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Sorrow v. Executive Director TDCJ

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

October 31, 2017

LOYD LANDON SORROW, Plaintiff,
v.
EXECUTIVE DIRECTOR TDCJ, et ah, Defendants.

          MEMORANDUM AND OPINION

          Lee H. Rosenthal Chief United States District Judge

         Texas state inmate Loyd Landon Sorrow alleges that the conditions of his confinement in the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ") violate his civil rights under 42 U.S.C. § 1983 and the Americans with Disabilities Act. Sorrow represents himself and is proceeding without prepaying the filing fees. He sues four defendants: TDCJ Executive Director Brian Collier; the University of Texas Medical Branch at Galveston ("UTMB"); Erin Alison Jones, M.D.; and Stephanie Abron, M.D., both at UTMB. Two of the defendants, UTMB and Dr. Jones, have jointly moved to dismiss the complaint against them under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Docket Entry No. 54). Sorrow has filed a response. (Docket Entry No. 60). Based on the pleadings, the motion and response, the record, and the applicable law, the court grants the defendants' motion.[1] The reasons are explained below.

         I. Background

         Sorrow alleges that all of the defendants have denied him adequate medical care and that Dr. Jones retaliated against him for various reasons. Sorrow's allegations against UTMB and Dr. Jones, viewed in the light most favorable to him, are summarized below based on the facts Sorrow has pleaded in the complaint, his two responses to the court's order for a more definite statement, (Docket Entry Nos. 19, 21), and a chronology that he attached to his response to the motion to dismiss, (Docket Entry No. 60).

         Sorrow's primary medical complaint is his knee pain. Sorrow injured his knee while serving in the military in 1977. He alleges that during his incarceration in TDCJ, he at times has been denied a classification as "medically unassigned" that would exempt him from prison work requirements. Sorrow also argues that he has been deprived of knee braces that he paid for with his veterans' benefits, but this argument does not address the claims against Dr. Jones and UTMB and is not discussed in this memorandum and opinion.

         Sorrow also alleges that he has received inadequate care for a neck injury that he suffered during his incarceration in 2010 or 2011. He alleges that he was denied chiropractic care, traction, surgery, steroid injections, adequate medication, and ultra-sonic sound therapy for his neck. (More Definite Statement, Docket Entry No. 19, at 12 & 20). However, he states that he was treated at UTMB's spine clinic five or six times and was given pain medications, physical therapy, a neck brace, traction, and electro-convulsive shock therapy. (Chronology, Docket Entry No. 60, at 5-6; Complaint, Docket Entry No. 1, at ¶¶ 18-20). He further states that UTMB doctors told him that no surgery was available for his neck condition. (More Definite Statement, Docket Entry No. 19, at 23). Sorrow also alleges that he received inadequate care for Hepatitis C, which he was diagnosed as having in 2002. He alleges that the defendants denied him a cure for the disease and requests "Zeno Type One" treatment. (Id. at 1 & 20).

         Dr. Jones worked for UTMB as the Medical Director at the C.T. Terrell Unit, where Sorrow was confined when he filed this suit.[2] Sorrow obtained Dr. Jones's profile from the Texas medical board in August 2015 and noted that she was listed as practicing at TDCJ's Stevenson Unit. Sorrow apparently concluded, based on this profile, that Dr. Jones was practicing medicine without a license at the C.T. Terrell Unit. (See More Definite Statement, Docket Entry No. 19, at 4 (Dr. Jones "was not licensed to practice medicine in Brazoria County or C.T. Terrell Unit/Ramsey 3 Unit . . . according to the 'Patient Profile, ' sent to me by the Texas Medical Board")). Sorrow told other inmates that Dr. Jones was not properly licensed. (Id.) On August 17, 2015, Sorrow had a "lay in" for a medical appointment with Dr. Jones. Sorrow appears to allege that this appointment was unnecessary and that Dr. Jones arranged it to retaliate against him for telling other inmates that she was not properly licensed. (Complaint, Docket Entry No. 1, at ¶ 23). Sorrow also alleges that Dr. Jones retaliated against him because she is biased against sex offenders.[3]

         On October 16, 2015, Dr. Jones gave Sorrow a 60-day pass to be classified as medically unassigned and exempted from work duties. Sorrow states that in 2009, another doctor examined him and determined that he should be medically unassigned on an indefinite basis. (More Definite Statement, Docket Entry No. 21, at 28). Sorrow alleges that Dr. Jones improperly ended his indefinite exemption from work without first conducting a physical examination, relying instead on medical test results. Sorrow alleges that:

[a]bout Oct. 16, 2015 [Dr. Jones] . . . "Medical Director, " interviewed me and misinterpreted x-ray, and M.R.I, results, U.T.M.B. recommendations, and past medical history information[] on her computer "(her work tool)" and . . . with deliberate indifference, and reckless disregard to serious and substantial risks of injury or re-injury did deliberately change my indefinite] medical work assignment to a 60 day expiration date, being a well educated, and highly intelligent human species, knowing that I would sooner or later be subjected to work, which would cause pain and possible re-injury.

         (Complaint, Docket Entry No. 1, at ¶ 3). Sorrow also alleges that Dr. Jones had him moved out of the "boot camp" at the C.T. Terrell Unit, which he identifies as "cleaner" and "less restrictive" than other parts of the prison. (More Definite Statement, Docket Entry No. 19, at 4). Sorrow does not identify the date of the transfer or the location where he was transferred. He may be referring to his July 2016 transfer to the Jester III Unit for treatment of his neck injury. (Chronology, Docket Entry No. 60, at 5). In October 2015, Sorrow filed a Step 1 Grievance against Dr. Jones for taking away his indefinite exemption from work. He also filed complaints against her with the Texas Medical Board and Ethics Commission. (Complaint, Docket Entry No. 1, at ¶ 23; Chronology, Docket Entry No. 60, at 2-3).

         Later in 2015, Sorrow was treated by Dr. Kubena Owusu. Sorrow states that Dr. Owusu was sympathetic to his complaints but could not override Dr. Jones's termination of Sorrow's indefinite work exemption. After the 60-day exemption expired, Dr. Owusu ordered additional short-term exemptions. (Chronology, Docket Entry. No. 60, at 2-3). Sorrow's exempt status lapsed briefly on March 9, 2016, and he was assigned to kitchen duties. Sorrow states that he did not work at that time "because [he] still had not been placed on a shift." (Id. at 3). On March 23, 2016, Dr. Owusu renewed Sorrow's restrictions for 90 days.

         In March 2016, Sorrow filed a Step 1 Grievance over the alleged lack of medical attention for his neck and for his Hepatitis C, as well as Dr. Jones's refusal to issue an indefinite medical exemption from work assignments. (Docket Entry No. 1 -1, at 3). In May, after his grievance was denied, Sorrow filed a Step 2 Grievance, which also was denied. (Docket Entry No. 1-1, at 1).

         On June 18, 2016, Sorrow's medical work exemption lapsed again. He filed a Step 1 Grievance about his medical status for work. (Docket Entry No. 21-1, at 7). In response to the grievance, TDCJ advised Sorrow in August that he had been "scheduled numerous times [for medical appointments] between May and June" but had "left without being seen and signed a refusal." TDCJ advised him to keep medical appointments in the future. (Id. at 8). Sorrow was assigned to a kitchen shift wiping tables. He worked there on June 27 and 28. On June 28, 2016, while he was working on a wet floor without his knee braces, Sorrow's left knee hyperextended. (Chronology, Docket Entry No. 60, at 4). Sorrow was reassigned to "scullery" duties in the kitchen, where he could work while holding onto a counter. (Id.).

         On June 3 0 or July 1, 2016, Dr. Owusu prescribed pain medication and renewed the medical restrictions, exempting Sorrow from work assignments for 90 days. (Id.; Complaint, Docket Entry No. 1, at ¶¶ 15 & 17). Sorrow does not allege that he worked any shifts other than on June 27 and 28. It appears from his pleadings that he was granted a series of temporary exemptions until November 30, 2016, when his indefinite exemption was reinstated. (Chronology, Docket Entry No. 60, at 5-6; More Definite Statement, Docket Entry No. 21, at 28).

         Sorrow filed this suit on August 12, 2016. He asserts claims under the Eighth Amendment and the Americans with Disabilities Act. He seeks a declaratory judgment, a refund of disability payments, an injunction ordering adequate medical care, and monetary damages for pain, suffering, mental anguish, and worry. UTMB and Dr. Jones have moved to dismiss the claims against them under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that the court lacks subject-matter jurisdiction and that Sorrow has failed to state a claim on which relief may be granted.

         II. The ...


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