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Rogers v. Markgraf

United States District Court, N.D. Texas, Amarillo Division

March 3, 2017

DELBERT GLEN ROGERS, PRO SE, TDCJ-CID No. 657580, Previous TDCJ-CID No. 540216, Previous TDCJ-CID No. 330782, Plaintiff,
v.
Mr. DENNIS MARKGRAF ET AL., Defendants.

          REPORT AND RECOMMENDATION TO GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. AND DENY PLAINTIFF'S REQUESTS FOR INJUNCTIVE RELIEF

          CLINTON E. AVERITTE, UNITED STATES MAGISTRATE JUDGE

         Before the Court for consideration is Defendants' Motion for Summary Judgment filed June 1, 2016 as to defendants BYRD, COLEMAN, LEFAVE, and MASSEY [D.E. 52]. On May 2, 2016 plaintiff filed a motion for summary judgment [D.E. 41], and supplemented that motion on July 5, 2016 [D.E. 67]. The plaintiff also responded to the defendants' motion for summary judgment in the May 2, 2016 pleading. Plaintiff has additionally filed several requests for injunctive relief [D.E. 65, 68, and 69]. The Court has reviewed all the summary judgment evidence and arguments of the parties.

         OVERVIEW OF THE CASE

         When receiving treatment in the medical unit for pain in his leg on April 29, 2014, plaintiff suffered a severe burn to his leg, resulting in a significant injury requiring follow-up treatment for the period of time from April 30, 2014 to July 17, 2014, when the injury was considered healed by medical personnel. The burns to his leg were the result of heat packs which had been applied to treat reoccurring pain from an unrelated illness. It is unclear whether the heat packs were too hot, or were left on too long, or caused damage to the plaintiffs leg due to an unknown underlying medical condition. Defendant BYRD applied the heat packs to the plaintiffs leg.

         When this case was filed, plaintiff alleged six specific incidents where he claimed he was denied medical treatment for the burns on his leg and alleged defendant BYRD was negligent in treating the plaintiff on April 29, 2014, a treatment that resulted in the original serious burn. Plaintiff states BYRD was distracted talking to other personnel during her treatment of plaintiff and failed to monitor the application of the heat packs appropriately. Even attributing the maximum responsibility to defendant BYRD regarding the original application of heat packs to plaintiffs leg based on plaintiffs allegations, no facts are alleged showing more than negligence in regard to the original burn. The Court does not minimize the obvious injury caused to the plaintiff on April 29, 2014 while receiving medical care, and the Court doesn't minimize either the pain suffered by the plaintiff as a result of the burn or treatment thereafter. It is obvious from the medical records that a serious burn occurred.

         The plaintiffs claims survived initial screening by the Court because plaintiff was burned during a medical procedure and alleged he had been denied appropriate follow up care. Upon receiving the summary judgment evidence, the Court now must view the six incidents alleged by plaintiff against the medical evidence submitted by the defendants in their summary judgment motion. In the context of receiving over 66 treatments, many from the named defendants, for follow up burn care between April 30, 2014 and July 17, 2014 (a total of 66 treatments over a period of 78 days), it appears that any denial or delay of treatment for the six dates plaintiff originally alleged, at most, constituted an isolated incident that does not amount to deliberate indifference. Plaintiff does not rebut the number of times he received treatment, but rather states that the times he did not receive treatment was a result of prejudice and animus against the defendant based on racial bias or personal bias of the medical staff. Plaintiff further alleges a conspiracy, albeit unsubstantiated by facts, that defendants acted in concert to delay care.

         CLAIMS AND REQUESTS FOR RELIEF

         Plaintiff DELBERT GLEN ROGERS, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit pursuant to Title 42, United States Code, section 1983 complaining against defendants MASSEY, COLEMAN, BYRD, and LEFAVE and was granted permission to proceed in forma pauperis. Plaintiff also filed suit against defendants MARKGRAF, HEY, ZINSER, WILSON, TENORIO, and ROWLEY, but these claims were dismissed with prejudice as frivolous and without prejudice for failure to state a claim on December 3, 2014. Plaintiff has filed several requests to amend his suit to reinstate defendant MARKGRAF, but these requests have been denied in previous orders.

         Plaintiff complains defendant BYRD allowed him to be burned while applying heat packs to his leg because she was more interested in talking with a male security officer than monitoring plaintiffs condition.

         Plaintiff claims defendant MASSEY failed to treat his burns properly and cut him several times while treating these burns. Plaintiff further asserts MASSEY treated plaintiff while intoxicated.

         Plaintiff claims defendants COLEMAN and LEFAVE refused to treat his burns because of racial hatred and personal bias against the plaintiff and further claims COLEMAN and LEFAVE conspired to deny him treatment.

         Plaintiff also alleges a denial of treatment by all defendants on several separate occasions, when he was not seen by medical personnel on days he was scheduled for treatment of his burns.

         By the Court's October 24, 2014 Briefing Order, plaintiff was asked whether he was refused treatment on dates other than the May 20, 2014 and June 2, 2014 occasions he had identified and to state who had denied him treatment on those additional dates. Plaintiff stated he had been denied treatment by defendant COLEMAN on May 20, 2014; by defendants MASSEY and BYRD on June 2, 2014; by defendant BYRD on June 6, 2014; by defendant LEFAVE on June 7, 2014; by defendants COLEMAN and MASSEY on June 12, 2014; and by defendant COLEMAN on June 13, 2014.

         Plaintiff claims his condition worsened when he did not receive treatment in that his burn would "start running with fluids and [his] muscle [would] start pulling to where leg swelled and toes were numb." Plaintiff claims these burns caused a lifetime injury to his leg. He says he can no longer run or do other things he used to do.

         Plaintiff requests $950, 000.00 for pain and suffering and $950, ...


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