United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN
CLAIMS AND TO DENY DEFENDANTS' MOTIONS TO
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE
prisoner civil rights action, Plaintiff Kenneth Scott asserts
claims of deliberate indifference, retaliation, and other
constitutional violations. Presently before the Court are a
Motion to Dismiss filed by Defendant Philip Sifuentes (D.E.
15) and a Motion to Dismiss filed by Defendants Isaac Kwabena
Kwarteng and Tanya Lawson (D.E. 17). For the reasons stated
herein, it is respectfully recommended that Plaintiff's
claims of medical malpractice, theft, and collusion be
DISMISSED as frivolous and/or for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B). It is further
respectfully recommended that the motions to dismiss (D.E.
15, 17) be DENIED in their entirety.
Court has federal question jurisdiction pursuant to 28 U.S.C.
civil rights action, Plaintiff sues the following individual
defendants: (1) Dr. Isaac Kwabena Kwarteng; (2) Charge Nurse
Tanya Lawson; and (3) Senior Warden Philip Sifuentes. (D.E.
1, p. 3). Plaintiff alleges that he suffers from serious
spinal injuries. He further alleges that Dr. Kwarteng and
Nurse Lawson removed from Plaintiff's possession certain
surgeon-ordered medical devices which protect the spine.
According to Plaintiff, Defendants Kwarteng and Lawson
directed other medical personnel not to return these items to
Plaintiff even though Plaintiff faced increased pain in the
affected areas. Plaintiff's medical restrictions also
were cancelled by Defendants.
alleges that Warden Sifuentes was notified of the issues
involving Plaintiff's medical devices but did nothing to
remedy the matter, such as transferring him to a prison
facility capable of handling his medical issues. Plaintiff
claims that Defendants' actions amount to deliberate
indifference to his health and safety in violation of the
Eighth Amendment. (D.E. 1, p. 5). In support of these claims,
Plaintiff asserts that Defendants denied him the use of
medical devices for his serious spinal injuries and placed
him in a housing situation where he has a greater risk of
falling down and suffering serious injury. Plaintiff further
asserts claims of retaliation, medical malpractice, theft,
and collusion. Plaintiff seeks injunctive relief as follows:
(1) return of the medical braces and restrictions; and (2)
transfer to another prison where he can receive proper
medical care. (D.E. 1, p. 4).
April 19, 2018, a Spears hearing was conducted. The
next day, the undersigned ordered service of Plaintiff's
complaint on Defendants. (D.E. 14). Warden Sifuentes filed a
motion to dismiss Plaintiff's claims against him,
contending that Plaintiff has failed to exhaust his available
remedies and that he has failed to state a claim for relief.
(D.E. 15). Defendants Kwarteng and Lawson also moved to
dismiss Plaintiff's claims, contending that: (1) this
Court lacks subject matter jurisdiction over any state law
claims that may have been raised in Plaintiff's
complaint; (2) Plaintiff has failed to exhaust his available
remedies; (2) Plaintiff's allegations fail to state a
claim for relief; (4) they are entitled to qualified
immunity; and (5) Plaintiff is not entitled to the injunctive
relief he seeks. (D.E. 17). Plaintiff has responded to both
motions to dismiss. (D.E. 25, 26).
1, 2018, Plaintiff filed a motion for preliminary injunction.
(D.E. 16). Plaintiff sought a court order directing Warden
Sifuentes either to move Plaintiff to the McConnell
Unit's medical housing area or to transfer him to a
prison facility equipped to deal with his spinal injuries.
(D.E. 16, p. 4). The undersigned ordered Defendants to
respond to Plaintiff's motion and to file a
Martinez report. (D.E. 22, 29). On August 13,
2018, Defendants filed their Joint Martinez Report
(D.E. 31) as well as their responses in opposition to
Plaintiff's Motion for Preliminary Injunction. (D.E. 33,
35). On August 29, 2018, Senior District Judge Hilda G. Tagle
denied Plaintiff's motion for preliminary injunctive
relief. (D.E. 38).
made the following allegations relevant to the pending
motions to dismiss either in his original Complaint (D.E. 1)
or at the Spears hearing. Plaintiff suffers from
spine and knee injuries arising from a difficult parachute
landing in 1982. Plaintiff's spinal issues affect both
his neck and back.
has been housed at the McConnell Unit for the last 22 years.
He has spent the last two years attempting to obtain adequate
medical attention for his medical issues. Approximately two
years ago, doctors at the Galveston Hospital issued Plaintiff
a lumbar support corset and collar. After using these medical
devices for about five months, Plaintiff was involved in an
incident that ultimately resulted in the confiscation of his
medical devices. As he was operating the church's
audio/visual system at a church event, one of the security
officers at the church event was engaging in lesbian conduct
which Plaintiff viewed as being disrespectful. Plaintiff
filed a grievance against the security officer who then
proceeded to formally notify the unit's medical
department that Plaintiff had been running around and lifting
weights and heavy objects beyond his restrictions.
Kwarteng and Nurse Lawson sent security officers to remove
Plaintiff from the church's service and take
Plaintiff's medical braces from him. Dr. Kwarteng and
Nurse Lawson informed Plaintiff that the security officer had
reported Plaintiff as violating his medical restrictions.
These defendants took Plaintiff's braces and removed his
medical restrictions. These defendants also ordered the
assigned physicians assistants not to return these items even
though Plaintiff faced increased pain to the affected areas.
filed grievances with respect to the actions taken against
him by Dr. Kwarteng and Nurse Lawson. These two defendants
answered the grievances and denied them. Plaintiff states
that he received relief at the Step 2 level on the bases that
Dr. Kwarteng and Lawson should not have reviewed his Step 1
grievances. Arrangements were made to send Plaintiff back to
months after losing his first set of braces, TDCJ reissued
back and collar support devices to Plaintiff. A female
officer, however, saw Plaintiff with his new devices and
called the unit's medical department to report that
Plaintiff had “altered” his medical braces.
Security was called to confiscate Plaintiff's new braces.
to Plaintiff, Dr. Kwarteng and Nurse Lawson retaliated
against him by intentionally delaying medical care to
Plaintiff. These delays would range from three to six weeks
following the dates Plaintiff requested his medical care. Dr.
Kwarteng and Nurse Lawson Defendants also committed theft by
confiscating the medical devices which were Plaintiff's
personal property. Plaintiff, however, has not filed any
lawsuits in state court with regard to the confiscation of
notified Warden Sifuentes about the issues involving
Plaintiff's medical devices, but Warden Sifuentes did
nothing to rectify the matter. Rather than assist Plaintiff,
Warden Sifuentes placed Plaintiff in administrative
segregation based on the actions taken by the security
officer in reporting Plaintiff to medical. Plaintiff's
placement in segregation, however, violates his medical
housing restrictions. Furthermore, Plaintiff has received
only 48 showers in 123 days in segregation, and officers have
refused to escort Plaintiff to the medical shower and
properly assist him. Plaintiff loses his balance on multiple
occasions because he has no device like a walker to assist
him in maintaining balance. Plaintiff has injured himself on
several occasions after falling down.
orders from Galveston doctors that Plaintiff be medically
unassigned, this work restriction ended on February 10, 2018.
Plaintiff also is not properly housed at a single-level
facility and is forced to walk lengths greater than his
walking limit of 50 yards. Furthermore, Dr. Kwarteng has
refused to provide Plaintiff with ground floor and
mailed to this Court a letter, dated January 12, 2018, which
informed the Court that he was scheduled to undergo surgery
on his spinal cord in March 2018. (D.E. 12, p. 1). In a
letter dated March 6, 2018, Plaintiff states that, since
filing his original complaint, he was moved from general
population to administrative segregation. (D.E. 13, p. 1).
Plaintiff reiterates that his repeated requests to be
transferred to another prison have been either ignored or
denied. (D.E. 13, p. 2). According to Plaintiff, an
orthopedic surgeon notified the McConnell Unit's medical
department on August 22, 2017, that Plaintiff should be moved
to another facility closer to UTMB-Galveston but that Dr.
Kwarteng refused to act upon it. (D.E. 13, p. 3).
surgery did not take place in March. During an eight-day
hospital stay in early April 2018, Plaintiff was informed
that his spinal injuries had increased in severity. Plaintiff
suffers from continuous pain, and the doctor at Galveston
prescribed Plaintiff certain specific medications. Plaintiff
also underwent a procedure called a spinal cord injury
intervention to revitalize some damaged cartilage. The
Galveston doctors also ordered for Plaintiff a hard-shelled
minerva brace and lumbar corset. Dr. Kwarteng, however,
refuses to adhere to these orders on the grounds that he runs
the medical unit as opposed to the Galveston doctors. Dr.
Kwarteng further indicated that the neck brace ordered by
Galveston medical staff would just weaken Plaintiff's
neck area. Nevertheless, TDCJ has issued Plaintiff a third
set of basic neck and back braces. These braces are
inadequate for Plaintiff's medical needs.
Dismissal Under Section 1915(e)(2)(B)
1983 provides a vehicle for redressing the violation of
federal law by those acting under color of state law.
Nelson v. Campbell, 541 U.S. 637, 643 (2004). To
prevail on a § 1983 claim, the plaintiff must prove that
a person acting under the color of state law deprived him of
a right secured by the Constitution or laws of the United
States. 42 U.S.C. § 1983; West v. Atkins, 487
U.S. 42, 48 (1988).
1915(e)(2)(B) mandates dismissal “at any
time” if the court determines that the action
“fails to state a claim on which relief may be
granted” or “is frivolous or malicious.” 28
U.S.C. 1915(e)(2)(B). An action may be dismissed for failure
to state a claim when the complaint does not plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Iqbal, 556 U.S. at 678. The complaint must be
liberally construed in favor of the prisoner and the truth of
all pleaded facts must be assumed. Oliver v. Scott,
276 F.3d 736, 740 (5th Cir. 2002).
is frivolous if it has no arguable basis in law or fact.
Neitzke v. Williams,490 U.S. 319 (1989). A claim
has no arguable basis in law if it is based on an
indisputably meritless legal theory, “such as if the
complaint alleges the violation of a legal interest which