Weaver v. Echevarry et al

Filing 37

ORDER ADOPTING IN PART and DENIES IN PART MEMORANDUM AND RECOMMENDATIONS re: 20 Memorandum and Recommendations; DENIES 14 Defendants Susanna Corbett and Irene Benavides Soliz's Motion to Dismiss, and DENIES 18 Defendant Erick Echavarry's Motion for Judgment on the Pleadings. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOSEPH F. WEAVER,
Plaintiff,
VS.
ERICK ECHEVARRY, et al,
Defendants.

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March 26, 2019
David J. Bradley, Clerk

CIVIL NO. 2:17-CV-388

ORDER
Before the Court is Defendants Susanna Corbett (Corbett) and Irene
Benavides Soliz’s (“Soliz” or “Cussins”)1 Motion to Dismiss, Dkt. No. 14; Plaintiff
Joseph F. Weaver’s (“Weaver”) Answer to Defendants Susanna Corbett and Irene B.
Cussins’ Motion to Dismiss, Dkt. No. 16; Defendant Erick Echavarry’s (“Echavarry”)
Motion for Judgment on the Pleadings, Dkt. No. 18; Weaver’s Memorandum in
Response to Defendant’s Motion for Judgment on the Pleadings, Dkt. No. 19; the
July 19, 2018, Memorandum and Recommendation (“M&R”) of the Magistrate
Judge to whom this case was referred, Dkt. No. 20; and Petitioner’s objections to the
M&R, Dkt. No. 24.
I. Weaver’s Objections
The Court reviews objected-to portions of the Magistrate Judge’s proposed
findings and recommendations de novo. 28 U.S.C. § 636(b)(1).

In regard to

Defendant Echavarry, the M&R’s recommendation is that the Court should grant
Echavarry’s Motion for Judgment on the Pleadings. Dkt. No. 20. The M&R reads
as follows:
In his complaint, Plaintiff asserts that Defendant Echavarry is a midlevel medical provider who, on January 7, 2016, removed Plaintiff’s cast and
replaced it. He also told Plaintiff that he would have a surgery appointment
the following week, but plaintiff was never called for the appointment (D.E. 1
1

Irene Cussins’ name has changed to Irene Benavides Soliz, Dkt. No. 14 n.1. However, because she is referred to as
“Cussins” in the documents related to the case, she will continue to be referred to as “Cussins” to avoid confusion.

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at ¶17). Plaintiff makes no other allegations against Echavarry. In his Step
1 Grievance, Plaintiff stated that Echavarry rewrapped his wrist which made
his fingers turn blue (Ex. J to Compl., D.E. 1 at p. 11). In response to the
motion to dismiss, Plaintiff makes the conclusory allegation that Echavarry
and the other defendants failed to provide adequate medical care because
they unnecessarily delayed treatment of his serious medical condition, but he
does not make additional factual allegations against Echavarry.
Plaintiff has failed to allege facts that connect Echavarry to his
complaints of delayed medical treatment. He alleges that Echavarry provided
some medical care to him, albeit in a way that he claims caused him
additional pain. He also alleges that Echavarry told him a surgery
appointment was scheduled but that he was never called for it. These facts
do not state a claim for deliberate indifference based on failure to provide
medical care, or causing a delay in receipt of medical care. Accordingly, it is
recommended that Plaintiff’s claims against Echavarry be dismissed under
Federal Rule of Civil Procedure 12(c).
Dkt. No. 20 at 15-16.
Weaver objects to the M&R, stating that
This is not a disagreement about recommended medical treatment
which generally is not sufficient to show Deliberate indifference, but the
denial of recommended medical treatment, which “is often sufficient to show
Deliberate indifference.” See; Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir.
2018).
Plaintiff in his response to Echavarry’s 12 (c) motion explained and
showed that the necessary treatment was determined and recommended by
an emergency doctor who reviewed the X-ray of Plaintiff’s shattered wrist.
Echevarry denied this treatment not just delayed it.
Dkt. No. 24 at 2.
Weaver alleges that he fell on December 26, 2015, while working in the
kitchen, injuring his right hand. Dkt. No. 1. He was then taken to a local hospital
in Beeville where an ex-ray showed a shattered right wrist. Id. His hand was
placed in a temporary cast, and he was scheduled for surgery the following week
which the hospital later cancelled due to the holidays. Id. Weaver claims that he
was not treated or taken to the hospital again until 76 days later during which time
his hand healed improperly on its own. Id. On January 7, 2016 Echavarry saw
Weaver to remove the temporary cast and re-dress it. Id. It was at that time that

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he indicated that Weaver was scheduled for surgery the following week although
Weaver was not called. Id.
Weaver states in his objections that Echavarry “failed to complete his
responsibility to ensure that Plaintiff [would] be transported to the hospital,”
thereby denying him his medical care. Dkt. No. 24. Weaver alleges that Echavarry
failed to notify the TDCJ Administration of the date and time of the scheduled
surgery and then failed to ensure that Weaver “left the unit . . . en-route to the
hospital.” Id. Echavarry’s failure to ensure that the proper measures were taken
on Weaver’s behalf resulted in a 76-day delay in medical treatment. Id. This left
Weaver with a right hand that was “partially crippled, deformed, [and] with limited
use.” Id.
This Court agrees that the facts as plead sufficiently connect Echavarry to
Weaver’s complaints of deliberate indifference and that such indifference possibly
resulted in substantial harm.

After independently reviewing the record and

considering the applicable law, the Court ADOPTS the M&R in part and denies it
in part, Dkt. No. 20. The Court hereby DENIES Defendants Susanna Corbett and
Irene Benavides Soliz’s Motion to Dismiss, Dkt. No. 14, and DENIES Defendant
Erick Echavarry’s Motion for Judgment on the Pleadings, Dkt. No. 18.
SIGNED this 26th day of March 2019.

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Hilda Tagle
Senior United States District Judge

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