Luna v. Veronica LNU

UNITED STATES DISTRICT COURT September 25, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

VICTORIA DIVISION

LARRY DEAN LUNA, §

§

Plaintiff, §

§

v. § Civil Action No. 6:21-CV-00017

§

VERONICA GRANADOS, RHONDA §

ULLMAN, KATRINA LAWSON, §

ROBIN DELEON, GAYLE §

BRUMBELOW, MADISON MACHAC, §

KOURTNE ROBERTS, ASHLEY BLACK, §

and VICTORIA COUNTY, TEXAS, §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Larry Dean Luna alleges that he was denied adequate medical and dental

care while confined in the Victoria County Jail and has filed an Amended Complaint

alleging that his civil rights were violated as a result. He. (Dkt. No. 14). He proceeds pro

se and in forma pauperis. (Dkt. No. 12). After Luna provided additional details at a

Spears hearing,1 Magistrate Judge Jason B. Libby issued a Memorandum and

Recommendation (“M&R”) that recommended retaining claims against several

defendants and dismissing all other claims under the screening criteria for complaints

governed by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, and 28 U.S.C.

1 A Spears hearing, which the Fifth Circuit authorized in Spears v. McCotter, 766 F.2d 179

(5th Cir. 1985), is an “evidentiary hearing in the nature of a Fed. R. Civ. P. 12(e) motion for more

definite statement.” Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Its purpose is “to flesh out the

allegations of a prisoner’s complaint to determine whether in forma pauperis status is warranted

or whether the complaint, lacking an arguable basis in law or fact, should be dismissed

summarily as malicious or frivolous.” Ibid.

§ 1915(e)(2)(B). (Dkt. No. 49). The undersigned accepted the M&R on November 2, 2021.

(Dkt. No. 57).

Defendants Victoria County, Veronica Granados, Katrina Lawson, Robin DeLeon,

Gayle Brumbelow, Madison Machac, Kourtne Roberts, and Ashley Black have now filed

a Motion for Summary Judgment, arguing that Luna has not demonstrated that he was

denied constitutionally adequate care and that the individual Defendants are entitled to

qualified immunity. (Dkt. No. 94). Luna has filed a Response, which raises claims against

Rhonda Ullman, who was formerly identified by him as Rhonda Williams. (Dkt. No. 98).

For the reasons discussed below, the Court GRANTS the Defendants’ Motion for

Summary Judgment, (Dkt. No. 94) and DISMISSES this case.

I. BACKGROUND

A. THE PARTIES

Luna is presently serving a sentence of imprisonment in the Texas Department of

Criminal Justice (“TDCJ”) as the result of a conviction from Victoria County. (Dkt. No.

33 at 5, 43).2 This case concerns the conditions of Luna’s confinement in the Victoria

County Jail (the “Jail”), where he was in custody most recently from November 12, 2020,

through June 17, 2021, when he was transferred to TDCJ following his conviction on June

3, 2021. (Dkt. No. 33 at 43, 71); (Dkt. No. 94-4 at 1).

Luna’s initial pleading, which is dated April 14, 2021, consisted of a hand-written

letter seeking leave to proceed with a lawsuit in forma pauperis against the Jail, the

2 For purposes of identification, all page numbers refer to the pagination imprinted at the

top of the page by the court’s Electronic Case Filing (“ECF”) system.

Victoria County Sheriff’s Office, and the Jail Medical Department. (Dkt. No. 1). On April

27, 2021, Luna filed an Amended Complaint against the Jail and several medical

providers who treated him while he was at that facility. (Dkt. No. 14 at 10). Veronica

Granados was a Nurse Practitioner who provided medical care to inmates at the Jail clinic

through her employment with the medical group Victoria Hospitalist Associates, LLC.

(Dkt. No. 94-4 at 2). Dr. Kourtne Roberts was a psychiatrist who provided services to

inmates at the Jail through Crossroads Psychiatry. (Id.). Katrina Lawson, Robin DeLeon,

Gayle Brumbelow, Madison Machac, and Ashley Black were nurses employed at the Jail.

(Id.). Victoria County, which was substituted in place of the Jail, is also a Defendant.

(Dkt. No. 50).

B. LUNA’S ALLEGATIONS

Luna’s primary allegation is that he was “refused quality treatment” at the Jail for

a medical condition known as priapism. (Dkt. No. 14 at 4–8). The Defendants have

provided an affidavit from one of the urologists who treated Luna for priapism,

Dr. Aaron New, who offers the following description of this condition and the types of

treatment available:

Priapism is a medical issue where blood becomes trapped in

the penis and causes long and painful erections. It has many

causes including the use of certain medications and illicit

drugs. Priapism is commonly treated with medication to

restrict blood flow to the penis, such as Sudafed or, in more

extreme cases, direct injections of phenylephrine into the

penis or arm. We can also drain the blood from the penis

through a procedure called aspiration. If these procedures are

ineffective in curbing the recurrence of priapism erections, we

generally recommend that a patient consider penile shunt

surgery.

(Dkt. No. 94-5 at 1). Dr. New explains that there are various types of shunt surgeries,

which can prevent a recurrence of priapism when injections and aspiration treatments

fail to work. (Id. at 2). Possible risks associated with penile shunt surgery include

impotency and gangrene. (Id.).

Luna alleged that has he lost all function in his penis as a result of the Defendants’

refusal to send him to a urologist when he experienced priapism erections while at the

Jail. (Dkt. No. 14 at 9). Luna alleged further that he was denied care by a dentist for a

broken tooth that he sustained while in custody at the Jail. (Id.). He provided few details,

however, repeating the same claim against a list of 20 defendants who reportedly denied

him “quality” medical care by a specialist. (Id. at 4-8).

For purposes of screening the pleadings under the PLRA, 28 U.S.C. § 1915A, and

28 U.S.C. § 1915(e)(2)(B), which applies in all cases filed by an indigent litigant, Judge

Libby held a Spears hearing on June 8, 2021, giving Luna an opportunity to provide

additional details in support of his claims under oath.3 (Dkt. No. 33). Luna explains that

he developed priapism after he was diagnosed with “myeloid leukemia cancer” by

doctors at the University of Texas Medical Branch (“UTMB”) John Sealey Hospital in

2006, while he was imprisoned in TDCJ. (Id. at 27–28). Luna was released from prison in

2007, without receiving any treatment for cancer or priapism. (Id. at 28).

While out of custody Luna received treatment for priapism from a local Victoria

urologist named Dr. White, who prescribed Sudafed as a blood-thinner medication to

3 See, supra, note 1.

prevent prolonged erections. (Id. at 28, 29). Luna explains that priapism erections that

do not resolve on their own require treatment from a urologist, who can administer a shot

or drain blood from the penis to release pressure. (Id. at 31–32). Without intervention

from a urologist, Luna claims that an erection lasting over four hours can result in

permanent damage that would require an operation to prevent death by blood poisoning.

(Id.).

Luna estimates that he was incarcerated around 15 times between 2006 and 2020,

and that he stayed at the Jail in Victoria County on approximately 30 occasions during

this period. (Dkt. No. 94-1 at 7). When he was not in custody Luna was able to control

his priapism with Sudafed that he purchased over the counter at the local grocery store

or Walmart. (Id. at 4). Luna asserts that he required at least nine trips to the local

emergency room between January and August 2020, when he was reportedly released

from the Jail on a personal-recognizance bond. (Dkt. No. 33 at 34–35).

While out on bond Luna had a series of priapism erections. In early October 2020,

Luna sought treatment for one of those erections at the Citizens Medical Center

Emergency Room (“CMC-ER”) in Victoria, which sent him by ambulance to have blood

drained from his penis by a urologist in Houston. (Id. at 37). Shortly thereafter, Luna

went to DeTar Hospital in Victoria, which sent him by ambulance to a urologist in San

Antonio, who performed the same procedure. (Id. at 38). After the procedure, the

urologist in San Antonio recommended that Luna have an operation, but Luna refused.

(Id.). After experiencing another painful erection days later, Luna went to a hospital in

Houston, where a urologist drained blood from his penis in the emergency room. (Id. at

39). This urologist reportedly told Luna that his penis was permanently damaged from

having “long erections without immediate urologist aid.” (Id. at 40). The urologist gave

Luna a choice: have an operation to permanently stop his erections or die of blood

poisoning. (Id.). Luna had the operation in Houston in early October 2020, and now

claims that he has lost all normal function in his penis because he can no longer self-

stimulate to achieve an erection. (Dkt. No. 14 at 9); (Dkt. No. 94-1 at 18). He also has

lingering numbness and discomfort in his penis. (Dkt. No. 94-1 at 18).

Complications with the sutures from his surgery caused Luna to miss a court date

for some misdemeanor charges that were pending against him in Victoria County on

October 14, 2020, and he was subsequently arrested on new felony drug charges on

November 12, 2020. (Dkt. No. 33 at 44). When he returned to the Jail on that date, Luna

alleges that “provider Veronica” (Granados) refused him care for the surgical wound on

his penis, which then became infected. (Id. at 45). He claims that his penis is now

deformed because the scar did not heal correctly. (Id. at 46). In addition, despite having

surgery Luna alleges that he continued having priapism erections at the Jail during the

early 2021, but that he was not sent to a urologist until the end of March 2021. (Id. at 49).

Luna blames all of the Defendants and Nurse Rhonda Williams for not sending him to a

urologist sooner. (Id. at 55–57, 61–62, 69).

Luna also alleges that he was denied adequate dental care for a damaged tooth

that he sustained at the Jail in December 2020. (Dkt. No. 14 at 9). Luna explains that he

bit into a piece of wire that was in his mashed potatoes due to the negligence of kitchen

staff. (Dkt. No. 33 at 13). A detention officer pulled the wire from Luna’s mouth, breaking

part of his tooth. (Id.). A nurse named “Ms. Madison” (Machac) gave him some aspirin

and told him that he would be placed on the dentist list. (Id. at 15). When Luna told her

that he had swallowed some of the metal, she advised him that she would recommend x-

rays. (Id.). X-rays taken days later at a local hospital showed that Luna had ingested

some metal. (Id. at 17). The wire was described as thin, like a “bread tie.” (Id. at 18).

Luna, who has Hepatitis-C and cirrhosis of the liver, eventually began throwing up

blood. (Id. at 22). Luna saw a gastroenterologist in March 2021, but he did not see a

dentist until April 2021. (Id. at 22–23). Luna seeks monetary damages for his medical

bills as well as compensation for his pain and suffering. (Id. at 57).

C. THE SUMMARY JUDGMENT MOTION AND EVIDENCE

The Defendants move for summary judgment on Luna’s claim that he was denied

adequate medical or dental care, asserting that he fails to establish a constitutional

violation. (Dkt. No. 94 at 11–12). Arguing further that Luna fails to demonstrate a

violation of clearly established law, the individual Defendants assert that they are entitled

to qualified immunity from his claims. (Id. at 12). In support, the Defendants present

excerpts of Luna’s deposition testimony and portions of the Spears hearing transcript.

(Dkt. No. 94-1); (Dkt. No. 94-2). The Defendants present affidavits from Dr. John McNeill,

an internal-medicine specialist who serves as an attending physician at the Jail, Nurse

Supervisor Rhonda Ullman (“Nurse Ullman”), Dr. New, and Dr. Dharmendra Verma,

who is a gastroenterologist. (Dkt. No. 94-3); (Dkt. No. 94-4); (Dkt. No. 94-5); (Dkt. No. 94-

6). The Defendants also present selected medical records of treatment that Luna received

while at the Jail from November 12, 2020, through June 17, 2021. (Dkt. No. 94-7). The

Defendants’ evidence is summarized below.

Nurse Ullman explains that she reviews all requests for medical care by inmates

at the Jail and responds to those requests based on the severity of the symptoms or the

urgency of the request. (Dkt. No. 94-4 at 1). Inmates may receive a written response to

their request or be assessed in the Jail clinic by nursing staff or Dr. McNeill. (Id.); (Dkt.

No. 94-3 at 1). One of Dr. McNeill’s primary responsibilities is to directly assess inmates

and recommend further treatment. (Dkt. No. 94-3 at 1); (Dkt. No. 94-4 at 1). Dr. McNeill

may refer an inmate to the CMC-ER or to specialists for appointments regarding more

severe or complex medical issues. (Dkt. No. 94-3 at 1). Either Dr. McNeill or another

treating physician at the CMC-ER can refer an inmate to a specialist. (Dkt. No. 94-4 at 1).

Dr. McNeill explains that the process for an inmate to see a specialist is the same

as for citizens in the free world by requesting an appointment with the provider, getting

on a list, and waiting on that list for an appointment subject to the specialist’s current

bookings and the severity of need. (Dkt. No. 94-3 at 1). Urgent matters are referred

immediately to the CMC-ER, where inmates can also be referred to a specialist. (Id.).

Dr. McNeill, who also serves as the Victoria County Health Authority through the

Victoria Public Health Department, is not at the Jail full-time. (Id.). He is, however, there

on a weekly basis and is always available remotely to confer with Jail medical staff,

recommend treatment, and prescribe medication. (Id.). The Jail employs nurses who are

authorized to address requests, administer prescribed medication, and refer inmates for

urgent care. (Dkt. No. 94-4 at 1). The nurses are full-time employees, but they do not

provide care 24 hours per day and are not present on weekends. (Id.).

The Defendants note that there are no medical records showing that Luna was ever

diagnosed with leukemia, and tests performed at the Jail disclosed no evidence of cancer.

(Dkt. No. 94 at 2); (Dkt. No. 94-3 at 2). Dr. McNeill saw Luna for complaints of an acute,

painful erection while he was in custody at the Jail on February 14, 2018. (Dkt. 94-3 at 1).

Dr. McNeill prescribed Sudafed to treat his priapism and provided a referral to the CMC-

ER. (Id.). Dr. McNeill referred Luna to the CMC-ER again for complaints of an erection

lasting more than four hours on July 31, 2019. (Id.).

According to Dr. McNeill, Luna asked to see a urologist on November 5, 2019, due

to another prolonged erection.4 (Id. at 2). Dr. John White, who served as Luna’s previous

urologist, advised Dr. McNeill that he had recommended a surgical procedure to mitigate

the recurrence of Luna’s priapism. (Id.). Luna, who was 49 years of age at the time this

case was filed, testified during his deposition that he refused to have the surgery because

he was still young and feared becoming impotent. (Dkt. No. 94-1 at 10–11).

The Defendants report that Luna was released on bond on November 21, 2019, and

he did not return to the Jail until a year later on November 12, 2020. (Dkt. 94 at 3).

Therefore, the Defendants argue that Luna’s claim that he was denied medical care at the

Jail between January and August 2020 is unsupported. (Id.).

4 The Defendants have not provided medical records of the care provided to Luna at the

CMC-ER or by any of the specialists who treated him during October 2020.

According to Dr. McNeill, Luna went to the CMC-ER while he was out of custody

on October 2, 2020, complaining about priapism. (Dkt. No. 94-3 at 2). Luna reported

having a history of methamphetamine and cocaine use, which can cause priapism. (Id.);

(Dkt. No. 94-5 at 1). He also reported having cancer, but provided no documentation or

information about the physician who diagnosed this condition, and his lab results were

normal. (Dkt. No. 94-3 at 2). Shortly thereafter, Luna was treated by a urologist in San

Antonio named Dr. Robert Norman. (Id.). Luna reportedly refused surgical intervention

that Dr. Norman recommended as treatment for his priapism, which had required

“repeat aspiration or draining of the penis and intracorporeal PE injections.” (Id.).

On October 6, 2020, Luna had penile shunt surgery at Memorial Hermann

Hospital in Houston. (Dkt. No. 94-3 at 3); (Dkt. No. 94-7 at 47). A urologist named Dr.

Hajar Ayoub performed the procedure, (id. at 2–3), which Dr. New describes as “creating

a connection, or ‘shunt,’ between the cavernosa and the glands of the penis.” (Dkt. No.

94-5 at 2). Dr. New states that pain and swelling are common after this procedure, which

requires making an incision into the head of the penis. (Id.).

A week after the procedure, on October 14, 2020, Luna reported to the CMC-ER,

complaining of penile pain, but left before seeing anyone. (Id. at 2). Luna returned to the

CMC-ER on October 19, 2020, and was prescribed Clindamycin, Bactrim, and Tylenol

with Codeine for his complaints of pain from the surgical procedure performed by Dr.

Ayoub. (Id.). Dr. McNeill notes that Luna did not fill the prescriptions or follow up with

Dr. New as instructed during that visit. (Id.). On October 25, 2020, Luna again sought

wound care for the penile incision at the CMC-ER. (Id.). According to Dr. McNeill,

Luna’s penis was observed to be healing with no sign of infection. (Id.).

Medical records show that, following Luna’s arrest on drug charges on November

12, 2020, he was evaluated at the CMC-ER, where he tested positive for

methamphetamine. (Dkt. No. 94-3 at 2); (Dkt. No. 94-7 at 6). He was cleared for booking

into the Jail with outpatient care for chronic substance abuse and priapism. (Dkt. No. 94-

7 at 5). The provider who examined Luna noted a “[s]ingle small superficial incision” on

his penis, but there was no indication of infection. (Id. at 4). He was discharged in “good”

condition with instructions to keep the wound area clean and dry. (Id. at 5). According

to Nurse Ullman, Luna was prescribed several medications upon his return to the Jail,

including Buproprion, Diuaproex, Hibiclens, antibiotic cream for the incision on his

penis, and Sudafed for his priapism. (Dkt. No. 94-4 at 2).

On November 13, 2020, Luna complained of penile pain and requested a wound

check on his incision. (Dkt. No. 94-4 at 2). Luna was sent back to the CMC-ER, where

records show that he had a testicular ultrasound in consultation with Dr. New. (Dkt. No.

94-7 at 7); (Dkt. No. 94-5 at 2). The ultrasound showed that his testicles were normal in

appearance with normal vascular flow. (Dkt. No. 94-7 at 7). Other than some “mild

diffuse soft tissue swelling” at the base of the penis, which is common following shunt

surgery, Dr. New concluded that Luna’s penis was healing properly and that there were

no signs of infection. (Dkt. No. 94-5 at 2). Dr. New prescribed Sudafed to prevent further

recurrence of priapism and Acetaminophen for pain management. (Id.).

Luna submitted a sick call request at the Jail on November 15, 2020, seeking urgent

care for pain in his genital area and penis. (Dkt. No. 94-7 at 9). Nurse Brumbelow

observed that he had bloody drainage at the tip of his penis, where his surgical incision

was located. (Id.). After Luna told her that he had been having erections “off and on all

day,” she contacted Dr. McNeill. (Id.). Dr. McNeill referred Luna to the CMC-ER. (Dkt.

No. 94-3 at 2). Medical records show that Luna had laboratory tests and was given

information about proper hygiene. (Dkt. No. 94-7 at 10). Luna’s penis was observed to

be clean and dry with no sign of infection. (Dkt. No. 94-3 at 2). He was discharged to

return to Jail with a prescription for Tramadol as needed for acute pain and instructions

to follow up with a urologist. (Dkt. No. 94-7 at 10).

On November 23, 2020, Luna was seen in the Jail clinic for urinalysis that was

requested by a provider after he complained of painful urination. (Dkt. No. 94-4 at 2);

(Dkt. No. 94-7 at 12). The nurse who saw him that day noted no other issues. (Id.).

According to Nurse Ullman, the incision on his penis remained dry and clean. (Dkt. No.

94-4 at 2).

On December 13, 2020, Luna complained of pain in his penis and prolonged

erections. (Dkt. No. 94-4 at 2). Nurse Ullman contacted the urologist who saw Luna in

San Antonio, Dr. Norman, who provided the Jail with medical records of his treatment.

(Id.). Luna was given a generic form of Sudafed (SudaGest) and he was also prescribed

a hydrating cream for his penis. (Id.).

On December 19, 2020, Luna complained that he was not receiving adequate

wound care for his surgical incision and asked to see a urologist. (Dkt. No. 94-4 at 3). Jail

medical staff again contacted Dr. Norman in San Antonio and confirmed that Luna had

refused further treatment interventions or operative care, but had been discharged in

stable condition without the need for further intervention. (Id.). Nurse Ullman explains

that the Jail did not have any records of the operation performed by Dr. Ayoub in

Houston. (Id.).

On December 21, 2020, Luna complained of a broken tooth that occurred on

December 18, 2020, when a Jail detention officer pulled a piece of wire out of Luna’s

mouth. (Dkt. No. 94-4 at 3). According to Nurse Ullman, the piece of metal was

contraband that Luna was attempting to conceal in his mouth from Officer Eddie Flores.

(Id.). Nursing staff observed no redness or swelling around Luna’s tooth. (Dkt. No. 94-3

at 3). Nurse Machac gave Luna pain medication and placed him on the waiting list to see

a dentist. (Dkt. No. 94-4 at 3) Luna was also given more psychiatric medication. (Id.).

Although Luna complained about the wound on his penis, the incision was observed to

be dry and healed. (Id.)

On December 24, 2020, Luna submitted a sick call request for x-rays of his tooth

and stomach. (Dkt. No. 94-7 at 13). A staff member responded by advising Luna that he

was already on the dentist list. (Id.). Medical records reflect that Luna had an x-ray of

his abdominal cavity at the Jail several days later on December 29, 2020, which revealed

foreign bodies that looked like “hairpins or possibly paperclips” in his abdomen. (Dkt.

No. 94-7 at 14). X-rays taken the following day at the CMC-ER confirmed a “U shaped

thin linear metallic” object in his colon, near the rectum. (Id. at 15, 17). The physician

who treated Luna explained that no treatment was required because the swallowed object

was expected to pass in stool with no problems. (Id. at 17).

Luna returned to the CMC-ER on December 31, 2020, due to an onset of priapism

and an erection lasting six hours. (Dkt. No. 94-7 at 19, 22). Jail personnel gave him

Sudafed, but it did not help. (Id.). Luna was treated with an injection of Terbutaline in

his left upper arm and monitored until his condition improved. (Id. at 20–21). He was

discharged with a referral for follow-up treatment by a urologist. (Id. at 21, 23).

On January 7, 2021, Luna submitted a sick call request to see a doctor about his

psychiatric medication. (Dkt. No. 94-7 at 24). He also stated that he did not need Sudafed

and wanted what the urologist prescribed. (Id.). Jail clinic personnel replied that the

urologist prescribed Sudafed. (Id.). Later that day Luna submitted a second sick call

request about painful urination. (Id. at 25). Infirmary personnel replied that Luna’s

medical provider was aware of the issue, stating that he needed to continue taking his

medication and that it was not helpful to refuse. (Id.).

Luna submitted a sick call request to see a urologist on February 7, 2021. (Dkt. No.

94-7 at 27). Nurse Ullman replied that a urologist had been consulted and that they were

awaiting appointment details. (Id.). Progress notes reflect that Nurse Ullman contacted

Dr. New’s office on February 9, 2021, to report that Luna was complaining of longer, more

frequent, and more painful erections that had not been witnessed by Jail staff. (Id. at 28).

One of Dr. New’s staff told Nurse Ullman that Luna’s issue was considered “a routine

follow up” and that Luna would be seen when an appointment was available. (Id.). The

staff member stated that she would check with Dr. New to see if a sooner appointment

would be available. (Id.).

Progress notes reflect that Nurse Ullman spoke with Luna on February 11, 2021,

and addressed his claim that he had leukemia. (Dkt. No. 94-7 at 26). She noted that

records from UTMB indicated that he did not have leukemia. (Id.). Luna was also told

that Jail medical personnel had contacted Dr. New multiple times and were waiting for

his office to schedule an appointment. (Id.). Nurse Ullman spoke to nursing staff at the

Jail about Luna’s priapism and was told that he had reported having erections, but when

they went to check on Luna, he did not have one. (Id.).

On February 13, 2021, Luna was seen in the CMC-ER for complaints of nausea and

vomiting. (Dkt. No. 94-7 at 29). Some abdominal tenderness was noted, but his physical

examination and blood work were normal. (Id. at 30–31). He was discharged back to the

Jail in stable condition. (Id. at 31).

Luna returned to the CMC-ER for complaints of priapism on February 18, 2021.

(Dkt. No. 94-7 at 32). He was treated with Toradol, Terbutaline, and subcutaneous

injections of Phenylephrine into each corpus cavernosum in his penis. (Id. at 33–34). He

was discharged with instructions to follow up with a urologist. (Id. at 33).

On March 10, 2021, Luna was evaluated by gastroenterologist Dr. Darmendra

Verma after he was seen at the CMC-ER for vomiting blood. (Dkt. No. 94-7 at 35). Luna

reported that he accidentally swallowed a piece of wire and that he now had a metallic

taste in his mouth. (Id.). Dr. Verma, who is affiliated with a number of hospitals and has

an outpatient clinical practice in Victoria, reviewed Luna’s records and observed that he

had swallowed a foreign object at the Jail in December 2020, and that he had received x-

rays and lab work. (Dkt. No. 94-6 at 1). Dr. Verma determined that the foreign object

was not the cause of his gastrointestinal issues because it had almost certainly passed

through his stool. (Id.). Dr. Verma noted that Luna was diagnosed with Hepatitis-C in

2006 but had not received any treatment for the condition. (Id.). According to Dr. Verma,

Luna reported no symptoms or discomfort of any kind on the day of the examination,

including heartburn/reflux, nausea or vomiting, constipation, abdominal pain, or black

or bloody stool. (Id. at 2). Dr. Verma reviewed the list of Luna’s medications and the

results of his lab work, all of which was normal, and determined that Luna was suffering

a minor gastrointestinal issue unrelated to the foreign object that he swallowed. (Id.). In

addition, Dr. Verma concluded that it was not necessary to conduct additional testing

such as an esophagogastroduodenoscopy (an “EGD”) or a colonoscopy, but advised

Luna to follow up in six weeks if the symptoms persisted. (Id.).

On March 18, 2021, Luna saw Dr. New at the Citizens Urology Clinic to address

his reports of having recurrent erections lasting as long as eight hours. (Dkt. No. 94-7 at

38). Dr. New noted that Luna did not have an erection that day and that there was no

current evidence of priapism, but there was swelling, plaque, and scarring on Luna’s

penis from having undergone numerous interventions. (Id. at 40). Dr. New also noted

evidence of a well-healed incision from the shunt surgery performed by Dr. Ayoub in

Houston. (Id.). There was no sign of infection. (Dkt. No. 94-5 at 2). Dr. New concluded

that he would need to obtain Luna’s medical records from his previous surgery to tailor

a plan of treatment. (Dkt. No. 94-5 at 2).

On April 15, 2021, Luna complained about blood in his urine, painful urination,

and pain in his scrotum. (Dkt. No. 94-4 at 3). He also requested an update on Dr. New’s

treatment prognosis. (Id.). A urine test conducted at the Jail showed no sign of infection.

(Id.). Progress notes reflect that a Jail infirmary staff member contacted Dr. New’s office

on April 20, 2021, to see if he had received Luna’s records yet. (Dkt. No. 94-7 at 42). A

nurse from Dr. New’s office called back the following day and indicated that Dr. New

had reviewed the records from Luna’s urologist in Houston. (Id.). When he was advised

about Luna’s complaints of blood in his urine, Dr. New concluded that it was unnecessary

to bring him to the CMC-ER because urinalysis conducted at the Jail did not show any

signs of infection. (Dkt. No. 94-5 at 2).

On April 26, 2021, Luna submitted a sick call request asking to have his damaged

tooth pulled, noting that he had been on the list to see a dentist since December 18. (Dkt.

No. 94-7 at 43). Nurse Machac replied that Luna was still on the dental list and would be

seen as soon as possible. (Id.). Although it had been several months, Nurse Ullman

explains that this was the average wait for inmates to see a dentist for a general

examination. (Dkt. No. 94-4 at 4). She also noted that it was the first time that Luna

complained about his tooth since he reported the problem in December 2020. (Id.).

Luna submitted an inmate request on April 26, 2021, asking for the results of a

urine test that was done on April 20, 2021. (Dkt. No. 94-7 at 44). Luna wanted to know

if the test results disclosed bacteria in his urine and asked to see a urologist. (Id.). Nurse

Machac replied the following day that Luna’s urine tests showed no infection and

advised him that they were still waiting for the urologist (Dr. New) to send over his

recommendation for treatment. (Id.).

On April 27 and April 29, 2021, Luna complained about a mass in his abdomen.

(Dkt. No. 94-4 at 4). Providers at the Jail diagnosed the mass as a hernia on April 30, 2021,

and advised Luna to contact the infirmary again if it became larger or more painful. (Id.).

Luna returned to the Jail clinic on May 1, 2021, where he reported having blood in his

stool that had stained his “thermal bottoms.” (Dkt. No. 94-7 at 45). Noting that Luna had

been seen by a provider on April 30, 2021, and that he did not seem to be in distress, the

nurse provided him with two diapers and a biohazard bag. (Id.). Stool samples were

taken from Luna on May 3, 2021, which were “negative for blood.” (Id. at 45–46).

On May 5, 2021, Dr. New submitted his written recommendation following Luna’s

office visit on March 18, 2021. (Dkt. No. 94-7 at 47). In that recommendation, which was

received at the Jail on May 6, 2021, Dr. New noted that Luna had undergone numerous

irrigations, intracavernosal therapy, and had “failed both a Winter’s and distal al-Goral

shunt [procedure]” performed by Dr. Ayoub. (Id.). Dr. New concluded that Luna may

need “a more proximal shunt,” but that he was not experienced with this type of

procedure or comfortable performing one. (Id.). Dr. New recommended a referral for

Luna “to see a male erectile specialist” in Houston. (Id.). Dr. New explains that he was

the only urologist employed at the CMC at the time, so Luna would not have had the

option to seek this procedure from someone else locally while he was in custody at the

Jail. (Dkt. No. 94-5 at 2).

Nurse Ullman reports that Luna was able to see a dentist on May 8, 2021, for his

complaints regarding the metal bread tie. (Dkt. No. 94-4 at 4). On May 28, 2021, Luna

requested a mental health interview. (Id.). According to Nurse Ullman, Luna was seen

by Dr. Roberts at Crossroads Psychiatry, who advised that there was no need to adjust

his medication. (Id.).

On June 1, 2021, Luna complained of painful and smelly urination and abdominal

pain. (Dkt. No. 94-4 at 4). Nurse Ullman reports that Luna was seen in the clinic that day

and that his penis was not infected. (Id.). On June 17, 2021, Luna was transferred to state

prison. (Id.).

II. LEGAL STANDARDS

A. SUMMARY JUDGMENT

Motions for summary judgment are governed by Rule 56 of the Federal Rules of

Civil Procedure, which provides that a reviewing court “shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A fact is “material”

if its resolution in favor of one party might affect the outcome of the suit under governing

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202

(1986). An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a

verdict for the nonmoving party. Id. “In making that determination, a court must view

the evidence in the light most favorable to the opposing party.” Tolan v. Cotton, 572 U.S.

650, 657, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam) (internal quotations

omitted).

If the movant demonstrates the absence of a genuine issue of material fact, the

burden ordinarily shifts to the nonmovant to provide “specific facts showing the

existence of a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (emphasis omitted). Because

Luna represents himself, his pleadings are entitled to a liberal construction and are

subject to “less stringent standards than formal pleadings drafted by lawyers.” Haines v.

Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam). Even under

this lenient standard, pro se litigants are expected to “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.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014) (footnotes

and citations omitted). Courts are not required “to scour the record in search of evidence

to defeat a motion for summary judgment; [courts] rely on the nonmoving party to

identify with reasonable particularity the evidence upon which he relies.” Buehler v. City

of Austin/Austin Police Dep’t, 824 F.3d 548, 555 n.7 (5th Cir. 2016) (internal quotations

omitted).

B. QUALIFIED IMMUNITY

The individual defendants have invoked the defense of qualified immunity, which

protects government officials from personal liability for monetary damages “insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Qualified immunity, which is designed to

give public servants “breathing room to make reasonable but mistaken judgments,”

protects “all but the plainly incompetent or those who knowingly violate the law.”

Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012)

(internal quotations omitted). Qualified immunity shields public officials from claims for

monetary damages unless a plaintiff shows “(1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of the

challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179

L.Ed.2d 1149 (2011) (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Courts have

discretion to decide the order in which to consider the two-prong inquiry when

determining whether qualified immunity is warranted. See Pearson v. Callahan, 555 U.S.

223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

Importantly, “a good-faith assertion of qualified immunity alters the usual

summary judgment burden of proof, shifting it to the plaintiff to show that the defense is

not available.” Ratliff v. Aransas County, Tex., 948 F.3d 281, 287 (5th Cir. 2020) (cleaned

up). Once the defense is invoked by a defendant, “the plaintiff must rebut it by

establishing (1) that the [defendant] violated a federal statutory or constitutional right

and (2) that the unlawfulness of the conduct was ‘clearly established at the time.’ ” Rich

v. Palko, 920 F.3d 288, 294 (5th Cir. 2019) (quoting District of Columbia v. Wesby, 583 U.S.

48, 63, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018) (citation omitted)). “At the summary-

judgment stage, [a plaintiff] may not rest on mere allegations or unsubstantiated

assertions but must point to specific evidence in the record demonstrating a material fact

issue concerning each element of his claim.” Mitchell v. Mills, 895 F.3d 365, 370 (5th Cir.

2018).

III. DISCUSSION

A. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

Luna contends that the individual defendants violated his constitutional rights by

failing to provide him with adequate medical or dental care from specialists. (Dkt. No.

14 at 4–9). Luna’s claim that he was denied adequate medical care while he was in

custody at the Jail as a pretrial detainee implicates both the Fourteenth and Eighth

Amendments, which have the same legal standard in this context. See Gibbs v. Grimmette,

254 F.3d 545, 548 (5th Cir. 2001). “[P]retrial detainees have a constitutional right, under

the Due Process Clause of the Fourteenth Amendment, not to have their serious medical

needs met with deliberate indifference.” Kelson v. Clark, 1 F.4th 411, 417 (5th Cir. 2021).

The Eighth Amendment, which protects inmates under a sentence of imprisonment, also

prohibits deliberate indifference to the serious medical needs of prisoners. See Estelle v.

Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976).

“Deliberate indifference is an extremely high standard to meet.” Bonilla v. Orange

Cnty., Tex., 982 F.3d 298, 305 (5th Cir. 2020). Deliberate indifference requires that “the

official knows of and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511

U.S. 825, 837, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). Thus, a prisoner must present

proof or point to “evidence of (1) an objective exposure to a substantial risk of harm and

(2) deliberate indifference of a prison official where (A) the official had subjective

knowledge that the inmate faced a substantial risk of harm and (B) disregarded the risk.”

Valentine v. Collier, 993 F.3d 270, 281 (5th Cir. 2021).

“Deliberate indifference cannot be inferred merely from a negligent or even a

grossly negligent response to a substantial risk of serious harm.” Torres v. Livingston, 972

F.3d 660, 663 (5th Cir. 2020). “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 exigent circumstances.” Gobert v.

Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Deliberate indifference requires a prisoner to

demonstrate 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.” Id. (internal quotation

marks and citation omitted). Allegations of delay in receiving medical care violate the

Constitution only “if there has been deliberate indifference that results in substantial

harm.” Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013) (emphasis in original).

Most of Luna’s allegations against the defendants are conclusory and general in

nature, grouping claims against all of the defendants without specific dates or details

about each individual’s personal involvement. (Dkt. No. 14 at 9); (Dkt. No. 33 at 55–69).

While Luna’s generalized allegations may have been sufficient to survive the low bar for

screening a prisoner’s complaint under 28 U.S.C. § 1915A or 28 U.S.C. § 1915(e)(2)(B),

survival beyond the screening stage requires something more. See, e.g., Ashcroft v. Iqbal,

556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements” are not sufficient

to survive a motion to dismiss.); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(en banc) (“the nonmovant must go beyond the pleadings and designate specific facts

showing that there is a genuine issue for trial”) (citing Celotex, 477 U.S. at 325, 106 S.Ct at

2553–54). Personal involvement is an essential element of a civil rights claim against a

government official in his or her individual capacity. See Thompson v. Steele, 709 F.2d 381,

382 (5th Cir. 1983) (“Personal involvement is an essential element of a [42 U.S.C. § 1983]

cause of action.”). The plaintiff “must establish that the defendant was either personally

involved in the deprivation or that his wrongful actions were causally connected to the

deprivation.” Jones v. Lowndes Cnty., Miss., 678 F.3d 344, 349 (5th Cir. 2012). A plaintiff’s

conclusory allegations and generalized assertions are not sufficient to state a claim in a

case governed by Section 1983; particular facts are required to specify the personal

involvement of each defendant. See Murphy v. Kellar, 950 F.2d 290, 292 & n.7 (5th Cir.

1992); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990). There must be an affirmative link

between the incident at issue and some act by the defendant. See Rizzo v. Goode, 423 U.S.

362, 370–71, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976).

The importance of specific facts showing personal involvement in a civil-rights

violation cannot be emphasized enough in a case involving the defense of qualified

immunity. Fifth Circuit precedent makes clear that courts must “examine each

individual’s entitlement to qualified immunity separately.” Ramirez v. Guadarrama, 3

F.4th 129, 136 n.4 (5th Cir. 2021) (citing Carroll v. Ellington, 800 F.3d 154, 174 (5th Cir. 2015);

and Meadours v. Ermel, 483 F.3d 417, 422 (5th Cir. 2007) (holding that it was error for the

district court to consider the actions of multiple police officers together)). Luna’s claims

against the individual defendants are examined separately below based on the

allegations that he has made against each one, including his allegations against Nurse

Rhonda Williams, who has not been served.

1. Nurse Practitioner Granados

Luna alleges that Nurse Practitioner Granados violated his rights when he

returned to the Jail following his arrest on November 12, 2020. (Dkt. No. 33 at 44–46). He

alleges that Granados refused to provide care for his surgical incision, which then became

infected. (Id.). He appears to claim that Granados should have immediately sent him to

a urologist to treat the surgical incision. (Id. at 46). He also alleges that Granados denied

him medical care by refusing to send him back for additional testing that was

recommended by the gastroenterologist who examined him in March 2021. (Id. at 52–53).

The medical records, which confirm that Luna was seen at the CMC-ER following

his arrest on November 12, 2020, refute Luna’s claim that he was denied care for his

surgical incision or that the wound became infected. (Dkt. No. 94-7 at 3–5). During his

evaluation at the CMC-ER a provider noted the small surgical incision on Luna’s penis

and discharged him in “good” condition. (Id. at 4–5). Luna received several medications

upon his return to the Jail, including an antibiotic cream for the incision on his penis.

(Dkt. No. 94-4 at 2). When Luna complained of pain and requested a wound check on

November 13, 2020, Jail medical personnel sent him back to the CMC-ER, where a

consulting urologist (Dr. New) authorized a testicular ultrasound. (Dkt. No. 94-4 at 2);

(Dkt. No. 94-5 at 2); (Dkt. No. 94-7 at 7). Dr. New concluded that Luna’s penis was healing

properly and that there were no signs of infection. (Dkt. No. 94-5 at 2). Luna complained

about his incision again on December 21, 2020, but the wound was observed to be dry

and healed. (Dkt. No. 94-4 at 3). When Dr. New saw Luna later on March 18, 2021, he

observed no sign of infection. (Dkt. No. 94-5 at 2).

In addition, the medical records show that Luna was evaluated by a

gastroenterologist (Dr. Verma) based on a referral from CMC-ER on March 10, 2021, after

Luna vomited blood at the Jail. (Dkt. No. 94-7 at 35). Dr. Verma considered Luna’s claim

that his stomach issues were the result of a piece of metal that he swallowed at the Jail,

and concluded that the object had likely passed in his stool. (Dkt. No. 94-6 at 1). Luna

did not report any symptoms of abdominal pain during the visit. (Id. at 2). After

reviewing Luna’s medications and lab work, Dr. Verma determined that he was suffering

a minor gastrointestinal issue that did not require further testing. (Id.).

Luna has not alleged facts or offered evidence showing that his surgical incision

became infected because Nurse Practitioner Granados refused to treat him or knowingly

treated him incorrectly upon his return to the Jail on November 12, 2020. Luna also fails

to allege specific facts showing that he required a follow-up appointment with Dr. Verma,

but that Nurse Practitioner Granados refused to schedule one. A party’s self-serving and

unsupported statements will not defeat summary judgment where the evidence in the

record is to the contrary. See In re Hinsely, 201 F.3d 638, 643 (5th Cir. 2000). Likewise, a

plaintiff’s conclusory allegations are insufficient to overcome a properly supported

qualified immunity defense. See Williams-Boldware v. Denton County, Tex., 741 F.3d 635,

643–44 (5th Cir. 2014)(citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173

L.Ed.2d 868 (2009)). Because Luna does not demonstrate that Nurse Practitioner

Granados denied him care with deliberate indifference, Granados is entitled to qualified

immunity from his claims against her.

2. Nurse Rhonda Williams (Nurse Rhonda Ullman)

In his Amended Complaint, Luna alleged that Registered Nurse Rhonda Williams

denied him adequate care by a urologist. (Dkt. No. 14 at 6). At the Spears hearing, Luna

identified Nurse Williams as the person who, along with Nurse Granados, was

responsible for scheduling appointments for inmates with the Jail and that she denied

him medical care for priapism. (Dkt. No. 33 at 54–56). In the M&R that was issued after

the Spears hearing, Judge Libby retained a general claim against Nurse Williams for

denying Luna adequate medical care from a urologist. (Dkt. No. 49 at 24–25). After the

Court authorized service of process, counsel for the defendants filed an advisory, noting

that there was no Rhonda Williams employed at the Jail and no registered nurse by that

name could be located. (Dkt. No. 55). Thus, the Nurse Williams identified by Luna has

not been served and has not filed an answer.

In his Response to the Motion for Summary Judgment, Luna alleges for the first

time that the claims he asserted in his Amended Complaint against Nurse Williams are

really against Nurse Ullman. (Dkt. No. 98 at 11–12). In addition to the claim retained by

Judge Libby about Luna’s confinement at the Jail from November 12, 2020, until June 17,

2021, Luna now appears to claim that Nurse Ullman denied him care by a urologist when

he was at the Jail in 2018 and 2019 and that his penis became permanently damaged,

requiring surgery in 2020. (Id. at 12).

Although Nurse Ullman has not been formally served, she has provided an

affidavit in support of the Defendants’ Motion for Summary Judgment, detailing the care

that Luna received for priapism while at the Jail between November 12, 2020, and June

17, 2021, which included care from the CMC-ER and a urologist. (Dkt. No. 94-4). The

Defendants have provided Nurse Ullman’s summary of the medical records in support

of their argument that Luna fails to demonstrate a constitutional violation or overcome

the defense of qualified immunity. (Dkt. No. 94 at 11-13). The Fifth Circuit has

recognized that when one defending party establishes that the plaintiff has no cause of

action, this defense generally inures also to the benefit of other similarly situated

defendants. See Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001) (allowing unserved

defendants to benefit from a favorable summary judgment motion filed by appearing

defendants in a civil rights case). Because the evidence in the summary-judgment record

does not support a claim against Nurse Ullman, the Court will consider Luna’s claims

against her.

At the Spears hearing Luna alleged that he suffered persistent priapism erections

lasting up to 12 hours during January, February, and March of 2021. (Dkt. No. 33 at 47).

During his deposition, Luna clarified that he suffered priapism erections on only two

occasions while at the Jail during the relevant time period between November 12, 2020,

and June 17, 2021. (Dkt. No. 94-1 at 13–14). Although Luna believed that those incidents

occurred in December 2020 and March 2021, the medical records show that Luna was

treated for prolonged erections on December 31, 2020, and February 18, 2021. (Dkt. No.

94-4 at 3); (Dkt. No. 94-7 at 19–22, 32–34). On each occasion Luna was sent to the CMC-

ER, where he was treated with an injection. (Dkt. No. 94-7 at 20–21, 33–34). Luna

acknowledged in his deposition that he received treatment in the emergency room on

each occasion that he complained. (Dkt. No. 94-1 at 13–14).

The medical records also show that Luna was not denied care from a urologist.

After reviewing the results of Luna’s testicular ultrasound on November 13, 2020,

Dr. New prescribed Sudafed to treat his priapism, which is consistent with the

medication prescribed for Luna by previous urologists. (Dkt. No. 94-3 at 2-3); (Dkt. No.

94-4 at 2); (Dkt. No. 94-5 at 2). Luna acknowledged that he had a prescription for Sudafed,

which is what he took to treat his priapism while he was out of custody, for the duration

of his stay at the Jail from November 12, 2020, through June 17, 2021. (Dkt. No. 94-1 at 4,

6–7).

The medical records confirm that Luna was given a referral for a follow-up

appointment with a urologist when he was treated for priapism at the CMC-ER on

December 31, 2020. (Dkt. No. 94-7 at 22). Although Luna did not see Dr. New again until

March 18, 2021, Dr. New explains that Luna’s appointment was scheduled based on the

time the referral was made, his existing appointment bookings, and the severity of the

medical need. (Dkt. No. 94-5 at 1, 2). The medical records show that Nurse Ullman

contacted Dr. New’s office for details on February 9, 2021, and was told by Dr. New’s

staff that Luna would be seen when an appointment was available. (Dkt. No. 94-7 at 28).

After examining Luna on March 18, 2021, Dr. New concluded that he would need

to review medical records about the surgery performed by Dr. Ayoub in Houston before

recommending a treatment plan. (Dkt. No. 94-5 at 2). Dr. New’s opinion, which was not

received at the Jail until May 6, 2021, was that Luna may need another shunt surgery.

(Dkt. No. 94-7 at 47). Because Dr. New was not comfortable performing the procedure,

he recommended that the Jail consider referring Luna to a male erectile specialist in

Houston. (Id.). Shortly thereafter, Luna was transferred from the Jail to state prison

following his felony conviction on June 3, 2021.

According to her affidavit and the available medical records, Nurse Ullman knew

that Luna had a referral to see Dr. New and contacted his office multiple times to check

on the status of this appointment. (Dkt. No. 94-4 at 2); (Dkt. No. 94-7 at 26–27). She also

contacted Dr. New’s office to inquire about his treatment recommendation. (Dkt. No. 94-

4 at 3); (Dkt. No. 94-7 at 42). Luna does not allege specific facts showing that Nurse

Ullman knew of, but disregarded a serious medical need by denying him access to a

urologist with deliberate indifference or that she was the cause of delay in receiving care

from Dr. New. Instead, the medical records reflect that the delay in receiving a follow-

up appointment with a urologist was attributable to Dr. New’s scheduling practices and

his need to review medical records from the previous treating physician who performed

the shunt surgery in October 2020. (Dkt. No. 94-5 at 1–2).

In his Response to the Motion for Summary Judgment, Luna alleges that he

submitted 40 or 50 sick call requests about priapism erections, but that his requests were

ignored by Nurse Ullman. (Dkt. No. 98 at 14). He does not provide details or specific

dates for those requests. Likewise, he does not provide or point to any evidentiary

support for this claim and his unsworn Response is not competent summary judgment

evidence. See Johnston v. City of Houston, 14 F.3d 1056, 1060 (5th Cir. 1994) (“Unsworn

pleadings, memoranda or the like are not . . . competent summary judgment evidence.”).

His bare allegations are insufficient to show that Nurse Ullman was aware of but

consciously disregarded any risk of serious harm. Torres, 972 F.3d at 663. Because Luna

does not demonstrate that Nurse Ullman denied him care by a urologist in violation of

his constitutional rights, those claims will be dismissed pursuant to 28 U.S.C.

§ 1915(e)(2)(B); see also 42 U.S.C. 1997e(c)(1) (“The court shall on its own motion or on the

motion of a party dismiss any action brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility if the court is satisfied that the action is 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.”).

The Court notes that Luna has made some allegations that he was denied adequate

care at the Jail during one of his previous stays there in 2018 and 2019. He makes this

assertion in his Response to the Motion for Summary Judgment on February 28, 2023.

(Dkt. No. 98 at 12). To the extent that Luna alleges that Nurse Ullman or other medical

personnel were responsible for denying him care by a urologist in 2018 and 2019, Luna

did not raise such a claim in his Amended Complaint, which only references conditions

of his confinement during 2020 and 2021. (Dkt. No. 14 at 9). Luna’s testimony at the

Spears hearing was also focused on his claim that he was denied medical care by a

specialist in 2020 and 2021. (Dkt. No. 33 at 10). In addition, Luna acknowledged during

his deposition that he was only complaining about issues that arose in 2020 and 2021.

(Dkt. No. 94-1 at 7). Although Nurse Ullman has provided an affidavit, she does not

address any treatment that was requested by or provided to Luna in 2018 or 2019. (Dkt.

No. 94-4).

Luna has not moved for leave to amend the operative complaint to include a claim

that he was also denied medical care from Nurse Ullman and other unidentified medical

providers in 2018 and 2019. This case was originally filed in 2021. The deadline to amend

pleadings expired on December 2, 2021, and discovery has been closed since September

2, 2022. (Dkt. No. 59); (Dkt. No. 88). Where the Court ordered deadline for amending

pleadings has passed, that schedule “may be modified” to allow for additional

amendments “only for good cause and with the judge’s consent.” Fed. R. Civ.

Proc. 16(b)(4); see S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533,

536 (5th Cir. 2003) (“We take this opportunity to make clear that Rule 16(b) governs

amendment of pleadings after a scheduling order deadline has expired.”). Luna has not

established good cause here. Nor does he show that leave to amend would be

appropriate under the more lenient standard found in Fed. R. Civ. P. 15(a).

Assuming that Luna’s newly proposed allegations are within the governing two-

year statute of limitations for Section 1983 claims, leave to amend need not be granted

where there has been undue delay on the plaintiff’s part that would result in prejudice to

the defendants, such as the need to reopen discovery. See Smith v. EMC Corp., 393 F.3d

590, 595 (5th Cir. 2004) (holding that the district court correctly denied the plaintiff’s

motion for leave to amend based on his undue delay and the proposed amendment’s

undue prejudice to the defendants). Allowing leave to amend at this late date would only

further protract this lawsuit and would unfairly prejudice the Defendants, who have

asserted qualified immunity from suit. The Fifth Circuit has recognized that, where

qualified immunity is at issue, civil rights plaintiffs need not be “allowed to continue to

amend or supplement their pleading until they stumble upon a formula that carries them

over the threshold.” Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999) (per curiam)

(quoting Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986)). Accordingly, the Court

declines to consider Luna’s allegation that he was denied medical care by Ullman or any

other provider at the Jail before his arrest and confinement on November 12, 2020.5

3. Dr. Roberts

Judge Libby retained a general claim that Dr. Roberts denied Luna adequate

medical care from a urologist while he was in custody at the Jail. (Dkt. No. 49 at 24–25).

The record shows that Dr. Roberts saw Luna at Crossroads Psychiatry after he requested

a mental health interview on May 28, 2021. (Dkt. No. 94-4 at 4). There is no record

5 The undersigned notes that Luna has filed a motion for discovery and a motion for

appointment of counsel, one of several in this case, since submitting his Response to the Motion

for Summary Judgment. (Dkt. No. 108); (Dkt. No. 110). To stay summary judgment the movant

must demonstrate to the court “specifically how the requested discovery pertains to the pending

motion,” Wichita Falls Office Associates v. Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992), by

explaining “how the additional discovery will create a genuine issue of material fact.” Krim v.

BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). Luna has not made this showing. To

the extent that Luna has requested counsel for the purpose of further amending his pleadings to

add Nurse Ullman as a defendant (Dkt. No. 110), the Court has considered his claims against her.

Because his lack of formal legal training does not, standing alone, constitute an exceptional

circumstance, Luna has not otherwise shown that appointment of counsel is necessary. See

Thompson v. Texas Dep’t of Criminal Justice, 67 F.4th 275, 283 (5th Cir. 2023).

showing that Dr. Roberts had any role in providing care for issues other than Luna’s

mental health. Because Luna does not show that she had any involvement in treating his

priapism, he does not demonstrate that she denied him care by a urologist with deliberate

indifference. Accordingly, Dr. Roberts is entitled to summary judgment on Luna’s claims

against her.

4. Nurse Brumbelow

Judge Libby also retained a general claim that “Nurse Gayle,” who was identified

as Nurse Brumbelow, denied Luna adequate medical care from a urologist while he was

at the Jail. (Dkt. No. 49 at 24–25). Luna does not provide any details in support of his

allegation against Nurse Brumbelow, and he does not reference any specific instance in

which she denied him care. The medical records show that Nurse Brumbelow saw Luna

after he submitted a sick call request at the Jail on November 15, 2020, complaining of

pain in his genital area and penis. (Dkt. No. 94-7 at 9). Nurse Brumbelow contacted

Dr. McNeill, who referred Luna to the emergency room at Citizens Medical Center that

same day. (Id.); (Dkt. No. 94-3 at 2). According to Dr. McNeill, Luna’s penis was observed

to be clean and dry with no sign of infection. (Dkt. No. 94-3 at 2). Although Luna did

not see a urologist that day, he does not allege facts showing that one was needed on that

occasion.

The record shows that Nurse Brumbelow did not deny Luna medical care on

November 15, 2020, and he does not offer any other facts showing that she refused to

treat him or knowingly treated him incorrectly on another specific occasion. His

conclusory allegations are insufficient to overcome Nurse Brumbelow’s claim of qualified

immunity. See Williams–Boldware, 741 F.3d at 643–44. Accordingly, Nurse Brumbelow is

entitled to summary judgment on Luna’s claims against her.

5. Nurses Lawson, DeLeon, and Black

Luna made general allegations that Nurses Lawson, DeLeon, and Black denied

him medical care from a urologist, and Judge Libby retained those claims. (Dkt. No. 49

at 24–25). Luna does not offer any details in support of his claims against these nurses,

and he does not describe any specific incident in which his request for care was denied

or ignored by one of them. He does not point to any evidence and the record reflects that

Luna received care when he reported having a prolonged erection, including a referral to

a urologist. As with Nurse Brumbelow, Luna’s unsupported allegations are insufficient

to overcome the qualified immunity defense. See Williams–Boldware, 741 F.3d at 643–44.

Therefore, Nurses Lawson, DeLeon, and Black are entitled to summary judgment on

Luna’s claims against them.

6. Nurse Machac

Luna alleged that Nurse Machac denied him adequate care by a dentist after he

reported having a broken tooth on December 18, 2020, as the result of biting a metal bread

tie. (Dkt. No. 33 at 14–15). The Court notes that Judge Libby retained similar claims for

the denial of care by a dentist against Nurse Williams (Ullman) and Nurse Gayle

(Brumbelow). (Dkt. No. 49 at 26–27). The record does not support Luna’s claim that he

was denied care by a dentist with deliberate indifference by these Defendants.

Luna acknowledged during the Spears hearing that Nurse Machac placed him on

the dentist list, and that she also recommended x-rays after he told her that he swallowed

a piece of metal. (Dkt. No. 33 at 15). The medical records confirm that Nurse Machac

gave Luna pain medication and placed him on the waiting list to see a dentist

immediately after he reported breaking a tooth on December 18, 2020. (Dkt. No. 94-4 at

3); (Dkt. No. 94-7 at 13). Nursing staff observed no redness or swelling around the

affected tooth. (Dkt. No. 94-3 at 3). Within days of the incident, Luna had x-rays taken

of his abdominal cavity at the Jail and at the CMC-ER, which disclosed a foreign object

that looked like a thin piece of wire. (Dkt. No. 94-7 at 14, 15, 17). Luna saw a

gastroenterologist on March 10, 2021, but Dr. Verma concluded that his minor

gastrointestinal issues were not caused by the foreign object that he swallowed. (Dkt.

No. 94-6 at 1).

Luna submitted a sick call asking about his place on the waiting list for a dentist

on April 26, 2021, and Nurse Machac advised him that he was still on the list. (Dkt. No.

94-7 at 43). Although Luna was not seen by a dentist until May 8, 2021, Nurse Ullman

notes that this was the average wait time for inmates to see a dentist. (Dkt. No. 94-4 at 4).

She notes further that other than the sick call request he submitted on April 26, 2021, Luna

had not complained of tooth or gum pain since December 24, 2020. (Id.).

Luna does not dispute that Nurse Machac promptly placed him on the dental list

in December 2020, shortly after he reported biting into a metal bread tie. (Dkt. No. 94-7

at 13). The available medical records reflect that Luna did not complain about his tooth

again until April 26, 2021 (Dkt. 94-7 at 43), and there is no evidence showing that he

required dental care on an expedited basis before that time. Luna has not offered facts

showing that Nurse Machac, Nurse Ullman, or Nurse Brumbelow knew that he was in

pain or that he needed dental care sooner than it was provided, but deliberately ignored

a serious medical need. Under these circumstances, Luna does not establish that Nurse

Machac, Nurse Ullman, or Nurse Brumbelow denied him dental care with deliberate

indifference. Accordingly, Nurse Machac, Nurse Ullman, and Nurse Brumbelow are

entitled to qualified immunity and summary judgment on these claims.

B. CLAIMS AGAINST VICTORIA COUNTY

Luna contends that Victoria County is liable for the violation of his constitutional

rights because it has a policy of not allowing pretrial detainees to see specialists as a way

to avoid costs. (Dkt. No. 33 at 59). A municipality or local government entity cannot be

held vicariously liable under a theory of respondeat superior for the wrongdoing of

municipal employees. See Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658, 691, 98

S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Liability against a government entity is available

under Section 1983 only for acts that are “directly attributable to it ‘through some official

action or imprimatur.’” James v. Harris Cnty., Tex., 577 F.3d 612, 617 (5th Cir. 2009)

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

plaintiff must prove that “(1) an official policy (2) promulgated by the municipal

policymaker (3) . . . was the moving force behind the violation of a constitutional right.”

Edwards v. City of Balch Springs, Texas, 70 F.4th 302, 307–08 (5th Cir. 2023). The Defendants

provided evidence that Jail inmates can be referred to a specialist by Dr. McNeill, who

may send inmates to the CMC-ER, or they may be referred to a specialist by another

treating physician. (Dkt. No. 94-3 at 1); (Dkt. No. 94-4 at 1). The Defendants note that

Luna received referrals for care by physicians at the CMC-ER on numerous occasions,

and that he also received care by specialists, including a urologist, a gastroenterologist,

and a dentist. (Dkt. No. 94 at 22–23). The Defendants contend, therefore, that there is no

policy at the Jail to deny inmates treatment or prevent them from seeing a specialist and

that Luna was not denied care in violation of his constitutional rights. (Id.).

“Official municipal policy includes the decisions of a government’s lawmakers,

the acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350,

1359, 179 L.Ed.2d 417 (2011) (citations omitted). Isolated acts cannot establish the

existence of a custom or practice. Guillot v. Russell, 59 F.4th 743, 753 (5th Cir. 2023). To

demonstrate that a custom or policy exists, a plaintiff must show either “a pattern of

unconstitutional conduct . . . on the part of municipal actors or employees,” or that “a

final policymaker took a single unconstitutional action.” Zarnow v. City of Wichita Falls,

Tex., 614 F.3d 161, 169 (5th Cir. 2010) (emphasis in original).

The medical records reflect that Luna was sent to the CMC-ER on numerous

occasions for complaints related to priapism, genital pain, and other issues. (Dkt. No. 94-

7 at 1–10, 15–17, 19–21, 29–34). The Defendants have presented evidence showing Luna

received a referral for a urologist on December 31, 2020, and that medical personnel

contacted Dr. New for a urology appointment, but that the appointment was delayed

until March 18, 2021, as the result of his scheduling procedures. (Dkt. No. 94-5 at 1–2);

(Dkt. No. 94-7 at 22, 26–28). Likewise, records show that Luna was immediately added

to the waiting list to be seen by a dentist on December 18, 2020, but that he was not seen

until five months later because his circumstances were not an emergency. (Dkt. No. 94-4

at 3-4); (Dkt. No. 94-7 at 13). Although there was some delay in being seen, Luna has not

identified a policy adopted by an official policymaker on behalf of Victoria County to

deny Jail inmates care by a specialist. Nor does he demonstrate that his constitutional

rights were violated by the Jail employees as the result of such policy or by a widespread,

persistent pattern of serious deficiencies in providing care. See Estate of Henson v. Wichita

County, Tex., 795 F.3d 456, 469-70 (5th Cir. 2015). Under these circumstances, Luna fails

to demonstrate municipal liability, and Victoria County is entitled to summary judgment.

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS the Motion for Summary

Judgment filed by Victoria County, Veronica Granados, Katrina Lawson, Robin Deleon,

Gayle Brumbelow, Madison Machac, Kourtne Roberts, and Ashley Black (Dkt. No. 94).

The claims against Rhonda Ullman are DISMISSED under 28 U.S.C. § 1915(e)(2)(B) and

42 U.S.C. § 1997e(c)(1).

It is SO ORDERED.

Signed on September 24, 2023.

R J -

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

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