United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
Charles Ray Bailey (TDCJ #01486071), who is currently in the
custody of the Texas Department of Criminal Justice
("TDCJ"), has filed a pro se civil rights
complaint alleging that a correctional officer, Defendant
Elizabeth Harris,  interfered with his medical care and
retaliated against him for his use of the prison grievance
process. Bailey has been granted leave to proceed in
forma pauperis (Dkt. 43). Harris has filed a motion for
summary judgment, to which Bailey has responded (Dkt. 56 and
Dkt. 57). After reviewing all of the evidence submitted, the
parties' briefing, and the applicable law, the Court
concludes that Harris's motion for summary judgment must
be GRANTED for the reasons that follow.
is an insulin-dependent diabetic who has also been diagnosed
with hypertension (Dkt. 56-1 at pp. 3-7, 10-11, 22). He
receives two insulin shots a day and has been prescribed a
host of other medications (Dkt. 56-1 at pp. 3-7, 10-11, 22).
His claims in this case stem from three occasions on which he
alleges that his medical care was interrupted by Harris, who
often stood a security post in the medical facility at
TDCJ's Darrington Unit when Bailey was incarcerated there
(Bailey is now at the Ramsey Unit). Bailey claims that the
second and third occasions were retaliatory (Dkt. 17 at pp.
first alleged incident took place on February 11, 2012 (Dkt.
17 at p. 1). Bailey handed Harris two lay-in passes giving
him permission to enter the unit medical facility (Dkt. 17 at
p. 1). The passes indicated that Bailey was to receive an
insulin injection and get his toenails clipped (Dkt. 17 at p.
1). Harris allowed Bailey to enter the medical facility's
waiting area, and Bailey sat down (Dkt. 17 atp. 1). According
to Bailey, "[o]nly a short time later[, ]" Harris
began tapping on the window of the waiting area and yelling
at Bailey (Dkt. 17 at p. 1). Bailey could not understand what
Harris was saying on account of the glass barrier, so he left
the waiting area to hear her more clearly, whereupon she
"stated that [Bailey] had to leave, that [Bailey]
could'nt [sic] await treatment, without a logical reason
as to why" (Dkt. 17 atp. 1).
wanting "[t]o defuse this hostile situation[, ]"
obeyed Harris's order and left the medical facility
without receiving his insulin injection or nail clipping
(Dkt. 17 at p. 1). He contacted a superior officer a short
time later to see if the officer could get him back into the
unit clinic, but the officer said that he was too busy to
help (Dkt. 17 at p. 1). Unit medical records indicate that
Bailey did in fact only receive one insulin injection on
February 11, 2012 (Dkt. 56-1 at p. 3). Bailey filed a
grievance against Harris related to this incident (Dkt. 56-1
at pp. 43-55). The notes from the investigation indicate that
a "formal disciplinary was written on [Harris, ]"
but the notes contain no other information regarding what, if
any, disciplinary action was taken against her (Dkt. 56-1 at
second alleged incident took place about a week later, on
February 19, 2012 (Dkt. 17 at p. 2). Bailey entered the
medical facility to get an insulin shot and a "walk-in
blood pressure check"-he does not mention having a
lay-in pass on this occasion (Dkt. 17 at p. 2). Harris,
according to Bailey, sent "all other offender's
[sic] that arrived after [him] to the back of [the medical]
department to recive [sic] their treatment" (Dkt. 17 at
p. 2). Bailey "became agitated" and left (Dkt. 17
at p. 2). He again talked to a superior officer, who advised
him to return to the medical facility and wait to be treated
(Dkt. 17 at p. 2). Bailey returned to the medical facility
and asked Harris "if in fact this department were [sic]
dispencing [sic] insulin" (Dkt. 17 at p. 2). Harris,
"in an aggressive tone[, ]" replied that she
didn't know (Dkt. 17 at p. 2). Bailey "turned to
walk away toward the back of [the medical] department"
(Dkt. 17 at p. 2). When he did so, he heard a "laugh of
mockery" from Harris (Dkt. 17 at p. 2).
medical records indicate that Bailey only received one
insulin injection on February 19, 2012 (Dkt. 56-1 at p. 4).
Bailey filed a grievance against Harris related to this
incident (Dkt. 56-1 at pp. 56-66). The notes from the
investigation do not indicate that any disciplinary action
was taken against Harris-rather, according to the Step 2
grievance response, the investigators found "no evidence
to substantiate [Bailey's] allegations" (Dkt. 56-1
at p. 57).
last alleged incident took place about five months later, on
July 14, 2012 (Dkt. 17 at p. 3). Bailey claims that he was in
the unit medical facility with a blood pressure reading of
222/107-which, according to the website of the Mayo Clinic,
within the hypertensive crisis range (Dkt. 17 at p. 3). He
further claims that the nurse who took the blood pressure
reading "instructed [Harris] that [Bailey] needed to
remain in [the medical] department" (Dkt. 17 at p. 3).
However, Harris, according to Bailey, screamed "at the
top of her voice" that Bailey had to leave, even though
the nurse "repeatedly advised her" that Bailey
needed to stay (Dkt. 17 at p. 3). Bailey left and talked to a
superior officer, who ordered Bailey to return to the medical
facility to receive treatment (Dkt. 17 at p. 3). Unit medical
records indicate that Bailey got both of his insulin shots on
July 14, 2012; that his blood pressure was checked three
times on that date; and that he received a 50-milligram dose
of Atenolol, a beta blocker, at the prison medical unit (Dkt.
56-1 at pp. 6, 20). Bailey does not mention having a lay-in
pass at the July 14, 2012 clinic visit that Harris allegedly
interrupted. Bailey filed a grievance against Harris related
to the July 14, 2012 incident; and, as a result, Harris was
"counseled to ensure that offenders receive proper
medical care" (Dkt. 56-1 at pp. 154-65).
THE PLRA. SUMMARY JUDGMENTS. AND QUALIFIED
complaint in this case is governed by the Prison Litigation
Reform Act (the "PLRA"). Upon initial screening of
a prisoner civil rights complaint, the PLRA requires a
district court to scrutinize the claims and dismiss the
complaint, in whole or in part, if it determines that the
complaint "is frivolous, malicious, or fails to state a
claim upon which relief may be granted" or "seeks
monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915A(b). A reviewing court
may dismiss a complaint for these same reasons "at any
time" where a party, like Bailey, proceeds in forma
pauperis. 28 U.S.C. § 1915(e)(2)(B) (mandating
dismissal where the complaint is "frivolous or
malicious, " "fails to state a claim upon which
relief may be granted, " or "seeks monetary relief
from a defendant who is immune from such relief')•
The PLRA also provides that the court "shall on its own
motion or on the motion of a party dismiss an action" if
it is satisfied that the complaint is "frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is
immune from such relief." 42 U.S.C. § 1997e(c).
proceeds/?™ se in this case. Courts construe
pleadings filed by pro se litigants under a less
stringent standard of review. Haines v. Kerner, 404
U.S. 519 (1972) (per curiam). Under this standard, "[a]
document filedpro se is 'to be liberally
construed, ' Estelle [v. Gamble, 429
U.S. 97, 106 (1976)], and 'apro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'" Erickson v. Pardus, 551 U.S. 89,
94 (2007). Nevertheless, "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (observing that courts
"are not bound to accept as true a legal conclusion
couched as a factual allegation"). The Supreme Court has
clarified that "a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
has filed a motion for summary judgment. Federal Rule of
Civil Procedure 56 mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a sufficient showing of the existence
of an element essential to the party's case and on which
that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding a motion for summary judgment, the Court must
determine whether the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law. Id. at
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an absence of a genuine issue of material
fact. Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347,
349 (5th Cir. 2005). The movant, however, need not negate the
elements of the non-movant's case. See Boudreaux v.
Swift Tramp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The
movant may meet its burden by pointing out the absence of
evidence supporting the non-movant's case. Duffy v.
Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.
movant meets its initial burden, the non-movant must go
beyond the pleadings and designate specific facts showing
that there is a genuine issue of material fact for trial.
Littlefleld v. Forney Indep. Sch. Dist., 268 F.3d
275, 282 (5th Cir. 2001). "An issue is material if its
resolution could affect the outcome of the action. A dispute
as to a material fact is genuine if the evidence is such that
a reasonable jury could return a ...