Hilmers v. Khoshdel
| Decision Date | 15 September 2015 |
| Docket Number | CIVIL ACTION NO. H-13-3795 |
| Parties | PATRICK C. HILMERS, JR., (TDCJ-CID #1043350) Plaintiff, v. DR. ABBAS KHOSHDEL, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Patrick C. Hilmers, Jr., an inmate in the Texas Department of Criminal Justice - Correctional Institutions Division (TDCJ-CID), sues under 42 U.S.C. § 1983, alleging that prison officials at the Estelle and Wynne Units violated his civil rights by denying him medical care, denying him due process, and failing to protect his safety. He proceeds pro se and in forma pauperis.
Seven of the defendants have moved to dismiss on the grounds that Hilmers has failed to state a claim upon which relief can be granted and that they are entitled to qualified immunity. (Docket Entry No. 16, 17). Hilmers has responded and filed an amended complaint. (Docket Entry No. 24).
Based on the pleadings, the motions to dismiss, the record, and the applicable law, this court grants the motion to amend, motions to dismiss, considering the amended complaint, and enters final judgment by separate order. The reasons for these rulings are stated in detail below.
Hilmers sues Bobby Vincent, UTMB Medical Director Region I, Estelle Unit, and twelve defendants at the Wynne Unit: Dr. Abbas Khoshdel, University of Texas Medical Branch (UTMB)physician; Pamela Williams, UTMB/CMC Correctional Clinical Assistant; Lisa Ford, UTMB/CMC Correctional Clinical Assistant; Keenan Harrison, UTMB/CMC Correctional Clinical Assistant; E.R. Garcia; Vernon K. Pittman, Senior Warden II; Kevin Mayfield, Assistant Warden; Brian D. Smith, Major; Bruce C. Baggett, disciplinary captain; Robert H. Quada, Jr., Librarian II; Anitra Lindley, Region I Practice Manager; and Latarsha Gamble, Correctional Officer III. In his amended complaint, Hilmers also sues Myra L. Walker, UTMB registered nurse; Amelia Hilterline, correctional officer V; and Laura Richey, unit grievance investigator. (Docket Entry No. 24-1, pp. 3-4).
The Texas Attorney General's Office advised that Dr. Abbas Khoshdel and Pamela Williams no longer work for the TDCJ and are not represented by the Attorney General's Office. (Docket Entry No. 18). The Attorney General's Office further advised that it does not represent Vernon Pittman, Kevin Mayfield, Latarsha Gamble, Robert Quada, Jr., Bruce Baggett, and Brian D. Smith. (Docket Entry No. 13). Nine defendants have not been served: Dr. Abbas Khoshdel; Pamela Williams; Vernon K. Pittman; Brian D. Smith; Robert H. Quada, Jr.; Latarsha Gamble; Myra L. Walker; Amelia Hilterline; and Laura Richey.
Hilmers alleges that in 2008, he was diagnosed with ulcerative colitis and Crohn's disease. He has chronic diarrhea, rectal bleeding, and excessive bowel movements. He alleges that in prison, he repeatedly requested extra toilet paper, but Dr. Khoshdel refused on the ground that UTMB policy prevents medical personnel from issuing extra toilet paper as a medical necessity. Hilmers alleges that he was forced to tear up sheets and use wet t-shirts and newspapers to clean himself. Despite Dr. Khoshdel's order, on December 30, 2010, Hilmers was able to get a pass for extra toilet paper. The pass was reissued on July 2, 2011. Hilmers went to Dr. Khoshdel on December 30, 2011 to askhim to renew the pass. Hilmers alleges that Dr. Khoshdel became angry and subjected him to an unnecessary and abusive rectal examination that caused him pain. Hilmers alleges that Dr. Khoshdel did not use less intrusive means to examine him, such as testing stool samples, listening for bowel sounds, and palpating the abdomen. Hilmers alleges that Dr. Khoshdel instead performed a deviant sexual act by inserting his finger into Hilmers's rectum. Hilmers alleges that this was the first rectal examination Dr. Khoshdel had performed on him since April 2008.
After the rectal exam, Hilmers began seeing blood on toilet paper and continued to have pain. Hilmers filed a sick call request on January 3, 2012 to see if Dr. Khoshdel had torn his rectal wall or prostate during the rectal exam. On January 6, 2012, Hilmers met with Harrison and two UTMB clinical assistants at the Wynne Unit, who tried to locate the sick call request. On January 5, 2011, Hilmers complained about Dr. Khoshdel's conduct to Dr. Bobby Vincent, the UTMB medical director. Hilmers alleges that he had notified Dr. Vincent about Dr. Khoshdel's unwritten policy of refusing passes for extra toilet paper in 2008. Hilmers argues that if Dr. Vincent had acted on the earlier complaints, the December 30, 2011 incident would not have occurred.
On January 5, 2012, Hilmers also informed Warden Pittman of Dr. Khoshdel's abusive rectal exam. Hilmers alleges that Warden Pittman had a duty to investigate the allegations and did not.
On January 13, 2012, Hilmers submitted a Step Two grievance. The response was that Hilmers had received medical care and the examination had been conducted with a chaperone, which addressed the concerns. Hilmers admits that his pass for extra toilet paper was renewed.
Hilmers alleges that on February 10 and 17, 2012, defendant Lindley, a Senior I Practice Manager at the Wynne Unit, learned about the incident but did not discuss it with him. Hilmers alleges that Lindley had been aware of Dr. Khoshdel's unwritten policy of denying extra toilet papersince 2010, and that Lindley had authorized the extra toilet paper under policy A-08.8, despite Dr. Khoshdel. Hilmers alleges that Lindley knew how Dr. Khoshdel would react when he learned that Hilmers had received a pass for extra toilet paper. Hilmers alleges that Lindley did not depose defendants Harrison, Ford, Williams, and Gamble, as well as Michael Martinez, a fellow inmate who was in the clinic when the rectal exam occurred, to preserve their testimony about the incident.
On January 29, 2012, Hilmers was examined by a physician at the UTMB hospital in Galveston. A colonoscopy scheduled for April 13, 2012, had to be rescheduled for April 21, 2012.
Hilmers asserts that Mayfield, Baggett, Garcia, and Smith have retaliated against him for filing grievances and complaints against Dr. Khoshdel. On April 6, 2012, Hilmers sent the Clerk of the United States District Court a large flat box containing blood and feces on toilet paper to serve as DNA evidence. He alleges that on April 9, 2012, Quada learned that Hilmers had mailed this evidence to the court. On April 17, 2012, Garcia, an employee of the Wynne Unit, summoned Hilmers to his office and questioned him about sending the DNA evidence to a judge. Hilmers responded that he did not send bloody toilet paper to a judge, but instead to the Clerk of Court, to be stored in a forensic evidence room.
Hilmers alleges that on April 17, 2012, a false disciplinary charge was filed against him. The charge was that:
Hilmers, Patrick Cliff did expose Judge Hoyt of the United States District Court Southern District to toilet tissue containing blood and feces by sending such item by way of legal mail. Furthermore, did send the toilet tissue containing blood and feces to the judge, a felony as defined by laws of the United States in violation of 18 U.S.C. § 1716, injurious article as charged.
Hilmers was also charged with violating BP-3.91 of the Uniform Offender Correspondence Rules and TDCJ offense codes 3.5 and 10.0. Hilmers alleges that Smith filed these false charges to cover up the aggravated assault by Dr. Khoshdel and to prevent Hilmers from sending mail to the court. Hilmers alleges that Assistant Warden Mayfield's refusal to intervene amounted to deliberate indifference.
On April 23, 2012, Baggett conducted a hearing in the disciplinary case. Hilmers alleges that he had a counsel substitute, but that she never identified herself as his counsel substitute. Baggett found Hilmers guilty and punished him with a 45-day cell restriction, 45- day commissary restriction, 15 days in solitary confinement, a reduction in good-time earning class from state-approved Trusty 3 to Line 1, and a loss of 365 days of good-time credit. Hilmers states that he is ineligible for release on mandatory supervision. Hilmers also alleges that after the disciplinary conviction, prison officials placed him in a different unit. Hilmers filed grievances on April 24, and May 11, 2012, without success. He alleges that Senior Warden Mayfield was aware of his grievances but failed to investigate or respond. Hilmers seeks compensatory damages, punitive damages, and nominal damages against the defendants in varying amounts. (Docket Entry No. 24-5, pp. 12-14).
The allegations and motions to dismiss are examined in light of the legal standards that apply.
Rule 12(b)(6) allows dismissal if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), the Supreme Court confirmed that Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to Relief." FED.R. CIV. P. 8(a)(2). A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570; see also Elsensohn v. St. Tammany Parish Sheriff's Office, 530 F.3d 368, 372 (5th Cir. 2008) (quoting Twombly, 550 U.S. 544).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court clarified that under Rule 8(a)(2), plaintiffs are not required to include "'detailed factual allegations,' but more than 'an unadorned, the-defendant-unlawfully-harmed-me accusation' is needed." Id. (quoting Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1950 (citing Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. at 1949 (quoting Twom...
To continue reading
Request your trial