United States District Court, E.D. Texas, Tyler Division
ORDER OF DISMISSAL
Clark, United States District Judge.
Randal Floyd, an inmate confined at the Coffield Unit of the
Texas prison system, proceeding pro se and in
forma pauperis, filed the above-styled and numbered
civil rights lawsuit pursuant to 42 U.S.C. § 1983. The
complaint was referred to United States Magistrate Judge John
D. Love, who issued a Report and Recommendation (Dkt. #60)
concluding that Dr. John Morgan's motion for summary
judgment (Dkt. #55) should be granted. Mr. Floyd has filed
objections (Dkt. #61). After conducting a de novo
review of the record, the pleadings, and the paper on file,
the court concludes that Mr. Floyd's objections lack
merit and Dr. Morgan's motion for summary judgment should
Floyd complains he has been denied dentures, and he wants the
court to compel the defendants to provide him with dentures.
The sole remaining defendant is Dr. Morgan, a dentist. The
competent summary judgment evidence reveals that Dr. Morgan
examined Mr. Floyd on one occasion on August 1, 2016.
See Defendant's Motion for Summary Judgment
(Dkt. #55), Exhibit A, pages 25-26. Dr. Morgan determined
that Mr. Floyd's lower gums were infected. To treat the
infection, Dr. Morgan prescribed antibiotics and concluded
that the remnants of Mr. Floyd's bottom teeth would need
to be extracted to prevent further infection and improve his
oral hygiene. Dr. Morgan found that, pursuant to CMHC Policy
E-36.4(I)(D), Mr. Floyd was not a viable candidate for dental
prosthetics until the infection in his gum tissue was
resolved. He concluded that Mr. Floyd did not meet the
criteria of medical necessity to be issued dental
Floyd was scheduled to have the remnants of his bottom teeth
extracted. The extraction was to occur on November 16, 2016.
Dr. Michael R. Johnson, another dentist, wrote that Mr. Floyd
“arrived at the clinic and immediately decided to
refuse exam or treatment.” See Defendant's
Motion for Summary Judgment, Exhibit A, page 62.
Judge Love found that the competent summary judgment evidence
does not support an inference of deliberate indifference,
that Dr. Morgan is entitled to dismissal based on qualified
immunity, and that Mr. Floyd has not shown that Dr. Morgan is
able to provide the relief sought in this case. Mr. Floyd has
“court shall grant 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). The moving party for summary judgment has
the burden of proving the lack of a genuine dispute as to all
the material facts. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986); Galindo v. Precision Am.
Corp., 754 F.2d 1212, 1221-23 (5th Cir. 1985).
deciding a motion for summary judgment, a court must make a
threshold inquiry in determining whether there is a need for
a trial. “In other words, whether there are any genuine
factual issues that properly can be resolved only by a finder
of fact because they may reasonably be resolved in favor of
either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “[T]he mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact.” Id. at 247-48.
movant satisfies its initial burden of demonstrating the
absence of a material fact dispute, then the non-movant must
identify specific evidence in the summary judgment record
demonstrating that there is a material fact dispute
concerning the essential elements of its case for which it
will bear the burden of proof at trial. Douglass v.
United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th
Cir. 1996). The non-movant cannot survive a motion for
summary judgment by resting on the allegations in his
pleadings. Isquith v. Middle South Utilities, Inc.,
847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S.
926 (1988). Rather, he must direct the court's attention
to evidence in the record sufficient to establish that there
is a genuine issue of material fact for trial.
Celotex, 477 U.S. at 324. To carry this burden, the
non-movant must present evidence sufficient to support a
resolution of the factual disputes in his favor.
Anderson, 477 U.S. at 257. The non-movant must
submit competent summary judgment evidence sufficient to
defeat a properly supported motion for summary judgment.
See, e.g., Burleson v. Texas Dep't of Criminal
Justice, 393 F.3d 577, 589-90 (5th Cir. 2004);
Domino v. Texas Dep't of Criminal Justice, 239
F.3d 752, 755 (5th Cir. 2001). All reasonable inferences are
drawn in favor of the non-moving party, but the non-moving
party “cannot defeat summary judgment with conclusory
allegations, unsubstantiated assertions, or ‘only a
scintilla of evidence.'” Hathaway v.
Bazany, 507 F.3d 312, 319 (5th Cir. 2007); Miller v.
Graham, 447 F. App'x. 549, 551 (5th Cir. 2011).
indifference to a prisoner's serious medical needs
constitutes an Eighth Amendment violation and states a cause
of action under 42 U.S.C. § 1983. Estelle v.
Gamble, 429 U.S. 97, 105-07 (1976); Jackson v.
Cain, 864 F.2d 1235, 1244 (5th Cir. 1989). In Farmer
v. Brennan, 511 U.S. 825, 835 (1994), the Supreme Court
noted that deliberate indifference involves more than just
mere negligence. The Court concluded that “a prison
official cannot be found liable under the Eighth Amendment .
. . unless the official knows of and disregards an excessive
risk to inmate health or safety; . . . the official must both
be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837.
Fifth Circuit discussed the high standard involved in showing