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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KELVIN WAYNE BAKER, #1223066, §

§

Plaintiff, §

§ Civil Action No. 3:05-CV-1118-L

v. §

§

SHERIFF JIM BOWLES, et al., §

§

Defendants. § Pretrial Management

FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF THE

UNITED STATES MAGISTRATE JUDGE

Pursuant to the District Court’s Standing Order of Reference, filed August 10, 2005, this case

was referred to this Court for pretrial management, including the determination of non-dispositive

motions and issuance of findings of fact and recommendations to the District Court on dispositive

motions. Before the Court are the following:

(1) 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 (“HD MTD I”), filed July 7, 2005;

(2) Pro-Se Plaintiff’s Motion of Leave of Objections; Challenges; Disputes/ With Brief

in Support to the Motion of Defendant “Parkland Hospital,” to Dismiss Its

Employee, “Doctor Scott,” Pursuant to Section 101.106, Texas Civ. Prac. & Rem.

Code and Brief in Support Therefore (“Resp. to HD MTD I”), filed October 21,

2005;

(3) Defendant DCHD/Parkland’s Reply to “Pro-Se Plaintiff’s Motion of Leave of

Objections, Challenges; Disputes/ With Brief in Support to the Motion of Defendant

‘Parkland Hospital’ to Dismiss Its Employee ‘Dr. Scott,’ Pursuant to Section

101.106, Tex. Civ. Prac. & Rem. Code and Brief in Support Thereof[,]” filed

November 2, 2005;

(4) Pro-Se Plaintiff’s Recopy Second Motion of Leave of Objections; Challenges,

Disputes/ With Brief in Support to the Motion of Defendant “Parkland Hospital” to

Dismiss It’s Employee “Doctor Scott” Pursuant to Section 101.106; Texas Civil

 

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Plaintiff motion requests leave to file a “recopy” of his response to the Hospital District’s first motion to

dismiss. The “recopy” is virtually identical to the original response, and the Court did not rely on the “recopy” in

recommending a denial of the Hospital District’s motion. Accordingly, Plaintiff’s motion for leave to file the

“recopy” is DENIED as moot. 

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On October 18, 2005, Defendant Preston Blomquist (“Blomquist”) filed a motion to strike Plaintiff’s

response as out of time and illegible. On October 20, 2005, the Court issued its Order denying Blomquist’s motion

to strike, but directing that the Clerk submit a copy of Plaintiff’s response to Blomquist, and giving Blomquist the

opportunity to file an amended reply. Blomquist did not file an amended reply.

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Practices & Remedies Code and Brief in Support Thereof [sic], filed November 3,

2005;

(5) Pro-Se Plaintiff’s Motion of Leave to Amended and Supplement Kelvin Baker’s

October 01, 2005 Motion of Objections; Pursuant to Federal Civil Rules of

Procedures Rule 15(a);(b) [sic],1 filed November 3, 2005;

(6) 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 (“Blomquist MTD I”), filed July 15, 2005;

(7) Pro-Se Plaintiff’s Motion of Objections/ With Brief in Support to the 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 [sic] (“Resp. to Blomquist

MTD I”), filed October 13, 2005;2

(8) 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 (“HD

MTD II”), filed October 17, 2005;

(9) Motion of Defendant Doctor Scott So, M.D. to Dismiss Based on Plaintiff’s Failure

to Comply with Section 74.351, TCPRC and Brief in Support Thereof (“So MTD”),

filed October 17, 2005;

(10) Defendant Preston Blomquist, M.D.’s Reply to Plaintiff’s Motion of ‘Objections’ and

Plaintiff’s Response to Defendant’s Motion to Dismiss, filed October 18, 2005;

(11) 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

(“Blomquist MTD II”), filed October 20, 2005;

(12) Pro-Se Plaintiff’s Motion of Objections; Challenges; Disputes and Deny to 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 [sic] (“Resp.

to HD MTD II”), filed October 27, 2005;

 

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Blomquist moves to strike Plaintiff’s response on grounds that it is out of time. In the alternative,

Blomquist moves for an extension of time to file a reply. In reaching its decision on Blomquist’s second motion to

dismiss, the Court did not consider Plaintiff’s response, and thus need not consider Blomquist’s reply. Accordingly,

Blomquist’s motion to strike Plaintiff’s response is DENIED as moot, and his motion for leave to file a reply is

likewise DENIED as moot.

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Plaintiff’s surreply to the Hospital District’s reply is not authorized by the Local Civil Rules for the

Northern District of Texas, nor did Plaintiff seek and receive leave of the Court to file a surreply. Accordingly, the

Court has not considered Plaintiff’s surreply in making its recommendation on the Hospital District’s motion.

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(13) Defendant Dallas County Hospital District’s Reply to “Pro-Se Plaintiff’s Motion of

Objection, Challenges; Disputes and Deny to 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 31, 2005; 

(14) Pro-Se Plaintiff’s Motion of Objections to Motion of Defendant Doctor Scott So,

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

TCPRC and Brief in Support Thereof [sic] (“Resp. to So MTD”), filed November 28,

2005;

(15) Pro-Se Plaintiff’s Motion of Objections to Motion of Defendant Dr. Preston

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

74.351, TCPRC and Brief in Support Thereof [sic] (“Resp. to Blomquist MTD II”),

filed December 1, 2005;

(16) Motion of Defendant Dr. Preston Blomquist to Strike “Pro-Se Plaintiff’s Motion of

Objections to Motion of Defendant Dr. Preston Blomquist, M.D., to Dismiss Based

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

Thereof”; And in the Alternative, Motion of Extension of Time to File Reply, filed

December 7, 2005;3

(17) Defendant Preston Blomquist, M.D.’s Reply to “Pro-Se Plaintiff’s Motion of

Objections to Motion of Defendant Dr. Preston Blomquist, M.D., to Dismiss Based

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

Thereof[,]” filed December 7, 2005; and

(18) Pro-Se Plaintiff’s Reply and Answer to Defendant DCHD/Parkland’s Reply to ProSe Plaintiff’s Motion of Leave of Objections; Challenges; Disputes/With Brief in

Support to the 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 [sic],4 filed December 9, 2005.

Having reviewed the pertinent filings above and the law applicable to the issues raised, the Court

finds that the motions to dismiss should be DENIED.

 

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With respect to his claims against Bowles, Plaintiff asserts that Bowles failed to take Plaintiff to Parkland

for a second surgery within the time frame specified by his doctors, and that as a result they were unable to save his

vision in that eye. (Att. Compl. at 4.) Further, Plaintiff asserts that Bowles “failed to train officers and staff to

provide [for the] medical and safety needs of inmates in his custody and control.” Id. at 5. Bowles filed an answer

on August 3, 2005. He has not joined in any of the motions addressed in these findings and recommendations.

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I. BACKGROUND

Kelvin Baker (“Plaintiff”) is an inmate currently in the custody of the Texas Department of

Criminal Justice, in the Polunsky Unit. Formerly, Plaintiff was incarcerated in the Dallas County

Jail. On May 31, 2005, Plaintiff filed this civil rights action against Sheriff Jim Bowles (“Bowles”).

He also named the Dallas County Hospital District, doing business as Parkland Memorial Hospital

(“Hospital District”), and its employee, Dr. Scott So (“So”), as defendants. Additionally, he named

as a defendant Dr. Preston Blomquist (“Blomquist”), an employee of the University of Texas

Southwestern Medical Center. Blomquist and So both treated Plaintiff at Parkland Memorial

Hospital (“Parkland”) for an injury to his eye, sustained during a fall in the shower area of the Dallas

County Jail. According to the allegations in the typed statement of the case Plaintiff attached to his

§ 1983 complaint form, Blomquist performed surgery on the eye, and So provided follow-up care.

(Att. Compl. at 3.) Plaintiff further alleges that he “understood he must have a second surgery to

repair the ruptured eye ball globe in his left eye.” Id. The Hospital District, Blomquist, and Scott

were aware that a second surgery would be required to save Plaintiff’s eye, according to Plaintiff’s

statement, but failed to schedule that surgery. Id. at 5. As a result, Plaintiff alleges that the Hospital

District, Blomquist, and Scott violated Plaintiff’s civil rights through their deliberate indifference

to his need for medical treatment of the eye injury.5

 Id. at 4. 

The Hospital District filed a motion to dismiss So from the action pursuant to Texas Civil

Practice and Remedies Code § 101.106 (“§ 101.106"). The Hospital District argues that Plaintiff’s

 

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claims against So constitute claims for medical negligence, and that because Plaintiff sued both So

and his employer, § 101.106(a) and (e) mandate his dismissal from the suit. 

Blomquist filed a motion to dismiss pursuant to Rules 12(b)(5) and (6) of the Federal Rules

of Civil Procedure, as well as § 101.106. Blomquist argues that he should be dismissed from this

suit because he was not properly served with the complaint. He further asserts that Plaintiff’s

allegations amount to a claim for medical malpractice, rather than deliberate indifference, and that

the complaint therefore fails to state a claim upon which relief can be granted under § 1983. Finally,

Blomquist asserts that the suit is subject to dismissal under § 101.106 because it is a medical

malpractice suit based on conduct that occurred within the scope of his employment, and therefore

should have been brought against his employer rather than him.

In addition to the motions to dismiss listed above, the Hospital District, So, and Blomquist

each filed motions to dismiss pursuant to Texas Civil Practice and Remedies Code § 74.351 (“§

74.351"). Their motions, which are virtually identical in content, assert that Plaintiff’s claims are

state law health care liability claims, and as such should be dismissed due to Plaintiff’s failure to

comply with § 74.351 by filing an expert report within 120 days of the filing the lawsuit. 

Plaintiff has filed responses to each motion. Generally, Plaintiff maintains that he has

brought this suit pursuant to federal law, rather than state law. On this basis, he asserts that both §

101.106 and § 74.351 are inapplicable to his case, and that Defendants’ motions therefore should

be denied. He also asserts that Blomquist was properly served. These matters are now before the

Court and ripe for recommendation.

II. ANALYSIS

A. Rule 12(b)(5)

 

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Blomquist, citing Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988), asserts that “[t]he pro se status

of Plaintiff does not excuse his failure to effect service in accordance with Rule 4.” The plaintiff in Kersh, however,

was not proceeding in forma pauperis. Thus Kersh is distinguishable from the instant case, which is governed by

special rules for service of process due to Plaintiff’s in forma pauperis status. 

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Blomquist moves to dismiss Plaintiff’s suit pursuant to Rule 12(b)(5) for failure to effect

service of process. (Blomquist MTD I at 1.) Plaintiff responds that Blomquist was in fact served,

despite his assertions to the contrary, because the Court ordered service by the United States Federal

Marshal on June 10, 2005, and the case record reflects timely service on Blomquist. (Resp. to

Blomquist MTD I at 2.)

Rule 4(m) of the Federal Rules of Civil Procedure provides that if the plaintiff fails to obtain

service within 120 days after filing a complaint, the court may either “dismiss the action without

prejudice . . . or direct that service be effected within a specified time.” FED. R. CIV. P. 4(m). “[I]f

the plaintiff shows good cause for the failure, the court shall extend the time for service for an

appropriate period..” Id. 

“Special rules govern the procedure for service of process in cases involving in forma

pauperis [“IFP”] plaintiffs[.]”6

 Lindsey v. U.S. R.R. Retirement Bd., 101 F.3d 444, 446 (5th Cir.

1996). “28 U.S.C. § 1915(c) provides that ‘[t]he officers of the court shall issue and serve all

process, and perform all duties in [IFP] cases.’” Id. “Once the [IFP] plaintiff has taken reasonable

steps to identity the defendant(s), ‘Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the proposition

that. . .the court is obligated to issue plaintiff's process to a United States Marshal who must in turn

effectuate service upon the defendants. . .’” Lindsey, 101 F.3d at 446 (citing Byrd v. Stone, 94 F.3d

217, 219 (6th Cir.1996)). 

“[A] plaintiff proceeding [IFP] is entitled to rely upon service by the U.S. Marshals and

should not be penalized for failure of the Marshal’s Service to properly effect service of process,

 

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where such failure is through no fault of the litigant.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th

Cir. 1987) (citing Romandette v. Weetabix, 807 F.2d 309 (2d Cir. 1986)). “While . . . incarcerated

plaintiffs proceeding [IFP] may rely on service by the U.S. Marshals, a plaintiff may not remain

silent and do nothing to effectuate such service.” Rochon, 828 F.2d at 1110. “At a minimum, a

plaintiff should request service upon the appropriate defendant and attempt to remedy any service

defects of which a plaintiff has knowledge.” Id. Moreover, “[w]hat amounts to ‘good cause’ [for

failure to effect service] under any particular set of circumstances is necessarily fact-sensitive.”

Lindsey, 101 F.3d at 446. 

In the instant matter, the Court granted Plaintiff leave to proceed IFP on June 10, 2005, and

ordered that the United States Marshal’s Service effectuate service on the Defendants. (See Docket

Entries Nos. 3-4.) The Marshal’s Service served summons on Blomquist, So, and the Hospital

District on June 21, 2005 at the Hospital District’s address, which Plaintiff had provided for each

of those defendants. (See Docket Entries Nos. 7-9.) An executive coordinator accepted service on

behalf of all three of those defendants. Id. Notwithstanding such actions, Blomquist maintains that

he has not received a copy of the process or the complaint, and asserts that no agent is authorized

to accept service. (Blomquist MTD I at 1.) In the affidavit attached to that motion, Blomquist

asserts that he is an employee of the University of Texas Southwestern Medical Center (“UTSMC”).

It thus appears that because Plaintiff is an employee of UTSMC rather than of Parkland, the Hospital

District’s agent had not been authorized by Blomquist to accept service on his behalf.

Plaintiff ostensibly received notice that Blomquist had not been properly served by receipt

of Blomquist’s motion to dismiss filed July 15, 2005. However, Plaintiff also asserts correctly that

the docket reflects that service on Blomquist was effected. Blomquist’s motion to dismiss does not

 

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provide an explanation for this apparent inconsistency. Moreover, neither So nor the Hospital

District have contested service, and it appears that Plaintiff acted reasonably in providing the same

address for both of the doctors who treated him at Parkland. The failure of a plaintiff proceeding

IFP to provide a correct address alone is not grounds for dismissal for failure to effect service of

process. See Lindsey, 101 F.3d at 447; Walker v. Navarro County Jail, 1997 WL 42523, at *2 (N.D.

Tex. Jan. 24, 1997). In addition, Plaintiff did not entirely ignore Blomquist’s notification regarding

the service, but filed a response to the motion to dismiss explaining why it appeared that Blomquist

had in fact been served properly. Under these circumstances, Plaintiff has shown good cause for his

failure to effect proper service, and dismissal of his claims against Blomquist would not be

appropriate. See Lindsey, 101 F.3d at 448 (finding good cause for plaintiff’s failure to properly

serve a defendant where the plaintiff’s conduct did not arise from excessive dilatoriness and silence);

Walker, 1997 WL 42523, at *2-3 (finding that in forma pauperis plaintiff showed good cause for

failure to effect service where he took reasonable attempts to identify the defendant).

Instead, the Court sets forth the following procedures. The district clerk shall send

Blomquist’s counsel two copies of the Waiver of Service of Summons form and a copy of the

complaint without delay. FED. R. CIV. P. App., Form 1A. The Court reminds Blomquist that “[a]n

individual . . . that is subject to service under [Rule 4](e), (f), or (h) and that receives notice of an

action in the manner provided in [Rule 4(d)] has a duty to avoid unnecessary costs of serving the

summons.” FED. R. CIV. P. 4(d)(2). The court will not hesitate to impose costs on Blomquist if he

fails to comply with the request for waiver without good cause. FED. R. CIV. P. 4(d). If Blomquist

waives service, he shall promptly file the executed waiver form with the district clerk. If Blomquist

fails to file the executed waiver of service form within 30 days after receipt, he shall provide his

 

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address to the Court for service by the Marshals. 

Accordingly, Blomquist’s motion to dismiss pursuant to Rule 12(b)(5) should be denied.

B. Rule 12(b)(6)

Blomquist also moves for dismissal of this action pursuant to Rule 12(b)(6), asserting that

Plaintiff has failed to state a § 1983 claim. A motion to dismiss under Rule 12(b)(6) of the Federal

Rules of Civil Procedure challenges a complaint on the basis that it fails to state a claim upon which

relief can be granted. See FED.R.CIV. P. 12(b)(6). Rule 12(b)(6) motions to dismiss are disfavored

and rarely granted. Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). To avoid dismissal, the

plaintiff’s pleadings must show specific, well-pleaded facts, not mere conclusory allegations.

Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). The court must accept those wellpleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75

F.3d 190, 196 (5th Cir. 1996). A court cannot dismiss a complaint, or any part of it, for failure to

state a claim upon which relief can be granted unless it appears beyond a doubt that the plaintiff can

prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355

U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The court

focuses on whether the plaintiff has a right to offer evidence to support his claims, rather than on

whether he will succeed on those claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

“To [] state a claim for relief under 42 U.S.C. § 1983 for denial of medical treatment, a

prisoner must allege deliberate indifference to his serious medical needs.” Woodall v. Foti, 648 F.2d

268, 272 (5th Cir. Unit A June 1981) (citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Dickson

 

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“When a prisoner alleges a denial of medical care, the constitutional basis for the alleged right depends

upon whether he is incarcerated pursuant to a conviction or whether he is a pretrial detainee.” DiSalvo v. Bowles,

2001 WL 705782, at *2 (N.D. Tex. June 18, 2001); see also Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir.1996)

(en banc). “Unlike convicted prisoners, whose rights to constitutional essentials like medical care . . . are guaranteed

by the Eight Amendment, pretrial detainees look to the procedural and substantive due process guarantees of the

Fourteenth Amendment to ensure provision of these same basic needs.” Jacobs v. W. Feliciana Sheriff's Dept., 228

F.3d 388, 393 (5th Cir. 2000) (citing Bell v. Wolfish, 441 U.S. 520, (1979)). It is not clear whether Plaintiff was a

pretrial detainee or a convicted inmate at the time the alleged events giving rise to this action occurred. However,

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. Hare,

74 F.3d at 647-48. 

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v. Colman, 569 F.2d 1310, 1311 (5th Cir. 1978)).7

Blomquist argues that even if Plaintiff’s allegations are taken as true, they do not reflect that

Blomquist was deliberately indifferent to Plaintiff’s medical needs. Blomquist asserts that while

Plaintiff has alleged that a second surgery might have saved his vision in his left eye, he has not

alleged who told him that. He further asserts that Plaintiff has failed to allege that Blomquist “was

the proper person to perform this surgery or that Dr. Blomquist had agreed that such surgery was

necessary.” (Blomquist MTD I at 2-3.) For these reasons, he argues that Plaintiff has failed to

provide support for a claim of deliberate indifference. Id. at 3. Rather, Blomquist appears to assert

that Plaintiff has attempted to convert an alleged medical malpractice claim into a § 1983 claim. 

In Plaintiff’s complaint, which was filed on the Court’s standard § 1983 form, Plaintiff

wrote “failed to schedule 2nd surgery-malpractice-patient care” in response to the portion asking

him to briefly describe the defendant’s acts or omissions that allegedly harmed him. (Compl. at 3.)

In the statement of the case attached to the complaint, Plaintiff alleges that Blomquist described 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 3 to 7 days after the first

 

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In Plaintiff’s response to Blomquist motion, Plaintiff asserts that it was Blomquist who stated that the left

eye could be saved if an additional surgery was performed. (Resp. to Blomquist MTD I at 4.) 

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Plaintiff also appears to contend that Blomquist refused to perform the second surgery due to the expense

associated with such a surgery. (Resp. to Blomquist MTD I at 6, 10.) 

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surgery.8 (Att. Compl. at 3.) Further, Plaintiff asserts that Blomquist knew that a second surgery

was important to save Plaintiff’s eye, but failed to schedule the operation and did nothing to ensure

that he return to Parkland for the second surgery. Id. at 4-5. By failing to ensure that he did not

leave the hospital without scheduling a second surgery, Plaintiff contends, Blomquist violated

Plaintiff’s constitutional rights.9 (Resp. to Blomquist MTD I at 4.) 

Taken in the light most favorable to the Plaintiff, his allegations allege an awareness on

Blomquist’s part of Plaintiff’s need for follow-up care including a second surgery, and a failure to

act to ensure that he receive that recommended care. While Blomquist disputes the facts as alleged

by Plaintiff, a 12(b)(6) motion is not the appropriate forum for addressing factual disputes. Relevant

for determining the instant motion is that Plaintiff has alleged that Blomquist knew of the need for

follow-up surgery to preserve the vision in Plaintiff’s left eye, and failed to exercise his authority

to ensure that such care would be provided. Such facts, if proved to be true, state a claim for

deliberate indifference to a serious medical need. See Kersh v. Derozier, 851 F.2d 1599,1513 (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); Trahan v. Reinken, 2005 WL 2075890, at *2 (S.D. Tex. Aug. 26, 2005)

(finding that plaintiff had alleged sufficient facts to establish a § 1983 claim where he asserted that

a prison health care provider refused to respond to requests for treatment for eyesight problems

 

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which resulted in lost sight in one eye). 

Blomquist cites several cases in support of his motion, although none support a finding that

Plaintiff has failed to state a claim for deliberate indifference to his medical needs. First, Blomquist

asserts that “[u]nder Gamble, Plaintiff had to allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” (Blomquist MTD I at 2.) As Kersh v.

Derozier and Trahan v. Reinkin demonstrate, however, Plaintiff has alleged an omission sufficiently

harmful to demonstrate deliberate indifference to serious medical needs.

Blomquist also cites Gamble v. Estelle, as well as Varnando v. Lynaugh, 920 F.2d 320, 321

(5th Cir. 1991), in support of his claim that “[a]ssertions of inadvertent failure to provide medical

care or negligent diagnosis do not satisfy [the deliberate indifference standard], nor does

unsuccessful medical treatment or a disagreement between an inmate and a physician concerning

the appropriateness of a course of treatment.” (Blomquist MTD I at 2.) However, Plaintiff’s claims

focus on Blomquist’s failure to ensure that a second surgery take place despite his knowledge of the

need for such a surgery to restore Plaintiff’s vision. His claims do not focus on any alleged error

in diagnosis. Plaintiff’s claims are also distinguishable from those brought by the plaintiff in

Varnando. In Varnando, the plaintiff, who had a prosthetic hip, complained that medical personnel

recommended revocation of his diet card after ramps were installed in the cafeteria line; thus, rather

than having his meals brought to him, the plaintiff had to stand in line between 45 and 60 minutes

for each meal Id. at 320-21. Standing in line, he asserted, caused the wires in his hip prosthesis to

break, resulting in the need for a second surgery. Id. at 321. The Fifth Circuit found that even if the

plaintiff’s allegations were true, the defendants’ judgment about the ramps was mistaken but did not

amount to deliberate indifference to his serious medical needs. Id. at 321. Plaintiff, on the other

 

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hand, does not take issue with the results of the treatment Blomquist recommended; rather, he argues

that Blomquist failed to ensure that Plaintiff receive the treatment Blomquist himself allegedly

recommended. 

Finally, Blomquist cites Jolly v. Klein, 923 F. Supp. 931, 945 (S.D. Tex. 1996), asserting that

“allegations of mere negligence, neglect, or medical malpractice on the part of a physician do not

state an actionable claim under Section 1983.” (Blomquist MTD I at 2.) While one section of

Plaintiff’s complaint does identify malpractice as an action that allegedly caused him harm, the

statement of his case and his response clarify that while he has used such terms, his allegations

include a claim for deliberate indifference. Plaintiff’s complaint and response do not reflect any

issues with the quality of the care Blomquist provided, nor any challenge the course of treatment

recommended. Rather, Plaintiff takes issue with Blomquist’s failure to ensure that Plaintiff received

the follow-up treatment that he understood had been recommended by Blomquist to preserve the

vision in his left eye. 

Accordingly, because the Court finds that Plaintiff has stated a claim for deliberate

indifference, Blomquist’s motion for dismissal of Plaintiff’s claim on grounds that he has failed to

state a claim should be DENIED. 

C. Texas Civil Practices & Remedies Code § 101.106(a) and (e)

The Hospital District argues that “Plaintiff’s alleged claims and causes of action against [So]

constitute nothing more than a medical negligence claim.” (HD MTD I at 2.) The Hospital District

thus argues that Plaintiff’s claims against So arise under the Texas Tort Claims Act, and are subject

to dismissal pursuant to § 101.106(a) & (e). Id. at 4-5. Those provisions provide that:

(a) The filing of a suit under this chapter against a governmental unit constitutes an

irrevocable election by the plaintiff and immediately and forever bars any suit or

 

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recovery by the plaintiff against any individual employee of the governmental unit

regarding the same subject matter.

(e) If a suit is filed under this chapter against both a governmental unit and any of its

employees, the employees shall immediately be dismissed on the filing of a motion

by the governmental unit.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(a),(e) (Vernon Supp. 2004-2005). The Hospital

District asserts that it is a unit of local government, and at the time of the events giving rise to this

lawsuit, So was acting within the course and scope of his employment as a third-year ophthalmology

resident employed by the Hospital District. (HD Mot. I at 2.) The Hospital District thus appears

to argue that because Plaintiff simultaneously filed suit against So and the Hospital District, So must

be dismissed immediately from this lawsuit pursuant to § 101.106(a) & (e). Id. at 4-5.

A state law negligence tort claim is subject to dismissal in a federal proceeding pursuant to

§ 101.106, assuming that the requirements of § 101.106 are otherwise met. See Batiste v. City of

Beaumont, 2005 WL 2284206, at * 3 (E.D. Tex. Sept. 16, 2005) (dismissing negligence claims

against individual defendants pursuant to § 101.106(a)); Livingston v. Desoto Ind. Sch. District,

2004 WL 2964977, at *2 (N.D. Tex. Dec. 15, 2004) (dismissing state law tort claims for negligence

pursuant to § 101.106(e)). However, a § 1983 claim is not subject to mandatory dismissal pursuant

to § 101.106, because a § 1983 claim is not brought under the Texas Tort Claims Act. See Estate

of Sorrels v. City of Dallas, 45 Fed. Appx. 325 (per curiam) (observing that the language “under this

chapter” in § 101.106 refers to the TTCA, and that § 101.106 thus does not apply to claims brought

under § 1983); Rogers v. Bonnette, 2005 WL 1593437, at *2 (W.D. Tex. July 5, 2005) (construing

pro se plaintiff’s claims for negligent training and negligent supervision as § 1983 claims, and

declining to grant city’s motion to dismiss those claims pursuant to § 101.106). Thus, in order to

make a recommendation on the Hospital District’s motion to dismiss pursuant to § 101.106, the

 

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10Notwithstanding the liberal pleading standards of the Federal Rules of Civil Procedure, the Court does

not construe Plaintiff’s suit as including pendent state law medical malpractice claims, based on Plaintiff’s repeated

statements indicating that he filed the instant action pursuant to § 1983, and not the TTCA.

11The Hospital District states that it could only find one case on point involving § 101.106, Villasan v.

O’Rourke, 2005 WL 1242164 (Tex. App. –Beaumont May 26, 2005, no pet. h.). (HD MTD I at 5.) In Villasan,

family members of an inmate filed suit in state court against a doctor and his employer, the state university’s medical

branch, asserting that the doctor had negligently failed to diagnose the inmate’s cancer. 2005 WL 1242164, at *1. 

Villasan is distinguishable from the instant action, however, as Plaintiff has not asserted a state law negligence

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Court must determine whether Plaintiff’s claims consist exclusively of medical negligence claims,

or whether he has stated a claim against So under § 1983.

While Plaintiff’s complaint uses terms associated with health care liability claims, the

substance of his allegations evidence a claim of deliberate indifference. In response to a prompt on

the standard § 1983 form asking him to briefly describe the defendant’s acts or omissions that

allegedly harmed him, Plaintiff wrote “patient neglect–failed to schedule 2nd surgery causing

offender to lo[]se vision [in] left eye,/ malpractice did not see medication ordered [sic][.]” (Compl.

at 3.) Plaintiff alleges in his statement of the case that he was told after receiving his first surgery

that he would be seen by So. (Att. Compl. at 3-4.) Further, Plaintiff asserts that So knew that a

second surgery was important to save Plaintiff’s eye but failed to schedule the operation and did

nothing to ensure that he return to Parkland for the second surgery. Id. at 4-5. Liberally construing

Plaintiff’s allegations, they state a claim for deliberate indifference to his serious medical needs.

See, e.g., Kersh v. Derozier, 851 F.2d at 1513; Trahan v. Reinken, 2005 WL 2075890, at *2.

Moreover, Plaintiff repeatedly states that he brought his suit pursuant to § 1983, not the Texas Tort

Claims Act. (Resp. to HD MTD I at 5, 8, 11.) The Court therefore finds that Plaintiff has stated a

claim against So under § 1983 and has raised no claims against So pursuant to the TTCA.10

Because § 101.106 applies only when suit is filed under the TTCA, § 101.106 does not

mandate dismissal of Plaintiff’s § 1983 action.11 Accordingly, the Court recommends that the

 

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claim, but a § 1983 claim, and has filed suit in federal, rather than state court. 

12Blomquist did not address the exception to that provision of the § 101.106, whereby a plaintiff may file

amended pleadings dismissing the employee from the suit and naming the governmental unit as a defendant within

30 days of the filing of the motion to dismiss. While Plaintiff filed a motion for leave to add UTSMC as a

defendant, that motion did not request the dismissal of Blomquist. Thus, the exception is not applicable in the

instant matter, even if Plaintiff’s suit had been brought pursuant to the TTCA, and the Court thus need not address

that exception.

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Hospital District’s motion to dismiss So from the instant action pursuant to § 101.106 be DENIED.

D. Texas Civil Practices & Remedies Code § 101.106(f)

Blomquist asserts that “[d]espite Plaintiff’s attempts to couch this as a Section 1983 action,

this is an alleged medical malpractice suit.” (Blomquist MTD I at 3.) On this basis, Blomquist

argues that Plaintiff’s claims against him arise under the Texas Tort Claims Act, and as such are

subject to dismissal pursuant to § 101.106. While Blomquist did not specify a particular subsection

of § 101.106 on which his brings his motion to dismiss, his assertions therein point to a reliance on

§ 101.106(f), which provides as follows:

(f) If a suit is filed against an employee of a governmental unit based on conduct

within the general scope of that employee’s employment and if it could have been

brought under this chapter against the governmental unit, the suit is considered to be

against the employee in the employee’s official capacity only. On the employee’s

motion, the suit against the employee shall be dismissed unless the plaintiff files

amended pleadings dismissing the employee and naming the governmental unit as

defendant on or before the 30th day after the date the motion is filed.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f) (Vernon Supp. 2004-2005). Blomquist asserts

that at the time the events giving rise to this suit occurred, he was an employee of UTSMC, a

component of the University of Texas System and thus an agency of the State of Texas. Id. He

further argues that the alleged conduct that forms the basis for this suit occurred within the general

scope of his employment with UTSMC. Id. Blomquist thus argues that because he has filed the

instant motion, the suit must be dismissed.12 Id. 

 

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13Notwithstanding the liberal pleading standards of the Federal Rules of Civil Procedure, the Court does

not construe Plaintiff’s suit as including pendent state law medical malpractice claims, based on Plaintiff’s repeated

statements indicating that he filed the instant action pursuant to § 1983, and not the TTCA.

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This Court has already found, as discussed above in Section B, that Plaintiff has stated a §

1983 claim against Blomquist. Moreover, Plaintiff asserts that he brought his suit pursuant to §

1983, not the Texas Tort Claims Act.13 (Resp. to Blomquist MTD I at 13.) As noted above in

Section C, a § 1983 claim is not subject to mandatory dismissal pursuant to § 101.106 because a §

1983 claim is not brought under the Texas Tort Claims Act. See Estate of Sorrels v. City of Dallas,

45 Fed. Appx. 325; Rogers v. Bonnette, 2005 WL 1593437, at *2. Accordingly, the Court

recommends that Blomquist’s motion to dismiss pursuant to § 101.106 be DENIED.

E. Texas Civil Practices & Remedies Code § 74.351

The Hospital District, So, and Blomquist each assert that “[t]he only reasonable

interpretation of Plaintiff’s Complaint as to this Defendant is that this is a ‘health care liability

claim’ in which Plaintiff alleges that Defendant hospital and its employees failed properly to treat

his left eye injury[.]” (Hosp. Dist. MTD II at 1; So MTD at 1; Blomquist MTD at 1.) The Hospital

District, So, and Blomquist further argue that because Plaintiff’s claim is a health care liability

claim, it is subject to dismissal for failure to comply with the requirements of Texas Civil Practices

& Remedies Code § 74.351 (“§ 74.351"). (Hosp. Dist. MTD II at 3; So MTD at 3; Blomquist MTD

at 3.)

Section 74.351(a) provides that:

(a) In a health care liability claim, a claimant shall, not later than the 120th day

after the date the claim was filed, serve on each party or the party’s attorney one or

more expert reports , with a curriculum vitae of each expert listed in the report for

each physician or health care provider against whom a liability claim is asserted.

The date for serving the report may be extended by written agreement of the affected

parties.

 

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14Section 13.01, a predecessor to § 74.351, was repealed on June 2, 2003. See, e.g., Cruz v. Chang, 2005

WL 356817, at *4 n.5 (W.D. Tex. Jan. 28, 2005). Although it varied in a number of respects from § 74.351, § 13.01

also contained a requirement that individuals bringing health care liability claims file an expert report and curriculum

vitae for each expert within a certain number of days of filing suit. 

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(b) If, as to a defendant physician or health care provider, an expert report has

not been served within the period specified by Subsection (a), the court, on the

motion of the affected physician or health care provider, shall . . . enter an order that

. . . (2) dismisses the claim with respect to the physician or health care provider, with

prejudice to the refiling of the claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) & (b) (Vernon Supp. 2004-2005). Plaintiff does

not dispute that he has not complied with the expert witness report requirement of § 74.351;

however, he argues that because he brings his claims pursuant to § 1983, the requirement does not

apply to the instant suit. (Resp. to HD MTD II at 2.)

The Hospital District, So, and Blomquist ground their argument that § 74.351 requires

dismissal upon their characterization of Plaintiff’s claims as state law health care liability claims,

rather than as § 1983 claims. However, as discussed above, the Court finds that Plaintiff has stated

§ 1983 claims against So and Blomquist. Dismissal of Plaintiff’s § 1983 claims pursuant to § 74.351

would be inappropriate, as § 74.351 clearly does not foreclose federal civil rights claims. See Roach

v. Muncelle, 2004 WL 385015, at *2 (N.D. Tex. Mar. 2, 2004) (denying motion to dismiss pursuant

to § 13.01,14 observing that while the statute had been repealed after the filing of the motion, the

statute would nevertheless not foreclose the plaintiff’s § 1983 claims against defendant for alleged

deliberate indifference to serious medical needs); see also Nelson v. Myrick, 2005 WL 723459 (N.D.

Tex. Mar. 29, 2005) (denying motion to dismiss the plaintiff’s § 1983 and state law claims pursuant

to § 74.351).

While the Court has not determined herein whether Plaintiff has stated a § 1983 claim against

the Hospital District, the Court need not do so in order to make a recommendation on the Hospital

 

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15In support of their claim that Plaintiff cannot avoid the expert report requirements of § 74.351 by

attempting to cast his health care liability claims as § 1983 claims, the Hospital District, So, and Blomquist cite a

number of Texas state court cases: Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541 (Tex. 2004); MacGregor Med.

Ass’n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998 (per curiam); Zuniga v. Health Care San Antonio, Inc., 94 S.W.3d

778, 781 (Tex. App. –San Antonio 2002, no pet.); Gormley v. Stover, 907 S.W.2d 448, 450 (Tex. 1995); Sorokolit v.

Rhodes, 889 S.W.2d 239, 242 (Tex. 1994); Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 751 (Tex.

App. –Fort Worth 1998, pet. denied); and Groomes v. USH of Timberlawn, Inc., 2005 WL 1793201 (Tex. App. –pet.

filed). However, none of these decisions address the applicability of the requirements of § 74.351 in federal actions.

16But see Cruz v. Chang, 2005 WL 356817, at *6, 8 (dismissing state law medical malpractice claims for

failure to comply with the statutory requirements of § 13.01 after finding no conflict between that provision and Rules

16, 26, and 37; the district court observed that § 13.01 prohibited the use of the expert report in discovery or trial, and

was a non-discovery procedure designed to serve as “a vehicle for dismissal of frivolous claims.”). 

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District’s motion. Several federal district courts have addressed motions to dismiss state law claims

pursuant to § 74.351 where state law claims were before those courts either pendent to federal claims

or on the basis of diversity jurisdiction.15 These federal courts have ground their rejection of such

motions in a finding of a collision between the requirements imposed by § 74.351 and federal civil

procedural rules governing experts and disclosures. See, e.g., Brown v. Brooks County Det. Ctr.,

2005 WL 1515466, at *1-2 (S.D. Tex. June 23, 2005) (denying a motion to dismiss pendent state

law medical malpractice claims pursuant to § 74.351 in a prisoner’s § 1983 suit, finding that “§

74.351 directly collides with the discretionary power vested in the federal court concerning experts

and disclosures”); Nelson v. Myrick, 2005 WL 723459, at *3-4 (finding a collision between § 74.351

and Rules 26 and 37 based on their mandatory versus discretionary terms, conflicting timing

provisions, and content differences); McDaniel v. United States of America, 2004 WL 2616305, at

*1, 8-9 (W.D. Tex. Nov. 16, 2004) (denying a motion to dismiss negligence and medical malpractice

claims in federal court on diversity jurisdiction, finding that Rules 26 and 37 preempted § 74.351

and observing that the federal system provided other effective ways to fulfill the purpose of §

74.351, the deterrence of frivolous lawsuits).16 In addition, one court found that § 74.351 intruded

on the federal court’s authority to dismiss in forma pauperis lawsuits deemed frivolous. Brown v.

 

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17The Hospital District did not file a motion to dismiss Plaintiff’s claims for failure to state a claim, and it

was not necessary for the Court to find whether Plaintiff has stated a claim against the Hospital District under § 1983

in order to make a finding on the Hospital District’s motion to dismiss pursuant to § 74.351. However, the Court

observes that Plaintiff emphasizes throughout his response to the Hospital District’s motion to dismiss that he filed

the instant action pursuant to § 1983, and not the TTCA.

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Brooks County Det. Ctr., 2005 WL 1515466, at *2 (finding that “§ 74.351 . . . imposes additional

dismissal grounds for frivolous lawsuits not provided for in § 1915A[.]”) On the basis of this

authority, the Court finds that § 74.351 does not mandate dismissal of Plaintiff’s claims against the

Hospital District, regardless of whether such claims were brought as § 1983 or state law health care

liability claims.17 Accordingly, the motions of the Hospital District, So, and Blomquist to dismiss

Plaintiff’s claims pursuant to § 74.351 should be DENIED.

III. CONCLUSION

For these reasons, the Court recommends that Blomquist’s motion to dismiss pursuant to

Rule 12(b)(5), Rule 12(b)(6), and § 101.106 (f) be DENIED. The Court further recommends that

the Dallas County Hospital District’s motion to dismiss Scott So pursuant to § 101.106(a) and (e)

be DENIED. In addition, the Court recommends that the Dallas County Hospital District’s, So’s

and Blomquist’s motions to dismiss pursuant to § 74.351 be DENIED.

SO ORDERED on this 13th day of December, 2005.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

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); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) 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.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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