United States District Court, N.D. Texas, Abilene Division
MEMORANDUM OPINION AND ORDER
SCOTT FROST, UNITED STATES MAGISTRATE JUDGE.
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).
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
these facts and background information, the Court now
conducts the preliminary screening of this action as