Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Acevedo v. Abraham

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

December 5, 2017

EFRAIN ACEVEDO, Plaintiff,
v.
JOHNY ABRAHAM, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiff Efrain Acevedo, a prisoner in the custody of the Texas Department of Criminal Justice ("TDC J"), has filed a pro se civil rights complaint and is proceeding in forma pauperis (Dkt. 1, Dkt. 10). He has sued two defendants under 42 U.S.C. § 1983, bringing claims of Constitutionally deficient medical care.

         The Court requested a Martinez report[1] from the Texas Attorney General's office, which the Attorney General's office provided (Dkt. 16). The Court construed the Martinez report as a motion for summary judgment and notified Acevedo of that construction (Dkt. 17). Acevedo responded (Dkt. 23 and Dkt. 28). The Court will also consider the factual allegations in Acevedo's original complaint to be part of the summary judgment record because Acevedo declared under penalty of perjury that the facts set forth in the complaint are true and correct (Dkt. 1 at pp. 6-7). 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).

         After 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.

         I. BACKGROUND

         Acevedo claims that he was diagnosed with asbestosis in 2011 (Dkt. 1 at p. 3). The defendants here are Johny Abraham, who is a nurse practitioner, and Dr. Patrick Strunk, who is the former practice manager at the Terrell Unit, where Acevedo is incarcerated (Dkt. 1 at p. 2). Acevedo alleges that the defendants have ignored his prior asbestosis diagnosis and allowed the disease to worsen by prescribing him "non-aspirin and cold busters which is not proper treatment for [his] kind of illness" (Dkt. 1 at p. 3).

         II. THE PLRA, SUMMARY JUDGMENTS, AND QUALIFIED IMMUNITY

         A. The PLRA

         The complaint in this case is governed by the Prison Litigation Reform Act (the "PLRA"). Upon initial screening of a prisoner civil rights complaint, the PLRA requires a district court to scrutinize the claims and dismiss the complaint, in whole or in part, if it determines that the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted;" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b). A reviewing court may dismiss a complaint for these same reasons "at any time" where a party, like Acevedo, proceeds in forma pauperis. 28 U.S.C. § 1915(e)(2)(B) (mandating dismissal where the complaint is "frivolous or malicious, " "fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief). The PLRA also provides that the court "shall on its own motion or on the motion of a party dismiss an action" if it is satisfied that the complaint is "frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." 42 U.S.C. § 1997e(c).

         Acevedo proceeds pro se in this case. Courts construe pleadings filed by pro se litigants under a less stringent standard of review. Haines v. Kerner, 404 U.S. 519 (1972) (per curiam). Under this standard, "[a] document filed pro se is 'to be liberally construed, ' Estelle [v. Gamble, 429 U.S. 97, 106 (1976)], 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). Nevertheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (observing that courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). The Supreme Court has clarified that "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). "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.

         B. Rule 56

         The defendants have filed a Martinez report, which the Court has construed as a motion for summary judgment. Federal Rule of Civil Procedure 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, the Court must determine whether the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Id. at 322-23.

         For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an absence of a genuine issue of material fact. Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The movant, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The movant may meet its burden by pointing out the absence of evidence supporting the non-movant's case. Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir. 1995).

         If the movant meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001). "An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.