Barker v. Kelley

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 38 Report and Recommendations. The Court GRANTS 13 Motion to Dismiss Case as Frivolous and Plaintiff's claims are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted. Signed by District Judge Jeremy D. Kernodle on 7/14/2021. (efarris, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ARTHUR JOYAL BARKER, #1290750,
Plaintiff,
v.
RUSSELL KELLY,
Defendant.

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Case No. 6:20-cv-558-JDK-KNM

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Arthur Joyal Barker, a Texas Department of Criminal Justice inmate
proceeding pro se, brings this civil rights lawsuit under 42 U.S.C. § 1983. The case
was referred to United States Magistrate Judge K. Nicole Mitchell pursuant to 28
U.S.C. § 636.
Before the Court is Defendant Russell Kelly’s motion to dismiss Plaintiff’s
claims.

Docket No. 13.

On June 23, 2021, Judge Mitchell issued a Report and

Recommendation recommending that the Court grant Defendant’s motion and
dismiss this case with prejudice for failure to state a claim upon which relief can be
granted. Docket No. 38. Plaintiff timely objected. Docket No. 39.
Where a party timely objects to the Report and Recommendation, the Court
reviews the objected-to findings and conclusions of the Magistrate Judge de novo. 28
U.S.C. § 636(b)(1). In conducting a de novo review, the Court examines the entire
record and makes an independent assessment under the law. Douglass v. United

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Servs. Auto. Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc), superseded on other
grounds by statute, 28 U.S.C. § 636(b)(1) (extending the time to file objections from
ten to fourteen days).
In his objections, Plaintiff repeats his underlying claim: Defendant Kelly acted
with deliberate indifference to his serious medical needs by “abandoning” him during
a heart procedure and leaving clogged stents inside the site area after he was
transferred from his prison unit to Palestine Regional Medical Center. Plaintiff
asserts that Defendant did not act “with sound medical judgment” and that “Dr.
Kelly’s judgment was not professional.” Docket No. 39 at 13–16.
However, as Judge Mitchell correctly explained, Plaintiff’s disagreement about
medical procedures or judgment does not state a claim for medical deliberate
indifference. See Gibson v. Collier, 920 F.3d 212, 220 (5th Cir. 2019) (“There is no
Eighth Amendment claim just because an inmate believes that ‘medical personnel
should have attempted different diagnostic measures or alternative methods of
treatment.’”).
Additionally, Plaintiff’s assertions that Defendant Kelly should have done
something different does not state a claim for medical deliberate indifference. See,
e.g., Sanchez v. Oliver, 995 F.3d 461, 475 (5th Cir. 2021) (“The Domino court
concluded that the doctor ‘did not believe the threat was genuine. [His] diagnosis was
wrong. But . . . an incorrect diagnosis does not amount to deliberate indifference.’”
(quoting Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)));
Arenas v. Calhoun, 922 F.3d 616, 620 (5th Cir. 2019) (“Medical treatment that is

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merely unsuccessful or negligent does not constitute deliberate indifference, ‘nor does
a prisoner’s disagreement with his medical treatment absent exceptional
circumstances.’” (quoting Gobert v. Caldwell, 463 F.3d 139, 346 (5th Cir. 2006))).
Having conducted a de novo review of the record in this case and the
Magistrate Judge’s Report, the Court has determined that the Report of the
Magistrate Judge is correct, and Plaintiff’s objections are without merit. Accordingly,
the Court hereby ADOPTS the Report of the Magistrate Judge (Docket No. 38) as
the opinion of the District Court. The Court GRANTS Defendant Kelly’s motion to
dismiss

(Docket

No. 13),

and

Plaintiff’s

claims

are

DISMISSED

PREJUDICE for failure to state a claim upon which relief can be granted.

Signed this
Jul 14, 2021

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WITH