IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT DARDEN, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-0703-M

§ ECF

DR. STEVEN BOWERS, Director of Inmate §

Medical Services, et al., §

 § 

Defendants. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Standing Order of Reference (doc. 42), Defendant Dr. Steven

Bowers’ (“Dr. Bowers”) Motion for Summary Judgment (doc. 39) has been referred to the United

States Magistrate Judge for report and recommendation. No response has been filed. For the

reasons stated below, this Court recommends that the Motion for Summary Judgment be

GRANTED. 

I. BACKGROUND

Plaintiff Robert Darden (the “Plaintiff”) initiated this lawsuit on April 8, 2005, while he was

incarcerated in Dallas County Jail, seeking an injunction and compensatory damages for inadequate

medical care. See Pl.’s Compl. at 4. Plaintiff named the following parties as defendants: Dallas

County Jail; Dallas County Sheriff’s Department; University of Texas Medical Branch Medical

Service at the Lew Sterret Justice Center; Dr. Bowers, the Director of Inmate Medical Services;

Corrame A. Godbolt, the Dallas County Assistant District Attorney; and the medical staff at the

Dallas County Jail. The remaining defendants are Dr. Bowers and the Dallas County Jail medical

staff. Plaintiff has since been released from Dallas County Jail, thus his request for injunctive relief

 

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is now moot. Dr. Bowers was the medical director at the Dallas County Jail during Plaintiff’s

incarceration. Def.’s Br. at 1, 10.

On May 8, 2006, this Court conducted an evidentiary hearing in order to obtain additional

information about the factual basis of Plaintiff’s complaint, pursuant to Spears v. McCotter, 766

F.2d 179, 181-82 (5th Cir. 1995). The following alleged facts are the basis of Plaintiff’s claim for

inadequate medical care, as stated at his Spears hearing on May 8, 2006. Before his incarceration,

Plaintiff underwent surgery, which resulted in Plaintiff having a colon bag. Plaintiff stated that he

must change his colon bag every three to four days. When he needed to change his colon bag, he

would request a new bag from the guards at the Dallas County Jail. Plaintiff said that numerous

times, upon requesting a new colon bag, he did not promptly receive one, which often caused him

to use the same colon bag for six to seven days. The longest time he could recall wearing the same

colon bag was nine days. Plaintiff stated that, when his colon bag was properly functioning, his

excrement would pass through the colon bag. Plaintiff stated that the delay in receiving colon bags

caused him to experience “bypasses,” which he described as releasing excrement anally. Plaintiff

said he did not have “bypasses” before he was in Dallas County Jail and that he is still experiencing

them. He said that he will require surgery to remedy this condition.

Plaintiff stated that he submitted seven or eight requests to see a doctor while he was in

Dallas County Jail, but that he did not see a doctor until he had been in Dallas County Jail for six

months. He said that he frequently saw medical technicians but that they could not assist him.

Plaintiff stated that he wrote Dr. Bowers a letter, explaining his medical condition, indicating that

he was not promptly receiving colon bags, describing the complications he was experiencing due

to not promptly receiving colon bags, and requesting medical attention. Plaintiff said that he never

 

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received a response from Dr. Bowers. 

On February 2, 2006, Dr. Bowers filed a motion to dismiss on these grounds: (1) qualified

immunity bars Plaintiff’s claims, (2) the Eleventh Amendment bars suits against state officials in

their individual capacities when the state is the real party in interest, and (3) Plaintiff failed to state

a claim upon which relief can be granted. Def.’s Mot. to Dismiss at 4-9. On May 24, 2006, this

Court recommended that the District Court deny Dr. Bowers’ motion to dismiss as it pertains to

Plaintiff’s 42 U.S.C. § 1983 claim against Dr. Bowers in his individual capacity, grant Dr. Bowers’

motion to dismiss as it pertains to Plaintiff’s § 1983 claim against Dr. Bowers in his official

capacity, and grant in entirety Dr. Bowers’ motion to dismiss as it pertains to Plaintiff’s negligence

claim. On July 11, 2006, the District Court accepted the recommendation. Thus, Plaintiff’s only

remaining claim against Dr. Bowers is his § 1983 claim against Dr. Bowers in his individual

capacity. Dr. Bowers subsequently filed his Motion for Summary Judgment on July 20, 2006. 

II. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and record evidence show that no

genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The burden is on the movant to prove

that no genuine issue of material fact exists. Latimer v. Smithkline & French Labs., 919 F.2d 301,

303 (5th Cir. 1990). “A dispute about a material fact is genuine ‘if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.’” Hilton v. Sw. Bell. Tel. Co., 936

F.2d 823, 827 (5th Cir. 1991) (per curiam) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)), cert. denied, 502 U.S. 1048 (1992). “‘Material facts’ are ‘facts that might affect the

outcome of the suit under the governing law.’” Id. 

 

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If the nonmovant bears the burden of proof at trial, the summary judgment movant need not

support his motion with evidence negating the nonmovant's case. Little, 37 F.3d at 1075. Rather,

the movant may satisfy his burden by pointing to the absence of evidence supporting the

nonmovant's case. Id. Once the movant meets his burden, the nonmovant must show that summary

judgment is not appropriate. Little, 37 F.3d at 1075 (citing Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986)). The nonmovant must “go beyond the pleadings and by [his] own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing

that there is a genuine issue for trial.’” Celotex Corp., 477 U.S. at 324 (citing FED. R. CIV. P. 56).

A party opposing a summary judgment motion cannot rest on mere conclusory allegations or denials

in its pleadings unsupported by specific facts presented in affidavits opposing the summary

judgment motion. See FED. R. CIV. P. 56(e); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888

(1990); Hightower v. Texas Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995). In determining whether

a genuine issue exists for trial, the court must view all of the evidence in the light most favorable

to the nonmovant. Munoz v. Orr, 200 F.3d 291, 302 (5th Cir. 2000). However, if the nonmovant

fails to establish a genuine issue of material fact as to all essential elements of his claim, the entry

of summary judgment is mandated as to that claim. Dunn v. State Farm Fire & Cas. Co., 927 F.2d

869, 872 (5th Cir. 1991) (quoting Celotex Corp., 477 U.S. at 322). 

Since Plaintiff in this case is proceeding pro se, the Court must construe his allegations

liberally. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam); Sec. & Exch. Comm’n v. AMX, Int’l,

Inc., 7 F.3d 71, 75 (5th Cir. 1993) (per curiam). The Court has an obligation to construe pro se

plaintiffs’ briefs more permissively and to make more allowances. AMX, Int’l, Inc., 7 F.3d at 75.

III. ANALYSIS

 

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Dr. Bowers’ Motion for Summary Judgment is based on three grounds: (1) Dr. Bowers is

entitled to qualified immunity; (2) Dr. Bowers was not deliberately indifferent to Plaintiff’s medical

condition; and (3) there is no evidence showing that any of Dr. Bowers’ acts or omissions resulted

in substantial harm to Plaintiff. Def.’s Br. at 4-8. Plaintiff has not responded to the summary

judgment motion. 

A. Plaintiff’s Failure to Respond

Although Plaintiff’s failure to respond does not allow the Court to enter a “default” summary

judgment, the Court is permitted to accept Dr. Bowers’ evidence as undisputed. Tutton v. Garland

Indep. Sch. Dist., 733 F. Supp. 1113, 1117 (N.D. Tex. 1990) (Fitzwater, J.); Eversley v. Mbank

Dallas, 843 F.2d 172, 174 (5th Cir. 1988). A nonmovant who does not respond to the summary

judgment motion is “relegated to [his] unsworn pleadings, which do not constitute summary

judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999, 1002 (N.D. Tex. 1996) (Fitzwater,

J.) (citing Solo Serv. Corp. v. Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). 

The Court can rely on testimony given at an evidentiary hearing as summary judgment

evidence if one was conducted as was such in this case. See Bookman, 945 F. Supp. at 1002-04 (“In

. . . both in forma pauperis cases in which prisoner-plaintiffs failed to respond to summary judgment

motions, the court assumed that Spears materials were competent summary judgment evidence.”

(citing Albritton v. Pittman, Civ. Action. No. 3:91-CV-1709-D, 1995 WL 907893 ( N.D. Tex. Apr.

7, 1995) (Fitzwater, J.); McGriff v. King, Civ. Action No. 3:93-CV-1386-D, 1995 WL 907892 (N.D.

Tex. Apr. 28, 1995) (Fitzwater, J.))). However, Plaintiff needs to cite specific facts from the Spears

materials in responding to the summary judgment motion. Bookman, 945 F. Supp. at 1003. If

Plaintiff does not refer to evidence in the record, it is not properly before the Court to consider in

 

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determining whether the motion for summary judgment should be granted. Skotak v. Tenneco

Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992), cert. denied, 506 U.S. 832 (1992); Nissho-Iwai Am.

Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988). “Rule 56 does not impose upon the district

court a duty to sift through the record in search of evidence to support a party’s opposition to

summary judgment[.]” Skotak, 953 F.2d at 915 n.7. 

Plaintiff’s pro se status does not excuse him from filing a response. “District courts can

make appropriate allowances for pro se responses that may be somewhat less-artfully written than

those of represented parties. This can be accomplished, however, without excusing them from the

most basic requirement that they file a response.” Bookman, 945 F. Supp. at 1005. Plaintiff, despite

his pro se status, “is not, as the party with the burden of proof [at trial], excused from the

requirement that [he] set forth specific facts supporting [his] claim.” Id. at 1004 (citing Jones v.

Sheehan, Young, & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996); Douglass v. United Servs. Auto

Ass’n, 65 F.3d 452, 455 n.4 (5th Cir. 1995)). Since, Plaintiff failed to respond to the summary

judgment motion, he has not met his burden of designating specific facts to show that there is a

genuine issue for trial. See Bookman, 945 F. Supp. at 1004.

B. Deliberate Indifference

Since Rule 56 does not allow a “default” summary judgment for Plaintiff’s failure to file a

response, this Court now addresses whether Dr. Bowers has shown that he is entitled to summary

judgment. Dr. Bowers argues that his summary judgment motion should be granted because

Plaintiff’s deliberate indifference claim against Dr. Bowers fails. Def.’s Br. at 6-7. 

As previously mentioned, Plaintiff’s only remaining claim against Dr. Bowers is his § 1983

claim against Dr. Bowers in his individual capacity. For a § 1983 claim, Plaintiff must show that

 

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Dr. Bowers acted under the color of law and that Dr. Bowers’ conduct deprived Plaintiff of a

constitutional right, privilege, or immunity. Parratt v. Taylor, 451 U.S. 527, 532 (1981), overruled

on other grounds, Daniel v. Williams, 474 U.S. 327 (1986). As an employee of a state agency, Dr.

Bowers was acting under the color of state law. To state a claim for deprivation of medical care,

Plaintiff must show that Dr. Bowers’ actions or omissions were deliberately indifferent to Plaintiff’s

medical needs. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294, 302-

03 (1991); Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998). Deliberate indifference

occurs when the state actor is aware of and disregards a serious medical condition of the plaintiff.

Farmer, 511 U.S. at 837. In addition, the state actor must be aware of facts “from which the

inference could be drawn that a substantial risk of harm exists,” and the state actor must also draw

such an inference. Id. 

Since Dr. Bowers does not have the burden of proof at trial, he can carry his summary

judgment obligation by pointing to the absence of evidence supporting Plaintiff’s claim. Celotex

Corp., 477 U.S. at 325. Dr. Bowers asserts that there is no evidence showing that Dr. Bowers was

aware of Plaintiff’s medical complaints. Def.’s Br. at 7. As noted, because Plaintiff failed to

respond to Dr. Bowers’ summary judgment motion, this Court construes Dr. Bowers’ evidence as

undisputed. The facts, as established by Dr. Bowers’ undisputed and sworn affidavit show that Dr.

Bowers did not know Plaintiff, he was not Plaintiff’s treating physician, and he never received any

correspondence from Plaintiff. Def.’s Br. at 10-11; Ex. A. Dr. Bowers became aware of Plaintiff’s

medical complaints for the first time when he got notice of Plaintiff’s lawsuit. Id. At that time, Dr.

Bowers instructed one of the doctors on staff to look into the matter, attend to any medical needs,

and report back to him about Plaintiff’s condition. Id. Therefore, Plaintiff’s deliberate indifference

 

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claim necessarily fails. Deliberate indifference requires the state actor to be aware of the medical

complaint. Farmer, 511 U.S. at 837. Dr. Bowers could not have been deliberately indifferent to

Plaintiff’s medical complaints since he was not aware of them. Since Plaintiff failed to establish a

genuine issue of material fact as to an essential element of his claim, Dr. Bowers’ motion for

summary judgment should be granted. See Dunn, 927 F.2d at 872. 

C. Qualified Immunity

Dr. Bowers also argues that his summary judgment motion should be granted because he is

entitled to qualified immunity. Def.’s Br. at 4-6. “[G]overnment officials performing discretionary

functions generally are granted a qualified immunity and are ‘shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999)

(citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Therefore, Dr. Bowers’ “conduct is

protected by qualified immunity if, in light of legal rules that were clearly established at the time of

the action, it was objectively reasonable.” Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995).

“[T]he question of the objective reasonableness of the defendant’s conduct” is “whether at the time

and under the circumstances, all reasonable officials would have realized the particular challenged

conduct violated the constitutional provision sued on.” Pierce v. Smith, 117 F.3d 866, 871 (5th Cir.

1997). 

As noted, Dr. Bowers’ sworn, uncontested affidavit attests that he was not aware of

Plaintiff’s complaints until after he was notified about Plaintiff’s lawsuit. Def.’s Br. at 10-11; Ex.

A. Dr. Bowers was not Plaintiff’s treating physician and has never had any contact with Plaintiff.

Id. Furthermore, after he became aware of Plaintiff’s complaints, he took prompt action to address

 

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them. Id. Therefore, in light of Dr. Bowers’ undisputed evidence, Dr. Bowers’ actions were

objectively reasonable, and he is entitled to qualified immunity. Because this Court finds that Dr.

Bowers’ summary judgment motion should be granted based on the qualified immunity and

deliberate indifference grounds, this Court does not address Dr. Bowers’ substantial harm argument.

IV. RECOMMENDATION

For the reasons stated above, this Court recommends that the District Court GRANT Dr.

Bowers’ Motion for Summary Judgment.

SO RECOMMENDED. November 15, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections within ten days after being served with a copy. A party filing objections must

specifically identify the findings, conclusions, or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. A party's

failure to file such written objections to these proposed findings, conclusions, and recommendation

shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S.

140, 150 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions, and recommendation within ten days after being served with a copy shall bar the

aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge

that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United

Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

 

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