Glover, Jr. v. Pharmacist et al, No. 4:2023cv03324 - Document 16 (S.D. Tex. 2024)
Court Description: MEMORANDUM AND OPINION denying as moot 15 MOTION Standard Review. The Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 (Docket Entry No. 1) filed by Earnest Lee Glover, Jr., also known as Ernest Lee Glover, Jr., is.D ISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be granted. The dismissal will count as a STRIKE -for purposes of 28 U.S.C. § 1915(g). Glover's Motion for Standard Review (Docket Entry No. 15) is DENIED AS MOOT. Email sent to Manager of Three Strikes List. (Signed by Judge Sim Lake) Parties notified. (jld4)
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Glover, Jr. v. Pharmacist et al Doc. 16 United States District Court Southern District of Texas ENTERED April 01, 2024 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION EARNEST LEE GLOVER, JR., TDCJ #1463189, Nathan Ochsner, Clerk § § § Plaintiff, § § V. § CMC PHARMACIST, et al., § § CIVIL ACTION NO. H-23-3324 § § Defendants. MEMORANDUM OPINION AND ORDER The plaintiff, Ernest Lee Glover, Earnest Jr. Lee Glover, (TDCJ #1463189), Civil Rights Complaint under 42 U.S.C. Jr., also has filed a known Prisoner's 1983 ("Complaint") § as (Docket Entry No. 1), regarding the conditions of his confinement in the Texas Department of Criminal Justice - Correctional Institutions Di vision ( "TDCJ") . He has also submitted Plaintiff's More Definite Statement ("Plaintiff's MDS") (Docket Entry No. 14) , which provides additional details about his claims, and a Motion for Standard Review (Docket Entry No. 15), asking the court to screen his case. Because Glover is a prisoner who proceeds in forma pauperis, the court is required to scrutinize the pleadings and dismiss the case if it determines that the action is "(i) frivolous or malicious; (ii) fails to state a claim oh which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e) (2) (B). After considering all of Dockets.Justia.com the pleadings, the court concludes that this case must be dismissed for the reasons explained below. I. Background Glover is presently incarcerated by TDCJ at the Jester III Unit in Richmond. 1 Public records reflect that he is serving two 99-year prison sentences for aggravated sexual assault. 2 of age. 3 years He filed this lawsuit under 42 He is 63 u. s. c. § against the following defendants who are employed by TDCJ: unidentified pharmacist at the ("CMC") Pharmacy in Huntsville; Practitioner ("NPR") TDCJ Correctional Managed (2) Dr. Samuel Adesoba; Sangmin Kim; and (4) 1983 (1) an Care (3) Nurse NPR Loretta Onwukwe. 4 His primary complaint is that these heal t.h care providers failed to prescribe medication that was recommended by a specialist with the Neurology Department at the John Sealy Hospital in Galveston, and prescribed another medication instead. 5 1 Complaint, Docket Entry No. 1, p. 3. For purposes of identification, all page numbers reference the pagination imprinted on each docket entry by the court's Electronic Case Filing ("ECF") system. 2 See Texas Department of Criminal Justice Offender Information, available at: https://inmate.tdcj.texas.gov (last visited March 27, 2024). 3 Id. 4 Complaint, .Docket Entry No. 1, p. 3; Plaintiff's MDS, Docket Entry No. 14, pp. 7-8 (Response to Questions ll(d) and 12(d)). 5 Complaint, Docket Entry No. 1, p. 3. -2- Glover was first admitted to TDCJ in 2007. 6 He suffers from several medical conditions, including diabetes and glaucoma. 7 takes Insulin, extremities. 8 Metforinin, and Lasix for s~elling in He his He has had hernia surgery on more than one occasion and he has also had cataract surgery in both eyes. 9 In 2013 Glover was reportedly diagnosed with severe arthritis and "degenerative back disc disease" by Dr. Benjamin Leach at the Bill Clements Unit in Amarillo, who also determined that Glover would need left hip replacement surgery . 10 In 2018 Dr. Leach placed Glover on the "back surgery list," but advised him that he would likely have to wait several years for the procedure. 11 Glover had hip replacement surgery at In 2019 University Hospital in Lubbock. 12 Wl+ile he was at the Bill Clements Unit Glover reportedly received a shot of "Methocarbolmol" every other month along with Tramadol for hip pain and Gabapentin for nerve pain. 13 6 Plaintiff' s 'MDS, Question 1). Docket Entry No. 7 Id. at 8 (Response to Question 13). 8 Id. 9 Id. 14, p. lord. at 2 (Response to Question 5 (a) ) . 11 Id. at 3 (Response to Question 6) . i2rd. at 3 (Response to Questions 6 13 Id. at 4 (Response to Question 8) . -3- and 7) . 2 In 2022 (Response to Glover was assigned to the Beto Unit, where he underwent physical therapy from April through July. 14 On March 31, Unit . 15 2023, Glover was assigned to the Jester III From May 8 through May 25, 2023, Glover was prescribed Tramadol and Gabapentin by Dr. Lehn, who is a neurologist at the John Sealy Hospital in Galveston, 16 which University of Texas Med_ical Branch ( "UTMB") . is operated by the Glover alleges that a pharmacist at the CMC Pharmacy in Huntsville, which is part of the "UTMB system," refused to authorize the prescription for Gabapentin because it is "'Habit Forming,'" but Glover believes that this was merely an "excuse" because the medication is deemed "too 'Expensive.' " 17 Glover claims that Dr. Adesoba, who treated him at the Jester III Unit, refused to challenge the pharmacist's decision or contact Dr. Lehn at the John Sealy Hospital to insist that Glover receive Gabapentin as prescribed. 18 Instead, Dr. Adesoba gave Glover an 11-month prescription "Zymbalta," Glover's medical for records show that he despite became the fact inebriated that and nauseous when taking Zymbalta previously at the Beto Unit . 19 Glover 14Id. isid. at 2 (Response to Question 3) . i6Id. at 6 (Response to Question 10 (b) ) 17Id. at 5 (Response to Question 9(c)) (emphasis in original). iaid. at 6 (Response to Question l0(c)). 19 Id. at 6 (Response to Question l0(e)). -4- alleges that NPR Kim and NPR Onwukwe also refused to contact Dr. Lehn on Glover's behalf to insist on a prescription for Gabapentin instead of Zymbalta. 20 On November 27, 2023, Glover "Bacaphil" for pain relief. 21 submitted a request ,for On December 10, 2023, Glover had a Telemed appointment with a neurologist, who ordered an MRI for purposes of evaluating him for back surgery. 22 Glover reports that the neurologist has ordered a second round of physical therapy. 23 Glover complains that the defendants have denied him adequate medical care by failing to follow Dr. Lehn's recommended prescription for Gabapentin or to contact Dr. Lehn so that he can receive Gabapentin as prescribed. 24 Glover seeks a prescription for Gabapentin. 25 He also seeks compensatory damages from each defendant for the violation of his civil rights. 26 20Id. at 6-7 (Response to Questions 11 (a) and 12 (a)) . 21rd. at 8 (Response to Question 12(c)). 22rd. at 4 (Response to Question 7) . 23rd. (Response to Question 8). 24 Complaint, Docket Entry No. 1, pp. 3-4. 25 Id. at 4. Glover also seeks "[e] µ1ergency surgery" on his back. Id. According to Glover, decisions about his eligibility for back surgery are being handled by neurologists at the John Sealy Hospital. See Platntiff's MDS, Docket Entry No. 14, p. 4 (Respon~e to Question 7). Because Glov~r does not allege facts showing that any of the defendants in this case are personally involved in making decisions about his eligibility for back surgery, the court does not address this claim. 26 Complaint, Docket Entry No. 1, p. 4. -5- II. Standard of Review The Prison Litigation Reform Act district courts to screen ( "PLRA") prisoner requires federal complaints to identify cognizable claims or dismiss the complaint if it is frivolous, malicious, granted. or fails to state a claim upon which relief may be See Crawford-El v. Britton, 118 S. Ct. 1584, 1596 (1998)_ (summarizing provisions found in the PLRA, including the requirement that district courts screen prisoners' complaints and summarily dismiss frivolous, malicious, or meritless actions); see also Coleman v. Tollefson, 135 S. Ct. 1759, 1761-62 (2015) (discussing the screening provision found in the federal in forma pauperis statute, 28 U.S.C. § 1915(e) (2), and reforms enacted by the PLRA that were "'designed to filter out the bad claims [filed by prisoners] and facilitate consideration of the good'") Jones v. Bock, 127 S. Ct. 910, 914 (2007)) (quoting (alteration in original). A complaint is frivolous either in law or in fact.'" 1 733 ( 1992) (1989)) . if it "' lacks an arguable basis Denton v. Hernandez, 112 S. Ct. 1728, ( quoting Neitzke v. Williams, 109 S. Ct. 1827, 1831 "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." 1999) (internal Harper v. Showers, 174 F.3d 716, 718 quotation marks and citations (5th Cir. omitted). "A complaint lacks an arguable basis in fact if, after providing the -6- plaintiff the opportunity necessary, the facts to present alleged are additional facts clearly baseless." Gilley, 138 F.3d 211, 213 (5th Cir. 1998) when Talib v. (citation omitted). To avoid dismissal for failure to state a claim, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level [.]" Twombly, 127 S. Ct. 1955, 1965 (2007) complaint has not set forth Bell Atlantic Corp. (citation omitted). "enough facts to state a If the claim to relief that is plausible on its face," it must be dismissed. at 1974. v. Id. A reviewing court must "'accept all well-pleaded facts as true and construe the complaint in the light most favorable to the plaintiff.'" 2020) Heinze v. Tesco Corp., 971 F.3d 475, 479 (citation omitted) . (5th Cir. But it need not accept as true any "conclusory allegations, unwarranted factual inferences, or legal conclusions." Id. (internal quotation marks and citations omitted); see also White v. U.S. Corrections, L.L.C., 996 F.3d 302, 307 (5th Cir. 2021) elements (same). of a In other words, cause of action, statements, do not suffice." 1949 (2009) "[t]hreadbare recitals of the supported by mere conclusory Ashcroft v. Igbal, 129 S. Ct. 1937, (citing Twombly, 127 S. Ct. at 1965). In conducting this review, the court plaintiff represents himself in this case. is mindful that Courts are required to give a prose litigant's contentions a liberal construction. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) also Haines v. Kerner, 92 S. Ct. 594, 595-96 -7- the See (per curiam); .see (1972) (per curiam) (noting that allegations in a prose complaint, however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers). Even under this lenient standara, prose litigants are still required to "properly plead sufficient facts that, when relief[.]" 2014) liberally construed, state a plausible claim to E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. (quoting Champion v. United States, 421 F. App'x 418, 423 (5th Cir. 2011); Pickett v. Nunn, 367 F. App'x 536, 537 (5th Cir. 2010)). III. Discussion Glover alleges that the defendants are liable under 42 U.S.C. § 1983 for failing to provide medication prescribed by a specialist at the John Sealy Hospital instead. 27 To state an actionable claim for the denial of adequate medical care, violated and providing different medication the a prisoner must demonstrate that prison officials Eighth Amendment by acting with "deliberate indifference to a prisoner's serious illness or injury [.]" v. Gamble, 97 S. Ct. 285, 291 (1976). deliberate indifference substantial failing to risk of take A prison official acts with "only if he knows that serious to abate Brennan, 114 S. Ct. 1970, 1984 (1994). 27 inmates face harm and disregards reasonable measures Complaint, Docket Entry No. 1, p. 3. -8- Estelle that it." a risk by Farmer v. The Eighth Amendment deliberate indifference standard is an "extremely high" one to meet. Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). treatment, acts constitute negligence, deliberate disagreement with circumstances." 2006). of his "Unsuccessful medical or medical indifference, medical nor malpractice does treatment, a absent do not prisoner's exceptional Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. A showing of deliberate indifference under these circum- stances requires the prisoner to demonstrate that prison officials "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." Id. (internal quotation marks and citation omitted). Glover claims that the defendants have denied him adequate . medical care by prescribing other medication instead of Gabapentin, which was recommended by Dr. different treatment or Lehn. treatment A prisoner's from a desire specialist is for not sufficient to state a constitut~onal violation under the Eighth Amendment. 1997) See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. ("Disagreement with medical treatment does not state a claim for Eighth Amendment indifference to medical needs.") . extent that the differed from Dr. defendants Lehn' s elected to provide recommendation, a To the treatment medical that provider's decision to prescribe a different course of treatment does not demonstrate deliberate indifference. -9- See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. F. App'x 276, 277 1999); see also Simon v. (5th Cir. 2015) (per curiam) LeBlanc, 623 ("The refusal to provide medicine that was prescribed at another facility or by a different doctor does not rise to the level of deliberate indifference."). Likewise, a pharmacist's decision about whether to approve medication under a treatment plan does not rise to the level of a constitutional violation. No . H-11- 2 7 5 5 , (concluding See Davis v .. Lithicum, 2013 WL 2 4 2 7 7 2 2 , at * 8 that a pharmacist's ( S . D . Tex. decision Civil Action June 3 , not to 2 0 13 ) approve a prescription, and a treating physician's decision not to challenge the denial, involved judgment about medical treatment and about how to apply prison policies) ; Tijerina v. Stanley, Civil Action No. S:16-cv-102, 2019 WL 1396964, at *7 (E.D. Tex. March 28, 2019) (concluding that a prisoner failed to show that a clinical pharmacist who declined to approve medication acted with deliberate indifference); Welch v. Revell, No. 2:10-CV-0109, 2011 WL 2455715, at *7 (N.D. Tex. May 20, 2011) (concluding that a prisoner's dissatisfaction with pain medication that was prescribed instead of narcotics did not state a claim for deliberate indifference) , Report and Recommendation adopted at 2011 WL 2455661 June 20, No. 2011); 5:2lcv14, Acuna v. UTMB TDCJ Managed Care, 2022 WL 2196310, at *6 (E.D. Tex. (N.D. Tex. Civil Action Jan. 24, 2022) ("Plaintiff's disagreement with the pharmacist's refusal to approve this particular medication . . does not demonstrate deliberate -10- indifference."), Report and Recommendation adopted at 2022 WL 2195016 (E.D. Tex. June 16, 2022). Questions about whether a particular form of treatment is indicated are "a classic example of a matter for medical judgment." Estelle, 97 S. Ct. at 293. A medical decision to prescribe a particular type of treatment "does not represent cruel and unusual punishment." occurred, any malpractice, Hegmann, Even such if a failure lapse amounts in professional to mere and not a constitutional violation. 198 F.3d 153, 159 (5th Cir. 1999) judgment negligence or See Harris v. (citing Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993)); see also Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018) (claims based on unsuccessful medical treatment, neglige~ce, or medical malpractice are insufficient to show deliberate indifference). Because Glover has failed to a+lege facts showing that he was denied care with deliberate indifference by any of the defendants, he has not stated a claim under 42 U.S.C. § 1983 in connection with the treatment he received at the Jester III Unit. As a result, this action will be dismissed pursuant to 28 U.S.C. § 1915(e) (2) (B). IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Prisoner's Civil Rights Complaint under 42 U.S.C. § 1983 (Docket Entry No. 1) filed by Earnest Lee Glover, Jr., also known as Ernest Lee Glover, Jr., is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief·may be granted. -11- 2. The dismissal will count as a STRIKE -for purposes of 28 U.S.C. § 1915(g). 3. Glover's Motion for Standard Review (Docket Entry No. 15) is DENIED AS MOOT. The Clerk is directed to provide a copy of this Memorandum Opinion and Memorandum' Opinion and Order to the plaintiff. The Clerk will also send a copy of this Order to the Manager of Three Strikes List at Three_Strikes@txs.uscourts.gov. SIGNED at Houston, Texas, on this the 1st day of April, 2024. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -12-
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