Garrett v. Sulser et al
MEMORANDUM OPINION adopting 68 Report and Recommendation. Ordered that Defendant Linthicum's 19 Motion to dismiss is granted. Plaintiff's claims against her are hereby dismissed with prejudice. This order shall not prevent the Plaintiff from pursuing such other claims as he may have in this lawsuit. Signed by District Judge Ron Clark on 3/7/2018. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CHRISTOPHER GARRETT, #786065
KIMBERLY SULSER, ET AL.
CIVIL ACTION NO. 6:17cv310
MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Christopher Garrett (Garrett), an inmate confined within the Texas Department of
Criminal Justice proceeding pro se, filed this civil rights lawsuit pursuant to 42 U.S.C. § 1983
alleging purported violations to his constitutional rights. The complaint was referred for findings
of fact, conclusions of law, and recommendations for the disposition of the case.
The present memorandum opinion concerns only Defendant Linthicum’s motion to
dismiss, (Dkt. #19), and the Magistrate Judge’s Report, (Dkt. #68), recommending that the motion
I. Garrett’s Underlying Allegations
In his initial complaint, (Dkt. #1), and his amended complaint, (Dkt. #21), Garrett stated
that in May 2015, while he was incarcerated at the Michael Unit, he received a job transfer in
which new duties required him to climb up and down stairs, which resulted in debilitating pain in
his knee and hip. On June 1, his leg “gave out” while walking, causing him to stumble and fall.
Garrett states that the medical staff at the Michael Unit refused to issue him a walker or crutches
and refused to treat or diagnose him for weeks.
Garrett then highlighted how he slipped in the shower area on June 29, 2015, causing him
to black out, fall onto the wet concrete, and sustain a severe hip fracture. He noted that he was
sent to the infirmary on an emergency basis. Garrett contended that before and after he arrived at
medical, a nurse repeatedly and intentionally twisted his foot and leg, causing unbearable pain and
illustrating her—and others within the medical department—deliberate indifference to his serious
medical needs. After weeks of failing to treat and provide pain medication, Garrett was taken to a
hospital in Galveston and underwent hip surgery on July 10, 2015.
As for Defendant Linthicum, the Director of Health Services for TDCJ, Garrett insisted
that she “acts with deliberate indifference to the Plaintiff’s serious medical needs by refusing to
take steps, as is [her] duty, to ensure the proper training of the TDCJ nursing staff and to ensure
that the nursing staff does not act with deliberate indifference.” He also stated that it is routine
practice for medical grievance investigators “to give obtuse responses to misdirect and obfuscate
the grieved issue at both the Step I and Step II levels.” Finally, Garrett maintained that Defendant
Linthicum is complicit in falsifying medical records to “further accomplish the delay and/or denial
of needed health care.” Garrett requests declaratory and injunctive relief, as well as both punitive
and compensatory damages.
II. Defendant Linthicum’s Motion to Dismiss and Garrett’s Reply
In her motion to dismiss, (Dkt. #19), Linthicum argues that Garrett presented merely
conclusory claims against her. Additionally, she maintained that she had no personal involvement
with respect to any of Garrett’s claims and that Garrett failed to overcome qualified immunity.
Garrett filed a response to Linthicum’s motion to dismiss. He argued that she undoubtedly
had personal involvement because she has ultimate authority over the Step II medical grievance
procedures; given that role, her “refusal to properly investigate complaints in the Step II medical
grievances creates policies, procedures and customs that assure the continuity of her subordinates
act with deliberate indifference to the Plaintiff’s serious medical needs.” Moreover, Garrett
insisted that Linthicum had personal involvement through her failure to train the prison’s nursing
III. The Magistrate Judge’s Report and Recommendation
In recommending that Defendant Linthicum’s motion be granted, the Magistrate Judge
found that Garrett failed to demonstrate deliberate indifference, failed to illustrate Defendant
Linthicum’s personal involvement or supervisory liability, and failed to show any failure to train.
Garrett has filed timely objections to the Report, (Dkt. #74).
IV. Legal Standards
A. Motions to Dismiss
The Fifth Circuit has observed that motions to dismiss under Rule 12(b)(6) are “viewed
with disfavor and rarely granted.” See Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).
Such motions are generally evaluated on the pleadings alone. See Jackson v. Procunier, 789 F.2d
307, 309 (5th Cir. 1986).
Nevertheless, Federal Rule of Civil Procedure 12(b)(6) permits dismissal if a plaintiff “fails
to state a claim upon which relief may be granted.” A complaint fails to state a claim upon which
relief may be granted where it does not allege sufficient facts which, taken as true, state a claim
which is plausible on its face and thus does not raise a right to relief above the speculative level.
See Montoya v. FedEx Ground Packaging System Inc., 614 F.3d 145, 149 (5th Cir. 2010) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim has factual plausibility when
the pleaded factual content allows the court to draw reasonable inferences that the defendant is
liable for the misconduct alleged. See Hershey v. Energy Transfer Partners, L.P., 610 F.3d 239,
245 (5th Cir. 2010); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not
akin to a probability standard; rather, the plausibility standard requires more than the mere
possibility that the defendant has acted unlawfully. Bell, 550 U.S. at 556 (emphasis supplied).
Although all well-pleaded facts are taken as true, the district court need not accept true
conclusory allegations, unwarranted factual inferences, or legal conclusions. See Whatley v.
Coffin, 496 Fed.App’x 414, 2012 WL 5419531 (5th Cir. Nov. 7, 2012) (citing Plotkin v. IP Axess
Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Crucially, while the federal pleading rules do not require
“detailed factual allegations,” the rule does “demand more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A pleading offering “labels and
conclusions” or a “formulaic recitation of the elements of a cause of action” will not suffice, nor
does a complaint which provides only naked assertions that are devoid of further factual
B. Deliberate Indifference
As the Report highlights, deliberate indifference to an inmate’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 personal 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
inmate’s allegations of deliberate indifference.” Banuelos v. McFarland, 41F.3d 232, 235 (5th
C. Personal Involvement and Supervisory Liability
A plaintiff in a civil rights case must demonstrate not only a constitutional violation, but
also personal involvement on behalf of those alleged to have violated the plaintiff’s constitutional
rights. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an
essential element of a civil rights cause of action.”); Thompson v. Crnkovich, 2017 WL 5514519
*2 (N.D. Tex.—Albilene, Nov. 16, 2017) (“Without personal involvement or participation in an
alleged constitutional violation, or implementation of a deficient policy, the individual should be
dismissed as a defendant.”).
The doctrine of respondeat superior does not apply to section 1983. Williams v. Luna, 909
F.2d 121, 123 (5th Cir. 1990); Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978). Under
42 U.S.C. § 1983, supervisory officials are not liable for a subordinate’s actions on any vicarious
liability theory. In fact, the Supreme Court has held that the term “supervisory liability” is actually
a misnomer since “[e]ach Government official, his or her title notwithstanding, is only liable for
his or her own misconduct.” See Iqbal, 556 U.S. at 677. In Iqbal, the Supreme Court rejected an
argument that government officials may be held liable because they merely had knowledge or
acquiesced in their subordinate’s misconduct.
Id. As a result of Iqbal, other courts have
questioned whether supervisory liability remains an option at all in section 1983 cases. See, e.g.,
Dodds v. Richardson, 614 F.3d 1185, 1194-95 (10th Cir. 2010); Parrish v.Ball, 594 F.3d 993, 1001
n.1 (8th Cir. 2010).
Under current Fifth Circuit jurisprudence, a supervisor may only be held liable if one of
the following exists: (1) her personal involvement in the constitutional deprivation, (2) sufficient
causal connection between the supervisor’s wrongful conduct and the constitutional violations, or
(3) the supervisory official implements a policy that itself is a repudiation of civil rights and is the
moving force of the constitutional violation. See Mesa v. Prejean, 543 F.3d 264, 274 (5th Cir.
2008); see also Pena v. City of Rio Grande City, 879 F.3d 613 (5th Cir. 2018) (explaining that a
plaintiff in a section 1983 case establishes supervisor liability “if (1) [the supervisor] affirmatively
participates in the acts that cause the constitutional deprivation, or (2) [the supervisor] implements
unconstitutional policies that result in the constitutional injury.”) (internal citation omitted).
Importantly, in order to demonstrate that a supervisor is liable for constitutional violations
committed by subordinate employees, “plaintiffs must show that the supervisor act[ed], or fail[ed]
to act, with deliberate indifference to violations of others’ constitutional rights committed by their
subordinates.” Id. (citing Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011)).
D. Failure to Train
In order to establish section 1983 liability for the failure to train, a plaintiff must establish
that “(1) the supervisor failed to train the subordinate official; (2) a causal link exists between the
failure to train and the constitutional violations; and (3) the failure to train amounts to deliberate
indifference to the plaintiff’s constitutional rights.” See Flores v. Livingston, 405 Fed.App’x 931,
932 (5th Cir. 2010) (citing Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005)). The
inadequacy of the training must be obvious and obviously would result in a constitutional violation.
Id. Ordinarily, to establish deliberate indifference based on the lack of training or supervision, a
plaintiff must demonstrate a pattern of similar violations. Id.
V. Garrett’s Objections and Discussion
A review of Garrett’s objections show that he takes issue with the Magistrate Judge’s
determination that he failed to state a claim upon which relief can be granted. He points to specific
portions of his complaint and attachments to claim that he has presented sufficient factual
allegations to support his claims against Linthicum. Garrett also objects to the specific findings
that he failed to show deliberate indifference, personal involvement, and supervisory liability.
A. Deliberate Indifference
Garrett initially argued that Linthicum acted with deliberate indifference to his serious
medical needs by (1) failing to train the nursing staff over whom she has authority; (2) enacting
policies and procedures that allow her subordinates to act with deliberate indifference; (3) failing
to investigate his medical grievances properly; and (4) remaining complicit in falsifying medical
The Magistrate Judge reviewed records furnished by Garrett and found that medical staff
responded to his medical grievances and he was treated for his fractured hip. Accordingly, the
Magistrate Judge found that Garrett failed to show that Linthicum failed to treat him, ignored his
complaints, or engaged in conduct that evinced a clear disregard for his medical needs.
On objection, Garrett contends that the Magistrate Judge erroneously determined that he
failed to show Linthicum’s deliberate indifference. Specifically, he argues that the Magistrate
Judge overlooked allegations that he “did not get medical treatment for his broken hip until his
family intervened on his behalf,” how he was bedridden for a week and relied on other inmates for
medical needs, and “how the medical staff never responded positively to his grievances.” He notes
that the Magistrate Judge “must have overlooked” how Defendant Linthicum has authority over
Step II prison grievances and “sets policy and custom authority over the medical staff’s conduct.”
The Magistrate Judge properly found that Garrett failed to show deliberate indifference.
Medical records of sick calls, medical examinations, diagnoses, and medication can rebut an
inmate’s allegations of deliberate indifference. See Banuelos, 41 F.3d at 235; see also Huff v.
Crites, 473 Fed.App’x 398, 399 (5th Cir. 2012) (“Huff has made no showing of deliberate
indifference. The medical records and Huff’s recitation of the facts indicate that he was frequently
provided mental health treatment for his depression.”); Rodriguez-Rodriguez v. Smith, 207
Fed.App’x 479, 480 (5th Cir. 2006) (“Rodriguez’s medical records show that he was examined
repeatedly and received extensive treatment and objective tests for his back, shoulder, and flu-like
symptoms. These records rebut his claims of deliberate indifference.”).
Here, Garrett’s own submitted records demonstrate that he was frequently examined and
treated after his multiple injuries. In various portions of his own attachments, Garrett describes
the treatment he received, including multiple examinations, X-rays, hip surgery, and prescriptions
for several types of pain medication. (Dkt. #1, pg. id. # 3-40). Garrett’s own attachments
demonstrate that Linthicum was not deliberately indifferent to his serious medical need; he has not
shown that she “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.” See Domino, 239 F.3d at 756; see also Gonzales v. Isbell, 2009 WL 1941224 *5
(S.D.Tex.—Houston, Jul. 2, 2009) (“Where the prisoner’s medical records document assessment
and treatment of plaintiff’s medical complaints, he has not been subjected to unconstitutional
treatment.”) (citing Banuelos, 41 F.3d at 235).
Garrett’s claim regarding how the Magistrate Judge overlooked how he “did not get
medical treatment for his broken hip until his family intervened on his behalf and “how the medical
staff never responded positively to his grievances” fails as well. Garrett does not have a federally
protected interest in having his prison grievances resolved to his satisfaction. See Geiger v. Jowers,
404 F.3d 371, 373-74 (5th Cir. 2005). Moreover, “a delay in medical care violates the Eighth
Amendment only if it is based on deliberate indifference and results in substantial harm.” Callum
v. Tex. Dep’t of Criminal Justice, 375 Fed.App’x 417, 419 (5th Cir. 2010). Having determined
that Garrett failed to show that Linthicum was deliberately indifferent to his serious medical needs,
he cannot show that any delay violated the Eighth Amendment. The Magistrate Judge properly
found that Garrett’s failed to state a claim upon which relief can be granted with respect to his
claim of deliberate indifference against Linthicum. This claim should therefore be dismissed.
B. Personal Involvement and Supervisory Liability
Garrett maintained that Linthicum’s personal involvement in the purported deprivations of
his constitutional rights stems from her ultimate authority over prison Step II grievances. He
contended that her refusal to “properly investigate” these Step II medical grievances creates
policies and procedures of deliberate indifference to his serious medical needs.” He further argued
that her personal involvement also stemmed from her failure to train the nursing staff.
The Magistrate Judge found that Garrett’s claims were conclusory and that he failed to
show that her “policies” resulted in the deprivation of his rights. On objection, Garrett again insists
that Linthicum “has set policy and custom and created an atmosphere that tolerates and even
encourages prison medical staff to act with deliberate indifference to serious medical needs.”
However, the Magistrate Judge correctly recommended a dismissal of these claims.
Garrett’s claims remain conclusory: He fails to articulate what specific policy Linthicum created
or enforced that resulted in a constitutional deprivation. He simply points to the denial of his
grievances as evidence of a custom or policy of deliberate indifference. As noted above, however,
prisoners have no constitutional right to the existence of a grievance procedure and no liberty
interest in having grievances resolved to their satisfaction. See Geiger, 404 F.3d at 373-74; see
also Edmond v. Martin, 100 F.3d 952, 1996 WL 625331 (5th Cir. Oct. 2, 1996) (prisoner’s claim
a defendant “failed to investigate and denied his grievance" raises no constitutional issue); Thomas v.
Lensing, 31 F.App’x 153, 2001 WL 1747900 (5th Cir. Dec. 11, 2001) (same).
Moreover, the fact that Linthicum purportedly received and denied Garrett’s Step II
medical grievances does not demonstrate personal involvement in a constitutional violation. The
denial of grievances does not demonstrate the existence of a policy or custom. Garrett cannot
evade the holding in Geiger simply by casting his complaint regarding the denial of his medical
grievances—or dissatisfaction with the outcome of his grievances—in the form of a claim of
personal involvement by Linthicum through her failure to act on Garrett’s grievances in a way that
Garrett believed appropriate. See Whitlock v. Stephens, civil action no. 5:14cv94, 2016 WL
7155292 (E.D.Tex., December 8, 2016) (the fact that defendants received grievances and letters
but did not take the corrective action the prisoner believed appropriate did not show a constitutional
violation, much less personal involvement in such a violation) (citing Cervantes v. Sanders, civil
action no. 2:98cv187, 1998 WL 401628 (N.D.Tex. Jul. 14, 1998)); Welch v. Grounds, civil action
no. 5:11cv200, 2013 U.S. Dist. LEXIS 46081 (E.D.Tex. Feb. 14, 2013), Report adopted at 2013
U.S. Dist. LEXIS 40866 (E.D.Tex. Mar. 25, 2013).
Garrett’s contention that Linthicum was complicit in “falsifying” medical records also fails
to state a claim upon which relief can be granted. A review of Garrett’s attachments to his
complaint shows that he believes that the prison nurse who first saw him after his major fall in late
June 2015 falsified the nurse report of that visit by noting that he was ambulatory when arriving
at the nurse’s station. (Dkt. #1, pg. 29). He claims he was transported by a stretcher. Taking this
assertion as true, Garrett has not connected any alleged “falsification” of records to Linthicum.
While Garrett attached his grievances and signed affidavits from other prisoners indicating that he
was transported via a stretcher/gurney, Garrett has not provided any sufficient factual enhancement
that would support any indication of falsification. The federal pleading rules do not require
“detailed factual allegations,” but the rule does “demand more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
C. Failure to Train
Garrett initially argued that Linthicum refuses to ensure the proper training or supervision
of her subordinates, authority that has been regulated to her by the Texas Board of Nursing. He
contended that this refusal to properly train directly caused him to suffer injury.
The Magistrate Judge found that Garrett failed to connect Linthicum’s alleged “failure to
train” to any constitutional violation. He also determined that while Garrett insisted that she
repeatedly avoids training her subordinates properly, Garrett failed to allege specifics regarding
the inadequacy of this training or any support indicating a pattern of similar violations. On
objection, Garrett avers that “a causal link exists between the failure to train and the constitutional
violation and that failure to train amounts to deliberate indifference.” He points to portions of his
complaint—the denial of his medical grievances—that purportedly demonstrate a “pattern of
However, as explained above, prisoners have no constitutional right to the existence of a
grievance procedure and no liberty interest in having grievances resolved to their satisfaction. See
Geiger, 404 F.3d at 373-74. The denial of his medical grievances do not demonstrate Linthicum’s
pattern of allegedly failing to train or deliberate indifference—especially because Garrett has failed
to show Linthicum had personal involvement or acted with deliberate indifference in the first place.
The Magistrate Judge correctly recommended that this claim be dismissed.
Finally, Garrett objects to the Magistrate Judge’s recommendation that his complaints
against Linthicum be dismissed with prejudice. Specifically, he notes that he is proceeding pro se
and has limited legal knowledge. He also explains that he filed his amended complaint, (Dkt. #21),
one day before receiving Linthicum’s motion to dismiss.
While the pleadings of pro se litigants are read liberally, in this case, Garrett cannot show
that Defendant Linthicum had personal involvement, supervisory liability, or engaged in deliberate
indifference to his serious medical needs. Thus, the Magistrate Judge correctly recommended a
dismissal with prejudice.
Contrary to Garrett’s contention, based on his own words and
attachments, there is no causal link between Linthicum’s actions and any constitutional violation.
This objection is overruled.
Ultimately, Garrett has failed to state a claim upon which relief can be granted against
Defendant Linthicum. His own attachments demonstrate that she did not act with deliberate
indifference, did not have personal involvement, and is not liable under any theory of supervisor
The Court has conducted a careful de novo review of those portions of the Magistrate
Judge’s proposed findings and recommendations to which Plaintiff objected. 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 Plaintiff’s objections are without merit. Accordingly, it is
ORDERED that Plaintiff’s objections, (Dkt. #74), are overruled and the Report of the
Magistrate Judge is ADOPTED. Additionally, it is
ORDERED that Defendant Linthicum’s motion to dismiss, (Dkt. #19), is GRANTED.
Plaintiff’s claims against her are hereby DISMISSED with prejudice. This order shall not prevent
the Plaintiff from pursuing such other claims as he may have in this lawsuit.
So ORDERED and SIGNED this 7 day of March, 2018.
Ron Clark, United States District Judge
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