United States District Court, S.D. Texas, Corpus Christi Division
ALEX ROY; aka ALEX JOSEPH ROY, JR.; aka A.J. ROY; aka AL ROY, Plaintiff,
TANYA LAWSON, et al, Defendants.
Tagle, Senior United States District Judge.
Court has before it Defendants' Motion for Summary
Judgment (Dkt. No. 38), the Memorandum and Recommendation
(“M&R”) of the Magistrate Judge to whom this
case is referred (Dkt. No. 47), the parties' objections
to the M&R (Dkt. Nos. 50, 51), and Plaintiff's
response to Defendants' objections (Dkt. No. 53).
Alex Roy brings this § 1983 civil rights action against
prison officials, arguing that they were deliberately
indifferent to his serious medical needs by not treating him
or referring him for treatment for his Hepatitis C condition.
The Magistrate Judge recommends that the Court dismiss
Plaintiff's claim for injunctive relief in the form of
receiving treatment, and that the Court retain his claims for
injunctive relief in the form of a referral for treatment.
For the reasons below, the Court ADOPTS IN
PART and DECLINES TO ADOPT IN PART
the M&R and DISMISSES WITH PREJUDICE all
of Plaintiff's claims against all defendants.
is currently serving a ninety-five year sentence for
aggravated robbery at the Texas Department of Criminal
Justice, Criminal Institutions Division
(“TDCJ-CID”), and is housed at the McConnell Unit
in Beeville, Texas. On January 9, 2017, Plaintiff filed his
§ 1983 claim for injunctive relief against the following
McConnell Unit officials in their official capacities: (1)
Tanya Lawson (“Lawson”), Medical Practice
Manager; (2) Dr. Isaac Kwarteng (“Kwarteng”),
Medical Director; and (3) Susanna Corbett
(“Corbett”), Physician Assistant
(“PA”). Dkt. No. 1. Plaintiff specifically
alleges that Defendants were deliberately indifferent to his
serious medical needs by not treating him or referring him
for treatment for his Hepatitis C condition. Dkt. No. 4.
February 21, 2017, the Magistrate Judge to whom this case was
referred conducted a Spears hearing. After the hearing,
the Magistrate Judge ordered service of Plaintiffs complaint
and memorandum in support on Defendants. Dkt. No. 12. On
April 6, 2017, Defendants filed their answer. Dkt. No. 13).
On August 4, 2017, Defendants filed their instant Motion for
Summary Judgment. Dkt. No. 38. Plaintiff responded to the
motion on August 21, 2017. Dkt. No. 41.
December 29, 2017, the Magistrate Judge issued an M&R
recommending that the Court grant in part and deny in part
Defendant's motion for summary judgment. Dkt. No. 47.
Both parties objected to the M&R, and Plaintiff also
filed a response to Defendants' objections. Dkt. Nos. 50,
51, 53. The Court now considers Defendant's
attach the following summary-judgment evidence to their
• Relevant Portions of TDCJ's Health Services
Medical Records for Alex Roy (Dkt. No. 38-1 at 2-40);
• Affidavit of Dr. Stephen Bowers (Dkt. No. 38-1 at
• Correctional Managed Health Care (“CMHC”)
Policy B-14.13.3 (Dkt. No. 38-1 at 45-57);
• Relevant Portions of Plaintiffs Grievances (Dkt. No.
38-1 at 58-60);
• Relevant Portions of Lawson's Responses to
Plaintiffs Interrogatories (Dkt. No. 38-1 at 61-11);
• Relevant Portions of Kwerteng's Responses to
Plaintiffs Interrogatories (Dkt. No. 38-1 at 67-71);
• Relevant Portions of Corbett's Responses to
Plaintiffs Interrogatories (Dkt. No. 38-1 at 72-77).
has offered the following summary-judgment evidence:
• Public Verification/Physician Profile of Defendant
Bowers (Dkt. No. 41-1 at 9-10);
• CMHC Policy Manual-Table of Contents (Dkt. No. 41-2 at
• September 12, 2016, Letter Regarding CMHC Policy 12.1
(Dkt. No. 41-2 at 4).
Magistrate Judge noted, “Plaintiffs verified complaint,
attachments thereto, and testimony at the Spears
hearing also serve as competent summary judgment
evidence.” Dkt. No. 47 at 3-4 (citing Garrett v.
Davis, No. 2:14-cv-70, 2017 WL 1044969, at *3 (S.D. Tex.
Mar. 20, 2017). But although these are part of the record,
they do not constitute competent summary-judgment evidence
wholesale. Rather, the verified complaint and
Spears-hearing testimony, like other parts of the
record, must satisfy Federal Rule of Civil Procedure 56(c) in
order to be considered at summary judgment. See Mengele
v. AT&T Servs. Inc., 2017 WL 3835871, at *3 (N.D.
Tex. Aug. 9, 2017) (“[T]he verified complaint and sworn
interrogatory answers of the pro se litigant can be
considered as summary judgment evidence to the extent
that such pleadings comport with the requirements of current
Rule 56(c).”) (emphasis added) (citations
omitted); see also M&R, Dkt. No. 47 at 10.
Accordingly, the Court will not consider parts of Plaintiffs
verified complaint or Spears-hearing testimony that
are not made on personal knowledge or that would be
inadmissible in ...