Cordova v. Herrera et al

Filing 53

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 36 MOTION for Summary Judgment, 50 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
PRUDENCIO CORDOVA,
Plaintiff,
VS.
MAXIMILLANO J HERRERA, et al,
Defendants.

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§ CIVIL ACTION NO. C-11-268
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ORDER ADOPTING
MEMORANDUM AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is Defendant Dr. Herrera’s Motion for Summary
Judgment (D.E. 36).

On April 16, 2012, United States Magistrate Judge B. Janice

Ellington issued a Memorandum and Recommendation (D.E. 50), recommending that
Defendant’s Motion for Summary Judgment be granted. Plaintiff filed his Objections
(D.E. 52) on April 25, 2012.
Plaintiff’s first objection is to the Magistrate Judge’s refusal to appoint counsel to
represent him.

The Court agrees with the Magistrate Judge’s analysis in her

“Memorandum Opinion and Order Denying Motion for Appointment of Counsel.” D.E.
24. The issues in this case do not require the appointment of counsel. Plaintiff’s first
objection is OVERRULED.
Plaintiff’s second objection is a claim that the expert witness made false or
misleading statements. The Magistrate Judge outlined the Plaintiff’s medical history as
reflected in his medical records. The Plaintiff does not point out any inaccuracy in that
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recitation of the medical history, which is the information upon which the summary
judgment analysis is based. Plaintiff’s second objection is OVERRULED.
Plaintiff’s third objection appears to be a complaint that the expert witness was
dishonest because he had a conflict of interest and the medical records could support a
“winning law suit against UTMB-Medical Branch.” However, this Court must concern
itself only with the civil rights claim that was filed. As the facts and the law do not
support the Plaintiff’s civil rights claim, any other relief under other theories is not
relevant to the disposition of the motion. Plaintiff’s third objection is OVERRRULED.
Plaintiff’s fourth objection complains that Texas Civil Statutes, title 110A, art.
6252-19 (repealed, now part of the Texas Civil Practice & Remedies Code chapter 102)
provides a cause of action that the Texas legislature would not intend to have defeated by
concepts of immunity. However, Plaintiff’s action is based upon his federal civil rights
and is not a state tort claim. The Magistrate Judge correctly determined that qualified
immunity applied to the action under consideration.

Plaintiff’s fourth objection is

OVERRULED.
Plaintiff’s fifth objection is that his failures to seek treatment have had no effect on
his permanent disability with respect to tinnitus, vertigo, or dizziness.

Thus, that

evidence is not relevant to this case. What the Plaintiff does not appreciate is that to
show deliberate indifference to serious medical needs, the Plaintiff must inform the
medical personnel of the problem and the medical personnel must understand the
problem and be deliberately indifferent to it. Whether or not the Plaintiff's condition is
permanent, he needs to show that he made the medical personnel aware of his symptoms,
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including continuing vertigo and the need to renew his low bunk status. If the Plaintiff
quits complaining of the problem, it is not “deliberate indifference” for the medical
personnel to fail to treat it. Plaintiff’s fifth objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Defendant’s Motion for Summary
Judgment (D.E. 36) is GRANTED and this action is DISMISSED WITH
PREJUDICE.
ORDERED this 13th day of June, 2012.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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