Case: 19-20873 Document: 00516341400 Page: 1 Date Filed: 06/02/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 2, 2022
No. 19-20873 Lyle W. Cayce
Clerk
Donald Lloyd Davis, Jr.,
Plaintiff—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-1729
Before Smith, Wiener, and Southwick, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Donald Lloyd Davis, Jr., an inmate in Texas state prison, brings a
Section 1983 suit alleging the Director of Texas Department of Criminal
Justice — Correctional Institutions Division and unidentified prison officials
were deliberately indifferent to his medical needs in violation of the Eighth
Amendment. The district court requested the Texas State Attorney
General’s Office provide a supplemental administrative report, known as a
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No. 19-20873
Martinez report, to develop the record. Upon reviewing the report, the
district court dismissed Davis’s claims as frivolous and for failure to state a
claim. We AFFIRM in part, VACATE in part, and REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
Donald Lloyd Davis, Jr., an inmate presently in Texas state prison,
filed a pro se complaint under 42 U.S.C. § 1983 against the Director of the
Texas Department of Criminal Justice — Correctional Institutions Division
(“TDCJ”), now Bobby Lumpkin, and multiple unidentified medical
providers within the prison system for violating his Eighth Amendment right
to adequate medical care.
He alleges around September 4, 2017, in the Polansky Unit in
Livingston, Texas, an officer applied “an unwarranted use of force” against
him and intentionally fractured his foot and ankle. As a result, he
experienced constant pain and was unable to walk or put pressure on his foot.
On September 6, officers sent Davis to the medical unit because his foot was
discolored and swollen. A provider in the medical unit took x-rays of his foot
and concluded there was no fracture. The provider gave him crutches and
instructed him to take ibuprofen for ten days for the pain.
He did not receive the ibuprofen as prescribed for the next two days.
He experienced so much pain that he claims that he “lost his will to live” and
attempted suicide. To provide mental health treatment after this incident,
the prison transferred Davis to the Jester IV Unit. He alleges before leaving
the Polansky Unit for the Jester Unit, the staff took his crutches even though
his foot was clearly swollen and discolored.
On September 12, 2017, while in the Jester Unit, he complained he
was in pain, so the medical unit ordered another set of x-rays. Before prison
providers could perform the x-rays, he was transferred to another unit, the
Huntsville Unit, so the x-rays were administered the next day, on September
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13, 2017. He says a provider at the Huntsville Unit erroneously relied on his
initial medical evaluation from the Polansky Unit to conclude that he was not
suffering any injuries or other medical issues in his foot.
Davis states that he continued to file grievances because he was
experiencing foot pain. Eventually, he returned to the Jester Unit. On
September 24, 2017, 20 days after his injury, the Jester Unit sent him to the
hospital to receive a CAT scan. He was in the hospital briefly on September
24 but was sent back 29 days later on October 23. At this visit, medical
personnel told him he had a broken toe and sprained ankle. The hospital
provided Plaintiff with a medical boot to treat these injuries. After his
hospital visit, he was sent to the Ramsey Unit where he continued to
complain of pain.
Davis alleges Lumpkin and the various prison medical providers
involved in treating his foot violated his Eighth Amendment rights because
they were deliberately indifferent to his medical needs. He argues they failed
to provide him sufficient medical care because despite the obvious injury to
his foot, his requests to receive medical treatment across five different prison
units, and his numerous filed grievances, he was not properly treated until 49
days after his injury. He alleges the failure to treat him and delay in treatment
occurred because the prison providers intentionally misdiagnosed him as a
cover-up scheme to protect the officers who caused the injury to his foot.
Davis pursued his pro se complaint before the district court in forma
pauperis. To help develop the factual record, the district court requested that
the Texas Attorney General look into Davis’s claims and submit a
supplemental report to the district court. After reviewing that report, the
district court dismissed Davis’s complaint as legally frivolous and for failure
to state a claim upon which relief can be granted. Davis timely appealed this
dismissal and proceeds in forma pauperis on appeal.
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DISCUSSION
Under the Prison Litigation Reform Act (“PLRA”), district courts
must dismiss prisoners’ in forma pauperis claims if they allege frivolous
actions or fail to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i), (ii). We review a district court’s dismissal of an in forma
pauperis prisoner’s complaint as frivolous for abuse of discretion and
dismissal for failure to state a claim de novo. Geiger v. Jowers,
404 F.3d 371,
373 (5th Cir. 2005). Here, the district court cited
28 U.S.C. § 1915(e)(2)(B)
generally, noting Davis’s claims were dismissed both as frivolous and for
failure to state a claim, so we will review the issues de novo.
Id.
In reviewing whether a district court properly dismissed a prisoner’s
complaint for failure to state a claim, we apply the same standard as
dismissals under Federal Rule of Civil Procedure 12(b)(6). Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998). Thus, a prisoner’s complaint “will
survive dismissal . . . if it contains sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Legate v. Livingston,
822
F.3d 207, 210 (5th Cir. 2016) (quotation marks and citation omitted). A
prisoner’s claim will be dismissed as frivolous under the PLRA “if it has no
arguable basis in law or in fact.” Ruiz, 160 F.3d at 274–75.
Davis argues the district court erred in dismissing his deliberate
indifference claims. 1 As a pro se plaintiff, Davis’s pleadings and arguments
1
Davis may have raised a claim of excessive force in his complaint, as he stated an
officer’s “use of force” caused his foot injury. He did not pursue this claim at any point in
the district court proceedings but stated again on appeal that an “officer used excessive
force against him and he sustained a broken ankle.” Beyond this statement, he did not
make any argument regarding an excessive force clam in his brief. Although pro se
plaintiffs’ briefing is construed liberally, if a pro se plaintiff fails to argue claims in the body
of his brief, those claims are considered abandoned. Yohey v. Collins, 985 F.2d 222, 224–
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are construed liberally. Alderson v. Concordia Par. Corr. Facility, 848 F.3d
415, 419 (5th Cir. 2017). The Supreme Court has interpreted the Eighth
Amendment’s prohibition against cruel and unusual punishment to
“impose[] a duty on prison officials to ‘ensure that inmates receive
adequate . . . medical care.’” Easter v. Powell,
467 F.3d 459, 463 (5th Cir.
2006) (quoting Farmer v. Brennan,
511 U.S. 825, 832 (1994)). A prison
official violates these rights 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)).
To show an official was deliberately indifferent, a plaintiff must
demonstrate that the official is aware that an “inmate[] face[s] a substantial
risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Farmer, 511 U.S. at 847. Deliberate indifference poses
an “extremely high standard to meet.” Domino v. Tex. Dep’t of Crim. Just.,
239 F.3d 752, 756 (5th Cir. 2001). “Unsuccessful medical treatment, acts of
negligence, or medical malpractice” is not enough to meet this standard.
Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006). Mere disagreement
with medical judgments or treatment is also insufficient.
Id. Instead, a
plaintiff must show prison officials “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.” Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985). Where the
plaintiff alleges a delay in medical treatment, that delay must have resulted in
25 (5th Cir. 1993). Davis provided no argument that could be construed to challenge
dismissal of an excessive force claim; any excessive-force claim is therefore abandoned.
Id.
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substantial harm for the prisoner to recover. Mendoza v. Lynaugh, 989 F.2d
191, 193 (5th Cir. 1993).
Davis claims both the Director of the TDCJ and the prison officials
directly involved were deliberately indifferent to his medical needs. The
district court dismissed his claims against all defendants. As to the claim
against the Director, the district court reasoned that Davis failed to state a
claim because Davis did not allege that the Director was involved in any of
his treatment or the failure to treat him. The district court also stated that
Davis did not allege the deliberate indifference was the result of a prison
policy that then could be tied to the Director.
We agree. Davis did not mention any relationship between the
allegedly unconstitutional acts and the Director or any prison policy.
Without such an allegation, Davis cannot state a claim against him. Thompson
v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (explaining that personal
involvement, not mere supervisory liability, is required to state a section 1983
claim).
Next, we turn to Davis’s claims against the several unidentified prison
medical providers. The district court dismissed these claims after reviewing
the supplemental report it requested from the Texas Attorney General. To
assist district courts in discerning whether in forma pauperis prisoner
complaints may proceed, the Fifth Circuit has adopted a procedure from the
Tenth Circuit that allows the district court to obtain a supplemental record
to further flesh out the facts behind a prisoner’s complaint. Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997) (citing Cay v. Estelle,
789 F.2d
318, 323 n.4 (5th Cir. 1986), overruled on other grounds, Denton v. Hernandez,
504 U.S. 25 (1992)); see also Martinez v. Aaron,
570 F.2d 317 (10th Cir. 1978).
That record is known as a Martinez report, or as a Martinez hearing if the
information is obtained through a hearing. See Cardona v. Taylor,
828 F.
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App’x 198, 201 (5th Cir. 2020); Janke v. Price, 43 F.3d 1390, 1392 (10th Cir.
1994) (using Martinez hearing). A Martinez report is produced as a result of
prison officials’ investigating the prisoner’s complaints and compiling an
administrative record that acts like an affidavit to aid the district court in
screening the complaint. Hall v. Bellmon,
935 F.2d 1106, 1111 (10th Cir.
1991); Simkins v. Bruce,
406 F.3d 1239, 1240 n.2 (10th Cir. 2005).
We have not published much caselaw on the proper use of a Martinez
report. Multiple panels of this court have held that a district court may not
rely on information in a Martinez report if it conflicts with the prisoner’s
pleadings. Cardona, 828 F. App’x at 201 (collecting cases). The Tenth
Circuit, where the Martinez report originated, follows the same approach.
Hall, 935 F.2d at 1109; see also Parker v. Carpenter,
978 F.2d 190, 191 n.2 (5th
Cir. 1992) (explaining we adopted the Martinez report from the Tenth
Circuit). In doing so, the Tenth Circuit has explained that the function of
Martinez reports is to “sort and clarify issues raised in a pro se complaint,”
so it would be improper for the district court to use the report’s information
to resolve disputed factual issues. Janke,
43 F.3d at 1392.
We conclude that if the Martinez report conflicts with the pro se
plaintiff’s allegations, the district court must accept the plaintiff’s allegations
as true, not the records in the report. See Williams v. Mason, 210 F. App’x
389, 390 (5th Cir. 2006). In Williams, a panel of this court vacated the district
court’s dismissal of a prisoner’s deliberate indifference claim when the
district court improperly relied on a Martinez report.
Id. The prisoner
alleged he suffered continuing injuries because the defendants failed to
provide him with dentures or adapt his food diet and permissions.
Id. The
district court relied on a Martinez report to refute the plaintiff’s claims that
he had a serious medical need for dentures and dismissed his claims as both
frivolous and for failure to state a claim.
Id. The panel vacated this decision
because, as alleged, it was possible the prisoner could be granted relief.
Id.
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Similarly, another panel discussed the inappropriateness of a district court
relying even on video evidence submitted with a Martinez report to
characterize a prisoner’s injuries differently from those the plaintiff alleged.
Hamer v. Jones, 364 F. App’x 119, 123 (5th Cir. 2010). The panel ultimately
resolved the case on other grounds but explained it was improper to adopt
information in a Martinez report in the face of a plaintiff’s conflicting
allegations no matter how compelling.
Id.
Here, the district court relied on the Martinez report’s medical
records in the face of Davis’s conflicting allegations to conclude Davis’s
treatment was sufficient and any delay in treatment was not due to deliberate
indifference. Specifically, Davis alleges the treatment he received leading up
to his final hospital visit where he received his fracture diagnosis and his
medical boot was intentionally inadequate because it was part of a cover-up
scheme. In dismissing this claim, the district court relied on three parts of
the Martinez report: (1) the amount of medical records in the Martinez report
to show Davis received adequate care; (2) conclusions in records for two of
Davis’s visits that stated there was no evidence of fracture to show he
received appropriate medical care; and (3) the records showing his mental
health treatment to show the delay in treatment was caused by his mental
health conditions.
All these conclusions conflict with Davis’s allegations. On the first
and second, Davis alleges that even if he received multiple visits, the medical
staff deliberately ignored his injury to pursue their cover-up scheme and that
they treated him incorrectly by purposefully misreading his charts in this
same pursuit. On the third conclusion, he alleges the delay was also in an
effort to pursue this coverup scheme. Taking Davis’s allegations as true, it
is possible relief could be granted in his favor. See, e.g., Domino, 239 F.3d at
756 (showing claim that a prisoner was intentionally treated incorrectly
constitutes deliberate indifference). The district court therefore should not
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have relied on the Martinez report to resolve these contentions. Accordingly,
we vacate the judgment of the district court on Davis’s claims against the
unidentified prison officials and remand the case for further proceedings. In
doing so, we express no opinion on the ultimate merits of Davis’s case.
AFFIRMED in part, VACATED in part, and REMANDED for
further proceedings.
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