United States District Court, W.D. Louisiana, Alexandria Division
HERBERT J. MONTGOMERY, Plaintiff
TIFFANY O'NEAL, Defendant
REPORT AND RECOMMENDATION
PEREZ-MONTES, MAGISTRATE JUDGE
the Court is a civil rights Complaint under 42 U.S.C. §
1983 (Doc. 1) filed by pro se Plaintiff Herbert J. Montgomery
(“Montgomery”) (#627908). Montgomery is an inmate
in the custody of the Louisiana Department of Corrections,
incarcerated at the Madison Parish Correctional Center in
Tallulah, Louisiana. Montgomery complains that he received
improper medical care by Nurse Practitioner Tiffany
O'Neal when he was incarcerated at Winn Correctional
Center in Winnfield, Louisiana. (Doc. 1).
Montgomery cannot establish he suffered a constitutional
violation or meet the physical injury requirement for
recovering compensatory damages, his Complaint (Doc. 1)
should be DENIED and DISMISSED WITH PREJUIDCE.
alleges that Nurse Practitioner Tiffany O'Neal provided
improper medical care and committed malpractice. (Doc. 1, p.
3). In an Amended Complaint, Montgomery alleges that, from
July to August 2018, he contacted Defendant O'Neal about
his schizophrenia disorder. (Doc. 11, p. 1). Defendant
O'Neal increased the dosage of Montgomery's
medication. (Doc. 11, p. 1). Montgomery alleges that the
medication was not “agreeing with [Montgomery's]
body, ” so he stopped taking the medication. (Doc. 11,
p. 1). Montgomery alleges he “tried to reach back out
to Mrs. O'Neal to explain why” he stopped taking
the medication. (Doc. 11, p. 1). Montgomery claims Defendant
O'Neal called him a “fake” and ultimately
stopped answering Montgomery's requests. (Doc. 11, 1).
Law and Analysis
Montgomery's Complaint is subject to screening under
§§ 1915(e)(2) and 1915A.
is a prisoner who has been allowed to proceed in forma
pauperis. (Doc. 5). As a prisoner seeking redress from an
officer or employee of a governmental entity,
Montgomery's Complaint is subject to preliminary
screening pursuant to 28 U.S.C. § 1915A. See Martin
v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per
curiam). Because he is proceeding in forma pauperis,
Montgomery's Complaint is also subject to screening under
§ 1915(e)(2). Both § 1915(e)(2)(B) and §
1915A(b) provide for sua sponte dismissal of the Complaint,
or any portion thereof, if the Court finds it is frivolous or
malicious, if it fails to state a claim upon which relief may
be granted, or if it seeks monetary relief against a
defendant who is immune from such relief.
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A complaint fails to state a claim upon which relief may
be granted when it fails to plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Montgomery cannot show deliberate indifference to serious
officials violate the Eighth Amendment's proscription
against cruel and unusual punishment when they act with
“deliberate indifference” to the serious medical
needs of prisoners. See Farmer v. Brennan, 511 U.S.
825, 834, (1994); Estelle v. Gamble, 429 U.S. 97,
105 (1976). Deliberate indifference “is an extremely
high standard to meet.” Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006) (citation omitted). An
inmate must show that prison personnel “refused to
treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would
clearly evidence a wanton disregard for any serious medical
needs.” Domino v. Tex. Dep't Crim. J., 239
F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).
has not presented factual allegations indicating that
Defendant O'Neal ignored his complaints, refused to treat
him, or intentionally treated him incorrectly. Montgomery was
prescribed psychiatric medication, and the dose was increased
when Montgomery complained of additional symptoms. (Doc. 11,
p. 1). Montgomery alleges he unilaterally stopped taking the
psychiatric medication. Montgomery clearly disagrees with the
treatment he received. However, a prisoner's disagreement
with prison officials regarding medical treatment is
insufficient to establish an unconstitutional denial of
medical care. See Norton v. Dimanzana, 122 F.3d 286,
292 (5th Cir. 1997); Banuelos v. McFarland, 41 F.3d
232, 235 (5th Cir. 1995); Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
extent Montgomery complains that the nurse practitioner was
negligent in his treatment, his claim fails. Even
unsuccessful medical treatment, acts of negligence, or
medical malpractice do not ...