Blanks v. Dillard

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JERRIS M. BLANKS, 	§
ID # 45953-044, 	§
Plaintiff, 	§
§
v. 	§ 	No. 3:23-CV-2438-N-BW
§
FEDERAL CORRECTIONAL 	§
INSTITUTION SEAGOVILLE, et al., 	§
Defendants. 	§ 	Referred to U.S. Magistrate Judge1
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court is the Amended Complaint filed by Plaintiff Jerris M. Blanks
(“Blanks”), alleging that his civil rights are being violated while he is incarcerated in
the U.S. Bureau of Prisons (“BOP”). (Dkt. No. 17.) Blanks filed this lawsuit pro se
and was granted permission to proceed in forma pauperis. As such, his lawsuit is
subject to preliminary screening as provided by the Prison Litigation Reform Act
(“PLRA”). Pursuant to such screening and for the reasons stated below, the
undersigned magistrate judge recommends that Blanks’s Amended Complaint be
DISMISSED IN PART as frivolous under 28 U.S.C. §§ 1915 and 1915A.
1 By Special Order No. 3-251, this pro se case has been automatically referred for full
case management. By Special Order No. 3-354, this case was referred to the undersigned on
August 23, 2024. (See Dkt. No. 12.)
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I. INTRODUCTION
Blanks, a federal prisoner currently incarcerated at the Federal Correctional
Institution, Seagoville (“FCI Seagoville”), filed this civil rights action against FCI
Seagoville and numerous facility medical providers, alleging that they have failed to
treat his significant medical conditions, including diabetes, asthma, high blood
pressure and sleep apnea. (Dkt. No. 17 at 2.) He also alleges that he is kept in
“unhealthy and dangerous living conditions,” in that he is subject to exposure to
mold, asbestos, extreme heat, frequent power outages, secondhand smoke, and a
frequently broken ice machine. (Id. at 8.) Blanks seeks $6,000,000 in compensatory
and punitive damages. (Id. at 13.) Service of process has been withheld pending
completion of judicial screening. (See Dkt. No. 10.)
II. STANDARD OF REVIEW
A court must dismiss a complaint filed in forma pauperis by a prisoner against a
government entity or employee if the court determines that the complaint is frivolous
or malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
§ 1915(e)(2)(B) (2017). A frivolous complaint lacks any arguable basis, either in fact
or in law, for the wrong alleged. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
complaint has no arguable basis in fact if it rests upon clearly fanciful or baseless
factual contentions, and similarly lacks an arguable basis in law if it embraces
indisputably meritless legal theories. See id. at 327; Geiger v. Jowers, 404 F.3d 371, 373
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(5th Cir. 2005). When analyzing a prisoner’s complaint, the court may consider
reliable evidence such as the plaintiff’s allegations, responses to a questionnaire, and
authenticated prison records. Wilson v. Barrientos, 926 F.2d 480, 483-84 (5th Cir.
1991); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (explaining that
responses to a questionnaire or testimony given during an evidentiary hearing are
incorporated into the plaintiff’s pleadings).
In evaluating the sufficiency of a complaint, the Court accepts well-pleaded
factual allegations as true, but it does not credit conclusory allegations or assertions
that merely restate the legal elements of a claim. Chhim v. Univ. of Tex. at Austin, 836
F.3d 467, 469 (5th Cir. 2016). While courts hold pro se plaintiffs to a more lenient
standard when analyzing complaints, such plaintiffs must nevertheless plead factual
allegations that raise the right to relief above a speculative level. Id. (citing Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)).
III. LEGAL ANALYSIS
A. 	Bivens Evaluation
Blanks has alleged two categories of civil rights claims: (1) failure to provide
medical care and (2) unconstitutional conditions of confinement. The Court first
must determine if Blanks’s claims properly arise under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). See Evans v. Ball, 168 F.3d
856, 863 n.10 (5th Cir. 1999) (“A Bivens action is analogous to an action under
§ 1983—the only difference being that § 1983 applies to constitutional violations by
state, rather than federal, officials”), overruled on other grounds, Castellano v. Fragozo,
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352 F.3d 939, 948-49 & n.36 (5th Cir. 2003)). In Bivens, the U.S. Supreme Court
created a cause of action under the Fourth Amendment where federal agents
allegedly “manacled” the plaintiff “in front of his wife and children, and threatened
to arrest the entire family”; “searched the apartment from stem to stern”; and took
him to a federal courthouse where he was “interrogated, booked, and subjected to a
visual strip search.” Bivens, 403 U.S. at 389. “Over the next decade, the Supreme
Court recognized two other causes of action against federal officers: (1) for gender
discrimination against a former congressional staffer in violation of the Fifth
Amendment, see Davis v. Passman, 442 U.S. 228 (1979); and (2) for a failure to
provide an asthmatic prisoner with adequate medical care in violation of the Eighth
Amendment, see Carlson v. Green, 446 U.S. 14 (1980).” Bolden v. FBOP, No. 1:24-CV-
270, 2024 WL 4182123, at *1 (W.D. La. Aug. 13, 2024), rec. accepted 2024 WL
4181793 (W.D. La. Sept. 12, 2024). “Since then, the Supreme Court has not once
extended the Bivens remedy, and it has declined to do so at least a dozen times.” See
Looper v. Jones, No. 22-40579, 2023 WL 5814910, at *1 (5th Cir. Sept. 8, 2023)
(unpublished) (citing Egbert v. Boule, 596 U.S. 482 (2022)).
As recently as June 30, 2025, the Supreme Court declined to extend Bivens to
include an implied cause of action for damages based on an excessive use of force
claim under the Eighth Amendment. See Goldey v. Fields, 606 U.S. 942 (2025) (per
curiam). The Supreme Court “has repeatedly emphasized that recognizing a cause of
action under Bivens is a disfavored judicial activity.” Id. (quoting Egbert, 596 U.S. at
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492) (cleaned up); see also Ziglar v. Abassi, 582 U.S. 120, 135 (2017) (same).
“[C]reating a cause of action is a legislative endeavor.” Egbert, 596 U.S. at 491. “So
today, ‘Bivens claims generally are limited to the circumstances’ of Bivens, Davis, and
Carlson.” Looper, 2023 WL 5814910, at *1.
When analyzing a proposed Bivens claim, a court must consider: (1) whether
the case presents a new context; and (2) if so, whether there are any alternative
remedies or special factors indicating that judges are “at least arguably less equipped
than Congress” to create a damages remedy. Egbert, 596 U.S. at 492; see also Bolden,
2024 WL 4182123, at *2. A proposed Bivens claim is “new” if the case is different in
any meaningful way from Bivens, Davis, or Carlson. See Abbasi, 582 U.S. at 139.
“Virtually everything else is a ‘new context’” and the “understanding of a ‘new
context’ is broad” . . . because ‘even a modest extension of the Bivens trilogy ‘is still
an extension.’” Oliva v. Nivar, 973 F.3d 438, 442 (5th Cir. 2020) (citations omitted).
With these standards in mind, the Court assumes for screening purposes that
Blanks’s medical claims do not present a new context because Carlson allowed a
medical indifference Bivens claim, and Blanks bases several of his claims on medical
indifference. See, e.g., Vaughn v. Bassett, No. 22-10962, 2024 WL 2891897 (5th Cir.
June 10, 2024) (unpublished) (finding that Fifth Circuit precedent, specifically
Carlucci v. Chapa, 884 F.3d 534 (5th Cir. 2018), held that federal inmate’s medical
indifference claim did not arise in new Bivens context even though, unlike in Carlson,
the inmate “did not die, his need for medical attention did not relate to asthma, and
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he had access to the administrative remedy process”). Accordingly, the Court will
address Blanks’s medical indifference complaints under Bivens.
Blanks’s claims about the conditions of his confinement, however, differ in
“meaningful ways” from the issues in the three cases recognizing an implied cause of
action under Bivens, and, as a result, the claims clearly attempt to present a new
Bivens context. See Goldey, 606 U.S. at 944 (declining to extend Bivens cause of action
for excessive use of force in violation of the Eighth Amendment); see also Morrison v.
Wilson, No. 4:20-CV-222-O, 2021 WL 2716596, at *6 (N.D. Tex. June 30, 2021)
(finding plaintiff’s Eighth Amendment conditions-of-confinement claims that do not
concern a deprivation of medical care present a new Bivens context). Because
Blanks’s claims arise in a new context, the next step is to determine whether “there
are ‘special factors’ indicating that the Judiciary is at least arguably less equipped
than Congress to weigh the costs and benefits of allowing a damages action to
proceed.” Goldey, 606 U.S. at 944 (internal quotation omitted).
The salient “special factor” in this case is whether “there are alternative
remedial structures in place, that alone, like any special factor, is reason enough to
limit the power of the Judiciary to infer a new Bivens cause of action.” Egbert, 596
U.S. at 493. “The existence of such alternative remedial procedures counsels against
allowing Bivens suits even if such procedures are not as effective as an individual
damages remedy.” Goldey, 606 U.S. at 944-45 (quoting Egbert, 596 U.S. at 498)
(cleaned up). “[T]he alternative relief necessary to limit Bivens need not provide the
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exact same kind of relief Bivens would.” Oliva, 973 F.3d at 444 (rejecting argument
that the Federal Tort Claims Act [“FTCA”] provided an insufficient alternative
remedy because “Congress did not make individual officers statutorily liable for
excessive-force claims”; “This ‘silence of Congress is relevant’ to the special-factors
inquiry.”).
The existence of the BOP’s administrative remedy program, see 28 C.F.R.
§ 542.10(a), demonstrates that there is an alternative remedial structure in place.
That alone counsels against the extension of Bivens here. See Watkin v. Carter, No. 20-
40234, 2021 WL 4533206, at *2 (5th Cir. Oct. 4, 2021) (unpublished) (recognizing
that an alternative method of relief for a Bivens action is the BOP’s Administrative
Remedy Program). Also, under the FTCA, a federal prisoner may sue for injuries
received during incarceration. Id. (citations omitted). Because Blanks’s conditions
of confinement claim presents a new context under Bivens, such claims should be
dismissed with prejudice under 28 U.S.C. § 1915A(b).
B. 	Official Capacity and Entity Claims
In his Amended Complaint, Blanks seeks monetary damages against all
individual Defendants in both their individual and official capacities. (See Dkt. No.
26.) He also names FCI Seagoville as a Defendant. (See Dkt. No. 17.) Claims
against federal employees in their official capacities based on alleged constitutional
violations are barred under Bivens because they are the equivalent to claims against
the federal agencies themselves. See Kentucky v. Graham, 473 U.S. 159, 165-67
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(1985). The purpose of a Bivens action is to deter a federal officer from violating a
person’s constitutional rights; as a result, claims against individuals in their official
capacities are barred. FDIC v. Meyer, 510 U.S. 471, 485 (1994); Correctional Servs.
Corp. v. Malesko, 534 U.S. 61, 70 (2001). Nor may a Bivens action be brought against
a federal agency such as the U.S. Bureau of Prisons (FCI Seagoville). See Meyer, 510
U.S. at 484-86; Moore v. United States Dep’t of Agric., 55 F.3d 991, 995 (5th Cir. 1995).
Accordingly, Blanks has not alleged a viable Bivens claim against FCI Seagoville or
the individual Defendants in their official capacities, and such claims should be
dismissed with prejudice under 28 U.S.C. § 1915A(b).
C. 	Claims Against Rivers and Grant
Blanks sues Warden C. Rivers (“Rivers”) and Warden Scarlet Grant
(“Grant”) as supervisors who failed to alleviate the conditions that exacerbated
Blanks’s health problems at FCI Seagoville. (Dkt. No. 26 at 2-5.) Specifically, he
claims that Rivers and Grant were aware that Blanks was subjected to extreme heat
in his unairconditioned cell, which had black mold, inadequate ventilation, frequent
power outages and “dysfunctional” plumbing. He further claims that Rivers and
Grant failed to ensure that FCI Seagoville provided soap and diabetic food options.
Lastly, Blanks claims that Rivers and Grant failed to provide a functional
administrative remedy process because forms were unavailable on several dates and
they ignored complaints about the issue. (Id. at 3, 5.) Blanks also complains that
Rivers and Grant failed to train staff to properly care for diabetics and “allowed
medical and correction staff to be short staffed.” In short, he alleges that Rivers and
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Grant failed to “maintain a safe environment.” (Id. at 2-5; Dkt. No. 26-1 at 1-13;
Dkt. No. 26-4 at 6, 8.) In addition, Blanks alleges that Rivers failed to mitigate the
spread of COVID-19, failed to provide methods of social distancing, and failed to test
inmates with COVID symptoms. (Dkt. No. 26 at 2.)
Blanks’s claims against Rivers and Grant as supervisory officials seek to
impose liability that is meaningfully different from the standard deliberate
indifference claims allowed in Carlson. “While Bivens has been applied to Eighth
Amendment claims for deliberate indifference to serious medical needs, it has never
been extended to the supervisory claims as asserted herein.” Copeland v. Chambers,
No. 3:20-CV-585, 2022 WL 392454, at *2 (S.D. Miss. Jan. 20, 2022), rec. accepted
2022 WL 392322 (S.D. Miss. Feb. 8, 2022) (citations omitted); see also Stroud v.
Warden USP Lewisburg, No. 1:22-CV-515, 2022 WL 17340626, at *5 (M.D. Pa. Nov.
30, 2022) (determining failure-to-supervise claim was “plainly” a new context for a
Bivens claim) (citing Shorter v. Samuels, No. 3:16-1973, 2019 WL 6492534, at *7
(M.D. Pa. Dec. 3, 2019); Longworth v. Mansukhani, No. 5:19-CT-3199-FL, 2021 WL
4472902, at *4 (E.D.N.C. Sept. 29, 2021); Ross v. Hayden, No. 19-CV-1427, 2021 WL
810106, at *3 (D. Colo. Mar. 3, 2021)).
Further, there are reasons to hesitate before judicially extending Bivens to these
new contexts. The legislative branch has long been on notice that the Supreme Court
is disinclined to extend Bivens to new contexts. Yet it has not passed legislation that
would extend a Bivens remedy to Blanks’s establishment-of-a-deficient-system,
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failure-to-train and failure-to-supervise claims, which counsels against the Court
doing so here. Goodloe v. United States, No. 3:22-CV-005-G-BH, 2023 WL 4712204
(N.D. Tex. June 21, 2023), rec. accepted 2023 WL 4707997 (N.D. Tex. July 24, 2023)
(citation omitted). Moreover, the existence of the FTCA weighs against inferring a
new Bivens cause of action for these claims. See Cantu v. Moody, 933 F.3d 414, 423
(5th Cir. 2019) (citing 28 U.S.C. § 2680(h)); Tate v. Harmon, 54 F. 4th 839, 846 (4th
Cir. 2022) (rejecting Bivens claim based on deplorable conditions of confinement
because it was “broad-based” and “systemic,” against an “array of federal officials”
and would “expand prison officials’ liability from previous Bivens actions to systemic
levels”); see also Awan v. Harmon, No. 3:17-cv-130, 2021 WL 2690088 (N.D. Tex.
June 1, 2021) (collecting cases and finding that complaints about un-airconditioned
cell and other conditions of confinement presented a new Bivens context).
Accordingly, Blanks’s claims against Rivers and Grant are not cognizable under
Bivens and should be dismissed with prejudice under 28 U.S.C. § 1915A(b).
D. 	Claims Against Defendant LaVonda Dillard
Blanks alleges that Defendant LaVonda Dillard (“Dillard”) has failed to
provide him constitutionally adequate medical care on numerous occasions. (Dkt.
No. 26 at 9-10.) The Eighth Amendment proscribes cruel and unusual punishments,
which the Supreme Court has interpreted to include deliberate indifference to the
serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976). For
deliberate indifference to rise to the level of a constitutional violation, the plaintiff
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must establish that the defendant knew of and disregarded an excessive risk to the
plaintiff’s health or safety. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The
defendant “must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. A defendant’s “failure to alleviate a significant risk that he should have perceived
but did not” does not constitute a constitutional violation. Id. at 838. Deliberate
indifference “is an extremely high standard to meet.” Hernandez v. Tex. Dep’t of
Protective & Regul. Servs., 380 F.3d 872, 882 (5th Cir. 2004).
A prison official acts with deliberate indifference “only if (A) he knows that
inmates face a substantial risk of serious bodily harm and (B) he disregards that risk
by failing to take reasonable measures to abate it.” Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006) (citing Farmer, 511 U.S. at 847); see also Reeves v. Collins, 27 F.3d
174, 176-77 (5th Cir. 1994). Unsuccessful medical treatment, acts of negligence, and
medical malpractice do not constitute deliberate indifference, nor does a prisoner’s
disagreement with his medical treatment, absent exceptional circumstances. Hall v.
Thomas, 190 F.3d 693 (5th Cir. 1999); Stewart v. Murphy, 174 F.3d 530, 537 (5th Cir.
1999); Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995); Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991). Instead, a showing of deliberate indifference
requires the prisoner to 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.”
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Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). The Fifth Circuit has defined a
“serious medical need” as “one for which treatment has been recommended or for
which the need is so apparent that even laymen would recognize that care is
required.” Gobert, 463 F.3d at 345 n.12.
1. Deteriorating eyesight.
First, Blanks alleges that, since 2021, Dillard has failed to ensure that he
received an eye exam. His eyeglasses prescription expired in 2022; further, he has
frequent headaches that Dr. Justin Sterett (“Sterett”) believes are caused by a change
in his vision and using glasses with an improper prescription. (Id.) In addition,
despite numerous requests from both Blanks and Sterett, Dillard has failed to send
him for a diabetic eye exam. (Id. at 9.) As a result, Blanks alleges that he has
suffered deterioration and permanent loss of vision, which causes him to fall, “run
into things” and suffer painful headaches. (Id.) He claims that Dillard intentionally
chose to not follow doctors’ orders to send him for diabetic eye exams, despite
writing in his medical records that she would do so. (Id. at 22-23.) His medical
records from his 2021 eye exam state that he should return within one year for a
comprehensive eye exam, and that, because of his diabetes, his eyesight should be
monitored annually or sooner if changes in vision occur. (Dkt. No. 26-2 at 3.)
Blanks claims that Dillard failed to comply with the doctor’s instructions. (Id.)
2. Insulin and other medication
Blanks alleges that Dillard failed to renew his insulin prescription “multiple
times,” which caused other medical providers to deny him insulin for several weeks,
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despite his high blood sugar level, for several weeks. (Dkt. No. 26 at 10; Dkt. No.
26-3 at 9-16.) He claims that Dillard “intentionally chose to not [renew] [his]
insulin . . . until after several requests[s].” (Dkt. No. 26 at 22.) He claims that
Dillard was “aware of the risk and dangers of her actions of denying [him] diabetic
medical care.” (Id. at 23.) In addition, he claims that Dillard failed to renew his
prescription for psychiatric medication, which led him to experience hallucinations.
(Id.)
3. Sleep apnea and sleep deprivation
Blanks next alleges that Dillard failed to provide a CPAP machine that was
prescribed for him in 2021 by Sterett due to Blanks’s sleep apnea. (Dkt. No. 26 at 9.)
On May 15, 2023, Sterett noted on Blanks’s medical records that Blanks still had not
received the CPAP machine despite numerous requests from both Blanks and Sterett.
(Id.; Dkt. No. 26-2 at 8.) Blanks eventually received one on August 21, 2023, but
until that time suffered headaches, sleep paralysis, labored breathing, apnea,
nightmares and hallucinations because Dillard waited more than two years to
provide the CPAP machine.2 (Dkt. No. 26 at 9, 39.)
2 Blanks further alleges that Dillard and Defendant Kenneth Russell committed
perjury by falsifying his medical records to show that he had been issued a CPAP machine
in 2021; however, this alleged fact, standing alone, fails to state a Bivens claim against either
defendant. (Dkt. No. 26 at 20.) Further, to the extent Blanks alleges criminal law
violations, his request lacks legal basis because criminal statutes do not create a private right
of action. For a private right of action to exist under a criminal statute, there must be “a
statutory basis for inferring that a civil cause of action of some sort lay in favor of
someone.” Cort v. Ash, 422 U.S. 66, 79 (1975), overruled in part by Touche Ross & Co. v.
Redington, 442 U.S. 560 (1979); see Suter v. Artist M., 503 U.S. 347, 363 (1992) (concluding
that the party seeking to imply a private right of action bears the burden to show that
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4. 	Failure to Treat Other Conditions
Next, Blanks alleges that, after several months of Blanks complaining about
his severe abdominal pain, Dillard ordered an ultrasound. (Id.) The test showed that
Blanks has an abnormal-sized liver and texture. He claims that Dillard disregarded
the test results and has not sent him to see a liver specialist or otherwise treated his
continuing abdominal pain. (Dkt. No. 26 at 10-11, 54; Dkt. No. 26-3 at 4.) He also
alleges that Dillard allowed his prescription for anti-anxiety medication to lapse from
July 28 to August 21, 2023, and failed to treat him for his diagnosed depression.
(Dkt. No. 26 at 31, 33; Dkt. No. 26-5 at 21.) He also claims that Dillard refuses to
treat him for his post-COVID symptoms such as reduced lung volume, memory loss,
dizziness, lack of focus and shortness of breath. (Dkt. No. 26 at 36-37, 52.)
Blanks’s claims against Dillard for (1) failing to treat his degenerative eye
condition and his ongoing abdominal (liver) pain; and (2) failure to ensure that his
medical prescriptions (insulin and psychiatric medication) were maintained survive
judicial screening. Taking Blanks’s allegations as true, as the Court must do at this
stage of the proceedings, he has stated a claim that Dillard (1) knows that Blanks
faces a substantial risk of serious bodily harm by failing to treat his eye disease and
failing to maintain his prescriptions, and (2) disregarded that risk by failing to take
Congress intended to create one). Blanks does not satisfy this burden. See also Williams v.
Cintas Corp., No. 3:07-CV-0561-M, 2007 WL 1295802, *2 (N.D. Tex. Apr. 10, 2007)
(collecting cases finding no private cause of action for perjury in federal court and no private
right of action for civil perjury under Texas law), rec. accepted, 2007 WL 1300780, at *1
(N.D. Tex. May 2, 2007).
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reasonable measures to abate it. See Gobert, 463 F.3d at 346 (citing Farmer, 511 U.S.
at 847). The Fifth Circuit has noted that failing to provide treatment for a chronic
illness may constitute deliberate indifference. See Ford v. Anderson County, 102 F.4th
292, 309-10 (5th Cir. 2024) (citing Egebergh v. Nicholson, 272 F.3d 925, 927-28 (7th
Cir. 2001) (jury could find deliberate indifference for failing to provide a diabetic
detainee with a morning insulin shot)); Roberson v. Bradshaw, 198 F.3d 645, 648 (8th
Cir. 1999) (reversing summary judgment for an officer accused of denying diabetes
medication to an inmate); see also Lawson v. Dallas County, 286 F.3d 257, 260-61 (5th
Cir. 2002) (staff knew the inmate had a serious ailment but “did not provide the
prescribed treatments, seek alternative placement for [the inmate] or monitor the
progression of his wounds”). Blanks has plausibly alleged a Bivens claim against
Dillard for medical indifference.
However, three of Blanks’s claim against Dillard should be dismissed as
frivolous: (1) failing to provide a CPAP machine for two years; (2) failing to renew
his anti-anxiety medication for 24 days, and (3) failing to treat his ongoing COVID
symptoms. A delay in delivering medical care creates constitutional liability only
where the alleged deliberate indifference results in substantial harm. Mendoza v.
Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993). Blanks fails to allege that either the two-
year delay in receiving a CPAP machine or the 24-day delay in receiving anti-anxiety
medication caused substantial harm. Additionally, Blanks provides medical records
showing that, in fact, he is receiving treatment for what he claims to be ongoing
COVID symptoms. (See Dkt. No. 26-5 at 23, 25.) To the extent Blanks disagrees
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with the treatment he is receiving for his COVID symptoms, such disagreement does
not rise to the level of a constitutional violation. Norton v. Dimazana, 122 F.3d 286,
292 (5th Cir. 1997). Accordingly, these claims should be dismissed as frivolous.
E. 	Claims Against Defendants Winbush, Tews, Moquin, Griffith and
Unknown Nurses for Failure to Provide Insulin
Blanks alleges that Defendants Tammy Winbush (“Winbush”), Deborah Tews
(“Tews”), Leon Moquin (“Moquin”), Officer Griffith (“Griffith”) and Unknown
Nurses failed to provide him insulin on various occasions, thereby placing his life in
danger and causing his health problems to worsen. (Dkt. No. 17 at 2.) Specifically,
he alleges that Winbush was “made aware” that he was denied insulin on March 27
and April 16, 2024, but “disregarded this, and she did not have medical do a follow
up.” (Dkt. No. 26 at 7.) He further alleges that Tews failed to provide him insulin
from February 22 to March 1, 2024, because Dillard had failed to renew his insulin
prescription. (Id. at 13.) He alleges that Moquin failed to deliver insulin to him on
September 19, September 20 and September 27, 2023. (Id. at 11, 23.) Blanks further
alleges that “Unknown Nurses” failed to deliver insulin to him on 17 days in August
and September 2023. (Id. at 20, 23.) He alleges that Moquin and the Unknown
Nurses (1) knew he was diabetic; (2) were to deliver insulin to a list of diabetics who
needed insulin; (3) should know the risk of failing to provide insulin; and (4) did not
provide him insulin on the dates listed in his questionnaire responses. (Id. at 23.)
Lastly, Blanks alleges that Griffith refused to allow Banks to get insulin on April 16,
2024, although his blood sugar was extremely high. (Id. at 14.) Blanks immediately
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reported Griffith to Case Manager Aguirre, who ensured that Blanks was allowed to
get insulin. (Id.) Blanks also reported Griffith to Winbush, who did not respond.
(Id.)
Blanks has not sufficiently pleaded details showing how, specifically, these
Defendants were deliberately indifferent to his serious medical need. He
acknowledges that Dillard let his insulin prescription lapse, apparently on several
occasions; he has not shown that these Defendants acted with deliberate indifference
in not providing insulin on certain specific days.3 Assuming that these Defendants
should have known that Blanks was diabetic and customarily received insulin, such
does not state a claim. An official’s “failure to alleviate a significant risk that the
official should have perceived, but did not, is insufficient to show deliberate
indifference.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001)
(alterations and internal quotation omitted) (quoting Farmer, 511 U.S. at 838).
“[D]eliberate indifference cannot be inferred merely from a negligent or even a
grossly negligent response to a substantial risk of serious harm.” Thompson v. Upshur
Cnty., 245 F.3d 447, 459 (5th Cir. 2001). Instead, an official “must both be aware of
3 Because there is no cognizable vicarious liability claim available under Bivens, none
of the insulin providers can be found responsible for failing to provide all of the insulin
Blanks claims to have missed. See, e.g., Jolly v. Klein, 923 F. Supp. 931, 943 (S.D. Tex. 1996)
(“To state a cause of action under § 1983, the plaintiff must allege facts reflecting the
defendants’ participation in the alleged wrong, specifying the personal involvement of each
defendant,” because there is no vicarious liability under § 1983/Bivens”) (citing Murphy v.
Kellar, 950 F.2d 290, 292 (5th Cir. 1992); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.
1986); Williams v. Luna, 909 F.2d 121, 123 (5th Cir. 1990)).
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facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Brewster v. Dretke, 587 F.3d 764, 770
(5th Cir. 2009) (quoting Farmer, 511 U.S. at 837); see also Lawson, 286 F.3d at 262
(holding that deliberate indifference is a “subjective inquiry,” and inmate must show
that the prison official was actually aware of risk of harm and consciously ignored it).
Blanks has failed to show deliberate indifference by these defendants.
To the extent that Blanks’s claims against Tews and Griffith could constitute a
claim for delay in delivering medical care, he fails to state a plausible claim. As
discussed above, delay in delivering medical care creates constitutional liability only
when the alleged deliberate indifference results in substantial harm. Mendoza, 989
F.2d at 193. Blanks alleges no facts showing that the delay his failure to obtain
insulin on the occasions attributed to Tews and Griffith caused substantial harm.
Blanks has failed to state a plausible Bivens claim against these defendants and, as a
result, such claims should be dismissed with prejudice.
F. 	Claims Against Rivers, Dillard and Salinas Regarding Diabetic-Safe Meals
Blanks alleges that Rivers, Dillard, and Food Service Administrator J. Salinas
(“Salinas”) do not offer diabetic safe meals, although they all are aware that there are
diabetics in FCI Seagoville and that “the BOP is aware” that a doctor has
recommended a low-carbohydrate diet for Blanks.4 (Dkt. No. 17 at 7; Dkt. No. 26 at
4 Because Blanks alleges no facts showing that Rivers personally participated in
providing his meals, the claims against him should be dismissed as improper supervisory
liability claims, as discussed supra.
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16, 27.) These defendants, Blanks claims, serve only high-carbohydrate meals. (Dkt.
No. 26-4 at 8-23.) Blanks claims that, because he must only eat high-carbohydrate
meals, his blood sugar remains high. This, combined with the irregular provision of
insulin, places him “in danger of permanent nonreversible damage.” (Dkt. No. 17 at
7.) Specifically, he alleges that his diet has worsened his diabetic neuropathy, which
hinders his ability to exercise and caused him to completely lose sensation in both
feet. (Dkt. No. 17 at 10). He claims that Dillard knows of the risk to his health that
a standard prison diet poses, but has failed to instruct Salinas and the staff to provide
him low-carbohydrate meals. (Dkt. No. 26 at 27.)
The Eighth Amendment’s prohibition on cruel and unusual punishment
requires prison officials to “ensure that inmates receive adequate food, clothing,
shelter, and medical care,” and to “take reasonable measures to guarantee the safety
of the inmates.” Farmer, 511 U.S. at 832 (internal citations omitted). “Prison
officials have a constitutional obligation to provide reasonably adequate food[.]”
Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994); see also Jones v. Tex. Dep’t of Crim. Just.,
880 F.3d 756, 760 (5th Cir. 2018) (remanding denial of preliminary injunction where
a diabetic plaintiff “assert[ed] that if the deprivations of his prescribed diet
continue[d], he [was] liable to suffer additional strokes, heart attacks, and other life-
threatening diabetic complications”). At this stage of the proceedings, Blanks has
stated a claim against Dillard for failure to ensure that Blanks receives adequate
diabetic-safe meals that do not exacerbate his conditions.
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However, Blanks has failed to allege plausible facts showing that Salinas is
aware of his need for a low-carbohydrate diet. As shown above, Blanks must allege
facts showing that Salinas knew of and disregarded an excessive risk to his health or
safety. Farmer, 511 U.S. at 837. Blanks fails to show that Salinas (rather than “the
BOP”) is “aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists,” and also drew such inference. Id. Blanks’s claim against
Salinas should be dismissed with prejudice.
G. 	Additional Claims Against Winbush
1. 	HIPAA violation
Blanks alleges that Winbush violated the Health Insurance Portability and
Accountability Act (“HIPAA”) by disclosing his medical records to an assistant U.S.
attorney, presumably in connection with a motion for compassionate release filed by
Blanks. (Dkt. No. 17 at 3; Dkt. No. 26 at 7.) HIPAA states that individually
identifiable medical information cannot be disclosed by covered entities without the
consent of the individual, unless disclosure is expressly permitted under the terms of
HIPAA. 45 C.F.R. § 164.502.
Assuming arguendo that Blanks is correct and Winbush improperly shared his
protected health information, his allegations still fail to state a claim because HIPAA
does not provide a private right of action. Acara v. Banks, 470 F.3d 569, 572 (5th Cir.
2006) (“We hold there is no private cause of action under HIPAA and therefore no
federal subject matter jurisdiction over [the plaintiff’s] asserted claims.”); see also
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Roberts v. Unitrin Specialty Lines Ins. Co., 405 F. App’x 874, 882 (5th Cir. 2010) (same).
Therefore, even if Winbush improperly disclosed protected health information under
HIPAA, and even if Winbush were a “covered entity” subject to HIPAA
requirements, Blanks has no right to sue for a HIPAA violation and such claim
should be dismissed with prejudice.
2. 	Failure to Provide Medical Care
Blanks next alleges that Winbush failed to approve trips to see various
specialists (liver, lung, nerve, vision, post-COVID symptoms) that were
recommended by BOP doctors. (Dkt. No. 26 at 7.) However, he provides no facts
supporting this conclusory allegation to show that Winbush was acting with
deliberate indifference in failing to refer Blanks to specialists. Blanks alleges no facts
indicating that Winbush was “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists,” nor does he allege facts showing
that Winbush drew such inference, or that she even had the authority to refer him to
free-world specialists. Brewster, 587 F.3d at 770 (quoting Farmer, 511 U.S. at 837).
His claims against Winbush should be dismissed with prejudice.
H. 	Claims against Shannon Howden and Officer Bowser
Blanks alleges that, on April 8, 2024, he notified Officer Bowser (“Bowser”)
that he had suffered an asthma attack, but she refused to let him go to sick call and
said she was too busy to deal with him. (Dkt. No. 26 at 35; Dkt. No. 17 at 11.)
Nevertheless, Blanks apparently reported to sick call on the same date. (Id.) When
he arrived, nurse Shannon Howden (“Howden”) refused to treat him, saying that
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“we are only seeing inmates if it[’]s life threatening, because we are going to observe
the eclipse this afternoon.” (Dkt. No. 26 at 12.) She told Blanks to go to sick call the
next day. After he told her that he had had an asthma attack, she responded with
“you look alive to me” and turned him away. (Id.; see also Dkt. No. 26 at 35.)
Blanks fails to allege what, if any, harm he suffered due to what appears to be
a one-day delay in obtaining medical care. As noted above, a delay in delivering
medical care creates constitutional liability only when the alleged deliberate
indifference results in substantial harm. See Mendoza, 989 F.2d at 193. Blanks alleges
no substantial harm resulting from Bowser’s or Howden’s conduct. As a result,
Blanks’s claims against Bowser and Howden should be dismissed with prejudice.
I. 	Claim Against Twyla Border
Blanks alleges that, during an appointment with Twyla Border (“Border”) on
June 23, 2022, he asked about obtaining diabetic shoes because his nephropathy was
worsening and it was painful for him to walk in prison-issued boots. (Dkt. No. 26 at
20.) At the time, he had bruising on his feet. Without checking to see what, if any,
soft shoes were available, Border told him that they had none in his size, but that she
would put him on sick call once they did. (Id.) He received the shoes “one year
later.” (Id. at 24.) As of September 16, 2024, Blanks has complete loss of sensation
in his feet and permanent nerve damage. (Id. at 20-21.)
Blanks fails to state a claim against Border. Under the authorities cited above,
Blanks fails to allege facts showing that Border was aware of a serious medical need,
that she knowingly withheld treatment (the shoes) or that she drew the inference that
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he would lose complete sensation in his feet more than two years later due to her not
providing soft shoes. His claims against Border should be dismissed.
J. 	Claims against Sterrett and Dr. McDermott
Blanks states in his questionnaire responses that he dismisses his claims
against Sterett. (Dkt. No. 26 at 8.) He further states in a subsequently filed motion
that he dismisses his claims against Psychology Administrator Dr. McDermott.
(Dkt. No. 31 at 2.) Accordingly, the Court should consider Blanks’s statements to be
Notices of Dismissal against Sterett and McDermott pursuant to Fed. R. Civ. P.
41(a)(1)(A)(i).
K. 	Negligence and Malpractice Claims
In addition to his claim that Defendants were deliberately indifferent to his
serious medical needs, Blanks alleges that the individual Defendants acted with
negligence and committed malpractice when providing medical care. (Dkt. No. 26
at 55, 57.) However, such claims fail to state a constitutional violation.
Simply put, allegations of negligence and malpractice fail to state a
constitutional violation. Gobert, 463 F.3d at 346. Instead, an inmate must show that
prison staff “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” to state a viable constitutional claim for
deliberate indifference to serious medical needs. Johnson, 759 F.2d at 1238.
Accordingly, to the extent that Blanks attempts to assert a claim of negligence or
malpractice, such claims should be dismissed.
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L. 	Leave to Amend.
Ordinarily, “a pro se litigant should be offered an opportunity to amend his
complaint before it is dismissed.” Brewster, 587 F.3d at 767-68. Even so, the Court
need not grant leave to amend “if the plaintiff has already pleaded his ‘best case.’”
Id. at 768. As discussed here, despite amending his complaint once and answering
an extensive questionnaire, Blanks fails to state a plausible claim against all
Defendants other than Dillard. Based on the most deferential review of his
Amended Complaint, it is unlikely that, given the opportunity, he could allege viable
legal claims against these Defendants. Blanks has stated his best case in his
Amended Complaint and questionnaire responses. Under these circumstances, the
Court concludes that granting leave to amend would be futile and cause needless
delay.5
III. RECOMMENDATION
For the reasons stated above, the Magistrate Judge concludes that Blanks’s
claims against all defendants other than Dillard in her individual capacity for
medical indifference (as set forth above) should be DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (Dkt. No. 17.)
5 That notwithstanding, the 14-day objection period will permit Blanks the opportunity
to proffer factual and/or legal bases, if any, to cure the deficiencies in his claims outlined
herein.
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SO RECOMMENDED on March 9, 2026.
______________________________________
BRIAN McKAY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the
manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). To be specific,
an objection must identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the place in the magistrate
judge’s report and recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to the briefing before the
magistrate judge is not specific. Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district court, except upon
grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415,
1417 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)
(extending the time to file objections to 14 days).
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