Federal District Court Opinions

RAINEY v. HERRERA, (S.D.Tex. 12-14-2006) LARRY JAMES RAINEY TDCJ-CID #560039, Plaintiff, v. DR. MAXIMILIANO HERRERA, ET AL. Defendants. C.A. NO. C-06-097. United States District Court, S.D. Texas, Corpus Christi Division. December 14, 2006


In this civil rights action brought pursuant to 42 U.S.C.
§ 1983, plaintiff Larry James Rainey claims that
defendants were deliberately indifferent to his serious
medical needs in violation of his Eighth Amendment right to
be free from cruel and unusual punishment. (D.E. 1)
Defendants Maximiliano Herrera, M.D., and Donna Randall,
L.V.N., move for summary judgment to dismiss plaintiff’s
claims arguing that he received professional and adequate
medical treatment such that he fails to state a claim for
deliberate indifference, and, in the alternative, even if
he received deficient care, they are entitled to qualified
immunity. (D.E. 17, 20). Plaintiff has filed a response in
opposition. (D.E. 18). For the reasons stated herein, it is
respectfully recommended that defendants’ motion for
summary judgment be granted as to any claims arising
between February 6, 2004, and August 26, 2004. As for
plaintiff’s claims alleging deliberate indifference after
August 26, 2004, it is respectfully recommended that
defendants motion for summary judgment be denied without
prejudice to defendants filing a supplemental motion for
summary judgment motion.


The Court has federal question jurisdiction over this
civil rights action pursuant to 28 U.S.C. § 1331.
Page 2


Plaintiff is an inmate in the Texas Department of Criminal
Justice, Criminal Institutions Division (“TDCJ-CID”), and
is currently incarcerated at the McConnell Unit in
Beeville, Texas. He filed this lawsuit on February 21,
2006, against Dr. Herrera and Nurse Randall alleging
deliberate indifference to his serious medical needs. In
particular, plaintiff claims that on February 14, 2004, he
was the victim of a gang attack, and, as a result of the
assault, he suffered hip and lower back pain. He claims
that, following the assault, defendants failed to properly
diagnose his injuries or to treat properly his pain or
respond to his medical complaints. (D.E. 1). He seeks
$100,000 in compensation for pain and suffering. Id. at 4.

Defendants filed their answer on May 5, 2006, and raised
the defense of qualified immunity. (D.E. 14). On September
5, 2006, defendants filed their motion for summary
judgment. (D.E. 17). On September 15, 2006, plaintiff filed
a response in opposition. (D.E. 18). On November 30, 2006,
defendants were instructed to submit a copy of plaintiff’s
medical records.[fn1] (D.E. 19). On December 6, 2006,
defendants filed an advisory to the Court, and submitted 66
pages of plaintiff’s medical records, dated between August
11, 2003 and August 26, 2004. (See D.E. 20, Bates No.


In support of their motion for summary judgment,
defendants offer plaintiff’s medical records, (D.E. 20,
Exh. A)[fn2], and the affidavit of Dr. Steven Mercado,
(D.E. 17, Exh. B), a physician Page 3 who has reviewed
plaintiff’s medical records and testifies that plaintiff
received the appropriate standard of medical care. In
support of his summary judgment response, plaintiff offers
his own affidavit and that of another offender, Terry
Williams. He also offers copies of seven of his submitted
sick call requests. (See D.E. 18, Exs. A and B).

The following facts are not in dispute:

On February 6, 2004, plaintiff was attacked in the
recreation yard by other inmates. (D.E. 1 at 4). Following
the assault, he was escorted to medical where he was
evaluated by Maria Garcia, L.V.N., at approximately 9:53
that morning. (DX-A at Bates No. 6.). Nurse Garcia noted
that plaintiff was alert and oriented. Id. His gait was
steady. Id. She noted redness and swelling to his right
cheek, abrasions to his left, upper and lower lip, and
redness to the mid-chest and rib area. Id. She concluded
that no treatment was indicated at the time. Id.

Later that afternoon, plaintiff returned to the infirmary
complaining of right hip pain. He was seen by Lucy
Martinez, L.V.N., who prescribed Tylenol. (DX-A at Bates
No. 7).

On February 7, 2004, plaintiff submitted a sick call
request complaining of hip pain and requesting that tests
be done. (DX-A at Bates No. 24, 49).

On February 11, 2004, plaintiff was seen by physician’s
assistant (“PA”) Westerfield. (DX-A at Bates No. 18). Notes
indicate that plaintiff started experiencing hip pain
“after running into water fountain 3 days ago . . .” Id. He
did not mention the gang assault. Id. Upon examination, PA
Westerfield noted a small area of ecchymosis of the right
hip, but otherwise the exam was normal. Id. In addition, he
had a full range of motion of his hip from back to leg. Id.
PA Westerfield’s Page 4 assessment was contusion to the
hip. Id. Her plan was to treat plaintiff with Naproxen and
to obtain a pelvic x-ray to rule out any abnormality. Id.

Later that day, plaintiff filed another sick call request
complaining of extreme pain in right hip/lower right back.
(DX-A at Bates No. 39). It was noted that plaintiff had
been seen by a PA earlier that day. Id.

On February 19, 2004, plaintiff submitted a sick call
request complaining of continued back and hip pain. (DX-A
at Bates. No. 61). Nurse Staples answered his request on
February 20, 2004, stating that his pain medications were
current through February 25, 2004. Id.

On March 4 and 5, 2004, plaintiff was seen by Mental
Health Services during routine rounds. (DX-A at Bates No.
41, 42). He requested materials on depression. Id. Notes
indicate that on both days, he was calm and cooperative and
his mental status was within normal limits. Id.

On March 16, 2004, plaintiff submitted a second sick call
request stating that he was in excruciating pain and needed
to have the x-rays taken and/or pain relief. (DX-A at Bates
No. 60). Nurse Randall forwarded plaintiff’s chart to the
PA for a possible referral. Id.

On March 18, 2004, plaintiff submitted a sick call request
to Nurse Randall stating that he was experiencing severe
pain in his lower back and that it was getting worse. (DX-A
at Bates No. 59). Plaintiff was seen that day by Dr.
Herrera. (DX-A at Bates No. 17-18). Plaintiff complained of
unremitting lower back pain and right hip pain that was not
helped with Naproxen. Id. Upon examination, Dr. Herrera
noted that plaintiff had full range of motion, he had
negative straight leg raises, positive deep tendon
reflexes, and his neurological impulses were intact. Id.
Dr. Herrera ordered x-rays of the lumbar spine and pelvis,
and changed plaintiff’s medication to Indocin. Id. Page 5

On March 31, 2004, plaintiff filed a sick call request
complaining that he needed to have his x-rays. (DX-A at
Bates. No. 58). Nurse Randall responded that the x-rays had
been ordered. Id.

On March 22, 2004, plaintiff complained of blisters on his
foot. (DX-A at Bates No. 48). Nurse Randall scheduled him
for an appointment. Id. On March 25, 2004, Nurse Randall
saw plaintiff in the infirmary for treatment of his
blisters. (DX-A at Bates No. 44-45). She noted that his
chief complaint was itching and burning to his feet, and
that his feet had scattered blisters and were cracking. Id.
Her assessment was contact dermatitis/fungal infection, and
her treatment plan was to apply medicated callus pads to
the lesions, and to supply plaintiff with the medicated
pads so that he could also apply them himself. Id. She also
instructed plaintiff on the proper means for washing and
drying his feet to aid in recovery. Id. Concerning his back
pain, Nurse Randall responded that he was scheduled to see
a PA. Id. at 47.

On April 6, 2004, plaintiff had x-rays of his lumbosacral
spine and pelvis. (DX-A at Bates No. 53). The vertebral
bodies of his lumbar spine were of normal height and
configuration with normal maintenance of the intervertebral
disc spaces. Id. There was no evidence of fracture or
dislocation. Id. There was some pseudoarthrosis formation
with the traverse process of L5 in the sacrum bilaterally,
but otherwise the lumbosacral spine was essentially normal.
Id. Similarly, the x-rays of plaintiff’s pelvis were
essentially unremarkable except for pseudoarthrosis of the
traverse processes of L5. Id.

On April 7, 2004, plaintiff was seen by Dr. Herrera for a
follow-up visit. (DX-A at Bates No. 21). Dr. Herrera noted
that plaintiff was ambulating without assistance and that
his back examination was essentially normal. Id. He
continued plaintiff on Indocin for pain. Id. Page 6

On May 27, 2004, plaintiff submitted a sick call request
complaining of unrelenting lower back pain. (DX-A at Bates
No. 22, 57). On May 28, 2004, PA Chesterfield ordered that
plaintiff be continued on Indocin. Id.

On June 24, 2004, plaintiff underwent a 90-day
administrative segregation mental health assessment. (DX-A
at Bates No. 41). The examiner noted no unusual behaviors
or traumatic events within the last 90 days. Id. Plaintiff
was oriented to person, place, and time, his thought
processes were organized, and his cognition intact. Id. His
speech was spontaneous and his thought content was within
normal limits. Id.

On July 16, 2004, plaintiff inquired as to the results of
his x-rays. (DX-A at Bates No. 56). By response dated July
17, 2004, he was informed that his x-rays were normal
except for some arthritis. Id.

On July 26, 2004, plaintiff submitted a sick call request
stating that he had run out of pain medication and was
still having pain. (DX-A at 55). He was prescribed Indocin
and given six refills. Id.

On August 18, 2004, plaintiff underwent another
administrative segregation mental health assessment. (DX-A
at Bates No. 40). His mental exam was unremarkable. Id.
Plaintiff was oriented to time, place, and person, his
speech was clear and coherent, and he had no suicidal or
homicidal ideations or hallucinations. Id.

On August 25, 2004, plaintiff submitted two sick call
requests, one complaining about his back pain, and the
other complaining about blisters on his feet. (DX-A at
Bates No. 46, 47). On August 26, 2004, Nurse Randall
responded that he had an appointment with a PA to discuss
both problems. Id. Page 7


Summary judgment is proper if there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue
is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
must examine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of
law.” Id. at 251-52. In making this determination, the
Court must consider the record as a whole by reviewing all
pleadings, depositions, affidavits and admissions on file,
and drawing all justifiable inferences in favor of the
party opposing the motions. Caboni v. Gen. Motors Corp.,
278 F.3d 448, 451 (5th Cir. 2002).

The Court may not weigh the evidence or evaluate the
credibility of witnesses. See id. Furthermore, “affidavits
shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify on
the matters stated therein.” Fed.R.Civ.P. 56(e); see also
Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559
(5th Cir. 1992) (refusing to consider affidavits that
relied on hearsay statements); Martin v. John W. Stone Oil
Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (stating
that courts cannot consider hearsay evidence in affidavits
and depositions). Unauthenticated and unverified documents
do not constitute proper summary judgment evidence. King v.
Dogan, 31 F.3d 344, 346 (5th Cir. 1994).

The moving party bears the initial burden of showing the
absence of a genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
demonstrates an absence of evidence supporting the
nonmoving party’s case, the burden shifts to the nonmoving
Page 8 party to come forward with specific facts showing
that a genuine issue for trial does exist. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
To sustain this burden, the nonmoving party cannot rest on
the mere allegations of the pleadings. FED. R. CIV. P.
56(e); Anderson, 477 U.S. at 248-49. “After the nonmovant
has been given an opportunity to raise a genuine factual
issue, if no reasonable juror could find for the nonmovant,
summary judgment will be granted.” Caboni, 278 F.3d at 451.
“If reasonable minds could differ as to the import of the
evidence . . . a verdict should not be directed.” Anderson,
477 U.S. at 250-51.

The evidence must be evaluated under the summary judgment
standard to determine whether the moving party has shown
the absence of a genuine issue of material fact. “[T]he
substantive law will identify which facts are material.
Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248.


A. Official capacity claims.

Plaintiff has sued defendants in their official and
individual capacities. He seeks $100,000 in damages. D.E. 1
at 4.

A suit against a prison employee in his official capacity
is the same as a suit against the entity the employee
represents. Kentucky v. Graham, 473 U.S. 159, 166 (1985).
The Eleventh Amendment bars a suit for money damages
against a state or state agency. Seminole Tribe of Florida
v. Florida, 517 U.S. 44 (1996). A judgment may not be
entered against a state officer in his official capacity
for violating federal law in the past. Puerto Rico Aqueduct
and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139,
146 (1993). Page 9

To the extent plaintiff is suing Dr. Herrera and Nurse
Randall in their official capacities for money damages,
those claims are barred by the Eleventh Amendment, and it
is respectfully recommended that those claims be dismissed
with prejudiced as barred.

B. Qualified Immunity.

Defendants moves for summary judgment on the grounds of
qualified immunity. The qualified immunity determination
involves a two-step analysis: first, “`whether the facts
alleged, taken in the light most favorable to the party
asserting the injury, show that the officer’s conduct
violated a constitutional right.'” Mace v. City of
Palestine, 333 F.3d 621, 623 (5th Cir. 2003) (quoting Price
v. Roark, 256 F.3d 364, 369 (5th Cir. 2001)). If a
constitutional violation is alleged, the Court must next
determine “whether the right was clearly established
— that is `whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he
confronted.'” Id. at 624 (quoting Price, 256 F.3d at 369).
Once defendants have invoked the defense of qualified
immunity, the burden shifts to plaintiff to show that the
defense is inapplicable. McClendon v. City of Columbia, 305
F.3d 314, 323 (5th Cir. 2002) (en banc) (per curiam).

The threshold question in a qualified immunity analysis is
whether a constitutional right would have been violated on
the facts alleged. Saucier v. Katz, 533 U.S. 194, 200

1. Deliberate indifference.

Plaintiff claims that Dr. Herrera and Nurse Randall were
deliberately indifferent to his serious medical needs
alleging that they “suddenly cut-off and denied further
treatment” for his severe back and hip pain. (D.E. 1 at
4). Page 10

Step 1: Constitutional violation.

In order to state a § 1983 claim for denial of
adequate medical treatment, a prisoner must allege the
official(s) acted with deliberate indifference to serious
medical needs. Wilson v. Seiter, 501 U.S. 294, 303. (1991);
Estelle v. Gamble, 429 U.S. 97, 105 (1976); Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Deliberate
indifference encompasses more than mere negligence on the
part of prison officials. Farmer v. Brennan, 511 U.S. 825,
837 (1994). It requires that prison officials be both aware
of specific facts from which the inference could be drawn
that a serious medical need exists and then the prison
official, perceiving the risk, must deliberately fail to
act. Farmer, 511 U.S. at 837. Furthermore, negligent
medical care does not constitute a valid § 1983
claim. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993). See also Graves v. Hampton, 1 F.3d 315, 319 (5th
Cir. 1993) (“[i]t is well established that negligent or
erroneous medical treatment or judgment does not provide a
basis for a § 1983 claim”). As long as prison
medical personnel exercise professional medical judgment,
their behavior will not violate a prisoner’s constitutional
rights. Youngberg v. Romeo, 457 U.S. 307, 322-23 (1982).
Finally, active treatment of a prisoner’s serious medical
condition does not constitute deliberate indifference, even
if treatment is negligently administered. See Stewart v.
Murphy, 174 F.3d 530, 534 (5th Cir. 1999); Mendoza, 989
F.2d at 195; Varnado, 920 F.2d at 321. “Deliberate
indifference is an “extremely high standard to meet.”
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001).

The uncontroverted evidence in this case, that is,
plaintiff’s medical records, establishes that Dr. Herrera
and Nurse Randall were not deliberately indifferent to
plaintiff’s serious medical needs from February 6, 2004,
the date plaintiff was allegedly assaulted by the gang
members, through August 26, 2004. Following the February 6,
2004, assault, plaintiff was seen twice in the infirmary:
Page 11 first by Nurse Garcia at 9:53 a.m. who noted that
he had redness and bruising from the attack; and second, by
Nurse Martinez at 1:32 p.m. who prescribed him Tylenol for
his pain. (DX-A at Bates No. 6, 7). The next day, plaintiff
complained about his right hip and back pain, (DX-A at
Bates No. 24, 49), and four days later he was examined by
PA Chesterfield. (DX-A at 18). Plaintiff’s examination was
essentially unremarkable, and PA Chesterfield’s assessment
was contusion to the right hip. Id. Plaintiff was
prescribed Naproxen, 500 mg., to keep on his person. Id. On
February 19, 2004, plaintiff complained of still having
pain, but Nurse Staples noted that he still had pain
medication. (DX-A at Bates No. 61).

According to the medical records, plaintiff’s first
encounter with Nurse Randall was on March 16, 2004.
Plaintiff submitted a sick call request complaining of back
pain and wanting medication for pain or anxiety. (DX-A at
Bates No. 60). Nurse Randall responded that same day that
she had sent his chart to a PA for possible renewal of his
pain medication. Id.

Plaintiff sent another sick call request to Nurse Randall
on March 18, 2004 (DX-A at Bates No. 59), and he was seen
by Dr. Herrera that day. (DX-A at 17-18). Dr. Herrera noted
plaintiff’s complaints of lower back pain and right hip
pain, and that Naproxen did not provide him with relief.
Id. Dr. Herrera then conducted an examination, including
straight leg raises, deep tendon reflexes, and range of
motion. Id. He ordered x-rays of plaintiff’s spine and
pelvis. Id. His assessment was lower back pain and hip
pain, and he prescribed plaintiff Indocin for pain relief.

On April 6, 2004, plaintiff had x-rays taken of his lumbar
spine and pelvis. (DX-A at Bates No. 53). On April 7, 2004,
plaintiff saw Dr. Herrera for follow-up care. (DX-A at 21)
Although the results of plaintiff’s x-rays were not yet
available, Dr. Herrera noted that he was ambulating without
assistance, and that his back examination was essentially
normal. Id. Dr. Herrera Page 12 continued plaintiff on
Indocin. Id. Plaintiff had no contact with Dr. Herrera
between April 2004 and the last available medical record,
August 26, 2004.

Plaintiff’s medical records do not support a claim of
deliberate indifference against Dr. Herrera. Indeed, to the
contrary, they show that plaintiff received prompt and
professional care. When plaintiff first reported to Dr.
Herrera, he complained of lower back pain, right hip pain,
and that his medication did not help. Dr. Herrera conducted
a physical examination, ordered x-rays for diagnostic
purposes, and changed plaintiff’s pain medication. He
scheduled plaintiff for a follow-up visit and saw him three
weeks later. He noted that plaintiff was ambulating. There
is no notation of increased pain. Plaintiff’s x-rays
revealed no fracture or dislocation; only pseudoarthrosis.
Plaintiff’s medical records evidence that his sick call
requests were answered, he was routinely examined,
diagnoses were made, and medications prescribed. This
evidence rebuts his allegations of deliberate indifference.
Banuelos, 41 F.3d at 235. Plaintiff has failed to state a
claim of deliberate indifference against Dr. Herrera from
February 6, 2004, through August 26, 2004.

Similarly, the evidence rebuts any claim of deliberate
indifference against Nurse Randall arising between February
6, 2004 and August 26, 2004. The undisputed evidence for
this period of time reveals that each time plaintiff filed
a sick call request, she responded within 24 hours and he
was seen by a physician or medical staff shortly
thereafter. When he complained of back and hip pain on
March 18, 2004, Nurse Randall received the sick call
request, and he was seen by Dr. Herrera that same day.
(DX-A at 59, 17-18). Similarly, when he complained of
blisters on his feet on March 22, 2004, she treated him
herself on March 25, 2005. (DX-A at 48, 44-45). Although
plaintiff claims that his sick call requests were ignored
and that medical care was delayed, the sick call requests
and medical records refute his claims. Plaintiff’s sick
call requests were answered frequently and Page 13
appointments were scheduled. (DX-A). The fact that
plaintiff routinely wrote sick call requests complaining
about his care does not refute his medical records that
care was provided. Plaintiff’s bald, conclusory allegations
are insufficient to support a substantive constitutional
claim. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Plaintiff has failed to state a constitutional violation
against Nurse Randall for the time period between February
6, 2004 and August 26, 2004.

Step 2: Objective reasonableness.

For a right to be clearly established under the second step
of the qualified immunity analysis, “[t]he contours of that
right must be sufficiently clear that a reasonable officer
would understand that what he is doing violates that
right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
However, when the plaintiff fails to state a constitutional
violation, as in this case, the Court need not examine
whether the defendant’s actions were reasonable. See
Saucier, 533 U.S. at 201 (if the facts alleged do not
establish that the officer’s conduct violated a
constitutional right, then the qualified immunity analysis
need proceed no further and qualified immunity is

In this case, plaintiff has failed to establish the
violation of a constitutional right. Defendants provided
prompt, adequate and appropriate medical care to him during
the time from the alleged assault, February 6, 2004,
through the date of plaintiff’s August 26, 2004. Plaintiff,
on the other hand, offered two different versions of the
origin of his injury, assault versus running into a water
fountain. The evidence shows that, during this time period,
he received x-rays, two thorough physical examinations, one
by a physician’s assistant and one by a medical doctor, and
was on pain medication for at least six months. Moreover,
his sick call requests were timely answered, he was
provided with keep-on-person medication passes, and was
never turned away from the infirmary. His complaints Page
14 were not ignored. Accordingly, defendants are entitled
to qualified immunity on plaintiff’s claims of deliberate
indifference to serious medical needs from February 6,
2004, through August 26, 2004.

C. Remaining Claims.

Ostensibly, defendants are seeking summary judgment on all
of plaintiff’s claims; however, they have failed to offer
any of his medical records dated after August 26, 2004.
(See DX-A). Plaintiff’s primary claim is that his pain
medication was abruptly stopped in August 2005, without
explanation, and that he has been denied proper medical
care and treatment through September of 2006. (See D.E. 18
at 2; D.E. 1, att. grievance dated 10/25/05).

Defendants offer the affidavit of Dr. Steven Mercado who
relates his opinion as to the standard of care defendants
provided. (See DX B at 3-4). However, after August 26,
2004, there are no records to support his opinion. (See
DX-A). Medical records that have not been introduced as
evidence are hearsay. Fed.R.Evid. 801(c). To the extent Dr.
Mercado’s opinion is based on medical records that have not
been introduced as evidence, it is unreliable and
inadmissable. See Fowler v. Smith, 68 F.3d 124, 126-27 (5th
Cir. 1995) (for purposes of summary judgment, only
admissible evidence included in the pretrial record may be
considered); First Southwest Lloyds Ins. Co. v. MacDowell,
769 S.W.2d 954 (Tex.App.-Texarkana 1989, writ denied) (an
expert is not permitted to relate hearsay evidence as the
basis for his opinion).

Moreover, even if Dr. Mercado’s opinion was admissible, it
too, fails to address the time period at issue: August 2005
to present. His opinion only goes to August 31, 2005, the
date plaintiff alleges his medication was stopped.

Defendants have offered little evidence to do with the case
sub judice. Plaintiff alleges that his pain medications
were maliciously cancelled in August 2005. He has submitted
grievances dated Page 15 after August 2005 that have not
been answered or denied by the medical department. (PX-B at
1-7). A genuine issue of material fact exists as to whether
plaintiff was suffering from a serious medical need and
defendants acted with deliberate indifference toward that
need from August 26, 2004 forward. To the extent defendants
were seeking summary judgment on those claims, it is
respectfully recommended that their motion be denied.


Plaintiff fails to establish that there exists a genuine
issue of material fact regarding his claims of deliberate
indifference against Dr. Herrera and Nurse Randall for the
time period between February 6, 2004 and August 26, 2004,
and defendants have established that they are entitled to
summary judgment as a matter of law as to those specific
claims. Accordingly, it is respectfully recommended that
defendants’ motion for summary judgment (D.E. 17) be
granted in part, and that plaintiff’s claims of deliberate
indifference against Dr. Herrera and Nurse Randall arising
between February 6, 2004 and August 26, 2004 be dismissed
with prejudice.

To the extent plaintiff has raised claims of deliberate
indifference for events arising after August 26, 2004 to
the present, a genuine issue of material facts exists such
that summary judgment is not proper. Accordingly, it is
recommended that summary judgment as to those claims be
denied without prejudice. Finally it is recommended that
all official capacity claims against both defendants for
money damages be dismissed. Page 16


The Clerk will file this Memorandum and Recommendation and
transmit a copy to each party or counsel. Within TEN (10)
DAYS after being served with a copy of the Memorandum and
Recommendation, a party may file with the Clerk and serve on
the United States Magistrate Judge and all parties,
written objections, pursuant to 28 U.S.C. §
636(b)(1)(C); Rule 72(b) of the Federal Rules of Civil
Procedure; and Article IV, General Order No. 2002-13,
United States District Court for the Southern District of

A party’s failure to file written objections to the
proposed findings, conclusions, and recommendations in a
magistrate judge’s report and recommendation within TEN
(10) DAYS after being served with a copy shall bar that
party, except upon grounds of plain error, from attacking
on appeal the unobjected-to proposed factual findings and
legal conclusions accepted by the district court. Douglass
v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)
(en banc).

[fn1] Defendants purported to attach 66 pages of plaintiff’s
medical records as Exhibit A to their motion for summary
judgment, however, only 22 pages were attached. (See D.E.
17 at Exh. A).

[fn2] Only the exhibits filed in defendants’ advisory (D.E.
20) will be referenced in this memorandum and
recommendation because the records attached to the original
motion for summary judgment (D.E. 17) are incomplete.
Defendants’ exhibits are referred to as “DX” followed by
the appropriate letter and page number. Plaintiff’s
exhibits are referred to as “PX.”