United States District Court, S.D. Texas, Corpus Christi Division
ORDER ON PENDING MOTIONS
JANICE ELLINGTON UNITED STATES MAGISTRATE JUDGE.
Raul Gonzalez, proceeding pro se and in forma
pauperis, is an inmate incarcerated at the Stiles Unit
of the Texas Department of Criminal Justice, Criminal
Institutions Division (“TDCJ”) in Beeville,
Texas. Pending before the Court are Plaintiff's Motion to
Proceed In Forma Pauperis (IFP) (D.E. 64-1), Motions
to Amend Complaint (D.E. 53, 64-2), and Motions for
Appointment of Counsel (D.E. 59, 64-3).
allegations and claims in this case arise in connection with
his previous assignment to the Garza East Unit in Beeville,
Texas. In July 2018, Plaintiff filed a complaint against Dr.
Julianna Lindsey and three other individuals in their
individual capacities. (D.E. 1 at 1-10). Specifically as to
Dr. Lindsey, the Medical Director at the Christus Spohn
Hospital, Plaintiff alleged that she was deliberately
indifferent to his serious medical needs because she
improperly handled lumbar cultures and allowed his release
from the hospital while he still needed emergency care.
(Id. at 7, 9). He alleged that he was placed on life
support less than 48 hours after Dr. Lindsey chose to release
him from the hospital. (Id. at 9). Based on these
actions, Plaintiff claimed that Dr. Lindsey violated his
Eighth Amendment rights. (Id.).
October 31, 2018, the undersigned ordered service of
Plaintiff's complaint on each of the four named
Defendants. (D.E. 16). On April 25, 2019, the undersigned
issued a Memorandum and Recommendation (M&R),
recommending in pertinent part that Plaintiff's Eighth
Amendment claims of deliberate indifference against Dr.
Lindsey be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim for relief. (D.E. 36). On August
27, 2019, Senior District Judge Hilda G. Tagle adopted the
M&R and dismissed Plaintiff's claims against Dr.
Lindsey. (D.E. 48).
Motion to Proceed IFP
October 7, 2019, the Court received Plaintiff's Notice of
Appeal, in which he seeks to appeal from the portion of the
August 27, 2019 Order dismissing Plaintiff's claims
against Dr. Lindsey. (D.E. 52). The Court subsequently
received Plaintiff's application to proceed IFP on
appeal, (D.E. 64-1). In order to properly apply to proceed
IFP on appeal, Plaintiff must also submit a certified copy of
his trust account statement. 28 U.S.C. § 1915(a)(2). As
set forth below, the undersigned will allow an opportunity
Plaintiff to file this information.
Motions to Amend Complaint
moves to amend his complaint so that he may show that Dr.
Lindsey violated his constitutional rights during his stay at
the hospital. (D.E. 53, 64-2). Plaintiff' motions are
denied because he did not attach a proposed amended complaint
to either motion. In an Order entered on October 2, 2018,
Plaintiff was instructed that a complete amended complaint
must be attached to any motion to amend. (D.E. 11, ¶ 7).
Plaintiff's motions to amend had complied with the
October 2, 2018 Order, they are without merit. Federal Rule
of Civil Procedure 15(a) provides that leave to amend
“shall be freely given when justice so requires.”
Determining when justice requires permission to amend rests
within the discretion of the trial court. Zenith Radio
Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971); Smith v. EMC Corp., 393 F.3d 590, 595 (5th
federal court has discretion to deny a motion to amend when
that amendment would be futile. Foman v. Davis, 371
U.S. 178, 182 (1962); Martin's Herend Imports, Inc.
v. Diamond & Gem Trading U.S. Am. Co., 195 F.3d 765,
771 (5th Cir. 1999). “An amendment is futile if it
would fail to state a claim upon which relief could be
granted.” Stripling v. Jordan Prod. Co., 234
F.3d 863, 873 (5th Cir. 2000). Plaintiff provides no specific
facts in his motions to indicate that Dr. Lindsey acted with
the requisite deliberate indifference to Plaintiff's
serious medical needs. Accordingly, Plaintiff's Motions
to Amend Complaint (D.E. 53, 64-2) are denied.
Motions for Appointment of Counsel
undersigned has previously denied Plaintiff's two motions
seeking appointment of counsel as premature because they were
filed before the screening process had been completed. (D.E.
12, 14). Following screening, Plaintiff again sought the
appointment of counsel to assist him in litigating his claims
in this case. (D.E. 17). The undersigned denied this motion
on October 28, 2018. (D.E. 19). Plaintiff has now filed his
fourth and fifth motions for appointment of ...