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Scott v. Kwarteng

United States District Court, S.D. Texas, Corpus Christi Division

January 9, 2019

KENNETH SCOTT, Plaintiff,
v.
ISAAC KWABENA KWARTENG, et al, Defendants.

          MEMORANDUM AND RECOMMENDATION TO DISMISS CERTAIN CLAIMS AND TO DENY DEFENDANTS' MOTIONS TO DISMISS

          B. JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE

         In this 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.

         I. JURISDICTION

         The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.

         II. PROCEDURAL BACKGROUND

         In this 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.

         Plaintiff 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).

         On April 19, 2018, a Spears[1] 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).

         On June 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[2] 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).

         III. PLAINTIFF'S ALLEGATIONS.

         Plaintiff 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.

         Plaintiff 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.

         Dr. 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.

         Plaintiff 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 Galveston.

         Two 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.

         According 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 his property.

         Plaintiff 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.

         Despite 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 bottom-bunk restrictions.

         Plaintiff 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).

         Plaintiff's 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.

         IV. DISCUSSION

         A. Dismissal Under Section 1915(e)(2)(B)

         Section 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).

         Section 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).

         A claim 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, ‚Äúsuch as if the complaint alleges the violation of a legal interest which ...


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