Blue v. Texas Department Of Criminal Justice et al

Filing 50

MEMORANDUM OPINION AND ORDER granting 42 MOTION for Summary Judgment Email sent to Manager of Three Strikes List. Plaintiffs claims are DISMISSED with prejudice pursuant to Rule 56 and 28 U.S.C. §§ 1915(e)(2)(B). Plaintiffs motion for production of additional documents (Dkt. 47) is DENIED. All other pending motions, if any, are DENIED as moot.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
§
TDCJ # 1176709,
§
§
Plaintiff,
§
VS.
§
§
TEXAS DEPARTMENT OF CRIMINAL §
JUSTICE, et al,
§
§
Defendants.
§

September 25, 2018
David J. Bradley, Clerk

BENJAMIN LEON BLUE,

CIVIL ACTION NO. 3:17-CV-0042

MEMORANDUM OPINION AND ORDER
Plaintiff Benjamin Leon Blue, an inmate in the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ”), brings this civil rights suit alleging
that he was denied adequate medical care. On February 6, 2018, the Attorney General
submitted a Martinez report (Dkt. 42).1 The Court construed the Martinez report as a
summary judgment motion and ordered Plaintiff to respond by April 15, 2018, later
extending the deadline to May 21, 2018 (Dkt. 44, Dkt. 46). To date, Plaintiff has not
filed a response, and the time to do so has expired. However, Plaintiff filed a request for
production of additional documents (Dkt. 47), to which the Attorney General responded
(Dkt. 48) and Plaintiff replied (Dkt. 49). The motions now are ripe for decision. Having
reviewed the pleadings, the Martinez report, the parties’ briefing, the applicable law, and

1

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, 29293 (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).
1 / 13

all matters of record, the Court concludes that the motion for summary judgment should
be GRANTED for Defendants and that Plaintiff’s claims must be DISMISSED for the
reasons that follow.
I.

BACKGROUND
On or about June 25, 2015, Plaintiff Blue was diagnosed at Hospital Galveston

with sarcoidosis, an inflammatory disease that can affect multiple organs. He alleges
that, at that time, he “became aware” that Defendants “acted with deliberate indifference
to my health and safety” (Dkt. 36, at 4). 2

He also alleges that Defendants were

deliberately indifferent “in regards to the diagnoses and treatment of sarcoidosis while
conscious of internal damages and a lingering death” (id.). He claims that “[i]nadequate
medical care during my incarceration has allowed the disease to progress into a life
threatening stage” (id.).

He seeks $300,000 in nominal, compensatory, and punitive

damages (id.).
Plaintiff brings suit against Brad Livingston, the former director the Texas
Department of Criminal Justice, who has been succeeded by Bryan Collier. He also sues
four physicians from the University of Texas Medical Branch (“UTMB”):

Aaron

Moharty; Rafic Berbarie; Philip Keiser; and Chizoba Ngwube (id. at 3). He does not
make any allegations about the personal involvement of any of the five defendants and
provides no factual allegations explaining when or how they acted with “deliberate
indifference.”
2

Throughout this Memorandum, the Court’s citations to specific pages in the record refer
to the pagination of docket entries on the Court’s electronic case filing (“ECF”) system.

2 / 13

The Attorney General’s Martinez report attaches Plaintiff’s medical records from
TDCJ (Exhibit A); his medical records from UTMB (Exhibit B); his medication
compliance records from TDCJ (Exhibit C); and an affidavit from Steven Bowers, M.D.,
legal coordinator for UTMB Correctional Managed Care (Exhibit D).
The medical records show that Blue was hospitalized at Hospital Galveston from
June 1, 2015, through July 8, 2015, after an assault by another inmate caused a subdural
hemorrhage (Dkt. 42-4, at 11-14).

During that hospitalization, medical testing

incidentally discovered masses and, upon further testing, Blue was diagnosed with
sarcoidosis (id.) Dr. Bowers, based on his review of Blue’s medical records, summarized
the pertinent portions as follows:
Mr. Blue had a biopsy performed on a skin lesion on June 25, 2015 at
Hospital Galveston. The non-caseating granulomas were diagnosed as
sarcoidosis. Mr. Blue was prescribed Prednisone 40 mg BID. He was to
take Prednisone for 3 months as per the recommendation from
pulmonology. The end date was scheduled for September 28, 2015.
Mr. Blue was seen on July 24, 2015 in the Gastroenterology Clinic at
Hospital Galveston to be evaluated for a liver biopsy. Diagnostic imaging
was performed and showed imaging that was consistent with hepatic
sarcoidosis. At this time he was already receiving treatment for sarcoidosis
so a further biopsy of the liver would not change the treatment plan. The
plan was for him to continue the treatment he was on and follow up with
rheumatology for management of sarcoidosis.
Mr. Blue was seen on September 30, 2015 for his scheduled follow-up with
Rheumatology at Hospital Galveston. Mr. Blue was to continue taking
Prednisone for treatment and return to the clinic in the next two months.
Mr. Blue was seen by Rheumatology at Hospital Galveston on November
25, 2015. During this visit Mr. Blue reported that he was doing well on the
Prednisone and denied any nausea, vomiting, coughing or shortness of
breath. Because Mr. Blue had multi system sarcoidosis and would require

3 / 13

steroids for a long time, he was started on Imuran 50mg—a steroid sparing
agent.
During his March 16[,] 2016 visit to the Rheumatology Clinic, Mr. Blue’s
condition was reported by him to be stable with no new or worsening
symptoms. The plan was for him to continue taking Prednisone and Imuran
long term for his sarcoidosis.
On November 30, 2016 Mr. Blue was seen for his routine follow-up with
Rheumatology. He reported to be doing well on Imuran 50 mg and
Prednisone 5 mg. Mr. Blue denied any new skin lesions. The plan was
then to reduce Mr. Blue’s Prednisone dosage from daily to every other day
and continue Imuran at 50 [mg] daily.
During his February 22, 2017 follow-up visit, it was decided to increase
Mr. Blue’s dosage of Prednisone from 5 mg to 10mg as maintenance
dosage for his liver sarcoidosis. Additionally, as per the recommendation
from Gastroenterology, Mr. Blue was switched from Imuran to
Methotrexate (immunosuppressant) for hepatic sarcoidosis.
As of December 13, 2017 Mr. Blue’s sarcoidosis was “stable” and he had
no complaints. He is continuing with Prednisone and methotrexate.
(Id. at 3-4) (footnotes omitted). Dr. Bowers’ affidavit attached pertinent medical records
supporting his summary.
The Court ordered Plaintiff to respond to the summary judgment motion by May
21, 2018 (Dkt. 46).

In the same order, the Court denied a request from Plaintiff for

production of records pertaining to a period before his diagnosis. Plaintiff did not file a
summary judgment response, but filed an additional request for production of documents
(Dkt. 47).

4 / 13

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).
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
5 / 13

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
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).
6 / 13

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
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).

7 / 13

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.
B.

Eighth Amendment Claim

Plaintiff alleges that Defendants violated his right to adequate medical care.
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 violation. See
Pratt v. Harris Cty., Tex., 822 F.3d 174, 180 (5th Cir. 2016); Townsend v. Moya, 291
8 / 13

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
substantial harm.’” Easter, 467 F.3d at 463 (quoting Mendoza v. Lynaugh, 989 F.2d 191,
193 (5th Cir. 1993)).
9 / 13

In this case, the medical records attached to Dr. Bowers’ affidavit show that Blue
received regular medical care at Hospital Galveston from the time that his sarcoidosis
was diagnosed in June 2015, including follow up care in the gastroenterology and
rheumatology clinics from 2015 through 2017 (Dkt. 42-4, at 3-4 (citing attached medical
records)).

The records further demonstrate that Blue’s condition was observed and

managed successfully through medication and other treatments. See id. (records show
adjustment of prescription medication and dosage to manage condition). By March 2016,
Blue reported to his physicians that his condition was stable, “with no new or worsening
symptoms” (id.). He was continued on a maintenance dosage of his medication in 2017.
On November 30, 2016, he denied any new skin lesions. On December 13, 2017, he was
stable with no complaints, although he reported skin lesions (id.). His pleadings (Dkt.
36) were signed on March 24, 2017.
Because the medical evidence in the record demonstrates that Blue received
extensive medical care for his sarcoidosis, his claim that he was denied medical treatment
in violation of the Eighth Amendment is without merit. 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 extensive medical
records documented that the prisoner was not denied medical attention). Blue may
disagree with the level of care that he was provided, but an inmate’s mere disagreement
with medical treatment does not constitute deliberate indifference absent exceptional
circumstances. See 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
10 / 13

judgment”); Rogers, 709 F.3d at 410. In this case, Blue’s condition stabilized and his
medical records reflect that he reported no complaints at appointments in 2016 and 2017.
To the extent Plaintiff alleges that one of the defendants failed to make a prompt
diagnosis of his sarcoidosis, he provides no specific factual allegations sufficient to state
a claim for relief, either as to his medical condition or as to the specific involvement of
any of the five Defendants. Moreover, a “delay in medical care can only constitute an
Eighth Amendment violation if there has been deliberate indifference that results in
substantial harm.” See Rogers, 709 F.3d at 410 (emphasis in original) (internal citation,
quotation marks, and alteration omitted). Blue does not show that he suffered substantial
harm as a result of any alleged delay and, to the contrary, the medical records show that
his condition has been successfully managed. Even if Plaintiff could successfully state a
claim for negligence or medical malpractice, such a claim would not suffice under the
deliberate indifference standard. See Hinojosa, 807 F.3d at 665; Gibbs v. Grimmette, 254
F.3d 545, 549 (5th Cir. 2001); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).3

3

After the Attorney General filed a Martinez report and provided Blue with over 7,000
pages of medical records, Blue filed a request for production of additional documents (Dkt. 47).
Blue makes broad requests for documents predating his diagnosis, including “any and all medical
records” from as early as 2011 from the LeBlanc, Gist, Jester III, and Wynne Units. He also
requests records from a “local hospital” where he received “a biopsy of his right ear” in 2013.
Plaintiff argues that the requested records will show “medical negligence, medical malpractice,
inadequate medical care and systemic deficiencies regarding medical care by the defendants, that
has made unnecessary suffering inevitable for the severe chronically and terminally ill disable[d]
plaintiff” (Dkt. 47, at 1). Respondent opposes the request as overly broad, unduly burdensome,
and not reasonably limited in time or scope, among other grounds (Dkt. 48).
Plaintiff makes no showing that his requests are relevant to his claims against the five
named Defendants in this lawsuit. Moreover, as stated above, even a showing of negligence or
medical malpractice would be insufficient for an Eighth Amendment violation. See Hinojosa,
11 / 13

Finally, to the extent Blue alleges claims against Livingston in his supervisory
capacity, he also fails to state a claim upon which relief can be granted. It is well
established that a supervisory official is not liable under Section 1983 for the actions of
subordinates on any theory of vicarious liability. Monell v. Dep’t of Social Servs., 436
U.S. 658, 691-95 (1978) (holding that supervisory officials cannot be held vicariously
liable for their subordinates’ actions under Section 1983); see Iqbal, 556 U.S. at 677
(“‘[S]upervisory liability’ is a misnomer. Absent vicarious liability, each Government
official, his or her title notwithstanding, is only liable for his or her own misconduct”);
Alton v. Texas A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999) (“Supervisory officers . . .
cannot be held liable under § 1983 for the actions of subordinates . . . on any theory of
vicarious liability.”). Supervisory officials can be held liable under Section 1983 only if
the plaintiff demonstrates (1) the supervisor’s personal involvement in the constitutional
deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful
conduct and the deprivation. See Evett v. Deep East Tex. Narcotics Trafficking Task
Force, 330 F.3d 681, 689 (5th Cir. 2003). Blue has made neither showing in this case.
Viewing all facts in the light most favorable to Blue, he has failed to demonstrate a
genuine issue of material fact as to his Eighth Amendment claim. Summary judgment is
granted for Defendants.
IV.

CONCLUSION
For the reasons stated above the Court ORDERS that:

807 F.3d at 665. Plaintiff’s request for production of additional documents therefore will be
denied.
12 / 13

1.

Summary judgment is GRANTED for Defendants. Plaintiff’s claims are
DISMISSED with prejudice pursuant to Rule 56 and 28 U.S.C.
§§ 1915(e)(2)(B).

2.

Plaintiff’s motion for production of additional documents (Dkt. 47) is
DENIED.

3.

All other pending motions, if any, are DENIED as moot.

A separate final judgment will issue.
The Clerk of this Court shall send a copy of this order to the parties and to amicus
curiae.
SIGNED at Galveston, Texas, this 25th day of September, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

13 / 13