United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
Terry Mark Wright, an inmate confined at the Beto Unit of the
Texas prison system, proceeding pro se and in
forma pauperis, filed the above-styled and numbered
civil rights lawsuit pursuant to 42 U.S.C. § 1983. The
defendants remaining in the lawsuit are Nurse Erica Gomez and
Dr. Joseph Tretta. The complaint was referred to United
States Magistrate Judge John D. Love, who issued a Report and
Recommendation (Dkt. #118) concluding that the
Defendants' motion for summary judgment (Dkt. #107)
should be granted. Mr. Wright has filed objections (Dkt.
Wright complains about medical care provided by Nurse Gomez
and Dr. Tretta. In order to succeed on his claims, Mr. Wright
must show that the Defendants were deliberately indifferent
to his serious medical needs. Estelle v. Gamble, 429
U.S. 97, 104, 97 S.Ct. 285, 291 (1976). “[A] prison
official cannot be found liable under the Eighth Amendment .
. . 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.” Farmer v. Brennan,
511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994). To survive
dismissal, a plaintiff must come forward with a triable issue
of fact that officials “refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would evince a wanton
disregard for serious medical needs.” Domino v.
Tex. Dep't of Crim. Justice, 239 F.3d 752, 756 (5th
Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236,
1238 (5th Cir. 1985)).
Wright has a history of low back pain that radiates down his
left leg. He has regularly been seen by prison doctors,
including Dr. Tretta. Medical personnel have conducted a wide
array of medical procedures and provided medication as deemed
appropriate. Mr. Wright complains that Nurse Gomez refused to
transport him to the medical department on June 27, 2014. The
competent summary judgment evidence reveals that Dr. Tretta
saw Mr. Wright just a few days earlier on June 16, 2014. His
assessment of Mr. Wright's situation was severe sciatica
post lumbar surgery. His plan of action was Prednisone 10 mg.
tablet daily for ten days to be followed by Prednisone 5 mg.
tablet daily for ten days. In discussing the medical records,
Dr. Steven Bowers explained that Mr. Wright needed to
complete the medication regimen prior to being seen again.
Under these circumstances, Nurse Gomez was complying with
instructions contained in the medical records. Her response
does not support a conclusion that she refused to treat him,
ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would
evince a wanton disregard for serious medical needs. Mr.
Wright's objections do not address the analysis leading
to the conclusion that the competent summary judgment
evidence does not support a deliberate indifference claim
against Nurse Gomez.
Wright also complains about the medical care provided by Dr.
Tretta on July 18, 2014. In particular, he complains that Dr.
Tretta would not give him anything for pain. The competent
summary judgment evidence reveals that Dr. Tretta saw Mr.
Wright for complaints that the steroids did not help, that he
could barely walk, and now felt like his left hip was
bothering him. Dr. Tretta noted that the patient walked down
the hallway holding onto the walls and walked stooped over
with his hand on his left hip; and that he had no flexion,
extension, or rotation. Dr. Tretta assessed the patient with
lumbar spine pain and sciatica. The plan of care was lumbar
spine and hip x-ray, along with an orthopedic consultation.
Dr. Tretta also discontinued Mr. Wright's prescription
for Ibuprofen 600 mg. and ordered Tylenol 325 mg. two tablets
three times daily and Naproxen 500 mg. (NSAID) one tablet
twice daily as needed. The medical records do not show that
Dr. Tretta refused to give Mr. Wright anything for pain;
instead, he substituted one NSAID for another and added
Tylenol. Dr. Tretta's actions do not support a conclusion
that he refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any
similar conduct that would evince a wanton disregard for
serious medical needs. Mr. Wright's objections do not
address the analysis leading to the conclusion that the
competent summary judgment evidence does not support a
deliberate indifference claim against Dr. Tretta.
Wright's objections focus on the defense of qualified
immunity. Although he provides a lengthy discussion about the
defense, he provides very little analysis about the
application of the defense to the facts of this case.
defense of qualified immunity protects government officials
performing discretionary functions from “liability for
civil damages insofar as their conduct does not violate
clearly established rights which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 2738 (1982). If a plaintiff
establishes a violation of a “clearly established
right, ” then the court determines whether the
defendant's conduct was “objectively reasonable in
light of legal rules clearly established at the time of the
incident.” Siegert v. Gilley, 500 U.S. 226,
231-32, 111 S.Ct. 1789, 1793 (1991). In the present case,
Plaintiff has not shown a violation of a clearly established
right. Moreover, he failed to satisfy his burden of showing
that the Defendants' actions were objectively
unreasonable in light of clearly established law. He has not
overcome their entitlement to qualified immunity.
Report of the Magistrate Judge, which contains his proposed
findings of fact and recommendations for the disposition of
such action, has been presented for consideration, and having
made a de novo review of the objections raised by
Mr. Wright to the Report, the court is of the opinion that
the findings and conclusions of the Magistrate Judge are
correct, and Mr. Wright's objections are without merit.
Therefore, the court adopts the findings and conclusions of
the Magistrate Judge as the findings and conclusions of the
court. It is accordingly
that the Defendants' motion for summary judgment (Dkt.
#107) is GRANTED and the complaint is DISMISSED with