Marin v. Davis et al

Filing 30

MEMORANDUM OPINION AND ORDER granting in party, denying in part 24 MOTION for Judgment on the Pleading Pursuant to Fed. R. Civ. P. 12(c) - Judgment; denying 27 MOTION for Leave to File Amended Complaint. Defendants shall file any Motion for Summary Judgment within 60 days. Plaintiff will have 30 days from date on the certificate of service to respond. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

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United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION April 20, 2017 David J. Bradley, Clerk ALBERTO MARIN, TDCJ #919404, Plaintiff, CIVIL A CTION NO . H-16-2718 WILLIAM STEPHENS, et al., Defendants. M EMORANDUM OPIN ION AND ORDER State Complaint inmate Alberto Marin Under Civil ( TDCJ Rights ( ucomplaint'll ' Docket Entry No. #919404) has A ct, filed U .S .C . 1983 alleging that he has received inadequate medical care while in prison . Marin has also filed nStatement of Fact' to supplement his claims ( ' Docket Entry No. Defendants Stephanie Abron , Robert Friedman, Jerry Palacio, James Stubbs have filed Motion for Judgment on the Pleadings l2 ( c) ( uDefendants' Motion') ( ' Docket Pursuan t Marin has responded with a Motion for Leave to File Entry No . an Amended Complaint ( Docket Entry an 'OPposition' ' ' Defendants' Motion ( Docket Entry No. 28), and some exhibits ( Docket Entry After reviewing pleadings, and applicable law, the Defendants' Motion will be granted in part and denied part the reasons explained below . 1 . Backqround A. Parties The plaintiff, A lberto Marin, Texas Department of Criminal Justice Jester Division (' 'TDCJ') ' Marin is approximately swelling Correctional Institutions Unit Richmond , Texas.l years old, with a history cellulitis left leg .2 diabetes,3 and he reportedly has persistent also suffers from history of chronic back pain .4 There are four remaining defendants,s including two physicians ( Dr. Stephanie Abron therapists ( Jerry Robert Friedman) and two physical Palacio James Stubbslx defendants are employed by TDCJ at the Jester III facility, which seven days week, and specialty clinics such as brace and limb , occupational therapy, and physical therapy .'? The Jester ' lcomplaint, Docket Entry No . also houses pp . zprogress Notes, Docket Entry No . 29, pp . 6-7. 3statement of Fact, Docket Entry No . l Motion No . 27, p . 1 . 4. Leave to File an Amended Complaint , Docket Entry s see Order to Answer, Docket Entry No. 20, pp. 4-5 ( dismissing with prejudice claims against former TDCJ Director William Stephens, Warden Troy Simson, Practice Manager Susan Dostal, Nurse Manager Marisol Gemin, and Security Officer Aremus pursuant to 28 U. C. 5 1915A). S. 6 complaint , Docket Entry No . 4-5 . XDefendants' Motion , Docket Entry No. p. n .3 . the Assistive Disability Services (' %ADS') program x ' Marin, Abron is director of According ADS program and is nthe doctor who assesses a11 patients for wheelchair placement and or medical dpviCO S .H9 B. Plaintiff's A llegations Alleging that he has been denied adequate medical care at the Jester III facility, Marin executed his pending Complaint against the defendants on August 2016 .1 Although the pleadings 0 present a precise chronology, Marin provides the following account of his medical condition and course of treatm ent . Marin explains that he suffers from nedema' or swelling as the ' result of surgery to repair a torn meniscus in his left kneex l surgery Was performed at the University of Texas Medical Branch (A 'UTMB' John Sealy Hospital ') On January Galveston on November 19, 2010.1 2 2011, Marin was transferred the Jester III Unit for physical therapyx3 Marin claims that two UTMB physicians who are not parties here Jester Cheema at the UTMB Hospital and Dr . Ahmad Unit) advised him to avoid putting pressure on 8Id g Motion No . 27, p . 1 . Leave File an Amended Complaint, Docket Entry lo complaint, Docket Entry No . ll statement of Fact, Docket Entry No . 19, p . l Id 2 l Id 3 at that Palacio contradicted these physicians by forcing him to walk with crutches walker during physical therapy .l4 On March 10, 2011, Marin was given crutches and transferred the Wynne Unit in Huntsvillex b Subsequently , Marin was treated Huntsville Memorial Hospital and transferred to UTMB with a high fever and swelling left 1eg .l6 ulymphedema' and assigned ' Marin was diagnosed with the Carol Young Medical Facility, where he was placed in a wheelchairx 7 At some point, transferred to the Marin was discharged Terrell Unit with crutches Rosharonx 8 and After Marin fell and hurt himself, however, medical personnel at the Terrell Marin states that he used the walker about that this resulted p ain' because he ' timO S .?2 . ?0 ' l4(d ( 1 Id 5 16 d I 1 (d 7j 1 (d 8g 1 yd . 9 2 Id 0 year and a half, but umany In 2013, a nurse practitioner Terrell Unit noted that Marin had difficulty ambulating and was prone to fa1l .2l The nurse practitioner believed that Marin would benefit from physical therapy, but would benefit from use of a wheelchair .z Marin was z then transferred to the by the ADS program , and given passes through end series of temporary wheelchair October 2014 .23 In May of 2015, Marin was referred therapy at the Jester cheema and Unit .24 Noting additional physical two physicians Ahmad) had previously advised him not pressure leg, Marin alleges that Palacio put and Stubbs unreasonably forced him to walk unassisted by a wheelchair during physical therapy, causing him uextreme pain' ' and uobvious discom fort z' zb Marin contends that he needs permanent wheelchair pass because he has fallen and hurt him self 'on numerous occasions' and ' ' leg is uextremely swollen .'2 '6 z step 1 Grievance #2013095327, Docket Entry No. 19-1, l 22yd . Moffender Medical Passes, Docket Entry No . 19, pp . 8-14. M statement of Fact , Docket Entry No . 2 . at 5 . 5ld 26 . at 3-4. Marin clarifies that he fell non or around' may Id ' 31, 2015, June 17, 2015, July 15, 2015, and um any more dates that ( continued.- ) as increasingly swollen , uturning is ualmost black,' alleging further that he uliterally cannot walk' ' ' or apply pressure to his leg .2? this condition , Marin cannot shower properly and he has difficulty using the bathroom x 8 Marin also has difficulty navigating a daily basis infirmary and cafeteria prison .29 any other destination Despite these difficulties, Marin alleges that Abron ignored uorders' from other physicians to give Marin a wheelchair .o ' Without a wheelchair , Marin contends hurt legs, back, and hands .3 l complained Friedman he has fallen and Marin unumerous states that he has tim es,' ' requesting wheelchair and treatment by a specialist , but that Dr . Friedman has not issued him a pass or approved him to be seen by a specialist UTMB .3 2 A lleging that the defendants have acted with deliberate indifference to his serious medical needs, Marin seeks injunctive relief the form of a permanent wheelchair pass and monetary z 6t... continued) ( werej not placed in the medical records.' ' Opposition, Docket Entry No . 28, p . 2 . z7 statement of Fact, Docket Entry No . 19, p . 281d 29jd . ( 3 01d 3 Id 1 3 . at 3-4 . 21d damages the amount $300,000.00 violation Eighth Amendment rights.3 3 c. Defendants' Motion for Judgment on the Pleadings Invoking Rule 12 ( of the Federal Rules of Civil Procedure, c) defendants move judgment on pleadings. particular, the defendants argue that the Complaint should be dism issed for the following reasons: limitations bars review 2014; the governing statute of claim s that accrued before August official immunity bars recovery of monetary damages defendants against employees; and immunity from the suit their official defendants because are Marin capacity entitled does not as state qualified articulate constitutional violation of the Eighth Amendment .3 4 D. Plaintiff 's Motion for Leave to Amend response to Defendants' Motion , Marin has filed Motion for Leave to File an Am ended Comp laint , which respects . Although Marin has included deficient in several uCertificate of Service' ' with his Motion, it is evident that he did not serve the defendants their counsel of record .3 Instead, he asks the Clerk of Court 5 M complaint, Docket Entry p. M Defendants ' Motion, Docket Entry No . 24, pp . 3 Motion for Leave 5 No . 27, p . 3 . File an Amended Complaint, Docket Entry to serve the defendants with a copy of the Motion on beha1f .3 6 A s explained to Marin previously, it is his responsibility to serve defendants' counsel record with copy every pleading, motion, or other document subm itted to the court .37 Because Marin has complied with this order, court may ndisregard' his ' Motion for lack of servicex s More importantly, Marin does prov ide proposed amended complaint along with his Motion and he does not otherwise provide additional facts helpful details that enhance claim s meaningful way . As a result, Marin's Motion for Leave to File an Amended Complaint will be denied as futile . See Marucci Sports, LLC v. National Colleqiate Athletic Ass'n, 751 F.3d 368, 2014)7 see also Stiplin? v. Jordan Prod . Co., ( 5th Cir. 2000) ( holding that leave ( 5th F.3d 863, amend may be denied as futile if the proposed amendment would fail state claim upon which relief could be granted). II . Standard of Review Defendants' Motion governed Rule 12 ( c) the Federal Rules of Civil Procedure, which provides that ug aqfter the pleadings are closed but within such time as delay the 36 d I 3 order Regarding Motion to Proceed 7 Advisory, Docket Entry No . 8, pp . 3-4 . 3 8zd Forma Pauperis and trial, any party may m ove brought pursuant judgment on the pleadings.' A motion ' Rule 12 ( c) ndesigned where the material facts are dispose cases dispute and a judgment on the merits can be rendered by looking to the substance of the pleadings and any judicially noticed facts.' Great Plains Trust Co. v . Morqan ' Stanlev Dean Witter & Co., 313 F.3d 305, 312 2002) ( citing Hebert Abstract Co. v. Touchstone Proos., Ltdw 74, 76 1990) ( per curiam ); Miller, Federal Practice and F.2d Charles A . Wright & Arthur Procedure 1367, 509-10 ( 1990)). The standard for deciding a motion filed under Rule 12( c) the same as the one governing motions filed under Rule 12 ( ( b) 6). See Great Plains Trust Co., 313 F.3d at 313 n.8 ( citation omitted). Motions to dismiss under Rule 12 ( b) where the plaintiff's complaint fails relief be granted . appropriate only state a claim upon which Federal pleading rules require only na short and plain statem ent of the claim' showing that the pleader is ' entitled to relief. 8( a). the Supreme Court has emphasized, Rule 8 does not require uheightened fact pleading of specifics,' Bell Atlantic Corp . v . Twomblv , ' 1955, 1975 A shcroft v . Iqbal, ( 2007), 1937, ( 009). 2 'labels and conclusions ' a cause action However, pleading that offers formulaic recitation of the elements not do.' Id . ( ' quoting Twomblv, 127 S. at 1965). 'Nor does a complaint suffice if it tenders ' ' naked assertion g sj' devoid ' further factual enhancement.'' ' ( alteration in original). survive motion dismiss, complaint must contain sufficient factual matter, accepted as true, relief that is plausible on ( quoting Twomblv, face .'' Icbal ' at 1965). nWhen considering a motion dismiss, the court accepts as true allegations 'state a claim to well-pled factual the complaint, and construes them in the light m ost favorable to the plaintiff.' Tavlor v . Books A Million , Inc w ' F.3d 376, are ( 5th Cir. 2002) ( citation omitted). However, courts bound accept as true ul tqhreadbare recitals elements of a cause action , supported by m ere conclu sory statements,' or legal conclusions couched as factual assertions . ' Icbal, l29 S. at 19497 see Hale v. Kinq, 642 F.3d 492, 499 ( 5th 2011) ( pjlaintiffs must allege facts that support ug elements of a cause of action in order to make out a valid claim') ' ( citation omitted). 111 . Discussion A. Statute of Limitations defendants argue s om e Marin 's claims, such as those taking issue with medical care dating back to 2011, are stale and barred by the governing statute of limitationsx g civil rights claims under 42 U .S .C . are governed by a two-year statute of M Defendants' Motion, Docket Entry No . - 10- Pp . limitations . See Piotrowski v . Citv of Houston , F .3d 567, 576 ( 5th Cir. 2001)7 TE Cl PM c. & REM. COD ANN. 5 16.003( x. v. E a). means Marin had two years from time that This claim accrued to file a civil rights complaint . See Gonzalez v . Wyatt, 1016, 1998). A cause of action accrues, so that the two-year statute limitations begins to run , when the plaintiff knows or has reason action . F .3d know of the injury which is the basis the See id . The record confirms that Marin complains about mistreatment that he was aware of in 2011-13,4 but that he did not execute his 0 Complaint until August 2016 .41 extent Marin contends that he was denied adequate medical care at any time before August 2014, those claims are untimely and subject dismissal for that reason . 1993). Defendants' Motion See Gartell v . Gavlor , Accordingly, F.2d 254, Court w ill grant dismiss claim s accruing before August 2014, as barred by limitations. B. Eleventh Amendment Official Immunity The defendants contend that they are entitled Amendment immunity' from Marin's claim s against them ' nEleventh their 4 statement of Fact, Docket Entry No. 19, pp . 2, 5 ( o complaining about physical therapy performed by Palacio in 2011); Step l Grievance #2013095327, Docket Entry No . 19-1, pp . 1-3 ( referencing physical therapy and medical issues that Marin was aware of in 2012 and 2013). H complaint , Docket Entry No . - 11- official capacity as state employeesxz Unless expressly waived, the Eleventh Amendment bars an action federal court inter alia, a citizen of a state against his or her own state , including a state agency. See Martinez v . Texas Dep 't of Crim inal Justice, ( 5th Cir. 2002). As state agency, TDCJ immune from a suit for money damages under the Eleventh Amendm ent . See Talib v. Gillev, ( 5th Cir. 1998) settled that the Eleventh Amendment bars damages under U .S .C . official capacity . 1983 from It is also recovery m oney state employees their See Oliver v . Scott, F.3d 736, 742 2001); Aauilar v . Texas Dep ' of Criminal Justice, t 1052, 1054 (5th 1998). Thus, F.3d will grant Defendants' Motion to dismiss Marin's request monetary damages against them in their official capacity . There where claims F.3d at narrow exception Eleventh Amendment immunity injunctive relief are concerned. See Aguilar, ( citing Ex parte Young, requests injunctive relief in the form of (1980)). Marin permanent wheelchair claim . HDefendants' Motion, Docket Entry No . 24, O complaint, Docket Entry No . Therefore, the court does not address whether the defendants are entitled immunity from Marin's claim for injunctive relief.4 4 Qualified Immunity The defendants also move judgment claims for monetary damages against them their favor on the their individual personal capacity .t In particular, the defendants argue that they s are entitled to qualified immunity from suit because Marin has not alleged facts estab lishing that they acted with deliberate indifference a serious medical need requisite violation of the Eighth Amendment .46 Public officials acting within the scope of their authority generally are shielded from qualified immunity . 2738 (1982). liability by doctrine See Harlow v . Fitzaerald, Qualified immunity protects uall 2727, the p lainly incompetent or those who knowingly violate the Briqqs, o v e r c om e 1092, 1096 ( 1986) qualified immunity must show : Mallev v . plaintiff seeking that the official 4Likewise, ' njeither absolute nor qualified personal immunity 4 'g extends to suits for injunctive or declaratory relief under 5 1983.' Chrissv F. bv Medlev v . M ississiopi Dep 't of Public / Welfare, 925 F. 844, 849 ( 2d 5th Cir. 1991) ( citations omitted); see also Williams v. Ballard, 466 F.3d 330, 334 n .7 ( 5th Cir. 2006) ( noualified immunity does not protect officials from injunctive relief.') ( ' citing Orellana v . Kvle, 65 F.3d 29, 33 1995)). 4 soefendants' Motion, Docket Entry No . 461d . a t 3-6 . ( - 13- pp . ( 5th Cir. violated a statutory constitutional right , right was 'clearly established' that the tim e of the challenged conduct.' Ashcroft v . al-Kidd, ' 2074, 2080 ( 2011) ( citation omitted). prison inmate 's claim s inadequate medical care are governed by the Eighth Am endm ent, which prohibits cruel and unusual punishment. See Estelle v. Gamble, 97 S. ( 1976). prison official violates the Eighth Amendment's prohibition against cruel and unusual punishment deliberate indifference when conduct dem onstrates a prisoner's serious medical needs, constituting an unnecessary and wanton infliction of pain .' Easter ' v. Powell, 467 F.3d 459, 463 ( 5th Cir. 2006) ( internal quotation marks and citation omitted). nDeliberate indifference an extremely high standard to m eet .' Domino v . Texas Deo't of Crim inal ' Justice, F.3d 752, ( 5th Cir. 2001). prison official acts with deliberate indifference only if he knows that an inmate faces a substantial risk of serious harm and disregards v. Brennan, ll4 treatment , acts constitute disagreement 1970, 1984 ( 1994). negligence, deliberate with nUnsuccessful medical medical malpractice indifference, medical risk. Farmer treatment, does absent prisoner's exceptional circumstances.' Gobert v. Caldwell, 463 F.3d 339, 346 ( ' 5th Cir. 2006) ( citations omitted). A showing of deliberate indifference requires the prisoner to demonstrate that prison officials 'refused ' - 14- to treat him , ignored complaints, intentionally treated him incorrectly , or engaged in any similar conduct that would clearly evince a wanton disregard for any serious m edical needs .' ' ( internal quotation and citation omitted). Defendants contend that Marin cannot state a claim under the Eighth Amendment because his allegations nsimply' reflect that he ' disagrees with or 'does not like ' or has received .'Q 'R entitled nless As medical care he receiving pro aq litigant Marin's pleadings liberal construction, meaning they are subject stringent standards than formal pleadings lawyers.' Haines v. Kerner, ' drafted ( 1972) Marin's pleadings, which are summarized in more detail above, appear allege more than mere dissatisfaction the level of his medical care . In that respect, Marin appears to contend that Dr . Abron has denied him a wheelchair and sent him to physical therapy despite the fact that he has fallen repeatedlyz injuring himself numerous times when forced use crutches further that he has asked wa1ker .48 Marin alleges Dr . Friedman numerous times for a wheelchair or referral to a specialist to correct the problem with his left leg, but that Dr . has not helped him .4 A s a result, Marin 9 alleges that he has been required participate lRDefendants' Motion, Docket Entry No . 48 statement of Fact, Docket Entry No . 49 . at 4-5. Id - 15- physical therapy with Palacio and Stubb s, who have forced walk unassisted despite obvious discomfort, causing severe swelling, discoloration , extreme pain, and an utter inability to walk or put pressure on his left leg .5 Construed generously, Marin alleges that 0 defendants have refused him treatment ( e., by providing i. wheelchair) and ignored his complaints of pain . Accepting Marin's allegations as true and viewing the facts the light most favorable to p laintiff as required for purposes review under Rule 12 ( 6), this b)( stage of the lawsuit state sufficient pleadings potential violation of established right under the Eighth Amendment and defendants' assertion of qualified immunity . clearly overcome Although Marin may ultimately prevail, judgment on the pleadings inappropriate in light the allegations. Defendants' Motion Accordingly, the court will deny dismiss the claim s against them their individual capacity at this time, subject to reconsideration properly supported motion for summary judgment or other appropriate motion . IV . Conclu sion Based on the foregoing , the court ORDERS as follows: Defendants' Motion for Judgment on the Pleadings ( Docket Entry No. 24) is GRANTED with respect to a11 claims that accrued before August 14, 2014, and al1 claims for monetary damages against the defendants in their official capacity as state employees . 5 0Id Defendants' Motion for Judgment on the Pleadings ( Docket Entry No. 24) is DENIED in a11 other respects. Plaintiff's Motion for Leave to File an Amended Complaint ( Docket Entry No. 27) is DENIED at this time. The defendants shall file any motion for summary judgment or other appropriate dispositive motion within 60 days of the date of this order . The plaintiff will have 30 days from the date shown on the defendants' certificate of service to respond . The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. S G E a H u t n,T x s o t s xo d y o % ,,รง , IN D t o s o e a , n h s 4 a , l < * SIM LAKE UNITED STATES DISTRICT JUDGE

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