McCoy v. Ku Ku et al
Filing
24
MEMORANDUM OPINION AND ORDER granting 19 Sealed Event, 18 MOTION to Seal DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND EXHIBITS A, B, AND D Email sent to Manager of Three Strikes List. All of Plaintiffs claims are DISMISSED with prejudice under Federal Rule of Civil Procedure 56 and 28 U.S.C. § 1915(e)(2)(b).(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
PRINCE McCOY,
TDCJ # 00852958,
Plaintiff,
VS.
PATRICIA KUKU, et al.
Defendants.
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July 19, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 3:17-0275
MEMORANDUM OPINION AND ORDER
Plaintiff Prince McCoy, an inmate in the Texas Department of Criminal Justice–
Correctional Institutions Division (“TDCJ”), brings this lawsuit pro se complaining of
inadequate medical care for his low blood sugar. After the Court denied Defendants’
motion to dismiss, Defendants filed a motion for summary judgment (Dkt. 19), to which
Plaintiff has responded (Dkt. 21). Defendants also filed a motion to seal their summary
judgment motion and three exhibits (Dkt. 18), to which Plaintiff has responded in
opposition (Dkt. 22). The motions are ripe for decision.
Having considered the
pleadings, the briefing, all matters of record, and the applicable law, the Court determines
that the motions should be granted for the reasons that follow.
I.
BACKGROUND
Plaintiff brings this civil rights action against three medical personnel at TDCJ’s
Darrington Unit: Patricia Kuku L.V.N., Lisa Monse L.V.N., and Terry Speer N.P.1 He
1
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Some documents in the record refer to Kuku by her former name, Patricia Brown.
alleges that Defendants denied him adequate medical treatment for low blood sugar on
several occasions in 2016 and that Kuku “assaulted” his eyes with ammonia. He seeks an
unspecified amount of nominal, compensatory, and punitive damages (Dkt. 1, at 4).2
Defendants have moved for summary judgment and have supplied Plaintiff’s medical
records and administrative grievance records (Dkt. 19-1–Dkt. 19-26; Dkt. 20). They also
submit an affidavit from Steven Bowers, M.D., the legal coordinator for the University of
Texas Medical Branch (“UTMB”) Correctional Managed Care, presenting his findings
and opinions based on his review of Plaintiff’s medical records (Dkt. 19-27).
On March 14, 2016, McCoy was treated at the Darrington Unit for unresolved
hypoglycemia (Dkt. 19-27, at 4, at 26-30). After clinic staff gave him glucose by mouth,
McCoy was transferred to the emergency department at UTMB Angleton Danbury
Hospital, where he was treated and released (id. at 26-30). The next day, Defendant
Speer conducted a follow-up examination at the Darrington Unit clinic and recorded that
McCoy’s blood sugar was 72 mg/dL, with no symptoms of hypoglycemia (id. at 4, 2325). Dr. Bowers states, upon his review of the records, that McCoy’s “condition was
overall normal” (id. at 4). Speer’s treatment plan for McCoy included “[s]nacks between
meals” (id. at 25).
On April 11, 2016, McCoy complained of low blood sugar and was examined at
the Darrington Unit clinic by Defendant Monse (id. at 3, 14-16). Monse’s records reflect
that McCoy was alert, oriented, and denied visual disturbances (id.at 16). McCoy’s
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.
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blood sugar initially was 59 mg/dL but increased to 70 mg/dL after McCoy ate at the
clinic (id. at 3, 16). McCoy reported feeling “a lot better” and was released (id. at 16
(“released to security . . . . [McCoy] was given an additional peanut butter sandwich to
take with him”)).
On April 20, 2016, Plaintiff states that he passed out from low blood sugar and
that Defendant Kuku responded to his cell. He claims that he was unconscious when
Kuku arrived, that she revived him by rubbing ammonia under his nose and then all over
his face (Dkt. 1, at 7). After he was taken to the clinic on a stretcher, McCoy alleges that
Kuku took his vital signs “roughly” and that another nurse then checked his blood sugar
(id.; Dkt. 9, at 5). Based on his review of the records, Dr. Bowers states that Kuku did
not treat McCoy for low blood sugar on April 20 or any other day (Dkt. 19-27, at 3).
Rather, McCoy “initially saw Ms. Kuku on April 20, 2016,” but “became verbally
aggressive towards her before the exam began, and another nurse subsequently took
over” (id. (citing id. at 11-13)).
McCoy asserts that when Kuku caused ammonia to get in his eyes on April 20,
2016 she subjected him to an “unnecessary assault” that “resulted in McCoy needing
treatment for his injured eyes,” and that she did not act “in good faith” (Dkt. 21, at 2, 4).
As support for his claim, McCoy cites the Court to multiple pages in the medical records
that reflect medical attention for his eye complaints (id. at 2). However, none of the cited
records indicate that McCoy suffered an eye injury on April 20, 2016. Many of the
records are unrelated to any alleged eye injury, instead pertaining to routine eye care.
See, e.g., Dkt. 19-2, at 6 (Bates 018); Dkt. 19-3, at 11 (Bates 046); Dkt. 19-18 at 10-18
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(Bates 305-13); Dkt. 19-19, at 3-4 (Bates 316-17).
Although several records note
McCoy’s complaint of an injury by ammonia, those same records reflect that, upon
examination of McCoy’s eyes, medical providers noted no redness, irritation, discharge,
or other symptoms.3
The medical providers therefore concluded on more than one
occasion that no treatment was indicated for McCoy’s eyes. See, e.g., Dkt. 19-2, at 10;
Dkt. 19-10, at 1-2; Dkt. 19-11, at 1.4
On April 28, 2016, Monse again treated McCoy for his complaints of low blood
sugar (Dkt. 19-27, at 3-4, 17-19). Monse consulted with Edgar Hulipas, M.D., during the
encounter (id. at 19). Medical records reflect that McCoy’s blood sugar was initially 45
3
See Dkt. 19-2, at 10 (Bates 022) (records from June 1, 2016, reflect McCoy’s complaints
of “burning eyes” and his statement that, one month earlier, he had been “treated with ammonia
and it got in his eyes and has been burning ever since”; records also reflect that upon
examination the provider informed McCoy “that eyes [are] not red and no irritation noted”);
Dkt. 19-15, at 16 & Dkt. 19-16, at 1 (Bates 259-60) (records from September 2, 2016, reflect
McCoy’s complaints of burning, itchy eyes; eye examination was “normal” with no discharge or
injury noted); Dkt. 19-11, at 16-17 (Bates 194-95) (records from December 13, 2016, reflect
McCoy’s complaint that he “had ammonia fall in his eyes 5-6 months ago”; eye examination
revealed “[n]o redness, swelling or drainage noted to bilat[eral] eyes”); Dkt. 19-10, at 19-20 &
Dkt. 19-11, at 1 (Bates 177-79) (records from January 23, 2017, note McCoy’s complaints of
blurred vision and burning eyes; upon examination, provider concluded “no t[reatment] indicated
at this time—[return to clinic] if symptoms worsen”); Dkt. 19-2, at 4 (Bates 016) (records from
February 2, 2017, reflect McCoy’s complaints that he needed eyedrops because he had “an initial
injury of ammonia in his eyes from an ammonia capsule exacerbated a short time later by an
illegal use of chemical agents sprayed directly into his face”); Dkt. 19-10, at 1-2 (Bates 159-60)
(records from March 28, 2017, reflect McCoy’s complaints of burning eyes and blurry vision;
upon examination, the provider concluded “no t[reatment] indicated at this time—[return to
clinic] if symptoms worsen”). See also Dkt. 9, at 7, 10, 14-15 (sick call slips reflect McCoy’s
eye complaints in 2016 and 2017).
4
McCoy also submits records from a grievance he filed complaining of inadequate
medical treatment for Kuku’s alleged actions causing injury to his eyes. The administrative
response dated August 19, 2016, states that the documentation showed that McCoy had been
“evaluated according to proper protocol” with “no mistreatment or harassment” and that he was
“brought to medical without any injuries” (Dkt. 1, at 17-18).
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mg/dL, but rose to 69mg/dL after he consumed two peanut butter sandwiches and six
cups of water, at which point he was released to security (id. at 4, 19).
On May 4, 2016, Monse saw McCoy when he presented for a urine test and daily
weight check (id. at 4, 20-22 (“scheduled urine dipstick and daily weight due to
hypoglycemia and admitted not eating by [McCoy]”)). The records reflect that McCoy
denied any symptoms of low blood sugar at the appointment (id. at 22).
On May 19, 2016, McCoy was treated at the clinic for low blood sugar. Plaintiff
states that Monse informed him that Speer had discontinued Plaintiff’s “hypo snacks” as
of that day (Dkt. 21, at 1-2). He asserts that he had been prescribed a hypo snack after
each meal “by a doctor on Wynne Unit” and that his “blood sugar is often low” (id. at 2),
and characterizes Speer’s decision as a “malicous[] and sadistic[]” denial of food (id.).
McCoy further asserts that there was “no medical justified penol[o]gical reason for
Speer[] to discontinue McCoy’s hypo snacks on 5-19-1[6] when doing so would only
render inadequate medical treatment, deliberate indifference” (id.). Despite his allegation
that Speer made the decision, he also claims that Monse acted maliciously and
sadistically for the purpose of causing him harm, i.e., causing his blood sugar to drop
when his hypo snacks were discontinued (Dkt. 1, at 7).
Plaintiff presents records from grievances he filed regarding the discontinued
snacks.
The grievances reflect officials’ statements that, based on the records, his
medical needs were being met because the snacks were no longer medically necessary
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and because McCoy was receiving a hypercaloric diet.5 Plaintiff also submitted multiple
sick call slips complaining of the discontinued snacks, which reflect that medical staff
repeatedly advised him not to skip meals.6 Based on his review of McCoy’s records, Dr.
Bowers states that the hypoglycemic snacks were discontinued in May 2016 “because his
blood sugar was found to be within normal limits, so the need for snacks between meals
was no longer present. As a result, Mr. McCoy was advised to simply eat his regular
meals as scheduled” (Dkt. 19-27, at 4 (citing id. at 31-33)).
Finally, Plaintiff alleges that he had been prescribed monthly B-12 injections in
February 2016 to treat his low blood sugar, but that he did not receive the injections as
prescribed (Dkt. 1, at 8). He submits his sick call slips requesting the injections and
records from a related grievance, which reflects TDCJ’s response in September 2016 that
the grievance had merit and the shots should have been administered.7
He appears to
allege that the delay in receiving the injections was attributable to Speer. See Dkt. 21, at
5
See Dkt. 1, at 13-14 (response to Grievance No. 2016123712, dated August 15, 2016,
states that McCoy’s complaints regarding denial of his “hypo snack” was unfounded because
“[a]ccording to the documentation, the provider conducted a chart review and concluded it was
no longer necessary for you to receive snacks”); id. at 15-16 (response to Grievance No.
2016145752, dated August 18, 2016, states that snacks were discontinued on May 19, 2016 but
that “you currently have an active order for a hyper caloric diet with evening snacks”).
6
See, e.g., Dkt. 9, at 9 (January 8, 2016); id. at 7-8 (May 20, 2016); id. at 11 (June 14,
2016). On a sick call slip dated May 26, 2016, medical staff advised McCoy, “Avoid starving
yourself, eat regularly, last blood work was fine” (Dkt. 19-27, at 33). Plaintiff denies that he was
starving himself (Dkt. 1, at 7).
7
See Dkt. 9, at 20-21 (in Step 1 response to Grievance No. 2016181795, dated September
19, 2016, TDCJ officials state that Plaintiff’s grievance regarding monthly B-12 injections “ha[d]
merit” and that McCoy “should have been administered [his] B-12 shots”); id. at 11-12
(Plaintiff’s sick call slips from June and July 2016 request the monthly B-12 injections; response
dated July 5, 2016, advises Plaintiff “eat regularly, med[ication] current”).
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5 (Speer “delay[ed] to refill [McCoy’s] B-12 injection prescription and the medical
staff’s refusal to administer it when it was prescribed constitutes. . . deliberate
indifference to McCoy’s serious medical need”).
Based on his experience and his review of Plaintiff’s medical records, Dr. Bowers
concludes that McCoy received appropriate care:
Each time Mr. McCoy presented to the clinic for complaints of low blood
sugar, his levels were checked and the treatment he received was
appropriate. He was not released to security until his blood sugar was at an
acceptable level . . . . Based on my education, training, and experience as a
physician both in the community and correctional settings, I believe that the
medical treatment provided to Mr. McCoy was both appropriate and
performed within the standard of care.
(Dkt. 19-27, at 4-5). Plaintiff maintains that Defendants knew he “suffered daily” but
denied him appropriate medical care. See, e.g., Dkt. 21, at 6.
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
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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
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). Regardless of how well-pleaded the factual allegations may be, they must
demonstrate that the plaintiff is entitled to relief under a valid legal theory. See Neitzke v.
Williams, 490 U.S. 319, 327 (1989); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997).
B.
Summary Judgment—Rule 56
Defendants have moved for summary judgment. Rule 56 of the Federal Rules of
Civil Procedure mandates the entry of summary judgment “if the movant shows that there
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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. The nonmoving party
must present specific facts which show “the existence of a genuine issue concerning
every essential component of its case.” Firman v. Life Ins. Co. of N. Am., 684 F.3d 533,
538 (5th Cir. 2012) (citation and internal quotation marks omitted).
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
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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).
III.
ANALYSIS
Plaintiff alleges that Defendants violated his constitutional rights when they
denied him adequate treatment for low blood sugar. 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
prison official, for a constitutional 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.
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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’”).8
A.
Motion to Seal
Along with their motion for summary judgment, Defendants filed a request to seal
the motion and Exhibits A, B, and D, all of which contain or refer to Plaintiff’s
confidential medical information. Plaintiff has filed in opposition and argues that sealing
the motion “would be denying plaintiff’s first amendment right to petition the
government, and access to courts, and deny plaintiff’s opportunities to seek redress in
responding to the defendant’s motions in the future” (Dkt. 22, at 1).
Because sealing the motion and exhibits at issue does not affect McCoy’s access
to courts or other First Amendment rights, and because the documents contain Plaintiff’s
confidential medical information, Defendants’ motion to seal (Dkt. 18) will be granted.
B.
Qualified Immunity
Defendants have invoked qualified immunity. 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
8
Plaintiff’s claims are against Defendants in their individual capacities only. The Court
previously dismissed all claims against Defendants in their official capacities (Dkt. 16).
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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).
“Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation are all insufficient to overcome [qualified]
immunity.” See Orr v. Copeland, 844 F.3d 484, 490 (5th Cir. 2016) (citation and internal
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 case at hand.
Pearson v.
Callahan, 555 U.S. 223, 236 (2009); Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir.
2017). Given the circumstances of this case, the Court proceeds to analyze the merits of
his constitutional claims.
C.
Medical Care Claims
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).
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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)).
Plaintiff alleges generally that Defendants knew that he suffered daily from low
blood sugar but denied him adequate medical care. This allegation is refuted by the
medical records before the Court which show that McCoy received frequent medical care
including, at certain times, daily monitoring of his urine and blood sugar. See, e.g., Dkt.
19-27, at 22 (Plaintiff was seen at clinic on May 4, 2016 for “scheduled urine dipstick
and daily weight due to hypoglycemia”)). See Varnardo v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991); McCord v. Maggio, 910 F.2d 1248, 1251 (5th Cir. 1990). The records
also demonstrate McCoy’s medical providers’ repeated notation that McCoy’s blood
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sugar was low because he had not eaten,9 and was often alleviated quickly when McCoy
ate in the clinic. See Dkt. 19-27, at 16, 19.
The Court now addresses Plaintiff’s specific claims against each of the three
Defendants.
1.
Kuku
Plaintiff alleges that Kuku was deliberately indifferent to his serious medical
needs and that she assaulted him on April 20, 2016. Dr. Bowers states in his affidavit
that Kuku never treated McCoy for low blood sugar because, when McCoy was verbally
aggressive to Kuku on April 20, 2016, another nurse took over his care (Dkt. 19-27, at 3;
see id. at 11-13). Plaintiff does not dispute this fact, and agrees that another nurse took
over from Kuku that day and conducted the blood sugar testing (Dkt. 1, at 7). Plaintiff
makes no other allegations regarding Kuku’s treatment for his low blood sugar. He
therefore fails to demonstrate a genuine issue of material fact that Kuku was deliberately
indifferent to his serious medical needs in connection with hypoglycemia. See Easter,
467 F.3d at 463.
To the extent McCoy also intends to bring an excessive force claim against Kuku
for “assault” of his eyes with ammonia, his claim fails. 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
9
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See Dkt. 19-27, at 22 (records refer to “admitted not eating” by Plaintiff).
(1986)). In this case, by Plaintiff’s own version of the facts, ammonia got in his eye
when he was unconscious and Kuku was using ammonia to provide emergency medical
treatment. See Dkt. 21, at 4 (alleging that, when attempting to revive McCoy after he
passed out, Kuku “rubb[ed] the ammonia all over his face into his eyes”).
Despite his
use of the label “assault,” he does not allege facts supporting a claim that Kuku actually
used physical force against him, nor that she applied any such force maliciously or
sadistically. Moreover, even if the Court were to assume that a use of force occurred and
that the force was more than de minimus,10 the record refutes McCoy’s assertion that he
was injured during the encounter with Kuku.
Although McCoy cites the Court to
multiple pages in his medical records that relate to his eyes, none of the cited records
indicate any injury from April 20. The Fifth Circuit has held that even “insignificant
injuries” may be cognizable when resulting from an officials’ use of unreasonably
excessive force. Sam v. Richard, 887 F.3d 710, 713 (5th Cir. 2018); see Hudson, 503
U.S. at 7 (“[t]he absence of serious injury is… relevant to the Eighth Amendment
inquiry, but does not end it”). In this case, however, the records cited by McCoy do not
reflect any injury to his eye and, in fact, show no medical treatment related to exposure to
ammonia.
Given the administrative and medical records contradicting Plaintiff’s allegations
of force and injury, his conclusory allegation that Kuku “assaulted” him is insufficient to
10
The Eighth Amendment prohibition of excessive force “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.” Hudson, 503 U.S. at 9-10 (internal citations
and quotation marks omitted).
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state a non-frivolous 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”). For essentially the same reasons, his conclusory
allegations do not defeat the qualified immunity protection invoked by Kuku. See Orr,
844 F.3d at 490. All claims against Kuku therefore will be dismissed.
2.
Monse
Plaintiff alleges that Monse refused to provide him with adequate medical care for
his low blood sugar. Dr. Bowers’ affidavit states that Monse treated McCoy for low
blood sugar on three occasions: April 11, 2016; April 28, 2016; and May 4, 2016 (Dkt.
19-27, at 3-4, 14-22). On April 11, 2016, Monse gave McCoy a sandwich and his blood
sugar level increased. McCoy reported feeling “a lot better” when Monse released him
(id. at 16). On April 28, 2016, Monse gave McCoy two sandwiches and tested his blood
sugar several times, consulting with a medical doctor and releasing him from the clinic
only after his blood sugar rose to an acceptable level (id. at 19). On May 4, 2016, Monse
conducted a routine urine dipstick test and daily weight check, and noted that McCoy
denied any symptoms (id. at 22). Plaintiff does not direct the Court’s attention to other
occasions on which Monse allegedly violated his rights.11
11
Although Plaintiff appears to allege that Monse violated his Eighth Amendment rights in
connection with the discontinuation of hypo snacks in May 2016, he explicitly alleges that Speer
made the decision to discontinue the snacks, not Monse. See Dkt. 1, at 7; Dkt. 21, at 1-2. The
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Plaintiff fails to demonstrate a genuine issue of material fact that Monse was
deliberately indifferent to his serious medical needs. See Easter, 456 F.3d at 463 (Eighth
Amendment prohibits “unnecessary and wanton infliction of pain”); Hinojosa, 807 F.3d
665 (even a showing of negligence by medical personnel is insufficient to satisfy
deliberate indifference standards). To the contrary, the medical records presented by both
parties indicate that McCoy received regular, frequent medical care for his symptoms.
See, e.g., Dkt. 19-27, at 14-22. Plaintiff’s conclusory allegations that Monse “denied”
him medical care or “refused” to treat him are insufficient to defeat summary judgment
and, moreover, are refuted by the medical records. See Jones, 678 F.3d at 348. Monse
therefore is entitled to qualified immunity and the claims against her will be dismissed.
See Orr, 844 F.3d at 490.
3.
Speer
McCoy alleges that Speer denied him adequate medical treatment when he
discontinued McCoy’s “hypo[glycemia] snacks” on May 19, 2016 (Dkt. 21, at 1-2). He
asserts that because his “blood sugar was low on the Darrington Unit repeatedly . . .
[t]here was no medical justified penol[o]gical reason for Speer to discontinue McCoy’s
hypo snacks on 5-19-1[6] when doing so would only render inadequate medical
treatment, deliberate indifference” (id. at 2). Dr. Bowers’ affidavit and the attached
medical records demonstrate that medical staff discontinued McCoy’s snacks in May
issue regarding snacks in May 2016 therefore is addressed below in the context of Plaintiff’s
claims against Speer.
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2016 because McCoy’s blood sugar “was found to be within normal limits, so the need
for snacks between meals was no longer present” (Dkt. 19-27, at 4, 31-33).
Despite his conclusory allegations of Defendants’ deliberate indifference or
malicious intent,12 McCoy does not dispute the evidence that the hypo snacks were not
medically necessary on May 19, 2016. He therefore fails to demonstrate a genuine issue
of material fact that Speer acted with deliberate indifference to his serious medical need.
See Simbaki, 767 F.3d at 484; Jones, 678 F.3d at 348. To the extent that McCoy
complains about a medical decision that he should eat regular meals rather than receive
an additional snack, the Supreme Court has clarified that a decision of this nature, which
involves a determination about whether a certain form of treatment is indicated, “is a
classic example of a matter for medical judgment.” Estelle, 429 U.S. at 107; see Uzomba
v. Univ. Health Sys., B.C.A.D.C., 558 F. App’x 474, 474 (5th Cir. 2014) (plaintiff’s
“disagreement with a doctor's decision to order blood sugar monitoring instead of placing
him on a special diet in connection with his hypoglycemia does not constitute deliberate
indifference”).13 Therefore, Speer is entitled to qualified immunity and Plaintiff’s claims
against him will be dismissed. See Orr, 844 F.3d at 490.
12
See, e.g., Dkt. 21, at 4 (“Plaintiff contends it makes sense to infer that the defendants
wanted him humiliated, and didn’t give a fig for his welfare when they acted promptly to not
protect his safety”); id. (Monse and Speer’s “refusal to treat McCoy and their evil act of taking
McCoy off his hypo snacks was done maliciously and sadistically for the very purpose of
causing harm”); id. at 6 (“The defendants all ignored the dangers posed by exposure by depriving
McCoy of adequate medical treatment notwithstanding the fact plaintiff could have died from
such injuries or could sustain permanent impairment of disability from the injury”).
13
Additionally, to the extent McCoy argues that Speer violated his Eighth Amendment
rights by delaying a prescription refill for McCoy’s B-12 injections, see Dkt. 21, at 5, his claim
fails. A “delay in medical care can only constitute an Eighth Amendment violation if there has
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IV.
CONCLUSION
For the reasons stated above the Court ORDERS that:
1.
Defendants’ motion to seal (Dkt. 18) is GRANTED.
2.
Defendants’ motion for summary judgment (Dkt. 19) is GRANTED. All
of Plaintiff’s claims are DISMISSED with prejudice under Federal Rule
of Civil Procedure 56 and 28 U.S.C. § 1915(e)(2)(b).
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 19th day of July, 2019.
___________________________________
George C. Hanks Jr.
United States District Judge
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). McCoy does
not direct the Court’s attention to summary judgment evidence that Speer caused the delay and,
moreover, does not demonstrate a genuine issue of material fact that he suffered substantial harm
as a result of any delay.
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