Blackmon v. Tex. Dep't of Criminal Justice Allan B. Polonsky Unit
| Docket Number | Civil Action 9:22-CV-182-MJT-CLS |
| Decision Date | 07 July 2023 |
| Parties | DANA BLACKMON as surviving spouse and Representative of the Estate of JACOB BLACKMON, Plaintiff, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE ALLAN B. POLONSKY UNIT, UTMB CORRECTIONAL MANAGED CARE, DANIEL DICKERSON, APRIL PERISINGER, TERESA JACKSON, and DR. ERNESTINE JULYE, Defendants. |
| Court | U.S. District Court — Eastern District of Texas |
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS (Docs. #7, 8, 17, 34) AND ORDER~FOR ADDITIONAL BRIEFING
Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to United States Magistrate Judges, the district court referred this proceeding to the undersigned United States magistrate judge to conduct all pretrial proceedings, to enter findings of fact and recommend disposition on case-dispositive matters, and to determine non-dispositive matters. See 28 U.S.C. § 636(b)(1); E.D. TEX. LOCAL R. CV-72.
Pending before the court are the following: (1) Defendants UTMB Correctional Managed Care and Dr. Enerstine Julye's Motion to Dismiss (doc. #7); (2) Defendants Texas Department of Criminal Justice: Allan B. Polonsky Unit and Daniel Dickerson's Motion to Dismiss (doc. #8); (3) Defendant April Perisinger's Motion to Dismiss (doc. #17); and (4) Defendant Teresa Jackson's Motion to Dismiss (doc. #34). After review, each motion is granted in part and denied in part, and the issue of sovereign immunity as to UTMB Correctional Managed Care will be determined later in accordance with the undersigned's briefing order.
Plaintiff Dana Blackmon filed suit on November 3, 2022 (doc. #1), alleging that, on November 3, 2020, her spouse Jacob Blackmon (“Blackmon”) died while in custody of the Texas Department of Criminal Justice at the Allan B. Polunsky Unit. (Doc. #1 at ¶ 1.) Plaintiff alleges Blackmon's death resulted from Defendants' deliberate denial of medical treatment for colon cancer. (Doc. #1 at ¶ 1.) Plaintiff brings suit against Defendants as Blackmon's surviving spouse and on behalf of Blackmon's estate, asserting three distinct claims under 42 U.S.C. § 1983:[1] (1) a claim under 42 U.S.C. § 1983 for violating Blackmon's Eighth Amendment right to medical care [hereinafter “Eighth Amendment Claim”]; (2) a claim under 42 U.S.C. § 1983 for wrongful death brought individually by Plaintiff [hereinafter “Wrongful Death Individual Claim”]; and (3) a claim under 42 U.S.C. § 1983 for wrongful death brought in a representative capacity on Blackmon's behalf [hereinafter “Wrongful Death Representative Claim”].[2] (Doc. #1.)
Defendants include the following as alleged by Plaintiff: (1) Texas Department of Criminal Justice: Allan B. Polunsky Unit (“Polunsky Unit”), a state incarceration facility located in Polk County, Texas; (2) UTMB Correctional Managed Care (“UTMB-CMC”), a healthcare entity that oversees and provides healthcare services to individuals incarcerated in the Polunsky Unit; (3) Daniel Dickerson (“Dickerson”), warden of the Polunsky Unit; (4) April Perisinger (“Perisinger”), a nurse employed by UTMB-CMC who operates at the Polunsky Unit; (5) Teresa Jackson, a nurse employed by UTMB-CMC who operates at the Polunsky Unit; and (6) Dr. Ernestine Julye (“Julye”), a doctor employed by UTMB-CMC who operates at the Polunsky Unit. (Doc. #1 at ¶¶ 7-12.) Plaintiff asserts the three § 1983 claims against Defendants UTMB-CMC, Dickerson, Perisinger, Jackson, and Julye. (Doc. #1 at ¶¶ 48-61.)
Although Plaintiff named the Polunsky Unit as a defendant in this suit, the only cause of action alleged against the Polunsky Unit was the now-dropped state law claim under section 71.004 of the Texas Civil Practice and Remedy Code (doc. #1 at ¶¶ 48, 58, 62). See supra note 2. Thus, as Plaintiff no longer alleges any cause of action against the Polunsky Unit, the undersigned recommends that the district court enter an order dismissing “TDCJ: Polunsky Unit” from this suit.
In her statement of facts, Plaintiff alleges that Blackmon was incarcerated in the Polunsky Unit from January 12, 1994, until his death on November 3, 2020. (Doc. #1 at ¶ 13.) According to Plaintiff, Blackmon first reported to officials in the Polunsky Unit that he had significant abdominal pain, the first symptom he experienced related to his colon cancer, in February 2020. (Doc. #1 at ¶ 14.) The Polunsky Unit officials did not provide Blackmon with any treatment in response to Blackmon's complaints of abdominal pain, and UTMB-CMC did not conduct any medical evaluation on Blackmon at this time, believing the pain was caused by new medications Blackmon was taking. (Doc. #1 at ¶ 15.) From February 2020 to May 2020, Blackmon's abdominal pain increased, and he began complaining of pain in his rectum along with intermittent diarrhea and constipation. (Doc. #1 at ¶¶ 16, 18.) During this time, Blackmon made multiple requests for medical treatment due to these symptoms by filing “sick call slips,” the Polunsky Unit's system for imprisoned individuals to make official and recorded requests for medical treatment from Polunsky Unit employees and UTMB-CMC, which were all ignored. (Doc. #1 at ¶¶ 17, 18.)
On or around June 10, 2020, Reginald Wallace, a physician's assistant employed at UTMB CMC, saw Blackmon, during which time Blackmon informed Wallace of his symptoms and requested as many tests as possible. (Doc. #1 at ¶ 19.) Wallace tested Blackmon's urine and feces to determine the presence of a bacterial infection or other medical issues. (Doc. # 1 at ¶ 19.) Blackmon waited several weeks, but he was never informed of the test results. (Doc. #1 at ¶ 19.) During this time, Blackmon continued to experience severe pain and significant gastrointestinal symptoms, which had escalated to include rectal bleeding, and filed numerous sick call slips informing UTMB-CMC and the Polunsky Unit of his symptoms and requesting immediate medical attention; however, Blackmon received no response from UTMB-CMC or the Polunsky Unit. (Doc. #1 at ¶ 20.) Blackmon also informed Plaintiff, his spouse, of his symptoms and the lack of response from Defendants. (Doc. #1 at ¶ 21.)
On June 30, 2020, the results of Wallace's tests showed a negative result for the presence of a bacterial infection, but a positive fecal immunochemical (“FIT”) result for the presence of blood in his feces-an indication of colon cancer. (Doc. #1 at ¶ 22.) As a result, Paul Reilley, a physician's assistant employed at UTMB-CMC, filled out a health service referral request on July 2, 2020, requesting that Blackmon receive an expedited referral to a gastroenterologist for colon cancer screening. (Doc. #1 at ¶ 23.) Despite the expedited request, however, Blackmon was not taken to see a gastroenterologist for colon cancer screening; rather, Blackmon was taken to see Defendant Julye, a doctor employed by UTMB-CMC at the Polunsky Unit. (Doc. #1 at ¶ 24.) Julye evaluated Blackmon, and her examination of Blackmon confirmed that he had a bump at or around his colon. (Doc. #1 at ¶ 25.) Despite the bump and Blackmon's test results, Julye determined that Blackmon had a “bacterial infection and diagnosed him with prostatitis. (Doc. #1 at ¶ 25.) Additionally, throughout the exam, Julye “verbally and wantonly ridiculed” Blackmon for his belief that he had colon cancer and that his symptoms were serious. (Doc. #1 at ¶ 26.) Julye did not exam Blackmon's colon or try to determine why he was experiencing such pain in that area, despite his positive FIT test result. (Doc. #1 at ¶ 26.). Defendants note that during this time Texas experienced what was then an all-time high of COVID-19 patient hospitalizations. (Doc. #7 at 6 n.4.)
Following Julye's exam, Blackmon's symptoms worsened as he experienced “significantly more pain, blood in his feces, and was having between twelve (12) and fifteen (15) bowel movements per day,” during which time Plaintiff began calling and writing letters to the Polunsky Unit and UTMB-CMC employees in an attempt for Blackmon to receive appropriate care. (Doc. #1 at ¶ 27.) Despite his worsening symptoms, Julye reiterated to Plaintiff that “nothing was wrong with her husband's colon, and that Blackmon's concerns about colon cancer were not serious.” (Doc. #1 at ¶ 28.) In the meantime, Blackmon continued filing sick call slips, to which Julye began “irately responding . . . in an apparent retaliation for the complaints.” (Doc. #1 at ¶ 29.) Specifically, on or around July 27, 2020, when Blackmon called to complain about his pain, a nurse responded, and Julye wrote in her medical report that Blackmon's concerns about colon cancer should be ignored. (Doc. #1 at ¶ 30.)
On or around August 23, 2020, after Blackmon called Plaintiff crying due to excruciating pain and rectal bleeding Plaintiff called the Polunsky Unit to complain about her husband's care and spoke with Defendant Perisinger, who told Plaintiff that Blackmon had hemorrhoids, despite his medical records confirming that he did not. (Doc. #1 at ¶¶ 31-32.) Perisinger then hung up on Plaintiff. (Doc. #1 a ¶ 32.) On another occasion, two Polunsky Unit officers and Defendant Jackson went to inspect Blackmon's “hemorrhoids,” and Blackmon informed Jackson that he was experiencing rectal bleeding, not hemorrhoids. (Doc. #1 at ¶ 33.) Jackson gave Blackmon Pepto-Bismol, left, and never followed up with him, even though Blackmon's bowel movements had increased to twenty per day accompanied by significant fecal bleeding at the time. (Doc. #1 at ¶ 33.) Blackmon continued to...
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