Levine v. Taylor et al -

Filing 29

MEMORANDUM AND ORDER. Defendants' Motion for Summary Judgment Dkt. 14 and Dkt 17 are GRANTED, and all claims against them are dismissed with prejudice. Any other pending motions are DENIED as Moot. (Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
SARIJINI LEVINE,
Plaintiff,
VS.
DR. J. TAYLOR, et al.,
Defendants.

March 31, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:12-CV-186
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§
§
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§

MEMORANDUM OPINION AND ORDER
Plaintiff Sarijini Levine, a prisoner in the custody of the Texas Department of
Criminal Justice (“TDCJ”), has filed a pro se civil rights complaint and is proceeding in
forma pauperis (Dkt. 1, Dkt. 8). She initially sued 11 defendants under 42 U.S.C. § 1983,
bringing claims of Constitutionally deficient medical care stemming from cataract
surgery. The Court transferred the claims against eight of the defendants to the Waco
Division of the Western District of Texas (Dkt. 6), where they were dismissed for failure
to prosecute. See Western District of Texas Case Number 6:12-CV-185 at Dkt. 25. The
claims against three defendants remain here. One of those defendants, Dr. Ghassan
Ghorayeb, performed the cataract surgery at the University of Texas Medical Branch at
Galveston (“UTMB”). The other two, Dr. Joe Taylor and Robert Knoth, PA, helped
provide post-operative care to Levine at TDCJ’s Carole Young Medical Facility
(“CYMF”), where Levine was housed for about three weeks.

The Court requested a Martinez report1 from the Texas Attorney General’s office,
which the Attorney General’s office provided on behalf of Dr. Taylor and Knoth (Dkt.
16, Dkt. 17). Dr. Ghorayeb provided his own Martinez report (Dkt. 14). The Court
construed the Martinez reports as motions for summary judgment and notified Levine of
that construction (Dkt. 18). Levine responded (Dkt. 23 and Dkt. 26). The Court will also
consider Levine’s original complaint and its attachments to be part of the summary
judgment record because Levine declared under penalty of perjury that the facts set forth
in the complaint and attachments are true and correct (Dkt. 1 at p. 5; Dkt. 1-6 at p. 14).
See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (“On summary judgment, factual
allegations set forth in a verified complaint may be treated the same as when they are
contained in an affidavit.”); see also Davis v. Hernandez, 798 F.3d 290, 293 (5th Cir.
2015) (“[F]ederal courts, this one included, have a traditional disposition of leniency
toward pro se litigants.”) (quotation marks omitted).
After reviewing all of the evidence submitted, the parties’ briefing, and the
applicable law, the Court concludes that the defendants’ motions for summary judgment
must be GRANTED for the reasons that follow.
I.

BACKGROUND

Levine had cataract surgery on her right eye on June 18, 2010. Although she was
incarcerated at TDCJ’s Lane Murray Unit—which is located in the Waco Division of the
Western District, hence the Court’s transfer of most of her claims there—her surgery took
1

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1987); see also Cay v. Estelle, 789 F.2d 318,
323 & n.4 (5th Cir. 1986) (discussing the utility of a Martinez report).

place at UTMB; and she spent about three weeks recovering post-surgery at UTMB and
CYMF. Levine was in her early sixties at the time and had been diagnosed with several
serious

medical

conditions,

including

hypertension,

coronary

atherosclerosis,

hypothyroidism, and diabetes (Dkt. 16-1 at p. 41). She also suffered a back injury in 1991
(Dkt. 14-1 at p. 3; Dkt. 16-1 at p. 14; Dkt. 23 at p. 2).
Dr. Ghorayeb, an ophthalmology resident at UTMB, performed the cataract
surgery; he was supervised during the procedure by Dr. Manuj Kapur, a UTMB faculty
member (Dkt. 16-1 at pp. 13–14; Dkt. 14-6 at pp. 2–3). The surgery was unremarkable
except for the discovery during the procedure that Levine had a condition called
Intraoperative Floppy Iris Syndrome (“IFIS”) (Dkt. 16-1 at pp. 13–14). According to a
joint advisory released in 2014 by the American Academy of Ophthalmology and the
American Society of Cataract and Refractive Surgery,1 IFIS leads to poor dilation and
sudden constriction of the pupil during cataract surgery, “which increases the difficulty
and risk” associated with that surgery. The joint advisory explains that IFIS was first
reported in the medical literature in 2005 and is primarily associated with the use of
“alpha-blocker” drugs, such as Flomax, that are typically prescribed to men to treat
frequent urination associated with prostate enlargement (though the drugs are also
sometimes prescribed to treat urinary retention in women as well). There is no claim or
evidence that Levine was taking any such drugs. The joint advisory notes that IFIS does

1

http://www.ascrs.org/sites/default/files/resources/Flomax%20Patient%20Advisor
y%20revision_JH_3%20FINAL_FL%20DC%20edited.pdf

not preclude cataract surgery and is not itself a surgical complication; it is simply a
preexisting condition that may require the surgeon to modify his or her surgical
technique. These statements are in line with the testimony of Dr. Ghorayeb’s medical
expert, whose affidavit explains that IFIS “is not considered an intraoperative
complication” and “in no way indicates substandard surgical technique” (Dkt. 14-1 at p.
3). Dr. Ghorayeb worked around the IFIS, and his operative report notes that there were
“no immediate complications” with the surgery and that Levine “tolerated the procedure
well” (Dkt. 16-1 at p. 14). Dr. Ghorayeb prescribed Tylenol for pain, Vigamox drops to
prevent infection, and Pred Forte and Ocufen drops to combat inflammation (Dkt. 14-5 at
p. 25).
Levine spent the next few days at UTMB. On June 19, 2010, the day after her
surgery, she was evaluated at a follow-up appointment (Dkt. 14-5 at p. 44). Levine
reported light pain (she rated it a one on a scale of one to ten) and some nausea (Dkt. 14-5
at p. 44). Overall, she was “doing well[,]” and another follow-up appointment was
scheduled for June 24, 2010 (Dkt. 14-5 at pp. 39, 44). Her prescriptions from the previous
day were continued, and a prescription for Phenergan was added to treat the nausea (Dkt.
14-5 at pp. 24, 44).2 She was prohibited from lifting over five pounds or engaging in any
strenuous activity; told to keep “dirty, soapy water” out of her eyes; told to cover her
2

It is not clear, and not particularly relevant, who conducted this follow-up
evaluation and prescribed the Phenergan. There is no legible signature on the
medical chart, and Dr. Ghorayeb has no independent recollection of the June 19,
2010 visit (Dkt. 14-6 at p. 3). Levine seems to think that it was Dr. Ghorayeb
(Dkt. 23 at pp. 5–6). The handwriting and beeper number on the Phenergan
prescription appear to belong to a Dr. Kaplowitz, whom Levine never mentions
(Dkt. 14-5 at p. 24; Dkt. 16 at p. 24).

right eye with an eye shield and tape while sleeping; and instructed to notify medical
personnel if she experienced “fever, redness, pain, or any vision changes [in her]
operative eye” (Dkt. 14-5 at p. 39). She acknowledged receipt and expressed
understanding of the instructions (Dkt. 14-5 at p. 40). Aside from the nausea and the oneout-of-ten pain, Levine did not voice any concerns to UTMB personnel in the few days
immediately after her surgery, and she did not appear to be in acute distress during that
time (Dkt. 14-5 at p. 48).
On June 22, 2010, Levine was transferred from UTMB to CYMF. On that day, she
complained of eye pain and was evaluated by Knoth at the CYMF clinic (Dkt. 16 at pp.
14, 82). Knoth saw “no redness or edema” and observed that Levine’s lens was clear and
her eye movements were intact (Dkt. 16 at p. 14). Knoth “reassur[ed]” Levine and
outlined his intention to “[continue with] eye drops as ordered by [UTMB]” (Dkt. 16 at p.
14). Knoth told Levine to return to the CYMF clinic as needed during her stay there (Dkt.
16 at p. 14).
Levine missed her June 24, 2010 follow-up appointment at UTMB; it is unclear
why. Knoth and Dr. Taylor have provided an affidavit from the Legal Coordinator of the
Correctional Managed Care division of UTMB, and the affidavit states that Levine “was
chained out to [UTMB] for her follow-up appointment [on June 24] but there are no
records indicating why [Levine] was not seen” (Dkt. 17-1 at p. 3). The CYMF records
also indicate that Levine was “chained to [UTMB]” (Dkt. 16 at p. 82). Levine makes the
conclusory allegation that Knoth and Dr. Taylor “denied” or “delayed” the appointment

but does not controvert the testimony and evidence showing that she was chained out for
it (Dkt. 1 at p. 3; Dkt. 1-6 at p. 8).
On June 30, 2010, Levine again complained of eye pain and went to the CYMF
clinic, where Dr. Taylor evaluated her eye (Dkt. 16 at pp. 13, 82). Dr. Taylor conducted a
funduscopic examination, which was unremarkable and revealed no redness or edema to
the conjunctiva (Dkt. 16 at p. 13). Levine told Dr. Taylor that she was “[w]orrying” about
her next follow-up appointment at UTMB, which was scheduled for July 5, 2010 (Dkt. 16
at pp. 13, 82). Dr. Taylor “[e]ncouraged” Levine to keep her scheduled follow-up
appointment and advised her to continue using her prescribed eye drops (Dkt. 16 at p.
13).
Levine complained again of eye pain on July 5, 2010 (Dkt. 16 at p. 82). Her
medical records indicate that she was not seen at CYMF on that date because she was
scheduled to go to UTMB for a follow-up appointment (Dkt. 16 at p. 82). Levine went to
her appointment at UTMB on July 5, 2010 (Dkt. 16 at pp. 25, 26). At that appointment,
she complained of pain, decreased visual acuity, and shadowy vision (Dkt. 16 at pp. 25,
26). She reported compliance with her medications and was in no apparent distress (Dkt.
16 at pp. 25, 26). A follow-up appointment was scheduled for July 12, 2010; and Levine
was advised to continue using her eye medication as directed (Dkt. 16 at p. 26). Her
medications were changed: the Vigamox was discontinued (Dkt. 16 at pp. 26, 27). The
Pred Forte and Ocufen prescriptions were continued (Dkt. 16 at pp. 26, 27). Levine
verbalized understanding of the treatment plan (Dkt. 16 at p. 26).

Levine did not voice any other complaints to CYMF personnel during her time at
CYMF (Dkt. 16 at p. 82). She went to her follow-up appointment at UTMB on July 12,
2010 (Dkt. 16 at pp. 22, 23). At that appointment, she complained of some discomfort
and sensitivity to light (Dkt. 16 at p. 22). She was given a sunglass pass for six months;
and the Pred Forte and Ocufen prescriptions were continued, to be “fill[ed] at [her] unit”
(Dkt. 16 at p. 23). She expressed understanding of this treatment plan (Dkt. 16 at p. 23).
On either July 12 or July 13, 2010, Levine was transferred back to the Lane Murray Unit
(Dkt. 1-2 at p. 3; Dkt. 17-1 at p. 4).
II.

THE PLRA,
IMMUNITY
A.

SUMMARY

JUDGMENTS,

AND

QUALIFIED

The PLRA

The complaint in this case is governed by the Prison Litigation Reform Act (the
“PLRA”). Upon initial screening of a prisoner civil rights complaint, the PLRA requires
a district court to scrutinize the claims and dismiss the complaint, in whole or in part, if it
determines that the complaint “is frivolous, malicious, or fails to state a claim upon which
relief may be granted;” or “seeks monetary relief from a defendant who is immune from
such relief.” 28 U.S.C. § 1915A(b). A reviewing court may dismiss a complaint for
these same reasons “at any time” where a party, like Levine, proceeds in forma pauperis.
28 U.S.C. § 1915(e)(2)(B) (mandating dismissal where the complaint is “frivolous or
malicious,” “fails to state a claim upon which relief may be granted,” or “seeks monetary
relief from a defendant who is immune from such relief”). The PLRA also provides that
the court “shall on its own motion or on the motion of a party dismiss an action” if it is

satisfied that the complaint is “frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from
such relief.” 42 U.S.C. § 1997e(c).
Levine proceeds pro se in this case. Courts construe pleadings filed by pro se
litigants under a less stringent standard of review. Haines v. Kerner, 404 U.S. 519 (1972)
(per curiam). Under this standard, “[a] document filed pro se is ‘to be liberally
construed,’ Estelle [v. Gamble, 429 U.S. 97, 106 (1976)], and ‘a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Nevertheless,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (observing that courts “are not
bound to accept as true a legal conclusion couched as a factual allegation”).

The

Supreme Court has clarified that “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
B.

Rule 56

The defendants have filed Martinez reports, which the Court has construed as
motions for summary judgment. Federal Rule of Civil Procedure 56 mandates the entry
of summary judgment, after adequate time for discovery and upon motion, against a party

who fails to make a sufficient showing of the existence of an element essential to the
party’s case and on which that party will bear the burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, the
Court must determine whether the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law. Id. at 322–23.
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an absence of a genuine issue of
material fact. Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The
movant, however, need not negate the elements of the non-movant’s case. See Boudreaux
v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The movant may meet its burden
by pointing out the absence of evidence supporting the non-movant’s case. Duffy v.
Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995).
If the movant meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001).
“An issue is material if its resolution could affect the outcome of the action. A dispute as
to a material fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th
Cir. 2006) (citations omitted).
In deciding whether a genuine and material fact issue has been created, the facts
and inferences to be drawn from those facts must be reviewed in the light most favorable

to the non-movant. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d
410, 412 (5th Cir. 2003). However, factual controversies are resolved in favor of the nonmovant “only when both parties have submitted evidence of contradictory facts.”
Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (citation and quotation marks
omitted). The non-movant’s burden is not met by mere reliance on the allegations or
denials in the non-movant’s pleadings. See Diamond Offshore Co. v. A & B Builders,
Inc., 302 F.3d 531, 545 n.13 (5th Cir. 2002). Likewise, “conclusory allegations” or
“unsubstantiated assertions” do not meet the non-movant’s burden. Delta & Pine Land
Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the
non-movant must present specific facts which show the existence of a genuine issue
concerning every essential component of its case. Am. Eagle Airlines, Inc. v. Air Line
Pilots Ass’n, Int’l, 343 F.3d 401, 405 (5th Cir. 2003). In the absence of any proof, the
Court will not assume that the non-movant could or would prove the necessary facts.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Affidavits cannot preclude summary judgment unless they contain competent and
otherwise admissible evidence. See Love v. Nat’l Medical Enterprises, 230 F.3d 765, 776
(5th Cir. 2000); Hunter-Reed v. City of Houston, 244 F.Supp.2d 733, 745 (S.D. Tex.
2003). A party’s self-serving and unsupported statement in an affidavit will not defeat
summary judgment where the evidence in the record is to the contrary. Smith v.
Southwestern Bell Tel. Co., 456 Fed. App’x 489, 492 (5th Cir. 2012) (“[W]e have
repeatedly held that self-serving statements, without more, will not defeat a motion for
summary judgment, particularly one supported by plentiful contrary evidence.”); United

States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001); In re Hinsley, 201 F.3d 638, 643
(5th Cir. 2000); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”).
Lastly, Rule 56 does not impose upon the Court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment; evidence not
referred to in the response to the motion for summary judgment is not properly before the
Court, even if it exists in the summary judgment record. Malacara v. Garber, 353 F.3d
393, 405 (5th Cir. 2003). Although Levine is proceeding pro se, “the notice afforded by
the Rules of Civil Procedure and the local rules” is considered “sufficient” to advise a pro
se party of his burden in opposing a summary judgment motion. Martin v. Harrison
County Jail, 975 F.2d 192, 193 (5th Cir. 1992).
C.

Qualified Immunity

The defendants’ motions invoke qualified immunity (Dkt. 14 at p. 6; Dkt. 17 at p.
4). In civil rights actions such as this one where the non-movant is suing government
officials, the issue of qualified immunity alters the summary judgment analysis. Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010). If the qualified immunity defense is raised,
the burden shifts to the non-movant to rebut it. Id. All inferences are drawn in the nonmovant’s favor. Id.
The qualified immunity analysis is complex and intensely fact-specific. The Court
begins by applying the two prongs of the qualified immunity defense, though the Court

may analyze the prongs out of order. The first prong is the question of whether the
official’s conduct violated a Constitutional right of the plaintiff. Manis v. Lawson, 585
F.3d 839, 843 (5th Cir. 2009). The second prong is the question of whether the
Constitutional right was clearly established at the time of the violation. Id. For the right to
have been clearly established for purposes of qualified immunity, the contours of the
right must have been sufficiently clear that a reasonable official would have understood
that what he was doing violated that right. Brown v. Miller, 519 F.3d 231, 236 (5th Cir.
2008). The unlawfulness of the official’s actions must have been readily apparent from
sufficiently similar situations, though there need not have been commanding precedent
holding the very action in question unlawful. Id. at 236–37.
If the plaintiff satisfies both prongs—i.e., if the official’s actions violated a clearly
established Constitutional right—the Court then asks whether qualified immunity is
nevertheless appropriate because the official’s actions were objectively reasonable in
light of law that was clearly established at the time of the disputed action. Callahan, 623
F.3d at 253. Whether an official’s conduct was objectively reasonable is a question of law
for the Court, not one of fact for the jury. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir.
1999). An official’s actions must be judged in light of the circumstances that confronted
him and the facts that were available to him, without the benefit of hindsight. Graham v.
Connor, 490 U.S. 386, 396–97 (1989); Callahan, 623 F.3d at 253; Lampkin v. City of
Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993).
Qualified immunity “establishes a high bar”—Wyatt v. Fletcher, 718 F.3d 496,
503 (5th Cir. 2013)—that protects “all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Essentially, a
plaintiff must demonstrate that no reasonable official could have believed that his actions
were proper. Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).
III.

PRISONERS AND MEDICAL CARE

Levine seeks relief under 42 U.S.C. § 1983 for what she says was Constitutionally
deficient medical care. A prisoner may succeed on a claim under 42 U.S.C. § 1983 for
inadequate medical care only if she demonstrates “deliberate indifference to serious
medical needs” on the part of prison officials or other state actors. Estelle v. Gamble, 429
U.S. 97, 104 (1976). The conduct alleged must “constitute an unnecessary and wanton
infliction of pain” or “be repugnant to the conscience of mankind.” Id. at 104–06
(quotation marks omitted). A prison official acts with the requisite deliberate indifference
“only if he knows that inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825,
847 (1994).
The deliberate-indifference test has both an objective prong and a subjective one.
The prisoner must first prove objective exposure to a substantial risk of serious harm.
Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006). To then prove subjective
deliberate indifference to that risk, the prisoner must show both: (1) that the defendant
was aware of facts from which the inference of an excessive risk to the prisoner’s health
or safety could be drawn; and (2) that the defendant actually drew the inference that such
potential for harm existed. Farmer, 511 U.S. at 837; Harris v. Hegmann, 198 F.3d 153,
159 (5th Cir. 1999). This is an “extremely high standard to meet”—Domino v. Texas

Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)—and, absent exceptional
circumstances, it is not met by an incorrect diagnosis, unsuccessful medical treatment,
acts of negligence, medical malpractice, or a prisoner’s disagreement with his medical
treatment. Id.; Gobert, 463 F.3d at 346. Rather, the prisoner must show that the defendant
“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.” Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009) (quotation
marks omitted).
“Deliberate indifference is not established when medical records indicate that the
plaintiff was afforded extensive medical care by prison officials.” Brauner v. Coody, 793
F.3d 493, 500 (5th Cir. 2015) (quotation marks and brackets omitted). The Constitution
does not require that prisoners receive optimal care, and the fact that a prisoner’s medical
treatment “may not have been the best that money could buy” is insufficient to establish a
Constitutional claim. Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992); see also Gobert,
463 F.3d at 349 (“[D]eliberate indifference exists wholly independent of an optimal
standard of care.”); McMahon v. Beard, 583 F.2d 172, 174 (5th Cir. 1978) (“[The]
plaintiff stated that he had not received ‘optimum’ or ‘best’ medical treatment. Were this
the legal standard, a trial of the issues might be required.”).
At bottom, the deliberate-indifference standard is designed to be stringent enough
to separate acts or omissions that amount to intentional choices from those that are
merely unintentionally negligent oversights. Southard v. Tex. Bd. Of Criminal Justice,
114 F.3d 539, 551 (5th Cir. 1997). To that end, it draws on the test for “subjective

recklessness” used in criminal law, which “generally permits a finding of recklessness
only when a person disregards a risk of harm of which he is aware” and does not permit
such a finding based on mere “failure to alleviate a significant risk that [the person]
should have perceived but did not[.]” Farmer, 511 U.S. at 836–40.
IV.

LEVINE’S CLAIMS

Levine claims in her original complaint that she is legally blind in her right eye
and that her surgery and post-operative care are to blame (Dkt. 1 at p. 4). She has not
carried her burden of rebutting the qualified immunity defense as to any of the three
defendants.
A.

Dr. Ghorayeb

In her response to Dr. Ghorayeb’s motion for summary judgment, Levine contends
that Dr. Ghorayeb violated her Constitutional rights by failing to inform her that, as a
hypertensive patient, she was more likely to have IFIS and was therefore at greater risk of
surgical complications (Dkt. 23 at p. 5).1 Levine claims that she would have postponed
the surgery had she known about the increased risks (Dkt. 23 at p. 5). Such a claim does
not arise under the Eighth Amendment; but, assuming that it is viable at all in the Fifth

1

Levine also suggests in her response that some of the medical records produced by the
defendants were falsified or altered in an effort to “cover up [Dr. Ghorayeb’s] mistakes”
(Dkt. 23 at pp. 5–6). She presents no evidence to support these allegations, and the
medical records are supported by sufficient business record affidavits (Dkt. 14-4 at p. 2;
Dkt. 16 at p. 2; Dkt. 16-1 at p. 2). To the extent that Levine is objecting to the admission
of her medical records as hearsay or as improperly authenticated, that objection is
overruled. See FED. R. EVID. 803(6), 902(11); see also United States v. Towns, 718 F.3d
404, 409–10 (5th Cir. 2013).

Circuit, it would employ the same deliberate-indifference standard as an Eighth
Amendment claim.
The Fifth Circuit has recognized that, under the Due Process Clause of the
Fourteenth Amendment, a competent inmate “has a liberty interest in refusing unwanted
medical treatment” as a matter of substantive due process. Sama v. Hannigan, 669 F.3d
585, 591 (5th Cir. 2012); see also Cruzan v. Director, Missouri Department of Health,
497 U.S. 261, 278 (1990). However, the “law governing Fourteenth Amendment claims
involving unwanted medical treatment in the prison context is far from certain.” Sama,
669 F.3d at 595. And, crucially, the Fifth Circuit has never said that a medical provider’s
failure to provide particular information about a treatment before obtaining an inmate’s
consent to that treatment amounts to a Constitutional violation, so evidence showing that
Dr. Ghorayeb did not inform Levine of the possible existence of IFIS does not implicate
“clearly established law” for the purposes of the qualified-immunity analysis. On that
basis, Levine’s claims against Dr. Ghorayeb must fail. Cf. Miller, 519 F.3d at 238 (“By
1967, a public official’s concealment of exculpatory evidence was a constitutional
violation in this circuit. Therefore, the law was sufficiently clear in 1984 that a state
crime lab technician would have known that suppression of exculpatory blood test results
would violate a defendant’s rights.”).
That said, the Court notes that other circuits have evidently recognized an
informed-consent right. See Pabon v. Wright, 459 F.3d 241, 250 (2d Cir. 2006); Benson
v. Terhune, 304 F.3d 874, 884–85 (9th Cir. 2002); White v. Napoleon, 897 F.2d 103, 113
(3d Cir. 1990). Even so, the clearest standard the Court could find, the one articulated by

the Second Circuit in its Pabon opinion, sets a bar that Levine cannot clear. Under
Pabon, “[t]o establish a violation of the constitutional right to medical information, a
prisoner must satisfy an objective reasonableness standard, must demonstrate that the
defendant acted with the requisite state of mind, and must make a showing that the lack
of information impaired his right to refuse treatment.” Pabon, 459 F.3d at 250. The
“objective reasonableness” standard only requires a doctor to “provide a prisoner with
such information as a reasonable patient would find necessary to making an informed
decision regarding treatment options” and does not require the doctor to provide the
prisoner with “an exhaustive list of all the possible adverse effects of each aspect of his
treatment.” Id. The “requisite state of mind” is, at a minimum, deliberate indifference—
“simple negligence will not suffice.” Id. at 251.
Levine provides no evidence that Dr. Ghorayeb acted with deliberate indifference.
First, Levine was specifically warned by UTMB’s consent form, which she signed, that
she might experience pain, infection, bleeding, loss of vision, and a host of other adverse
effects as a result of the cataract surgery (Dkt. 16-1 at p. 56). Dr. Ghorayeb discussed the
consent form with Levine (Dkt. 16-1 at pp. 13, 56). Furthermore, Dr. Ghorayeb’s
operative report indicates that he discussed “[t]he risks, benefits and alternatives of
cataract surgery” with Levine and even advised her “that she could wait for the cataract
surgery” (Dkt. 16-1 at p. 13). Levine “voiced understanding and wished to proceed” (Dkt.
16-1 at p. 13). Levine does not contradict this account. The extensive warnings provided
by the consent form and Dr. Ghorayeb’s advice regarding alternatives to cataract surgery
and the option of delaying the surgery demonstrate that any failure to discuss IFIS

resulted from, at most, negligence, and not deliberate indifference.2 “[N]egligence is
categorically insufficient to deprive someone of substantive due process protection.”
Sama, 669 F.3d at 594; see also Pabon, 459 F.3d at 250 (“Inadvertent failures to impart
medical information cannot form the basis of a constitutional violation.”). Even proof of
gross negligence does not establish deliberate indifference. Whitley v. Hanna, 726 F.3d
631, 641 (5th Cir. 2013) (pointing out that gross negligence is “a heightened degree of
negligence” while deliberate indifference is “a lesser form of intent”) (quotation marks
omitted). To recover under either the Eighth Amendment or the Fourteenth Amendment,
Levine must point to competent summary judgment evidence showing that Dr. Ghorayeb
knowingly exposed her to and consciously disregarded a substantial risk of serious harm.
Brewer v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009). She has not done so.
B.

2

Dr. Taylor and Knoth

The Court doubts that Dr. Ghorayeb’s failure to mention the possibility of IFIS even rises
to the level of negligence. Dr. Ghorayeb’s medical expert testified that IFIS “cannot be
predicted or prevented prior to surgery” (Dkt. 14-1 at p. 3). Indeed, as noted above, IFIS
first appeared in the medical literature in 2005, and a very recent article in the journal
Current Opinion in Ophthalmology notes that the medical community’s “understanding
of additional medications and medical conditions involved in IFIS is . . . evolving[.]”
Enright JM, Karacal H, Tsai LM. Floppy Iris Syndrome and Cataract Surgery. Curr Opin
Ophthalmol 2017 Jan; 28(1): 29–34. Although some medical literature has shown a link
between hypertension and IFIS, it appears that the first discussion of such a link was
published in 2011, the year after Levine’s surgery. Chatziralli IP, Sergentanis TN. Risk
factors for intraoperative floppy iris syndrome: A meta-analysis. Ophthalmol 2011; 118:
730–735. And in fact, at the time of Levine’s surgery, at least one medical journal article
had concluded that there was not a connection between hypertension and IFIP. AltanYaycioglu R, Gedik S, Pelit A, Akova YA, Akman A. Clinical factors associated with
floppy iris signs: a prospective study from two centers. Ophthalmic Surg Lasers Imaging
2009 May–Jun; 40(3): 232–238.

Levine did not file a formal response to the motion for summary judgment filed by
Dr. Taylor and Knoth. In effect, this means that she has presented no summary judgment
evidence. Even a pro se plaintiff must specifically refer to evidence in the summary
judgment record in order to put that evidence properly before the court. Outley v. Luke &
Associates, Inc., 840 F.3d 212, 217 (5th Cir. 2016). The Court will nevertheless examine
Levine’s original complaint and its attachments because she declared under penalty of
perjury that the facts set forth in those documents were true and correct. However, those
documents contain no evidence of deliberate indifference beyond self-serving,
unsupported statements.
The record reflects that Dr. Taylor only saw Levine at one clinic visit, regarding a
complaint of eye pain, and never heard about any medical complaints from her after that
(Dkt. 16 at pp. 13, 82). Levine only complained of eye pain at CYMF once after Dr.
Taylor saw her, and that complaint came on the same day as a follow-up appointment at
UTMB, so she was just taken there (Dkt. 16 at p. 82). Levine’s complaints against Dr.
Taylor are that he “took it upon himself to deny her one of the ordered drops” that UTMB
had prescribed, leaving her with “nothing but Tylenol for pain[;]” did not conduct an
extensive enough examination of her right eye; and caused her to miss her June 24, 2010
follow-up appointment at UTMB (Dkt. 1-6 at p. 7). It is unclear which prescription
Levine is accusing Dr. Taylor of discontinuing, but her Vigamox prescription was
discontinued by UTMB providers, not by Dr. Taylor (Dkt. 16 at p. 26). Dr. Taylor’s
orders were actually to continue Levine’s eyedrops as prescribed by UTMB (Dkt. 16 at p.
13). Regardless, the discontinuation, without more, would not be evidence of deliberate

indifference. See Domino, 239 F.3d at 756 (“[T]he decision whether to provide additional
treatment is a classic example of a matter for medical judgment.”) (quotation marks
omitted). Nor is the fact that Dr. Taylor conducted only a funduscopic examination of
Levine’s right eye. The funduscopic examination was unremarkable, and Levine did not
voice any more complaints until July 5, when she was taken to UTMB for a follow-up
appointment (Dkt. 16 at pp. 13, 82). There is no evidence that Dr. Taylor was deliberately
indifferent to the inadequacy of the funduscopic examination as a diagnostic measure,
even assuming that it was inadequate. There is also no evidence that Levine’s missing her
June 24 follow-up appointment at UTMB was at all the fault of Dr. Taylor. CYMF
records indicate that she was chained out to UTMB, and there is no indication that the
missed appointment was anything other than a negligent scheduling mishap. Levine made
it to two other follow-up appointments, on July 5 and July 12.
Like Dr. Taylor, Knoth also only saw Levine at one clinic visit regarding a
complaint of eye pain (Dkt. 16 at pp. 14, 82). Levine accuses Knoth of “t[aking] away
one of her drops” and telling her, “We don’t have to do anything for you, your [sic] not
one of ours” (Dkt. 1-6 at p. 8). Levine appears to be confused again: only one of her
prescriptions was discontinued, and that was on the orders of UTMB personnel (Dkt. 16
at p. 26). Levine also alleges that Knoth took the drops and made the statement “after her
[UTMB] appointment of 7/5/2010” (Dkt. 1-6 at p. 8), but there is no record of Knoth
seeing Levine after her July 5 follow-up at UTMB. Notably, the July 5 follow-up is when
Levine’s Vigamox prescription was discontinued (Dkt. 16 at pp. 25, 26, 27), so if Knoth
took away an eyedropper after that date it was likely pursuant to the discontinuation.

Levine presents no evidence showing otherwise. As for Knoth’s alleged statement, it
could, viewed in the light most favorable to Levine, be seen as a threat to deny her
medical treatment. However, there is no evidence that Knoth did anything to follow
through on that threat, and mere threats do not amount to a Constitutional violation. See
Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993); McFadden v. Lucas, 713 F.2d
143, 146 (5th Cir. 1983). Levine missed her June 24 follow-up appointment at UTMB,
but that happened before Knoth allegedly made this statement. In any event, there is no
evidence that Knoth had anything to do with Levine missing the appointment.
The defendants are entitled to qualified immunity, and their motions for summary
judgment are granted.
V.

CONCLUSION

Based on the foregoing, the Court ORDERS as follows:
1. The defendants’ motions for summary judgment (Dkt. 14 and Dkt. 17) are
GRANTED, and all claims against them are dismissed with prejudice.
2.

Any other pending motions are DENIED as moot.

The Clerk is directed to provide a copy of this order to the parties and to amicus
counsel.
SIGNED at Galveston, Texas, this 31st day of March, 2017.
___________________________________
George C. Hanks Jr.
United States District Judge