Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Payne v. Sperry

United States District Court, N.D. Texas, Abilene Division

May 1, 2019

TOBY KRISTOPHER PAYNE, Prison ID # 1720023, Plaintiff,
v.
STEVEN A. SPERRY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          E. SCOTT FROST, UNITED STATES MAGISTRATE JUDGE.

         Pursuant to 42 U.S.C. § 1983, Plaintiff sues five prison officials or employees of the French M. Robertson Unit of the Texas Department of Criminal Justice for failing to ensure adequate and proper dispensation of medication for tuberculosis in violation of the Americans with Disability Act ("ADA"); the Rehabilitation Act ("RA"); and the Eighth Amendment of the United States Constitution. See Compl. (doc. I)at3. The Court has granted Plaintiff permission to proceed with this case informapauperis. See PLRA Filing Fee Order (doc. 7). On March 2, 2018, the District Judge referred the case to the undersigned. See Order (doc. 8). Plaintiff thereafter consented to have a United States Magistrate Judge conduct any and all further proceedings in this case, including entry of a final judgment, in accordance with 28 U.S.C. § 636(c). See Consent to Proceed Before a United States Magistrate Judge (doc. 10).

         In August 2018, the Court granted an amendment thus permitting Plaintiff to name the previously unnamed defendants in this action and accepted supplemental exhibits to support his complaint. See Order (doc. 15); Supp. Ex. (doc. 16). Contemporaneously with this Memorandum Opinion and Order it has granted a proposed amendment to limit Plaintiffs requested relief to nominal and punitive damages. It also sent Plaintiff a Magistrate Judge's Questionnaire ("MJQ") to flesh out the factual and legal bases for his claims. See MJQ (doc. 17). Plaintiff timely responded to the MJQ. See Answers to MJQ (doc. 18).[1] After considering Plaintiffs complaint, the MJQ answers, other relevant filings, and the applicable law, the Court issues this Memorandum Opinion and Order finding that Plaintiff has stated no claim that survives summary dismissal and thus dismisses this action in its entirety.

         I. BACKGROUND[2]

         Following a routine test for tuberculosis ("TB") on November 25, 2017, Plaintiff exhibited positive signs for the disease. Answer 2. Three days later he asked a nurse about the signs and "[s]he concluded that it was most likely a positive result." Id. Contagious and Infectious Diseases ("CID") examined Plaintiff the next day in his cell, confirmed the positive result, and scheduled Plaintiff to see a medical provider. Id. On December 7, 2017, Jackie Gregory, N.P., informed Plaintiff that the "infection was latent and not active" and scheduled monthly follow-up appointments for the duration of the treatment. Id.

         During the relevant period of time, Plaintiff was housed in either building 8 or 12 due to his custody level. Id. Because he was unable to pick up his medication from the pill window while housed in those buildings, Plaintiff had to receive medications at his cell, except for medications that were designated as keep on person ("KOP"). Id.; Compl. at 4. His TB medication was ordered to be given to him in high doses on Tuesdays and Thursdays, but the "medication was missing from time to time" causing Plaintiff to voice his grievance. Answer 2. Although he was told "the issue would be corrected," it stayed the same. Id. Plaintiff "finally had enough" on January 11, 2018, so he covered his "cell door window so that [he] could not be observed which is a serious security issue." Id.

         Plaintiff also alleges that medication has been interrupted when he moves to a new cell due to staff not informing medical of the cell change. Compl. at 4. He asserts that the burden of informing medical of cell changes is placed on the inmates. Id. He also alleges that cell-side distribution of medication results in outdated prescriptions and medical instructions. Id. at 5.

         Plaintiff commenced this civil action in February 2018. See Compl. He has identified five defendants: (1) Warden Steven Sperry; (2) Assistant Warden Jimmy S. Webb; (3) Assistant Warden Monte A. Griffin; (4) Robert Martin, M.D.; and (5) Physician's Assistant Toni Deer. See Docs. 13 and 15. He asserts claims under the ADA, RA, and the Eighth Amendment under the same set of facts. See Compl. at 3; Answers 2 and 3.

         Plaintiff alleges that Defendant Deer became involve in February 2018 when she expressed disagreement with ongoing monthly follow-up appointments scheduled by N.P. Gregory. Answer 5. Deer told Plaintiff that he was merely exposed to TB and was not infected and thus felt monthly scheduled appointments were unnecessary. Id. She stated she would cancel the appointments and call him for an appointment if there is a problem. Id. About a week later, when Deer examined Plaintiff for an unrelated issue, she expressed disagreement with a change in medication dosage plan ordered by Dr. Martin and stated she would change the medication back to Tuesdays and Thursdays. Id.

         Plaintiff sues Dr. Martin because he is "the unit's medical director" who "is responsible for all internal medical operations at the Robertson Unit." Answer 9. Although Dr. Martin exhibited some responsiveness to Plaintiffs concerns by changing his prescription in response to a grievance, Plaintiff contends that he remains "responsible for the events" leading to this litigation and "the grievances which put my health in serious jeopardy." Id.

         With respect to the three wardens, Plaintiff alleges that he informed them of the problems with his medications through letters dated January 11 and April 18, 2018. Answers 6, 7, and 8. He sues them because they are "ultimately responsible for all operations" at the unit. Id.

         Plaintiff addressed the letter of January 11, 2018, to the "Warden's Office" and explained events of that day, including an initial failure to receive TB medication, Plaintiff covering his door opening with a blanket, and Plaintiff ultimately receiving his medication in the afternoon. See Letter from Payne to Warden's Office of Jan. 11, 2018 (attached to Answers to MJQ). The letter also indicates that his "AM pill cup" was missing his TB medication on December 26, 2017, and January 2, 2018. See Id. The letter of April 18, 2018, was similarly addressed to "Warden's Office" and complained generally that "[t]here are several offenders on my section alone whose KOP pill packs are empty" and "nurses are not bringing our KOP medications to us when they bring non-KOP to us cell-side." See Letter from Payne to Warden's Office of Apr. 18, 2018 (same). At no point in that letter does Plaintiff complain of issues particular to him. See id.

         When asked to describe the physical injury, if any, that he sustained as a result of the alleged conduct of defendants, Plaintiff attempted "to use logic to answer" and stated that, based on his understanding of the disease as described by N.P. Gregory, he feared that missed medication "may have been enough to allow the bacteria to develop a resistance to the treatment and could have damaged [his] lungs to whatever extent that may be." See Answer 4.

         In his complaint, Plaintiff seeks injunctive relief to order defendants "to comply with the most effective treatment method to eradicate the tuberculosis bacteria from [his] body." Compl. at 4. He also seeks to recover costs, "possible attorney fees," and an unspecified award for damages. Id. However, he recently amended his requested relief to seek only nominal and punitive damages in this action. See PL's Mot. Leave Am. Compl. (doc. 29).

         Given these facts and background information, the Court now conducts the preliminary screening of this action as contemplated ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.