Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 1 of 8 PageID #: 372
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF TEXAS
`
`TEXARKANA DIVISION
`
`KAIVEN WESLEY
`
` §
`
`v.
`
` § CIVIL ACTION NO. 5:14cv46
`
`BOWIE COUNTY, ET AL.
`
` §
`
`MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
`OF THE UNITED STATES MAGISTRATE JUDGE
`ON DEFENDANT DR. SHAH’S MOTION TO DISMISS
`
`The Plaintiff Kaiven Wesley, proceeding pro se, filed this civil rights lawsuit complaining
`
`of alleged violations of his constitutional rights during his confinement in the Bowie County Jail.
`
`This Court ordered the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C.
`
`§636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of
`
`Duties to United States Magistrate Judges.
`
`I. The Plaintiff’s Complaint
`
`Wesley complains he was denied proper medical care at the Bowie County Jail for gunshot
`
`wounds he suffered. He states prior to entering the jail, he was diagnosed with a “grazed head
`
`gunshot wound” at a hospital facility. After he came into the jail, a separate and individual
`
`evaluation was supposed to have been done to determine the extent of his medical needs and whether
`
`“the initial information regarding Mr. Wesley’s gunshot wounds had been properly evaluated.” Had
`
`this been done, Wesley states the Defendants would have learned his injury was not a “grazed
`
`wound” but an “actual gunshot wound where a bullet had entered and exited Mr. Wesley’s head.”
`
`Wesley argues the failure by the Defendants to factually evaluate the circumstances of his
`
`wound caused him to suffer extreme pain as a result of the lack of proper medical treatment. He
`
`continuously filed grievances seeking medical care; Wesley states gunshot wounds are considered
`
`serious, but there was never any reason for denying him medical care and treatment. For relief, he
`
`1
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 2 of 8 PageID #: 373
`
`asks for one dollar in nominal damages, $50,000.00 per defendant in compensatory damages, and
`
`$1 million per defendant in punitive damages.
`
`II. Dr. Shah’s Motion to Dismiss
`
`One of the named Defendants, Dr. Jagdish Shah, filed a motion to dismiss the complaint
`
`against him. Dr. Shah argued Wesley did not allege any facts showing deliberate indifference and
`
`Wesley’s pleadings fail to identify Dr. Shah’s involvement in his care, much less how such
`
`involvement amounted to deliberate indifference. Instead, Wesley pleaded only conclusory
`
`allegations which fail to show a plausible right to relief. Dr. Shah also invoked the defense of
`
`qualified immunity.
`
`In response to the motion to dismiss, Wesley argued Dr. Shah made a jury demand in his
`
`answer, showing an agreement between the parties that a jury trial is requested. He asks the Court
`
`to “instruct the parties to enter proceedings to determine if a settlement is possible.” Wesley states
`
`he had a bullet lodged in his lung and was prescribed a pain reliever called hydrocodone, which was
`
`never provided; instead, he was given aspirin, which Wesley claims is an example of the inadequate
`
`medical care provided.
`
`III. The Report and Recommendation
`
`After review of the pleadings, the Magistrate Judge issued a Report recommending Dr.
`
`Shah’s motion to dismiss be granted. The Magistrate Judge observed that Wesley’s pleadings, taken
`
`as true, must raise a right to relief above the speculative level; in other words, he must plead factual
`
`content allowing the court to draw a reasonable inference that Dr. Shah is liable for the misconduct
`
`alleged. Such pleading must involve more than a sheer possibility of unlawful conduct. Ashcroft
`
`v. Iqbal, 566 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009).
`
`However, Wesley’s pleadings, including his response to the motion to dismiss, failed to
`
`satisfy this standard. While he names Dr. Shah as a defendant in his lawsuit, his complaint and
`
`supporting memorandum do not otherwise mention the doctor at all. The medical records which
`
`Wesley attaches to his response to the motion to dismiss do not show Wesley was the victim of
`
`2
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 3 of 8 PageID #: 374
`
`deliberate indifference; on the contrary, these show he received a considerable amount of medical
`
`care, including examinations, sutures, medications, X-rays, and a CT scan. These medical records
`
`also show Wesley’s gunshot wound to the head was a scalp wound with no intra-cranial injury,
`
`described by the hospital in Michigan as a “superficial scalp wound.” Even considering these
`
`medical records as part of Wesley’s pleadings, the Magistrate Judge stated, they did not set out a
`
`facially plausible claim against Dr. Shah. Wesley’s disagreement with the medication he received
`
`did not show deliberate indifference to his serious medical needs even assuming Dr. Shah was
`
`responsible for the change in medication, which Wesley does not allege. The Magistrate Judge also
`
`concluded Dr. Shah is entitled to qualified immunity.
`
`IV. The Plaintiff’s Objections (docket no. 46)
`
`In his objections, Wesley states Dr. Shah does not dispute he had other gunshot wounds,
`
`besides his head wound, and “other than the question of deliberate indifference, no dispute arises
`
`from defendant Shah that Mr. Wesley, because he had a serious gunshot wound to his head, and
`
`gunshot wounds to his lower body, that his medical needs were critical and required particular kinds
`
`of medical treatment to address those circumstances regarding plaintiff’s serious medical condition.”
`
`(Plaintiff’s Objections, ECF TXED 5:14-cv-46, 46, 2). He asserts the Magistrate Judge’s Report
`
`only discusses his head wound and states “when determining whether deliberate indifference is a
`
`factor to dismiss a defendant from the basis of a plaintiff’s civil rights complaint, the court must
`
`determine if plaintiff required serious medical treatment and if so, were these needs properly met and
`
`if not, the standard of deliberate indifference to dismiss the suit has not been met.” (Plaintiff’s
`
`Objections, id., p. 2).
`
`Wesley states gunshot wounds are considered serious, citing other cases in which persons
`
`died from gunshot wounds. He contends he had gunshot wounds in which bullets had entered his
`
`body, but these are not discussed in the motion to dismiss or the Magistrate Judge’s Report. Wesley
`
`states these wounds “could have been fatal had he not received the kind of medical treatment needed
`
`while in the hospital, prior to being moved to the county jail.” (Plaintiff’s Objections, id., p. 3).
`
`3
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 4 of 8 PageID #: 375
`
`Wesley goes on to assert “there is nothing in [the] record that provides defendant’s motion
`
`to dismiss should be granted because defendant Dr. Shah has not shown that plaintiff’s gunshot
`
`wounds were being properly treated, as there is no record factually showing the kind of treatment
`
`that plaintiff received, was consist [sic] with all other inmates that may have received medical
`
`treatment in Bowie County, for gunshot wounds while in custody.” (Plaintiff’s Objections, id., p.
`
`4). He also states nothing in the record indicates any reason for taking away the medication
`
`prescribed for him in the hospital. Wesley asserts Dr. Shah “does not demonstrate that deliberate
`
`indifference did not occur.” (Plaintiff’s Objections, id., p. 5). The Court will conduct a de novo
`
`review of the Report and Recommendation in light of the Plaintiff’s objections.
`
`V. Analysis
`
`A. Deliberate indifference
`
`In his complaint and memorandum in support, Wesley focuses on his head wound and he also
`
`refers to other gunshot wounds. On page 3 of his memorandum, he states “medical treatment which
`
`plaintiff Wesley adequately argues that he was denied, is based on a fundamental fact, that during
`
`being placed in the custody of defendant(s) care, defendant(s) failed to properly evaluate his medical
`
`circumstances regarding his gunshot wounds to his head, upper and lower body.” He goes on to
`
`discuss the failure to evaluate the fact his gunshot wound to the head was not properly attended to
`
`and states the court should determine whether the defendants deprived him of proper medical
`
`treatment because they failed to adequately evaluate his head gunshot wounds. Finally, Wesley
`
`states “gunshot wounds are considered serious, and require adequate and serious medical treatment.
`
`In failing to evaluate the obvious, and depriving Mr. Wesley of medical treatment, which was clearly
`
`needed upon the facts that plaintiff had suffered from multiple gunshot wounds to the head, lower
`
`and upper body; there has never been any probable reason for denying plaintiff of health care.”
`
`(Plaintiff’s Memorandum, docket no. 2, p. 7).
`
`He offers no facts showing he was the victim of deliberate indifference to his serious medical
`
`needs, much less that Dr. Shah was deliberately indifferent. He claims, in a conclusory manner, that
`
`4
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 5 of 8 PageID #: 376
`
`he was deprived of proper medical treatment. He does not point to anything Dr. Shah did or did not
`
`do. Such conclusory allegations do not allow the Court to draw a reasonable inference that Dr. Shah
`
`is liable for the misconduct alleged, nor do they state a claim for relief which is plausible on its face.
`
`Rogers v. Boatwright, 709 F.3d 403, 407 (5th Cir. 2013); Bell Atlantic Corp. v. Twombly, 550 U.S.
`
`544, 555, 127 S.Ct. 1955, 1965 (2007) (pleading offering only conclusions or “naked assertions
`
`devoid of further factual enhancement” are insufficient). Although Wesley contends Dr. Shah failed
`
`to show he provided proper medical care, the burden of proof rests upon him, not the defendant.
`
`Gobert v. Caldwell, 463 F.3d 339, 349 (5th Cir. 2006).
`
`The Magistrate Judge also considered Wesley’s medical records that he furnished with his
`
`response to the motion to dismiss. These records show on November 24, 2013, Nurse Humphrey
`
`contacted Dr. Shah about Wesley. She stated Wesley arrived at the facility after being released from
`
`St. Michaels where he was treated for three gunshot wounds. A bullet was intact in his right side
`
`due to being unremovable. Wesley had an intact dressing on his right side covering the chest tube
`
`removal site, and the medication orders were for Lortab (a pain medication also known as
`
`hydrocodone) and Lasix, a diuretic. Dr. Shah replied “cont all.”
`
`On November 26, Nurse Humphrey advised Dr. Shah that Wesley came to the infirmary the
`
`previous night complaining of shortness of breath. His lung sounds were clear but the right lobe had
`
`slightly decreased sounds and Wesley stated the area around the right lobe was tender to auscultation.
`
`He had also coughed up a small amount of blood. Dr. Shah ordered a chest X-ray, a complete blood
`
`count, and a Z pack of antibiotics.
`
`The next day, Nurse Humphrey asked Dr. Shah about pain medication for Wesley and the
`
`doctor gave her an order for a pain medication called Tramadol for two weeks. Dr. Shah also stated
`
`Wesley could have 400 mg of ibuprofen until the Tramadol came in.
`
`The following day, Wesley was brought to the infirmary by Sgt. Jefferson and officers
`
`Meredith and Austin. He was seen by Nurse Bowen, who observed a gunshot wound to his head,
`
`his upper back (possibly exiting above the shoulder) and in his lower back. Wesley had a slight
`
`5
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 6 of 8 PageID #: 377
`
`cough but his lungs were clear to auscultation bilaterally. Nurse Humphrey noted they were waiting
`
`on the U.S. Marshal to take Wesley for a chest X-ray. She told Wesley he could no longer have a
`
`wheelchair because he needed to be up walking around, coughing and deep breathing, and Wesley
`
`voiced understanding. He stated he was coughing up blood only in the evening and he had blood
`
`in his urine the previous night. The nurse gave him a cup for a urine sample and he voiced
`
`understanding. Nurse Bowen stated Wesley was in no apparent distress when talking to her.
`
`The day after, November 29, Wesley was brought to the infirmary for an assessment of the
`
`wound in his side, because the dressing had apparently come off in the shower. The stitches were
`
`intact with no signs or symptoms of infection and there was no drainage of blood noted. Nurse
`
`Humphrey told Wesley to leave the site open to air, as ordered by the doctor at St. Michaels when
`
`he was discharged.
`
`The next day, Wesley came to the medical department for a pill pass demanding to go to the
`
`emergency room. Nurse Venable told him that he was not in any distress or in a medical crisis and
`
`would not be going to the emergency room, and Wesley began yelling and demanding to see the
`
`sergeant. He then left the medical department.
`
`On December 2, Wesley complained of pain to the back of his head and was given a dose of
`
`Tramadol. A lab draw was taken on December 4, and Wesley showed no signs of discomfort. On
`
`December 5, the sutures to his right side were removed. No drainage was noted and the site was
`
`healing. On December 15, 2013, Wesley was advised that his lab work and blood work was normal,
`
`the gunshot wound to his head was a graze, and the hospital had determined the bullet in his lung
`
`would not be removed.
`
`All of the information in Wesley’s medical records refute his claim of deliberate indifference.
`
`In fact, the records reveal Wesley received continuous medical attention. The bullet in his side was
`
`deemed unremovable by the medical personnel at the hospital before Wesley arrived at the jail, and
`
`Wesley’s disagreement with this determination does not amount to a constitutional claim. Dr. Shah
`
`ordered antibiotics, blood tests, X-rays, and pain medication for Wesley. The fact Dr. Shah ordered
`
`6
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 7 of 8 PageID #: 378
`
`ibuprofen, a non-steroidal anti-inflammatory pain medication, and Tramadol, a narcotic analgesic,
`
`instead of hydrocodone, another narcotic analgesic, does not show deliberate indifference. See, e.g.,
`
`Burton v. Owens, 511 F.App’x 385, 2013 WL 586825 (5th Cir., February 14, 2013) (no deliberate
`
`indifference where physician substituted ibuprofen in place of narcotic analgesic called Percocet);
`
`Williams v. Bearry, 273 F.3d 1096, 2001 WL 1085197 (5th Cir., September 7, 2001) (no deliberate
`
`indifference where unit physician discontinued a narcotic called Darvocet and substituted 600 mg
`
`doses of ibuprofen); Alegria v. Pearson, 214 F.App’x 407, 2007 WL 129022 (5th Cir., January 16,
`
`2007) (decision whether to administer Darvocet was a medical judgment, not deliberate indifference
`
`to serious medical needs).
`
`Wesley’s conclusory allegations of deliberate indifference by Dr. Shah do not allow the Court
`
`to draw a reasonable inference that Dr. Shah is liable for the misconduct alleged, nor does he state
`
`a claim for relief which is plausible on its face. Rogers, 709 F.3d at 407.
`
`B. Qualified immunity
`
`Wesley’s conclusory pleadings or objections do not overcome the defense of qualified
`
`immunity. This defense shields government officials performing discretionary functions from
`
`liability for civil damages insofar as their conduct does not violate clearly established statutory or
`
`constitutional rights of which a reasonable person would have known. Luna v. Mullenix, 773 F.3d
`
`712, 718 (5th Cir. 2014).
`
`After the defendant properly invokes qualified immunity, the plaintiff bears the burden to
`
`rebut its applicability. Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008). In order to abrogate
`
`a public official's right to qualified immunity, the plaintiff must show the official's conduct violated
`
`a constitutional or statutory right and the official's actions constituted objectively unreasonable
`
`conduct in the light of clearly established law at the time of the conduct in question. Id. The Fifth
`
`Circuit has stated “theory, speculation, and mere conclusory allegations” are not sufficient to
`
`discharge a plaintiff’s burden of overcoming the defense of qualified immunity. Lockamy v. Dunbar,
`
`No. 10-40126, 399 F.App’x 953, 2010 WL 4272588 (5th Cir., October 29, 2010), citing Michalik
`
`7
`
`

`
`Case 5:14-cv-00046-RWS-CMC Document 58 Filed 08/04/15 Page 8 of 8 PageID #: 379
`
`v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Wesley has failed to meet his burden, and his
`
`objections are without merit.
`
`The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
`
`proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
`
`(district judge shall “make a de novo determination of those portions of the report or specified
`
`proposed findings or recommendations to which objection is made.”) Upon such de novo review,
`
`the Court has determined that the Report of the Magistrate Judge is correct and the Plaintiff’s
`
`objections are without merit. It is accordingly
`
`ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
`
`Judge (docket no. 43) is ADOPTED as the opinion of the District Court, except that the Court has
`
`determined, in the interest of justice, the dismissal of Dr. Shah should be without prejudice. It is
`
`further
`
`ORDERED that the motion to dismiss of the Defendant Dr. Shah is GRANTED, except as
`
`set out above, and the Plaintiff’s claims against Dr. Shah are DISMISSED without prejudice. Dr.
`
`Shah is hereby terminated as a party to this lawsuit. Finally, it is
`
`ORDERED that the motion of the Defendant Dr. Shah for leave to file an amended answer
`
`(docket no. 39) is GRANTED. The Clerk shall file Dr. Shah’s amended answer on the docket of this
`
`cause.
`
`8
`
`.
`
`
`
`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
`
`SIGNED this 4th day of August, 2015.