Cooper v. Hung et al

Filing 55

ORDER ADOPTING 46 Amended REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 11/29/12. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
GARY COOPER

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v.

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DR. DAO HUNG, ET AL.

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CIVIL ACTION NO. 9:10cv126

MEMORANDUM ADOPTING AMENDED REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Gary Cooper, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C.
§1983 complaining of alleged violations of his constitutional rights in the Texas Department of
Criminal Justice, Correctional Institutions Division. 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, Cooper sued Dr. Dao Hung, LuAnn Renner, physician’s assistant Toni Deer, Shanta
Crawford, Guy Smith, Warden David Sweetin, Warden Debbie Erwin, Texas Attorney General Greg
Abbott, Texas Board of Corrections Chairman Oliver Bell, Dr. Betty Williams, Nurse Brenda
Hough, Dr. Kokila Naik, an unknown investigator, Dr. Julius Danziger, and a unit safety officer
named Boelin
This Court dismissed the lawsuit, but the Fifth Circuit reversed and remanded in part, for
reconsideration of Cooper’s claims under the Americans with Disabilities Act. The Fifth Circuit
affirmed the dismissal of Dr. Hung because the claims against him were barred by the statute of
limitations, and also affirmed the dismissal of Cooper’s claims of cruel and unusual punishment.
The district court determined that Cooper’s claims under the ADA lacked merit because there was
no individual liability under that statute, but on appeal Cooper argued, and the Fifth Circuit agreed,

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that because he listed each defendant’s “official position” in his lawsuit he was in effect suing them
in their “official capacities” under the ADA.
On reconsideration, the Magistrate Judge issued an Amended Report and Recommendation
in conformity with the Fifth Circuit’s opinion. This Amended Report first stated that Cooper’s
claims against the defendants Renner, Crawford, and Smith were based on the fact that they had
denied his grievances. Although Cooper argued that these persons had the power to order that he
receive medical boots, the Magistrate Judge concluded that Cooper had failed to show that grievance
investigators or signature authorities had the power to override medical decisions made by medical
professionals. Because these persons lack the power to order that he receive boots, the Magistrate
Judge said, they cannot be sued for prospective relief in their official capacities, and recommended
that Renner, Crawford, and Smith be dismissed.
Although Cooper sued Texas Attorney General Greg Abbott, the Magistrate Judge noted that
Cooper cited no authority, nor was the court aware of any, under which the Attorney General for the
State of Texas could be held liable for failing to protect state prisoners from harm, or for failing to
cause some unstated “modifications” to undefined “criteria” so as to provide accommodations for
individual prisoners on request. The Magistrate Judge stated that Cooper showed no basis for
holding Abbott liable in his official capacity as Attorney General, and recommended that Abbott be
dismissed from the lawsuit.
Cooper also sued Oliver Bell, Chairman of the Texas Board of Corrections. However,
Cooper conceded that Bell sent an investigator, who came and spoke to Cooper and ordered that Xrays be taken. The Magistrate Judge stated that this showed that Bell did not ignore Cooper’s
complaint but was responsive to it; instead, Cooper’s complaint appeared to be that Bell chose to
believe the prison medical staff and his own investigator rather than believing Cooper, and that Bell
did not substitute his own judgment for that of the medical professionals who had seen Cooper. The
Magistrate Judge concluded that “these claims fail to show a violation of the Fourteenth Amendment

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and offer no basis for liability under the Americans with Disabilities Act,” and recommended that
Bell be dismissed from the case.
In a similar vein, the Magistrate Judge said, Cooper sued the investigator who came to see
him, as well as Boelin, the unit safety officer. He acknowledged that these persons came to see him
and ordered that X-rays be taken, but complained that they should have countermanded the doctors
and order that he be given special shoes and a cane. However, the Magistrate Judge stated that
Cooper had offered nothing to show that an investigator or a unit safety officer had the power to
override the orders of trained medical personnel; they simply ordered that he receive X-rays, from
which the medical personnel could determine what treatment was required. The investigator and the
safety officer thus could not be sued for prospective relief in their official capacities, so Cooper’s
claim against these persons under the ADA lacked merit.
Finally, Cooper sued Dr. Danziger, the radiologist who read his X-rays. Cooper argued that
Dr. Danziger had the authority to order special shoes for him, but the Magistrate Judge stated that
Cooper pointed to nothing which would have placed Dr. Danziger on notice that Cooper required
special shoes. Cooper did not allege that Dr. Danziger saw him personally, but only that he read his
X-rays; these X-rays showed that Cooper’s hip was essentially normal, and the X-ray of his back did
not show any protuberances but only a narrowing of the spine at the base, a condition not unusual
among older people. The Magistrate Judge stated that this information would not have placed Dr.
Danziger on notice that Cooper was “a qualified person with a disability,” nor that Cooper had
special needs which required accommodation. In addition, Dr. Danziger was not a treating
physician, but simply drafted an X-ray report for Cooper’s treating physicians. The Magistrate Judge
concluded that Cooper had no basis for an ADA claim against Dr. Danziger.
The remainder of the Defendants in the case are the medical personnel who actually saw
Cooper, including Toni Deer, Dr. Betty Williams, Brenda Hough, and Dr. Kokila Naik, as well as
unit wardens David Sweetin and Debbie Erwin. The Magistrate Judge concluded that Cooper had
at least an arguable claim against these persons in their official capacities under the Americans with
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Disabilities Act, and that these defendants should be required to answer the lawsuit, with the
remaining defendants being dismissed.
Cooper filed objections to the Magistrate Judge’s Report on November 15, 2012. In his
objections, Cooper says first that the Magistrate Judge failed to state whether Plaintiff did or did not
state a claim against the named and pled defendants in their official capacities. Instead, the
Magistrate Judge has reiterated what defendants should or should not be dismissed and which ones
arguably in their official capacities could be liable on a claim under the Americans with Disabilities
Act. He goes on to say that his objections extend to each defendant who acted directly or in concert
with those who “directly failed to follow the process due under the provision and otherwise
protections [sic] of the Disabilities Act of 1990.”
As noted above, the Fifth Circuit determined that Cooper was suing the defendants in their
official capacities and remanded the case for that reason, inasmuch as individuals are not proper
defendants in an ADA lawsuit. The Magistrate Judge therefore reviewed the liability of each
defendant in the context of an official-capacity claim under the ADA and determined that the claims
against Toni Deer, Dr. Betty Williams, Brenda Hough, and Dr. Kokila Naik, as well as unit wardens
David Sweetin and Debbie Erwin should move forward. Cooper’s objection on this point is without
merit.1
Next, Cooper says that although the Defendants are not all medical personnel, “they were all
in a position to determine from Plaintiff’s record that he is a qualified individual with impairments

To the extent that Cooper’s objections may be read to raise some sort of conspiracy claim,
through his reference to defendants “acting in concert” with one another, this contention is without
merit. Cooper cannot raise new claims in objections to the Report of the Magistrate Judge, see
Finley v. Johnson, 243 F.3d 215, 218 n.3 (5th Cir. 2001), and all of the people whom he sues are
members of the same entity, the Texas Department of Criminal Justice, so a conspiracy claim against
them would be barred by the intra-corporate conspiracy doctrine. Reynosa v. Wood, 134 F.3d 369,
1997 WL 811828 (5th Cir., December 18, 1997). This is because where all of the defendants are
members of the same collective entity, the conspiracy does not involve two or more people. Hilliard
v. Ferguson, 30 F.3d 649, 653 (5th Cir. 1994); accord, Moody v. Jefferson Parish School Bd., 803
F.Supp. 1158, 1166 (E.D.La. 1992), aff’d 2 F.3d 604 (5th Cir. 1993) (school board, principal, viceprincipal, and various teachers were all employed by the school board and thus were a single entity
for purposes of a conspiracy claim).
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and has been regarded as having such disabling impairment by the State of Texas and therefore come
under the protections of the Americans with Disabilities Act.” The relevant question is which
defendants in the case can be held liable in their official capacities for a claim under the Americans
with Disabilities Act. The Magistrate Judge reviewed each defendant and determined that some of
these persons could be liable, while others could not and thus should be dismissed. Cooper’s
objection on this point is without merit.
Cooper further objects that the Magistrate Judge referred to his testimony at the Spears
hearing, while he has not been able to obtain a copy of this hearing. As was stated in a prior order,
the official transcript of the testimony of the Spears hearing is the recording itself, and no printed
transcript is prepared. This objection is without merit.
Finally, Cooper cites cases from other jurisdictions holding that ADA lawsuits are proper
against individual defendants. However, this Court is bound by Fifth Circuit authority, and as
explained in the Fifth Circuit’s order of remand in this case, there is no individual liability under the
ADA. The reason for the remand in this case was not that the district court erred in determining that
there was no individual liability under the ADA, but because Cooper sued the defendants in their
official as well as their individual capacities, so a remand was necessary to review official-capacity
liability. This objection is without merit.
The Court has conducted a careful de novo review of the pleadings in this cause, including
the Amended Report of the Magistrate Judge and the Plaintiff’s objections thereto. Upon such de
novo review, the Court has concluded that the Amended 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 Amended Report of the
Magistrate Judge (docket no. 46) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Plaintiff’s claims under the Americans with Disabilities Act against the
Defendants LuAnn Renner, Shanta Crawford, Guy Smith, Greg Abbott, Oliver Bell, the unknown
investigator, unit safety officer Boelin, and Dr. Julius Danziger be and hereby are DISMISSED with
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prejudice from this lawsuit. The dismissal of these Defendants shall not affect the Plaintiff’s claims
against Toni Deer, Dr. Betty Williams, Nurse Practitioner Brenda Hough, Dr. Kokila Naik, David
Sweetin, and Debbie Erwin, nor affect the claims against Dr. Dao Hung, which remain dismissed
as affirmed by the Fifth Circuit.

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So ORDERED and SIGNED on November ______, 2012.

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Ron Clark
United States District Judge

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