1 It has come to the Court’s attention that Plaintiff’s first name (Jerry) may not be

spelled correctly. The offender information available on the Texas Department of Criminal

Justice website and the state court’s docket sheets reflect Plaintiff’s first name as “Gerry.” 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JERRY WAYNE MOONEY, #1322889,1 )

Plaintiff, )

)

v. ) 3:05-CV-1432-N

 ) ECF

DALLAS COUNTY, ET AL., )

Defendants. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court filed

on October 30, 2007, this case has been referred to the United States Magistrate Judge. The

findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a fee paid civil rights action brought by a pre-trial detainee

pursuant to 42 U.S.C. § 1983. While Plaintiff was initially represented by retained counsel, he is

presently proceeding pro se. 

Parties: At the time of filing this action, Plaintiff was incarcerated at the Dallas County

Jail, where the events at issue in this case took place. Following his conviction, he was

transferred to the Texas Department of Criminal Justice -- Correctional Institutions Division

(TDCJ-CID). He is presently confined at the Powledge Unit of TDCJ-CID in Palestine, Texas. 

The remaining Defendants are Dallas County and the Dallas County Hospital District

(DCHD), which runs Parkland Memorial Hospital (Parkland) in Dallas, Texas. 
2

Statement of Case: On October 21, 2002, Plaintiff was involved in a shoot out with

members of the Irving Police Department. During the incident Plaintiff shot and injured at least

two police officers, and suffered several gunshot wounds to his abdomen and legs, and a

fractured femur. As a result of the gunshot wounds and femur fracture, Plaintiff underwent

emergency medical care at Parkland including the following life saving surgeries – i.e., a midline celiotomy, a colostomy, a surgery to correct his fractured femur, a debridement to correct a

partial abdominal wound dehiscence, and a skin graft to his abdomen. (Amd. Compl. at 6). He

remained hospitalized at Parkland for over one month, from October 22 until November 29,

2002. 

Upon his discharge, he was transferred to the Dallas County Jail, awaiting disposition of

the criminal charges stemming from the October shoot out. Throughout his incarceration at the

Dallas County Jail, Plaintiff experienced medical and psychiatric conditions, which required

extensive treatment both at Parkland and at the Dallas County Jail. On September 23, 2005, he

pled guilty to the offense of aggravated assault on a public servant while using or exhibiting a

deadly weapon, for which he was sentenced to a forty-five-year term of imprisonment. State v.

Mooney, No. F02-35420. On October 5, 2005, he was transferred to TDCJ-CID. His conviction

and sentence were affirmed on direct appeal. Mooney v. State, No. 05-05-01395-CR (Tex. App.

-- Dallas, Dec. 13, 2006) (unpublished op.). 

On July 19, 2005, Plaintiff, through retained counsel, filed this action alleging numerous

claims of denial of medical and psychiatric care under the Fourteenth Amendment Due Process

Clause. He also alleged a violation of his speedy trial rights under the Sixth Amendment. He

sought compensatory and punitive damages.
2 It appears that David D. Davis, Plaintiff’s former, retained counsel in this case,

was not involved with Plaintiff’s state criminal proceedings, and his alleged need for medical

care throughout his pre-trial detention. Bruce Anton and A. Handley represented Plaintiff before

the trial court. Bruce Anton also represented Plaintiff on direct appeal. 

3

Findings and Conclusions: After the filing of the amended complaint, the District Court

granted Plaintiff’s retained counsel’s motion to withdraw on November 2, 2006. Presently

pending are Plaintiff’s pro se motions to amend the complaint, to appoint counsel, and to

produce documents. (Doc. #65, #66, #74 and #86). Also pending are Dallas County’s and

DCHD’s motions for Summary Judgment, and Plaintiff’s response and cross motion for

summary judgment. (Doc. #68, #72 and #75).2 

A. Dismissal of Time Barred Claims

Plaintiff complains of numerous events that occurred during his pre-trial confinement at

the Dallas County Jail between November 29, 2002, and October 5, 2005. The lengthy delay

between Plaintiff’s arrival at the Dallas County Jail on November 29, 2002, and the filing of his

complaint on July 19, 2005, prompts consideration of the timeliness of some of his claims. See

28 U.S.C. § 1915A(a) and (b). Although Defendants do not challenge the timeliness of

Plaintiff’s claims, the Court has the authority to raise that issue while fulfilling its screening

function in fee-paid, prisoner complaints. See Martin v. Scott, 156 F.3d 578 (5th Cir. 1998) (the

statutory screening provision under § 1915A applies to all prisoners’ actions against

governmental entities, their officers and employees, regardless of whether the prisoner is

proceeding in forma pauperis). Section 1915A provides in pertinent part that:

The court shall review . . . as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity [and] [o]n review, the court shall

identify cognizable claims or dismiss the complaint, or any portion of the
4

complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim

upon which relief may be granted; or (2) seeks monetary relief from a defendant

who is immune from such relief.

28 U.S.C. § 1915A(a) and (b) (emphasis added). See Combs v. City of Dallas, 3:06-CV-0074-P,

2006 WL 3635357, *2-3 (N.D. Tex. -- Dallas Div., 2006) (dismissing fee-paid, prisoner case as

time barred under § 1915A(b)(1)).

In Texas, § 1983 actions are governed by the two-year personal injury limitations period. 

Owens v. Okure, 488 U.S. 235, 249-50 (1989); Stanley v. Foster, 464 F.3d 565, 568 (5th Cir.

2006); Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995); Tex. Civ. Prac. &

Rem. Code Ann. § 16.003(a) (Vernon Supp. 2007).

Under the facts alleged in this case, all claims predating July 19, 2003, two years before

the filing of the complaint, are barred by the two-year statute of limitations. None of Plaintiff’s

pleadings indicate that he was unaware of the injuries on which these claims are based, or that

the two-year limitations period should otherwise be tolled. Therefore, Plaintiff’s claims

predating July 19, 2003, are untimely and should be summarily dismissed. 

B. Motions for Summary Judgment

and Plaintiff’s Motion to Appoint Counsel

To prevail on a motion for summary judgment, the moving party has the initial burden of

showing that there is no genuine issue of any material fact and that judgment should be entered

as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505,

2509-10 (1986). The materiality of facts is determined by substantive law. Anderson, 477 U.S.

at 248, 106 S. Ct. at 2510. An issue is “material” if it involves a fact that might affect the

outcome of the suit under governing law. Burgos v. Southwestern Bell Telephone Co., 20 F.3d
3 Exhaustion of administrative remedies under 42 U.S.C. § 1997e(c), is mandatory

before the filing of any suit challenging prison conditions. Woodford v. Ngo, ___ U.S. ___, 126

S.Ct. 2378, 2382-83 (2006) (citing Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth v.

Churner, 532 U.S. 731, 741 (2001)). Plaintiff alleges that most of his attempts to file grievances

were unsuccessful, that he was never informed that any investigation or action was taken in

response to his grievances, that he received no response to the few grievances filed, and that he

was unaware of his appeal rights. (See Amd. Comp. at 23 and 27, and Pl’s Response and Cross

Mot. for Sum. Judg. at 1). Thus, it is unclear whether any failure to exhaust administrative

remedies was due to Plaintiff’s own inaction or to some impediment caused by the Dallas

County Jail. Nevertheless, the Court may dismiss or deny a claim without first requiring

exhaustion of administrative remedies. See 42 U.S.C. § 1997e(c)(2) (“In the event that a claim

is, on its face, frivolous, malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief from a defendant who is immune from such relief, the court may dismiss

the underlying claim without first requiring the exhaustion of administrative remedies).

5

633, 635 (5th Cir.1994). Once the moving party has made an initial showing, the party opposing

the motion for summary judgment may not merely rely on his pleadings, but must come forward

with competent evidentiary materials that establish a genuine fact issue. Anderson, 477 U.S. at

256-257, 106 S.Ct. at 2514; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56 (1986). The court must resolve any factual

controversies in favor of the non-moving party. Richter v. Merchants Fast Motor Lines, Inc., 83

F.3d 96, 98 (5th Cir. 1996).

1. Medical and Psychiatric Care Claims3

To state a colorable claim under the Eighth Amendment for denial of medical care,

convicted inmates must allege acts or omissions "sufficiently harmful to evidence a deliberate

indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285

(1976); Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). “Deliberate indifference

encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of

mankind.” Norton, 122 F.3d at 291. It occurs when a prison official subjectively knows of and
4 Plaintiff’s complaint does not raise an attack under the Fourteenth Amendment on

the general conditions of confinement at the Dallas County Jail. See Hare v. City of Corinth,

Miss., 744 F.3d 633, 638-39 (5th Cir. 1996) (en banc) (in a condition of confinement case, the

constitutional challenge is to the “general conditions, practices, rules, or restrictions of pre-trial

confinement”); Palo v. Dallas County, 3:05cv0527-D, 2007 WL 2140590, *2-5 (N.D. Tex.

2007) (Fitzwater, J.) (examining in detail standard for conditions of confinement claim). 

6

disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825,

837-840 (1994). 

The same standard applies to pre-trial detainees complaining of an “episodic act or

omission” under the Due Process Clause of the Fourteenth Amendment. Wagner v. Bay City,

Tex., 227 F.3d 316, 324 (5th Cir.2000); Olabisiomotosho v. City of Houston, 185 F.3d 521, 526

(5th Cir. 1999); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). “[T]here is no

significant distinction between pretrial detainees and convicted inmates concerning basic human

needs such as medical care. Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001).4

Delays in providing medical care do not give rise to a constitutional violation unless the

deliberate indifference of the medical staff results in substantial harm. Mendoza v. Lynaugh, 989

F.2d 191, 195 (5th Cir. 1993); see also Easter v. Powell, 467 F.3d 459 (5th Cir. 2006). 

Additionally disagreements as to the correct pharmaceutical regimen and/or medical or

psychiatric treatment do not constitute cognizable civil rights claims, but at most, possible claims

of medical malpractice appropriately addressed under state law. E.g. Estelle, 429 U.S. at 107-

108; Norton, 122 F.3d at 292; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v.

Bosshard, 590 F.2d 105, 107 (5th Cir. 1979); See Gobert v. Caldwell, 463 F.3d 339, 346 (5th

Cir. 2006).

Moreover, it is well settled that relief is unavailable under § 1983 for claims grounded
7

only in negligence. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986); Davidson v.

Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986); Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.

1999). 

In support of its motion for summary judgment, Dallas County relied on the affidavit of

Walter Skinner, MD, who is employed as the Associate Medical Director at the Dallas County

Jail. Dr. Skinner reviewed Plaintiff’s medical records, consisting of 1,145 pages of medical

records from the Dallas County Jail, and 1,257 pages of medical records from DCHD. (See

Dallas County’s Appx. at Exh. 4). Dr. Skinner concluded that the Dallas County Jail medical

staff did not deliberately or recklessly ignore Plaintiff’s serious medical and psychiatric needs,

and that “the medical care provided to the plaintiff during his confinement in the Dallas County

Jail was reasonable, adequate and consistent with the standard of care of other correctional

facilities in the State of Texas.” (Id.). DCHD submitted Plaintiff’s medical records from his

four initial surgeries, and the evaluations and tests conducted at Parkland during his confinement

at the Dallas County Jail. (See DCHD’s Appx.).

Where questions regarding medical care are present, it is readily apparent that expert

opinion informs any decision as to whether genuine issues of fact exist with regard to the quality

of care provided – particularly in the context of constitutional violations – in all but the most

egregious circumstances where there is a total absence of care. Plaintiff has failed to present any

competent expert testimony controverting the affidavit of Dr. Skinner or any expert opinion

calling into question the treatment provided at Parkland and at the Dallas County Jail as set out

in the records submitted. As noted above, a party may not merely rely on his pleadings (the

allegations in his amended complaint) to demonstrative the existence of genuine issues of fact,
8

but is required to come forward with competent evidentiary materials. Anderson, supra, 477

U.S. at 256-57, 106 S. Ct. at 2514. Since Plaintiff has failed to raise any genuine issues of fact

as to whether either Defendant was deliberately indifferent to serious medical needs, e.g. Norton,

supra, 122 F.3d at 291, Dallas County and the Dallas County Hospital District are entitled to

summary judgment, dismissing Plaintiff’s medical and psychiatric claims with prejudice. 

Although Plaintiff’s original and amended complaints were filed by his retained counsel,

he has been proceeding pro se since his former attorney was granted leave to withdraw. He has

not retained new counsel and has requested that the court appoint an attorney, initially on May

31, 2007, and subsequently on August 22, 2007. A civil rights complainant has no right to the

automatic appointment of counsel, although the court may appoint counsel when exceptional

circumstances are presented. See e.g. Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994).

In exercising the court’s discretionary authority in determining whether appointment of

counsel is warranted in this case, the undersigned requested that Dallas County provide all of the

medical records compiled while Plaintiff was confined as an inmate at the Dallas County Jail

from approximately November 29, 2002, until he was transferred to TDCJ-CID on October 5,

2005 – the same records reviewed by Dr. Skinner. While it is doubtful that an inmate plaintiff is

capable of self-representation in an action involving medical treatment and expert testimony, see

the factors enumerated in Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), it does not

follow that merely because medical testimony and records are relevant that this fact renders

every civil rights action alleging deliberate indifference to serious medical needs one in which

exceptional circumstances are present. For example, as Estelle v. Gamble, supra, teaches a

claim which gives rise only to one involving medical malpractice fails to constitute a cause of
5 The records contained in the DCHD appendix foreclose the possibility of any

cause of action against the hospital district and therefore, the magistrate judge addresses only

those episodic incidents alleged to have occurred in the county jail.

The magistrate judge will refer to the Dallas County Jail Medical Records as “DCJ Med.

Rec.” Dallas County mailed to Plaintiff a copy of the cover letter submitted along with the

medical records. As a result, Plaintiff is on notice that the medical records have been submitted

to the court for review. 

9

action cognizable under § 1983. 

Having meticulously reviewed the voluminous medical records, the magistrate judge

concludes that Plaintiff cannot establish deliberate indifference to serious medical or psychiatric

needs. It is abundantly clear that Plaintiff received a formidable array of medical and psychiatric

care, prescription medications, medical supplies, and tests at no charge. In addition to the four

initial surgeries, which undoubtedly saved his life, Plaintiff’s medical and psychiatric conditions

continued to be monitored and treated for nearly three more years at Parkland and at the Dallas

County Jail. Plaintiff’s amended complaint boils down to assertions of delay in receiving

medical care, disagreement with the type of care received, and negligent medical care. 

The undersigned considers it appropriate to address the claims asserted in Plaintiff’s

amended complaint seriatim to demonstrate that the medical records establish at most the

presence of medical malpractice or negligence, neither of which rises to the level of a

constitutional violation. The allegations in Plaintiff’s amended complaint are not evidence and

in fact many of the claims asserted and discussed infra are in direct contradiction to the medical

records submitted by Dallas County.5

 

a. Plaintiff’s medical condition deteriorated in the Summer 2003

By the Summer of 2003, Plaintiff’s weight ballooned from 150 pounds in October 2002,

to approximately 230 pounds, and his general medical condition deteriorated with increased
10

body swelling, difficulty breathing, and chest pains by August 2003. (Amd. Compl. at 16). In

August, Plaintiff also developed a fistula with drainage into his colon. (Id. at 17). In September,

Plaintiff allegedly experienced delay in receiving a diuretic, and the jail received an outside

complaint requesting that Plaintiff be seen for his swollen face. (Id. at 18). 

Apart from mental health records, the jail medical and medication records for the summer

of 2003 are sparse. On June 25, 2003, a doctor checked Plaintiff’s breathing, and his abdominal

support. (DCJ Med. Rec. at 265). The medication records include only records for June,

August, and November 2003. In July 2003, Judge Francis, the presiding judge in his pending

criminal case, ordered that Plaintiff be brought to Parkland for evaluation. In compliance with

the court order, Plaintiff was taken to Parkland and seen by several physicians on August 1,

2003. (Id. at 1019, 1021, 1023). According to the amended complaint, Plaintiff underwent

cauterization of portions of his stoma, additional medications were provided, and a new surgery

was scheduled. (Amd. Compl. at 17). On September 5, 2003, he also underwent a colostomy

study at Parkland. (DCJ Med. Rec. at 280).

This is not a case in which Plaintiff was denied medical attention altogether. His own

pleadings concede that his conditions were being monitored by Parkland and the jail medical

staff. Therefore, to the extent that there may have been episodic instances in which swelling and

breathing difficulties were not monitored by jail staff, only negligence omissions are alleged. 

Plaintiff also complained of delay in receiving a diuretic, allegedly for the increased body

swelling. Delay in providing medical care does not give rise to a constitutional violation unless

the deliberate indifference of the medical staff results in substantial harm. Mendoza, 989 F.2d at

195. Plaintiff’s complaint is silent as to any substantial harm that he may have suffered as a
11

result of the delay in receiving the diuretic. 

Moreover, in response to Plaintiff’s criminal defense attorney’s request for an immediate

physician visit, Plaintiff’s condition was evaluated the very next day, September 27, 2003. The

Clinic Notes for September 27, 2003, reflect Plaintiff’s criminal defense attorney had called

twice, and was very demanding. (DCJ Med. Rec. at 489). Plaintiff’s main complaint related to

body pain. (Id.). His wound, however, looked fine, his chest was clear, and the colostomy was

operating. (Id.). Plaintiff’s allegation that the doctor was abusive and denied him access to

phones does not rise to a constitutional violation. 

b. Failure to inform of medication and fasting requirement in August 2003, and failure to

transport to Parkland in November 2003

On August 20, 2003, Plaintiff was scheduled to have a barium enema at Parkland, but he

was not informed of the medications and fasting requirements by Dallas County jail staff. 

(Amd. Compl. at 17). As a result, the procedure could not be performed. 

This occurrence amounted at most to negligence. An appointment for the barium enema

was rescheduled; Plaintiff was taken to Parkland on Sept 5, 2003, and a CT scan was performed. 

(DCJ Med. Rec. at 280). Insofar as Plaintiff alleges that he was not informed of the test results

until December 26, 2003, the same fails to present a cognizable § 1983 claim

In November 2003, Plaintiff asserts that he was not taken to Parkland for an appointment. 

(Amd. Compl. at 19). The jail medical records do not reflect a scheduled appointment at

Parkland in November 2003. If such an appointment was made, the absence of any notation in

Plaintiff’s jail records and/or the failure to have him transported to Parkland constitutes at most a

negligent omission. 

c. Transfer to Infirmary and Denial of Medical Care in November and December 2003
12

On November 3, 2003, Plaintiff’s criminal defense attorney wrote a letter stating that

Celexa was the only medication that had ever helped Plaintiff’s depression and that, since it had

been discontinued, Plaintiff was very depressed. The letter further reported that Plaintiff did not

benefit from Wellbutrin, and that the absence of Neurontin was a problem because Plaintiff was

becoming increasingly anxious and agitated. The letter acknowledged, however, that no generic

was available for Neurontin. (DCJ Med. Rec. at 821). On November 5, 2003, a consultative

examination was requested. (Id. at 998). On November 7, 2003, Plaintiff’s criminal defense

attorney orally requested a physical and mental evaluation by a doctor at the jail. (Amd. Compl.

at 19). On the same date, Dr. Flanigan evaluated Plaintiff’s abdomen, requested a consultative

examination at Parkland, including a CT scan of his abdomen, and referred Plaintiff’s case to the

psychiatric department for evaluation. (DCJ Med. Rec. at 259, 488, 490, 873, 990, 1069, 1130). 

Dr. Flanigan also ordered that Plaintiff be transferred from the West Tower to the infirmary,

where he remained throughout the remainder of his incarceration at the Dallas County Jail. (Id.

at 818). On November 11-14, 2003, Plaintiff was seen in the clinic for back pain and nausea

complaints (Id. at 492), and the physician issued orders and medications (Id. at 260). Blood test

were also taken and results were received. (Id. at 708).

Plaintiff underwent a mental status exam on November 20 and December 3, 2003. (DCJ

at 271-72, 816). He complains, however, that the psychiatrist could not correct the

administration of his medications, apparently because some medications were non-formulary. 

On December 11, 2003, the medical department received a kite from Plaintiff requesting that the

Wellbutrin dosage be corrected to what the doctor had ordered. (Id. at 84). The kite was

addressed on December 13, 2003, but the response is not included with the medical records. (Id.
13

at 85). Plaintiff was given another mental status exam on December 24, 2003. (Id. at 92, 751,

797).

The above allegations do not present a deliberate indifference claim regarding Plaintiff’s

medical and psychiatric care. Insofar as Plaintiff disagrees with the type of psychiatric

medications that he was receiving while confined at the Dallas County Jail, his claim fails to rise

to a constitutional violation. As noted above, such disagreements as to the correct medication

and/or medical treatment do not constitute an actionable civil rights claim, but at most, a possible

claim of medical malpractice appropriately addressed under state law. E.g. Estelle, 429 U.S. at

107-108; Norton, 122 F.3d at 292.

The complaint alleges that on one occasion in November 2003, Plaintiff had to use the

same colostomy bag for eleven days. The medical records reflect Plaintiff was given colostomy

supplies on November 21, 22, and 29, 2003. (DCJ Med. Rec. at 260, 263, 493). Thus, any delay

in receiving colostomy supplies amounted at the most to negligence. 

On December 13, 2003, Plaintiff developed a lesion at the graft site. During the next

month and one-half, the jail nurses cleaned the area and applied dressing, Bactrim was started for

fourteen days, and a culture of the wound was undertaken. (Id. at 86, 171, 226, 574-78, 579-

590). On December 22, 2003, Plaintiff’s criminal defense attorney called complaining that

Plaintiff had increasing nausea and difficulty urinating. Plaintiff was evaluated by the nurse the

same day. On December 23, 2003, he was prescribed Zantac to address the nausea complaint,

although no active vomiting had been observed or reported. (Id. at 40-41, 147-49, 855). These

allegations do not raise a claim of deliberate indifference to a serious medical need.

Nor did the confiscation of Plaintiff’s blanket, stool softners and abdomen support binder
14

during a jail “shake down” on January 25, 2004, rise to deliberate indifference. (Amd. Compl. at

20). It is conceded that on February 3, 2004, his mother brought a new abdomen support binder

and stoma supplies to the jail. (Id.). Stool softners were also provided by the medical

department. See May 6, 2004 response to Kite #40495. (Dallas County’s Mot. for S.J. at Attach.

2). 

Similarly, any claim related to Plaintiff’s fall on March 4, 2004, does not allege a

colorable claim of deliberate indifference to a serious medical need. This claim is conclusory

and fails to provide any details from which deliberate indifference might be inferred. 

d. Not receiving medications in December 2003 and January 2004

On December 30, 2003, Plaintiff complained of not receiving his medications, although

his chart reflected that nine different medications were prescribed. Although there were no

problems noted, the medications were reordered just in case. (DCJ Med. Rec. at 15, 145, 199). 

On December 31, 2003, Dr. Reid reviewed Plaintiff’s chart. He noted that Plaintiff was

manipulative and called his criminal defense attorney who in turns called the jail to complain

about medical care, when in fact Plaintiff was well attended for in the jail. (Id. at 37, 117, 144,

763).

On January 10, 2004, Plaintiff’s criminal defense attorney allegedly tried to get a

phlebotomist into the jail to test Plaintiff without success. On February 24, 2004, it appears the

phlebotomist was permitted to test Mooney, who allegedly concluded that Plaintiff was not

receiving medications. (Amd. Compl. at 20). 

It is unclear from the medical records whether Plaintiff received his medications in

December 2003 and January 2004. While six medications are listed on the December 2003
6 The jail medication records are as follows: 

November and December 2002 (DCJ Med. Rec. at 306-09); January, February, March, April,

June, August, November, and December 2003 (Id. at 294-303, 310-13, and 356-360);

February, March, April, May, June 2004 (Id. 314-325, 353, 361-373); July, August, September,

October 2004 (Id. 336-342, 394, 396-405); November and December 2004 (Id. at 332-35, 388-

92, 395); January 2005 (Id. 330-31, 386-87); March 2005 (Id. 326-329, 350-52, 380-81, 383-85);

May 2005 (Id. 343-44, 374, 406); June 2005 (Id. 348-49, 378-79); July 2005 (Id. 345-346, 375-

76); August 2005 (Id. 347, 377).

15

medications record, the date on which the medications were administered was left blank. (DCJ 

Med. Rec. at 310-11). The medical records do not include the medications record for January

2004. However, the Clinic Notes from January 10 and January 13, 2004, reflect Plaintiff was

taking nine medications. (Id. at 82 and 35). Moreover, the medications records for the month of

February 2004, reflect that Plaintiff was receiving nine medications on a daily basis. (Id. 324-

25). These medications were continued, with a few exceptions, throughout the remainder of

Plaintiff’s incarceration at the Dallas County Jail.6 

In light of this, the alleged denial of medications in December 2003 and January 2004

does not rise to the level of deliberate indifference. 

e. Psychiatric Medications

The focus of Plaintiff’s allegations is that he should have been receiving non-formulary

psychiatric medications while confined at the Dallas County Jail. Plaintiff’s mental condition

allegedly responded only to Celexa instead of Wellbutrin, which was available at the jail. He

also allegedly needed a higher dosage of Neurontin. 

On March 30, 2004, Dr. Oliver interviewed Plaintiff for 1 1⁄2 hours pursuant to Judge

Francis’s request (DCJ Med. Rec. at 29) and submitted a psychiatric evaluation (Id. at 98, 135,

196). On April 8, 2004, Dr. Oliver examined Plaintiff again and noted that his mental illness
16

was under treatment and relatively stable, and that he was receiving his medications. (Id. at 23-

25, 122, 773-775). On the same date, Dr. Oliver attended a court hearing regarding Plaintiff’s

psychiatric medications. (Id. 26, 776). His notes reflect that Judge Francis would be writing an

order regarding Plaintiff’s psychiatric medications which would possibly restart Celexa and

increase the dosage of Neurontin. (Id.). 

As noted above, prior to on or about April 8, 2004, Plaintiff was medicated with

Wellbutrin primarily because other prescription drugs had no generic counterparts or were not

included in the jail formulary. Any claim that Celexa and a higher dosage of Neurontin were

better suited for the treatment of his psychiatric problems raises a medical malpractice issue

rather than a cognizable constitutional violation. 

f. Delay in receiving colostomy bags, Neurontin, and rash cream 

In late April 2004, Plaintiff claims to have begun having trouble receiving colostomy

bags and Neurontin. (Amd. Compl. at 21). He alleges that on May 21, 2004, his cell mates

allegedly threatened to file complaints against him because of the smell from his colostomy bag

and body odor and he was placed in solitary confinement. (Id. at 21). 

The medical records do not contain any notation referring to colostomy supplies or

denial/delay thereof in April 2004. On May 4, 2004, the Mental Health Clinc evaluated Plaintiff

and noted that his appearance was neat and appropriate (DCJ Med. Rec. at 96, 123, 194, 255-57). 

Absent is any mention of body odor or smell from the colostomy bag. (Id.). On May 7, 2004,

Plaintiff’s mother brought to the jail an abdominal binder, stoma adhesive paste, and odor

eliminator drops. (Id. at 67, 177, 178, 238). The binder was given to Plaintiff, while the paste

and deodorant drops were placed in the examination room until the next day when the doctor
17

authorized their use. (Id. at 66, 176, 125, 240, 770). Plaintiff was seen in the infirmary for

various maladies on May 10, 2004 (Id. 00017-18, 768-69), and was given colostomy supplies,

including paste, the following day. (Id. 65, 184, 241). He was also placed on the nurse list to

receive colostomy supplies every three days as requested. (Id.). The medical records reflect

Plaintiff received colostomy care supplies on May 17 and 26, as well as June 1, 4, 16, 19, and 22. 

(Id. 607-09, 610-12).

Since the delay in receiving colostomy care supplies appears to have been only

temporary, it would not amount to deliberate indifference. Likewise, it appears that delay, if

any, in receiving Neurontin (Amd. Compl. at 21) was also temporary. The medical records

reflect that Plaintiff received Neurontin twice daily from February through June 2004. (DCJ

Med. Rec. at 314-325, 353, 361-373). The dosage, however, decreased from 600 mg. to 400 mg.

on or about May 18, 2004, when Plaintiff’s chart was reviewed and the amount of Neurontin was

checked. (Id. 158, 786; for medications records see id. at 316-317, 319).

The amended complaint further alleges a delay in receiving a medicinal cream for a rash

that had developed over Plaintiff’s face and head during the last several months. (Amd. Compl.

at 21). The medical records reflect that on May 10, 2004, Plaintiff was seen in the infirmary for

various issues, including a “dry scaley rash on nasal folds and beard,” and selenium sulfide was

ordered. (DCJ Med. Rec. at 17-18, 768-69). Any delay in receiving treatment for the facial rash

did not rise to deliberate indifference to a serious medical need

g. Erroneous release from jail and delay in receiving medications and medical supplies

The medical records are silent as to why Plaintiff was erroneously released from custody

on June 25, 2004. Nevertheless any claims arising from this accidental release, and the
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misspelling of his name upon his return to the jail on June 28, 2004, rise at the most to

negligence. (DCJ Med. Rec at 680-84 for copy of Central Intake Evaluation Form). On June 29,

2004, Plaintiff was transferred from the West Tower -- where he had been initially assigned -- to

the infirmary. His family brought to the infirmary his medications and colostomy supplies, and

Plaintiff was given his colostomy supplies that afternoon. (Id. at 63, 182, 243).

Insofar as Plaintiff complains of delay in receiving medications as result of his erroneous

release, his claim fares no better. The medical records reflect that he received his medications in

June and July 2004. (Id. at 315-16, 341). He underwent a mental health screening on July 14,

2004. (Id. at 270). While he may not have been receiving Neurontin as of July 20, 2004 (Id. at

93, 191-93, 252-54), it was restarted within the next four days. (Id. at 49, 157, 827, 908).

h. Inadequate medical care from January 2005 throughout Spring 2005

In 2005, Plaintiff alleges the jail conditions did not improve, medical care remained

inadequate, and his physical and mental condition continued to deteriorate. (Amd. Compl. at

23). Plaintiff’s family allegedly began a second letter writing campaign in January 2005. (Id.). 

With respect to his mental condition, the medical records reflect Plaintiff’s mental health

condition continued to be monitored. On January 28 and 31, 2005, his mental status was

evaluated and Loxapine was started. (DCJ Med. Rec. at 0099, 197, 251, 277). On January 31,

2005, Dr. Reid issued a long written evaluation. (Id. at 734-39). A mental status exam was

conducted on February 22, 2005 (Id. at 279, 861-62, 733), his lithium level was tested on March

30, 2005 (Id. 00091, 190, 249, 698), and a psychiatric evaluation was completed on June 21,

2005 (Id. 749, 858). There were no changes in medications. (Id.). The August 2, 2005 Mental

Health Clinic Notes reflect that Plaintiff felt he was doing well with his current medications,
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although Prozac was not as effective as Celexa. The doctor, thus, increased Proxac to two

capsules. (Id. at 7, 100, 198, 258).

The jail medical department continued to monitor Plaintiff’s physical condition as well. 

In response to his complaint of mid to low back pain, Darvocet and Methocarb were started on

February 25, 2005. (DCJ Med. Rec. at 42, 159). The Clinic Notes for March 18, 2005, indicate

Plaintiff wanted pain medications again; otherwise, he was doing fine, the skin integrity looked

good although still very protruding; Methocarb was started for one week. (Id. at 160). Plaintiff

continued to complain of abdominal pain, and the nurse requested that his chart be reviewed on

April 16, 2005. (Id. at 161). On May 4, 2005, Plaintiff was evaluated for pain in his abdomen

and back. The abdominal exam was unchanged, and the colostomy was functioning. He was

prescribed Darvocet for 10 days. (Id. at 53, 175, 216, 592). In late May, Plaintiff again

complained about back, abdominal and hip pain, and requested that Darvorcet be reissued. (Id.

at 13, 189, 250). Plaintiff renewed his complaint in June. The June 23, 2005 Clinic Notes reflect

that no action was taken because he had an appointment at Parkland on June 24, 2005. (Id. at 62,

170, 219). The August 20, 2005 Clinic Notes state that Naproxen was ordered in response to

Plaintiff’s hip and back pain. (Id. at 11, 55, 163, 220 )

In addition to his mental and physical condition, Plaintiff complained of not receiving

colostomy supplies. The medical records reflect that in response to Grievance #51961 (received

June 2, 2005) about not receiving colostomy bags, the nurse directed that colostomy bags be

issued when the offender needs them. (DCJ Med. Rec. at 16, 200). On August 5, 2005, the

nurse handed colostomy supplies to Plaintiff in his tank, and informed him that he should notify

the nursing staff when more supplies were needed. (Id. at 591, 623). Plaintiff also received
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colostomy care supplies on August 13, 20, and 23, 2005. (Id. at 620-622).

In light of the above, Plaintiff’s general complaints of denial of medical care fail to

establish deliberate indifference to serious medical conditions.

i. Delay in Providing Surgeries for Hernia Repair and Colostomy Reversal

Plaintiff alleges that the hernia repair and colostomy reversal surgeries were and are still 

medically necessary. He relies on the fact that he was evaluated at Parkland on April 16 and 26,

2004, and on both occasions he was scheduled for surgery on July 29, 2004. (Amd. Complaint

at 21). 

The colostomy was as a result of the wounds he suffered in the shootout with police on

October 21, 2002. It is unclear whether the hernia was a pre-existing condition, or also a result

of the shooting incident. Plaintiff concedes that the contemplated surgeries were elective rather

than medically necessary. (Amd. Compl. at 22). His medical records fully corroborate this

assessment. 

On numerous occasions after Plaintiff’s initial surgeries, he was examined and treated by

various physicians at Parkland Hospital. Plaintiff was examined on April 18, 2003, and it was

determined that he was not ready for a colostomy closure, that he should be seen in three months,

and that an abdomen binder be ordered. (DCHD’s Appx. at 75). On August 1, 2003, Plaintiff’s

stoma was cauterized, medications were provided, and a new surgery date was scheduled

pending improvement of his physical condition. (Id. at 80). On September 5, 2003, Plaintiff

underwent a colostomy study, and on September 13, 2003, he was examined at Parkland. (Id. at

81 and 85). A CT scan of his abdomen followed on December 5, 2003. (Id. at 86-87). On April

16, 23, and 26, 2004, Plaintiff was again examined at Parkland. (Id. at 55-56, 66-68). The April
21

16, 2004 evaluation specifically reflects that Plaintiff’s surgeries were elective and not surgically

required. Dr. Garza, the evaluating physician, specifically noted that Plaintiff “will require an

extensive operation for his ventral hernia electively if desired. He will also need takedown of his

colostomy prior to ventral hernia repair if desired. Plastic surgery service will need to assist in

closure of his abdomen, but only after colostomy is taken down. He also needs a barium study

of his colon/rectum prior to takedown of his stoma.” (DCJ Med. Rec. at 1060, 1109, and 1122)

(emphasis added).

Plaintiff argues that Dallas County failed to take him to Parkland for the July 29, 2004

surgeries, and provided him only with follow-up evaluations at Parkland in September and

October 2004, and again in April 2005. (Id. at 22 and 23). The July 29, 2004 Clinic Notes

reflect that Plaintiff’s elective surgeries were postponed when he was mistakenly released from

custody on June 25, 2004, which caused all his previous appointments to be cancelled. (DCJ

Med. Rec. at 88-90, 185, 187, 244-45).

Plaintiff’s hernia was evaluated next on September 17, 2004, and his colostomy was

evaluated on October 18, 2004. (DCHD’s Appx. at 53-54, 32-24 and 86). Plaintiff concedes

that on October 18, 2004, he was advised that his surgeries were elective. (Amd. Complaint at

22). On April 4, 2005, he was again examined at Parkland and an electrolyte panel was

performed. (DCHD’s Appx. at 47-48). On June 24, 2005, Plaintiff was examined and referred

to a plastic surgeon. (Id. 15, 17). On July 7, 2005, the plastic surgeon informed Plaintiff that he

had to lose weight before he could undergo surgery, and a follow-up appointment was

recommended after three months. (Id. at 8).

Although Plaintiff was in custody of the Dallas County Jail for approximately 34 months,
22

the medical records show that he was not medically ready for those two elective surgeries

throughout his period of confinement. While he was scheduled for surgery on July 29, 2004, it

was postponed due to his mistaken release from custody – a circumstance wholly unrelated to his

existing medical condition. Upon his re-incarceration his situation was monitored, resulting in a

determination that he lose weight before rescheduling the surgery. The surgeries were ultimately

scheduled at Parkland for October 26, 2005, but he was transferred to the custody of the TDCJCID for service of his forty-five year sentence on October 5, 2005. 

Plaintiff has failed to demonstrate that delay in performing the surgeries in question

amounted to deliberate indifference to his serious medical needs. 

In summary, the Dallas County Jail medical records strongly refute Plaintiff’s pleadings

that the County’s nurses, employees and doctors were deliberately indifferent to serious medical

needs. Despite the fact that he was represented by retained counsel for more than one year,

following the filing of the complaint in this action, Plaintiff has not presented even a scintilla of

evidence, nor a hint of an expert’s opinion that his medical care while confined was so deficient

in quality as to present a colorable claim that it violated his constitutional rights. Therefore, he

has failed to demonstrate that his suit presents exceptional circumstances which warrant the

appointment of counsel. 

Accordingly, Defendants motions for summary judgment should be granted on the

medical and psychiatric claims, and Plaintiff’s motions for appointment of counsel and cross

motion for summary judgment should be denied. 

2. Speedy Trial Claim

Next Plaintiff alleges that Defendants’ actions and inactions with respect to his medical
23

and psychiatric needs contributed to a denial of his Sixth Amendment right to a timely criminal

trial. (Amd. Compl. at 30-31). An alleged violation of a criminal defendant’s right to a speedy

trial does not state a cause of action under § 1983. Moreover, Plaintiff’s plea of guilty to the

aggravated assault charge waived all non-jurisdictional defects. See Tollett v. Henderson, 411

U.S. 258, 93 S. Ct. 1602 (1973). Therefore, Defendants’ motions for summary judgment should

be granted on this claim as well.

C. Plaintiff’s Motions to Amend and to Produce

In his pro se motion to amend, filed May 31, 2007, Plaintiff seeks leave to add as

defendants the Texas Department of Criminal Justice (TDCJ) -- in whose custody he has been

confined since October 2005 -- and the University of Texas Medical Branch (UTMB), alleged to

be the provider of medical services to TDCJ inmates. Plaintiff’s claims against TDCJ and

UTMB about his ongoing need for medical care and reconstructive surgeries is beyond the scope

of this action. His motion to amend should be denied, but without prejudice to Plaintiff’s filing a

complaint in the Eastern District of Texas, where he is presently confined, in the event he has yet

to receive hernia repair and colostomy reversal surgeries. 

The granting of Defendants’ motions for summary judgment renders moot Plaintiff’s

motion for production. 

RECOMMENDATION:

For the foregoing reasons, it is recommended that Defendants’ motions for summary

judgment (Doc. #68 and #72) be GRANTED, and that Plaintiff’s cross motion for summary

judgment (Doc. #75) be DENIED. 

It is further recommended that Plaintiff’s motion to amend (Doc. #65) be DENIED
24

without prejudice to Plaintiff’s filing a complaint in the Eastern District of Texas, where he is

presently confined, in the event he has yet to receive hernia repair and colostomy reversal

surgeries. Plaintiff’s motions to appoint counsel and to produce documents (Doc. #66, #74, and

#86) should be DENIED.

A copy of this recommendation will be mailed to Plaintiff and counsel for Defendants.

Signed this 4th day of December, 2007.

____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.