Parker v. Fortner et al
Filing
106
ORDER ADOPTING 97 Report and Recommendations, and overruling pltf's objections; granting 58 Motion for Summary Judgment; granting 57 Motion for Summary Judgment. This civil action is hereby DISMISSED with prejudice. Any and all other motions which may be pending in this cause are hereby DENIED. Signed by Judge Leonard Davis on 03/09/12. cc:pltf & dfts 3-09-12(mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ANTWON PARKER
§
v.
§
DAVID FORTNER, ET AL.
§
CIVIL ACTION NO. 6:10cv296
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Antwon Parker, 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. As Defendants, Parker named Powledge Unit physicians assistants
named David Fortner and Kerry Scruggs, medical administrator Jeanie Allison, Dr. Hanley, Captain
Cecil Hasty, classification chief Amy Jones, Captain Patrick Cooper, Warden Neal Webb, and
Warden Michael Sizemore. Of these Defendants, Allison, Jones, Cooper, Webb, and Sizemore have
been dismissed, leaving Fortner, Scruggs, Hasty, and Dr. Hanley.
The Magistrate Judge conducted an evidentiary hearing on December 10, 2010. At
this hearing and in his complaint, Parker said that in November of 2006, he was injured playing
basketball when he fell and another inmate fell on his knee. X-rays taken several months later
showed arthritis. Parker was given restrictions and light duty, and was transferred to the Powledge
Unit.
Parker arrived at the Powledge Unit in mid-2007 and talked to Fortner about his knee.
Although Parker said that his knee continued to hurt, Fortner changed his restrictions to make him
an “all-day worker.” Parker complained about his kneecap slipping and filed grievances asking for
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a job change, but to no avail. Parker said that at one point, a nurse emailed Fortner about Parker’s
complaints; this nurse told Parker that Fortner had said that “there is no cure for constant pain.”
Parker was ultimately assigned to work in the kitchen. He filed a complaint with
Jeanie Allison, whom he describes as the “complaint coordinator,” and was scheduled to see Fortner
on June 3, 2009. At this time, he told Fortner that he was having problems with his knee and the
restrictions he had, which were limited standing and no squatting, were “not working.” He asked
for a knee brace and a four-hour work restriction, but Fortner said that TDCJ did not give knee
braces any more and that Parker was not old enough to warrant a four-hour work restriction. Parker
also said that his medications (Naproxen) were not effective, but Fortner told him to continue taking
them. When Parker said that he would go over Fortner’s head to get proper restrictions, Fortner put
him out of the office, saying that Parker had “threatened” him.
Parker filed another complaint and met with Allison on June 15, 2009. Allison said
that Fortner is the health care provider and that Parker is “younger than some of the others.”
Parker stated that Captain Hasty changed his job to the split shift as a counter
attendant. When Parker asked the reason for this change, Hasty said that Parker was not a four hour
worker or in school, and that he needed Parker’s job for someone that was. Parker asked why it was
just becoming an issue after a year of work, and pointed out that the white inmate now filling his old
job was not in school or a four-hour worker. Parker also complained that the counter attendant job
was against his work restrictions, but Hasty said “you’ll be OK, you can do it.”
Parker filed a grievance against Hasty complaining that the officer was ignoring his
restrictions and giving job assignments based on race. After this grievance was filed, Hasty changed
the job assignments of white inmates who were not four-hour workers to the split shift, but then after
the grievance investigation was concluded, he changed them back. Parker asserts that Hasty
retaliated against him by changing Parker’s job so as to put him in demanding work conditions.
Next, Parker says that he complained to the building lieutenant, Moore, who talked
to Chief of Classification Amy Jones on Parker’s behalf. Moore also gave Jones an I-60 inmate
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request form from Parker asking for a job change. However, Jones refused to change his job or to
discuss the problem, and apparently told Parker that his job assignment was within his restrictions.
Parker then spoke to the building captain, Patrick Cooper, about the problem. Cooper
talked to Jones and Hasty, and told Parker that Jones would not change his job because he was not
being worked outside of his restrictions. Cooper said that he did not think that anything was wrong
with Parker’s knee and that it was up to Hasty if he wanted to allow Parker a job change to work
somewhere else.
In August of 2009, Parker says that he saw Dr. Hanley, an orthopedic surgeon, by
video teleconference. He says that Dr. Hanley gave him a “rush evaluation” and simply ordered the
same Naproxen medication which had not worked, recommended exercises which only agitated his
knee, and delayed access to a knee brace by referring him for an appointment in December.
Meanwhile, Parker says that he received another job change, to the kitchen pot room
where the floor was always wet. His knee was agitated by the constant walking back and forth.
Hasty refused to give him a job change and Fortner would not change his restrictions.
On September 24, 2009, Parker stated that he was at work when his knee caught a
sharp pain. He stopped to catch himself and his left foot came out from under him. He tried to keep
from falling but his head hit the floor and he felt a blow to his face. The next thing he knew, a nurse
was standing over him. He was taken to the medical department and seen by Fortner, who tried to
force his neck to turn despite Parker’s pleas not to do that. Although Parker could hardly stand or
walk, Fortner told the nurse to give him an ice pack and a cell pass for the rest of the day and to not
schedule any X-rays.
The next day, Parker stated that he could barely move. He was seen by a nurse on
September 26, and she said that Fortner’s notes said that there was nothing wrong and no injuries.
She would not give him a cell pass because Fortner did not think that he needed one for more than
the one day. Parker saw another nurse on September 29 and she also said that she could do nothing
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because of Fortner’s notes, but that she would try to get Scruggs, another physicians assistant, to see
him.
Parker states that he saw Scruggs on September 30, 2009. He says that she
“intentionally saw other inmates before him,” which forced him to sit and wait on a bench for over
five hours. When she finally called him out, she saw him under Fortner’s supervision. Scruggs gave
him a “1 finger touch exam” and said that he was suffering from back spasms. She told him that he
needed to try turning his head to work the muscles loose, and ordered high blood pressure
medication for him, as well as medicine for the spasms. The nurse asked if Parker was to get a cell
pass, and before Scruggs could answer, Fortner cut her off and said “no, he can go back to work, he’s
not in that much pain.” Parker said that he could not work in his condition, but Fortner replied
“that’s between you and the officers.” He was sent away with no cell pass and nothing to support
his neck.
On October 5, 2009, Parker stated that he saw Warden Sizemore, who told him that
he was aware of the accident in the kitchen and assured him that some changes would be made, but
nothing was done. On October 7, he saw a PA named Smock by video teleconference, and she
changed his medications and gave him a three-day cell pass.
One week later, on October 14, 2009, Parker again saw Allison, asking her why he
was not being given proper medication or being taken seriously. She told him that Fortner is
convinced that nothing was wrong with him but that “he could be wrong, we all make mistakes.”
Allison said that Parker could not have injured himself in a simple slip and fall, even though Parker
said that he had been told that he pulled a lot of cooking pans on himself when he fell and that he
hit his head on the concrete floor. Allison replied that she would have to see what Fortner wanted
to do. Parker saw Smock again on October 29, and she changed his medications back to Naproxen
and ordered X-rays. He still received nothing to support his neck.
During this time, Parker states that he had been receiving disciplinary cases because
he was physically unable to work. On October 21, 2009, he was served with a major case. Captain
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Cooper presided over the hearing and would not let him call witnesses, saying that if there was no
one who could say that he was really hurt, there is no need to call anyone. Cooper would not let
Parker read his statement and would not accept evidence in Parker’s favor, and lied by saying that
the computer had graded the case as major “so it could not be overturned anyway.”
The next day, Parker went to a UCC hearing with Warden Webb, Amy Jones, and
Major Donna Kazmierczak. He explained his problems, but Jones told Webb that Hasty was not
working Parker outside of his restrictions. Jones and Kazmierczak agreed that Parker could be
faking his injuries, and Jones said that Fortner had stated that his work restrictions did not prevent
him from working any job in the kitchen. After hearing all this, Webb said that he would not
“reward” Parker for not working by giving him a job change.
On October 24, 2009, Parker said that the medical department would not see him for
his complaints of neck pain. He states that they will not give him support for his neck and refuse to
run any tests other than an X-ray. He speculated that Captain Hasty told people that he was faking
his injury. Parker signed his lawsuit on May 29, 2010.
Following the evidentiary hearing, the Magistrate Judge issued a Report
recommending that the claims against the defendants Allison, Jones, Cooper, Webb, and Sizemore
be dismissed as frivolous and for failure to state a claim upon which relief may be granted. The
Magistrate Judge also ordered that the remaining defendants, Fortner, Scruggs, Dr. Hanley, and
Captain Hasty, answer the lawsuit. This Report was adopted, over Parker’s objections, on February
1, 2011. Parker filed a notice of appeal, but this was dismissed for want of jurisdiction.
The remaining defendants in the case filed a motion for summary judgment, to which
Parker filed a response. On January 19, 2012, the Magistrate Judge issued a lengthy and detailed
Report recommending that the motion for summary judgment be granted and that the lawsuit be
dismissed. Parker has filed objections to this Report.
In this Report, the Magistrate Judge identified four claims which Parker was raising:
(1) deliberate indifference to his serious medical needs, (2) deliberate indifference to his health and
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safety through his job assignment, (3) retaliation, and (4) discrimination. In discussing the first of
these, the Magistrate Judge detailed the contents of Parker’s medical records, noting that these
records show that Parker was seen and treated on numerous occasions, including various different
medications, X-rays, hot packs, cold packs, recommendations for exercise, steroid injections, and
a referral to an orthopedic specialist, Dr. Hanley. The Magistrate Judge also reviewed Parker’s
summary judgment evidence, including Parker’s affidavit as well as exhibits.
The Magistrate Judge concluded that Parker had received a “substantial quantum” of
medical care, and that Parker’s disagreement and dissatisfaction with the treatment he had received,
and his complaint that he had been mis-diagnosed, did not show that he had been the victim of
deliberate indifference to his serious medical needs. The Magistrate Judge thus determined that
Parker’s first claim for relief lacked merit.
With regard to the claim of deliberate indifference surrounding Parker’s job
assignment, the Magistrate Judge noted that Parker claimed that he was supposed to be allowed to
take a ten-minute break every hour, pointing to a hand-written note from Allison. However, the
Magistrate Judge observed that Parker’s health summary for classification form, which is the form
completed by the medical department informing the classification department of an inmate’s work
restrictions, contained no mention of a requirement of resting for 10 minutes every hour.
The Magistrate Judge stated that although Parker complained that he was unable to
perform the job assignments given to him, repeated examinations by the medical department did not
find any physical reason why he should not be able to do so. The medical staff placed work
restrictions of limited standing and no squatting, and the classification department determined that
the jobs given to Parker were consistent with these restrictions. The Magistrate Judge stated that
Parker’s disagreement with the classification department’s determination does not show deliberate
indifference.
The Magistrate Judge looked to the district court’s decision in Everett v. Jones, civil
action no. 6:08cv240, 2009 WL 1269585 (E.D.Tex., May 7, 2009, no appeal taken). In that case,
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an inmate named Wesley Everett was incarcerated at the Powledge Unit between 2006 and 2008.
He worked various jobs in the kitchen, including a counter attendant, and had a restriction of
“limited standing.” Like Parker, Everett had a note from Jeanie Allison saying that limited standing
meant that he should be assigned to work where he could elevate his lower extremities for 10
minutes every hour. An investigation concluded that the job assignment was not incompatible with
this restriction, and the district court concluded that the prison officials had no duty to believe
Everett’s assertion that he was assigned outside of his medical restrictions when an investigation had
determined that he was not. The district court also determined that Everett did not show that his job
assignment amounted to “cruel or unusual punishment.” See also Harper v. Tran, 77 F.3d 478, 1996
WL 46726 (5th Cir., January 8, 1996) (assignment of inmate with degenerative disc disease to work
as an orderly, including such tasks as climbing stairs to deliver food, mopping and sweeping floors,
and transporting barrels of wet laundry, which the inmate said resulted in “limited range of motion
and excruciating recurring pain,” did not set out a claim under 42 U.S.C. §1983).
In the present case, the Magistrate Judge said, Captain Hasty was entitled to rely on
the information put out by the medical department and the classification department, both of which
said that Parker was able to work in the kitchen at the jobs assigned to him. Hasty also had no
constitutional to accept Parker’s assertion that he could not work as a counter attendant or a floor
server in the face of contrary statements from the classification department and the medical
department.
In addition, the Magistrate Judge stated that Parker failed to show that the work
assigned to him significantly aggravated a serious medical condition. On September 30, 2009, six
days after he fell in the kitchen, his medical records showed that he had slight pain in his back and
neck and could walk without significant limitations. On October 7, 2009, he was examined by a
nurse practitioner Smock, who noted that he could touch his chin to his chest and was able to remove
his shirt “easily.” Lumbar and cervical X-rays taken in October of 2009 were normal, and an
examination by Smock on October 21 revealed full range of motion in Parker’s arms and full
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forward flexion in his knack, although he said that he could not tilt his head backwards without pain.
An examination in November of 2009 at the Dalhart Unit showed some tenderness to the back
muscles, but no tenderness directly over the spine and a normal gait. Another examination nine days
later revealed a normal gait and that Parker could sit erect with no signs of discomfort.
Parker’s third claim was that Captain Hasty discriminated against him through job
assignments. He said that he was told that his job was needed for a four-hour worker or someone
in school, but the job was given to a white inmate who was not a four-hour worker or in school.
Parker also said that after he filed a grievance, Hasty changed the job assignments of white inmates
who were not four-hour workers to the split shift, but after the grievance was investigated, Hasty
changed them back.
The Magistrate Judge concluded that these allegations did not show that Parker was
the victim of racial discrimination. The fact that a white inmate got Parker’s old job does not itself
show discriminatory purpose, and vague and conclusory allegations of discrimination are not
sufficient to raise an equal protection claim. The evidence showed that inmates were routinely
moved around to different jobs, and Parker has failed to show discriminatory intent.
Parker similarly claimed that he was the victim of discrimination as a “class of one.”
In order to prevail on a “class of one” theory,” Parker must show that he has been intentionally
treated differently from others similarly situated and that there is no rational basis for the difference
in treatment. The Magistrate Judge concluded that Parker’s conclusory assertions were insufficient
to support a “class of one” discrimination claim.
Finally, Parker complains that he was the victim of retaliation by Fortner and Hasty.
With regard to Fortner, the Magistrate Judge determined that Parker failed to show that but for the
grievances which he filed, the medical treatment which he received would have been different. As
noted above, the medical records show that Parker was repeatedly seen and treated by medical
personnel. Medication was prescribed, tests were done, diagnoses were made, and Parker was
referred to an orthopedic specialist. The fact that Parker may have disagreed with the treatments and
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the diagnoses, and was dissatisfied with the referral to Dr. Hanley, does not make these actions into
a retaliatory adverse act nor does it show that but for any alleged retaliatory intent, the medical
treatment which he received would have been different. As the Magistrate Judge noted, the summary
judgment evidence includes an affidavit from Dr. Steven Bowers, which opined that the restrictions
and medical care provided to Parker were appropriate and performed within the standard of care.
Similarly, the Magistrate Judge said, Parker did not set out a viable claim of
retaliation against Captain Hasty because the information available to Hasty showed that Parker was
medically classified is able to work in the kitchen. The Magistrate Judge thus concluded that Parker
did not show that but for the alleged retaliatory intent, his job assignments would have been
different. The Magistrate Judge also determined that the Defendants were entitled to the defense of
qualified immunity.
In his objections, Parker first says that his affidavits “squarely contradict” the
Defendants’ assertions concerning his medical care. He points to a number of instances in which
he disagrees with the conclusions of the medical personnel and complains that he was not X-rayed
for six months and that he was never given anything to limit the pressure put on his knee. He says
that his affidavits and testimony show that he was never treated for his knee condition with anything
other than “pain medications which did not work.” Although Parker contends that his affidavits
create a genuine issue of material fact, these affidavits simply highlight Parker’s disagreements with
the treatment that he received. As the Magistrate Judge pointed out, the fact that the medical care
provided was not necessarily “the best that money could buy” does not show deliberate indifference.
Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992); see Domino v. TDCJ-ID, 239 F.3d 752, 756
(5th Cir. 2001).
Parker argues that evidence that the medical staff treated him as a “nuisance” and
were insufficiently interested in his health to take even minimal steps to ensure that his injury was
not severe could support a finding of deliberate indifference, but the medical records show that
Parker was routinely seen and treated by a number of medical providers. Parker’s disagreement with
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the assessments of him and the treatment provided simply does not show that the medical providers
were deliberately indifferent to his serious medical needs. His objection on this point is without
merit.
Next, Parker says that he has “newly discovered evidence” regarding his claim of
deliberate indifference in his job assignment. This “newly discovered evidence” consists of
supplemental disclosures by the defendants, including a guideline for the completion of the health
summary for classification forms; this guideline shows that the restriction “limited standing” means,
as the note from Allison said, that the inmate should be assigned to work where he may elevate his
lower extremities for 10 minutes every hour.
While Parker argues that this proves that Hasty knew that he was being worked
against his medical restrictions, the Magistrate Judge correctly observed that repeated investigations
into Parker’s complaints invariably concluded that Parker was not being worked against his medical
restrictions. Even if the guidelines for completing the health summary for classification form show
that Hasty should have been aware of the problem, a dubious assumption in light of the fact that the
medical department, the classification department, and the grievance investigators all concluded that
Parker was properly assigned, the Supreme Court has explained that “an official's failure to alleviate
a significant risk which he should have perceived, but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.” Farmer v. Brennan, 511 U.S.
825, 837-38, 114 S.Ct. 1970, 1979 (1994).
Parker argues that “willful ignorance” or “purposely avoiding knowledge” can amount
to deliberate indifference, pointing to the Seventh Circuit decision of Mayoral v. Sheahan, 245 F.3d
934 (7th Cir. 2001). In that case, a jailer in the Cook County Jail testified that she was not aware of
gang activity in the jail, despite the fact that gangs were pervasive at the jail, with approximately 80
percent of the inmates being gang-affiliated. The Seventh Circuit held that this testimony was
“incredible” and explained that the Farmer standard is “not designed to give officials the motivation
to ‘take refuge’ in the zone between ignorance and actual knowledge.” In the present case, by
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contrast, Parker has not shown that Captain Hasty was willfully ignorant or intentionally oblivious,
as the jailer in Mayoral appeared to be. On the contrary, his view that Parker’s job assignment
comported with his medical classification was consistent with the opinion of the medical department,
the classification department, and the grievance investigators. Parker has not shown that Captain
Hasty was deliberately indifferent to his safety by assigning Parker to jobs which the medical
department and the classification department said that he could hold.
Instead, Parker argues that Fortner and Jones, the classification chief, were
deliberately indifferent to his safety by determining that he could do kitchen work. He says that he
repeatedly complained to Fortner that the limited standing restriction did no good because when his
knee hurt, it hurt for hours at a time, and not minutes. He also says that he told Fortner that his job
assignment would not allow him to sit, but that Fortner made no effort to consider other restrictions,
such as a four-hour work requirement. Similarly, Parker says that Jones assigned him to work in the
kitchen even though he was not allowed to sit for any length of time, although he concedes that it
would not have mattered had he been allowed to sit. In effect, Parker is disagreeing with Fortner’s
determination that he was medically able to work in the kitchen, and with Jones’ decision to assign
him to the kitchen based on the determination from the medical department that he could work there.
This disagreement does not show that Fortner or Jones were deliberately indifferent to his safety.
His objection on this point is without merit.
The Magistrate Judge determined that Parker had failed to show that the work
assignment significantly aggravated a serious medical condition. Parker objects to this conclusion,
noting that he had testified that on September 24, 2009, he was at work when his knee caught a sharp
pain, and his foot came out from under him, causing him to fall. An examination showed that he had
full range of motion and Fortner determined that he had no injuries, which Parker disputes. An
examination on September 30 revealed slight pain with palpation of the muscles next to the spine
in the shoulder, and slight pain in the trapezius muscle. At this examination, the medical records
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show that Parker say and walked without significant limitations. Parker also disagrees with the
September 30 assessment.
In his objections, Parker argues that the sharp pain in his knee which caused him to
fall is evidence that his job assignment significantly aggravated his medical condition. The medical
records show that Parker claimed to suffer a sharp pain in his knee which caused him to fall, but that
this fall did not cause him to suffer any significant injuries. Thus, he has not shown a significant
aggravation of his medical condition. Furthermore, Parker has not shown that the assignment of
kitchen work was done with the knowledge that this assignment would significantly aggravate his
medical condition. See Mendoza v. Lynaugh, 989 F.2d 191, 194 (5th Cir. 1993). On the contrary,
the medical staff determined that Parker was able to work in the kitchen, and so neither Jones nor
Hasty could have known that an assignment there would significantly aggravate his medical
condition. Parker’s objections in this regard are without merit.
Next, Parker says that the fact that Hasty lied about the reason for changing Parker’s
job is itself proof of discrimination. After he pointed out to Hasty that the white inmate who got his
job was neither in school nor a four-hour worker, Parker says that Hasty refused to comment on the
issue. Because Hasty had “no rational basis” for the job change, Parker says that this is proof of
discrimination. He cites the Seventh Circuit decision of Williams v. Lane, 851 F.2d 867 (7th Cir.
1988), in which the court held that disparate treatment of inmates in protective custody with regard
to access to court, religious freedom, and freedom from cruel and unusual punishment could
implicate the Equal Protection Clause. The defendants had argued that the disparate treatment was
justified by security concerns, but the district court and the Seventh Circuit concluded that the true
reason was the prison’s lack of desire to make improvements.
Parker’s objection on this point lacks merit because unlike the rights claimed to be
infringed in Williams, he has no constitutional right to a particular prison job. See Bulger v. United
States Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir. 1995). As the Magistrate Judge said, the mere
fact that Parker’s old job was filled by a white inmate is not proof of racial discrimination; instead,
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the prisoner must show that the prison official acted with discriminatory animus, and an equal
protection claim must be based on more than a mere personal belief that the prisoner was the victim
of discrimination, or vague and conclusory allegations of discrimination.1
The Magistrate Judge stated in a footnote that although Parker sought additional
discovery, he did not show how such discovery would defeat the summary judgment motion, but
simply offered vague assertions that the additional discovery would offer needed but unspecified
facts. Parker objects to this statement, saying that his requests for discovery have been denied; he
says that he specifically showed that the kitchen job change roster was a “fake” and that other
documents were altered in some unspecified way to support the defendants’ version of events. The
job change roster and other documents were filed by Parker along with his objections; it shows his
assignments as a kitchen helper, janitor, the utility squad, a counter attendant, and a stock clerk in
the kitchen. This appears to comport with Parker’s own testimony that he was assigned to work in
the kitchen as a counter attendant. The Magistrate Judge twice granted motions by Parker to compel
discovery, and the Court has reviewed the documents produced by Parker along with his objections.
None of these documents show any reason to set aside the Report of the Magistrate Judge, and
Parker has not shown that additional disclosure was warranted, or that such disclosure would have
produced facts sufficient to defeat summary judgment. See International Shortstop Inc. v. Rally’s,
Inc., 939 F.2d 1257, 1266-67 (5th Cir. 1991); King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
Parker says that had the lay-in list been preserved, this would have showed that he
never had any follow-up visits and that he “never missed any medical visits because they never
existed,” and that he was “seen in medical and was there all day,” which he says would show that
the disciplinary cases he received were “bogus.” The medical records show the dates that Parker was
seen by the medical department, and these records were available to him. Parker also argues that the
Defendants offered a statement which was a “counterfeit” of his and that the kitchen job change
The law does not and could not require that prison officials must justify all prisoner job
changes with a rational basis or face potential discrimination claims.
1
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roster was incomplete because it did not show the fact that he has worked nearly every job in the
kitchen except as a cook, baker, or butcher; instead, it merely gives the job titles of “counter
attendant” and “kitchen helper.” Parker appears to believe that the roster list should be more
detailed, listing specific tasks such as working in the pot room, rather than simply listing job titles.
He goes on to repeat his complaint about having his job changed and given to a white inmate, and
says that a roster listing specific tasks would prove his point. Parker’s objection on this point is
without merit.
Parker argues that prison officials cannot retaliate against inmates for complaining
about prison conditions and says that the “suspicious timing of adverse action,” taken shortly after
a prisoner had made such complaints, is the type of evidence which will support a retaliation claim.
He contends that Hasty retaliated against him by not allowing him to elevate his leg for 10 minutes
every hour, but that this is not his only claim of adverse action. Parker adds that unspecified
“material documents” have not been disclosed to him which would prove this claim.
With regard to Fortner, Parker says that on May 16, 2009, he filed a complaint with
Allison about Fortner refusing to see him and avoiding him, and that shortly after this, Fortner lied
to him and denied him a knee brace because of his age, and said that he would advise against any
recommended restrictions. The Magistrate Judge stated that Parker had not shown that but for an
alleged retaliatory motive, the actions taken of would not have occurred; Parker says that the proof
of causation is in the sworn statements of Hasty and Fortner. A review of these statements turns up
nothing to show that but for an alleged retaliatory motive, the allegedly adverse actions taken by
Hasty and Parker would not have occurred. This objection is without merit.
Parker goes on to list a number of actions which he complains, including forcing him
to work against his medical restrictions, forcing him to work in unsafe conditions, filing false
disciplinary cases and “restriction of rights for no logical reason,” being denied and delayed medical
care after complaining of pain, and approving a transfer on a “12 hour bumpy bus ride.” He says that
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he had never before received a case for refusing to work and had never been bounced from job to job
in a two month period as he was after he filed a complaint.
However, the mere fact that grievances were filed and allegedly adverse action was
taken later does not show retaliatory intent. In Reese v. Skinner, 322 Fed.Appx. 381, 2009 WL
1066997, the Fifth Circuit held that an allegation that “harassment of him intensified after he started
filing grievances” was insufficient to show retaliation; the Fifth Circuit said, citing Strong v.
University HealthCare Systems, LLC, 482 F.3d 802, 808 (5th Cir. 2007) that “temporal proximity
is insufficient to prove ‘but for’ causation.” This comports with prior Fifth Circuit case law holding
that the mere fact that one incident precedes another is not proof of a causal connection; this is the
logical fallacy of post hoc ergo propter hoc (after this, therefore because of this). Huss v. Gayden,
571 F.3d 442, 459 (5th Cir. 2009) (noting that “the post hoc ergo propter hoc fallacy [after this,
therefore because of this] assumes causality from temporal sequence,” which is a “false inference”);
Tampa Times Co. v. National Labor Relations Board, 193 F.2d 582, 583 (5th Cir. 1952) (post hoc
ergo propter hoc is not sound logic). Parker has failed to show that but for an alleged retaliatory
intent, the actions complained of would not have occurred. His objection on this point is without
merit.
Finally, Parker challenges the Magistrate Judge’s recommendation on qualified
immunity, arguing that the defendants are not entitled to immunity because there are disputed facts
which must be resolved. The Magistrate Judge correctly determined that Parker failed to discharge
his burden of overcoming the qualified immunity defense because he did not show that any
constitutional violations were committed, nor that any of the Defendants acted unreasonably in light
of clearly established law. See Michalik v. Hermann, 422 F.3D 252, 262 (5th Cir. 2005). Parkers
objections are without merit.
The Court has conducted a careful de novo review of the pleadings in this cause,
including the Plaintiff’s complaint and testimony, the Defendants’ motion for summary judgment,
the Plaintiff’s response thereto, all other pleadings, documents, and summary judgment evidence in
15
the case, the Report of the Magistrate Judge, and the Plaintiff’s objections thereto. Upon such de
novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that 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 (97) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Defendants’ motion for summary judgment (docket no.’s 57 and
58) is hereby GRANTED and the above-styled civil action be and hereby is DISMISSED with
prejudice. It is further
ORDERED that any and all other motions which may be pending in this cause are
hereby DENIED.
So ORDERED and SIGNED this 9th day of March, 2012.
__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
16
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