Vasquez v. Khoshdel et al
Filing
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MEMORANDUM OPINION AND ORDER withdrawing 8 Memorandum Opinion and Order, 9 Final Judgment, dismissing 1 Prisoner Civil Rights Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROEL ERNESTO VASQUEZ,
TDCJ NO. 1180593,
Plaintiff,
v.
M.D. ABBAS KHOSHDEL, et al. ,
Defendants.
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CIVIL ACTION NO. H-13-2456
MEMORANDUM OPINION AND ORDER
Roel Ernesto Vasquez, an inmate at the Wynne Unit of the Texas
Department of Criminal Justice - Correctional Institutions Division
(TDCJ-CID), filed a civil rights complaint under 42 U.S.C.
claiming that he was denied adequate medical
care.
§
1983
The court
ordered Vasquez to submit a more definite statement regarding his
claims and allegations.
response,
the
prosecution.
court
When Vasquez failed to submit a timely
dismissed
his
complaint
for
want
of
After the complaint was dismissed the court received
Vasquez's more definite statement.
After reviewing the complaint,
the court will set aside the dismissal for want of prosecution and
will dismiss this action as frivolous.
I. Claims and Allegations
Vasquez names the following officials as defendants in this
action:
Dr.
Abbas Khoshdel, MDj PA Charles Nagelj PA Deborah
Quientj Dr. David Seals, DDSj and Warden Kevin Mayfield.
claims
that
he was
denied adequate medical
care
Vasquez
and that
the
defendants were deliberately indifferent to his serious medical
needs.
Vasquez asserts that he has had problems with his mouth and
throat.
his
He states that fever blisters began forming on the roof of
mouth
and
at
the
back
of
his
tongue
sometime
in
2005.
Plaintiff's More Definite Statement, Docket Entry No.7, p. 5.
He
also began experiencing soreness in his throat and swollen tonsils.
Vasquez first attributed his maladies to stress,
observed wart growths on his tongue.
to
the
roof
of
his mouth.
growths on his genitals.
In 2011 the growths spread
By 2013 Vasquez observed similar
Among the difficulties that Vasquez
experienced with the growths was a
brushing.
but in 2010 he
bleeding tongue while tooth
Id.
Vasquez states that he sought help and was given various
medications each time he was seen.
Id.
"tele-health
a
medical
visit"
with
In July of 2010, he had a
UTMB
Medical Branch) physician named Dr. Prince.
(University of Texas
Id. at 6.
Dr. Prince
asked Vasquez if he wanted Interferon treatment for his Hepatitis
C condition.
When Vasquez agreed, Dr. Prince scheduled him for a
liver sonogram in September of 2010.
Dr. Prince informed Vasquez
during their next visit that his blood work indicated cancer and
scheduled him for more blood work and an Isolated Tumor Cell (ITC)
scan to verify if Vasquez did have cancer.
2
rd.
During his following visit, Dr. Prince told Vasquez that he
did not
have
cancer but
that
he
could not
because of his abnormal blood levels.
receive
Interferon
Docket Entry No.7, p. 7.
Dr. Prince told Vasquez that he would reschedule him for a followup in a yeari
however,
Vasquez states that he has not seen Dr.
Prince since that visit.
Vasquez has also been treated by Dr. Khoshdel.
Vasquez states
that Khoshdel prescribed a non-aspirin medication on September 20,
2011.
Docket Entry No.7, p. 8.
(chlorphenamine),
irritation.
an
He also prescribed chlorphen
antihistamine used to combat the throat
Dr. Khoshdel saw Vasquez again on March 19, 2012, and
told him that the bumps were taste buds and were not cancerous.
Docket Entry No.7, p. 2.
Dr.
Khoshdel's
Nagel.
findings
Vasquez filed a grievance challenging
and he requested an examination by PA
After examining Vasquez sometime on or about May 18, 2012,
Nagel concluded that the bumps had formed as a result of allergies.
Id. at 2-3.
Dr. Khoshdel concurred with Nagel's diagnosis. Id. at
3.
Vasquez continued to submit sick calls seeking medical help,
and Nagel saw him again after he submitted an emergency sick call
on December 19, 2012.
Id.
Nagel allegedly agreed with Vasquez's
assessment that something was very wrong with him.
Nagel ordered
more blood tests and prescribed benadryl, another antihistamine,
for Vasquez on January 18,
2013.
3
Id.
Vasquez states that the
benadryl did not cure his condition but it did help alleviate the
symptoms.
Docket Entry No.7, p. 8.
Vasquez also contends that he
never received the results of the blood tests although he made two
requests to see them.
rd. at 3.
Vasquez saw Dr. Khoshdel again soon afterwards, and more blood
tests were ordered.
rd.
medication for Vasquez.
2013.
Dr. Khoshdel also prescribed heartburn
rd.
PA Quient examined Vasquez on May 17,
After the examination Quient took Vasquez off benadryl and
prescribed loratadine, another antihistamine.
rd. at 4.
Vasquez
complains that Quient conducted her examination without using an
endoscope and that she failed to even look inside his mouth.
Vasquez
making his
spoke
to Nagel
rd.
about his problem while Nagel was
sick calls on May 22,
2013.
rd.
Nagel allegedly
responded that Quient took Vasquez off benadryl because they were
no longer issuing the medication.
Nagel also reviewed Vasquez's
records and saw that he had been seen twice in the past year by a
dentist, Dr. Seals.
Nagel told Vasquez that Dr. Seals would have
noted if there had been a problem.
rd.
Nagel then prescribed
cyproheptadine, another antihistamine, and told Vasquez that his
lab tests were normal.
rd.
Vasquez states that he saw Quient not long after his visit
with Nagel.
rd.
After examining Vasquez's mouth briefly with an
endoscope, Quient told him that he had bad allergies and prescribed
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a steroid shot.
Dr. Seals examined Vasquez on May 31, 2013, and
told him afterwards that everything was normal.
1d.
Vasquez was apparently dissatisfied with the various medical
providers'
actions,
and
on
March
20,
2013,
he
sent
an
1-60
Memorandum Request to Warden Mayfield informing him of his problems
in getting medical help.
Docket Entry No.7, p. 3.
Vasquez claims
that he told Warden Mayfield that Dr. Khoshdel was deliberately
indifferent to his serious medical needs and that he needed to see
a "free world H physician. Vasquez alleges that the request went
unanswered.
However, Mayfield did respond to a second request from
Vasquez, dated May 15, 2013.
answered
that
the
unit
Docket Entry No.7, p. 3.
physicians
had
the
authority
Mayfield
to
make
determinations about inmates' medical conditions and the necessary
treatments and that he could not direct them.
1d.
Vasquez admits that he has been seen numerous times and has
been given numerous medications.
defendants
have
However, he asserts that the
incorrectly diagnosed his condition and have
prescribed the wrong treatment.
1d. at 9.
He contends that it is
obvious that something is wrong with him and that his health is
deteriorating.
Vasquez seeks an injunction granting him access to
a free world doctor.
He also seeks monetary damages.
II. Analysis
Vasquez's prisoner civil rights complaint is subject to
dismissal if he cannot (1) allege a violation of a right secured by
5
the Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person acting under
color of state law.
233
F.3d
871,
See Moore v. Willis Independent School Dist.,
874
(5th
Cir.
2000),
citing
Lefall
v.
Dallas
Independent School District, 28 F.3d 521, 525 (5th Cir. 1994).
As
a prisoner in the custody and care of the TDCJ-ID, Vasquez has a
right to basic treatment in response to his serious medical needs.
Estelle v. Gamble, 97 S.Ct. 285, 290
(1976).
Although Vasquez is entitled to medical attention, he does not
have
a
right
to
the
best
treatment
available and there is no
guarantee that his ailments will be successfully treated.
Varnado
v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Mayweather v. Foti,
958 F. 2d 91
(5th Cir. 1992).
To establish a claim that he was
denied medical treatment under the Eighth Amendment, Vasquez must
show that the defendants were aware of facts from which they could
infer there was an excessive risk to Vasquez's health or safety and
that they actually concluded that Vasquez was exposed to potential
harm.
Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001), citing
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998).
of
negligence or malpractice will not suffice.
at 292; Hall v. Thomas, 190 F.3d 693, 697-98
A showing
Estelle, 97 S.Ct.
(5th Cir. 1999).
The deliberate indifference issue has both an objective and a
subjective component.
Wilson v.
Seiter,
111
S.Ct. 2321, 2324
(1991); Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir. 2002).
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The
first,
objective
component
requires
deprivation relates to a serious need.
Id.
that
the
alleged
The second, subjective
component requires that the charged official has acted with a
sufficiently culpable state of mind.
Id.
Vasquez states that he has suffered with problems in his mouth
and throat for an extended period of time.
It is arguable that
first element has been met because Vasquez's condition does appear
to affect his health and the defendants apparently are aware of
some problem.
Cir. 2006).
See Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th
The second element concerns the defendants' response
to Vasquez's condition.
Defendants are not culpable unless they
knew of a serious medical condition and disregarded it.
Brewer v.
Dretke, 587 F.3d 764, 770 (5th Cir. 2009).
It is undisputed that the defendants responded to Vasquez's
complaints about his mouth and throat by examining him and giving
him medications for his complaints.
visits
and
medications.
tests.
He also lists at least a half dozen
The defendants' actions undermine his claim of
deliberate indifference.
235 (5th Cir. 1995)
Cir.
1993).
Vasquez recounts numerous
i
See Banuelos v. MCFarland, 41 F.3d 232,
Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th
Vasquez contends that the defendants violated his
rights because his medication was wrong and that the defendants
should have known that his condition was more serious than an
allergic
reaction.
Vasquez acknowledges that each of the
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defendants examined him and made their diagnoses.
Dr. Khoshdel, PA
Nagel and PA Quient each prescribed medications to treat allergies
which they believed to be Vasquez's malady.
Dr. Seals did not
prescribe any medications because he concluded that Vasquez had no
abnormalities needing treatment.
Although there may be some question about the severity of
Vasquez's
condition, there is no doubt that the defendants
responded to his
complaints by providing medication that
believed addressed his needs.
they
Vasquez's disagreement with the
opinions of the TDCJ health workers does not amount to deliberate
indifference.
Sama v. Hannigan, 669 F.3d 585, 590-591
2012); Gobert, 463 F.3d at 346; Banuelos, 41 F.3d at 235.
(5th Cir.
The fact
that there may have been some disagreement among the physicians and
other health care workers over Vasquez's ailment also fails to
support a claim of deliberate indifference. Stewart v. Murphy, 174
F.3d 530
(5th Cir.
1999).
Vasquez has also failed to assert a
claim against Dr. Seals who determined that his condition was
normal.
See Hay v. Thaler, 470 F. App'x 411, 416 (5th Cir. 2012).
Vasquez states that Warden Mayfield deferred to the decisions
of the health care providers.
Warden Mayfield cannot be held
liable because he did not have the authority or the responsibility
to respond to Vasquez's health care complaints.
F.3d 766, 767
(4th Cir.
(5th Cir. 2001)
1995)
i
Lewis v. Lynn, 236
Shakka v. Smith, 71 F.3d 162, 167
(prison officials are entitled to rely on the
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expertise of trained health care providers to assess and respond to
Moreover, Warden Mayfield
prisoner's health and safety needs)
cannot
be
held
vicariously liable for the actions of other
officials regardless of whether he has any authority over them.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009)
i
Rios v. City of Del
Rio, 444 F.3d 417, 425 (5th Cir. 2006).
Vasquez filed this action while he was incarcerated and has
moved to proceed In Forma Pauperis.
Prisoner complaints shall be
dismissed if they lack an arguable basis in law or fact.
§
1915 (e)
Berry v. Brady,
i
192 F.3d 504,
507
28 U.S.C.
(5th Cir. 1999).
Given Vasquez's responses to the order for more definite statement,
the court has determined that he has had a fair opportunity to
state his best case.
Cir.
1999)
1986)
i
Jones v. Greninger, 188 F.3d 322, 326-27 (5th
Jacquez v.
Procunier,
801
F.2d 789,
792
(5th Cir.
Vasquez's prisoner civil rights complaint shall be
dismissed under 28 U.S.C.
§
1915(e) because he has failed to state
a claim on which relief can be granted.
III. Conclusion
The court ORDERS the following:
1.
The Memorandum and Order (Docket Entry No.8) and Final
Judgment (Docket Entry No.9) dismissing this action for
want of prosecution are WITHDRAWN.
2.
The prisoner civil rights complaint (Docket Entry No.1),
filed by Inmate Roel Ernesto Vasquez, TDCJ No. 1180593,
is DISMISSED as frivolous.
28 U.S.C. § 1915(e).
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3.
The Clerk is directed to provide a copy of this
Memorandum Opinion and Order to the parties; the TDCJ Office of the General Counsel, P.O. Box 13084, Austin,
Texas 78711, Fax Number (512) 936-2159; and the Pro Se
Clerk's Office for the United States District Court,
Eastern District of Texas, Tyler Division, 211 West
Ferguson, Tyler, Texas 75702.
SIGNED at Houston, Texas, on this 30 th day of October, 2013.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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