KEITH P. ELLISON, District Judge.
Plaintiff Larry Eugene Balcerowicz, also known as Larry Michael Johnson, a state inmate at the time of filing, filed this prose section 1983 lawsuit raising claims of deliberate indifference to his health and serious medical needs against prison correctional officers Warden David W. Sweetin, Assistant Warden Christopher G. Carter, Major David Forrest, and Peggy Haggard (collectively the "Correctional Defendants), and against prison medical care providers Thomas Powell, P.A., Randall Healy, P.A., and Maureen Liles, R.N. (collectively the "Medical Defendants"). All of the named defendants are sued in their individual capacities. (Docket Entry No. 12.)
The Correctional Defendants filed a motion to dismiss (Docket Entry No. 15), to which plaintiff filed a response (Docket Entry No. 18). The Medical Defendants filed a motion for summary judgment (Docket Entry No. 24), to which plaintiff filed a response (Docket Entry No. 26). The Medical Defendants filed a reply to plaintiffs response (Docket Entry No. 27), followed by a sur-reply filed by plaintiff (Docket Entry No. 28).
Based on careful consideration of the motions and the various responsive pleadings, the exhibits, the record, and the applicable law, the Court
Plaintiff alleges in his complaint that, on or about November 2, 2010, he arrived at the Estelle Unit from the Garza Transfer Facility. Plaintiff states that he had been evaluated by medical staff at the Garza Transfer Facility, where he reported his hearing impairment, asthma, and history of short "black out" seizures, but that he was not examined or evaluated by medical personnel upon his arrival at the Estelle Unit. He claims that he was not seen by Estelle Unit medical personnel until he suffered an asthma attack on November 9, 2010, and was treated by the medical staff and prescribed an asthma inhaler. He complained to one or more of the Medical Defendants that he had not been evaluated by Estelle Unit personnel upon his arrival, and had not received his asthma medication or any work restrictions.
Plaintiff reports that a few months later, he was assigned to work in the outdoor field squad. He reports no specific beginning date, but does state that on June 24, 2011, he complained to medical personnel that his working in the fields was causing problems with his asthma and seizures. Plaintiff states that he also sent I-60 complaints to the Correctional Defendants complaining that he was being "worked against restrictions" in the field squad. He complains here that he was only able to get a drink of water once an hour, and that he developed headaches, "shakes," and breathing difficulties. On July 26, 2011, he asked defendant Healy for medical restrictions to keep him from working in the fields; Healy responded that medical staff cannot make work assignment decisions. The next day, July 27, 2011, plaintiff reportedly "fell out" while working the fields and "woke up" in the infirmary, claiming that he had a "space out" seizure from being outside.
As to the Correctional Defendants, plaintiff claims that Sweetin "ignored all pleas for help medical and safety. I wrote letters and requests for his help and authority power," that Carter "failed to respond and help to all pleas of help and assistance," that Forrest "refused to help me. Failed to help w/my pleas formed & safety," and that Haggard "ignored and refused to help mew/my pleas for help medically & security & safety." (Docket Entry No. 1, p. 3.) As to the Medical Defendants, plaintiff states that Powell and Healy "refused and denied me proper medical help and treatment," and that Liles "refused and denied me proper medical treatment and held against a P.A. Dr.s [sic] orders and advice." Id. Construed liberally, plaintiffs complaint raises claims against all of the defendants for deliberate indifference to his health and serious medical needs. He seeks monetary compensation and injunctive relief.
In their pending Rule 12(b)(6) motion to dismiss, the Correctional Defendants argue that plaintiffs claims against them should be dismissed because he fails to state a viable section 1983 Eighth Amendment deliberate indifference claim.
In reviewing the adequacy of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all well-pleaded facts as true and view all facts in the light most favorable to the plaintiff. Thompson v. City of Waco, 764 F.3d 500, 502 (5th Cir. 2014). It need not, however, accept a plaintiffs legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive dismissal under Rule 12(b)(6), a plaintiff must 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). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. As recognized by the Fifth Circuit Court of Appeals, the court's task "is to determine whether the plaintiff stated a legally cognizable claim that is plausible, not to evaluate the plaintiffs likelihood of success." Doe ex rei. Magee v. Covington Cnty. Sch. Dist. ex rei. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en bane).
On a Rule 12(b)(6) motion, a district court generally "must limit itself to the contents of the pleadings, including attachments thereto." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,498 (5th Cir. 2000). The court may also consider documents attached to either a motion to dismiss or an opposition to that motion when the documents are referred to in the pleadings and are central to a plaintiffs claims. ld.; see also Walch v. Adjutant General's Dep't of Tex., 533 F.3d 289, 293-94 (5th Cir. 2008) (considering exhibits attached to an opposition because no party questioned the authenticity of the documents and they were sufficiently referenced in the complaint to permit their consideration on a motion to dismiss). Although no documents were attached to plaintiffs complaint or defendants' motion to dismiss in the instant case, plaintiff attached documents to his response in opposition to the motion to dismiss. The Correctional Defendants do not challenge the authenticity of the documents; to the contrary, the same documents are among those submitted by the Medical Defendants in support of their own motion for summary judgment. Consequently, in considering the pending motion to dismiss, the Court will include the exhibits attached to plaintiffs response in opposition to the motion.
A pleading filed prose is to be liberally construed, and "a prose complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under this standard, pleadings filed by a prose litigant are entitled to a liberal construction that affords all reasonable inferences which can be drawn from them. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2000). Because plaintiff is proceeding prose, he will be afforded the benefit of liberal construction under Haines.
Plaintiff claims that the Correctional Defendants violated his Eighth Amendment rights through deliberate indifference to his health and safety.
A claim for deliberate indifference to a prisoner's health and safety requires proof that an officer knew of and disregarded an excessive risk to the inmate's physical health or safety, and that the inmate suffered physical harm or injury as a result. The inmate must show that the officer was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and that the officer did in fact draw the inference and disregarded it. Farmer v. Brennan, 511 U.S. 825, 838 (1994). The failure of an officer to alleviate a significant risk which he should have perceived, but did not, does not constitute deliberate indifference. Moreover, mere negligence or a lack of reasonable care which falls short of being deliberately indifferent does not give rise to a constitutional violation. Id. at 832-33; Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir.1995). Tomeet this standard, aprisonermust establish more than mere negligence or an unreasonable response. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
The record shows that plaintiff had been evaluated immediately prior to his transfer to the Estelle Unit, as shown by his Correctional Managed Care Intake History and Health Screening dated November 2, 2011. (Docket Entry No. 24-3, p. 22.) The form indicated that plaintiffhad an asthma inhaler with him and was allowed to keep it on his person. That same day, prison physician Dr. Lieninger ordered that plaintiff be given a permanent bottom bunk restriction and a prescription for his regular seizure medication.
Plaintiffs medical and prison records also show that, on November 4, 2010, his Medical and Mental Health Transfer Screening form was completed at the Estelle Unit. Id., pp. 278-79. The form noted that plaintiff was complaining ofleft-sided chest pain, and that he was taking phenytoin, an anti-seizure medication. He was approved for release to general population, and was given housing restrictions. Id., p. 279. His work restrictions were noted as "12, 19, 20, 23, 25, & 27."
Thus, plaintiffs allegations and his medical records show that he was provided an intake evaluation, work restrictions, housing assignment and bunk restrictions, as well as prescriptions for his regular medications. He was allowed to keep his asthma inhaler on his person. He was seen, evaluated, and treated for complaints of muscle pain in his chest two days after his arrival at the Estelle Unit.
Plaintiff asserts that unidentified persons assigned him at an unidentified time to work in the fields. In arguing that the Correctional Defendants were deliberately indifferent to his health and safety, he states that they were aware of his hearing impairment and had knowledge of facts "from which they could infer that plaintiffs assignment to work in the fields would expose him to a substantial risk of serious harm." (Docket Entry No. 18, p. 3.) Specifically, he argues that his hearing impairment could have resulted in his being shot by armed guards if he were to venture out of bounds and not hear their warnings. Id. Or, he continues, he could not hear shouts to "move out of the way" of a falling tree. Id., p. 4. However, plaintiff does not allege in his complaint that the defendants knew, or could infer from known facts, that plaintiffs field work exposed him to a serious risk of being shot or struck by falling trees and that they deliberately disregarded those risks. Rather, plaintiff claims that working in the hoe squad caused him to overheat, and that the Corrections Defendants deliberately ignored the substantial risk of his overheating if assigned to the hoe squad.
Plaintiff makes no correlation between his hearing impairment and a substantial risk of overheating. That is, he fails to allege facts showing that defendants could infer; from their knowledge of his hearing impairment, that his working in the fields would expose him to a substantial risk of serious overheating. To the contrary, plaintiff sets forth no factual allegations establishing that, at the time he was assigned to the hoe squad, the Correctional Defendants knew that the work assignment would expose plaintiff to an excessive risk of overheating and that they disregarded that risk. He further fails to allege and show that the Correctional Defendants were both aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed, and that they drew the inference.
At some point after his assignment to the hoe squad, plaintiff sent an internal communication to the Unit Classification Committee, stating his belief that the work was dangerous for him because of his hearing impairment. He was not removed from the work assignment. Id., pp. 5-6. Plaintiff did not inform anyone that he was experiencing physical problems working in the heat until July 26, 2011, following his claim that he had experienced a seizure while working outside, despite having purportedly taken his anti-seizure medications.
Plaintiff fails to allege facts showing that the Correctional Defendants knew, or could infer from their existing knowledge, that his working in the fields would expose him to a substantial risk of serious overheating or seizure activity, and that they disregarded that risk. He further fails to allege and show that the Correctional Defendants were both aware of the facts from which such inference could be drawn that a substantial risk of serious harm existed, and that they drew the inference.
Plaintiff does not state a viable Eighth Amendment claim for deliberate indifference as to the Correctional Defendants, and the Correctional Defendants are entitled to dismissal of plaintiffs claims against them.
The Medical Defendants move for summary judgment and argue that plaintiff fails to establish an Eighth Amendment violation for deliberate indifference to his serious health and medical needs.
Summary judgment should be granted when the moving party conclusively establishes that there is no genuine issue of material fact. FED.R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). There is no issue for resolution at trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party may satisfy its burden by negating the existence of an essential element of the nonmoving party's case. Celotex Corp., 477 U.S. at 325. Alternatively, if the moving party will not bear the burden of proof at trial on a particular issue, it may meet its initial burden by pointing out the absence of evidence supporting that element of the nonmoving party's case. Id.; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996); Transamerica Ins. Co. v. Avenall, 66 F.3d 715, 718-719 (5th Cir. 1995).
Once the moving party has carried its burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. Exxon Corp. v. Baton Rouge Oil, 77 F.3d 850, 853 (5th Cir. 1996). The nonmoving party cannot discharge its burden by alleging legal conclusions or unsubstantiated assertions, nor can it rest on the allegations of the pleadings; instead, it must present affirmative evidence in order to demonstrate the existence of a genuine issue of material fact and defeat a motion for summary judgment supported by competent evidence. Anderson, 477 U.S. at 248-250; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). When the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Id. However, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt the version of the facts for purposes of ruling on a motion for summary judgment. Id.
Under the Eighth Amendment, prison officials have a duty to provide adequate medical care to prisoners. Farmer v. Brennan, 511 U.S. 825,832 (1994); Rogers v. Boatright, 709 F.3d 403, 09 (5th Cir. 2013). To allege an Eighth Amendment violation, an inmate must show that prison officials or prison medical care providers acted with deliberate indifference toward his serious medical needs, resulting in the unnecessary and wanton infliction of pain. Id.
To prevail under the "extremely high standard" of deliberate indifference, a prisoner "must show that the officials 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." Domino v. Tex. Dep't of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). "An incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference." Id. Moreover, "unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference." Id.
Deliberate indifference is especially difficult to show when, as here, the inmate has been provided with ongoing medical treatment. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). The decision not to provide additional or different treatment "is a classic example of a matter for medical judgment" rather than a basis for a deliberate indifference claim. Estelle v. Gamble, 429 U.S. 97, 107 (1976); Domino, 239 F.3d at 756. An inmate's disagreement with medical treatment does not state a claim for deliberate indifference. Gobert, 463 F.3d at 346-47; Norton v. Dimizana, 122 F.3d 286, 292 (5th Cir. 1997). Records showing that an inmate was given medical examinations, treatments, and medications may rebut an inmate's allegations of deliberate indifference in denying or delaying medical care. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Plaintiff contends that the Medical Defendants were deliberately indifferent to his health and serious medical needs in denying him medical care and appropriate work restrictions. He claims that, due to their deliberate indifference, he sustained an asthma attack and, later, a seizure or episode of overheating while working outside in the field squad. He asserts that defendants' knowledge of his hearing impairment and history of a seizure disorder was sufficient to put them on notice that he should not work outside in the fields.
In support of their motion for summary judgment, the Medical Defendants have submitted an affidavit of Steven Bowers, M.D., who reviewed the medical records of plaintiff and testified as follows:
(Docket Entry No. 24, Exhibit C, pp. 2-8.) Bowers further testified that,
Id., p. 8.
In his pleadings, plaintiff specifically alleges that, on August 16, 2011, he had a small, forty-second "space out" seizure and went to the infirmary so it could be documented. He was escorted by a prison officer. When they arrived at the infirmary, defendant Maureen Liles, R.N., told the officer to return plaintiff to his cell because if he could "walk and talk," there was nothing she could do. (Docket Entry No. 26, p. 3; Docket Entry No. 28, p. 2.) Plaintiff complains that defendant Liles's refusal to see him resulted in lack of medical documentation that he had a seizure on that date. However, according to the prison's response to plaintiffs step 2 grievance, officers had neglected to inform Liles that plaintiff only wanted to document the episode, not seek treatment. (Docket Entry No. 26, Exhibit A.) Regardless, plaintiff was seen in clinic two days later on August 18, 2011, and was able to have his seizure episode documented and his medication increased. (Docket Entry No. 26, Exhibit A.) Plaintiff fails to establish that defendant Liles caused him any injury or harm by not seeing him on August 16, 2011.
Plaintiff fails to present probative summary judgment evidence demonstrating that Liles was deliberately indifferent to his serious medical needs, and the Medical Defendants are entitled to dismissal of plaintiffs claims against her.
Plaintiff further argues that defendant Thomas Powell, P.A., was deliberately indifferent to his health and serious medical needs by not renewing a prescription for plaintiffs asthma inhaler. He asserts that Powell examined him on November 9, 2010, following an episode of asthma, and prescribed him an inhaler for ninety days. He further asserts that a nurse gave him an inhaler in February of 2011, but that Powell refused to renew the prescription when the inhaler ran out.
Plaintiffs medical records show that, on November 9, 2010, Powell prescribed Proventil for plaintiff, with two puffs to be taken four times a day for ninety days. Plaintiff was allowed to keep the inhaler with him at all times, a policy known as "Keep on Person," or KOP. Even so, plaintiffs compliance with his inhaler usage was recorded as only 28%. (Docket Entry No. 24, Exhibit A, p. 5; Exhibit B, pp. 214-18.) When the prescription expired in February 2011, Powell renewed the prescription for another ninety days. Id., Exhibit A, p. 5. Plaintiff submitted a "sick call request" for a new inhaler shortly after Powell ordered the refill, and was informed that the new prescription was valid until May 2011. Plaintiffs compliance with this renewal prescription was recorded as 37%. Id.
Plaintiff sent no further sick call requests to Powell regarding inhaler refills after the prescription expired in May 2011. Id., Exhibit B, pp. 226-238. To the contrary, plaintiff states that he sent an e-mail requesting a renewal to defendant Randall Healy. Nevertheless, plaintiff argues that Powell should have automatically renewed the prescription in May 2011 without waiting to hear from plaintiff. In support of his argument, plaintiff proffers nothing more than his bare assertion that chronic care medications such as asthma inhalers should be automatically renewed every ninety days, even if not requested by the inmate. Stated differently, plaintiff contends that it is the care provider, not the inmate, who is responsible for ensuring medication compliance. Plaintiff fails to direct this Court to any applicable authority supporting his position. Nor does plaintiff show that the non-automatic renewal of his inhaler prescription in May 2011 caused him any injury or harm. Plaintiff fails to show that defendant Powell was deliberately indifferent to plaintiffs health or serious medical needs in not automatically renewing his inhaler prescription.
Plaintiff further claims that defendant Powell was deliberately indifferent to his health and safety needs in not examining him and giving him work restrictions upon his arrival at the Estelle Unit. In particular, plaintiff asserts that Powell failed to provide work restrictions based on his hearing impairment that would have excluded his working outside in the fields.
According to medical and prison records submitted by defendants, plaintiff underwent a Correctional Managed Care Intake History and Health Screening on November 2, 2011. (Docket Entry No. 24-3, p. 22.) The form, which was signed by plaintiff, indicated that plaintiff reported a personal history of asthma and paranoid schizophrenia and complained that his "wrist is out of place." Id. He was given a "routine referral" to medical and mental health. Id., p. 23. The records also show that plaintiff underwent a Correctional Managed Care TB History and Classification, Immunization Review, and Intake Interview that same day. Id., pp. 41-44. These forms and interviews clearly evince inquiries regarding lab testing, immunizations, and authorizations to test and immunize. Id.
On November 4, 2010, a Medical and Mental Health Transfer Screening form was completed at the Estelle Unit regarding plaintiff. Id., pp. 278-79. The form noted that plaintiff was complaining of left-sided chest pain, and that he was taking phenytoin, an anti-seizure medication. He was approved for release to general population, and was given housing restrictions of "IIB-2? C-2? [sic]" Id., p. 279. He was provided a lower bunk restriction. Id., p. 226. Significantly, his work restrictions were noted as "12, 19, 20, 23, 25, & 27." Id. Thus, plaintiff is incorrect in asserting that he was not provided work restrictions upon his arrival at the Estelle Unit. According to the records, Powell first saw plaintiff on November 9, 2010, at which point plaintiffs medical and work restrictions had already been determined. Powell did not learn about plaintiffs work assignment complaints until October 3, 2011, at which time Powell informed him that "medical only assigns recommendations for restriction and not specific job assignments." Id. at 45.
Plaintiff fails to present probative summary judgment evidence demonstrating that Powell was deliberately indifferent to his health or serious medical needs, and the Medical Defendants are entitled to dismissal of plaintiffs claims against him.
Plaintiff also raises deliberate indifference claims against defendant Randall Healy, P.A. He alleges that Healy failed to modify his work restrictions or provide proper medications and/or refills of medications, resulting in physical injury. Specifically, plaintiff alleges that he saw Healy on July 26, 2011, and told him about the problems he experienced working in the field. Plaintiff complains that, instead of changing his medical restrictions, Healy told him to take breaks while in the field. As shown by the medical records and Dr. Bowers's affidavit, Healy examined plaintiff and found no abnormalities. He also changed the timing of plaintiffs Dilantin dose at plaintiffs request. Work restrictions were added to plaintiffs HSM-18 form for no repetitive use of hands, no work in direct sunlight, and no temperature extremes. Dilantin level testing was ordered, and plaintiffs prescriptions for Ibuprofen 600mg and Dilantin were renewed.
Plaintiff does not demonstrate that Healy 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 serious medical needs. Domino, 239 F.3d at 756. Plaintiffs disagreements with Healy's decisions as to renewing or not renewing his prescriptions does not constitute deliberate indifference. Varnado, 920 F.2d at 321. Moreover, Healy added restrictions to plaintiffs HSM-18 form on July 26, 2011, including restrictions against working in direct sunlight or temperature extremes. It is undisputed that medical personnel can issue work or medical restrictions, but that job assignments are made by prison officials.
Plaintiff fails to present probative summary judgment evidence demonstrating that Healy was deliberately indifferent to his health or serious medical needs, and the Medical Defendants are entitled to dismissal of plaintiffs claims against him.
Plaintiff reports that he has been released from prison and is no longer incarcerated. His requests for injunctive relief regarding his conditions of confinement are
The motion to dismiss filed by defendants Warden David W. Sweetin, Assistant Warden Christopher G. Carter, Major David Forrest, and Peggy Haggard (Docket Entry No. 15) is
The motion for summary judgment filed by defendants Thomas Powell, P.A., Randall Healy, P.A., and Maureen Liles, R.N. (Docket Entry No. 24) is
Any and all pending motions are
