1

Defendant Sheriff Jim Bowles has not filed a motion to dismiss.

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN WAYNE BAKER, ID # 1223066 §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1118-L

§

SHERIFF JIM BOWLES, et al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This is a pro se case brought pursuant to 42 U.S.C. § 1983. Before the court are: Motion of

Defendant “Parkland Hospital” to Dismiss its Employee “Doctor Scott,” Pursuant to Section

101.106, Tex. Civ. Prac. & Rem. Code and Brief in Support Thereof, filed July 7, 2005; Motion to

Dismiss of Defendant Preston Blomquist, M.D. Pursuant to Section 12(b)(5), Section 12(b)(6), and

Section 101.106, Tex. Civ. Prac. & Rem. Code and Brief in Support Thereof, filed July 15, 2005;

Motion of Defendant Dallas County Hospital District to Dismiss Based on Plaintiff’s Failure to

Comply with Section 74.351, TCPRC and Brief in Support Thereof, filed October 17, 2005; Motion

of Defendant Dr. Scott So, M.D. to Dismiss Based on Plaintiff’s Failure to Comply with Section

74.351, TCPRC and Brief in Support Thereof, filed October 17, 2005; and Motion of Defendant

Preston Blomquist, M.D. to Dismiss Based on Plaintiff’s Failure to Comply with Section 74.351,

TCPRC and Brief in Support Thereof, filed October 20, 2005 (sometimes collectively referred to

as “Defendants’ motions to dismiss”).1

 

 

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Memorandum Opinion and Order – Page 2

Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, the case

was referred to United States Magistrate Judge Irma C. Ramirez for pretrial management, including

for review and submission of proposed findings of fact and recommendation for disposition. On

December 13, 2005, the Findings, Conclusions and Recommendations of the United States

Magistrate Judge (the “Report”) were filed, in which the magistrate judge recommended that the

Defendants’ motions to dismiss be denied. Defendants filed timely objections. 

After an independent review of the motions, responses, replies, pleadings, file, record,

applicable law, the magistrate judge’s findings and conclusions, and consideration of Defendants’

Objections, the court determines that the findings and conclusions of the magistrate judge are

correct, and hereby accepts them as those of the court. 

I. Discussion 

Pro se prisoner Kelvin Wayne Baker (“Plaintiff”) brought this civil rights action pursuant

to 42 U.S.C. § 1983 against Defendants alleging, inter alia, that they violated his civil rights through

deliberate indifference to his need for medical treatment of an eye injury he sustained during a fall

in the shower area of the Dallas County Jail. As a result of the alleged deliberate indifference,

Plaintiff alleges he has lost sight in his left eye. In a detailed “statement of the case” attached to his

complaint, Plaintiff alleges that Defendant Preston Blomquist, M.D. (“Blomquist”) (the doctor who

performed surgery on his left eye at Parkland Memorial Hospital following the fall), described to

him at the time the risks and benefits of surgery and stated that he believed that Plaintiff’s vision

could be restored if medical orders were followed and if he received a second surgery within three

to seven days after the first surgery. Plaintiff alleges that Blomquist knew that a second surgery was

important to save the vision in Plaintiff’s left eye, but nevertheless failed to schedule the operation

 

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2

Defendants have not objected to the magistrate judge’s recommendation regarding the remaining motions to

dismiss, namely, those arguing that dismissal is appropriate pursuant to Tex. Civ. Prac. & Rem. Code §74.351.

Memorandum Opinion and Order – Page 3

and did nothing to ensure that Plaintiff return to Parkland for the second surgery. Construed

liberally, Plaintiff is essentially alleging that Blomquist’s explicit knowledge of the need for a

second surgery within three to seven days to save his left eye, coupled with his failure to ascertain

that this second surgery occurred, rises to the level of deliberate indifference to his right to medical

care in violation of his substantive due process rights. Recommending that the court deny

Blomquist’s motion to dismiss, the magistrate judge found that Plaintiff’s allegations, “if proved as

true, state a claim for deliberate indifference to a serious medical need.” See Report at 11. 

Blomquist’s only remaining argument was that the suit should be dismissed pursuant to Section

101.106 of the Tex. Civ. Prac. & Rem. Code for raising a negligence claim pursuant to the Texas

Tort Claims Act rather than stating a federal cause of action; however, based on the finding that

Plaintiff had stated a § 1983 claim for deliberate indifference, the magistrate judge found that

Blomquist’s Section 101.106 argument should be rejected. Id. at 16-17 (finding that Blomquist’s

argument based on Section 101.106 of the Tex. Civ. Prac. & Rem. Code should be rejected). The

magistrate judge likewise found that the Hospital District’s similar argument to dismiss Dr. So

pursuant to Section 101.106 should be rejected. Id. at 13-16 (finding that the Hospital District’s

arguments based on Section 101.106 of the Tex. Civ. Prac. & Rem. Code should be rejected).2 

Defendants have filed Objections to certain portions of the magistrate judge’s Report.

Specifically, Defendants object to that portion of her Report wherein she recommends that

Blomquist’s July 15, 2005 motion to dismiss be denied and that Parkland Hospital’s July 7, 2005

motion to dismiss Doctor Scott So be denied. Defendants contend that Plaintiff has failed to allege

facts which, if proved as true, state a claim for deliberate indifference to a serious medical need. See

 

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3

In Nerren, the Fifth Circuit made explicit that an “arrestee’s complaint for denial of due process and a pretrial

detainee’s complaint for denial of substantive due process are evaluated under the same standards.” Nerren, 86 F.3d

at 472. Moreover, as properly pointed out by the magistrate judge, the deliberate indifference standard applies to a denial

of medical care claim whether it is brought by a convicted inmate pursuant to the Eighth Amendment or by a pretrial

detainee pursuant to the Fourteenth Amendment. See Report at 10 n.7 (citing the en banc decision in Hare, 74 F.3d at

647-48). 

Memorandum Opinion and Order – Page 4

Obj. at 2. According to Defendants, Plaintiff has at most stated a “fairly typical state tort claim: that

Defendants breached their duty of care by failing to follow up with a subsequent surgery.” Id. at 6.

Defendants contend that “[t]his allegation is analogous to misdiagnosing a patient, failing to treat

the patient, or administering inappropriate treatment, all of which are mere negligence claims, and

not actionable as substantive due process claims.” Id. The court overrules these Objections.

Under the Fourteenth Amendment, an official’s act or omission violates a pretrial detainee’s

due process right to medical care if the official acts with subjective deliberate indifference to the

detainee’s rights. See Hare v. City of Corinth, 135 F.3d 320, 324-26 (5th Cir. 1996) (citing to the

court’s en banc decision at 74 F.3d 633, 643 (5th Cir. 1996)). “Subjective deliberate indifference”

is “subjective knowledge of a substantial risk of serious harm to a pretrial detainee” followed by a

response of “deliberate indifference to that risk.” Id. at 324; see also Nerren v. Livingston Police

Dep’t, 86 F.3d 469, 473 (5th Cir. 1996) (same).3 Applying this standard to Plaintiff’s allegations,

and for the reasons cogently set forth by the magistrate judge in her Report (see Report at 9-13), the

court determines that Plaintiff has alleged sufficient facts which, if proved true, state a claim of

deliberate indifference to his medical care. Accepting Plaintiff’s allegations as true, Dr. Blomquist

had subjective knowledge of Plaintiff’s need for further medical attention to save his left eye, but

nonetheless did not schedule the second surgery.

The court notes that in their Objections, Defendants make no attempt to distinguish the two

analogous cases cited by the magistrate judge in her Report in support of her recommendation that

 

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Memorandum Opinion and Order – Page 5

Defendants’ motions to dismiss be denied. See Report at 11-12 (citing Kersh v. Derozier, 851 F.2d

1509 (5th Cir. 1988) (finding that evidence supported jury’s finding that police officer could be held

liable under § 1983 for exhibiting deliberate indifference to arrestee’s serious medical need, where

arrestee had hay in his eye at time of arrest, was not permitted to seek treatment to remove the hay,

and lost sight in that eye as a result) and Trahan v. Reinken, 2005 WL 2075890 at *2 (S.D. Tex.

Aug. 26, 2005) (finding that plaintiff had alleged sufficient facts to overcome a motion to dismiss

where he alleged that prison health care provider refused to respond to requests for treatment for

eyesight problems which resulted in loss of sight in one eye)). Instead, Defendants rely on a state

court case and a 1971 Second Circuit case, neither of which is binding authority on this court. See

Obj. at 4. In addition, Defendants cite to a decision issued by this court. Id. at 5 (citing Kinzie v.

Dallas County Hosp. Dist., 239 F. Supp. 2d 618 (N.D. Tex. 2003)). In Kinzie, the court granted a

motion to dismiss where a surgery patient who had received a transfusion of blood infected with

HIV brought a substantive due process claim pursuant to § 1983 against the county-owned hospital.

With regard specifically to the plaintiff’s claims that the hospital violated his right to substantive due

process by denying him of his right to medical care, the court dismissed that cause of action because

plaintiff, a private citizen, had not provided the court with any authority that persons in his situation

had any right to medical care. The court was careful to distinguish this situation from the right to

medical care that has been recognized “in situations where the state has taken affirmative steps to

restrain a person’s liberty, as in the case of pretrial detainees, persons in police custody, or

prisoners.” Kinzie, 239 F.Supp.2d at 635 (and cases cited therein). In short, Kinzie is not analogous

to this case, where Plaintiff is in custody. 

 

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Memorandum Opinion and Order – Page 6

Whether the evidence marshaled by Plaintiff is ultimately sufficient to establish deliberate

indifference on the part of Defendants will be determined at the summary judgment stage. At this

early stage of the case, however, the court only determines that Plaintiff has alleged sufficient facts

which, if proved true, state a claim of deliberate indifference to his medical care. 

II. Conclusion

For the reasons herein stated, the court overrules Defendants’ Objections to the Findings,

Conclusions and Recommendations of the magistrate judge. The court determines that the findings

and conclusions of the magistrate judge are correct, and accepts them as those of the court.

Accordingly, the court denies Motion of Defendant “Parkland Hospital” to Dismiss its Employee

“Doctor Scott,” Pursuant to Section 101.106, Tex. Civ. Prac. & Rem. Code and Brief in Support

Thereof, filed July 7, 2005; denies Motion to Dismiss of Defendant Preston Blomquist, M.D.

Pursuant to Section 12(b)(5), Section 12(b)(6), and Section 101.106, Tex. Civ. Prac. & Rem. Code

and Brief in Support Thereof, filed July 15, 2005; denies Motion of Defendant Dallas County

Hospital District to Dismiss Based on Plaintiff’s Failure to Comply with Section 74.351, TCPRC

and Brief in Support Thereof, filed October 17, 2005; denies Motion of Defendant Dr. Scott So,

M.D. to Dismiss Based on Plaintiff’s Failure to Comply with Section 74.351, TCPRC and Brief in

Support Thereof, filed October 17, 2005; and denies Motion of Defendant Preston Blomquist, M.D.

to Dismiss Based on Plaintiff’s Failure to Comply with Section 74.351, TCPRC and Brief in Support

Thereof, filed October 20, 2005. 

Further, in light of the court’s decision to overrule Defendants’ Objections, and to accept the

findings and conclusions of the magistrate judge as those of the court, the court denies as moot Pro

Se Plaintiff’s Motion of Leave to Strike and [for] Order Unfil[ing] Joint Objections of Defendants

 

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Memorandum Opinion and Order – Page 7

Preston Blomquist, M.D. and Dallas County Hospital District to Findings, Conclusions and

Recommendations of the United States Magistrate Judge with Brief in Support, filed January 24,

2006; denies as moot Pro Se Plaintiff’s Motion of Leave of Reply/Answer(s) to Filed Unauthorized

Joint Objections of Defendants Preston Blomquist, M.D., Scott So, M.D. and Dallas County

Hospital District to Findings, Conclusions and Recommendations of the United States Magistrate

Judge with Brief in Support of Objections[,] Challenges[,] Disputes[,] etc., filed January 24, 2006;

and denies as moot Pro Se Plaintiff’s Motion of Leave to Strike and Order [for] Unfil[ing]

Defendant Preston Blomquist, M.D.’s Reply to Pro Se Plaintiff’s Motion of Objections to Motion

of Defendant Dr. Preston Blomquist to Dismiss Based on Plaintiff’s Failure to Comply with Section

74.351, TCPRC and Brief in Support Thereof, filed February 17, 2006.

It is so ordered this 13th day of March, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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