GEORGE C. HANKS, JR., District Judge.
Plaintiff Robert Chacon, a state inmate proceeding pro se and in forma pauperis, filed this complaint under 42 U.S.C. § 1983 against the Director of UTMB Correctional Managed Care ("UTMB CMC") and John Doe, M.D., an unnamed UTMB physician. He claims that he suffered a debilitating stroke during a cardiac stress test because Doe refused to timely terminate the test and the Director failed to train Doe properly.
At the Court's request, the Office of the Attorney General of Texas, as amicus curiae, provided medical records and other documents relevant to plaintiff's claims in a Martinez report (Dkt. 24),
Having reviewed the motion, the response, the probative summary judgment evidence, and the applicable law, the Court
Plaintiff alleges that, on March 23, 2015, he was transported to Hospital Galveston to undergo a cardiac stress test. He claims that he began showing signs of abnormal distress during the test, but that the physician administering the test refused to stop even after plaintiff started screaming and kicking. Plaintiff sustained a stroke, which left him partially paralyzed and permanently disabled.
Plaintiff sues the Director of UTMB CMC as the authority responsible for policy and training of all personnel, and John Doe, M.D., as the unnamed doctor who performed the stress test. He seeks monetary compensation and unspecified injunctive relief. The Court liberally construes plaintiff's pleadings as raising a claim against Doe for deliberate indifference to his health, safety, and serious medical needs in violation of the Eighth Amendment, and against the Director of UTMB CMC for failure to train.
In responding to the motion for summary judgment, plaintiff does not pursue claims for deliberate indifference or failure to train. Rather, he argues that the defendants were negligent and guilty of medical malpractice (Dkt. 31).
Because the plaintiff is an inmate proceeding in forma pauperis, the Court is required by federal law to scrutinize the claims and dismiss the complaint, in whole or in part, if it determines that the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B); see also 42 U.S.C. § 1997e(c) (providing that the court "shall on its own motion or on the motion of a party dismiss an action" if it is satisfied that the complaint is "frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief"). A Martinez report submitted by state officials, as was done in this case, is a tool to assist courts in making a determination of frivolity under 28 U.S.C. § 1915. See Norton v. Dimazana, 122 F.3d 286, 292-93 (5th Cir. 1997); see also Cay v. Estelle, 789 F.2d 318, 323 & n.4 (5th Cir. 1986) (discussing the utility of a Martinez report).
In reviewing the pleadings, the Court is mindful of the fact that the plaintiff in this case proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal construction and, "however inartfully pleaded," must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Even under this lenient standard a pro se plaintiff must allege more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).
The Court construed the Martinez report as a motion for summary judgment (Dkt. 25). Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, a court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Nor do unsubstantiated assertions, improbable inferences, or unsupported speculation stand as competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.
Although the plaintiff in this case is proceeding pro se, the notice afforded by the Federal Rules of Civil Procedure and the local rules is considered sufficient to advise a pro se party of his burden in opposing a summary judgment motion. Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992). Even a pro se plaintiff must specifically refer to evidence in the summary judgment record in order to place that evidence properly before the court. See Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 (5th Cir. 2016); see also E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (noting that pro se litigants must fundamentally abide by federal court rules and properly present summary judgment evidence).
The defendants in this case are sued for monetary damages as to actions taken during employment with UTMB, a state agency. The Eleventh Amendment bars a section 1983 suit for money damages against UTMB as a state agency, or against state employees acting in their official capacity. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002); Aguilar v. Texas Dep't of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Thus, to the extent plaintiff seeks monetary damages against the defendants in their official capacities, his claims are barred by the Eleventh Amendment and are
Plaintiff claims in his complaint that defendant Doe ignored signs and symptoms that plaintiff was having a stroke during the test, and was deliberately indifferent to his health, safety, and medical needs by not immediately stopping the test and procuring proper treatment (Dkt. 1 at p. 4). In his response to the motion for summary judgment, however, plaintiff argues that the defendants were negligent and guilty of medical malpractice (Dkt. 31).
As an inmate, plaintiff had a clearly established Eighth Amendment right not to be denied, by deliberate indifference, attention to his serious medical needs. See Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Prison officials violate the Eighth Amendment prohibition against cruel and unusual punishment when they evince deliberate indifference to a prisoner's serious medical needs, resulting in unnecessary and wanton infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). Deliberate indifference to a prisoner's serious medical needs raises a cause of action under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 105-07 (1976); Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir. 1989).
Negligence or medical malpractice, however, is not an issue of federal constitutional dimension. In Farmer v. Brennan, 511 U.S. 825, 835 (1994), the Supreme Court noted that deliberate indifference involves more than just mere negligence. The Court held 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; that is, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must draw the inference. Id. at 837. The Eighth Amendment deliberate indifference standard is an "extremely high" one to meet. Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). "Actions and decisions by officials that are merely inept, erroneous, ineffective or negligent" do not amount to deliberate indifference. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998).
It is indisputable that an incorrect diagnosis by a physician will not suffice to state a claim for deliberate indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Nor is the failure to alleviate a significant risk that medical personnel should have perceived, but did not, sufficient to demonstrate deliberate indifference. Farmer, 511 U.S. at 838. Rather, a showing of deliberate indifference requires a prisoner to submit evidence establishing that medical personnel "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." Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks omitted).
In support of their motion for summary judgment, the defendants submitted an affidavit of UTMB employee Masood Ahmad, M.D., who testifies as follows:
(Dkt. 24, Exhibit B).
As further support, the defendants submitted an affidavit of UTMB employee Stephen P. Busby, M.D., who testifies as follows:
(Dkt. 24, Exhibit C). The CT scan of plaintiff's head revealed a small intraparenchymal hemorrhage with subarachnoid extension in the right temporal lobe; that is, a cerebral vascular stroke (Dkt. 24, Exhibit D at p. 28).
The medical records submitted by defendants in their motion for summary judgment (Dkt. 24, Exhibits D, E) substantiate the affidavit testimony of Dr. Ahmad and Dr. Busby. The records and probative evidence clearly show that defendant Doe, the physician administering the stress test, promptly responded to the sudden and unexpected change in plaintiff's physical response to the testing. Specifically, the records show that at 10:43 a.m., plaintiff's pulse and blood pressure were within the acceptable range (Dkt. 24, Exhibit D at p. 548). Shortly thereafter, he began complaining of a throbbing headache and numbness, and his blood pressure was found to have abruptly and unexpectedly exceeded the acceptable range. Id. Defendant Doe immediately stopped the dobutamine, and at 10:46 a.m., plaintiff was given hydralazine. Id. Within two minutes, plaintiff's blood pressure returned to an acceptable level, and at 10:48 a.m., neurologists were consulted and a head CT scan was ordered. Id. At 10:52 a.m, a stroke activation alert page went out and within four minutes a neurology team arrived to evaluate plaintiff. Id.
Neither plaintiff nor the records show that defendant Doe ignored plaintiff's physical complaints, refused to stop the test, or actively delayed seeking neurological intervention. Plaintiff presents no probative summary judgment evidence that the physician was deliberately indifferent to his health, safety, or serious medical needs, or in any way refused to treat him, ignored his complaints, intentionally treated him incorrectly, or otherwise clearly evinced a wanton disregard for any serious health, safety, or medical needs. See Domino, 239 F.3d at 756. A prison official acts with deliberate indifference "only if he knows that inmates face a substantial risk of serious bodily harm and he disregards that risk by failing to take reasonable measures to abate it." Farmer at 847. No such circumstances are demonstrated in this case.
Plaintiff proffers no probative summary judgment evidence controverting his medical records or the testimonies of Dr. Ahmad and Dr. Busby, and no deliberate indifference to his health, safety, or serious medical needs is shown. Moreover, plaintiff's conclusory allegations of negligence and medical malpractice by the defendants are insufficient to state a claim for which relief can be granted under section 1983. Even if plaintiff could establish medical malpractice or negligence, such a showing would be insufficient to establish deliberate indifference or a violation of the Eighth Amendment. See Gibbs v. Grimmette, 254 F.3d 545, 549-550 (5th Cir. 2001).
Defendant John Doe, M.D., is entitled to summary judgment dismissal of plaintiff's claims for deliberate indifference to his health, safety, and serious medical needs, and plaintiff's claims against Doe are
Plaintiff alleges in his complaint that the Director of UTMB CMC is liable because he failed to properly train medical staff (Dkt. 1 at p. 3). In his response to the motion for summary judgment, however, plaintiff argues that the defendants were negligent and guilty of medical malpractice (Dkt. 31).
Supervisory officials such as the Director can be held liable under section 1983 only if the plaintiff establishes the supervisor's personal involvement in the acts that caused the constitutional deprivation or a sufficient causal connection between the supervisor's wrongful conduct and the deprivation. See Gates v. Texas Dep't of Prot. & Reg. Servs., 537 F.3d 404, 435 (5th Cir. 2008); Evett v. Deep East Tex. Narcotics Trafficking Task Force, 330 F.3d 681, 689 (5th Cir. 2003). A supervisor may be held liable for failure to train if (1) the supervisor failed to train the subordinate official; (2) a causal link exists between the failure to train and the violation of the plaintiff's rights; and (3) the failure to train constitutes deliberate indifference. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).
Plaintiff presents no probative summary judgment evidence meeting this burden of proof. More fundamentally, as held above regarding defendant Doe, plaintiff fails to establish a violation of his Eighth Amendment rights. His supervisory claims against the defendant Director therefore fail. See Porter, 659 F.3d at 446.
The Director of UTMB CMC is entitled to summary judgment dismissal of plaintiff's claims for failure to train, and plaintiff's claims against the Director are
Plaintiff's complaint and summary judgment response assert claims for negligence and medical malpractice. Medical malpractice and negligence are not cognizable claims for purposes of section 1983, and constitute state law claims.
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental or pendant jurisdiction over a state law claim when it has dismissed all claims over which it has original jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988); see also Enochs v. Lampasas County, 641 F.3d 155, 161 (5th Cir. 2011) (explaining that the rule in the Fifth Circuit "is to dismiss state claims when the federal claims to which they are pendent are dismissed").
Consideration of the relevant factors of judicial economy, convenience, fairness, and comity, particularly in light of the early stage of this case, suggests against this Court's exercise of pendant jurisdiction over these state law claims. The Court's dismissal of plaintiff's federal section 1983 claims support such conclusion.
Accordingly, the Court declines to exercise supplemental or pendant jurisdiction over plaintiff's state law negligence claims.
Defendants' motion for summary judgment (Dkt. 24) is
The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties and to amicus counsel of record for the defendants.
