United States District Court, S.D. Texas, Corpus Christi Division
Tagle Senior United States District Judge
Gerald Mora (“Mora”), a Texas state prisoner,
filed this civil rights action pursuant to 42 U.S.C. §
1983. Mora is currently incarcerated at the McConnell Unit in
Beeville, Texas. Mora is a throat cancer survivor and has a
stoma in his throat to facilitate his breathing. Mora alleges
that on four different occasions-March 25, 2012, August 25,
2013, November 11, 2013, and August 24, 2014-he went to the
medical department at the McConnell Unit in order to obtain
his medical supplies to care for his stoma and was denied the
supplies by Defendant Jose Chapa (“Chapa”), Nurse
Clinician of the McConnell Unit. See Compl., D.E. 1,
at 6-16. Mora claims that Chapa was deliberately indifferent
to his medical needs in violation of the Eighth Amendment and
retaliated against Mora for filing grievances against Chapa.
Plaintiff also brings claims against Defendant Gary Eubanks,
Associate Chief Nursing Officer (see D.E. 57 at 1),
for injunctive relief under § 1983 and the Americans
with Disabilities Act (“ADA”). The Court has
before it Mora's Complaint (D.E. 1), Defendants'
Motion for Summary Judgment (D.E. 68), Mora's Response to
Defendant's Motion for Summary Judgment (D.E. 97), the
Memorandum and Recommendations (“M&R”) of the
Magistrate Judge to whom this case was referred pursuant to
28 U.S.C. § 636(b) (D.E. 98), and Mora's response in
opposition to the M&R (D.E. 105).
Magistrate Judge recommended that Defendants' Motion for
Summary Judgment be granted. More specifically, the
Magistrate Court determined that Mora had exhausted his
administrative remedies for incidents occurring in March
2012, August 2013, and November 2013, and therefore
recommended that Defendants' Motion for Summary Judgment
on the issue of exhaustion be denied. See M&R,
D.E. 98 at 9-12. On all of Mora's substantive claims,
however, the Magistrate Judge recommended granting
Defendants' Motion for Summary Judgment. On the Eighth
Amendment claim, the Magistrate Court determined that there
is no genuine dispute of material fact as to if Defendants
were deliberately indifferent to Mora's serious medical
needs. Id. at 13-18. On the retaliation claim, the
Magistrate Court determined that there is no genuine dispute
of material fact that Defendants denied Mora his medical
supplies on four sporadic and infrequent occurrences due to
McConnell Unit and Texas Department of Criminal Justice
(“TDCJ”) “sick call”
policy rather than in retaliation against Mora.
Id. at 19-22. On the ADA claim, the Magistrate Court
found no genuine dispute of material fact that Mora was
denied or delayed medical supplies to clean his stoma for
policy reasons, and not on the basis for disability.
Id. at 24-26. Furthermore, the Magistrate Court
found that Mora did not satisfy his burden to overcome the
defense of qualified immunity. Id. at 22-24.
files several objections to the M&R. On the Eight
Amendment claim, Mora points to language of the Magistrate
Judge's February 17, 2016 Supplemental Memorandum and
Recommendation on Remanded Claims (“February 17, 2016
Supplemental M&R”). D.E. 105 at 3 (citing D.E. No.
31 at 8-9). In the February 17, 2016 Supplemental M&R,
entered at an earlier stage of litigation, the Magistrate
Judge found that:
The additional evidence offered by Plaintiff establishes that
he has alleged sufficient facts to state a claim of
deliberate indifference to his serious medical needs against
Nurse Chapa in his individual capacity, as well as a claim
for retaliation. In addition, his allegations state a
cognizable claim under the ADA.
February 17, 2016 Supplemental M&R, D.E. 31 at 8.
language from the February 17, 2016 Supplemental M&R
indicates that the Magistrate Judge found that Mora had
alleged sufficient facts to state a claim upon which
relief can be granted, and thereby was issuing his
recommendation regarding the sufficiency of Mora's
complaint under the motion to dismiss standard as outlined in
Federal Rule of Civil Procedure 12(b)(6). See Fed.
R. Civ. P 12(b)(6). Under the (12)(b)(6) standard, a court
must accept the factual allegations in the complaint as true
and construe all facts in favor of the plaintiff.
Ashcroft v. Iqbal, 556 U.S. 662 (2009). However, at
the summary judgment phase of litigation, which is the stage
at which the Magistrate Judge issued the instant M&R, the
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. In other words, at the summary judgment
phase, the court examines the evidence to determine whether a
trial is needed. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). If, based on the available proof, a
reasonable jury would be required to find for one party at
trial, then there is no need to proceed to trial and the
court can enter judgment as a matter of law for that party.
See Steven S. Gensler, Rule 56, Summary
Judgment, 2 Federal Rules of Civil Procedure, Rules and
Commentary (Feb. 2017). Therefore, any implication by
Mora that the February 17, 2016 Supplemental M&R requires
that this Court deny Defendants' motion for summary
judgment is without legal merit.
also argues that Chapa knew of Mora's serious medical
needs and, despite this knowledge, Chapa repeatedly denied
Mora his stoma cleaning supplies. Mora argues that clinical
notes provided that Mora should be given his supplies
regardless of whether or not there is an order in the
computer, and that Chapa's actions constituted deliberate
indifference to Mora because Mora's condition is
life-threatening. Dkt. No. 105 at 3-4. Mora states that his
condition is life-threatening because his stoma must be
cleaned and cleared regularly for it to function properly and
to avoid infection or death by blockage (suffocation).
Id. at 4. Mora quotes language from the Magistrate
Court from the February 17, 2016 Supplemental M&R:
As a registered nurse and a nurse that has personally treated
Plaintiff, Nurse Chapa knew of Plaintiff's serious
medical needs. Despite this knowledge, the evidence
establishes that Nurse Chapa repeatedly denied Plaintiff his
stoma cleaning supplies, allegedly because an order was
missing in the computer. However, as noted by [Physician
Assistant Susanna] Corbett on November 12, 2013, Plaintiff
should be given his medical supplies regardless of whether or
not there is an order to do so in the computer, as it is well
established that he has a life threatening condition for
which he will need the supplies the rest of his life. (D.E.
21-4, pages 6-7). Plaintiff's detailed medical history
makes it unreasonable for a qualified medical provider to
avoid responsibility on the excuse that there is “no
order in the computer.” Plaintiff has stated an Eighth
Amendment claim under Farmer for purposes of §
Supplemental M&R, D.E. 31 at 9.
explained above, this language from the Supplemental
M&R-while indicating that Mora has alleged sufficient
facts to state a plausible Eighth Amendment claim-is not
dispositive of this case on summary judgment. At the summary
judgment phase, the Magistrate Court had before it additional
summary judgment evidence in order to make a decision as to
whether a reasonable jury would be required to find for one
party at trial. See Fed. R. Civ. P. 56. The
Magistrate Court found that the evidence did not establish a
violation of the Eighth Amendment. The undersigned agrees,
and briefly provides its reasons below.
Supreme Court has held that the Eighth Amendment prohibits
“deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97
(1976). In Farmer v. Brennan, 511 U.S. 825 (1994),
the Supreme Court held that “a prison official cannot
be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference.” Id. at 837. Additionally, delay in
treatment may be actionable only if there has been deliberate
indifference and the delay results in substantial harm.
Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir.
M&R, the Magistrate Court concluded that Mora did not
present evidence to meet this standard for an Eighth
Amendment claim because he “does not advance any
evidence that denying him his cleaning supplies on these
isolated instances posed a substantial risk to his future
health.” M&R, D.E. 98 at 16-17. The Magistrate
Court provided extensive detail of its reasons in the
M&R. See Id. at 13- 18. Mora argues that Chapa
did put Mora's health and safety in great danger and that
Chapa was aware of Mora's cancer history and the presence
of his stoma. D.E. 105 at 4.
to its de novo review of this case, the undersigned briefly
highlights some of the evidence in the record. The TDCJ
operates a “sick call” system for the treatment
of routine, non-emergency illness or injury, as outlined in
the Correctional ...