Thompson v. TDCJ

Case: 21-20241 Document: 00516740422 Page: 1 Date Filed: 05/05/2023

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

____________ FILED

May 5, 2023

No. 21-20241

Lyle W. Cayce

____________ Clerk

Albert L. Thompson, Jr.,

Plaintiff—Appellant,

versus

Texas Department of Criminal Justice; Warden

Sanchez; Lieutenant Crawford,

Defendants—Appellees.

______________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-4059

______________________________

Before Higginbotham, Southwick, and Willett, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

Albert Thompson suffered a stroke during his incarceration at a Texas

prison. He brought a claim under 42 U.S.C. § 1983 alleging that prison staff

delayed and impeded his access to emergency medical care after the onset of

his stroke symptoms. The district court dismissed his lawsuit as frivolous

under 28 U.S.C. § 1915(e)(2)(B)(i). We determine that Thompson brings

claims of malpractice, falling short of a deprivation of constitutionally

secured rights. We AFFIRM the district court’s dismissal with a

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No. 21-20241

LIMITED REMAND instructing the district court to address

Thompson’s motion to unseal his medical records.

I.

Thompson alleges that he suffered a brain stem stroke at

approximately 10:30 a.m. on January 11, 2017, while residing at a Texas state

prison, that at 10:45 a.m. he told medical staff at the prison’s clinic about his

symptoms, including difficulty swallowing, and that clinic nurses took

Thompson’s vitals and examined him but found nothing unusual. The nurses

then told him he was “faking” and ordered him to leave the clinic.

Thompson returned to his dormitory, where his condition worsened, other

inmates took notice, and an inmate called Thompson’s sister. Thompson

returned to the clinic at 1:30 p.m. complaining of a “stiffening” face,

weakness, and disorientation. When he again requested assistance, medical

staff told him he had already been evaluated and allegedly threatened him

with a disciplinary case if he did not return to his unit. Thompson’s sister

called the prison repeatedly between 2:25 p.m. and 6:00 p.m., reaching

several prison staff members and notifying them of Thompson’s condition.

When Thompson returned to the clinic for the third time, a nurse examined

him and again found nothing abnormal. Medical staff placed him in a holding

cell for a further hour and a half without further treatment.

After Thompson returned to the clinic, an unknown party called 911, 1

and an ambulance arrived at the prison at approximately 8:40 p.m. Prison

staff told the arriving emergency medical technicians (“EMTs”) that

Thompson had already received care and continued to accuse him of faking

symptoms, but the EMTs insisted on evaluating him. The EMTs determined

that Thompson required hospitalization and departed without him around

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1

Thompson’s complaint implies that his sister placed the call.

2

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9:15 p.m. A prison vehicle transported Thompson to a local hospital at 10:50

p.m. after he spent another hour and a half in the clinic’s holding cell.

At the hospital, Thompson was diagnosed with a brain stem stroke

and severe dehydration, as he had been unable to swallow liquids for more

than 24 hours. He remained hospitalized for several weeks. Thompson

alleges that the 12-hour delay in emergency medical care resulted in central

post-stroke pain, neuropathic nerve issues on his right side, facial

disfigurement on his left side, and a fall due to dehydration, among other

consequences.

Thompson filed a pro se, in forma pauperis lawsuit against prison

medical staff, guards, supervisors, and various state entities. 2 The district

court construed Thompson’s suit as a § 1983 claim for denial of adequate

medical treatment. He also challenged the prison’s grievance system and

failure to follow state rules and regulations, but he abandoned these issues on

appeal.3 The district court accepted a more definite statement of

Thompson’s claim but did not conduct a Spears hearing.4 Texas also

provided a Martinez report,5 although its record begins at approximately 9:00

p.m. on July 11 and focused on the standard of care provided to Thompson at

_____________________

2

Thompson also sued several state entities that enjoy sovereign immunity in

federal court under the Eleventh Amendment. See Aguilar v. Texas Dep’t of Crim. Just., 160

F.3d 1052, 1054 (5th Cir. 1998). We therefore do not further address his claims against

Texas state agencies on appeal.

3

See Roy v. City of Monroe, 950 F.3d 245, 251 (5th Cir. 2020).

4

“The purpose of a Spears hearing is to determine whether [in forma pauperis]

status should be granted or the case should be dismissed under 28 U.S.C. § 1915(d).”

Wilson v. Barrientos, 926 F.2d 480, 481 n.2 (5th Cir. 1991).

5

A district court may obtain a Martinez report from the state “to further flesh out

the facts behind a prisoner’s complaint” at the screening or dismissal stage. Davis v.

Lumpkin, 35 F.4th 958, 963 (5th Cir. 2022).

3

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the hospital. Although Thompson asked the district court to order a reply,

the defendants have yet to answer his complaint.6

Proceeding under § 1915(e)(2)(B)(i), the district court dismissed as

frivolous in forma pauperis filings, finding that Thompson received adequate

medical care after transportation to the hospital and determining that

Thompson’s claims summed to negligence, not to a constitutional tort; that

Thompson did not allege facts demonstrating that the defendants—neither

staff nor supervisors—were aware of and disregarded a substantial risk of

harm to him. Thompson appeals, arguing that the district court (1) erred in

resolving disputed facts during screening; (2) erred in concluding that he

failed to state a claim; (3) erred in determining that the warden and medical

director were not liable as supervisors; and (4) abused its discretion in failing

to rule on pending motions.7

II.

A district court may dismiss an in forma pauperis complaint under

§ 1915(e)(2)(B)(i) “if it has no arguable basis in law or fact.” 8 We have held

that “[a] complaint lacks an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if the complaint alleges the

violation of a legal interest which clearly does not exist.”9 This court will

“review the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(i) as

_____________________

6

See 42 U.S.C. § 1997e(g)(2).

7

We liberally construe Thompson’s pro se brief. See Andrade v. Gonzales, 459 F.3d

538, 543 (5th Cir. 2006). This court did not require the defendants to file a response to

Thompson’s brief on appeal.

8

Ruiz v. United States, 160 F.3d 273, 274–75 (5th Cir. 1998).

9

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

4

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frivolous for abuse of discretion.”10 “A trial court abuses its discretion when

its ruling is based on an erroneous view of the law or a clearly erroneous

assessment of the evidence.”11 Because a district court must find a claim

insufficient before holding it frivolous, this deferential review does not

necessarily insulate a district court’s determination that the in forma pauperis

plaintiff failed to state a claim, as that is a pure question of law.12

A district court may obtain a Martinez report to frame its evaluation

of a prisoner’s in forma pauperis claim. “A Martinez report is produced as a

result of prison officials’ investigating the prisoner’s complaints and

compiling an administrative record that acts like an affidavit to aid the district

court in screening the complaint.”13 The report serves only to “sort and

clarify issues raised in a pro se complaint.”14 We recently held in Davis v.

Lumpkin that “if the Martinez report conflicts with the pro se plaintiff’s

allegations, the district court must accept the plaintiff’s allegations as true,

not the records in the report.”15

_____________________

10

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).

11

United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United

States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)).

12

Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998) (“We . . . employ the same de

novo standard to review the § 1915(e)(B)(ii) dismissal as we use to review dismissal

pursuant to 12(b)(6).”); Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n.9 (5th

Cir. 1993) (“The dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) is a question of

law.”); accord Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (observing that “[e]n

route to determining that a claim is frivolous, the district court must determine whether it

is legally insufficient, an issue purely of law on which appellate review is plenary” (quoting

Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 787 (7th Cir. 1995))).

13

Davis, 35 F.4th at 963 (citations omitted).

14

Id. at 964 (quoting Janke v. Price, 43 F.3d 1390, 1392 (10th Cir. 1994)).

15

Id.

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Thompson argues that the district court erred in resolving various

contested facts based on the Martinez report. Thompson’s complaint alleges

that medical staff evaluated him but provided no medical interventions prior

to transportation to the hospital, facts that must be taken as true at this stage

of litigation.16 The district court relied on the “more complete record” in the

Martinez report to elucidate details about these medical evaluations, but we

find nothing in the district court’s opinion that contradicts the claims in

Thompson’s initial pleadings. The district court did not, for example, find

that the prison nurses provided medical care that Thompson insists never

took place. And Thompson agrees that he received significant medical care

following his stroke diagnosis.17

The law is “clearly established that a prison inmate [can] demonstrate

an Eighth Amendment violation by showing that a prison official ‘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.’”18 The plaintiff must allege “a deprivation of

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16

Thompson alleges that the district court resolved other facts against him, such

as the sufficiency of his care prior to transport or the harm he suffered. The district court

did not resolve these allegations based on the Martinez report, but rather relied on the facts

in Thompson’s complaint to determine that he failed to state a claim.

17

The district court observed as much, noting that “Thompson establishes much

of this by his own admission, acknowledging that he received treatment for his stroke.”

18

Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (quoting Domino v. Tex. Dep’t

of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001)); see also Austin v. Johnson, 328 F.3d 204,

210 (5th Cir. 2003) (“Since Estelle v. Gamble . . . state officers have been on notice that

deliberate indifference to a prisoner’s serious medical needs violates the Eighth

Amendment.”). Our sister circuit has commented that “[a] sufficiently serious medical

need is one that has been diagnosed by a physician as mandating treatment or one that is so

obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Helphenstine v. Lewis County, Kentucky, 60 F.4th 305, 318 (6th Cir. 2023)

(quoting Griffith v. Franklin County, Kentucky, 975 F.3d 554, 567 (6th Cir. 2020)).

6

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medical care sufficiently serious to show that ‘the state has abdicated a

constitutionally-required responsibility to attend to his medical needs.’”19

To amount to a constitutional violation, delayed medical treatment must

result from deliberate indifference that harms the prisoner.20

Deliberate indifference exists when an “official knows of and

disregards an excessive risk to inmate health or safety.”21 The required

mental state amounts to “subjective recklessness,” 22 “a question of fact

subject to demonstration in the usual ways, including inference from

circumstantial evidence.”23 And “[u]nder exceptional circumstances, a

prison official’s knowledge of a substantial risk of harm may be inferred by

the obviousness of the substantial risk.”24 Negligence and mistakes during

treatment do not constitute deliberate indifference. 25 A supervisory official

may be held liable under § 1983 for a subordinate’s actions in some

circumstances, but that supervisor must also show deliberate indifference to

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19

Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (quoting Bienvenu v.

Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir. 1983)).

20

Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993).

21

Farmer v. Brennan, 511 US 825, 837 (1994).

22

Id. at 839.

23

Id. at 842.

24

Reeves v Collins, 27 F3d 174, 176 (5th Cir 1994) (citation omitted).

25

Farmer, 511 US at 835; Estelle v. Gamble, 429 U.S. 97, 105 (1976) (“An accident,

although it may produce added anguish, is not on that basis alone to be characterized as

wanton infliction of unnecessary pain.”); Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir.

2001).

7

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a harmful failure to train or supervise.26 We have observed that “[d]eliberate

indifference is an extremely high standard to meet.”27

We have held, for example, that deliberate indifference did not exist

where medical staff declined to provide a tuberculin skin test to an inmate

who was later found to have tuberculosis.28 The staff in that case lacked the

required knowledge of a substantial risk, as prison policy disfavored

asymptomatic tests and medical staff did not know of any active cases of

tuberculosis.29 In another case, we held that a doctor’s failure to discover a

patient’s ulcer during treatment did not amount to deliberate indifference

because medical staff did not disregard any known risks to the prisoner.30 In

a case resolved on summary judgment, we concluded that a prison

psychiatrist did not disregard a risk when he incorrectly concluded that a

prisoner was not a suicide risk while providing mental health services.31 We

also found no deliberate indifference where a prisoner received extensive but

ineffective medical treatment related to his leg infection.32

In contrast, we reversed a dismissal for frivolousness where the

prisoner reported a broken jaw to nursing staff, who refused care and

scheduled a future appointment with the prison doctor.33 Prison medical staff

then declined for a week to examine the prisoner or address painful

_____________________

26

Smith v. Brenoettsy, 158 F.3d 908, 911–12 (5th Cir. 1998).

27

Domino, 239 F.3d at 756.

28

Gibbs, 254 F.3d at 551.

29

Id. at 550.

30

See Stewart v. Murphy, 174 F.3d 530, 534, 537 (5th Cir. 1999).

31

Domino, 239 F.3d at 756.

32

See Gobert v. Caldwell, 463 F.3d 339, 351 (5th Cir 2006).

33

Harris, 198 F.3d at 154.

8

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symptoms arising from his recent surgery.34 We held that the plaintiff stated

a claim based on his assertion that the defendants “ignored his urgent and

repeated requests for immediate medical treatment for his broken jaw and his

complaints of excruciating pain,” and that the defendants were “made aware

of, and disregarded, a substantial risk to [the prisoner’s] health when they

denied him treatment.”35 In another case, we found the standard satisfied

with allegations that a nurse “refused to provide any treatment to, and

ignored the complaints of, a patient suffering from severe chest pain that she

knew had a history of cardiac problems.”36 In addition, “failure to call an

ambulance for almost two hours while [a prisoner] lay unconscious and

vomiting rises to the level of deliberate indifference” given the obvious

nature of the risk.37

We first address whether Thompson successfully claims that any

defendants knew of a substantial risk of harm to him. The pleadings indicate

that several defendants may have known of a health risk. Thompson

reportedly informed Nurse Speer of his symptoms in the morning, when

Nurse Hampton was also present. In the evening, he visited the clinic again

and told Nurse Adewoye about his symptoms. The pleadings lack facts,

however, indicating that other defendants subjectively knew of a risk to

Thompson’s health. Thompson faults Officer George and Nurse Bercauter,

who staffed the clinic during the afternoon. But the pleadings show that

Bercauter relied on Speer’s earlier examination to conclude that there was

_____________________

34

Id. at 155.

35

Id. at 159–60.

36

Easter, 467 F.3d at 464.

37

Austin, 328 F.3d at 210.

9

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“nothing wrong” with Thompson, meaning that Bercauter and George

lacked the requisite mens rea.38

Thompson also does not allege facts indicating that any supervisors

had knowledge of a health risk left unaddressed by staff. Thompson only

alleges, for example, that Dr. Hulipas, the facility’s medical director, “was

made aware of plaintiff’s condition, or should have been made aware, per

TDCJ’s emergency care protocol.” But such allegations fall short of facts

demonstrating that supervisors knew of a substantial risk of harm to

Thompson. And Thompson fails to put forward facts indicating that the

facility’s supervisors engaged recklessly in relation to broader training and

supervision of staff.39

We next ask whether any defendant with subjective knowledge of the

risk to Thompson disregarded that risk. Thompson states that Speer listened

to his complaints and examined him but found no emergency medical issues.

Adewoye also examined Thompson and found no abnormalities, theorizing

instead that he may have been experiencing psychiatric symptoms. Medical

staff failed to properly diagnose Thompson’s medical emergency in these

evaluations, but they did not disregard Thompson’s reported symptoms.

There is no indication in the pleadings that medical staff continued to

recognize a risk of harm to Thompson following these evaluations, or that

staff would have declined medical care had they recognized his condition as

requiring activation of emergency protocols.

We conclude that Thompson’s claim arises to medical negligence, not

deliberate indifference. Any officials who knew of a risk to Thompson acted

_____________________

38

Officer Yaya was in a similar position, with Thompson admitting that he “chose

to defer to medical staff.”

39

Smith, 158 F.3d at 912.

10

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on their concerns. Under the facts alleged, medical staff likely should have

identified Thompson’s emergency medical issue but failed to do so. Yet as

the Supreme Court has explained, “an official’s failure to alleviate a

significant risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned” as deliberate

indifference and does not arise to a constitutional violation.40

III.

Thompson additionally claims that the district court abused its

discretion in failing to rule on four motions pending at the time of dismissal,

including a motion to appoint counsel, a motion for leave to file a second

amended complaint, an amended motion to strike, and a motion to unseal.

Because the district court did rule on remaining motions in its dismissal

order, we construe Thompson’s argument as challenging the district court’s

reasons, or lack thereof, for dismissing the motions. We review each of these

motions for abuse of discretion.41

This court has stated that “[a] § 1983 plaintiff, even if demonstrably

indigent, is not entitled to appointed counsel as a matter of right.”42 An

indigent plaintiff must first demonstrate that the claims raised meet “a

threshold level of plausibility” and then show “exceptional

_____________________

40

Farmer, 511 U.S. at 838.

41

Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007) (motion to appoint

counsel); Marucci Sports, L.L.C. v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th

Cir. 2014) (motion to amend); Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178

(5th Cir. 2007) (citation omitted) (motion to strike); United States v. Holy Land Found. For

Relief & Dev., 624 F.3d 685, 689 (5th Cir. 2010) (motion to unseal).

42

Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015) (citing Ulmer v.

Chancellor, 691 F.2d 209, 212 (5th Cir. 1982)).

11

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circumstances.”43 Thompson is correct that district courts should provide

“specific findings explaining why counsel was denied.”44 We may find the

record sufficiently clear, however, to infer the district court’s reasoning. 45

Here, the district court’s order first concluded that Thompson failed to state

a claim, and that the claim was frivolous. The district court did not abuse its

discretion in denying the motion to appoint counsel given the finding that

Thompson’s claim was not plausible.

Federal Rule of Civil Procedure 15(a) “evinces a bias in favor of

granting leave to amend.”46 But a “district court properly exercises its

discretion under Rule 15(a)(2) when it denies leave to amend for a substantial

reason, such as undue delay, repeated failures to cure deficiencies, undue

prejudice, or futility.”47 The district court did not abuse its discretion here,

denying the motion to amend because it dismissed Thompson’s existing

claims as frivolous, the addition of new claims would cause undue delay and

prejudice to the existing defendants, and the additional claims arose from

conditions at a different prison unit.

Thompson additionally moved to strike the Martinez report as

misrepresenting his allegations and omitting relevant facts. A “motion to

strike should be granted only when the pleading to be stricken has no possible

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43

Id. (quoting Ulmer, 691 F.2d at 212).

44

Jackson v. Dallas Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986).

45

Id.

46

Mayeaux v. Louisiana Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir.

2004) (quoting Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872 (5th Cir. 2000)).

47

U.S. ex rel. Spicer v. Westbrook, 751 F.3d 354, 367 (5th Cir. 2014) (citation

omitted).

12

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relation to the controversy.”48 This circuit’s precedent authorizing the use

of Martinez reports supports their relevance to this case. The Martinez report

also does not displace facts in Thompson’s pleadings, and factual disputes

are resolved at later litigation stages, rendering the motion to strike

misplaced. The district court did not abuse its discretion in denying the

motion.

Finally, we evaluate Thompson’s claim that the district court abused

its discretion in denying his motion to unseal the Martinez report as well as

the accompanying medical records. In exercising this discretion to seal

judicial records, “the court must balance the public’s common law right of

access against the interests favoring nondisclosure.”49 This court has stated

that “[t]he public’s right to access . . . is relevant regardless of who opposes

keeping a record under seal.”50 And “[t]he district court’s discretion to seal

the record of judicial proceedings is to be exercised charily.”51 We have

previously found abuse of discretion where district courts failed to weigh

these competing interests when ruling on a motion to seal.52 Here, Texas

moved to seal Thompson’s confidential medical documents filed alongside

the Martinez report, and the district court granted the motion. Thompson

then moved to unseal the documents, waiving his privacy interest “with the

competent and specific intent that his confidential information be openly

shared with the public.” The district court did not “articulate any reasons”

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48

Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th

Cir. 1962) (citation omitted).

49

S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (collecting cases).

50

Holy Land Found., 624 F.3d at 690.

51

Fed. Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987).

52

See Van Waeyenberghe, 990 F.2d at 848–50; June Med. Servs., L.L.C. v. Phillips,

22 F.4th 512, 521 (5th Cir. 2022).

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to continue to seal Thompson’s medical documents after he waived his

privacy interest.53

****

We AFFIRM the district court’s dismissal with a LIMITED

REMAND instructing the district court to address Thompson’s motion to

unseal his medical records.

_____________________

53

Van Waeyenberghe, 990 F.2d at 849.

14