Birdow v. Mery, DDS et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
AUSTIN D. BIRDOW,
Plaintiff,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 2:26-CV-00047
MARK MERY, DDS, et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION
TO DISMISS CASE
Plaintiff Austin D. Birdow, appearing pro se and in forma pauperis, filed this
prisoner civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s case is subject to
screening pursuant to the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(c); 28
U.S.C. §§1915(e)(2), 1915A.
For purposes of screening, the undersigned recommends: (1) Plaintiff’s claims for
money damages against Defendants in their official capacity be DISMISSED without
prejudice1 as barred by the Eleventh Amendment; and (2) Plaintiff’s claims against
Defendants in their individual capacities be DISMISSED with prejudice for failure to
state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). The undersigned
1 Claims dismissed as barred by Eleventh Amendment immunity are dismissed without prejudice. Warnock v. Pecos
County, Tex., 88 F.3d 341, 342–43 (5th Cir.1996)
United States District Court
Southern District of Texas
ENTERED
March 30, 2026
Nathan Ochsner, Clerk
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further recommends this dismissal of this case counts as a “strike” for purposes of 28
U.S.C. § 1915(g).2
I. JURISDICTION
The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. This case
has been referred to the undersigned magistrate judge for case management and making
recommendations on dispositive motions pursuant to 28 U.S.C. § 636.
II. BACKGROUND AND PLAINTIFF’S ALLEGATIONS
Plaintiff is a prisoner in the Texas Department of Criminal Justice, Criminal
Institutions Division (TDCJ-CID) and is housed at the McConnell Unit in Beeville, Texas.
Plaintiff’s allegations in this case arise in connection with the dental care, or lack thereof,
Plaintiff received while assigned at the McConnell Unit.
In this action, Plaintiff sues: (1) Dr. Mark Mery, DDS and (2) Isaac Kwarteng,
Medical Director at the McConnell Unit. Plaintiff generally claims Defendants acted with
deliberate indifference to his serious medical and dental needs when he had a toothache in
which he was required to wait almost three months to have the tooth extracted. The
undersigned construes Plaintiff’s complaint to indicate he sues the individual defendants
in their individual and official capacities.
2 Plaintiff is WARNED that if he accumulates three strikes, he will not be allowed to proceed in forma pauperis in
any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger
of serious injury. See 28 U.S.C. § 1915(g).
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On March 25, 2026, the undersigned conducted a Spears3 hearing where Plaintiff
was given an opportunity to explain his deliberate indifference claims. The following
representations were made either in Plaintiff’s Original Complaint (D.E. 1) or at the Spears
hearing.
On December 26, 2023, Plaintiff was experiencing tooth pain while an inmate at the
McConnell Unit. Plaintiff submitted a request to be seen by medical. On December 28,
2023, Plaintiff was seen by Dr. Mery, a dentist at the TDCJ McConnell Unit dental clinic.
Dr. Mery did not observe anything visibly wrong with the tooth and asked Plaintiff if he
wanted the tooth pulled or if Plaintiff wanted to try to save the tooth. Plaintiff indicated he
wanted to save the tooth. Plaintiff was scheduled for fillings or additional medical
treatment and was prescribed ibuprofen.
A few days later, the pain grew worse. Plaintiff endured the pain for a few days, but
it became unbearable. Plaintiff went to the medical clinic on January 5, 2024, without an
appointment but he was able to see Dr. Mery on that day. Plaintiff told Dr. Mery the pain
was unbearable and he wanted his tooth pulled. Plaintiff described the pain to Dr. Mery as
a 10 out of 10, with 10 being the worst. Dr. Mery found Plaintiff’s complaint of pain
credible, in part because Plaintiff’s blood pressure was elevated. Dr. Mery told Plaintiff he
could not pull the tooth at that time because the clinic did not have the parts for certain
3Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). The evidentiary hearing is “in the nature of a motion for more
definite statement.” Id. The court ascertains at this procedural stage whether the complaint is adequate to permit the
prisoner to litigate his claims pursuant to § 1915(d). Id. at 182. The prisoner’s testimony at the hearing is a more
elaborate form of response to questionnaires that courts submit to prisoners so that they may set out in greater detail
the bases for their claims. Id. at 181
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medical equipment. Dr. Mery prescribed Plaintiff Tylenol 3 (with codeine) for pain and
he also prescribed antibiotics. He also gave Plaintiff two shots of septocaine, a dental
anesthetic. Plaintiff also received a medical pass because the Tylenol 3 is administered in
pill form and is required by TDCJ officials to be taken in the presence of personnel in the
medical department.
After starting the Tylenol 3, Plaintiff was denied the medication on one occasion
because he had forgotten his medical pass. Plaintiff describes the denial as a good thing
because he was experiencing constipation as a result of taking Tylenol 3. Plaintiff
subsequently refused or declined to take the Tylenol 3 because of the side effects. Over the
course of several weeks, Plaintiff wrote several medical requests or grievances
complaining about the delay and about his continued pain. One of those requests was sent
to the unit medical director, Dr. Kwarteng. However, Dr. Mery responded to the complaint
addressed to Dr. Kwarteng. In response to Plaintiff’s inquiries and complaints he was told
that the dental clinic was still waiting for parts for equipment and he would be scheduled
for a procedure when the parts arrived. Plaintiff had his tooth pulled at the McConnell Unit
dental clinic on March 22, 2024.
Plaintiff alleges the defendants violated his Eighth Amendment right against cruel
and unusual punishment when they delayed his medical treatment. (D.E. 1, p. 3).
III. LEGAL STANDARD
When a prisoner seeks to proceed in forma pauperis, the Court shall evaluate the
complaint and dismiss it without service of process if the Court finds the complaint
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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. 28 U.S.C. § 1915A.
See 28 U.S.C. § 1915(e)(2)(B) (providing that a court shall review an in forma pauperis
complaint as soon as practicable and dismiss it if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief from an immune
defendant). A claim is frivolous if it has no arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an
indisputably meritless legal theory, “such as if the complaint alleges the violation of a legal
interest which clearly does not exist.” Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
A claim has no arguable basis in fact if “after providing the plaintiff the opportunity to
present additional facts when necessary, the facts alleged are clearly baseless.” Talib v.
Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
“In analyzing the complaint, [the Court] will accept all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” Jones v. Greninger, 188 F.3d
322, 324 (5th Cir. 1999). “The issue is not whether the plaintiff will ultimately prevail, but
whether he is entitled to offer evidence to support his claim. Thus, the Court should not
dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts
or any possible theory that he could prove consistent with the allegations in the complaint.”
Id. (citations omitted). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plaintiff must allege sufficient facts in support of its legal conclusions that give
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rise to a reasonable inference that Defendant is liable. Id.; Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 556 (2007). The factual allegations must raise Plaintiff’s claim for relief
above the level of mere speculation. Twombly, 550 U.S. at 555. As long as the complaint,
taken as a whole, gives rise to a plausible inference of actionable conduct, Plaintiff’s claim
should not be dismissed. Id.
Section 1983 provides a vehicle for redressing the violation of federal law by those
acting under color of state law. Nelson v. Campbell, 541 U.S. 637, 643 (2004). To prevail
on a § 1983 claim, the plaintiff must prove that a person acting under the color of state law
deprived him of a right secured by the Constitution or laws of the United States. 42 U.S.C.
§ 1983; West v. Atkins, 487 U.S. 42, 48 (1988). A defendant acts under color of state law
if he misuses or abuses official power and if there is a nexus between the victim, the
improper conduct, and the defendant’s performance of official duties. Townsend v. Moya,
291 F.3d 859, 861 (5th Cir. 2002).
IV. DISCUSSION
A. Eleventh Amendment Immunity and Official Capacity
While it is not entirely clear whether Plaintiff is suing the defendants in their official
or individual capacities, the undersigned construes Plaintiff’s complaint to be raising both.
A suit against a state officer in his or her official capacity is effectively a suit against that
state official’s office. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). The
Eleventh Amendment, however, bars claims for money damages against a state or state
agency. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Aguilar v. Texas
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Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). As such, an action for
monetary damages against a state official in his or her official capacity is one against the
state itself, and is barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). The Fifth Circuit has extended the Eleventh Amendment immunity
specifically to TDCJ officers and officials acting in their official capacities. See Oliver v.
Scott, 276 F.3d 736, 742 (5th Cir. 2002) (Eleventh Amendment bars prisoner’s suit for
money damages against prison officials in their official capacities).
To the extent Plaintiff sues Defendants in their official capacities for money
damages, those claims are barred by the Eleventh Amendment. Thus, it is respectfully
recommended that Plaintiff’s claims for money damages against Defendants in their
official capacities be dismissed without prejudice.
B. Deliberate Indifference to Serious Medical or Dental Needs
Plaintiff alleges prison officials acted with deliberate indifference to his serous
medical needs by unnecessarily delaying the extraction or treatment of his tooth. Plaintiff
alleges the almost three-month delay resulted in extreme and persistent pain and the delay
was unnecessary. Liberally construing Plaintiff’s complaint, he alleges the defendants
should have done more to ensure the dental clinic was operational or alternatively they
should have sent Plaintiff to a dentist outside of the unit for treatment.
An Eighth Amendment violation occurs when a prison official is deliberately
indifferent to an inmate’s health and safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994)
Farmer, 511 U.S. at 834. In order to state a § 1983 claim for denial of adequate medical
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treatment, a prisoner must allege that prison officials acted with deliberate indifference to
serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105 (1976); Wilson v. Seiter, 501
U.S. 294, 303 (1991); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
The test for deliberate indifference has both an objective and subjective prong.
Under the objective prong, the inmate “must first prove objective exposure to a substantial
risk of serious harm.” Trevino v. Livingston, No. 3:14-CV-52, 2017 WL 1013089, at *3
(S.D. Tex. Mar. 13, 2017) (citing Gobert v. Caldwell, 463 F.3d 339, 345-46 (5th Cir.
2006)). To prove the subjective prong of the deliberate indifference test, the inmate “must
show both: (1) that the defendant was aware of facts from which the inference of an
excessive risk to the [inmate’s] health or safety could be drawn; and (2) that the defendant
actually drew the inference that such potential for harm existed.” Trevino, 2017 WL
1013089, at *3 (citing Farmer, 511 U.S. at 397 and Harris v. Hegmann, 198 F.3d 153, 159
(5th Cir. 1999)).
In the context of medical treatment, the prisoner must show “that 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.” Gobert, 463 F.3d at 346 (internal quotation marks and citation
omitted). Deliberate indifference may be exhibited by prison doctors in their response to
prisoners’ needs, but it may also be shown when prison officials have denied an inmate
prescribed treatment or have denied him access to medical personnel capable of evaluating
the need for treatment. Estelle, 429 U.S. at 104-05. A “delay in medical care can only
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constitute an Eighth Amendment violation if there has been deliberate indifference [that]
results in substantial harm.” Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (emphasis
in original).
The deliberate indifference standard “is an extremely high standard to meet.”
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
“Unsuccessful medical treatment, acts of negligence, or medical malpractice do not
constitute deliberate indifference, nor does a prisoner’s disagreement with his medical
treatment, absent exceptional circumstances.” Gobert, 463 F.3d at 346.
As an initial matter, the undersigned notes Courts have recognized, and the
undersigned agrees, that access to dental care in prison is an important medical need for
conditions that cause pain, discomfort, or otherwise pose a threat to an inmate’s health.
Baughman v. Garcia, 254 F. Supp. 3d 848, 874 (S.D. Tex. 2017), aff’d sub nom. Baughman
v. Seale, 761 F. App’x 371 (5th Cir. 2019). Further, waiting three months to receive
treatment for an extremely painful tooth ache is concerning. While the undersigned is not
aware of all the circumstances relating to the delay, the length of the delay to provide
necessary medical treatment to an inmate will often warrant retaining an inmate’s medical
deliberate indifference claim and ordering service on appropriate defendants. However, in
the present case, despite the delay, Dr. Mery was attentive to Plaintiff.
Dr. Mery saw Plaintiff shortly after Plaintiff made the initial medical request and
with Plaintiff’s input elected to pursue a course of treatment that would save Plaintiff’s
tooth. Dr. Mery also prescribed Plaintiff ibuprofen at the initial visit. Shortly thereafter,
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Dr. Mery attended to Plaintiff at an unscheduled visit to address Plaintiff’s pain. Dr. Mery
recognized Plaintiff’s complaints to be legitimate and prescribed prescription medications
and administered injections to address Plaintiff’s pain and to prevent infection. Plaintiff’s
tooth was not removed because of missing, broken, or otherwise unavailable equipment in
the McConnell Unit dental clinic. Plaintiff’s complaint in the instant case relates to the pain
he was required to endure. Plaintiff has not alleged that he suffered any permanent medical
issues or complications relating to the delay. The undersigned recognizes pain is serious
and that extreme pain is certainly a relevant factor in assessing whether Plaintiff has alleged
a viable claim. However, in the present case, Dr. Mery addressed Plaintiff’s symptom of
pain by prescribing Tylenol 3, which contains codeine, a schedule III controlled substance.
Plaintiff does not allege the Tylenol 3 was ineffective, rather he alleges he voluntarily
stopped taking the medication because it made him constipated. There is no allegation that
Plaintiff suffered any serious complications due to being constipated. The facts alleged by
Plaintiff indicate that Dr. Mery was treating Plaintiff, was not neglectful, and Dr. Mery was
not deliberately indifferent to Plaintiff’s medical or dental needs.
The instant case is similar to Garza v. Lovington, No. 5:16-CV-280-BQ, 2017 WL
3475686, at *2-3 (N.D. Tex. Jul. 18, 2017), adopted, 2017 WL 3475679 (N.D. Tex. Aug.
11, 2017). In Garza, the plaintiff was an inmate at a county jail who suffered a cracked
tooth and infected gum. The facility doctor prescribed the plaintiff antibiotics which did
not heal the gum. After a period of five months, the plaintiff was taken to a dentist who
extracted the tooth. The Court found the plaintiff had not demonstrated wanton disregard
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for his serious medical needs. Id. The Court further found that a mere “delay in treatment
does not constitute an Eighth Amendment violation without both deliberate indifference
and a resulting substantial harm.” Id. (citing Fuller v. Harris Cty., 294 F. App’x. 167, 168-
69 (5th Cir. 2008) (internal citation omitted).
Plaintiff sues Dr. Kwarteng because he is the Medical Director at the McConnell
Unit and presumably because he is in charge and may have a supervisory role. Plaintiff
also directed at least one grievance to Dr. Kwarteng to which Dr. Kwarteng did not respond,
but Dr. Mery did. “Personal involvement is an essential element of a civil rights cause of
action.” Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). There is no vicarious or
respondeat superior liability of supervisors under section 1983. Thompkins v. Belt, 828
F.2d 298, 303–04 (5th Cir. 1987); see also Carnaby v. City of Houston, 636 F.3d 183, 189
(5th Cir. 2011) (the acts of subordinates do not trigger individual § 1983 liability for
supervisory officials).
“Supervisory officials may be held liable only if: (1) they affirmatively participate
in acts that cause constitutional deprivation; or (2) implement unconstitutional policies that
causally result in plaintiff’s injuries.” Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929
(5th Cir. 1992). “Mere knowledge and acquiescence on a supervisor’s part is insufficient
to create supervisory liability under § 1983.” Doe v. Bailey, No. H-14-2985, 2015 WL
5737666, at *9 (S.D. Tex. Sep. 30, 2015) (citing Iqbal, 556 U.S. at 677).
Plaintiff alleges nothing in his Original Complaint or testimony at the Spears
hearing to suggest Dr. Kwarteng had any personal involvement with regard to treating
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Plaintiff’s dental condition. Plaintiff further alleges nothing to indicate that Dr. Kwarteng
engaged in any behavior to create supervisory liability. Further, Dr. Kwarteng not
responding to Plaintiff’s grievance does not state a deliberate indifference claim. See Jones
v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 138 (1977) (Burger, C.J.,
concurring) (applauding institution of grievance procedures by prisons but noting that such
procedures are not constitutionally required); Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir.
2005) (prisoners do not have a federally protected liberty interest in having grievances
investigated, let alone resolved in their favor); Mahogany v. Miller, 252 F. App’x 593, 595
(5th Cir. 2007) (holding that the plaintiff had no actionable § 1983 claim based on prison
officials’ failure to process his grievances because he had no protected liberty interest in
the processing of grievances).
The undersigned respectfully recommends, therefore, that Plaintiff’s deliberate
indifference claims against Dr. Mery and Dr. Kwarteng in their individual capacities be
dismissed with prejudice for failure to state a claim for relief.
V. RECOMMENDATION
For the reasons stated above and for purposes of §§ 1915A and 1915(e)(2), the
undersigned recommends that: (1) Plaintiff’s claims for money damages against
Defendants in their official capacity be DISMISSED without prejudice as barred by the
Eleventh Amendment and (2) Plaintiff’s claims against Defendants in their individual
capacities be DISMISSED with prejudice for failure to state a claim for relief pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). The undersigned further recommends
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Plaintiff not be given leave to amend because Plaintiff was given an opportunity to fully
explain his claims at the Spears hearing, the undersigned has considered his testimony, and
further amendment would be futile. The undersigned respectfully recommends further that
this dismissal count as a “strike” for purposes of 28 U.S.C. § 1915(g).
Respectfully submitted on March 30, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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