United States District Court, E.D. Texas, Tyler Division
LEON D. VESSELL, #2022742
BRYAN COLLIER, ET AL.
ORDER OF DISMISSAL
CLARK, UNITED STATES DISTRICT JUDGE
Leon D. Vessell, an inmate confined in the Texas prison
system, proceeding pro se and in forma pauperis, brings the
above-styled and numbered civil rights lawsuit pursuant to 42
U.S.C. § 1983. The sole remaining defendant is Nurse
Practitioner Gwendolyn Myles. The complaint was referred to
United States Magistrate Judge K. Nicole Mitchell, who issued
a Report and Recommendation (“R&R”) (Dkt.
#53) concluding that Ms. Myles' motion for summary
judgment (Dkt. #46) should be granted. Mr. Vessell has filed
objections. (Dkt. #56). After conducting a de novo review of
the record, the pleadings, and the paper on file, the court
concludes that the R&R is correct and that the objections
Vessell alleges that starting on October 13, 2015, Ms. Myles
failed to provide him medical care for early stages of edema
to his lower extremities. He adds that she refused to review
his prior medical records, including a Correctional Managed
Care Intake History and Health Screening form
(“HSM-13”). She likewise failed to update his
medical records to include the form, which greatly reduced
his ability to receive medical treatment.
Vessell states that he was reassigned to the Powledge Unit,
and Ms. Myles was a medical provider at that unit as well. He
alleges that she repeatedly continued to be deliberately
indifferent to his serious condition; instead, she only
offered him an increase in blood pressure medication and a
colonoscopy - which were not related to his edema or
Vessell notes that he started grievance procedures. On April
26, 2016, he and other inmates were interviewed regarding Ms.
Myles' deliberate indifference. He asserts that Ms. Myles
was terminated shortly thereafter. He subsequently received a
course of treatment that included antibiotics, bandage
changes and hospitalizations. He once feared that death would
have come or amputation. In his first amended complaint (Dkt.
#12), he asked for $550, 000 in compensatory damages and
$240, 000 in punitive damages. In his second amended
complaint (Dkt. #34), he does not specify the amount of money
he is seeking in damages.
Myles' Motion for Summary Judgment
Myles filed a motion for summary judgment (Dkt. #46) on
October 27, 2017. In support of the motion, she attaches a
copy of Mr. Vessell's medical records and an expert
report provided by Dr. Steven Bowers. Ms. Myles argues that
the competent summary judgment evidence does not support a
claim of deliberate indifference and that she is entitled to
qualified immunity and Eleventh Amendment immunity.
Bowers provides an affidavit containing a thorough discussion
concerning Mr. Vessell's medical records in his report.
His discussion includes the following:
I have been asked to review the above referred records in
order to provide an expert medical opinion(s) as to the
medical care provided to Leon Vessell by Gwendolyn Myles,
nurse practitioner (NP). Plaintiff claims NP Myles deprived
him of medical services for his early stages of leg edema;
failed to update his medical records to include the HSN-13,
which reduced his ability to receive medical treatment in the
future; increased his blood pressure medication, and ordered
a colonoscopy which was not related to the edema in his legs.
I have reviewed Mr. Vessell's medical record and more
specifically his encounters with NP Myles. Mr. Vessell
entered the Texas Department of Criminal Justice (TDCJ) on
October 8, 2015 through TDCJ's Gurney Unit located in
Palestine, Texas. During Mr. Vessell's intake processing,
a HSM-13-Correctional Managed Care Intake History and Health
Screening form was completed. This form is completed pursuant
to Correctional Managed Health Care Policy E-32.1, Receiving,
Transfer and Continuity of Care Screening. The HSM-13 form is
completed during the intake process and contains information
provided by the patient and provides information relating to
the patient's family medical history, personal medical
history, infectious disease history, behavior and mental
status, and thought content. The HSM-13 form is only
completed during an inmate intake processing into TDCJ.
Subsequent transfers to other TDCJ units utilize a different
screening form. The completed HSM-13 form was placed in Mr.
Vessell's medical record for reference. Updates are not
required of the HSM-13 form because a comprehensive medical
evaluation is completed on all new incoming offenders within
seven days of their arrival in the system. Mr. Vessell's
comprehensive medical evaluation was performed on October 13,
2015 by NP Myles. This clinical evaluation included
evaluation of the patient's head and neck, eyes, ENT
(ears, nose and throat), dental, chest/breast,
cardiovascular, hemopoietic/lymphatic, abdomen,
gastrointestinal, endocrine/metabolic, nutritional, upper and
lower extremities, spine, skin, rectal, genitourinary, neuro
and psych. NP Myles noted that Mr. Vessell's lower
extremities had full range of motion, were symmetrical in
strength, and had no edema (swelling). NP Myles also noted
the patient had previously been diagnosed with hypertension,
Hepatitis C, and bipolar disorder. NP Myles ordered housing
and work restrictions on the Health Summary for
Classification form (HSM-18), a Chronic Care Clinic visit for
his hypertension and Hepatitis C in 30 days, and various
On October 17, 2015, Mr. Vessell was seen in the
Contagious/Infectious Disease clinic. It was noted that the
patient had a history of a positive PPD test (skin test for
tuberculosis (TB)) in 2012 and had previously taken
medication. NP Myles was informed of this information and
ordered a chest X-ray. X-rays results dated October 21, 2015
did not reveal any signs that Vessell had TB.
On November 23, 2015, Mr. Vessell was seen in the Chronic
Care clinic by physician assistant (PA) Joseph Curry. During
that visit PA Curry noted the patient had no clubbing,
cyanosis or edema in his extremities.
On January 5, 2016, NP Myles ordered Vessell Engerix-B
(Hepatitis B vaccine). On January 8, 2016 NP Myles ordered
additional laboratory testing and the results were reviewed
on January 13, 2016.
On January 11, 2016, Mr. Vessell was seen by Dr. Charles
Adams for complaints of lower extremity swelling. Dr. Adams
noted the patient had 1 pitting edema and ordered TED
stockings for one year and a sedentary work restriction.
On February 5, 2016, NP Myles examined Mr. Vessell for
complaints of headaches, bleeding nostrils, and productive
cough with green phlegm. The patient's vital signs were
taken and it was noted that his blood pressure was high at
160/80 and all other vital sign (pulse, respiration, temp.)
readings were within normal limits. The examination findings
showed the patient had a regular heart rate and rhythm, his
lungs were clear on both sides, and his nostrils had bright
red blood with no clotting noted and no lesions to nose. Mr.
Vessell was assessed with uncontrolled hypertension,
allergies and obesity (BMI-31). The plan of care was an order
for nasal spray with instructions for saline nose drops,
blood pressure check weekly for two weeks, take two Prinivil
(Lisinopril) until new pill pack is received, and an order to
increase Lisinopril from 10mg to 20mg daily.
On February 23, 2016, Mr. Vessell was seen in nursing sick
call for complaints of passing blood in his urine. An
examination and urinalysis was performed by the sick call
nurse and NP Myles was contacted and informed of the
patient's complaints and the abnormal findings. NP Myles
gave orders for a urine culture and Amoxicillin 500mg
(antibiotic) twice daily for seven days.
On February 25, 2016, Mr. Vessell saw NP Myles for a physical
exam. The record notes the patient had no complaints, a past
medical history of Hepatitis C, hypertension, and asthma. The
physical examination findings were all normal except for a
high blood pressure reading of 172/92, and petite (slight)
edema and hypopigmentation (loss of skin color) were noted in
the patient's lower extremities. NP Myles counselled the
patient on avoiding salt and junk foods and noted that the
patient refused to change his blood pressure medication.
These treatment recommendations by NP Myles are part of the
standard treatment ...