Spearman v. Bell et al

Filing 15

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Signed by Judge Ron Clark on 1/5/15. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
EDDY LEE SPEARMAN

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VS.

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CHARLES W. BELL, et al.,

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CIVIL ACTION NO. 9:13-CV-290

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Eddy Lee Spearman, an inmate confined at the Eastham Unit with the Texas
Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this
civil rights action pursuant to 42 U.S.C. § 1983 against defendants Warden Charles W. Bell,
Assistant Warden Debbie Erwin, Sergeant Michael J. Coleman and Correctional Officer Jimmy
K. Locander.
The court referred this matter to the Honorable Keith Giblin, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends plaintiff’s claims against defendants Bell, Erwin, and
Coleman be dismissed as frivolous and for failure to state a claim.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such referral, along with the record, and pleadings. Plaintiff
filed objections to the Magistrate Judge’s Report and Recommendation. This requires a de novo
review of the objections in relation to the pleadings and applicable law. See FED. R. CIV. P.
72(b).
After a careful review, the court finds the objections lacking in merit. To the extent
plaintiff now asserts defendants Bell and Erwin are liable as they failed to provide 24 hour
medical care, this claim lacks merit. Delay in medical care can only constitute an Eighth
Amendment violation if there has been deliberate indifference which results in substantial harm.
See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Even construing the facts favorably

to plaintiff, plaintiff has failed plead facts that even suggest deliberate indifference on the part of
defendants Bell and Erwin.
As to plaintiff’s assertion that defendant Coleman violated his constitutional rights as he
failed to follow prison policy in taking photos following an injury, this claim also lacks merit.
Failure to follow prison policies or regulations, alone, do not constitute a civil rights violation.
Vodicka v. Phelps, 624 F.2d 569, 575 (5th Cir. 1980). Furthermore, plaintiff has failed to plead
facts suggesting any act of deliberate indifference on the part of defendant Coleman.
ORDER
Accordingly, the objections of plaintiff are OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
ADOPTED. A partial judgment will be entered in this case in accordance with the Magistrate
Judge’s recommendations.

So ORDERED and SIGNED this 5 day of January, 2015.

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Ron Clark, United States District Judge

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