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Ortega v. Evans

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

February 16, 2018

RODOLFO ORTEGA, JR., TDCJ #1522268, Plaintiff,
ALAN T. EVANS, et al., Defendants.



         Plaintiff Rodolfo Ortega, Jr. (TDCJ #1522268) is an inmate in custody of the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). Plaintiff has filed a civil action pursuant to 42 U.S.C. § 1983, alleging that officials and medical personnel at the Carol Vance Unit acted with medical negligence and deliberate indifference regarding his spinal condition and other ailments. (Docket Entry No. 1). At the Court's request, he has also filed a More Definite Statement. (Docket Entry No. 23). After reviewing the pleadings as required under 28 U.S.C. § 1915A, the Court concludes that this case must be dismissed for failure to state a claim under section 1983 for the reasons that follow.

         I. Background

         Plaintiff alleges that in 1985, he was involved in a vehicular accident and sustained a neck and back injury that never fully healed.[1] He alleges that he was injured again in 1992 or 1993 when a truck rear-ended his car and was injured a third time in 2007 when his vehicle rolled over.[2] Plaintiff claims that in 2013, x-rays for his back showed that he has deteriorated discs, severe arthritis, and bone spurs.[3]

         Plaintiff alleges that he suffers from chronic, severe pain when he walks, sits, stands, or lies down due to his spinal condition.[4] He also states that the stiffness and pain usually subside within 30 minutes of moving the affected neck or back joint.[5] He claims that the joints in his neck and back grind, grate, or crackle when they are moved and that he has numbness and tingling in his arms and legs and frequent sharp pains in his lower back, to his right buttocks, and down his right thigh.[6] He also complains that he suffers from osteoporosis, neuropathic pain, the inability to control his blood pressure and heart rate, and pain in his right testicle.[7]

         Plaintiff reports that he was given steroid shots in his back, knee, and shoulder at other units in the TDCJ in the past.[8] He also alleges that health care providers at those other units prescribed him either meloxicam, naproxen, and/or ibuprofen daily for the past seven years and issued him medical restrictions for a bottom bunk, no lifting more than 30 pounds, and limiting standing and squatting.[9]

         On November 10, 2016, Plaintiff arrived at the Carol Vance Unit and reported that his job at his last unit was 1 day a week, 4 hours a day, folding laundry. Plaintiff then saw Physician Assistant Alan T. Evans ("Evans"), who explained the sick-call procedure on intake.[10]

         On November 14, 2016, Plaintiff submitted a written sick call request for a steroid shot for his shoulder and to renew his meloxicam, benzoyl peroxide, and clipper shave pass.[11] Plaintiff saw Evans on November 15, 2016.[12] Evans renewed the meloxicam prescription but reduced the dosage from every day to once every three days.[13] Evans allegedly told Plaintiff: "Giving you your medication back to daily is not going to make your condition any better, so just deal with what I prescribe to you and exercise more."[14] Evans also told Plaintiff that he would only receive one benzoyl peroxide tube and that he would not get any steroid shots because all he needed to do was to exercise more.[15]

         On December 12, 2016, Plaintiff submitted a sick call regarding his work assignment because he allegedly was in substantial pain from working 5 days a week.[16] On December 14, 2016, Plaintiff saw Evans, who allegedly took away his medical housing and work restrictions and told Plaintiff to exercise more to help alleviate the pain.[17] Later that day, Plaintiff allegedly talked to his counselor, Defendant InnerChange Freedom Initiative ("IFI") Prison Fellowship Counselor Roy Garcia ("Garcia"), about Evans, and Garcia told Plaintiff to file a grievance and that the grievance would fix the situation.[18] At some point, Plaintiff claims he also talked to Defendant IFI Prison Fellowship Program Director Daryll Brooks ("Brooks") about his problems with Evans, and Brooks told him that Plaintiff- should not have been accepted into the IFI program with his medical issues and that no one on the Carol Vance Unit is medically unassigned.[19]

         On March 16, 2017, Plaintiff received his step 2 grievance response, which stated that the doctor had done a full physical and that he should put in for sick call if he has a medical issue.[20]On March 19, 2017, Plaintiff submitted another sick call request for his knee, back, and neck pain. On March 21, 2017, Evans reiterated that Plaintiff needed to exercise and he would be fine.[21]

         On March 27, 2017, Plaintiff allegedly spoke with Garcia again, and Garcia told Plaintiff that he would bring up Plaintiff's issues with Evans at a staff meeting.[22] Plaintiff also alleges he complained to Garcia that the work assignments and prolonged standing were too much for him to handle.[23]

         Plaintiff alleges that Evans, a Physician Assistant, is not a doctor and that he refused or failed to review his medical history.[24] Plaintiff claims that all Evans did was lift Plaintiff's arm and leg while Plaintiff was sitting down and then said, "There is nothing wrong with you all you need to do is exercise."[25]

         While Plaintiff states that he agrees with Evans that medication will not cure the pain but will only ease it, he claims that Evans acted with deliberate indifference because he failed to treat Plaintiff's worsening pain.[26] Plaintiff contends that Evans's failure to order an MRI was negligence and that Evans's failure to diagnose Plaintiff's ailments constitutes malpractice.[27] Plaintiff also alleges that Evans committed "technical assault and battery" by taking away Plaintiff s medical restrictions and lowering his dosage of meloxicam.[28] He complains that the pain interferes with his sleep and meals and that he cannot go outside and enjoy recreational activities.[29] Plaintiff also alleges that after Evans refused to give him medical restrictions for work, he gave up and refused to work, which resulted in five disciplinary convictions, a loss of his opportunity to participate in the faith-based IFI program, and a transfer from general population to medium custody in a maximum security unit.[30]

         Plaintiff also sues Senior Warden Troy Simpson ("Simpson"), Captain Thomas A. Chessher ("Chessher"), Senior Practice Manager Susan Dostal ("Dostal"), and IFI Prison Fellowship Manager Ron Zifer ("Zifer"), generally alleging that they failed to remedy unlawful conditions that they knew about and failed to ensure that Plaintiff received adequate medical services when he complained to them about Evans.[31] In addition, Plaintiff sues Bryan Collier, the Executive Director of TDCJ ("Collier"), for failure to train his subordinates.[32]

         For relief, Plaintiff seeks the reinstatement of all of his medical housing and work restrictions; daily doses of pain medication; a clipper shave pass; an increase in his allowed benzoyl peroxide to four tubes a year; an MRI; the expungement all of his disciplinary cases for failing to work or shave; and an order preventing the Carol Vance Unit employees from retaliating against him.[33]

         II. Legal Standards

         A. Prison Litigation Reform Act

         Plaintiff's complaint is subject to screening under the Prison Litigation Reform Act (PLRA), which requires a district court to scrutinize claims in a civil action brought in forma pauperis by a prisoner and dismiss the complaint, in whole or in part, if it "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 reasons "at any time" "on its own motion or on the motion of a party" where the plaintiff proceeds in forma pauperis. 42 U.S.C. § 1997e(c); 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").

         Pleadings filed by pro se litigants must be construed under a less stringent standard of review. See Haines v. Kerner, 92 S.Ct. 594, 596 (1972). Under this standard, a court liberally construes a document filed pro se. Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citing Estelle v. Gamble, 97 S.Ct. 285, 292 (1976)). "Nevertheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twomblv, 127 S.Ct. 1955, 1965 (2007)). A complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twomblv, 127 S.Ct. at 1974) . "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." Id.

         An action is frivolous if it lacks any arguable basis in law or fact. Neitzke v. Williams, 109 S.Ct. 1827, 1831-32 (1989); Talib v. Gillev. 138 F.3d 211, 213 (5th Cir. 1998). A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which clearly does not exist. Harris v. Hecrmann, 198 F.3d 153, 156 (5th Cir. 1999).

         A review for failure to state a claim is governed by the same standard used to review a dismissal pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure. See Newsome v. EEOC, 301 F.3d 227, 231 (5th Cir. 2002). Under that standard, courts must assume that plaintiff's factual allegations are true, and a dismissal is proper only if it appears that no relief could be granted under any set of facts that could be proven consistent with the allegations. Id. (citations omitted).

         B. Eighth Amendment

         The Eighth Amendment's prohibition against cruel and unusual punishment forbids deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble, 97 S.Ct. 285, 291 (1976). To state a claim for deliberate indifference, a plaintiff must plead facts to show that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 114 ...

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