Sorrells v. Atwood

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 2, 2002
• Docket: 02-40276
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40276 Summary Calendar

WOODIE SORRELLS,

Plaintiff-Appellant,

versus

DELTON W. ATWOOD, Captain, Beto I; JEFFREY S. RICHARDSON, Lieutenant, Beto I; GILBERT L. ENNIS, Lieutenant, Beto I; NEAL D. WEBB, Warden, Beto I; TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Beto I; UTMB CORRECTIONAL MANAGEMENT HEALTHCARE; MICHAEL KELLY; UNKNOWN MCDANIEL, Lieutenant; C. BISCOE; W. M. DELA ROSA; ELSIE KITCHENS; KENNETH LOVE, DR.; STEVEN HURTS; ALLAN WESTMORELAND,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-428 -------------------- August 1, 2002

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Woodie Sorrells, Texas prisoner # 801754, appeals the

magistrate judge’s dismissal of his 42 U.S.C. § 1983 suit as

frivolous and for failure to state a claim. Our review of

Sorrells’ amended complaint and testimony at the Spears v.

McCotter, 766 F.2d 179 (5th Cir. 1985), hearing show that he

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-40276 -2-

alleged that he is HIV positive, that he was prescribed Crixivan

and other medication for his condition, that he was supposed to

take his medication three times a day.

Without delving into the specifics of Sorrells’ claims

against each defendant, the record shows that he alleged that the

defendants Atwood and Ennis either prevented or delayed Sorrells

from getting his medication on one occasion; that McDaniel

prevented him from getting his morning dose of medication for 11

or 12 days; that Richardson failed to ensure that Sorrells got

his medication on several occasions;** that Nurse Elsie Kitchens

and Dr. Kenneth Love failed to ensure that Sorrells got his

medication as prescribed; that Kitchens’ and Love’s changing of

Sorrells’ drug regimen to two times a day was done for prison

convenience and not his health; that Webb, Biscoe, and DelaRosa

failed to either investigate or respond adequately to grievances

about Sorrells not getting his medication; and that Kelly, Hurts,

and Westmoreland failed to either investigate or respond

adequately to complaints about him not getting his medication.

It cannot be determined from the record whether missing one

dose of medication or one of three daily doses of Sorrells’

medication for 11 or 12 consecutive days posed a serious risk of

** We note that the magistrate judge misconstrued the claims against McDaniel and Richardson and did not address Sorrells’ claims that 1) McDaniel prevented Sorrells from getting his morning does of medication for 11 days in February 2000 and 2) Sorrells missed his dose of medication on several occasions during Richardson’s shift. No. 02-40276 -3-

harm; whether the defendants were aware of that risk or whether

the risk was obvious; and whether the defendants’ alleged actions

preventing Sorrells from getting the medication constituted a

conscious disregard of that risk. See Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991); Harris v. Heggmann, 198 F.3d 153,

159 (5th Cir. 1999); Hall v. Thomas, 190 F.3d 693, 697-98 (5th

Cir. 1999); Whitley v. Hunt, 158 F.3d 882, 887-88 (5th Cir.

1998). Nor can it be determined from the record whether the

claims against Kitchens, Love, Webb, Biscoe, DelaRosa, Kelly,

Hurts, or Westmoreland are without arguable merit. See Harris,

198 F.3d at 159; Hall, 190 F.3d at 697-98; see also Smith v.

Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998). The magistrate

judge’s dismissal of Sorrells’ claims, based upon the current

record, was an abuse of discretion.

Though this court has not yet addressed the issue of a HIV

positive prisoner alleging that he was prevented from getting his

medication as prescribed or that his drug regimen was changed

without consideration to his health, we note that several courts

have addressed the issue. See Evans v. Bonner, 196 F. Supp. 2d

252 (E.D.N.Y. 2002) (citing several other district court cases);

Taylor v. Barnett, 105 F. Supp. 2d 483 (D.C. Va. 2000); Sullivan

v. County of Pierce, 216 F.3d 1084, 2000 WL 432368 (9th Cir.

2000) (unpublished); Owens v. O’Dea, 149 F.3d 1184, 1998 WL

344063 (6th Cir. 1998) (unpublished). No. 02-40276 -4-

Sorrells’ motion for the appointment of counsel is DENIED.

The magistrate judge’s dismissal of Sorrells’ § 1983 claims is

VACATED, and this case is REMANDED for further proceedings.