Perkins v. Townsend

Southem District ot Texas

ENTERED

February 15, 2023

UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

MILTON KEITH PERKINS, §

(TDCI # 928414, TN Inmate # 306588), = §

§ .

Plaintiff, - §

.

vs. § CIVIL ACTION NO. H-21-3962

§

LONNIE TOWNSEND, et al., §

§

Defendants. §

§

MEMORANDUM OPINION AND ORDER

Plaintiff Milton Keith Perkins, a former Texas state inmate proceeding pro se and

in forma pauperis, filed a complaint under 42 U.S.C. § 1983 against Texas Department of

Criminal Justice (“TDCJ”) employee Senior Warden Lonnie Townsend; and University of

Texas Medical Branch (“UTMB”) employees Dr. Edgar Hulipas, Nurse Practitioner

Martha L. Beck, and Physician’s Assistant Robert D. Wilkins. (Docket Entry No. 1). The

Court ordered the defendants to file a response, (Docket Entry No. 6), and they responded

with a motion to dismiss. (Docket Entry No. 8). Perkins filed a response to the motion.

(Docket Entry No. 14). Having considered the motion, the complaint and its attachments,

the response and its attachments, and the applicable law, the Court GRANTS in part and

DENIES in part the motion to dismiss for the reasons explained below.

I. | BACKGROUND AND CLAIMS □

Perkins is a former TDCJ inmate who is now confined in the Riverbend Maximum

Security Institution in Tennessee. In his civil rights complaint, Perkins alleges that the

defendants were deliberately indifferent to two serious medical conditions that he suffered

while confined at TDCJ’s Jester III Unit: a skin cancer and Hepatitis C. (Docket Entry

No. 1). Perkins attached medical records to his complaint that he contends support his

claims. (Docket Entry No. 1-1).

As to the skin cancer, Perkins alleges that he first noticed a lesion on his left temple

in early to mid-February 2020. (Docket Entry No. 1, p. 5). When the lesion started growing

quickly, Perkins submitted a sick-call request to the medical department, and he was seen

by Nurse Beck on March 4, 2020. (Docket Entry Nos. 1, p. 5; 1-1, p. 2). Perkins alleges

that Nurse Beck immediately stated that she “did not like the look of” the lesion and that it

appeared to her to be a possible skin cancer. (Docket Entry No. 1, p. 5). Nurse Beck

walked Perkins to see Dr. Hulipas, and he agreed that the lesion appeared likely to be a

skin cancer. (/d.). Dr. Hulipas directed Nurse Beck to make an expedited appointment for

Perkins with the dermatology department at UTMB’s Hospital Galveston. (/d.). Perkins

told Nurse Beck and Dr. Hulipas that he had been granted parole and was scheduled to be

released shortly. (/d.).

The medical records attached to Perkins’s complaint confirm that Dr. Hulipas

ordered that the referral be expedited. (Docket Entry No. 1-1, p. 2). However, additional

medical records attached to Perkins’s response to the motion to dismiss show that, despite

the apparent seriousness of Perkins’s condition and his imminent release from TDCJ

custody, the Hospital Galveston dermatology appointment was scheduled for more than a

month later, on April 7, 2020.! (Docket Entry No. 14-2, p. 4).

On March 18, 2020, Perkins submitted another sick-call request to medical,

reporting that the lesion was larger and “oozing badly.” (Jd. at 3). He did not report any

pain or discomfort on the sick-call request. (/d.). The medical department apparently did

not examine Perkins in response to this request, but instead simply responded by telling

him to be sure to keep his Hospital Galveston appointment. (/d.).

On April 8, 2020, Perkins went to the medical department because the lesion had

grown much larger and was draining fluid. (Docket Entry No. 1, p. 6). He was also

concerned because he had not yet been transported to Hospital Galveston to see the

dermatologist. (/d.). Both Nurse Beck and another medical department employee, one

Mrs. Whitaker, determined that the appointment had been canceled by Hospital Galveston

“due to covid 19.” (Docket Entry No. 14-2, p. 4). Nurse Beck rescheduled the appointment

for April 21, 2020. (/d.). In the interim, she prescribed pain medication and an antibiotic

for Perkins. (Ud. at 4-5). She also emailed Hospital Galveston to try to secure an earlier

appointment. (/d. at 5).

Perkins alleges that he had a telehealth appointment with the Hospital Galveston

dermatologist two to three weeks later.? (Docket Entry No. 1, p. 6). The dermatologist

‘Because Perkins relies on these records in opposing the defendants’ motion and because

the defendants have not objected to the use of these records, the Court will consider them in ruling

on the defendants’ motion to dismiss. See, e.g., Collins v. Morgan Stanley Dean Witter, 244 F.3d

496, 498-99 (Sth Cir. 2000) (affirming district court’s reliance on documents attached to motion

to dismiss when neither party objected to the documents and the documents were intended to

“assist[] the plaintiff in establishing the basis for the suit’).

*Neither the medical records attached to Perkins’s complaint nor those attached to his

indicated that the lesion appeared to be a skin cancer, that it should be biopsied, and that

she would schedule the biopsy appointment. (/d.). Perkins told the dermatologist that he

was scheduled to be released from TDCJ soon. (d.). Nothing in the records before the

Court shows when, or if, the biopsy was scheduled.

Perkins alleges that on several days between mid-March and early May, he saw

Warden Townsend when the warden was in the boiler room where Perkins worked. (/d. at

7). Perkins alleges that Warden Townsend offered to help secure an earlier appointment

for him with Hospital Galveston, going so far as to take his name and TDCJ number and

say he would “see what he could do.” (/d.). Despite this, Perkins was never notified of an

earlier date for his appointments. (/d.)

On May 4, 2020, Perkins was paroled and extradited to Tennessee without having

had a biopsy or any treatment for his skin cancer. (/d.). As Perkins was being processed

for release, Warden Townsend told Perkins that he had “tried to do what he could” to get

Perkins treatment before he was released. (/d.). Perkins alleges that Warden Townsend

“did not sound convincing” when he said this. (/d.). Ultimately, the lesion was diagnosed

by physicians in Tennessee as a squamous cell carcinoma, and the tumor was surgically

removed in July 2020.’ (Ud. at 8-13). Perkins alleges that he was forced to undergo a much

response include a record of this telehealth visit. However, based on the available records and

Perkins’s allegations, the visit occurred sometime between April 9 and May 1, 2020.

3Perkins’s complaint contains extensive allegations about the delays and problems he had

in securing treatment once he was extradited to Tennessee. (Docket Entry Nos. 1, pp. 8-13; 1-1,

pp. 15-109, 117-41). This Court has no jurisdiction over defendants located in and events that

occurred in Tennessee, and the Court ordered the defendants to respond only to the allegations

relating to Perkins’s time in TDCJ custody.

more extensive surgery than would have been the case had he received prompt and

adequate care while in TDCJ custody.

As to Perkins’s claim concerning his Hepatitis C, he alleges that he was diagnosed

with that disease in June 2000. (Ud. at 14). He alleges that he sought treatment during the

entire twenty years he was in TDCJ custody, but he was repeatedly told he did not qualify.

Perkins alleges that P.A. Wilkins diagnosed him with “significant fibrosis of the

liver” in May 2019, but he was still never offered treatment. (Docket Entry Nos, 1, p. 14;

1-1, pp. 111-16.). Perkins also alleges that even after his “APRI score’ exceeded TDCIJ’s

guidelines for treatment, P.A. Wilkins neither offered nor provided him with treatment.

(Docket Entry No. 1, p. 16). Perkins contends that this refusal to treat him resulted in his

condition worsening over time. (/d.).

Perkins sues the defendants in both their official and individual capacities based on

their alleged deliberate indifference to his serious medical needs. (Docket Entry No. 1, p.

15). As relief, he seeks $2 million in compensatory damages and $2 million in punitive

damages. (/d. at 15). He also seeks an injunction to require TDCJ or UTMB to release

copies of his medical records from March to April 2020 to him. (/d.). In addition, he seeks

an injunction ordering TDCI to provide him with copies of the grievances he filed in 2019

and 2020. (Ud. at 16).

4An “APRI score” is the inmate’s AST/Platelet Ratio Index. See Mendez v. Chang, Civil

No. 2:18-cv-396, 2021 WL 5609855, at *2 (S.D. Tex. June 10, 2021). The score is useful to

medical personnel in determining the degree of fibrosis or cirrhosis in the liver. Id.

The defendants moved to dismiss the claims against them under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). (Docket Entry No. 8). Perkins filed a timely

response to the motion, to which he attached additional medical records. (Docket Entry

No. 14). The defendants have not objected to Perkins’s reliance on these additional

medical records, which were made or created at the time of the events in question but which

were not available to Perkins when he initially filed his complaint.

Il LEGAL STANDARDS

A. Actions Under 42 U.S.C. § 1983

Perkins brings his claims against the defendants under 42 U.S.C. § 1983. “Section

1983 does not create any substantive rights, but instead was designed to provide a remedy

for violations of statutory and constitutional rights.” Lafleur v. Texas Dep’t of Health, 126

F.3d 758, 759 (Sth Cir. 1997) (per curiam); see also Baker v. McCollan, 443 U.S. 137, 144

n.3 (1979). To state a valid claim under section 1983, a plaintiff must (1) allege a violation

of rights secured by the Constitution or laws of the United States, and (2) demonstrate that

the alleged deprivation was committed by a person acting under color of state law. See

West v. Atkins, 487 U.S. 42, 48 (1988); Gomez v Galman, 18 F.4th 769, 775 (Sth Cir. 2021)

(per curiam). When the facts alleged by the plaintiff, taken as true, do not show a violation

of a constitutional right, the complaint is properly dismissed for failure to state a claim.

See, e.g., Samford v. Dretke, 562 F.3d 674, 678 (Sth Cir. 2009) (per curiam); Rios v. City

of Del Rio, Tex., 444 F.3d 417, 421 (Sth Cir. 2006).

B. Motion to Dismiss

The defendants have moved to dismiss Perkins’s complaint under Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure. A motion to dismiss under Rule

12(b)(1) challenges the Court’s subject-matter jurisdiction to hear the case. See Ramming

v. United States, 281 F.3d 158, 161 (Sth Cir. 2001) (per curiam). Such a motion is properly

granted when the Court lacks the statutory or constitutional power to hear the case, such as

when the claims alleged are barred by a state’s sovereign immunity. See High v. Karbhari,

774 F. App’x 180, 182 (Sth Cir. 2019) (per curiam) (citing Little v. KPMG LLP, 575 F.3d

533, 540 (Sth Cir. 2009), and Meyers ex rel. Benzing v. Texas, 410 F.3d 236, 240 (Sth Cir.

2005)).

A motion under Rule 12(b)(6) is properly granted when the plaintiff's complaint

fails to state a claim upon which relief can be granted. When considering a motion under

Rule 12(b)(6), “the factual information to which the court addresses its inquiry is limited

to the (1) the facts set forth in the complaint, (2) documents attached to the complaint, and

(3) matters of which judicial notice may be taken under Federal Rule of Evidence 201.”

Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 735 (Sth Cir. 2019). The Court

“accepts all well-pleaded facts as true, viewing them in the light most favorable to the

plaintiff.’ Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 305 (Sth Cir. 2020).

However, to survive a motion to dismiss, the complaint must set forth “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007); Gomez, 18 F.4th at 775. For a claim to be plausible on its face, it must

allege facts showing that the entitlement to relief is “more than a sheer possibility.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To meet this standard, the plaintiffs

allegations must “allow[] the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id.

C. Pro Se Pleadings

Because Perkins is representing himself, the Court construes his filings liberally,

subjecting them to “less stringent standards than formal pleadings drafted by lawyers[.]”

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But even under this liberal

standard, pro se litigants must still “abide by the rules that govern the federal courts.”

E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (Sth Cir. 2014). They must also “properly

plead sufficient facts that, when liberally construed, state a plausible claim to relief, serve

defendants, obey discovery orders, present summary judgment evidence, file a notice of

appeal, and brief arguments on appeal.” Jd. (footnotes omitted).

I. ANALYSIS

A. Official Capacity Claims

1. Claims for Damages

To the extent that Perkins sues the defendants in their official capacities for money

damages, his claims are barred under the doctrine of sovereign immunity. Sovereign

immunity bars actions against a state or state official unless Congress has abrogated such

immunity or the state has specifically waived its immunity. See Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 66 (1989). Congress did not abrogate the states’ sovereign

immunity when it enacted section 1983. Jd. And the State of Texas has not waived its

sovereign immunity for purposes of section 1983 actions. See Tex. A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (“It is up to the Legislature to institute such a

waiver, and to date it has not seen fit to do so.”); see also Putnam v. Iverson, No. 14-13-

00369-CV, 2014 WL 3955110, at *3 (Tex. App. — Houston [14th Dist.] Aug. 14, 2014, pet.

denied) (the Texas Legislature has not waived sovereign immunity for any claim brought

under section 1983). Since immunity has not been waived, it bars Perkins’s claims for

damages against the defendants in their official capacities.

The fact that Perkins has sued state employees, rather than the state itself, does not

change this analysis. When a government employee is sued in his or her official capacity,

the employing entity is the real party in interest for the suit. See Kentucky v. Graham, 473

U.S. 159, 165-66 (1985) (explaining that official-capacity suits “generally represent only

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

“treated as a suit against the entity” (quoting Monell v. Dep’t of Social Servs., 436 U.S.

658, 690 n.55 (1978))). Perkins’s claims for money damages against each of the defendants

in their official capacities are construed as claims against the State of Texas. These claims

are barred by sovereign immunity and are dismissed with prejudice.

2. Claims for Injunctive Relief

Perkins also seeks injunctive relief against the defendants in their official capacities,

asking this Court to order the defendants to provide him with copies of his medical and

grievance records. (Docket Entry No. 1, pp. 15-16). When a plaintiff makes a claim for

injunctive relief in a section 1983 action, sovereign immunity bars the claim if it is based

on a past, rather than an ongoing, violation of federal law. See Green v. Mansour, 474 U.S.

64, 73 (1985) (citing Ex parte Young, 209 U.S. 123 (1908)). If “there is no continuing

violation of federal law to enjoin in this case, an injunction is not available.” Jd. at 71.

In his response to the defendants’ motion to dismiss, Perkins admits that he has now

received the medical records he was seeking. (Docket Entry No. 14, p. 3). Because any

possible violation of federal law relating to his medical records is no longer ongoing,

Perkins is not entitled to injunctive relief on this claim. And while Perkins does not allege

that he has received the grievance records he seeks, he does not show that the failure to

provide him with copies of his grievance records constitutes a violation of federal law—a

necessary element of a claim under section 1983. Perkins’s claims for injunctive relief are

therefore dismissed for failing to state a claim upon which relief can be granted.

B. Individual Capacity Claims

Perkins also sues each of the defendants in their individual capacities based on their

alleged violations of his Eighth Amendment rights. The Eighth Amendment protects

prisoners from cruel and unusual punishment arising from prison officials’ deliberate

indifference toward a prisoner’s injury or pain. See Estelle v. Gamble, 429 U.S. 97, 105

(1976). To prevail on a deliberate indifference claim, the prisoner must prove that the

prison official acted with “deliberate indifference” to a “serious medical need” in a manner

that “constitutes the unnecessary and wanton infliction of pain[.|’” Jd. at 104 (cleaned up);

see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S.

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294, 297 (1988)). Deliberate indifference may be “manifested by prison doctors in their

response to the prisoner’s needs or by prison guards in intentionally denying or delaying

access to medical care or intentionally interfering with the treatment once prescribed.”

Estelle, 429 U.S. at 104-05 (cleaned up).

To establish deliberate indifference, the plaintiff must show that the defendant both

“knows that inmates face a substantial risk of serious bodily harm and disregards that risk

by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847; see also

Cleveland v. Bell, 938 F.3d 672, 676 (Sth Cir. 2019). This standard is “extremely high.”

Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (Sth Cir. 2001). “Actions and

decisions by officials that are merely inept, erroneous, ineffective or negligent” do not

amount to deliberate indifference. Alton v. Tex. A&M Univ., 168 F.3d 196, 201 (Sth Cir.

1999). Neither do “[u]nsuccessful medical treatment, acts of negligence, . . . medical

malpractice” or “a prisoner’s disagreement with his medical treatment, absent exceptional

circumstances.” Gobert v. Caldwell, 463 F.3d 339, 346 (Sth Cir. 2006) (cleaned up).

Instead, “the prisoner must prove that the officials, despite their actual knowledge of the

substantial risk [of serious harm], denied or delayed the prisoner’s medical treatment.”

Petzold v. Rostollan, 946 F.3d 242, 249 (Sth Cir. 2019). This requires the prisoner to

submit evidence 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, 463 F.3d at 346

(cleaned up).

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1. Senior Warden Townsend

Perkins alleges that Warden Townsend is liable to him for deliberate indifference

under two different theories: first, under a theory of supervisory liability because he “was

the overseer of the employees, including the medical department staff’ at TDCJ’s Jester III

Unit; and second, under a theory of personal liability because he “elected not to get

involved” in the scheduling with Hospital Galveston despite knowing of the seriousness of

Perkins’s condition. (Docket Entry No. 1, p. 18).

To the extent that Perkins seeks to hold Warden Townsend liable under a theory of

supervisory liability, he does not state a viable claim. Under section 1983, supervisory

officials may not be held liable for the actions of their subordinates under a theory of

vicarious liability. Instead, the supervisory official must have been either “personally

involved in the alleged constitutional deprivation or have engaged in wrongful conduct that

is causally connected to the constitutional violation.” Turner v. Driver, 848 F.3d 678, 695-

96 (Sth Cir. 2017); see also Thompson v. Steele, 709 F.2d 381, 382 (Sth Cir. 1983) (noting

that section 1983 does not provide a cause of action based on the actions of subordinates).

Perkins’s claim that Warden Townsend is liable under section 1983 based on the alleged

failings of the medical staff is a claim for supervisory liability that is not actionable under

section 1983. The claim against Warden Townsend based on supervisory liability fails to

state a claim upon which relief can be granted.

However, Perkins also seeks to hold Warden Townsend liable for his own failure to

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act, which Perkins’s alleges shows the warden’s deliberate indifference to Perkins’s serious

medical needs. Perkins alleges that Warden Townsend saw the growing lesion on his face

on several occasions, expressed concern about his well-being, and took his name and

inmate number so that he could attempt to secure an earlier appointment for Perkins at

Hospital Galveston for diagnosis and treatment. Nevertheless, Perkins’s appointments

were never rescheduled to an earlier date. Perkins alleges that these facts show that Warden

Townsend was aware of Perkins’s serious medical needs but intentionally disregarded them

by failing to take reasonable measures to abate them, i.e., by failing to make a telephone

call to secure an earlier appointment for Perkins to be treated.

These allegations, which the Court must take as true at this stage of the proceedings,

are sufficient to allege a claim for deliberate indifference by Warden Townsend in his

personal, rather than supervisory, capacity. Warden Townsend’s comments, expressions

of concern, and offer to try to secure an earlier appointment demonstrate that he was

subjectively aware of the serious nature of Perkins’s condition. See Easter, 467 F.3d at

463 (noting that the deliberate indifference standard requires a showing that the official is

subjectively aware of the risk of harm). Warden Townsend was aware of Perkins’s

imminent release from TDCJ custody, and his failure to assist in securing an earlier

appointment for Perkins could, if proven, show that he intentionally failed to take

reasonable steps to abate the harm Perkins was suffering.

Accordingly, Perkins’s complaint contains sufficient allegations to state a claim that

Warden Townsend was personally involved in the alleged constitutional deprivation

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suffered by Perkins. Warden Townsend’s motion to dismiss the damages claim against

him in his personal, rather than supervisory, capacity is denied.

2. Dr. Hulipas and Nurse Practitioner Beck

Perkins alleges that Dr. Hulipas and Nurse Beck are liable to him under section 1983

for their deliberate indifference because they neither treated his skin cancer nor made

timely arrangements for any other provider to treat him.

Perkins alleges, and the medical records show, that both Dr. Hulipas and Nurse Beck

identified the lesion on Perkins’s face as a possible skin cancer on March 4, 2020. Perkins

miles that both Dr. Hulipas and Nurse Beck were also aware that he was soon to be

released from TDCJ custody. While Dr. Hulipas ordered an expedited appointment for

Perkins with the Hospital Galveston dermatologist, that appointment was scheduled for

April 7, 2020—more than a month later. In addition, when that appointment was canceled

by Hospital Galveston, neither Dr. Hulipas nor Nurse Beck contacted Perkins, nor did □□□□

make any attempt to reschedule it. Only after Perkins came to the medical department on

April 8 to question why he had not been transported was the appointment rescheduled.

And even then, the appointment was rescheduled for April 21—almost two weeks later.

Reading Perkins’s complaint liberally, he alleges that Dr. Hulipas and Nurse Beck were

deliberately indifferent because they did not schedule his Hospital Galveston appointment

for an earlier date and made no attempt to reschedule it after it was canceled.

*The fact that no arrangements were made to escort Perkins to the scheduled appointment on April

7 gives rise to an inference that prison officials were avare that the appointment had been canceled.

Delays in medical treatment may be unconstitutional if they are the result ofa prison

official’s deliberate indifference and if they result in substantial harm. See, e.g., Easter v.

Powell, 467 F.3d 459, 464-65 (Sth Cir. 2006); Mendoza v. Lynaugh, 989 F.2d 191, 195

(5th Cir. 1993). This includes an intentional failure to schedule, or an intentional delay in

scheduling, an appointment with a specialist for additional care. See, e.g., Thomas v.

Carter, 593 F. App’x 338, 343-44 (5th Cir. 2014); Miles v. Rich, 576 F. App’x 394, 396-

97 (5th Cir. 2014) (unjustified delays in surgery can constitute deliberate indifference). It

also includes delays in a prisoner’s treatment for non-medical reasons. See Smith v.

Linthicum, No. 21-20232, 2022 WL 7284285, at *5 (Sth Cir. Oct. 12, 2022) (holding that

delays in treatment for any reason other than genuine medical judgment could evidence a

wanton disregard for serious medical need); Delaughter v. Woodall, 909 F.3d 130, 138 n.7

(Sth Cir. 2018) (same).

Perkins alleges that just such an unjustified delay occurred in his case, which

resulted in his skin cancer being left to grow untreated. He alleges that Dr. Hulipas and

Nurse Beck delayed his appointments in the hope that he would be released from TDCJ

custody before the appointments occurred, thereby preventing TDCJ from having to

provide cancer treatments. He also alleges that the delays resulted in the need for a much

more extensive surgery after he was extradited to Tennessee. These allegations are

sufficient to state a claim for deliberate indifference based on delays in treatment due to

non-medical reasons.

In their motion to dismiss, Dr. Hulipas and Nurse Beck point to the medical records

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attached to Perkins’s complaint to show that they did not ignore Perkins’s complaints.

However, the medical care provided to a prisoner must be adequate considering the severity

of the prisoner’s condition and professional norms. See Farmer, 511 U.S. at 832. While

these medical records might be sufficient to rebut a claim that Dr. Hulipas and Nurse Beck

ignored Perkins’s complaints, the records do not address Perkins’s claim of an

unconstitutional delay in providing treatment. Both Dr. Hulipas and Nurse Beck identified

the lesion as a possible skin cancer—a serious condition—on March 4, 2020. Nothing in

the attached medical records explains why Perkins was neither diagnosed nor treated in

any way before his release two months later. The records do not show that ie Dr.

Hulipas or Nurse Beck acted with the urgency commensurate with a likely cancer diagnosis

or that they provided timely and adequate care to Perkins. These records, standing alone,

do not overcome Perkins’s allegations of an unconstitutional delay in receiving treatment.

Perkins’s allegations against Dr. Hulipas and Nurse Beck are sufficient to state a

claim against them for deliberate indifference arising from the delays in treatment. The

motion to dismiss Perkins’s claims for damages against Dr. Hulipas and Nurse Beck

individually is denied.

3. Physician’s Assistant Wilkins

Finally, Perkins alleges that Physician’s Assistant Wilkins is liable to him under

section 1983 because he was deliberately indifferent to Perkins’s Hepatitis C, repeatedly

refusing to provide Perkins with medication or other treatment despite his numerous

requests for treatment.

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The medical records attached to Perkins’s complaint show that, while P.A. Wilkins

regularly saw Perkins for monitoring of his Hepatitis C, no treatment was provided. The

lack of treatment continued even after Perkins was diagnosed with “significant fibrosis” of

his liver and after his APRI score exceeded the level set for treatment under TDCI policies.

Perkins alleges that he repeatedly requested treatment, but that P.A. Wilkins refused to

provide or refer him for treatment, in contravention of TDCJ’s own treatment guidelines

and policies.

Taken as true, Perkins alleges that P.A. Wilkins intentionally treated him incorrectly

by failing to treat him in accordance with TDCJ’s Hepatitis C treatment guidelines and

policies. These allegations state a claim for deliberate indifference that is sufficient to

withstand a motion to dismiss. Compare Grumbles v. Livingston, 706 F. App’x 818, 819-

20 (5th Cir. 2017) (affirming dismissal of deliberate indifference claim when the records

showed that the prisoner was treated in accordance with TDCJ Hepatitis C policies);

McCorkel v. Gomez, No. 7:21-cv-334, 2021 WL 9476908, at *4 (S.D. Tex. Nov. 18, 2021)

_ (finding no deliberate indifference when TDCJ physician’s denied treatment in accordance

with TDCJ’s Hepatitis C treatment guidelines). P.A. Wilkins’s motion to dismiss Perkins’s

damages claim against him individually is denied.

IV. CONCLUSION

For the above reasons, the defendants’ motion to dismiss (Docket Entry No. 8) is

GRANTED as to Perkins’s claims against the defendants in their official capacities and

GRANTED as to his claim against Warden Townsend based on supervisory liability. The

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motion is also GRANTED as to Perkins’s claims for injunctive relief. These claims are

DISMISSED with prejudice.

The motion to dismiss is DENIED as to Perkins’s claims for damages against

Warden Townsend individually based on his personal actions, and as to the claims for

damages against Dr. Hulipas, Nurse Beck, and Wilkins individually.

The defendants shall answer Perkins’s complaint or file a dispositive motion within

60 days from the date of this Order.

SIGNED at Houston, Texason _/ Y Rbrwsy , 2023.

Wea

KEITH P. ELLISON

UNITED STATES DISTRICT JUDGE

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