The opinion
UNITED STATES DISTRICT COURT January 28, 2022
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
CORPUS CHRISTI DIVISION
AUSTIN D. BIRDOW §
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Plaintiff, §
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VS. § CIVIL ACTION NO. 2:21-CV-00102
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JOSE CHAPA, et al., §
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Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION
Plaintiff Austin D. Birdow, appearing pro se and in forma pauperis, filed this
prisoner civil rights action against Defendants Jose Chapa, R.N., Isaac Kwarteng, M.D.,
and The University of Texas Medical Branch (UTMB) pursuant to 42 U.S.C. § 1983. D.E.
1. He alleges Eighth Amendment and state law claims associated with his medical needs.
Defendants filed a motion to dismiss based on various immunities from suit and the
limitations of § 1983. D.E. 15. Plaintiff did not respond to the motion. United States
Magistrate Judge Julie K. Hampton issued a Memorandum and Recommendation (M&R),
recommending that the Court GRANT IN PART and DENY IN PART Defendants’
motion to dismiss. D.E. 16.
More specifically, the Magistrate Judge recommended dismissing the claim against
UTMB because it is not a proper § 1983 Defendant. She recommended dismissing the
claims against Nurse Chapa and Dr. Kwarteng in their official capacities based on Eleventh
Amendment immunity. And she recommended denying Nurse Chapa’s individual capacity
defense of qualified immunity without prejudice. Because the motion to dismiss did not
address a deliberate indifference claim against Dr. Kwarteng, the Magistrate Judge
performed an analysis pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2), and recommended
that the Court RETAIN an Eighth Amendment deliberate indifference claim against Dr.
Kwarteng in his individual capacity. Id.
Pending before this Court is Dr. Kwarteng’s objection to the M&R and Birdow’s
response to the objection. D.E. 18, 19. For the following reasons, the Court
OVERRULES the objection and ADOPTS the Magistrate Judge’s M&R.
STANDARD OF REVIEW
The district court conducts a de novo review of any part of the magistrate judge’s
disposition that has been properly objected to. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P.
72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). As to any portion for which
no objection is filed, a district court reviews for clearly erroneous factual findings and
conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per
curiam).
DISCUSSION
Dr. Kwarteng objects to the portion of the M&R that liberally construed Birdow’s
complaint to raise an Eighth Amendment deliberate indifference claim against him. D.E.
18. He argues that because Birdow explicitly requested relief under the Eighth Amendment
against Nurse Chapa and UTMB but did not explicitly suggest the same for Dr. Kwarteng,
Birdow did not sufficiently allege a deliberate indifference claim against Dr. Kwarteng.
Id. at 2. Birdow responds, asking the Court to adopt the M&R and order Nurse Chapa and
Dr. Kwarteng to answer these Eighth Amendment claims. D.E. 19, p. 3.
Rules for screening claims for legal theories are not as stringent as Dr. Kwarteng
suggests. In fact, “many federal courts have held that a complaint is sufficient . . . [if] the
plaintiff may be entitled to any form of relief, even though the particular relief he has
demanded and the theory on which he seems to rely are not appropriate.”1 Wright & Miller,
Statement of the Claim—Theory of the Pleadings Doctrine, 5 Fed. Prac. & Proc. § 1219
(4th ed. 2021). As the Supreme Court explained in Johnson v. City of Shelby, 574 U.S. 10,
11 (2014) (per curiam), “Federal pleading rules call for ‘a short and plain statement of the
claim showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do
not countenance dismissal of a complaint for imperfect statement of the legal theory
supporting the claim asserted.” Id.
The Court reviewed the factual allegations in Birdow’s complaint and agrees with
the Magistrate Judge that Birdow stated a claim of deliberate indifference against Dr.
Kwarteng in his individual capacity. D.E. 16, pp. 12–13. The 2015 Prisoner’s Civil Rights
Complaint form asked Birdow to “[b]riefly describe the act(s) or omission(s) of [Dr.
Kwarteng] which you claimed harmed you,” to which Birdow stated Dr. Kwarteng’s failure
to physically examine him. D.E. 1, p. 3. While Birdow went on to associate that omission
with Texas’s tort of negligence, he also pled specific factual allegations supporting the
1 “Claims that fall under Section 1915A(b)(1) are analyzed ‘using the same standard applied under Federal Rule of
Civil Procedure 12(b)(6).’” Schwarzer v. Lumpkin, No. 6:18-cv-00029, 2021 WL 4438143, at *3 (S.D. Tex. Sep. 28,
2021) (quoting Mendoza-Tarango v. Flores, 982 F.3d 395, 399 (5th Cir. 2020)).
plausibility of an Eighth Amendment claim against Dr. Kwarteng. D.E. 16, pp. 12–13;
D.E. 1-1, p. 1.2
The Court OVERRULES the objection.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations set
forth in the M&R, as well as the objection to the M&R, and all other relevant documents
in the record, and having made a de novo disposition of the portions of the M&R to which
the objection was specifically directed, the Court OVERRULES the objection and
ADOPTS the Magistrate Judge’s findings and conclusions. Accordingly, the Court
GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss. D.E. 15.
The Court ORDERS that:
(1) Birdow’s claims for money damages against Nurse Chapa and Dr.
Kwarteng in their official capacities are DISMISSED as barred by the
Eleventh Amendment;
(2) Birdow’s state law claim of negligence against Dr. Kwarteng in his
individual capacity is DISMISSED because Dr. Kwarteng is entitled to
immunity under the Texas Tort Claims Act;
(3) Birdow’s claims against UTMB are DISMISSED because UTMB is not
a “person” subject to claims under § 1983;
2 Alternatively, the Court may construe Birdow’s response containing the Eighth Amendment claim against Dr.
Kwarteng as a motion for leave to amend, which the Court should grant freely as justice so requires. United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996). However, this is unnecessary as the Court construes the allegations as
sufficient to raise a deliberate indifference claim.
(4) Nurse Chapa’s defense of qualified immunity is DENIED WITHOUT
PREJUDICE at this time and the Court RETAINS Birdow’s deliberate
indifference claim against Nurse Chapa in his individual capacity;
(5) Pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2), the Court RETAINS
Birdow’s deliberate indifference claim against Dr. Kwarteng in his
individual capacity.
ORDERED on January 28, 2022.
UNITED STATES DISTRICT JUDGE