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Levine v. Taylor

United States District Court, S.D. Texas, Galveston Division

March 31, 2017

DR. J. TAYLOR, et al., Defendants.


          George C. Hanks Jr. United States District Judge

         Plaintiff Sarijini Levine, a prisoner in the custody of the Texas Department of Criminal Justice (“TDCJ”), has filed a pro se civil rights complaint and is proceeding in forma pauperis (Dkt. 1, Dkt. 8). She initially sued 11 defendants under 42 U.S.C. § 1983, bringing claims of Constitutionally deficient medical care stemming from cataract surgery. The Court transferred the claims against eight of the defendants to the Waco Division of the Western District of Texas (Dkt. 6), where they were dismissed for failure to prosecute. See Western District of Texas Case Number 6:12-CV-185 at Dkt. 25. The claims against three defendants remain here. One of those defendants, Dr. Ghassan Ghorayeb, performed the cataract surgery at the University of Texas Medical Branch at Galveston (“UTMB”). The other two, Dr. Joe Taylor and Robert Knoth, PA, helped provide post-operative care to Levine at TDCJ's Carole Young Medical Facility (“CYMF”), where Levine was housed for about three weeks.

         The Court requested a Martinez report[1] from the Texas Attorney General's office, which the Attorney General's office provided on behalf of Dr. Taylor and Knoth (Dkt. 16, Dkt. 17). Dr. Ghorayeb provided his own Martinez report (Dkt. 14). The Court construed the Martinez reports as motions for summary judgment and notified Levine of that construction (Dkt. 18). Levine responded (Dkt. 23 and Dkt. 26). The Court will also consider Levine's original complaint and its attachments to be part of the summary judgment record because Levine declared under penalty of perjury that the facts set forth in the complaint and attachments are true and correct (Dkt. 1 at p. 5; Dkt. 1-6 at p. 14). See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003) (“On summary judgment, factual allegations set forth in a verified complaint may be treated the same as when they are contained in an affidavit.”); see also Davis v. Hernandez, 798 F.3d 290, 293 (5th Cir. 2015) (“[F]ederal courts, this one included, have a traditional disposition of leniency toward pro se litigants.”) (quotation marks omitted).

         After reviewing all of the evidence submitted, the parties' briefing, and the applicable law, the Court concludes that the defendants' motions for summary judgment must be GRANTED for the reasons that follow.

         I. BACKGROUND

         Levine had cataract surgery on her right eye on June 18, 2010. Although she was incarcerated at TDCJ's Lane Murray Unit-which is located in the Waco Division of the Western District, hence the Court's transfer of most of her claims there-her surgery took place at UTMB; and she spent about three weeks recovering post-surgery at UTMB and CYMF. Levine was in her early sixties at the time and had been diagnosed with several serious medical conditions, including hypertension, coronary atherosclerosis, hypothyroidism, and diabetes (Dkt. 16-1 at p. 41). She also suffered a back injury in 1991 (Dkt. 14-1 at p. 3; Dkt. 16-1 at p. 14; Dkt. 23 at p. 2).

         Dr. Ghorayeb, an ophthalmology resident at UTMB, performed the cataract surgery; he was supervised during the procedure by Dr. Manuj Kapur, a UTMB faculty member (Dkt. 16-1 at pp. 13-14; Dkt. 14-6 at pp. 2-3). The surgery was unremarkable except for the discovery during the procedure that Levine had a condition called Intraoperative Floppy Iris Syndrome (“IFIS”) (Dkt. 16-1 at pp. 13-14). According to a joint advisory released in 2014 by the American Academy of Ophthalmology and the American Society of Cataract and Refractive Surgery, [1] IFIS leads to poor dilation and sudden constriction of the pupil during cataract surgery, “which increases the difficulty and risk” associated with that surgery. The joint advisory explains that IFIS was first reported in the medical literature in 2005 and is primarily associated with the use of “alpha-blocker” drugs, such as Flomax, that are typically prescribed to men to treat frequent urination associated with prostate enlargement (though the drugs are also sometimes prescribed to treat urinary retention in women as well). There is no claim or evidence that Levine was taking any such drugs. The joint advisory notes that IFIS does not preclude cataract surgery and is not itself a surgical complication; it is simply a preexisting condition that may require the surgeon to modify his or her surgical technique. These statements are in line with the testimony of Dr. Ghorayeb's medical expert, whose affidavit explains that IFIS “is not considered an intraoperative complication” and “in no way indicates substandard surgical technique” (Dkt. 14-1 at p. 3). Dr. Ghorayeb worked around the IFIS, and his operative report notes that there were “no immediate complications” with the surgery and that Levine “tolerated the procedure well” (Dkt. 16-1 at p. 14). Dr. Ghorayeb prescribed Tylenol for pain, Vigamox drops to prevent infection, and Pred Forte and Ocufen drops to combat inflammation (Dkt. 14-5 at p. 25).

         Levine spent the next few days at UTMB. On June 19, 2010, the day after her surgery, she was evaluated at a follow-up appointment (Dkt. 14-5 at p. 44). Levine reported light pain (she rated it a one on a scale of one to ten) and some nausea (Dkt. 14-5 at p. 44). Overall, she was “doing well[, ]” and another follow-up appointment was scheduled for June 24, 2010 (Dkt. 14-5 at pp. 39, 44). Her prescriptions from the previous day were continued, and a prescription for Phenergan was added to treat the nausea (Dkt. 14-5 at pp. 24, 44).[2] She was prohibited from lifting over five pounds or engaging in any strenuous activity; told to keep “dirty, soapy water” out of her eyes; told to cover her right eye with an eye shield and tape while sleeping; and instructed to notify medical personnel if she experienced “fever, redness, pain, or any vision changes [in her] operative eye” (Dkt. 14-5 at p. 39). She acknowledged receipt and expressed understanding of the instructions (Dkt. 14-5 at p. 40). Aside from the nausea and the one-out-of-ten pain, Levine did not voice any concerns to UTMB personnel in the few days immediately after her surgery, and she did not appear to be in acute distress during that time (Dkt. 14-5 at p. 48).

         On June 22, 2010, Levine was transferred from UTMB to CYMF. On that day, she complained of eye pain and was evaluated by Knoth at the CYMF clinic (Dkt. 16 at pp. 14, 82). Knoth saw “no redness or edema” and observed that Levine's lens was clear and her eye movements were intact (Dkt. 16 at p. 14). Knoth “reassur[ed]” Levine and outlined his intention to “[continue with] eye drops as ordered by [UTMB]” (Dkt. 16 at p. 14). Knoth told Levine to return to the CYMF clinic as needed during her stay there (Dkt. 16 at p. 14).

         Levine missed her June 24, 2010 follow-up appointment at UTMB; it is unclear why. Knoth and Dr. Taylor have provided an affidavit from the Legal Coordinator of the Correctional Managed Care division of UTMB, and the affidavit states that Levine “was chained out to [UTMB] for her follow-up appointment [on June 24] but there are no records indicating why [Levine] was not seen” (Dkt. 17-1 at p. 3). The CYMF records also indicate that Levine was “chained to [UTMB]” (Dkt. 16 at p. 82). Levine makes the conclusory allegation that Knoth and Dr. Taylor “denied” or “delayed” the appointment but does not controvert the testimony and evidence showing that she was chained out for it (Dkt. 1 at p. 3; Dkt. 1-6 at p. 8).

         On June 30, 2010, Levine again complained of eye pain and went to the CYMF clinic, where Dr. Taylor evaluated her eye (Dkt. 16 at pp. 13, 82). Dr. Taylor conducted a funduscopic examination, which was unremarkable and revealed no redness or edema to the conjunctiva (Dkt. 16 at p. 13). Levine told Dr. Taylor that she was “[w]orrying” about her next follow-up appointment at UTMB, which was scheduled for July 5, 2010 (Dkt. 16 at pp. 13, 82). Dr. Taylor “[e]ncouraged” Levine to keep her scheduled follow-up appointment and advised her to continue using her prescribed eye drops (Dkt. 16 at p. 13).

         Levine complained again of eye pain on July 5, 2010 (Dkt. 16 at p. 82). Her medical records indicate that she was not seen at CYMF on that date because she was scheduled to go to UTMB for a follow-up appointment (Dkt. 16 at p. 82). Levine went to her appointment at UTMB on July 5, 2010 (Dkt. 16 at pp. 25, 26). At that appointment, she complained of pain, decreased visual acuity, and shadowy vision (Dkt. 16 at pp. 25, 26). She reported compliance with her medications and was in no apparent distress (Dkt. 16 at pp. 25, 26). A follow-up appointment was scheduled for July 12, 2010; and Levine was advised to continue using her eye medication as directed (Dkt. 16 at p. 26). Her medications were changed: the Vigamox was discontinued (Dkt. 16 at pp. 26, 27). The Pred Forte and Ocufen prescriptions were continued (Dkt. 16 at pp. 26, 27). Levine verbalized understanding of the treatment plan (Dkt. 16 at p. 26).

         Levine did not voice any other complaints to CYMF personnel during her time at CYMF (Dkt. 16 at p. 82). She went to her follow-up appointment at UTMB on July 12, 2010 (Dkt. 16 at pp. 22, 23). At that appointment, she complained of some discomfort and sensitivity to light (Dkt. 16 at p. 22). She was given a sunglass pass for six months; and the Pred Forte and Ocufen prescriptions were continued, to be “fill[ed] at [her] unit” (Dkt. 16 at p. 23). She expressed understanding of this treatment plan (Dkt. 16 at p. 23). On either July 12 or July 13, 2010, Levine was transferred back to the Lane Murray Unit (Dkt. 1-2 at p. 3; Dkt. 17-1 at p. 4).


         A. The PLRA

         The 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 Levine, 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).

         Levine proceeds pro 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 filed pro se is ‘to be liberally construed, ' Estelle [v. Gamble, 429 U.S. 97, 106 (1976)], and ‘a pro 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 ...

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