Thomas v. Sanchez et al
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 17 Memorandum and Recommendation. This action is DISMISSED in its entirety. Copy of this order was emailed to Three Strikes. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(fcarbia, 2)
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 1 of 9
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JERRY SANCHEZ, et al.,
November 17, 2022
Nathan Ochsner, Clerk
CIVIL ACTION NO. 2:22-CV-00129
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Plaintiff’s Complaint (D.E. 1, 16) for initial screening
pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. §
On August 18, 2022, United States Magistrate Julie K. Hampton issued a
Memorandum and Recommendation (M&R, D.E. 17), recommending that Plaintiff’s
action be dismissed and counted as a strike. Plaintiff timely filed his objections (D.E. 22,
23), each of which is addressed below.
First, Plaintiff objects that the Magistrate Judge failed to consider his need for
mental health counseling as a serious medical need that triggers Eighth Amendment
liability. D.E. 22, p. 3 (referencing Estelle v. Gamble, 429 U.S. 97 (1976)). Plaintiff is
mistaken. The M&R does not treat mental heath issues as any different from medical
issues. Rather, the M&R’s reasoning is that, whether it is a medical or mental health need,
liability for deliberate indifference cannot be shown on the basis of a disagreement
regarding the nature of treatment. Defendants sought to treat Plaintiff’s mental illness with
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 2 of 9
medication, which Plaintiff refused. Nothing in the law allows an inmate to dictate the
type of treatment he receives for his malady by simply refusing all other alternatives. Such
a course of conduct does not demonstrate deliberate indifference of the prison’s medical or
mental health care personnel. The first objection is OVERRULED.
Second, Plaintiff objects that requiring him to ingest medications for his illness
subjects him to side effects that amount to cruel and unusual punishment. D.E. 22, p. 4
(citing Rogers v. Evans, 792 F.2d 1052, 1055 (11th Cir. 1986)). In Rogers, the inmate’s
parents and lawyer objected to certain medications being involuntarily administered, due
to their belief that the medications were accompanied by toxic side effects, some of which
were observed in the inmate’s response to treatment. Because of those objections, the
health care professional discontinued that treatment and switched to placebos, leaving the
underlying mental health condition untreated. The inmate’s condition rapidly deteriorated,
resulting in her death. While the Eleventh Circuit considered that situation to raise a
question of fact on deliberate indifference, that is not the situation here.
Plaintiff’s argument—that being forced to endure toxic side effects is cruel and
unusual punishment—has no application here because he is not being forced to take the
medications. His refusal of medication is being honored. So he is not being forced to
endure cruel and unusual punishment via medication side effects. Plaintiff’s second
objection is OVERRULED.
Third, Plaintiff complains that, as a result of the stand-off regarding medication,
Defendants are not treating him at all, claiming that this failure to treat is an Eighth
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 3 of 9
Amendment violation, citing Rogers and Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.
2005). D.E. 22, pp. 4-6. In contrast to the inmates in Rogers and Greeno, Plaintiff has not
alleged that his condition is deteriorating in such a way as to require treatment to avoid a
substantial risk of serious harm. Plaintiff’s third objection is OVERRULED.
Fourth, Plaintiff objects that the M&R concludes that any offer of treatment,
however ineffective, eliminates a claim for deliberate indifference. D.E. 22, p. 6. That is
not what the M&R states nor is it the import of the ruling. Rather, the claimant must plead
deliberate indifference to a substantial risk of serious harm. Because Plaintiff’s claim
combines evidence of some effort to treat the complaint and no suggestion of a substantial
risk of serious harm, the pleading is insufficient to make Defendants’ actions violative of
the Eighth Amendment. Plaintiff has not pled that the suggested medication is ineffective
or that he does, in fact, suffer side-effects that contra-indicate prescription of the
medication. Neither has he pled, on the other hand, that counseling and psychotherapy is
effective for his complaints. He merely alleges that he deems one better than the other.
This does not demonstrate deliberate indifference on the part of medical professionals.
Plaintiff’s fourth objection is OVERRULED.
Fifth, Plaintiff objects that Defendant Rea engaged in a consistent pattern of reckless
and/or negligent conduct that, because of its repetition, amounts to deliberate indifference.
D.E. 22, p. 7. As noted in the M&R and the discussion above, Plaintiff’s complaints
regarding Defendants’ response to his mental health condition involves deliberate
indifference. Characterizing the conduct complained of as a consistent pattern adds
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 4 of 9
nothing to the analysis in this case. There is no denial that Plaintiff suffers from mental
heath issues. There can be no dispute that Defendants sought to treat that condition with
medication that Plaintiff refused. The fact that they consistently recommend that he take
medication that they believe will address his condition and provide more benefit than
detriment is the opposite of deliberate indifference.
Plaintiff’s fifth objection is
Sixth, Plaintiff objects to the recommended dismissal of his claims against Dr.
Kwarteng, arguing that he has supervisory responsibility for personnel and policies
involved in mental health care and should have better trained his subordinates. D.E. 22, p.
8. He characterizes his objection as a “disagreement” with the M&R and he reiterates his
position on the issues. But he has failed to point out with particularity any legal or factual
error in the Magistrate Judge’s analysis. This is not a sufficient objection. Fed. R. Civ. P.
72(b)(2); Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003); Edmond v. Collins, 8
F.3d 290, 293 n.7 (5th Cir. 1993). It is OVERRULED.
Seventh, Plaintiff objects that the failure to provide counseling and psychotherapy
is a matter of understaffing that exhibits deliberate indifference. D.E. 22, pp. 10 (as to Dr.
Kwarteng), 14 (as to Warden Sanchez). Nowhere in Plaintiff’s amended complaint (D.E.
5) or Spear’s hearing testimony (D.E. 16), did Plaintiff complain of understaffing of mental
health resources. Generally, a claim raised for the first time in objections to an M&R is
not properly before the district court and therefore is waived. United States v. Armstrong,
951 F.2d 626, 630 (5th Cir. 1992); see also, e.g., Place v. Thomas, No. 2-40923, 2003 WL
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 5 of 9
342287, at *1 (5th Cir. Jan. 29, 2003) (per curiam).
The seventh objection is
Eighth, Plaintiff objects to the characterization of his position on medical treatment
as a “mere disagreement” with the healthcare professionals. D.E. 22, p. 11. He states that
he should not have to be treated as a guinea pig in Defendants’ research and development
regarding psychiatric treatment. Id. This argument does not comport with the high bar
Plaintiff must plead and eventually prove with respect to deliberate indifference. The
pleading indicates that the healthcare professionals believed that Plaintiff would be best
treated with medication. They took his complaints seriously, met with him to discuss
treatment, recommended a treatment they believed would be most effective, and honored
his refusal of that treatment.
More specifically, Plaintiff testified as follows:
THE COURT: Do you remember what the medication was, the
oral medication you talked about that she wanted you to get
MR. THOMAS: We never got that far. However, they
commonly use Cymbalta. That’s one of the favorites.
Cymbalta and Effexor.
THE COURT: But did she specify which one she wanted you
to get on?
MR. THOMAS: She did not. I didn’t let her get that far.
D.E. 16, p. 21. Plaintiff’s assertions that the medications caused allergic responses or other
adverse side-effects are conclusory and not entitled to any force or effect when it is clear
that Plaintiff did not even allow the healthcare professionals to name the medication(s) they
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 6 of 9
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff’s refusal of
medication is, therefore, a mere disagreement. His eighth objection is OVERRULED.
Ninth, Plaintiff objects because Dr. Kwarteng should have recommended that
Plaintiff be transferred to another unit for treatment. D.E. 22, p. 11. For this proposition,
he cites Muhammed v. United States, 6 F. Supp. 2d 582, 584 (N.D. Tex. 1998). Muhammed
suffered from disabilities that affected his ability to ambulate and climb stairs. He was
assigned to a facility that was not handicapped-accessible and, therefore, repeatedly
suffered personal injuries. This is not an analogous case because Plaintiff’s pleadings do
not support his argument that he is suffering additional injuries because Defendants cannot
treat him at his current assigned facility. He has refused treatment. Muhammed would not
have been entitled to prevail if appropriate facilities had been available and he simply
refused to use them. Plaintiff’s ninth objection is OVERRULED.
Tenth, Plaintiff objects because Dr. Kwarteng should be held responsible for failing
to establish policies and procedures whereby inmates with psychological problems would
be seen by a psychiatrist making daily rounds of the facility. D.E. 22, p. 12. This argument
is not accompanied by any authority for such a standard of care in prison facilities. It is
further contrary to the deliberate indifference standard, which requires that the defendant
know about a substantial risk of serious harm before a duty to treat is triggered. The tenth
objection is OVERRULED.
Eleventh, Plaintiff objects to the dismissal of claims against Warden Sanchez
because he is responsible for all programs and services at the facility and the failure to
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 7 of 9
provide the psychological counseling Plaintiff seeks is the result of systemic deliberate
indifference, arbitrariness, and abuse of power. As already discussed, Plaintiff’s claims do
not rise to the level of deliberate indifference. Without this premise, the claims cannot be
extrapolated to show a systemic problem for which Warden Sanchez might have
supervisory responsibility. Plaintiff’s eleventh objection is OVERRULED.
Twelfth, Plaintiff objects to the dismissal of claims against Bryan Collier, Executive
Director of the Texas Department of Criminal Justice.
D.E. 22, pp. 16-19.
specifically, he claims that Collier violated Texas Revised Civil Statutes, §§ 6166a, 6166g,
and 6166t governing prison management (statutes that have been repealed).
preliminary matter, this issue was not raised prior to the M&R and was therefore waived.
United States v. Armstrong, 951 F.2d at 630. Also, in the course of making that objection,
Plaintiff acknowledges that a § 1983 claim provides a remedy for violation of the United
States Constitution and federal laws. Id., pp. 16-17. A violation of state law, without more,
will not justify federal judicial intervention through § 1983. Smith v. Sullivan, 611 F.2d
1039, 1045 (5th Cir. 1980).
Additionally, Plaintiff does not address municipal liability in anything other than an
impermissibly conclusory manner. D.E. 22, p. 9. And his complaints regarding his
medical care are insufficient to raise a constitutional violation, as set out above. Plaintiff’s
twelfth objection is OVERRULED.
In his thirteenth and fourteenth objections, Plaintiff objects to the dismissal of his
claims against Defendant Collier under the Americans with Disabilities Act (ADA) and
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 8 of 9
Rehabilitation Act (RA) based on respondeat superior. D.E. 22, pp. 20-21. His arguments
are conclusory, merely reiterate his position, and do not address the bases for the Magistrate
Judge’s recommendation. His thirteenth and fourteenth objections are OVERRULED.
Fifteenth, Plaintiff asks that the Court remove the “strike” from its dismissal. D.E.
23. He does not provide any argument for this other than a reference to his other objections.
As the Court has overruled the other objections, and because the Court finds the claims to
be frivolous or that the allegations fail to state a claim on which relief may be granted, the
Court OVERRULES the objection seeking relief from the strike.
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 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.
(1) Plaintiff’s § 1983 claims for money damages against Dr. Kwarteng,
Sanchez, and Rea in their official capacities are DISMISSED as barred
by the Eleventh Amendment; and
(2) Plaintiff’s Eighth Amendment and ADA/RA claims against Defendants
in their respective individual and official capacities are DISMISSED
Case 2:22-cv-00129 Document 25 Filed on 11/17/22 in TXSD Page 9 of 9
with prejudice as frivolous and/or for failure to state a claim for relief
pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1).
(3) It is ORDERED that this dismissal count as a “strike” for purposes of 28
U.S.C. § 1915(g), and the Clerk of Court is INSTRUCTED to send
notice of this dismissal to the Manager of the Three Strikes List for the
Southern District of Texas at Three_Strikes@txs.uscourts.gov.
This action is DISMISSED in its entirety.
ORDERED on November 17, 2022.
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?