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Brown v. Livingston

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

April 30, 2018

DARRYL DESMOND BROWN, TDCJ #01829251, Plaintiff,
v.
BRAD LIVINGSTON, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          George C. Hanks Jr. United States District Judge.

         Plaintiff Darryl Desmond Brown filed this lawsuit while incarcerated at the Hughes Unit of the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”) and brings claims regarding denied or delayed medical treatment. He proceeds pro se and in forma pauperis. At the Court's request, the Texas Attorney General submitted a Martinez report (Dkt. 22) attaching relevant records, and served Plaintiff with a copy. The Court converted the Martinez report to a summary judgment motion, and ordered Plaintiff to respond by March 31, 2018 (Dkt. 23). To date, Plaintiff has not filed a response. All documents mailed to Plaintiff from the Court since October 2017 have been returned as undeliverable (Dkt. 20, 24 & 25).

         After reviewing all of the evidence submitted, the parties' briefing, and the applicable law, the Court concludes that Defendants are entitled to summary judgment and that this case must be DISMISSED for the reasons that follow.

         I. BACKGROUND

         Brown brings suit against Brad Livingston, Executive Director of TDCJ, and Joseph Russell. He claims that a medical operation on his nose “should've taken place approx. April-28-15” (Dkt. 1, at 4), and that Defendants neglected his rights when it did not. He further claims that Defendants committed “medical abandonment” on April 14 and April 28, 2015, in connection with a CT scan and an “emergency operation” (id). Third, he claims that Defendants “endangered [his] life by deliberating and convincing each other to leave [Brown] as is after medication wears off, ” causing suffering and damaging Brown's nasal passages (id. at 4, 7). He seeks damages of $280, 000.[1]

         The Attorney General's Martinez report attaches TDCJ medical records; University of Texas Medical Branch (“UTMB”) medical records; TDCJ patient liaison records; TDCJ grievance records; and an affidavit of Steven Bowers, M.D., Legal Coordinator for UTMB Correctional Managed Care. Dr. Bowers' affidavit provides a summary of Brown's medical records and attaches pertinent records as exhibits (Dkt. 22-5). On May 22, 2015, Brown had a CT scan that showed pansinus disease, which Dr. Bowers describes as “a condition in which all of the cavities surrounding the nasal passages are inflamed” (id. at 2). Brown was prescribed nasal spray and medication to treat the inflammation (id. at 2 & Exh. 2). He was scheduled for endoscopic sinus surgery in June 2015 at Hospital Galveston, but refused the surgery and was sent back to his TDCJ unit (id. at 2 & Exh. 3). On May 6, 2016, Brown had a nasal endoscopy at Hospital Galveston, which indicated a polyp (id. at 2 & Exh. 4). He had sinus CT scans on August 2 and 10, 2016, showing chronic sinus disease, and was scheduled for surgery on October 21, 2016 (id. at 2 & Exhs. 5 & 6). The surgery was canceled because Brown was released from TDCJ on September 16, 2016 (id. at 2).

         Dr. Bowers also states that Joseph Russell, named as a Defendant in this action, was employed by UTMB as an ER technician.

         II. STANDARDS OF REVIEW

         A. The PLRA and Pro Se Pleadings

         Because Plaintiff is an inmate proceeding in forma pauperis, the Court is required by the PLRA to scrutinize the claims and dismiss the complaint, in whole or in part, if it determines that the complaint “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), 1915(e)(2)(B); see 42 U.S.C. § 1997e(c) (providing that the court “shall on its own motion or on the motion of a party dismiss an action brought with respect to prison conditions” if it is satisfied that the complaint is “frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief”). An administrative report submitted by state officials pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (a “Martinez report”), is a tool to assist courts in making a determination of frivolity under 28 U.S.C. § 1915. See Norton v. Dimazana, 122 F.3d 286, 292-93 (5th Cir. 1997); see also Cay v. Estelle, 789 F.2d 318, 323 & n.4 (5th Cir. 1986) (discussing the utility of a Martinez report).

         In reviewing the pleadings, the Court is mindful of the fact that Plaintiff proceeds pro se. Complaints filed by pro se litigants are entitled to a liberal construction and, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted). Even under this lenient standard a pro se plaintiff must allege more than “'labels and conclusions' or a ‘formulaic recitation of the elements of a cause of action.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted).

         B. Summary Judgment-Rule 56

         The Court has construed the Martinez report filed by the Attorney General's Office as a motion for summary judgment. Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). Once the movant presents a properly supported motion for summary judgment, the burden shifts to the nonmovant to show with significant probative evidence the existence of a genuine issue of material fact. Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). “A fact is ‘material' if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.” Id. “An issue is ‘genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Id.

         In deciding a summary judgment motion, the reviewing court must “construe all facts and inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks omitted). However, the non-movant cannot avoid summary judgment simply by presenting “conclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes Cnty., 678 F.3d 344, 348 (5th Cir. 2012) (internal citation, alteration and quotation marks omitted); see Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Likewise, Rule 56 does not impose upon the Court a duty to sift through the record in search of evidence to support a party's opposition to summary ...


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