Jolly v. Klein

Decision Date29 March 1996
Docket NumberCivil A. No. H-94-2706.
PartiesThaddeus Michael JOLLY, Plaintiff, v. Donald KLEIN, Duane Ray Boyd, Richard Hendell and Johnny Klevenhagen, Defendants.
CourtU.S. District Court — Southern District of Texas

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Stephen E. Scheve, Shook, Hardy & Bacon, Houston, TX, for Plaintiff.

Deborah L. Leach, Office of Attorney General, Austin, TX, for Donald Klein.

Michael Paul Flemin, Assistant County Attorney, Houston, TX, for Boyd and Klevenhagen.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is Defendant Klein's Motion to Dismiss (# 34) and Supplemental Motion to Dismiss (# 46). Having considered the motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the motions should be GRANTED IN PART and DENIED IN PART.

I. Background

On August 26, 1991, plaintiff Thaddeus Michael Jolly ("Jolly") was arrested for delivery of a controlled substance and was taken to the Harris County Central Jail to await trial. According to Jolly, in October 1991, he noticed a yellow pus-like substance emanating from his penis when he tried to urinate. He requested to see the medical doctor on duty at the jail, defendant Donald Klein ("Dr. Klein"), about this condition. He alleges that he submitted a number of requests to see the doctor during the month of October 1991, but he was never given an appointment. Finally, in November 1991, defendant Duane Ray Boyd ("Boyd"), the Sexually Transmitted Disease Counselor at the jail, who is not a licensed physician, spoke with Jolly about his problem. Jolly states that although Boyd refused to refer him to a doctor, Boyd took blood samples from him. Boyd reported to Jolly that his blood tests did not reveal the presence of a sexually transmitted disease. Jolly, however, continued to notice a discharge from his penis and to experience urinary problems and pain in his testicle area.

Jolly claims that he forwarded numerous requests over the ensuing seven months to see Dr. Klein and the medical department, all to no avail. He alleges that he handed the request forms to several nurses to deliver to the doctor and spoke to various nurses about his medical problem, but was told he had to wait until an appointment was set up to see the doctor. Jolly contends that on June 11, 1992, he spoke with Nurse Peavy about his condition and explained to her that he had forwarded several requests for medical attention to Dr. Klein and the medical staff, yet all had gone unanswered. According to Jolly, Nurse Peavy reached on a desk where there was a small stack of request forms, including a request bearing Jolly's name and medical complaint. Jolly alleges that Peavy showed him the request and stated that he "had a request on file and the Doctor was aware of his complaint." Peavy also allegedly told him that he would have to wait for an appointment and said that if he forwarded any more requests to the medical department with the same problem, they would only be discarded. In June 1992, Jolly filed a grievance against Dr. Klein and the medical staff for refusing to give him medical attention. Jolly asserts that he received neither a response to his grievance nor any medical attention.

Jolly appeared in court on July 6, 1992, and was appointed counsel to represent him in connection with the drug charges. He was convicted of delivery of a controlled substance on July 8, 1992. During this time period, as well as having urinary problems, pain, and discharge from his penis, Jolly noticed that his right testicle had decreased in size, as if something had caused it to decay. Boyd saw Jolly again in July 1992, at which time he allegedly refused to refer Jolly to a physician. Jolly's blood was drawn, and Boyd reported to Jolly that the test results were normal. According to Jolly, during this visit, Boyd made jokes about his testicle decreasing in size, stating that Jolly "shouldn't worry, because if he lost a testicle, he had another." Jolly also alleges that Boyd tried to compare Jolly to himself, saying that he had lived with one testicle for several years and his health was just fine.

After his counsel obtained a court order compelling the medical department to give Jolly medical attention, he was seen by Dr. Klein in August 1992. According to Jolly, he explained his symptoms to Dr. Klein, who noticed that there was an enormous size differential between Jolly's testicles and suggested that blood be drawn and tested. Jolly claims that he never received a follow-up appointment or test results from Dr. Klein. Jolly's counsel obtained a second court order mandating a medical examination and wrote a letter on October 14, 1992, to defendant Johnny Klevenhagen ("Klevenhagen"), the Sheriff of Harris County, Texas, requesting his assistance in seeing that Jolly was seen by a licensed urologist. In November 1992, Jolly was examined at the urology clinic at L.B.J. Hospital by Dr. McAndrews. Dr. McAndrews was unable to diagnose Jolly's condition, although he took an ultrasound of his testicle in an effort to discover the cause for its decay. While Dr. McAndrews reportedly advised Jolly that his health was fine, he continued to experience penile discharges and pain in his testicle area.

In February 1993, Jolly was transferred to the Texas Department of Criminal JusticeInstitutional Division. Upon arriving at the Hightower Unit, he was promptly seen by a physician's assistant, Mr. Crosby, who took blood and urine samples from Jolly. A few days later, Crosby told Jolly that the tests had revealed that he was suffering from chlamydia. Jolly was prescribed tetracycline for the infection, which ultimately was cured, but Jolly claims that he has continued to experience urinary problems and severe testicular problems. At the time he filed this lawsuit on October 4, 1994, Jolly reported that he was under the care of the Hightower Unit physician, Dr. Behrens, who, according to Jolly, had told him that due to the length of time that he had carried the disease while being untreated, there was a great possibility that he would have permanent bladder and testicular problems and that he would be sterile and infertile.

Jolly claims that his Eighth Amendment right to be free from cruel and unusual punishment was violated when 1) he was made to suffer excruciating pain for eighteen months or more due to a penile infection, which also caused an atrophy of one of his testicles, 2) he was denied adequate and prompt medical care, 3) he was subjected to eighteen months of unnecessary and wanton infliction of pain due to the defendants' reckless disregard, deliberate indifference, and intentional mistreatment of his medical needs, and 4) he continues to have excruciating pains in his testicular area and severe urinary problems. Jolly also alleges that defendants owed him a duty of reasonable care to provide him with adequate medical care and they breached that duty by their failure to provide prompt and adequate medical care for his penile infection and atrophy of his testicle, resulting in humiliation, embarrassment, frustration, excruciating pain, and mental anguish.

Defendant Klein moves to dismiss this suit under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the grounds that (1) Jolly's claims against Klein are frivolous under 28 U.S.C. § 1915(d), (2) his complaint fails to state facts, which, if proven, would defeat the defense of qualified immunity, and (3) his lawsuit against Klein, in his official capacity, is barred by the Eleventh Amendment. In his supplemental motion, Klein moves to dismiss Jolly's negligence claims alleging that (1) Jolly does not have a cause of action for medical malpractice and (2) Klein is entitled to official immunity from a medical malpractice claim.

II. Analysis
A. The Applicable Standards
1. Lack of Subject Matter Jurisdiction

A motion to dismiss for lack of subject matter jurisdiction under Fed. R.Civ.P. 12(b)(1) may be granted on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir.1989); Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the court must take as true all of the allegations of the complaint. Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995); Garcia v. United States, 776 F.2d 116, 117 (5th Cir.1985). A motion to dismiss under Rule 12(b)(1) should not be granted "unless it appears certain that the plaintiff cannot prove any set of facts in support of his claim which would entitle him to relief." Saraw Partnership, 67 F.3d at 569; Hobbs v. Hawkins, 968 F.2d 471, 475 (5th Cir.1992); Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992) (citing Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 742 n. 1, 96 S.Ct. 1848, 1850 n. 1, 48 L.Ed.2d 338 (1976)).

Jurisdiction is essentially the authority conferred by Congress to decide a given type of case. Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379-80, 39 L.Ed.2d 577 (1974). In the absence of diversity of citizenship, it is essential that a substantial federal question be presented to support jurisdiction. Id. at 536-37, 94 S.Ct. at 1378-79 (citing Ex parte Poresky, 290 U.S. 30, 31-32, 54 S.Ct. 3, 4-5, 78 L.Ed. 152 (1933)). "Federal courts are without power to entertain claims otherwise within their jurisdiction, if they are `so attenuated and...

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