Whitlock v. Merchant et al

Filing 67

ORDER ADOPTING 64 REPORT AND RECOMMENDATIONS ORDERING that 59 motion for summary judgment is Granted and claims against Scott are Dismissed with prejudice. Signed by Judge Robert W. Schroeder, III on 5/25/2016. (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
AND ENTERING FINAL JUDGMENT
The Plaintiff Tarrance Whitlock, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights. This Court ordered that 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. The named Defendants are Warden Dawn Merchant, Dr. Reginaldo Stanley, food
service manager Tori Scott, Cathy McPeak of the Telford Medical Department, and assistant regional
director B. Howard. Of these Defendants, all except for Scott have previously been dismissed.
I. Background
Plaintiff states he suffers from high blood pressure and high cholesterol. He was prescribed
a diet called “Diet for Health” in 2009. However, Plaintiff contends Scott refuses to follow the
TDCJ Diet for Health food menu and is “substituting the menu with inadequate and insufficient
food.” He filed grievances, but these have been denied.
In response to the lawsuit, the Defendant filed a motion for summary judgment, attaching
summary judgment evidence including prison policies concerning the Diet for Health, menus, and
diet cook’s worksheets showing the food which was prepared. Plaintiff filed a response to the
motion, attaching summary judgment evidence including copies of grievances he filed, identical
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affidavits from himself and three other prisoners, copies of the menus and cook’s worksheets taken
from the Defendant’s motion, and I-60 inmate request forms which he sent to the medical
department.
II. The Magistrate Judge’s Report
After review of the pleadings and the summary judgment evidence, the Magistrate Judge
issued a Report recommending Scott’s motion for summary judgment be granted. The Magistrate
Judge determined the food substitutions made by the Defendant were permissible within the
framework of the Diet for Health, the conclusory allegations of Plaintiff and the other affiants were
not competent summary evidence, the Plaintiff received reasonably adequate food even if an
occasional meal fell short, the Defendant did not implement a policy or custom of serving inadequate
food, Plaintiff did not show the Defendant failed to adequately train or supervise her employees, the
fact Plaintiff’s grievances were denied did not show a constitutional violation, and the Defendant
was entitled to qualified immunity.
III. The Plaintiff’s Objections
Plaintiff complains first he furnished the menu for February of 2014 in order to show the food
was inadequate and did not follow the Diet for Health, but the Magistrate Judge only recounted
seven of these thirty days. The Magistrate Judge’s Report states “without recounting the menu for
the entire month of February...the Court sets out the menu for seven days, which is representative
of the month’s menu.” (docket no. 64, p. 5). The Magistrate Judge reviewed and considered the
menu for the entire month, but only included seven days in her Report as a representative sample.
Moreover, a review of the full menu furnished by Plaintiff plainly demonstrates that
reasonably adequate food was provided and the Diet for Health was followed, albeit with permissible
substitutions. This objection is without merit.
Second, Plaintiff argues he has satisfied both elements of the deliberate indifference standard,
in that he has shown the Defendant knew inmates faced a substantial risk of serious harm and
disregarded that risk. Plaintiff states the evidence shows many food substitutions were made in place
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of the mandatory menu and these substitutions were not permissible within the framework of the
prescribed diet.
Plaintiff states his affidavits are not conclusions and sufficiently assert the Defendant “has
an illegal custom or practice of substituting insufficient food for a prescribed therapeutic diet” and
“Defendant is not following the TDCJ approved Diet for Health food menu.” The affidavits also
state “the food she is serving is insufficient and detrimental to my health [and has] aggravated my
serious medical condition.” All of these assertions are conclusions and thus not competent summary
judgment evidence. See, e.g., Reese v. Anderson, 926 F.2d 494, 499 (5th Cir. 1991) (affidavit
stating decedent “did not pose a threat to Officer Anderson’s life or to any of the other officers
surrounding the car” was not factual but an opinion on the ultimate issue in the case and thus “a
textbook example of conclusoriness”); Richardson v. Oldham, 12 F.3d 1373, 1378 (5th Cir. 1994)
(portion of affidavit stating law enforcement officer “used unreasonable methods to search
[plaintiffs’] home” was properly struck as conclusory). Plaintiff has failed to show Defendant acted
with deliberate indifference to his dietary needs.
Plaintiff goes on to assert he has shown an illegal policy or custom as well as a failure to train
or supervise because impermissible substitutions in the Diet for Health were made. He points to the
February 2014 menu and the cook’s worksheets, but neither of these show impermissible
substitutions, nor does Plaintiff point to any particular meal in which he claims an impermissible
substitution was made. Under the TDCJ Diet for Health regulations, attached as Exhibit D to the
Defendant’s motion for summary judgment, appropriate substitutions may be made in the event of
product unavailability. Plaintiff does not allege what meals had substitutions made, much less that
such substitutions were inappropriate or improper. His contention that “any substitutions were
impermissible” is not supported by the evidence. Plaintiff’s objections in this regard are without
merit.
Next, Plaintiff asserts Defendant had personal knowledge of the alleged violations because
of the grievances he filed. The fact his grievances were not granted does not show a violation of the
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Constitution. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). Nor did Defendant have a
constitutional duty to believe Plaintiff’s allegations and take the action Plaintiff believed appropriate.
Defendant advised the grievance investigators the meals were being served in accordance with the
Diet for Health menu, which is confirmed by the summary judgment evidence. These objections are
without merit.
Plaintiff cites various cases from around the country advancing the proposition that inmates
on a special medical diet should receive that diet. He states these precedents preclude entry of
summary judgment against him on the issue of qualified immunity and argues his claims present
government misconduct so egregious that any reasonable official would know it violates the
Constitution regardless of pre-existing case law. Plaintiff has failed to show Defendant Scott acted
in an objectively unreasonable manner or that all reasonable prison officials similarly situated would
have known Scott’s actions violated the Constitution. Thompson v. Upshur County, 245 F.3d 447,
460 (5th Cir. 2001). His objections are without merit.
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
Report 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
ORDERED the Plaintiff’s objections are overruled and the Report of the Magistrate Judge
(docket no. 64) is ADOPTED as the opinion of the District Court. It is further
ORDERED the Defendant Tori Scott’s motion for summary judgment (docket no. 59) is
GRANTED and the claims against Scott are DISMISSED WITH PREJUDICE. Because Scott
is the last remaining Defendant in this case, it is further
ORDERED the above-styled civil action is DISMISSED WITH PREJUDICE in its
entirety. It is further
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ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
SIGNED this 25th day of May, 2016.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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