Tijerina v. Stanley et al

Filing 84

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 41 Report and Recommendations. It is accordingly ORDERED that the Plaintiffs objections are OVERRULED and the Report of the Magistrate Judge (Docket No. 79) is ADOPTED as the opinion of the District C ourt. It is further ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE as frivolous for purposes of proceeding in forma pauperis. It is further ORDERED that any and all motions which may be pending in this civil action are hereby DENIED. Signed by District Judge Robert W. Schroeder, III on 3/28/2019. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
DAVID TIJERINA

§

v.

§

DR. REGINALDO STANLEY, ET AL.

§

CIVIL ACTION NO. 5:16-cv-102

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
The Plaintiff David Tijerina, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§ 1983 complaining of 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: Dr. Reginaldo Stanley; Nurse Practitioner Jammie
Barker; a John Doe defendant identified as the pharmacist at the Telford Unit; Physician’s Assistant
Steven Roberts; Pam Pace, the practice manager at the Coffield Unit; Dr. Paul Shrode, a physician at
the Coffield Unit; and Cathy McPeak, identified as a grievance coordinator but in fact the practice
manager at the Telford Unit.
The Magistrate Judge entered a Report and Recommendation on December 3, 2018 (Docket
No. 79) recommending the case be dismissed with prejudice as frivolous for purposes of proceeding
in forma pauperis. Plaintiff filed objections on December 26, 2018. The Court conducts the
following de novo review.
I. The Plaintiff’s Complaint
The Plaintiff’s second amended complaint (Docket No. 53) is the operative pleading in the
lawsuit. Plaintiff complains of the medical care he received between January, 2015 and December,
2017. He stated he complained of heartburn and blood in his stool in January of 2015, but only
received Zantac until he collapsed in his cell and had to be taken to a free-world hospital. In

February of 2015, Nurse Practitioner Barker told him he had tested positive for a bacteria called
H.pylori, and he was started on antibiotics which had adverse side effects. Later, a blood test
showed he did not have H.pylori. Nonetheless, he was kept on the antibiotics for over two weeks.
Plaintiff asserts he was in severe distress and could not pass stool, and on February 20, 2015,
Nurse Practitioner Barker ordered X-rays. According to Plaintiff, he was diagnosed with severe
constipation and given medication for this condition.

Plaintiff lost consciousness in his cell on

March 7, 2015, and was taken to the infirmary on a gurney, where he was placed in an observation
cell but not given any pain medication.
Plaintiff stated that on March 23, 2015, he received a medical lay-in and saw Nurse
Practitioner Barker, who ordered more X-rays and said she would refer him to a gastrointestinal
doctor in three months if his condition did not improve. He asked for pain medication and a faster
referral but she refused.
Plaintiff stated that on May 12, 2015, he was transported to a free-world hospital, Wadley
Regional Medical Center, where he was found to have developed irritable bowel syndrome. Bentyl
was prescribed, but Plaintiff never received it, instead being given what he describes as a “less
effective” medication called metoclopramide simply because it was cheaper. He saw Nurse
Practitioner Barker three days later and she discontinued the metoclopramide and ordered other
medications for him, but Plaintiff contends he never received them.
Plaintiff stated that on May 28, 2015, Dr. Stanley ordered lab work for him.

On June 26,

2015, Plaintiff was called to the infirmary and asked why he had not left on the medical chain that
morning, but he did not recall being notified of a medical chain. He was suffering severe
abdominal pain and Nurse Practitioner Barker ordered him sent to a free-world hospital, where he
was given morphine and a CT scan.
Plaintiff stated that a few days later, on June 29, 2015, he had a telemedicine appointment

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with a doctor in Galveston, who told him the antibiotics he was taking were wrong and prescribed
fiber laxatives and a medication called Prilosec. Plaintiff had an enema the next day, but it did not
work and he had to have a bigger one.
Plaintiff stated that on August 5, 2015, Nurse Practitioner Barker denied telling him she was
going to prescribe medication for him and refused to give him pain medication or a medically
prescribed diet. On August 21, Plaintiff was seen by Dr. Larson, who performed an endoscopy
and a colonoscopy. Plaintiff states Dr. Larson prescribed multivitamins, Caltrate and Miralax, but
he did not get any of these until September 4, when another medical provider named Moreland
ordered the Caltrate.
Plaintiff stated that on September 9, 2015, he saw Nurse Practitioner Barker, but she denied
he had colon polyps and refused to order the multivitamins or Miralax or to give him any adequate
pain medication. He asserted she made a false entry in his medical records stating that he refused
treatment and signed a refusal of treatment form.
Plaintiff stated that on September 25, 2015, he saw Nurse Practitioner Barker after some
delays. According to Plaintiff, she refused to provide any pain medication and stated she did not
care if Plaintiff filed any more complaints against her. Plaintiff concedes Nurse Practitioner Barker
did order another X-ray and then prescribed acidophilus and a pain medication called Tegretol, as
well as a medication called magnesium citrate, which Plaintiff refused because it made him vomit.
Plaintiff stated that on October 11, 2015, he was told the Tegretol had been discontinued because
it conflicted with the acidophilus, even though he had never received either of them.
Plaintiff stated that a few weeks later, on November 6, 2015, he was sent to Hospital
Galveston. He told the doctor the prison officials were refusing to give him Miralax, and the doctor
said he would order it again.
According to Plaintiff, on November 18, 2015, Nurse Practitioner Barker told him that she

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would order Miralax, but then denied he had colitis, gastroenteritis or colon polyps. An ultrasound
on December 8 showed Plaintiff’s spleen was enlarged. He asked for treatment in January of 2016,
but was denied.
Plaintiff stated that several months later, in August of 2016, he saw Dr. Stanley, whom he
says seemed disappointed to find Plaintiff’s medical records showed gastroenteritis and colitis. He
contends Dr. Stanley refused to treat these conditions or give him pain medication. Plaintiff stated
Dr. Stanley described his enlarged spleen as “just a little swelling.”
Plaintiff stated he also asked Dr. Stanley about his irritable bowel syndrome. Dr. Stanley told
him he would have it for about seven years and then it would go away, which Plaintiff asserts is
false.

He complained about pain, vomiting, inability to pass stool and blood in his stool, but Dr.

Stanley only gave him milk of magnesia and told him not to bother asking for pain medication.
According to Plaintiff, when he asked for the acidophilus, Dr. Stanley said he was not doing any
negotiating and had Plaintiff taken back to his cell by security.
Plaintiff stated that around September 23 or 24, 2016, it was determined he had a urinary
tract infection and a kidney infection. A few days later, he told an officer he was throwing up blood
and having severe chest pains. Nurse Practitioner Barker told him he had been checked from top to
bottom and she would not send him to an outside hospital for treatment.
Plaintiff complained John Doe No. 1, apparently the pharmacist, interfered with his medical
treatment by blocking approval of medications without legitimate reasons. He asserted Dr. Shrode
has ignored his requests for care and told him the colonoscopy did not show colitis even though the
doctor is aware of Plaintiff’s medical records. Plaintiff further asserted that Dr. Shrode has falsified
his medical records, pointing to an instance in which the doctor noted Plaintiff received pain
medications, a medicine called simethicone and vitamin D at a visit when, in fact, Plaintiff had
received none of those. Plaintiff stated many other medical providers also enter non-existent

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medications in to his records. He claimed Practice Manager Pace is the supervisor of medical
personnel at the Coffield Unit but took no corrective action and has falsified medical records to
show non-existent appointments.
II. The Martinez Report and the Report of the Magistrate Judge
The Magistrate Judge ordered prison officials to provide a Martinez Report consisting of
Plaintiff’s medical, grievance and classification records, along with any other records, incident
reports or investigations concerning his claims. See Martinez v. Aaron, 570 F.2d 317, 319 (10th
Cir. 1978); Parker v. Carpenter, 978 F.2d 190, 191–92 n.2 (5th Cir. 1992). Plaintiff was provided
with a copy of the Martinez Report, consisting of 3,616 total pages, and filed his second amended
complaint in response.
After summarizing some 26 Step One and Step Two grievances filed by Plaintiff, the
Magistrate Judge reviewed Plaintiff’s extensive medical records. These records show Plaintiff
was seen and treated by medical personnel on dozens of occasions, including trips to Wadley
Regional Medical Center as well as Hospital Galveston. The Magistrate Judge observed Plaintiff
has had numerous labs and tests done, including abdominal X-rays and a colonoscopy, of which the
majority proved negative; however, the medical personnel have noted Plaintiff was simply unwilling
to accept the results.
Plaintiff argued his medical records have been falsified, but the Magistrate Judge stated
Plaintiff offered nothing to substantiate this claim. Although Plaintiff contended Nurse Practitioner
Barker incorrectly diagnosed him with H.pylori, the Magistrate Judge determined Plaintiff failed to
show deliberate indifference in this regard.
Plaintiff complained of an incident in which the medical department did not see him on
January 28, 2015, but he was seen the next day and sent to Wadley Regional Medical Hospital,
where his examination did not result in any significant findings.

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The Magistrate Judge stated

Plaintiff failed to show he suffered substantial harm as a result of the one-day delay in treatment.
Although Plaintiff also complained about the practice managers, Defendants Pace and McPeak,
the Magistrate Judge stated their roles are purely administrative and neither of them are medical
providers or otherwise able to make medical decisions. He also complained about the pharmacist’s
failure to approve acidophilus, which is not a Texas Department of Criminal Justice Correctional
Institution Divison (“TDCJ-CID”) approved formulary medication, but the Magistrate Judge
concluded that the fact the pharmacist refused to approve a non-formulary medication did not show
deliberate indifference to Plaintiff’s serious medical needs, and Plaintiff’s disagreement with this
decision likewise did not show deliberate indifference.
Plaintiff further complained he “has not received any medical treatment to date” and his
complaints have been “untreated and ignored.” The Magistrate Judge determined these allegations
were belied by the extensive medical records which showed Plaintiff has been seen and treated
repeatedly. His disagreement and dissatisfaction with the treatment provided does not show that he
has been the victim of deliberate indifference to his serious medical needs. The Magistrate Judge
therefore recommended Plaintiff’s lawsuit be dismissed with prejudice as frivolous for purposes of
proceeding in forma pauperis.
III. The Plaintiff’s Objections
Plaintiff’s objections first complain the Court did not permit him to amend his complaint yet
again. Docket No. 81 at 2–3. While trial courts should freely grant leave to amend, granting such
leave is not automatic; rather, the district court may consider a variety of factors including undue
delay, bad faith or dilatory motive, repeated failures to cure deficiencies by amendments previously
allowed or undue prejudice to the opposing party and futility of the amendment. Jones v. Robinson
Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005). Plaintiff’s proposed amended complaint was
filed a year after the Martinez Report and some 10 months after the second amended complaint

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which was designated as the operative pleading. Plaintiff has offered nothing to explain this
lengthy delay, nor anything to suggest his requested amendment would not be futile.
Plaintiff states the primary difference between the operative pleading and the proposed
amended complaint (Docket No. 78) was that the operative pleading did not adequately allege that
the claimed deprivations of medical care were being carried out against other prisoners besides
Plaintiff. Docket No. 81 at 2–3. However, such an allegation is irrelevant to the central question
of whether Plaintiff was himself the victim of deliberate indifference to his serious medical needs.
Plaintiff further alleges the proposed amended complaint clarified the allegations against
Practice Managers Pace and McPeak. Id. The proposed amended complaint does not list Practice
Manager McPeak as a defendant at all and states Practice Manager Pace’s duties and responsibilities
include overseeing all nurses, pharmacists, practitioners and doctors at the Coffield Unit as their
immediate supervisor. Docket No. 78. This is incorrect, as explained by the Magistrate Judge in
the Report. Docket No. 79 at 30.
In granting leave to file the second amended complaint as the operative pleading, the
Magistrate Judge stated “no further amendments or supplements shall be permitted unless upon a
showing of exceptionally good cause.” Docket No. 61 at 1. None of the reasons given by Plaintiff
amount to exceptionally good cause. Plaintiff’s objection on this point is without merit.
Next, Plaintiff contends the Magistrate Judge erred by not permitting him to conduct
discovery. Docket No. 81 at 3–6. Although he received a copy of his medical records in the
Martinez Report, he asserts there were other medical records which would have supported all of
his allegations; however, he offers nothing to suggest that any such records actually exist. See
Parker v. Fortner, 508 F. App’x 359, 2013 WL 264350 (5th Cir. 2013) (vague and speculative
requests for discovery are not sufficient); cf. Logan v. Madison Parish Detention Center, Civil
Action No. 3:12-cv-2221, 2013 WL 5781313 (W.D. La. Oct. 25, 2013) (stating when it comes to

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discovery, speculation that there is more will not suffice; if the theoretical possibility that more
documents exist sufficed to justify additional discovery, then discovery would never end; parties
seeking to compel discovery must provide more than just a suspicion or hunch that additional
documents exist which are responsive to the request), citing Hubbard v. Potter, 247 F.R.D. 27, 29
(D.D.C. Jan. 3, 2008). Plaintiff’s objection in this regard is without merit.
Plaintiff asserts the use of the Martinez Report is unconstitutional because it circumvents the
normal rules of summary judgment and allows the defendants to prematurely present evidence which
is considered as true and used to refute the plaintiff’s allegations. Docket No. 81 at 3. The Fifth
Circuit has upheld the use of Martinez Reports in cases involving claims of deliberate indifference to
serious medical needs as a means by which to conduct a frivolousness screening under 28 U.S.C.
§ 1915(a). Richie v. University of Texas Medical Branch Hospital, 581 F. App’x 405 (5th Cir.
2014); Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Plaintiff was provided with a copy of the Martinez Report, including his medical records and
grievances, and given an opportunity to respond. The Fifth Circuit has held that medical records of
sick calls, examinations, diagnoses and medications may rebut an inmate’s allegations of deliberate
indifference to serious medical needs. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
He has failed to show how the use of a Martinez Report, as approved by the Fifth Circuit, is
unconstitutional. Plaintiff’s objections on this point are without merit.
Next, Plaintiff contends there are disputed issues of fact because his allegations differ from
what the medical records recount. See Docket No. 81 at 6–37. For example, he states his version
of the facts was that X-rays ordered on March 23, 2015 showed abnormal amounts of stool and gas
in his colon with phleboliths observed on his pelvis, while the Martinez Report states that these Xrays were normal. Id. at 8. According to the Martinez Report, the results of the March 23 X-ray
stated “a copious amount of stool is present in the colon. The bowel gas pattern is nonobstructed.

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No abnormal masses or calcifications are visualized. A few phleboliths are seen on the pelvis.”
Docket No. 48-10 at 95.

The Magistrate Judge’s Report stated when Plaintiff saw Nurse

Practitioner Barker on March 23, “an examination showed a large quantity of stool in the upper
quadrant,” and she gave him a bottle of magnesium citrate to treat this condition. Plaintiff has not
shown his asserted version of the facts in this instance differs from the Martinez Report or the
Magistrate Judge’s Report.
Likewise, Plaintiff states his version of the facts was that he began experiencing severe
abdominal pain and vomiting on February 10, 2015, while he claims the Martinez Report stated he
did not. Docket No. 81 at 7. The Magistrate Judge’s Report states and the Martinez Report reflects
Plaintiff had a gallbladder sonogram at Wadley Regional Medical Center on February 10, and
this test proved negative. Docket No. 48-15 at 16. Plaintiff has not shown his version of the facts
is inconsistent with the Martinez Report or the Magistrate Judge’s Report.
Other examples given by Plaintiff of alleged variances include instances where his selfdiagnosis of his medical condition differs from the diagnoses of medical professionals or where he
believes test results have been falsified, despite not setting forth any facts to support this conclusion.
See Docket No. 81 at 6-37. The fact that medical professionals may not believe a prisoner’s selfdiagnosis of his medical condition does not show deliberate indifference. Norton, 122 F.3d at 292;
see also Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994) (prisoner’s self-diagnosis will not
support a medical conclusion); McClure v. Foster, Civil Action No. 5:10-cv-78, 2011 WL 665819
(E.D. Tex. Jan. 7, 2011), report adopted at 2011 WL 941442 (E.D. Tex. Feb. 16, 2011), aff’d 465
F. App’x 373, 2012 WL 1059408 (5th Cir. 2012). Plaintiff’s objection on this point is without
merit.
Regarding Practice Managers McPeak and Pace, Plaintiff contends these two Defendants
were the practice managers and supervisors of all the other defendants and were responsible for

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ensuring their subordinate employees provided proper, timely and effective medical care. Docket
No. 81 at 9–11. He also claims they were responsible for processing his grievances, were aware
of the treatment deprivations during the time in question and were responsible for coordinating
treatments. Plaintiff further asserts the practice managers allowed and directed their subordinates
to display deliberate indifference to Plaintiff and other prisoners for years. Id.
The Magistrate Judge determined that the role of the practice managers is purely
administrative, and neither McPeak nor Pace are medical providers or otherwise able to make
medical decisions. See Affidavit of Dr. Stephen Bowers, M.D., Docket No. 48-15 at 5; Hunt v.
Pierson, Civil Action No. 6:15-cv-559, 2016 WL 1357913 (E.D. Tex., Jan. 14, 2016), report
adopted at 2016 WL 1322233 (E.D. Tex. Apr. 4, 2016), aff’d 730 F. App’x 210, 2018 WL 1750600
(5th Cir. 2018), citing Criollo v. Milton, 414 F. App’x 719, 2011 WL 721502 (5th Cir. 2011)
(affirming denial of claim against Practice Manager Pace because there was no showing she was
involved in his medical care). The medical providers and nurses are not employees of the practice
managers and the practice managers have no supervisory role or authority over the medical
personnel. Plaintiff offered nothing to controvert this determination beyond his own conclusory
allegations.
In addition, the practice managers’ processing of Plaintiff’s grievances does not impute
any type of liability to them. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005) (no liberty
interest in prison grievance procedures); see also Whitlock v. Merchant, Civil Action No. 5:14-cv119, 2015 WL 5909776 (E.D. Tex. Sept. 21, 2015) (mere fact of receipt of grievances does not
show personal involvement in a constitutional deprivation), citing Cervantes v. Sanders, Civil
Action No. 2:98-cv-187, 1998 WL 401628 (N.D. Tex. July 13, 1998) (reading or responding to
prisoner’s grievance does not show personal involvement by prison official); Amir-Sharif v. Valdez,
Civil Action No. 3:06-cv-2258, 2007 WL 1791266 (N.D. Tex. June 6, 2007) (failure to take

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corrective action in response to a grievance does not rise to the level of personal involvement).
Plaintiff’s objection on this point is without merit.
Turning to the pharmacist, identified only as “John Doe,” Plaintiff contends John Doe
disobeyed prescription orders made by the physician at Wadley Regional Hospital. Docket No. 81
at 11–12. However, under TDCJ policy, outside physicians can only make recommendations, not
orders. See, e.g., Burgett v. Fontenot, Civil Action No. 4:10-cv-162, 2010 WL 4394033 (S.D. Tex.
Oct. 29, 2010); Fenlon v. Quarterman, Civil Action No. 6:07-cv-532, 2008 WL 637627 (E.D. Tex.
Mar. 5, 2008), aff’d 350 F. App’x 931, 2009 WL 3444778 (5th Cir. 2009), cert. dism’d, 560 U.S.
962 (2010). This objection is without merit.
Plaintiff speculates if John Doe had disobeyed an order from Dr. Stanley to discontinue the
antibiotics and gave them to him for an additional five days, then John Doe would have caused the
injuries associated with taking those unneeded antibiotics.

This speculation does not show John

Doe was deliberately indifferent to a serious medical need.
Next, Plaintiff contends the Magistrate Judge erred in determining the failure to approve a
non-formulary medication was not deliberate indifference. Docket No. 81 at 12–13. He asserts any
medication recommended by a physician is the assumed treatment needed, and neither TDCJ nor
the pharmacist participated in the decision. He claims the pharmacist’s only job is to fill the
physician’s order, nothing more, and contends TDCJ policy regarding formulary or non-formulary
medications is not the controlling authority, or else the policy must be unconstitutional.
According to evidence offered in Davis v. Lithicum, the prescribing of medications in the
correctional managed health care system is done using medications approved for the correctional
managed care formulary; however, non-formulary requests may be submitted by the unit medical
provider as the provider deems appropriate. Civil Action No. 4:11-cv-2755, 2013 WL 2427722
(S.D. Tex. June 3, 2013), aff’d 574 F. App’x 379, 2014 WL 2884696 (5th Cir. 2014). These requests

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must then be approved by the assigned clinical pharmacist who reviews these requests to confirm
that the drug is necessary to the treatment plan and that no acceptable substitute is available on the
formulary.
Plaintiff’s description of the pharmacist’s duties as solely filling the physician’s orders is
incorrect. Even assuming John Doe was the same assigned clinical pharmacist who declined to
approve the medication, Plaintiff has failed to show that this decision amounted to deliberate
indifference to his serious medical needs, rather than negligence or even malpractice. See Domino
v. TDCJ-ID, 239 F.3d 752, 756 (5th Cir. 2001) (deliberate indifference means conduct clearly
evincing a wanton disregard for a serious medical need); Graves v. Hampton, 1 F.3d 315, 319–20
(5th Cir. 1993) (negligent or mistaken treatment is not tantamount to deliberate indifference); Welch
v. Revell, Civil Action No. 2:10-cv-109, 2011 WL 2455715 (N.D. Tex. May 20, 2011), Report
adopted at 2011 WL 2455661 (N.D. Tex. June 20, 2011) (failure to approve a formulary medication
is not itself deliberate indifference). Plaintiff’s objection on this point is without merit.
Finally, Plaintiff challenges the Magistrate Judge’s conclusion that he was not the victim of
deliberate indifference. However, Plaintiff’s objections make clear that he is simply dissatisfied
with the medical care he received and that he believes it should have been more effective. He refers
to numerous tests and treatments he received while arguing he has not received any medical care and
that his complaints have been untreated and ignored. The Magistrate Judge correctly determined
these claims are belied by the extensive medical record which shows Plaintiff has been seen and
treated repeatedly. Norton, 122 F.3d at 291–92 (prisoner did not state a claim for deliberate
indifference where there was extensive evidence in the record that prisoner was afforded a
considerable amount of care and attention). Plaintiff’s objections are without merit.
IV. Conclusion
The Court has conducted a careful de novo review of the objected-to portions of the Magistrate

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Judge’s proposed findings and recommendations. 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 that the Plaintiff’s objections are OVERRULED and the Report of the
Magistrate Judge (Docket No. 79) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the above-styled civil action is DISMISSED WITH PREJUDICE as
frivolous for purposes of proceeding in forma pauperis. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED this 28th day of March, 2019.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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