first citing Wallace v. Kato, 549 U.S. 384, 387 (2007); then citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)
How later courts described this case
- first citing Wallace v. Kato, 549 U.S. 384, 387 (2007); then citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)
- affirming the district court’s denial of Rule 59(e) motion to amend complaint when the plaintiffs had previously amended their complaint three times
- concluding that the plaintiff’s presentation of medical texts recommending one drug over another was not sufficient evidence to create a fact issue as to whether a prescriber substantially departed from professional judgment
- recognizing that a civilly committed individual’s rights to adequate food, shelter, clothing, and medical care flow from the Fourteenth Amendment
Written by the judges who cited it.
The opinion
Case: 22-10517 Document: 115-1 Page: 1 Date Filed: 02/23/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10517
____________ FILED
February 23, 2024
Samuel San Miguel, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Marsha McLane, Texas Civil Commitment Center, Executive Director;
Michael Searcy; John Cochran; Cortney Bearden; Debra
Keesee,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CV-41
______________________________
Before Chief Judge Richman, and Judge Stewart, Circuit Judge,
and Judge Hanks, District Judge. *
Per Curiam: ∗∗
Samuel San Miguel, proceeding pro se and in forma pauperis, appeals
the district court’s grant of motions to dismiss filed by defendants Marsha
McLane, Michael Searcy, John Cochran, Courtney Bearden, and Debra
_____________________
*
District Judge for the Southern District of Texas, sitting by designation.
∗∗
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10517 Document: 115-1 Page: 2 Date Filed: 02/23/2024
No. 22-10517
Keesee (collectively, Defendants). San Miguel argues the magistrate judge
(1) incorrectly concluded that he failed to sufficiently allege several of the
Defendants’ personal involvement in the purported constitutional violations
and (2) wrongly applied the Eighth Amendment’s deliberate indifference
standard instead of the Fourteenth Amendment’s professional judgment
standard when evaluating whether San Miguel sufficiently alleged
constitutional violations. San Miguel also appeals the district court’s denials
of his motion for preliminary injunction, motion for appointment of counsel,
and motion to vacate. We affirm in part, reverse in part, and remand.
I
In 2002, Samuel San Miguel pleaded guilty to two counts of
aggravated sexual assault of a child and was sentenced to thirteen years of
imprisonment. Near the end of San Miguel’s sentence, the State of Texas
filed a petition to civilly commit him as a sexually violent predator (SVP)
under the Texas Sexually Violent Predator Act (SVPA). 1 Following a jury
trial, San Miguel was civilly committed under the SVPA. San Miguel has
been housed at the Bill Clayton Detention Center, also known as the Texas
Civil Commitment Center (TCCC), since 2015.
Three separate incidents arising from San Miguel’s time at the TCCC
serve as the basis for the claims in this appeal.
First, in 2016, San Miguel was placed on an active medical order for
extra calories, which entailed a 4 oz. calorie health shake. Over the next
several years, however, TCCC officials intermittently denied him these
calorie shakes, allegedly in response to San Miguel’s hunger strikes, one of
which lasted twenty-two days. The medical director, after two and a half
_____________________
1
See Tex. Health & Safety Code §§ 841.001-.153.
2
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No. 22-10517
years of San Miguel having a medical order for calorie shakes, determined
that he no longer qualified for them, and San Miguel stopped receiving the
shakes. San Miguel then complained about “hunger pains” and purportedly
lost twelve pounds. As a result, medical staff began weighing him weekly but
did not reinstate the calorie shakes. In turn, San Miguel “begged” Michael
Searcy, the facility administrator, to allow him to receive a package of food
from his family. Pursuant to a TCCC policy, Searcy “personally denied”
these requests for “over a year and [eight] months” because San Miguel had
not taken a polygraph exam.
Second, at some time before April 2018, San Miguel visited a dentist.
An unnamed dentist evaluated San Miguel’s right front tooth, which had
been chipped before he entered the TCCC, and told him that the tooth
needed to be filled or it would eventually be lost. Accordingly, San Miguel
complained to Searcy about his tooth and filed several sick-form requests and
grievances to have the tooth filled. TCCC officials responded to these
grievances by notifying San Miguel that the TCCC only provides for teeth
extractions and would not pay for this treatment. In response to San
Miguel’s complaints, Searcy told him they “were not gonna pay to fix it.”
San Miguel then requested a job so he could pay for the treatment, but asserts
he was “forced to remain indigent.” Later, San Miguel visited a different
dentist, who advised him that he now needed a root canal to save his front
tooth and had two cavities that needed to be filled. He submitted another
grievance form requesting the recommended dental care but did not receive
the treatment.
Third, in September 2019, San Miguel took a blood test that indicated
he was not taking his prescribed medications, Wellbutrin and Seroquel.
3
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No. 22-10517
Courtney Bearden, 2 a nurse practitioner with the medical provider for
persons civilly committed at the TCCC—Texas Tech University Health
Sciences Center (TTUHSC)—analyzed these tests and determined that San
Miguel should no longer receive these medications. In accordance with this
decision, Debra Keesee, a registered nurse with TTUHSC, told San Miguel
that he would no longer receive Seroquel or Wellbutrin. As a result of
stopping these medications, San Miguel began experiencing “extreme
withdrawals from the medication,” such as sleeplessness, headaches, and
vomiting. San Miguel notified TCCC officials of his symptoms, filed several
grievance forms, and requested relief. Eventually, Bearden gave San Miguel
melatonin and Zoloft.
San Miguel filed a 42 U.S.C. § 1983 civil rights complaint against
TTUHSC, Marsha McLane, Michael Searcy, Rachael Kingston, Chris
Salinas, John Cochran, Cynthia Jumper, Taylor Caldwell, Joanne Castro,
Courtney Bearden, and Debra Keesee, asserting they committed nine
distinct constitutional violations and seeking damages and injunctive relief.
However, San Miguel only appeals the dismissal of defendants McLane,
Searcy, Cochran, Keesee, and Bearden. Accordingly, we only discuss the
allegations pertaining to these Defendants on appeal.
According to San Miguel, Marsha McLane is the executive director of
the Texas Civil Commitment Office (TCCO), which operates the TCCC;
Michael Searcy is the “[o]peration [s]pecialist of the TCCO”; Debra Keesee
is a “nurse with [Texas Tech University] in the Psych. dep[artment] at the
TCCC”; Courtney Bearden is the “[n]urse [p]ractitioner for [the] TCCC
_____________________
2
While the caption indicates the spelling is “Cortney,” her motion to dismiss
spells her name “Courtney.” We use the latter spelling in the opinion.
4
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No. 22-10517
medical [department]”; and John Cochran is the “TCCC [f]acility
[a]dministrator.”
Claims one and two allege that Cochran, McLane, and Searcy denied
him adequate nutrition by denying him his calorie shakes and a food package.
Among these allegations, San Miguel asserts that TCCC has a custom of
denying detainees adequate nutrition.
Claims three and four allege that Searcy and McLane refused to pay
to have his tooth repaired per a dentist’s recommendation when he was
otherwise unable to pay for this treatment.
Claims five through nine allege that Defendants have improperly
denied him appropriate psychiatric care and medications. In claims five and
six, he alleges that McLane contracted for a lower standard of care “to help
her manage her budget and pocket the money.” In claim seven, San Miguel
asserts that Keesee and Bearden denied him adequate medical care by
stopping his doses of Seroquel and Wellbutrin and then ignoring his requests
for relief from withdrawal symptoms. Finally, in claims eight and nine, San
Miguel alleges that Keesee and Bearden denied him adequate medical
treatment by curtailing his medication for “not attending group treatment,”
“breaking the rules at the facility,” and filing grievances against them.
The district court considered two different complaints when
dismissing the Defendants. First, defendants Cochran and Bearden moved
to dismiss San Miguel’s original complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The magistrate judge’s report and
recommendation concluded the district court should grant these motions to
dismiss. San Miguel did not object to the magistrate judge’s report and
5
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No. 22-10517
recommendation, and the district court adopted it after conducting a review
for clear error.
San Miguel then filed an amended complaint against the remaining
defendants. Defendants McLane, Searcy, and Keesee moved to dismiss San
Miguel’s amended complaint under Rules 12(b)(1) and 12(b)(6). Similarly,
the magistrate judge’s report and recommendation, which San Miguel
objected to this time, recommended the district court grant the motion. The
district court conducted a de novo review and adopted the recommendation.
San Miguel timely filed a notice of appeal as to his claims against
McLane, Searcy, Cochran, Keesee, and Bearden.
II
At the outset, we outline the scope of San Miguel’s appeal and the
applicable standards of review. “Although we liberally construe briefs of pro
se litigants and apply less stringent standards to parties proceeding pro se than
to parties represented by counsel, pro se parties must still brief the issues and
reasonably comply with the standards of Rule 28.” 3 To the extent that San
Miguel is seeking monetary damages from Defendants in their official
capacities, San Miguel has not briefed, and has therefore abandoned, any
argument challenging the dismissal for lack of subject matter jurisdiction of
_____________________
3
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
6
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No. 22-10517
these claims. 4 However, San Miguel has sufficiently briefed the other issues
as to not have abandoned them. 5
We must apply different standards of review to the Defendants
because San Miguel objected to some, but not all, of the magistrate judge’s
reports and recommendations. “When a party who is warned of the
requirement to file timely objections to a magistrate judge’s report and
recommendation fails to file any such objections, and the magistrate judge’s
factual findings and legal conclusions are accepted by the district court, our
review is for plain error.” 6 Despite receiving a sufficient warning, San
Miguel did not object to the magistrate judge’s reports and recommendations
that concluded the claims against Cochran and Bearden should be
dismissed. 7 In contrast, San Miguel objected to the magistrate judge’s report
and recommendation that advised dismissing the claims against Searcy,
McLane, and Keesee. Accordingly, we review dismissal of the claims against
_____________________
4
See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (noting that “without even the slightest identification of any error in [the court’s]
legal analysis or its application to [the suit], [it] is the same as if he had not appealed that
judgment”).
5
Grant, 59 F.3d at 524-25 (“This Court has considered a pro se appellant’s brief
despite its technical noncompliance with the Rules of Civil Procedure when it at least
argued some error on the part of the district court.”).
6
Alexander v. Verizon Wireless Services, L.L.C., 875 F.3d 243, 248 (5th Cir. 2017).
7
Moreover, the district court did not conduct an independent review of the
magistrate judge’s report and recommendation. It only reviewed it for clear error. See
Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (“[W]hen a party fails to file
timely written objections to a magistrate judge’s findings-of-fact and conclusions-of-law,
our review is for plain error. However, when the district court engages in an independent
evaluation of the record . . . the standard of review depends upon the issue on appeal.”).
7
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No. 22-10517
Cochran and Bearden for plain error and the claims against Searcy, McLane,
and Keesee de novo. 8
III
We begin by analyzing San Miguel’s claims against Cochran and
Bearden. Dismissal is appropriate when a complaint does not “contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” 9 “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.” 10 “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.” 11 The
facts alleged in the complaint must be taken as true and viewed in the light
most favorable to the plaintiff.12 “If a complaint is written pro se, we are to
give it a liberal construction.” 13 We are “required to look beyond the
[plaintiff’s] formal complaint and to consider as amendments to the
complaint those materials subsequently filed.” 14 We may also consider
_____________________
8
See Verizon Wireless, 875 F.3d at 248; Sw. Bell Tel., LP v. City of Houston, 529 F.3d
257, 260 (5th Cir. 2008) (“A Rule 12(b)(6) dismissal for failure to state a claim is reviewed
de novo.”).
9
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
10
Id. (citing Twombly, 550 U.S. at 556).
11
Twombly, 550 U.S. at 545.
12
Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010).
13
Carlucci v. Chapa, 884 F.3d 534, 538 (5th Cir. 2018) (citing Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
14
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
8
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No. 22-10517
reliable evidence such as the plaintiff’s responses to a questionnaire and
authenticated records. 15
To establish reversible error in the plain error context, San Miguel
must show (1) an error, (2) that is clear or obvious, and (3) that affected
substantial rights.16 Under plain error review, a “lack of binding authority is
often dispositive.” 17 While San Miguel does not need to show that his
specific challenge has been addressed in a prior decision, “he must at least
show error in the straightforward applications of existing cases.” 18 Even
when an argument “merely requires extending existing precedent, the
district court’s failure to do so cannot be plain error.” 19
A
With respect to San Miguel’s claims against Cochran, we conclude
the district court did not err. It is “[w]ell settled” that “Section 1983
jurisprudence establishes that supervisory officials cannot be held vicariously
_____________________
15
See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (noting responses given to a
questionnaire are incorporated into the plaintiff’s pleadings); Banuelos v. McFarland, 41
F.3d 232, 234 (5th Cir. 1995) (holding that courts may dismiss prisoners’ in forma pauperis
claims as frivolous based on “medical and other prison records if they are adequately
identified or authenticated” (internal quotation marks omitted) (quoting Wilson v.
Barrientos, 926 F.2d 480, 482-84 (5th Cir. 1991))); Eugene v. Deville, 791 F. App’x 484, 485
(5th Cir. 2020) (per curiam) (unpublished) (relying on exhibits submitted with the
plaintiff’s complaint when concluding the plaintiff’s “allegations could show that the
medical staff were aware of his pain and failed to provide care”).
16
United States v. Brown, 437 F.3d 450, 451 (5th Cir. 2006).
17
United States v. McGavitt, 28 F.4th 571, 577 (5th Cir. 2022) (internal quotation
marks omitted) (quoting United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015)), cert.
denied, 143 S. Ct. 282 (2022).
18
United States v. Cabello, 33 F.4th 281, 291 (5th Cir. 2022) (internal quotation
marks omitted) (quoting United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012)).
19
Jimenez v. Wood Cnty., 660 F.3d 841, 847 (5th Cir. 2011).
9
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No. 22-10517
liable for their subordinates’ actions.” 20 “Personal involvement is an
essential element of a civil rights cause of action.” 21 San Miguel alleges no
facts that Cochran was personally involved in denying him calorie shakes,
food packages, dental treatment, or psychiatric care. The only connection
San Miguel alleges between Cochran and these claims is that Cochran is the
“[f]acility [a]dministrator.” This is insufficient to “state a claim to relief
that is plausible on its face.” 22
B
Similarly, the district court did not err in dismissing any of the claims
against nurse practitioner Bearden. While the magistrate judge incorrectly
stated that “San Miguel’s right to reasonably adequate medical care derives
from the Eighth Amendment,” he did not commit plain error in applying the
Eighth Amendment deliberate indifference standard to San Miguel’s claims
against Bearden.
In Youngberg v. Romero, 23 the Supreme Court recognized that a civilly
committed individual’s rights to adequate food, shelter, clothing, and
medical care flow from the Fourteenth Amendment. 24 The Court further
explained that these individuals are entitled to “more considerate treatment
and conditions of confinement” than prison inmates “whose conditions of
confinement are designed to punish.” 25 In doing so, the Court created a test
_____________________
20
Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992).
21
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
22
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
23
457 U.S. 307 (1982).
24
Id. at 315.
25
Id. at 322.
10
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under which “liability may be imposed only when the decision by the
professional is such a substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a judgment.” 26
However, we have noted that the Court’s later decision in DeShaney v.
Winnebago County Department of Social Services 27 cast “doubt on the vitality
of Youngberg by confirming that a deliberate indifference standard is the
appropriate measure of constitutional liability for a prison official’s failure to
provide a convicted inmate with basic human needs.” 28
This being said, our court has not decided whether the deliberate
indifference or professional judgment standard applies to claims brought by
civilly committed individuals alleging that they received inadequate medical
care. 29 Furthermore, other federal circuits are divided on the issue. 30 As a
_____________________
26
Id. at 323.
27
489 U.S. 189 (1989).
28
Hare v. City of Corinth, 74 F.3d 633, 647 (5th Cir. 1996); cf. Perniciaro v. Lea, 901
F.3d 241, 256 n.13 (5th Cir. 2018) (“We harbor doubt, however, that it has been clearly
established that Youngberg applies to persons detained pre-trial for competency
restoration . . . . [W]e have held that deliberate indifference is the appropriate standard to
apply to inadequate-medical-care or failure-to-protect claims brought by pre-trial detainees
who, like persons involuntarily committed, may not constitutionally be punished.”).
29
See Perniciaro, 901 F.3d at 255-56 (acknowledging the issue but refusing to decide
whether the deliberate indifference or professional judgment standard applies to
inadequate-medical-care claims by civilly committed individuals).
30
Compare Scott v. Benson, 742 F.3d 335, 339 (8th Cir. 2014) (holding that the
deliberate indifference standard applies), and Smego v. Mitchell, 723 F.3d 752, 756 (7th Cir.
2013) (reasoning that the due process protection afforded civilly committed individuals is
“functionally indistinguishable from the Eighth Amendment’s protection for convicted
prisoners”), with Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016) (utilizing the
professional judgment standard), and Patten v. Nichols, 274 F.3d 829, 838 (4th Cir. 2001)
(holding that “denial-of-medical-care claims asserted by involuntarily committed
11
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result, we cannot say that the magistrate judge plainly erred by applying the
deliberate indifference standard when analyzing the claims against Bearden.
The magistrate judge’s analysis based on the deliberate indifference
standard was not plain error. Courts have characterized deliberate
indifference as “a stringent standard of fault” 31 and “an extremely high
standard to meet.” 32 The test is one of “subjective recklessness.” 33
Accordingly, the plaintiff “must show that the defendant: (1) was aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists; (2) subjectively dr[e]w the inference that the risk
existed; and (3) disregarded the risk.” 34 In addition to these requirements,
the plaintiff must establish that “the delay in or denial of medical treatment
resulted in substantial harm, such as suffering additional pain.” 35
Evidence of unsuccessful medical treatments, incorrect diagnoses, or
disagreements with the treatment provided are insufficient. 36 Further, acts
of negligence, neglect, or medical malpractice do not rise to the level of
_____________________
psychiatric patients must be measured under Youngberg’s ‘professional judgment’
standard”).
31
Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).
32
Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001).
33
Farmer v. Brennan, 511 U.S. 825, 839 (1994).
34
Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (internal quotation marks
omitted) (quoting Farmer, 511 U.S. at 837).
35
Petzold v. Rostollan, 946 F.3d 242, 249 (5th Cir. 2019).
36
Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (per curiam) (noting that
“mere disagreement with the treatment provided is not sufficient to state a claim for
deliberate indifference”); Domino, 239 F.3d at 756 (“It is indisputable that an incorrect
diagnosis by prison medical personnel does not suffice to state a claim for deliberate
indifference.”).
12
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No. 22-10517
constitutional violations under the deliberate indifference standard. 37 To this
point, when defendants administer some form of medical treatment, it is
difficult for plaintiffs to establish deliberate indifference 38 because courts “do
not demand perfection” 39 or care consisting of “the best that money could
buy.” 40 Therefore, we require a plaintiff to demonstrate that the defendants
“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.” 41
San Miguel alleges Bearden denied him adequate medical care by
“abruptly stopping [his] psychiatric medication knowing of his serious
medical need, then ignoring his complaints and requests for help”; “denying
him medical care because he has broken the rules of the facility”; and
retaliating against him for filing a grievance against her by “completely
stopping any and all psychiatric medications.” According to San Miguel,
Bearden told him the Seroquel and Wellbutrin were either not present in his
blood or existed only at very low levels and “abruptly” discontinued his
medications, causing him to experience severe withdrawal symptoms.
However, he asserts that this reasoning was a lie and the real reason was
“cutting spending.” Additionally, after stopping these medications, he
asserts Bearden ignored his request for medical attention while he was
_____________________
37
See Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979) (“Mere negligence,
neglect or medical malpractice is insufficient.”).
38
See, e.g., Petzold, 946 F.3d at 250 (“But, because medical treatment was
provided, even if it was negligent, disagreed-with, and based on a perfunctory and
inadequate evaluation, it was not denied.”).
39
Sanchez v. Oliver, 995 F.3d 461, 473 (5th Cir. 2021).
40
Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992).
41
Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
13
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suffering withdrawal symptoms. He also contends that Bearden refused to
give him medication because he “had a history of breaking the rules at the
facility” and as retaliation for filing a grievance against her.
Here, San Miguel’s allegations amount to a “disagreement with his
medical treatment,” not deliberate indifference. 42 First, San Miguel
acknowledges that there was an objective medical basis for the denial of his
medications. In his declaration attached to his complaint, he states that nurse
Keesee told his provider that these medications were “bad for [his] blood
pressure[] and bad for [his] anxiety.” Second, his blood tests, which are in
the record, revealed that the medications were in his bloodstream in small
amounts. We have previously noted that “[a] medical doctor is entitled—
obliged, even—to change a patient’s prescription in response to suspected
misuse, addiction, or abuse. Doing so is not deliberate indifference.” 43
Therefore, Bearden was entitled to consider the blood tests that suggested
San Miguel was misusing his medications when determining the appropriate
prescription for him. Indeed, San Miguel conceded that Bearden offered him
other medication—“a shot of Haldol every [two] weeks” to combat his
Bipolar disorder, melatonin for his sleeplessness, and Celexa for his
depression and ADD/ADHD—which he refused. These allegations do not
state a claim for deliberate indifference, especially under the plain error
standard.
Furthermore, San Miguel did not sufficiently allege a § 1983 claim by
asserting Bearden “ignore[ed] his complaints and requests for help while he
suffered” withdrawal symptoms. Once again, “[p]ersonal involvement is an
_____________________
42
Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013) (internal quotation marks
omitted) (quoting Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)).
43
Brauner v. Coody, 793 F.3d 493, 499 (5th Cir. 2015).
14
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essential element of a civil rights cause of action.” 44 San Miguel must
sufficiently allege Bearden “(1) was aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists; (2) subjectively
dr[e]w the inference that the risk existed; and (3) disregarded the risk.” 45
San Miguel’s allegations fall short of sufficiently alleging that Bearden
knew of his severe withdrawal symptoms and certainly that Bearden
“subjectively dr[e]w the inference that a substantial risk of serious harm
exists.” 46 San Miguel asserts that he requested help from several people but
pleads no facts involving when or where he asked Bearden for help. He
alleges that “[m]ultiple security officers witnessed [his] suffering” and he
asked “the TTU Nurse” and “RN Joe Brown” for help. The grievance
forms that San Miguel attached to his complaint do not support Bearden’s
personal involvement either. Those grievance forms do not have Bearden’s
signature or indicate she was aware of them. Indeed, according to San
Miguel’s complaint and attached declaration, when he finally saw Bearden
on November 26, after he had allegedly begun suffering withdrawal
symptoms, he only mentioned his inability to sleep, and she gave him
melatonin for his insomnia. She also offered him substitute medications, and
he refused them. Accordingly, San Miguel alleges no facts that indicate
Bearden was aware of his suffering, subjectively inferred that he was suffering
withdrawal symptoms, and disregarded the risk.
San Miguel’s allegations that Bearden denied him medical care
because he had a history of breaking the facility rules and as retaliation also
_____________________
44
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
45
Cleveland v. Bell, 938 F.3d 672, 676 (5th Cir. 2019) (internal quotation marks
omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
46
Id. at 676 (internal quotation marks omitted) (quoting Farmer, 511 U.S. at 837).
15
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No. 22-10517
do not state a plausible claim for relief. The “decision whether to provide
additional treatment is a classic example of a matter for medical judgment.” 47
Accordingly, a prescriber is entitled to consider a patient’s compliance with
facility rules when considering the best treatment. 48
Finally, in order to establish a claim for retaliation, San Miguel must
demonstrate the following: “(1) the existence of a specific constitutional
right; (2) the defendant’s intent to retaliate for the exercise of that right; (3) a
retaliatory adverse act; and (4) causation.” 49 “Mere conclusionary
allegations of retaliation will not be enough to withstand a proper motion for
dismissal of the claim.” 50 San Miguel “must produce direct evidence of
motivation or, the more probable scenario, ‘allege a chronology of events
from which retaliation may plausibly be inferred.’” 51
Here, San Miguel only provides the conclusory allegations that “[a]s
the result of Plaintiff telling Bearden about him writing a grievance against
her, she completely stopped all of [his] Psychiatric Medication.” Not only is
this conclusory allegation insufficient to support a retaliation claim, but also
the “chronology of events” does not support the claim. 52 San Miguel alleges
that “Keesee and Bearden completely refused [him] his medication for his
psychotic disorders on . . . November 12, 2019.” However, he did not file a
grievance against Bearden until December 5, 2019. From San Miguel’s own
_____________________
47
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks
omitted) (quoting Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001)).
48
See Brauner v. Coody, 793 F.3d 493, 499 (5th Cir. 2015) (giving wide latitude when
considering the appropriate medication to prescribe).
49
Freeman v. Tex. Dep’t of Crim. Just., 369 F.3d 854, 863 (5th Cir. 2004).
50
Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999).
51
Id. (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)).
52
Id. (internal quotation marks omitted) (quoting Woods, 60 F.3d at 1166).
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No. 22-10517
allegations, it appears that he filed his grievances because they refused him
medication—not vice versa. Accordingly, the district court did not err in
dismissing San Miguel’s retaliation claim against Bearden.
IV
We now turn to San Miguel’s claims against McLane, Searcy, and
Keesee, which we review de novo. 53 We first address San Miguel’s claims
against McLane and Searcy for allegedly denying him adequate nutrition and
recommended dental care, then we analyze his claims against Keesee for
improperly denying him psychiatric care.
A
In his amended complaint, San Miguel alleges that McLane and
Searcy violated his right to adequate medical care by not providing him with
a medically ordered calorie shake and not allowing him to receive a food
package from his family. Specifically, he alleges that “TCCC has a custom
of denying the TCCC patients and San Miguel an adequate diet” and
McLane and Searcy are “responsible for the overall function, policy, and
administration of the TCCC.” Furthermore, he alleges that he has
“begged” Searcy to allow him to receive a food package from his family, but
Searcy has “personally denied” this request because “he has not taken a
polygraph exam.”
With respect to San Miguel’s claims that McLane and Searcy denied
him adequate medical care by halting his calorie shakes, he has failed to
sufficiently allege their involvement to state a plausible claim for relief.
“Supervisory officials may be held liable only if: (i) they affirmatively
_____________________
53
See infra Part II; see also Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260
(5th Cir. 2008) (“A Rule 12(b)(6) dismissal for failure to state a claim is reviewed de
novo.”).
17
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No. 22-10517
participate in acts that cause constitutional deprivation; or (ii) implement
unconstitutional policies that causally result in plaintiff’s injury.” 54 San
Miguel fails to allege any specific actions by McLane or Searcy that led to his
calorie shakes being denied. Nor has he sufficiently alleged that they have
implemented any custom or policy that has resulted in him being denied his
calorie shakes. The only connection that San Miguel alleges between Searcy,
McLane, and the denial of his calorie shakes is that they are “responsible for
the overall function, policy, and administration of the TCCC.” San Miguel’s
only allegation that a custom or policy even exists is the statement that TCCC
conducted a “facility wide sweep” of “every patient’s calorie shake.” These
statements are insufficient to allege that Searcy or McLane created a policy
that resulted in the “facility wide sweep.” Accordingly, the district court did
not err in dismissing San Miguel’s claims against Searcy and McLane for
denying his calorie shakes.
San Miguel also failed to sufficiently allege a Fourteenth Amendment
conditions-of-confinement claim against Searcy and McLane for denying him
access to the food package. The conditions of confinement for civilly
committed individuals are governed by the Due Process Clause of the
Fourteenth Amendment. 55 While civilly committed individuals are entitled
to “more considerate treatment and conditions of confinement,” we have
acknowledged that “[d]ue process requires only that ‘the conditions and
duration of confinement . . . bear some reasonable relation to the purpose for
which persons are committed.’” 56 Accordingly, the plaintiff must
sufficiently allege how the conditions at the facility “lacked a reasonable
_____________________
54
Mouille v. City of Live Oak, 977 F.2d 924, 929 (5th Cir. 1992).
55
Youngberg v. Romeo, 457 U.S. 307, 324 (1982).
56
Brown v. Taylor, 911 F.3d 235, 243 (5th Cir. 2018) (first quoting Youngberg, 457
U.S at 321-22; then quoting Seling v. Young, 531 U.S. 250, 265 (2001)).
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No. 22-10517
relation to Texas’s twin goals of ‘long-term supervision and treatment of
sexually violent predators.’” 57
The magistrate judge correctly concluded that San Miguel failed to
allege a constitutional violation springing from either (1) requiring him to
take a polygraph exam or (2) denying his care package. San Miguel alleges
that he was denied the food package because he did not take a polygraph
exam. The single case in which we have concluded that a polygraph exam
requirement could violate a civilly committed person’s constitutional
rights—Bohannan v. Doe 58—is distinguishable from this circumstance. In
that unpublished opinion, we concluded that mandatory polygraph
examinations, which were used to monitor whether civilly committed
individuals complied with their commitment orders, could violate their Fifth
Amendment rights. 59 In contrast, denying San Miguel a single food package
does not amount to a constitutional violation. Indeed, other circuits have
recognized that “the Constitution is not concerned” with “de minimis”
restrictions of a civilly committed individual’s freedoms, including “access
to the canteen and outside vendors and computer privileges.” 60 A single food
package is more akin to these de minimis restrictions than an encroachment
on one’s Fifth Amendment rights. Therefore, the district court did not err
in dismissing San Miguel’s claims against Searcy and McLane.
The magistrate judge also liberally construed this claim as a denial-of-
medical-care claim. We agree with his dismissal of this claim as well.
_____________________
57
Id. at 243 (quoting Tex. Health & Safety Code § 841.001).
58
527 F. App’x 283 (5th Cir. 2013) (per curiam) (unpublished).
59
Id. at 295-96.
60
Senty-Haugen v. Goodno, 462 F.3d 876, 886 n.7 (8th Cir. 2006) (internal
quotation marks omitted) (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.20 (1979)).
19
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No. 22-10517
Regardless of whether the professional judgment or deliberate indifference
standard applies to denial-of-medical-care claims for civilly committed
individuals, such a claim must implicate the individual’s constitutional right
to adequate medical care. 61
While San Miguel alleged Searcy “personally denied” his request for
the food package, he has failed to allege that denial of the food package
implicated any medical need or risk of harm. San Miguel asserts that, after
he was denied the calorie shakes, he began losing weight. Because of his
weight loss, he asserts his family was “worried about him” and that he should
be allowed a food package from them. Unlike his claim with respect to the
calorie shakes, which he was originally provided in accordance with a medical
order, he fails to reference any physician’s order or suggestion from a medical
professional that he needed a food package. Furthermore, he requested the
food package after he lost weight, so he does not assert that the denial of the
food package was the cause of his weight loss. Accordingly, because nothing
in San Miguel’s complaint suggests that his request for access to a food
package implicated a medical need or that he was harmed by Searcy and
McLane withholding it, the district court did not err in dismissing San
Miguel’s claims against Searcy and McLane for denying him access to the
food package.
B
We next turn to San Miguel’s appeal of the district court’s dismissal
of his § 1983 claims against McLane and Searcy for allegedly denying him
_____________________
61
See Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998) (“In the
context of a claim for inadequate medical care, the professional judgment standard
requires . . . the plaintiff’s medical needs [to] have been objectively serious.”).
20
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No. 22-10517
recommended dental treatment, which San Miguel labels as claims three and
four. We review the district court’s dismissal of these claims de novo. 62
San Miguel frames the denial of his dental care as two distinct claims:
(1) denying him recommended dental care and (2) forcing him to pay for his
dental care. However, we construe his complaint as a single claim, alleging
that McLane and Searcy violated his right to adequate medical care by not
paying for recommended dental treatment, and in effect, totally denying him
treatment.
According to San Miguel, since he has been housed at the TCCC, he
has visited the dentist at least twice. On the first visit, San Miguel alleges
that the dentist “checked his tooth and specifically[] assessed that San
Miguel needs to have his tooth filled, and that permanent damage will result
in not having it filled and he will eventually lose it.” After making a request
for this treatment in May 2018, TCCC officials advised him that TCCC
“only[] pay[s] for extractions.” Furthermore, after filing his initial
complaint, but before filing his amended complaint, San Miguel visited a
different dentist who allegedly told him he saw “[two] cavities that need to
be filled, and that [his] front tooth will probably need a root canal if it is going
_____________________
62
See infra Part II; see also See Sw. Bell Tel., LP v. City of Houston, 529 F.3d 257, 260
(5th Cir. 2008) (“A Rule 12(b)(6) dismissal for failure to state a claim is reviewed de
novo.”).
21
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No. 22-10517
to be saved.” He “complain[ed]” about his tooth to Searcy, to which Searcy
responded: “well I’ll tell you right now we[‘]re not gonna pay to fix it.”
The magistrate judge first concluded San Miguel’s dental claims are
barred by the statute of limitations. We disagree.
The statute of limitations is an affirmative defense. 63 “A statute of
limitations may support dismissal under Rule 12(b)(6) where it is evident
from the plaintiff’s pleadings that the action is barred . . . .” 64 “Because
there is no federal statute of limitations for actions brought pursuant to
§ 1983, federal courts borrow the forum state’s general personal injury
limitations period.” 65 In Texas, the pertinent limitations period is two years
from the date on which the cause of action accrues. 66 However, “the accrual
date of a § 1983 cause of action is a question of federal law that is not resolved
by reference to state law.” 67 “Under federal law, the [limitations] period
begins to run the moment the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been injured.” 68
San Miguel filed his initial § 1983 complaint in January 2020, so in
order to avoid the statute of limitations at this stage, the pleadings must not
foreclose the conclusion that he knew of his alleged constitutional injury after
_____________________
63
Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
64
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)
65
Bargher v. White, 928 F.3d 439, 444 (5th Cir. 2019) (first citing Wallace v. Kato,
549 U.S. 384, 387 (2007); then citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)), as
revised (July 2, 2019).
66
See Tex. Civ. Prac. & Rem. Code § 16.003(a); Pete v. Metcalfe, 8 F.3d 214,
217 (5th Cir. 1993).
67
Wallace, 549 U.S. at 388.
68
Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001) (internal quotation
marks omitted) (quoting Russell v. Bd. of Trustees, 968 F.2d 489, 493 (5th Cir. 1992)).
22
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No. 22-10517
January 2018. It is true that he alleges he has been denied dental care for over
four years, but according to his declaration and the grievance records, San
Miguel first complained to officials that he needed a filling and learned of the
extraction-only policy in April 2018. It is unclear when San Miguel learned
that he could lose his tooth if he did not have it filled, but he likely did not
know of any constitutional violation until he knew the ramifications of being
denied the dental treatment and that the TCCC would not pay for the
treatment. Additionally, before San Miguel filed his amended complaint, he
saw another dentist who recommended he have two more cavities filled,
which could be construed as a new injury. Finally, Defendants do not argue
the statute-of-limitations issue on appeal. Accordingly, it is far from clear
that San Miguel’s claims began to accrue more than two years before filing
his complaint, so we cannot say “it is evident from the plaintiff’s pleadings
that the action is barred.” 69
We turn next to the magistrate judge’s analysis of San Miguel’s dental
claims. As previously discussed, we recognize the magistrate judge’s error
in concluding that “San Miguel’s right to reasonably adequate medical care
derives from the Eighth Amendment,” and we have not yet decided whether
the deliberate indifference or professional judgment standard applies to
inadequate-medical-care claims by civilly committed individuals. 70
However, we need not decide which standard applies at this time because
_____________________
69
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003).
70
See Perniciaro v. Lea, 901 F.3d 241, 255-56 (5th Cir. 2018) (acknowledging the
issue but refusing to decide whether the deliberate indifference or professional judgment
standard applies to inadequate-medical-care claims by civilly committed individuals).
23
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No. 22-10517
San Miguel has stated a claim even under the more difficult deliberate
indifference standard. 71
In Carlucci v. Chapa, 72 we faced similar facts and concluded the
plaintiff had sufficiently alleged a deliberate indifference claim. 73 In that case,
Gino Carlucci was a prisoner at a federal correctional institution and brought
a Bivens action against several prison officials after they failed to provide him
with recommended dental treatment. 74 Carlucci’s teeth were cracking and
breaking, and he alleged that a dentist told him “all of the teeth that are
hitting will eventually break or crack and the only way to stop this . . . is to
restore the missing bridge and repair the fractured teeth.” 75 The magistrate
judge in that case dismissed Carlucci’s complaint, noting “Carlucci declined
to have any of [] his teeth removed, even though it would resolve[] the issue
of his injured front teeth, because he preferred the restoration of his missing
bridge.” 76 In reversing the magistrate judge’s conclusion, however, we
clarified that “Carlucci’s allegation [was] that the dentist recommended
restoring his bridge and repairing the fractured teeth. He did not claim that
the dentist recommended pulling the teeth and Carlucci disagreed.” 77
Accordingly, we concluded “Carlucci’s allegations of severe physical pain
_____________________
71
Id. at 256 n.14 (“Of course, Youngberg is, if anything, a less deferential, higher
standard for state officials than is deliberate indifference.”).
72
884 F.3d 534 (5th Cir. 2018).
73
Id. at 540.
74
Id. at 537.
75
Id. at 539.
76
Id.
77
Id.
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and denial of recommended dental treatment are sufficient to state a plausible
claim for relief.” 78
San Miguel’s complaint substantially mirrors Carlucci’s complaint.
San Miguel alleges that he “has taken [two] separate trips to the Dentist since
he has been [at] the TCCC, and the Dentist has checked his tooth and
specifically[] assessed that San Miguel needs to have his tooth filled[] and
that permanent damage will result in not having it filled and he will eventually
lose it.” After “complaining about his tooth” and filing several sick call
requests and grievances, Searcy and TCCC officials told him they only
provide extractions and would not pay for the treatment. He further alleges
that McLane is in “charge of contracting treatment and care providers” and
personally denied him dental treatment. Similar to Carlucci, while the TCCC
may have offered to pay for a tooth extraction, nothing in San Miguel’s
complaint or the record suggests that a dentist had recommended extraction,
only the tooth repair. 79
The magistrate judge distinguished Carlucci from San Miguel’s
circumstances in two ways. First, he noted that “San Miguel claims only a
single chipped tooth, seeking a cap or a filling to repair it” as opposed to the
multiple teeth in Carlucci. Second, he noted that “San Miguel does not claim
ongoing pain and suffering due to the chipped tooth.” However, these facts
do not meaningfully distinguish San Miguel’s allegations from those in
Carlucci. In a supplemental declaration, which we are required to consider, 80
San Miguel asserts that another dentist recommended he have two more
_____________________
78
Id.
79
Id.
80
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (holding that a district
court was “required to look beyond the inmates’ formal complaint and to consider as
amendments to the complaint those materials subsequently filed”).
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No. 22-10517
teeth filled. Furthermore, when considering San Miguel’s declaration in
support of his request for a preliminary injunction, 81 he alleges that his tooth
“got infected” and “it was very painful.” According to the nurse’s record
of one of San Miguel’s visits, he even rated the pain as a “10” on the pain
scale. At bottom, San Miguel, like Carlucci, alleges that he complained about
his tooth, recognized that he would lose it if he was not provided dental
treatment, filed several sick call requests and grievances, and was denied
recommended dental treatment in light of an extraction-only policy. When
we liberally construe San Miguel’s complaint and “review the facts in the
light most favorable to the non-moving party,” San Miguel pleaded sufficient
facts that “state a claim to relief that is plausible on its face.” 82
We further conclude that the magistrate judge erred in concluding
that the TCCC could require San Miguel to pay the full price of his treatment
when he otherwise could not afford the recommended treatment and it would
operate as a complete denial of care. The magistrate judge cited several cases
when concluding that the TCCC could “requir[e] San Miguel to pay for a
portion, or all, of the expense of his health care.” However, in these cases,
the plaintiffs did not allege that they would be completely denied medical care
by the imposition of fees. 83 For instance, in Morris v. Livingston, 84 we held
that prison officials were not deliberately indifferent by imposing a $100
_____________________
81
See Hale v. King, 642 F.3d 492, 501 (5th Cir. 2011) (“We also consider the
allegations in [the pro se litigant’s] motion for injunctive relief.”).
82
Carlucci, 884 F.3d at 537 (internal quotation marks omitted) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
83
See Morris v. Livingston, 739 F.3d 740, 748-49 (5th Cir. 2014); Ward v. Fisher, 616
F. App’x 680, 682 (5th Cir. 2015) (per curiam) (unpublished) (concluding the plaintiff
failed to state a deliberate indifference claim when he was treated with more affordable
medications when his preferred ointment was no longer available).
84
739 F.3d 740 (5th Cir. 2014).
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health services fee but expressly reasoned that the plaintiff did not “allege
that he was denied access to medical care because of his inability to pay the
fee, or that provision of medical care was delayed as a result of his inability to
pay.” 85 Indeed, we even recognized that the program in Morris “d[id] not
condition the provision of needed medical services on an inmate’s ability to
pay . . . [and] no inmate [was] ever denied medical care for lack of money.” 86
In contrast, San Miguel alleged that he was “indigent” and, to no avail,
submitted several requests to work so he could afford the treatment. Also
unlike the cases cited by the magistrate judge, San Miguel asserts that he was
not being asked to pay a small fee but rather the entire price of the treatment.
Accordingly, San Miguel sufficiently alleged that by requiring him to pay for
his treatment, he was being completely denied recommended medical
treatment in violation of his right to adequate medical care. 87 Because the
magistrate judge did not address whether Searcy and McLane were
nonetheless entitled to qualified immunity, we decline to reach that question
at the motion-to-dismiss stage. 88
_____________________
85
Id. at 748-49.
86
Id. at 749 (internal quotation marks omitted) (quoting Reynolds v. Wagner, 128
F.3d 166, 174 (3d Cir. 1997)).
87
See Youngberg v. Romero, 457 U.S. 307, 315 (1982) (recognizing that a civilly
committed individual’s rights to adequate food, shelter, clothing, and medical care flow
from the Fourteenth Amendment); Estelle v. Gamble, 429 U.S. 97, 103 (1976) (establishing
“the government’s obligation to provide medical care for those” incarcerated).
88
See Arnold v. Williams, 979 F.3d 262, 269 (5th Cir. 2020) (reversing and
remanding Rule 12(b)(6) dismissal in § 1983 case without addressing qualified immunity
when the district court erroneously determined that the plaintiff failed to sufficiently plead
constitutional violation and did not reach the issue of qualified immunity).
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In summary, while we express no views on the merits of San Miguel’s
dental claims, the district court erred in dismissing them against McLane and
Searcy at this stage in the litigation.
C
Finally, we turn to San Miguel’s claims five through nine, which allege
Searcy, McLane, and Keesee have improperly denied him appropriate
psychiatric care and medications.
We begin with claims five and six, in which San Miguel alleges that
McLane and Searcy instituted a policy of denying him psychiatric medical
care. According to San Miguel, when TTUHSC took over psychiatric care
in the TCCC, “they immediately began to deprive TCCC patients of their
[m]edications.” In particular, San Miguel asserts that he suffered under the
TCCC’s “policy and custom of cutting spending by discontinuing patients[’]
medications and . . . contracting for a lower standard of medical care for
TCCC patients.” Furthermore, he appears to argue that this led to the
denial of “the Psychiatric [m]edications he had been prescribed for years.”
The magistrate judge construed San Miguel’s complaint as asserting
an “informal policy or custom” through two theories: (1) McLane and
Searcy created a “de facto policy or custom of denying TCCC residents
psychiatric care for non-medical financial reasons;” and (2) they ratified the
decision to stop his medications as final policymakers. The magistrate judge
recommended these claims be dismissed, and we agree.
San Miguel fails to plead any factual basis for his conclusory assertion
that “McLane, Searcy, and the Defendants as [a] whole apparently believed
they could just stop providing proper adequate medical care” or that McLane
and Searcy even had knowledge of the decision to stop his medications.
Indeed, he claims McLane and Searcy instituted this policy as a means of
“cutting spending,” but points to no facts that suggest this was the
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No. 22-10517
motivation. The only fact he alleges is that they “discontinued his medicine
because a blood test showed that the medicine was not in his blood at all.”
With respect to his theory that McLane and Searcy ratified the decision to
stop his medication, he alleges no facts that they even had knowledge of the
decision. 89 Instead, he merely alleges that “Keesee [and] Bearden[] suddenly
stopped providing him his antipsychotic psychiatric medications.”
Accordingly, he has not pleaded sufficient facts to “state a claim to relief that
is plausible on its face.” 90
We turn next to claims seven, eight, and nine against Keesee. Like the
claims against nurse practitioner Bearden, San Miguel claims that registered
nurse Keesee violated his constitutional rights by “abruptly stopping [his]
psychiatric medication knowing of his serious medical need, then ignoring his
complaints and requests for help”; “denying him medical care because he
has broken the rules of the facility”; and retaliating against him for filing a
grievance against her by “completely stopping any and all psychiatric
medications.”
The allegations asserted against Keesee are substantially similar to the
allegations against Bearden. According to San Miguel, Keesee told him that
his Seroquel and Wellbutrin were either not present in his blood or existed
only at very low levels and “abruptly” discontinued these medications,
which caused him to experience severe withdrawal symptoms. Additionally,
after stopping these medications, he asserts Keesee ignored his requests for
_____________________
89
See City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988) (noting that the
“purposes of § 1983 would not be served by treating a subordinate employee’s decision as
if it were a reflection” of a broader policy absent a showing of express approval or awareness
by a supervisor).
90
Carlucci v. Chapa, 884 F.3d 534, 537 (5th Cir. 2018) (internal quotation marks
omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
29
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No. 22-10517
medical attention while he was suffering these withdrawal symptoms.
Finally, he contends that Keesee refused to give him medication because he
“had a history of breaking the rules at the facility” and as retaliation for filing
a grievance against her.
For many of the same reasons we affirm the district court’s dismissal
of the claims against Bearden, we affirm the dismissal of San Miguel’s claims
against Keesee.
First, even if we applied the professional judgment standard, San
Miguel has not alleged facts from which we could plausibly infer Keesee’s
behavior constituted a “substantial departure from accepted professional
judgment, practice, or standards as to demonstrate that the person
responsible actually did not base the decision on such a judgment.” 91 Indeed,
a decision “made by a professional, is presumptively valid.” 92 According to
San Miguel, Keesee’s primary role in denying his Seroquel and Wellbutrin
was notifying him that the provider, Bearden, had decided to stop these
medications. The only allegation that suggests Keesee was actually involved
in the decision to stop his Seroquel and Wellbutrin is San Miguel’s assertion
that Keesee “told the provider” that she thought the medications were “bad
for [his] blood pressure[] and bad for [his] anxiety.” To support the notion
that suddenly stopping his medications constituted a substantial departure
from accepted standards, San Miguel offers the clinical pharmacology for
Seroquel and Wellbutrin, which warn that stopping these medicines abruptly
may cause serious side effects. However, these warnings do nothing to
suggest that, by relaying her perception of how San Miguel reacted to the
medications, Keesee “substantial[ly]” departed from accepted professional
_____________________
91
Youngberg v. Romeo, 457 U.S. 307, 323 (1982).
92
Id.
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judgment. 93 According to San Miguel’s own allegations, Bearden was in
charge of determining San Miguel’s medications, not Keesee.
Second, to the extent that San Miguel alleges Keesee denied him
medical care because he had a history of breaking the facility rules, he fails to
allege Keesee’s personal involvement. San Miguel acknowledges that
Bearden, not Keesee, informed him that she was ceasing his medication in
part because he had “a [] long history of not going to group[] and breaking
the rules.”
With respect to San Miguel’s claim that Keesee ignored his requests
for help as he suffered withdrawal symptoms, the magistrate judge did not
err in concluding that San Miguel failed to sufficiently allege facts that
indicate Keesee personally ignored his symptoms or requests for help. Like
San Miguel’s allegations against Bearden, San Miguel asserts that he
requested help from several people but pleads no facts involving when or
where he asked Keesee for help. He alleges that “[m]ultiple security officers
witnessed [his] suffering” and he asked “the TTU Nurse” and “RN Joe
Brown” for help. Furthermore, on November 19, 2019, Keesee responded
to San Miguel’s grievance in which he complained that he “can’t stop
shaking” and “can’t sleep.” However, according to San Miguel’s own
account of this meeting, he only mentioned his trouble sleeping, not other
withdrawal symptoms, and Keesee explained that the medications had not
been in his bloodstream according to the blood tests. Nonetheless, in
completing the grievance form, Keesee explained that he would see a
“provider next week.” Accordingly, San Miguel failed to sufficiently allege
_____________________
93
Id.; see also Mitchell v. Washington, 818 F.3d 436, 443-44 (9th Cir. 2016)
(concluding that the plaintiff’s presentation of medical texts recommending one drug over
another was not sufficient evidence to create a fact issue as to whether a prescriber
substantially departed from professional judgment).
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No. 22-10517
any facts that indicate Keesee either was, or should have been, aware of his
withdrawal symptoms and nonetheless ignored them.
San Miguel’s claim that Keesee retaliated against him for filing
grievances against her and Bearden fares no better. Like the claims against
Bearden, we agree with the magistrate judge’s recommendation that this
claim be dismissed.
Once again, San Miguel only provides the conclusory allegation that
“Keesee denied [him] his medication . . . because he had submitted a
grievance against her in the past.” This conclusory allegation is insufficient
to support a retaliation claim, and the “chronology of events” also does not
support the claim. 94 San Miguel acknowledges Keesee denied him
medication prior to him filing these grievances. Indeed, he admits that he
filed a grievance against Keesee because she had previously refused to give
him medicine for his headache. Accordingly, the district court did not err in
dismissing San Miguel’s retaliation claim against Keesee.
V
Finally, we address San Miguel’s arguments that the district court
erred in (1) denying his motion to vacate the judgment and leave to amend
his complaint, (2) denying his motion for a preliminary injunction, and
(3) denying his motion for appointment of counsel.
A
San Miguel moved to vacate the judgment and for leave to amend his
complaint under Rule 59(e). Rule 59(e) motions “must clearly establish
either a manifest error of law or fact or must present newly discovered
_____________________
94
Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) (internal quotation marks
omitted) (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)).
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evidence.” 95 A motion to amend under Rule 15(a), however, “permit[s]
liberal amendment to facilitate determination of claims on the merits.” 96
Where judgment has been entered on the pleadings, a holding
that the trial court should have permitted amendment
necessarily implies that judgment on the pleadings was
inappropriate and that therefore the motion to vacate should
have been granted. Thus[,] the disposition of the plaintiff’s
motion to vacate under rule 59(e) should be governed by the
same considerations controlling the exercise of discretion
under rule 15(a). 97
Therefore, “we review the district court’s denial of [San Miguel’s] 59(e)
motion for abuse of discretion, in light of the limited discretion of Rule
15(a).” 98
Even applying the Rule 15(a) standard, the district court did not abuse
its discretion in denying San Miguel’s motion. We have held that district
courts did not abuse their discretion when plaintiffs had previously amended
their complaints and failed to argue that any proposed amendments raised
new facts. 99 Here, San Miguel has already been allowed to amend his
_____________________
95
Rosenzweig v. Azurix Corp., 332 F.3d 854, 863 (5th Cir. 2003) (internal quotation
marks omitted) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)).
96
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir. 1981).
97
Rosenzweig, 332 F.3d at 864 (internal quotation marks omitted) (quoting Dussouy,
660 F.2d at 597 n.1).
98
Id.
99
See, e.g., Schiller v. Physicians Res. Grp Inc., 342 F.3d 563, 568 (5th Cir. 2003)
(affirming the district court’s denial of Rule 59(e) motion to amend complaint when the
plaintiffs had previously amended their complaint three times); Martinez v. McLane, 792 F.
App’x 282, 287 (5th Cir. 2019) (per curiam) (unpublished) (“[A]lthough district courts
ordinarily grant leave to amend an inadequate complaint, an exception exists where
plaintiff: (1) repeatedly declared the adequacy of [his] complaint in a lengthy response to
defendant’s motion to dismiss, and (2) refused to file a supplemental complaint even in the
face of a motion to dismiss.” (internal quotation marks omitted) (quoting Martinez v.
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complaint; he does not assert the existence of any new or additional facts in
his motion to vacate or seek leave to amend; and he does not offer a proposed
amended complaint. Accordingly, the district court did not err in denying
San Miguel’s motion to vacate the judgment.
B
San Miguel requested a preliminary injunction with respect to his
dental claims. “We review the denial of a preliminary injunction for abuse of
discretion.” 100 San Miguel is entitled to the “extraordinary remedy” of a
preliminary injunction only if he establishes:
(1) a substantial likelihood of success on the merits, (2) a
substantial threat of irreparable injury if the injunction is not
issued, (3) that the threatened injury if the injunction is denied
outweighs any harm that will result if the injunction is granted,
and (4) that the grant of an injunction will not disserve the
public interest. 101
We addressed a similar motion in Leachman v. Harris County, 102 a recent
unpublished opinion. In that case, we noted the “conflicting case law”
surrounding “the theory that a prison’s refusal to provide medical treatment
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McLane, No. 5:16-CV-265-C, 2017 U.S. Dist. LEXIS 225079, at *2 n.3 (N.D. Tex. Sep. 7,
2017))); U.S. ex rel. Hebert v. Dizney, 295 F. App’x 717, 725 (5th Cir. 2008) (unpublished)
(affirming the district court’s denial of Rule 59(e) motion to amend complaint when the
litigants “d[id] not argue that their proposed amendment raised any facts which were not
available previous to the district court’s opinion”(internal quotations omitted) (quoting
Rosenzweig, 332 F.3d at 865)).
100
Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.
2009).
101
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (internal quotation marks
omitted) (quoting Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006)).
102
779 F. App’x 234 (5th Cir. 2019) (per curiam) (unpublished), as revised (Oct. 2,
2019).
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that is ordered by a doctor or dentist can constitute deliberate
indifference.” 103 In light of the conflicting caselaw, we denied the motion for
a preliminary injunction because the plaintiff could not “show[] a substantial
likelihood of success.” 104 The same holds true in this case. Furthermore,
even if we applied the professional judgment standard to San Miguel’s dental
claims, he has not presented any evidence beyond allegations in the pleadings
that the extraction procedures offered by the TCCC constitute a “substantial
departure from accepted professional judgment, practice, or standards.” 105
Accordingly, the district court did not err in denying San Miguel’s motion
for a preliminary injunction.
C
Lastly, we turn to San Miguel’s motion for appointment of counsel.
We review the district court’s denial of a motion for appointment of counsel
for abuse of discretion. 106 “In evaluating whether the appointment of counsel
is proper, the district court [should] consider[] the type and complexity of
the case, the litigant’s ability to investigate and present the case, and the level
of skill required to present the evidence.” 107 Here, we cannot say that the
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103
Id. at 238.
104
Id.
105
Youngberg v. Romeo, 457 U.S. 307, 323 (1982); see also Slaughter v. Atkins, 396 F.
App’x 984, 988-89 (5th Cir. 2010) (per curiam) (unpublished) (affirming the district
court’s denial of a preliminary injunction when the movant presented “no evidence” as to
a component of the claim).
106
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
107
Id. (internal quotation marks omitted) (quoting Castro Romero v. Becken, 256
F.3d 349, 354 (5th Cir. 2001)).
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district court abused its discretion in denying San Miguel’s motion for
appointment of counsel.
* * *
For the foregoing reasons, we REVERSE the district court’s
dismissal of San Miguel’s claims that defendants McLane and Searcy denied
him recommended dental treatment and AFFIRM the district court’s
dismissal of all San Miguel’s other claims. Furthermore, we AFFIRM the
district court’s denials of San Miguel’s motion for a preliminary injunction,
motion to vacate, and motion for appointment of counsel. In light of these
orders, we DENY San Miguel’s motions for a preliminary injunction and
appointment of counsel that he filed in the appeal.
36