Marin v. Davis et al

Filing 38

MEMORANDUM OPINION AND ORDER granting 35 Sealed Motion for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
October 27, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALBERTO MARIN, TDCJ #919404,

§
§
§
§
§
§
§
§
§

Plaintiff,
v.

WILLIAM STEPHENS, et al.,
Defendants.

David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2718

MEMORANDUM OPINION AND ORDER

State
Complaint

inmate
Under

("Complaint")
denied

Alberto
the

Marin

Civil

Rights

(Docket Entry No.

adequate

medical

care

(TDCJ

1) ,

while

#919404)

Act,

42

has

filed

u.s.c.

§

a

1983

alleging that he has been
incarcerated

in

the

Texas

Department of Criminal Justice - Correctional Institutions Division
("TDCJ").

Marin has also filed an Affidavit (Docket Entry No. 5)

and a Statement of Fact
claims.

Defendants

(Docket Entry No.

Stephanie

Abron,

19)

to supplement his

Robert

Friedman,

Jerry

Palacio, and James Stubbs have filed a Motion for Summary Judgment
("Defendants' Motion")

(Docket Entry No. 35).

Marin has not filed

a response or requested an extension and his time to do so has
expired.

After reviewing all of the pleadings, exhibits, and the

applicable law,

the Defendants' Motion will be granted and this

case will be dismissed for the reasons explained below.

I.

Background

Marin is a 52-year-old inmate who has been diagnosed with high
cholesterol,

type

2

diabetes,

major

depressive

disorder

with

psychosis, acid reflux, obesity, hypothyroidism, low back pain, and
lymphedema

in

his

lower

left

leg. 1

The

defendants

are

two

physicians (Dr. Stephanie Abron and Dr. Robert Friedman) and two
physical therapists

(Jerry Palacio and James Stubbs) employed by

TDCJ at the Jester III Unit 2 where Marin was confined when he filed
his Complaint. 3
Marin alleges that the defendants denied him adequate medical
care for lymphedema,

which he developed after having surgery to

repair a torn meniscus in his left knee. 4

Lymphedema is described

as a collection of fluid that causes swelling in the extremities
when lymph vessels are unable to drain fluid.

5

There is no cure

Affidavit of Steven Bowers, M.D.
("Bowers Affidavit"),
Exhibit A to Defendants' Motion, Docket Entry No. 35-1, p. 3.
1

2

Complaint, Docket Entry No. 1, pp. 4-5.
The Jester III
facility is described as a "medical unit" that features "24-hour
medical care, seven days a week, and specialty clinics such as
brace and limb, occupational therapy, and physical therapy."
Defendants Abron, Friedman, Palacio and Stubbs' Motion for Judgment
on the Pleadings Pursuant to Fed. R. Civ. P. 12(c), Docket Entry
No. 24, p. 5, n.3.
The Jester III Unit also houses the Assistive
Disability Services ("ADS") program.
Id.
3

Complaint, Docket Entry No. 1, pp. 1, 4. On August 18, 2017.
Marin was transferred to the Holliday Unit in Huntsville where he
remains in custody. See Advisory, Docket Entry No. 37, p. 1.
4

Bowers Affidavit,
Entry No. 35-1, p. 3.
5

Exhibit A to Defendants'

Id. at 3-4.
-2-

Motion,

Docket

for lymphedema, but the condition can be managed with compression
garments,

wrapping the affected arm or leg,

and exercise. 6

In

cases of severe lymphedema surgery to remove excess tissue may be
an option. 7
Marin alleges that Dr. Abron,
Assistive Disability Services

who is Director of the TDCJ
program, 8 ignored "orders"

("ADS")

from other physicians to give Marin a wheelchair. 9

Marin contends

that he needs a wheelchair because he has fallen and hurt himself
"on numerous occasions"
walker . 10

while attempting to use crutches or a

Marin states that he has complained to Dr.

Friedman

"numerous times," requesting a wheelchair and treatment, but that
Dr.

Friedman has

specialist. 11

not

Marin

issued him a
alleges

pass

further

or referred him to a

that

Palacio

and

Stubbs

unreasonably forced him to walk during physical therapy, causing
him "obvious discomfort" and "extreme pain." 12
Marin contends

that

he

needs

a

permanent wheelchair pass

because he "literally cannot walk" or apply pressure to his leg,

6

Id. at 4.

7

Id.

8

Motion for Leave to File an Amended Complaint, Docket Entry
No. 27, p. 1.
9

Statement of Fact, Docket Entry No. 19, p. 4

10

Id. at 3-4

~

5 (d).

11

Id. at 4-5

~

8(d).

12

Id. at 5

~~

8 (G)

&

(H) .
-3-

~

8(c).

which he

describes

as

extremely

swollen. 13

Alleging

that

the

defendants have acted with deliberate indifference to his serious
medical needs in violation of the Eighth Amendment,

Marin seeks

injunctive relief in the form of a permanent wheelchair pass and
monetary damages in the amount of $300,000.00 for the violation of
his constitutional rights. 14
judgment,
with

The defendants now move for summary

arguing that they have not denied Marin adequate care

deliberate

indifference

and

that

they

are

entitled

to

qualified immunity from his claims . 15
II.

Standard of Review

The Defendants' Motion 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);

Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).
~~

13

Id. at 4

14

see also
A fact is

Complaint, Docket Entry No. 1, p. 6.

6 and 5.

15

The court previously dismissed claims concerning the denial
of adequate medical care before August of 2014 as barred by the
applicable statute of limitations, and Marin's claims for monetary
damages from the defendants in their official capacity as barred by
the Eleventh Amendment.
See Memorandum Opinion and Order dated
April 20, 2017, Docket Entry No. 30, p. 16. Claims against several
other defendants (former TDCJ Director William Stephens, Warden
Troy Simson, Practice Manager Susan Dostal, Nurse Manager Marisol
Gemin, and Security Officer Aremus) were dismissed on November 22,
2016. See Order to Answer and Order of Partial Dismissal, Docket
Entry No. 20, pp. 4-5.
-4-

"material" if its resolution in favor of one party might affect the
outcome of the suit under governing law.

Anderson v.

Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).

Liberty

An issue is "genuine"

if the evidence is sufficient for a reasonable 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."
Cir.

2010)

However,

(internal

Dillon v. Rogers, 596 F.3d 260, 266 (5th
quotation

the non-movant

marks

and

"cannot rest on

qualified immunity is asserted.
481, 490 (5th Cir. 2001)

citation

[his]

omitted).

pleadings"

where

Bazan v. Hidalgo County, 246 F.3d

(emphasis in original).

Nor can the non-

movant avoid summary judgment simply by presenting "[c]onclusional
allegations

and

denials,

speculation,

improbable

inferences,

unsubstantiated assertions, and legalistic argumentation."

Jones

v. Lowndes County, Mississippi, 678 F.3d 344, 348 (5th Cir. 2012)
(quoting TIG Ins.

Co. v.

Sedgwick James of Washington,

276 F. 3d

754, 759 (5th Cir. 2002)); see also Little v. Liguid Air Corp., 37
F.3d 1069,
demonstrate
allegations,
evidence) .

1075
a

(5th Cir.

genuine

1994)

issue

of

(en bane)
material

unsubstantiated assertions,

(a non-movant cannot
fact

with

conclusory

or only a scintilla of

If the movant demonstrates an "absence of evidentiary

support in the record for the nonmovant's case," the burden shifts
to the nonmovant to "come forward with specific facts showing that
there is a genuine issue for trial."
-5-

Sanchez v.

Young County,

Texas,

866 F.3d 274,

279

(citing Cuadra v.

Houston Indep.

Dist.,

626 F.3d 808,

812

(5th Cir.

see also Matsushita

Electric Industrial Co.,

Ltd. v.

2010));

Zenith Radio Corp.,

Sch.

106 S. Ct.

1348, 1356 (1986).
The

plaintiff

represents

himself

in

this

case.

Courts

construe pleadings filed by pro se litigants under a less stringent
standard than those drafted by lawyers.
S. Ct. 594,
21971

2200

(1972); see also Erickson v.

596

Pardus,

127 S. Ct.

("A document filed pro se is 'to be liberally

(2007)

construed [.] '")

See Haines v. Kerner, 92

( citation omit ted) .

Nevertheless, "pro se parties

must still brief the issues and reasonably comply with
procedural rules] "
1995).

[federal

Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.

The Fifth Circuit has held that "[t]he notice afforded by

the Rules of Civil Procedure and the local rules" is "sufficient"
to advise a pro se party of his burden in opposing a
judgment motion.

See Martin v. Harrison County Jail, 975 F.2d 192,

193 (5th Cir. 1992)

(per curiam) .
III.

A.

summary

Discussion

The Defendants are Entitled to Qualified Immunity

The defendants move for summary judgment on the claims for
monetary damages
capacity. 16

16

against

them

in their

individual

or personal

Public officials acting within the scope of their

Defendants' Motion, Docket Entry No. 35, pp. 8-9.
-6-

authority

generally

are

shielded

doctrine of qualified immunity.
S. Ct. 2727, 2738 (1982).
plainly

incompetent

Malley v.

Briggs,

from

civil

liability by

See Harlow v.

Fitzgerald,

the
102

Qualified immunity protects "all but the

or

those

106 S.

who

Ct.

knowingly

1092,

1096

violate

(1986).

seeking to overcome qualified immunity must show:

the

law."

A plaintiff
"(1) that the

official violated a statutory or constitutional right, and (2) that
the right was 'clearly established' at the time of the challenged
conduct."

Ashcroft

v.

al-Kidd,

131

S.

Ct.

2074,

2080

(2011)

immunity

on

summary

(citation omitted) .
Where

a

defendant

asserts

qualified

judgment "the burden shifts to the plaintiff to rebut it."
v. Small,

325 F.3d 627,

(emphasis in original).

632

(5th Cir. 2003)

(citations omitted)

Thus, the plaintiff bears the burden of

negating the defendants' claim of qualified immunity.
246 F.3d at 489-90.

Cousin

See Bazan,

To avoid summary judgment a plaintiff must

present evidence to raise a fact issue "material to the resolution
of the questions whether the defendants acted in an objectively
reasonable manner in view of the existing law and facts available
to them."
Cir.

1993);

Lampkin v. City of Nacogdoches,
see also Bazan,

7 F.3d 430,

246 F.3d at 490

435

(5th

(observing that a

plaintiff may not rest on the pleadings, but "must show genuine
issues of material

fact

concerning the

defendants'] conduct").

-7-

reasonableness

of

[the

The defendants
immunity

because

argue

Marin

that

cannot

they are
show

that

requisite deliberate indifference to a
violation of

the

Eighth Amendment,

unusual punishment.

official

"A

prison

they

acted

with

the

serious medical need in

which prohibits

See Estelle v.

(1976).

entitled to qualified

Gamble,

violates

the

97 S.

cruel

and

285,

291

Ct.

Eighth

Amendment's

prohibition against cruel and unusual punishment when his conduct
demonstrates

deliberate

indifference

to

a

prisoner's

serious

medical needs, constituting an unnecessary and wanton infliction of
pain."

Easter v.

(internal

Powell,

quotation marks

4 67
and

F. 3d 459,
citation

463

(5th Cir.

omitted).

2006)

"Deliberate
Domino v.

indifference is an extremely high standard to meet."

Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
A prison official acts with deliberate indifference only if he
knows that an inmate faces a substantial risk of serious harm and
Farmer v. Brennan,

disregards that risk.

114 S. Ct. 1970, 1984

"Unsuccessful medical treatment, acts of negligence, or

(1994).

medical malpractice do not constitute deliberate indifference, nor
does a prisoner's disagreement with his medical treatment, absent
exceptional circumstances."
(5th Cir.

2006)

indifference
officials

Gobert v. Caldwell, 463 F.3d 339, 346

(citations omitted)

requires

"refused

the
to

prisoner

treat

A showing of deliberate
to

him,

demonstrate
ignored

his

that

prison

complaints,

intentionally treated him incorrectly, or engaged in any similar
conduct

that

would

clearly evince
-8-

a

wanton disregard

for

any

serious medical needs."

Id. (internal quotation marks and citation

omitted) .
The defendants have provided an Affidavit from Dr.
Bowers,

who

summarizes

the

care

that

Marin has

Steven

received,

and

approximately 200 pages of medical records in support of their
contention that Marin was not denied medical care in violation of
the Eighth Amendment. 17
summary

judgment

Marin, who has not filed a response to the

motion,

fails

to

show

that

the

individual

defendants violated his rights under the Eighth Amendment or to
overcome the defendants'

entitlement to qualified immunity for

reasons outlined separately below.
1.

Claims Against Dr. Abron

Marin claims that Dr. Abron denied him a wheelchair despite
the fact that other medical providers recommended that he have
one. 18

The defendants note,

however,

that

there

is no record

showing that Dr. Abron ever personally treated Marin or that she
was involved in any decision to deny him a wheelchair . 19

"Personal

involvement is an essential element of a civil rights cause of
action."

Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).

17

Bowers Affidavit, Exhibit A to Defendants' Motion, Docket
Entry No.
35-1, pp.
2-8; Medical Records,
Exhibit B-1 to
Defendants' Motion, Docket Entry No. 35-2 (76 pages); Exhibit B-2
to Defendants'
Motion,
Docket Entry No.
35-3
(77 pages);
Exhibit B- 3 to Defendants' Motion, Docket Entry No. 3 5-4 ( 77
pages); and Exhibit B-4 to Defendants' Motion, Docket Entry
No. 35-5 (4 pages).
18

Statement of Fact, Docket Entry No. 19, p. 4.

19

Defendants' Motion, Docket Entry No. 35, p. 8.
-9-

Because there is no evidence in the record showing that Dr. Abron
had any personal involvement with Marin's medical care,

she is

entitled to qualified immunity and the claims against her must be
dismissed.
2.

Claims Against Dr. Friedman

Marin claims that he asked Dr. Friedman numerous times for a
wheelchair or referral to a specialist, but that Dr. Friedman did
nothing to help.

20

The medical records refute Marin's claim.

The medical records show that Marin received treatment from
numerous providers at the Jester III Unit and other facilities, and
that Dr. Friedman treated Marin on at least 13 occasions during the
period relevant to this lawsuit. 21

Dr. Friedman saw Marin initially

on February 9, 2015, and issued him a prescription for Ibuprofen. 22
On the same day Marin had a consultation with a pharmacist about
his condition and medication regimen, which Dr. Friedman approved. 23
Less

than two weeks

later,

on February 20,

2015,

Dr.

Friedman

issued a wheelchair pass for Marin for a term of six months. 24
20

Statement of Fact, Docket Entry No. 19, pp. 4-5.

21

Bowers Affidavit, Exhibit A to Defendants' Motion, Docket
Entry No. 35-1, pp. 5-7 (summarizing the record of care provided by
Dr. Friedman) .
22

Prescription, Exhibit B-3 to Defendants' Motion, Docket Entry
No. 35-4, p. 6.
23

Correctional Managed Care ( "CMC") Department of Pharmacy Pharmacotherapy Clinic Note, Exhibit B-2 to Defendants' Motion,
Docket Entry No. 35-3, pp. 68-73.
24

CMC MD/MLP - Sick Call Exam, Exhibit B-1
Motion, Docket Entry No. 35-2, p. 72.
-10-

to Defendants'

On May 19,

2015,

Dr.

Kokila Naik

(who is not a defendant)

evaluated Marin and determined that he did not need a wheelchair. 25
Dr. Naik prescribed physical therapy for a period of a week to ten
days. 26
On June 29, 2015, Dr. Friedman submitted an expedited referral
on Marin's behalf, asking for an updated opinion from the "physical
medicine"

department

wheelchair. 27

about

Marin's

continued

need

for

a

In response to a sick-call request on July 14, 2015,

Dr. Friedman also submitted a referral for Marin to be evaluated by
a

vascular

surgeon at

the

University of

Texas

Medical

Branch

("UTMB") John Sealy Hospital in Galveston. 28
The

physical

medicine

wheelchair pass on July 22,

department

discontinued

Marin's

2015, on instructions from Dr. Naik,

who accused Marin of "staging falls" and failing to cooperate in
physical therapy. 29

On July 27,

2015,

Dr.

Friedman prescribed

antibiotics to treat a wound on Marin's upper left leg. 30

25

UTMB Managed Care Physician Clinic Notes,
Defendants' Motion, Docket Entry No. 35-3, p. 18.

Noting

Exhibit B-2 to

26Id.
27

CMC MD/MLP - Sick Call Exam, Exhibit B-1
Motion, Docket Entry No. 35-2, p. 64.

to Defendants'

28

CMC MD/MLP - Sick Call Exam, Exhibit B-1 to Defendants'
Motion, Docket Entry No. 35-2, p. 60.
29

UTMB Managed Care Physician Clinic Notes,
Defendants' Motion, Docket Entry No. 35-4, p. 8.
3

Exhibit B- 3 to

°CMC Provider Chronic Clinic Note, Exhibit B-1 to Defendants'
Motion, Docket Entry No. 35-2, pp. 21-22.
-11-

that Marin was

having

trouble

ambulating

to

his

appointments,

Dr. Friedman contacted Dr. Naik to voice his concern. 31
As

requested

by

Dr.

Friedman,

Marin

was

evaluated

by

a

vascular specialist at the UTMB Hospital in Galveston on October 7,
2015. 32

Noting that Marin was ambulatory,

the doctor diagnosed

chronic lymphedema of the lower left leg, prescribed compression
garments, and scheduled a follow-up visit in six months. 33
On November 6, 2015, Dr. Friedman noted that Marin was running
a high temperature and gave orders for him to be taken to a local
hospital,

34

where he was diagnosed with sepsis. 35

Marin remained in

the hospital for several days before returning to the Jester I I I
Unit. 36
Dr.

Friedman next saw Marin on February 2,

authorized a wheelchair pass for 180 days.

38

2016,

37

when he

Dr. Friedman treated

31

Email from Dr. Friedman to Dr. Kokila Naik, Exhibit B-2 to
Defendants' Motion, Docket Entry No. 35-3, p. 14.
32

UTMB Health Vascular Clinic Note, Exhibit B-3 to Defendants'
Motion, Docket Entry No. 35-4, pp. 51-55.
33

Id. at 53.

34

CMC Urgent/Emergent Care Record, Exhibit B-2 to Defendants'
Motion, Docket Entry No. 35-3, pp. 25-30.
35

Bowers Affidavit,
Entry No. 35-1, p. 6.

Exhibit A to Defendants'

Motion,

Docket

36

CMC MC/MLP Chart Review, Exhibit B-1 to Defendants' Motion,
Docket Entry No. 35-2, p. 52.
37

CMC Clinic Notes, Exhibit B-1 to Defendants' Motion, Docket
Entry No. 35-2, pp. 46-50.
38

0ffender Medical Pass,
Docket Entry No. 35-2, p. 6.

Exhibit B-1 to Defendants'
-12-

Motion,

Marin

again

on

March

12

and

March

14,

2016,

continuing

his

prescription for antibiotics and pain medication. 39
On March 23, 2016, Marin was seen for a follow-up appointment
with a vascular specialist at the UTMB Hospital in Galveston. 40

The

assessment was chronic lymphedema of the lower left extremity. 41
The plan of care recommended by the specialist was for Marin to
continue wearing a compression stocking during the day, with access
to extra pillows so that he could elevate the leg while in his
bunk,

and for the medical department to issue a wheelchair that

allows for elevation of the lower left extremity. 42
Dr.

Friedman ordered treatment for Marin again on July 11,

2016, and on August 30, 2016, when he renewed Marin's wheelchair
pass for an additional 90 days. 43

Dr.

Friedman renewed Marin's

wheelchair pass for another 180 days on December 8, 2016. 44

Shortly

39

CMC Clinic Notes, Exhibit B-1 to Defendants' Motion, Docket
Entry No.
35-2,
pp.
41-45;
Prescriptions,
Exhibit B-3 to
Defendants' Motion, Docket Entry No. 35-4, p. 3.
40

UTMB Health Records, Exhibit
Docket Entry No. 35-4, p. 44.
41

to

Defendants'

Motion,

Id. at 44, 45.

42

B-3

Id. at 47.

43

CMC Clinic Notes, Exhibit B-1 to Defendants' Motion, Docket
Entry No. 35-2, pp. 33-37, 38-40; CMC Clinic Notes, Exhibit B-2 to
Defendants' Motion, Docket Entry No. 35-3, p. 5.
44

CMC Clinic Notes, Exhibit B-1 to Defendants' Motion, Docket
Entry No. 35-2, pp. 32, 76.
-13-

thereafter,

on December 13,

2016,

Dr.

Friedman issued Marin a

prescription for Ibuprofen for pain. 45
The

record

shows

that

Dr.

Friedman

consistently

renewed

wheelchair passes for Marin and that, contrary to Marin's claims,
he did not refuse to refer him to a specialist.

Absent evidence

that Dr. Friedman refused to treat him, ignored his complaints, or
otherwise evinced a wanton disregard for his condition, Marin fails
to show that Dr. Friedman acted with deliberate indifference to his
serious medical needs or violated his
Amendment.

See Gobert, 463 F.3d at 346.

rights under the Eighth
Therefore, Dr. Friedman

is entitled to qualified immunity and the claims against him will
be dismissed.
3.

Claims Against Palacio and Stubbs

Marin claims that Palacio and Stubbs unreasonably forced him
to walk during physical therapy, which caused him to suffer extreme
pain and discomfort. 46

As noted above,

the medical records show

that Marin was referred for physical therapy by Dr. Naik in mid-May
of 2015 because she did not believe that he needed a wheelchair. 47

45

Prescription, Exhibit B-2 to Defendants' Motion, Docket Entry
No. 35-3, p. 74.
46

Statement of Fact, Docket Entry No. 19, pp. 2, 5.

47

UTMB Managed Care Physician Clinic Notes,
Defendants' Motion, Docket Entry No. 35-3, p. 18.
-14-

Exhibit B- 2 to

Dr.

Naik

prescribed

physical

therapy

to

wean

Marin

from

his

wheelchair over a period of a week to ten days. 48
Clinical notes show that Marin was assigned to perform "gait
training" with a rolling walker as part of a "weaning program. " 49
Marin was discharged from physical therapy on July 21, 2015, for
"staging a fall" and refusing to cooperate. 50
Dr.

Bowers

notes

that

Palacio

and

Stubbs,

as

physical

therapists, were simply following orders given by a physician to
wean Marin from his
without one. 51

Dr.

wheelchair by having him attempt

to walk

Bowers explains that physical therapy often

requires patients to "push themselves physically and to perform
movements that are outside the patient's normal level of comfort. " 52
As a result,

"[i]t is common for patients going through physical

therapy to experience pain during the reconditioning process." 53
The record does not contain evidence showing that Marin was
injured as the result of his physical therapy regimen or that he
requested any treatment for pain during that time.

Marin does not

4sid.
49

CMC Physical Therapy Clinic Note, Exhibit B-3 to Defendants'
Motion, Docket Entry No. 35-4, p. 10.
50

Id. at 10, 11.

51

Bowers Affidavit,
Entry No. 35-1, p. 4.

Exhibit A to Defendants'

s2Id.
slid.

-15-

Motion,

Docket

otherwise
physical

show

that

therapy

prescribing

in

Palacio
a

or

manner

physician's

that

orders

objectively unreasonable.

Stubbs

forced

failed

or

that

to

him

to

perform

comply with

their

actions

the
were

Both Palacio and Stubbs are therefore

entitled to qualified immunity, and the claims against them will be
dismissed.
Marin is Not Entitled to Injunctive Relief

B.

Marin

has

asked

for

injunctive

relief

in

the

form

of

a

permanent wheelchair pass. 54 Marin has not shown, however, that any
of the defendants in this case were responsible for denying him a
wheelchair.

The available medical records reflect, moreover, that

Marin's temporary wheelchair passes have been repeatedly renewed by
Dr. Friedman, 55 consistent with the recommendation of specialists
at

UTMB. 56

Because

Marin

does

not

demonstrate

an

ongoing

constitutional violation that is attributable to the defendants, he
does not demonstrate that injunctive relief is warranted.
~'

See,

Virginia Office for Protection and Advocacy v. Stewart, 131

S. Ct. 1632, 1639 (2011)

54

(noting that prospective relief requires

Complaint, Docket Entry No. 1, p. 6.

55

0ffender Medical Pass, Exhibit B-1
Docket Entry No. 35-2, p. 6; CMC Clinic
Defendants' Motion, Docket Entry No. 35-3,
Exhibit B-1 to Defendants' Motion, Docket
76.
56

UTMB Health Records, Exhibit
Docket Entry No. 35-4, p. 47.
-16-

B-3

to Defendants' Motion,
Notes, Exhibit B-2 to
p. 5; CMC Clinic Notes,
Entry No. 35-2, pp. 32,
to

Defendants'

Motion,

an ongoing violation of federal

law);

NiGen Biotech,

Paxton, 804 F.3d 389, 394 (5th Cir. 2015)

L.L.C.

v.

(explaining that a suit

for prospective, injunctive relief against a state actor is barred
by

the

Eleventh Amendment

unless

an

federal constitution is demonstrated) .

ongoing violation of

the

Accordingly, the defendants

are entitled to summary judgment on this issue, and the action will
be dismissed.
IV.

Conclusion

Based on the foregoing, the court ORDERS as follows:
1.

Defendants Abron, Friedman, Palacio and Stubbs'
Motion for Summary Judgment (Docket Entry No. 35)
is GRANTED.

2.

This action will be dismissed with prejudice.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 27th day of October, 2017.

UNITED STATES DISTRICT JUDGE

-17-