RON CLARK, Senior District Judge.
Plaintiff Kevin Deneen Myers, a prisoner confined at the Coffield Unit within the Texas Department of Criminal Justice (TDCJ), proceeding pro se and in forma pauperis, filed this civil rights lawsuit complaining of alleged violations of his constitutional rights. The complaint was referred to the United States Magistrate Judge, the Honorable Judge John D. Love, for findings of fact, conclusions of law, and recommendations for the disposition of the lawsuit.
In his amended complaint, (Dkt. #29), Myers maintained that several defendants—Nurse Broadus, Dr. Iboni, Dr. Arango, Dr. Al-Dossari, Dr. Tung, Dr. VanKatesan, Dr. Poonawala, and Dr. Singh—have acted with deliberate indifference to his serious medical needs. Specifically, Myers describes incidents that occurred in January and February 2016 wherein he was having difficulty breathing:
(Dkt. #29, pg. 3-13) (second amended complaint, operative complaint).
Myers insisted that Nurse Broadus's failure to diagnose him with a collapsed lung—and her failure to use a stethoscope to discover the collapsed lung—constituted deliberate indifference to his medical needs as well as neglect. Because of her failure to provide a diagnosis, he "had to undergo delayed medical care, emotional pain, and further injury by having to have more than 1 chest tube inserted."
Furthermore, Myers opined that Dr. Iboni's failure to "completely treat" his illness by "neglecting to X-ray after medical procedure" and "take steps to ensure Plaintiff received needed treatment" constitutes deliberate indifference to his medical needs. He complained that Dr. Iboni's failure caused further injury and emotional pain because he had to have another chest tube inserted. Myers also claimed that Dr. Arango failed to both "properly insert [the] chest tube" and ensure what medical equipment was in working order, which constitutes deliberate indifference and cruel and unusual punishment. He insisted that he suffered emotional and mental anguish "for over 10 days while confined to his bed" as a result of these failures.
As for Defendant Dr. Al-Dossari, Myers asserted that he failed to ensure that the equipment worked properly and failed to properly train his personnel. Specifically, he opined that Dr. Al-Dossari failed to ensure that his assistant was "properly trained to perform a service," as he had to undergo pain, suffering, anxiety, and discomfort stemming from his continued shortness of breath as he waited for the proper "assembly" of a chest tube and having to have a second tube inserted.
Myers maintained that Dr. Tung acted with deliberate indifference by failing to acknowledge "serious medical need which bore further investigation." He insisted that Dr. Tung failed to determine that the chest tube had a "kink," which resulted in emotional distress, anxiety, and having to defecate in a chair stool for over ten days.
Turning to Dr. VanKetasan, Myers argued that he failed to diagnose the improper chest tube after several daily X-rays. Due to Dr. VanKetasan's failures, Myers contended that he experienced suffering and pain for over ten days, had to receive another chest tube replacement. Furthermore, Myers complained that Dr. Singh's failure to "notice" his medical needs after observing complications noted in prior examinations constitutes deliberate indifference. Finally, with respect to Dr. Poonawala, Myers maintained that he failed to "take steps to ensure Plaintiff received needed medical treatment," thereby constituting deliberate indifference to those medical needs. Because of Dr. Poonawala's failure to acknowledge prior X-rays— showing complications with the chest tube—Myers contended that he was forced to suffer from anxiety, emotional distress, and having to be confined to a bed for over ten days while undergoing delayed medical care. Myers seeks compensatory damages from each Defendant and over $240,000 in punitive damages from each Defendant.
Defendants—Dr. Arango, Dr. Al-Dossari, Dr. Tung, Dr. VanKantesan, Dr. Poonawala, and Dr. Singh—filed a single motion to dismiss, (Dkt. #38). They argued that Myers' claims against them are barred by the two-year statute of limitations because the claims relate to allegations and events that occurred more than two years before Myers filed his amended complaint. Defendants also asserted that Myers' claims do not meet the threshold required to establish deliberate indifference and that they are entitled to qualified immunity.
Defendant Broadus filed a separate motion to dismiss, (Dkt. #34). She asserts that any of her alleged conduct does not rise to the level of deliberate indifference and was objectively reasonable. Defendant Broadus further insists that she is entitled to qualified immunity.
On January 3, 2019, Judge Love issued a Report, (Dkt. #39), recommending that Defendants' motions to dismiss be granted and that Myers' complaint be dismissed, with prejudice, for failing to state a claim upon which relief can be granted. Specifically, Judge Love found that Myers' amended complaint, (Dkt. #29), did not relate back to his initial complaint and was, therefore, time-barred. Despite this deficiency, Judge Love analyzed further: Even if Myers' amended complaint was not time-barred, he nonetheless failed to state a claim for deliberate indifference upon which relief can be granted. Myers has filed timely objections, (Dkt. #43).
In his objections, Myers argues that his amended complaint is not time-barred because he "mentioned" the new Defendants in an earlier-filed amended complaint, (Dkt. #11). Moreover, he maintains that deliberate indifference is evident due to "the proliferation of delay over many weeks raise a issue of material fact." He highlights how he argued that there was a ten-day delay "before it was determined that another chest tube had to be inserted." Myers further opines that "deliberate indifference caused" an easier and less effective treatment—Tylenol and Morphine—to be provided, then Defendants' violated his rights by failing to provide medical care.
The Court notes that, shortly before Plaintiff filed his objections, he filed a response to Defendants' motion to dismiss, (Dkt. #42). In the interests of justice, the Court will address the response. A review of the response shows that Myers basically reiterates the allegations within his complaint and an argument about why the Defendants are not entitled to qualified immunity. The response also denotes Myers' articulation of his own facts and is basically a reiteration of his arguments against Defendant Broadus.
The Fifth Circuit has observed that motions to dismiss under Rule 12(b)(6) are "viewed with disfavor and rarely granted." See Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011). Such motions are generally evaluated on the pleadings alone. See Jackson v. Procunier, 789 F.2d 307, 309 (5th Cir. 1986).
Nevertheless, rule 12(b)(6) allows a dismissal if a plaintiff "fails to state a claim upon which relief may be granted." Fed. R. Civ. P. 12(b)(6). A complaint fails to state a claim upon which relief may be granted where it does not allege sufficient facts which, taken as true, state a claim which is plausible on its face and thus does not raise a right to relief above the speculative level. See Montoya v. FedEx Ground Packaging System Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim has factual plausibility when the pleaded factual content allows the court to draw reasonable inferences that the defendant is liable for the misconduct alleged. See Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239, 245 (5th Cir. 2010); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is
Although all well-pleaded facts are taken as true, the district court need not accept true conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v. Coffin, 496 F. App'x 414, 2012 WL 5419531 (5th Cir. Nov. 7, 2012) (citing Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require "detailed factual allegations," the rule does "demand more than an unadorned, the-defendantunlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading offering "labels and conclusions" or a "formulaic recitation of the elements of a cause of action" will not suffice, nor does a complaint which provides only naked assertions that are devoid of further factual enhancement. Id.
A review of the record and the pleadings in this case demonstrates that Judge Love's Report is correct. Myers failed to state a claim for deliberate indifference upon which relief can be granted.
There is no federal statute of limitations for 42 U.S.C. § 1983 actions; the relevant statute of the forum state furnishes the limitations period, but federal law determines the date the accrual commences. Owens v. Okure, 488 U.S. 235 (1989). The statute of limitations in Texas for section 1983 actions is two years. Burrell v. Newsome, 883 F.2d 416, 419 (5th Cir. 1989); Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir. 1993). Accrual begins "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Burrell, 883 F.2d at 418. "Statute of limitations serve as absolute bars to suit." Nottingham v. Richardson, 499 F. App'x 368, 375 (5th Cir. 2012).
The Federal Rules of Civil Procedure permit an amendment to a complaint to relate back to the date the original complaint was filed. See Fed. R. Civ. P. 15(c). Crucially, however, the rule "is meant to allow an amendment changing the name of a party to relate back to the original complaint
Judge Love found that Myers' amended claims against Defendants Arango, Al-Dossari, Tung, VanKetasan, Poonawala, and Singh are barred by the statute of limitations because his amended claims—filed in October 2018—do not relate back to his original complaint, which was timely filed in August 2016. Specifically, according to his own timeline of events, Myers' claims against these Defendants accrued on or before February 7, 2016. A review of Myers' original complaint, (Dkt. #1), shows that he initially sued Defendants Broadus, Iboni, and Aya. Myers filed a motion to amend his complaint, (Dkt. #28), indicating that he incorrectly named Defendant Aya. In his motion to amend, he identified the new Defendants—explaining that he discovered them
However, Myers' amended complaint, (Dkt. #29), identified new Defendants not previously raised in his initial complaint: Defendants Arango, Al-Dossari, VanKatesan, Poonawala, and Singh. While his amended complaint concerned the same issues presented in his initial complaint, Myers explained that he discovered the correct defendants only after recently receiving medical records, which cannot be characterized as a "mistake." See Ultraflo Corp. v. Pelican Tank Parts, Inc., 926 F.Supp.2d 935, 947 (S.D. Tex.-Houston 2013) ("A failure to name the correct defendant due to a lack of knowledge of the proper party is not a mistake and will not allow a plaintiff to avail itself of the relation back doctrine.") (citation omitted).
Because such discovery was not a result of error or misidentification—as Myers added new defendants that he did not know were defendants when he filed his initial complaint—Judge Love properly found that his October 2018 amended complaint does not relate back to his initial complaint and is thus time-barred. See, e.g., Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2nd Cir. 1995) ("We are compelled to agree with our sister circuits that Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities."); Wilson v. U.S. Government, 23 F.3d 559, 563 (1st Cir. 1994) ("Put another way, Rule 15(c)(3) permits an amendment to relate back only where there has been an error made concerning the identity of the proper party and where the party is chargeable with knowledge of the mistake, but it does not permit relation back where, as here, there is a lack of knowledge of the proper party.") (internal citation and quotations omitted).
On objection, Myers asserts that he was "aware that there were other Defendants involved," and that they were "mentioned" in his first amended complaint, (Dkt. #11). A review of that filing shows that Myers specifically named Defendants Broadus, Iboni, and Aya as parties to his lawsuit. While he mentions other medical providers throughout his pleading—particularly in the facts section—he did not list or name them as Defendants. Providing the Court with named medical providers, as Myers did in his first amended complaint in an effort to describe the facts of his case, does not make them Defendants. Myers readily admits on objection that he merely "mentioned" the new Defendants. Accordingly, Judge Love correctly determined that Myers' second amended complaint, (Dkt. #29), the operative pleading in this case, did not relate back and was thus barred by the statute of limitations. Myers' objection on this point is without merit.
Ultimately, however, the statute of limitation issue does not matter in this case. As Judge Love found, Myers failed to state a claim for deliberate indifference against any Defendant he named.
Deliberate indifference to a prisoner's serious medical needs constitutes an Eighth Amendment violation and states a cause of action under section 1983. See Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir. 1989). In Farmer v. Brennan, 511 U.S. 825, 835 (1994), the Supreme Court noted that deliberate indifference involves more than mere negligence. The Court concluded that "a prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; . . . the official must be both 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. Id. at 837.
The Fifth Circuit has discussed the high standard involved in demonstrating deliberate indifference as follows:
Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). In the medical care context, "[u]nsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference, nor does an inmate's disagreement with his medical treatment, absent exceptional circumstances." Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Moreover, "medical records of sick calls, examinations, diagnosis, and medications may rebut an inmate's allegations of deliberate indifference." Banuelos v. McFarland, 41F.3d 232, 235 (5th Cir. 1995).
Here, as Judge Love repeatedly found and explained in his Report, Myers' own words described in his amended complaint and outlined above reveal that none of the Defendant doctors or nurses acted with deliberate indifference to his medical needs. His own articulation of the facts illustrates that medical personnel neither refused to treat him, ignored his complaints, intentionally treated him incorrectly, nor showed any wanton disregard for his medical needs; in fact, Myers' own words show the very opposite.
In his first objection to Judge Love's deliberate indifference analysis, Myers insists that the ten-day delay before "it was determined that another chest tube had to be inserted" constitutes deliberate indifference. However, a "delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference, which results in substantial harm." See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Here, having found that none of the Defendants acted with deliberate indifference to Myers' medical care, this objection is meritless.
Furthermore, Myers argues on objection that "deliberate indifference caused" less effective medications—Tylenol and Morphine—to be provided. He claims that this shows a violation of the Eighth Amendment.
However, this cannot constitute deliberate indifference by any means: Providing pain medications in response to a prisoner's pain and medical care is antithetical to any notion that medical personnel refused to treat him, ignored his complaints, or evinced any wanton or intentional disregard for his medical care. This is a disagreement with medical treatment provided and Myers does not have a constitutional right to pain medication of his choice. See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1992) ("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."). This objection must be overruled.
Ultimately, regardless of any issues with the statute of limitations, Myers' own articulation of the facts surrounding his medical care—that he suffered in the hospital for ten days due to a collapsed lung and several unsuccessful attempts to insert a successful chest tube to heal his lung— demonstrate that several doctors and nurses treated him, provided medical care, and did not act with deliberate indifference.
While Myers' experience at the hospital was certainly uncomfortable and sometimes painful, he describes a series of events wherein he was examined by prison officials, transported to the hospital, treated by several doctors, given medications, monitored daily, and so forth. His articulation of events refutes any argument that the Defendants refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs. See Domino, 239 F.3d at 756. As Judge Love recommended, Myers' civil rights complaint should be dismissed because he failed to state a claim for deliberate indifference upon which relief can be granted.
The Court has conducted a careful de novo review of the record and the Magistrate Judge's Report. See 28 U.S.C. § 636(b)(1) (District Judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendation to which objection is made."). Upon such de novo review, the Court has determined that the Report of the Magistrate Judge is correct and Plaintiff's objections are without merit. Consequently, it is
