United States District Court, E.D. Texas, Texarkana Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Plaintiff Brian Nelson, proceeding pro se, filed
this civil rights lawsuit under 42 U.S.C. §1983
complaining of alleged violations of his constitutional
rights in the Bowie County Correctional Center. Plaintiff
named as Defendants Warden Bob Page, Dr. J. Shah, Nurse
Regina Lynch, and Rory Griffin, Deputy Director for Health
and Correctional Services in the State of Arkansas. This
Court referred the case to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of
Duties to United States Magistrate Judges.
asserts that he injured his back while being transported from
Malvern, Arkansas to the Bowie County Correctional Center on
July 31, 2015. Docket No. 2 at 4. According to Plaintiff, he
repeatedly sought medical care but was not able to see the
physician, Dr. Shah, until September 9, 2015. Id. at
4-9. He states that Dr. Shah was very rude to him and that
Dr. Shah told him it was not his backbone but his pelvic bone
which was protruding. Id. at 5. Plaintiff further
explains that the nurse told him she was ordering pain
medication and muscle relaxants but it would be a while
before they came in. Id. at 5-6.
states that two months after not receiving medication except
for ibuprofen, Plaintiff filed an emergency grievance.
Id. at 5. According to Plaintiff, Nurse Lynch
responded by stating his pain medication had not yet come in
and that the doctor did not order an MRI. Id. at 6.
Plaintiff further states that he appealed Nurse Lynch's
response to Rory Griffin and received a note stating he would
get a response to the grievance by December 10, 2015.
Id. Plaintiff notes that he never received a
response to that sick call. Id.
further alleges that he continued filing sick call requests
and saw Dr. Shah for the fourth time on December 11, 2015.
Id. at 7. According to Plaintiff, Dr. Shah was rude
to him and told him that he would not perform surgery on
Plaintiff's back. Id. Plaintiff explains that he
told Dr. Shah none of the medications were working but he was
told to leave. Id.
January 6, 2016, Griffin denied Plaintiff's grievance,
stating Plaintiff had been seen numerous times for his
complaints of back pain and has been treated as deemed
appropriate by the medical providers. Docket No. 5-3 at 16.
Plaintiff continued filing grievances and sick call requests,
some of which were answered by Nurse Lynch but most of which
were ignored. See Docket No. 5-3 at 17-28. Nurse
Lynch told him in multiple grievance responses the Arkansas
Department of Correction would not approve an MRI for him
because the X-rays taken had proven normal. See
Docket No. 5-3 at 26. On February 22, 2016, Plaintiff wrote
to Warden Page asking for help in getting an MRI but did not
receive an answer. Docket No. 2 at 9.
Magistrate Judge's Report
review of the pleading, the Magistrate Judge issued a Report
recommending dismissal of the claims against Rory Griffin and
Warden Page. Docket No. 10. The Magistrate Judge stated the
claims against Griffin revolved around the response he
received to his grievance appeal and that inmates do not have
a constitutionally protected liberty interest in having
grievances resolved to their satisfaction. Id. at
3-4. The Magistrate Judge also stated Plaintiff failed to
show Griffin had authority to give directives to medical
professionals regarding appropriate tests or treatment.
Id. at 4.
Plaintiff complained he sent a grievance to Warden Page but
received no reply, the Magistrate Judge determined Plaintiff
has no constitutionally protected liberty interest in having
his grievances processed appropriately. Id. at 3-4.
The Magistrate Judge further explained that, even assuming
Warden Page received the grievance, the failure to answer or
take the action Plaintiff believed appropriate did not
implicate any constitutionally protected liberty interest.
Id. at 4. The Magistrate Judge therefore concluded
Plaintiff failed to state a claim upon which relief could be
granted against Rory Griffin and Warden Page. Id.
objections concerning Deputy Director Rory Griffin, Plaintiff
asserts Griffin “hasn't been thorough in his checks
on all that has actually been done to look into
plaintiff's injuries to his back.” Docket No. 32 at
1. He contends Griffin did not get his story straight and
lied about Plaintiff's reports. Id. at 2.
objections, Plaintiff then reviews his grievances. Plaintiff
states in Grievance No. BOW 15-00266, Griffin violated the
policies and procedures of the Arkansas Department of
Correction. Id. He complains Griffin made false
statements, including allegedly stating that Plaintiff raised
more than one issue in the grievance. Id. at
2-4.Plaintiff complains that Griffin did not order MRI when
there was documentation allegedly supporting the ordering of
an MRI. Id. at 2. Plaintiff also complains that
Griffin stated he had reported a ...