Teixeira v. Wainwright

UNITED STATES DISTRICT COURT September 05, 2019

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

CORPUS CHRISTI DIVISION

LUKE C. TEIXEIRA, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 2:19-CV-177

§

DALE WAINWRIGHT, et al, §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

TO DISMISS CERTAIN CLAIMS AND TO RETAIN CASE

Plaintiff Luke C. Teixiera is a Texas inmate appearing pro se and in forma

pauperis. He filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff’s case is subject to screening pursuant to the Prison Litigation Reform Act. See

42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. For purposes of screening,

Plaintiff has stated deliberate indifference and retaliation claims against DR. ISAAC

KWARTENG in his individual capacity. It is respectfully recommended further that the

Court EXERCISE supplemental jurisdiction over Plaintiff’s state law negligence claim

against DR. ISAAC KWARTENG in his individual capacity. Accordingly, it is

respectfully recommended that these federal and state law claims against him be

RETAINED. The undersigned will order service on this defendant.

The undersigned further recommends that: (1) Plaintiff’s claims for money

damages against DALE WAINWRIGHT, LORIE DAVIS, and DONNA

SOLLENBERGER in their official capacities be DISMISSED as barred by the

Eleventh Amendment; (2) the Court DECLINE to exercise supplemental jurisdiction

over Plaintiff’s state law negligence claims against TONYA LAWSON AND THE

STEP II GRIEVANCE COORDINATOR; and (3) Plaintiff’s claims against the

remaining Defendants be DISMISSED for failure to state a claim and/or as frivolous

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).

I. JURISDICTION

The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This

case has been referred to the undersigned magistrate judge for case management and

making recommendations on dispositive motions pursuant to 28 U.S.C. § 636.

II. PROCEDURAL BACKGROUND AND PLAINTIFF’S ALLEGATIONS

Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal

Institutions Division (TDCJ-CID). Plaintiff was convicted of two aggravated sexual

assault convictions in Gregg County and was sentenced on October 9, 2001 to two life

sentences. Plaintiff’s claims in this lawsuit occurred in connection with his current

assignment to the McConnell Unit in Beeville, Texas.

On June 24, 2019, Plaintiff filed his original complaint, naming the following

officials as defendants: (1) Dale Wainwright, TDCJ Chair; (2) Lorie Davis, TDCJ

Director; (3) Donna Sollenberger, Vice President of the CMCH-UTMB; (4) Registered

Nurse (RN) Tanya Lawson, Unit Practice Manager; (5) Step II Grievance Coordinator;

and (6) Dr. Isaac Kwarteng. Plaintiff sues Defendants Wainwright, Davis, and

Sollenberger in their official capacities and Defendants Lawson, Step II Grievance

Coordinator, and Kwarteng in their individual capacities. Plaintiff claims that

Defendants acted with deliberate indifference to his health and safety and that he has

been subjected to retaliation. He also asserts state law claims of negligence. Plaintiff

seeks declaratory, injunctive, and monetary relief.

A Spears1 hearing was conducted on July 9, 2019. The following representations

were made either at the Spears hearing or in Plaintiff’s original complaint (D.E. 1):

Plaintiff is 48 years old, stands 6’2”, and weighs 245 pounds. In December 2017, while

housed at the Wynne Unit, Plaintiff broke multiple bones in his left foot. Plaintiff

received medical treatment for this injury. Plaintiff also suffers from osteopenia, which

is a low calcium deficiency and leaves him susceptible to bone fractures.

Due to the injury sustained in December 2017, Plaintiff walked with the assistance

of a medical fracture boot and a cane. On October 22, 2018, Plaintiff’s tibia and fibula

were x-rayed. No x-rays were taken of Plaintiff’s foot at that time. On November 9,

2018, Plaintiff visited the medical department to discuss his work restrictions. Dr. Goyel

noted that Plaintiff had no fracture in his foot but that he had been diagnosed with

osteopenia. Plaintiff asked Dr. Goyel to remove his work restrictions as Plaintiff wanted

to get a certain maintenance job. After reviewing the x-rays and advising Plaintiff about

putting too much weight on his foot, Dr. Goyel agreed to remove Plaintiff’s work

restrictions. Dr. Goyel further changed Plaintiff’s temporary bottom bunk/bottom row

restrictions to permanent restrictions due to the nature of Plaintiff’s injury. Plaintiff did

1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996) (stating

that testimony given at a Spears hearing is incorporated into the pleadings).

not receive a maintenance job. Plaintiff states he previously had a bottom bunk

restriction due to his back problems which began before he hurt his foot.

On or about February 22, 2019, Plaintiff received a notice from the clinic that Dr.

Kwarteng had removed Plaintiff’s bottom bunk/ bottom row restrictions because Plaintiff

had asked for his work restrictions to be removed on November 9, 2018. Dr. Kwarteng

determined that continuance of the bottom-bunk/bottom restrictions was inconsistent with

the removal of work restrictions so that Plaintiff could work in maintenance. Dr.

Kwarteng further based his decision on a chart review and not on an actual examination.

Dr. Kwarteng’s chart review did not consider Plaintiff’s original reason for a bottom-

bunk restriction and was based on the October 22, 2018 x-rays that did not include an

adequate view of Plaintiff’s foot. When the restriction was removed, Plaintiff was still

using the medical fracture boot and cane.

TDCJ/UTMB Policy 8.4 allows a provider to remove a medical restriction, no

matter which provider assigned it, with only a chart review. This policy further

authorizes that physical examination to the be conducted if the offender challenges the

removal of a restriction.

After receiving his notice to remove his bottom bunk/bottom row restrictions,

Plaintiff immediately wrote Defendants Lawson, Davis, Wainwright, and Sollenberger.

Plaintiff informed them of what had happened to him and how Policy 8.4 was abused and

in fact unconstitutional. Only Defendant Lawson responded on April 19, 2019, by stating

that Dr. Kwarteng was authorized to conduct the review. She further informed Plaintiff

that, if he was healthy enough to work in maintenance, he did not need a bottom bunk

restriction. Lastly, she informed Plaintiff that the bottom-bunk restriction was not a

stand-alone restriction. Plaintiff believes that work restrictions are separate and distinct

from housing restrictions.

On February 22, 2019, Plaintiff requested an evaluation to contest Dr. Kwarteng’s

removal of his housing restrictions. Medical Provider Echavarry saw Plaintiff on

February 27, 2019, but refused to examine Plaintiff. The next day, Plaintiff put in

another request to be evaluated. Plaintiff was scheduled to see a provider on March 7,

2019. That same day, Plaintiff was transferred on a temporary basis to the TDCJ

Darrington Unit in Rosharon, Texas. Plaintiff, while still in a medical fracture boot, was

required to sleep in an upper bunk.

On March 8, 2019, Plaintiff climbed down from the top bunk and experienced

excruciating pain. Plaintiff’s foot became swollen. He asked for medical attention and

was told to wait until he arrived at the next unit. Plaintiff arrived at the Walls Unit later

that day on March 8, 2019. The medical department at the Walls Unit refused to see

Plaintiff. However, a TDCJ officer saw how swollen Plaintiff’s foot was and assigned

Plaintiff to a bottom bunk. Plaintiff was subsequently given a temporary bottom bunk

restriction at the Walls Unit.

On March 27, 2019, an x-ray of Plaintiff’s foot showed that Plaintiff had fractures

in his toes that were not inconsistent with climbing down from a bunk. Plaintiff suffers

in pain every day and has trouble walking for prolonged periods of time. Plaintiff has

issues trusting medical providers because a provider has removed his restrictions on two

occasions without an evaluation. Plaintiff returned to the McConnell Unit on April 3,

2019. Dr. Goyel then restored Plaintiff’s bottom bunk restriction.2

Plaintiff has been diagnosed with the following conditions which he believes are

relevant to any consideration for bottom bunk and bottom row assignments: (1) arthritis

in various areas of the body; (2) scoliosis; (3) edema; (4) polyarthralgia in various parts

of the body; (5) neuropathy in the left foot; and (6) daily headaches and dizziness. These

conditions were part of Plaintiff’s record when Dr. Kwarteng removed his restrictions.

According to Plaintiff, Dr. Kwarteng had treated Plaintiff on occasions and was aware of

his foot issues when he removed the bottom bunk/bottom row restrictions.

Plaintiff believes that Defendants Davis, Wainwright, and Sollenberger are

responsible for the implementation and formation of Policy 8.4. According to Plaintiff,

these individuals were informed of what had happened to him with regard to the removal

of the bottom bunk restrictions and were asked to change Policy 8.4. Plaintiff complains

about the failure of Defendants Davis, Wainwright, and Sollenberger to intervene on his

behalf.

Plaintiff asserts that Defendant Lawson has a duty to ensure that his formal and

informal grievances be relayed for further investigation. Plaintiff further asserts that the

Step II Grievance Coordinator has a duty to adequately investigate Plaintiff’s grievance

and review the record. Plaintiff states that the grievance coordinator did not investigate

the issue until thirty days after the Step II response was delivered to Plaintiff on May 19,

2 Plaintiff currently lives in one of the McConnell Unit’s dormitories, which consists of two floors and each room

with a single bed.

2019. Plaintiff further claims that the Defendants Kwarteng, Lawson, and the Step II

Grievance Coordinator acted with negligence against Plaintiff with respect to the removal

of his bottom bunk restrictions.

In June 2018, Plaintiff filed a complaint with the Texas Medical Board against Dr.

Kwarteng. In that complaint, Plaintiff alleged that Dr. Kwarteng had failed to take any

action to help Plaintiff’s low white blood cell count. Plaintiff contacted a friend who

assisted Plaintiff in finding a nutritional supplement that could help Plaintiff’s condition.

Plaintiff’s complained to the Texas Medical Board, claiming that Dr. Kwarteng had lied

about the fact nothing could be done. Plaintiff’s complaint was rejected as his allegations

were not substantiated.

Plaintiff met with Dr. Kwarteng a month after he had filed his complaint against

him. Dr. Kwarteng knew about Plaintiff’s complaint before the Texas Medical Board.

Plaintiff alleges Dr. Kwarteng became very aggressive with Plaintiff and challenged

Plaintiff’s assertion that he had lied to Plaintiff. Plaintiff also maintains Dr. Kwarteng

retaliated against Plaintiff by: (1) removing his bottom bunk restriction in early 2019; and

(2) taking a prescribed nutritional supplement away in September 2018 from Plaintiff that

helped to raise his low white blood cell count.

III. LEGAL STANDARD

When a prisoner seeks to proceed in forma pauperis the Court shall evaluate the

complaint and dismiss it without service of process if the Court finds the complaint

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.

See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis

complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state

a claim upon which relief may be granted, or seeks monetary relief from an immune

defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v.

Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an

indisputably meritless legal theory, “such as if the complaint alleges the violation of a

legal interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.

1998). A claim has no arguable basis in fact if “after providing the plaintiff the

opportunity to present additional facts when necessary, the facts alleged are clearly

baseless.” Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).

“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,

viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d

322, 324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail,

but whether he is entitled to offer evidence to support his claim. Thus, the Court should

not dismiss the claim unless the plaintiff would not be entitled to relief under any set of

facts or any possible theory that he could prove consistent with the allegations in the

complaint.” Id. (citations omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Plaintiff must allege sufficient facts in support of its legal

conclusions that give rise to a reasonable inference that Defendant is liable. Id.; Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). The factual allegations must raise

Plaintiff’s claim for relief above the level of mere speculation. Twombly, 550 U.S. at

555. As long as the complaint, taken as a whole, gives rise to a plausible inference of

actionable conduct, Plaintiff’s claim should not be dismissed. Id.

Section 1983 provides a vehicle for redressing the violation of federal law by

those acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To

prevail on a § 1983 claim, the plaintiff must prove that a person acting under the color of

state law deprived him of a right secured by the Constitution or laws of the United States.

42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under color

of state law if he misuses or abuses official power and if there is a nexus between the

victim, the improper conduct, and the defendant’s performance of official duties.

Townsend v. Moya, 291 F.3d 859, 861 (5th Cir. 2002).

IV. DISCUSSION

A. Eleventh Amendment Immunity and Official Capacity

A suit against a state officer in his or her official capacity is effectively a suit

against that state official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989). The Eleventh Amendment, however, bars claims for money damages against a

state or state agency. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996);

Aguilar v. Texas Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As

such, an action for monetary damages against a state official in his or her official capacity

is one against the state itself, and is barred by the Eleventh Amendment. See Kentucky v.

Graham, 473 U.S. 159, 166 (1985). The Fifth Circuit has extended the Eleventh

Amendment immunity specifically to TDCJ officers and officials acting in their official

capacities. See Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (Eleventh Amendment

bars prisoner’s suit for money damages against prison officials in their official

capacities).

Of the six defendants named, Plaintiff sues Defendants Wainwright, Davis, and

Sollenberger in their official capacities. To the extent that Plaintiff sues these defendants

in their official capacities for money damages, those claims are barred by the Eleventh

Amendment. Thus, it is respectfully recommended that Plaintiff’s claims for money

damages against Defendants Wainwright, Davis, and Sollenberger in their official

capacities be dismissed as barred by the Eleventh Amendment.

B. Official Capacity Defendants

Plaintiff claims that Defendants Wainwright, Davis, and Sollenberger acted with

deliberate indifference by failing to assist Plaintiff after Plaintiff wrote each of them a

letter. He further claims that these defendants implemented and enforced an

unconstitutional policy, Policy 8.4, which provided the framework by which Dr.

Kwarteng removed his bottom bunk restrictions.

“Personal involvement is an essential element of a civil rights cause of action.”

Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). It is well established that a prison

supervisor cannot be held liable for the misconduct of his or her subordinates. See

Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). There is no vicarious or

respondeat superior liability of supervisors under section 1983. Id. at 303-04. See also

Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (the acts of subordinates

do not trigger individual § 1983 liability for supervisory officials).

“Supervisory officials may be held liable only if: (1) they affirmatively participate

in acts that cause constitutional deprivation; or (2) implement unconstitutional policies

that causally result in plaintiff’s injuries.” Mouille v. City of Live Oak, Tex., 977 F.2d

924, 929 (5th Cir. 1992). “Mere knowledge and acquiescence on a supervisor’s part is

insufficient to create supervisory liability under § 1983.” Doe v. Bailey, No. H-14-2985,

2015 WL 5737666, at *9 (S.D. Tex. Sep. 30, 2015) (citing Iqbal, 556 U.S. at 677).

In this case, Plaintiff alleges that Defendants Wainwright, Davis, and Sollenberger

were each informed by letter as to the circumstances surrounding the removal of the

bottom-bunk restrictions, that each of these defendants was asked to change Policy 8.4,

and that none of these defendants intervened on his behalf. Plaintiff, however, alleges

nothing to suggest that Defendants Wainwright, Davis, and Sollenberger personally

participated in the decision to remove the bottom-bunk restrictions. Rather, Plaintiff

argues these defendants implemented and enforced an unconstitutional policy.

Policy 8.4 allows a medical provider like Dr. Kwarteng to remove a housing or

work restriction for medical reasons, no matter which provider assigned it, with only a

chart review. This policy further authorizes a physical examination to be conducted if the

offender challenges the removal of a restriction. Plaintiff fails to offer any allegations to

indicate that this policy is unconstitutional or that he otherwise has a constitutional right

to be physically examined before any housing restrictions can be removed. The policy

itself provides a mechanism for offenders to ask for a physical examination in order to

challenge any decision to remove certain housing restrictions based on medical reasons.

Because Plaintiff alleges no facts that Defendants Wainwright, Davis, and

Sollenberger participated in the decision to remove Plaintiff’s bottom bunk restrictions or

implemented an unconstitutional policy, it is respectfully recommended that Plaintiff’s

claims against these defendants in their official capacities be dismissed as frivolous

and/or for failure to state a claim for relief.

C. Individual Capacity Defendants

(1) Deliberate Indifference to Health

Plaintiff alleges that Defendants Kwarteng, Lawson, and the Step II Grievance

Coordinator acted with deliberate indifference to his health in connection with the

removal of his bottom bunk restrictions and failure to properly investigate his informal

and formal grievances. “The Constitution does not mandate comfortable prisons . . . but

neither does it permit inhumane ones, and it is now settled that the treatment a prisoner

receives in prison and the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment.” Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999)

(quoting Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (per curiam) (internal

quotations omitted)).

Prison officials are required to provide humane conditions of confinement and

ensure that inmates receive adequate food, clothing, shelter, and medical care. Farmer v.

Brennan, 511 U.S. 825, 832 (1994). Conditions that result in “unquestioned and serious

deprivations of basic human needs” or “deprive inmates of the minimal civilized measure

of life’s necessities” violate the Eighth Amendment. Rhodes v. Chapman, 452 U.S. 337,

347 (1981); see also Hudson v. McMillian, 503 U.S. 1, 8-10 (1992).

A constitutional violation under the Eighth Amendment occurs only when two

requirements are met. “First, there is an objective requirement that the condition must be

so serious as to deprive prisoners of the minimal civilized measure of life’s necessities, as

when it denies the prisoner some basic human need.” Woods, 51 F.3d at 581 (internal

quotations and citation omitted). To prove a constitutional violation, an inmate need not

show that a death or serious injury already has occurred, but rather that there is a

“substantial risk of serious harm.” Ball v. LeBlanc, 792 F.3d 584, 593 (5th Cir. 2015)

(citing Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004)).

“Second, under a subjective standard, [the court] must determine whether the

prison official responsible was deliberately indifferent to inmate health and safety.”

Woods, 51 F.3d at 581 (internal quotations and citation omitted). Deliberate indifference

is more than mere negligence. Farmer, 511 U.S. at 835. To act with deliberate

indifference, a prison official must both know of and disregard an excessive risk to

inmate health or safety; the 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. at 837.

Deliberate indifference may be exhibited by prison doctors in their response to

prisoners’ needs, but it may also be shown when prison officials have denied an inmate

prescribed treatment or have denied him access to medical personnel capable of

evaluating the need for treatment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). In the

context of medical treatment, the prisoner must show “that prison officials refused to treat

him, 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.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks

and citation omitted).

Dr. Kwarteng

With regard to Dr. Kwarteng’s actions, Plaintiff alleges that: (1) on or about

February 22, 2019, Dr. Kwarteng removed Plaintiff’s bottom bunk/bottom row

restrictions because Plaintiff had asked for his work restrictions to be removed on

November 9, 2018; (2) Dr. Kwarteng determined that continuance of the bottom-

bunk/bottom restrictions was inconsistent with the removal of work restrictions so that

Plaintiff could work in maintenance; (3) Dr. Kwarteng further based his decision on a

chart review and not on an actual examination; (4) Dr. Kwarteng’s chart review did not

consider Plaintiff’s original reason for a bottom-bunk restriction and was based on the

October 22, 2018 x-rays that did not include an adequate view of Plaintiff’s foot; (5)

when Dr. Kwarteng removed the bottom-bunk restriction, Dr. Kwarteng was aware that

Plaintiff was still a medical fracture boot and cane and that Plaintiff suffered from

numerous other maladies, including neuropathy of the left foot. In contrast to Dr.

Kwarteng’s actions, Plaintiff’s allegations reflect that Dr. Goyel on two separate

occasions restored Plaintiff’s temporary bottom bunk restrictions to a permanent

restriction based on Plaintiff’s various medical issues.

Taken Plaintiff’s allegations as true, he has stated a claim of deliberate

indifference to his health against Dr. Kwarteng. Plaintiff’s allegations suggest that Dr.

Kwarteng may have ignored important information regarding Plaintiff’s medical

conditions when making the decision to remove his bottom bunk restrictions. The fact

that another medical provider, Dr. Goyel, reinstated permanent bottom-bunk restrictions

on two occasions further supports the notion that Dr. Kwarteng may have known of a

substantial risk of serious harm to Plaintiff’s health but nevertheless disregarded such a

risk when removing the bottom-bunk restrictions. Indeed, Plaintiff’s allegations reflect

that he suffered serious injuries to his feet when attempting to climb down from the top

bunk. Accordingly, it is respectfully recommended that Plaintiff’s deliberate indifference

claim against Dr. Kwarteng be retained.

Defendants Lawson and the Step II Grievance Coordinator

Plaintiff claims that Defendant Lawson acted with deliberate indifference by

failing to relay Plaintiff’s formal and informal grievances regarding the removal of his

bottom-bunk restrictions for further investigation. Plaintiff claims that the Step II

Grievance Coordinator acted with deliberate indifference by failing to adequately

investigate Plaintiff’s Step II grievance and review the record. Plaintiff specifically

complains that the grievance coordinator did not investigate the issue until thirty days

after the Step II response was delivered to Plaintiff on May 19, 2019.

Plaintiff alleges nothing to suggest that Defendants Lawson and the Step II

Grievance Coordinator had any personal involvement in the decision to remove his

bottom-bunk restriction. Plaintiff, therefore, has failed to allege a plausible deliberate

indifference claim against Defendants Lawson and the Step II Grievance coordinator in

their roles as supervisory officials.

Plaintiff’s allegations, at best, point to his dissatisfaction with the actions taken by

these defendants in investigating and/or rejecting each of Plaintiff’s formal and informal

grievances. Such allegations, however, fail to state a cognizable constitutional claim.

See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 138 (1977)

(Burger, C.J., concurring) (applauding institution of grievance procedures by prisons but

noting that such procedures are not constitutionally required); Geiger v. Jowers, 404 F.3d

371, 374 (5th Cir. 2005) (prisoners do not have a federally protected liberty interest in

having grievances investigated, let alone resolved in their favor); Mahogany v. Miller,

252 F. App’x 593, 595 (5th Cir. 2007) (holding that the plaintiff had no actionable §

1983 claim based on prison officials’ failure to process his grievances because he had no

protected liberty interest in the processing of grievances).

Accordingly, the undersigned recommends that Plaintiff’s claims against

Defendants Lawson and the Step II Grievance Coordinator be dismissed for failure to

state a claim and/or as frivolous.

(2) Retaliation

Plaintiff claims that Dr. Kwarteng engaged in acts of retaliation against him.

Retaliation is not expressly referred to in the Constitution; however, it is nonetheless

actionable because retaliatory actions may tend to chill an individual’s exercise of

constitutional rights. See Perry v. Sindermann, 408 U.S. 593, 597 (1972). Retaliation is

actionable “only if the retaliatory act ‘is capable of deterring a person of ordinary

firmness from further exercising his constitutional rights.’” Bibbs v. Early, 541 F.3d 267,

270 (5th Cir. 2008) (quoting Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006)).

The purpose of allowing retaliation claims under § 1983 is to ensure that prisoners

are not unduly discouraged from exercising their constitutional rights. Morris, 449 F.3d

at 686. Thus, “[a] prison official may not retaliate against or harass an inmate for

exercising the right of access to the courts, or for complaining to a supervisor about a

guard’s misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). “Filing

grievances and otherwise complaining about the conduct of correctional officers through

proper channels are constitutionally protected activities, and prison officials may not

retaliate against inmates for engaging in such protected inmates.” Reese v. Skinner, 322

F. App’x 381, 383 (5th Cir. 2009) (citing Morris, 449 F.3d at 684).

The Fifth Circuit has emphasized that “prisoners’ claims of retaliation are regarded

with skepticism and are carefully scrutinized by the courts.” Adeleke v. Fleckenstein, 385

F. App’x 386, 387 (5th Cir. 2010) (citing Woods, 60 F.3d at 1166). In addition, the Fifth

Circuit has concluded that some acts, even though they may be motivated by retaliatory

intent, are so de minimis that they would not deter the ordinary person from further

exercise of his rights. Morris, 449 F.3d at 686. Such acts do not rise to the level of

constitutional violations and cannot form the basis of a § 1983 claim. Id.

To state a valid § 1983 claim for retaliation, “a prisoner must allege (1) a specific

constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or

her exercise of that right, (3) a retaliatory adverse act, and (4) causation.” Jones, 188

F.3d at 324-25 (citing McDonald v. Stewart, 132 F.3d 225, 231 (5th Cir. 1998)). An

inmate must allege more than his personal belief that he is the victim of retaliation.

Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citation omitted). “Mere

conclusory allegations of retaliation will not be enough to withstand a proper motion for

dismissal of the claim.” Jones, 188 F.3d at 325. The inmate must produce direct

evidence of motivation or a chronology of events from which retaliation may be inferred.

Id. In other words, a successful claim of retaliation requires a showing that, but for some

retaliatory motive, the complained of adverse incident would not have occurred. Woods,

60 F.3d at 1166.

Plaintiff claims that Dr. Kwarteng retaliated against him for filing a medical

grievance against Dr. Kwarteng in June 2018 with the Texas Medical Board. In that

medical complaint, Plaintiff alleged that Dr. Kwarteng had failed to take any action to

help Plaintiff’s low white blood cell count and had lied about the fact that nothing could

be done to help. According to Plaintiff, Dr. Kwarteng retaliated against Plaintiff after he

found out about the medical grievance by: (1) removing Plaintiff’s bottom bunk

restriction; and (2) taking a prescribed nutritional supplement away in September 2018

from Plaintiff that helped to raise his low white blood cell count.

Plaintiff’s allegations, taken as true, suggest that he exercised his right to file a

medical grievance against Dr. Kwarteng and that, but for his decision to file such a

medical grievance, Dr. Kwarteng would not have engaged in the retaliatory acts of

removing Plaintiff’s bottom-bunk restrictions and taking away a nutritional supplement.

Accordingly, it is respectfully recommended that Plaintiff’s retaliation claims against Dr.

Kwarteng be retained.

(3) State Law Claims

Plaintiff raises state law claims of negligence against Defendants Kwarteng,

Lawson, and the Step II Grievance Coordinator. Specifically, Plaintiff claims that they

acted with negligence against Plaintiff with respect to the removal of his bottom bunk

restrictions and subsequent investigation into Plaintiff’s formal and informal grievances.

Plaintiff asks the Court to exercise supplemental jurisdiction over these state law claims.

Section 1367(a) of Title 28 authorizes a district court to exercise supplemental

jurisdiction over all other claims that are so related to the claims that provide the district

court with original jurisdiction. 28 U.S.C. § 1367(a). However, that same statute provides

that, if the district court dismisses the claims upon which federal court jurisdiction was

originally based, especially at the onset of a proceeding, it is prudent to decline to

exercise supplemental jurisdiction over any remaining state law claims and to dismiss

those claims without prejudice. Id. § 1367(c)(3); Enochs v. Lampasas County, 641 F.3d

155, 159 (5th Cir. 2011). See also LaPorte Construc. Co. v. Bayshore Nat'l Bank, 805

F.2d 1254, 1257 (5th Cir. 1986) (when district court dismisses federal claims at a

preliminary stage of litigation, judicial economy argues against exercise of supplemental

jurisdiction over state claims).

Because Plaintiff’s deliberate indifference claims against Defendants Lawson and

the Step II Grievance Counselor are subject to dismissal, the undersigned respectfully

recommends that the Court decline to exercise subject matter jurisdiction over Plaintiff’s

related negligence claims against these defendants. Conversely, as Plaintiff’s deliberate

indifference claims against Dr. Kwarteng should be retained, the undersigned respectfully

recommends that the Court exercise supplemental jurisdiction over his related negligence

claim against Dr. Kwarteng.

RECOMMENDATION

For purposes of § 1915A, Plaintiff has stated sufficient facts that, if true, state

deliberate indifference and retaliation claims against DR. ISAAC KWARTENG in his

individual capacity. Accordingly, it is respectfully recommended that these claims be

RETAINED. It is respectfully recommended further that the Court exercise

supplemental jurisdiction over Plaintiff's state law negligence claim against DR. ISAAC

KWARTENG in his individual capacity and that such claim be RETAINED. The

undersigned will order service as to DR. ISAAC KWARTENG by separate order.

The undersigned further recommends that: (1) Plaintiffs claims for money

damages against DALE WAINWRIGHT, LORIE DAVIS, and DONNA

SOLLENBERGER in their official capacities be DISMISSED as barred by the

Eleventh Amendment; (2) the Court DECLINE to exercise supplemental jurisdiction

over Plaintiff's state law negligence claims against TONYA LAWSON AND THE

STEP TIT GRIEVANCE COORDINATOR; and (3) Plaintiff's claims against the

remaining Defendants be DISMISSED for failure to state a claim and/or as frivolous

pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).

ORDERED this 4th day of September 2019.

C Jason B. Libby Z

United States Magistrate Judge

20/21

NOTICE TO PARTIES

The Clerk will file this Memorandum and Recommendation and transmit a copy to

each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy

of the Memorandum and Recommendation, a party may file with the Clerk and serve on

the United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.

Civ. P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District

Court for the Southern District of Texas.

A party’s failure to file written objections to the proposed findings, conclusions,

and recommendation in a magistrate judge’s report and recommendation within

FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon

grounds of plain error, from attacking on appeal the unobjected-to proposed factual

findings and legal conclusions accepted by the District Court. Douglass v. United Servs.

Auto Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).