McCoy v. Murray et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the Report of the Magistrate Judge 10 is ADOPTED as the opinion of the District Court. Plaintiff's application for leave to proceed IFP 3 is hereby DENI ED. This civil action is DISMISSED with prejudice as to the refiling of another IFP lawsuit raising the same claims as herein presented, but without prejudice to the refiling of this lawsuit without seeking IFP status andupon payment of the full fili ng fee. Should Plaintiff pay the full filing fee within 15 days after the date of entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as through the full fee had been paid from the outset. Any and all motions which may be pending in this action are herebyDENIED. Signed by Judge Leonard Davis on 05/19/14. (mll, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JAMES BELL McCOY
§
v.
§
OWEN MURRAY, ET AL.
§
CIVIL ACTION NO. 6:14cv228
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff James McCoy, 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. As Defendants, McCoy names Dr. Owen Murray, University of Texas Medical
Branch policy director; Dr. Lanette Linthicum, director of TDCJ Medical Services; and Pam Pace,
the practice manager at the Michael Unit.
McCoy complained that since his arrival at the Michael Unit in 2006, he has been subjected
to unnecessary pain and suffering because the Defendants have implemented policies or procedures
which cause delay in his receiving pain medication and allergy medication. He also complains that
the unit medical staff will not treat his hepatitis C, nurse practitioners or physician’s assistants renew
his medication for less than what the physician prescribed, no one has done anything to send him to
an allergy specialist or back pain specialist, and he has filed numerous grievances to no avail.
McCoy conceded that he has previously filed at least three lawsuits or appeals which have
been dismissed as frivolous or for failure to state a claim, rendering McCoy subject to the threestrikes bar of 28 U.S.C. §1915(g). However, McCoy argued that he falls under the statutory
exception because he is in imminent danger of serious physical injury.
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After review of the pleadings, the Magistrate Judge issued a Report recommending that the
lawsuit be dismissed based on the three-strikes bar. The Magistrate Judge stated that the imminent
danger exception refers to “a genuine emergency” where “time is pressing,” and allegations that
prison officials engaged in continuing harassments, plots to hurt or kill the prisoner, and other forms
of retaliation did not sufficiently allege imminent danger. Allegations of discontinuance of pain
medication, without more, did not adequately allege imminent danger.
The Magistrate Judge also observed that McCoy raised the same allegations in the present
case as he did in McCoy v. Pace, civil action no. 6:11cv503, the case in which the Fifth Circuit
imposed the three-strikes bar. As such, these claims are barred by collateral estoppel.
Although McCoy appears to raise various claims against the unit medical providers, the
Magistrate Judge stated that McCoy does not raise any specific individuals in connection with these
claims and offers nothing to show that any of the named defendants are responsible for the
circumstances of these claims. Dr. Murray and Dr. Linthicum are system-wide policy-makers, not
medical providers at the unit, and Pace is the practice manager, not a medical provider or a nurse.
McCoy failed to show that any of these named defendants are involved with his claims concerning
hepatitis C, referrals to a specialist, or the renewal of his medications by a nurse practitioner or
physician’s assistant, and in any event, these claims are also barred under §1915(g). The Magistrate
Judge thus recommended that the lawsuit be dismissed.
McCoy filed objections to the Magistrate Judge’s Report on May 7, 2014. In his objections,
McCoy states that his complaint stems from the Defendants “implementing and/or condoning
policies or practices which unnecessarily interfere with doctor prescribed treatment of a serious
medical condition.” He argues that his complaint “necessarily states a claim of imminent danger”
and that the Magistrate Judge “declared his pain is fictitious.”
McCoy contends that he is subjected to unnecessary pain and untreated allergy symptoms
multiple times every year. He says that the Magistrate Judge failed to cite any evidence showing that
he does not meet the “imminent danger” exception and that his claim is not like the previous one
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because the number of instances of delaying his medication has increased, as has the frequency and
duration. His condition has worsened and “the physical evidence and the professional diagnosis of
prison doctors outweighs the Magistrate Judge’s rote conclusions.”
McCoy goes on to assert he is being denied due process because the Magistrate Judge refused
to accept the veracity of his complaint. He states that his medical and grievance records should be
offered into evidence and that “it is a mystery” that his claim can be dismissed without ascertaining
his level of pain.
Next, McCoy says the Magistrate Judge claimed that the Defendants are not responsible for
causing his pain, but McCoy has “explained in detail how the Defendants are liable in this cause of
action by implementing and condoning policies or practices which unnecessarily delay doctor
prescribed treatment.” He states that Pam Pace fails to set appointments properly or correct the
problems when they are grieved.
In a document entitled “Second verification in support,” McCoy again states that the number
of instances of unnecessarily delaying doctor prescribed pain and allergy treatment has increased
since his last lawsuit, and the delays last longer than they did when his last lawsuit was dismissed.
He is older and the pain is worse than it was when his last lawsuit was dismissed.
McCoy says that when he misses an appointment to see a medical provider, because he was
not notified by prison guards, his treatment is further delayed because he has to go back to the nurse
to get another appointment, which takes days to accomplish. He says that he should not have to see
a nurse again because they already know he is in pain.
McCoy asserts that “the policies and practices that the Defendants implement and condone
which cause me pain and suffering are designed only to save on medical expenses (pharmaceuticals)
without regard to their patients’ pain and suffering.” He states that Dr. Murray is “the policy director
for UTMB who instituted the above-mentioned policies and practices which cause my pain and is
therefore deliberately indifferent to my pain.” Dr. Linthicum has been notified by McCoy through
the mail and through the grievance system that my doctor prescribed treatment is being interfered
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with and she has done nothing to correct it.” Pam Pace has personal knowledge every day that
McCoy’s medication is delayed because it is her responsibility to set the appointments and answer
the grievances.
As the Magistrate Judge explained, allegations that pain medication has been discontinued,
without more, are generally not sufficient to show that a plaintiff is in imminent danger of serious
physical injury. Jackson v. Jin, civil action no. 12-cv-6445, 2014 WL 1323211 (W.D.N.Y., March
31, 2014), citing Henderson v. Williams, civil action no. 3:cv216, 2003 WL 21756336 (N.D.Tex.,
July 30, 2003); Gallagher v. McGinnis, civil action 00-1468, 2000 WL 739285 (E.D.La., June 5,
2000). McCoy has not shown that he is in imminent danger of serious physical injury because of
delays in his pain medication or allergy medication.
Although McCoy complains that the present lawsuit is different from the preceding one, the
record shows that his previous lawsuit, like the present one, named Dr. Murray, Dr. Linthicum, and
Pam Pace as defendants, and complained that his pain medications were being delayed, causing him
unnecessary suffering. The Fifth Circuit stated in that case that “McCoy’s allegation that the
defendants failed to see that he got his prescriptions without any lapses, accepted as true, fails to
state a claim.” He offers nothing to show why the same allegation in the present case sets out a
constitutional claim while the previous one did not.
McCoy claims that he has explained how the named Defendants are liable through their
implementation of policies or practices which unnecessarily delay doctor prescribed treatments, but
he does not identify any policies or practices implemented by Dr. Murray or Dr. Linthicum which
have caused the alleged delays. He says that when he misses an appointment, Pace requires that he
see the nurse for another appointment when he doesn’t believe that he should have to do so. These
allegations fail to show deliberate indifference, much less that McCoy is in imminent danger of
serious physical injury. Compare Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (inmate
suffering from HIV and hepatitis who claimed a complete withdrawal of treatment sufficiently
alleged imminent danger of serious physical injury). McCoy’s objections are without merit.
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The Court has conducted a careful de novo review of the pleadings in this case, including 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 (Docket No. 10) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s application for leave to proceed in forma pauperis (Docket No.
3) is hereby DENIED. It is further
ORDERED that the above-styled civil action be and hereby is DISMISSED with prejudice
as to the refiling of another in forma pauperis lawsuit raising the same claims as herein presented,
but without prejudice to the refiling of this lawsuit without seeking in forma pauperis status and
upon payment of the full filing fee. It is further
ORDERED that should the Plaintiff pay the full filing fee within 15 days after the date of
entry of final judgment in this case, he shall be allowed to proceed in the lawsuit as through the full
fee had been paid from the outset. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
So ORDERED and SIGNED this 19th day of May, 2014.
__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE
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