Balcerowicz v. Estelle Unit TDCJ et al
MEMORANDUM AND OPINION and ORDER entered granting 15 MOTION to Dismiss Under Rule 12(b)(6). The motion for summary judgment filed by defendants Thomas Powell, P.A., RandallHealy, P.A., and Maureen Liles, R.N. (Docket Entry No. 24) is GRANTED and plaintiffs claims against them are DISMISSED WITH PREJUDICE.Any and all pending motions are DENIED AS MOOT. (Signed by Judge Keith P Ellison) Parties notified. (wbostic, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LARRY EUGENE BALCEROWICZ,
JR., a/k/a LARRY MICHAEL
JOHNSON, TDCJ-CID # 1672723,
DAVID W. SWEETIN, et al.,
April 06, 2017
David J. Bradley, Clerk
Civil Action No. H-12-0310
MEMORANDUM OPINION AND ORDER
Plaintiff Larry Eugene Balcerowicz, also known as Larry Michael Johnson, a state
inmate at the time of filing, filed this prose section 1983 lawsuit raising claims of deliberate
indifference to his health and serious medical needs against prison correctional officers
Warden David W. Sweetin, Assistant Warden Christopher G. Carter, Major David Forrest,
and Peggy Haggard (collectively the "Correctional Defendants), and against prison medical
care providers Thomas Powell, P.A., Randall Healy, P.A., and Maureen Liles, R.N.
(collectively the "Medical Defendants"). All of the named defendants are sued in their
individual capacities. (Docket Entry No. 12.)
The Correctional Defendants filed a motion to dismiss (Docket Entry No. 15), to
which plaintiff filed a response (Docket Entry No. 18). The Medical Defendants filed a
motion for summary judgment (Docket Entry No. 24), to which plaintiff filed a response
(Docket Entry No. 26). The Medical Defendants filed a reply to plaintiffs response (Docket
Entry No. 27), followed by a sur-reply filed by plaintiff (Docket Entry No. 28).
Based on careful consideration of the motions and the various responsive pleadings,
the exhibits, the record, and the applicable law, the Court GRANTS the motion to dismiss,
GRANTS the motion for summary judgment, and DISMISSES this lawsuit for the reasons
I. BACKGROUND AND CLAIMS
Plaintiff alleges in his complaint that, on or about November 2, 2010, he arrived at the
Estelle Unit from the Garza Transfer Facility. Plaintiff states that he had been evaluated by
medical staff at the Garza Transfer Facility, where he reported his hearing impairment,
asthma, and history of short "black out" seizures, but that he was not examined or evaluated
by medical personnel upon his arrival at the Estelle Unit. He claims that he was not seen by
Estelle Unit medical personnel until he suffered an asthma attack on November 9, 2010, and
was treated by the medical staff and prescribed an asthma inhaler. He complained to one or
more of the Medical Defendants that he had not been evaluated by Estelle Unit personnel
upon his arrival, and had not received his asthma medication or any work restrictions.
Plaintiff reports that a few months later, he was assigned to work in the outdoor field
squad. He reports no specific beginning date, but does state that on June 24, 2011, he
complained to medical personnel that his working in the fields was causing problems with
his asthma and seizures. Plaintiff states that he also sent I-60 complaints to the Correctional
Defendants complaining that he was being "worked against restrictions" in the field squad.
He complains here that he was only able to get a drink of water once an hour, and that he
developed headaches, "shakes," and breathing difficulties. On July 26, 2011, he asked
defendant Healy for medical restrictions to keep him from working in the fields; Healy
responded that medical staff cannot make work assignment decisions. The next day, July 27,
2011, plaintiff reportedly "fell out" while working the fields and "woke up" in the infirmary,
claiming that he had a "space out" seizure from being outside.
As to the Correctional Defendants, plaintiff claims that Sweetin "ignored all pleas for
help medical and safety. I wrote letters and requests for his help and authority power," that
Carter "failed to respond and help to all pleas of help and assistance," that Forrest "refused
to help me. Failed to help w/my pleas formed & safety," and that Haggard "ignored and
refused to help mew/my pleas for help medically & security & safety." (Docket Entry No.
1, p. 3.) As to the Medical Defendants, plaintiff states that Powell and Healy "refused and
denied me proper medical help and treatment," and that Liles "refused and denied me proper
medical treatment and held against a P.A. Dr.s [sic] orders and advice." !d. Construed
liberally, plaintiffs complaint raises claims against all of the defendants for deliberate
indifference to his health and serious medical needs. He seeks monetary compensation and
II. THE CORRECTIONAL DEFENDANTS
In their pending Rule 12(b)( 6) motion to dismiss, the Correctional Defendants argue
that plaintiffs claims against them should be dismissed because he fails to state a viable
section 1983 Eighth Amendment deliberate indifference claim.
Rule 12(b)(6) Standards
In reviewing the adequacy of a complaint under Rule 12(b)(6) ofthe Federal Rules
of Civil Procedure, a court must accept all well-pleaded facts as true and view all facts in the
light most favorable to the plaintiff. Thompson v. City of Waco, 764 F.3d 500, 502 (5th Cir.
2014). It need not, however, accept a plaintiffs legal conclusions as true. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). To survive dismissal under Rule 12(b)(6), a plaintiff must plead
"enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. As recognized by
the Fifth Circuit Court of Appeals, the court's task "is to determine whether the plaintiff
stated a legally cognizable claim that is plausible, not to evaluate the plaintiffs likelihood
of success." Doe ex rei. Magee v. Covington Cnty. Sch. Dist. ex rei. Keys, 675 F.3d 849, 854
(5th Cir. 2012) (en bane).
On a Rule 12(b )( 6) motion, a district court generally "must limit itself to the contents
of the pleadings, including attachments thereto." Collins v. Morgan Stanley Dean Witter,
224 F.3d 496,498 (5th Cir. 2000). The court may also consider documents attached to either
a motion to dismiss or an opposition to that motion when the documents are referred to in the
pleadings and are central to a plaintiffs claims. ld.; see also Walch v. Adjutant General's
Dep't of Tex., 533 F.3d 289, 293-94 (5th Cir. 2008) (considering exhibits attached to an
opposition because no party questioned the authenticity of the documents and they were
sufficiently referenced in the complaint to permit their consideration on a motion to dismiss).
Although no documents were attached to plaintiffs complaint or defendants' motion to
dismiss in the instant case, plaintiff attached documents to his response in opposition to the
motion to dismiss. The Correctional Defendants do not challenge the authenticity of the
documents; to the contrary, the same documents are among those submitted by the Medical
Defendants in support of their own motion for summary judgment. Consequently, in
considering the pending motion to dismiss, the Court will include the exhibits attached to
plaintiffs response in opposition to the motion.
A pleading filed prose is to be liberally construed, and "a prose complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under this standard, pleadings filed
by a prose litigant are entitled to a liberal construction that affords all reasonable inferences
which can be drawn from them. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Oliver v.
Scott, 276 F.3d 736, 740 (5th Cir. 2000). Because plaintiff is proceeding prose, he will be
afforded the benefit of liberal construction under Haines.
Plaintiff claims that the Correctional Defendants violated his Eighth Amendment
rights through deliberate indifference to his health and safety.
A claim for deliberate indifference to a prisoner's health and safety requires proof that
an officer knew of and disregarded an excessive risk to the inmate's physical health or safety,
and that the inmate suffered physical harm or injury as a result. The inmate must show that
the officer was aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and that the officer did in fact draw the inference and disregarded it.
Farmer v. Brennan, 511 U.S. 825, 838 (1994). The failure of an officer to alleviate a
significant risk which he should have perceived, but did not, does not constitute deliberate
indifference. Moreover, mere negligence or a lack of reasonable care which falls short of
being deliberately indifferent does not give rise to a constitutional violation. !d. at 832-33;
Hortonv. Cockrell, 70F.3d397,401 (5thCir.l995). Tomeetthisstandard,aprisonermust
establish more than mere negligence or an unreasonable response. Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006).
The record shows that plaintiff had been evaluated immediately prior to his transfer
to the Estelle Unit, as shown by his Correctional Managed Care Intake History and Health
Screening dated November 2, 2011. (Docket Entry No. 24-3, p. 22.) The form indicated that
plaintiffhad an asthma inhaler with him and was allowed to keep it on his person. That same
day, prison physician Dr. Lieninger ordered that plaintiff be given a permanent bottom bunk
restriction and a prescription for his regular seizure medication.
Plaintiffs medical and prison records also show that, on November 4, 2010, his
Medical and Mental Health Transfer Screening form was completed at the Estelle Unit. !d.,
pp. 278-79. The form noted that plaintiff was complaining ofleft-sided chest pain, and that
he was taking phenytoin, an anti-seizure medication. He was approved for release to general
population, and was given housing restrictions. !d., p. 279. His work restrictions were noted
as "12, 19, 20, 23, 25, & 27." 1 !d. On November 4, 2010, he was seen by defendant
registered nurse Liles at the Estelle Unit after complaining of left-sided chest pain of two
days duration. !d., pp. 219. The medical chart entry noted that plaintiffhad been in a fight
two days prior at the Lychner Jail. !d. Plaintiff was provided a cold pack and ibuprofen, and
was returned to his cell.
Thus, plaintiffs allegations and his medical records show that he was provided an
intake evaluation, work restrictions, housing assignment and bunk restrictions, as well as
prescriptions for his regular medications. He was allowed to keep his asthma inhaler on his
person. He was seen, evaluated, and treated for complaints of muscle pain in his chest two
days after his arrival at the Estelle Unit.
These restrictions included: no climbing, no work in direct sunlight, no temperature
extremes, no work with chemicals or irritants, and no work around machines with moving parts.
Plaintiff asserts that unidentified persons assigned him at an unidentified time to work
in the fields. In arguing that the Correctional Defendants were deliberately indifferent to his
health and safety, he states that they were aware of his hearing impairment and had
knowledge of facts "from which they could infer that plaintiffs assignment to work in the
fields would expose him to a substantial risk of serious harm." (Docket Entry No. 18, p. 3.)
Specifically, he argues that his hearing impairment could have resulted in his being shot by
armed guards if he were to venture out of bounds and not hear their warnings. !d. Or, he
continues, he could not hear shouts to "move out of the way" of a falling tree. !d., p. 4.
However, plaintiff does not allege in his complaint that the defendants knew, or could infer
from known facts, that plaintiffs field work exposed him to a serious risk of being shot or
struck by falling trees and that they deliberately disregarded those risks. Rather, plaintiff
claims that working in the hoe squad caused him to overheat, and that the Corrections
Defendants deliberately ignored the substantial risk of his overheating if assigned to the hoe
Plaintiff makes no correlation between his hearing impairment and a substantial risk
of overheating. That is, he fails to allege facts showing that defendants could infer; from
their knowledge of his hearing impairment, that his working in the fields would expose him
to a substantial risk of serious overheating. To the contrary, plaintiff sets forth no factual
allegations establishing that, at the time he was assigned to the hoe squad, the Correctional
Defendants knew that the work assignment would expose plaintiff to an excessive risk of
overheating and that they disregarded that risk. He further fails to allege and show that the
Correctional Defendants were both aware of the facts from which the inference could be
drawn that a substantial risk of serious harm existed, and that they drew the inference.
At some point after his assignment to the hoe squad, plaintiff sent an internal
communication to the Unit Classification Committee, stating his belief that the work was
dangerous for him because of his hearing impairment. He was not removed from the work
assignment. !d., pp. 5-6. Plaintiff did not inform anyone that he was experiencing physical
problems working in the heat until July 26, 2011, following his claim that he had experienced
a seizure while working outside, despite having purportedly taken his anti-seizure
medications. 2 He complained to staff immediately after the alleged seizure that he "should
not be outside working and needs restrictions changed." (Docket Entry No. 18, p. 25.) His
physical examination revealed "chest clear, no wheezes, not on resp rx," "no tremors, good
gait, no leg edema or atrophy." The nursing staff noted no seizure activity. !d., p. 21. His
respirations were "even & unlabored" when he was brought in from the field. !d., p. 25. On
July 27, 2011, his medical care providers added a work restriction for "no work in direct
sunlight." (Docket Entry No. 26, Exhibit H.) Plaintiff does not claim that he was required
to work outside in the field squad after that date.
Plaintiffs medical care provider ordered that, as of that day, medical personnel were to
actually watch plaintiff take and swallow his medications. (Docket Entry No. 18, p. 20.)
Plaintiff fails to allege facts showing that the Correctional Defendants knew, or could
infer from their existing knowledge, that his working in the fields would expose him to a
substantial risk of serious overheating or seizure activity, and that they disregarded that risk.
He further fails to allege and show that the Correctional Defendants were both aware of the
facts from which such inference could be drawn that a substantial risk of serious harm
existed, and that they drew the inference.
Plaintiff does not state a viable Eighth Amendment claim for deliberate indifference
as to the Correctional Defendants, and the Correctional Defendants are entitled to dismissal
of plaintiffs claims against them.
III. THE MEDICAL DEFENDANTS
The Medical Defendants move for summary judgment and argue that plaintiff fails
to establish an Eighth Amendment violation for deliberate indifference to his serious health
and medical needs.
Summary Judgement Standards
Summary judgment should be granted when the moving party conclusively establishes
that there is no genuine issue of material fact. FED.R. CIV. P. 56( c); Celotex Corp. v. Catrett,
477 U.S. 317, 323-25 (1986). There is no issue for resolution at trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party may
satisfy its burden by negating the existence of an essential element of the nonmoving party's
case. Celotex Corp., 477 U.S. at 325. Alternatively, if the moving party will not bear the
burden of proof at trial on a particular issue, it may meet its initial burden by pointing out the
absence of evidence supporting that element of the nonmoving party's case. Id.; Stults v.
Conoco, Inc., 76 F.3d 651,656 (5th Cir. 1996); Transamerica Ins. Co. v. Avenall, 66 F.3d
715,718-719 (5th Cir. 1995).
Once the moving party has carried its burden, the burden shifts to the nonmoving party
to show that summary judgment is not appropriate. Exxon Corp. v. Baton Rouge Oil, 77 F .3d
850, 853 (5th Cir. 1996). The nonmoving party cannot discharge its burden by alleging legal
conclusions or unsubstantiated assertions, nor can it rest on the allegations of the pleadings;
instead, it must present affirmative evidence in order to demonstrate the existence of a
genuine issue of material fact and defeat a motion for summary judgment supported by
competent evidence. Anderson, 477 U.S. at 248-250; Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"At the summary judgment stage, facts must be viewed in the light most favorable to
the nonmoving party only if there is a "genuine" dispute as to those facts." Scott v. Harris,
550 U.S. 372, 380 (2007). When the record taken as a whole could not lead a rational trier
of fact to find for the nonmoving party, there is no genuine issue for trial. Id. However,
when opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt the version of the
facts for purposes of ruling on a motion for summary judgment. I d.
Under the Eighth Amendment, prison officials have a duty to provide adequate
medical care to prisoners. Farmer v. Brennan, 511 U.S. 825,832 (1994); Rogers v.
Boatright, 709 F.3d 403,409 (5th Cir. 2013). To allege an Eighth Amendment violation, an
inmate must show that prison officials or prison medical care providers acted with deliberate
indifference toward his serious medical needs, resulting in the unnecessary and wanton
infliction of pain. !d.
To prevail under the "extremely high standard" of deliberate indifference, a prisoner
"must show that the officials refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs." Domino v. Tex. Dep 't ofCrim. Justice, 239 F .3d
752, 756 (5th Cir. 2001). "An incorrect diagnosis by prison medical personnel does not
suffice to state a claim for deliberate indifference." !d. Moreover, "unsuccessful medical
treatment, acts of negligence, or medical malpractice do not constitute deliberate
Deliberate indifference is especially difficult to show when, as here, the inmate has
been provided with ongoing medical treatment. See Gobert v. Caldwell, 463 F .3d 339, 346
(5th Cir. 2006). The decision not to provide additional or different treatment "is a classic
example of a matter for medical judgment" rather than a basis for a deliberate indifference
claim. Estelle v. Gamble, 429 U.S. 97, 107 (1976); Domino, 239 F.3d at 756. An inmate's
disagreement with medical treatment does not state a claim for deliberate indifference.
Gobert, 463 F.3d at 346-47; Norton v. Dimizana, 122 F.3d 286, 292 (5th Cir. 1997).
Records showing that an inmate was given medical examinations, treatments, and
medications may rebut an inmate's allegations of deliberate indifference in denying or
delaying medical care. See Varnado v. Lynaugh, 920 F. 2d 320, 321 (5th Cir. 1991).
Plaintiff contends that the Medical Defendants were deliberately indifferent to his
health and serious medical needs in denying him medical care and appropriate work
restrictions. He claims that, due to their deliberate indifference, he sustained an asthma
attack and, later, a seizure or episode of overheating while working outside in the field squad.
He asserts that defendants' knowledge of his hearing impairment and history of a seizure
disorder was sufficient to put them on notice that he should not work outside in the fields.
In support of their motion for summary judgment, the Medical Defendants have
submitted an affidavit of Steven Bowers, M.D., who reviewed the medical records of
plaintiff and testified as follows:
An Intake History and Health Screening form was completed on November 2,
2010, and was signed by [plaintiff]. The Intake History and Health Screening
form requests various information such as the patient's family medical history,
the patient's personal medical history, the dates and types of treatment
received, history of hospitalization, if the patient has any current medical,
mental health or dental complaints, if the patient has used illegal drugs or
alcohol, current medications, and a visual exam, etc. [Plaintiffs] Intake form
noted that he had asthma, a back injury, a fish allergy, seizures, that he wore
glasses and a hearing aid, he had a prior head injury, a problem with his right
wrist, and a history of mental illness. In section A of the intake form, the
writer noted [plaintiff] had an inhaler, KOP (keep on person), for his asthma;
and that he was on medication for his seizures. The same day [plaintiff]
entered the Texas Department of Criminal Justice, Licensed Vocational Nurse
(L VN) Gomez received verbal orders from [a physician] for [plaintiff] to have ·
a permanent bottom bunk restriction on his HSM-18 form and for the patient
to be started on Dilantin lOOmg (seizure medication), three capsules every
evening, with 11 refills.
[Plaintiff] arrived at the Estelle Unit on November 4, 20 l 0. He was seen in the
clinic by Registered Nurse (RN) Liles the day of his arrival for complaints of
chest pain from a fight he had two days ago at Lynchner jail. The patient ·
indicated that it hurt under his chest in the ribcage area. RN Liles noted the
area was tender to palpation, there was no obvious bruising or deformities, and
that the patient indicated he had pain with inhalation with no radiation of pain.
[Plaintiff] was given Ibuprofen 200mg three times a day for three days and
instructed to submit a sick call request if the problem persisted after three days
of medication. There is nothing in the medical record that indicates [plaintiff]
had any complaints regarding his asthma or that he requested an inhaler. On
November 8, 2010, Donna Stebbins sent an email to the Estelle Scheduling
Group stating, "Please schedule CCC (Chronic Care Clinic) for Seizure D/0
(disorder) ASAP also HSM-18 (Health Unit for Classification form) update."
On November 9, 2010, [plaintiff] was seen in the clinic by RN Calyen for
complaints of pain to his left chest area. The patient reported getting into a
fight two weeks ago at a county jail. The examination showed the patient's
oxygen saturation level was 97% (normal), and that he had wheezy breath
sounds. PA Powell was asked to come assess the patient. PA Powell ordered
an Albuterol Unit Dose Nebulizer treatment at that time and a Proventil Inhaler
was ordered KOP. The patient was instructed to increase his fluid intake and
to return to the clinic if the wheezing worsened. Ibuprofen was also ordered
for his chest pain. There is nothing in the record that indicates [plaintiff] had
an asthma attack on November 9, 2010, only that he had asthmatic symptoms.
PA Powell prescribed the appropriate medical treatment to [plaintiff] and no
further complaint was received regarding this issue for the remainder of20 10.
Upon entry to TDCJ [plaintiff] was referred to Assistive Disability Services
(ADS) for his loss of hearing. His first appointment was scheduled for
November 23, 20 10 and he was a no show for his appointment. He was also
a no show on December 13, 2010, December 14, 2010, January 5, 2011,
January 10, 2011, January 25, 2011, March 7, 2011, March 24, 2011, August
2, 2011, and January 24, 2012. The patient was not seen for the first time by
ADS until August 5, 2011. The caseworker noted the patient appear[ ed] to
have moderate to severe hearing loss and can hear better when facing the
person speaking. It was also noted the patient appears to have some difficulty
with speech and a delayed response to questions. The record noted the patient
was provided information on developing program goals, available through
ADS, program management, patient rights, and methods of communicating
with his caseworker. The caseworker determined that the patient currently had
no ADS needs and that his case management would be reviewed every 180
It should be noted that [plaintiff] was scheduled for a Chronic Care Clinic
appointment for his seizures and to update his Health Unit for Classification
form (HSM-18) on December 20, 2010, but he was a no show for the
appointment. P A Powell requested that the patient be rescheduled for the
On January 14, 2011, [plaintiff] was seen in the clinic by Licensed Vocational
Nurse (L VN) Phlegm for complaints that he had an asthma attack earlier and
officers wanted him to be checked. It was noted that the patient had a cough
but that his lungs were clear, his oxygen saturation level was 98%, and that his
peak flow readings were normal at400, 375, and400. L VNPhlegm consulted
with RN Liles and the patient was instructed to drink plenty of fluids, avoid
factors which trigger an attack (strong odors, smoke, etc[.]), and to return to
the clinic as needed.
On January 25,2011, PA Powell changed [plaintiffs] evening medications to
the morning pill window, per the patient's request, due to his work schedule
being from 10:00pm [to] 6am but noted that the patient had not had any
Dilantin for20 days. PA Powell requested that RN Lackey notifY the patient
of the change and the need to comply with his medications. On February 14,
2011, PA Powell renewed [plaintiffs] prescription for a Proventil Inhaler.
On April 13, 2011, [plaintiff] was scheduled for a Chronic Care Clinic
appointment, an HSM-18 update, and follow-up for his seizure disorder but he
was a no show for his appointment. P A Healy requested that the patient be
rescheduled within the week. On April 22, 2011, [plaintiff] was again a no
show for his clinical appointment. On April 22, 2011, PA Healy noted that
[plaintiff] had been a no show for two Chronic Care Clinic appointments and
that the patient had very poor compliance with his seizure medication. P A
Healy's plan of care was to discontinue the Dilantin due to the patient's
noncompliance with the recommended treatment plan, and to reschedule for
Chronic Care Clinic in 90 days. On April27, 2011, PA Powell renewed the
patient's prescription for Dilantin.
On June 28, 2011, [plaintiff] submitted a sick call request to see the doctor in
the Chronic Care Clinic about his asthma and seizures. He was informed that
he had an appointment already scheduled.
On July 26, 2011, [plaintiff] was seen in the Chronic Care Clinic by PA Healy.
PA Healy noted that the interview was conducted by him writing to the patient
and that the patient was able to respond verbally. The patient claimed that he
had been on seizure medication since he was 12 and that his last seizure was
two weeks ago. The examination showed the patient's lungs were clear with
no wheezes, and that he was not currently on an inhaler, that his right wrist
exam was within normal limits, no tremors were noted, cranial nerves 2-12
grossly intact, he had a good gait, and no leg edema or atrophy. PA Healy's
plan of care was continue low bunk restriction; a classification notation for ·
permanent chronic medical conditions- seizures; that there was no need for
an asthma Chronic Care Clinic at that time [sic]; changed Dilantin to evenings
pursuant to the patient's request; a follow-up Chronic Care Clinic appointment
in one year; no repetitive use of hands, no work in direct sunlight, and no
temperature extremes work restrictions to the patient's HSM-18 form; Dilantin
level testing; and prescriptions for Ibuprofen 600mg (for wrist pain) and
renewal ofDilantin (for seizures).
On July 27,2011, [plaintiff] was brought to the Estelle Unit emergency room
after officers found him sitting on the ground. The nurse noted the patient was
alert and oriented times three, that his respirations were even and unlabored,
his skin was warm and moist, and that no injuries were noted. The patient
complained of a headache and indicated that he should not be outside working
and he needs his restrictions changed. The patient was then seen by PA Healy.
PA Healy noted that the patient was deaf and had a seizure disorder; that the
patient had been assigned to the field squad, and that he may have had a mild
seizure outside today but that no seizure activity had been noted by the nurses.
PA Healy added a sedentary work only and no work in direct sunlight
restrictions to the patients HSM-18 form.
On August 10, 2011, [plaintiff] was seen in the clinic by P A Powell for
complaints of seizures, zone-out episodes, headaches, and blurred vision. PA
Powell's examination of the patient was normal except for decreased sensation
noted in his forehead and check; decreased hearing in both ears; sensory was
normal except for VI, V2, and V3 (sensory branches ofthe 5th cranial nerve
supplying the upper, middle and lower face) on the left with a slight decrease;
and his grip was weak in the right (history of fractured wrist) with the
remainder of his motor skills being normal. PA Powell's assessment was
seizure disorder. The plan of care was for the patient to continue taking the
Dilantin for seizures; keep well hydrated; to keep a log book of seizures (time,
type, and how long); follow·up in one week with log book; laboratory work up
(CMP, CBC, and Dilantin level testing); and prescriptions for Ibuprofen
800mg and an antacid. Dilantin level testing was performed on August 10,
2011 and was a 9.2 ug/ml, which is slightly below the recommended
therapeutic range (1 0-20). On August 18, 2011, [plaintiff] was seen by PA
Powell for follow·up on his seizures. The log book showed the patient had
four episodes during the past week with his symptoms best described as Petit
Mal, or absence seizures (tongue rolling and lip biting). Absence seizures are
characterized by a brief impairment of consciousness, which usually lasts no
more than a few seconds. PA Powell increased [plaintiffs] Dilantin to 400mg
per day and a follow·up appointment in two weeks. Dilantin level testing
performed on August 30,2011, showed the patient's level was a 16.1 ug/ml
which is within the therapeutic range. On August 31, 2011, [plaintiff] was
seen by PA Powell for a referral for evaluation and a referral to audiology for
a hearing test. PA Powell noted the patient's speech is understandable; that the
patient reads lips; and that he does not have some hearing. PA Powell's
examination noted the patient's left eardrum was perforated. PA Powell
referred the patient to audiology for hearing testing and for an intake physical.
On September 13, 2011, [plaintiff] submitted a sick call request with
complaints of severe headaches and pains from his blackout seizures. On
September 14, 2011, [he] was seen by PA Healy for a physical examination.
It is noted the patient had no complaints of blackout, syncope, or face
numbness at that time; appeared well rested; normal gait and stance; sits/stands
with ease; no tremors; not icteric Uaundice); and that the patient requested
Ibuprofen for his headaches. PA Healy's plan of care was to add a no work
exposure to loud noises restriction to the patient's HSM·18 form and a
prescription for Ibuprofen 800mg twice a day.
On October 3, 2011, [plaintiff] was seen in sick call by P A Powell for
complaints of wrist pain since September 2010. The patient stated his wrist
was in a cast for six weeks, removed, and then he received no further
treatment. [Plaintiff] relates that he requested that the Nurse Manager look
into the fact this [sic] his restrictions were not complied with and that he did
not request to be seen for his wrist. The record notes the patient declined the
exam. PA Powell discussed restrictions and the fact that medical only assigns
recommendations for restrictions and not specific job assignments.
On January 30, 2012, [plaintiff] had an ADS case management interview.
During the interview, the patient indicated that he had been missing lay-ins and
needs to be shaken awake. The patient was advised that he is not currently
eligible for adaptive aids because he must have his hearing tested to determine .
eligibility. Plaintiff reported that he was scheduled on November 17,2011 for
hearing testing but was a no show for the appointment because he was not
aware of it. The caseworker noted that she was going to contact the unit major
On February 24, 2012, [plaintiff] was seen in the Estelle Unit emergency room
for complaints of a seizure and head wound. At first, the patient indicated he .
had a seizure. A 3cm long wound was noted between the patient's eyes with
scratches on his face, neck and both lips so security was called in to take
pictures. The patient's wounds were treated, and he remained alert and
oriented without any neurological changes, and was then released to security.
On April 1, 2012, the patient was escorted to the clinic for complaints of
blurred vision, seizures, numbness, and head pain. The record notes that when
the patient entered the clinic he asked, 'What is this for, I put in to see the
doctor?' The nurse noted the patient became angry and showed aggression
when he was asked why he was being seen. The patient was informed that
there was not a doctor there today, and that the nurse could see him and then
refer him to a provider, if necessary. During this episode, the nurse noted the
patient had no distress or respiratory problems. The patient indicated he
wanted to refuse the appointment and was escorted back to his cell.
On July 31, 2012, [plaintiff] was seen by Dr. Robertson in the Chronic Care
Clinic for follow-up for his seizures and asthma. Dr. Robertson noted that the
patient was only 71% compliant with his medication, and he complained of a
seizure a few weeks ago, that he complained of shortness of breath and
wheezing, and a history of a closed head injury as a child. Dr. Robertson's
examination of the patient was within normal limits. Dr. Robertson's plan of
care was a laboratory work-up including Dilantin level testing, a complete
blood count, complete metabolic panel, and lipids; a prescription for Motrin
800mg, Proventil Inhaler, Atrovent Inhaler, an antacid; and a dental consult for
a night guard for teeth.
In summary, [plaintiffs] claim that he did not receive an intake physical is not
accurate. The record shows that on November 2, 2010, an Intake History and
Health Screening form was completed. This form indicated that [plaintiff]
came into TDCJ with an inhaler and was allowed to keep it on his person.
That same day, Dr. Lieninger ordered that [plaintiff] was to be given a
permanent bottom bunk restriction on his HSM-18 form and a prescription for
Dilantin 1OOmg (seizure medication), three capsules every evening with 11
refills. [Plaintiff] claims that he had an asthma attack on November 9, 2010
but the medical record does not support his claim. The record shows his
oxygen saturation level on November 9, 2010 was at a normal level (97%) and
his peak flow readings were normal. During this visit, PA Powell prescribed
an Albuterol Inhaler and instructed the patient to return to the clinic if his
[Plaintiff] was scheduled for the Chronic Care Clinic on three separate
occasions (December 20, 2010, April 13, 2011 and April 22, 2011) to be
examined and to have his HSM-18 form updated but he was a no show for
these appointments. [Plaintiff] claims that he was denied medical restrictions
but his failure to appear for his scheduled Chronic Care Clinic appointments
delayed any review of his work restrictions. Medical personnel are not
responsible for job assignments and they only provide medically indicated
work restrictions. After [plaintiff] began to experience difficulty working in
the fields in July 2011, PA Powell and PA Health [sic] modified his work
My review of the medical record shows RN Liles only saw the plaintiff on two
occasions. On each of these occasions, RN Liles performed an examination
of the patient, completed the nursing protocol, and followed the protocol
appropriately based on her examination findings.
(Docket Entry No. 24, Exhibit C, pp. 2-8.) Bowers further testified that,
My review showed that between the time [plaintiff] entered TDCJ on
November 2, 2010 and July 31, 2011, he only submitted seven sick call
requests. One requested a pill window pass, one requested a change in time
for him to receive his medication, one requested a refill for his inhaler which
was given, one requested new glasses, one requested that his seizure
medication be renewed which was given, one requested the name ofhis seizure
medication, and the last requested a Chronic Care Clinic appointment for his
asthma and seizure.
!d., p. 8.
In his pleadings, plaintiff specifically alleges that, on August 16, 2011, he had a small,
forty-second "space out" seizure and went to the infirmary so it could be documented. He
was escorted by a prison officer. When they arrived at the infirmary, defendant Maureen
Liles, R.N., told the officer to return plaintiff to his cell because if he could "walk and talk,"
there was nothing she could do. (Docket Entry No. 26, p. 3; Docket Entry No. 28, p. 2.)
Plaintiff complains that defendant Liles's refusal to see him resulted in lack of medical
documentation that he had a seizure on that date. However, according to the prison's
response to plaintiffs step 2 grievance, officers had neglected to inform Liles that plaintiff
only wanted to document the episode, not seek treatment. (Docket Entry No. 26, Exhibit A.)
Regardless, plaintiff was seen in clinic two days later on August 18, 2011, and was able to
have his seizure episode documented and his medication increased. (Docket Entry No. 26,
Exhibit A.) Plaintiff fails to establish that defendant Liles caused him any injury or harm by
not seeing him on August 16, 2011.
Plaintiff fails to present probative summary judgment evidence demonstrating that
Liles was deliberately indifferent to his serious medical needs, and the Medical Defendants
are entitled to dismissal of plaintiffs claims against her.
Plaintiff further argues that defendant Thomas Powell, P .A., was deliberately
indifferent to his health and serious medical needs by not renewing a prescription for
plaintiffs asthma inhaler. He asserts that Powell examined him on November 9, 2010,
following an episode of asthma, and prescribed him an inhaler for ninety days. He further
asserts that a nurse gave him an inhaler in February of20 11, but that Powell refused to renew
the prescription when the inhaler ran out.
Plaintiffs medical records show that, on November 9, 2010, Powell prescribed
Proventil for plaintiff, with two puffs to be taken four times a day for ninety days. Plaintiff
was allowed to keep the inhaler with him at all times, a policy known as "Keep on Person,"
or KOP. Even so, plaintiffs compliance with his inhaler usage was recorded as only 28%.
(Docket Entry No. 24, Exhibit A, p. 5; Exhibit B, pp. 214-18.) When the prescription
expired in February 2011, Powell renewed the prescription for another ninety days. !d.,
Exhibit A, p. 5. Plaintiff submitted a "sick call request" for a new inhaler shortly after
Powell ordered the refill, and was informed that the new prescription was valid until May
2011. Plaintiffs compliance with this renewal prescription was recorded as 37%. !d.
Plaintiff sent no further sick call requests to Powell regarding inhaler refills after the
prescription expired in May 2011. !d., Exhibit B, pp. 226-238. To the contrary, plaintiff
states that he sent an e-mail requesting a renewal to defendant Randall Healy. Nevertheless,
plaintiff argues that Powell should have automatically renewed the prescription in May 2011
without waiting to hear from plaintiff. In support of his argument, plaintiff proffers nothing
more than his bare assertion that chronic care medications such as asthma inhalers should be
automatically renewed every ninety days, even if not requested by the inmate. Stated
differently, plaintiff contends that it is the care provider, not the inmate, who is responsible
for ensuring medication compliance. Plaintiff fails to direct this Court to any applicable
authority supporting his position. Nor does plaintiff show that the non-automatic renewal
ofhis inhaler prescription in May 2011 caused him any injury or harm. Plaintiff fails to show
that defendant Powell was deliberately indifferent to plaintiffs health or serious medical
needs in not automatically renewing his inhaler prescription.
Plaintiff further claims that defendant Powell was deliberately indifferent to his health
and safety needs in not examining him and giving him work restrictions upon his arrival at
the Estelle Unit. In particular, plaintiff asserts that Powell failed to provide work restrictions
based on his hearing impairment that would have excluded his working outside in the fields.
According to medical and prison records submitted by defendants, plaintiff underwent
a Correctional Managed Care Intake History and Health Screening on November 2, 2011.
(Docket Entry No. 24-3, p. 22.) The form, which was signed by plaintiff, indicated that
plaintiff reported a personal history of asthma and paranoid schizophrenia and complained
that his "wrist is out of place." !d. He was given a "routine referral" to medical and mental
health. !d., p. 23. The records also show that plaintiff underwent a Correctional Managed
Care TB History and Classification, Immunization Review, and Intake Interview that same
day. !d., pp. 41-44. These forms and interviews clearly evince inquiries regarding lab
testing, immunizations, and authorizations to test and immunize. !d.
On November 4, 2010, a Medical and Mental Health Transfer Screening form was
completed at the Estelle Unit regarding plaintiff. !d., pp. 278-79. The form noted that
plaintiff was complaining ofleft-sided chest pain, and that he was taking phenytoin, an antiseizure medication. He was approved for release to general population, and was given
housing restrictions of "IIB-2? C-2? [sic]" !d., p. 279. He was provided a lower bunk
restriction. !d., p. 226. Significantly, his work restrictions were noted as "12, 19, 20, 23, 25,
& 27." !d. Thus, plaintiff is incorrect in asserting that he was not provided work restrictions
upon his arrival at the Estelle Unit. According to the records, Powell first saw plaintiff on
November 9, 2010, at which point plaintiffs medical and work restrictions had already been
determined. Powell did not learn about plaintiffs work assignment complaints until October
3, 2011, at which time Powell informed him that "medical only assigns recommendations for
restriction and not specific job assignments." !d. at 45.
Plaintiff fails to present probative summary judgment evidence demonstrating that
Powel1 was deliberately indifferent to his health or serious medical needs, and the Medical
Defendants are entitled to dismissal of plaintiffs claims against him.
Plaintiff also raises deliberate indifference claims against defendant Randall Healy,
P .A. He alleges that Healy failed to modify his work restrictions or provide proper
medications and/or refills of medications, resulting in physical injury. Specifically, plaintiff
alleges that he saw Healy on July 26, 2011, and told him about the problems he experienced
working in the field. Plaintiff complains that, instead of changing his medical restrictions,
Healy told him to take breaks while in the field. As shown by the medical records and Dr.
Bowers's affidavit, Healy examined plaintiff and found no abnormalities. He also changed
the timing of plaintiffs Dilantin dose at plaintiffs request. Work restrictions were added
to plaintiffs HSM-18 form for no repetitive use of hands, no work in direct sunlight, and no
temperature extremes. Dilantin level testing was ordered, and plaintiffs prescriptions for
Ibuprofen 600mg and Dilantin were renewed.
Plaintiff does not demonstrate that Healy refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for serious medical needs. Domino, 239 F .3d at 756. Plaintiffs
disagreements with Healy's decisions as to renewing or not renewing his prescriptions does
not constitute deliberate indifference. Varnado, 920 F.2d at 321. Moreover, Healy added
restrictions to plaintiffs HSM-18 form on July 26, 2011, including restrictions against
working in direct sunlight or temperature extremes. It is undisputed that medical personnel
can issue work or medical restrictions, but that job assignments are made by prison officials.
Plaintiff fails to present probative summary judgment evidence demonstrating that
Healy was deliberately indifferent to his health or serious medical needs, and the Medical
Defendants are entitled to dismissal of plaintiffs claims against him.
IV. INJUNCTIVE RELIEF
Plaintiff reports that he has been released from prison and is no longer incarcerated.
His requests for injunctive relief regarding his conditions of confinement are DENIED AS
The motion to dismiss filed by defendants Warden David W. Sweetin, Assistant
Warden Christopher G. Carter, Major David Forrest, and Peggy Haggard (Docket Entry No.
15) is GRANTED, and plaintiffs claims against them are DISMISSED WITH
PREJUDICE for failure to state a viable claim for which relief may be granted under section
The motion for summary judgment filed by defendants Thomas Powell, P .A., Randall
Healy, P.A., and Maureen Liles, R.N. (Docket Entry No. 24) is GRANTED and plaintiffs
claims against them are DISMISSED WITH PREJUDICE.
Any and all pending motions are DENIED AS MOOT.
Signed at Houston, Texas, on this the
4~Y of April, 2017.
KEITH . ELLISON
UNITED STATES DISTRICT JUDGE
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