UNITED STATES DISTRICT COURT June 13, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION
JEWELL THOMAS, § § Plaintiff, § § VS. § CIVIL ACTION NO. 2:22-CV-00252 § ANDREW NINO, et al., § § Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION Plaintiff Jewell Thomas, appearing pro se and in forma pauperis, filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of the Eighth Amendment; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5)(A); the Rehabilitation Act (RA), 29 U.S.C. § 794; and the conspiracy laws under 42 U.S.C. §§ 1983, 1985, and 1986. Pending before the Court is Plaintiff’s complaint (D.E. 1) for initial screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915A. On January 25, 2023, United States Magistrate Judge Mitchel Neurock issued a Memorandum and Recommendation (M&R, D.E. 10), recommending that the Court dismiss all of Plaintiff’s claims. Plaintiff timely filed his objections (D.E. 14), each of which is addressed below. First, Plaintiff objects to the Magistrate Judge’s analysis that his injuries associated with the rear handcuffing were de minimis and did not give rise to a constitutional claim. He alleges that the eggshell skull rule is applicable because he has previous medical 1 / 6 conditions related to his lateral pelvic tilt and chronic pain syndrome. D.E. 14, p. 1. He states that whether an “injury is sufficient to support an excessive force claim is context- dependent” and “is directly related to the amount of force that is constitutionally
permissible under the circumstances.” D.E. 14, p. 4. He argues that the Magistrate Judge erred in relying on Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007), because his injuries, being more severe, distinguish his case from Freeman. An injury must be more than de minimis to show that the prison official used excessive force. See Westfall v. Luna, 903 F.3d 534, 549-50 (5th Cir. 2018). According to
the eggshell skull rule, “a tortfeasor takes his victim as he finds him.” This rule is applicable in § 1983 excessive force cases. Darden v. City of Fort Worth, Tex., 880 F.3d 722, 728 (5th Cir. 2018) (internal citations omitted). Even with Plaintiff’s preexisting conditions and the application of the eggshell skull rule, his claims that he suffered “severe hip, shoulder, lower neck pain back and knee pain
with severe numbness” and was unable to write for several days are not enough to support a constitutional claim. The Court agrees with the Magistrate Judge’s analysis in this regard. While perhaps greater than the injuries suffered in Freeman, 483 F.3d at 417 (bruising on her wrists and arms from being handcuffed), Plaintiff’s injuries are comparable to those in Brooks v. City of West Point, Mississippi, 639 F. App’x 986, 990 (5th Cir. 2016), where
the court found that abrasions to the hands and knees, some pain in the back and neck, and unspecified problems with asthma were de minimis.
2 / 6 Cases with injuries that are greater than de minimis involve severe, permanent damage that Plaintiff has not shown. See Deville v. Marcantel, 567 F.3d 156, 168–69 (5th Cir. 2009) (injury was more than de minimis where the handcuffs were applied so tightly
that they caused long-term nerve damage that was severe enough to require four surgeries); Heitschmidt v. City of Hous., 161 F.3d 834 (5th Cir. 1998) (plaintiff was subjected to more than four hours of painful handcuffing which resulted in serious and permanent injury requiring medical treatment). 1 Plaintiff’s first objection is therefore OVERRULED. Second, Plaintiff objects to the Magistrate Judge’s analysis regarding deliberate
indifference. He asserts that Defendants had actual knowledge of his medical condition because he had previously been issued a TDCJ medical pass to not be handcuffed in the rear of his body and he consistently reminded them of his medical restriction. D.E. 14, pp. 2-3. The Magistrate Judge found that Defendants Herrera, Nino, and Rivas did not have
actual knowledge of substantial risk of serious harm as it relates to Plaintiff missing one insulin injection. Their knowledge of Plaintiff’s medical restriction not to be rear cuffed does not change this analysis. See D.E. 10, p. 21. Regarding Dr. Kwarteng, the Magistrate Judge found that while Dr. Kwarteng was aware of Plaintiff’s conditions, there is no evidence that he ignored Plaintiff’s complaints, refused to treat him, or showed a wanton
1 Plaintiff distinguishes Heitschmidt because the plaintiff there had no preexisting medical conditions. D.E. 14, p. 3. The Court does not find this distinction relevant here. 3 / 6 disregard for his medical needs simply because the medical pass expired and there was a time gap before it was renewed. Id. at 18. The Court agrees with the Magistrate Judge’s analysis that Plaintiff has failed to
state claims for deliberate indifference against Defendants. Plaintiff’s second objection is therefore OVERRULED. Third, Plaintiff argues that his ADA claims should proceed based on Kiman v. New Hampshire Department of Corrections, 451 F.3d 274, 289 (1st Cir. 2006). There, the court found that Kiman’s ADA claim survived summary judgment because he was often rear
cuffed in disregard of his medical pass to the contrary. Id. The pain caused by the refusal to cuff him in the front affected his access to a variety of the services, programs, or activities covered by Title II of the ADA. Id. Though facially similar, Kiman had a current medical restriction, had alleged multiple instances of a failure to honor his medical pass, showed that the defendants knew
of his medical pass, and alleged a deprivation of access to services as a result of his claim. See id. In contrast, here, (1) Plaintiff’s medical restriction had expired; (2) his injuries were de minimis; (3) he failed to explain how any disability created any limitation or impairment to his access to TDCJ services; and (4) he never informed prison officials of any limitation or impairment caused by any disability. Plaintiff has not demonstrated that
the Magistrate Judge erred in his findings and recommendation that the ADA claim be dismissed. His third objection is therefore OVERRULED.
4 / 6 Fourth, Plaintiff specifically objects to the Magistrate Judge’s analysis regarding his ADA claim against Dr. Kwarteng. D.E. 14, p. 5. He asserts that Dr. Kwarteng’s delay in renewing his medical pass was a violation of the ADA because Dr. Kwarteng “had actual
notice and the Plaintiff had been denied the benefits, services, and programs by the Public Entity namely medical services.” Id.
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UNITED STATES DISTRICT COURT June 13, 2023 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION
JEWELL THOMAS, § § Plaintiff, § § VS. § CIVIL ACTION NO. 2:22-CV-00252 § ANDREW NINO, et al., § § Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION Plaintiff Jewell Thomas, appearing pro se and in forma pauperis, filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of the Eighth Amendment; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5)(A); the Rehabilitation Act (RA), 29 U.S.C. § 794; and the conspiracy laws under 42 U.S.C. §§ 1983, 1985, and 1986. Pending before the Court is Plaintiff’s complaint (D.E. 1) for initial screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28 U.S.C. § 1915A. On January 25, 2023, United States Magistrate Judge Mitchel Neurock issued a Memorandum and Recommendation (M&R, D.E. 10), recommending that the Court dismiss all of Plaintiff’s claims. Plaintiff timely filed his objections (D.E. 14), each of which is addressed below. First, Plaintiff objects to the Magistrate Judge’s analysis that his injuries associated with the rear handcuffing were de minimis and did not give rise to a constitutional claim. He alleges that the eggshell skull rule is applicable because he has previous medical 1 / 6 conditions related to his lateral pelvic tilt and chronic pain syndrome. D.E. 14, p. 1. He states that whether an “injury is sufficient to support an excessive force claim is context- dependent” and “is directly related to the amount of force that is constitutionally
permissible under the circumstances.” D.E. 14, p. 4. He argues that the Magistrate Judge erred in relying on Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007), because his injuries, being more severe, distinguish his case from Freeman. An injury must be more than de minimis to show that the prison official used excessive force. See Westfall v. Luna, 903 F.3d 534, 549-50 (5th Cir. 2018). According to
the eggshell skull rule, “a tortfeasor takes his victim as he finds him.” This rule is applicable in § 1983 excessive force cases. Darden v. City of Fort Worth, Tex., 880 F.3d 722, 728 (5th Cir. 2018) (internal citations omitted). Even with Plaintiff’s preexisting conditions and the application of the eggshell skull rule, his claims that he suffered “severe hip, shoulder, lower neck pain back and knee pain
with severe numbness” and was unable to write for several days are not enough to support a constitutional claim. The Court agrees with the Magistrate Judge’s analysis in this regard. While perhaps greater than the injuries suffered in Freeman, 483 F.3d at 417 (bruising on her wrists and arms from being handcuffed), Plaintiff’s injuries are comparable to those in Brooks v. City of West Point, Mississippi, 639 F. App’x 986, 990 (5th Cir. 2016), where
the court found that abrasions to the hands and knees, some pain in the back and neck, and unspecified problems with asthma were de minimis.
2 / 6 Cases with injuries that are greater than de minimis involve severe, permanent damage that Plaintiff has not shown. See Deville v. Marcantel, 567 F.3d 156, 168–69 (5th Cir. 2009) (injury was more than de minimis where the handcuffs were applied so tightly
that they caused long-term nerve damage that was severe enough to require four surgeries); Heitschmidt v. City of Hous., 161 F.3d 834 (5th Cir. 1998) (plaintiff was subjected to more than four hours of painful handcuffing which resulted in serious and permanent injury requiring medical treatment). 1 Plaintiff’s first objection is therefore OVERRULED. Second, Plaintiff objects to the Magistrate Judge’s analysis regarding deliberate
indifference. He asserts that Defendants had actual knowledge of his medical condition because he had previously been issued a TDCJ medical pass to not be handcuffed in the rear of his body and he consistently reminded them of his medical restriction. D.E. 14, pp. 2-3. The Magistrate Judge found that Defendants Herrera, Nino, and Rivas did not have
actual knowledge of substantial risk of serious harm as it relates to Plaintiff missing one insulin injection. Their knowledge of Plaintiff’s medical restriction not to be rear cuffed does not change this analysis. See D.E. 10, p. 21. Regarding Dr. Kwarteng, the Magistrate Judge found that while Dr. Kwarteng was aware of Plaintiff’s conditions, there is no evidence that he ignored Plaintiff’s complaints, refused to treat him, or showed a wanton
1 Plaintiff distinguishes Heitschmidt because the plaintiff there had no preexisting medical conditions. D.E. 14, p. 3. The Court does not find this distinction relevant here. 3 / 6 disregard for his medical needs simply because the medical pass expired and there was a time gap before it was renewed. Id. at 18. The Court agrees with the Magistrate Judge’s analysis that Plaintiff has failed to
state claims for deliberate indifference against Defendants. Plaintiff’s second objection is therefore OVERRULED. Third, Plaintiff argues that his ADA claims should proceed based on Kiman v. New Hampshire Department of Corrections, 451 F.3d 274, 289 (1st Cir. 2006). There, the court found that Kiman’s ADA claim survived summary judgment because he was often rear
cuffed in disregard of his medical pass to the contrary. Id. The pain caused by the refusal to cuff him in the front affected his access to a variety of the services, programs, or activities covered by Title II of the ADA. Id. Though facially similar, Kiman had a current medical restriction, had alleged multiple instances of a failure to honor his medical pass, showed that the defendants knew
of his medical pass, and alleged a deprivation of access to services as a result of his claim. See id. In contrast, here, (1) Plaintiff’s medical restriction had expired; (2) his injuries were de minimis; (3) he failed to explain how any disability created any limitation or impairment to his access to TDCJ services; and (4) he never informed prison officials of any limitation or impairment caused by any disability. Plaintiff has not demonstrated that
the Magistrate Judge erred in his findings and recommendation that the ADA claim be dismissed. His third objection is therefore OVERRULED.
4 / 6 Fourth, Plaintiff specifically objects to the Magistrate Judge’s analysis regarding his ADA claim against Dr. Kwarteng. D.E. 14, p. 5. He asserts that Dr. Kwarteng’s delay in renewing his medical pass was a violation of the ADA because Dr. Kwarteng “had actual
notice and the Plaintiff had been denied the benefits, services, and programs by the Public Entity namely medical services.” Id. These are conclusory allegations that do not dispute the Magistrate Judge’s findings that Plaintiff’s disagreement over Dr. Kwarteng’s medical treatment does not allege discrimination based on a disability and Plaintiff did not satisfy the de minimis injury requirement. See D.E. 10, pp. 32-33. This objection is therefore
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, (1) Plaintiff’s § 1983, § 1985, § 1986, ADA, and RA claims against Defendants are DISMISSED with prejudice as frivolous and/or for failure to state a claim for
relief. (2) It is ORDERED that this dismissal count as a “strike” for purposes of 28 U.S.C. § 1915(g), and the Clerk of Court is INSTRUCTED to send notice of this 5 / 6 dismissal to the Manager of the Three Strikes List for the Southern District of Texas at Three_Strikes @txs.uscourts.gov. This action is DISMISSED in its entirety. ORDERED on June 13, 2023. GONZAIGS RAMOS UNITED STATES DISTRICT JUDGE
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