Parrott v. UTMB Correctional Managed Health Care et al
MEMORANDUM ORDER overruling objections and adopting 120 Report and Recommendation. Defendants' motions to dismiss are GRANTED to the extent that the claims against Joni White, Kevin Smith, Tamina Brazil, Emma Davis, Vivian Davis, and Yvett e Hall in their official capacities are DISMISSED. Defendants Motions to Dismiss are DENIED with the respect to claims against Joni White, Vivian Davis, Yvette Hall, Tamina Brazil, and Emma Davis in their individual capacities. The Motion to Dismiss the claims against Kevin Smith in his individual capacity is GRANTED. Signed by District Judge Michael J. Truncale on 1/10/22. (tkd, )
Case 1:19-cv-00475-MJT-CLS Document 162 Filed 01/10/22 Page 1 of 4 PageID #: 1387
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
JIMMIE MARK PARROTT, JR.
JONI WHITE, ET AL.
CIVIL ACTION NO. 1:19-CV-475
MEMORANDUM ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff Jimmie Mark Parrott, Jr., a prisoner confined at the Stiles Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), proceeding pro se
and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Joni White,
Vivian Davis, Yvette Hall, Tamina Brazil, Emma Davis, Edward Delone, and Kevin Smith.
The Court ordered that this matter be referred to a United States Magistrate Judge for
consideration pursuant to applicable laws and orders of this court.
The magistrate judge
recommends granting the Motions to Dismiss filed by Defendants Joni White, Kevin Smith, and
Tamina Brazil [Dkt. 51]; Defendant Emma Davis [Dkt. 57]; and Defendants Vivian Davis and
Yvette Hall [Dkt. 64] to the extent that they are sued in their official capacities. The magistrate
judge recommends denying the Motions with respect to Defendants Joni White, Vivian Davis,
Yvette Hall, Tamina Brazil, and Emma Davis in their individual capacities. Finally, the magistrate
judge recommends granting the Motions with respect to Defendant Kevin Smith in his individual
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The Court has received and considered the Report and Recommendation of United States
Magistrate Judge [Dkt. 120] filed pursuant to such order, along with the record and the pleadings.
Plaintiff filed Objections to the Report and Recommendation [Dkt. 125].
The Court has conducted a de novo review of the Objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). First, Plaintiff erroneously states that the Report and
Recommendation addresses the claims against Defendant Edward Delone. In fact, the Report and
Recommendation explicitly states that Defendant Delone has not been served with process and did
not join in the Motions to Dismiss, and the magistrate judge did not make any recommendations
regarding the claims against Defendant Delone. Therefore, this objection lacks merit.
Next, Plaintiff objects to the magistrate judge’s determination that Defendant Smith was not
personally involved in Plaintiff’s medical treatment. Plaintiff argues that Defendant Smith was
personally involved because he reviewed Plaintiff’s administrative grievances, but an alleged failure
to investigate an inmate’s complaints does not rise to the level of a constitutional violation. Geiger
v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
Finally, Plaintiff argues that the official capacity claims should not be dismissed because he
is seeking injunctive relief. Plaintiff seeks a court order requiring the defendants to provide him with
“proper medical care, pain medication, and [a] smaller medical facility assignment.” (Memorandum
of Law in Support of Plaintiff’s Motion for a Temporary Restraining Order and Preliminary
Injunction, Doc #124 at 1.) Defendants were ordered to respond to Plaintiff’s Objections and
address whether the named Defendants are capable of providing Plaintiff with the injunctive relief
he seeks. Defendants Hall and White assert that they are unable to provide Plaintiff with the
requested relief because they are retired from TDCJ. (TDCJ Defendants’ Response, Doc. #131 at 2.)
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Defendants Smith, V. Davis, and Brazil, who are members of the Unit Classification Committee
assert that, because they are TDCJ employees and not medical providers, they do not have the ability
to provide medical care or medication to Plaintiff. Id. In addition, they do not have authority to
transfer Plaintiff to a different facility for medical reasons. Id. If Plaintiff’s current facility is unable
to meet his health needs, the unit medical department must initiate a transfer request for review by
the State Classification Committee. Id. Citing Texas law regarding her scope of practice and her
inability to dictate a course of treatment unless delegated by a medical specialist, Defendant E.
Davis, a Nurse Practitioner, states that she is unable to send Plaintiff to the hospital for orthopedic
surgery, provide him with the pain medication he seeks, or have him reassigned to a medical facility
pursuant to a doctor’s recommendation because those actions would require her to act beyond the
scope of her professional authority. (E. Davis Response, Doc. #132 at 2.) Because these Defendants
are not able to provide Plaintiff with the injunctive relief he seeks, the claims against them in their
official capacities should be dismissed.
Accordingly, Plaintiff’s objections are OVERRULED. The findings of fact and the
conclusions of law of the magistrate judge are correct, and the report and recommendation of the
magistrate judge is ADOPTED. Defendants’ Motions to Dismiss are GRANTED to the extent that
the claims against Joni White, Kevin Smith, Tamina Brazil, Emma Davis, Vivian Davis, and Yvette
Hall in their official capacities are DISMISSED. Defendants’ Motions to Dismiss are DENIED with
the respect to claims against Joni White, Vivian Davis, Yvette Hall, Tamina Brazil, and Emma Davis
Case 1:19-cv-00475-MJT-CLS Document 162 Filed 01/10/22 Page 4 of 4 PageID #: 1390
in their individual capacities. The Motion to Dismiss the claims against Kevin Smith in his
individual capacity is GRANTED.
SIGNED this 10th day of January, 2022.
Michael J. Truncale
United States District Judge
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