Whitehead v. Curbo

583 F.Supp.3d 836

Timothy Derek WHITEHEAD, TDCJ # 2289205, Plaintiff,

v.Melody CURBO and LaTina Blair, Defendants.

CIVIL ACTION NO. H-20-3869

United States District Court, S.D. Texas, Houston Division.

Signed February 1, 2022

Timothy Derek Whitehead, Huntsville, TX, Pro Se.

Sheaffer Kristine Fennessey, Office of the Attorney General - Law Enforcement Defense Division, Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIM LAKE, SENIOR UNITED STATES DISTRICT JUDGE

The plaintiff, Timothy Derek Whitehead (TDCJ #2289205), has filed a Prisoner's Civil Rights Complaint ("Complaint") (Docket Entry No. 1), alleging that he was denied adequate medical care by a nurse and a physician's assistant while incarcerated in the Texas Department of Criminal Justice ("TDCJ"). At the court's request he has filed Plaintiff's More Definite Statement ("Plaintiff's MOS") (Docket Entry No. 8), which provides additional details about his claims. Now pending before the court is Defendants [LaTina] Blair and [Melody] Curbo's Motion for Summary Judgment ("Defendants’ MSJ") (Docket Entry No. 27). Whitehead has not filed a response, but he has submitted several exhibits pursuant to the disclosure of discovery provisions found in Fed. R. Civ. P. 26 (Docket Entry No. 29). After considering all of the pleadings, the exhibits, and the applicable law, the Defendants’ MSJ will be granted and this case will be dismissed for the reasons explained below.

I. Background

Whitehead alleges that he was denied adequate medical care by a nurse and a physician's assistant during the intake process that took place during a four-week period in November 2019, following his arrival at the Holliday Unit in Huntsville.¹ Public records reflect that Whitehead was sentenced to five years’ imprisonment on October 17, 2019, in Grimes County, Texas, following a conviction for fraudulent use of identification in Case No. 18469.² Shortly after that conviction was entered, Whitehead was admitted to TDCJ on November 5, 2019.³

Whitehead alleges that when he first arrived at the Holliday Unit on November 5, 2019, he reported having an infection in his left eye that he first noticed on November 1, 2019, while he was still in custody at the Grimes County Jail.⁴ While at the Jail, Whitehead saw an ophthalmologist who prescribed ointment and eye drops.⁵ According to Whitehead, health care providers who conducted his initial "medical intake" at the Holliday Unit on November 5, 2019, put him on antibiotics.⁶

Two days later, on November 7, 2019, Whitehead claims that he had a fever, that he was in "severe pain," and that his left eye was "leaking blood and puss."⁷ Medical records provided by the defendants show that Whitehead had an ocular implant with a prosthesis in his left eye, which he lost following an "accident with a pressure washer" in January of 2018.⁸ According to information provided by the defendants, orbital implants following the loss of an eye have a risk of complications such as infection.⁹ Whitehead claims that he requested immediate care for his left eye from "an optha [l]mologist or a trauma surgeon," but that Melody Curbo, a licensed vocational nurse employed at the Holliday Unit, denied that request.¹⁰

Whitehead alleges that he was also denied care for his infected left eye by LaTina Blair, a physician's assistant at the Holliday Unit, on two occasions. On the first occasion, which reportedly happened "[o]n or about November 14, 2019," Whitehead claims that he asked to "see an optha[l]mologist, a surgeon, or [to be] taken to the emergency room."¹¹ By this time, Whitehead reports that he had "severe pain, bleeding, and infection" in his left eye as well as a fever that had lasted over a week.¹² According to Whitehead, Blair told him to keep taking his antibiotics, but refused any further care.¹³

Whitehead alleges that he also saw Blair "[o]n or about November 19, 2019," and repeated his request to see an ophthalmologist, a surgeon, or to go to the emergency room.¹⁴ He claims that he had a high fever and that his implant was "bulging" or protruding from the eye socket, which he describes as swollen.¹⁵ Whitehead contends that Blair denied his request for care, noting that he was on antibiotics and that he had a ophthalmology appointment scheduled in December.¹⁶

On November 26, 2019, Whitehead was seen in the clinic at the Holliday Unit and then taken to the local hospital in Huntsville, which sent him to the emergency room at a hospital located in Conroe.¹⁷ Whitehead was diagnosed with cellulitis and transferred to Memorial Hermann Hospital ("Memorial Hermann") in Houston, where he had surgery to remove his ocular implant, which required a skin graft from his abdominal area so that his eyelid could be stitched shut.¹⁸

Whitehead blames Curbo and Blair for the loss of his ocular implant, alleging that they denied him adequate care in violation of his rights under the Eighth Amendment. ¹⁹

He seeks compensatory damages for his pain and disfigurement.²⁰

Curbo and Blair move for summary judgment, asserting that they are entitled to sovereign immunity under the Eleventh Amendment from the claims against them in their official capacity.²¹ Pointing to medical records that refute Whitehead's claims, Curbo and Blair argue further that they are entitled to qualified immunity from the claims against them in their personal capacity because Whitehead fails to establish that they denied him care in violation of the Eighth Amendment.²² In support, the defendants provide an affidavit from Dr. Glenda M. Adams ("Dr. Adams"), and as well as medical records of treatment provided at the Grimes County Jail, TDCJ, Memorial Hermann, and the University of Texas Medical Branch ("UTMB") Hospital in Galveston, which provides care for state inmates.²³ The defendants’ arguments are examined below under the applicable standard of review.

II. Standard of Review

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule a reviewing court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (2021); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.

In deciding a summary judgment motion, the reviewing court must view all facts and inferences in the light most favorable to the nonmovant and resolve all factual disputes in his favor. See Shah v. VHS San Antonio Partners, L.L.C., 985 F.3d 450, 453 (5th Cir. 2021). If the movant demonstrates an "absence of evidentiary support in the record for the nonmovant's case," the burden shifts to the nonmovant to "come forward with specific facts showing that there is a genuine issue for trial." Sanchez v. Young County, Texas, 866 F.3d 274, 279 (5th Cir. 2017) (citing Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010) ). The nonmovant cannot avoid summary judgment by resting on his pleadings or presenting "[c] onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation." Jones v. Lowndes County, Mississippi, 678 F.3d 344, 348 (5th Cir. 2012) (citation and internal quotation marks omitted); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en bane) (a nonmovant cannot demonstrate a genuine issue of material fact with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence).

The plaintiff represents himself in this case. Courts are required to give a pro se litigant's contentions a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam) (citation omitted). Nevertheless, a pro se litigant is not excused from meeting his burden of proof of specifically referring to evidence in the summary judgment record and setting forth facts showing that there is a genuine issue of material fact remaining for trial. See Outley v. Luke & Associates, Inc., 840 F.3d 212, 217 (5th Cir. 2016) ; see also Bookman v. Shubzda, 945 F. Supp. 999, 1004 (N.D. Tex. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (citation omitted)). The court has no obligation under Rule 56 "to sift through the record in search of evidence to support a party's opposition to summary judgment." Adams v. Travelers Indemnity Co. of Connecticut, 465 F.3d 156, 164 (5th Cir. 2006) (quotation omitted).

In an Order entered on January 19, 2021, the court directed Whitehead to respond within thirty days to any motion for summary judgment submitted by the defendants.²⁴ Whitehead was advised that under this court's Local Rule 7.4, any failure to respond to a motion filed by the defendants "will be taken as a representation of no opposition."²⁵ The certificate of service for Defendants’ MSJ reflects that it was provided to Whitehead at his address of record,²⁶ but he has not filed a response to the motion. Notwithstanding the plaintiff's failure to respond, summary judgment may not be awarded by default "simply because there is no opposition, even if the failure to oppose violated a local rule." Hibernia Nat'l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). "However, a court may grant an unopposed summary judgment motion if the undisputed facts show that the movant is entitled to judgment as a matter of law." Day v. Wells Fargo Bank Nat'l Ass'n, 768 F.3d 435, 435 (5th Cir. 2014) (citation omitted); see also Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir. 1988).

III. Discussion

A. Sovereign...