Opinion
Civil Action 2:21-CV-00150
11-22-2021
JOHNNY LEE DAVIS, Plaintiff, v. LANETTE LINTHICUM, et al., Defendants.
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE
Pending before the Court is Plaintiff Johnny Lee Davis's amended complaint (D.E. 12) for initial screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. §§1915(e)(2), 1915A. On September 2, 2021, United States Magistrate Judge Julie K. Hampton issued a Memorandum and Recommendation to Dismiss Certain Claims and to Retain Case (M&R, D.E. 13). Plaintiff timely filed his initial objections (D.E. 19) on September 17, 2021. See D.E. 18 (receipt of service showing M&R received on September 16, 2021). He timely filed additional objections (D.E. 20)on September 20, 2021.
While Plaintiff entitled his filing “amended objections, ” they pertain to separate subject matter and are additional. 1 / 4 2 /
In his first set of objections, Plaintiff complains of the Magistrate Judge's recommendation to dismiss claims against TDCJ Medical Director Lannette Linthicum and Medical Complaints Coordinator Tanya Lawson. He argues that Linthicum and Lawson were responsible for a failure to implement TDCJ's new dental policy. As the M&R explains, Linthicum and Lawson were not directly involved in providing medical care to Plaintiff. Plaintiff has not alleged sufficient facts to show their deliberate indifference to his medical needs.
DDS J. Boston is the appropriate Defendant in this deliberate indifference claim as he is the one alleged to have provided, or failed to provide, medical care. The M&R identifies DDS J. Boston as the physician who can be compelled to provide dental care and dentures in the event that Plaintiff prevails. D.E. 13, p. 12. Plaintiff's objections fail to address the reasoning behind the M&R's recommendations. Plaintiff has failed to demonstrate any legal or factual error in the dismissal of claims against Linthicum and Lawson. The Court OVERRULES the first set of objections.
In his second set of objections, Plaintiff objects to the M&R's “side note” dismissing Defendants Dr. Isaac K. Kwarteng and Physician Assistant (PA) Erick Echavarry from claims related to treatment of Plaintiff's Hepatitis C Virus (HCV) condition. Plaintiff contends that they are essential Defendants to that claim, which is to be filed in a separate action. Plaintiff misunderstands the Magistrate Judge's recommendation. The recommendation is that they be dismissed without prejudice from this action, which has no effect on any other action Plaintiff may file with respect to his HCV complaints. Because Plaintiff is free to bring any claims he may have against Defendants Kwarteng and Echavarry in a separate action, his objections are OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations set forth in the Magistrate Judge's Memorandum and Recommendation, as well as Plaintiff's objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of the Magistrate Judge's Memorandum and Recommendation to which objections were specifically directed, the Court OVERRULES Plaintiff's objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge.
Accordingly, the Court RETAINS the claims for deliberate indifference and for injunctive relief against Defendant DDS J. Boston in his individual and official capacities. The Court further:
(1) DISMISSES WITHOUT PREJUDICE Plaintiff's deliberate indifference claims related to his Hepatitis C treatment against Medical Director Linthicum, Warden Castro, Senior Practice Manager Lawson, Dr. Kwarteng, and PA Erick Echavarry;
(2) DISMISSES WITHOUT PREJUDICE Defendants Kwarteng and Echavarry from this action;
(3) DISMISSES WITH PREJUDICE Plaintiff's claims for money damages against Defendants Linthicum, Castro, Lawson, and Boston in their official capacities as barred by the Eleventh Amendment;
(4) DISMISSES WITH PREJUDICE Plaintiff's claims against the TDCJ and the UTMB as barred by the Eleventh Amendment; and
(5) DISMISSES WITH PREJUDICE Plaintiff's claims against the remaining Defendants for failure to state a claim and/or as frivolous pursuant to §§ 1915(e)(2)(B) and 1915A(b)(1).
ORDERED on November 22, 2021.