Mendez

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

ROBERT MENDEZ §

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Plaintiff, §

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v. § Civil Action No. 7:23-CV-00013-O

§

MARCIA J. ODAL §

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Defendant. §

MEMORANDUM OPINION & ORDER

Before the Court are Defendant’s Motion for Summary Judgment and Appendix in Support

(ECF Nos. 46, 47); Plaintiff’s Response and Appendix in Support (ECF Nos. 52, 53); and

Defendant’s Reply and Appendix in Support (ECF No. 56, 57); Plaintiff’s Motions to Strike Dr.

Benjamin Leeah and his report and Appendices in Support (ECF Nos. 39, 40, 43, 44); Defendant’s

Responses and Appendix in Support (ECF Nos. 41, 42, 48); and Plaintiff’s Replies (ECF Nos. 45,

50); Defendant’s Motion to Withdraw Defendant’s Deemed Admissions (ECF No. 58); and

Plaintiff’s Response (ECF No. 60). Having considered the Motions, briefing, and applicable law,

the Court GRANTS Defendant’s Motion for Summary Judgment (ECF No. 46) and DENIES as

moot the other motions (ECF Nos. 39, 43, and 58).

I. BACKGROUND

The facts, unless otherwise noted, are undisputed. At all times relevant to this litigation,

Plaintiff Robert Mendez (“Plaintiff”) was an inmate in the custody of Texas Department of

Criminal Justice (“TDCJ”) and Defendant Dr. Marcia Odal was employed by the Texas Tech

University Health Sciences Center (“TTUHSC”). TTUHSC is an agency of the State of Texas. On

May 3, 2022, Plaintiff reported to the unit clinic for a previously scheduled appointment to get a

new prescription for body lotion and to address possible cellulitis (a skin infection) on his face.

Prior to being seen by Defendant, Plaintiff had submitted a request for treatment where he indicated

that he had “a bump on [his] face” and wanted “to make sure it a staff”—that is, he wanted to make

sure his rash was not staph.1 It is disputed whether Defendant ever saw the request.

At the May 3 appointment, Defendant noted that Plaintiff was “convinced he was exposed

to a rash from his cell mate.”2 Ultimately, Defendant diagnosed Plaintiff with a scalp rash,

parotitis, and cellulitis. Defendant did not note any visible abscesses, drainage, or puss. Parotitis

is an irritation of the parotid gland, which is located on the side of the face. Cellulitis is a common,

potentially serious bacterial skin infection. Cellulitis is commonly caused by streptococcus and

staphylococcus bacteria, including methicillin-resistant Staphylococcus aureus (“MRSA”), also

referred to as “staph”. MRSA can cause a host of serious medical risks if not properly treated.

Defendant prescribed Plaintiff cream for potential scabies on his scalp and clindamycin

and ibuprofen for the cellulitis and parotitis. She also scheduled a follow up in seven days and

instructed Plaintiff to return immediately if he noticed any new or worsening symptoms. For

reasons that are unclear from the record, the follow-up appointment did not occur until May 12,

when Plaintiff submitted a “sick call” request. During that visit, Defendant observed that Plaintiff’s

parotitis had improved but that his cellulitis infection had worsened. In particular, he had

developed an abscess, puss, and drainage at the nape of his neck, as well as “draining swelling at

upper right chest.”3 The presence of the abscess allowed Defendant to order a lab test of the

infection (a culture and sensitivity test) to determine its cause. She prescribed a new antibiotic,

Bactrim, and daily wound care. Four days later, the results of that culture confirmed that the

1 Pl.’s App’x Supp. Resp. (Treatment Request) App. 0135, ECF No. 53.

2 Def.’s App’x Supp. Mot. Summ. J. (Appointment Notes) App. 46, ECF No. 47; Pl.’s App’x Supp. Resp.

(Appointment Notes) App. 0007, ECF No. 53.

3 Pl.’s App’x Supp. Resp. (Second Appointment Notes) App. 0394, ECF No. 53.

cellulitis was caused by MRSA, and that the infection was resistant to the clindamycin that Plaintiff

had initially been prescribed.

However, before the lab work came back, on May 14, Plaintiff sought treatment from two

night-nurses, who contacted the on-call physician who, in turn, determined that Plaintiff’s infection

required an immediate transfer to the emergency room at United Regional Health Care in Wichita

Falls (“Union”). At Union, Plaintiff was initially treated with intravenous antibiotics but the

treating physician, Dr. Jerald E. Giles, determined that “surgery was inevitable.” Plaintiff

underwent several surgeries to remove the infection. The surgeries resulted in a “large 20-

centimeterwide by 4–7-centimeter tall-defect” in the back of Plaintiff’s neck.

Plaintiff underwent the relevant administrative grievance procedures in late 2022. After

exhausting his administrative remedies, Plaintiff filed this action. He sues under 42 U.S.C. § 1983,

alleging that Defendant was deliberately indifferent to his serious medical need in violation of his

Eighth Amendment rights. Defendant now moves for summary judgment. Being fully briefed, the

Defendant’s Motion is now ripe for this Court’s review.

II. LEGAL STANDARD

A. Motion for Summary Judgment Standard

The Court may grant summary judgment when the pleadings and evidence show “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). Summary judgment is not “a disfavored procedural shortcut, but rather

. . . an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy

and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)

(internal quotation marks and citation omitted).

“[T]he substantive law will identify which facts are material.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine dispute as to any material fact exists “if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.” Id. The movant must

inform the court of the basis for its motion and demonstrate from the record that no genuine dispute

as to any material fact exists. Celotex, 477 U.S. at 323. The Court must view the evidence in the

light most favorable to the nonmovant. Ion v. Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir.

2013). And if there appears to be some support for disputed allegations, such that “reasonable

minds could differ as to the import of the evidence,” the Court must deny the motion for summary

judgment. Anderson, 477 U.S. at 250.

“The party opposing summary judgment is required to identify specific evidence in the

record and to articulate the precise manner in which that evidence supports his or her claim.” Ragas

v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). “The opposing parties’ failure to

produce proof as to any essential element of a claim renders all other facts immaterial.” 2223

Lombardy Warehouse, LLC v. Mount Vernon Fire Ins. Co., No. 3:17-CV-2795-D, 2019 WL

1583558, at *6 (N.D. Tex. Apr. 12, 2019) (Fitzwater, J.). Summary judgment is mandatory if the

parties fail to meet this burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

B. Qualified Immunity

“A qualified immunity defense alters the usual summary judgment burden of

proof.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). To overcome an official’s qualified

immunity defense, a plaintiff must establish: “(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 (2011) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). For a right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Although this does not mean that “a case

directly on point” is required, “existing precedent must have placed the statutory or constitutional

question beyond debate.” Ashcroft, 563 U.S. at 741. The salient question is whether the state of

the law gives the official “fair warning” that his or her conduct is unconstitutional. See Hope v.

Pelzer, 536 U.S. 730, 741 (2002).

III. ANALYSIS

Plaintiff’s claims center on whether Defendant violated his Eighth Amendment right to be

free from cruel and unusual punishment. Defendant, as a government official, has raised the

defense of qualified immunity. The parties’ briefing focuses on whether Defendant acted with

deliberate indifference. Accordingly, the Court’s analysis focuses on deliberate indifference.

“Prison officials violate the Eighth Amendment’s prohibition of cruel and unusual

punishment when they demonstrate deliberate indifference to a prisoner’s serious medical needs

if such indifference inflicts unnecessary suffering.” Thibodeaux v. Thomas, 548 Fed. App’x 174,

175 (5th Cir. 2013) (citing Estelle v. Gamble, 429 U.S. 97, 103–06 (1976)). A prison official shows

deliberate indifference if “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 (1994).

“[A]n incorrect diagnosis by prison medical personnel does not suffice to state a claim for

deliberate indifference.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.

2001). Allegations of malpractice, negligence, or unsuccessful treatment fail to establish deliberate

indifference. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); see also Estelle, 429 U.S.

at 106 (“Medical malpractice does not become a constitutional violation merely because the victim

is a prisoner.”). Similarly, a plaintiff’s disagreement with the medical treatment provided does not

give rise to a constitutional claim (Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997)), and a

provider’s decision not “to follow the recommendations of another treating physician does not

amount to deliberate indifference.” Gobert, 463 F.3d at 350 n.32.

Plaintiff argues that a reasonable jury could conclude that Defendant knew that Plaintiff

was at risk of serious harm because she (1) diagnosed Mr. Mendez with cellulitis; (2) knew that

cellulitis could be caused by MRSA; (3) knew the risks associated with cellulitis and MRSA; and

(4) knew that TDCJ policy required physicians to treat all cases of cellulitis as if they were caused

by MRSA. The Court disagrees. None of this evidence establishes that Defendant actually “dr[ew]

the inference” that Plaintiff’s cellulitis was caused by MRSA as necessary to sustain a deliberate

indifference claim. Farmer, 511 U.S. at 837. Instead, the summary judgment evidence shows at

most that Defendant should have known that the cellulitis diagnosed at the first visit was caused

by MRSA and therefore presented a serious risk. The “failure to alleviate a significant risk that

[the official] should have perceived but did not” is insufficient to show deliberate indifference. Id.

at 838.

Here, Plaintiff’s claims concern medical judgments made by Defendant. The evidence

shows that Plaintiff initially presented with a rash that was unaccompanied by visible drainage that

could be swabbed and lab tested, from this milder rash Defendant diagnosed Plaintiff with parotitis

and cellulitis,4 Defendant treated Plaintiff “for parotitis and cellulitis,”5 and when Plaintiff

presented with more severe, lab-testable symptoms, Defendant tested Plaintiff for MRSA.6 The

fact that Defendant’s initial, incorrect diagnosis and treatment ultimately led to Plaintiff’s injury

4 Def.’s App’x Supp. Mot. Summ. J. 47, ECF No. 47; Pl.’s App’x Supp. Resp. App. 0007–08, ECF No. 53.

5 Pl.’s App’x Supp. Resp. (RFA Responses) App. 0394, (Appointment Notes) 0008, ECF No. 53.

6 Pl.’s App’x Supp. Resp. (Second Appointment Notes) App. 0394, ECF No. 53.

does not create a genuine dispute of material fact as to whether Defendant knew Plaintiff had

MRSA and ignored it.

Defendant’s actions are “classic example[s] of a matter for medical judgment” and,

therefore, cannot form the basis of a deliberate indifference claim. Brauner v. Coody, 793 F.3d

493, 499 (5th Cir. 2015) (quoting Estelle, 429 U.S. at 107); see Johnson v. Gregg Cnty. Jail, Civil

Action No. 6:20-cv-00377-JCB, 2021 WL 789886, at *2 (E.D. Tex. Jan. 8, 2021) (concluding

plaintiff failed to state a claim when he challenged follow up care provided and alleged doctor was

deliberately indifferent “by failing to send him to physical therapy”), report and recommendation

adopted, 2021 WL 785089 (E.D. Tex. Mar. 1, 2021); Smith v. Larpenter, Civil Action No. 16-

15778, 2017 WL 2773662, at *7 (E.D. La. May 3, 2017) (citing Brauner, 793 F.3d at 498–99)

(“[T]he decision of which specific medication to prescribe Plaintiff is a classic example of a matter

of medical judgment which is not actionable under § 1983.”), report and recommendation

adopted, 2017 WL 2780748 (E.D. La. June 26, 2017); Auguillard v. Toce, Civil Action No. 14-

394-JJB-RLB, 2015 WL 5093842, at *5 (M.D. La. Aug. 27, 2015) (collecting cases) (reasoning

that “a decision to refer an inmate for additional treatment, tests or evaluation is a matter of

professional medical judgment that the courts will not normally second-guess in the context of a

claim of deliberate medical indifference”).

Plaintiff asserts that he can prove deliberate indifference by showing that Defendant

“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.”7

But the undisputed evidence shows the contrary happened here. Plaintiff was seen by Defendant

7 Pl.’s Resp. Def.’s Mot. Summ J. 22, ECF No. 52 (quoting Easter, 467 F.3d at 464).

upon his request,8 all of his symptoms were assessed,9 his treatment plan was updated when new

symptoms were presented,10 and Defendant directed that Plaintiff should “[r]eturn to clinic [sic]

at once” for certain symptom changes or “if worse[.]”11 At most, the evidence shows Defendant

could have unofficially diagnosed Plaintiff with MRSA during the initial visit—it does not show

that Defendant knew that Plaintiff’s cellulitis was caused by MRSA.12 Both Defendant’s initial

non-MRSA diagnosis and the fact that Defendant did not test for MRSA until Plaintiff presented

with abscesses that were able to swabbed—that is, when lab testing had become possible—are

matters of professional medical judgment that the Court may not second guess. See Auguillard,

2015 WL 5093842, at *5.

Plaintiff’s reliance on Ford to support his assertion that he received only a “cursory level

of care” and that Defendant “deliberate[ly] refus[ed] to treat his cellulitis” is inapposite.13 In Ford,

it was undisputed that the physician subjectively knew that the plaintiff had Addison’s disease and

the dispositive fact was that the physician did not treat it at all. Ford, 102 F.4th at 308 (“Plaintiffs

have presented evidence that Dr. Corley did not monitor or treat Newsome’s Addison’s

disease whatsoever.” (emphasis in original)). As explained above, Plaintiff has not presented

sufficient evidence to show that Defendant actually knew that Plaintiff had MRSA—only that

Defendant knew Plaintiff had parotitis and cellulitis. And significantly, the doctor in Ford did not

treat or monitor one of the patient’s ailments at all. But here, the evidence shows that Defendant

treated Plaintiff for parotitis and cellulitis.14 Setting aside Defendant’s disputed testimony

8 Id. at 4, 9; Pl.’s App’x Supp. Resp. (Second Appointment Notes) App. 0394, ECF No. 53.

9 Pl.’s App’x Supp. Resp. (Both Appointment Notes) App. 0007–08, 0394, ECF No. 53.

10 Id. at App. 0394.

11 Id. at App. 0008.

12 Cf. Resp. Def.’s Mot. Summ J. 22, ECF No. 52 (“Whether a lab test is required to officially diagnose an

infection as MRSA is beside the point.” (emphasis in original).

13 Pl.’s Resp. Def.’s Mot. Summ J. 24-25, ECF No. 52.

14 Pl.’s App’x Supp. Resp. (RFA Responses) App. 0394, (Appointment Notes) 0008, ECF No. 53.

regarding whether she prescribed clindamycin to treat both parotitis and cellulitis, the medical

records clearly show that Defendant was at least monitoring the cellulitis and had prescribed a

cream to treat potential scabies.15 Cf. Ford, 102 F.4th at 308. At most, her course of action was a

mistreatment or negligent treatment decision that the Ford court explicitly notes does “not

constitute deliberate indifference.” Id.

And even granting Plaintiff’s argument that Defendant’s prescribing clindamycin ran afoul

of the medical policy’s directives, neglecting to follow policy does not turn medical misjudgment

into a constitutional violation. See Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009) (“[A]

prison official’s failure to follow the prison’s own policies does not, itself, result in a constitutional

violation.”). Though Defendant’s misalignment with the policy may rise to the level of medical

negligence, negligence alone is not a violation of the Eight Amendment. See Fife v. NFN Hensley,

Health & Med. Adm’r, No. 08-10062, 2009 WL 348823, at *1 (5th Cir. Feb. 12, 2009) (per curiam)

(“[U]nsuccessful medical treatment, negligence, or medical malpractice are insufficient to give

rise to a claim of deliberate indifference.”).

As disquieting as the consequences of Defendant’s failure to initially diagnose Plaintiff

with MRSA are, Plaintiff has not shown that Defendant acted with deliberate indifference.

Accordingly, Plaintiff has failed to overcome Defendant’s qualified immunity defense and

summary judgment must be granted in favor of Defendant.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment (ECF No. 46) is

GRANTED. Plaintiff’s Motions to Strike (ECF Nos. 39, 43) are DENIED as moot because the

Court did not rely on the challenged expert or his findings in reaching its decision. Further, because

15 Def.’s App’x Supp. Reply (Defendant’s Medical Notes) 87, ECF 59 (“follow-up 7 days: Recheck

cellulitis and left facial swelling”).

the Court’s reasoning regarding Defendant’s Motion for Summary Judgment would remain

unchanged regardless of whether Defendant’s Responses to Plaintiffs Request for Admission

were deemed admitted, Defendant’s Motion to Withdraw Her Deemed Admissions (ECF No. 58)

is DENIED as moot.

SO ORDERED on this 20th Day of April, 2026.

fA —~

Reed O’Connor

CHIEF UNITED STATES DISTRICT JUDGE

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