Wigenton v. Dallas County Sheriff Dept et al

Filing 22

ORDER ACCEPTING 20 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND GRANTING LEAVE TO AMEND THE COMPLAINT. (Ordered by Chief Judge Jorge A Solis on 1/9/2015) (aaa)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LARRY WIGENTON
(TDCJ No. 1918606),
Plaintiff,
V.

OFFICER DIXON and
NURSE CHARISH
Defendants.

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No. 3:14-cv-1313-P-BN

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE
JUDGE AND GRANTING LEAVE TO AMEND THE COMPLAINT
On November 20, 2014, United States Magistrate Judge David L. Horan
entered findings, conclusions, and a recommendation in this case. See Dkt. No. 20.
No objections were filed. On December 10, 2014, however, Plaintiff Larry Wigenton
filed an amended complaint. See Dkt. No. 21.
The magistrate judge recommended that Plaintiffs claims against Parkland
Hospital, Assistant Dallas County Public Defender Pamela Segura-Muhammad,
and the Dallas County Sheriffs Department as an entity be summarily dismissed,
but that Plaintiffs claim against Officer Dixon at the Dallas County Jail be allowed
to proceed as a claim of deliberate indifference under the Eighth Amendment. See
generally Dkt. No. 20. Plaintiffs amended complaint, filed without first seeking
leave of Court, is aimed at Officer Dixon and Nurse Charish at the Dallas County
Jail. See generally Dkt. No. 21. While the amended complaint adds to the allegations
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expressed in the original complaint and Plaintiffs responses to the Court's
questionnaires [Dkt. Nos. 15 & 19], the claims therein are not necessarily
inconsistent with Plaintiffs previous allegations.
Specifically as to Nurse Charish, although she is mentioned in the original
complaint, she was not named as a defendant, and none of the facts alleged in the
original complaint could be interpreted as stating a constitutional claim against her.
Plaintiff now alleges, among other things, that she (and Officer Dixon) "left [him]
laying on the floor for several hours, unable to move, until the next shift [came] on
duty. It was only then that an ambulance was called for and the Plaintiff was rushed
to Parkland Hospital." Dkt. No. 21 at 3. Based at least on this allegation, it appears
that Plaintiff has stated a claim for deliberate indifference that survives initial
screening against Nurse Charish.
As this Court has noted, "a delay in medical care is a constitutional violation[,
and will survive screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A,] if
there has been deliberate indifference which results in substantial harm[.]" Ellis v.

Phillips, No. 3:12-CV-1117-B-BH, 2012 WL 1969956, at *3 (N.D. Tex. Apr. 23,
2012) (citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993)); see also

Williams v. Certain Individual Employees of Tex. Dep't of Crim. Justice- Inst'l Diu.
at Jester III Unit, Richmond, Tex., 480 F. App'x 251, 257 (5th Cir. Aug. 6, 2010) (per
curiam) (district court erred in dismissing claim against duty nurse based on "delay
of almost 16 hours in receiving pain medications"); see also id. ("[S]evere pain caused
by the refusal to immediately treat pam can support a claim of deliberate
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indifference grounded in delayed treatment." (citing Harris v. Hegmann, 198 F.3d
153, 159-60 (5th Cir. 1999); Garrett v. Stratman, 254 F.3d 946, 950 (lOth Cir. 2001)
(in which the Tenth Circuit noted, "We have held that the substantial harm
requirement may be satisfied by ... considerable pain.")).
Accordingly, the District Court, having reviewed the proposed findings,
conclusions, and recommendation for plain error and finding none, ACCEPTS the
Findings, Conclusions, and Recommendation of the United States Magistrate Judge.
The Court liberally construes Plaintiffs amended complaint [Dkt. No. 21] as a
motion for leave to amend the complaint and GRANTS Plaintiff leave to amend. See
FED. R. CIV. P. 15(a)(2). The Clerk is requested to docket document number 21 as the
amended (and now operative) complaint in this action. The deliberate indifference
claims against Officer Dixon and Nurse Charish, as stated in the amended
complaint, shall proceed, these two defendants shall be served by the United States
Marshal pursuant to Federal Rule of Civil Procedure 4(c)(3), and the style of this
action is modified, as shown in the caption above, to reflect the amended complaint.

SO ORDERED this 9th day of January, 2015.

UNITED STATES DISTRICT JUDGE

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