Curtis v. Egan et al

Filing 61

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the Report of the Magistrate Judge 57 is ADOPTED as the opinion of the District Court. The motion for summary judgment by Defendants Christy Hoising ton, Keith Foust, Joni White, and Rose Coburn 47 is GRANTED and the claims against these Defendants are DISMISSED WITH PREJUDICE. Plaintiff's claims against Defendant Reshetta Lewis are DISMISSED WITHOUT PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted. Any and all motions which may be pending in this civil action are hereby DENIED. Signed by District Judge Ron Clark on 01/11/20. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DALE ALAN CURTIS

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v.

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CHERYL EGAN, ET AL.

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CIVIL ACTION NO. 6:17cv576

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Dale Alan Curtis, a prisoner of the Texas Department of Criminal Justice,
Correctional Institutions Division 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, Curtis named: Beto Unit Physician’s Assistant Cheryl Egan; the
Administrator of the Program Office of Professional Services for the TDCJ Health Services Division
(subsequently identified as Myra Walker); Beto Unit correctional officers Reshetta Lewis, Rose
Coburn, and Keith Foust; grievance investigator Christy Hoisington; Terrell Unit medical provider
Dr. Erin Jones; Joni White, assistant director of the TDCJ Bureau of Classification; and the Chief
of Classification at the Beto Unit (subsequently identified as Ramona Pharis). An individual named
Marcus Robinson was named in Curtis’ original complaint but was deleted from the amended
complaint, effectively dismissing him without prejudice from the lawsuit.
Of these Defendants, Pharis, Walker, Egan, and Dr. Jones have previously been dismissed.
The retaliation claims against the Defendants Foust, White, and Hoisington have also been
dismissed. After these Defendants were dismissed, the Defendants Coburn, Foust, White, and

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Hoisington filed a motion for summary judgment on the merits of the claims against them. Curtis
filed a response to this motion.
After careful review of the pleadings and the summary judgment evidence, the Magistrate
Judge issued a Report recommending that the Defendants’ motion for summary judgment on the
merits be granted and the claims against them dismissed with prejudice. The Magistrate Judge
further recommended that the claims against the Defendant Reshetta Lewis, who has not been served
and did not answer or join in the motion for summary judgment, be dismissed without prejudice as
frivolous and for failure to state a claim upon which relief may be granted. After seeking and
receiving an extension of time, Curtis filed objections which he signed on December 30, 2019.
I. The Plaintiff’s Claims
Curtis asserted that he was at the Beto Unit on a TDCJ-approved hardship to place him closer
to his family. However, Physician’s Assistant Cheryl Egan filled out an Individualized Treatment
Plan saying that Curtis needed to be at a unit with extended medical hours and recommending that
the Health Services Liaison and the Bureau of Classification be contacted and arrangements made
to transfer Curtis to a more suitable unit. Curtis completed a Refusal of Treatment form declining
the transfer, but he was nonetheless transferred to the Terrell Unit. He contended that Egan was
retaliating against him and that the Individualized Treatment Plan form was fraudulent because
TDCJ had approved his housing at the Beto Unit and the Terrell Unit had the same medical hours
as did the Beto Unit and also required more walking than did the Beto Unit. The transfer to the
Terrell Unit was approved by Director of Classification Joni White and Curtis wrote to her after he
was transferred, but received no reply. After he arrived at the Terrell Unit, Curtis contended that
Dr. Erin Jones was deliberately indifferent to his medical needs because she changed his medications
without having evaluated him.
Curtis also complained of a number of incidents which took place at the Beto Unit prior to
his transfer to the Terrell Unit. He said that he filed a grievance against Officer Lewis on April 30,
2014, and she retaliated against him by threatening him with a disciplinary case on September 28,
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2014, and actually writing him a case on October 24, 2014. He argues that his appeal of the October
24 disciplinary case was intentionally screened improperly by Hoisington.
On April 3, 2015, Curtis contended that Lewis retaliated against him by refusing to comply
with TDCJ regulations involving entering and exiting cells, even though she knew that Curtis was
trying to go to the restroom.
Curtis further complained that on November 29, 2013, Officer Coburn created an unsafe
situation for him by refusing to allow him in the dayroom with his crutches. He claims that Coburn
would not allow him to go to medical lay-ins on January 13, August 29, and December 14, 2014.
She also would not allow him to go to medical lay-ins on February 25, March 3, or May 13, 2015.
On March 8, 2015, Curtis asserts that Coburn solicited Foust to assault him, and this assault
occurred on April 30, 2015, some seven weeks later. According to Curtis, the assault consisted of
Officer Foust grabbing his arm and denying him a meal. Curtis argued that all of the actions taken
by all of the Defendants were retaliatory in nature.
II. The First Report of the Magistrate Judge
The Magistrate Judge issued a Report dated January 28, 2019 (docket no. 31) recommending
that the motions to dismiss filed by Ramona Pharis and Myra Walker, and by Cheryl Egan and Dr.
Jones, be granted and the claims against these Defendants dismissed. The Magistrate Judge also
recommended that the motion for partial summary judgment by Hoisington, Foust, and White on the
issue of retaliation be granted because Curtis had not exhausted his administrative remedies on this
claim. Curtis filed objections to this Report but these were overruled. On March 5, 2019, the Court
entered an order (docket no. 35) adopting the Report and dismissing the claims against Pharis,
Walker, Egan, and Dr. Jones. The order also dismissed the retaliation claims against Hoisington,
Foust, and White. Curtis filed a motion for reconsideration of this order, but the motion was denied
(docket no. 44). He then took an interlocutory appeal, which was dismissed for want of prosecution.

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III. The Second Report of the Magistrate Judge
After the Court’s order of partial dismissal, the Defendants Coburn, Foust, White, and
Hoisington filed a motion for summary judgment on the merits of the claims against them. Curtis
sought and was granted an extension of time to respond to this motion, which he did.
After review of the motion, the response, and the summary judgment evidence, the
Magistrate Judge issued a Report on October 30, 2019, recommending that the motion for summary
judgment be granted. After tracing the history of the case and reviewing the summary judgment
evidence, the Magistrate Judge determined that the claims against classification chief Joni White
lacked merit because Curtis did not show that White acted improperly in accepting a
recommendation for a transfer made by medical staff and Curtis did not have a protected liberty
interest in being housed at the Beto Unit.
The Magistrate Judge also stated that Curtis did not have a protected liberty interest in
having his grievances resolved to his satisfaction and so his claim that Hoisington did not answer
his grievances in the way he thought appropriate also lacked merit. Furthermore, the Magistrate
Judge determined that while Curtis contended that Hoisington intentionally answered his grievances
incorrectly, he offered nothing beyond speculation to substantiate this claim.
With regard to Foust, the Magistrate Judge determined that the alleged use of force was de
minimis and did not result in any injuries, nor did it amount to malicious and sadistic action
undertaken for the very purpose of causing harm. Thus, the Magistrate Judge concluded that Curtis’
claim of excessive force by Foust did not rise to the level of a constitutional violation.
The Magistrate Judge next examined each incident of alleged denial of medical care by
Coburn and determined that these allegations did not rise to the level of a constitutional claim. The
Magistrate Judge likewise determined that Curtis’ claims of retaliation by Coburn were conclusory
and inadequate to set out a constitutional claim.
The Defendant Reshetta Lewis was never served with process and did not join in the motion
for summary judgment. The Magistrate Judge reviewed Curtis’ claims against Lewis and
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determined that these claims were frivolous and failed to state a claim upon which relief may be
granted. 28 U.S.C. §1915A. Finally, the Magistrate Judge concluded that the Defendants Coburn,
Foust, Hoisington, and White were entitled to qualified immunity.
IV. Curtis’ Objections to the Report
In his objections, Curtis asserts first that he was “filing grievances for being delayed, failure
to follow TDCJ policy AD-6.07 access to medical and violating PD-22 to attend Plaintiff’s medical
lay-in[s].” He says that he “showed with the grievances that Plaintiff was being delayed
continuously after the filing of each grievance which is harassment and retaliation used to stop
Plaintiff by intimidation to suppress Plaintiff’s First Amendment right to redress the government and
the employees. Plaintiff’s continued filing of grievances against Coburn resulted in the solicitation
of Foust to help harass and retaliate against Plaintiff. Foust began harassing Plaintiff and Foust’s
aggression begin to increase after Plaintiff filed the grievance stating Coburn had solicited Foust to
harass and retaliate against Plaintiff. Foust’s aggression resulted in grabbing Plaintiff’s arm,
denying Plaintiff of a meal and refusing to call rank so the incident would be covered up.” He says
that his family filed a complaint, but the investigation was manipulated so that the outcome would
be favorable for the prison employees.
Curtis asserts for the first time in his objections that he was told he was would be transferred
to the Powledge Unit for medical reasons. He states that he asked Egan not to submit the transfer,
but he was transferred anyway. However, instead of going to the nearby Powledge Unit, Curtis says
that he was transferred to the Terrell Unit far away from his family, which he claims is evidence of
retaliation.
Once he arrived at the Terrell Unit, Curtis states that his medication was changed by Dr.
Jones without an evaluation. He filed a grievance which was thrown away by a grievance
investigator named Williams, who is not part of this lawsuit. Curtis asserts that the facts which he
lists are “evidence to show retaliation was committed by all defendants.” He contends that had the
Court allowed discovery and interrogatories, more evidence would have been revealed.
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After setting out the history of the case, Curtis maintains that his retaliation claims can only
be resolved by a trial. He says he has shown that the transfer to the Terrell Unit was done under
false pretenses because the medical department at the Beto Unit is staffed 24 hours a day with
doctors and nurses on duty during the day and on call at night, which is the same as at the Terrell
Unit. He asserts that he was retaliated against because he filed complaints and that “the grievances
filed were related to each act of retaliation was committed after each grievance against Coburn and
Foust [sic].” He claims that all of the defendants knew that the reason for the transfer was a
“disguise” and that everyone knew he was at the Beto Unit on a TDCJ-approved hardship.
Next, Curtis contends that Hoisington covered up acts of wrongdoing and did not process
some of his grievances in an attempt to chill his filings against wrongful acts by the Defendants.
He filed allegations of PD-22 violations against Coburn and Foust as well as “Coburn violated TDCJ
policy AD-6.07 that violates the Eighth Amendment for cruel and unusual punishment.”
Curtis states that his complaint shows fabricated reasons for a medical transfer and a
chronology from which retaliation may plausibly be inferred. He contends that the delay in medical
care and the grabbing of his arm were both motivated by his filing of grievances.
Curtis argues that Myra Walker knew that the reasons for the medical transfer were
fabricated, although he does not explain how she would have known that. He says that Joni White
and Ramona Pharis knew that he was at the Beto Unit on a medical hardship, and the failure to
prevent his transfer to the Terrell Unit was “an agreement to allow Plaintiff to be sent far away from
Plaintiff’s family.”
After again complaining that Dr. Jones changed his medication without seeing him and that
Hoisington’s failure to investigate his credible allegations of misconduct was a violation of his
rights, Curtis asserts that the Court did not permit discovery through which he could have proven
his claims, including showing that the reasons for his transfer were fabricated.

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V. Discussion
Although Curtis repeatedly complains about his transfer to the Terrell Unit, the Magistrate
Judge properly concluded that Curtis failed to state a claim against Egan because his allegations that
she falsified the transfer document and that she retaliated against him were entirely conclusory. In
addition, the Magistrate Judge correctly determined that the TDCJ hardship program did not give
Curtis a protected liberty interest in remaining at the Beto Unit for as long as he wanted and that
Curtis’ disagreement with Egan as to his medical needs being better met at the Terrell Unit did not
show deliberate indifference to his serious medical needs. Curtis’ objections regarding Egan are
without merit.
After his arrival at the Terrell Unit, Curtis complains that Dr. Jones changed his medication
without examining him. He appears to ascribe this to retaliation, but as with Egan, Curtis offers
nothing to suggest that Dr. Jones was aware of any grievances which he had filed, nor does he
present any specific facts showing retaliatory intent.
The Magistrate Judge properly found that the fact Dr. Jones adjusted Curtis’ medications
based upon a chart review did not show deliberate indifference to Curtis’ serious medical needs,
citing Domino v. TDCJ-ID, 239 F.3d 752, 756 (5th Cir. 2001) and Parker v. Fortner, civil action
no. 6:10cv296, 2012 U.S. Dist. LEXIS 31800, 2012 WL 830963 (E.D.Tex., January 19, 2012),
Report adopted at 2012 U.S. Dist. LEXIS 31789, 2012 WL 830717 (E.D.Tex., March 9, 2012), aff’d
508 F.App’x 359, 2013 U.S. App. LEXIS 1526, 2013 WL 2642350 (5th Cir.), cert. denied, 569 U.S.
952 (2013). Curtis’ disagreement with Dr. Jones’ medical judgment likewise does not show that Dr.
Jones retaliated against him. Curtis’ objections concerning Dr. Jones are without merit.
Curtis complains of the incident where Foust grabbed his arm, apparently as part of his claim
that Foust retaliated against him. The Magistrate Judge correctly determined that Curtis did not
exhaust his retaliation claims against Foust, Hoisington, or White, and Curtis does not challenge this
determination. To the extent Curtis complains of the incident as excessive force, he does not object
to the Magistrate Judge’s conclusion that the incident was de minimis and thus did not rise to the
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level of a constitutional violation. Instead, he says in his objections that Foust’s grabbing his arm
“is a use of force that violates the use of force protocol and PD-22, both TDCJ regulations.” The
Magistrate Judge correctly determined that violations of prison rules and regulations do not by
themselves amount to constitutional claims. Lewis v. Secretary of Public Safety and Corrections,
870 F.3d 365, 369 (5th Cir. 2017), citing Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
Curtis’ objections concerning Foust are without merit.
Curtis’ objections reiterate the claims in his complaint to the effect that Coburn harassed and
retaliated against him for his filing of grievances. The courts have held that simply repeating the
allegations of the complaint, without reference to the Magistrate Judge’s Report, does not amount
to “specific written objections to the proposed findings and recommendations.” Black v. CSQT, Inc.,
civil action no. 6:17cv298, 2019 WL 6044180 (E.D.Tex., November 15, 2019), citing LaFerney v.
Director, TDCJ-CID, civil action no. 2:13cv806, 2014 WL 47403 (E.D. Tex., January 6, 2014)
(objections which simply repeat the allegations of the complaint offer nothing to contradict the
Magistrate Judge’s proposed findings and conclusions).
In this case, the Magistrate Judge correctly determined that Curtis failed to offer specific
facts showing retaliation or a chronology from which retaliation could plausibly be inferred.
Instead, Curtis simply asserted in a conclusory manner that Coburn has harassed and retaliated
against him since he filed his first grievance. This is not sufficient to meet the elements of a
retaliation claim; the Fifth Circuit has held that a prisoner’s claim that harassment by prison officials
intensified after he started filing grievances is insufficient to prove “but for” causation. Reese v.
Skinner, 322 F.App’x 381, 2009 U.S. App. LEXIS 8471, 2009 WL 1066997 (5th Cir., April 21,
2009); see also Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (showing of retaliation
must be more than the prisoner’s personal belief that he has been the victim of retaliation). Curtis’
objections concerning Coburn are without merit.
Although Curtis contends that Hoisington covered up acts of wrongdoing and did not process
some of his grievances in an attempt to chill his filings against wrongful acts by the Defendants, he
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offered no specific facts to substantiate this claim. The Magistrate Judge correctly determined that
this claim was entirely conclusory and that in any event, Curtis has no constitutionally protected
liberty interest in the prison grievance procedure or in having grievances resolved in the manner he
believed appropriate. Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). His objections on
this point are without merit.
Similarly, Curtis speculates asserts that Myra Walker knew that the reasons for the medical
transfer were fabricated and that Joni White and Ramona Pharis knew that he was at the Beto Unit
on a medical hardship. The Magistrate Judge correctly determined that these officials were entitled
to rely on the determination of medical professionals that a transfer was medically necessary and
that Curtis had no protected liberty interest in remaining at the Beto Unit. See Petzold v. Rostollan,
– F.3d –, 2019 U.S. App. LEXIS 38573, 2019 WL 7206050 (5th Cir., December 27, 2019), n. 41;
Davis v. Carlson, 837 F.2d 1318, 1319 (5th Cir. 1988).
Finally, Curtis complains that the Court did not permit discovery, through which he
speculates that he could have proven his claims. The discovery plan in effect for the case (docket
no. 13) required the Defendants to disclose all information relevant to the claims or defenses of any
party. The docket shows that disclosure was made by the Defendants on June 22, 2018, but does
not show that Curtis ever requested discovery or a Rule 56(f) continuance. Nor has Curtis explained
what information he sought to discover or how it would have proven his claims. See Martinez v.
Abbott, – F.App’x –, 2019 U.S. App. LEXIS 36287, 2019 WL 6632821 (5th Cir., December 5,
2019), citing Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 162 (5th Cir. 2006) (party
seeking a continuance for discovery under Rule 56(f) must show why the additional discovery is
needed and how that discovery will create a genuine issue of material fact). A party cannot evade
summary judgment simply by arguing that additional discovery is needed and may not rely on vague
assertions that additional discovery will produce needed but unspecified facts. Adams, 465 F.3d at
162. Curtis’ objections are without merit.

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VI. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which the 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 Magistrate Judge is correct and 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. 57) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the motion for summary judgment by the Defendants Christy Hoisington,
Keith Foust, Joni White, and Rose Coburn (docket no. 47) is GRANTED and the claims against
these Defendants are DISMISSED WITH PREJUDICE. It is further
ORDERED that the Plaintiff’s claims against the Defendant Reshetta Lewis are
DISMISSED WITHOUT PREJUDICE as frivolous and for failure to state a claim upon which
relief may be granted. It is further
ORDERED that any and all motions which may be pending in this civil action are hereby
DENIED.
So ORDERED and SIGNED January 11, 2020.

____________________________
Ron Clark, Senior District Judge

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