Cameron v. Correctional Healthcare Company (CHC) et al
Filing
23
MEMORANDUM OPINION AND ORDER granting 21 MOTION for Summary Judgment , dismissing without prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CHRIS NOEL CAMERON,
TDCJ #1934777,
§
§
§
Plaintiff,
§
§
v.
§
§
§
§
§
§
CORRECTIONAL HEALTHCARE
COMPANIES, et. al.,
Defendants.
CIVIL ACTION NO. H-14-1603
MEMORANDUM OPINION AND ORDER
The plaintiff,
Chris Noel Cameron
complaint under 42 U.S.C.
§
(TDCJ #1934777),
filed a
1983, alleging that his civil rights
were violated while he was in custody at the Montgomery County
Jail.
Specifically,
Cameron alleged
deliberately indifferent to a
that
the
defendants
serious medical need.
defendants, Correctional Heal thcare Companies,
Inc.
were
Two of the
("CHC") ,
and
the Montgomery County Sheriff Department, have filed a joint motion
for summary judgment. (Docket Entry No. 21).
Cameron has not filed
a response and his time to do so has expired.
After considering
all of the pleadings, the motion and the applicable law, the court
will grant the defendants' motion and dismiss this case for the
reasons explained below.
I. Background
Currently, Cameron is incarcerated by the Texas Department of
Criminal Justice -
Correctional Institutions Division
("TDCJ").
When Cameron filed this lawsuit he was in custody of the Montgomery
County Sheriff's Department at the Montgomery County Jail.
The
defendants are the CHC,
for
which provides healthcare services
inmates at the Jail, the Montgomery County Sheriff's Department,
and a healthcare supervisor identified as Tammy Tovar, who has not
been served. 1
In July of 2012, Cameron sustained serious injuries, including
a comminuted fracture of his left femur, when the vehicle he was
driving
rear-ended
County.2
a
Ford
F-350
pick-up
truck
in
Montgomery
Cameron's damaged left femur needed multiple surgeries
and required the internal fixation of hardware to stabilize the
fracture.
3
Subsequently,
Cameron
contracted
a
chronic
bone
infection and was diagnosed with MRSA osteomyelitis in October
2012.4
Cameron was treated initially with an intravenous
antibiotic,
Tovar,
Jail) .
Vancomycin,
but
was
later
switched
to
an
("IV")
oral
Docket Entry No. 17 (return of service unexecuted for Ms.
who reportedly no longer works at the Montgomery County
2
Docket Entry No. 22, Exh. C, at 65.
3
Docket Entry No. 22, Exh. D, at 195, 527.
4
Id. at 275.
-2-
antibiotic,
treat.
2013),
Bactrim. 5
For nearly a
Cameron's
year
infection proved difficult
(between December 2012
to
and December
Cameron alternated between Vancomycin and Bactrim in one
form or another. 6
Due to the serious nature of his infection,
Cameron was advised that he could need full amputation of his left
leg. 7
After an investigation revealed that Cameron was intoxicated
at the time he caused the accident in July 2012, a warrant issued
for his arrest in June 2013. 8
offense
for
felony.9
at
driving
while
Because it was Cameron's fourth
intoxicated,
he
was
charged with
a
Cameron was extradited from Kansas and taken into custody
the Montgomery County Jail
on
January
22,
2014. 10
Medical
records show that Cameron was regularly seen and treated with oral
antibiotics at the Jail. l1
charges
against
him in the
Cameron entered a guilty plea to the
359th District Court
of Montgomery
County, Texas, and was sentenced to two years' imprisonment on May
5
rd. at 220-21.
6
rd. at 215 302, 342, 347-48, 365-66, 380, 451-53, 523, 531-
7
rd. at 411.
8
Docket Entry No. 22, Exh. C at 63, 65-67.
9
rd.
32.
10
rd. at 12, 70-73.
11
Docket Entry No. 22, Exh. D at 165, 175, 192.
-3-
13, 2014.12
Cameron remained at the Montgomery County Jail until
July 7, 2014, when he was transferred to TDCJ, where he remains in
custody.13
In his complaint under 42 U.S.C. § 1983, Cameron alleges that
he
was
denied
constitutional
adequate
rights
at
medical
the
care
in
Montgomery
violation
County
of
Jail.14
his
In
particular, Cameron contends that he should have been treated with
IV antibiotics (Vancomycin) at a hospital facility rather than oral
antibiotics and that the defendants' failure to treat him properly
constituted "deliberate indifference" to a serious medical need in
violation
of
the
Constitution. 15
Eighth
Amendment
to
the
United
States
Cameron seeks punitive damages for his pain and
suffering. 16
Defendants Montgomery County Sheriff's Department and CHC have
filed a joint motion for summary judgment, arguing that Cameron's
claims fail for a number of alternative reasons.
dispositive,
Because it is
the court confines its analysis to the defendants'
contention that Cameron failed to exhaust available administrative
remedies before seeking relief in federal court and that his claims
12
13
Docket Entry No. 22, Exh. C at 15.
Id. at 5-6.
14
Docket Entry No. 1, at 3-5.
15
Docket Entry No. 9, at 2, 3.
16
Docket Entry No. 1, at 4.
-4-
are
barred
from
review
by
the
Prison
Litigation
Reform
Act
("PLRA"), 42 U.S.C. § 1997e(a) as a result. 17
II.
Standard of Review
Defendants' motion for summary judgment is governed by Rule 56
of
the
Federal
Rules
of Civil
Procedure.
Under
this
rule,
a
reviewing court "shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a); see also Celotex Corp.
(1986) .
v.
Catrett,
106 S.
Ct.
2548,
2552
A fact is "material" if its resolution in favor of one
party might affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). An
issue is "genuine" if the evidence is sufficient for a reasonable
17
In addition to raising the affirmative defense of
exhaustion, the Montgomery County Sheriff's Department notes that
it is not an independent legal entity and therefore lacks the
requisite legal capacity to be sued.
See FED. R. ClV. P. 17 (b);
Wakat v. Montgomery County, 471 F. Supp. 2d 759, 768 (S.D. Tex.
2007) .
The defendants argue further that Cameron fails to
establish that Montgomery County or CHC are liable as municipal
entities because he does not identify any official policy or custom
that was the "moving force" behind the alleged constitutional
violation.
See Monell v. Dep't of Soc. Servs. of
City of New
York, 98 S. Ct. 2018, 2037-38 (1978).
More importantly, pointing
to the medical records and an affidavit from an infectious disease
specialist (Dr. Rabih O. Darouiche), the defendants maintain that
Cameron fails to demonstrate that he was denied medical care with
deliberate indifference or that his constitutional rights were
violated. See Estelle v. Gamble, 97 S. Ct. 285, 291 (1976); Domino
v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001). Although these arguments appear well taken, the court does
not address them further because it is clear that Cameron failed to
exhaust administrative remedies before filing suit in this case.
-5-
jury to return a verdict for the nonmoving party. Id.
In deciding a summary judgment motion,
the reviewing court
must "construe all facts and inferences in the light most favorable
to the nonmoving party." Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir.
2010)
However,
(internal
citation
and
quotation
marks
omitted).
the non-movant cannot avoid summary judgment simply by
presenting
"conclusory
allegations
and
denials,
speculation,
improbable inferences, unsubstantiated assertions, and legalistic
argumentation." Jones v. Lowndes County,
Cir. 2012)
F.3d 754,
678 F.3d 344,
348
(5th
(quoting TIG Ins. Co. v. Sedgwick James of Wash., 276
759
(5th Cir.
2002));
see also Little v.
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc)
Liquid Air
(a non-movant
cannot demonstrate a genuine issue of material fact with conclusory
allegations,
evidence).
unsubstantiated assertions,
or only a scintilla of
If the movant demonstrates the absence of a genuine
issue of material fact,
the burden shifts to the non-movant to
provide "specific facts showing the existence of a genuine issue
for trial."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106
S. Ct. 1348, 1356 (1986).
As noted above, the plaintiff has not filed a response to the
motion for summary judgment.
The court specifically directed the
plaintiff to respond wi thin forty-five days to any disposi ti ve
motion
filed
prosecution.
by the
defendants
(Docket Entry No.
or
13,
-6-
face
dismissal
'1I 5).
for
want
of
Notwithstanding the
plaintiff's failure to respond, summary judgment may not be awarded
by default "simply because there is no opposition,
failure to oppose violated a local rule."
Administration Cent.
Cir.
Sociedad Anonima,
"However,
1985).
a
even if the
Hibernia Nat'l Bank v.
776 F.2d 1277,
1279
(5th
court may grant an unopposed summary
judgment motion if the undisputed facts show that the movant is
entitled to judgment as a matter of law."
Day v. Wells Fargo Bank
Nat'l Ass'n, 768 F.3d 435, 435 (5th Cir. 2014)
see also Eversley v.
MBank Dallas,
(citation omitted);
843 F.2d 172,
174
(5th Cir.
1988) .
III.
Cameron's
Reform
complaint
("PLRA") ,
Act
Discussion
is
governed
which
by
requires
the
Prison
prisoners
Litigation
to
exhaust
administrative remedies before filing suit in federal court.
42
u.s.c.
that
§
§
1997e(a).
1997e(a)
See
The Supreme Court has repeatedly emphasized
mandates
exhaustion
of
all
administrative
procedures before an inmate can file any suit challenging prison
conditions.
See Booth v. Churner, 121 S. Ct. 1819, 1825 (2001);
Porter v. Nussle, 122 S. Ct. 983, 988 (2002); Woodford v. Ngo, 126
S. Ct. 2378,
910,
918-19
2382-83
(2007)
(2006);
see also Jones v.
Bock,
127 S. Ct.
(confirming that "[t]here is no question that
exhaustion is mandatory under the PLRA and that unexhausted claims
cannot be brought in court").
The defendants present evidence showing that the Montgomery
-7-
County Jail
facility had a
two-step grievance process
while Cameron was confined there. 18
in place
Under the first step, an inmate
must fill out a grievance form and place it in a sealed envelope
stating the allegation or need for the grievance. 19
The Jail's
Grievance Officer would then review and investigate each grievance
form and return a written decision to the inmate within 15 days.20
If the inmate disagrees with the Grievance Officer's decision, the
inmate must then complete the second step of the grievance process
by filing an appeal to the Jail Administrator. 21
If the inmate does
not agree with the Jail Administrator's decision,
the inmate may
then appeal the decision to the Montgomery County Sheriff, whose
decision in the matter is final. 22
Each
inmate
is
informed
of
the
Jail's
grievance
process
through the Montgomery County Detention Facility Inmate Handbook.23
Cameron signed a written Acknowledgment of Receipt showing that he
received a copy of the Inmate Handbook shortly after he arrived at
18 Docket Entry No. 21-1, Exh. A, Affidavit of Senior Sergeant
Scott Kurtz ["Kurtz Affidavit"] at , 2.
19
20
Id.
21
Id. at ,
22
Id.
3.
23 Id. at , 4;Docket Entry No. 21-1, Exh. A-I, Inmate Handbook
at p. 3.
-8-
the Jail on January 23, 2014.24
Cameron
submitted
three
During his confinement at the Jail,
grievances
infirmary's choice of antibiotics. 25
Cameron's grievances,
complaining
appeal
to
the
the
After investigating each of
Senior Sergeant Scott Kurtz concluded that
Cameron was receiving adequate medical care. 26
an
about
Jail
Administrator
or
Cameron did not file
the
Montgomery
County
Sheriff regarding any of the responses that he received to his
grievances. 27
Thus, Cameron did not comply with Jail procedures by
completing the second step of the grievance process.
The Fifth Circuit has made clear that a prisoner does not
exhaust available administrative remedies as required by the PLRA
where
he
process.
2001)
has
only
completed
one
step
of
a
two-step
grievance
See Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.
(concluding that a prisoner's lawsuit was precluded by the
PLRA where he "did not pursue the grievance remedy to conclusion") .
Likewise,
as the Supreme Court has clarified,
deliberately
bypass
the
administrative
prisoners may not
process
by
flouting
failing to comply with an institution's procedural rules.
Woodford, 126 S. Ct. at 2389.
or
See
Cameron's failure to complete the
grievance process violates the PLRA's exhaustion requirement found
24
Docket Entry No. 21-1, Exh. A-2.
25
Docket Entry No. 21-1, Exh. A-3.
26
See id.; see also Kurtz Affidavit at
27
Kurtz Affidavit at
~
6.
-9-
~~
2, 5.
in
§
1997e (a),
which
Because Cameron has
mandates
exhaustion
before
filing
suit.
failed to exhaust available administrative
remedies before filing suit in federal court, his complaint must be
dismissed. 28
See Wright, 260 F.3d at 359.
IV.
Conclusion and Order
Accordingly, it is ORDERED that:
1.
Defendant's Motion for Summary Judgment (Docket Entry No.
21) is GRANTED.
2.
The complaint (Docket Entry No.1) is DISMISSED without
prejudice
for
the
plaintiff's
failure
to
exhaust
administrative remedies.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this
ay of July, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
28
Although the Montgomery County Sheriff's Department and CHC
are the only defendants to move for summary judgment, Cameron's
failure to exhaust administrative remedies also bars his claims
against Tammy Tovar, who has not been served. See Docket Entry No.
17 (return of service unexecuted). Accordingly, the claims against
Tovar are also subject to dismissal.
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