Marin v. Davis et al
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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
April 20, 2017
David J. Bradley, Clerk
CIVIL A CTION NO . H-16-2718
M EMORANDUM OPIN ION AND ORDER
inmate Alberto Marin
' Docket Entry No.
U .S .C .
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
uDefendants' Motion') (
Marin has responded with a Motion for Leave to File
Entry No .
an Amended Complaint
Defendants' Motion (
Docket Entry No. 28), and some exhibits (
applicable law, the Defendants' Motion will be granted in part and
the reasons explained below .
1 . Backqround
The plaintiff, A lberto Marin,
Texas Department of Criminal Justice
Marin is approximately
Richmond , Texas.l
years old, with a history
left leg .2
diabetes,3 and he reportedly has
also suffers from
history of chronic back pain .4
There are four remaining defendants,s including two physicians
Dr. Stephanie Abron
Robert Friedman) and two physical
defendants are employed by TDCJ at the Jester III facility, which
week, and specialty clinics such as brace and limb , occupational
therapy, and physical therapy .'? The Jester
lcomplaint, Docket Entry No .
zprogress Notes, Docket Entry No . 29, pp . 6-7.
3statement of Fact, Docket Entry No .
No . 27, p . 1 .
Leave to File an Amended Complaint , Docket Entry
see Order to Answer, Docket Entry No. 20, pp. 4-5 (
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).
complaint , Docket Entry No .
XDefendants' Motion , Docket Entry No.
n .3 .
the Assistive Disability Services ('
%ADS') program x
Abron is director of
ADS program and is nthe doctor
who assesses a11 patients for wheelchair placement and or medical
dpviCO S .H9
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
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
'UTMB' John Sealy Hospital
Galveston on November 19, 2010.1
2011, Marin was transferred
the Jester III Unit
for physical therapyx3 Marin claims that two UTMB physicians who
are not parties here
Cheema at the UTMB Hospital and Dr . Ahmad
Unit) advised him to avoid putting pressure on
No . 27, p . 1 .
File an Amended Complaint, Docket Entry
complaint, Docket Entry No .
statement of Fact, Docket Entry No . 19, p .
that Palacio contradicted these physicians by
forcing him to walk with crutches
walker during physical
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
transferred to the
fell and hurt himself, however, medical personnel at the Terrell
states that he used the walker
that this resulted
p ain' because he
timO S .?2
1 yd .
year and a half, but
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
then transferred to the
by the ADS program , and given
series of temporary wheelchair
October 2014 .23
In May of 2015, Marin was referred
therapy at the Jester
Unit .24 Noting
Ahmad) had previously advised him not
unreasonably forced him to walk unassisted by a wheelchair during
discom fort z'
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
z step 1 Grievance #2013095327, Docket Entry No. 19-1,
Moffender Medical Passes, Docket Entry No . 19, pp . 8-14.
M statement of Fact , Docket Entry No .
2 . at 5 .
26 . at 3-4. Marin clarifies that he fell non or around' may
31, 2015, June 17, 2015, July 15, 2015, and um any more dates that
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
any other destination
Despite these difficulties, Marin alleges that
ignored uorders' from other physicians to give Marin a wheelchair .o
Without a wheelchair , Marin contends
legs, back, and hands .3
he has fallen and
states that he has
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
A lleging that the defendants have acted with deliberate
indifference to his serious medical needs, Marin seeks injunctive
the form of a permanent wheelchair pass and monetary
werej not placed in the medical records.'
Entry No . 28, p . 2 .
statement of Fact, Docket Entry No . 19, p .
3 . at 3-4 .
Eighth Amendment rights.3
Defendants' Motion for Judgment on the Pleadings
Invoking Rule 12 ( of the Federal Rules of Civil Procedure,
particular, the defendants argue that the Complaint should be
dism issed for the following reasons:
limitations bars review
the governing statute of
claim s that accrued before August
official immunity bars recovery of monetary damages
constitutional violation of the Eighth Amendment .3
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
M complaint, Docket Entry
M Defendants ' Motion, Docket Entry No . 24, pp .
3 Motion for Leave
No . 27, p . 3 .
File an Amended Complaint, Docket Entry
to serve the defendants with a copy of the Motion on
A s explained to Marin previously, it is his responsibility to serve
motion, or other document subm itted to the court .37 Because Marin
complied with this order,
court may ndisregard' his
Motion for lack of servicex s
More importantly, Marin does
complaint along with his Motion and he does not otherwise provide
helpful details that enhance
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,
see also Stiplin? v. Jordan Prod . Co.,
5th Cir. 2000) (
holding that leave
amend may be denied as
futile if the proposed amendment would fail
which relief could be granted).
II . Standard of Review
Rule 12 (
Federal Rules of Civil Procedure, which provides that ug
pleadings are closed but within such time as
3 order Regarding Motion to Proceed
Advisory, Docket Entry No . 8, pp . 3-4 .
trial, any party may m ove
judgment on the pleadings.' A motion
Rule 12 (
where the material facts are
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
citing Hebert Abstract Co. v. Touchstone Proos., Ltdw
per curiam );
Miller, Federal Practice
Charles A . Wright & Arthur
1990)). The standard for deciding a motion filed under Rule 12(
the same as the one governing motions filed under Rule 12 ( (
See Great Plains Trust Co., 313 F.3d at 313 n.8 (
Motions to dismiss under Rule 12 (
where the plaintiff's complaint fails
be granted .
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.
the Supreme Court has
emphasized, Rule 8 does not require uheightened fact pleading of
specifics,' Bell Atlantic Corp . v . Twomblv ,
A shcroft v . Iqbal,
'labels and conclusions '
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 '
further factual enhancement.''
alteration in original).
complaint must contain
sufficient factual matter, accepted as true,
relief that is plausible on
face .'' Icbal
at 1965). nWhen considering a motion
dismiss, the court accepts as true
'state a claim to
the complaint, and construes them in the light m ost
favorable to the plaintiff.' Tavlor v . Books A Million , Inc w
5th Cir. 2002) (
citation omitted). However, courts
accept as true ul
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 (
2011) ( pjlaintiffs must allege facts that support
elements of a cause of action in order to make out a valid claim')
111 . Discussion
Statute of Limitations
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 .
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(
Marin had two years from
to file a civil rights complaint . See Gonzalez v . Wyatt,
1998). A cause of action accrues, so that the
limitations begins to run , when the plaintiff
knows or has reason
know of the injury which is the basis
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
Complaint until August
contends that he was denied adequate medical care at any time
2014, those claims are untimely and subject
dismissal for that reason .
See Gartell v . Gavlor ,
Court w ill grant
dismiss claim s accruing before August
2014, as barred by limitations.
Eleventh Amendment Official Immunity
The defendants contend that they are entitled
Amendment immunity' from Marin's claim s against them
4 statement of Fact, Docket Entry No. 19, pp . 2, 5 (
about physical therapy performed by Palacio in 2011); Step l
Grievance #2013095327, Docket Entry No . 19-1, pp . 1-3 (
physical therapy and medical issues that Marin was aware of in 2012
H complaint , Docket Entry No .
official capacity as state employeesxz
Unless expressly waived,
the Eleventh Amendment bars an action
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).
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
U .S .C .
official capacity .
It is also
See Oliver v . Scott,
F.3d 736, 742
2001); Aauilar v . Texas Dep ' of Criminal Justice,
1052, 1054 (5th
Defendants' Motion to dismiss Marin's request
against them in their official capacity .
Eleventh Amendment immunity
injunctive relief are concerned. See Aguilar,
citing Ex parte Young,
requests injunctive relief in the form of
HDefendants' Motion, Docket Entry No . 24,
O complaint, Docket Entry No .
the court does not address whether the defendants are entitled
immunity from Marin's claim for injunctive relief.4
The defendants also move
claims for monetary damages against them
their favor on the
personal capacity .t In particular, the defendants argue that they
are entitled to qualified immunity from suit because Marin has not
alleged facts estab lishing that they acted with
a serious medical need
the Eighth Amendment .46
Public officials acting within the scope of their authority
generally are shielded from
qualified immunity .
See Harlow v . Fitzaerald,
Qualified immunity protects uall
the p lainly
incompetent or those who knowingly violate the
o v e r c om e
1092, 1096 (
qualified immunity must show :
Mallev v .
that the official
4Likewise, ' njeither absolute nor qualified personal immunity
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 (
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
citing Orellana v . Kvle, 65 F.3d 29, 33
soefendants' Motion, Docket Entry No .
461d . a t 3-6 .
violated a statutory
constitutional right ,
right was 'clearly established'
the tim e of the challenged
conduct.' Ashcroft v . al-Kidd,
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.
prison official violates the Eighth Amendment's prohibition against
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) (
extremely high standard to m eet .' Domino v . Texas Deo't of Crim inal
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
1970, 1984 (
circumstances.' Gobert v. Caldwell, 463 F.3d 339, 346 (
A showing of deliberate indifference
requires the prisoner to demonstrate that prison officials 'refused
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
medical care he
pro aq litigant Marin's pleadings
liberal construction, meaning they are subject
lawyers.' Haines v. Kerner,
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
further that he has asked
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
alleges that he has been required
lRDefendants' Motion, Docket Entry No .
statement of Fact, Docket Entry No .
49 . at 4-5.
therapy with Palacio and Stubb s, who have forced
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
defendants have refused him treatment ( e., by providing
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
stage of the lawsuit
potential violation of
established right under the Eighth Amendment and
defendants' assertion of qualified immunity .
Although Marin may
ultimately prevail, judgment on the pleadings inappropriate in
Accordingly, the court will deny
dismiss the claim s against them
individual capacity at this time, subject to reconsideration
properly supported motion for summary judgment or other appropriate
IV . Conclu sion
Based on the foregoing , the court ORDERS as follows:
Defendants' Motion for Judgment on the Pleadings (
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 .
Defendants' Motion for Judgment on the Pleadings (
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 % ,,ç ,
IN D t o s o e a , n h s 4 a ,
* SIM LAKE
UNITED STATES DISTRICT JUDGE
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