Davis v. Stephens et al

Filing 117

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 95 MOTION for Summary Judgment with Brief in Support, 107 Memorandum and Recommendations. Plaintiff's request for continuance is denied, Defendant's Motion for Summary Judgment is granted, and this action is Dismissed with Prejudice. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
KIRK DAVIS,
Plaintiff,
VS.
OWEN J MURRAY, et al,
Defendants.

January 22, 2016
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:14-CV-38
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Defendants’ Motion for Summary Judgment and
Plaintiff’s response. D.E. 95, 103. On September 14, 2015, United States Magistrate
Judge B. Janice Ellington issued a Memorandum and Recommendation (M&R) (D.E.
107), recommending that Defendants’ Motion for Summary Judgment be granted and
Plaintiff’s claims be dismissed with prejudice. Plaintiff filed his Objections (D.E. 112)
on September 28, 2015. Plaintiff’s objections are set out and discussed below.
Plaintiff’s first objection is that the Magistrate Judge should have considered a less
dramatic result than dismissal. D.E. 112, p. 1. Consideration of lesser alternatives is
appropriate when determining such things as sanctions for failure to comply with court
orders or the Federal Rules of Civil Procedure. See, e.g., Hornbuckle v. Arco Oil & Gas
Co., 732 F.2d 1233 (5th Cir. 1984). In contrast here, Defendants have raised qualified
immunity, which is a complete defense to Plaintiff’s claims. E.g., Durbin v. Doe, 72 F.
App'x. 49 (5th Cir. 2003). The concept of a lesser alternative does not apply to a
qualified immunity analysis. Plaintiff’s first objection is OVERRULED.
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Second, Plaintiff objects to the dismissal of his Eighth Amendment claim
regarding excessive heat because, he claims, the Magistrate Judge did not look at “some
of the evidence Plaintiff has submitted.” D.E. 112, p. 9. Specifically, Plaintiff asserts the
judge ignored the grievances he filed with the TDCJ, and seems to imply she would have
come to a different conclusion had she included them. The Court has reviewed the
evidence, including Plaintiff’s grievances.

The Court concludes that the Magistrate

Judge did not err, particularly given that Plaintiff did not complain of any heat-related
illness on the date of his injury (instead complaining of a slip and fall on water in the
bathroom) and only redirected his complaints to heat issues a year later. See D.E. 107,
pp. 15-16, 22. Plaintiff’s second objection is OVERRULED.
Third, Plaintiff objects that x-rays taken at the Polunsky Unit were not made part
of the record and that they offer proof of the injuries he sustained. D.E. 112, p. 3. The
Court has determined that the x-rays that Plaintiff describes were, in fact, included in the
records from the Diboll Unit that ordered that the x-rays be taken at the Polunsky Unit.
D.E. 97–1, p. 249. Those records do not support Plaintiff’s claim of an injury but only
showed “chronic degenerative changes with possible some muscle spasm.” D.E. 97–2, p.
9. Plaintiff’s third objection is OVERRULED.
Fourth, Plaintiff argues that his complaints against PA Mendez are actionable as
being based on conduct involving “independent medical judgment” in violation of
internal policy, professional medical guidelines, and Estelle v. Gamble, 429 U.S. 97
(1979). D.E. 112, p. 2. However, the failure to follow internal policy or professional
medical guidelines, without more, does not amount to a constitutional violation and is not
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actionable under 42 U.S.C. § 1983. See Myers v. Klevenhagen, 97 F.3d 91, 95 (5th Cir.
1996). And Estelle did not proscribe “independent medical judgment.” The test that
Plaintiff must meet is “deliberate indifference,” a level of misconduct that his allegations
do not meet. Estelle, 429 U.S. at 105. Plaintiff’s fourth objection is OVERRULED.
Fifth, Plaintiff claims the Magistrate Judge incorrectly applied absolute immunity
instead of qualified immunity. D.E. 112, p. 7. He further argues that qualified immunity
is “stopped” by Texas’ indemnification statutes.

Id.

Plaintiff is incorrect on both

accounts. The M&R is clearly based on qualified immunity. And the statutes on which
Plaintiff relies, Tex. Civ. Prac. & Rem. Code Ann. §§ 104.001–104.002, address a limited
to indemnification of employees of the state.

They do not constitute a waiver of

immunity, nor do they create a cause of action. See Perry v. Texas A&I Univ., 737
S.W.2d 106, 110 (Tex. App.—Corpus Christi 1987, writ ref'd n.r.e.), cited with approval
in City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994) (addressing related
issue). Plaintiff’s fifth objection is OVERRULED.
Sixth, Plaintiff makes a series of objections claiming Defendants have “an unfair
advantage over the plaintiff in all ways” and that he has been denied an opportunity to
develop his case due to his current incarceration and the disadvantage it has caused. D.E.
112, pp. 2, 6.

Among these disadvantages, Plaintiff complains that he is without

representation by outside counsel, is unable to pay for carbon paper or copies, and has not
received the “pertinent discovery to prove his case.” D.E. 112, p. 1. He further requests
the Court grant a continuance until he is released on parole in 2016 and able to hire an
attorney and obtain evidence to use at his trial. D.E. 112, p. 6.
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Plaintiff filed five motions for appointment of counsel. D.E. 8, 16, 59, 70, and 93.
The Magistrate Judge denied each, based upon applicable law, either because of the stage
of the proceedings or because Plaintiff failed to meet the factors outlined in Jackson v.
Dallas Police Department, 811 F.2d 209 (5th Cir. 1982). D.E. 9, 18, 60, 78, 94. Plaintiff
has failed to articulate any legal basis for finding that these decisions were incorrect.
Plaintiff filed four motions for copies. D.E. 19, 63, 75, 99. The Magistrate Judge granted
the first motion. D.E. 20. Thereafter, she denied the motions, acknowledging that he
could make his own copies at the TDCJ law library or could file legible hand-copied
exhibits. D.E. 44, 67, 80, 102. Plaintiff has, again, failed to articulate any legal error in
the Magistrate Judge’s determinations.
As for discovery, Defendants have provided initial disclosures and Plaintiff’s
medical records have been filed with the Court. D.E. 35. Defendants have addressed
evidence related to the issue of qualified immunity.

D.E. 79.

Nothing further is

appropriate at this stage of the case. See Anderson v. Creighton, 483 U.S. 635, 646 n.6
(1987) (one of the purposes of qualified immunity is to protect public officials from the
“broad-ranging discovery that can be peculiarly disruptive of effective government”).
Plaintiff has not stated what additional discovery he seeks or how it relates to the issue of
qualified immunity.

Plaintiff’s sixth objection as to procedural matters 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
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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, Plaintiff’s request for a continuance is
DENIED, Defendants’ Motion for Summary Judgment (D.E. 95) is GRANTED, and this
action is DISMISSED WITH PREJUDICE.
ORDERED this 22nd day of January, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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