Bangmon v. Alexander et al
Filing
64
MEMORANDUM OPINION AND ORDER; DENYING AS MOOT 63 MOTION for Default Judgment against Damon Alexander, 62 MOTION Request for Service, 59 MOTION FRAUD ON THE COURT, 56 MOTION for Entry of Default against Sergio G Buentello (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
JERRY LENEZ BANGMON,
TDCJ # 01568309,
Plaintiff,
VS.
DAMON ALEXANDER, et al,
Defendants.
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September 05, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 3:14-CV-0370
MEMORANDUM OPINION AND ORDER
Plaintiff Jerry Lenez Bangmon, an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), brought this civil rights suit in
November 2014, complaining of an alleged use of force incident on November 16, 2012.
Plaintiff also complains that he was denied adequate medical care. Four defendants
remain in this lawsuit: Correctional Officer Damon Alexander; Correctional Officer
Sergio Buentello; Dr. Edgar Hulipas; and Physician’s Assistant (“PA”) Terry Speer.1
On January 12, 2018, the Attorney General submitted a Martinez report (Dkt. 40),2
which the Court construed as a summary judgment motion by Hulipas and Speer (Dkt.
1
The Court’s docket originally listed nine Defendants. Four Defendants (Willie M.
Ratliff, Greta K. Bennett, Beverly A. White, and Aquisha Guidry) were dismissed on summary
judgment because Plaintiff had failed to exhaust his administrative remedies (Dkt. 44). The
remaining party, Emily Shortridge, is not actually a defendant because Plaintiff brings no claims
against her. Rather, Plaintiff identifies Shortridge as a “witness” who “helped Plaintiff to receive
the proper medical care” (Dkt. 1, at 5).
2
An administrative report submitted by state officials pursuant to Martinez v. Aaron, 570
F.2d 317 (10th Cir. 1978) (a “Martinez report”), is a tool to assist courts in making a
determination of frivolity under 28 U.S.C. § 1915. See Norton v. Dimazana, 122 F.3d 286, 2921 / 22
45). Plaintiff has filed a response (Dkt. 55) and the motion is ripe for consideration.
Defendant Alexander has appeared and filed an answer entering a general denial and
asserting qualified immunity (Dkt. 49). Defendant Buentello has been served but has not
appeared.
Having reviewed the evidence submitted, the parties’ briefing, and the applicable
law, the Court concludes that the motion for summary judgment should be GRANTED
and that all of Plaintiff’s claims must be DISMISSED for the reasons that follow.
I.
BACKGROUND
Plaintiff Bangmon complains in this lawsuit that Defendant Alexander used force
against him at TDCJ’s Darrington Unit on November 16, 2012, causing pain in Plaintiff’s
lower back and leg. He also alleges that Defendant Buentello witnessed the use of force
and did not intervene to prevent it; that Dr. Hulipas, the medical director at the
Darrington Unit, failed to provide adequate medical care in a two-year period after the
alleged use of force; and that PA Speer failed to provide adequate medical care at the
Darrington Unit on March 5, 2014.
According to the relevant medical records, which are attached to the Martinez
report, Plaintiff received treatment for back and leg pain in the months before the alleged
use of force.
In September 2012, Plaintiff was treated at least three times in the
Darrington Unit’s clinic (Dkt. 40-2, at 57-69) (documenting medical appointments on
September 5, 12, and 28, 2012).
The medical personnel treating Plaintiff included
93 (5th Cir. 1997); see also Cay v. Estelle, 789 F.2d 318, 323 & n.4 (5th Cir. 1986) (discussing
the utility of a Martinez report).
2 / 22
Defendants Hulipas and Speer. At that time, Plaintiff already was using crutches and a
cane, and was receiving pain medication. The records reflect that Plaintiff “ambulate[d]
well with crutches” and was able to “hop on[] and off of [the] exam table with ease” (id.
at 57). On October 18, 2012, Plaintiff again was treated in the clinic for back pain and
was continued on pain medication (id. at 56).
Around November 11, 2012, just before the alleged use of force, Plaintiff
requested a clinic appointment, stating that “as of 11-11-12 my KOP [keep-on-person
medication] for ibuprofen 800mg has expired” and that he had “no pain pills” (id. at 202).
Medical staff scheduled him for an appointment in clinic (id.).
On November 16, 2012, Plaintiff encountered Officer Alexander in a Darrington
Unit hallway. According to Plaintiff’s memorandum, Alexander was on duty in the law
library at approximately 6:00 p.m. and, through the library window, saw Plaintiff “in the
middle of the hallway on crutches” (Dkt. 2, at 5). Plaintiff explains that he was coming
from the dining hall towards his cell, and was waiting for the “turnkey officer” to open
the entry gate for his housing area (id.). He alleges that Alexander left the law library
and approached Plaintiff in the hallway in a “very hostile and aggressive” manner,
“harassing the Plaintiff about walking in the middle of the hallway” (id.).3 According to
Plaintiff, Captain Greta Bennett previously had instructed Plaintiff to walk in the middle
of the hallway “for the duration of time that Plaintiff was on crutches” because she once
had “bumped into the Plaintiff with a door as she was exiting her office” (Dkt. 2, at 5).
3
Plaintiff further alleges that this conduct by Alexander breached TDCJ’s employee
conduct guidelines, which he attaches to his memorandum (Dkt. 2-5, at 1-5).
3 / 22
Plaintiff states that he explained Bennett’s instructions to Alexander and that Alexander
cursed at him (id. at 6).
Plaintiff alleges that Alexander then asked Plaintiff for his identification card,
which Alexander dropped on the floor.
After Plaintiff picked it up, he states that
Alexander was verbally abusive towards him, and then grabbed him and “threw him into
the wall”:
[Alexander] grabbed the Plaintiff[’s] jacket by the right arm shoulder area
with his left hand and with his right hand he grabbed the Plaintiff’s right
arm while we were both standing in the middle of the hallway, the
Defendant intentionally, maliciously, and sadistically snatched the Plaintiff
ten to eleven feet across the Darrington Unit hallway and threw him into
the wall facing the law library.
(id. at 6; see Dkt. 1, at 4). Plaintiff claims that Alexander’s actions “caused the Plaintiff’s
spine to twist” and that he felt a “pop” in “something inside of [his] lower back spine
area” (Dkt. 2, at 6). He also alleges that the “left side of his face, chest and stomach
made contact with the wall facing the law library” and that “when the Plaintiff made
contact with the wall he began to feel extreme pain immediately in his lower back area
and left leg” (id.). He alleges that Alexander’s actions caused him “serious bodily injury”
and “led to the Plaintiff having a major surgery to wit Plaintiff had to have a body part
removed” (Dkt. 1, at 4). Plaintiff does not identify the removed body part.
Plaintiff alleges that Defendant Buentello, another correctional officer, witnessed
the incident but failed to intervene or to report the incident to his supervisor, and
therefore is liable as a bystander (id. at 3; Dkt. 2, at 7).
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TDCJ has not produced a Use of Force report regarding the November 16 incident.
The custodian of the TDCJ’s Use of Force Records has provided an affidavit stating that,
“after a diligent search, no Use of Force Report(s) to include videos/photographs has
been located in the name of Jerry Bangmon TDCJ # 1568309 Cause Number 3:14-370
pertaining to a use of force incident that occurred on November 16, 2012” (Dkt. 39-2)
(emphasis deleted). The affidavit does not state whether a report was written and later
destroyed pursuant to TDCJ’s document retention policy, or whether a report on the
incident never existed.
On the day of the incident, November 16, Plaintiff filed a grievance against
Alexander (Dkt. 2-1, at 17-18) (Grievance #2013046456).4 TDCJ’s response, dated
January 4, 2013, stated that Plaintiff’s complaint had been forwarded to TDCJ’s Office of
the Inspector General (“OIG”), that Alexander denied the allegations of assault, and that
the OIG had determined that “[t]here was insufficient evidence to open an investigation”
(id. at 18). The Step Two grievance response, dated February 8, 2013, again stated that
the evidence was insufficient to open an OIG investigation (id. at 19-20).5
On November 19, 2012, Plaintiff requested that Darrington officials review the
videotape from the hallway and law library. Plaintiff states that he made a request to
4
TDCJ’s records custodian states that TDCJ does not have grievance records for
Grievance #2013046456 (Dkt. 39-1). See Dkt. 40, at 5 (TDCJ’s grievances are subject to a
three-year retention policy). However, Plaintiff has produced the records.
5
Plaintiff corroborates this information in his memorandum, stating, “OIG said that they
checked with medical at unit infirmary for assault on day of incident, that there is no evidence to
support an investigation” (Dkt. 2, at 12). Plaintiff also states that OIG agents informed him that
“they checked with the unit medical dept. and that the Plaintiff did not come to medical until
days later” (id.).
5 / 22
Jerry Sanchez, “the Darrington Unit building major,” which led to review of video
footage that same day by several Darrington officials (Dkt. 2, at 10). By Plaintiff’s
account, the officers who reviewed the video told Plaintiff that they could see hostility
from Alexander towards Plaintiff, but that the recording did not capture any use of force:
[The officers] went in the [major’s] office for quite some time. . . . A while
later [the officers] all came out of the . . . . office together from reviewing
the video footage and [Captain] Bennett was speaking for all of them
saying to Plaintiff . . . we don’t see no assault. At that time the Plaintiff
asked “What did they see[”] and they all said that they didn’t see no
assault. The Plaintiff said “are you sure you’re looking at the video
footage from Friday November 16, 2012, at 5:30-6:00 pm.[”] [Captain]
Bennett said she rolled the footage back past 5:30 or before 5:30-6:00 and
still didn’t see no assault . . . . Lt. Valero said he seen defendant Alexander
go inside the law library and come out and hand the Plaintiff his I.D. card
back pointing his finger in Plaintiff[’s] face. Lt. Valero said he seen
Defendant Alexander when he picked up the Plaintiff[’s] I.D. card and
handed it back and started talking to Plaintiff in a hostile mann[e]r. The
Plaintiff told all three officials that if they seen all of that then they had to
see the use of force assault. They denied seeing it.
(id.) (emphasis added). Plaintiff states that he then began to suspect that the officers were
conspiring to “cover up” for Alexander (id.).
Plaintiff provides two statements from inmates who identify themselves as
eyewitnesses to the incident and partially corroborate Plaintiff’s version of the events.
One statement, from Alexander Packett, is dated May 15, 2013, and states that he
witnessed Alexander “come out of the law library in a hostile manner,” and that
Alexander then “grabbed [Plaintiff] and drug him across the hallway holding him up to
the wall” while cursing and threatening Plaintiff (Dkt. 2-2, at 2). A second statement,
from Bobby Degrate, is dated May 7, 2014, approximately eighteen months after the
incident, and states that Alexander “snatch[ed]” Plaintiff, who was on crutches, “across
6 / 22
the hall and thr[e]w him against the wall in front of the law library” (Dkt. 2-2, at 4).
Neither statement attests to any injury suffered by Plaintiff.6
On November 20, 2012, several days after the alleged use of force, Plaintiff had an
appointment at the clinic, which had been scheduled based on his November 11 request
for an ibuprofen refill. The records from the appointment contain no mention of the
alleged incident on November 16 or any resulting injuries. In fact, Dr. Hulipas’ records
reflect “no acute findings” (Dkt. 40-2, at 54). The records also contain notations that
Plaintiff was ambulating well and did not appear to need much support from his crutches:
[Offender] requests ibuprofen renewal, [complains of] pinched nerve left
leg, losing strength in left arm, noticed that this [offender] uses crutches on
ambulation, swings his upper body and able to balance his weight during
ambulation, [offender] is reported by nurses to be ambulating in the
hallway without difficulty with little support from crutches[.]
(id.). Dr. Hulipas renewed the ibuprofen prescription as Plaintiff had requested (id.).
Plaintiff alleges that he reported the use of force to Dr. Hulipas at the appointment, but
that Hulipas “failed to respond” (Dkt. 2, at 13).7
On May 8, 2013, at an appointment to manage Plaintiff’s blood pressure, Dr.
Hulipas discontinued Plaintiff’s crutches because they were not medically indicated (Dkt.
40-2, at 36-39; see Dkt. 2, at 13). Several days later, Plaintiff filed a grievance against
Dr. Hulipas. Based on the medical records, TDCJ denied his grievance at both steps of
6
Despite Plaintiff’s statement that the two witnesses “stopped in their tracks” at the time
they witnessed Alexander’s “assault” (Dkt. 2, at 7), the Court notes that the statements were
actually prepared significantly after the events, and after the administrative grievance procedure
had concluded.
7
Plaintiff cites to no “sick call” slips or other documentation in the record indicating that
he requested treatment for any injuries resulting from the November 16 incident and the Court, in
its review of the record, has found no such documentation.
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the process, stating that Dr. Hulipas had seen no indication for crutches, that Plaintiff had
been advised to keep his orthopedic appointments, and that Plaintiff was scheduled to
begin physical therapy (Dkt. 2-6, at 2-5).
On September 11, 2013, Plaintiff was evaluated at Hospital Galveston’s
orthopedic clinic. The specialist at the clinic recommended medication, a back brace, a
cane for ambulation, and physical therapy (Dkt. 2-4). Plaintiff states that he received
physical therapy from November 2013 through January 2014 (Dkt. 2, at 15).
On February 27, 2014, Plaintiff saw Dr. Hulipas in the Darrington Unit clinic and
apparently requested a cane pass. Dr. Hulipas denied the request, stating that it was not
medically indicated. Plaintiff alleges that Dr. Hulipas also denied him a referral to a
“qualified back specialist” (id.). The medical records from the February 27 appointment
contain Dr. Hulipas’ notes, which indicate that Plaintiff was brought to the infirmary
without any assistive device and that he refused to lay or sit on the examination table for
a physical assessment (Dkt. 40-1, at 10-11). Dr. Hulipas stated that a previous MRI had
revealed “no significant spinal stenosis,” that Plaintiff had been discharged from physical
therapy at the Estelle Unit, and that there was “no indication for walker/cane” (Dkt. 40-1,
at 10). He recommended range of motion exercises (id.).
On March 5, 2014, Plaintiff again was treated in the Darrington Unit clinic. PA
Speer recorded that Plaintiff had a “steady gait with a noted apparent exaggerated limp
which worsened as [the patient] entered [the] office” and an “[a]pparent exaggerated
difficulty upon entering and exiting the exam table” (id. at 12-13). The records from the
appointment reflect that Plaintiff’s walking cane had been discontinued by the physical
8 / 22
therapy unit before Plaintiff’s return to Darrington, and that Plaintiff was counseled to
continue with his range of motion exercises as recommended by physical therapy
providers (id. at 13).
Plaintiff alleges that Speer displayed “ill will” and “reckless
disregard” towards him because Speer denied him a walking device (Dkt. 2, at 13). He
filed a grievance against Speer, which was denied based on the medical records (Dkt. 401, at 3-6). Several months later, on June 6, 2014, Plaintiff received a property pass for a
wooden cane and back brace from the Brace and Limb Clinic at the Estelle Unit (Dkt. 25, at 17).
On July 31, 2014, Plaintiff had elective spinal surgery at Hospital Galveston (Dkt.
40-4, at 3-95; Dkt. 40-3, at 122-23). The medical records state that the procedure was for
lower back pain “that radiates down the back of left leg and into bottom of left foot into
all toes,” and that Plaintiff’s symptoms had appeared in “mid 2012” (Dkt. 40-4, at 7).
Although Plaintiff appears to allege that the surgery was performed because of injuries
related to the alleged November 16, 2012 use of force,8 he does not direct the Court’s
attention to any evidence in the record supporting his assertion. After surgery, Plaintiff
apparently did not return for an initial follow-up appointment, but received further postoperative treatment in September 2014 (Dkt. 40-3, at 122-23).
Plaintiff appears to complain that at some point after his surgery, apparently in
September and October 2014, Dr. Hulipas failed to provide him adequate medical care.
8
See Complaint (Dkt. 1), at 4 (alleging that the November 16, 2012, incident caused
‘serious bodily injury” and led to Plaintiff having “major surgery” and “a body part removed”);
see also Plaintiff’s Memorandum (Dkt. 2), at 16 (stating that Plaintiff had “major surgery for the
serious bodily injury and wanton infliction of pain” by Alexander, which surgery was performed
on July 31, 2014).
9 / 22
He alleges that Dr. Hulipas “not once checked on the Plaintiff” after the July 31 surgery
and “refuse[d] to follow specialist orders” for specialized medical shoes and stockings
(Dkt. 2, at 16). Records from the University of Texas Medical Branch (“UTMB”) show
that Plaintiff received medical treatment multiple times at UTMB in September and
October, including follow-up care from neurosurgery (Dkt. 40-3, at 90-141).
II.
STANDARDS OF REVIEW
A.
The PLRA and Pro Se Pleadings
Because the plaintiff is an inmate proceeding in forma pauperis, the Court is
required by the Prison Litigation Reform Act (“PLRA”) to scrutinize the claims and
dismiss the complaint at any time, 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), 1915(e)(2)(B); see also 42 U.S.C. § 1997e(c) (providing 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”). A
claim is frivolous if it lacks any arguable basis in law or fact. Samford v. Dretke, 562
F.3d 674, 678 (5th Cir. 2009). “A complaint lacks an arguable basis in law if it is based
on an indisputably meritless legal theory. . . . A complaint lacks an arguable basis in fact
if, after providing the plaintiff the opportunity to present additional facts when necessary,
the facts alleged are clearly baseless.” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir.
2013) (internal quotation marks and citation omitted).
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In reviewing the pleadings, the Court is mindful of the fact that Plaintiff proceeds
pro se. Complaints filed by pro se litigants are entitled to a liberal construction and,
“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) (internal
quotation marks and citation omitted). Even under this lenient standard a pro se plaintiff
must allege more than “’labels and conclusions’ or a ‘formulaic recitation of the elements
of a cause of action.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation
omitted).
B.
Summary Judgment—Rule 56
The Court has construed the Martinez report filed by the Attorney General’s
Office as a motion for summary judgment. Rule 56 of the Federal Rules of Civil
Procedure mandates the entry of summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). Once the movant presents
a properly supported motion for summary judgment, the burden shifts to the nonmovant
to show with significant probative evidence the existence of a genuine issue of material
fact. Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A fact is
‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit
11 / 22
under governing law.” Id. “An issue is ‘genuine’ if the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Id.
In deciding a summary judgment motion, the reviewing court must “construe all
facts and inferences in the light most favorable to the nonmoving party.” Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks
omitted).
However, the non-movant cannot avoid summary judgment simply by
presenting “conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes Cnty., 678
F.3d 344, 348 (5th Cir. 2012) (internal citation, alteration and quotation marks omitted);
see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Likewise,
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 Plaintiff 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). Even a pro se plaintiff must specifically refer to evidence
in the summary judgment record in order to place that evidence properly before the court.
Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 & n.9 (5th Cir. 2016); E.E.O.C. v.
Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (“Despite our general willingness to
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construe pro se filings liberally, we still require pro se parties to fundamentally abide by
the rules that govern the federal courts. Pro se litigants must properly . . . present
summary judgment evidence”) (internal citation and quotation marks omitted).
III.
DISCUSSION
A.
Official Immunity
UTMB and TDCJ are state agencies. TEX. EDUC. CODE § 65.01 et seq.; TEX.
GOV’T CODE § 493.001 et seq. A claim against an official employed by TDCJ or UTMB
in his or her official capacity is a claim against the agency, and thus a claim against the
State of Texas. See Mayfield v. Tex. Dep’t of Crim. Justice, 529 F.3d 599, 604 (5th Cir.
2008).
Because the Eleventh Amendment protects the states’ sovereign immunity,
federal courts lack jurisdiction over suits against a state for money damages unless the
state has waived its immunity or Congress has clearly abrogated that immunity. NiGen
Biotech, L.L.C., v. Paxton, 804 F.3d 389, 393-94 (5th Cir. 2015); Moore v. La. Bd. of
Elem. and Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014). Texas has not waived its
Eleventh Amendment immunity, and Congress did not abrogate that immunity when
enacting Section 1983. NiGen, 804 F.3d at 394.
To the extent Plaintiff sues Defendants in their official capacity as state
employees, Defendants are entitled to immunity under the Eleventh Amendment from
claims for monetary damages. Accordingly, Defendants are entitled to summary
judgment on this issue.
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B.
Qualified Immunity
Defendants have invoked qualified immunity, and Plaintiff bears the burden to
negate the defense. See Hanks v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017).
Determination of qualified immunity requires a bifurcated analysis: first, the court must
decide “whether the undisputed facts and the disputed facts, accepting the plaintiffs’
version of the disputed facts as true, constitute a violation of a constitutional right”; and
second, the court must determine “whether the defendant’s conduct was objectively
reasonable in light of clearly established law.” Carroll v. Ellington, 800 F.3d 154, 169
(5th Cir. 2015) (internal quotation marks and citation omitted); see Thompson v. Mercer,
762 F.3d 433, 437 (5th Cir. 2014). Qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law.” Pratt, 822 F.3d at 181 (internal
citation and quotation marks omitted). “If officers of reasonable competence could
disagree as to whether the plaintiff’s rights were violated, the officer’s qualified
immunity remains intact.” Hanks, 853 F.3d at 744 (internal citations and quotation marks
omitted). A reviewing court may address the two prongs of the qualified immunity
analysis in any sequence, depending on the circumstances of the particular case at hand.
Pearson v. Callahan, 555 U.S. 223, 236 (2009); Heaney v. Roberts, 846 F.3d 795, 801
(5th Cir. 2017).
C.
Eighth Amendment Claims against Hulipas and Speer
Plaintiff alleges that Dr. Hulipas and PA Speer violated his Eighth Amendment
rights. Section 1983, 42 U.S.C. § 1983, provides a vehicle for a claim against a person
“acting under color of state law,” such as a state prison official, for a constitutional
14 / 22
violation. See Pratt v. Harris Cty., Tex., 822 F.3d 174, 180 (5th Cir. 2016); Townsend v.
Moya, 291 F.3d 859, 861 (5th Cir. 2002). Because Plaintiff was, at all relevant times, a
convicted felon in state prison, his claims regarding denial of adequate medical care are
governed by the Eighth Amendment prohibition against “cruel and unusual” conditions
of confinement.
Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see Helling v.
McKinney, 509 U.S. 25, 33 (1993) (the Eighth Amendment “requires that inmates be
furnished with the basic human needs, one of which is ‘reasonable safety’”).
To prevail on his Eighth Amendment claim, Plaintiff must demonstrate that
Defendants exhibited “deliberate indifference” to his “serious medical needs, constituting
an unnecessary and wanton infliction of pain.” Easter v. Powell, 467 F.3d 459, 463 (5th
Cir. 2006) (internal citations and quotation marks omitted); see Estelle v. Gamble, 429
U.S. 97, 104 (1976).
The Eighth Amendment standard has both an objective and
subjective component. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, the
prisoner must show “objective exposure to a substantial risk of serious harm.” Gobert v.
Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Second, he must show that the defendant
acted, or failed to act, with deliberate indifference to the risk. Id. at 345-46. Deliberate
indifference is an “extremely high standard.” Domino v. Tex. Dep’t of Crim. Justice, 239
F.3d 752, 756 (5th Cir. 2001). It requires “more than an allegation of mere negligence,
but less than an allegation of purpose or knowledge.” Hinojosa v. Livingston, 807 F.3d
657, 665 (5th Cir. 2015). “The mere delay of medical care can also constitute an Eighth
Amendment violation but only ‘if there has been deliberate indifference [that] results in
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substantial harm.’” Easter, 467 F.3d at 463 (quoting Mendoza v. Lynaugh, 989 F.2d 191.
193 (5th Cir. 1993)).
1.
Dr. Hulipas
Liberally construed, Plaintiff’s allegations relevant to Dr. Hulipas, the medical
director at the Darrington Unit, are as follows: on November 20, 2012, Hulipas “failed to
respond” to Plaintiff’s report regarding the November 16 incident (Dkt. 2, at 13); on May
8, 2013, Hulipas discontinued his crutches (id.); in September through November 2013,
Hulipas delayed his physical therapy (id. at 15); on February 27, 2014, Hulipas denied
him a cane pass and a neurosurgery referral (id.); and, in July 2014, Hulipas failed to
check on him after his surgery and “refuse[d] to follow specialist orders” for “slip grip
shoes/medical boots” and “snug fit” stockings (id. at 16).
The medical records summarized above provide no support for Plaintiff’s claim
that Hulipas was “deliberately indifferent” to his “serious medical needs.” Rather, the
records show that Plaintiff received regular medical attention from Hulipas and multiple
other providers in the 2012-2014 period.
Throughout that time, Hulipas and other
professionals provided Plaintiff with care as medically indicated at the time of treatment,
including pain medication, crutches, a cane, physical therapy, x-rays, MRI exams, and
surgery. These voluminous records in themselves weigh heavily against a finding of
deliberate indifference. See Varnardo v. Lynaugh, 920 F.2d 320 (5th Cir. 1991); McCord
v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990) (upholding the dismissal of a deliberate
indifference claim where medical records documented that the prisoner was not denied
medical attention). Plaintiff has made no showing that Dr. Hulipas acted or failed to act
16 / 22
with “deliberate indifference” to a “substantial risk of serious harm” to Plaintiff, as
required for an Eighth Amendment claim. See Gobert, 463 F.3d at 345-46.9
Plaintiff appears to take issue with Dr. Hulipas’ particular medical decisions
regarding his treatment. For example, Plaintiff protests Dr. Hulipas’ decisions not to
authorize crutches and a cane even though Plaintiff had used the devices previously.
However, Dr. Hulipas’ decisions were supported by his clinical observations at the time
of treatment, as reflected in the medical records (Dkt. 40-2, at 36-39; Dkt. 40-1, at 1011), and were within his medical judgment.
An inmate’s mere disagreement with
medical treatment does not constitute deliberate indifference. Estelle, 429 U.S. at 107
(explaining that the decision whether to provide a particular type of treatment “is a classic
example of a matter for medical judgment”); Gibbs, 254 F.3d at 549.
The record supplies no competent summary judgment evidence supporting
Plaintiff’s Eighth Amendment claim. Plaintiff’s conclusory allegations that Dr. Hulipas
exhibited “deliberate indifference” are not enough to defeat summary judgment. See
Outley, 840 F.3d at 217 & n.9 (pro se plaintiffs must specifically refer to evidence in the
summary judgment record in order to place that evidence properly before the court);
Jones, 678 F.3d at 348 (non-movant cannot avoid summary judgment by presenting
conclusory allegations, improbable inferences, unsubstantiated assertions, or legalistic
9
Even if Plaintiff could establish medical malpractice or negligence by Dr. Hulipas, such a
showing would be insufficient to establish deliberate indifference or a violation of the Eighth
Amendment. See Hinojosa, 807 F.3d at 665; Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir.
2001).
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argumentation). Summary judgment therefore is granted for Dr. Hulipas on Plaintiff’s
Eighth Amendment claim.
2.
Speer
Plaintiff’s only allegation regarding PA Speer is that, on March 5, 2014, Speer
“displayed ill will” and “reckless disregard” when he denied Plaintiff “a walking cane or
some kind of walking aid device for helping the Plaintiff ambulate” (Dkt. 2, at 13). The
records before the Court clearly document that Plaintiff’s cane was not medically
indicated in February and March 2014, because Plaintiff had completed physical therapy
and the providers there had discontinued his cane (Dkt. 40-1, at 10-13). As stated above
regarding Dr. Hulipas, the record contains no competent evidence supporting a finding of
“deliberate indifference” by Speer. See Hinojosa, 807 F.3d at 665; Domino, 239 F.3d at
756. To the contrary, the record demonstrates that the decision to discontinue Plaintiff’s
cane was supported by medical judgments by Speer, Dr. Hulipas, and the physical
therapy providers. To the extent Plaintiff disagrees with that medical judgment, such
disagreement does not suffice to show deliberate indifference. See Estelle, 429 U.S. at
107; Rogers, 709 F.3d at 410. Summary judgment is granted for Speer on Plaintiff’s
Eighth Amendment claim.
D.
Eighth Amendment Claims against Alexander and Buentello
Plaintiff alleges that Alexander used excessive force against him on November 16,
2012, in violation of his Eighth Amendment rights. He also alleges that Buentello
witnessed the incident and failed to intervene. The Court examines whether these claims
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are appropriately dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B) (“the court shall
dismiss the case at any time if the court determines that . . . the action . . . is frivolous”).
When a prisoner claims that a prison official’s use of force violated the Eighth
Amendment’s ban on cruel and unusual punishments, the “core judicial inquiry” is
“whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)
(citing Whitley v. Albers, 475 U.S. 312 (1986)). “[Not] every malevolent touch by a
prison guard gives rise to a federal cause of action.” Id. at 9. The Eighth Amendment
prohibition “necessarily excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort repugnant to the conscience
of mankind.” Id. at 9-10 (internal citations and quotation marks omitted). Hudson,
applying Whitley, identified five factors relevant to the Court’s analysis: (1) the extent of
injury suffered by the inmate; (2) the need for application of force; (3) the relationship
between that need and the amount of force used; (4) the threat reasonably perceived by
the responsible officials; and, (5) any efforts made to temper the severity of a forceful
response. Id. at 7; Cowart v. Erwin, 837 F.3d 444, 452-53 (5th Cir. 2016). Regarding
injury to the inmate, the Court stated, “The absence of serious injury is . . . relevant to
the Eighth Amendment inquiry, but does not end it.” Hudson, 503 U.S. at 7.10 “Injury
10
“[T]he extent of injury suffered by an inmate is one factor that may suggest ‘whether the
use of force could plausibly have been thought necessary’ in a particular situation, ‘or instead
evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a
knowing willingness that it occur.’” Id. (quoting Whitley, 475 U.S. at 321).
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and force . . . are only imperfectly correlated, and it is the latter that ultimately counts.”
Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
1.
Alexander
Plaintiff alleges that Alexander treated him roughly on November 16, 2012, when
he “snatched” Plaintiff across a hallway and threw him into a wall. The records produced
by TDCJ in its Martinez report contain no evidence that a use of force actually occurred.
In fact, the record refutes Plaintiff’s account. The grievance records provided by Plaintiff
demonstrate that the OIG looked into the November 16 incident and determined that
“there was insufficient evidence to open an investigation” (Dkt. 2-1, at 17-20). Plaintiff
states that Darrington Unit officers reviewed the videotapes three days after the incident
at Plaintiff’s request, and informed Plaintiff that Alexander was “hostile” towards him
but did not use force against him (Dkt. 2, at 10). Plaintiff did not request immediate
medical attention.
Moreover, even if the Court were to assume that a use of force occurred, and that
Alexander’s alleged actions rose above a de minimis level of force, the record refutes
Plaintiff’s bare assertion that he was injured as a result of the incident. The medical
records in the Martinez report contain no evidence of that Plaintiff suffered any injury on
November 16. The records from November 20 contain no mention of the alleged use of
force four days earlier, and in fact reflect “no acute findings” and state that Plaintiff was
ambulating without difficulty (Dkt. 40-2, at 54). The records also reflect that Plaintiff’s
back and leg pain began—and was treated at the Darrington Unit—well before November
16, 2012 (id. at 56-69). Although Plaintiff asserts that his July 2014 surgery, in which an
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unidentified “body part” was “removed,” was necessitated by the alleged use of force in
November 2012, he provides no supporting facts. His bare assertions find no support in
the medical record regarding his surgery (Dkt. 40-4, at 3-95). The absence of serious
injury is relevant to the Court’s consideration of an excessive force claim. See Hudson,
503 U.S. at 7. “An inmate who complains of a push or shove that causes no discernible
injury almost certainly fails to state a valid excessive force claim.” Wilkins, 559 U.S. at
38 (internal quotation marks and citations omitted).
In this case, given the administrative and medical records contradicting Plaintiff’s
claims, his conclusory allegations of force and injury are insufficient to state a nonfrivolous claim for relief. See 28 U.S.C. § 1915(e)(2)(B); Iqbal, 556 U.S. at 678; Wilburn
v. Shane, 193 F.3d 517 (5th Cir. 1999) (upholding summary judgment for defendants
because “based on the objective factors of [the plaintiff’s] medical records, which show
no evidence of injuries consistent with his allegations of excessive force, [the plaintiff’s]
allegations are implausible”). His claim lacks “an arguable basis in fact” because “after
providing the plaintiff the opportunity to present additional facts . . . the facts alleged are
clearly baseless.” See Rogers, 709 F.3d at 407. For essentially the same reasons, his
conclusory allegations also do not defeat the qualified immunity protection invoked by
Alexander. See Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (“Conclusory
allegations and denials, speculation, improbable inferences, unsubstantiated assertions,
and legalistic argumentation are all insufficient to overcome [qualified] immunity”)
(citation and internal quotation marks omitted).
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Plaintiff’s Eighth Amendment claim against Alexander is dismissed as frivolous
under 28 U.S.C. § 1915(e)(2)(B). See Samford, 562 F.3d at 678; Siglar v. Hightower,
112 F.3d 191, 193 (5th Cir. 1997).
2.
Buentello
Plaintiff’s only allegation against Officer Buentello is that he was a bystander to
Alexander’s alleged use of force and failed to intervene (Dkt. 1, at 3; Dkt. 2, at 7). For
the reasons stated above regarding Alexander, Plaintiff’s Eighth Amendment claim
against Buentello lacks an arguable basis in fact and will be dismissed. See 28 U.S.C.
§ 1915(e)(2)(B); Rogers, 709 F.3d at 407.
IV.
CONCLUSION
For the reasons stated above the Court ORDERS that:
1.
Summary judgment is GRANTED for Defendants Hulipas and Speer, and
Plaintiff’s claims against them are DISMISSED with prejudice.
2.
Plaintiff’s claims against Defendants Alexander and Buentello are
DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
3.
All other pending motions are DENIED as moot.
A separate final judgment will issue.
SIGNED at Galveston, Texas, this 5th day of September, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge
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