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Balcerowicz v. Sweetin

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

April 4, 2017

DAVID W. SWEETIN, et al, Defendants.



         Plaintiff Larry Eugene Balcerowicz, also known as Larry Michael Johnson, a state inmate at the time of filing, filed this pro se section 1983 lawsuit raising claims of deliberate indifference to his health and serious medical needs against prison correctional officers Warden David W. Sweetin, Assistant Warden Christopher G. Carter, Major David Forrest, and Peggy Haggard (collectively the "Correctional Defendants), and against prison medical care providers Thomas Powell, P.A., Randall Healy, P.A., and Maureen Liles, R.N. (collectively the "Medical Defendants"). All of the named defendants are sued in their individual capacities. (Docket Entry No. 12.)

         The Correctional Defendants filed a motion to dismiss (Docket Entry No. 15), to which plaintiff filed a response (Docket Entry No. 18). The Medical Defendants filed a motion for summary judgment (Docket Entry No. 24), to which plaintiff filed a response (Docket Entry No. 26). The Medical Defendants filed a reply to plaintiffs response (Docket Entry No. 27), followed by a sur-reply filed by plaintiff (Docket Entry No. 28).

         Based on careful consideration of the motions and the various responsive pleadings, the exhibits, the record, and the applicable law, the Court GRANTS the motion to dismiss, GRANTS the motion for summary judgment, and DISMISSES this lawsuit for the reasons that follow.


         Plaintiff alleges in his complaint that, on or about November 2, 2010, he arrived at the Estelle Unit from the Garza Transfer Facility. Plaintiff states that he had been evaluated by medical staff at the Garza Transfer Facility, where he reported his hearing impairment, asthma, and history of short "black out" seizures, but that he was not examined or evaluated by medical personnel upon his arrival at the Estelle Unit. He claims that he was not seen by Estelle Unit medical personnel until he suffered an asthma attack on November 9, 2010, and was treated by the medical staff and prescribed an asthma inhaler. He complained to one or more of the Medical Defendants that he had not been evaluated by Estelle Unit personnel upon his arrival, and had not received his asthma medication or any work restrictions.

         Plaintiff reports that a few months later, he was assigned to work in the outdoor field squad. He reports no specific beginning date, but does state that on June 24, 2011, he complained to medical personnel that his working in the fields was causing problems with his asthma and seizures. Plaintiff states that he also sent 1-60 complaints to the Correctional Defendants complaining that he was being "worked against restrictions" in the field squad. He complains here that he was only able to get a drink of water once an hour, and that he developed headaches, "shakes, " and breathing difficulties. On July 26, 2011, he asked defendant Healy for medical restrictions to keep him from working in the fields; Healy responded that medical staff cannot make work assignment decisions. The next day, July 27, 2011, plaintiff reportedly "fell out" while working the fields and "woke up" in the infirmary, claiming that he had a "space out" seizure from being outside.

         As to the Correctional Defendants, plaintiff claims that Sweetin "ignored all pleas for help medical and safety. I wrote letters and requests for his help and authority power, " that Carter "failed to respond and help to all pleas of help and assistance, " that Forrest "refused to help me. Failed to help w/my pleas for med & safety, " and that Haggard "ignored and refused to help me w/my pleas for help medically & security & safety." (Docket Entry No. 1, p. 3.) As to the Medical Defendants, plaintiff states that Powell and Healy "refused and denied me proper medical help and treatment, " and that Liles "refused and denied me proper medical treatment and held against a P.A. Dr.s [sic] orders and advice." Id. Construed liberally, plaintiffs complaint raises claims against all of the defendants for deliberate indifference to his health and serious medical needs. He seeks monetary compensation and injunctive relief.


         In their pending Rule 12(b)(6) motion to dismiss, the Correctional Defendants argue that plaintiffs claims against them should be dismissed because he fails to state a viable section 1983 Eighth Amendment deliberate indifference claim.

         A. Rule 12(b)(6) Standards

         In reviewing the adequacy of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all well-pleaded facts as true and view all facts in the light most favorable to the plaintiff. Thompson v. City of Waco, 764 F.3d 500, 502 (5th Cir. 2014). It need not, however, accept a plaintiffs legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive dismissal under Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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 678. As recognized by the Fifth Circuit Court of Appeals, the court's task "is to determine whether the plaintiff stated a legally cognizable claim that is plausible, not to evaluate the plaintiffs likelihood of success." Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (en banc).

         On a Rule 12(b)(6) motion, a district court generally "must limit itself to the contents of the pleadings, including attachments thereto." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). The court may also consider documents attached to either a motion to dismiss or an opposition to that motion when the documents are referred to in the pleadings and are central to a plaintiffs claims. Id.; see also Walch v. Adjutant General's Dep't of Tex., 533 F.3d 289, 293-94 (5th Cir. 2008) (considering exhibits attached to an opposition because no party questioned the authenticity of the documents and they were sufficiently referenced in the complaint to permit their consideration on a motion to dismiss). Although no documents were attached to plaintiffs complaint or defendants' motion to dismiss in the instant case, plaintiff attached documents to his response in opposition to the motion to dismiss. The Correctional Defendants do not challenge the authenticity of the documents; to the contrary, the same documents are among those submitted by the Medical Defendants in support of their own motion for summary judgment. Consequently, in considering the pending motion to dismiss, the Court will include the exhibits attached to plaintiffs response in opposition to the motion.

         A pleading filed pro se is to be liberally construed, 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). Under this standard, pleadings filed by apro se litigant are entitled to a liberal construction that affords all reasonable inferences which can be drawn from them. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Oliver v. Scott, 276 F.3d 736, 740 (5th Cir. 2000). Because plaintiff is proceeding pro se, he will be afforded the benefit of liberal construction under Haines.

         B. Deliberate Indifference

         Plaintiff claims that the Correctional Defendants violated his Eighth Amendment rights through deliberate indifference to his health and safety.

         A claim for deliberate indifference to a prisoner's health and safety requires proof that an officer knew of and disregarded an excessive risk to the inmate's physical health or safety, and that the inmate suffered physical harm or injury as a result. The inmate must show that the officer was aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and that the officer did in fact draw the inference and disregarded it. Farmer v. Brennan, 511 U.S. 825, 838 (1994). The failure of an officer to alleviate a significant risk which he should have perceived, but did not, does not constitute deliberate indifference. Moreover, mere negligence or a lack of reasonable care which falls short of being deliberately indifferent does not give rise to a constitutional violation. Id. at 832-33; Horton v. Cockrell, 70 F.3d 397, 401 (5th Cir. 1995). To meet this standard, a prisoner must establish more than mere negligence or an unreasonable response. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).

         C. Analysis

         The record shows that plaintiff had been evaluated immediately prior to his transfer to the Estelle Unit, as shown by his Correctional Managed Care Intake History and Health Screening dated November 2, 2011. (Docket Entry No. 24-3, p. 22.) The form indicated that plaintiff had an asthma inhaler with him and was allowed to keep it on his person. That same day, prison physician Dr. Lieninger ordered that plaintiff be given a permanent bottom bunk restriction and a prescription for his regular seizure medication.

         Plaintiffs medical and prison records also show that, on November 4, 2010, his Medical and Mental Health Transfer Screening form was completed at the Estelle Unit. Id., pp. 278-79. The form noted that plaintiff was complaining of left-sided chest pain, and that he was taking phenytoin, an anti-seizure medication. He was approved for release to general population, and was given housing restrictions. Id., p. 279. His work restrictions were noted as "12, 19, 20, 23, 25, & 27.[1] Id. On November 4, 2010, he was seen by defendant registered nurse Liles at the Estelle Unit after complaining of left-sided chest pain of two days duration. Id., pp. 219. The medical chart entry noted that plaintiff had been in a fight two days prior at the Lychner Jail. Id. Plaintiff was provided a cold pack and ibuprofen, and was returned to his cell.

         Thus, plaintiffs allegations and his medical records show that he was provided an intake evaluation, work restrictions, housing assignment and bunk restrictions, as well as prescriptions for his regular medications. He was allowed to keep his asthma inhaler on his person. He was seen, evaluated, and treated for complaints of muscle pain in his chest two days after his arrival at the Estelle Unit.

         Plaintiff asserts that unidentified persons assigned him at an unidentified time to work in the fields. In arguing that the Correctional Defendants were deliberately indifferent to his health and safety, he states that they were aware of his hearing impairment and had knowledge of facts "from which they could infer that plaintiffs assignment to work in the fields would expose him to a substantial risk of serious harm." (Docket Entry No. 18, p. 3.) Specifically, he argues that his hearing impairment could have resulted in his being shot by armed guards if he were to venture out of bounds and not hear their warnings. Id. Or, he continues, he could not hear shouts to "move out of the way" of a falling tree. Id., p. 4. However, plaintiff does not allege in his complaint that the defendants knew, or could infer from known facts, that plaintiffs field work exposed him to a serious risk of being shot or struck by falling trees and that they deliberately disregarded those risks. Rather, plaintiff claims that working in the hoe squad caused him to overheat, and that the Corrections Defendants deliberately ignored the substantial risk of his overheating if assigned to the hoe squad.

         Plaintiff makes no correlation between his hearing impairment and a substantial risk of overheating. That is, he fails to allege facts showing that defendants could infer, from their knowledge of his hearing impairment, that his working in the fields would expose him to a substantial risk of serious overheating. To the contrary, plaintiff sets forth no factual allegations establishing that, at the time he was assigned to the hoe squad, the Correctional Defendants knew that the work assignment would expose plaintiff to an excessive risk of overheating and that they disregarded that risk. He further fails to allege and show that the Correctional Defendants were both aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed, and that they drew the inference.

         At some point after his assignment to the hoe squad, plaintiff sent an internal communication to the Unit Classification Committee, stating his belief that the work was dangerous for him because of his hearing impairment. He was not removed from the work assignment. Id., pp. 5-6. Plaintiff did not inform anyone that he was experiencing physical problems working in the heat until July 26, 2011, following his claim that he had experienced a seizure while working outside, despite having purportedly taken his anti-seizure medications.[2] He complained to staff immediately after the alleged seizure that he "should not be outside working and needs restrictions changed." (Docket Entry No. 18, p. 25.) His physical examination revealed "chest clear, no wheezes, not on resp rx, " "no tremors, good gait, no leg edema or atrophy." The nursing staff noted no seizure activity. Id., p. 21. His respirations were "even & unlabored" when he was brought in from the field. Id., p. 25. On July 27, 2011, his medical care providers added a work restriction for "no work in direct sunlight." (Docket Entry No. 26, Exhibit H.) Plaintiff does not claim that he was required to work outside in the field squad after that date.

         Plaintiff fails to allege facts showing that the Correctional Defendants knew, or could infer from their existing knowledge, that his working in the fields would expose him to a substantial risk of serious overheating or seizure activity, and that they disregarded that risk. He further fails to allege and show that the Correctional Defendants were both aware of the facts from which such ...

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