# Irby v. Hinkle

> District Court, S.D. Texas · August 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10673617

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** August 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10673617

## How later opinions describe it (automated extraction)

- stating that on a Rule 12(b)(6) motion, documents attached to the briefing may be considered by the court if the documents are sufficiently referenced in the complaint and no party questions their authenticity

## Opinion text

IN THE UNITED STATES DISTRICT COURT August 05, 2020
FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
GALVESTON DIVISION

CHRISTOPHER IRBY, §
TDCJ # 01443091, §
§
Plaintiff, §
§
vs. § CIVIL ACTION NO. 3:19-cv-90
§
DR. MARCUS HINKLE, §
§
Defendant. §

MEMORANDUM OPINION AND ORDER

Plaintiff Christopher Irby, an inmate in the Texas Department of Criminal Justice–
Correctional Institutions Division (“TDCJ”), has filed a civil-rights complaint (Dkt. 1)
seeking relief under 42 U.S.C. § 1983. Irby sues Dr. Marcus Hinkle, a physician employed
by the University of Texas Medical Branch (“UTMB”), alleging that Dr. Hinkle was
deliberately indifferent to his medical needs after Irby suffered injuries to his face after
falling off the top bunk of a bunk bed. Irby proceeds pro se and in forma pauperis.
Dr. Hinkle has moved to dismiss the complaint under Rule 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure (Dkt. 9). Irby has filed a response (Dkt. 13), and
the motion is ripe for decision. Having reviewed the motion, the briefing, the applicable
law, and all matters of record, the court concludes that the motion to dismiss should be
granted in part and denied in part.
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I. BACKGROUND

Irby alleges that on November 4, 2017, he fell from the top bunk of a bunk bed at
the Darrington Unit (Dkt. 1, at 4).1 While being escorted to the infirmary, he was “in and
out of consciousness” (id.). Irby states that when he arrived at the infirmary, he suffered
dizziness, swelling to the left side of his face, and a “damaged” left eye (id.). The nurse
working at the infirmary, Shanika L. Walker, LVN, proceeded to take Irby’s vital signs.
She then called the on-call physician, Dr. Marcus Hinkle, “to inform him of the nature and
extent of [Irby]’s injuries and to request permission to send [Irby] to the emergency room

of the local hospital” (id. at 4, 6). Irby states that without examining him or asking him
any questions, Dr. Hinkle told Walker to give him ibuprofen and send him back to his
“living area” (id. at 6).
For the next two weeks, Irby states that he tried to “get medical treatment, pain
medication, and to see the doctor” but was unsuccessful (id. at 6). After sending several I-

60 inmate requests to the medical department, an appointment was made for Irby to see a
doctor (id.).
Irby was examined by Dr. Hinkle on November 16, 2017 (id.). Irby states that in
spite of Dr. Hinkle noticing swelling and “several deformities” to Irby’s face, Dr. Hinkle
told him that x-rays were not necessary because “even if there were broken or fractured

bones” in Irby’s face, “nothing could be done about it” (id.). Irby states that he “pleaded”

1 Throughout this memorandum opinion, the court’s citations to specific pages in the record
refer to the pagination of docket entries on the court’s electronic case-filing (“ECF”) system.

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with Dr. Hinkle for x-rays, and that Dr. Hinkle eventually “conceded” and ordered the x-
rays (id.).
Irby met with Dr. Spears on December 7, 2017, to review the results of the x-rays

(id.).2 Irby states that Dr. Spears “discussed in length the damages and injuries” to his face,
“as reflected in the x-rays taken” (id.). Dr. Spears scheduled an emergency appointment
with an ENT specialist at UTMB Galveston (id.).
On December 12, 2017, Irby met with Dr. Nikunj Arun Rana at UTMB Galveston
(id.). According to Irby, Dr. Rana said that the injuries to his face were “non-operative due

to the timing of [the] injuries because [Irby] was not taken to the ED (Emergency
Department) of the local hospital the night of the injury” (id.). Irby claims that the
following notes were documented by Dr. Rana:
Pt s/p left facila trauma 1 month ago after rolling out of bunk. Has left V2
parathesia. Told he had a nasal bone fracture and maxillary sinus wall FX.
Will need formal imaging to evaluate. Counseled that given timing of injury,
will likely be non-operative apart from FNR in 6 months.

(Id. at 7). Irby asserts that his injuries are on-going; in particular, he experiences numbness
and disfiguration to the left side of his face (id.). He also states that he has been informed
that his injuries may be permanent “due to the time lapse between the injury and his being
sent to the specialist” (id.).
The court received Irby’s lawsuit on March 1, 2019. Irby sues Dr. Hinkle, claiming
that Dr. Hinkle failed to provide adequate and timely medical care for injuries Irby

2 Irby does not provide Dr. Spears’s first name.

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sustained after falling off a bunk bed in violation of the Eighth Amendment. Irby seeks an
unspecified amount of punitive, nominal, and compensatory damages (id. at 4).
On December 2, 2019, Dr. Hinkle filed a motion to dismiss Irby’s claim under Rule

12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. 9). Dr. Hinkle
argues that Irby’s claim should be dismissed because he is entitled to qualified immunity
and Eleventh Amendment immunity, and for failure to state a claim (see id.). Irby has filed
a response to the motion to dismiss (Dkt. 13). In a section of his response titled
“Clarification of the claims[,]” Irby alleges further facts in support of his claim (see id.).

In particular, Irby states that:
 He was held in an unsafe cell and slept on an unsafe bunk;

 After he fell off the bunk bed, he had “blood pouring from his nose, with several
fractured and broken bones in his face, and severe swelling of his face and head”;

 Upon his arrival at the infirmary and after examination by Ms. Walker, Ms. Walker
contacted Dr. Hinkle and gave him “her professional assessment that Irby should
be transported to a hospital emergency room for immediate treatment”;

 That Dr. Hinkle instructed Ms. Walker to send Irby back to his living area with
only ibuprofen, in spite of Dr. Hinkle being aware that Irby “fell from the top bunk
in his sleep landing on his face/head, that [he was in] and out of consciousness,
that the left-side of Irby’s face was visibly swollen and disfigured, and that Irby
was bleeding profusely from his nose”;

 That after Dr. Hinkle instructed Ms. Walker to send Irby back to his living area
with only ibuprofen, she said “OH MY GOD! I can’t believe he told me to only
give you Ibuprofen. You need to go to the emergency room!”; and

 That the specialist he saw, Dr. Rana, was “aghast” at his “extensive injuries” and
that “all involved opined that Irby should have been sent to a hospital emergency
room immediately after the incident[.]”

(Id. at 2–3). In his response, Irby also requests the appointment of counsel (id. at 5).
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II. STANDARDS OF REVIEW

A. Motion to Dismiss Under Rule 12(b)(1)

“A case is properly dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Smith v. Reg’l Transit
Auth., 756 F.3d 340, 347 (5th Cir. 2014) (quoting Krim v. pcOrder.com, Inc., 402 F.3d 489,
494 (5th Cir. 2005)). A motion to dismiss for lack of subject-matter jurisdiction should be
granted only if it appears certain that the plaintiff cannot prove a plausible set of facts that
establish subject-matter jurisdiction. Venable v. La. Workers’ Comp. Corp., 740 F.3d 937,
941 (5th Cir. 2013). The court must “take the well-pled factual allegations of the complaint
as true and view them in the light most favorable to the plaintiff.” In re Mirant Corp., 675
F.3d 530, 533 (5th Cir. 2012).
B. Motion to Dismiss Under Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) may be granted if the pleading “fail[s] to
state a claim upon which relief can be granted[.]” FED. R. CIV. P. 12(b)(6). In considering
a Rule 12(b)(6) motion, courts generally must accept the factual allegations contained in
the complaint as true. See Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147
(5th Cir. 2009) (citing Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986)).
Federal rules require “only ‘a short and plain statement of the claim showing that the

pleader is entitled to relief[.]’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting FED. R. CIV. P. 8(a)(2)). The complaint must, however, contain sufficient factual
allegations, as opposed to legal conclusions, to state a claim for relief that is “plausible on
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its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Rogers v. Boatright, 709 F.3d
403, 407 (5th Cir. 2013). Under this standard, the court “construes the complaint liberally
in favor of the plaintiff,” “takes all facts pleaded in the complaint as true[,]” and considers

whether “with every doubt resolved on [the plaintiff’s] behalf, the complaint states any
valid claim for relief.” Harrington., 563 F.3d at 147 (internal citations and quotation marks
omitted).
The court’s review under Rule 12(b)(6) is limited to “the complaint, any documents
attached to the complaint, and any documents attached to the motion to dismiss that are

central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)); see Walch v. Adjutant Gen.’s Dep’t
of Tex., 533 F.3d 289, 294 (5th Cir. 2008) (stating that on a Rule 12(b)(6) motion,
documents attached to the briefing may be considered by the court if the documents are

sufficiently referenced in the complaint and no party questions their authenticity) (citing
5B Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357
(3d ed. 2004)).
C. Pro Se Pleadings

In reviewing the pleadings and litigation history, the court is mindful of the fact that
Irby is a TDCJ inmate proceeding pro se. Complaints filed by pro se litigants are entitled
to a liberal construction and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89,
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94 (2007) (internal quotation marks and citation omitted). Even under this lenient standard,
a pro se plaintiff must allege more than “‘labels and conclusions’ or a ‘formulaic recitation
of the elements of a cause of action[.]’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 555). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (Twombly, 550 U.S. at 555).
Regardless of how well-pleaded the factual allegations may be, they must demonstrate that
the plaintiff is entitled to relief under a valid legal theory. See Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of

a dispositive issue of law.”); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005) (“A
district court may dismiss as frivolous the complaint of a prisoner proceeding IFP if it lacks
an arguable basis in law or fact. A complaint lacks an 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.”) (internal citations and quotation marks

omitted).
III. DISCUSSION

A. Dr. Hinkle’s Rule 12(b)(1) Motion

At all times relevant to this suit, Dr. Hinkle was an employee of UTMB. A claim
against a TDCJ or UTMB official in his or her official capacity is a claim against TDCJ or
UTMB, and thus a claim against the State of Texas. See Mayfield v. Tex. Dep’t of Crim.
Justice, 529 F.3d 599, 604 (5th Cir. 2008); Horne v. Univ. of Tex. Med. Branch, 516 F.
App’x 377, 2013 WL 1152720, at *1 (5th Cir. 2013) (per curiam). Because the Eleventh
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Amendment protects the states’ sovereign immunity, federal courts lack jurisdiction over
suits against a state for money damages unless the state has waived its immunity or
Congress has clearly abrogated that immunity. NiGen Biotech, L.L.C. v. Paxton, 804 F.3d

389, 393–94 (5th Cir. 2015); Moore v. La. Bd. of Elem. and Secondary Educ., 743 F.3d
959, 963 (5th Cir. 2014). Texas has not waived its Eleventh Amendment immunity, and
Congress did not abrogate that immunity when enacting § 1983. NiGen, 804 F.3d at 394.
Therefore, to the extent Irby brings any claims for money damages against Dr. Hinkle in
his official capacity, the state is immune under the Eleventh Amendment. The claim

therefore will be dismissed for lack of jurisdiction. This partial dismissal does not affect
Irby’s claim against Dr. Hinkle in his individual capacity.
B. Dr. Hinkle’s Rule 12(b)(6) Motion

Dr. Hinkle argues that Irby’s Eighth Amendment claim should be dismissed for
failure to state a claim pursuant to Rule 12(b)(6) and based upon qualified immunity for
failure to establish a constitutional violation.
To state a claim under the Eighth Amendment, Irby must allege facts that would
support an inference of “deliberate indifference to [his] serious medical needs, constituting
an ‘unnecessary and wanton infliction of pain.’” Easter v. Powell, 467 F.3d 459, 463 (5th
Cir. 2006) (per curiam) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “The mere

delay of medical care can also constitute an Eighth Amendment violation but only ‘if there
has been deliberate indifference [that] results in substantial harm.’” Easter, 467 F.3d at
463 (quoting Mendoza v. Lynaugh, 989 F.3d 191, 193 (5th Cir. 1993)).
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As noted above, Dr. Hinkle has invoked qualified immunity, a defense that “protects
government officials from liability for civil damages to the extent that their conduct is
objectively reasonable in light of clearly established law.” Crostley v. Lamar City, Tex.,

717 F.3d 410, 422 (5th Cir. 2013) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To determine whether a defendant is entitled to qualified immunity, the court engages in a
two-step inquiry. The court must first ascertain whether the plaintiff has sufficiently
asserted the violation of a constitutional right. Siegert v. Gilley, 500 U.S. 226, 231–34
(1991); Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993), cert. denied, 510 U.S. 1123

(1994). If so, the court must determine whether that right was clearly established so that a
reasonable official in the circumstances and situation would have understood that his
conduct violated that right. Harlow, 457 U.S. at 818; Anderson v. Creighton, 483 U.S.
635, 640 (1987); Brewer, 3 F.3d at 820. The plaintiff has the burden to show that qualified
immunity should not apply. Crostley, 717 F.3d at 422. “If qualified immunity is raised in

a motion to dismiss, ‘it is the defendant’s conduct as alleged in the complaint that is
scrutinized for ‘objective legal reasonableness.’” Senu-Oke v. Jackson State Univ., 283 F.
App’x 236, at *3 (5th Cir. 2008) (per curiam) (emphasis in original) (quoting Behrens v.
Pelletier, 516 U.S. 299, 309 (1996)).
As it must, the court accepts Irby’s allegations as true and views them in the light

most favorable to him. Irby has alleged that Dr. Hinkle was aware of the nature and extent
of Irby’s injuries—which included, at a minimum, the fact that Irby fell from a bunk bed
that resulted in him being “in and out of consciousness” and suffering from dizziness,
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profuse bleeding from his nose, a “damaged” left eye, and swelling to his face. In spite of
that awareness, Irby alleges Dr. Hinkle declined to examine Irby, failed to ask him any
follow-up questions, denied Ms. Walker’s request for permission to send Irby to the

emergency room of the local hospital, and instead merely instructed Ms. Walker to give
him ibuprofen and send him back to his living area. Irby has also alleged that his injuries,
which include numbness and disfiguration to the left side of his face, are “on-going” and
that they may be permanent. These allegations allow the court to draw the reasonable
inference that Dr. Hinkle was deliberately indifferent to Irby’s serious medical needs.

Accordingly, Irby has alleged sufficient facts to state a plausible Eighth Amendment claim
against Dr. Hinkle. Essentially for these same reasons, dismissal on qualified-immunity
grounds is not warranted at this early stage of litigation. Irby has alleged that Dr. Hinkle
knew the nature and extent of his injuries and that Dr. Hinkle failed to provide adequate
medical care. Based on Irby’s allegations, it is plausible that Dr. Hinkle acted objectively

unreasonable in his treatment of Irby. Irby has asserted facts which, if true, are sufficient
to overcome the qualified-immunity defense. See Senu-Oke, 283 F. App’x at *2–3.
Accordingly, on this record, dismissal under Rule 12(b)(6) is not warranted. Dr.
Hinkle may raise this argument again at a later stage of the case, if appropriate.
C. Request for Appointment of Counsel

In his response, Irby requests that counsel be appointed to represent him in this
matter (Dkt. 13, at 5). There is no automatic constitutional right to appointment of counsel
in civil-rights cases. Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007); Ulmer v.
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Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). A district court may appoint counsel to
advance the proper administration of justice in exceptional circumstances and where an
indigent litigant has colorable claims that will not receive a meaningful hearing without

counsel. See 28 U.S.C. § 1915(e)(1); Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir.
2015); Ulmer, 691 F.2d at 213. When deciding whether to appoint counsel, the court
considers the type and complexity of the case, whether the indigent litigant can adequately
investigate and present his case, and the level of skill required to present the evidence.
Baranowski, 486 F.3d at 126.

Irby thus far has shown himself capable of self-representation and has filed
appropriate responses and filings. The court finds that this is not an exceptional case
involving complex legal issues that would justify the appointment of counsel at this time.
As the case progresses, however, the court will revisit the issue on its own motion as
necessary.

IV. CONCLUSION

For the reasons stated above the court ORDERS that Dr. Hinkle’s motion to dismiss
(Dkt. 9) is GRANTED in part and DENIED in part. Irby’s claim for monetary damages
against Dr. Hinkle in his official capacity is DISMISSED with prejudice. In all other
respects, Dr. Hinkle’s motion to dismiss is denied. Irby’s request for appointment of counsel
contained in his response (Dkt. 13) is DENIED.

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The court ORDERS Dr. Hinkle to file his motion for summary judgment within 90
days from the date of this order. Any response from Irby must be filed within thirty days
thereafter. Dr. Hinkle may file a reply within 14 days of the response.

The clerk will provide a copy of this order to the parties.
Signed on Galveston Island this _5_t_h_ day of A u g u s t , 2020.

___________________________________
JEFFREY VINCENT BROWN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673617. Public record. Not legal advice.