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Rivera v. Lawson

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

March 9, 2018

TIMOTHEO RIVERA, Plaintiff,
v.
TANYA LAWSON, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE

          Jason B. Libby United States Magistrate Judge

         Plaintiff 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[1] for injunctive relief. The undersigned will order service on this defendant.

         The 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 below.

         I. JURISDICTION

         The 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. § 636.

         II. PROCEDURAL BACKGROUND AND PLAINTIFF'S ALLEGATIONS

         Plaintiff 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 Beeville, Texas.

         On 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.

         A Spears[2] 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.

         Plaintiff 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 defendant.

         Based 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.

         Plaintiff 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.

         About 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.

         Plaintiff 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 ...


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