United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
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
Court requested a Martinez report 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
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.
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).
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,  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).
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,
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
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).
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).
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).
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).
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).
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 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).
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