Oakley v. Hudson

Filing 20

OPINION AND ORDER DISMISSING CERTAIN CLAIMS AND RETAINING CASE. Plaintiff's Eighth Amendment claim alleging deliberate indifference to his serious medical needs against defendant N.P. Lori Hudson in her individual capacity is retained, and service shall be ordered. Plaintiff's remaining claims against the remaining defendants are dismissed for failure to state a claim and/or as frivolous.(Signed by Magistrate Judge B. Janice Ellington) Parties notified.(mserpa, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JIMMY HORACE OAKLEY,
Plaintiff,
VS.
L. HUDSON,
Defendant.

§
§
§
§ CIVIL ACTION NO. 2:13-CV-102
§
§
§
§

OPINION AND ORDER DISMISSING CERTAIN CLAIMS
AND RETAINING CASE
This civil rights action was filed by a state prisoner pursuant to 42 U.S.C.
§ 1983.
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). 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, plaintiff’s Eighth Amendment claim alleging deliberate
indifference to his serious medical needs against Nurse Practitioner (“N.P.”) Lori Hudson
is retained, and service shall be ordered on this defendant in her individual capacity.
Plaintiff’s remaining claims against the remaining defendants 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).
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, this case was referred to the
undersigned United States magistrate judge to conduct all further proceedings, including
entry of final judgment. See 28 U.S.C. § 636(c).
II. FACTUAL ALLEGATIONS
Plaintiff is an inmate in the Texas Department of Criminal Justice, Criminal
Institutions Division (“TDCJ-CID”), and is currently incarcerated at the Polunsky Unit in
Livingston, Texas, although his complaint concerns events that occurred while he was
housed at both the Connally Unit in Kenedy, Texas, and the McConnell Unit in Beeville,
Texas. In particular, plaintiff claims that on March 25, 2011, while at the Connally Unit,
he was assaulted by another offender, LaDaryl Waddleton,1 who broke plaintiff’s jaw.
Plaintiff claims that the Connally Unit warden, Kenneth Bright, failed to protect him

1

In his amended complaint, D.E. 12, plaintiff identifies Offender Waddleton as a defendant.
(D.E. 12 at 3). However, as explained to plaintiff, Offender Waddleton is a private individual
and is not a “state actor” for purposes of § 1983 liability. To the extent plaintiff intended to
name Waddleton as a defendant, all claims against him are dismissed.

2 / 15

from the assault because he failed to ensure that the correctional officers maintained
proper security watches. He claims that Officer John Doe #1 was also deliberately
indifferent to his health and safety because this officer was the rover responsible for
patrolling D-space, but he “disappeared” and was not doing his job on the day of the
assault.
Plaintiff underwent surgery for his broken jaw at Hospital Galveston. Plaintiff
claims his oral surgeons, Dr. Kenneth David Haynes and Dr. John Doe #2, a supervising
physician, were deliberately indifferent to his serious medical needs because they failed
to ensure that he attend his follow-up visits, resulting in an infection, complications, and
ultimately requiring plaintiff to undergo a second jaw surgery. Finally, he is suing N.P.
Hudson alleging deliberate indifferent to his serious medical needs because she failed to
provide him with the dental necessities, including wax, toothpaste, and a toothbrush,
following the surgery, and failed to have him transported to Hospital Galveston for his
first post-surgery appointment.2
A Spears2 hearing was held on March 28, 2013. The following allegations were
made in plaintiff’s original complaint (D.E. 1), amended complaint (D.E. 12),
supplemental complaint (D.E. 16), or at the hearing:

2

Plaintiff testified that defendant Hudson is the “medical provider” at the McConnell Unit, and
he believes she is a doctor. Based on previous prisoner lawsuits, it is believed that Ms. Hudson
is a nurse practitioner. If necessary, Ms. Hudson can clarify her position in her answer.
2
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th
Cir. 1996) (stating that testimony given at a Spears hearing is incorporated into the pleadings).

3 / 15

On March 25, 2011 at 6:55 p.m., Offender Waddleton assaulted plaintiff in Dspace, breaking plaintiff’s jaw. No officers were present in D-space at the time of the
assault, although Officer John Doe #1 was scheduled to be the rover there at that time.
Prior to the assault, plaintiff had written I-60s to Warden Bright and other Connally Unit
officials complaining that the security staff were not doing their jobs properly and that
inmate-on-inmate violence was rampant at the Connally Unit; however, Warden Bright
did not respond to plaintiff’s I-60 and the unit remained unreasonably dangerous.
Although plaintiff had problems with Offender Waddleton prior to the assault, he never
told a Connally Unit official because he believed “snitching” would do him more harm
than good.
Following the March 25, 2011 assault, plaintiff was taken to Hospital Galveston
for his injuries, and on March 27, 2011, plaintiff was seen by Dr. Haynes, a dentist and
oral surgeon. Dr. Haynes told plaintiff that he would need surgery to realign his jaw, and
that following the surgery, he should be housed by himself until his jaw healed.
On March 29, 2011, plaintiff underwent jaw surgery, and his jaws were wired
shut.
On April 4, 2011, plaintiff was released from Hospital Galveston and transported
to the McConnell Unit for recovery.3 Plaintiff was prescribed a 10-day course of
antibiotics upon his discharge.

3

The McConnell Unit is the designated unit for providing 24-hr care for jaw surgery patients.
(D.E. 16 at 5).

4 / 15

Plaintiff was scheduled to return to Hospital Galveston on April 11, 2011 for
follow-up after his jaw surgery. At the McConnell Unit, N.P. Hudson was responsible
for providing dental necessities and scheduling follow-up appointments to Hospital
Galveston. N.P. Hudson failed to arrange for plaintiff to attend his April 11, 2011
follow-up appointment, and as a consequence, he missed it. In addition, plaintiff had no
wax, tooth brush, or tooth powder for his oral hygiene needs.
By the third week following his jaw surgery, it was obvious that plaintiff had an
infection in his jaw; the gums had swelled and pulled away from the teeth and bone.
Plaintiff submitted a sick call request (“SCR”) to medical, but received no reply.
On April 22, 2011, Nurse Sammy Gregory noticed the condition of plaintiff’s
mouth and indicated that plaintiff needed medical attention. Nurse Gregory was unable to
make an appointment with N.P. Hudson, but he did secure plaintiff an appointment with
the unit dentist.
On April 26, 2011, plaintiff was seen by the McConnell Unit dentist for the
infection in his mouth. The dentist prescribed a second course of antibiotics. He noted
that plaintiff should have received a toothbrush, tooth powder, dental floss, and wax
when he arrived at the McConnell Unit. Plaintiff claimed that he had been asking N.P.
Hudson for dental necessities every day.
On May 2, 2011, N.P. Hudson called plaintiff in for an examination. She
observed that plaintiff’s gums were swollen and bleeding, and concluded that he needed
to be seen by the doctors at Hospital Galveston. However, upon checking plaintiff’s file,
N.P. Hudson discovered that plaintiff was already scheduled for an appointment on May
5 / 15

9, 2011 to have the jaw wires cut, and therefore, no other appointment was necessary.
N.P. Hudson gave plaintiff gauze for his mouth.
On May 9, 2011, plaintiff was seen at Hospital Galveston by Dr. Haynes, Dr. John
Doe #2, and Dr. Thoreson. Plaintiff’s gums were inflamed, infected and bleeding, but
Dr. Haynes did not look at plaintiff’s gums or listen to his complaints, stating that he
could not see into plaintiff’s mouth, and therefore, he would not try. Dr. Haynes turned
plaintiff over to Dr. Thoreson who cut the jaw wires at that time. Plaintiff was scheduled
to return to Hospital Galveston on May 16, 2011 for removal of the wires. Plaintiff was
returned to the McConnell Unit.
On May 10, 2011, Nurse Gregory noted that plaintiff’s mouth infection had gotten
worse, and he arranged for plaintiff to be seen by the unit dentist again. The unit dentist
prescribed a third round of antibiotics and told plaintiff that he was limited in what he
could do because plaintiff was under the primary care of Dr. Haynes. He told plaintiff
that when he saw Dr. Haynes again on May 16, 2011, he should ask Dr. Haynes to lance
and drain the gum infection.
On May 16, 2011, plaintiff returned to Hospital Galveston to have the wires
removed from his jaw. After the wires were removed, Dr. Pampalon, a resident, stated
that the infection would need to be biopsied. Dr. Pampalon believed that the infection
had come from the hardware at the fracture site. Plaintiff’s gums were biopsied.
Following his May 16, 2011 appointment at Hospital Galveston, plaintiff was
supposed to be returned to the McConnell Unit; however, he was sent to the Darrington
Unit in error. There, plaintiff did not have a special diet and his dental block fell out.
6 / 15

On May 26, 2011, the Darrington Unit doctor noted that plaintiff’s gums were still
infected and that bone was exposed. Eventually, plaintiff was sent back to Hospital
Galveston in June 2011, where it was determined that certain teeth, bone, and tissue
would need to be extracted and removed via surgery.
On June 24, 2011, plaintiff underwent a second surgery performed by Dr. Haynes
and Dr. John Doe #2. He was prescribed antibiotics and pain medication, and returned to
the McConnell Unit.
On July 1, 2011, plaintiff was seen by N.P. Hudson. Plaintiff complained that he
was not getting his antibiotics, and she responded that plaintiff was incorrect about the
discharge orders. However, upon his persistence, N.P. Hudson consulted the discharge
orders and determined that plaintiff was correct. Although N.P. Hudson apologized,
plaintiff had gone one week without the antibiotic following the second surgery, and the
infection had reoccurred.
On August 22, 2011, the wiring from the second surgery was removed. Plaintiff
complained that his jaw was not aligned properly. Dr. Haynes stated that it was the
swelling and would improve over time.
On August 24, 2011, plaintiff submitted an I-60 complaining about the alignment
of his jaw, and also noting that he had no feeling in his right lip and chin. He never
received a response to the I-60 before he was transferred back to the Connally Unit.
Through this action, plaintiff seeks declaratory and injunctive relief, and damages
for his pain and suffering and personal injuries.

7 / 15

III. DISCUSSION
A.

Legal Standard.
Plaintiff’s action may be dismissed for failure to state a claim upon which relief

can be granted despite his failure to exhaust administrative remedies. 42 U.S.C.
§ 1997e(c)(2). The Supreme Court has held that “[t]o 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) (citations
omitted); accord Biliski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995) (per curiam). 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. Scott, 276
F.3d 736, 740 (5th Cir. 2002) (citation omitted). The complaint must be liberally
construed in favor of the prisoner and the truth of all pleaded facts must be assumed. Id.
B.

Official capacity claims.
Because plaintiff did not specify, it is assumed that he is suing the individual

defendants in both their individual and official capacities. To the extent he is suing these
individual state employees for damages in their official capacities, those claims are
against the state itself, and are barred by the Eleventh Amendment. See Oliver v. Scott,
276 F.3d 736, 742 (5th Cir. 2002) (“[T]he Eleventh Amendment bars recovering § 1983
money damages from [state] officers in their official capacities.”). Thus, it is respectfully
recommended that plaintiff’s claims for monetary damages against all named defendants
be dismissed as barred by the Eleventh Amendment.
8 / 15

C.

Analysis of alleged constitutional violations.
1.

Failure to protect.

Plaintiff claims that Warden Bright and Officer John Doe #1 violated his Eighth
Amendment right to be free from cruel and unusual punishment by failing to protect him
from the assault by Offender Waddleton.
Prison officials have a duty to protect prisoners from violence at the hand of other
prisoners. Cantu v. Jones, 293 F.3d 839, 844 (5th Cir. 2002) (citing Farmer v. Brennan,
511 U.S. 825, 832 (1994)). A prison official is deliberately indifferent to the inmate’s
safety if the official knows that the inmate faces a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it. Cantu, 293 F.3d at
844 (citing Farmer, 511 at 847). Deliberate indifference describes a state of mind “more
blameworthy than negligence;” there must be “more than ordinary lack of due care for
the prisoner’s interests or safety.” Farmer, 511 U.S. at 835.
At the hearing, plaintiff testified that Warden Bright failed to make sure that the
correctional officers were doing their jobs, and therefore, as the head of the Connally
Unit, he was ultimately responsible for plaintiff being attacked. However, 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).
In addition, it is well established that a § 1983 plaintiff cannot obtain damages or
injunctive relief from a policy-maker or supervisor solely on a theory of respondeat
superior. Beattie v. Madison County School Dist., 254 F.3d 595, 600 n.2 (5th Cir. 1983)
9 / 15

(citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)).
“[S]upervisory officials are not liable for the actions of subordinates on any theory of
vicarious liability.” Thompson v. Upshur County, 245 F.3d 447, 459 (5th Cir. 2001)
(quoting Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). “[Section] 1983 does not
give a cause of action based on the conduct of subordinates. Personal involvement is an
essential element of a civil rights cause of action.” Thompson v. Steele, 709 F.2d 381,
382 (5th Cir.), cert. denied, 464 U.S. 897 (1983). A supervisor who is not personally
involved is liable under the theory of “supervisory liability” only if he has implemented
“a policy so deficient that the policy itself is a repudiation of constitutional rights and is
the moving force of the constitutional violation.” Thompkins, 828 F.2d at 304.
“Supervisory officials may be held liable only if: (i) they affirmatively participate in acts
that cause constitutional deprivation; or (ii) implement unconstitutional policies that
causally result in plaintiff’s injuries.” Mouille v. City of Live Oak, Tex., 977 F.2d 924,
929 (5th Cir. 1992).
Plaintiff offers no facts to suggest that Warden Bright had any personal knowledge
that plaintiff was at a risk of harm to be attacked by Offender Waddleton, or that he
implemented any unconstitutional policy. The fact that plaintiff might have directed an I60 complaint to Warden Bright complaining that the security officers were “not doing
their jobs” does not equate with Warden Bright being personally involved in a
constitutional violation. Indeed, the Fifth Circuit has held that, given the size of the
TDCJ and the operations that wardens oversee, they cannot be expected to intervene
personally in response to every inmate complaint or letter they receive. Johnson v.
10 / 15

Johnson, 385 F.3d 503, 526 (5th Cir. 2004). In addition, a prisoner has no constitutional
right to a response to a grievance. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005)
(prisoners do not have a federally protected liberty interest in having grievances
investigated or resolved). Thus, plaintiff fails to state a cognizable constitutional claim
against Warden Bright, and his claims against this defendant are dismissed.
Plaintiff argues that Officer John Doe #1 violated his constitutional rights because
he was not patrolling the D-space at the time of the assault as he should have been.
However, plaintiff admitted that he did not tell any official that he was having problems
with Offender Waddleton, or provide any information by which Officer John Doe #1
could have or should have known that plaintiff’s was at a greater risk of harm, and then
intentionally ignored that risk. Prisons are inherently dangerous places, and plaintiff’s
allegations do not suggest that he was exposed to conditions considerably more
dangerous than those in normal prison life. Farmer, 511 U.S. at 844 (prison officials who
respond reasonably to a risk, even if the harm is not ultimately averted, cannot be found
liable under the Eighth Amendment). Indeed, prison officials are not expected to prevent
all inmate-on-inmate violence. Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003).
Taking plaintiff’s allegations as true, he fails to establish that Officer John Doe #1 was
deliberately indifferent to his health and safety, and his claims against this defendant are
dismissed.
2.

Deliberate indifference to serious medical needs.

Plaintiff contends that N.P. Hudson, Dr. Haynes, and Dr. John Doe #1 were
deliberately indifferent to his serious medical needs.
11 / 15

Deliberate indifference to a prisoner’s serious illness or injury states a cause of
action under § 1983.” Estelle v. Gamble, 429 U.S. 97, 105 (1976). “Deliberate
indifference describes a state of mind more blameworthy than negligence;” there must be
“more than ordinary lack of due care for the prisoner’s interests or safety.” Farmer, 511
U.S. at 835 (1994) (construing Estelle, 429 U.S. at 104). To establish an Eighth
Amendment violation, an inmate must show that a prison official “act[ed] with deliberate
indifference [and] exposed a prisoner to a sufficiently substantial risk of serious damage
to his future health.” Id. at 37.
A mere disagreement with the level and type of treatment is not actionable under
the Eighth Amendment. Estelle, 429 U.S. at 107; Norton v. Dimazana, 122 F.3d 286,
292 (5th Cir. 1997); Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Young v.
Gray, 560 F.2d 201 (5th Cir. 1977). An incorrect diagnosis does not state an Eighth
Amendment claim because the deliberate indifference standard has not been met.
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). A
“plaintiff must show that the officials 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.” Id. (quoting Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985)). Delay in treatment may be actionable under
§ 1983 only if there has been deliberate indifference and the delay results in substantial
harm. Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999); Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993). An inmate displaying diabetic symptoms conveys a

12 / 15

serious medical need, and a defendant’s failure to respond to that need may constitute
deliberate indifference. Gobert v. Caldwell, 463 F.3d 399, 345 n. 12 (5th Cir. 2006).
Taking plaintiff’s allegations as true, plaintiff has alleged sufficient facts for

purposes of §1915A screening to state a claim against N.P. Hudson. Plaintiff testified
that N.P. Hudson was personally in charge of scheduling and ensuring follow-up visits to
Hospital Galveston following surgery, and also, for providing the basic oral hygiene
products to patients after having jaw surgery. Indeed, plaintiff testified that the
McConnell Unit is the designated unit for inmates recovering from jaw surgery, and
therefore, the importance of post-op care would be paramount. Plaintiff claims that he
requested dental necessities daily, and also requested to see N.P. Hudson, but received no
reply. Even Nurse Gregory was unsuccessful in getting plaintiff an appointment with
N.P. Hudson, although he was able to get plaintiff an appointment with the unit dentist,
who prescribed antibiotics. Here, the failure of N.P. Hudson to arrange for plaintiff’s
transportation back to Hospital Galveston, combined with the lack of attention to his
needs and complaints, suggests that she was aware of his serious medical needs but
ignored them. Thus, plaintiff’s claims against N.P. Hudson will be retained, and service
ordered on this defendant in her individual capacity.
Plaintiff’s claims against his oral surgeons do not meet the standard of deliberate
indifference. “Facts underlying a claim of deliberate indifference must clearly evince the
medical need in question and the alleged official dereliction.” Johnson v. Treon, 759 at
1238. The legal conclusion of deliberate indifference “must rest on facts clearly evincing
‘wanton’ actions on the part of the defendants.” Id. The Supreme Court has described
13 / 15

“wanton” actions as those causing the unnecessary infliction of pain. Erickson v. Pardus,
551 U.S. 89, 90 (2007) (per curiam) (citation omitted). As Hospital Galveston
physicians, neither Dr. Haynes nor Dr. John Doe #1 had the responsibility or the
authority to ensure that plaintiff returned for his follow-up visits timely, or even at all.
Unlike P.A. Hudson, they were not responsible for his post-op care and had no
opportunity to observe him on a day-by-day basis nor receive his complaints. Although
plaintiff objects to the quality of care he received on May 9, 2011 when the wires were
cut, the mere fact that Dr. Haynes stated that he could not look in plaintiff’s mouth at that
time is no more than a mere disagreement with the course of treatment, which is not
actionable. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991) (merely alleging that a
prison doctor should have undertaken additional diagnostic measures or utilized an
alternative method of treatment does not elevate a claim to a constitutional dimension).
Indeed, Dr. Haynes and Dr. John Doe #1 could have surmised that plaintiff was on a
second round of antibiotics and that, even if he had an infection, the antibiotics would be
sufficient. There is no evidence that Dr. Haynes or Dr. John Doe #1 refused to treat
plaintiff, and indeed, plaintiff received the care he was scheduled to receive that day as
the wires were cut. At most, plaintiff’s allegations state a claim for negligence, which is
not actionable. Mendoza, 989 F.2d at 195.
IV.

CONCLUSION

For the reasons stated herein, plaintiff’s Eighth Amendment claim alleging
deliberate indifference to his serious medical needs against defendant N.P. Lori Hudson
in her individual capacity is retained, and service shall be ordered. Plaintiff’s remaining
14 / 15

claims against the remaining defendants are dismissed for failure to state a claim and/or
as frivolous.
ORDERED this 11th day of July, 2013.

___________________________________
B. JANICE ELLINGTON
UNITED STATES MAGISTRATE JUDGE

15 / 15