United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ORDER AND OPINION
D. LOVE, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant Blake Miles's
(“Defendant”) Motion for Summary Judgment (Doc.
No. 29). Plaintiff Clifton Dora (“Plaintiff”) was
ordered to file any response to Defendant's Motion by
June 3, 2019. (Doc. No. 32.) Plaintiff never submitted any
response by the deadline. Accordingly, the Court presumes
Plaintiff does not controvert the facts set out by Defendant
and has no evidence to offer in opposition to Defendant's
Motion. Local R. CV-7(d); see also Fed. R. Civ. P.
56(e)(2) (permitting a court to consider a fact undisputed
for purposes of summary judgment when a nonmovant fails to
properly address another party's assertion of fact).
Having considered Defendant's Motion (Doc. No. 29) and
the record before the Court, the Court
ORDERS that Defendant's Motion (Doc. No.
29) be GRANTED and that this case be
DISMISSED WITH PREJUDICE.
initiated the instant lawsuit on October 11, 2017, based upon
the prison mailbox rule, naming “Blake Henderson Co.
Jail” as Defendant. (Doc. No. 1.) In his Complaint,
Plaintiff claims he was taken to the hospital on September
23, 2017, due to pain in his lower back and left leg. (Doc.
No. 1, at 4.) Plaintiff claims that at the hospital he was
diagnosed with “a bone disease, arthritis & [a] bad
disc in [his] lower back.” (Doc. No. 1, at 4.)
Plaintiff alleges the hospital physician prescribed him
several medications. (Doc. No. 1, at 4.) In the grievance
form attached to his Complaint, Plaintiff indicates these
medications included “hydrocodone and Tylenol 3”
and a steroid medication. (Doc. No. 1-1, at 1-2.) Plaintiff
claims that he was given “gariopen” and Tylenol, but
“Blake” denied Plaintiff other medication. (Doc.
No. 1, at 3-4.) Defendant Blake Miles has filed an Answer in
response to these allegations. (Doc. No. 19.) On October 5,
2018, Defendant filed the instant Motion for Summary
Judgment. (Doc. No. 29.) Plaintiff was ordered to file any
response to Defendant's Motion no later than June 3,
2019, however, Plaintiff failed to file any response with the
Court. (Doc. No. 32.)
judgment is appropriate if no genuine issue of material fact
exists and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Cartrett, 477 U.S. 317, 323 (1986). A genuine dispute of
material fact exists if a reasonable jury could return a
verdict for the nonmoving party. Davis v. Ford Bend
County, 765 F.3d 480, 484 (5th Cir. 2014). The party
seeking summary judgment bears the initial responsibility to
demonstrate there is no genuine issue of material fact.
Id. (citing Celotex, 477 U.S. at 323). The
burden then shifts to the nonmoving party to go beyond the
pleadings and designate specific facts showing that there is
a genuine issue for trial. Id. (citing
Celotex, 477 U.S. at 324). The Court must consider
summary judgment proof in light most favorable to the
nonmovant. Id. However, “[a] party cannot
defeat summary judgment with conclusory allegations,
unsubstantiated assertions, or only a scintilla of
evidence.” Id. (internal quotations omitted).
Motion, Defendant argues: (1) he was not deliberately
indifferent to Plaintiff's serious medical needs in
violation of his Eighth Amendment right against cruel and
unusual punishment; and (2) Defendant is not liable in his
official capacity because he did not follow an
unconstitutional policy or custom of his employer that was a
moving force behind any harm that Plaintiff may have
suffered. (Doc. No. 29, at 5-9.) Plaintiff has not responded
to any of these arguments.
attaches to his Motion an affidavit of Blake Miles. (Doc. No.
29, Ex. 1.) Defendant was a nurse employed by Southern Health
Partners, which contracted with Henderson County to provide
healthcare services to inmates housed at Henderson County
Jail. Id. On September 23, 2017, Plaintiff was
transported to East Texas Medical Center-Athens for
complaints of pain in his legs. Id. That same day,
Plaintiff was diagnosed with a degenerative lumbar disc,
facet joint disease, and neuropathic radicular pain (left
lower extremity) and was discharged back to Henderson County
discharge, the hospital physician wrote Plaintiff a
prescription for prednisone (a steroid used to treat bone,
joint, and nerve inflammation), acetaminophen-codeine (a pain
reliver which contains an opioid), and gabapentin (a drug
used to treat nerve inflammation and pain). Id. Upon
Plaintiff's return to Henderson County Jail, a different
nurse contacted the jail doctor regarding the hospital orders
and the jail doctor only approved the prednisone and
gabapentin medication. Id. Plaintiff was already
receiving acetaminophen (without codeine) prior to his
hospital visit per the jail doctor's orders. Id.
nurse, Defendant lacked authority to prescribe Plaintiff
prescription medication and did not participate in the jail
doctor's decision to not administer codeine. Id.
Defendant administered Plaintiff's prescribed medications
at “pill call” in accordance with the jail
doctor's orders. Id. Subsequent to filing this
lawsuit, on January 14, 2018, Plaintiff fractured his jaw
while in the custody of Henderson County Jail. Id.
After this injury, the jail doctor prescribed tramadol, an
opioid analgesic similar to codeine, for Plaintiff's
pain. Id. Plaintiff began receiving tramadol on
January 17, 2018, in accordance with the jail doctor's
Eighth Amendment of the United States Constitution provides
that “cruel and unusual punishments” shall not be
inflicted. U.S. Const. amend. VIII. An Eighth Amendment
violation involves two prongs. First, the alleged violation
must be “sufficiently serious” to “result
in the denial of ‘the minimal civilized measure of
life's necessities.'” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). The second prong
limits Eighth Amendment violations only to the
“unnecessary and wanton infliction of pain.”
Id. (quoting Wilson v. Seiter, 501 U.S.
294, 297 (1991)). To satisfy the second prong, a prison
official must act with “‘deliberate
indifference' to inmate health or safety.”
Id. Deliberate indifference requires that “the
official knows of and disregards an excessive risk to inmate
health or safety.” Id. at 837. “[T]he
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. Deliberate indifference towards an inmate's
serious medical needs may be the basis for an Eighth
Amendment violation. “A serious medical need is one for
which treatment has been recommended or for which the need is
so apparent that even laymen would recognize that care is
required.” Gobert v. Caldwell, 463 F.3d 339,
345 n.12 (5th Cir. 2006).
the record before the Court fails to show any that any
reasonable jury could find that Plaintiff's Eighth
Amendment rights were violated. A jail doctor may exercise
his medical judgment to discontinue the use of narcotic pain
medication-which had been prescribed by hospital doctors-and
to, instead, substitute different pain medication that is not
a narcotic. James v. UTMB Med. Ctr., No.
6:09-CV-489, 2010 WL 3429583, at *3 (E.D. Tex. Aug. 27, 2010)
(citing Williams v. Bearry, 273 F.3d 1096, 2001 WL
1085197, at *3 (5th Cir. 2001) (unpublished))
(“Similarly, a unit doctor's decision to
discontinue the use of narcotic pain medication, which had
been recommended by hospital doctors, and to substitute
NSAIDs in the place of narcotic pain medication does not
amount to deliberate indifference.”).
instant case, the jail doctor concurred with the hospital
doctor and ordered Plaintiff be administered prednisone,
acetaminophen, and gabapentin to alleviate Plaintiff's
pain. The jail doctor, however, declined to administer
Plaintiff codeine, an opioid. When Plaintiff suffered
additional injuries several months later, the jail doctor
prescribed tramadol, an opioid, for Plaintiff's pain. The
record fails to show that the jail doctor's ...