IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LAWRENCE SUNDERLAND, §

§

Plaintiff, §

§

V. § NO. 4:22-CV-742-O

§

ASHLEE E. CHAVEZ, et al., §

§

Defendants. §

OPINION AND ORDER

Came on for consideration the motions to dismiss filed by Defendants Zardain, Koehn, 

Morath, Page, Zaloski, and Britten. ECF Nos. 17, 19, & 34. The Court, having considered the 

motions, the responses of Plaintiff, Lawrence Sunderland, ECF Nos. 42, 45, & 46, the replies, ECF 

Nos. 51 & 52, the record, and applicable authorities, concludes that Plaintiff’s claims against 

Defendants Britten, Page, and Zardain must be DISMISSED and that the motions should 

otherwise be DENIED. In addition, the Court concludes that Plaintiff’s motion for leave to amend 

should be GRANTED.

I. BACKGROUND

On August 24, 2022, the Clerk received for filing Plaintiff’s complaint in this action.1

Plaintiff complains about events that began at approximately 11:15 a.m. on November 27, 2021, 

at the James V. Allred Unit. In sum, Plaintiff alleges: For the fourth day he was not allowed outof-cell recreation or a shower. His requests to speak to a supervisor were ignored, so Plaintiff put 

his foot in the food tray slot to summon a ranking supervisor. A supervisor arrived and told Plaintiff 

1 Although the complaint bore a signature date of July 25, 2022, the envelope in which it arrived reflected that it had 

been returned to Plaintiff for postage.

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he would not be allowed to shower. Plaintiff removed his foot from the tray slot. Thirty to fortyfive minutes later, a “major use of force team” arrived, led by Defendant Chavez. She ordered 

Plaintiff to submit to a strip search. He complied with her orders, but she pretended that he did not 

and twice caused him to be sprayed in the face with chemical agents, blinding and disorienting 

him and causing great pain. The use of force team came into the cell and Defendants Odom, 

Rodriguez-Carillo, and Givens beat him. Odom broke Plaintiff’s arm. Defendant Zaloski, a 

licensed nurse on the scene, did not stop the violence or treat Plaintiff’s wounds. Plaintiff was left 

naked in a cell for several days. Defendant Samson repeatedly refused to get aid for Plaintiff. 

Defendant Morath also refused to get aid for Plaintiff. Eventually, Plaintiff was locked into a 

standing cage to await transport to the hospital. Defendant Koehn asked if Plaintiff was in a lot of 

pain and when he responded that he was, Koehn had a nurse give him one Tylenol, advising him 

to keep his mouth shut and not make any trouble about what had happened at the unit. Once 

Plaintiff arrived at the hospital, Defendant Zardain reviewed x-rays and told Plaintiff he needed an 

orthopedic surgeon as soon as possible. He eventually told Plaintiff he could not arrange the 

surgery and was returning him to the unit. Defendant Page did not respond to Plaintiff’s emergency 

grievance for 63 days. Defendant Britten initially told Plaintiff what a lot of work it would be to 

realign his arm and later determined that it would be too much trouble. He refused to do the 

surgery.

Plaintiff has filed a motion for leave to amend his complaint. ECF No. 41. In it, he clarifies 

that he is suing the Defendants in their individual capacities. None of the Defendants has filed a 

response to the motion. The Court accepts the clarification as an amendment without the need for 

Plaintiff to refile his complaint.

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II. APPLICABLE LEGAL STANDARDS

A. Pleading

Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the 

applicable standard of pleading. It requires that a complaint contain “a short and plain statement 

of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), “in order to give 

the defendant fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks and ellipsis omitted). Although a 

complaint need not contain detailed factual allegations, the “showing” contemplated by Rule 8 

requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a 

cause of action. Twombly, 550 U.S. at 555 & n.3. Thus, while a court must accept all of the factual 

allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported 

by any factual underpinnings. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal 

conclusions can provide the framework of a complaint, they must be supported by factual 

allegations.”).

Moreover, to survive a motion to dismiss for failure to state a claim, the facts pleaded must 

allow the court to infer that the plaintiff's right to relief is plausible. Iqbal, 556 U.S. at 678. To 

allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely 

consistent with unlawful conduct are insufficient. Id. In other words, where the facts pleaded do 

no more than permit the court to infer the possibility of misconduct, the complaint has not shown 

that the pleader is entitled to relief. Id. at 679. “Determining whether a complaint states a plausible 

claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its 

judicial experience and common sense.” Id.

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In considering a motion to dismiss for failure to state a claim, the court may consider 

documents attached to the motion if they are referred to in the plaintiff=s complaint and are central 

to the plaintiff=s claims. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). The court 

may also refer to matters of public record. Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986); Davis 

v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995); Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th 

Cir. 1994). This includes taking notice of pending judicial proceedings. Patterson v. Mobil Oil 

Corp., 335 F.3d 476, 481 n.1 (5th Cir. 2003). And, it includes taking notice of governmental 

websites. Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005); Coleman v. 

Dretke, 409 F.3d 665, 667 (5th Cir. 2005).

B. Qualified Immunity

Qualified immunity insulates a government official from civil damages liability when the 

official’s actions do not “violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For a 

right to be “clearly established,” that right’s contours must be “sufficiently clear that a reasonable 

official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 

U.S. 635, 640 (1987). Individual liability thus turns on the objective legal reasonableness of the 

defendant’s actions assessed in light of clearly established law at the time. Hunter v. Bryant, 502 

U.S. 224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the Supreme Court explained that 

a key question is “whether that law was clearly established at the time an action occurred,” because 

“[i]f the law at that time was not clearly established, an official could not reasonably be expected 

to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law 

forbade conduct not previously identified as unlawful.” 457 U.S. at 818. In assessing whether the 

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law was clearly established at the time, the court is to consider all relevant legal authority, whether 

cited by the parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If public officials of 

reasonable competence could differ on the lawfulness of defendant’s actions, the defendant is 

entitled to qualified immunity. Mullenix v. Luna, 577 U.S. 7, 11 (2015); Malley v. Briggs, 475 U.S. 

335, 341 (1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992).

In analyzing whether an individual defendant is entitled to qualified immunity, the court 

considers whether the plaintiff has alleged any violation of a clearly established right, and if so,

whether the individual defendant’s conduct was objectively reasonable. Siegert v. Gilley, 500 U.S. 

226, 231 (1991); Duckett v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In so doing, 

the court should not assume that the plaintiff has stated a claim, i.e., asserted a violation of a 

constitutional right. Siegert, 500 U.S. at 232. Rather, the court must be certain that, if the facts 

alleged by the plaintiff are true, a violation has clearly occurred. Connelly v. Comptroller, 876 F.2d 

1209, 1212 (5th Cir. 1989). Even if defendants are alleged to have acted in unison, the court must 

address the actions of each individually to determine whether qualified immunity applies. Cass v. 

City of Abilene, 814 F.3d 721, 730-31 (5th Cir. 2016); Meadours v. Ermel, 483 F.3d 417, 421-22 

(5th Cir. 2007); Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999).

A mistake in judgment does not cause an officer to lose his qualified immunity defense. In 

Hunter, the Supreme Court explained:

The qualified immunity standard “gives ample room for mistaken 

judgments” by protecting “all but the plainly incompetent or those who knowingly 

violate the law.” Malley, [475 U.S.] at 343. . . . This accommodation for reasonable 

error exists because “officials should not err always on the side of caution” because 

they fear being sued.

502 U.S. at 229. “[A]n allegation of malice is not sufficient to defeat immunity if the defendant 

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acted in an objectively reasonable manner.” Malley, 475 U.S. at 341. Further, that the officer 

himself may have created the situation does not change the analysis. That he could have handled 

the situation better does not affect his entitlement to qualified immunity. Young v. City of Killeen, 

775 F.2d 1349, 1352-53 (5th Cir. 1985).

When a defendant relies on qualified immunity, the burden is on the plaintiff to negate the 

defense. Kovacic v. Villareal, 628 F.3d 209, 211-12 (5th Cir. 2010); Foster v. City of Lake Jackson, 

28 F.3d 425, 428 (5th Cir. 1994). The standard is demanding. Vincent v. City of Sulphur, 805 F.3d 

543, 547 (5th Cir. 2015). Although Supreme Court precedent does not require a case directly on 

point, existing precedent must place the statutory or constitutional question beyond debate. White

v. Pauly, 137 S. Ct. 548, 551 (2017). That is, the clearly established law upon which the plaintiff 

relies should not be defined at a high level of generality, but must be particularized to the facts of 

the case. Id. at 552. Thus, failure to identify a case where an officer acting under similar 

circumstances was held to have violated a plaintiff’s rights will most likely defeat the plaintiff’s 

ability to overcome a qualified immunity defense. Id.; Surratt v. McClarin, 851 F.3d 389, 392 (5th 

Cir. 2017).

C. Deliberate Indifference

The Eighth Amendment proscribes cruel and unusual punishments, which the Supreme 

Court has interpreted to include deliberate indifference to serious medical needs of prisoners. 

Estelle v. Gamble, 429 U.S. 97, 104 (1976). For deliberate indifference to rise to the level of a 

constitutional violation, the plaintiff must establish that the defendant knew of and disregarded an 

excessive risk to the plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). 

The defendant “must both be aware of facts from which the inference could be drawn that a 

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substantial risk of serious harm exists, and he must also draw the inference.” Id. A defendant’s 

“failure to alleviate a significant risk that he should have perceived but did not” does not constitute 

a constitutional violation. Id. at 838. Deliberate indifference is an extremely high standard to meet. 

Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). It requires the plaintiff 

to show that prison officials “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.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quoting 

Domino, 239 F.3d at 756). “Unsuccessful medical treatment, acts of negligence, or medical 

malpractice do not constitute deliberate indifference, nor does a prisoner’s disagreement with his 

medical treatment, absent exceptional circumstances.” Gobert, 463 F.3d at 346.2 

III. ANALYSIS

A. Dr. Britten

Dr. Britten urges two grounds in support of his motion to dismiss. First, Plaintiff failed to 

exhaust his administrative remedies as to the claims against Dr. Britten. Second, Plaintiff has 

alleged nothing more than a disagreement with Dr. Britten’s medical treatment. ECF No. 34. The 

Court need not address the first ground, because it is clear that Plaintiff has not pleaded sufficient 

facts to state a claim of deliberate indifference against Dr. Britten.

Plaintiff alleges that he saw Dr. Britten, an orthopedic specialist, on December 22, 2021. 

ECF No. 1 at 21.3 Dr. Britten explained how he would have to do the surgery, complaining that 

2 The cases cited by Gobert do not explain what such exceptional circumstances might be. Whether to provide 

additional treatment is a classic example of a matter for medical judgment. Estelle v. Gamble, 429 U.S. 97, 107 (1976); 

Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001).

3 The reference is to “Page __ of 24” reflected at the top right portion of the document on the Court’s electronic filing 

system.

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he would have “to scrape callous grown around broken pieces of bone before using metal plates 

and screws” to set the bone. Id. at 21–22. His complaints arose out of the twenty-seven-day delay 

between the injury and seeing Plaintiff. Id. at 22. He scheduled surgery for the following week. 

Thereafter, Plaintiff had a positive COVID test and the surgery was canceled. When Plaintiff saw 

Dr. Britten again, on January 26, 2022, Dr. Britten told him that it would be too much trouble to 

scrape off all the callous growth and that the bone would have to heal as it was. He told Plaintiff 

that the surgery would not be happening “for now,” but that he would see him again in two weeks 

for more x-rays. Instead, Plaintiff was returned to his unit. Id.

At best, Plaintiff has alleged a disagreement with Dr. Britten’s medical opinion that 

Plaintiff did not need surgery at a particular point in time in order for his arm to heal. Plaintiff has 

not pleaded any facts to show that Dr. Britten was responsible for the delay in examinations either 

before or after the December 22 visit. He has not pleaded any facts to show that Dr. Britten was 

deliberately indifferent to his serious medical needs, i.e., refused to treat him, ignored his 

complaints, intentionally treated him incorrectly, or engaged in any similar conduct. Gobert, 463 

F.3d at 346; Domino, 239 F.3d at 756. According to Plaintiff, Dr. Britten expected to see him again 

in two weeks for further evaluation. ECF No. 1 at 22. Plaintiff has not pleaded any facts to show 

that Dr. Britten refused to treat him further.

B. Defendants Koehn, Page Zaloski, and Morath

Defendants Koehn, Page, Zaloski, and Morath were employees of Texas Tech University 

Health Sciences Center (“TTUHSC”) at all times relevant to the claims asserted. ECF No. 19 at 4.

A suit against a person in his official capacity is a suit against his employer. Kentucky v. Graham, 

473 U.S. 159, 165 (1985). TTUHSC is an agency of the State of Texas, and, as such, is immune 

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from suit pursuant to the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 

U.S. 89, 100 (1984). Texas has not waived its sovereign immunity. Cox. v. Texas, 354 F. App’x 

901, 902–03 (5th Cir. 2009). Apparently recognizing this, Plaintiff has clarified that he did not and 

does not intend to assert any official capacity claims. ECF No. 41. Accordingly, this ground of the 

motion, ECF No. 19, is moot. 

Defendants Koehn and Page maintain that Plaintiff has not alleged that they were 

deliberately indifferent to his medical needs. ECF No. 19 at 4–6. They also say that they are entitled 

to qualified immunity. Id. at 6–7.4 As for Defendant Koehn, the Court is satisfied that Plaintiff has 

pleaded a claim. Koehn obviously knew what had happened to Plaintiff given his directive to 

Plaintiff to keep his mouth shut. And, ordering one Tylenol when emergency room personnel 

ordered “powerful morphine pain killer” indicates that Koehn intentionally treated Plaintiff 

incorrectly or evinced wanton disregard for his medical needs. ECF No. 1 at 18–19. Koehn’s 

argument that he is entitled to qualified immunity is based on the contention that Plaintiff failed to 

plead a claim against him. Accordingly, that ground of the motion fails.

As for Defendant Page, Plaintiff appears to contend that Page is responsible for the delay 

in medical care from the date of the use of force until Plaintiff was sent to the hospital on December 

2, 2021, and again from that date until he saw an orthopedic surgeon on December 22, 2021. Id.

at 20–21. However, he does not allege any facts to show that Page deliberately delayed or denied 

medical treatment. See Dickerson v. Murray, No. 9:11cv78, 2012 WL 1314216, at *11 (E.D. Tex. 

Feb. 28, 2012) (delay of 26 days before seeing a specialist is not a deprivation of rights), adopted, 

2012 WL 1314109 (E.D. Tex. Apr. 16, 2012). In fact, Plaintiff has not alleged any facts to show 

4 The motion does not address claim against Defendants Zaloski and Morath in their individual capacities. ECF No. 

19 at 1.

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Page’s personal involvement except that Page signed a response to a grievance.5See ECF No. 1 

at 21 (referring to events “on [Page’s] watch” and “under medical administration” and 

“responsibility” of Page). Instead, it appears that Plaintiff is dissatisfied with the handling of that

grievance, 6but he does not have a constitutional right to have grievances resolved to his 

satisfaction. Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Based on the facts pleaded, 

Plaintiff has not stated a claim under § 1983 against Page. See Monell v. New York City Dep't of 

Soc. Servs., 436 U.S. 658, 691 (1978) (doctrine of respondeat superior does not apply in a § 1983 

action).

Finally, the TTUHSC Defendants urge that Plaintiff is not entitled to injunctive relief 

against them. For the reasons discussed in the motion, ECF No. 19 at 7–9, Plaintiff has not pleaded 

facts to establish that such relief would be authorized or appropriate. 

C. Dr. Zardain7

Defendant Zardain was the treating physician in the emergency room on December 2, 2021.

Plaintiff alleges that Dr. Zardain reviewed x-ray images and told him that he would need an 

orthopedic surgeon as soon as possible to repair the femur in his right arm. ECF No. 1 at 19. Dr. 

Zardain returned several times over the course of six to eight hours and told Plaintiff he was trying 

to schedule him for surgery “now.” Id.; ECF No. 42 at 1 (noting that the emergency room doctor 

5 A party cannot supplement his pleadings in his response to a motion to dismiss. Mun. Employees’ Ret. Sys. v. Pier 

1 Imports, Inc., 935 F.3d 424, 436 (5th Cir. 2019). The Court is not considering new facts alleged in Plaintiff’s reply 

as supplementing his complaint. ECF No. 42.

6 The grievance reflects that the response was signed by Page on December 20, 2021, ECF No. 1-1 at 24, but not 

returned to Plaintiff until February 10, 2022. Id. at 23. In any event, the response reflects that Plaintiff had been 

approved for an orthopedic specialty consult and Plaintiff admits that the consult occurred on December 22, 2021. 

ECF No. 1 at 21.

7 The Court is perplexed as to why this Defendant relies primarily upon state law in support of his motion to dismiss. 

ECF No. 17. Further, the argument that Dr. Zardain is not a state actor, raised for the first time in his reply, ECF No. 

51, comes too late. Nevertheless, for the reasons discussed, Plaintiff has not pleaded facts to show deliberate 

indifference to serious medical needs by Dr. Zardain. Thus, those claims must be dismissed.

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“spent hours trying to schedule the orthopedic appointment immediately”). Ultimately, Dr. Zardain

was “unable to get [Plaintiff] scheduled right away.” ECF No. 1 at 19. When questioned by 

Plaintiff as to why the surgery could not be done at that facility, Dr. Zardain said they “did not 

have an orthopedic surgeon or necessary facilities there to do it.” Id. Plaintiff learned upon his 

return to the unit that the hospital routinely performed such operations. Id. That such operations 

were routinely performed at the hospital, if that is true,8does not mean, however, that Dr. Zardain 

could have scheduled surgery the day he saw Plaintiff. Nor does it mean that Dr. Zardain was 

deliberately indifferent to Plaintiff’s serious medical needs. Plaintiff has not pleaded facts to 

support such a claim. To the contrary, Plaintiff seems to recognize that Dr. Zardain did all he could 

to help Plaintiff on December 2, 2021.

IV. CONCLUSION

For the reasons discussed, the motions of Defendants Britten, Page, and Zardain are 

GRANTED and Plaintiff’s claims against them are DISMISSED. Plaintiff’s request for injunctive 

relief against the TTUHSC Defendants is DISMISSED. The motions to dismiss are otherwise 

DENIED. The Court determines that there is no just reason for delay in, and hereby directs, entry 

of final judgment as to the dismissal of the claims against Defendants Britten, Page, and Zardain.

Plaintiff’s motion for leave to amend is GRANTED and, as stated herein, the Court accepts 

the clarification that Plaintiff is suing Defendants in their individual capacities only.

SO ORDERED this 23rd day of February, 2023.

8 Plaintiff says he learned this from a nurse who had formerly worked at the hospital, but there is no allegation as to 

when that might have been. 

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