United States District Court, W.D. Louisiana, Lake Charles Division
RAY D. BRISTER DOC # 383050
ALDON ROBINSON, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
the court is an amended civil rights complaint [doc. 14]
filed pursuant to 42 U.S.C. § 1983 by Ray D. Brister,
who is proceeding pro se and in forma
pauperis in this matter. Brister is a pretrial detainee
and is currently incarcerated at Concordia Parish
Correctional Facility in Ferriday, Louisiana. However, he
complains of events that occurred while he was making an
appearance at the Jefferson Davis Parish Courthouse in
Jennings, Louisiana. Docs. 1, 7.
factual background to this case is provided in our previous
order. See doc. 13. We ordered Brister to amend his
previous complaint to correct deficiencies therein, warning
him in relevant part that he must show deliberate
indifference to serious medical needs in order to hold the
defendants liable under 42 U.S.C. § 1983. Id.
at 4-5. Brister has responded to that order, but his amended
complaint does not cure the deficiencies in his
noted, Brister is required to show that the defendant
officials had a “subjective knowledge of a substantial
risk of serious harm” to him and responded with
deliberate indifference. Hare v. City of Corinth,
Miss., 74 F.3d 633, 650. To establish deliberate
indifference, a plaintiff must show that the official knew of
and disregarded an excessive risk to inmate health and
safety. Farmer v. Brennan, 114 S.Ct. 1970, 1977-79
(1994); Hare, 74 F.3d at 648-49 (applying
Farmer standard to pretrial detainee's claim
relating to an episodic act). “Deliberate indifference
encompasses only unnecessary and wanton infliction of pain
repugnant to the conscience of mankind;” thus the test
is “[s]ubjective recklessness” as used in
criminal law. Norton v. Dimazana, 122 F.3d 286, 291
(5th Cir. 1997) (quoting Farmer, 114 S.Ct. at 1980).
fact that a plaintiff disagrees with what medical care is
appropriate or with the course of treatment offered does not
show deliberate indifference. Id. at 292. In
Woodall v. Foti, 648 F.2d 268, 272 (5th Cir. 1981),
the Fifth Circuit stated that the test in balancing the needs
of the prisoner versus the needs of the penal institution is
one of medical necessity, not desirability. The fact that a
plaintiff continues to suffer pain is insufficient to
establish that a constitutional violation has occurred.
Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992).
alleges that defendants Robinson and Locke prevented him from
obtaining emergency care after he fell at the courthouse, and
told him he would instead have to see the doctor when he
returned to CPCF. Doc. 7, pp. 5-6; doc. 14, pp. 1-2. He
states that the doctor at CPCF told him he was only bruised
but maintains that he continues to suffer back pain and
shooting pain in his legs and that sometimes his right leg
gives out on him. Doc. 7, p. 6; doc. 14, pp. 1-2.
allegations fail to show that a need for emergency care was
indicated for his injuries. Therefore he cannot show that
Locke and Robinson knew of and disregarded any substantial
risk of harm to him by making him delay care until his return
to CPCF. If anything, he appears to disagree with the
treatment offered upon his return to CPCF, though he does not
name any personnel from that facility as defendants.
IT IS RECOMMENDED that this matter be
DISMISSED WITH PREJUDICE under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failing to state a claim on
which relief may be granted.
the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R.
Civ. Proc. 72(b), parties aggrieved by this recommendation
have fourteen (14) days from service of this report and
recommendation to file specific, written objections with the
clerk of court. A party may respond to another party's
objections within fourteen (14) days after being served with
a copy thereof. Failure to file written objections to
the proposed factual finding and/or the proposed legal
conclusions reflected in this Report and Recommendation
within fourteen (14) days following the date of its service,
or within the time frame authorized by Fed.R.Civ.P. 6(b),
shall bar an aggrieved party from attacking either the
factual findings or the legal conclusions accepted by the
District Court, except upon grounds of plain error. See
Douglass v. United Services Automobile Association, 79
F.3d 1415 (5th Cir. 1996).
 Brister mentions that Robinson caused
him pain when he moved him off the floor, causing the EMT to
admonish Robinson for moving Brister without a neck brace.
Doc. 7, p. 5. He also alleges that Locke and Robinson caused
him more pain when they moved him off of the gurney.
Id. However, he does not allege that they acted
deliberately or recklessly, such that we might view this as a
separate Eighth Amendment violation, or that these actions
exacerbated his injuries in such a way as to indicate that