United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge.
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).
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
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.
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).
Bowers also states that Joseph Russell, named as a Defendant
in this action, was employed by UTMB as an ER technician.
STANDARDS OF REVIEW
The PLRA and Pro Se Pleadings
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).
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).
Summary Judgment-Rule 56
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
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 ...