Whitlock v. Merchant et al

Filing 53

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 47 Report and Recommendations,, GRANTING 16 MOTION to Dismiss Claims against Defendants Stanley and McPeak's Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) filed by Cathy McPeak, Reginaldo Stanley., Cathy McPeak (Telford Medical Dept.) and Reginaldo Stanley (Head Practioner of Telford) now terminated.. Signed by Judge Robert W. Schroeder, III on 9/21/2015. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
TARRANCE WHITLOCK

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v.

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WARDEN DAWN MERCHANT, ET AL.

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CIVIL ACTION NO. 5:14cv119

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
ON THE MOTION TO DISMISS OF DEFENDANTS McPEAK AND DR. STANLEY
The Plaintiff Tarrance Whitlock, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged deprivations of his constitutional rights. This Court ordered
the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges. As Defendants, Whitlock named various officials at the Telford Unit of
the Texas Department of Criminal Justice, Correctional Institutions Division, including Warden
Dawn Merchant, food service manager Tori Scott, Dr. Reginaldo Stanley, and practice manager
Cathy McPeak. Whitlock also named TDCJ assistant regional director B. Howard. This order
concerns a Report issued by the Magistrate Judge recommending the granting of the motion to
dismiss filed by the Defendants McPeak and Dr. Stanley.
I. The Plaintiff’s Allegations
Plaintiff complains he suffers from health issues including high blood pressure and high
cholesterol. In 2009, he was prescribed a diet called “Diet for Health.” Scott has refused to follow
this diet but has been substituting inadequate and insufficient food. Plaintiff has filed numerous
grievances about this which have been denied. He asserts the Defendants learned of constitutional
violations taking place through the grievances he filed but failed to take remedial action. Plaintiff

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also contends the Defendants McPeak and Dr. Stanley created a policy or custom under which
unconstitutional practices occurred.
II. The Motion to Dismiss and the Plaintiff’s Objections
Defendants McPeak and Dr. Stanley filed a motion to dismiss arguing Plaintiff cannot
establish a claim for deliberate indifference because the complaint itself shows they were not aware
of any facts to infer an excessive risk of harm. They contend Plaintiff also failed to show they were
personally involved in any constitutional deprivation. In response, Plaintiff argued McPeak and Dr.
Stanley knew an improper diet was being served but took no action.
The Magistrate Judge recommended the motion to dismiss be granted. In his objections,
Plaintiff complains he provided a full month’s menu, but the Magistrate Judge only listed seven days
of it. A review of the Magistrate Judge’s Report shows these seven days set out an adequate
representative sample, rendering it unnecessary to list every meal served for a full month.
Plaintiff denies missing a medical appointment or signing refusal of treatment forms
concerning his diet. He states on May 21, 2013, he was scheduled to see the doctor at 8:30 a.m., but
waited until 2:30 p.m. and then signed a refusal of treatment form because he had a scheduled law
library session at 2:45. He filed a grievance and McPeak stated special arrangements could not be
made to see Plaintiff before all other offenders. This allegation does not show any constitutional
violations on the part of McPeak or Dr. Stanley.
Plaintiff argues Dr. Stanley prescribed an insufficient medical diet, continued an insufficient
course of treatment, and created a policy allowing or encouraging illegal acts. Plaintiff offers
nothing but conclusory allegations to show his diet or course of treatment was insufficient, nor did
Plaintiff present any evidence of a policy allowing or encouraging illegal acts.

Plaintiff’s

disagreement with Dr. Stanley’s medical determination as to his diet or course of treatment does not
set out a constitutional claim. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). The
description of a policy or custom and its relationship to the alleged underlying constitutional
violation cannot be conclusory but must contain specific facts. Spiller v. City of Texas City Police
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Department, 130 F.3d 162, 167 (5th Cir. 1997). Plaintiff’s objections in this regard are without
merit.
Plaintiff denies complaining his grievances were not resolved to his satisfaction, instead
claiming his grievances show the Defendants had knowledge of and participated in an illegal custom
or policy. The fact McPeak or Dr. Stanley may have received or responded to Plaintiff’s grievances
does not demonstrate personal involvement in any alleged constitutional violations. See Cervantes
v. Sanders, civil action no. 2:98cv187, 1998 U.S. Dist. LEXIS 10887 (N.D.Tex., July 13, 1998)
(reading or responding to prisoner’s grievance does not show personal involvement by prison
official); Welch v. Grounds, civil action no. 5:11cv200, 2013 U.S. Dist. LEXIS 46081 (E.D.Tex.,
February 14, 2013), Report adopted at 2013 U.S. Dist. LEXIS 40866 (E.D.Tex., March 22, 2013)
(correspondence sent to prison administrators does not create liability based on alleged personal
knowledge of the matters contained in that correspondence). Plaintiff is in effect challenging the
failure to act upon his grievances by casting this claim in the form of an assertion of personal
knowledge. He has no constitutionally protected liberty interest in having grievances resolved to his
satisfaction. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). This objection is without
merit.
Plaintiff’s next objection largely reiterates his previous one. He states the Defendants are
liable because they learned of the alleged dietary violations through the grievance procedure but
failed to take corrective measures. This objection is without merit.
Plaintiff argues he was denied his prescribed medical diet but offers nothing beyond
conclusions to show the meals he received were not part of the Diet for Health or otherwise violated
his medically prescribed diet. Nor has he shown McPeak or Dr. Stanley were otherwise deliberately
indifferent to his serious medical needs. This objection is without merit.
Although Plaintiff contends he has overcome the defense of qualified immunity, the
Magistrate Judge correctly determined Plaintiff did not show McPeak or Stanley violated any clearly
established constitutional rights of which a reasonable prison official would have been aware. Nor
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did Plaintiff show McPeak or Stanley acted in an objectively unreasonable manner. His objection
regarding qualified immunity is without merit.
Plaintiff contends he advised the Defendants through his grievances that food service
manager Tori Scott was substituting inadequate and insufficient food for the Diet for Health menu.
He concedes McPeak and Dr. Stanley investigated these grievances and determined no violations
were committed. Plaintiff fails to explain why McPeak and Dr. Stanley should have believed his
allegations rather than the results of the investigation they conducted, but maintains the Defendants
should be liable for their failure to take remedial action. This objection is without merit.
Plaintiff further argues he is entitled to injunctive relief in the form of an order directing the
creation of a policy requiring the food service manager to photograph all food served on the Diet for
Health trays and the sack meals every day. The Magistrate Judge determined Plaintiff had not shown
an irreparable injury and did not demonstrate a remedy in equity was warranted or that the public
interest would not be disserved through the granting of such an injunction. Plaintiff simply alleges
in a conclusory manner that failure to grant the requested injunction would result in irreparable injury
outweighing any damage to the adverse party and the injunction would not have an adverse effect
on the public interest. Conclusory allegations are not sufficient to show entitlement to injunctive
relief. Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Plaintiff’s objection in this
regard is without merit.
III. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the Plaintiff objected. 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 recommendations to which objection is made.”) Upon such de novo review,
the Court has determined the Report of the Magistrate Judge is correct and the Plaintiff’s objections
are without merit. It is accordingly

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.

ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 47) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the motion to dismiss filed by the Defendants Cathy McPeak and Dr.
Reginaldo Stanley (docket no. 16) is GRANTED and the claims against these Defendants are
DISMISSED without prejudice.
SIGNED this 21st day of September, 2015.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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