Opinion
No. 2:03-CV-0312.
March 3, 2005
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND TO DENY PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
On this day came for consideration the May 19, 2004, Motion for Summary Judgment with supporting Brief and Appendix, filed by defendants in the above-referenced and numbered cause. Plaintiff filed his response on June 9, 2004 and filed a Motion for Partial Summary Judgment with supporting memorandum on September 10, 2004.
UNDISPUTED FACTS
Plaintiff, appearing pro se, filed this suit while a prisoner in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), and was incarcerated at the Dalhart Unit during the events giving rise to this lawsuit. Defendant Dr. DAVID BASSE is a physician and Unit Health Authority at the Dalhart Unit who is contracted through Texas Tech University Health Sciences Center to provide medical care to inmates of the Dalhart Unit. Defendant PATRICE MAXEY is a registered nurse and Health Care Administrator at the Dalhart Unit who is employed by Coon Memorial Hospital and contracted onsite through Texas Tech University Health Sciences Center to provide medical care to inmates housed at the Dalhart Unit. Defendant WILLIAM GONZALEZ is a medical director at Texas Tech University Health Sciences Center who oversees the provision of medical care by contract care providers at the Dalhart Unit and elsewhere.
PLAINTIFF'S CLAIMS
By his January 23, 2004 Amended Complaint, plaintiff claims the defendants have been deliberately indifferent to his serious medical need for Accutane to treat Keloids on his scalp, a condition he has suffered since 1997 and which has persisted despite treatment with several types of antibiotics. Plaintiff also claims defendants were deliberately indifferent to his need for treatment of associated pain and the side effects of the prescribed treatment. Plaintiff alleges that, on October 3, 2002, he saw defendant Dr. BASSE who diagnosed Keloid Acne all over plaintiff's scalp with draining infection. Plaintiff says he told BASSE previous treatments of this condition with Tetracycline, Clindamycin, Bactrin, and Doxycycline were ineffective and caused severe side effects, including massive diarrhea, loss of appetite, and vomiting. Nevertheless, plaintiff says, defendant BASSE prescribed Tetracycline, causing plaintiff to suffer vomiting and loss of appetite and resulting in weight loss from 260 to 196 lbs. Plaintiff was also removed from his educational courses because defendants BASSE and MAXEY, who were "made aware" of plaintiff's diarrhea, did not give him medical authorization for frequent access to the restroom during school hours. Plaintiff also states defendants BASSE and MAXEY were "made aware by Medical personel and the plaintiff's medical records" that plaintiff wept on March 15, 2003 because of his pain from the Keloids and that, after plaintiff's complaints of pain to BASSE and MAXEY, they refused to treat his pain. Plaintiff alleges defendant BASSE referred plaintiff to a dermatologist after several months of ineffective treatment. Plaintiff says his complaint to defendant GONZALEZ receive a response that the advice of the dermatologist would be followed.
p. 20 of Defendants' May 19, 2004 Appendix to Motion for Summary Judgment, at entry dated March 24, 2003.
Although plaintiff pleads he was "removed," it is not clear whether he was failed in his classes, was involuntarily removed or terminated by administrative action, or voluntarily withdrew from the education program.
On April 24, 2003, a dermatologist, Dr. Manning, recommended Tetracycline and Rifampin for plaintiff's Keloids. Plaintiff says he informed Dr. Manning that he had experienced adverse reactions to earlier treatment whereupon, he says, Manning changed his recommendation to Accutane. Plaintiff states that, in order to save money, the defendants failed to treat him with Accutane but, provided plaintiff with a large dosage of Clindamycin, burning plaintiff's hair from his head and causing extreme pain. Defendants BASSE and MAXEY then denied plaintiff any treatment for this pain.
Plaintiff requests injunctive relief in the form of a court order that the defendants arrange for plaintiff to be examined by a qualified physician for his Keloids or be provided the treatment previously prescribed by Dr. Manning, compensatory and punitive damages for the defendants' failure to provide the treatment recommended by the dermatologist, failure to treat plaintiff's severe pain, failure to treat plaintiff's reactions to the antibiotic treatment they administered, and for their grossly inadequate treatment of his keloids which caused hair loss.
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Defendants argue plaintiff's claim against defendant GONZALEZ in his official capacity is barred by the Eleventh Amendment and because plaintiff has failed to show any personal involvement by defendant GONZALEZ. Defendants also argue plaintiff has not demonstrated deliberate indifference by any defendant and has not overcome their entitlement to qualified immunity.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
Plaintiff argues the evidence of record shows defendants BASSE and MAXEY displayed deliberate indifference to his serious medical need by failing to treat the pain caused by his Keloid condition.
THE STANDARD OF SUMMARY JUDGMENT REVIEW
Summary judgment may be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c). Consequently, after adequate time for discovery and upon motion, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party bears the burden of proof. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Because the consequences of summary judgment are so severe, the court must be careful to avoid premature termination of legitimate lawsuits merely because of unskilled presentations. Murrell v. Bennett, 615 F.2d 306 (5th Cir. 1980). In determining a movant's request for summary judgment, all reasonable inferences must be made in favor of the party opposing the motion. Phillip's Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987). Only disputes of facts that could affect the outcome of the suit at trial will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
A complete failure of proof concerning an essential element of the nonmoving party's case is fatal and entitles the moving party to judgment as a matter of law. Celotex v. Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Upon such a showing, the burden of production shifts to the nonmovant to delineate specific facts which demonstrate the presence of a genuine issue of material fact. Id.; Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 435 (5th Cir. 1992). A motion for judgment as a matter of law is properly granted when the facts and inferences point so strongly in favor of the movant that a rational jury could not arrive at a contrary verdict. If there is substantial evidence, that is, evidence of such quality and weight that reasonable and fair-minded jurors might reach a different conclusion, then the motion for judgment as a matter of law should be denied. Waymire v. Harris County, Texas, 86 F.3d 424, 427 (5th Cir. 1996).
THE STANDARD OF SUMMARY JUDGMENT REVIEW UPON A PLEA OF QUALIFIED IMMUNITY
Since qualified immunity depends on whether the defendant violated a clearly established constitutional right, a preliminary inquiry must be made whether the plaintiff has asserted a violation of any constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Analysis at this stage is performed under the "currently applicable constitutional standards." Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993).
If the initial inquiry is satisfied, the second prong of the qualified immunity test must be considered: whether the constitutional right alleged to have been violated was clearly established at the time of the incident; and, if so, whether the conduct of the defendant was objectively unreasonable in light of contemporaneous clearly-established law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998). Although analysis under the first prong requires the court to consider currently applicable constitutional standards, analysis under the second prong requires a court to measure the objective reasonableness of an official's conduct with reference to the law as it existed at the time of the conduct in question. Id. (citing Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993).
Although it may be "difficult to imagine factual circumstances in which a trier of fact could find deliberate indifference as defined by Farmer and nevertheless conclude that a reasonable person in defendant's position was not chargeable with knowledge that his or her actions violated the plaintiff's clearly established constitutional rights," in analyzing a claim of qualified immunity, the test is objective reasonableness, not subjective deliberate indifference. Hare v. City of Corinth, 135 F.3d 320, 328 (1998) (quoting Briecke v. Coughlin, No. 92-CV-1211, 1994 WL 705328 at 6 (N.D.N.Y.Dec. 16, 1994). Consequently, at the qualified immunity stage, the deliberate indifference standard only allows an examination of whether, under the standard not to be deliberately indifferent, the acts or omissions of the defendant were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998).
Deliberate indifference is defined as a failure to act where prison officials have knowledge of a substantial risk of serious harm to inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994).
ANALYSIS OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The appropriate definition of "deliberate indifference" under the Eighth Amendment is "subjective recklessness as used in the criminal law." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1980, 128 L.Ed.2d 811 (1994); Reeves v. Collins, 27 F.3d. 174 (5th Cir. 1994). In this regard the Supreme Court has cautioned:
[A] prison official cannot be found liable under the Eighth Amendment . . . unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Farmer v. Brennan, 511 U.S. at 837-38, 114 S.Ct. at 1979. It is only under exceptional circumstances that a prison official's knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk.
Defendant BASSE
Plaintiff's primary claim against defendant BASSE involves a question of whether the consulting dermatologist recommended only treatment with Accutane or recommended two alternate treatment regimens, with the selection to be made by plaintiff's treating physician, Dr. BASSE. Defendants have presented plaintiff's medical record of the telemed consult showing the dermatologist recommended two options: (1) a continuation of treatment with Tetracycline 500 mg. Bid and Benzoyl Peroxide 5% gel Bid, with the addition of Rifampin 300 mg. Qd or (2) Accutane 80 mg. Qd. [p. 1 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment]. Defendants have also presented the Affidavits of defendant BASSE and defendant MAXEY, both of whom plaintiff agrees attended the telemed consult, averring that the dermatologist recommended these two options [pp. 133 and 137, respectively, Defendants' May 19, 2004 Appendix to Motion for Summary Judgment].
Plaintiff asserts the dermatologist recommended Accutane but discussed the risks of both that and the Tetracycline/Rifampin combination treatment option. Given these facts, it appears plaintiff's facts, at best, support a claim of mistake or negligence; however, "negligent medical care does not constitute a valid section 1983 claim." Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Plaintiff's position has consistently been that the dermatologist "gave specific instruction to Dr. Basse to give [plaintiff] [Accutane]" [p. 4 of plaintiff's original complaint]. Plaintiff further "denies that the antibiotics [he has been treated with] had any positive effects on his Keloid condition" [p. 9 of plaintiff's June 9, 2004, Response to Defendant's Motion for Summary Judgment], despite the observations of both MAXEY and BASSE, contained in plaintiff's medical records, noting a marked improvement [pp. 7, 134, 137 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment]. Nevertheless, these issues of fact are not material because a disagreement with a doctor over the method and result of medical treatment does not require a finding of deliberate indifference. Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). "Material facts" are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Gutierrez v. City of San Antonio, 139 F.3d 441, 444 (5th Cir. 1998). Even if the dermatologist narrowed his recommendation solely to Accutane, Dr. BASSE could reasonably conclude the Tetracycline/Rifampin combination was an acceptable alternative and decide to treat plaintiff for any side effects from this treatment. Merely alleging that a prison doctor should have undertaken additional diagnostic measures or utilized an alternative method of treatment does not elevate a claim to constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991). By the record evidence, plaintiff has failed to show defendant BASSE was deliberately indifferent to his medical needs. Further, plaintiff has failed to show that, under the standard not to be deliberately indifferent, the acts or omissions of defendant BASSE were objectively unreasonable as a matter of law. Hare v. City of Corinth, 135 F.3d 320, 328 (1998).
Defendants note, and plaintiff agrees, that BASSE submitted a request for the non-formulary medication, Accutane, but the request was rejected by the Pharmacy with a notation to try the Tetracycline/Rifampin combination first. BASSE could have pursued the matter by contacting the Regional Physician, or Regional Medical Director, to request the nonformulary approval, but defendants do not contend that he took this further step.
Defendant MAXEY
Defendants argue the record evidence shows defendant MAXEY was not deliberately indifferent to plaintiff's medical needs or his complaints of pain and is entitled to qualified immunity against plaintiff's claims.
Plaintiff responds he told MAXEY of his pain every time he saw her and that she failed to treat it. He also contends MAXEY, after being present at the Telemed conference, failed to ensure that he received the Accutane he states the dermatologist recommended.
Defendants have presented defendant MAXEY's affidavit by which she avers her primary responsibility is helping prisoners with complaints and concerns about their health care by "consulting with [them] about their health care, and ensuring they have the tools necessary to pursue formal action/remedies." [p. 136 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment]. In addition, defendant MAXEY avers that, although she does conduct physical examinations, she does not administer treatment or make any changes to treatment previously ordered by the unit physician [p. 136 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment].
Plaintiff contends that MAXEY has stipulated she is a Registered Nurse and that, in her response to Interrogatory No. 2, she admitted she had the authority to provide plaintiff medication to alleviate pain, such as Ibuprofen. Although plaintiff states the interrogatories were filed on May 24, 2004, there are no interrogatories or responses of record. Further, if plaintiff submitted interrogatories and received a response, it was his responsibility to attach to his summary judgment response a copy of the interrogatory responses on which he relied or to identify their precise location in the record by identifying the pleading to which they were attached and their location in that pleading. Plaintiff has not done so.
The uncontradicted summary judgment evidence of record shows that defendant MAXEY is a Registered Nurse who assists inmates in handling their complaints about medical care and does not treat them herself or change physician-ordered treatment. Plaintiff does not challenge MAXEY's assertion that she referred him for an examination with a unit doctor after each consultation with him. Further, plaintiff does not allege any fact known to MAXEY which would indicate he was in substantial danger of serious harm as a result of his treatment by BASSE, much less that she inferred the existence of such danger and ignored it.
Moreover, defendant does not challenge MAXEY's statement that she recommended to Dr. BASSE that he consider making a dermatology referral for plaintiff. In light of the foregoing, it is clear that defendant MAXEY's actions were both objectively reasonable and the record does not support a claim of deliberate indifference by MAXEY to plaintiff's serious medical need.
PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND REMAINING CLAIMS CONCERNING TREATMENT
Plaintiff contends defendants BASSE and MAXEY failed to treat the side effects of the Tetracycline/Rifampin combination therapy, that is, nausea, vomiting with associated weight loss; failed to treat plaintiff for his hair loss and burning sensation caused by the Clindamycin; and failed to treat plaintiff's pain caused by his Keloid condition. A review of plaintiff's grievances does not reveal any step 2 grievance focusing on the failure by either defendant to treat pain or failure to treat any side effects associated with the antibiotics prescribed for plaintiff. Instead, plaintiff's grievances focus on the treatment of his Keloid condition and the failure to prescribe him Accutane. Moreover, plaintiff, himself, recounts that, when he complained of vomiting caused by Clindamycin, Dr. BASSE wanted him to take a dose and remain for observation so his complaints could be verified. Plaintiff refused. Further, even plaintiff's periodic requests for treatment addressed to these defendants appear to focus on his Keloid condition and desire for Accutane.Title 42, United States Code, 1997e(a), as amended by Section 803 of the Prison Litigation Reform Act of 1995, provides that "[n]o action shall be brought with respect to prison conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." In determining whether a grievance is sufficiently detailed to exhaust administrative remedies with respect to a particular claim, the Court interprets the exhaustion requirement in light of its purposes, which include the goal of giving officials "time and opportunity to address complaints internally." Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 525, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). Thus, the amount of information necessary depends on the type of problem being grieved; and a grievance is sufficient if it gives officials a fair opportunity to address the problem that will later form the basis of the lawsuit. Id. In their responses, officials addressed plaintiff's complaints concerning the antibiotic treatment, but did not address any failure to treat pain or nausea, vomiting, and hair loss. Plaintiff's grievances did not inform officials he was grieving the failure to treat his pain and nausea, etc., separate from the treatment of his Keloids. Plaintiff's grievances are not sufficient to exhaust administrative remedies for these claims.
Moreover, even if plaintiff had exhausted administrative remedies, there is no evidence of a refusal to treat by defendants. When plaintiff complained of pain to BASSE on January 23, 2003, he ran out of Dr. BASSE's office, terminating treatment even though BASSE was injecting his Keloids with steroids at that time, as well as trying to express one so it could be cultured [p. 25 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment]. When plaintiff complained in writing of pain to defendant MAXEY on March 4, 2003, she saw him the very next day, but could not get him to agree to see the doctor [p. 24 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment]. Nevertheless, she did what she could for him by taking a culture of the pus from a Keloid and making a request to defendant BASSE to consider a dermatological consult. Plaintiff's complaints of pain and unpleasant side effects of medication contained in his grievances were peripheral to plaintiff's complaints that his Keloid condition was not being properly treated. Further, these grievances were not directed to a medical care provider and the responses were not refusals of treatment for these conditions. Lastly, some of these grievances were submitted while plaintiff was refusing medical care.
Although plaintiff clearly suffers from what appears to be an uncomfortable condition, is frustrated with it, and is dissatisfied with the treatment he has received, the Court notes that plaintiff was informed, at least by July of 2002, several months before his arrival at the Dalhart Unit, that no treatment is highly effective and that Keloids are essentially a cosmetic problem unless they become infected [p. 38 Defendants' May 19, 2004 Appendix to Motion for Summary Judgment]. It is the infection which is treated with the antibiotics.
Plaintiff clearly disagrees with defendant BASSE concerning the treatment he has been given and its efficacy; however, this disagreement is not sufficient to state a claim of constitutional dimension. Varnado v. Collins, 920 F.2d 320, 321 (5th Cir. 1991); Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The evidence of record shows plaintiff has received medical care responsive to his complaints and fails to support a claim that defendants acted with deliberate indifference to plaintiff's serious medical needs or were objectively unreasonable in their responses to his complaints.
Defendant GONZALEZ
Defendants argue plaintiff's claim for monetary damages against defendant GONZALEZ in his official capacity is barred by the Eleventh Amendment. Plaintiff responds that he has requested injunctive relief against defendant GONZALEZ and that he has shown personal involvement by GONZALEZ in his medical treatment.
Concerning plaintiff's claim for monetary damages against defendant GONZALEZ in his official capacity, a suit against an official in his or her official capacity is actually a suit against the state. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Sanders v. English, 950 F.2d 1152, 1158 (5th Cir. 1992). The Eleventh Amendment bars suit against a state or a state official unless the State has waived its immunity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66, 109 S.Ct. 2304, 2309, 105 L.Ed.2d 45 (1989). By virtue of Section 101.057 of the Texas Civil Practice and Remedies Code, Texas has explicitly refused to waive its sovereign immunity to claims for monetary relief against the State. See, Ganther v. Ingle, 75 F.3d 207, 210 (5th Cir. 1996) ( per curiam); accord, Bitner v. Williams, 285 F.Supp.2d 593, 602 (M.D. Penn.). Consequently, plaintiff's claim for monetary relief against defendant GONZALES in his official capacity is barred by the Eleventh Amendment and, thus, lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
An exception to this general principle was created in Ex parte Young, 209 U.S. 123, 28 S.Ct 441, 52 L.Ed. 714 (1908), in which the Supreme Court held that a suit for prospective injunctive relief, challenging the constitutionality of a state official's action in enforcing state law, is not one against the State. Id., at 159-160, 28 S.Ct., at 453-54. See, also, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (the Eleventh Amendment grants the States an immunity from retroactive monetary relief, but state officers are not immune from prospective injunctive relief).
Defendants argue GONZALEZ is a medical director who works in Lubbock, Texas and does not provide direct care or treatment to inmates housed in TDCJ-CID. They contend defendant GONZALEZ has never personally participated in, witnessed, or had knowledge of plaintiff's treatment and state GONZALEZ' letter to plaintiff merely confirms plaintiff's dermatological appointment. Defendants argue plaintiff has not alleged or proven he was ever examined or evaluated by GONZALEZ, that GONZALEZ ever issued or approved a treatment plan, prescribed medication, ever directly participated in his health care or was deliberately indifferent to a serious health care need.
Plaintiff responds that the dermatologist consultation was a telemedical consult, a consultation by way of televideo conference with a medical specialist who is not present on the unit. Plaintiff then argues GONZALEZ, like the dermatologist, did not have to be on the unit in order to be personally involved in plaintiff's medical care. As evidence of GONZALEZ' personal involvement, plaintiff points to a letter from GONZALEZ stating the advice of the dermatologist would be followed and opining that should resolve plaintiff's medical complications.
The letter from defendant GONZALEZ on which plaintiff premises his claim of personal involvement is attached to plaintiff's January 23, 2004 Amended Complaint. It shows that the purpose of GONZALEZ' letter was to respond to plaintiff's complaints, not to provide plaintiff with medical care. The fact that plaintiff's medical records had to reviewed in order to address his complaint does not transform the response into the provision of medical care.
A civil rights plaintiff must establish a causal connection between the acts or omissions of the defendant and the resultant constitutional deprivation. Reimer v. Smith, 663 F.2d 1316, 1323 (5th Cir. 1981). This may be done by alleging either active participation by the defendant in the actions causing the deprivation of the plaintiff's constitutional rights or affirmative adoption by the defendant of policies which were wrongful or illegal and which caused the constitutional deprivation. Wanger v. Bonner, 621 F.2d 675, 679 (5th Cir. 1980). Plaintiff has failed to show either active participation by GONZALEZ in the challenged medical care or his affirmative adoption of illegal or wrongful policies which caused an alleged constitutional deprivation. Since theories of vicarious liability, such as respondeat superior, cannot support a cause of action under section 1983, Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987), plaintiff has failed to state a claim on which relief can be granted against defendant GONZALEZ. Plaintiff's claims fail the first step of the qualified immunity examination; and GONZALEZ is entitled to qualified immunity against plaintiff's claims.
Lastly, as to plaintiff's claim for injunctive relief against defendant GONZALEZ in his official capacity, plaintiff's failure to show deliberate indifference in the treatment of his Keloid acne defeats his request for injunctive relief and this final claim against GONZALEZ.
CONCLUSION
For the reasons set forth above, it is clear that, drawing all reasonable inferences in favor of the nonmoving party, there is no material issue of disputed fact which precludes entry of summary judgment for the defendants and that they is entitled to judgment as a matter of law. Federal Rule of Civil Procedure 56(c)
It is the opinion of the Magistrate Judge and RECOMMENDATION to the United States District Judge that defendants' motion for summary judgment be GRANTED and that plaintiff VENCE LAMOR THOMPSON's claims against defendants be DISMISSED WITH PREJUDICE. It is the further RECOMMENDATION to the United States District Judge that Plaintiff's Motion for Partial Summary Judgment be DENIED.
IT IS SO RECOMMENDED.