Gonzalez v. Mercado

NORTHERN □□ TEXAS

IN THE UNITED STATES DISTRICT [COUR

NORTHERN DISTRICT OF TEXA JAN 21 2020

FORT WORTH DIVISION

CLERK, U.S. DISTRICT COURT

MARIO GONZALEZ, § BY gr

§

Plaintiff, §

§

VS. § NO. 4:19-CV-694-A

§

SERGIO MERCADO, ET AL.,

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Came on for consideration the motion of defendant Sergio

Mercado (“Mercado”) to dismiss. Plaintiff, Mario Gonzalez, has

failed to respond to the motion, which is ripe for ruling. The

court, having considered the motion, the record, and applicable

authorities, finds that the motion should be granted.

I.

Plaintiff's Claims

On September 3, 2019, plaintiff filed his complaint in this

action. Doc.’ 1. By order signed September 5, 2019, the court

ordered plaintiff to file an amended complaint, in particular, to

set out the facts to show that Mercado was deliberately

indifferent to plaintiff’s medical needs. Doc. 7 at 3. On

September 27, 2019, plaintiff filed a document titled “Amended

'The “Doc. _” reference is to the number of the item on the docket in this action

Complaint,” Doc. 8, which the court interpreted as a supplemental

complaint. Doc. 9 at 1, n.1.

Plaintiff complains that he was transferred to FMC Fort

Worth for treatment of his renal kidney failure, but that

Mercado, a doctor, failed to treat him for a period of or around

six months, causing his disease to progress from stage 3 to stage

5 with the consequence that plaintiff will be on dialysis the

remainder of his life. He asserts a tort claim against United

States and a Bivens’? claim against Mercado.?

TT,

Grounds of the Motion

Mercado seeks dismissal of plaintiff‘’s claims against him

for failure of plaintiff to plead facts sufficient to show

deliberate indifference to plaintiff's serious medical needs,

And, Mercado says he is entitled to qualified immunity. He also

argues that plaintiff has failed to state a claim under the Fifth

or Fourteenth Amendments.

*Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

*The court does not interpret plaintiff's complaint to assert claims against Mercado in his official

capacity. But, as Mercado notes, Doc. 19 at 1, n.1, official capacity claims are deemed to be claims

against the United States itself. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Plaintiff is asserting a

tort claim against United States, based at least in part on the alleged conduct of Mercado.

III.

Applicable Legal Principles

A. Pleading Standards

Rule 8(a) (2) of the Federal Rules of Civil Procedure

provides, in a general way, the applicable standard of pleading.

Ib requires that a complaint contain "a short and plain statement

of the claim showing that the pleader is entitled to relief,"

Fed. R. Civ. P. 8(a){2), “in order to give the defendant fair

notice of what the claim is and the grounds upon which it rests,”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and ellipsis omitted). Although a complaint need

not contain detailed factual allegations, the "showing"

contemplated by Rule 8 requires the plaintiff to do more than

simply allege legal conclusions or recite the elements of a cause

of action. Twombly, 550 U.S. at 555 &n.3. Thus, while a court

must accept all of the factual allegations in the complaint as

true, it need not credit bare legal conclusions that are

unsupported by any factual underpinnings. See Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009) ("While legal conclusions can provide

the framework of a complaint, they must be supported by factual

allegations.").

Moreover, to survive a motion to dismiss for failure to

state a claim, the facts pleaded must allow the court to infer

,

that the plaintiff's right to relief is plausible. Iqbal, 556

U.S. at 678. To allege a plausible right to relief, the facts

pieaded must suggest liability; allegations that are merely

consistent with unlawful conduct are insufficient. Id. In other

words, where the facts pleaded do no more than permit the court

to infer the possibility of misconduct, the complaint has not

shown that the pleader is entitled to relief. Id. at 679.

"Determining whether a complaint states a plausible claim for

relief . . . [is] a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense." Id.

As the Fifth Circuit has explained: “Where the complaint is

devoid of facts that would put the defendant on notice as to what

conduct supports the claims, the complaint fails to satisfy the

requirement of notice pleading.” Anderson v. U.S. Dep’t of

Housing & Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008}. In sum,

‘a complaint must do more than name laws that may have been

violated by the defendant; it must also allege facts regarding

what conduct violated those laws. In other words, a complaint

must put the defendant on notice as to what conduct is being

called for defense in a court of law." Id. at 528-29, Further,

the complaint must specify the acts of the defendants

individually, not collectively, to meet the pleading standards of

Rule 8(a}. See Griggs v. State Farm Lloyds, 181 F.3d 694, 699

(Sth Cir. 1999); see also Searcy v. Knight (In re Am. Int’

Refinery), 402 B.R, 728, 738 (Bankr. W.D. La. 2008).

In considering a motion to dismiss for failure to state a

claim, the court may consider documénts attached to the motion if

they are referred to in the plaintiff’s complaint and are central

to the plaintiff's claims. Scanlan v. Tex. A&M Univ., 343 F.3d

533, 536 (5th Cir. 2003). The court may also refer to matters of

public record. Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir.

1995}; Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (Sth Cir. 1994).

This includes taking notice of pending judicial proceedings.

Patterson v, Mobil Oil Corp., 335 F.3d 476, 481 n.1 (5th Cir.

2003). And, it includes taking notice of governmental websites.

Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (Sth Cir.

2005); Coleman v. Dretke, 409 F.3d 665, 667 {5th Cir. 2005).

B. Qualified Immunity

Qualified immunity insulates a government official from

civil damages liability when the official's actions do not

"violate clearly established statutory or constitutional rights

of which a reasonable person would have known." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be "clearly

established," the right's contours must be "sufficiently clear

that a reasonable official would understand that what he is doing

violates that right." Anderson v. Creighton, 483 U.S. 635, 640

(1987). Individual liability thus turns on the objective legal

reasonableness of the defendant's actions assessed in light of

clearly established law at the time. Hunter v. Bryant, 502 U.S.

224, 228 (1991); Anderson, 483 U.S. at 639-40, in Harlow, the

court explained that a key question is “whether that law was

clearly established at the time an action occurred” because “[i]lf

the law at that time was not clearly established, an official

could not reasonably be expected to anticipate subsequent legal

developments, nor could he fairly be said to 'know' that the law

forbade conduct not previously identified as unlawful.” 457 U.S.

at 818. In assessing whether the law was clearly established at

the time, the court is to consider all relevant legal authority,

whether cited by the parties or not. Elder v. Holloway, 510-U.S.

510, 512 (1994). Ef public officials of reasonable competence

could differ on the lawfulness of defendant's actions, the

defendant is entitled to qualified immunity. Malley v. Briggs,

475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d

1268, 1273 (5th Cir. 1992). "[Aln allegation of malice is not

sufficient to defeat immunity if the defendant acted in an

objectively reasonable manner." Malley, 475 U.S. at 341.

In analyzing whether an individual defendant is entitled to

qualified immunity, the court considers whether plaintiff has

alleged any violation of a clearly established right, and, if so,

whether the individual defendant's conduct was objectively

reasonable. Siegert v. Gilley, 500 U.S. 226, 231 (1991); Duckett

v, City of Cedar Park, 950 F.2d 272, 276-80 (Sth Cir. 1992}. In

so doing, the court should not assume that plaintiff has stated a

claim, i.e., asserted a violation of a constitutional right.

Stegert, 500 U.S. at 232, Rather, the court must be certain

that, if the facts alleged by plaintiff are true, a violation has

clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212

(5th Cir. 1989). A mistake in judgment does not cause an officer

to lose his qualified immunity defense. In Hunter, the Supreme

Court explained:

The qualified immunity standard "gives ample room for

Mistaken judgments" by protecting "all but the plainly

incompetent or those who knowingly violate the law."

Malley, [475 U.S.] at 343. . .,. . This accommodation for

reasonable error exists because "officiais should not err

always on the side of caution" because they fear being sued.

502 U.S. at 229.

When a defendant relies on qualified immunity, the burden is

on the plaintiff to negate the defense. Kovacic v. Villarreal,

628 F.3d 209, 211 (Sth Cir. 2010); Foster v. City of Lake

Jackson, 28 F.3d 425, 428 (5th Cir. 1994). Although Supreme Court

precedent does not require a case directly on point, existing

precedent must place the statutory or constitutional question

beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). That

is, the clearly established law upon which plaintiff relies

should not be defined at a high level of generality, but must be

particularized to the facts of the case. Id. at 552. Thus, the

failure to identify a case where an officer acting under similar

circumstances was held to have violated a plaintiff's rights will

most likely defeat the plaintiff’s ability to overcome a

qualified immunity defense. Id.; Surratt v McClarin, 851 F.3d

389, 392 (Sth Cir. 2047).

IV.

Analysis

To state a claim against Mercado, plaintiff must allege acts

or omissions on Mercado’s part sufficiently harmful to evidence

deliberate indifference to serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 106 (1976). That is, he must allege Ehat

Mercado both knew of and disregarded an excessive risk to

plaintiff's health and safety. Farmer v. Brennan, 511 U.S. 825,

837 (1994), The analysis requires an inquiry into Mercado’s state

of mind. Id. at 838. “Deliberate indifference encompasses only

unnecessary and wanton infliction of pain repugnant to the

conscience of mankind.” McCormick v. Stalder, 105 F.3d 1059, 1061

{5th Cir. 1997} (citing Estelle, 429 U.S. at 105-06). The standard

to prevail at trial is extremely high, requiring evidence of

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egregious intentional conduct. Gobert v. Caldwell, 463 F.3d 339,

346, 351 (Sth Cir. 2006). Mercado must have “refused Co treat

[plaintiffi, ignored his complaints, intentionally treated him

incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.” Id. at

346. See Estelle, 429 U.S. at 104 n.10 {citing cases o£

deliberate indifference by prison doctors). To proceed with his

claims, he must do more than just allege negligence. See Siegert,

500 U.S. at 231.

Here, plaintiff has not pleaded any facts to state a claim

against Mercado. He attached to his original complaint a letter

regarding his tort claim in which he stated that after his

initial assessment by Mercado, he attended sick call twice and

did not receive treatment.* Doc. 1 Page ID 7. The documents

attached to plaintiff's supplemental complaint show that as of

March 19, 2018, plaintiff was at a facility in Beaumont awaiting

transfer to a medical facility. Doc. 8 at PageID° 48. Plaintiff

had been diagnosed with chronic kidney disease stage 3. Id.

PageID 49. On April 16, 2018, plaintiff was seen by Charles

Hilert, D.O., at FMC Fort Worth. Id. PageID 53. He was scheduled

“The medical records plaintiff has provided do not support this allegation.

*The “PageID__” reference is to the page number assigned by the court’s electronic filing system

and is used because plaintiff did not number the pages he attached.

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for an in-house nephrology evaluation and ultrasound. Id. PageID

55. On July 24, 2018, plaintiff was seen for muscle cramping and

relayed that he had stopped taking his hypertension medication.

Id. PageID 58. The provider, a nurse practitioner, noted that

piaintiff’s labs were stable and that he had been seen by the

nephrologist for chronic kidney disease. Id. The provider

discussed with plaintiff the need to take his hypertension

medication as directed to keep his kidney function from getting

worse. Id. PageID 59. Mercado saw and cosigned the notes the same

day. Id. On October 1, 2018, plaintiff's routine labs reflected

an abnormal result. Id. PageID 69. Within two hours, Mercado sent

plaintiff te a local hospital for evaluation. Id. PageID 61-62.

At that point, “Mercado began to properly treat [plaintiff's]

medical illness.” Doc, 1 at PageID 5.

The medical records provided by plaintiff himself belie the

contention that he was not seen or treated for a period of six

months after arriving at FMC Fort Worth. Nothing in the documents

gives any support to the contention that Mercado was deliberately

indifferent to a serious medical need of plaintiff. Rather, the

records show, at the very least, that plaintiff had labs drawn in

April, July, and October, and that he was immediately sent to a

local hospital when his October labs revealed an abnormal result.

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To the extent plaintiff refers to violations by Mercado of

the Fifth and Fourteenth Amendments, he has not stated a claim.

See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (the court will

not lightly expand the Bivens remedy). And, plaintiff cannot

pursue a claim under the Fourteenth Amendment as Mercado is not a

state actor. McGuire v. Turnbo, 137 F.3d 321, 323 (5th Cir.

1998}.

. Vv.

Order

The court ORDERS that Mercado’s motion to dismiss be, and is

hereby, granted and that plaintiff's claims against Mercado be,

and are hereby, dismissed.

The court determines that there is no just reason for delay

in, and hereby directs, entry of final judgment as to the

dismissal of plaintiff's claims against Mercado.

SIGNED January 21, 2020.

j / My /

Z, o ge

JOH RYDE

Unifed States Distifict Judge

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