Wilson v. McGinnis et al

Filing 59

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 56 Memorandum and Recommendations, granting 50 MOTION for Summary Judgment . Certificate of Appealability is DENIED. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLIAM M. WILSON,
Plaintiff,
VS.
FRANCES E. MCGINNIS, et al,
Defendants.

§
§
§
§ CIVIL ACTION NO. 2:13-CV-204
§
§
§
§

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Plaintiff William M. Wilson’s § 1983 complaint.
D.E. 1. On July 14, 2014, United States Magistrate Judge Janice Ellington issued her
Memorandum and Recommendation (M&R) recommending that Plaintiff’s claims be
dismissed. D.E. 56. Plaintiff timely filed his objections on July 28, 2014. D.E. 58; D.E.
58-7. Plaintiff’s objections are set out and discussed below.
First, Plaintiff alleges that the M&R failed to address his allegation that
Defendants were deliberately indifferent to his health and safety by continuing to house
him on an upper bunk bed after becoming aware that it posed an unreasonable risk to his
health. D.E. 58, p. 2. Plaintiff insists that the Magistrate Judge “seems to have lost sight
of his original claim and all [its] elements by reducing his claim to a single issue (quality
and care).” Id. Ultimately, the sum and substance of Plaintiff’s argument is that he
disagreed with the medical treatment that he received.

1/5

As the Magistrate Judge discussed, the Plaintiff must show that Defendants were
not only aware of his serious medical need1 but that they also deliberately failed to act.
D.E. 56, p. 18. In order to meet this threshold, 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.” Domino v. Tex. Dept. of Criminal Justice, 239 F.3d 752, 755
(5th Cir. 2001) (citation and internal quotation omitted).
The Magistrate Judge properly addressed the issue of whether Defendants acted
with deliberate indifference toward Plaintiff’s serious medical needs.

First, the

Magistrate Judge found that Plaintiff’s condition constituted a serious medical need.
Second, in addressing the lack of deliberate indifference, the Magistrate Judge observed
that Defendants took Plaintiff’s complaints seriously and treated his condition through
both medication and counseling. D.E. 56, p. 22-23.
The record indicates that Plaintiff was seen by Defendant Nurse Frances E.
McGinnis on nine occasions from December of 2010 through March of 2013, and she
reviewed his conditions, provided medication adjustments and counseling, ordered lab
work, or encouraged him to seek medical assistance when necessary each time they met.
D.E. 56, pp. 5-12; See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (“[T]he
decision whether to provide additional treatment is a classic example of a matter for
medical judgment.” (internal quotations and citation omitted)). The record also indicates
1

“A serious medical need is one for which treatment has been recommended or for which the need is so apparent
that even laymen would recognize that care is required.” Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006)
(citing Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir. 1994)).

2/5

that Plaintiff was seen by Defendant Dr. Theresa Whitt on three occasions, evaluating
Plaintiff’s condition each time and ultimately putting him on medication that helped stop
his sleepwalking disorder. D.E. 56, pp. 11-14.
Plaintiff alleges that Defendants were deliberately indifferent because they failed
to address his sleepwalking episodes with the relief that he preferred—an assignment to a
lower bunk bed. The case law is clear that a disagreement between an inmate and his
physician as to whether his medical care was appropriate is not actionable unless there
were exceptional circumstances. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.
1995) (citing Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)). Moreover,
negligent care does not constitute deliberate indifference. E.g., Stewart v. Murphy, 174
F.3d 530, 534 (5th Cir. 1999).
Thus, because Defendants provided medical attention to the Plaintiff, this Court
finds no error in the Magistrate Judge’s conclusion.

Accordingly, Plaintiff’s first

objection is OVERRULED.
Second, Plaintiff argues that the M&R relied on evidence submitted by the
Defendants that was “fraudulent, inaccurate and a blatant misrepresentation of the facts
of this case.” D.E. 58, p. 4. Plaintiff bases his argument on a July 26, 2011 psychiatric
evaluation by Nurse McGinnis and her intake report stating her observations of the
Plaintiff, her assessment that he fell from his bunk bed, and her plan to issue a lower
bunk bed pass. D.E. 58, pp. 5-6; D.E. 56, p. 7-8. As Plaintiff correctly points out, Nurse
McGinnis’ report includes her notes as well as a verbatim entry from Dr. Herrera’s intake
report from December 27, 2010. D.E. 51-2, p. 4, D.E. 58-5, p. 2. The Magistrate Judge
3/5

interpreted Dr. Herrera’s notes, diagnosis, and treatment as those of Nurse McGinnis. As
a result, the M&R was incorrect in stating that Nurse McGinnis issued Plaintiff a lower
bunk pass on July 26, 2011. In pointing out this fact, however, Plaintiff does not explain
how it calls into question the ultimate conclusion that Nurse McGinnis was not acting
with deliberate indifference toward his serious medical needs. In fact, Plaintiff admits
that he visited with Nurse McGinnis on that day and that she was responsive to his recent
nightmares by adjusting his medication. D.E. 58, pp. 5; D.E. 51-2, pp. 3-8. Thus,
Plaintiff’s objection that the Magistrate Judge attributed a different doctor’s actions to
Nurse McGinnis has no material effect on the M&R’s conclusion. Plaintiff’s second
objection is OVERRULED.
Finally, Plaintiff objects to the M&R’s use of Defendants’ expert witness, Dr.
Steven Bowers, because his affidavit misinterpreted certain details in the record. D.E. 58,
pp. 7-8. Dr. Bowers’ review of the record in its entirety led to his conclusion that the
medical treatment provided by Defendants “was both appropriate and performed within
the standard of care.” D.E. 51-1, p. 5. Plaintiff has failed to demonstrate how the details
he complains of materially affect Dr. Bowers’ opinion. The Court finds that Plaintiff
received sufficient care to defeat his § 1983 claim despite the objections raised.
Therefore, Plaintiff’s objection does not require rejection of the M&R’s conclusion.
Plaintiff’s third objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R, as well as Plaintiff’s objections, and all other
relevant documents in the record, and having made a de novo disposition of the portions
4/5

of the Magistrate Judge’s M&R to which objections were specifically directed, this Court
OVERRULES Plaintiff’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge as modified above.

Accordingly, Defendants’

Motion for Summary Judgment (D.E. 50) is GRANTED and this action is DISMISSED.
In the event that Plaintiff seeks a Certificate of Appealability, the request is DENIED.
ORDERED this 10th day of November, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

5/5