Manuel v. Livingston et al
Filing
15
MEMORANDUM AND OPINION (Signed by Chief Judge Lee H Rosenthal) Parties notified.(rosaldana, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRICKEY JUAN MANUEL, SR.,
CTDCJ -CID #02026549)
Plaintiff,
vs.
BRAD LIVINGSTON, et ai.,
Defendants.
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December 06, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-3708
MEMORANDUM AND OPINION
Brickey Juan Manuel, Sr., an inmate of the Texas Department of Criminal Justice-Estelle
Substance Abuse Felony Punishment Facility-Gateway Foundation, sued in December 20 15, alleging
a denial of adequate medical care and a violation of the Americans with Disabilities Act. Manuel
represents himself and has not prepaid the filing fees.
He sues Brad Livingston, the former
Executive Director of the TDCJ; Randall L. McLaurin, the Gateway Foundation Director; Elton
Monk, a TDCJ physician's assistant; Mrs. Bluhm, a TDCJ nurse; and Mr. Mott, a medical
administrator for the Gateway Foundation. The threshold issue is whether Manuel's claims can
proceed further.
I.
The Complaint Allegations
Manuel alleges that he had open-heart surgery in 2013 to implant a mechanical heart valve.
He has seizures, hypertension, heart problems, and asthma. He was admitted to the TDCJ in October
2015. Manuel was seen by medical personnel in the Byrd Unit, the processing and diagnostic unit,
on October 28, 2015. He was prescribed Warfarin, Metoprol, and Amlodipine, Albuterol, and
Dilantin, and given a physical. On November 5, 2015, he was transferred to the Gateway Foundation
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Substance Abuse Unit, where he was seen by Physician's Assistant Monk and Nurse Bluhm.
On December 15, 2015, Manuel alleged that he had a stroke and was transported to Memorial
Hermann Hospital via Life Flight. He stayed there for four days and gradually regained the ability
to speak and move. After he returned to the Estelle Unit, he had occupational therapy. He alleged
that while at the Unit, the Gateway Foundation denied him his evening dose of Dilantin, the weekly
or biweekly "international normalized ratio" for his mechanical heart valve to monitor the effects
of the anticoagulants in order to detect any excess bleeding. Manuel alleged that the blood thinner
blood-clot was checked once after 45 days and another time after 30 days, rather than biweekly.
Manuel alleges that the Gateway Foundation is violating the Americans with Disabilities Act
because there are no accessible showers for people in wheelchairs. He alleges that Brad Livingston
is liable because he is responsible for making the facility handicap-accessible. He alleges that the
UTMB medical staff failed to provide him proper medications; that Physician'S Assistant Monk
denied him seizure medications from November 5 to December 2,2015; that Nurse Bluhm refused
his requests to be seen by a physician and failed to monitor his heart-valve tests; and that the medical
personnel failed to provide him with the same medications he received while in Memorial Hermann
Hospital. He alleges that he was instead prescribed generic medications that had side effects.
Manuel alleges that Gateway Foundation Medical Administrator Mott failed to respond to his
grievances or intervene to prevent the denial of medical care. Manuel finally alleges that Sergeant
Robinson and Lieutenant Sutton, both guards, routinely harassed him.
Manuel alleges that he was seen by prison medical personnel in January and February 2016.
He does not explain what treatment he received. Manuel alleges that in March 2016, he went to
UTMB for a stress test, but the procedures were terminated when the medical personnel realized that
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he had epilepsy. He alleges that when he returned to the Estelle Unit, he was rushed to the
Huntsville Hospital for excessive bleeding from the rectum. Manuel alleges that the failure to
monitor his blood levels caused this crisis. He also alleges that although he received medications
for hypertension, they were not the right ones.
In his supplemental complaint, Manuel also alleges that the defendants are operating a
"turnkey" system by allowing certain inmates to hold positions of authority over other inmates.
(Docket Entry No.1 0). He seeks an injunction compelling the defendants to allow him to seek freeworld medical treatment and to participate in rehabilitative programs when he is able.
II.
Analysis
A federal court has the authority to dismiss a complaint in which the plaintiff is proceeding
without prepaying fees if the court determines that the complaint is frivolous.
28 U.S.C.
§ 1915(e)(2)(B)(i). A complaint is frivolous if it lacks an arguable basis in law or fact. See
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Richardson v. Spurlock, 260 F.3d 495,498 (5th Cir.
2001) (citing Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997». "A complaint lacks an
arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint
alleges the violation ofa legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003,
1005 (5th Cir. 1998)(quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997».
"[I]nadequate medical care by a prison doctor can result in a constitutional violation for
purposes of a § 1983 claim when that conduct amounts to deliberate indifference to [the prisoner's]
serious medical needs, constitut[ing] the unnecessary and wanton infliction of pain proscribed by the
Eighth Amendment." Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999)(quoting Estelle v.
Gamble, 429 U.S. 97 (1976)). Under the "deliberate indifference" standard, a prison official is not
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liable for the denial of medical treatment "unless the official knows of and disregards an excessive
risk to inmate health or safety." Stewart, 174 F.3d at 534 (citing Estelle, 429 U.S. at 104). While
alleged malpractice and negligent treatment do not rise to the level of a constitutional tort, see
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993), a claim of "unnecessary and wanton
infliction of pain repugnant to the conscience of mankind," can allege a claim of a constitutional tort.
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)(citing Estelle, 429 U.S. at 105-106).
To state an Eighth Amendment claim, a plaintiff must allege a deprivation of medical care
sufficiently serious to show that "the state has abdicated a constitutionally-required responsibility
to attend to his medical needs," Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460
(5th Cir. 1983), and that a prison official knew of and disregarded "an excessive risk to inmate health
or safety." Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)). "For an official to act with deliberate indifference, 'the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. '" Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.
1998)(quoting Farmer, 511 U.S. at 837). "Under exceptional circumstances, a prison official's
knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk."
Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994)(citing Farmer, 511 U.S. at 842 & n.8).
Deliberate indifference is an extremely high standard. An incorrect diagnosis by prison
medical personnel does not state a claim for deliberate indifference. Domino v. Tex. Dep't of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (citing Johnson v. Treen, 759 F.2d 1236, 1238
(5th Cir. 1985)). Rather, a plaintiff must allege facts showing that the officials "refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that
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would clearly evince a wanton disregard for any serious medical needs." Johnson, 759 F.2d at 1238.
Whether to provide additional treatment "is a classic example of a matter for medical jUdgment."
Estelle, 429 U.S. at 107. The "failure to alleviate a significant risk that [the official] should have
perceived, but did not" is insufficient to show deliberate indifference. Farmer, 511 U.S. at 838.
Manuel alleges that medical personnel failed to administer the same seizure medications he
had been prescribed at a hospital and failed to properly monitor his blood levels and his
hypertension. Manuel has not alleged facts supporting an inference that the medical care provided
to him was so inadequate that the defendants knew of and were deliberately indifferent to a
substantial risk to his health. His own pleadings show that he was regularly examined by medical
personnel and prescribed medications. He was seen by medical personnel on numerous occasions
and prescribed treatment and medications. The record shows an extended history of examinations,
diagnoses, and medications.
The allegations and record rebut any inference of deliberate
indifference. Mendoza v. Lynaugh, 989 F.2d 191, 193-95 (5th Cir. 1993). "Disagreement with
medical treatment does not state a claim for Eighth Amendment indifference to medical needs."
Norton v. Dimizana, 122 F.3d 286, 292 (5th Cir. 1997). Manuel concedes that medical personnel
did check his blood levels and blood pressure, although not as frequently as he wanted, and did
prescribe anticonvulsant, although not the medications he preferred. Manuel's denial of medical care
claim lacks merit and is dismissed.
Manuel also alleges ADA violations. Title II of the ADA provides that "no qualified
individual with a disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132 (2011). This provision applies to state prisons
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and prisoners. Pa. Dep't a/Carr. v. Yeskey, 524 U.S. 206,209 (1998) ("[T]he statute's language
unmistakably includes State prisons and prisoners within its coverage.").
A prima facie case under the ADA requires a plaintiff to plead: (1) that he is a qualified
individual within the meaning of the ADA; (2) that he is excluded from participation in, or denied
benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise
discriminated against, by the public entity; and (3) that this exclusion, denial of benefits, or
discrimination is because of his disability. Hale, 642 F.3d at 499. With respect to the first element,
the ADA defines "disability" as: (1) a physical or mental impairment that substantially limits one
or more major life activities of such individual; (2) a record of such an impairment; or (3) being
regarded as having such an impairment. 42 U.S.C. § 12012(1). Walking is a major life activity.
42 U.S.C. § 12012(2).
Manuel alleges that the Estelle Unit does not provide accessible showers for those in
wheelchairs. "No handicap showers since I've been here 11/5/15, there horribly broken, has to
shower in wheelchair, the people that in wheelchairs." (Docket Entry No.9, Plaintiff s More Definite
Statement, p. 2). He also alleges that the kitchen area is not accessible to inmates in wheelchairs.
(ld. at 5). Liberally construed, he alleges he has been denied the benefits of the services, programs
or activities ofTDCJ, including access to the kitchen, in violation of 42 U.S.C. § 12132. He alleges
that this has placed him in danger of serious injury. These allegations suffice for the second and
third elements of a Title II claim. "Prison programs fall within Title II's scope," and Manuel has
alleged that he was denied access to prison programs because of his medical conditions. Hale, 642
F.3d at 499.
However, it is unclear on the present pleadings whether Manuel was suffering from a
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