Garrett v. Sulser et al

Filing 158

MEMORANDUM OPINION ADOPTING REPORT OF THE U. S. MAGISTRATE JUDGE GRANTING PARTIAL SUMMARY JUDGMENT. The 107 Motion for Summary Judgment is granted with respect to Plaintiff's contentions within his amended complaint. The 144 Motion for Consideration of Response is denied as moot. The 96 Motion for Summary Judgment is denied. Signed by District Judge Ron Clark on 4/25/19. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
CHRISTOPHER GARRETT, #786065

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v.

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KIMBERLY SULSER, ET AL.

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CIVIL ACTION NO. 6:17cv310

MEMORANDUM OPINION ADOPTING REPORT OF THE UNITED
STATES MAGISTRATE JUDGE GRANTING PARTIAL SUMMARY JUDGMENT
Plaintiff Christopher Garrett, a prisoner currently confined at the Jester 3 Unit within the
Texas Department of Criminal Justice (TDCJ), proceeding pro se and in forma pauperis, filed
this civil rights lawsuit alleging violations of his constitutional rights occurring at the Michael
Unit.

The case was referred to the United States Magistrate Judge, the Honorable Judge John

D. Love, pursuant to 28 U.S.C. § 636(b)(1) and (3) as well as the Amended Order for the
Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Plaintiff filed many claims concerning alleged deliberate indifference to his serious
medical needs. Defendants were ordered to answer and have filed a motion for summary
judgment, (Dkt. #107).

On February 12, 2019, Judge Love issued a Report, (Dkt. #122),

recommending that Defendants’ motion for summary judgment be granted, in part, and denied, in
part.
Specifically, Judge Love found that Defendants failed to address a portion of Plaintiff’s
amended complaint—paragraphs one through twenty-eight. Therefore, summary judgment could
not be granted on claims Defendants failed to move for and failed to produce summary
judgment evidence for.

Judge Love recommended that summary judgment be granted on

the remaining claims because Plaintiff’s medical records showed that prison officials did not act
with deliberate indifference after his second fall on June 29, 2015. Both Plaintiff and Defendants
have
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filed objections, (Dkt. #’s 126, 133). Plaintiff has filed a reply to Defendants’ objections, (Dkt.
#136).
I. Defendants’ Objections
Defendants make the following objections: (1) the Report relies on a non-existent pleading;
(2) the Magistrate Judge failed to differentiate which claims Plaintiff stated; (3) the Report “left
the parties” directionless; and (4) paragraphs one through twenty-eight do not state a claim.
Generally, Defendants insist that the Magistrate Judge “surprised” Defendants by considering
Plaintiff’s claims—paragraphs one through twenty-eight—as independent claims of deliberate
indifference. A review of Defendants’ objections illustrates that (1) they are displeased that the
Magistrate Judge found that they failed to address several of Plaintiff’s claims; (2) that they were
not granted summary judgment on those missed claims; and (3) as a result, they could could only
be granted partial summary judgment.
The Court reminds Defendants that this is a prisoner civil rights lawsuit, filed by a pro se
litigant. It is well-settled that pleadings filed by pro se litigants are held to less stringent standards
than formal pleadings drafted by lawyers. As such, courts must liberally construe pleadings
filed by pro se litigants. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro
se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by lawyers.’”) (internal citations omitted)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Bruce v. Little, 568 F. App’x 283,
285 (5th Cir. 2014) (unpublished) (same).
As an initial matter, Defendants claim that the Magistrate Report relies on a “non-existent
pleading” is without merit. Defendants maintain that Plaintiff’s second amended complaint, (Dkt.
#35), is the operative pleading and the Report did not treat it as such. This is a trivial objection.

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In all of Plaintiff’s complaints—both original and amended—(Dkt. #’s 1, 21, 35), Plaintiff’s
claims are unchanged. Plaintiff raised paragraphs one through twenty-eight throughout this case.
As Plaintiff explains in his response to these objections, the amended complaint only added
paragraphs to the end of the complaint while leaving paragraphs one through twenty-eight
unchanged.

Consequently, regardless of which amended complaint is cited in the Report, the

result would have been the same: Defendants wholly failed to address a significant portion of
Plaintiff’s amended complaint—claims that Plaintiff, a pro se litigant, raised in all his complaints,
amended or otherwise. This objection is overruled.
Next, Defendants claim that the Magistrate Judge “blithely” ordered Defendants to answer
Plaintiff’s complaint without informing Defendants which claims Plaintiff raised. Specifically,
they argue that “[z]ero effort was made to delineate what claims—or claims—the complaint stated
or did not state, or against which defendants any claim might apply. The responsibility of
discerning what actual and independent claim or claims were stated in Plaintiff’s 30 pages of
‘pleading’ was entirely foisted upon Defendants.” They also claim that the Magistrate Judge left
Defendants “directionless.” Essentially, Defendants suggest that the Court was responsible for
explaining to Defendants which claims Defendants were required to answer.
However, it is not the responsibility of the District Court to explain, to Defendants, claims
raised by the Plaintiff. This is squarely within the purview of Defendants. The Court is a neutral
entity and can neither instruct Plaintiff nor Defendants in resolving claims. As Defendants’
counsel is a licensed attorney, the Court expects that counsel has the ability to identify issues and
address them in an appropriate manner. If Defendants were uncertain as to the claims raised by
Plaintiff, the Federal Rules of Civil Procedure provide several avenues for a responding party to

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request clarification—a request for a Rule 7 reply or a motion for a more definite statement. The
docket reveals that neither was requested by Defendants.
Defendants also maintain that the Magistrate Judge failed to conduct proper screening of
Plaintiff’s complaint; however, this claim is purely conclusory and meritless. These objections
are overruled.
Lastly, Defendants argue that claims one through twenty-eight of Plaintiff’s pleadings fail
to state a claim. They argue that paragraphs one through twenty-eight were “a continuum of facts
relating to the same basic claim of deliberate indifference to [Plaintiff’s] infirmed hip.”
Defendants fail to recognize that, as Judge Love explained in his Report, Plaintiff fell multiple
times beginning on June 1, 2015. Plaintiff raised claims of medical deliberate indifference for
weeks after his first fall, for which he argues contributed to his second fall on June 29, 2015.
Paragraphs one through twenty-eight of Plaintiff’s complaints concern only medical care from
June 1, 2015, through June 29, 2015—which Defendants wholly failed to address.
To claim that paragraphs one through twenty-eight were basically “introductory
paragraphs” ignores the fact that Plaintiff is raising claims for medical deliberate indifference as
to his first fall too. Plaintiff is also claiming that what happened to him in those paragraphs
contributed to a second fall on June 29, 2015 and, as such, is a continuum. As mentioned, pro
se litigants must be treated less stringently than lawyers. Judge Love properly reviewed those
claims as independent claims of deliberate indifference because without an analysis on those
claims, the Court could not address whether alleged deliberate indifference to his medical needs
after his first fall on June 1st, 2015 ultimately contributed to his second fall on June 29, 2015.
This objection is overruled.

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Defendants argue that the Magistrate Judge ignored their assertion of qualified
immunity. This is incorrect: Judge Love found that Plaintiff failed to show a constitutional
violation with respect to claims twenty-nine onward and determined that Defendants were
entitled to qualified immunity as to those claims.

Defendants did not invoke qualified

immunity in their motion for summary judgment on claims contained in paragraphs one
through twenty-eight because, as mentioned, they wholly failed to address those claims.
Defendants presented no summary judgment evidence on those claims and, as a result,
disputed issues of material fact exist at this time concerning paragraphs one through twentyeight. Therefore, to the extent that Defendants now invoke qualified immunity on Plaintiff’s
claims contained in paragraphs one through twenty-eight, this is a new claim raised for the first
time on objection—which is not properly before the District Court. See Place v. Thomas, 61
F. App’x 120, 2003 WL 342287, *1 (5th Cir. 2003) (unpublished).
Finally, the Court finds that Defendants’ tone and language in these objections
show show disrespect for the judiciary. The Local Rules of the Eastern District of Texas, of which
Attorney Lindsey is a member, require that attorneys appearing in both civil and criminal cases in
this Court “owe[] candor, diligence, and utmost respect to the judiciary.” See Local Rule
AT-3(b). Future violations of these Rules may result in appropriate sanctions.
II. Plaintiff’s Objections
In his objections, Plaintiff Garrett first notes that he “maintains” all of his objections to
Defendants’ motion for summary judgment, (Dkt. #’s 112, 116, 131). The Court notes that
frivolous, conclusory, or general objections need not be considered by the District Court. See
Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds
by Douglass v. United Servs. Auto Ass’n., 79 F.3d 1415 (5th Cir. 1996) (en banc). Furthermore,

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many of his objections are attempts to reargue issues thoroughly addressed by Judge Love. Such
general objections will not be considered by the Court.
As Judge Love correctly highlighted, deliberate indifference to a prisoner’s serious medical
needs constitutes an Eighth Amendment violation and states a cause of action under section 1983.
See Jackson v. Cain, 864 F.2d 1235, 1244 (5th Cir. 1989). In Farmer v. Brennan, 511 U.S. 825,
835 (1994), the Supreme Court noted that deliberate indifference involves more than mere
negligence. The Court concluded that “a prison official cannot be found liable under the Eighth
Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or
safety; . . . the official must be both aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference. Id. at 837.
The Fifth Circuit has discussed the high standard involved in demonstrating deliberate
indifference as follows:
Deliberate indifference is an extremely high standard to meet. It is indisputable that an
incorrect diagnosis by medical personnel does not suffice to state a claim for deliberate
indifference. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). Rather, the plaintiff
must show that the officials “refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.” Id. Furthermore, the decision whether to
provide additional treatment “is a classic example of a matter for medical judgment.”
Estelle, 429 U.S. at 107. And, the “failure to alleviate a significant risk that [the official]
should have perceived, but did not” is insufficient to show deliberate indifference. Farmer,
511 U.S. at 838.
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). In the medical care
context, “[u]nsuccessful medical treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference, nor does an inmate’s disagreement with his medical treatment,
absent exceptional circumstances.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
Moreover, “medical records of sick calls, examinations, diagnosis, and medications may rebut an

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inmate’s allegations of deliberate indifference.” Banuelos v. McFarland, 41F.3d 232, 235 (5th
Cir. 1995).
Plaintiff’s remaining objections can best be characterized as challenges to Judge
Love’s interpretation of the summary judgment evidence. This Court cannot change the standard
for competent summary judgment nor what competent evidence is in the record. Plaintiff raises
no substantive objections or arguments with regard to Judge Love’s analyses; rather, he simply
attacks the summary judgment evidence.

The competent summary judgment evidence speaks

for itself and is not a basis for attacking the Report and Recommendation.
Turning to his first objection, Plaintiff takes issue with Judge Love’s citations to precedent
indicating that mere disagreement with medical care provided does not constitute deliberate
indifference. (Dkt. #133, pg. 6). He states, “Plaintiff has at all times maintained that [Defendants’]
gave him no medical care, and this is shown with evidence.” Id. Plaintiff further states that Dr.
Bowers’ affidavit is based on erroneous medical records. He also objects to Judge Love’s finding
that his claims were a classic example of a challenge to professional medical judgements.
Finally, he again notes he was given only a “cursory” exam and that no medical care was
provided. Plaintiff’s explanation that he was given only a “cursory” medical exam bolsters Judge
Love’s Report: Such a statement illustrates that Plaintiff was seen by medical providers—and,
therefore, not ignored—as well as his mere disagreement with the type of medical exam given.
See, e.g., Clark v. Adams, 223 F. App’x 400, 401 (5th Cir. 2007) (unpublished) (“Clark’s
allegations are best described as a disagreement with the medical treatment he has received or, at
most, allegations that Dr. Adams was negligent in failing to refer him for surgery. Such
disagreement or negligence does not establish a constitutional violation.”).

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Judge Love issued a thorough Report that highlighted Plaintiff’s medical records after his
second fall on June 29, 2015. Plaintiff’s disagreement with how Judge Love interpreted those
medical records—i.e., that he was, indeed, provided medical care through numerous medical visits,
pain medication, X-ray examinations, hospital visits, and two surgeries—is not a basis to attack
the Report. Plaintiff ultimately received a total hip replacement. See Ganger v. Tangipahoa Parish
Jail, 554 F. App’x 271, 272 (5th Cir. 2014) (Mem.) (unpublished) (“The fact that he may be
disappointed with the treatment he received or that he received unsuccessful treatment is
insufficient to establish a constitutional violation.”). The Court cannot change what the competent
summary judgment evidence states.
Turning to Dr. Bowers’ affidavit, Plaintiff continues to provide conclusory allegations that
his affidavit is “erroneous,” because it was based on falsified medical records. As Judge Love
explained in his Report, Plaintiff provides no evidence indicating that his medical records were
intentionally falsified—other than his own conclusory statements. See, e.g., Knighten v. Ott, 69
F. App’x 657, 2003 WL 21355964 *1 (5th Cir. May 2003) (“His conclusory assertions that he did
not stockpile pills, that he would have received a disciplinary case if he had, and that his medical
records were falsified are insufficient to defeat the medical defendants’ summary-judgment
evidence or to create a genuine issue of material fact.”) (unpublished). As a result, his claim
remains purely speculative and conclusory.
Plaintiff further challenges the legal standard required for a showing of medical deliberate
indifference.

Specifically, he repeats phrases of the legal language highlighted above and

then states that he “has at all times maintained that the Defendants[’] denial and delay of medical
care caused the unnecessary, intentional and/or wanton infliction of pain.” (Dkt. #133, pg. 8).
Plaintiff may sincerely believes that medical personnel acted with deliberate indifference;

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however, it is Plaintiff’s obligation to meet the legal standards for medical deliberate
indifference and Judge Love’s Report thoroughly addressed how medical personnel were not
deliberately indifference as to his second fall on June 29, 2015.

This is a conclusory

objection and must be overruled.
Next, Plaintiff objects that his motion for summary judgment, (Dkt. #96), was denied.
Contrary to Plaintiff’s contention, he is not entitled to summary judgment as a matter of right based
on Defendants’ failure to refute his own motion for summary judgment.
C. Summation
Judge Love’s Report and Recommendation thoroughly analyzed the pleadings and the
summary judgment evidence. A de novo review of Plaintiff’s medical records from after his
second fall on June 29, 2015, show that medical staff did not act with deliberate indifference. The
summary judgment evidence showing Plaintiff’s lengthy medical records speaks for itself.
Judge Love highlighted how Plaintiff’s medical records showed that after his second fall,
he was seen by medical personnel almost immediately, given X-rays, prescribed and received pain
medications, examined on multiple occasions, taken to the hospital, underwent surgeries, and
ultimately received a total hip replacement. Plaintiff’s objections, again, evince his dissatisfaction
with the treatment he was provided—but that does not demonstrate a constitutional violation.
Plaintiff has provided no independent indication that his medical records were falsified or that Dr.
Bowers’ affidavit was erroneous based on alleged falsification of medical records.
In fact, Plaintiff filed a third response to Defendants’ motion for summary judgment after
Judge Love issued his Report, (Dkt. #131), and attached dozens of his medical records, (Dkt. #132)
(sealed). Plaintiff’s submitted medical records—from June 29, 2015, onward—simply mirror the

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medical evidence provided by Defendants. The summary judgment evidence Plaintiff provides
plainly refutes any claim of medical deliberate indifference.
The Court has conducted a careful de novo review of the record and the Magistrate 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 that the Report of the United States Magistrate Judge is correct and the both Plaintiff
and Defendants’ objections are without merit. Accordingly, it is
ORDERED that Defendants’ objections, (Dkt. #126), and Plaintiff’s objections, (Dkt.
#133), are overruled and the Report of the Magistrate Judge, (Dkt. #122), is ADOPTED as the
opinion of the District Court. It is also
ORDERED that Defendants’ motion for summary judgment, (Dkt. #107), is GRANTED
with respect to Plaintiff’s contentions—paragraphs 29 through 147—within his amended
complaint. Defendants’ motion is DENIED in all other respects. Furthermore, it is
ORDERED that Plaintiff’s motion for summary judgment, (Dkt. #96), is DENIED.
Additionally, it is
ORDERED that Plaintiff’s claims—paragraphs 1 through 28—remain before the Court.
Finally, it is
ORDERED that because the Court has considered Plaintiff’s third response, (Dkt. #131),
to Defendants’ motion for summary judgment, his motion for consideration of this response, (Dkt.
#144), is DENIED as moot.
So ORDERED and SIGNED April 25, 2019.

____________________________
Ron Clark, Senior District Judge

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