IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40482

GARY NORMAN COOPER,

Plaintiff-Appellant

v.

DR. DAO HUNG; LUANN RENNER, Investigator II; TONI L. DEER;

SHANTA CRAWFORD, Compliance Coordinator; GUY SMITH, Program

Administrator II-OP; DAVID SWEETIN, Senior Warden; DEBBIE ERWIN,

Assistant Warden; GREG ABBOTT, Attorney General of Texas; OLIVER

BELL, Texas Department of Criminal Justice Board Chairman; BETTY J.

WILLIAMS; BRENDA HOUGH; KOKILA NAIK, MD; DEPUTY JOHN DOE,

a Caucasian Male; JULIUS DANZIGER, Radiologist; BOELIN, a Caucasian

Female,

Defendants-Appellees

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 9:10-CV-00126

Before HIGGINBOTHAM, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Gary Norman Cooper, Texas prisoner # 1308386, filed

a civil rights complaint under 42 U.S.C. § 1983, asserting that various prison

United States Court of Appeals

Fifth Circuit

F I L E D

August 10, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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officials acted with deliberate indifference to a degenerative condition in his

lower back in violation of the Eighth Amendment and the Americans with

Disabilities Act (ADA). After a Spears hearing, the district court dismissed

Cooper’s claims as frivolous and for failure to state a claim. For the following

reasons, we AFFIRM in part, REVERSE in part, and REMAND for further

proceedings consistent with this opinion.

I

Cooper, who is housed at the Eastham Unit of the Texas Department of

Criminal Justice (TDCJ), complained that Dr. Dao Hung, Betty Williams,

Brenda Hough, and Kokila Naik (all medical personnel) refused to provide him

with medical shoes and a cane, and that security and administrative personnel

wrongly refused to overrule the decisions of the medical personnel. Although

Cooper conceded that his back condition did not meet prison criteria for use of

medical shoes and a cane, he asserted that the defendants should have modified

those criteria to accommodate his disability. Cooper also contended that, as a

result of the defendants’ decisions, his back condition continued to worsen, and

he was unable to participate in basic prison activities.

After Cooper filed his complaint, the magistrate judge convened a Spears

hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); Eason v. Holt, 73

F.3d 600, 602 (5th Cir. 1996) (“The Spears hearing . . . aims to flesh out the

allegations of a prisoner’s complaint to determine whether in forma pauperis

status is warranted or whether the complaint, lacking an arguable basis in law

or fact, should be dismissed summarily as malicious or frivolous . . . .”). At the

hearing, Cooper maintained that, before he was imprisoned, he was given

prescriptions for medical shoes and a cane because of a protruding disk that was

pushing on a nerve in his back. Cooper stated that he still had pain in his foot

and constant back pain and that, a month before the hearing, he had been told

by a physician that the ball portion of his hip joint was wearing out. Cooper also

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noted that he was eligible for Social Security disability payments and had been

granted a handicapped license plate by the Texas Department of Public Safety.

Cooper claimed that, upon intake into TDCJ, Dr. Hung told him that it no

longer mattered what his “free world” doctor said, or what the federal

government said about his Social Security, or what type of license plate he had,

because he was “in the TDCJ now” and was “not getting nothing.” Cooper

contended that he submitted several requests for medical care and was referred

twice to the Brace and Limb Clinic (BLC), where he was told both times that he

did not meet the criteria for orthopedic shoes or a cane. Cooper also stated that

he wrote a letter to the warden, asking for permission to have his wife bring him

his shoes and a cane, and this request was also refused. Cooper insisted that

each defendant had the authority to authorize him to receive medical boots and

a cane and was liable for failing to do so.

The magistrate judge entered a report and recommendation concluding

that Cooper's claims against Dr. Hung were time-barred, and that his remaining

claims should be dismissed under 28 U.S.C. § 1915A(b) as frivolous and for

failure to state a claim. Specifically, the magistrate judge concluded that Cooper

had failed to show deliberate indifference on the part of prison personnel because

medical providers had seen Cooper on several occasions and had referred him to

BLC. The magistrate judge also noted that prison personnel had observed

Cooper walking and standing up from an armless chair without difficulty. The

magistrate judge reasoned further that whether Cooper had qualified for

handicapped license plates or Social Security disability payments had no bearing

on whether he was entitled to special medical equipment in prison. With respect

to the administrative and security personnel, the magistrate judge concluded

that Cooper had not shown that they had authority to override the decisions of

medical personnel, and that the administrative and security personnel were in

any event entitled to rely on the determinations of the medical personnel.

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With respect to Cooper's ADA claims, the magistrate judge reasoned that

this court does not recognize individual liability for lawsuits under the

Rehabilitation Act (RA), and that there is likewise no individual liability under

the ADA because the rights, remedies, and procedures under the two acts are the

same. See Decker v. Dunbar, 633 F. Supp. 2d 317, 357 (E.D. Texas 2008)

("[T]here is no individual liability in lawsuits under the Rehabilitation Act, and

. . . individual liability for claims of violations of the Act cannot be secured by

casting the lawsuit under Section 1983 rather than under the Act.") (citing

Lollar v. Baker, 196 F.3d 603, 608-10 (5th Cir. 1999)). 

The district court overruled Cooper's objections, adopted the findings and

conclusions of the magistrate judge, and entered judgment dismissing the

complaint with prejudice. Cooper timely appealed.

II

We review a dismissal for failure to state a claim pursuant to § 1915A

under the same standard as dismissals under Federal Rule of Civil Procedure

12(b)(6). “The complaint must be liberally construed, with all reasonable

inferences drawn in the light most favorable to the plaintiff.” Woodard v.

Andrus, 419 F.3d 348, 351 (5th Cir. 2005). However, “[t]o survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A

Most of Cooper’s contentions on appeal are worthy of little discussion. 

First, he argues that the district court was biased in favor of the TDCJ but offers

no evidence in support of this claim. Second, Cooper asserts that the district

court should have provided him with a transcript of the Spears hearing, but he

does not demonstrate that the costs of preparing a transcript are justified when

an electronic recording of the hearing was available. See Harvey v. Andrist, 754

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F.2d 569, 571 (5th Cir. 1985) (“Although a transcript of testimony at trial is often

needed . . . such is not the case here. Harvey has demonstrated no particular

need for a transcript nor has he raised a substantial question.”). Third, Cooper

challenges the district court’s conclusion that his claim against Dr. Hung was

time-barred because the consequences of Dr. Hung’s alleged malfeasance are

ongoing. However, Cooper’s claims against Dr. Hung accrued when Dr. Hung

refused to provide him with medical shoes and a cane in 2005. Cooper did not

file the instant complaint until 2010, long after the applicable statute of

limitations had expired. See Frame v. City of Arlington, 657 F.3d 215, 237 (5th

Cir. 2011) (en banc) (“When Congress does not establish a limitations period for

a federal cause of action, the ‘general rule’ is that we borrow the most analogous

period from state law.”); TEX. CIV.PRAC. & REM. CODE ANN. § 16.003 (West 2012)

(setting the limitations period for personal injury actions at two years from the

time the cause of action accrues). Fourth, Cooper contends the magistrate judge

abused her discretion in the manner in which she conducted the Spears hearing. 

However, all of the witnesses who testified did so under oath; the TDCJ records

were authenticated; and Cooper stated at the close of the hearing that he had no

objection to the magistrate judge’s review of those records. Accordingly, the

evidence adduced at the Spears hearing bore “adequate indicia of reliability.” 

See Wilson v. Barrientos, 926 F.2d 480, 482-83 (5th Cir. 1991) (“We have

recognized in our district courts an ‘especially broad discretion in making the

determination of whether an IFP proceeding is frivolous.’ . . . Within the context

of the Spears hearing the trial judge has the discretion to decide the best way to

elicit the complainant’s articulation of his grievance and the basis for making

any credibility assessment needed.”) (quoting Hilgeman v. Nat’l Ins. Co. of Am.,

547 F.2d 298, 300 (5th Cir. 1977)).

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B

Having concluded thatthe foregoing arguments are without merit, we turn

now to Cooper’s contention that the magistrate judge erred in determining that

he failed to state a claim under the Eighth Amendment, which entitles prisoners

to “adequate medical care.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006). 

“A prison official violates the Eighth Amendment’s prohibition against cruel and

unusual punishment when his conduct demonstrates deliberate indifference to

a prisoner’s serious medical needs, constituting an ‘unnecessary and wanton

infliction of pain.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “A

prison inmate can demonstrate an Eighth Amendment violation by showing that

a prison official ‘refused to treat him, ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.’” Id. at 464 (quoting

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

Cooper relies heavily on the fact that he had been prescribed medical shoes

and a cane prior to being sent to prison, but does not cite any authority in

support of the proposition that this fact is sufficient to support a claim of

deliberate indifference. Cooper also submits that, because the prison did not

allow him to do work that involved lifting, standing, or bending from the waist,

and restricted him to the use of a lower bunk, prison officials knew of his

disability. Similarly, this argument does not amount to a claim of deliberate

indifference constituting the wanton infliction of pain. Witnesses testified at the

Spears hearing that they had witnessed Cooper walking, sitting, and climbing

onto an x-ray table without visible pain or difficulty. Furthermore, Cooper saw

several different medical professionals who all concluded that Cooper did not

require shoes and a cane. See Spears, 766 F.2d at 181 (reasoning that plaintiff

who had been examined by five doctors, x-rayed three times, and seen more than

forty times by medical personnel merely “disagreed with his doctors and was

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unhappy with the results of his medical treatment”). Accordingly, Cooper has

failed to show that medical personnel acted with “deliberate indifference.” 

Cooper’s Eighth Amendment claims against security and administrative

personnel are likewise infirm. Cooper does not show why any of them violated

the Eighth Amendment by declining to supersede the judgment of medical

personnel. 

Cooper has not shown that any of the defendants evinced “wanton

disregard for any serious medical needs.” Easter, 467 F.3d at 464. Accordingly,

we affirm the district court’s judgment dismissing Cooper’s Eighth Amendment

claims.

C

Lastly, we turn to Cooper’s claims under the ADA. The magistrate judge

concluded that “the Fifth Circuit has held that there is no individual liability in

lawsuits under the Rehabilitation Act, and that individual liability for claims for

violations of the Act cannot be secured by casting the lawsuit under Section 1983

rather than under the Act.” See Lollar, 196 F.3d at 608-09; Vinson v. Thomas,

288 F.3d 1145, 1156 (9th Cir. 2002) (“[A] plaintiff cannot bring an action under

42 U.S.C. § 1983 against a State official in her individual capacity to vindicate

rights created by Title II of the ADA.”). The magistrate judge went on to explain

that “[b]ecause the remedies, procedures, and rights under the [ADA] are the

same as those under the Rehabilitation Act, there is likewise no individual

liability for claims of violations under the ADA.”

Cooper contends on appeal that the district court erred in construing his

complaint as suing the defendants in their individual capacities. Because

Cooper’s complaint lists what Cooper calls the “official position” of each

defendant, we agree. See Mayfield v. Texas Dept. of Criminal Justice, 529 F.3d

599, 604-05 (5th Cir. 2008) (“Construing Mayfield’s pro se complaint liberally,

we find that it seeks declaratory relief as well as a permanent injunction against

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Johnson and Pierce in their official capacities.”) (citing Nerren v. Livingston

Police Dep't, 86 F.3d 469, 473 (5th Cir.1996) (recognizing that we construe pro

se complaints liberally)); Cole v. Velasquez, 67 F. App’x 252, *2 (5th Cir. 2003)

(noting that it was “unclear whether Cole [was] suing Velasquez in her official

capacity, or in her individual capacity” and concluding that the district court

erred in failing to address this question); id. at *2 n.10 (noting that Cole’s

complaint included the defendant’s official position). 

Because Cooper sued the defendants in their official capacities, the

magistrate judge’s reliance on Lollar was misplaced. See id. at *2 n.11 (“[O]ur

reasoning in Lollar v. Baker may support the conclusion that Cole is precluded

from bringing a § 1983 against Velasquez, in her individual capacity . . . . We

have not had the occasion to decide the question of whether a prison inmate,

such as Cole, can bring a § 1983 suit against a state prison official, such as

Velasquez, in her official capacity in order to vindicate or enforce rights

guaranteed to him by Title II of the ADA.” (emphasis in original)). The district

court erred by dismissing Cooper’s ADA claims on these grounds; however,

whether Cooper has alleged facts sufficient to state a claim under the ADA is not

a question for this court to answer in the first instance on appeal. Accordingly,

we remand to the district court for consideration of this question. See id. at *2

(reversing and remanding for determination of whether plaintiff stated a claim

against defendants in their official capacities).

III

We AFFIRM in part, REVERSE in part, and REMAND for further

proceedings consistent with this opinion.

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