# Eubanks v. Ms. Bishop

> District Court, S.D. Texas · March 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10677569

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

□ Southern District of Texas
ENTERED
April 01, 2024
IN THE UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DONALD RAY EUBANKS, §
TDCJ #01593 107, §
§
Plaintiff; §
§
V. § Civil Action No. H-21-1879
§
TDCI, et al., §
§
Defendants. §
MEMORANDUM OPINION AND ORDER
Plaintiff, a state prisoner represented by retained counsel, filed an amended civil
complaint against the Texas Department of Criminal Justice (“TDCJ”), the University of
Texas Medical Branch (““UTMB”), and UTMB employees Folasade Ojo, M.D., Cynthia Ho,
M.D., John Bauer, M.D.,! and Eduardo Orihuela, M.D. He brings claims for deliberate
indifference under 42 U.S.C. § 1983, violation of the Americans with Disabilities Act
(“ADA”), and malpractice and/or negligence under state tort law. (Docket Entry No. 38.)
Pending before the Court are the following:
1. The Motion to Dismiss (Docket Entry No. 45) filed by defendants TDCJ and
UTMB, to which plaintiff filed a response (Docket Entry No. 60);
2. The Amended/Supplemental Motion to Dismiss (Docket Entry No. 65) filed
by defendants TDCJ and UTMB;

‘Defendant Bauer states in his Motion to Dismiss that plaintiff incorrectly named him in the
amended complaint as “Dr. Bower, M.D.”

3. The Motion to Dismiss filed by defendants Orihuela and Bauer (Docket Entry
No. 59), to which plaintiff filed a response (Docket Entry No. 66) and defendants filed a
reply (Docket Entry No. 67); and
4, The Motion to Dismiss filed by defendants Ho and Ojo (Docket Entry No. 70),
to which plaintiff filed a response (Docket Entry No. 73).
Having considered the motions, responses and reply, the pleadings, the record, and
the applicable law, the Court GRANTS IN PART, DENIES IN PART, and DISMISSES
IN PART the motions to dismiss, and GRANTS plaintiff leave to amend certain claims for
the reasons discussed below.
I. BACKGROUND AND CLAIMS
The events underlying plaintiff’s claims in this lawsuit span nearly fifteen years, and

encompass two federal lawsuits and appeals, two mediations, a negotiated final settlement
agreement, and dismissal of his claims with prejudice in 2015.
Plaintiff is a paraplegic due to injuries he sustained in a 1982 motor vehicle accident.
He entered the TDCI prison system in August 2009, following eight convictions for
ageravated sexual assault of a child, indecency with a child, sexual performance by a child,
and possession of child pornography. He is serving a life sentence, and will become eligible
for parole in October 2039.
Proceeding through retained counsel, plaintiff filed his first civil lawsuit in September
2011, raising claims against TDCJ, UTMB, and various state employees under section 1983

and the ADA. Eubanks v. Naik, C.A. No. G-11-0432 (S.D. Tex.) (“Naik.”). The claims

arose from events commencing in August 2009 following plaintiff's arrival at TDCJ. After

a series of chronic infections in prison, plaintiff lost both legs and underwent removal of a
testicle, a portion of his colon, and an artificial bladder sphincter. Plaintiff (through counsel
of record), TDCJ, and UTMB settled the lawsuit, executed a compromise and settlement
agreement (“CSA”), and filed a stipulated dismissal with prejudice on April 29, 2015. The
Court dismissed the lawsuit with prejudice pursuant to the stipulation on May 1, 2015, and

no further action was taken in the lawsuit.’
Six years later in June 2021, and proceeding pro se at the time, plaintiff filed the 113-

page civil complaint that commenced the instant second lawsuit. Plaintiff sued nineteen
named and fifteen unnamed employees of TDCJ and UTMB, claiming deliberate indifference
to his serious medical needs, violations of the ADA, and violations of unspecified state
statutes. (Docket Entry No. 1.) In pleading his claims, plaintiff included allegations and
events that were pleaded in the earlier Naik lawsuit and raised claims that were settled and
dismissed in 2015 pursuant to the stipulated dismissal. (Docket Entries No. 1-1, 1-2.)

2A copy of the Naik CSA is attached to TDCJ and UTMB’s pending motion to dismiss.
(Docket Entry No. 45-2.) As part of the agreed settlement and dismissal, UTMB was substituted in
as a party defendant in place of the individual defendant physicians named in that lawsuit. Jd.,
Exhibit A. Plaintiff makes reference to the settlement agreement in his original complaint (Docket
Entry No. 1, pp. 1, 4) and amended complaint (Docket Entry No. 38, { 1). Consequently, the Court
can rely on the CSA and its attendant documents for purposes of the pending motions to dismiss.
See George v. SI Grp., Inc., 36 F.4th 611, 619 (Sth Cir. 2022).

Following plaintiffs unsuccessful pro se interlocutory appeal of the Court’s denial
of appointment of counsel, counsel for plaintiff made an appearance on plaintiffs behalf on
August 31, 2022, and moved for leave to amend the complaint. The Court granted leave to
amend, and counsel filed plaintiff's amended complaint on November 23, 2022. (Docket
Entry No. 38.) The amended complaint remains plaintiffs operative pleading in this case.
In the amended complaint, plaintiff names as defendants TDCJ, UTMB, Ho, Ojo,
Orihuela, and Bauer. He incorporates by reference all factual allegations pleaded in his
original complaint. /d.,9 15. Plaintiff raises the following claims in the amended complaint:
(1) Defendants TDCJ and UTMB violated the ADA by not providing him
with a wheelchair., (Docket Entry No. 38, § 27.) He raises no other
claims against these state government agencies.
(2) Defendants Ho and Ojo denied him use of a wheelchair to “get around
in his cell and so that he can be wheeled to the law library and outside
for air and do other things in the TDCJ prison[.]” Jd., § 16. He further
claims that Ho and Ojo were deliberately indifferent to his serious
medical need to “seal up the wounds that are open on [his] body
causing infection and severe pain.” /d., 417. Plaintiff alleges that Ho
“was promoted at some time but is still in a supervisory position” of
approving or not approving plaintiffs medical care. Jd. He alleges that
Ho and Ojo violated his constitutional rights for purposes of section
1983, which “led to his immense suffering for many days.” Id., { 19.
He pleads no supporting factual allegations as to the latter claims.
(3) Defendants Orihuela and Bauer violated his constitutional rights for
purposes of section 1983, which “led to his immense suffering for
many days.” Jd., § 19. Plaintiff again pleads no supporting factual
allegations.

3Plaintiff acknowledges in his response that his claim is brought under Title II of the ADA.
(Docket Entry No. 60, p. 5.)

(4) Defendants Ho, Ojo, Orihuela, and Bauer committed malpractice under
state law in that they “misdiagnosed and/or failed to inform others or
properly diagnose [his] condition[,] delayed his treatment and failed to
treat him for his conditions[.]” Jd., 9] 24-25.
As judicial relief, plaintiff seeks compensatory and punitive damages, attorney’s fees,
costs of court, and injunctive relief ordering the defendants to provide him with a wheelchair
for his use while in prison. Jd., § 29.
Defendants move for dismissal of plaintiff's claims pursuant to Federal Rule of Civil
Procedure (“FRCP”) 12(b)(1), FRCP 12(b)(6), and applicable state law. Plaintiff opposes
the motions, but moves for leave to amend should the Court dismiss any of his claims.
II. LEGAL STANDARDS
A. — FRCP 12(b)(1)
A case is properly dismissed under FRCP 12(b)(1) for lack of subject matter
jurisdiction when the court lacks statutory or constitutional power to adjudicate the case.
Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (Sth Cir. 1998).
The burden of proof is on the party asserting jurisdiction, which is plaintiff in this case. See
Ramming v. United States, 281 F.3d 158, 161 (Sth Cir. 2001). To test whether the party
asserting jurisdiction has met its burden under FRCP 12(b)(1), a court may rely upon: “(1)
the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Barrera-Montenegro v. United States, 74 ¥..3d 657, 659 (Sth Cir. 1996).

“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the
court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on
the merits.” Ramming, 281 F.3d at 161.
B. FRCP 12(b)(6)
To survive a FRCP 12(b)(6) motion to dismiss for failure to state a claim, a plaintiff
must plead facts sufficient to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the pleaded facts allow the court to reasonably infer that the
defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678. “Factual allegations
must be enough to raise a right to relief above the speculative level on the assumption that
all of the complaint’s allegations are true.” Twombly, 550 U.S. at 545. The facts alleged in
the complaint must be taken as true and viewed in the light most favorable to the plaintiff.
White v. U.S. Corrections, L.L.C., 996 F.3d 302, 306-07 (Sth Cir. 2021); Heinze v. Tesco
Corp., 971 F.3d 475, 479 (Sth Cir. 2020). However, the court does not accept as true
“Tcjonclusory allegations, unwarranted factual inference, or legal conclusions,” Plotkin v. IP
Axess Inc., 407 F.3d 690, 696 (Sth Cir. 2005), or “naked assertions and formulaic recitations
of the elements of a cause of action.” Iqbal, 556 U.S. at 678. Ifa complaint pleads facts that

are merely consistent with a defendant’s liability, it “stops short of the line between
possibility and plausibility of entitlement to relief.” Jd.

In considering a FRCP 12(b)(6) motion, “a district court must limit itself to the

contents of the pleadings, including attachments thereto.” Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000). However, a district court may consider certain
information outside of the pleadings “if that evidence is either (a) a document attached to the
Rule 12(b)(6) motion, referred to in the complaint, and central to the plaintiff's claim; or (b)
a matter subject to judicial notice under Federal Rule of Evidence 201.” George v. SI Grp.,
Inc., 36 F 4th 611, 619 (Sth Cir. 2022).
C. Section 1983— Pleadings
Plaintiff contends throughout his responses to the pending motions that he raised
viable section 1983 claims against the four defendant physicians. He alleges in his amended
complaint that they “deprived [him] of his constitutional rights provided by federal law that
occurred under color of state law and were caused by a state actor.” (Docket Entry No. 38,
{| 18-22.) He further refers to them throughout his original complaint as his “UTMB
physicians.” Defendants allege in their pending motions that the defendant physicians were
employed by UTMB as physicians at all times relevant to plaintiff's claims against them.
Plaintiff has not alleged in his responses that the defendant physicians were not employed
by UTMB. It is undisputable that TDCJ and UTMB are state government agencies.
In light of these allegations, the pleadings show for purposes of FRCP 12(b)(6) that
defendants Ho, Ojo, Orihuela, and Bauer were state actors employed by UTMB as physicians
at all times relevant to plaintiffs section 1983 claims. In the alternative, a reasonable

inference can be drawn from the pleadings that defendants Ho, Ojo, Orihuela, and Bauer

were state actors employed by UTMB as physicians at all times relevant to plaintiffs section
1983 claims.
D. Texas Tort Claims Act — Pleadings
The defendant physicians contend in their pending motions that plaintiff s malpractice
and/or negligence claims arise under, and are governed by, the Texas Tort Claims Act
(“TTCA”). They further assert that they were acting within the scope of their employment
with UTMB at all times relevant to plaintiffs claims. In responding to the motions, plaintiff
argues that certain provisions of the TTCA are factually inapplicable, but he does not argue
that his state tort law claims do not arise under, or are not governed by, the TTCA. He
further does not argue that the defendant physicians were not UTMB employees acting
within the scope of their employment at all times relevant to his state tort law claims.
Because the parties’ pleadings show for purposes of FRCP 12(b)(6) that the defendant
physicians were acting within the scope of their employment with UTMB at all relevant
times, plaintiff's state tort law claims presumptively arise under, and are governed by, the
TTCA. In the alternative, the pleadings allow a reasonable inference to be made under FRCP
12(b)(6) that the defendant physicians were acting within the scope of their employment with
UTMB at all relevant times.
For purposes of FRCP 12(b)(1), the defendant physicians allege that they were acting
within the scope of their employment with UTMB at all times relevant to plaintiffs state tort

law claims, and plaintiff does not dispute this allegation in responding to the motions. See
Barrera—Montenegro, 74 F.3d at 659.
Ill. MOTION TO DISMISS — DEFENDANTS TDCJ AND UTMB
Plaintiff claims that defendants TDCJ and UTMB violated his rights under the ADA
by refusing to provide him with a wheelchair. (Docket Entry No. 38, § 27.) TDCJ and
UTMB move to dismiss this claim pursuant to FRCP 12(b)(1) and 12(b)(6). (Docket Entry
No. 45.) In support, they argue that they are entitled to sovereign immunity under Title II of
the ADA; that plaintiffs claim for a wheelchair is barred as res judicata and by the
applicable two-year statute of limitations; and that plaintiff fails to state a viable ADA claim.
Plaintiff disputes these arguments in his response. (Docket Entry No. 60).
A. Sovereign Immunity
Defendants contend they are entitled to sovereign immunity under Title IT ofthe ADA,
citing United States v. Georgia, 546 U.S. 151, 159 (2006). In his response, plaintiff argues
that he meets the abrogation requirements of Georgia and his claim is not barred.
Federal courts lack jurisdiction over suits against a state, state agency, or state official
in his or her official capacity “unless that state has waived sovereign immunity or Congress
has clearly abrogated it. NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 393-94 (Sth Cir.
2015). The abrogation consideration for Title II ADA claims requires an inquiry into: “(1)
which aspects of the State’s alleged conduct violated Title II; (2) to what extent such
misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct

violated Title Il but did not violate the Fourteenth Amendment, whether Congress’s
purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.”
United States v. Georgia, 546 U.S. 151, 159 (2006); Luke v. Texas, 46 F.4th 301, 305 (Sth
Cir. 2022). Thus, this Court must first determine whether plaintiff has pleaded factual
allegations sufficient to show conduct by TDCJ and UTMB that violated Title II of the ADA.
To make out a claim under Title II, plaintiff must plead factual allegations sufficient

to show (1) that he is a qualified individual with a disability; (2) that he was excluded from
participation in, or denied the benefits of, services, programs, or activities for which the
public entity is responsible, or was otherwise being discriminated against; and (3) that such
discrimination is because of his disability. 42 U.S.C. § 12132; Hale v. King, 642 F.3d 492,
499 (Sth Cir. 2011).
In pleading his ADA claim against TDCJ and UTMB, plaintiff alleges that they
violated the ADA by not providing him a wheelchair. This bare assertion, even coupled with
allegations pleaded elsewhere in his amended complaint, fails to present plausible facts to

support the elements of a prima facie violation of Title II of the ADA. Although he shows
that he is disabled for purposes of Title IL, plaintiff pleads no factual allegations sufficient

to show that, by denying plaintiff's requests for a wheelchair, TDCJ and UTMB excluded
him from participation in, or denied him the benefits of, services, programs, or activities for
which the public entity is responsible, or that he was otherwise being discriminated against,
and that such discrimination was because of his disability. To the contrary, plaintiff alleges

10

in his original complaint that he was denied a wheelchair because his UTMB physician did

not want him sitting. (Docket Entry No. 1, 140.) Plaintiff acknowledges that his scar tissue
“will not support weight and friction to sit on for any period without tearing as it is not viable
tissue.” Id., § 103. His allegations are insufficient to show that, by denying him a
wheelchair, TDCJ and UTMB discriminated against him because of his disability.
Accordingly, he has not established abrogation of immunity under Georgia.
Defendants’ motion to dismiss for lack of jurisdiction under FRCP 12(b)(1) is
GRANTED and plaintiff's ADA claim against TDCJ and UTMB is DISMISSED
WITHOUT PREJUDICE. Plaintiff is GRANTED LEAVE to amend within THIRTY
DAYS from date of this order to plead factual allegations sufficient to support a viable claim
against TDCJ and UTMB under Title II of the ADA.
B. Res Judicata
Defendants TDCJ and UTMB further move for dismissal of plaintiff's ADA claim
under FRCP 12(b)(6) as res judicata due to the 2015 CSA in Naik. Plaintiff counters that
the wheelchair-related ADA claim in Naik and the wheelchair-related ADA claim raised in
the instant lawsuit are different claims. That is, plaintiff argues that his current claim is
based on conduct not governed by the CSA.
Under Texas law, four elements trigger claim preclusion by res judicata: (1) the
parties to both actions are identical, or at least in privity; (2) the judgment in the first action
is rendered by a court of competent jurisdiction; (3) the first action concluded with a final

11

judgment on the merits; and (4) the same claim or cause of action is involved in both suits.
Inre Ark-La-Tex Timber Co., 482 F.3d 319, 330 (5th Cir. 2007); Test Masters Educ. Servs.,
Inc. v. Singh, 428 F.3d 559 (Sth Cir. 2004). The parties here agree that the first three
elements are present: the relevant parties in both Naik and the instant case are plaintiff,
TDCJ, and UTMB; the Naik judgment was rendered by a court of competent jurisdiction; and
Naik concluded with a final judgment on the merits. Plaintiff argues that the fourth element
is absent, in that the same claim or cause of action is not involved in both lawsuits.
Plaintiff alleged in Naik that TDCJ and UTMB violated the ADA by not providing
him with a wheelchair. He alleges in his amended complaint in the instant case that he
“brings a claim under the Americans with Disabilities Act against TDCJ and UTMB for not
providing a wheelchair to [him].”* On their face, the ADA claims would appear to be the

same for purposes of res judicata.
As the parties contend that the Naik CSA supports their respective res judicata
arguments, the Court will examine those provisions of the CSA that governed settlement of
plaintiff's ADA claim against TDCJ and UTMB. The CSA provides as follows:
6. Eubanks will be provide a motorized wheelchair medically suitable for
his condition and capable of off-loading his wounds at UTMB’s
expense at such time as he is deemed able to become mobile as
determined by his UTMB treating physician (with input, if any, from
any person conducting an independent medical exam on Eubanks under

“As no specific timeframes are pleaded in the amended complaint, plaintiff's ADA claim
must have accrued no earlier than two years prior to June 7, 2021, the date plaintiff filed the instant
lawsuit.
12

the criteria set forth in No. 1 above). Final decision-making authority
regarding the type of motorized wheelchair shall remain at all times
with UTMB’s Physical Medicine & Rehabilitation Specialist and his
UTMB treating physician.
(Docket Entry No. 45-2; emphasis added.)
In arguing that his current ADA claim is not res judicata, plaintiff alleges that TDCJ
and UTMB violated the following ancillary provision in the CSA:
1. Eubanks shall be allowed to request and arrange, at his own expense
and on a semi-annual basis, an evaluation by a doctor designated by
him for the purpose of making recommendations to, and consulting
with, UTMB physicians regarding his course of treatment. Any such
evaluation shall be conducted in accordance with Correctional
Managed Health Care Policy, E-44.2, Examination of Offenders by
Private Practitioners. Final decision-making authority on Eubanks’s
course of treatment shall remain at all times with his UTMB treating
physicians.

Id., emphasis added. Plaintiff argues that TDCJ and UTMB ignored his 2018 request for an
outside medical evaluation under the above provision. However, his argument does not alter
the outcome in this instance. Plaintiff does not allege that he requested and was denied an
outside evaluation at any time within two years prior to his filing of the instant lawsuit. Even
assuming he had made such a request, the CSA provisions do not require plaintiff to
undertake an outside medical evaluation in order to warrant a wheelchair, nor do they require
his UTMB treating physicians to provide him a wheelchair based on an outside medical
evaluation. That is, plaintiff’s inability to obtain an independent medical evaluation in 2018
plays no role in the Court’s analysis of the res judicata bar.

13

Plaintiff pleads no factual allegations in either his amended complaint or his response
to the motion to dismiss showing that the conditions underlying his right to a wheelchair
under the CSA have ripened. That is, he does not allege that his UTMB treating physician
has deemed him able to become mobile through use of a wheelchair. In absence of such
pleading, plaintiff's current ADA claim regarding denial of a wheelchair is a continuation
of his earlier ADA claim raised and settled in Naik.
Because the CSA settled plaintiff's ADA claim, and because his current ADA claim
is a continuation of the settled ADA claim, plaintiff's current ADA claim is barred as res
judicata. Plaintiff may not here seek injunctive relief against TDCJ and UTMB for provision
of a wheelchair as relief for their violation of his rights under Title I] of the ADA, as that
issue was settled by the CSA and dismissed with prejudice in 2015.
Defendants’ motion to dismiss plaintiff's ADA claim under FRCP 12(b)(6) as res
judicata is GRANTED, and plaintiffs ADA claim seeking injunctive relief to be provided

a wheelchair is DISMISSED WITHOUT PREJUDICE. Plaintiffis GRANTED LEAVE

to amend within THIRTY DAYS from date of this order to plead factual allegations
sufficient to raise a viable ADA claim against TDCJ and UTMB that was not dismissed with
prejudice in Naik. This ruling should be construed in context of the Court’s other rulings
regarding the instant motion to dismiss.

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C. Expiration of Limitations
Defendants further contend that plaintiff's ADA claim for denial of a wheelchair is
barred by the applicable two-year statute of limitations. Plaintiff disagrees, arguing that his
ADA claim arose within two years prior to the filing of this lawsuit because defendants have
continued to deny his requests for a wheelchair.
Plaintiff's ADA claim is governed by a two-year statute of limitations. See Frame v.
City of Arlington, 657 F.3d 215, 237 (5th Cir. 2011). An ADA claim accrues and the statute
of limitations begins to run when the plaintiff knows or has reason to know of the injury
which is the basis of the action. Brockman v. Tex. Dep’t of Crim. Justice, 397 F. App’x 18,
21 (Sth Cir. 2010); Jackson v. Johnson, 950 F.2d 263, 265 (Sth Cir. 1992).
Limitations is an affirmative defense. See FED. R. Crv. P. 8(c)(1). To obtain a FRCP
12(b)(6) dismissal based on an affirmative defense, the successful affirmative defense must

appear clearly on the face of the pleadings. Clark v. Amoco Prod. Co., 794 F.2d 967, 970
(Sth Cir. 1986).
Plaintiff's amended complaint does not plead a commencement date for his ADA
claim. To the contrary, plaintiff incorporates by reference all of the factual allegations
pleaded in his original complaint, which encompass a timeframe of nearly fifteen years,
including settlement of his wheelchair-related ADA claim in 2015. (Docket Entry No. 38

at 15.) Thus, defendants are entitled to dismissal of plaintiffs wheelchair-related ADA
claim as barred by limitations to the extent the claim arose prior to June 7, 2019.

15

Defendants’ motion to dismiss plaintiffs ADA claims under FRCP 12(b)(6) as barred
by limitations is GRANTED and plaintiffs ADA claim is DISMISSED WITH
PREJUDICE to the extent the claim arose prior to June 7, 2019. Plaintiff is GRANTED

LEAVE to amend within THIRTY DAYS from date of this order to plead factual
allegations sufficient to raise a viable wheelchair-related ADA claim that accrued on or after
June 7, 2019. This ruling should be construed in context of the Court’s other rulings
regarding the instant motion to dismiss.
D. No Viable ADA Claim is Raised
Defendants additionally argue that plaintiff's claim for denial of a wheelchair fails to
raise a viable claim under the ADA. The Court addressed this ground for dismissal as part
of defendants’ Rule 12(b)(1) sovereign immunity argument, supra, and determined that
plaintiff's amended complaint fails to plead factual allegations sufficient to raise a viable
claim against TDCJ and UTMB under Title II of the ADA.
Defendants’ motion to dismiss plaintiff's ADA claim under FRCP 12(b)(6) for failure

to state a viable claim is GRANTED and plaintiff's ADA claim against TDCJ and UTMB

is DISMISSED WITHOUT PREJUDICE. Plaintiff is GRANTED LEAVE to amend
within THIRTY DAYS from date of this order to plead factual allegations sufficient to raise

a viable claim against TDCJ and UTMB for relief under Title II of the ADA. This ruling
should be construed in context of the Court’s other rulings regarding the instant motion to
dismiss.

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E, Claims Under Section 1983
In his response to the motion to dismiss, plaintiff contends that defendants TDCJ and

UTMB have not moved to dismiss the section 1983 claims he raised against them in
paragraphs 6 and 18-22 of his amended complaint and page | of his original complaint.
The Court has reviewed those portions of the complaints cited by plaintiff and notes
that no viable section 1983 claim is raised against TDCJ and UTMB. In his amended
complaint, plaintiff does nothing more than cite section 1983 as a ground for jurisdiction
(Docket Entry No. 38, § 6) and state in general terms that all of the defendants “deprived
[him] of his constitutional rights provided by federal law that occurred under color of state
law and were caused by a state actor.” /d., {J 18-22. In his original complaint, plaintiff cites
section 1983 as a ground for jurisdiction and states in general terms that the nearly three
dozen defendants named therein violated his First, Eighth, and Fourteenth Amendment
rights. (Docket Entry No. 1, p. 1.)
To survive a FRCP 12(b)(6) motion to dismiss, a complaint must contain “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 573. A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Jd.

at 556. Plaintiff pleads no specific factual allegations in his amended complaint raising a
viable claim for relief under section 1983 as to TDCJ and UTMB. Moreover, plaintiff cannot
rely on the factual allegations pleaded in his original complaint, as those allegations

17

encompass claims that were either settled or dismissed in Naik, were barred by the two-year
statute of limitations at the time the instant action was filed, or are non-specific as to any
actionable conduct by TDCJ and UTMB.
Plaintiff is GRANTED LEAVE to amend within THIRTY DAYS from date of this
order to plead factual allegations sufficient to raise a viable section 1983 claim against
defendants TDCJ and UTMB, and to plead the specific relief he is seeking against them
under section 1983. This ruling should be construed in context of the Court’s other rulings
regarding the instant motion to dismiss.
IV. AMENDED SUPPLEMENTAL MOTION TO DISMISS —
DEFENDANTS TDCJ AND UTMB
In their amended supplemental motion to dismiss, defendants TDCJ and UTMB move
for dismissal of plaintiff's state tort law claims against them for lack of subject matter
jurisdiction under FRCP 12(b)(1). (Docket Entry No. 65.) Plaintiff did not file a response
directed to the amended supplemental motion to dismiss.
TDCI and UTMB acknowledge in an earlier pleading that plaintiff does not appear
to have raised state tort law claims against them, and move for dismissal of any such claims
solely “out of an abundance of caution.” (Docket Entry No. 64, p. 2.) The Court has
carefully reviewed plaintiff’ s amended complaint and finds that no state tort law claims have
been raised against TDCJ or UTMB. Although defendants direct the Court to page 7 of
plaintiff?s amended complaint as possibly raising such claims, plaintiff expressly and

18

unambiguously pleads that his state tort law claims are being raised against “the individually
named defendants” and “the Individual Defendants.” (Docket Entry No. 38, p. 7, [| 24-25.)
Plaintiff names Orihuela, Bauer, Ho, and Ojo as the individually-named defendants in his
amended complaint. TDCJ and UTMB, as state government agencies, have not been sued
for violation of state tort laws.
Consequently, the Court DENIES WITHOUT PREJUDICE AND AS MOOT
TDCJ and UTMB’s amended supplemental motion to dismiss plaintiffs state tort law claims.
(Docket Entry No. 65.)
V. MOTION TO DISMISS — DEFENDANTS ORIHUELA AND BAUER
Defendants Orihuela and Bauer move under FRCP 12(b)(6) to dismiss plaintiff s state

tort law claims against them. (Docket Entry No. 59.) Plaintiff filed a response (Docket Entry
No. 66), to which defendants filed a reply (Docket Entry No. 67).
In support of their motion to dismiss, defendants argue that plaintiff's state tort law
claims should be dismissed pursuant to Texas Civil Practice & Remedies Code § 101.106(f)
(election of remedies); that the claims are barred by the applicable two-year statute of
limitations; and that the claims were settled in Naik and should be dismissed pursuant to
Texas Civil Practice & Remedies Code § 101.106(c) (prior settlement).

19

Plaintiff disagrees with these grounds for dismissal,’ and further argues that Orihuela
and Bauer did not seek dismissal of his section 1983 claims against them. In their reply,
Orihuela and Bauer argue that plaintiff did not plead any section 1983 claims against them.
A. Section 1983 Claims
Plaintiff argues in his response that he pleaded viable section 1983 claims against
Orihuela and Bauer. (Docket Entry No. 66, n.18.) In support, he directs the Court to specific
portions of his amended complaint (Docket Entry No. 38, {| 6, 18-22) and his original
complaint (Docket Entry No. 1, p. 1). The Court has reviewed these portions of the
complaints and finds that they do not raise a viable section 1983 claim against Orihuela and
Bauer. To the contrary, the specified portions of the amended complaint recite general legal
principles unsupported by factual allegations. Likewise, the specified portion of plaintiff's
original complaint sets forth nothing more than the conclusory terms “retaliation,” “deliberate
indifference,” “section 1983,” and “the First, Eighth, and Fourteenth, [sic] amendments”
without supporting factual allegations. Plaintiff fails to show that he raised viable section
1983 claims against Orihuela and Bauer.
Plaintiff is GRANTED LEAVE to amend within THIRTY DAYS from date of this
order to plead factual allegations sufficient to raise a viable section 1983 claim against

“Among other arguments, Plaintiff contends that, “In cases like this, where facts related to
municipal liability are alleged, the Court should give plaintiffs [sic] the benefit of the doubt where
possible, as they [sic] have not yet had the opportunity for discovery.” (Docket Entry No. 66, p. 3.)
The Court will not address this argument, as plaintiff has not sued any municipal employees or
entities and pleads no factual allegations related to municipal liability.
20

Orihuela and Bauer. This ruling should be construed in context of the Court’s other rulings
regarding the instant motion to dismiss.
Orihuela and Bauer’s claim for entitlement to qualified immunity is DISMISSED

WITHOUT PREJUDICE AS MOOT at this time. Defendants may reassert their claim for

qualified immunity following plaintiffs filing of an amended complaint pleading factual
allegations sufficient to raise a viable section 1983 claim against them.
B. Election of Remedies
Plaintiff brings state tort law claims against defendants Orihuela and Bauer for
negligence and/or malpractice. (Docket Entry No. 38, {J 24-25.) As noted earlier, plaintiff
has not brought state tort law claims against TDCJ and UTMB. Defendants argue that
section 101.106(f) of the TTCA requires dismissal of plaintiff's state tort law claims against
them. Under section 101.106(f) of the TTCA,
Ifa suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee’s employment and if it could have
been brought under this chapter against the governmental unit, the suit is
considered to be against the employee in the employee’s official capacity only.
On the employee’s motion, the suit against the employee shall be dismissed
unless the plaintiff files amended pleadings dismissing the employee and
naming the governmental unit as defendant on or before the 30th day after the
date the motion is filed.
Tex. Clv. PRAC. & REM. CoDE § 101.106(f).
In Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), the Texas Supreme Court
explained that section 101.106(f) was intended to “foreclose suit against a government

21

employee in his individual capacity if he was acting within the scope of employment.” Jd.
at 381. Further, immunity under the TTCA extends to negligence or medical malpractice
claims against a defendant in his individual and official capacity for the actions taken as a
health care provider employed by UTMB. Taylor v. Poffinbarger, No. H-20-2428, 2021 WL
356831, at *11 n. 96 (S.D. Tex. Feb. 2, 2021) (citing Franka, 332 S.W.3d at 381-83).
Plaintiff could have brought his state tort law claims against UTMB. Whether
plaintiff could ultimately prevail against the state government agency does not bear on
whether such claim “could have been brought” under the TTCA for these purposes. See
Franka, at 375 (holding that a tort action “could have been brought” under the TTCA even
if the governmental entity was immune from such action).
Defendants’ motion for dismissal under section 101.106(f) is properly considered a
challenge to the Court’s subject matter jurisdiction and will be reviewed under FRCP
12(b)(1). It is plaintiffs burden to prove the Court has subject matter jurisdiction to
adjudicate his TTCA claims against Orihuela and Bauer. See Ramming, 281 F.3d at 161.
In determining whether plaintiff has met that burden, a court may rely upon the complaints,
the complaints supplemented by undisputed facts evidenced in the record, or the complaints
supplemented by undisputed facts plus the court’s resolution of disputed facts.
Barrera—Montenegro, 74 F.3d at 659.
Defendants Orihuela and Bauer assert in their motion to dismiss that they were acting
within the scope of their employment as physicians with UTMB at all times relevant to

22

plaintiffs state tort law claims against them. In responding to the motion, plaintiff does not
dispute their assertion and has not amended his complaint to allege that they were not acting
within the scope of their employment with UTMB. Consequently, the pleadings and record
show that Orihuela and Bauer were acting within the scope of their employment as UTMB
physicians at the times relevant to plaintiffs TTCA claims. Plaintiff does not argue or
demonstrate that he could not have brought his claims against UTMB and/or TDCJ. Orihuela
and Bauer are entitled to dismissal of plaintiff's TTCA claims pursuant to section 101.106(f).
Defendants Orihuela and Bauer’s motion to dismiss plaintiff's state tort law claims

pursuant to section 101.106(f) is GRANTED. Plaintiff's TTCA claims against Orihuela and

Bauer are DISMISSED WITHOUT PREJUDICE under FRCP 12(b)(1).
C, Limitations
Defendants further argue that plaintiff's TTCA claims arising from incidents or events
that occurred prior to two years before this lawsuit was filed are barred by limitations. The
Court will address this issue in the alternative, as it dismissed plaintiffs TTCA claims
against Orihuela and Bauer pursuant to section 101.106(f), supra.
The statute of limitations for healthcare liability claims is two years. TEX. CIV. PRAC.
& REM. CODE § 74.251(a). Plaintiff filed this lawsuit on June 7, 2021. Plaintiffs original
complaint pleads factual allegations against Orihuela and Bauer that occurred prior to June
7, 2019, and his amended complaint fails to plead factual allegations as to the dates any new
claims against them arose or otherwise accrued. As plaintiff expressly incorporates into his

23

amended complaint the factual allegations pleaded in his original complaint, his claims
against Orihuela and Bauer are barred, at least in part, by the two-year statute of limitations.
Plaintiff counters that his “complaint is based on new conduct, and subsequent wrongs
by the same defendant constitute new causes of action.” (Docket Entry No. 66, p. 5.) This

argument affords plaintiff no legal or factual support, as his complaints wholly fail to plead
factual allegations showing that his TTCA claims against Orihuela and Bauer are based on

new conduct that gave rise to new claims accruing on or after June 7, 2019.
To any extent the Court has jurisdiction over plaintiff's TTCA claims against Orihuela
and Bauer, his claims that accrued prior to June 7, 2019, are barred by the two-year statute
of limitations and are DISMISSED WITH PREJUDICE.
D. Prior Settlement
Defendants argue that plaintiff's claims against them were settled in Naik and should
be dismissed pursuant to section 101.106(c) of the TTCA. The Court will address this issue
in the alternative, as it dismissed plaintiff's TTCA claims against Orihuela and Bauer

pursuant to section 101.106(f), supra.
Texas Civil Practice & Remedies Code § 101.106(c) provides as follows:
The settlement of a claim arising under this chapter shall immediately and
forever bar the claimant from any suit against or recover from any employee
of the same governmental unit regarding the same subject matter.
TEX. Clv. PRAC. & REM. CODE § 101.106(c).

24

Plaintiff does not address the bar imposed by 101.106(c) as to his claims against the
UTMB employees regarding the same subject matter in the CSA. To the contrary, he argues
that his current claims against Orihuela and Bauer are not the same claims as were settled and
dismissed with prejudice in Naik. Plaintiffmisses the mark; section 101.106(c) bars state tort
law claims against “any employee of the same governmental unit regarding the same subject
matter” as was covered in the settlement. Section 101.106(c) does not require that the

current claims be the same as the settled claims; the current claims need only arise from the

same subject matter as the settled claims.
Nonetheless, the settlement bar imposed by section 101.106(c) applies only to
“settlement of a claim arising under this chapter.” Plaintiff did not bring state tort claims
against the defendants in the Naik case, and it cannot be said at this juncture that Naik
involved settlement of a claim arising under the TTCA. Consequently, section 101.106(c)
does not bar plaintiffs current TTCA claims against Orihuela and Bauer.
To any extent the Court has jurisdiction over plaintiff's TTCA claims against Orihuela
and Bauer, defendants’ FRCP 12(b)(6) motion to dismiss plaintiffs state tort law claims
pursuant to section 101.106(c) is DENIED WITHOUT PREJUDICE.
VI. MOTION TO DISMISS — DEFENDANTS HO AND OJO
Defendants Ho and Ojo move under FRCP 12(b)(1) and FRCP 12(b)(6) to dismiss
plaintiffs section 1983 and state tort law claims against them. (Docket Entry No. 70.)
Plaintiff filed a response in opposition. (Docket Entry No. 73.)

25

Defendants acknowledge that, in his amended complaint, plaintiffraises section 1983
claims against them in their individual capacity for deliberate indifference to his serious
medical needs. (Docket Entry No. 70, p. 1.) They further acknowledge that plaintiff raises
claims against them under the TTCA for medical malpractice and/or negligence. Jd.
Plaintiff responds that his claims are viable and should not be dismissed.°
A. Claims Under Section 1983
In his amended complaint, plaintiff alleges that Ho and Ojo were deliberately
indifferent to his serious medical needs by not providing him with a wheelchair and in not
closing his bodily wounds. Defendants argue that plaintiffs factual allegations fail to raise

a viable claim for deliberate indifference, and that the claims are barred by the applicable
two-year statute of limitations and the CSA.
i. Bodily Wounds
Plaintiff claims that defendants Ho and Ojo were deliberately indifferent to his serious
medical needs in not surgically closing his bodily wounds.
Defendants contend that the claim is barred by limitations. Plaintiffs section 1983
claims are governed by the Texas two-year statute of limitations. See Wallace v. Kato, 549

Although plaintiffs response is titled, “Plaintiff's Response to Defendants Orihuela and
Bower’s Motion to Dismiss,” it is clear from the body of the pleading that it is a response to
defendant Ho and Ojo’s motion to dismiss. Moreover, plaintiffagain argues that he has alleged facts
related to municipal liability without an opportunity for discovery. (Docket Entry No. 73, p. 3.) The
Court reiterates that plaintiff has sued only state government agencies and employees of state
government agencies.
26

U.S. 384, 387 (2007); TEX. Clv. PRAC. & REM. CODE § 16.003(a). The statute of limitations
for section 1983 claims begins to run when the plaintiff “knows or has reason to know of the
injury which is the basis of the action.” Burrell v. Newsome, 883 F.2d 416, 418 (Sth Cir.
1989).
Plaintiffs amended complaint does not plead factual allegations establishing the date
that his claim for deliberate indifference to his bodily wounds accrued, nor does he plead
such information in his response. To the contrary, his original complaint pleads factual
allegations regarding multiple wounds and timeframes, both before and after dismissal of
Naik. Moreover, plaintiff's amended complaint states that he underwent surgery at U[MB

on November 21, 2022, shortly prior to the filing of his amended complaint. (Docket Entry
No. 38, □ 5.) However, he provides no factual allegations as to the nature of the surgery or

state that the surgery closed the bodily wounds made the basis of his deliberate indifference
claim in his amended complaint.
Plaintiff's deliberate indifference claim against Ho and Ojo regarding his bodily
wounds, to the extent that the claim arose prior to June 7, 2019, is barred by the two-year
statute of limitations and is DISMISSED WITH PREJUDICE. Plaintiffs deliberate
indifference claim against Ho and Ojo regarding his bodily wounds, to the extent that the
claim arose on or after June 7, 2019, is DISMISSED WITHOUT PREJUDICE under
FRCP 12(b)(6). Plaintiff is GRANTED LEAVE to amend within THIRTY DAYS from

27

date of this order to plead factual allegations sufficient to raise a timely and viable deliberate
indifference claim against Ho and Ojo regarding his bodily wounds.
Defendants further contend that plaintiffs claim is barred as res judicata. To the

extent that plaintiff claims Ho and Ojo were deliberately indifferent to his serious medical
need for closure of his bodily wounds, the amended complaint does not show that the claim
is barred as res judicata in light of Naik. The claim would be barred if the bodily wounds
made the basis of plaintiff's claim in the amended complaint existed at the time Naik was
dismissed. This determination, however, cannot be made on the basis of plaintiffs current
deficient pleadings, and the claim cannot be dismissed under FRCP 12(b)(6) as barred as res
judicata at this time.
Defendants’ motion to dismiss this claim as barred as res judicata is DENIED
WITHOUT PREJUDICE.
ii. Wheelchair
Plaintiff further claims that defendants Ho and Ojo were deliberately indifferent to his
serious medical need for a wheelchair.
Defendants contend that the claim for denial of a wheelchair is barred by the
applicable two-year statute of limitations. No specific timeline is alleged in plaintiffs
amended complaint, and his original complaint asserts that his requests for a wheelchair were
denied both before and after the Naik settlement and dismissal.

28

Consequently, plaintiff's section 1983 claim against Ho and Ojo for denial of a
wheelchair, to the extent that the claim arose prior to June 7, 2019, is barred by the two-year
statute of limitations and is DISMISSED WITH PREJUDICE. To the extent that the claim

arose on or after June 7, 2019, the claim is DISMISSED WITHOUT PREJUDICE under
FRCP 12(b)(6). Plaintiff is GRANTED LEAVE to amend within THIRTY DAYS from
date of this order to plead factual allegations sufficient to raise a timely and viable deliberate
indifference claim against Ho and Ojo regarding denial of a wheelchair. This ruling should
be construed in context of the Court’s other rulings regarding the instant motion to dismiss.

Defendants further contend that plaintiffs claim is barred as res judicata in light of
the CSA and Naik dismissal. The pleadings show that plaintiff's claim for denial of a
wheelchair by UTMB physicians in Naik was dismissed with prejudice on May 1, 2015. As
discussed earlier, plaintiff and the defendants in Naik expressly agreed to the conditions
under which plaintiff would be provided a wheelchair, as memorialized within their CSA,’
Plaintiff does not plead factual allegations showing that the agreed-upon conditions
for his use of a wheelchair have been met but that Ho and Ojo have continued to refuse to

Plaintiff's pleadings acknowledge that the provisions of the CSA remain in effect. As
recently as May 15, 2020, plaintiff relied on the CSA (which he refers to as ‘the Mediation
agreement”) to enforce his agreed right to not be moved to a different cell. (Docket Entry No. 1, §
168: “May 15, 2020 A Captian [sic] came by my cell to [sic] day to move me to another cell and I
had to pull the Mediation agreement out and show him that according to the agreement I can’t be
moved until Iam healed. They (Admin) is very upset.”).
29

provide him a wheelchair. Thus, plaintiffs claim for denial of a wheelchair, to the extent
that his claim does not rely on his meeting the conditions for a wheelchair set forth in the
CSA, is barred as res judicata.
Plaintiffs claim is DISMISSED WITHOUT PREJUDICE under FRCP 12(b)(6).
Plaintiff is GRANTED LEAVE to amend within THIRTY DAYS to plead factual
allegations sufficient to raise a timely and viable claim under section 1983 for denial of a
wheelchair that is not barred as res judicata by the Naik CSA and dismissal. This ruling
should be construed in context of the Court’s other rulings regarding the instant motion to
dismiss.
B. Supervisory Liability
Defendants Ho and Ojo move to dismiss plaintiff's deliberate indifference claims
brought against Ho for supervisory liability as to conduct of other UTMB employees under
her supervision.
“A supervisory official may be held liable . . . only if (1) he affirmatively participates
in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional
policies that causally result in the constitutional injury.” Gates v. Texas Dep’t of Prot. &
Reg. Servs., 537 F.3d 404, 435 (5th Cir. 2008). “In order to establish supervisory liability
for constitutional violations committed by subordinate employees, plaintiffs must show that
the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations of others’
constitutional rights committed by their subordinates.” Jd.

30

Plaintiff pleads in his amended complaint that,
Dr. Ho and Dr. Ojo have refused to provide or refer necessary care to seal up
the wounds that are open on Mr. Eubanks body causing infection and severe
pain. Dr. Ho was promoted at some time but is still in a supervisory position
whereby Dr. Ho approves or doesn’t approve the medical treatment of Mr.
Eubanks.
(Docket Entry No. 38, § 17.) This pleading is minimally sufficient under FRCP 12(b)(6) to
raise deliberate indifference claims against Ho and Ojo, and to raise a claim against Ho in

a supervisory capacity for affirmative participation in the acts allegedly causing the
constitutional deprivation. See Gates, 537 F.3d at 435.
Defendants’ motion to dismiss plaintiffs supervisory liability claim against Ho is
DENIED WITHOUT PREJUDICE.
C. Qualified Immunity
Defendant Ho and Ojo argue that they are entitled to qualified immunity as to
plaintiff's section 1983 claims for deliberate indifference. That is, they contend that
“Plaintiff has not set forth sufficient factual matter to show that Drs. Ojo and Ho violated a
clearly established constitutional right, therefore, Drs. Ojo and Ho are entitled to qualified
immunity.” (Docket Entry No. 70.)
The doctrine of qualified immunity protects government officials “from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which areasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009). “Qualified immunity gives government officials breathing room

31

to make reasonable but mistaken judgments.” Messerschmidt v. Millender, 565 U.S. 535,
546 (2012) (cleaned up). Moreover, “[a]ctions and decisions by officials that are merely
inept, erroneous, ineffective, or negligent do not amount to deliberate indifference and do not
divest officials of qualified immunity.” Alton v. Texas A&M University, 168 F.3d 196, 201
(Sth Cir. 1999).
To defeat a claim of qualified immunity, a plaintiffhas the burden to demonstrate the
inapplicability of the defense. McLin v. Ard, 866 F.3d 682, 689 (Sth Cir. 2017). But this is
not a heightened standard. “[A] plaintiff must plead qualified immunity facts with the
minimal specificity that would satisfy Twombly and Iqbal.” Allen v. Hays , 65 F 4th 736, 743
(5th Cir. 2023); Arnold v. Williams, 979 F.3d 262, 267 (Sth Cir. 2020). In determining
qualified immunity for purposes of a motion to dismiss, the court accepts the factual
allegations of plaintiff's complaint as true and applies Rule 12(b)(6) standards. See, e.g.,
Morrison v. Walker, 704 F. App’x 369, 372 (Sth Cir. 2017).
To meet his burden of proof, a plaintiff must show that the official’s conduct violated
his statutory or constitutional right and was objectively unreasonable in light of clearly
established law at the time of the violation. The court may address either or both prongs as

necessary in a particular case. Pearson v. Callahan, 555 U.S. 223, 242 (2009). With respect
to the second prong, the constitutional right “must be sufficiently clear to put a reasonable
officer on notice that certain conduct violates that right.” Sanchez v. Swyden, 139 F.3d 464,
466 (5th Cir. 1998). “The subjective intent of the officer is irrelevant, and the officer’s

32

knowledge of the law need not rise to the level of a constitutional scholar.” Jd. at 467
(cleaned up). In other words, “[w]hen considering a defendant’s entitlement to qualified
immunity, [the Court] must ask whether the law so clearly and unambiguously prohibited his
conduct that every reasonable official would understand that what he is doing violates [the
law].” McLin, 866 F.3d at 695 (cleaned up). “To answer that question in the affirmative, we

must be able to point to controlling authority—or a robust consensus of persuasive
authority—that defines the contours of the right in question with a high degree of
particularity.” Jd. at 696. “Where no controlling authority specifically prohibits a
defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot
be said to be clearly established.” Jd.
Plaintiff raises two grounds in his response opposing qualified immunity. He argues
first that defendants are not entitled to qualified immunity under the facts and law; he argues
second that the defense of “[q]ualified immunity should no longer exist.” (Docket Entry No.
73, pp. 10-11.) The Court will address these arguments in inverse order.
i. The Defense of Qualified Immunity Should No Longer Exist
Plaintiff contends that the defense of qualified immunity is a construct of flawed legal
jurisprudence that should not be recognized by this Court. Plaintiff proffers no controlling
precedent from the Supreme Court of the United States or the United States Court of Appeals
for the Fifth Circuit in support of his argument. To the contrary, he directs the Court to the
dissenting opinion in the recent decision of Rogers v. Jarrett, 63 F.4th 971, 980 (Sth Cir.

33

2023) (Willett, J., dissenting) (“[M]odern [qualified] immunity jurisprudence is not just
atextual but countertextual.”) (emphasis in original).* However, Rogers not only recognized
the defense of qualified immunity in context of a prisoner’s deliberate indifference claims
against his physicians, but it upheld the district court’s summary judgment dismissal of the
claims as barred by qualified immunity.
This Court declines to adopt plaintiffs novel but untenable argument that the concept
of qualified immunity should no longer be recognized.
ii. Defendants’ Entitlement to Qualified Immunity — Wheelchair
Defendants argue that plaintiff's pleadings fail to set forth sufficient factual matter

to show that they violated a clearly established constitutional right in not providing him a
wheelchair, and that they are entitled to the defense of qualified immunity. In opposing
defendants’ motion to dismiss, plaintiff refers to the following pleadings in his amended
complaint:
16. Mr. Eubanks is currently is [sic] a double leg amputee. Dr. Ho was Mr.
Eubanks’ primary care physician. He has requested the use of a wheelchair
from Dr. Ho and Dr. Ojo to get around in his cell and so that he can be
wheeled to the law library and outside for air and do other things in the TDCJ
prison but has been refused or ignored.
(Docket Entry No. 38, 16-17.)’ No date is pleaded as to this alleged event.

8Citing Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Calif. L. Rev.
201, 235 (2023) (referencing the Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13).
*Plaintiff further cites as support pages 7 through 22 in his original complaint; however, those
factual allegations all relate to events that occurred in 2015 through August 18, 2018. (Docket Entry
34

Plaintiff's claims regarding denial of a wheelchair and defendants’ attendant
entitlement to qualified immunity must be viewed in light of the 2015 CSA, which clearly
and unambiguously spelled out the agreed conditions under which plaintiff would be given
a wheelchair. Plaintiff acknowledges in his original complaint that he settled and dismissed
his wheelchair claims with prejudice in Naik in 2015. (Docket Entry No. 1, § 37.) In
executing the CSA, plaintiff agreed without reservation that his readiness and ability to use

a wheelchair would remain a matter of medical judgment solely within the decision-making
authority of his UTMB treating physician.
Plaintiff pleads no factual allegations showing that at any time on or after June 7,
2019, he met the agreed CSA prerequisites for use of a wheelchair. Nor does he plead
factual allegations establishing that, in light of the agreed CSA prerequisites, defendant Ho

or Ojo violated his constitutional rights by not providing him a wheelchair and that the denial
of a wheelchair was objectively unreasonable in light of clearly established law at the time
of the violation. Thus, to the extent plaintiff claims that defendants Ho and Ojo were
deliberately indifferent to his serious medical needs in not providing him a wheelchair, the
claims are barred by qualified immunity.

No. 1, pp. 7-22; §§ 37-140.) Plaintiff filed this lawsuit on June 7, 2021. Consequently, his claims
that accrued prior to June 7, 2019, are barred by limitations and cannot be used by plaintiff □□ rebut
defendants’ claim for qualified immunity.
35

Defendants’ motion to dismiss plaintiffs section 1983 claim for denial of a
wheelchair is GRANTED and the claim is DISMISSED WITHOUT PREJUDICE as
barred by qualified immunity.
iii. | Defendants’ Entitlement to Qualified Immunity — Bodily Wounds
Plaintiff also claims that defendants Ho and Ojo violated his Eighth Amendment
rights by failing to surgically close his bodily wounds and that they are not entitled to
qualified immunity.
In opposing defendants’ motion, plaintiff relies on the following factual allegations
appearing in his amended complaint:
17. Furthermore, Dr. Ho and Dr. Ojo have refused to provide or refer
necessary care to seal up the wounds that are open on Mr. Eubanks body
causing infection and severe pain. Dr. Ho was promoted at some time but is
still in a supervisory position whereby Dr. Ho approves or doesn’t approve the
medical treatment of Mr. Eubanks.
(Docket Entry No. 38, {ff 16-17.) Plaintiff further argues in his response as follows:
As Mr. Eubanks’s doctors, Defendants Ho and Ojo may be liable both directly
for their deliberately indifferent care of Mr. Eubanks and as supervisors for
their unconstitutional policies with respect to his care. They have left Mr.
Eubanks sitting in his own urine with continuously infected wounds and
rotting skin, and refused to provide appropriate treatment apart from the bare
minimum of changing the wound dressings. (Doc. 38 {| 16—17; Doc. [1] pp.
7-22.) Such conduct demonstrates subjective awareness of a serious risk of
death through sepsis, let alone the continued extreme physical pain and
disfigurement Plaintiff has experienced, and is an obvious violation of his
Eighth Amendment rights that overcomes their assertion of the qualified
immunity defense. See Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (“no
reasonable correctional officer could have concluded that... it was

36

constitutionally permissible to house Taylor in such deplorably unsanitary
conditions for such an extended period of time.”)
(Docket Entry No. 73, pp. 9-10; footnotes relocated to text; Taylor quotation corrected to

remove inappropriate modification by plaintiff.)
The Court finds that plaintiff's factual allegations are sufficient to defeat Ho and
Ojo’s request for qualified immunity at this pleadings stage as to his deliberate indifference
claim regarding his bodily wounds.
Defendants’ motion to dismiss plaintiff's bodily wound deliberate indifference claim

as barred by qualified immunity is DENIED WITHOUT PREJUDICE.
D. TTCA
Defendants Ho and Ojo further argue that plaintiffs state tort law claims for
negligence and/or malpractice are barred by the TTCA and should be dismissed under FRCP
12(b)(1).
As with plaintiff's TTCA claims against Orihuela and Bauer, supra, the claims must
be dismissed to extent they are based on conduct within the general scope of Ho and Ojo’s
employment with UTMB and the claims could have been brought under the TTCA against
UTMB. See TEX. CIV. PRAC. & REM. CODE § 101.106(f). For the same reasons as the Court
dismissed plaintiff’ s state tort law claims against defendant Orihuela and Bauer under section
101.106(f), the Court dismisses plaintiffs state tort law claims against Ho and Ojo under
section 101.106(f).

37

Defendants Ho and Ojo’s motion to dismiss plaintiffs state tort law claims under
section 101.106(f) is GRANTED. The claims are DISMISSED WITHOUT PREJUDICE.
VII. CONCLUSION
For the above reasons, the Court ORDERS as follows:
1. The Motion to Dismiss filed by defendants TDCJ and UTMB (Docket Entry
No. 45) is GRANTED.
2. The Amended/Supplemental Motion to Dismiss filed by defendants TDCJ and
UTMB (Docket Entry No. 65) is DENIED WITHOUT PREJUDICE AS
MOOT.
3. The Motion to Dismiss filed by defendants Orihuela and Bauer (Docket Entry
No. 59) is GRANTED IN PART, DENIED IN PART WITHOUT
PREJUDICE, and DISMISSED IN PART WITHOUT PREJUDICE AS
MOOT.
4, The Motion to Dismiss filed by defendants Ho and Ojo (Docket Entry No. 70)
is GRANTED IN PART and DENIED IN PART WITHOUT
PREJUDICE.
5. Plaintiffis GRANTED LEAVE TO AMEND his complaint within THIRTY
DAYS from date of this order consistent with the Court’s rulings in this order.
6. Any further dispositive motions, including motions for summary judgment,
must be filed within 120 days from date of this order.
7. This is an INTERLOCUTORY ORDER.
Signed at Houston, Texas, on this the SH day of March, 2024.

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677569. Public record. Not legal advice.