Bobby Oxford v. University of Texas Medical ( 2019 )

Case: 18-50623 Document: 00515070182 Page: 1 Date Filed: 08/09/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-50623 August 9, 2019
Summary Calendar
Lyle W. Cayce
Clerk
BOBBY EDWARD OXFORD,
Plaintiff-Appellant
v.
UNIVERSITY OF TEXAS MEDICAL BRANCH; DR. JUAN ORTEGA
BARNETT; RN EMMA DELANCEY; CCA SUSAN WATERS; PA WANDA
ISBELL,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:17-CV-139
Before HIGGINBOTHAM, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Proceeding pro se and in forma pauperis, Bobby Edward Oxford, Texas
prisoner # 01656735, appeals the district court’s grant of summary judgment
in favor of the defendants and the dismissal of his pro se 42 U.S.C. § 1983
complaint. He also moves for the appointment of counsel.
We review the grant of a motion for summary judgment de novo.
Haverda v. Hays County, 723 F.3d 586, 591 (5th Cir. 2013). If the moving party
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-50623
shows that the non-moving party did not present sufficient evidence in support
of his claims, “the non-movant must come forward with specific facts showing
a genuine factual issue for trial” and cannot rely on “[c]onclusional allegations
and denials, speculation, improbable inferences, unsubstantiated assertions,
and legalistic argumentation.” Jones v. Lowndes County, Miss., 678 F.3d 344,
348 (5th Cir. 2012) (alteration in original) (internal quotation marks and
citation omitted).
Oxford alleged that the defendants-appellees were deliberately
indifferent to his serious medical needs during and after the back surgery
performed by Dr. Ortega-Barnett. He alleged that Dr. Ortega-Barnett cut
nerves and muscles in his lower back, causing him numbness and pain, failed
to treat him after his surgery, and failed to recommend that he be provided
with a walker upon his discharge from the hospital. He further alleged that
Delancey, Waters, and Isbell failed to provide him with adequate medical care
at the Texas Department of Criminal Justice (TDCJ) Boyd Unit both before his
surgery and after he returned to the unit.
The district court disposed of Oxford’s claims against Dr. Ortega-Barnett
as time-barred, as unexhausted, and on the merits. Oxford has not
demonstrated that he filed his complaint within the two-year Texas limitations
period, see Hitt v. Connell, 301 F.3d 240, 246 (5th Cir. 1998), and has not shown
that the two-year period should have been tolled while he had an action
pending in Texas state court, see Rogers v. Ricane Enter., Ind., 930 S.W.2d 157,
167 (Tex. App. 1996).
Moreover, “[a] prison official violates the Eighth Amendment’s
prohibition against cruel and unusual punishment when his conduct
demonstrates deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain.” Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006) (internal quotation marks and citation
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omitted); see Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Austin v. Johnson,
328 F.3d 204, 210 (5th Cir. 2003). “Deliberate indifference is an extremely high
standard to meet.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(internal quotation marks and citation omitted). Oxford has not met this
standard.
In support of his motion for summary judgment, Dr. Ortega-Barnett
provided an affidavit and hundreds of pages of hospital records reflecting the
care Oxford received before, during, and after his back surgery. No competent
summary judgment evidence shows that any nerves were cut or that Dr.
Ortega-Barnett engaged in any conduct in connection with the procedure “that
would clearly evince a wanton disregard for any serious medical needs,” and
nothing in the record reflects that Dr. Ortega-Barnett intentionally ignored
Oxford’s complaints or medical needs. Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001). While Oxford may not have obtained
the relief he had hoped for following the surgery, his dissatisfaction with the
success of the surgical procedure is insufficient to show deliberate indifference.
See id.; Gobert, 463 F.3d at 346.
Because there was no competent summary judgment evidence showing
that Dr. Ortega-Barnett engaged in any conduct clearly evincing a wanton
disregard for Oxford’s serious medical needs, the district court did not err in
granting summary judgment in favor of Dr. Ortega-Barnett on that basis. We
need not address whether Oxford exhausted administrative remedies as to Dr.
Ortega-Barnett.
We also affirm the district court’s grant of summary judgment in favor
of defendants Delancey, Waters, and Isbell. The district court based its
summary judgment ruling on the grounds that some of the claims against these
defendants were barred by the two-year statute of limitations and that other
claims, not barred by the two-year limitations period, were unexhausted. In
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determining the time bar issue, the district court did not expressly consider
the effect of the state court suit Oxford filed against the defendants some
21 months after his surgery, although the district court did deny Oxford’s post-
judgment motion which raised the issue for the first time. In any event, Oxford
has not shown that he was entitled to tolling for the time during which his
state suit was pending or that his state court action precluded him from timely
filing his § 1983 complaint. See Hitt, 301 F.3d at 246; Rogers, 930 S.W.2d at
167.
As for the issue of exhaustion, Oxford asserts, without discussion, that
he filed grievances as required and suggests that the TDCJ altered, hid, or
destroyed evidence related to the grievances he filed. These unsubstantiated
assertions are insufficient to raise a genuine issue of material fact as to
whether he complied with the Prison Litigation Reform Act’s strict exhaustion
requirement. See Cowart v. Erwin, 837 F.3d 444, 451 (5th Cir. 2016); Jones
v. Bock, 549 U.S. 199, 222, 218 (2007); see also Turner v. Quarterman, 481 F.3d
292, 295 & n.1 (5th Cir. 2007) (noting that this court will not consider issues
not adequately briefed).
Accordingly, the judgment of the district court is AFFIRMED. Oxford’s
motion for the appointment of counsel is DENIED.
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