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Roy v. Lawson

United States District Court, S.D. Texas, Corpus Christi Division

February 26, 2018

ALEX ROY; aka ALEX JOSEPH ROY, JR.; aka A.J. ROY; aka AL ROY, Plaintiff,
v.
TANYA LAWSON, et al, Defendants.

          ORDER

          Hilda Tagle, Senior United States District Judge.

         I. Introduction

         The 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).

         Plaintiff 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.

         II. Procedural History

         Plaintiff 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.

         On February 21, 2017, the Magistrate Judge to whom this case was referred conducted a Spears[1] 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.

         On 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 summary-judgment motion.

         III. Summary-Judgment Evidence

         Defendants attach the following summary-judgment evidence to their motion:

• 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 41-44);
• 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).

         Plaintiff 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 1-3);
• September 12, 2016, Letter Regarding CMHC Policy 12.1 (Dkt. No. 41-2 at 4).

         As the 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 ...


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