Luna v. Veronica LNU

UNITED STATES DISTRICT COURT September 15, 2021

Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

VICTORIA DIVISION

LARRY DEAN LUNA, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 6:21-CV-17

§

VICTORIA COUNTY JAIL, et al, §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

TO RETAIN CASE AND DISMISS CERTAIN CLAIMS

Plaintiff Larry Dean Luna, appearing pro se and in forma pauperis, has 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.

Plaintiff has stated for purposes of screening: (1) deliberate indifference claims

based on inadequate treatment for his penis condition against Medical Provider

Veronica, Registered Nurse (RN) Rhonda Williams, Nurse Katrina, Nurse Delone,

Nurse Gayle, Nurse Madison, Dr. Robertson, and Nurse Black in their individual

capacities; (2) deliberate indifference claims based on inadequate treatment for his dental

condition against RN Williams, Nurse Gayle, and Nurse Madison in their individual

capacities; and (3) deliberate indifference claims against Victoria County (as substitute

Defendant for the individual defendants from the Victoria County Jail in their official

capacities) based on an alleged policy to deny inmates access to specialized medical

providers. It is respectfully recommended that these claims be RETAINED. The

undersigned will order service on these defendants.

For the reasons set forth below, the undersigned further recommends that: (1)

Plaintiff’s claims for injunctive relief against all Defendants be dismissed with prejudice;

and (2) Plaintiff’s claims against all individual Defendants from the Victoria County Jail

in their official capacities be DISMISSED with prejudice; and (3) Plaintiff’s remaining

claims against all remaining Defendants be DISMISSED with prejudice for failure to

state a claim 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

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

Criminal Institutions Division (TDCJ-CID) and is housed at the Cotulla Unit in Cotulla,

Texas. Plaintiff’s allegations in this case arise in connection with his confinement at the

Victoria County Jail in Victoria, Texas, as both a pretrial detainee and convicted inmate.

Plaintiff sues the following defendants in his Amended Complaint: (1) the Victoria

County Jail; (2) the Victoria County Sheriff’s Department; (3) the Victoria County Jail

Medical Department; (4) Justin Marr, Victoria County Sheriff; (5) John McNiel, ER

doctor at Citizens Memorial Hospital; (6) Citizens Memorial1 Hospital ER Employees;

(7) Veronica, the Medical Provider at the Victoria County Jail; (8) Capt. Charles

Williamson, Victoria County Jail; (9) Eddie Flores, Victoria County Sheriff’s Officer;

(10) RN Rhonda Williams, Victoria County Jail Medical Department; (11) Mona,

Victoria County Jail Kitchen Staff; (12) Nurse Katrina, Victoria County Jail Medical

Department; (13) Nurse Delone, Victoria County Jail Medical Department; (14) Nurse

Gayle, Victoria County Jail Medical Department; (15) Will Franklin, Chief Deputy at the

Victoria County Jail; (16) Mrs. Merez,2 Victoria County Jail Medical Department; (17)

Nurse Madison, Victoria County Jail Medical Department; (18) Dr. Robertson; Victoria

County Jail Medical Department; and (19) Nurse Ashley Black, Victoria County Jail

Medical Department. (D.E. 14, pp. 4-8).

Plaintiff claims that Defendants acted with deliberate indifference to his serious

medical needs in two different respects. First, Plaintiff alleges that certain defendants

caused him to have permanent damage to his penis, whereby he lost all “penis function”

including the inability to have an erection. Second, Plaintiff alleges that metal contained

in his food caused him to lose a tooth and damaged his gums. Plaintiff generally

complains he was denied proper treatment by Defendants’ refusal to allow Plaintiff to be

seen by various medical professionals including a urologist and a qualified dentist. (D.E.

1 Plaintiff sues individuals from the Citizens Memorial Hospital in this action. Throughout his Spears testimony, he

references being treated at the Citizens Medical Center in Victoria. The correct name of the facility is Citizens

Medical Center.

2 Plaintiff clarified that this defendant’s name was “Mrs. Merez” and not “Mrs. Melez.”

14, p. 4-9). In his Amended Complaint, Plaintiff indicates that he seeks only monetary

relief. (D.E. 14, p. 9).

III. PLAINTIFF’S ALLEGATIONS AND CLAIMS AGAINST EACH

DEFENDANT

A. Background Information

On June 30, 2020, the undersigned conducted a Spears3 hearing. The following

representations were made either in Plaintiff’s Amended Complaint (D.E. 14) or at the

Spears hearing. At the time of the Spears hearing, Plaintiff was 49 years old.

Plaintiff was confined at the Victoria County Jail beginning either in January or

February 2020. (D.E. 33, p. 7). He was subsequently released on a Personal

Recognizance bond (PR bond) sometime around August 1, 2020. Plaintiff was arrested

two months later after violating the conditions of his pre-trial release. Plaintiff’s bond

was revoked in November 2020 because he failed to appear for a Victoria criminal court

setting; Plaintiff alleges he missed court due to being in a hospital emergency room.

Plaintiff was in custody at the Victoria County Jail from November 12, 2020 until the

date of his Spears hearing. (D.E. 33, p. 10). He was convicted in Victoria County on

felony drug charges and sentenced on June 3, 2021 to eight years in prison.

B. Allegations regarding Plaintiff’s Penis Condition

In 2006, Plaintiff was diagnosed with myeloid leukemia cancer, which is a rare

blood cell cancer . (D.E. 33, p. 27). This cancer causes Plaintiff’s red blood cells to

clog. When it is not under control, Plaintiff suffers from priapism (long-term) erections

3 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

caused by blood clots in his penis. Plaintiff’s priapism erections usually begin while he

is asleep.

Plaintiff testified that having an erection for over four hours without intervention

from a urologist may result in permanent damage to the penis. He further explained that:

“[O]nce I have permanent penis damage, the erection would never stop, they will

continue and continue and I will have to go through three procedures.” (D.E. 33, p. 30).

Plaintiff testified that, under the first procedure, the urologist administers an epidermal

shot either in the arm or the penis. Plaintiff described the second procedure as being a

pressure release where blood is drained from the penis. The blood drained from the penis

is then tested to determine whether Plaintiff has suffered permanent damage. Plaintiff

further testified:

And if I had permanent damage, he would either have to operate on me [the

third procedure] and cease all erections or I would have to continue to come

back and forth to the ER and have him drain the erections because the

erections would never stop without the operation. And if I keep coming

back and forth to the ER to have it drained, the blood that’s in my penis

will eventually cause me blood poisoning because it don’t fully come out, it

stays clogged in there so I would die of blood poisoning, okay. And that is

the three procedures.

(D.E. 33, p. 32).

While in the free world, a urologist in Victoria placed Plaintiff on a blood thinner.

This medication was successful in preventing Plaintiff from having priapism erections

when he was not in custody. After Plaintiff was taken into custody at the Victoria

County Jail in early 2020, Plaintiff began to suffer from symptoms of priapism erections.

Plaintiff immediately submitted requests to the jail’s medical department to see a

urologist.

Plaintiff’s erection issues resolved themselves at first without having to see a

urologist. At some point in early 2020, Plaintiff’s erection issues caused him to be taken

to a local hospital’s emergency room to receive an epidural shot. Dr. McNiel from the

Citizens Medical Hospital recommended that Plaintiff be seen by a urologist. Plaintiff

was sent to the emergency room on nine occasions between January and August of 2020

to receive an epidural shot. (D.E. 33, p. 34). The epidural shots, however, were not

working as of August 2020, when he was released on a PR bond. Plaintiff believes he

was released on the PR bond because he continued to have his erection issues.

After Plaintiff was released on the PR bond, he suffered from a priapism erection

which led him to visit the Citizens Medical Center. Plaintiff was referred to a urologist in

Houston. The Houston urologist performed the pressure release procedure by sticking

three syringes in Plaintiff’s penis to drain the blood. Plaintiff was informed that he had a

follow-up appointment in two weeks. In the meantime, Plaintiff suffered from another

priapism erection and was taken to DeTar Hospital. Plaintiff was referred to a urologist

in San Antonio. Another pressure release procedure was performed. Plaintiff described

the procedure as “so painful.” (D.E. 33, p. 38). The San Antonio urologist informed

Plaintiff that he needed an operation. Plaintiff refused the operation as there had been no

medical diagnosis that his penis was damaged.

Plaintiff suffered from a third priapism erection while in the free world on the PR

bond. Plaintiff was seen by an emergency room urologist at a Houston hospital. Plaintiff

eventually had a third pressure release procedure. The Houston ER urologist advised

Plaintiff to undergo an operation to permanently stop him from having any more

erections and prevent him from dying of blood poisoning. The ER urologist informed

Plaintiff that he was suffering from long-term erections because he had gone for too long

without immediate urologist intervention while confined at the Victoria County Jail.

Plaintiff underwent an operation in Houston around October 2020. He awoke

from the operation with a cast on his penis. Plaintiff was instructed to limit his

movements and perform no heavy lifting. While getting on a bus to travel to a court

hearing on his felony charges in Victoria County, Plaintiff’s stitches burst. Plaintiff was

taken to the emergency room and was unable to attend his court hearing.

The next week, Plaintiff attended court with respect to certain misdemeanor

charges pending in Victoria County. Plaintiff was subsequently arrested on November

12, 2020 on a bond forfeiture and charged with two additional felony drug charges.

While in custody, Plaintiff asked to have a urologist examine his wound from the surgery.

Medical Provider Veronica allegedly refused wound care to Plaintiff and sent Plaintiff

back to his cell.

Plaintiff’s penis became infected. Officer Pena saw Plaintiff’s infected penis and

brought Plaintiff some gauze and antibiotics to clean the wound. Plaintiff’s wound

started to improve after four or five days. From November 2020 through February 2021,

Plaintiff went back and forth to the jail’s infirmary to see Medical Provider Veronica.

Plaintiff was informed there was nothing wrong with his wound. However, according to

Plaintiff, his penis was deformed and the scar was not healing. In addition, Plaintiff had

blood in his urine.

In late December 2020, Plaintiff was placed in a suicide tank. Plaintiff requested

two blankets from Sergeant Wright due to having medical issues with his “priapism

erections.” (D.E. 44, p. 20). Plaintiff needed the blankets to help him avoid getting

blood in his penis. Plaintiff eventually went to sleep and woke up with an erection

lasting five hours. Plaintiff was taken to Citizens Medical Center the next day after being

placed in the suicide tank. Plaintiff received an epidermal shot which made the erection

go away. The doctor in the emergency room recommended that Plaintiff see a urologist

for his serious erection issues.

In March 2021, Plaintiff was brought from the Victoria County Jail to the local

hospital’s ER to receive an epidural shot. The doctor on duty told Plaintiff that he was

going to have to inject himself in his penis with two syringes. The doctor informed

Plaintiff that only a urologist should administer such shots. Plaintiff was suffering from

an erection lasting eleven hours at that time. Despite having an operation on his penis,

the erections had returned. Plaintiff administered the shots to himself. Plaintiff testified

that his penis was the size of his wrist, that it hurt to urinate, and that the head of the

penis was numb.

Throughout March 2021, Plaintiff suffered from erections lasting from nine to

twelve hours. Plaintiff alleges the medical staff at the jail did nothing for Plaintiff.

While talking about his medical issues with medical providers Veronica and Robertson,

Veronica admonished Plaintiff for denying the operation recommended by the San

Antonio doctor. Plaintiff told Veronica that he underwent the operation soon thereafter in

Houston after receiving a diagnosis that his penis was damaged.

At the end of March 2021, Plaintiff was seen by a urologist, Dr. New. Because

Plaintiff had blood in his urine, Dr. New placed Plaintiff on antibiotics. (D.E. 33, p. 49).

Dr. New informed Plaintiff that he would “fix” him up. He also requested Plaintiff’s

medical records from Houston to know the exact procedure that was performed on

Plaintiff. (D.E. 33, p. 50). Dr. New also recommended that he see both Plaintiff and his

medical records in a week. Plaintiff, however, was not brought back to see Dr. New.

Plaintiff subsequently was seen by a gastrologist with regard to stomach issues

related to Plaintiff’s dental issues discussed in detail below. The gastrologist

recommended that Plaintiff see a cancer specialist for his myeloid leukemia cancer. She

further recommended that Plaintiff see a urologist. Contrary to the gastrologist’s

recommendation, Veronica told Plaintiff that there was no reason for him to see the

gastrologist again. Veronica also told Plaintiff that the urologist, Dr. New, did not want

to treat Plaintiff and instead urged for Plaintiff to be sent back to the Houston urologist

who performed the operation on his penis.

Plaintiff alleged that several urine tests have been performed on him. Following

his visit with the urologist at the end of March 2021, Nurse Williams performed a urine

test on Plaintiff and placed him on antibiotics. Corporal Bates took a sample after

Plaintiff threw up blood and placed the sample on the nurse’s desk to test. Nurse Gayle,

however, informed Plaintiff that there no sample had been left on her desk.

Plaintiff was not seen by a urologist or other specialist in the weeks before the

Spears hearing. Plaintiff testified that, if he does not see a urologist, he will have blood

poisoning because he can already taste copper in his mouthy and his penis remains

swollen. Plaintiff alleges officials at the jail refused to take Plaintiff to the emergency

room in the last couple of months before the Spears hearing.

C. Allegations Regarding Plaintiff’s Dental Issues

On December 18, 2020, Officer Flores brought Plaintiff a lunch tray while

Plaintiff was in the dayroom. When Plaintiff ate some of the mashed potatoes, a piece of

metal stuck in his tooth. Officer Flores noted that Plaintiff had a piece of wire stuck in

his gums and teeth. (D.E. 33, p. 13). Plaintiff experienced pain when he touched the

wire. Officer Flores grabbed the wire and pulled it. This action broke Plaintiff’s tooth in

half and damaged his gums.

Officer Flores took Plaintiff to the jail medical department as there was more wire

in Plaintiff’s mouth. After examining Plaintiff, Nurse Madison gave Plaintiff two

aspirins and instructed Plaintiff to return to his cell. Plaintiff explained to Nurse Madison

that he swallowed some of the metal wire and that his stomach was hurting. Nurse

Madison informed Plaintiff that he would likely expel the metal after using the bathroom.

Nurse Madison further informed Plaintiff that he would be on the dentist list and that she

would recommend x-rays regarding the ingested metal.

Plaintiff returned to his cell. Officer Flores arrived two hours later and told

Plaintiff to get dressed. He placed Plaintiff in detox. Officer Flores then strip searched

Plaintiff for contraband but did not find anything. Apparently, prison officials believed

the wire in Plaintiff’s mouth was some kind of contraband.

The next day, on December 19, 2020, Plaintiff was taken from his cell to face six

officers. Plaintiff was stripped naked and a full body scan was performed. Plaintiff was

x-rayed, which revealed wire stuck in Plaintiff’s stomach. Plaintiff was handcuffed and

taken to the Citizens Medical Center Hospital in Victoria. The emergency room doctor

took x-rays of Plaintiff’s stomach, revealing a piece of wire stuck in Plaintiff’s lower

intestines.

Plaintiff threw up blood in January and February of 2021. Plaintiff, however, had

not seen a dentist. Plaintiff was taken to the Citizens Medical Center after the second

time he threw up blood. The doctor told Plaintiff that he needed to see a gastrologist with

regard to the metal stuck in his stomach. The doctor recommended that the Victoria

County Jail send him to a gastrologist.

In March 2021, Plaintiff was seen by a gastrologist. She advised Plaintiff that he

should undergo a stomach biopsy since he was bleeding from his stomach. She further

sent Plaintiff back to the Victoria County Jail for lab work to be performed. The

gastrologist indicated that she would see Plaintiff in a week. When Plaintiff returned to

the Victoria County Jail, no blood work was performed. Plaintiff alleges the personnel at

the medical department ignored Plaintiff’s written requests to address his stomach issues.

On April 20, 2021, Plaintiff was seen by a dentist. The dentist pulled two pieces

of metal from Plaintiff’s tooth. (D.E. 33, p. 23). On April 28, 2021, the dentist pulled

out Plaintiff’s tooth. Plaintiff continues to endure pain with his gums.

D. Plaintiff’s Claims

With respect to his claim against each named Defendant, Plaintiff alleges the

following:

● Sheriff Marr – Plaintiff wrote him several letters explaining the inadequate

medical care provided by his subordinates. Sheriff Marr failed to take any

action even though he had a duty to do so.

● The Victoria County Jail, the Victoria County Sheriff’s Department,

and the Victoria County Jail Medical Department – With respect to

these entities, Plaintiff testified that Victoria County has a policy to deny

inmates access to specialized medical providers due to the expenses

incurred. (D.E. 33, p. 59).

● Dr. McNiel – Dr. McNiel is emergency room doctor at the Citizens

Medical Center. He provided inadequate medical by failing to diagnose

Plaintiff’s penis as permanently damaged and recommending for Plaintiff

to undergo an operation. Plaintiff appears to claim that Dr. McNiel had

some role in causing Plaintiff to be released on August 1, 2021.

● Citizens Medical Hospital ER Employees -Plaintiff did not provide any

allegations regarding these unidentified individuals.

● Medical Provider Veronica – Veronica provided Plaintiff with inadequate

care, placing Plaintiff’s health at substantial risk by substituting herself in

place of a urologist. Plaintiff suggests that Veronica was responsible for

not allowing Plaintiff to see a urologist.

● Captain Williamson – Captain Williamson failed to properly investigate

and answer Plaintiff’s grievances. He also failed to ensure Plaintiff’s health

and wellbeing. Captain Williamson also was aware of Plaintiff being

released on a PR bond.

● Officer Flores – Plaintiff alleges that Officer Flores harmed him when he

pulled the wire from Plaintiff’s mouth which led to more dental problems.

● RN Williams – Plaintiff alleges that RN Williams played a role in

providing Plaintiff with inadequate medical care for his dental and penis

issues and in not permitting Plaintiff to see the appropriate medical

professionals for his health issues.

● Mona from the Victoria County Jail Kitchen Staff - Plaintiff alleges that

Mona is the kitchen staff’s supervisor and is responsible for all food being

prepared in a safe manner and for ensuring that all food trays are safe.

● Nurse Katrina – Plaintiff alleges that Nurse Katrina played a role in

providing Plaintiff with inadequate medical care for his penis condition and

in not permitting Plaintiff to see a urologist.

● Nurse Delone - Plaintiff alleges that Nurse Delone played a role in

providing Plaintiff with inadequate medical care for his penis condition and

in not permitting Plaintiff to see a urologist.

● Nurse Gayle - Plaintiff alleges that Nurse Gayle played a role in providing

Plaintiff with inadequate medical care for his dental and penis issues and in

not permitting Plaintiff to see the appropriate medical professionals for his

health issues.

● Chief Deputy Franklin - Plaintiff alleges that Chief Deputy Franklin

notified Plaintiff about being released on a PR bond. Plaintiff believes that

this defendant had some role in Plaintiff’s release on bond.

● Mrs. Merez – Plaintiff alleges that Mrs. Merez is a correctional officer at

the Victoria County Jail who supervises the medical staff. Plaintiff believes

that she was aware of Plaintiff’s medical issues.

● Nurse Madison - Plaintiff alleges that Nurse Madison played a role in

providing Plaintiff with inadequate medical care for his penis and dental

issues and in not permitting Plaintiff to see appropriate medical

professionals.

● Dr. Robertson - Plaintiff alleges that Dr. Robertson provided Plaintiff with

inadequate medical care for his penis issues and refused to permit Plaintiff

to see a urologist.

● Nurse Black - Plaintiff alleges that Nurse Black played a role in providing

Plaintiff with inadequate medical care for his penis issues and in not

permitting Plaintiff to see a urologist.

IV. 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).

V. DISCUSSION

A. Injunctive Relief

At the Spears hearing, the undersigned indicated that Plaintiff “may be asking for

[] injunctive relief” with respect to his deliberate indifference claims. (D.E. 33, p. 58).

Plaintiff’s transfer from the Victoria County Jail into TDCJ custody and placement at the

Cotulla Unit renders moot any such claims seeking injunctive relief in this case. See

Smith v. City of Tupelo, Mississippi, 281 F. App’x 279, 282 (5th Cir. 2008) (citing

Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001)); Sias v. Jacobs, No. 6:17cv413,

2017 WL 8229544, at *4 (E.D. Tex. Dec. 11, 2017); King v. TDCJ, No 3:15-CV-1365,

2016 WL 8671926, at *2 (N.D. Tex. Jan. 8, 2016). Because Plaintiff has been transferred

from the Victoria County Jail, the undersigned respectfully recommends that his claims

for injunctive relief against Defendants be dismissed with prejudice.

B. Private Parties

In certain circumstances, a private party may be acting “under color of state law”

and held liable under § 1983. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970);

Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989). A private party may be deemed a

state actor under “three circumstances, (1) where there is a sufficiently close nexus

between the state and the challenged action of the private party so that the action of the

party may be fairly treated as that of the state itself, (2) where the private party has

exercised powers that are ‘traditionally the exclusive prerogative of the state,’ or (3)

where the state has exercised coercive power or has provided significant encouragement,

either overt or covert, that the action of the private party must in law be deemed to be that

of the state.” Rodgers v. City of Lancaster Police, No. 3:13-CV-2031, 2017 WL 457084,

at *13 (N.D. Tex. Jan. 6, 2017) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1981)).

Plaintiff sues Dr. McNiel, a private doctor working at the Citizens Medical

Hospital. He has not alleged any specific facts to support a finding that Dr. McNiel acted

under color of law, conspired with a state actor, or exercised powers that were

traditionally the exclusive prerogative of the state. Rather, Plaintiff’s allegations pertain

primarily with Dr. McNiel’s individual actions in providing medical care. Accordingly,

the undersigned respectfully recommends that Plaintiff’s claims against Dr. McNiel be

dismissed with prejudice for failure to state a claim for relief.

Plaintiff further sues defendants identified as “Citizens Memorial (sic) Hospital

ER Employees.” Plaintiff alleges no specific facts in support of his claims against these

unidentified individuals, much less any facts to suggest that they were state actors.

Accordingly, the undersigned respectfully recommends that Plaintiff’s claims against the

Citizens Medical Hospital ER Employees be dismissed with prejudice for failure to state

a claim for relief.

C. The Victoria County Jail, the Victoria County Sheriff’s Department,

and the Victoria County Jail Medical Department

Plaintiff names as defendants the Victoria County Jail, the Victoria County

Sheriff’s Department, and the Victoria County Jail Medical Department. These entities,

however, are not capable of being sued. Rogers v. Nueces County Jail, No. C-07-410,

2007 WL 4367814, at *4 (S.D. Tex. Dec. 13, 2007) (citing Darby v. Pasadena Police

Dep’t, 939 F.2d 311 (5th Cir. 1991)). Accordingly, to the extent Plaintiff seeks to sue the

Victoria County Jail, the Victoria County Sheriff’s Department, and the Victoria County

Jail Medical Department, the undersigned recommends that his claims against these

entities be dismissed with prejudice for failure to state a claim for relief.

D. Official Capacity Claims

Suits against individuals in their official capacities “generally represent only

another way of pleading an action against an entity of which an officer is an agent.”

Goodman v. Harris County, 571 F.3d 388, 395 (5th Cir. 2009) (internal quotations and

citation omitted). Thus, to the extent Plaintiff seeks to sue the remaining individual

defendants from the Victoria County Jail in their official capacities, it is effectively a suit

against the officials’ office, Victoria County. Will v. Michigan Dep’t of State Police, 491

U.S. 58, 71 (1989).

A municipality such as Victoria County is liable for the constitutional violations of

its employees only if the alleged constitutional deprivations resulted from municipal

policy. Monell v. Dep’t of Social Services, 436 U.S. 658, 694 (1978). See also Zarnow v.

City of Wichita Falls, Texas, 614 F.3d 161, 166 (5th Cir. 2010) (noting that a

municipality may not be subject to liability merely for employing a tortfeasor; liability

requires deliberate action attributable to the municipality that is the direct cause of the

alleged constitutional violation). Liability of a municipality under § 1983 requires proof

of three elements: a policymaker; an official policy; and a violation of constitutional

rights whose “moving force” is the policy or custom. Monell, 436 U.S. at 694;

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

As discussed below, Plaintiff has sufficiently stated claims of deliberate

indifference to his serious medical needs with respect to the failure of medical officials to

treat Plaintiff’s serious medical conditions and refer Plaintiff to certain specialized

doctors. Plaintiff testified at the Spears hearing that Victoria County has a policy to deny

inmates access to specialized medical providers due to the expenses incurred. (D.E. 33,

p. 59). Plaintiff’s allegations are sufficient to state a claim against Victoria County as

Plaintiff’s alleged constitutional violations may have resulted from the implementation of

such a policy.

Accordingly, it is respectfully recommended that Plaintiff’s claims against the

remaining individual defendants in their official capacities be dismissed with prejudice

and that Plaintiff’s claim against Victoria County based on the alleged policy in effect be

retained.

E. Deliberate Indifference to Serious Medical Needs

Plaintiff claims that prison officials at the Victoria County Jail acted with

deliberate indifference to his serious medical needs related to his penis and dental issues.

Plaintiff’s allegations indicate that, during all relevant times, he was confined at the

Victoria County Jail as either a pretrial detainee or a convicted inmate.

Pretrial detainees have a constitutional right under the Due Process Clause to

protection from harm during their confinement. See Brumfield v. Hollins, 551 F.3d 322,

327 (5th Cir. 2008) (citing Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en

banc)). The duty to protect pretrial detainees from harm under the Due Process Clause is

the same as the one afforded to convicted prisoners under the Eighth Amendment. See

Hare, 74 F.3d at 650 (“[T]he State owes the same duty under the Due Process Clause and

the Eighth Amendment to provide both pretrial detainees and convicted inmates with

basic human needs, including protection from harm, during their confinement.”). Thus,

regardless of Plaintiff’s status as either a pretrial detainee or convicted inmate, his

deliberate indifference claims will be analyzed under the same principles. See Gibbs v.

Grimmette, 254 F.3d 545, 548 (5th Cir. 2001) (recognizing that there is “no significant

distinction between pretrial detainees and convicted inmates concerning basic human

needs such as medical care”).

An Eighth Amendment violation occurs when a prison official is deliberately

indifferent to an inmate’s health and safety. Farmer v. Brennan, 511 U.S. 825, 834

(1994) Farmer, 511 U.S. at 834. In order to state a § 1983 claim for denial of adequate

medical treatment, a prisoner must allege that prison officials acted with deliberate

indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976);

Wilson v. Seiter, 501 U.S. 294, 303 (1991); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th

Cir. 1991).

The test for deliberate indifference has both an objective and subjective prong.

Under the objective prong, the inmate “must first prove objective exposure to a

substantial risk of serious harm.” Trevino v. Livingston, No. 3:14-CV-52, 2017 WL

1013089, at *3 (S.D. Tex. Mar. 13, 2017) (citing Gobert v. Caldwell, 463 F.3d 339, 345-

46 (5th Cir. 2006)). To prove the subjective prong of the deliberate indifference test, the

inmate “must show both: (1) that the defendant was aware of facts from which the

inference of an excessive risk to the [inmate’s] health or safety could be drawn; and (2)

that the defendant actually drew the inference that such potential for harm existed.”

Trevino, 2017 WL 1013089, at *3 (citing Farmer, 511 U.S. at 397 and Harris v.

Hegmann, 198 F.3d 153, 159 (5th Cir. 1999)).

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). 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, 429 U.S. at 104-

05. A “delay in medical care can only constitute an Eighth Amendment violation if there

has been deliberate indifference [that] results in substantial harm.” Easter v. Powell, 467

F.3d 459, 464 (5th Cir. 2006) (emphasis in original).

The deliberate indifference standard “is an extremely high standard to meet.”

Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).

“Unsuccessful medical treatment, acts of negligence, or medical malpractice do not

constitute deliberate indifference, nor does a prisoner’s disagreement with his medical

treatment, absent exceptional circumstances.” Gobert, 463 F.3d at 346. Deliberate

indifference is more than mere negligence. Farmer, 511 U.S. at 835. “Even proof of

gross negligence does not establish deliberate indifference.” Levine v. Taylor, No. 3:12-

CV-186, 2017 WL 1215426, at *7 (S.D. Tex. Mar. 31, 2017) (citing Whitley v. Hanna,

726 F.3d 631, 641 (5th Cir. 2013)).

(1) Sheriff Marr, Mrs. Merez, and Mona

Plaintiff alleges that he wrote several letters to Sheriff Marr to explain the failure

of his subordinates to address his medical issues but that Sheriff Marr failed to take any

action to help Plaintiff with his medical issues. Plaintiff further alleges that Mrs. Merez,

a correctional officer acting as the supervisor of the jail’s medical staff, was aware of

Plaintiff’s medical issues but also failed to take any corrective action. Lastly, Plaintiff

alleges that Mona, as the kitchen staff’s supervisor, should be held responsible for the

metal wire in his food because she is required to ensure that all food be prepared and

served in a safe manner.

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

Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). There is no vicarious or

respondeat superior liability of supervisors under section 1983. Thompkins v. Belt, 828

F.2d 298, 303–04 (5th Cir. 1987). 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). Thus, a supervisor who is not personally involved is liable only

if he has implemented “a policy so deficient that the policy itself is a repudiation of the

constitutional rights and is the moving force of the constitutional violation.” Thompkins,

828 F.2d at 304.). “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).

Plaintiff attempts to sue Sheriff Marr, Mrs. Merez, and Mona in their supervisory

capacities. He alleges nothing in his Amended Complaint or testimony at the Spears

hearing to suggest that they had any personal involvement with regard to causing and/or

treating Plaintiff’s medical conditions. Plaintiff further alleges nothing to indicate that

these defendants engaged in any behavior to create supervisory liability. The

undersigned respectfully recommends, therefore, that Plaintiff’s deliberate indifference

claims against Defendants Marr, Merez, and Mona in their supervisory capacities be

dismissed with prejudice for failure to state a claim.

(2) Captain Williamson

Plaintiff’s deliberate indifference claims against Captain Williamson center solely

on his conduct in failing to properly investigate and answer Plaintiff’s grievances.

Plaintiff’s dissatisfaction with Captain Williamson’s conduct, however, fails 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 respectfully recommends that Plaintiff’s deliberate

indifference claim against Captain Williamson in his individual capacity be dismissed

with prejudice for failure to state a claim for relief.

(3) Deliberate Indifference (Penis Condition)

Plaintiff alleges that he was diagnosed with a rare cancer in 2006 which caused

him to suffer priapism (long-term) erections. Plaintiff’s allegations reflect that this

condition is serious and that the medical staff at the Victoria County Jail failed to provide

him with proper medical care for this condition during his long-term stay at the Victoria

County Jail. Plaintiff identifies the following defendants as having failed to provide him

adequate medical attention: (1) Medical Provider Veronica; (2) RN Williams; (3) Nurse

Katrina; (4) Nurse Delone; (5) Nurse Gayle; (6) Nurse Madision; (7) Dr. Robertson; and

(8) Nurse Black. Plaintiff primarily complains that these defendants failed to allow him

to see a urologist, a medical expert specializing in the treatment of priapism erections

through various procedures designed to prevent permanent damage.

Plaintiff’s allegations, as set forth above, detail his long-term battle with having

priaprism erections while confined at the Victoria County Jail and the damage caused to

his health during this time. While his allegations indicate that he was taken to the

emergency room on several days where he received epidural shots for his long-term

erections, Plaintiff states that he was only permitted to see the urologist only on one

occasion. According to Plaintiff, only a urologist had the necessary expertise to assess

and treat Plaintiff’s condition.

Plaintiff’s allegations, accepted as true, state deliberate indifference claims with

regard to the medical care provided to him by the Victoria County Jail medical staff for

his priapism erections. Further factual development of these claims will clarify the roles

of each medical staff member named as a defendant. The undersigned recommends,

therefore, that Plaintiff’s deliberate indifference claims on these claims be retained

against Defendants Veronica, Williams, Katrina, Delone, Gayle, Madison, Robertson,

and Black.

(4) Deliberate Indifference (Dental Condition)

Officer Flores

Plaintiff alleges that, on December 18, 2020, he ate mashed potatoes which

contained a metal wire, that a piece of wire stuck in his gums and teeth, that the wire

caused him pain, that Officer Flores grabbed the wire and pulled it, that Officer Flores’s

act broke Plaintiff’s tooth in half and damaged his gums, and that Officer Flores

immediately took Plaintiff to medical because additional wire remained in Plaintiff’s

mouth.

Plaintiff’s allegations, accepted as true, reflect that Officer Flores attempted to

help Plaintiff by trying to remove the metal wire from Plaintiff’s mouth. At best,

Plaintiff’s allegations indicate that Officer Flores acted with negligence in rendering

assistance but not with the requisite deliberate indifference to cause Plaintiff substantial

harm. Indeed, Officer Flores brought Plaintiff to the medical department immediately

after his attempt to remove the wire. Accordingly, the undersigned respectfully

recommends that Plaintiff’s deliberate indifference claim against Officer Flores be

dismissed for failure to state a claim.

Williams, Madison, and Gayle

Plaintiff alleges that: (1) on December 18, 2020, Plaintiff suffered injuries to his

teeth and gums when he took a bite of his mashed potatoes which contained metal wire;

(2) Plaintiff had metal wire stuck between his gums and teeth; (3) Plaintiff’s tooth and

gums were damaged when Officer Flores attempted to remove the wire; (4) Nurse

Madison treated Plaintiff by providing him with two aspirins, informing Plaintiff he

would be on a list to see the dentist, and recommending x-rays be taken; (5) x-rays were

taken of Plaintiff’s stomach on December 19, 2020, revealing wire stuck in Plaintiff’s

intestines; (6) Plaintiff was not taken to a dentist either at that time or in early 2021 when

he threw up blood; (7) Plaintiff was finally seen by a dentist on April 20, 2021, where

two pieces of metal were removed and Plaintiff’s tooth was pulled; and (8) Plaintiff

continues to endure gum pain.

Plaintiff alleges that RN Williams, Nurse Gayle, and Nurse Madison were

responsible for not referring him to a dentist until four months after the incident occurred

on December 19, 2020. Plaintiff’s allegations, accepted as true, state deliberate

indifference claims with regard to the medical care provided to him by these defendants

for his dental issues. Further factual development of these claims will clarify the roles of

RN Williams, Nurse Gayle, and Nurse Madison in connection with Plaintiff’s dental care.

The undersigned recommends, therefore, that Plaintiff’s deliberate indifference claims on

these claims be retained against Defendants Williams, Gayle, and Madison.

F. PR Bond

Plaintiff alleges that: (1) sometime in August 2020, he was released on a PR bond;

(2) Captain Williamson was aware that he was released on the PR Bond; and (3) Chief

Deputy Franklin had some unspecified role in releasing Plaintiff on the PR bond.

Plaintiff believes he was released on the PR bond due to complications surrounding the

treatment of his penis condition.

Plaintiff has failed to state a constitutional claim against Defendants Williamson

and Franklin with respect to his release on a PR bond. Plaintiff’s release placed him in a

better position to obtain the necessary medical care for his condition. Accordingly, the

undersigned respectfully recommends that Plaintiff’s claim based on his PR bond release

against Defendants Williamson and Franklin be dismissed with prejudice for failure to

state a claim for relief.

VI. RECOMMENDATION

For the reasons discussed above and for purposes of §§ 1915A and 1915(e)(2),

Plaintiff has stated sufficient facts that, if true, state: (1) deliberate indifference claims

based on inadequate treatment for his penis condition against Veronica, RN Williams,

Nurse Katrina, Nurse Delone, Nurse Gayle, Nurse Madison, Dr. Robertson, and

Nurse Black in their individual capacities; (2) deliberate indifference claims based on

inadequate treatment for his dental condition against RN Williams, Nurse Gayle, and

Nurse Madison in their individual capacities; and (3) deliberate indifference claims

against Victoria County (as substitute Defendant for the individual defendants from the

Victoria County Jail in their official capacities) based on an alleged policy to deny

inmates access to specialized medical providers. Accordingly, it is respectfully

recommended that these claims be RETAINED. The undersigned will order service as

to these defendants by separate order.

For the foregoing reasons, the undersigned further recommends that: (1) Plaintiff's

claims for injunctive relief against all Defendants be dismissed with prejudice; and (2)

Plaintiff's claims against all individual Defendants from the Victoria County Jail in their

official capacities be DISMISSED with prejudice; (3) Plaintiff's remaining claims

against all remaining Defendants be DISMISSED with prejudice for failure to state a

claim pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1).

Respectfully submitted this 15th day of September, 2021.

United States Magistrate Judge

28/29

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).