United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN
CLAIMS AND TO RETAIN CASE
B. Libby United States Magistrate Judge
Timotheo Rivera is a Texas inmate appearing pro se
and in forma pauperis. He filed this prisoner civil
rights action pursuant to 42 U.S.C. § 1983.
Plaintiff's case is subject to screening pursuant to the
Prison Litigation Reform Act. See 42 U.S.C. §
1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. For
purposes of screening, Plaintiff has stated a claim for
deliberate indifference to his serious medical needs against
Dr. Lannette Linthicum a.k.a. Dr.
Pickthall for injunctive relief. The undersigned
will order service on this defendant.
undersigned further recommends that Plaintiff's remaining
claims against all other defendants be
DISMISSED for failure to state a claim
and/or as frivolous pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) for the reasons set forth
Court has federal question jurisdiction pursuant to 28 U.S.C.
§ 1331. This case has been referred to the undersigned
magistrate judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C.
PROCEDURAL BACKGROUND AND PLAINTIFF'S
is a prisoner in the Texas Department of Criminal Justice,
Criminal Institutions Division (TDCJ-CID). He is currently
serving a forty-year sentence for a murder conviction entered
on August 3, 2000 in Bexar County, Texas. Plaintiff's
claims in this lawsuit occurred in connection with
Plaintiff's current assignment to the McConnell Unit in
January 10, 2018, Plaintiff filed his original complaint,
naming the following officials as defendants: (1) Tanya
Lawson, Medical Practice Manager; (2) Martha Tijerina,
Registered Nurse (RN); (3) Dr. I. Kwarteng, Medical Director;
(4) Dr. Sullivan, UTMB Galveston; and (5) Ms. Pickthall,
Huntsville Medical Advisor. Plaintiff alleges that Defendants
acted with deliberate indifference to his serious medical
needs by denying him proper and timely treatment for his
Hepatitis C and cirrhosis conditions. Plaintiff seeks
injunctive relief in the form of proper treatment for his
serious medical conditions.
Spears hearing was conducted on February 7, 2018.
The following representations were made either at the
Spears hearing or in Plaintiff's original
complaint (D.E. 1): Plaintiff is 64 years old,
5'11” tall, and weighs 220 pounds. Plaintiff
arrived at the McConnell Unit sometime in 2014 or 2015, where
he has been housed continuously until the present time.
was first diagnosed with Hepatitis C sometime around 2008 or
2009. At that time, Plaintiff was housed in the Ferguson Unit
in Huntsville, Texas. While his condition was being
monitored, Plaintiff did not receive any specific treatments
for his Hepatitis C condition. Dr. Sullivan, a liver
specialist, informed Plaintiff that he was in need of
additional treatment for his Hepatitis C condition based on a
review of Plaintiff's bloodwork. Dr. Sullivan could not
provide any treatment for Plaintiff and instead referred
Plaintiff to “Huntsville.” Plaintiff was last
seen by Dr. Sullivan about thirty months ago. Despite naming
Dr. Sullivan in his complaint, Plaintiff clarified at the
Spears hearing that he did not intend to sue this
on Dr. Sullivan's referral, Plaintiff was seen by a
Huntsville physician named Dr. Lannette Linthicum. Plaintiff
believes that Dr. Linthicum later married and is the same
person as one of the defendants named in his complaint, Ms.
Pickthall. Plaintiff testified that Dr. Linthicum/Pickthall
is the medical official responsible for making treatment
decisions for his Hepatitis C condition. Plaintiff was first
seen by Dr. Linthicum/Pickthall eight years ago. While housed
at the McConnell Unit, Dr. Linthicum informed Plaintiff via a
video monitor around two years ago that he did not need any
treatment because his “levels were good.”
According to Plaintiff, she informed Plaintiff that TDCJ did
not have the resources to provide medications costing $80,
000 to all offenders inflicted with Hepatitis C.
testified that he has received no treatment for his Hepatitis
C condition but that he is required to receive periodic MRIs
for his liver at the UTMB hospital. Plaintiff first received
an MRI three or four years ago and last traveled to the UTMB
hospital for the MRI twenty-one months ago. Plaintiff also
underwent periodic bloodwork and lab tests for monitoring
purposes. Plaintiff stated that it has been about eighteen
months since his last appointment for testing at the UTMB.
Plaintiff initially testified that he stopped going because
his legs were swollen due to his Hepatitis C condition.
However, Plaintiff later testified that he stopped going to
his medical appointments because the medical officials have
done nothing to treat his condition. This condition also is
causing Plaintiff to suffer from abdominal pain, shortness of
breath, and fatigue.
two years ago, Plaintiff was diagnosed by UTMB doctors with
cirrhosis of the liver. Plaintiff alleges he has received no
treatment for his cirrhosis condition. Sometime in 2016, Dr.
Linthicum/Pickthall informed Plaintiff by video monitor that
he would not be provided any treatment if he continued to
skip his appointments. Medical Practice Manager Lawson
likewise informed Plaintiff that he would not receive any
treatments for his Hepatitis C and cirrhosis conditions if he
refused to attend his appointments.
has attached a Step 2 grievance, dated October 30, 2017, to
his complaint in which he complained about the medical
department's nine-year delay in providing adequate
treatment for his Hepatitis C condition. (D.E. 1, p. 6). The
reviewing officer denied this grievance, citing the fact that
Plaintiff was last scheduled for an appointment on October
11, 2017, but refused the required testing and assessments.
(D.E. 1, p. 7). Plaintiff stated in his complaint, however,
that he is the victim of “total games.” (D.E. 1,
p. 4). Plaintiff testified at the Spears hearing
that he is missing ...