United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE.
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.
Court requested a Martinez report 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).
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.
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).
THE PLRA, SUMMARY JUDGMENTS, AND QUALIFIED
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).
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
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
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.
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 ...