Travis M. Dehorney, TDCJ No. 2027434 v. Sherri Talley M.D., Samuel B. Itie, M. Fuentes ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
TRAVIS M. DEHORNEY, TDCJ No. § No. 08-19-00066-CV
2027434,
§ Appeal from the
Appellant,
§ 83rd District Court of
v.
§ Pecos County, Texas
SHERI TALLEY, M.D., SAMUEL B. ITIE,
and M. FUENTES, (TC# P-7872-83-CV)
Appellees.
OPINION
Travis M. DeHorney, appearing pro se, appeals the dismissal of his lawsuit against
Appellees Sheri Talley, M.D., Samuel B. Itie, and M. Fuentes pursuant to chapter 14 of the Texas
Civil Practice and Remedies Code. We affirm in part and reverse and remand in part.
I. BACKGROUND
A. DeHorney’s factual allegations
DeHorney is an inmate at the Lynaugh Unit of the Texas Department of Criminal Justice
in Fort Stockton, Texas. In April 2018, he filed suit against Dr. Talley, Itie, and Fuentes, who
provided medical services to Lynaugh Unit inmates in conjunction with Texas Tech University
Health Sciences Center. As explained below, legal principles governing our review require that
we take as true the facts alleged in DeHorney’s petition. See Camacho v. Rosales, 511 S.W.3d 82,
86 (Tex. App.—El Paso 2014, no pet.). For that reason, the following facts are as stated in that
petition.
DeHorney suffered an injury to his jaw as the result of an altercation with another inmate
on October 24, 2017. He was promptly examined in the prison infirmary by Kristi Meier, a licensed
vocational nurse. Meier referred DeHorney to Texas Tech Correctional Managed Care for the
following day. DeHorney was seen there by Itie, a nurse practitioner, who diagnosed “localized
swelling, mass and lump of skin, and subcutaneous tissue damage.” Itie provided DeHorney with
ice packs and pain pills to manage his discomfort. DeHorney continued to experience swelling and
jaw pain and, on October 30, Itie ordered an x-ray.
On November 2, 2017, DeHorney saw the unit dental provider, who suspected that he had
suffered a broken jaw. This suspicion arose because of DeHorney’s continued pain, inability to
bite down, and misaligned teeth (which had resulted in one broken tooth). On November 8, x-rays
revealed that DeHorney had suffered a fracture of his left jaw. DeHorney was again sent to Itie,
who did not refer DeHorney to an orthopedic specialist but instead advised him that his jaw would
heal itself.
On December 7, 2017, DeHorney’s medical file reached Dr. Talley, who gave DeHorney
a “slow eating pass.” DeHorney then initiated an administrative complaint, after which he was
personally examined by Dr. Talley. The doctor referred DeHorney to an orthopedic specialist, who
advised that DeHorney would have to undergo invasive surgery because of the delay in treating
his fractured jaw.
DeHorney filed suit in April 2018.
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B. DeHorney’s claims
DeHorney first asserts claims for medical malpractice against Dr. Talley and Itie. He
alleges that they breached the standard of care by failing to timely diagnose his broken jaw and by
failing to order any diagnostic tests on or near October 25, 2017 (the date on which he was first
seen by Itie). DeHorney further alleges that, after x-rays revealed the fracture, Itie deprived him of
proper medical care by failing to refer him to an orthopedic specialist. He similarly alleges that
Dr. Talley failed to take appropriate steps to have him promptly seen by a medical specialist to
treat the fracture.
DeHorney’s second claim is entitled “failure to provide adequate medical care” and is
asserted against Dr. Talley and Fuentes, who he states is “a Texas Tech Medical Branch employee
who acts as office manager . . . .” DeHorney alleges that Dr. Talley and Fuentes failed to have an
adequate system in place to diagnose his injury and failed to provide adequately trained staff. He
specifically alleges that, at the time of his injury, they failed to provide an employee who could
operate the available x-ray machine and failed to transport him to a hospital to have x-rays taken.
The parties characterize this claim as one for “deliberate indifference to a serious medical need.”
DeHorney’s final two claims allege intentional infliction of emotional distress and
negligent infliction of emotional distress, both based on delay in diagnosing the jaw fracture and
providing proper medical care.
C. Appellees’ motion to dismiss
Appellees filed a motion to dismiss DeHorney’s lawsuit pursuant to chapter 14 of the Texas
Civil Practice and Remedies Code (“Chapter 14”). In that motion, Appellees contend that
DeHorney’s medical malpractice and intentional infliction of emotional distress claims are
frivolous because they are barred by sovereign immunity. They contend that the claim for negligent
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infliction of emotional distress is frivolous because Texas does not recognize that cause of action.
And they contend that DeHorney’s claim for deliberate indifference to a serious medical need is
frivolous because the conduct he alleges does not rise to the level of deliberate indifference.
Appellees additionally sought dismissal based on DeHorney’s failure to comply with the
procedural prerequisite of attaching a certified copy of his trust account statement to his petition.
DeHorney subsequently filed the required trust account statement and a response to the motion to
dismiss.
The trial court heard Appellees’ motion to dismiss by submission on January 10, 2019. On
that same day, the court signed a final judgment dismissing the lawsuit as frivolous and for failure
to comply with Chapter 14.
II. ISSUE
While DeHorney does not articulate a specific issue on appeal, it is apparent that he is
asserting that the trial court erred by dismissing his lawsuit.
III. STANDARD OF REVIEW
A Chapter 14 dismissal is ordinarily reviewed for abuse of discretion. Camacho, 511
S.W.3d at 85. But when, as here, the court dismisses a claim as frivolous without conducting a fact
hearing, our review is limited to whether the claim lacks an arguable basis in law. Id. at 86. This
presents a legal question that we review de novo. Id.
IV. DISCUSSION
A. Dismissal under Chapter 14
Chapter 14 of the Texas Civil Practice and Remedies Code governs litigation brought by
an inmate who files an affidavit or unsworn declaration of inability to pay costs. TEX. CIV. PRAC.
& REM. CODE ANN. § 14.002(a). Because DeHorney filed such an affidavit, his lawsuit is subject
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to Chapter 14.
Section 14.003 of Chapter 14 provides that a court may dismiss a claim if it finds that the
claim is frivolous or malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 14.003(a)(2). In making
that determination, the court may consider whether the claim has no arguable basis in law or in
fact. Id. at § 14.003(b)(2). “A claim has no arguable basis in law only if it is based on (1) wholly
incredible or irrational factual allegations; or (2) an indisputably meritless legal theory.” Camacho,
511 S.W.3d at 86. In making this assessment, we take the inmate’s allegations as true and review
his pro se pleadings “by standards less stringent than those applied to formal pleadings drafted by
lawyers . . . .” Id.
Appellees moved to dismiss DeHorney’s claims as frivolous under Chapter 14 and the trial
court’s judgment specifies that dismissal is granted under that chapter. Even so, both in the trial
court and on appeal, the parties engage in an extended discussion of section 101.106(f) of the
Texas Tort Claims Act (“TTCA”), which provides a separate vehicle for dismissal of claims under
that Act. For this reason, we also address section 101.106(f) and its impact on this case.
B. Dismissal under TTCA section 101.106(f)
1. Scope of section 101.106(f)
Tort claims against a governmental entity, or an employee of such an entity, are governed
by the TTCA. That statute provides:
If a suit is filed against an employee of a governmental unit based on conduct within
the general scope of that employee’s employment and if it could have been brought
under this chapter against the governmental unit, the suit is considered to be against
the employee in the employee’s official capacity only. On the employee’s motion,
the suit against the employee shall be dismissed unless the plaintiff files amended
pleadings dismissing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f). The supreme court has recognized that, by
adopting this section, “the Legislature has effectively mandated that only a governmental unit can
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be sued for a governmental employee’s work-related tortious conduct.” Garza v. Harrison, 574
S.W.3d 389, 393–94 (Tex. 2019).
Section 101.106(f) encompasses three elements. The suit must (1) be filed against an
employee of a governmental unit; (2) be based on conduct within the general scope of that
employment; and (3) be one that could have been brought “under this chapter” against the
governmental unit. TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).
Concerning the first element, the TTCA defines “employee” as “a person . . . in the paid
service of a governmental unit . . . [but not] an independent contractor . . . or a person who performs
tasks the details of which the governmental unit does not have the legal right to control.” Franka
v. Velasquez, 332 S.W.3d 367, 372 (Tex. 2011) (quoting TEX. CIV. PRAC. & REM. CODE ANN. §
101.001(2)). The fact that a medical provider must exercise some independent medical judgment
does not preclude that provider from being an “employee” under this definition. Murk v. Scheele,
120 S.W.3d 865, 867 (Tex. 2003). Status as an employee of a governmental unit presents a
threshold issue. Franka, 332 S.W.3d at 372.
As applied to the second element, “scope of employment” means “the performance for a
governmental unit of the duties of an employee’s office or employment and includes being in or
about the performance of a task lawfully assigned to an employee by competent authority.” TEX.
CIV. PRAC. & REM. CODE ANN. § 101.001(5). The relevant inquiry is “whether the employee was
doing his job, not the quality of the job performance.” Garza, 574 S.W.3d at 394; see Fort Worth
Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 849 (Tex. 2018) (“Negligence, if proven, does not
destroy the protection of section 101.106 for an employee acting within the scope of her
employment.”). “Even if work is performed wrongly or negligently, the inquiry is satisfied if, when
viewed objectively, a connection [exists] between the employee’s job duties and the alleged
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tortious conduct.” Garza, 574 S.W.3d at 394 (internal quotation marks omitted).
As to the third section 101.106(f) element, “all tort theories alleged against a governmental
unit, whether it is sued alone or together with its employees, are assumed to be ‘under [the TTCA]’
for purposes of section 101.106.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,
659 (Tex. 2008). In addition, “any tort claim against the government is brought ‘under’ the [TTCA]
for purposes of section 101.106, even if the [TTCA] does not waive immunity.” Franka, 332
S.W.3d at 375. Thus, even a tort claim for which the government retains immunity is one that
“could have been brought under” the TTCA against the governmental unit. See id. at 385.
If each of these elements is established, then DeHorney’s claims against Appellees are
considered to be against them in their official capacities only. See TEX. CIV. PRAC. & REM. CODE
ANN. § 101.106(f). In addition, Appellees would be entitled to dismissal of those claims without
addressing whether the governmental unit’s immunity has been waived. See Franka, 332 S.W.3d
at 375, 385. However, while Appellees discuss section 101.106(f) in their motion to dismiss, they
ultimately did not seek dismissal based on that statute. Rather, Appellees specifically sought
dismissal under Chapter 14 based on their assertion that DeHorney’s claims are frivolous, i.e.,
lacking an arguable basis in law. Further, the trial court expressly recited in its judgment that
DeHorney’s claims are dismissed as frivolous and for failure to comply with Chapter 14. 1 Our
review is therefore limited to whether DeHorney’s claims lack any arguable basis in law. See
Camacho, 511 S.W.3d at 85 n.4 (“[W]here a trial court dismisses a suit under Chapter 14 of the
Civil Practice and Remedies Code and states its reasons in its order, this Court is limited to
reviewing only its stated reasons.”).
Because DeHorney’s claims were dismissed pursuant to Chapter 14, we consider the
1
Both parties appear to acknowledge that the trial court’s judgment cannot be upheld based on a failure to comply
with Chapter 14’s trust account statement requirement because DeHorney cured that defect.
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import of section 101.106(f) in this case to be in determining whether Appellees were sued in their
official capacities such that they are entitled to the protection of sovereign immunity.
2. Application of section 101.106(f) to this case
a. Appellees’ status as employees
DeHorney alleges in his petition that Appellees are “employed as part of the Texas Tech
Medical Branch who has contracted to provide medical care to the Texas Department of Criminal
Justice . . . .” He more specifically alleges that Itie is employed by Texas Tech Correctional
Managed Care, Dr. Talley is the Southern Regional Medical Director for Texas Tech, and Fuentes
is “a Texas Tech Medical Branch employee who acts as office manager . . . .”
Appellees generally allege in their answer that they are “public officials employed by the
State of Texas.” In their motion to dismiss, they allege that they are “employees of a governmental
agency” and acted within the scope of their employment with Texas Tech University Health
Sciences Center.
Texas Tech University Health Sciences Center (“TTUHSC”) is a governmental entity.
Gonzalez v. El Paso Hosp. Dist., 940 S.W.2d 793, 794 (Tex. App.—El Paso 1997, no writ).
DeHorney does not contest that TTUHSC is the entity for which Appellees worked, or that it is a
governmental entity. Rather, he asserts, both in his response to the motion to dismiss and on appeal,
only that “Defendants have not shown that are in fact employees of a governmental unit.
Defendants have produced no evidence of their status, whether they are subcontractors, or working
under an agreement.” But Appellees were not required to produce any such evidence because of
the allegations contained in DeHorney’s own pleadings.
The supreme court’s opinion in University of Texas Health Science Center at Houston v.
Rios, 542 S.W.3d 530 (Tex. 2017), is instructive. The plaintiff in that case asserted contract and
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tort claims against the Center, and also asserted tort claims against a number of faculty doctors.
The Attorney General moved to dismiss the contract claims against the Center and the tort claims
against the doctors, alleging in the motion to dismiss that the doctors were all employees of the
Center. Id. at 532-33. The plaintiff amended his petition to drop his tort claims against the Center.
The doctors then amended their motion to dismiss but reiterated that they were all Center
employees. Id. at 533. In his response to the amended motion, the plaintiff stated that “he did not
even know whether the Doctors were in fact Center employees, suggesting they might be
independent contractors.” Id.
The supreme court determined that the plaintiff’s allegations in his original petition that
the Center acted through the doctors was a judicial admission that they were employees of the
Center. It further determined that this admission relieved the doctors of having to prove their status
as employees. Id. at 534. The plaintiff conceded in oral argument that he had assumed in his
original petition that the doctors were employees, based on his knowledge at the time. He did not
argue that this knowledge ever changed, only that he became less certain that the doctors were
employees. Id. at 534-35.
In addition to the plaintiff’s judicial admission and concession, the supreme court noted
that “[t]he status of the Doctors as Center employees is also borne out by defendants’ pleadings.”
Id. at 535. The Attorney General represented the doctors, “as he is statutorily required to do in
certain actions against public servants,” and, in the motion to dismiss, stated that the doctors were
all employees of the Center who were acting within the scope of their employment. Id. Thus, “at
the time the defendants filed their original motion to dismiss, all parties’ pleadings established that
the Doctors were Center employees.” Id.
As in Rios, the pleadings in our case relieved Appellees of having to produce evidence
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proving their status as employees. DeHorney affirmatively alleges in his petition that Appellees
are governmental employees. For example, he states that all Appellees are employed by Texas
Tech Medical Branch, Dr. Talley is the Southern Regional Medical Director for Texas Tech, Itie
is employed by Texas Tech Medical, and Fuentes is a Texas Tech Medical Branch employee who
acts as office manager.
In addition, as in Rios, Appellees are represented by the Attorney General, who states in
Appellees’ original answer that they are “public officials employed by the State of Texas[,]” and
similarly states in the motion to dismiss that Appellees are “employees of a governmental agency.”
The motion also more specifically states that “Itie and Talley are medical professionals employed
by Texas Tech University Health Sciences Center,” “Fuentes is an office manager employed by
Texas Tech University Health Sciences Center,” and each defendant was acting in the scope of
that employment.
Also as in Rios, DeHorney never contends that Appellees are not employees, only that they
did not produce evidence of that fact. He, like the plaintiff in Rios, merely suggests that perhaps
they are contractors. See id. at 533.
Finally, as in Rios, at the time Appellees filed their motion to dismiss, all parties’ pleadings
established that they were employees of a governmental entity. See id. at 535. We conclude that
Appellees satisfied the first element required for application of section 101.106(f). See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.106(f) (“suit is filed against an employee of a governmental
unit”).
b. Acting in the scope of employment
The second required element under section 101.106(f) is that the suit is “based on conduct
within the general scope of [the] employee’s employment . . . .” Id. This element is also established
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by DeHorney’s own pleadings.
The supreme court in Rios noted that the connection between the defendant doctors’ job
duties and the allegedly tortious conduct, “as claimed by Rios himself,” placed that conduct
“squarely within the scope of their employment at the Center.” Rios, 542 S.W.3d at 536. The same
is true in this case.
DeHorney affirmatively alleges that each Appellee engaged in the conduct underlying his
claims in the context of performing his or her job—Dr. Talley as “Southern Regional Medical
Director for Texas Tech,” Itie as a nurse practitioner with Texas Tech Correctional Managed Care,
and Fuentes as a “Texas Tech Medical Branch” officer manager. While DeHorney alleges that
Appellees were negligent in the performance of these job duties, any such negligence does not
remove their conduct from the scope of employment. The issue is “whether the employee was
doing his job, not the quality of the job performance.” Garza, 574 S.W.3d at 394; see Rodriguez,
547 S.W.3d at 849.
DeHorney’s own pleadings demonstrate that his suit against Appellees is based on conduct
within the general scope of their employment. See Rios, 542 S.W.3d at 535. The second element
required for application of section 101.106(f) is satisfied. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.106(f).
c. Nature of claims brought under the TTCA
DeHorney’s claims for medical malpractice, intentional infliction of emotional distress,
and negligent infliction of emotional distress are tort claims. Consequently, they are claims
“brought under” the TTCA, regardless of whether immunity is waived for those claims. See
Garcia, 253 S.W.3d at 659 (tort theories are “under” the TTCA); Franka, 332 S.W.3d at 385
(claims are “brought under” the TTCA even if immunity is retained). Section 101.106(f)’s third
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element is satisfied.
C. Dismissal under Chapter 14
1. Dismissal of the tort claims based on sovereign immunity
We have determined above that DeHorney’s tort claims against Appellees fall within the
scope of section 101.106(f). But, again, those claims were dismissed pursuant to Chapter 14, not
section 101.106(f). That section is implicated, however, in Appellees’ contention in their motion
to dismiss that DeHorney’s tort claims are frivolous because they are barred by sovereign
immunity.
a. Official capacity
With the exception of ultra vires suits, “an employee sued in his official capacity has the
same governmental immunity, derivatively, as his government employer. ” Franka, 332 S.W.3d
at 382–83. For this reason, if Appellees were sued in their official capacities, they are entitled to
sovereign immunity.
DeHorney argues that he sued Appellees in their individual capacities. He cites language
from the supreme court’s opinion in Franka stating that public employees are individually liable
for their own torts, even when committed in the course of their employment, may be sued in their
individual capacities, and may assert official immunity, but that “official immunity does not
protect a physician sued in his individual capacity from liability for medical decisions and actions.”
Id. at 383-84. However, these statements were made in the context of the court’s discussion of the
manner in which section 101.106(f) changed the law to provide increased protection to public
employees.
The court specifically stated that its interpretation of section 101.106(f) “foreclose[s] suit
against a government employee in his individual capacity if he was acting within the scope of
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employment” and “changes, among other things, the rule . . . which has allowed malpractice suits
against physicians employed by the government, even though acting within the scope of
employment.” Id. at 381. The court also noted that the federal Westfall Act “provided immunity
to all employees acting within the scope of employment,” and that the “revision of section 101.106
achieves the same end under Texas law as the Westfall Act does under federal law.” Id. at 384-85.
Under section 101.106(f), as interpreted by the supreme court in Franka, Appellees are
considered to have been sued only in their official capacities because they are employees of a
governmental unit, DeHorney’s claims are based on conduct within the general scope of that
employment, and his tort claims could have been brought under the TTCA against the
governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f); Franka, 332 S.W.3d at
381-85. It follows, then, that Appellees are entitled to the protection of sovereign immunity if their
governmental employer would be entitled to such protection. See Franka, 332 S.W.3d at 382-83.
b. Waiver of immunity under the TTCA
The TTCA contains a narrow waiver of governmental immunity, providing that a
governmental unit is liable for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if:
(A) the property damage, personal injury, or death arises from the operation
or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to
Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal
or real property if the governmental unit would, were it a private person, be
liable to the claimant according to Texas law.
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.
DeHorney’s claims clearly do not arise from the operation or use of a motor-driven vehicle.
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In addition, DeHorney himself asserts that his “allegations are not allegations concerning the
condition or use of tangible property which would give rise to governmental liability under section
101.021 . . . .”2 DeHorney asserts that Appellees failed to use medical equipment to appropriately
diagnose his condition, which might indicate an effort to invoke section 101.021(2), but he then
concludes, “thus [he] did not state a cause of action under the T.T.C.A. . . .” (Emphasis added.)
Even independently of DeHorney’s concessions, the allegations in his petition do not
encompass a claim caused by a condition or use of tangible personal property. At most, DeHorney
alleges the non-use of property, which will not support a claim under the TTCA. See Kerrville
State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996) (“This Court has never held that mere non-
use of property can support a claim under the Texas Tort Claims Act.”). In addition, none of his
stated complaints fall within the “use of tangible personal property” waiver of immunity. See Univ.
of Texas M.D. Anderson Cancer Ctr. v. King, 329 S.W.3d 876, 880–81 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied) (no waiver of immunity under “tangible personal property” provision for
“negligent (1) exercise of medical judgment, (2) use or misuse of information, (3) failure to act or
to use property, (4) failure to supervise, (5) failure to investigate . . . .”).
We further note that immunity is retained for DeHorney’s claim for intentional infliction
of emotional distress because the TTCA “does not waive immunity for intentional torts . . . .”
Franka, 332 S.W.3d at 376; see TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (“This chapter
does not apply to a claim . . . arising out of . . . [an] other intentional tort . . . .”); Univ. of Texas
Med. Branch at Galveston v. Hohman, 6 S.W.3d 767, 777 (Tex. App.—Houston [1st Dist.] 1999,
pet. dism’d w.o.j.) (employees sued in their official capacities cannot be held liable for intentional
2
DeHorney makes this assertion in the mistaken belief that waiver of governmental immunity is necessary to show
that a claim could have been brought under the TTCA against the governmental unit. But see Franka, 332 S.W.3d at
375, 385 (tort claim is “brought under” TTCA even if immunity is not waived).
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torts).
Finally, the TTCA does not include a waiver of immunity for claims for negligent infliction
of emotional distress because no such cause of action is recognized under Texas law. See Twyman
v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993); Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993).
Because the TTCA does not contain a waiver of immunity applicable to any of DeHorney’s
tort claims, Appellees’ governmental employer would be entitled to sovereign immunity. And
because Appellees were sued only in their official capacities, they are entitled to the protection of
that immunity as a legal bar to those claims. Consequently, DeHorney’s tort claims are based on
an indisputably meritless legal theory and lack any arguable basis in law. See Camacho, 511
S.W.3d at 86; TEX. CIV. PRAC. & REM. CODE ANN. § 14.003. The trial court did not err by
dismissing those claims as frivolous.
2. Dismissal of the claim for deliberate indifference to a serious medical need
DeHorney’s remaining claim is for deliberate indifference to a serious medical need, which
is proscribed by the Eighth Amendment’s prohibition against cruel and unusual punishment. See
Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Deliberate indifference” in this context requires that
an inmate show that the defendant subjectively knew of a substantial risk of serious harm and
disregarded that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511
U.S. 825, 837, 847 (1994). In other words, the defendant “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.” Id. at 837. The inmate must show that the defendant “refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would
clearly evince a wanton disregard for any serious medical needs.” Domino v. Texas Dep’t of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236,
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1238 (5th Cir. 1985)).
The foundation of DeHorney’s complaints is his contention that Appellees failed to
promptly diagnose his broken jaw and refer him to an orthopedic specialist for treatment. He
asserts that the delay in obtaining a proper diagnosis and treatment caused him to have to undergo
invasive surgery that would otherwise have been avoided. DeHorney thus alleges that he suffered
serious harm. See Farmer, 511 U.S. at 837.
While DeHorney was first seen by a licensed practical nurse the day after the fight in which
he was injured, and then followed by a nurse practitioner shortly thereafter, DeHorney more
specifically alleges that, “the Defendants breached the standard of care when they failed to timely
diagnose the broken mandible bone in the jaw and failed to order any diagnostic testing at the time
of or near the examination on October 25, 2017.”
Evaluating DeHorney’s symptoms and assessing the severity of his condition as manifested
at that time are matters of medical judgment that raise only issues of negligence insufficient to
state an Eighth Amendment claim. See Gamble, 429 U.S. at 107. But DeHorney further alleges
that he was not seen by a dentist until more than a week had passed since the injury and, after the
dentist suspected a broken jaw, he did not receive x-rays for almost another week. Then, once the
x-rays revealed that DeHorney’s jaw was, indeed, broken, Appellees still failed to refer him to an
orthopedic specialist for affirmative treatment. Rather, they continued the “wait and it will heal”
approach they had adopted from the start.
Only after DeHorney filed an administrative appeal was he personally examined by Dr.
Talley after a prolonged delay. DeHorney further alleges that the orthopedic specialist to whom he
was eventually referred advised him that—due to the defendants’ prolonged failure to accurately
diagnose and provide appropriate treatment—he would thereafter be subjected to an invasive
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surgical procedure that would not have had to occur but for the delay in providing adequate medical
care.
We cannot conclude that DeHorney’s factual allegations, taken as true, would not support
an inference that Appellees “ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for any serious
medical needs.” Domino, 239 F.3d at 756. Rather, we conclude that DeHorney has adequately
stated an Eighth Amendment claim for deliberate indifference to a serious medical need. Because
his claim does not lack an arguable basis in law, the trial court erred by dismissing it as frivolous.
See TEX. CIV. PRAC. & REM. CODE ANN. § 14.003.
V. CONCLUSION
The judgment of the trial court is affirmed insofar as it dismisses DeHorney’s state law
claims pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. The judgment is
reversed insofar as it dismisses DeHorney’s Eighth Amendment claim. That claim is remanded to
the trial court for further proceedings.
GINA M. PALAFOX, Justice
January 12, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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