The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
FIDEL SALAZAR, §
Institutional ID No. 1506617, §
Plaintiff,
CIVIL ACTION NO. 5:19-CV-124-C
U.T.M.B, C.M.C, et al., :
Defendants. :
ORDER ACCEPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation
in this case. Plaintiff filed a motion for an extension of time to file his objections (Doc. 35),
which the Court will grant. The Court accepts the late filing of Plaintiff's objections (Doc. 38)
and considers them herein. The District Court made an independent examination of the record in
this case and conducted a de novo review of the relevant portions of the Magistrate Judge’s
Report and Recommendation. As explained below, Plaintiff's objections are OVERRULED,
and the Court ACCEPTS and ADOPTS the Findings, Conclusions, and Recommendation of the
United States Magistrate Judge.
IL.BACKGROUND
Plaintiff Fidel Salazar, a Texas state prisoner proceeding pro se and in forma pauperis
filed this civil rights action pursuant to 42 U.S.C. § 1983 for denial of his preferred course of
treatment for his chronic Hepatitis C. The Magistrate Judge thoroughly explained the facts,
claims, and parties to this suit, so the Court will not recite them fully here. Instead, the Court
summarizes Plaintiff's claims and the Magistrate Judge’s findings to the extent necessary to
address Plaintiff's objections. The Court accepts Plaintiff's factual allegations as true, as it must
at this stage of the case.
A. Plaintiff's Claims
Plaintiff makes three types of claims against various named and unnamed Defendants:
policy claims, individual claims of deliberate indifference, and implied claims under the
Americans with Disabilities Act (ADA) and Rehabilitation Act of 1973 (RA). First, Plaintiff
asserts that prison officials implemented and acted on an unconstitutional policy to deny the
proper treatment for his disease based on cost rather than prevailing medical standards in
violation of his Eighth Amendment rights. Then, he claims that individual providers were
deliberately indifferent to his serious medical needs by intentionally treating him incorrectly or
refusing to treat him properly. Finally, he suggests that Defendants have failed to reasonably
accommodate his Hepatitis C condition and have denied him services such as adequate medical
care.
Primarily, Plaintiff complains that Defendants have chosen a course of monitoring
instead of prescribing new direct-acting antiviral (DAA) medication. He acknowledges
throughout his filings that his symptoms and laboratory test results are monitored regularly. He
disagrees with the methods used by Defendants to monitor his condition, which include regularly
scheduled appointments and lab tests. He objects to their reliance on one lab test in
particular—his APRI score—instead of performing additional testing like liver biopsies and
sonogram-type imaging of his liver. His providers have repeatedly told him that based on his
consistently low APRI scores, he does not qualify for further treatment at this time. So, they
recommend a course of continued monitoring. He complains that monitoring alone is not
treatment, so he concludes that his providers have refused to treat him because they will not give
him the medication he has requested.
B. The Magistrate Judge’s Findings, Conclusions, and Recommendations
The Magistrate Judge recommended that one of Plaintiff's claims should go forward at
this stage. Specifically, the Magistrate Judge recommended that unnamed members of the
CMHCC! should be ordered to answer or otherwise respond to Plaintiff's claim that they
implemented an unconstitutional policy to deny proper medical treatment to prisoners with
Hepatitis C.
The Magistrate Judge recommended that the rest of Plaintiff's claims should be
dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B). Specifically, the Magistrate Judge
found that (1) Defendant UTMB-CMC is not a proper defendant under § 1983 because it is
immune from suit under the Eleventh Amendment; (2) Plaintiff has failed to plead facts to show
that Defendants Sandoval, Parmenter, and “Formby [Unit] Medical Admin[istrators] have any
policy-making authority, but rather pleaded that they simply followed the policy implemented by
the CMHCC; (3) Plaintiff failed to state a claim for deliberate indifference to his serious medical
needs against Defendants Sandoval and Parmer, and also failed to state a deliberate-indifference
claim against any of the unnamed defendants; and (4) to the extent Plaintiff intended to assert
claims under the ADA and the RA, he has failed to do more than restate his claim for medical
denial, which is insufficient. Thus, the Magistrate Judge concluded that Plaintiff had failed to
state a claim for which relief may be granted and recommended that the above claims be
dismissed with prejudice.
The Magistrate Judge determined that the “unknown defendants” in Plaintiff's complaint were members of the
Correctional Managed Health Care Committee—a statutorily created committee responsible for developing,
implementing, and monitoring the correctional managed health care services for offenders in the Texas Department
of Criminal Justice.
IL.PLAINTIFF’S OBJECTIONS
Plaintiff first objects that the Magistrate Judge did not include in his analysis any
reference to Plaintiff's mental health as it relates to his ability to communicate with the Court
and understand the Court proceedings.’ But the Magistrate Judge afforded Plaintiff liberal
construction and the more lenient standard used for pro se filings. See Doc. 28 at 3, 5. In doing
so, the Magistrate Judge found that Plaintiff had pleaded enough facts that one of his claims
should proceed.
A. Individual Deliberate Indifference Claims
Plaintiff also objects to the Magistrate Judge’s conclusion that he has failed to state a
claim for deliberate indifference against his individual providers and unnamed defendants.
He provides pages of general information about the risks associated with chronic Hepatitis C,
and his fear that his disease will worsen if he does not get the DAA medication. See Doc. 38 at
4-8. He argues, then that Hepatitis C is a serious medical need, and that Defendants disregarded
a substantial risk to his health by failing to give him DAA medication. But he acknowledges
that “you can’t predict the rate of the Hep C progression,” and that his condition is being
monitored regularly for signs that it is worsening. He fails to provide any additional facts about
the symptoms he has personally experienced—he relists symptoms such as headaches,
abdominal pain, skin conditions, brain fog, and muscle weakness. Jd. at 9. And, based in part on
counseling he received about his disease from the Defendant providers, he restates his fear about
possible symptoms that could occur, should his disease progress. In sum, he complains that
because of the Defendants’ policies, he will not be considered for his preferred treatment until he
suffers more serious symptoms. Jd. As explained in the Magistrate Judge’s analysis, Plaintiff's
? Plaintiff has also requested court-appointed counsel, which the Court denied by separate order.
disagreement with the treatment decisions of individual Defendant medical providers does not
state aclaim. This objection is overruled.
Later in his objections, though, Plaintiff changes course and claims that Defendants “all
said, ‘we agree you should get the DAA meds but we just follow policy.’” Doc. 38 at 12. This
claim contradicts, without explanation, Plaintiff's repeated assertions that Defendants have
consistently explained that his low APRI scores do not warrant further treatment. See Doc. 26
at +12, 15, 18 (“But I can say that medical personnel have always told me I do not qualify for
the new DAA treatment due to my low APRI scores”); Doc. 32 at 2 (explaining that he was told
his APRI score is lower than what is required for a referral, and that his providers will
recommend treatment when it is appropriate); see also Doc. 1 at 8.
The Court notes that Plaintiff did not include a declaration under penalty of perjury with
his objections. Thus, the Court does not credit this new inconsistent claim over his answers to
the questionnaire (Doc. 26), which were declared under penalty of perjury. However, even if the
Court gave this statement the weight of an unsworn declaration or affidavit, conclusory, self-
serving affidavits are insufficient to create a fact issue when they contradict prior testimony.
Vincent y. Coll. of the Mainland, 703 F. App’x 233, 238 (5th Cir. 2017) (citing Albertson v. T.J.
Stevenson & Co., 749 F.2d 223, 228 (Sth Cir. 1984); Acker v. Gen. Motors, L.L.C., 853 F.3d 784,
789 (5th Cir. 2017)). Taken as a whole, Plaintiff's pleadings show that he disagrees with the
Defendant medical providers’ reliance on his APRI scores to make treatment decisions. Aside
from his single statement to the contrary, nothing in Plaintiff's pleadings or the records before
the Court indicate that Defendants determined that he “should get the DAA medf[ication],” but
refused to prescribe it anyway. On the contrary, it is clear that the providers explained over and
over again that his condition did not warrant further treatment.
Plaintiff disagrees with the treatment decisions made by Defendants, but he has not
established that that-any of the individual Defendants intentionally treated him incorrectly or
were otherwise deliberately indifferent to his serious medical needs. Thus, the Magistrate
Judge was correct to recommend that these claims be dismissed for failure to state a claim.
Plaintiffs objection to this portion of the Magistrate Judge’s Report and Recommendation are
overruled.
B. ADA and RA Claims
Plaintiff also clarifies that he does intend to raise a claim under the ADA and RA, and he
objects to the Magistrate Judge’s conclusion that he has failed to state such a claim. He urges
the Court to find that his chronic Hepatitis C is a qualifying disability, that the Defendants have
failed to reasonably accommodate that disability by giving him the treatment he wants, and that
Defendants denied him participation in services—specifically, adequate medical care. Even
though he attempts to reframe his claims to fit the terms of the ADA and RA, Plaintiffs only
restates his claim that he was improperly denied his preferred medical treatment. The
Magistrate Judge properly recommended dismissal of this claim, See Walls v. Texas Dep't of
Crim. Justice, 270 F. App’x 358, 359 (5th Cir. 2008). Plaintiff's objections to the Magistrate
Judge’s conclusion that he failed to state a claim under the ADA and RA are overruled.
Remaining Objections
Many of Plaintiff's objections simply restate, in longer form, his original claims without
addressing the Magistrate Judge’s findings. Some of Plaintiff's objections just quote sections of
the Magistrate Judge’s Report without stating the basis for Plaintiff's objections. For example,
Plaintiff objects to the Magistrate Judge’s finding that UTMB-CMC is immune from suit under
the Eleventh Amendment, and that likewise all official capacity claims should be dismissed
because they are immune from suit for the same reason. The Court has conducted a thorough, de
novo review of all the relevant portions of the record and finds that the Magistrate Judge’s
Report is correct. All of Plaintiff's remaining objections are overruled.
IIl.CONCLUSION
For the reasons discussed above, the Court ACCEPTS and ADOPTS the Findings,
Conclusions, and Recommendation of the Magistrate Judge.
IT IS THEREFORE ORDERED that
1) Plaintiff's claims against UTMB-CMC, and against Michael Parmer, Melonie
Sandoval, and J. Parmenter in their official and individual capacities are
DISMISSED with prejudice under 28 U.S.C. § 1915.
2) Plaintiff's claims under the ADA and RA are DISMISSED with prejudice under
26 U5, § 1915.
3) There is no just reason for delay in entering a final judgment and final judgment
shall be entered as to the above-named Defendants and claims pursuant to Federal
Rule of Civil Procedure 54(b).
4) Plaintiff's claims against unknown committee members of the CMHCC for
implementing an unconstitutional Hepatitis C treatment policy will proceed with
service of process as follows:
The Clerk shall transmit to the Attorney General a copy of this Order, together
with a copy of Plaintiff's Complaint (Doc. 1), Plaintiff's answers to the
Questionnaire (Doc. 26), and the Magistrate Judge’s Report and Recommendation
(Doc. 28). The documents shall be transmitted by email to the appropriate email
addresses at the Office of the Attorney General for the State of Texas. See Fed.
R. Civ. P. 5(b)(2)(E).
The Attorney General shall:
a. within twenty (20) days of the date of service, identify the
individual committee members on the CMHCC responsible for
creating, adopting, and/or modifying the current TDCJ Hepatitis C
treatment policy; and
ti within thirty (30) days from the date of service, file an answer or
other responsive pleading on behalf of those individuals.
SO ORDERED.
Dated September As , 2020. -
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\ S RC INGS
~Sertior Unifed States District Judge