Muniz v. United States of America et al
Filing
24
MEMORANDUM AND OPINION granting 20 MOTION to Dismiss, or for Summary Judgment. Granting 21 MOTION to Supplement Plaintiff's Response to Defendant's Motion to Dismiss as to 20 MOTION to Dismiss, or for Summary Judgment. Granting 23 MOTION in Traverse to the Defendant's Reply Memorandum. (Signed by Judge Lee H Rosenthal) Parties notified. (cfelchak, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PEDRO MUNIZ,
(Reg. #99022-179),
§
§
§
Plaintiff,
§
§
§
VS.
CIVIL ACTION NO. H-12-1813
§
UNITED STATES of AMERICA, et al.,
Defendants.
§
§
§
MEMORANDUM AND OPINION
Pedro Muniz, a federal inmate proceeding pro se and informa pauperis, sued a number of
medical-service providers working for the Federal Detention Center in Houston, Texas. Muniz also
sued the United States, the Bureau of Prisons, and the United States Attorney's Office. Muniz
alleged that the individual defendants deprived him of medical care and sought damages under the
Federal Tort Claims Act ("FTCA"), 28 U.S.c. §§ 1346(b) and 2674, from both the individual and
government defendants. The defendants have now moved to dismiss or for summary judgment.
Muniz filed a response, and the defendants replied. (Docket Entry Nos. 20, 21, 22, 23). Based on
the pleadings; the motion, response, and reply; the record; and the applicable law, this court grants
the motion and enters a separate order of final jUdgment dismissing the case with prejudice. The
reasons for this ruling are set out in detail below.
I.
Muniz's Allegations
Muniz alleges that on May 11,2010, he went to the Federal Detention Center infirmary for
a swollen toe. Dr. Roberto Garza diagnosed an infection. (Docket Entry No.8, Plaintiffs More
Definite Statement, p. 2). Muniz alleges that he was prescribed the "wrong" antibiotic and his toe
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became worse. Muniz alleges that when he complained, the FDC medical staff told him that his toe
was getting worse because he was not controlling his diabetes.
Muniz alleged that his mother contacted Congresswoman Sheila Jackson Lee and that, as a
result, Muniz was taken to a free-world physician two months after the initial infection. He saw Dr.
Barnes, who warned Muniz that he could lose his toe. Dr. Barnes prescribed antibiotics, which led
to improvement, and Muniz was released. Muniz missed the scheduled follow-up appointment with
Dr. Barnes two weeks later because the FDC refused to take him, claiming that he had a blood clot
in his leg that made it dangerous for him to travel. (Docket Entry No.8, Plaintiffs More Definite
Statement, p. 3). Muniz alleges that though he continued to take the antibiotics, the infection spread
to the bone, and the toe had to be amputated on September 22, 2010. (Docket Entry No.8,
Plaintiffs More Definite Statement, p. 3). Muniz was hospitalized for one week. He alleges that
the FDC was negligence because it delayed treating the infection, did not treat him aggressively from
the beginning, and in delaying getting Muniz to his follow-up visit.
Muniz alleges that the
negligence caused to lose his toe.
Muniz alleges that under Texas tort law, FDC Houston staff and employees owed him a duty
to follow the outside physician's recommendation, which set the standard of care. Muniz alleged
that Dr. Barnes's instruction that he return in two weeks for a follow-up visit established the standard
of care and provided expert opinion that the delay was negligent. Muniz alternatively argues that
the two-week follow-up appointment is the standard of care based on common knowledge or on res
ipsa loquitur.
Muniz filed an amended complaint alleging a civil-rights deprivation and adding as
defendants FCI-II Butner (Butner Legal Center), the United States Attorney's Office, Civil Division,
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and the United States. (Docket Entry No.4). Muniz sought $1,000,000.00 in compensatory
damages for the loss of his toe.
In September 2012, the court ordered Muniz to provide a more definite statement of his
claims. (Docket Entry No.7). In response to a question asking how his civil rights were violated,
Muniz stated: "(2) Plaintiff Muniz is not making a civil rights violation claim, he is making a
Medical Negligence claim under the FTCA, however, his civil right to good medical care was
violated by the medical negligence of employees- at FDC Houston-ofthe United States." When
asked to list the names of each defendant who allegedly violated his civil rights, Muniz responded:
"(3) The medical staff at FDC Houston, employees of the United States were medically negligent
for failing to properly address my medical issues regarding my toe .... " (Docket Entry No.8).
Muniz stated that he was alleging a civil-rights claim as well as a negligence claim. Both must be
considered.
Muniz sued the federal government under the Federal Tort Claims Act. Under the FTCA,
no action may be brought against the United States unless the claimant first presents the claim to the
appropriate federal agency. 28 U.S.C. § 267S(a). Muniz met the FTCA's administrative exhaustion
requirement. On March 6, 2012, the BOP South Central Regional Counsel, Jason A. Sickler, denied
Muniz's tort claim and informed him that he had six months to file suit in federal court. Muniz filed
this suit on June 18, 2012, within the six months.
The defendants have moved to dismiss the civil rights claims against the United States, its
agencies, and its employees for lack of jurisdiction, for failure to state a claim, and for failure to
exhaust administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. §
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1997e(a). The United States has also moved to dismiss the FTCA claims against the federal agencies
and employees.
Muniz moved to supplement his response with an affidavit of an expert witness, a nurse
practitioner. (Docket Entry No. 21). The defendants moved to strike this witness, arguing that she
is not a physician, and that her opinions are not sufficiently reliable under Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). (Docket Entry No. 22).
Each argument and response is analyzed below.
II.
The Evidence in the Record
The defendants submitted the following evidence:
(A)
a declaration of Dr. Roberto Garza, M.D.;
(B)
a U.S. Dept. of Justice, Federal Bureau of Prisons, denial letter;
(C)
the declaration of Tamala Robinson, a legal assistant at the Bureau of Prisons;
(D)
the declaration of Tara Ross, a nurse at the FDC; and
(E)
the declaration of Oanh Vo, a nurse at the FOe.
Roberto Garza testified as follows:
1.
I am presently employed by the Federal Bureau of Prisons
(BOP) as Staff Physician at the Federal Detention Center in
Houston, TX (FDC Houston). I have held this position since
September 2005.
2.
I have been a licensed Physician since July 2000. I specialize
in Family Practice[.]
3.
I have read, and am familiar with, the Complaint filed by
Plaintiff, Pedro Muniz, reg. no. 99022-179, (Muniz) in the
above referenced lawsuit.
4.
I am familiar with Muniz's medical records maintained in the
BOP's Bureau Electronic Medical Records (BEMR) database
that reflect the following:
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5.
On January 12, 2010, Muniz arrived at Federal Detention
Center (FDC), Houston, with a diagnosis oflnsulin dependent
Type II Diabetes, chronic kidney disease with a 25% function,
Hypertension, High Cholesterol, and Obesity. He measured 5
feet, seven inches tall, and weighed two hundred and fifty [-]
seven pounds.
6.
On May 11, 2010, he reported to Health Services department
"sick call" and was seen by Mid-Level Practitioner Patrick
Osayande for complaints of right foot infection and was
started on antibiotics (AmoxicilliniClav) for ten days, and was
told to keep the digit clean. Muniz was assessed with
cellulitis and abscess of foot. Also, on May 11, 2010, I
ordered another antibiotic, Sulfamethoxazole/trimeth for 14
days.
7.
Cellulitis is an infection of the skin, whereas an abscess is
where the skin infection has concentrated itself in a certain
area.
8.
AmoxicilliniClav is a combination antibiotic frequently
utilized to treat cellulitis. Sulfamethoxizole/trim is also a
combination antibiotic which also works well against skin
infections, covering other bacteria which other antibiotics
may not cover.
9.
Due to his numerous health issues, Muniz was evaluated
again the next day, May 12, 2010, by the Clinical Director,
Dr. Anthony Cubb, for chronic care purposes. At that time,
Dr. Cubb attempted to educate him on the importance of
adhering to his diet and insulin regimen, and the importance
oflosing weight. Complying with a strict diet, and restricting
the intake of sugars and carbohydrates can limit the use of
insulin therapy. Patients often do not adhere to a strict diet
and prefer to have insulin manage their eating habits instead
of their diabetes, thus leading to complications, as in this
case, of circulation which can result in amputation. Dr. Cubb
told Muniz to make himself available for daily clinic wound
care, and stressed the importance of adhering to the antibiotic
regimen. However, Muniz became belligerent about being
started on dialysis, for which he was not a candidate at that
time.
10.
Dr. Cubb also noted that Muniz appeared to possibly have toe
trauma and peripheral vascular disease, and was under care at
that time. Peripheral vascular disease had resulted from poor
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circulation due to his diabetes. Diabetes affects many systems
and the vascular system is very prone to its affects. This best
deterrent is proper diet/weight management/medical therapy
control of one's health.
11.
Later that same day, Muniz was seen by Mr. Osayande for a
follow up on his toe. His dressing was changed and dressing
materials were provided for self care, with instructions to
follow up every other day.
12.
I then saw Muniz on May 21,2010. During that visit, I noted
that the blister was healing well between the 4th and 5th toes.
Muniz reported that his right foot pain had been improving
since being on Augmenting[ sic] and Bactrim.
The
AmoxiciliniClav was continued for 10 days, and the
Sulfamethoxazole/trimeth was continued for 14 days.
Additionally, Mupirocin Ointment, a topical antibiotic that is
able to act locally on the infection, was prescribed for 14
days.
13.
On June 11,2010, Muniz presented to Nurse Tara Ross and
reported hitting his toe on something in his cell which opened
a wound and caused excessive bleeding. The wound was
cleaned with peroxide and betadine, and then dressed.
Ciproflaxacin was ordered for 10 days and
Sulfamethoxazaole/trimeth was order[ ed] for 10 days.
Ciprofloxin is yet another antibiotic which can be used for
skin infection, but also serves a role in bone infections. Since
the patient admitted to recent trauma, it was prudent to
prescribe Ciprofloxin. Muniz was again instructed on the
importance of keeping his foot clean and dry.
14.
Muniz was seen again on June 22, 2010 by a Mid Level
Practitioner and reported that he had been working to get his
toe less infected and it was getting better. He reported the
Cipro was working well. The clinician noted the fourth toe
had a 10mm round and 3mm deep ulceration caused by
pressure from the fifth toe pushing against it. It was noted
that the area had shown vast improvement since the treatment
with antibiotics. Nystatin Cream and Silver Sulfadiazine
Cream were ordered for 90 days. Nystatin is an anti-fungal
topical medication for "athletes feet" and silver sulfadiazine
may be used in conjunction to prevent a secondary skin
infection.
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15.
On June 25, 2010, a prescription for Ciproflaxacin was
ordered for 15 days.
16.
On July 1,2010, Muniz was escorted by U.S. Marshals to St.
Joseph Medical Center, and was evaluated by an outside
orthopedist, Dr. Frank L. Barnes. Dr. Barnes admitted Muniz
to the hospital for osteomyelitis, to receive intravenous (IV)
antibiotics, and noted probable amputation of the toe. Muniz
remained in the hospital until July 5, 2010. When he was
discharged, his home care instructions recommended an
antibiotic Levaquin (250mg by mouth daily), NPH insulin (18
units subcutaneously daily) and a hypertension medication
Norvasc (5mg by mouth daily).
17.
Osteomyelitis is an infection of the bone caused by different
organisms. It mayor may not be a complication of a
cellulitis/abscess/diabetes, but in this case, most likely, was.
Levaquin is in the same class of antibiotics as Cipro and both
are often prescribed for osteomyelitis seen in diabetics.
18.
After discharge from the hospital, Muniz was briefly taken to
a privately contracted facility, the Joe Corley Detention
Center. He then returned to FDC Houston on July 7, 2010,
and was seen by me. 250mg of the antibiotic Levofloxacin
(which is synonymous with Levaquin) was ordered for 60
days. This was consistent with Dr. Barnes home care
instructions July 5, 2010. Additionally, consistent with the
home care instructions of July 5, 2010, an order for 18 units
ofNPH insulin subcutaneous daily was renewed for 180 days,
as was an order for Amlodipine (the generic form of Norvas c)
for 180 days. Acute osteomyelitis was indicated.
19.
Muniz was seen again on July 16,2010, and reported that the
ulcer on his toe was improving.
20.
On July 19,2010, Muniz was seen again by Dr. Barnes who
recommended continuing the antibiotics.
Dr. Barnes
recommended that he return in two weeks. However, during
that time, Muniz developed and was treated for a possible
blood clot in his right calf. On August 13, 2010, I examined
him and diagnosed venous embolism thrombosis superficial
LE, and prescribed Ibuprofen and aspirin for 7 days. Due to
the severity of potential complications from a blood clot,
which include possible vascular disease, skin infections, heart
attacks, strokes and even death, I wanted to ensure that the
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blood clot was resolved before sending Muniz outside the
facility to Dr. Barnes.
21.
22.
Moreover, opinions by outside consultants such as Dr. Barnes
are always considered recommendations. Often they are
followed, but ultimately the medical staff at FOC Houston
will make the determinations they think are the best course of
action. In this case, it was more prudent to postpone Muniz's
return to Dr. Barnes, given the potential for complications
from blood clots.
Additionally, Dr. Barnes['s] actual
substantive recommendations regarding the course of
medicine (i.e. continuing antibiotics) were being followed at
that time. Therefore, it was not mandatory to return Muniz to
Dr. Barnes in a particular time frame, given that he was
receiving proper medical treatment at FDC Houston.
On September 9, 2010, Muniz was seen and I noted
resurfacing of his right calf pain and tenderness, and ordered
Enoxaparin injection daily for 7 days. I noted to begin
lovenox daily for 1 week and re-evaluate.
23.
After receiving treatment for his blood clot, Muniz was
returned to Dr. Barnes for a follow up on September 14,2010.
At that appointment, Dr. Barnes recommended amputation of
his right fourth toe.
24.
On September 14, 2010, Muniz had a post-consultation
encounter. At that time, Levofloxacin was ordered for 30
days.
25.
On September 27, 2010, Muniz was taken to an outside
hospital for amputation of his toe. He returned to FOC
Houston on October 4, 2010. His recovery over the next
several months was uneventful. He was transferred to the
Correctional Complex in Butner, North Carolina on February
18,2011.
26.
Ultimately, Muniz's toe required amputation due to a
worsening of his condition, and not due to improper care.
The poor circulation and poor nerve sensation associated with
diabetes frequently lead to toe infections. In turn these
infections frequently progress in diabetics, often resulting in
the loss of the toe, despite proper care.
27.
In Muniz's case, the documented course of treatment,
including antibiotics was proper. His toe was amputated
despite proper care, due to the worsening of his condition.
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All documented medical treatment provided to Muniz was
appropriate, and met the appropriate standard of care.
(Docket Entry No. 20-1, Ex. A, pp. 2-9).
In his opposition to the summary judgment motion, Muniz submitted the affidavit of Ofelia
Veronica Espinosa, R.N. She testified as follows:
(1)
My Name is Ofelia Veronica Espinosa
(3)
At the present time I work for The Heights of Tomball
(4)
My occupational Title is: Director of Nursing, RN, BSN
WOCN
(5)
As a registered nurse for more than 30 years and 11 years of
WOCN (Wound, Ostomy and Continence Specialist, I have provided
medical care to a great number of patients with wounds that have
been diagnosed to have Osteomyelitis, which is a bone infection
caused by bacterial infection.
(6)
Osteomyelitis secondary to vascular insufficiency is often
associated with diabetes mellitus. Infection often results from minor
trauma to the feet, such as infected nail beds or skin ulceration.
Inadequate tissue perfusion limits local tissue response to injury.
(7)
Multiple organisms are responsible for Osteomyelitis in
different populations. The causative organism is related to the age,
clinical history, and immune status of the patient. S.aureus is the
most common cause in all cases S.aureus and occasionally
Enterobacter or Streptococcus species.
(8)
Most strains of Staphylococcus aureus are now resistant to
penicillin, and methicillin-resistant strains of S.aureus (MRSA) are
common in hospitals and are emerging in the community.
Penicillinase-resistant pencillins (flucloxacillin, dicloxacillin) remain
the antibiotics of choice for the management of serious methicillinsusceptible S.aureus (MSSA) infections, but first generation
cephalosporins (cefazolin, cephalothin and cephalexin), clindamycin,
lincomycin and erythromycin have important therapeutic roles in less
P ICASESlpnsoner-h.. bcas\20121\ 2-IR 11 COl "pd
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serious MSSA infections such as skin and soft tissue infections or in
patients with penicillin hypersensitivity, although cephalosporins are
contra-indicated in patients with immediate penicillin hypersensitivity
(urticaria, angioedema, bronchospasm or anaphylaxis).
(9)
All serious MRSA infections should be treated with parenteral
vancomycin or, if the patient is vancomycin allergic, teicoplanin.
Nosocomial strains of MRS A are typically multi-resistant (rnrMRSA,
and mrMRSA strains must always be treated with a combination of
two oral antimicrobials, typically rifampicin and fusidic acid, because
resistance develops rapidly if they are used as a single agents.
(10) New antibiotics such as linezolid and quinupristinldalfopristin
have good anti staphylococcal activity but are very expensive and
should be reserved for patients who fail on or are intolerant of
conventional therapy or who have highly resistant strains such as
HVISA (heterogenous vancomycin-intermediate S.aureus).
(11) Several diagnostic modalities are used to determine the
presence of Osteomyelitis, including laboratory tests, radiographic
imaging, radionuclide studies, and cross-sectional imaging. The gold
standard for diagnosing Osteomyelitis is bone biopsy and culture.
(12) Treatment of Osteomyelitis involves both antimicrobial
therapy, with administration of antibiotics for at least 4 to 6 weeks,
and surgical intervention, which involves debridement, dead space
management, and bone stabilization.
Furthermore on August 13,2010, Mr. Pedro Muniz was diagnosed
with venous thrombosis of the right lower extremity and was
prescribed Ibuprofen and aspirin.
The standards of care for this condition are initiation of anticoagulant
therapy using:
A. Fractionated, Low Molecular Weight Heparin (LMWH)
(1)
(SC Administration), Lovenox 1 mg/kg (maximum dose 150 mg)
every 12H.
(2)
B. Unfractionated Heparin(lV Administration)
Initial bolus 60 Units/kg (not to exceed 5000 Units; 4000 Units MAX
with tP A and related fibrinolytics).
Initial infusion Dose Initial MAX rate
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Low intensity (e.g. ACS) 15 UNITS/hr. 1200 units/ and tPA or
GPllb/IIIa receptor antagonist 12 Units/kg/hr. 1000 unitslhr.
High intensity 18 units/kg/hr. 1800 units/hr.
(3)
C. Candidates for Anticoagulant Therapy
Obtain baseline aPTT, PT (INR), CBC with platelet count.
Screen for contraindications; assess bleeding risk.
Heme test stool.
Check platelet count every 3 to 5 days during therapy (daily if
decrease is observed to evaluate for possible heparin-induced
thrombocytopenia (HIT).
(4)
II. W ARF ARIN ANTICOAGULATION
Indication Target
INR Range
Prophylaxis of venous thrombosis (high-risk patients) 2.5 (2-3)
Treatment of venous thrombosis (after heparin) 2.5 (2-3) Aspirin (81
to 162 mg PO qd) or clopidogrel (75 mg PO qd) can be used as an
adjunct to warfarin in high-risk patients, but no alone therapy.
***A target INR of2.5 (range 2.0-3.0) plus aspirin (81mg) is also
acceptable. Note that Ibuprofen and aspirin is not the standard of care
to treat Mr. Pedro Muniz blood clot, and proper medication therapy
was not initiated until September 9, 2010 when he started Lovenox
(Enoxaparin) injections.
A.
After reviewing the affidavit provided by Dr. Garza, and
reviewed the treatment plan provided to Mr. Muniz for his conditions.
It is in my professional opinion that the treatment provided to treat
Mr. Muniz Osteomyelitis was not the standard of care. Based on the
lack of additional laboratory cultures and sensitivity to identifY the
best antibiotic therapy to treat the Osteomylitis caused by the
unknown bacterial infection.
B.
It is my further opinion the lack of identification of the
bacteria causing the Osteomylitis infection resulted in the amputation
of Mr. Muniz toe.
(Docket Entry No. 21, Attachment 1, pp. 3-5).
This court analyzes the defendants' motions and the evidence under the applicable law.
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III.
The Applicable Legal Standards
Because the parties have submitted evidence outside the pleadings and the defendants have
moved for summary judgment, the motion to dismiss for failure to state a claim under Rule 12(b)(6)
is moot. The evidence is considered in deciding the Rule 12(b)(1) challenge to subject-matter
jurisdiction and the Rule 56 summary judgment motion.
A.
The Motion to Dismiss for Lack of Jurisdiction
A Rule 12(b)( 1) motion challenges a court's subject-matter jurisdiction. Lane v. Halliburton,
548,557 (5th Cir. 2008). In ruling on a Rule 12(b)(1) motion to dismiss, the court may rely on (1)
the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by
undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution
of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir.
2001); see also Barrera-Montenegro v. United States, 74 F.3d 657,659 (5th Cir. 1996).
B.
The Motion for Summary Judgment
Summary judgment is appropriate ifno genuine issue of material fact exists and the moving
party is entitled to judgment as a matter oflaw. FED. R. CIY. P. 56(c). "The movant bears the burden
of identifying those portions of the record it believes demonstrate the absence of a genuine issue of
material fact." Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).
If the burden of proof at trial lies with the
nonmoving party, the movant may satisfy its initial burden by '''showing'- that is, pointing out to
the district court-that there is an absence of evidence to support the nonmoving party's case." See
Celotex, 477 U.S. at 325. While the party moving for summary judgment must demonstrate the
absence of a material factual dispute, the party does not need to negate the elements of the
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nonmovant's case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (citation
omitted). "A fact is 'material' ifits resolution in favor of one party might affect the outcome of the
lawsuit under governing law." Sossamon v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir.
2009) (quotation omitted). "If the moving party fails to meet [its] initial burden, the motion [for
summary judgment] must be denied, regardless of the nonmovant's response." United States v.
$92,203.00 in
u.s. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive
a summary judgment motion by resting on its pleading allegations. The nonmovant must identify
specific evidence in the record that supports its claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th
Cir.2007). "This burden will not be satisfied by 'some metaphysical doubt as to the material facts,
by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. '"
Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment
motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party.
Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
IV.
The Civil Rights Claims
A.
The Claims Against Defendants in their Official Capacities
Muniz sued the United States of America, the Bureau of Prisons at FDC Houston, FCI-II
Butner, the United States Attorney's Office, Civil Division, and FDC employees, Dr. Roberto Garza,
Dr. Anthony Cubb, Patrick Osayande, Tara Ross, R.N., and Vo Oanh, R.N., in both their official and
individual capacities. (Docket Entry No.1, Complaint, p. 1). A civil-rights damages claim against
the United States cannot proceed. See Gibson v. Fed Bureau of Prisons, 121 F. App'x 549, 551
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(5th Cir. 2004). A civil-rights damages claim against a federal officer in his official capacity is also
barred because official capacity suits against federal employees are treated as suits against the United
States. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985); Affiliated Pro!'l Home Health Care
Agency v. Shalala, 164 F.3d 282,286 (5th Cir. 1999). Muniz's civil-rights claims against the United
States, the Bureau of Prisons at FDC Houston, FCI-II Butner, the United States Attorney's Office,
Civil Division, and against Dr. Roberto Garza, Dr. Anthony Cubb, Patrick Osayande, Tara Ross, and
Vo Oanh in their official capacities, are dismissed.
B.
The Civil-Rights Claims Against the Individual Defendants in their Individual
Capacities
A prisoner must exhaust all available administrative remedies before suing federal prison
employees. 42 U.S.c. § 1997e(a); Porter v. Nussle, 534 U.S. 516,524 (2002). "[T]he PLRA
exhaustion requirement requires proper exhaustion." Woodfordv. Ngo, 548 U.S. 81,93 (2006). A
prisoner "must complete the administrative review process in accordance with the applicable
procedural rules-rules that are defined not by the PLRA, but by the prison grievance process itself."
Jones v. Bock, 549 U.S. 199,218 (2007) (internal citation and quotation marks omitted). The Fifth
Circuit takes "a strict approach to the exhaustion requirement." Days v. Johnson, 322 F.3d 863,866
(5th Cir. 2003), overruled by implication on other grounds by Jones, 549 U.S. at 216. "Proper
exhaustion demands compliance with an agency's deadlines and other critical procedural rules."
Woodford, 548 U.S. at 90. An inmate's grievance must be sufficiently specific to give "officials a
fair opportunity to address the problem that will later form the basis of the lawsuit." Johnson v.
Johnson, 385 F.3d 503, 517 (5th Cir.2004).
P ICASESlpnsoner-habclls\2012\12-1 K11 c03."pd
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Failure to exhaust administrative remedies under the PLRA is an affirmative defense. Jones
v. Bock, 549 U.S. 199, 216 (2007); Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). The
defendants have the burden on summary judgment to establish that Muniz did not exhaust the
available administrative remedies.
The defendants submit a declaration from Tamala Robinson, a legal assistant at the FDC
Houston. She stated the following:
1.
I am presently employed with the U.S. Department of Justice
as a legal assistant for the Federal Bureau of Prisons (BOP) in
Houston, Texas.
2.
The statements I make hereinafter are made on the basis of
my review of the official files and records of the BOP, my
own personal knowledge, or on the basis of information
acquired by me through the performance of my official duties.
3.
I am familiar with the administrative remedy process provided
and followed by the BOP. Pursuant to my official duties, I
have access to records maintained in the ordinary course of
business by BOP, including SENTRY, a computerized index
of all administrative remedy requests filed with the BOP,
reflecting attempts to seek and exhaust administrative
remedies under 28 C.F.R. § 542.10 et seq and Program
Statement 1330.16, Administrative Remedy Program.
4.
As set forth in 28 C.F.R. §§ 542.10-542.19, the BOP makes
available to its inmates a three-level administrative remedy
process in the event that informal resolution procedures fail.
The purpose of this administrative remedy process is to
permit inmates to seek formal review of an issue relating to
any aspect of his/her own confinement and to permit the
agency an opportunity to employ its expertise to redress
grievances concerning the BOP. Among other items, this
process must be invoked and exhausted when inmates allege
that certain terms of their confinement are in violation of the
United States Constitution or BOP policy.
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5.
Ordinarily, once an inmate has attempted to infom1ally
resolve the issue, the administrative remedy process is
commenced by filing a Request for Administrative Remedy
(Form BP-9) at the institution where the inmate is
incarcerated. 28 C.F.R. § 542.13-14. Should the inmate's
complaint be denied at the institution level, the inmate may
appeal by filing a Regional Administrative Remedy Appeal
(F orm BP-IO) with the Regional Office for the geographic
region for which the inmate's current institution of
confinement is located. ld. § 542.15(a). This is the second
step in the process. For an inmate at the Federal Detention
Center in Houston, Texas, (FDC Houston), this appeal would
be filed with the South Central Regional Office (SCRO) of
the BOP in Grand Prairie, Texas. If the Regional Office
denies relief, the inmate, if dissatisfied, must appeal to the
BOP's Office of General Counsel via a Central Office
Administrative Remedy Appeal (Form BP-II). ld. This is the
third and final step of the process. To properly exhaust all
administrative remedies, an inmate must timely and properly
present a claim to each level, have that remedy request
accepted and receive an actual response to that request.
6.
BOP inmates have access to the administrative remedy forms
(BP-9' s, 10' sand 11' s) that are required to exhaust
administrative remedies. Such forms are generally obtained
from the inmates' assigned correctional counselors. 28
C.F.R. § 542.14. Per expressed BOP policy, inmates may
obtain assistance from another inmate or from institution staff
in preparing submissions of administrative remedies. 28
C.F.R. § 542.16.
7.
I have reviewed the BOP administrative remedy records for
inmate Pedro Muniz, reg. no. 99022-179.
8.
Attachment 1 is a true and accurate copy of the BOP's
SENTR Y Administrative Remedy Generalized Retrieval
report for inmate Muniz, showing all administrative remedy
requests received from inmate Muniz.
9.
Attachment 1 shows that Muniz has submitted a total of 5
administrative remedy requests while incarcerated by BOP.
The date that each administrative remedy request was
received is noted under the column labelled "DATE-RCV."
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