Ross v. Smith et al

Filing 78

MEMORANDUM ADOPTING 72 Report and Recommendations of the Magistrate Judge and Dismissing Dr. Owen Murray. It is ORDERED that the Defendant's 54 Motion for Summary Judgment is GRANTED, and the claims against the defendant Dr. Owen Murray are DISMISSED from this lawsuit. The dismissal of the claims against Dr. Murray shall have no effect upon the plaintiff's claims against Dr. Jerry Toole. Signed by Judge Michael H. Schneider on 9/13/11. (leh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CHARLES E. ROSS

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v.

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GUY SMITH, ET AL.

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CIVIL ACTION NO. 6:09cv268

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DISMISSING DR. OWEN MURRAY
The Plaintiff Charles Ross, 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 matter 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.
In his complaint, Ross says that all of his teeth were removed in 1987 as a result of
an industrial accident. Since that time, he has worn dentures, but when he was arrested, his wife
threw his dentures away.
Ross says that he first asked for dentures from the Michael Unit dental clinic in 2008.
The kitchen was ordered to provide him with a blended diet, but Ross says that they have not done
so. He began to suffer “great pain and bleeding” from trying to chew food in the short time that
prisoners are given to eat, so he began to lose weight and saw a physician named Dr. Thompson, who
made an emergency referral to the dental department for dentures. In October of 2008, Ross says,
he saw Dr. Langston, who said that he would refer Ross to the “dental utilization / quality review
committee,” also called the DUQRC, for denture approval. In January of 2009, he asked about the
result of this referral, but was told that there was no receipt for the request for dentures. Another
referral was made with a March 2009 date for decision, but apparently Ross heard nothing; in May
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of 2009, he asked Dr. Langston about his dentures, and Dr. Langston said that Ross would have file
a lawsuit if he wanted dentures.
Ross attaches a copy of a Step Two grievance to his complaint. This grievance says
that he saw Dr. Thompson on June 20, 2008, and that the doctor said that his dental need was a
“priority 3 emergency.” He says that the request was supposedly sent to the committee in October
of 2008, but he was told in December that nothing yet had been heard on the matter. The response
to the grievance was that the case had been submitted to the DUQRC and word had not yet been
received as to whether Ross was approved or not for dentures. The grievance said that the review
date would be March of 2009.
The original named Defendants, Dr. Langston and Guy Smith, were ordered to answer
the lawsuit and did so. On August 2, 2010, these Defendants filed their motion for summary
judgment. This motion was granted on March 4, 2011, and the Defendants Dr. Langston and Guy
Smith have been terminated.
Dr. Murray filed his motion for summary judgment on February 7, 2011. In this
motion, Dr. Murray said that he has never examined or treated Ross, and that he had no familiarity
with Ross before the lawsuit was filed; in fact, Dr. Murray says, he is not a dentist. His only
involvement with dentures was his participation in the formulation of the current policy.
Dr. Murray noted that the denture policy has been upheld as constitutional by the
Eastern District of Texas. He stated that the summary judgment evidence shows that Ross was
evaluated by the committee on March 25, 2009, and that the committee could not find that he was
eligible for dentures under the policy. However, Dr. Murray again said that he personally was not
involved at all in Ross’ treatment or the determination of whether or not he would receive dentures,
but simply assisted in the formulation of the policy.
After review of the parties’ pleadings, the Magistrate Judge issued a Report on August 15,
2011, recommending that Dr. Murray’s motion for summary judgment be granted. After reviewing
the facts and the summary judgment standards, the Magistrate Judge stated that Ross averred that
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he recently learned that Dr. Murray was the “top of the chain of command” with respect to dental
care, and that this is why Dr. Murray was named in the lawsuit. The Magistrate Judge stated that
while respondeat superior liability does not generally apply in Section 1983 cases, supervisors may
be held liable if there is personal involvement in a constitutional deprivation, a causal connection
between wrongful conduct and a constitutional violation, or if the supervisory officials implement
a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving
force behind a constitutional deprivation. Thompkins v. Belt, 828 F.2d 298, 300-01 (5th Cir. 1987).
Dr. Murray was not personally involved with Ross’ case and Ross made no showing that Dr. Murray
acted wrongfully, much less that any such wrongful action was causally connected to a constitutional
deprivation.
Thus, the Magistrate Judge said, Ross’ claim against Dr. Murray relied on the third
prong of supervisory liability, which is the implementation of an unconstitutional policy which is
the moving force behind a constitutional deprivation. In this regard, the Magistrate Judge said, Ross
failed to show that the denture policy itself was unconstitutional or amounted to a repudiation of
constitutional rights. On the contrary, the denture policy at issue has been upheld by the Southern
and Eastern Districts of Texas, both of which have held that the policy is not unconstitutional and
that it is not so deficient that it acts as a deprivation of constitutional rights. Neilsen v. Langston,
civil action no. 6:09cv408, 2011 WL 2149531 (E.D.Tex., May 31, 2011); Gibson v. Langston, civil
action no. 6:10cv136, 2011 WL 42897 (E.D.Tex., January 6, 2011), Huffman v. Linthicum, civil
action no. 4:06cv308 (S.D.Tex., dismissed January 29, 2009, no appeal taken) (opinion after
remand); Foxworth v. Khoshdel, civil action no, H-07-3944, 2009 WL 3255270 (S.D.Tex.,
September 28, 2009) (no appeal taken).
With regard to claims for damages, the Magistrate Judge determined that Dr. Murray
was entitled to qualified immunity. In so doing, the Magistrate Judge stated that Ross had failed to
show that Dr. Murray had acted in a way which was objectively unreasonable in light of clearly
established law, but instead that the only actions taken by Dr. Murray involved his participation in
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the creation of a denture policy which the courts have held to be constitutional. The Magistrate
Judge also concluded that Dr. Murray was entitled to Eleventh Amendment immunity to the extent
that Ross sought monetary damages against him in his official capacity.
Ross filed objections to the Magistrate Judge’s Report on August 25, 2011. In his
objections, Ross states that in 2008 and 2009, he worked in the “prison industry enhancement
program” and the policy-makers “adopted a policy to withhold a percentage of Ross’ wages for food,
clothing, housing, dental, and medical.” Thus, he says, he believes that the Magistrate Judge allowed
Dr. Murray, as a “policy-maker,” to withhold money from his wages under false pretenses.
Ross points to a document which he filed on June 16, 2011, consisting of a contract
for “voluntary agreement of participation - prison industry enhancement certification program.” This
document shows that as part of his employment in this program, Ross would receive wages, in the
following allocation: 20 percent to his inmate trust account, of which up to half could be diverted
to child support if ordered, with deductions for state and federal taxes; five percent to a crime victims
program; 10 percent to court ordered restitution, if any; 20 percent to the support of his legal
dependents; and the remainder to be applied to “room and board.” He then attaches a number of pay
stubs. The first of these, dated April 11, 2008, says that Ross worked 78 regular hours and six
overtime hours, receiving $484.38 for the regular hours and $55.92 for the overtime, for a total of
$540.30. This was divided up into the following codes: QTR, $224.98; CVF, $27.02; ITF, $108.06,
and DEP, $108.06. Of these codes, CVF appears to stand for “Crime Victims Fund,” ITF for
“Inmate Trust Fund,” and DEP for “dependents.” Ross says that QTR, which would appear to stand
for “Quarters,” represents “living quarters, food, clothing, housing, medical and dental care.” Thus,
Ross contends in the letter attached to these documents that he has already paid for dentures through
this program, and says that the withholding of dentures means that “money was withheld under false
pretenses.”
Nothing in the agreement furnished by Ross says anything about medical or dental
care, much less that deductions from his wages will be applied directly to any specific medical or
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dental needs. Nor do Ross’ objections show that Dr. Murray had anything to do with the program
providing for the wage deductions, or with the money that is deducted; in fact, the summary
judgment evidence shows that Dr. Murray does not work for TDCJ, but rather the University of
Texas Medical Branch. Ross does not address the Magistrate Judge’s conclusion that Dr. Murray’s
sole involvement in this lawsuit was as someone who helped craft a policy which the courts have
deemed constitutional; instead, he simply speculates that Dr. Murray “as policy maker, withheld
money from plaintiff’s wages under false pretenses.”1 Such speculative accusations cannot counter
the Defendant’s summary judgment evidence, particularly where the allegations have no support
whatsoever in the record. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(plaintiff cannot meet his burden in opposing summary judgment by “some metaphysical doubt as
to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla
of evidence”). Nor do such allegations present valid objections to the Report of the Magistrate
Judge. As such, Ross’ objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause,
including the Petitioner’s motion for relief from judgment, the Report of the Magistrate Judge, and
the Petitioner’s objections thereto. Upon such de novo review, the Court has concluded that the
Report of the Magistrate Judge is correct and that the Petitioner’s objections are without merit. It
is accordingly
ORDERED that the Petitioner’s objections are overruled and the Report of the
Magistrate Judge (docket no. 72) is ADOPTED as the opinion of the Magistrate Judge. It is further

Like the policy at issue in Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002), the prison’s
denture policy is facially constitutional. The Magistrate Judge noted that Ross’ claim against Dr.
Murray is related to the policy itself, not how this policy was applied to him. Ross’ claim against Dr.
Jerry Toole, the head of the Dental Utilization / Quality Review Committee, which incorporates his
challenge to the application of TDCJ’s denture policies to him, remains pending in this case and is
not part of the present motion for summary judgment.
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ORDERED that the Defendant’s motion for summary judgment (docket no. 54) is
GRANTED and that the claims against the Defendant Dr. Owen Murray are hereby DISMISSED
from this lawsuit. Dr. Murray shall be terminated as a party to this case. The dismissal of the claims
against Dr. Murray shall have no effect upon Ross’ claims against Dr. Jerry Toole.
SIGNED this 13th day of September, 2011.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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