De La Cruz v. Graber et al

Filing 34

MEMORANDUM OPINION AND ORDER granting 28 MOTION to Amend 28 USC §1331 Pleadings filed by Armando Garcia De La Cruz; granting 29 MOTION to Amend 28 U.S.C. Section 1331 Pleadings filed by Armando Garcia De La Cruz; denying as moot 30 MOTI ON to Request Status of Case filed by Armando Garcia De La Cruz; adopting 31 FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE; and denying 32 MOTION for reconsideration. (Ordered by Judge Sidney A Fitzwater on 7/24/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ARMANDO GARCIA DE LA CRUZ,
Plaintiff,
VS.
CONRAD M. GRABER, et al.,
Defendants.

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Civil Action No. 3:14-CV-3846-D

MEMORANDUM OPINION
AND ORDER
After making an independent review of the pleadings, files, and records in this case, and the
March 11, 2015 findings, conclusions, and recommendation of the magistrate judge, and having
considered plaintiff’s objections filed on March 19, 2015 and April 1, 2015, the court concludes that
the magistrate judge’s findings and conclusions are correct. It is therefore ordered that the findings,
conclusions, and recommendation of the magistrate judge are adopted. The court grants plaintiff
Armando Garcia De la Cruz’s (“De la Cruz’s”) February 20, 2015 and February 26, 2015 motions
to amend pleadings, denies his March 19, 2015 motion for reconsideration, and denies without
prejudice as moot his February 26, 2015 motion to request status of case.*
Although the court agrees with the magistrate judge’s recommendation that the claims
against the FCI-Seagoville defendants be dismissed, the court deems it appropriate to provide some
additional explanation because it is granting De la Cruz the opportunity to replead his case.

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Under § 205(a)(5) of the E-Government Act of 2002 and the definition of “written opinion”
adopted by the Judicial Conference of the United States, this is a “written opinion[] issued by the
court” because it “sets forth a reasoned explanation for [the] court’s decision.” It has been written,
however, primarily for the parties, to decide issues presented in this case, and not for publication in
an official reporter, and should be understood accordingly.

I
On March 19, 2015 De la Cruz filed in this court a motion for reconsideration concerning
the six FCI-Terminal Island defendants: Conrad M. Graber, John Doe, Mrs. Lopez, Dr. Mark Dag,
Eric Bradford and Dr. Leslie E. Charles. On November 4, 2014, however, his original claims
regarding his treatment at FCI-Terminal Island were severed and transferred from this court to the
Central District of California. When a case is transferred to a transferee district court, the transferor
court loses all jurisdiction over the case. See, e.g., Auto. Body Parts Ass’n v. Ford Global Techs.,
LLC, 2015 WL 1517524, at *1 (E.D. Tex. Apr. 2, 2015) (quoting Schwartz v. Curtis, 2008 WL
4467560, at *1 (S.D. Tex. Oct. 2, 2008)). “The date the papers in the transferred case are docketed
in the transferee court . . . forms the effective date that jurisdiction in the transferor court is
terminated.” Id. (quoting Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1517
(10th Cir. 1991) (internal citations omitted); see generally In re Sw. Mobile Homes, Inc., 317 F.2d
65 (5th Cir. 1963) (per curiam) (holding that district court lost jurisdiction once transfer was
complete); 15 Charles Alan Wright, et al., Federal Practice and Procedure § 3846, at 90 (4th ed.
2013) (“When a motion for transfer under 28 U.S.C.A. § 1404(a) is granted and the papers are
lodged with the clerk of the transferee court, the transferor court and the appellate court for the
circuit in which that court sits lose jurisdiction over the case and may not proceed further with
regard to it.”). Because the actions against the FCI-Terminal Island defendants have already been
transferred to the Central District of California, this court does not have the authority or jurisdiction
to grant De la Cruz’s motion for reconsideration, and it denies the motion.

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II
The court agrees with the magistrate judge that De la Cruz’s claims against the FCISeagoville defendants should be dismissed. Because the court is granting De la Cruz the opportunity
to replead, it will provide an additional explanation for its decision.
De la Cruz alleges that Dr. Capps, Dr. Duckworth, and Ronda Hunter (“Hunter”) violated
his constitutional rights by their deliberate indifference to his medical needs. In addition to
satisfying the standard that the magistrate judge cites, to establish deliberate indifference under the
Eighth Amendment, De la Cruz must plead a plausible claim that defendants “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs.” Domino v. Tex. Dept’t of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238
(5th Cir.1985)). The Eighth Amendment deliberate indifference standard is extremely high. Id.
Evidence such as “medical records of sick calls, examinations, diagnoses and medications may rebut
an inmate’s allegations of a prison official’s deliberate indifference to the inmate’s substantial risk
of serious harm.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quoting Banuelos v.
McFarland, 41 F.3d 232, 235 n.24 (5th Cir. 1995)). The following claims that De la Cruz includes
in his present pleading are not plausibly alleged because he has failed to adequately plead deliberate
indifference:
First, De la Cruz alleges that after he arrived at FCI-Seagoville, Drs. Capps and Duckworth
failed to provide him with pain medication for three months after he told them of his condition and
requested medication numerous times.

The magistrate judge’s findings, conclusions, and

recommendation rebut this claim of deliberate indifference.

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Second, De la Cruz alleges that defendants refused to give him a myelography test. The
magistrate judge’s findings, conclusions, and recommendation, together with evidence that this test
was actually given on June 19, 2014, rebuts this claim of deliberate indifference.
Third, De la Cruz alleges that Drs. Capps and Duckworth failed to provide him with physical
therapy. But his own evidence shows that Dr. Duckworth made repeated requests, approved and
signed for De la Cruz to have physical therapy.
Fourth, in his objections, De la Cruz asserts that he has yet to receive night splints or shin
braces, but admits that he has been given AFO braces and was measured for new refitted braces.
This evidence renders implausible his deliberate indifference claim.
Fifth, in his objections, De la Cruz asserts that Drs. Capps and Duckworth and Hunter did
not allow him to see back specialists. But the record reflects that he was seen by a neurologist on
September 10, 2012, had a neurology consultation for EMG and nerve conduction on December 17,
2012, and was examined at the Western Institute of Neurology by Dr. Ahmed Elsehety on May 6,
2013.
De la Cruz also fails to plead plausible claims when referring to “medical staff” regarding
his braces, wheelchair with shock absorbers, and pillows. “Plaintiffs, even those proceeding in
forma pauperis, have a duty to provide information sufficient to identify the defendants.” Gonzales
v. Lew Sterrett Dall. Cnty. Jail, 2008 WL 4921428, at *3 (N.D. Tex. Nov. 13, 2008) (Fitzwater,
C.J.). De la Cruz’s sole references to “medical staff” are insufficient to plead a plausible claim
against any particular defendant.

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De la Cruz also alleges that Drs. Capps and Duckworth and Hunter were deliberately
indifferent to his medical needs due to their “actions or inadequate actions on 8-12-2012.” P. Objs.
3. Because it is unclear what conduct he is referring to, this allegation is also insufficient.
III
Although the court is adopting the magistrate judge’s findings, conclusions, and
recommendation, it will give De la Cruz one last, fair opportunity to plead his best case. See, e.g.,
Robinette v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2004 WL 789870, at *1 (N.D. Tex. Apr.
12, 2004) (Fitzwater, J.) (“Although the court granted Merrill Lynch’s motion to dismiss, it gave
Robinette one more opportunity to plead his best case, because he was proceeding pro se.”). As this
court wrote in Barber v. G.H. Rodgers, No. CA3-84-1750-D, slip op. at 7 (N.D. Tex. Sept. 13, 1988)
(Fitzwater, J.), and has cited in subsequent rulings:
[T]he court must decide whether to dismiss the complaint or permit
plaintiff one more opportunity to plead his best case. For two
reasons, the court concludes that plaintiff should be permitted one
more chance to replead. First, orders that grant motions to dismiss,
especially in pro se civil rights cases, have a high mortality rate when
they reach the circuit court. This court is bound to follow the
jurisprudence of the circuit, which evinces a strong tendency to
permit pro se litigants several attempts to plead a claim upon which
relief can be granted. By outlining in this opinion the deficiencies of
plaintiff’s amended complaint, if plaintiff nevertheless cannot . . .
amend to satisfy the heightened pleading requirements, the court can
then dismiss the complaint with the assurance that plaintiff has been
shown all the deference he is due.
Scott v. Byrnes, 2008 WL 398314, *1-2 (N.D. Tex. Feb. 13, 2008) (quoting Sims v. Tester, 2001 WL
627600, *2-3 (N.D. Tex. Feb. 13, 2001) (Fitzwater, J.)).

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Accordingly, within 28 days of the date this memorandum opinion and order is filed, De la
Cruz must file an amended complaint, if he can, that states a claim on which relief can be granted
against a specifically identified defendant.
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The court adopts the March 11, 2015 findings, conclusions, and recommendation of the
magistrate judge. De la Cruz’s February 20, 2015 and February 26, 2015 motions to amend
pleadings are granted, his March 19, 2015 motion for reconsideration is denied, and his February
26, 2015 motion to request status of case is denied without prejudice as moot.
SO ORDERED.
July 24, 2015.

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SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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