United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
Hamilton is an elderly federal prisoner (Federal Register
Number: 39463-177) who was treated by the defendants while he
was in the custody of the Texas Department of Criminal
Justice ("TDCJ"). He has filed a complaint under 42
U.S.C. § 1983 alleging that the defendants left the tip
of a catheter in his chest and deliberately concealed that
information from him (Dkt. 1). The defendants have filed a
motion for summary judgment (Dkt. 25), to which Hamilton has
responded (Dkt. 27). The Court will also consider
Hamilton's original complaint and its attachments to be
part of the summary judgment record because Hamilton declared
under penalty of perjury that the facts set forth in the
complaint are true and correct (Dkt. 1 at p. 12). 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).
reviewing all of the evidence submitted, the parties'
briefing, and the applicable law, the Court concludes that
the defendants' motion for summary judgment must be
GRANTED for the reasons that follow.
individual defendants in this case-Dr. David Beckles, a
cardiothoracic surgeon; Dr. Smitha Oommen, an oncologist; and
Dr. Techksell Washington, an oncologist-successfully treated
Hamilton for lung cancer in 2011. The cancer was discovered
after a CT scan and a chest x-ray found a mass in
Hamilton's upper right lung in December of 2010 (Dkt.
26-4 at pp. 76-77). The interpreting physicians, who are not
defendants in this suit, recommended a "biopsy or repeat
CT in three to six months" (Dkt. 26-4 at p. 77).
early March of 2011, the Interventional Radiology Department
of the University of Texas Medical Branch ("UTMB")
performed a CT-guided biopsy of the mass (Dkt. 25-1 at p. 3;
Dkt. 26-4 at pp. 68-69). During the procedure, a
pneumothorax developed, which required the placement of
a catheter in Hamilton's chest for decompression (Dkt.
26-4 at p. 69). Unfortunately, while the catheter was being
removed, Hamilton, according to his medical records,
"jerked backwards[;]" and the catheter tube broke
while the tip of the catheter was still inside Hamilton's
chest (Dkt. 26-4 at pp. 62- 63). After using x-rays to locate
the catheter tip, the Interventional Radiology Department
realized that it "ha[d] no way of safely retrieving
th[e] catheter" (Dkt. 26-4 at p. 53). Surgery would be
necessary, so the Interventional Radiology Department
consulted with UTMB's Cardiothoracic Surgery Department
(Dkt. 26-4 at p. 53). Meanwhile, the results of the CT biopsy
were coming back; and they were consistent with
non-small-cell lung cancer, making it clear that the
Cardiothoracic Surgery Department would have to perform a
surgical resection of the right lung (Dkt. 26-4 at p. 129).
Since the catheter tip would also have to be removed
surgically, the cardiothoracic surgery team was then faced
with the choice of whether to remove the catheter immediately
or leave it in Hamilton's chest temporarily and remove it
during the resection-in other words, the choice of whether to
perform two surgeries or only one (Dkt. 25-1 at p. 3). The
doctors chose to perform one surgery (Dkt. 26-4 at p. 129).
The plan of care was explained to Hamilton, who verbalized
understanding of the plan and agreed to it (Dkt. 26-2 at pp.
affidavit, Dr. Beckles, who ultimately performed the surgery,
It was made clear to [Hamilton] that the catheter (which is
FDA approved to be placed within the chest cavity for
sometimes an extended period of time as indicated) was safe
to remain in place until the time of his lung cancer surgery.
Other pre-operative studies were pending prior to surgical
resection of the cancer.
Redo operations on the chest have a higher complication rate
and mortality and is [sic] associated with worse cancer
survival rates. The patient made his decision that he wanted
to have surgery ONCE and not twice.
Therefore, we decided to remove the catheter at the same time
as surgical removal of the cancer to offer the patient the
most benefit with the smallest risks as possible and he
The benefits of completing the oncological workup clearly
outweighed the risks of waiting [until the resection to
remove the catheter]. Dkt. 25-1 at pp. 3-5 (all-caps emphasis
April 11, 2011, Dr. Beckles performed the surgical resection
and, during the same procedure, removed the catheter tip from
Hamilton's chest (Dkt. 26 at pp. 1094- 97). There were no
complications (Dkt. 26 at pp. 1094-97), and in his affidavit
Dr. Beckles notes that Hamilton survived "one of the . .
. deadliest cancers" (Dkt. 25-1 at p. 5). A picture of
the removed catheter tip is included in the summary judgment
record (Dkt. 30-1 at p. 33). In all, the catheter tip spent
five weeks in Hamilton's chest.
THE PLRA, SUMMARY JUDGMENTS, AND QUALIFIED