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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF TEXAS
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`TEXARKANA DIVISION
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`KAIVEN WESLEY
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` §
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`v.
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` § CIVIL ACTION NO. 5:14cv46
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`BOWIE COUNTY, ET AL.
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` §
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`MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
`OF THE UNITED STATES MAGISTRATE JUDGE
`ON DEFENDANT DR. SHAH’S MOTION TO DISMISS
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`The Plaintiff Kaiven Wesley, proceeding pro se, filed this civil rights lawsuit complaining
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`of alleged violations of his constitutional rights during his confinement in the Bowie County Jail.
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`This Court ordered the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C.
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`§636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of
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`Duties to United States Magistrate Judges.
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`I. The Plaintiff’s Complaint
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`Wesley complains he was denied proper medical care at the Bowie County Jail for gunshot
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`wounds he suffered. He states prior to entering the jail, he was diagnosed with a “grazed head
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`gunshot wound” at a hospital facility. After he came into the jail, a separate and individual
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`evaluation was supposed to have been done to determine the extent of his medical needs and whether
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`“the initial information regarding Mr. Wesley’s gunshot wounds had been properly evaluated.” Had
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`this been done, Wesley states the Defendants would have learned his injury was not a “grazed
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`wound” but an “actual gunshot wound where a bullet had entered and exited Mr. Wesley’s head.”
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`Wesley argues the failure by the Defendants to factually evaluate the circumstances of his
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`wound caused him to suffer extreme pain as a result of the lack of proper medical treatment. He
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`continuously filed grievances seeking medical care; Wesley states gunshot wounds are considered
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`serious, but there was never any reason for denying him medical care and treatment. For relief, he
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 2 of 8 PageID #: 373
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`asks for one dollar in nominal damages, $50,000.00 per defendant in compensatory damages, and
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`$1 million per defendant in punitive damages.
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`II. Dr. Shah’s Motion to Dismiss
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`One of the named Defendants, Dr. Jagdish Shah, filed a motion to dismiss the complaint
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`against him. Dr. Shah argued Wesley did not allege any facts showing deliberate indifference and
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`Wesley’s pleadings fail to identify Dr. Shah’s involvement in his care, much less how such
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`involvement amounted to deliberate indifference. Instead, Wesley pleaded only conclusory
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`allegations which fail to show a plausible right to relief. Dr. Shah also invoked the defense of
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`qualified immunity.
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`In response to the motion to dismiss, Wesley argued Dr. Shah made a jury demand in his
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`answer, showing an agreement between the parties that a jury trial is requested. He asks the Court
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`to “instruct the parties to enter proceedings to determine if a settlement is possible.” Wesley states
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`he had a bullet lodged in his lung and was prescribed a pain reliever called hydrocodone, which was
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`never provided; instead, he was given aspirin, which Wesley claims is an example of the inadequate
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`medical care provided.
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`III. The Report and Recommendation
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`After review of the pleadings, the Magistrate Judge issued a Report recommending Dr.
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`Shah’s motion to dismiss be granted. The Magistrate Judge observed that Wesley’s pleadings, taken
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`as true, must raise a right to relief above the speculative level; in other words, he must plead factual
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`content allowing the court to draw a reasonable inference that Dr. Shah is liable for the misconduct
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`alleged. Such pleading must involve more than a sheer possibility of unlawful conduct. Ashcroft
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`v. Iqbal, 566 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
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`However, Wesley’s pleadings, including his response to the motion to dismiss, failed to
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`satisfy this standard. While he names Dr. Shah as a defendant in his lawsuit, his complaint and
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`supporting memorandum do not otherwise mention the doctor at all. The medical records which
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`Wesley attaches to his response to the motion to dismiss do not show Wesley was the victim of
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 3 of 8 PageID #: 374
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`deliberate indifference; on the contrary, these show he received a considerable amount of medical
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`care, including examinations, sutures, medications, X-rays, and a CT scan. These medical records
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`also show Wesley’s gunshot wound to the head was a scalp wound with no intra-cranial injury,
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`described by the hospital in Michigan as a “superficial scalp wound.” Even considering these
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`medical records as part of Wesley’s pleadings, the Magistrate Judge stated, they did not set out a
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`facially plausible claim against Dr. Shah. Wesley’s disagreement with the medication he received
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`did not show deliberate indifference to his serious medical needs even assuming Dr. Shah was
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`responsible for the change in medication, which Wesley does not allege. The Magistrate Judge also
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`concluded Dr. Shah is entitled to qualified immunity.
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`IV. The Plaintiff’s Objections (docket no. 46)
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`In his objections, Wesley states Dr. Shah does not dispute he had other gunshot wounds,
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`besides his head wound, and “other than the question of deliberate indifference, no dispute arises
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`from defendant Shah that Mr. Wesley, because he had a serious gunshot wound to his head, and
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`gunshot wounds to his lower body, that his medical needs were critical and required particular kinds
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`of medical treatment to address those circumstances regarding plaintiff’s serious medical condition.”
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`(Plaintiff’s Objections, ECF TXED 5:14-cv-46, 46, 2). He asserts the Magistrate Judge’s Report
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`only discusses his head wound and states “when determining whether deliberate indifference is a
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`factor to dismiss a defendant from the basis of a plaintiff’s civil rights complaint, the court must
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`determine if plaintiff required serious medical treatment and if so, were these needs properly met and
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`if not, the standard of deliberate indifference to dismiss the suit has not been met.” (Plaintiff’s
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`Objections, id., p. 2).
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`Wesley states gunshot wounds are considered serious, citing other cases in which persons
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`died from gunshot wounds. He contends he had gunshot wounds in which bullets had entered his
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`body, but these are not discussed in the motion to dismiss or the Magistrate Judge’s Report. Wesley
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`states these wounds “could have been fatal had he not received the kind of medical treatment needed
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`while in the hospital, prior to being moved to the county jail.” (Plaintiff’s Objections, id., p. 3).
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 4 of 8 PageID #: 375
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`Wesley goes on to assert “there is nothing in [the] record that provides defendant’s motion
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`to dismiss should be granted because defendant Dr. Shah has not shown that plaintiff’s gunshot
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`wounds were being properly treated, as there is no record factually showing the kind of treatment
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`that plaintiff received, was consist [sic] with all other inmates that may have received medical
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`treatment in Bowie County, for gunshot wounds while in custody.” (Plaintiff’s Objections, id., p.
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`4). He also states nothing in the record indicates any reason for taking away the medication
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`prescribed for him in the hospital. Wesley asserts Dr. Shah “does not demonstrate that deliberate
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`indifference did not occur.” (Plaintiff’s Objections, id., p. 5). The Court will conduct a de novo
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`review of the Report and Recommendation in light of the Plaintiff’s objections.
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`V. Analysis
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`A. Deliberate indifference
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`In his complaint and memorandum in support, Wesley focuses on his head wound and he also
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`refers to other gunshot wounds. On page 3 of his memorandum, he states “medical treatment which
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`plaintiff Wesley adequately argues that he was denied, is based on a fundamental fact, that during
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`being placed in the custody of defendant(s) care, defendant(s) failed to properly evaluate his medical
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`circumstances regarding his gunshot wounds to his head, upper and lower body.” He goes on to
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`discuss the failure to evaluate the fact his gunshot wound to the head was not properly attended to
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`and states the court should determine whether the defendants deprived him of proper medical
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`treatment because they failed to adequately evaluate his head gunshot wounds. Finally, Wesley
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`states “gunshot wounds are considered serious, and require adequate and serious medical treatment.
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`In failing to evaluate the obvious, and depriving Mr. Wesley of medical treatment, which was clearly
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`needed upon the facts that plaintiff had suffered from multiple gunshot wounds to the head, lower
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`and upper body; there has never been any probable reason for denying plaintiff of health care.”
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`(Plaintiff’s Memorandum, docket no. 2, p. 7).
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`He offers no facts showing he was the victim of deliberate indifference to his serious medical
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`needs, much less that Dr. Shah was deliberately indifferent. He claims, in a conclusory manner, that
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 5 of 8 PageID #: 376
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`he was deprived of proper medical treatment. He does not point to anything Dr. Shah did or did not
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`do. Such conclusory allegations do not allow the Court to draw a reasonable inference that Dr. Shah
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`is liable for the misconduct alleged, nor do they state a claim for relief which is plausible on its face.
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`Rogers v. Boatwright, 709 F.3d 403, 407 (5th Cir. 2013); Bell Atlantic Corp. v. Twombly, 550 U.S.
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`544, 555, 127 S.Ct. 1955, 1965 (2007) (pleading offering only conclusions or “naked assertions
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`devoid of further factual enhancement” are insufficient). Although Wesley contends Dr. Shah failed
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`to show he provided proper medical care, the burden of proof rests upon him, not the defendant.
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`Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006).
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`The Magistrate Judge also considered Wesley’s medical records that he furnished with his
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`response to the motion to dismiss. These records show on November 24, 2013, Nurse Humphrey
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`contacted Dr. Shah about Wesley. She stated Wesley arrived at the facility after being released from
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`St. Michaels where he was treated for three gunshot wounds. A bullet was intact in his right side
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`due to being unremovable. Wesley had an intact dressing on his right side covering the chest tube
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`removal site, and the medication orders were for Lortab (a pain medication also known as
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`hydrocodone) and Lasix, a diuretic. Dr. Shah replied “cont all.”
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`On November 26, Nurse Humphrey advised Dr. Shah that Wesley came to the infirmary the
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`previous night complaining of shortness of breath. His lung sounds were clear but the right lobe had
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`slightly decreased sounds and Wesley stated the area around the right lobe was tender to auscultation.
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`He had also coughed up a small amount of blood. Dr. Shah ordered a chest X-ray, a complete blood
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`count, and a Z pack of antibiotics.
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`The next day, Nurse Humphrey asked Dr. Shah about pain medication for Wesley and the
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`doctor gave her an order for a pain medication called Tramadol for two weeks. Dr. Shah also stated
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`Wesley could have 400 mg of ibuprofen until the Tramadol came in.
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`The following day, Wesley was brought to the infirmary by Sgt. Jefferson and officers
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`Meredith and Austin. He was seen by Nurse Bowen, who observed a gunshot wound to his head,
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`his upper back (possibly exiting above the shoulder) and in his lower back. Wesley had a slight
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`5
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 6 of 8 PageID #: 377
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`cough but his lungs were clear to auscultation bilaterally. Nurse Humphrey noted they were waiting
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`on the U.S. Marshal to take Wesley for a chest X-ray. She told Wesley he could no longer have a
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`wheelchair because he needed to be up walking around, coughing and deep breathing, and Wesley
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`voiced understanding. He stated he was coughing up blood only in the evening and he had blood
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`in his urine the previous night. The nurse gave him a cup for a urine sample and he voiced
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`understanding. Nurse Bowen stated Wesley was in no apparent distress when talking to her.
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`The day after, November 29, Wesley was brought to the infirmary for an assessment of the
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`wound in his side, because the dressing had apparently come off in the shower. The stitches were
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`intact with no signs or symptoms of infection and there was no drainage of blood noted. Nurse
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`Humphrey told Wesley to leave the site open to air, as ordered by the doctor at St. Michaels when
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`he was discharged.
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`The next day, Wesley came to the medical department for a pill pass demanding to go to the
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`emergency room. Nurse Venable told him that he was not in any distress or in a medical crisis and
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`would not be going to the emergency room, and Wesley began yelling and demanding to see the
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`sergeant. He then left the medical department.
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`On December 2, Wesley complained of pain to the back of his head and was given a dose of
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`Tramadol. A lab draw was taken on December 4, and Wesley showed no signs of discomfort. On
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`December 5, the sutures to his right side were removed. No drainage was noted and the site was
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`healing. On December 15, 2013, Wesley was advised that his lab work and blood work was normal,
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`the gunshot wound to his head was a graze, and the hospital had determined the bullet in his lung
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`would not be removed.
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`All of the information in Wesley’s medical records refute his claim of deliberate indifference.
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`In fact, the records reveal Wesley received continuous medical attention. The bullet in his side was
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`deemed unremovable by the medical personnel at the hospital before Wesley arrived at the jail, and
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`Wesley’s disagreement with this determination does not amount to a constitutional claim. Dr. Shah
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`ordered antibiotics, blood tests, X-rays, and pain medication for Wesley. The fact Dr. Shah ordered
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 7 of 8 PageID #: 378
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`ibuprofen, a non-steroidal anti-inflammatory pain medication, and Tramadol, a narcotic analgesic,
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`instead of hydrocodone, another narcotic analgesic, does not show deliberate indifference. See, e.g.,
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`Burton v. Owens, 511 F.App’x 385, 2013 WL 586825 (5th Cir., February 14, 2013) (no deliberate
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`indifference where physician substituted ibuprofen in place of narcotic analgesic called Percocet);
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`Williams v. Bearry, 273 F.3d 1096, 2001 WL 1085197 (5th Cir., September 7, 2001) (no deliberate
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`indifference where unit physician discontinued a narcotic called Darvocet and substituted 600 mg
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`doses of ibuprofen); Alegria v. Pearson, 214 F.App’x 407, 2007 WL 129022 (5th Cir., January 16,
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`2007) (decision whether to administer Darvocet was a medical judgment, not deliberate indifference
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`to serious medical needs).
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`Wesley’s conclusory allegations of deliberate indifference by Dr. Shah do not allow the Court
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`to draw a reasonable inference that Dr. Shah is liable for the misconduct alleged, nor does he state
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`a claim for relief which is plausible on its face. Rogers, 709 F.3d at 407.
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`B. Qualified immunity
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`Wesley’s conclusory pleadings or objections do not overcome the defense of qualified
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`immunity. This defense shields government officials performing discretionary functions from
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`liability for civil damages insofar as their conduct does not violate clearly established statutory or
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`constitutional rights of which a reasonable person would have known. Luna v. Mullenix, 773 F.3d
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`712, 718 (5th Cir. 2014).
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`After the defendant properly invokes qualified immunity, the plaintiff bears the burden to
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`rebut its applicability. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). In order to abrogate
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`a public official's right to qualified immunity, the plaintiff must show the official's conduct violated
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`a constitutional or statutory right and the official's actions constituted objectively unreasonable
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`conduct in the light of clearly established law at the time of the conduct in question. Id. The Fifth
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`Circuit has stated “theory, speculation, and mere conclusory allegations” are not sufficient to
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`discharge a plaintiff’s burden of overcoming the defense of qualified immunity. Lockamy v. Dunbar,
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`No. 10-40126, 399 F.App’x 953, 2010 WL 4272588 (5th Cir., October 29, 2010), citing Michalik
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`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 8 of 8 PageID #: 379
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`v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Wesley has failed to meet his burden, and his
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`objections are without merit.
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`The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
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`proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
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`(district judge shall “make a de novo determination of those portions of the report or specified
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`proposed findings or recommendations to which objection is made.”) Upon such de novo review,
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`the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
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`objections are without merit. It is accordingly
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`ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
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`Judge (docket no. 43) is ADOPTED as the opinion of the District Court, except that the Court has
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`determined, in the interest of justice, the dismissal of Dr. Shah should be without prejudice. It is
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`further
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`ORDERED that the motion to dismiss of the Defendant Dr. Shah is GRANTED, except as
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`set out above, and the Plaintiff’s claims against Dr. Shah are DISMISSED without prejudice. Dr.
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`Shah is hereby terminated as a party to this lawsuit. Finally, it is
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`ORDERED that the motion of the Defendant Dr. Shah for leave to file an amended answer
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`(docket no. 39) is GRANTED. The Clerk shall file Dr. Shah’s amended answer on the docket of this
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`cause.
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`8
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`.
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`SIGNED this 4th day of August, 2015.