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)
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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