Osarinmwian v. Abbott et al

Filing 48

OPINION AND ORDER OF DISMISSAL (Signed by Magistrate Judge B. Janice Ellington) Parties notified.(amireles, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ANTHONY OSARINMWIAN IMADE,
TDCJ-CID #1605935,
VS.
GREG ABBOTT, ET AL.

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Case No. 2:12cv266

OPINION AND ORDER OF DISMISSAL
In this § 1983 civil rights action, plaintiff Anthony Osarinmwian Imade, proceeding
pro se and in forma pauperis, claims that, while in custody of the Texas Department of
Criminal Justice, Criminal Institutions Division (“TDCJ-CID”), defendants introduced a
chemical agent into his food in retaliation for his filing grievances, and that this chemical
agent burned his mouth and intestines, causing him pain and suffering in violation of his
Eighth Amendment right to be free from cruel and unusual punishment. (D.E. 1, 16, 21, 22,
28. 29, 30). Through this action, he seeks compensatory damages in the amount of $50
million dollars, plus $30 million dollars in punitive damages.
Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996),
any prisoner action brought under federal law must be dismissed if the complaint is frivolous,
malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief
from a defendant immune from such relief.

See 42 U.S.C. § 1997e(c); 28 U.S.C.

§§ 1915(e)(2), 1915A. Plaintiff’s action is subject to screening regardless whether he
prepays the entire filing fee or proceeds as a pauper. Ruiz v. United States, 160 F.3d 273,
274 (5th Cir. 1998) (per curiam); Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (per

curiam), cert. denied, 527 U.S. 1041 (1999). Plaintiff’s pro se complaint must be read
indulgently, Haines v. Kerner, 404 U.S. 519, 520 (1972), and his allegations must be
accepted as true, unless they are clearly irrational or wholly incredible, Denton v. Hernandez,
504 U.S. 25, 33 (1992).
Applying these standards, and having reviewed plaintiff’s medical records, as well as
expert testimony regarding plaintiff’s allegations of food/chemical poisoning, (D.E. 33, 34,
46), the Court dismisses this action with prejudice for failure to state a claim and/or as
frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
I.

Jurisdiction.
The Court has federal question jurisdiction over this civil rights action pursuant to 28

U.S.C. § 1331. Upon consent of the plaintiff (D.E. 8), this action was referred to the
undersigned United States magistrate judge to conduct all further proceedings, including
entry of final judgment. (D.E. 13). See 28 U.S.C. § 626(c).
II.

Procedural background.
Plaintiff is currently in the custody of Immigration authorities in Gadsden, Alabama.

His complaint concerns events that allegedly occurred whiled he was in TDCJ-CID custody
and housed at the Garza West Unit in Beeville, Texas.
Plaintiff filed the instant lawsuit on August 23, 2012, alleging that certain Garza West
Unit officers and officials had violated his Eighth Amendment right to be free from cruel and
unusual punishment when they intentionally introduced a chemical agent into his food,
effectively poisoning him and causing him serious gastronomical and intestinal problems.
2

He alleged that defendants were motivated to poison him in retaliation for his previously
filing grievances. Plaintiff named the following Garza West Unit officials and employees
as defendants: (1) Warden Ernest Guterrez; (2) Major Hernandez; (3) Captain Hael; (4)
Captain Farrall; (5) Lieutenant Ruiz; (6) Ms. Gonzales, food service manager; (7) Mrs.
Silvas, food service manager; (8) Officer McCullen; (9) Officer Lubbock; (10) Officer
Ramirez; (11) Officer Marriam; (12) Officer Ibarra; (13) Officer Boening; and (14) Officer
Vega. In addition, plaintiff identified as defendants the State of Texas, Attorney General
Greg Abbott, TDCJ Director Brad Livingston, and the TDCJ-CID.
On September 4, 2012, plaintiff requested that he be granted a U-1 non-immigrant
VISA pursuant to 8 C.F.R. § 214.14 on the grounds that he is a victim of a crime based on
defendants’ alleged actions. (D.E.11). The motion was denied. (D.E. 15).
On September 20, 2012, plaintiff filed a brief in support of his original complaint, and
characterized his claims to include to “malicious prosecution, poisoning, and torture ...”.
(D.E. 16). On September 27, 2012, plaintiff filed a pleading entitled “criminal complaint,”
in which he raised the same Eighth Amendment claims against defendants as raised in his
original complaint. (D.E.22).
On October 9, 2012, plaintiff filed a supplement to his original complaint. (D.E. 21).
This document purports to be a criminal complaint against the named defendants.

3

On October 18, 2012, a Spears hearing was conducted.1 Plaintiff testified that on
August 9, 2010, he underwent a spinal tap at Spohn Hospital, and was then returned to the
Garza West Unit. He claims that he was supposed to receive medication at the pill window
following the procedure, but Officer McCullen denied him the medication. Plaintiff filed a
grievance about the denial of medication, but it was denied with the finding that plaintiff had
been “out of place,” that day and, as a consequence of being out of place, he was denied pill
window privileges that day. Plaintiff claims that, after he filed the grievance about the
August 9, 2010 pill window incident, defendants retaliated against him by poisoning his
food.
Following the evidentiary hearing, the Office of the Attorney General (“OAG”), in
its capacity as Amicus Curiae, was instructed to file a Martinez report2 to include the
following information:
(1)

A copy of plaintiff’s TDCJ-CID medical records from January 2010 through
December 2010; and

(2)

A copy of plaintiff’s TDCJ-CID grievance records from January 10 through
December 2010.

(D.E. 25).
In November 2012, plaintiff filed several additional supplements and amendments to
his complaint. (See D.E. 28, 29, 30).

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

2

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); Cay v. Estelle, 789 F.2d 318, 323 n. 4 (5th
Cir. 1986).

4

On February 1, 2013, the AG filed under seal its Amicus Curiae Martinez report (D.E.
33), and on February 4, 2013, the AG filed a supplement thereto with exhibits. (D.E. 34).
On February 27, 2013, the AG was ordered to supplement the Martinez report with
an affidavit from a licensed medical professional who had reviewed plaintiff’s medical
records and who could offer a medical opinion on plaintiff’s claims that he had been
poisoned. (D.E. 41).
On April 15, 2013, plaintiff filed a motion for summary judgment. (D.E. 42). The
motion was denied as premature because § 1915A screening had not yet been completed, and
no defendant has yet been served in this action. (D.E. 43).
On May 6, 2007, the AG filed its second supplement to the Martinez report with the
affidavit of Jose Declet, a Physician’s Assistant currently employed by the University of
Texas Medical Branch (“UTMB”) at the Garza Unit. (D.E. 46).
III.

Plaintiff’s grievance and medical records.
A.

Medical records.

Beginning in January 2010, plaintiff was seen daily in the Garza Unit infirmary for
Librium administration.3 (See e.g. D.E. 34-8 at 14, 17, 18, 20, 2121). Nursing notes indicate
that plaintiff was “tolerating Librium regime well; no complaints voiced.” Id. Nursing notes
dated January 15, 2010 reflected that plaintiff was taking the following prescription

3

Librium, (chlordiazepoxide hydrochloride), is a benzodiazephine that is used primarily
to help relieve anxiety. http://www.drugs.com/pro/librium.html.
5

medications, ordered by Dr. Leininger, the Garza Unit physician: (1) Citalopram for
depression; (2) Enalapril Maleate for hypertension; (3) Metroprolol, a selective B-1 receptor
blocker used to treat chest pains; (4) Ranitidine, used to treat stomach ulcers and
gastroesophageal reflux disease (“GERD”), and (5) hydroclorothiazide, a diuretic to treat
edema and fluid retention. Id. at 12.
On January 17, 2010, plaintiff was seen in the infirmary for complaints of heartburn.
(D.E. 34-8 at 19). He was prescribed an antacid (aluminum/magnesium hydroxide). Id. His
height was 5 feet, 8 inches, and his weight was 296 lbs. Id.
On January 19, 2010, plaintiff reported to the infirmary for complaints of dry skin and
a rash in the groin area and on his feet. (D.E. 34-8 at 15). He was scheduled to see a
provider. Id.
On January 23, 2010, plaintiff was seen by Nurse Reyna for his skin complaints.
(D.E. 34-8 at 6-11). He was prescribed an antifungal medication for his feet and groin, and
instructed on self-care treatment of his skin. Id. at 9-10.
On February 16, 2010, plaintiff was seen in the infirmary for complaints of chest
pains. (D.E. 34-7 at 64-65; D.E. 34-8 at 1-5). Plaintiff’s weight was recorded as 284 lbs, and
his blood pressure (“BP”) was 137/81. (D.E. 34-7 at 64). Plaintiff described the pain as a
sharp pain in the left, upper rib cage, breast, and shoulder. Id. at 65. An EKG was conducted
and revealed normal sinus rhythm with rate of 70. (D.E. 34-8 at 5). Dr. Leininger was
contacted and he prescribed Tolnaftate for plaintiff’s foot fungus, as well as a topical
antibiotic and ear drops. Id. Plaintiff was released back to his cell with no restrictions. Id.
6

Throughout January and February 2010, plaintiff sent numerous sick call requests
(“SCR”) to the Garza Unit infirmary complaining about being “seriously depressed,”
“stressed out,” and unable to sleep. (See D.E. 34-6 at 6, 13-24, 33-37).
On March 9, 2010, plaintiff was seen by Mental Health Services as an outpatient at
the Garza Unit. (D.E. 34-5 at 63 through D.E. 34-6 at 1-4). Nursing notes indicate that
plaintiff had been diagnosed with depression on November 24, 2009. (D.E. 34-5 at 63). His
other chronic medical conditions were: (1) contact dermatitis/fungal infection; (2) TB class
2; (3) esophageal reflux; (4) sleep apnea; (5) chest pain; and (6) radiculopathy cervical.
(D.E. 34-6 at 1). He was also being treated for hypertension and asthma. Id. Upon
examination, Dr. Jamal Rafique noted that plaintiff was a 49 year old man with a previous
history of depression. Id. Plaintiff related that he was not taking his Celexa (Citolopram)
because of its gastrointestinal side effects. Id. Plaintiff told Dr. Rafique that he was feeling
depressed because of his legal issues, and that he was experiencing anxiety and sleep
problems. Id. Plaintiff requested that he be prescribed two medications that he had
previously taken, Wellbutrin and Klonopin, for his depression and anxiety. Id. Dr. Rafique
noted that plaintiff had no history of free world psychiatric treatment and that his symptoms
did not meet the criteria for major depression. Id. Dr. Rafique’s plan was to discontinued
the Celexa and to start plaintiff on Sertraline, the generic form of Zoloft, for his depression.
Id. at 3.
On March 13, 2010, plaintiff reported to the infirmary and requested that he be
prescribed hydrocortisone for his rashes; he was referred to a provider. Id. at 55-59.
7

On April 19, 2010, plaintiff was seen in the mental health care clinic for his
depression. (D.E. 34-5 at 59-62). The mental health counselor noted that plaintiff had no
preoccupations or hallucinations and that his thought organization was logical and goal
directed. Id. at 61. However, his affect was irritable with a negative attitude, and his mood
remained depressed. Id. Plaintiff was scheduled for a mental health examination and
continued on his medications. Id.
On April 23, 2010, plaintiff was seen in the infirmary for his contact dermatitis/fungal
infection. (D.E. 34-7 at 49-54). Nurse Barnett noted that plaintiff’s chief complaints were
chronic foot fungus and chronic acne to inner thighs.4 Id. at 49. Upon examination, Nurse
Barnett noted that plaintiff had cracking and scaling on both feet, and that he had been using
Tolnaftate since February with no success. Id. at 53. Plaintiff did have a rash on both inner
thighs, but there was no drainage or signs or symptoms of infection. Id. Plaintiff related that
he had experienced these skin problems for years. Id. Nurse Barnett advised plaintiff to
continue monitoring the symptoms but found no other treatment was required at that time.
Id. Plaintiff also complained of a sore throat, ear pain and pressure, congestion, and a
headache. Id. at 40-48. He was given Tylenol and throat drops. Id. at 46.
On May 3, 2010, plaintiff reported to the infirmary with a “grossly swollen” upper lip
that was causing and/or accompanied by shortness of breath and facial itching. (D.E. 34-7

4

In addition to the medication prescribed by Dr. Leininger in January 2010, plaintiff’s
medical records on April 23, 2010 noted that he had also been prescribed: (1) Albuterol inhaler
as needed; (2) Amlodipine for hypertension; (3) Omeprazole for GERD; and (4) Sertraline, the
generic form of Zoloft, in place of the Citalopram.
8

at 39). He was taken to the McConnell Unit emergency room where he was administered
Benadryl and a steroid intravenously for his apparent allergic reaction. (D.E. 34-3 at 54).
He was returned back to the Garza Unit infirmary and prescribed Prednisone and Benadryl,
and instructed to return in 3 days for follow-up care. (D.E. 34-7 at 36).
On May 11, 2010, plaintiff was seen in the Garza Unit infirmary by PA Gonzalez
complaining about diarrhea for the past week, nausea, and a cough. (D.E. 34-2 at 28-29).
The diagnosis was bronchitis, and PA Gonzalez prescribed plaintiff two antibiotics,
Amoxicillin and Metronidazole, as well as Bismuth Subsalicylate for diarrhea, and an
antihistamine, Clorpheniramine. Id. at 28. He was advised to self-modify his diet and to
increase hydration. Id. at 29.
On May 14, 2010, plaintiff was interviewed by mental health services after receiving
a disciplinary case for refusing to obey orders. (D.E. 34-5 at 56-57). The mental health
provider, Robin Gandy, determined that plaintiff was capable of remaining in his current
housing assignment. Id.
On June 4, 2010, plaintiff was seen in the infirmary by Dr. Sandoval for complaints
of sinus pain with pressure behind both eyes, runny nose, cough, and back pain. (D.E. 34-2
at 26-27). Dr. Sandoval diagnosed plaintiff with a sinus infection and back pain, and
prescribed Zyrtec and Motrin. Id. at 27.
On June 28, 2010, plaintiff was seen via CYB-R telemed video link by Dr. Michael
Dome for complaints of chronic low back pain. (D.E. 34-2 at 23-25). Plaintiff related that
he had sustained a back injury five years prior. Id. at 23. He denied any recent exacerbation,
9

and reported no bowel or bladder dysfunction. Id. Dr. Dome noted that plaintiff could get
on and off the examination table without difficulty, had a normal gait, and could heel toe
walk. Id. at 24. Plaintiff’s right and left lateral bending was good. Id. Dr. Dome noted a
tinea infection in the groin area. Id. His assessment was low back pain with limited
objective evidence, and tinea infection. Id. He prescribed Naproxen for pain, and antifungal
medications for plaintiff’s infection. Id.
On July 6, 2010, plaintiff was seen on DMS Cyber Clinic by Dr. Muldowney for his
complaints of headaches, periodic fainting, and falling since 2005. (D.E. 34-2 at 20-22).
Plaintiff denied vertigo, pulsating headaches, or CNS changes. Id. at 20. Dr. Muldowney
noted that plaintiff was morbidly obese at 278 lbs. Id. Plaintiff had no signs of respiratory
distress, splinting or dehydration, and he spoke in a fluid manner. Id. His neurological tests
were normal, as was his range of motion for his upper extremities. Id. at 21. Dr.
Muldowney’s assessment was that plaintiff would need to be accessed by the unit provider
with more extensive examinations concerning the cause of his headaches. Id. He advised
plaintiff on weight loss, building and stretching exercises, and encouraged him to walk 30
minutes daily. Id. He also advised plaintiff on his diet and recommended that he reduce his
carbohydrate and sodium intake. Id. He refilled plaintiff’s allergy medication, Loratadine.
Id.
On July 12, 20011, plaintiff was seen in the mental health clinic for a routine followup appointment regarding his depression. (D.E. 34-5 at 51-55). Plaintiff told the counselor,
George Fong, “not doing too good, everything wrong,” but he was vague during the
10

interview. Id. at 52. He stated that he would sometimes see yellow dots or animals that he
knew were not there, and at night he would hear the television “talking.” Id. at 52. He
denied any problems getting along with others. Id. Counselor Fong told plaintiff that his
symptoms did not demonstrate that he needed medication and that the Zoloft would be
discontinued. Id. The counselor noted a full range of affect, including smiling, and that
plaintiff was not depressed. Id. at 53.
On July 20, 2010, plaintiff was seen by Counselor Gandy for continuing complaints
of depression. (D.E. 34-5 at 47-50). Plaintiff reported that he saw a man walking through
a wall and people walking like animals. Id. at 48. He had a vision of a beaten man and it
frightened him. Id. He reported that he often felt as if someone were touching him, and he
heard voices questioning him. Id. No diagnosis was made; but plaintiff was instructed to
return in 90 days. Id. at 49.
On August 6, 2010, plaintiff reported to the Garza Unit infirmary complaining of
fever, cough, and difficulty breathing. (D.E. 34-2 at 15-16). Upon examination, Dr.
Leininger found plaintiff to be wheezing and he administered Proventil spray. Id. at 15.
Plaintiff then had an apparent seizure, falling to the ground, crying, and then he became
totally unresponsive. Id. Plaintiff was transported by non-911 ambulance to the local ER
“for evaluation of acute atypical seizure, fever and past history of head injury.” Id.
At the Beeville ER, it was noted that plaintiff’s temperature was over 101 degrees, and
his BP was 156/88. (D.E. 34-3 at 46-53, 50). A CT scan of the brain and spinal fluid

11

analysis were conducted to rule out meningitis/encephalitis. Id. at 48. He was returned the
Garza Unit in stable condition. Id.
On August 7, 2010, plaintiff was seen in the infirmary following his ER visit the day
before. (D.E. 34-7 at 29-30). Nurse Barnett noted that plaintiff ambulated without assistance
to the infirmary, was smiling, and stated that he felt much better. Id. at 29. She spoke to Dr.
Leininger regarding plaintiff’s lab work, the preliminary results of which showed no foreign
organisms in his spinal fluid. Id. Plaintiff’s brain CT was normal with no evidence of
masses, clots or midline shifts. Id. His EKG showed a normal sinus rhythm with rate of 88.
Id. Dr. Leininger’s treatment plan was to begin plaintiff on Dilantin, an anti-seizure
medication, and to monitor the Dilantin levels every two days. Id. Dr. Leinger also ordered
a permanent bottom bunk pass and follow-up blood work. Id.
On August 14, 2010, plaintiff reported to the infirmary complaining of severe back
pain and requesting Bengay ointment. (D.E. 34-7 at 28-29). LVN Lewis noted that plaintiff
was already taking Naproxen and Nortriptyline for pain, and she demonstrated exercises to
provide pain relief. Id. at 28. Plaintiff was scheduled to see a provider. Id.
On August 19, 2010, plaintiff saw Dr. Leininger for complaints of low back pain.
(D.E. 34-2 at 12). Dr. Leininger noted that plaintiff already had a prescription for Motrin,
and he instructed him on stretching exercises to perform in the bunk. Id.
On September 17, 2010, plaintiff was seen in the infirmary for his dermatitis and skin
problems. (D.E. 34-7 at 21-27).

12

On September 20, 2010, plaintiff was seen by PA Declet in the Garza Unit infirmary
complaining that he had “post-traumatic” headaches that were unrelieved by Pamelor, and
that the NSAIDs provided only marginal relief, although he admitted that he did not have a
headache at that time. (D.E. 34-2 at 11). Upon examination, PA Declet found no
abnormality and that plaintiff’s vital signs were stable. Id. at 11. Plaintiff’s head, eyes, ears,
nose, and throat were normal but for photophobia. Id. at 11. His neurological responses
were deeply intact with depressed deep tendon responses, bilaterally. Id. PA Declet’s
impression was unresolved headaches, and his plan was to have plaintiff referred to
neurology at Hospital Galveston. Id.
On September 24, 2010, plaintiff had a CYB-R care appointment with Dr. Muldowney
for his chief complaint of periodic abdominal pain and dyspepsia. (D.E. 34-2 at 9-10).
Plaintiff reported that the prescribed Prilosec did not help, and he requested Zantec. Id. at
9. Plaintiff described his stomach pain as a burning mid-epigastrium, with gradual onset and
no radiation. Id. Plaintiff did not complain of fatty food intolerance nor of vomiting. Id.
Plaintiff denied fevers or chills. Id. He denied changes in his bowel movements; no
diarrhea; no constipation. Id.
Upon examination, Dr. Muldowney noted that plaintiff was morbidly obese, and that
his skin color and texture was confluent without jaundice; turgor good. (D.E. 34-2 at 9).
Plaintiff moved without symptoms or complaints of discomfort, and his range of motion was
good in all areas. Id. Dr. Muldowney advised plaintiff that treatment of both GERD and
nonerosive reflux disease (“NERD”) is a stepwise approach to: (1) control symptoms; (2)
13

heal esophitis; and (3) prevent return or other complications. Id. Treatment is based on
lifestyle modification and control of gastric acid secretion. Id. He related that antacids are
the standard treatment for controlling symptoms, and he prescribed plaintiff Simethacone.
Id. Dr. Muldowney also addressed plaintiff’s chronic sinus problems and obesity. Id. at 10.
On October 14, 2010, plaintiff reported to the infirmary complaining of eye and nose
allergies, with a dry cough, and also complaining of itching on keloid scars on his chest that
were enlarged. (D.E. 34-2 at 7). Dr. Leininger told plaintiff that nothing could be done for
the keloids while he was in prison. Id. Plaintiff was administered a Kenalog steroid injection
for his allergies, and prescribed Omeprazole for his GERD. Id.
On October 26, 2010, plaintiff returned to the infirmary with continuing complaints
of allergies. (D.E. 34-2 at 5-6). The assessment was perennial allergies and he was
prescribed an antihistamine and eye drops. Id. at 5.
On October 28, 2010, plaintiff reported to the infirmary complaining of an episode
of food poisoning on October 12th that caused rectal bleeding. (D.E. 34-2 at 3-4). He
related that the rectal bleeding had stopped, but complained of “jelly stools” for several days.
Id. at 3. PA Declet’s impression was an upper GI pathology, and he ordered an abdominal
x-ray, abdominal series, and stool evaluation. Id.
On November 17, 2010, PA DeClet informed plaintiff that his x-rays and abdominal
series were within normal limits. (D.E. 43-2 at 1-2). Plaintiff insisted that he had food
poisoning two weeks prior and charged that PA Declet refused to test for it. Id. at 2.

14

Plaintiff requested that he receive liver, kidney, insulin, and food poisoning testing. Id. PA
DeClet noted that his medical explanations did not seem to satisfy plaintiff. Id.
On November 21, 2010, plaintiff was seen in the infirmary for a scheduled EKG.
(D.E. 34-7 at 20). Plaintiff related that he had experienced chest pains 2 days prior, but had
not come to the infirmary. Id. He noted that the chest pain came on after eating, and also
caused him to vomit. Id. Plaintiff’s EKG was normal. Id. LVN Wolfe advised plaintiff to
eat slowly and chew his food thoroughly before swallowing, and to avoid lying down after
eating. Id.
On November 24, 2010, plaintiff was seen in the infirmary for sinus problems
including itchy ears and eyes, and neck and shoulder pain. (D.E. 34-7 at 11-19). Plaintiff
refused Motrin and throat drops stating that these medications had never helped him in the
past, and he refused to sign the form indicating that he was refusing recommended medical
services. Id. at 14.
On November 30, 2010, plaintiff reported to the infirmary and complained that he
was suffering from vomiting, kidney problems, sinus problems, excessive heat, and head
aches caused by chemicals injected into his food. (D.E. 34-7 at 8-10). Plaintiff’s BP was
151/105, but he claimed to have been taking his BP medication. Id. at 8. Plaintiff’s housing
area was searched and blister packs of medication were found indicating that he had not
taken certain of his medications, including his hydrocholrothiazide for hypertension;
Metoprolol for chest pains; Amlodipine, for high blood pressure; and Enalapril, another
hypertension medication. Id. at 8-9. Dr. Leininger was advised of plaintiff’s noncompliance
15

with his medications, and with his claims about food poisoning. Id. at 9. The plan was to
refer plaintiff to the psychology department for evaluation of his food poisoning claims. Id.
On December 6, 2010, Counselor Gandy recommended that be plaintiff be transferred
to the Jester IV mental health unit for evaluation based on his repeated complaints that
security personnel were trying to poison him. (D.E. 34-5 at 39-42).
On December 7, 2010, plaintiff was evaluated at Jester IV by Dr. Shelia Bailey. (D.E.
34-5 at 37-38). Plaintiff told Dr. Bailey that he was being poisoned by officers as a
retaliatory act for his filing grievances against them. Id. at 37. He stated that as a result of
the poisoning, his bowel movements now included “tissue.” Id. Although he had denied
previous mental health care treatment at his initial TDCJ-CID intake in November 2009, he
now told Dr. Bailey that he had a history of both in and out patient mental health treatment
in the free world for depression and anxiety. Id. He related that, in addition to the food
poisoning, he had been “harassed, fondled, and they tried to set me up.” Id. at 38. Dr. Bailey
found that his thought content revealed evidence of persecutory delusions, but no
suicidal/homicidal ideation, and he was admitted for continued evaluation. Id. (See also
D.E. 34-5 at 30-36, additional intake notes for December 7, 2010).
On December 13, 2010, plaintiff met with Dr. Bailey again for further evaluation.
(D.E. 34-5 at 13-16). Plaintiff told Dr, Bailey that the officers wanted to kill him “because
they think that he is nothing and it doesn’t matter if he gets hurt or dies.” Id. at 15.

16

B.

Grievance records.

On August 10, 2010, plaintiff filed a Step 1 grievance, Grievance No. 2010216054,
complaining that on August 9, 2010, Officer McCullen denied him his medication at the pill
window. (D.E. 34-12 at 20-21).5 Plaintiff related that he had just come from Spohn Hospital
where he underwent a spinal tap, and that he was ordered to receive additional medication
following the procedure, but it was denied.6 Id.
By response dated September 20, 2012, Warden Pawelek stated that an investigation
revealed that plaintiff did not receive two of his prescribed medications on August 9, 2010.
(D.E. 34-12 at 21). However, the investigation indicated that plaintiff was given the
opportunity twice to go to the pill window, but, rather than go to the pill window, he was
found to be “out of place.” Id. As a consequence of being found out of place, he was not
permitted to go to the pill window again and he did not get his medication that day. Id.
On October 1, 2010, plaintiff filed a Step 2 appeal of grievance No. 2010216054
arguing that had not been out of place and had wrongfully been denied his medication. (D.E.
34-12 at 18-19).7 He also complained that, since the August 9, 2010 incident, he had been
retaliated against for filing the grievance, and that this retaliation included being striped
naked in front of the chow hall in front of both civilians and prison officials, “fondled” by

5

Plaintiff has also filed a copy of this grievance at D.E. 16, Ex. 1.

6

On August 26, 2010, plaintiff filed a second grievance complaining about the August 9,
2010 pill window incident. (D.E. 34-12 at 6-7). That grievance was returned unprocessed with
the notation: “Redundant. Refer to grievance # 2010216054.” Id. at 7.
7

See also D.E. 16, Ex. 2, submitted by plaintiff.
17

officers during a search, and accused of stealing. Id. at 18. Plaintiff complained further that
Mr. Price had accused him of being a sexual molester. Id. at 19.
On November 18, 2010, grievance investigator C. Lawson responded to plaintiff’s
Step 2 appeal as follows:
This office reviewed the issues presented in your grievance. Your claim of
sexual abuse was referred to the Region 4 Grievance Office. Region 4 stated
that your complaint has been noted and appropriately addressed at Step 1.
Your complaint was submitted to OIG for review; insufficient evidence was
found to open an OIG investigation. A unit investigation was completed
regarding your allegations of sexual abuse and being stripped naked in front
of the chow hall. A proper strip search was conducted to ensure you had no
other contraband. Officer Lubbock denies your allegations that he fondled
you. You were stopped and pat searched due to having a biscuit in your
pocket; this search was within policy. You failed to provide witnesses and or
evidence to support your claim. No further action warranted. Your medical
concern was referred to the Office of Professional Standards. The Office of
Professional Standards stated that a review of the grievance and documentation
was completed regarding the allegation of being denied access to the pill
window by the Correctional Office on August 9, 2010. The appellate review
supports the findings and response to the Step 1. The review of the medical
record indicates that you were transported to the local hospital for a CT scan
and spinal fluid analysis. You returned to the unit that same day and were seen
in the Medical department on August 7, 2010. The provider was notified of
the results of the CT scan and lab work. You were started on medications and
restrictions. Since then you have been referred to Hospital Galveston for
further testing and evaluation.
(D.E. 34-12 at 19).
On November 29, 2010, plaintiff filed a Step 1 grievance, Grievance No. 2011055940,
complaining that he had been suffering from an “acid burn” down his throat to his intestines
for over 2 months, and that every time he sent an I-60 request to be seen by Dr. Leininger,
he was instead seen by a nurse, and that the nurses were preventing him from seeing Dr.

18

Leininger. (D.E. 34-12 at 12-13). Plaintiff also related that he was starting “to believe that
someone” was tampering with his insulin and food to cause his medical problems. Id.
On January 3, 2011, the Practice Manager, Rudy Martisek, responded to plaintiff’s
November grievance:
You had [a] medical examination by a Provider on November 17, 2010, and
he informed you [that] your abdominal x-rays were within normal limits. He
informed you the explanations for food poisoning were not understood. You
submitted your grievance on November 30, 2010 and I received it on
December 2, 2010. I have not been able to meet with you as you request[ed]
since you were transferred to the Jester IV Unit on December 6, 2010 and as
of January 3, 2011, you have not returned. Send me an I-60 upon your return
and I (Rudy Martisek, Medical Administrator) will meet with you if you
desire.
(D.E. 34-12 at 13).
Plaintiff did not file a Step 2 appeal of Grievance No. 2011055940.
IV.

Legal standard.
Regardless of whether a plaintiff has properly exhausted his administrative remedies,

his action may be dismissed for failure to state a claim upon which relief can be granted. 42
U.S.C. § 1997e(c)(2). “To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988); see also Biliski v. Harborth, 55 F.3d 160, 162 (5th
Cir. 1995). An action may be dismissed for failure to state a claim when it is clear that the
prisoner can prove no set of facts in support of his claim entitling him to relief. Oliver v.

19

Scott, 276 F.3d 736, 740 (5th Cir. 2002). The complaint must be liberally construed in favor
of the prisoner and the truth of all pleaded facts must be assumed. Id.
V.

Analysis.
A.

The Eleventh Amendment bars plaintiff’s claims for money damages
against the TDCJ-CID and the individual defendants in their official
capacities.

Plaintiff has sued for money damages the State of Texas and the TDCJ-CID. In
addition, he has sued for money damages Attorney General Greg Abbott and TDCJ Director
Brad Livingston. Finally, he has sued numerous Garza Unit employees and medical
providers in both their official and individual capacities for money damages. (D.E. 1 at 3-4).
The Eleventh Amendment bars claims against a state brought pursuant to 42 U.S.C.
§ 1983 for money damages. Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054
(5th Cir. 1998); Farias v. Bexar County Bd. of Trustees for MHMR Servs., 925 F.2d 866,
875 n.9 (5th Cir. 1991). Section 1983 does not waive the state’s sovereign immunity, see
Quern v. Jordan, 440 U.S. 332, 338 n. 7 (1979), and Texas has not consented to this suit. See
Emory v. Texas State Bd. of Med. Exam’rs, 748 F.2d 1023, 1025 (5th Cir. 1984). Plaintiff’s
claims for compensatory and punitive damages against the State of Texas are barred.
Similarly, because the TDCJ/TDCJ-CID is a state agency, it is immune from a suit for money
damages under the Eleventh Amendment. Lewis v. University of Texas Medical Branch at
Galveston, 665 F.3d 625, 630 (5th Cir. 2011).
Plaintiff’s claims for compensatory and punitive damages against the individual
defendants in their official capacities are also barred because claims against state officials
20

in their official capacities are essentially claims against the State itself.8 Mairena v. Foti, 816
F.2d 1061, 1064 (5th Cir. 1987) (for purposes of § 1983 liability, a claim against a public
official in his or her official capacity is in effect a suit against the state or local government
he or she represents). Thus, the Eleventh Amendment bars plaintiff’s claims against Texas,
the TDCJ/TDCJ-CID, and all of the individual defendants in their official capacities, and
therefore, these claims are dismissed.
B.

No personal involvement by Greg Abbott or Brad Livingston.

Plaintiff has named State Attorney General Gregg Abbott and TDCJ Director Brad
Livingston as defendants.
To state a cause of action under § 1983, a plaintiff must identify defendants who were
either personally involved in the constitutional violation or whose acts are causally connected
to the constitutional violation alleged. Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995);
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.), cert. denied, 464 U.S. 897 (1983). In this
case, no where in his original complaint or numerous supplements does plaintiff suggest that
Gregg Abbott or Brad Livingston were personally involved in the alleged poisoning of his
food, or that they knew, or should have known, about his allegations against Garza Unit
officials. Thus, it appears that plaintiff is attempting to hold these individuals liable by virtue
of their positions within the State or TDCJ as supervisors. However, § 1983 does not create

8

The Eleventh Amendment does not prohibit claims for injunctive relief against the State
or individuals in their official capacities; however, plaintiff has not sought injunctive relief in
this lawsuit.
21

supervisory or respondeat superior liability. Oliver v. Scott, 276 F.3d 736, 742 (5th Cir.
2002).

Only the direct acts or omissions of government officials, not the acts of

subordinates, will give rise to individual liability under § 1983. Id. at 742 n.6 (citing Alton
v. Tex. A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999). Supervisory officials may be held
liable only if they (1) affirmatively participate in acts that cause the constitutional deprivation
or (2) implement unconstitutional policies that causally result in plaintiff’s injury. Oliver,
276 F.3d at 742; Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1997). Plaintiff does not
allege, let alone offer any feasible factual allegations for purposes of § 1915A screening to
suggest that defendants Abbott or Livingston implemented an unconstitutional policy
condoning food poisoning. Accordingly, plaintiff claims against Abbott and Livingston in
their individual capacities are dismissed.
C.

Eight Amendment claims against Garza Unit employees in their individual
capacities.

Plaintiff claims that defendants violated his Eighth Amendment right to be free from
cruel and unusual punishment by poisoning his food with a chemical agent.
The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend.
VIII. Prison officials must provide humane conditions of confinement; ensure that inmates
receive adequate food, clothing, shelter, and medical care; and take reasonable measures to
guarantee the safety of the inmates. Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Conditions that result in “unquestioned and serious deprivations of basic human needs” or
“deprive inmates of the minimal civilized measure of life’s necessities” violate the Eighth

22

Amendment. Hudson v. McMillian, 503 U.S. 1, 8-10 (1992); Rhodes v. Chapman, 452 U.S.
337, 347 (1981). Such a violation occurs when a prison official is deliberately indifferent
to an inmate’s health and safety. Farmer, 511 U.S. at 834. Deliberate indifference is more
than mere negligence. Id. at 835. To act with deliberate indifference, a prison official must
both know of and disregard an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists and he must also draw the inference. Id. at 837.
Plaintiff’s own recitation of the medical care he has received, in combination with his
voluminous medical records, as well as the affidavit of PA Declet, squarely refute plaintiff’s
allegations of repeated or intentional food poisoning in violation of the Eighth Amendment.
PA Declet is a practicing Physician’s Assistant who, in addition to treating plaintiff
firsthand, has reviewed plaintiff’s medical records from January 1, 2010 through March 7,
2011, to provide an opinion regarding whether plaintiff’s stomach, intestinal, and bowel
problems were the result of poisoning from a chemical agent.9 (D.E. 46-1, Declet Aff’t at
¶ 3). PA Declet notes that, well prior to his October 12, 2010 complaint of food poisoning,
plaintiff had been treated for complaints of dyspepsia and GERD. (Declet Aff’t at ¶ 4).
Indeed, plaintiff’s medications list dated January 15, 2010, reflected that plaintiff was taking
Ranitidine to treat stomach ulcers and GERD. (D.E. 34-8 at 12). On January 17, 2010, he
was seen in the infirmary for complaints of heartburn and was prescribed an antacid. (D.E.

9

PA Declet testifies that he is not being paid, other than his normal salary, to make his
affidavit. ((Declet Aff’t at ¶ 3).
23

34-8 at 19). In May, plaintiff was seen in the infirmary for diarrhea and nausea, as well as
a cough that was diagnosed as bronchitis. (D.E. 34-2 at 28). Plaintiff was counseled about
modifying his diet. Id.
On September 24, 2010, plaintiff had a CYB-R care appointment with Dr. Muldowney
to address his chronic periodic abdominal pain and dyspepsia. (D.E. 34-2 at 9-10). Although
this appointment was after the August 6, 2010 episode at the pill window, plaintiff did
complain of food poisoning to Dr. Muldowney, and denied vomiting, diarrhea, or any change
in bowel movements. Id. at 9. Dr. Muldowney’s assessment was GERD and NERD, and he
reaffirmed treatment with antacids and lifestyle changes. Id.
On October 28, 2010, PA Declet saw plaintiff for his complaints of an alleged food
poisoning that occurred on October 12, 2010. (Declet Aff’t at ¶ 5). PA Declet’s examination
was unremarkable, so he deferred performing a rectal examination. Id. However, PA Declet
ordered an abdominal x-ray, abdominal series, and three stool guaiac cards to test for the
presence of occult blood in plaintiff’s stool. Id. On November 2, 2010, Dr. Danzinger
reviewed plaintiff’s abdominal x-ray and series and determined they were within normal
limits. (Declet Aff’t at ¶ 7). There were no unusual soft tissue or calcific densities identified.
Id. The results for all three stool cards were negative for the presence of occult blood. Id.
On November 17, 2010, PA Declet told plaintiff that his abdominal x-rays and stool
cards were within normal limits. (Declet Aff’t at ¶ 8). According to PA Declet:
...Imade became upset and was insistent that a chemical agent had been
administered to him through his food. We had a lengthy discussion about
poisons, typical clinical presentations, and time frames for testing. I explained
24

to Imade that in instances of food poisoning we would normally see symptoms
from other offenders who consumed the same food. We had not seen other
offenders complaining of similar symptoms. Imade did not appear to be
satisfied by my explanations and the test results when he left the office.
Id. at ¶ 8.
Again on December 10, 2010, plaintiff was seen in the infirmary for complaints of
burning sensations after eating meals, and he attributed his symptoms to chemical agents
being placed in his food. (Declet Aff’t at ¶ 9). Plaintiff’s symptoms were consistent with
GERD, and he was given a new prescription for Zantac. Id. Later that month, plaintiff was
transferred to the Jester IV psychiatric unit “to receive treatment [for] delusions of being
poisoned by a chemical agent placed in his food.” Id.
On March 8, 2011, Hussein Gadban, M.A., Licensed Professional Counselor,
conducted a psychiatric evaluation of plaintiff. (Declet Aff’t at ¶ 10). Mr. Gadban reported
that: “‘Imade appears to somatize his symptoms and converts his stressors into actual
physical symptoms, mainly abdominal.’” Id. Mr. Gadban characterized plaintiff’s paranoia
regarding food poisoning as his inability to accept responsibility for his symptoms, and
instead, blame others, consistent with a personality disorder as opposed to a delusional
disorder. Id.
PA Declet concludes that plaintiff’s symptoms as noted in his medical records were
not consistent with food poisoning from a chemical agent. (Declet Aff’t at ¶ 11). He notes:
First, there were no observed signs consistent with food poisoning such as
nausea. vomiting, and diarrhea. Second, the offenders who consumed the

25

same food as Imade did not complain of similar symptoms.10 Third, the stool
guaiac cards tested negative for the presence of occult blood in Imade’s stool.
Fourth, the x-ray and abdominal series results were within normal limits.
Finally, the acute symptoms of food poisoning do not typically last for many
years.
(Declet Aff’t at ¶ 11).
In Declet’s opinion, plaintiff is confusing the symptoms of GERD with food poisoning
from a chemical agent. (Declet Aff’t at ¶ 12). The gastric symptoms are similar, and Mr.
Gadhan found that plaintiff’s personality disorder and failure to take responsibility for his
own actions could cause him to blame others and to feel victimized. Id. Moreover,
plaintiff’s voluminous records demonstrate that plaintiff is very cognizant of his physical
condition and does not hesitate in seeking medical attention.
In his complaint, plaintiff alleged that it was the August 6, 2010 pill window incident
that caused officers to retaliate against him, but he did not complain of food poisoning until
October 12, 2010. Between August and October 2010, plaintiff was repeatedly seen by
medical personnel, but he did not complain of poisoning during that time. After complaining
of poisoning, his complaints escalated to inappropriate sexual abuse and torture, but plaintiff
never made these allegations to his medical care providers, despite his frequent visits to the
infirmary. Upon his arrival at the Jester IV Unit on December 7, 2010, he continued to
complain that the Garza Unit defendants were poisoning his food in retaliation for his filing

10

The fact that other offenders did not suffer food poisoning symptoms does not
necessarily refute plaintiff’s allegations that he was singled out for food poisoning, but does
establish that there was no food poisoning outbreak at that specific time.
26

grievance, but by December 13, 2010, plaintiff no longer characterized their actions as
retaliatory, but instead claimed that they were trying to kill him simply because they could
get away with it and no one would care. (D.E. 34-5 at 15). The medical health experts
diagnosed him initially with a delusion disorder with persecutory undertones, and in May
2011, plaintiff’s thought processes were found to be “paranoid.” Regardless of the exact
diagnosis, the evidence establishes that plaintiff was not poisoned but rather, he somatized
his symptoms. (Declet Aff’t at ¶12). Plaintiff’s allegations fail to state a cognizable Eighth
Amendment claim.
D.

Retaliation.

Plaintiff contends that he was poisoned by Garza Unit staff in retaliation for his
exercising his right to file grievances against security staff.
To state a valid § 1983 claim for retaliation, “a prisoner must allege (1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her
exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones v. Greninger,
188 F.3d 322, 324-25 (5th Cir. 1999) (citing McDonald v. Stewart, 132 F.3d 225, 231 (5th
Cir. 1998). An inmate must allege more than his personal belief that he is the victim of
retaliation. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citation omitted).
Mere conclusory allegations of retaliation will not withstand a summary judgment challenge.
Woods, 60 F.3d at 1166.
The purpose of allowing retaliation claims under § 1983 is to ensure that prisoners are
not unduly discouraged from exercising their constitutional rights. Morris v. Powell, 449
27

F.3d 682, 686 (5th Cir. 2006). However, some acts, even though they may be motivated by
retaliatory intent, are so de minimis that they would not deter the ordinary person from
further exercise of his rights. Id. Such acts do not rise to the level of constitutional
violations and cannot form the basis of a § 1983 claim. Id. For example, a job transfer from
the commissary to the kitchen might be de minimis, while a transfer to a more dangerous unit
might constitute an adverse retaliatory act. Id. at 687.
In the context of an inmate who alleges that the retaliatory motive stemmed from his
filing grievances, the mere fact that the alleged retaliatory act occurred with temporal
proximity is insufficient to establish the “but for” retaliatory intent element. See Reeves v.
Wood, 206 Fed. Appx. 368, 369 (5th Cir. 2006) (finding temporal proximity is insufficient
to establish retaliatory motive). The mere fact that one incident precedes another is not proof
of a causal connection. Lucio v. Crites, 2010 WL 1727122 (S.D. Tex. Apr. 28, 2010). An
inmate must demonstrate more than his personal belief that he is being retaliated against. See
Jones, 188 F.3d at 324-25.
Here, plaintiff’s allegations do not state a claim of retaliation because he fails to
establish that he suffered an injury motivated by retaliation. Although plaintiff contends he
was poisoned, the objective medical evidence and affidavit of PA Declet refute plaintiff’s
claims that he was the victim of food poisoning. Moreover, mental health care providers at
the Jester IV Unit diagnosed plaintiff with “Delusional Disorder, Persecutory Type” based
on his behavior at the Garza Unit and his continuing complaints and belief that his food was
being poisoned. (D.E. 34-5 at 38; D.E. 34-4 at 53-57). Because plaintiff was not poisoned
28

by staff, there is no retaliatory act. Thus, plaintiff fails to state a cognizable claim of
retaliation against any defendant.
V.

Conclusion.
For the reasons stated above, it is ORDERED that:
(1)

Plaintiff’s claims for money damages against the State of Texas, the

TDCJ/TDCJ-CID, as well as all named defendants in their official capacities are dismissed
as barred by the Eleventh Amendment;
(2)

Plaintiff’s claims against Greg Abbott and Brad Livingston in their individual

capacities are dismissed for failure to state a claim and/or as frivolous because plaintiff failed
to establish personal involvement for purposes of § 1983 liability;
(3)

Plaintiff’s voluminous medical records, as well as the affidavit of PA Declet,

clearly rebut his allegations that he was poisoned by Garza Unit staff in violation of the
Eighth Amendment, and therefore, plaintiff’s § 1983 claims for damages against the named
defendants are dismissed with prejudice for failure to state a claim and/or as frivolous
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1);
(4)

Plaintiff’s retaliation claims are dismissed for failure to state a claim and/or as

frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); and
(5)

The dismissal of this case is a “strike” for frivolous filing as described by 28

U.S.C. § 1915(g), and the Clerk shall provide copies of this dismissal order to the plaintiff,
to the TDCJ–Office of the General Counsel, P.O. Box 13084, Austin, Texas, 78711, Fax

29

Number [phone], and to the District Clerk for the Eastern District of Texas, Tyler
Division, 211 West Ferguson, Tyler Texas, 75702, Attention: Betty Parker.
ORDERED this 4th day of June, 2013.

____________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

30