United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
Marshae Brown (TDCJ #1927025) is presently incarcerated by
the Texas Department of Criminal Justice - Correctional
Institutions Division (“TDCJ”). Brown has filed a
prisoner civil rights complaint under 42 U.S.C. § 1983,
alleging that she was denied adequate medical care after
giving birth at the John Sealy Hospital in Galveston, which
is operated by the University of Texas Medical Branch
(“UTMB”). Brown is proceeding pro se and
in forma pauperis (Dkt. 5). At the Court's
request, Brown has supplemented her claims in response to a
show cause order (Dkt. 10). In addition, the Texas Attorney
General's Office has provided administrative records
relevant to Brown's claims in a Martinez report
(Dkt. 14),  which the Court has construed as a motion
for summary judgment on behalf of the defendants (Dkt. 15).
Brown has filed a response (Dkt. 16) and the Attorney
General's Office has filed a supplemental brief in reply
reviewing all of the evidence submitted, the parties'
briefing, and the applicable law, the Court concludes that
the defendants are entitled to summary judgment and that this
case must be DISMISSED for the reasons that
allegations stem from an episiotomy that was performed on her
when she gave birth at the John Sealy Hospital on August 2,
2014 (Dkt. 1 at p. 11). After the episiotomy incision
reopened and became infected, the wound was debrided on
August 6, 2014, and surgically closed on August 7, 2014
(Id.). The following day, Brown reported that her
incision had reopened again (Id.). Instead of
surgical closure, the plan of care consisted of
“allowing . . . the wound to heal by secondary
intention with daily sitz baths 5x/day” (Id.).
On August 13, 2014, Brown asked to be evaluated for another
surgical closure because she did not believe that sitz baths
would be sufficient (Id. at p. 13). That request was
reportedly denied by “HG Faculty” (Id.
at p. 4). Brown now seeks compensatory damages from
unidentified members of the HG Faculty under 42 U.S.C. §
1983 for denying her request for another surgical closure
addition to raising the defense of official immunity under
the Eleventh Amendment, the Texas Attorney General's
Office has provided hundreds of pages of medical records
showing that Brown received ample post-partum care (Dkt.
14-1, 14-2) and that her episiotomy wound successfully healed
under the prescribed plan of care (Dkt. 14-1 at p. 46). The
Attorney General's Office has also provided
administrative records showing that Brown did not file a
grievance regarding the level of care that she received after
giving birth (Dkt. 14-3). The Attorney General's Office
argues, therefore, that this case should be dismissed for
failure to exhaust administrative remedies as required before
filing suit and, alternatively, for failure to state a claim
upon which relief may be granted (Dkt. 18 at pp. 3-5).
STANDARDS OF REVIEW
The PLRA and Pro Se Pleadings
the 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 also 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” 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
reviewing the pleadings, the Court is mindful of the fact
that the plaintiff in this case 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.” Iqbal, 556 U.S. at 678 (citation
Summary Judgment - Rule 56
Court has construed the Martinez report filed by the
Attorney General's Office as a motion for summary
judgment on behalf of the defendants (Dkt. 15). 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); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). If the movant demonstrates the absence of a
genuine issue of material fact, the burden shifts to the
non-movant to provide “specific facts showing that
there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). If the movant meets this initial burden, the
non-movant must go beyond the pleadings and designate
specific facts showing that there is a genuine issue of
material fact for trial. See Celotex, 477 U.S. at
324; Littlefield v. Forney Indep. Sch. Dist., 268
F.3d 275, 282 (5th Cir. 2001). “An issue is material if
its resolution could affect the outcome of the action. A
dispute as to a material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” DIRECT TV Inc. v. Robson,
420 F.3d 532, 536 (5th Cir. 2006) (citations omitted).
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
“conclusory allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and
legalistic argumentation.” Jones v. Lowndes
Cnty., 678 F.3d 344, 348 (5th Cir. 2012) (quoting
TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d
754, 759 (5th Cir. 2002)); see also Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a
non-movant cannot demonstrate a genuine issue of material
fact with conclusory allegations, unsubstantiated assertions,
or only a scintilla of evidence). 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 judgment; evidence not referred to in the response to
the motion for summary judgment is not properly before the
Court, even if it exists in the summary judgment record.
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.
the plaintiff in this case is proceeding pro se,
“the notice afforded by the Rules of Civil Procedure
and the local rules” is considered
“sufficient” to advise a pro se party of
his or her burden in opposing a summary judgment motion.
Martin v. Harrison County Jail, 975 F.2d 192, 193
(5th Cir. 1992). Even a pro se plaintiff must
specifically refer to evidence in the summary judgment record
in order to place that evidence properly before the court.
See Outley v. Luke & Assocs., Inc., 840 F.3d
212, 217 (5th Cir. 2016) (citing E.E.O.C. v. Simbaki,
Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (“Despite
our general willingness to construe pro se filings liberally,
we still require pro ...