured

because of his need for immediate catheterization, the records

showed that within a month of receiving the cardiologist’s

recommendation that Palmisano should undergo a catheterization,

he underwent the recommended procedure. Moreover, upon

Palmisano’s arrival at FMC Fort Worth on February 6, 1997, he

refused to undergo a balloon angioplasty and refused treatment by

the attending physician.

With regard to Palmisano’s claim that the appellees were

deliberately indifferent to his serious medical needs when they No. 00-50763 -4-

exposed him to environmental tobacco smoke, the Supreme Court has

held that the exposure of inmates, with deliberate indifference,

to unreasonably high levels of environmental tobacco smoke while

incarcerated states a cause of action under the Eighth Amendment.

Helling v. McKinney, 509 U.S. 25, 35 (1993). In order to

maintain his action, however, the inmate must satisfy both the

objective and subjective elements of an Eighth Amendment

violation. Id. Subjectively, the inmate must prove that the

prison authorities have been deliberately indifferent to the harm

of environmental tobacco smoke. Id.

The district court properly held that Palmisano failed to

produce sufficient evidence that demonstrated that Serrano was

personally involved in any decisions regarding environmental

tobacco smoke; that Garbow had actual knowledge with respect to

the levels of environmental tobacco smoke to which Palmisano

alleged he was exposed; or that Franco knew that environmental

tobacco smoke posed a serious danger to Palmisano and that he

acted unreasonably in light of Palmisano’s constitutional rights.

Palmisano avers that the appellees had a duty of care under

18 U.S.C. § 4042, which declares the general responsibilities of

the Bureau of Prisons. Even if it is assumed that 18 U.S.C.

§ 4042 provides for a private cause of action, see Harper v.

Williford, 96 F.3d 1526, 1527 (D.C. 1996); Chincello v. Fenton,

805 F.2d 126, 134 (3d Cir. 1986)(the statute was not intended to

assign any specific responsibility to the Director of the Bureau

of Prisons personally or to create a private right of action), as

discussed above, the summary-judgment evidence shows that the

appellees’ actions were objectively reasonable under the No. 00-50763 -5-

circumstances. Given the forgoing, the judgment of the district

court is AFFIRMED.