     Case: 10-40378     Document: 00511593457         Page: 1     Date Filed: 09/06/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 6, 2011

                                       No. 10-40378                        Lyle W. Cayce
                                                                                Clerk

NICOLAS MARQUEZ

                                                  Plaintiff - Appellant
v.

TONYA WOODY; MS. UNIDENTIFIED HOLLIDAY, RDA University of
Texas Medical Branch; K. WALLACE, University of Texas Medical Branch
Practice Manager; UNIDENTIFIED LEMASTER, Correctional Officer III;
NELDA WILLIAMS,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:09-CV-71


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
        In this 42 U.S.C. §1983 action, Nicolas Marquez (“Marquez”), a prisoner
currently confined in the Polunsky Unit in Texas, appeals the district court’s
decision granting summary judgment to several employees of the Texas
Department of Criminal Justice (“TDCJ”) and the University of Texas Medical
Branch (“UTMB”).         Marquez alleges that the employees were deliberately

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                       No. 10-40378

indifferent to his serious medical need for dentures and/or for a soft diet.
Marquez contends that the district court erred by: (1) granting summary
judgment to Registered Dental Assistant Holliday (“Holliday”), Practice Manager
Williams (“Williams”), Correctional Officer K. Wallace (“Wallace”), Unidentified
Lemaster (“Lemaster”), and Dr. Tonya Woody (“Woody”); (2) dismissing his claim
for injunctive relief against Rick Thaler (“Thaler”), Director of the TDCJ,1 Senior
Warden Timothy Simmons (“Simmons”), and Mr. Guy Smith (“Smith”), Region
I Administrator, TDCJ Grievances2; (3) unfairly applying Local Rule CV-3, which
limits the page limit for filings by those proceeding pro-se but not those
represented by counsel; and (4) failing to grant Marquez’s motion for the
appointment of counsel. We AFFIRM the grant of summary judgment to
Holliday, Williams, Wallace, and Woody, and we REVERSE as to Lemaster.
Additionally, we REVERSE the decision to dismiss Marquez’s claim for
prospective relief against Thaler.
                   I. FACTS AND PROCEDURAL HISTORY
       Marquez, TDCJ prisoner number 01451935, is currently confined in the
Polunsky Unit—a state facility in Texas. It is undisputed that Marquez does not
have any teeth. Marquez requested dentures several times but his request was
denied because his body mass index (“BMI”) was within the normal range of 18.5
to 25. He then requested a soft food diet and obtained a prescription for such a
diet; however, he alleges that those in charge of food services refused to provide
him with soft food.       Specifically, he complained that when he approached
Lemaster, a food services officer, about obtaining a soft food diet, Lemaster



       1
        Pursuant to Federal Rule of Appellate Procedure 43(c), we substitute Thaler—acting
Director of the TDCJ—for Nathaniel Quarterman, the former director of the TDCJ.
       2
          Although Marquez mentions Smith and Simmons in his statement of the issues, he
fails to provide any legal or factual arguments related to Smith or Simmons; therefore, he has
waived these issues. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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crossed out “soft food” on Marquez’s diet card and wrote “veggie” in its place.
Marquez states that he has experienced severe gastrointestinal problems as a
result of the lack of dentures and/or a soft food diet because he is forced to eat
primarily peanut butter.
       Marquez complains that Holliday, a dental technician, interfered with his
ability to see the dentist and misled him as to whether he would be able to
receive dentures. He alleges that Williams, a nurse, ignored his complaints that
those in the food services department would not provide him with a soft food
diet. He also complains that Wallace ignored his grievances concerning the
refusal of those in the food services department to provide him with soft food.
       Marquez filed several grievances through the prison’s grievance system.
He complained that the dentists refused to give him dentures despite the fact
that he had no teeth because he had a “normal” BMI,3 and that even though he
had been prescribed a soft food diet, the food services department—specifically,
Lemaster—failed to provide him with such a diet. His grievances were denied.
       Marquez filed suit against the TDCJ and UTMB employees on April 24,
2009. Marquez and the defendants consented to proceed before a magistrate
judge pursuant to 28 U.S.C. § 636(c).4 The magistrate judge conducted a Spears5
hearing and subsequently dismissed Quarterman6 and Simmons after



       3
         No evidence was proffered that a “normal” BMI necessarily means a person is not
malnourished.
       4
         Woody did not explicitly consent to proceed before a magistrate judge, as an attorney
from the Attorney General’s office was the one to sign the consent form on behalf of the
defendants, and she was not represented by the Texas Attorney General’s office. However, the
Supreme Court has held that “consent can be inferred from a party’s conduct during
litigation.” Roell v. Withrow, 538 U.S. 580, 582 (2003). In this case, Woody’s conduct indicates
that she consented to proceed before a magistrate judge.
       5
           Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
       6
           As noted above, on appeal, we have substituted Thaler for Quarterman.

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concluding that they had no personal involvement in Marquez’s treatment.
Woody, Holliday, Williams, Wallace, and Lemaster later filed motions for
summary judgment. Although Marquez timely mailed a response to Holliday,
Williams, Wallace, and Lemaster’s motions for summary judgment to the clerk’s
office, the clerk refused to enter the response onto the docket because it was too
lengthy, citing Local Rule CV-3,7 which imposes a page limit of 20 pages,
including attachments, on pro se litigants.
      The magistrate judge granted summary judgment to Woody, Holliday,
Williams, and Wallace, concluding that Marquez failed to show that they were
deliberately indifferent. The judge also held that Holliday, Williams, and
Wallace were entitled to qualified immunity, because their actions were not
objectively unreasonable.         Finally, the magistrate judge granted summary
judgment to Lemaster, concluding that Marquez failed to exhaust his
administrative remedies with respect to his claim against Lemaster. Marquez
timely filed a notice of appeal.
              II. JURISDICTION AND STANDARD OF REVIEW
      The district court had jurisdiction pursuant to 28 U.S.C. § 1331. As the
parties consented to proceed before a magistrate judge, we have jurisdiction to
hear this appeal directly from the final judgment issued by the magistrate judge.
See 28 U.S.C. § 636(c); 28 U.S.C. § 1291.
      We review “the grant of summary judgment de novo, applying the same
standard as the district court.” QT Trading, L.P. v. M/V Saga Morus, 641 F.3d
105 (5th Cir. 2011) (internal quotation marks and citation omitted). Summary
judgment should only be granted if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). “We construe all facts and inferences in the light most favorable


      7
          E.D. TEX. R. CV-3(b).

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to the nonmoving party when reviewing grants of motions for summary
judgment.” Hernandez v. Yellow Transp., Inc., 641 F.3d 118, 124 (5th Cir. 2011)
(quoting Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005)).
                               III. DISCUSSION
      We pretermit the question of whether denial of dentures can qualify as a
violation of the Eighth Amendment because we conclude that Marquez did not
show that any of the medical providers acted with deliberate indifference to his
medical needs. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.
439, 445 (1988) (“A fundamental and long-standing principle of judicial restraint
requires that courts avoid reaching constitutional questions in advance of the
necessity of deciding them.”); Republican Nat’l Comm. v. FEC (In re Cao), 619
F.3d 410, 436 (5th Cir. 2010) (en banc) (“The usual path of constitutional
adjudication is first to consider the fact-based issue and to reach broader
constitutional questions only if they are inescapably presented.”), cert. denied
sub nom. Cao v. FEC, 131 S. Ct. 1718 (2011).
      A.    Did the district court err in granting summary judgment to the
            medical and dental providers?
            1.      Holliday
      Holliday was a registered dental assistant in the Polunsky Unit. Marquez
alleged that she denied him adequate dental care and refused to provide him
with dentures “even though she could see he is malnourished.” The competent
summary judgment evidence indicates that she performed the duties assigned
by the attending dentist and did not have the authority to provide Marquez with
dentures or to change the policy on dentures. As the evidence fails to show that
Holliday acted unreasonably in not providing Marquez with dentures, much less
with deliberate indifference, we conclude that the magistrate judge did not err
in granting summary judgment to Holliday.
            2.      Williams and Wallace


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      Williams was a nurse in the Polunsky Unit. Marquez’s only allegation
concerning Williams states that she “[a]ided UTMB and TDCJ officials in
denying plaintiff food he could eat.” Williams provided an affidavit of a nursing
manager employed by the UTMB stating that Marquez’s records indicate that
Williams’s only contact with Marquez was to answer sick call requests by “either
scheduling a Nursing call visit, a Provider sick call visit, or by response only. .
. . Ms. Williams R.N. does not have the authority to order a diet or provide
dentures for a patient.”
      Marquez alleged that Wallace , a Practice Manager in the UTMB Polunsky
Unit Infirmary, “[d]enied plaintiff dentures although he has no teeth and cannot
properly digest food available in unit chow hall per UTMB/TDCJ policy.” The
summary judgment evidence indicates that as a practice manager, Wallace’s job
was to ensure that processes were available to “facilitate access to health care
for routine, specialty clinic appointments, and to assure that they were
scheduled within the timelines set forth by TDCJ policy.” The evidence shows
that Wallace had no role in providing medical care; instead, her job was to
ensure that patients received appropriate medical care.          Wallace advised
Marquez about the criteria for obtaining dentures.
      We conclude that the magistrate judge did not err in granting Williams
and Wallace’s motion for summary judgment, as the evidence shows that
Williams and Wallace took the actions that they were empowered to take with
respect to Marquez’s complaints.      The record indicates that Williams and
Wallace referred Marquez to a nurse or a doctor or otherwise responded to
Marquez’s requests. Marquez’s conclusory statements in his verified complaint
are insufficient to overcome Williams and Wallace’s motion for summary
judgment. See Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 440 (5th
Cir. 2005) (upholding a decision granting summary judgment to a defendant



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                                     No. 10-40378

when the only evidence presented by the plaintiff consisted of conclusory
allegations).
             3.       Woody
        The magistrate judge granted Woody’s motion for summary judgment
because it determined that Marquez failed to raise a genuine issue of material
fact as to whether Woody treated Marquez and failed to raise a genuine issue of
material fact as to whether Woody was deliberately indifferent to his serious
medical needs. Although we find that Marquez did raise a genuine issue of
material fact as to whether Woody treated him,8 the competent summary
judgment evidence shows that even if she did treat Marquez, Woody was not
deliberately indifferent to Marquez’s dental needs. The evidence fails to indicate
that Woody ignored Marquez’s requests for treatment, and Marquez does not
address any actions that Woody might have taken differently that could have
changed his outcome.          The evidence shows that Woody did not have the
authority to physically give Marquez dentures or to change the policy on
dentures. We do not construe the law as requiring a dentist to pay for a
prisoner’s dentures out of her own pocket. The evidence does not show that
Woody acted with deliberate indifference; therefore, we conclude that the
magistrate judge did not err in granting her motion for summary judgment.
B.      Did the district court err in granting summary judgment to Lemaster?
        Marquez contends that the district court erroneously concluded that
Marquez failed to exhaust his administrative remedies with respect to his claims
against Lemaster and erroneously concluded that there was no evidence in the
record to show that Marquez had contact with Lemaster. We agree.


       8
         Although Woody’s affidavit indicates that she never met or treated Marquez,
Marquez’s affidavit indicates that she did, in fact, see him. Despite this fact issue, we
nonetheless conclude that the magistrate judge properly granted summary judgment to Woody
because he failed to provide competent summary judgment evidence that Woody was
deliberately indifferent to his need for dentures.

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         Before filing suit, a prisoner must exhaust the available administrative
remedies. See 42 U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199, 212 (2006). The
record indicates that Marquez specifically named Lemaster in a step one
grievance. Indeed, Lemaster concedes this point on appeal. Therefore, we
conclude that the district court erred in dismissing Marquez’s claim against
Lemaster for failure to exhaust his administrative remedies.
         Additionally, the record shows that the magistrate judge erred in
concluding that there was no evidence in the record that Lemaster was
deliberately indifferent to Marquez’s serious medical need for a soft food diet.
In his grievance, which was attached to his verified complaint and which was
also sworn, Marquez specifically stated that Lemaster ignored Marquez’s
prescription for a soft food diet by taking Marquez’s diet pass, crossing out the
portion describing the soft food requirement, and writing “veggie” on it.
Marquez alleged that Lemaster ignored him when he explained that he could not
eat a veggie tray because he had no teeth. In his verified complaint, Marquez
also stated that Lemaster “actually has thrown the plaintiff out of the chow hall
refusing to provide him with any sustanance [sic] whatever.” Thus, Marquez has
shown that there is a fact issue as to whether Lemaster was aware that Marquez
had a prescription for a soft food diet and deliberately denied him the prescribed
diet.9
         Additionally, Lemaster is not entitled to qualified immunity at this stage
in the proceedings. “Government officials performing discretionary functions are
entitled to qualified immunity from civil liability to the extent that their conduct
does not violate clearly established statutory or constitutional rights of which a


         9
          Lemaster contends, and Marquez admits, that to the extent Marquez’s claim for
damages is against Lemaster in her official capacity, it is barred. See United States ex rel.
Barron v. Deloitte & Touche, L.L.P., 381 F.3d 438, 443 (5th Cir. 2004) (“An individual state
officer sued in her official capacity for damages is entitled to Eleventh Amendment immunity
. . . because the state that employs her is the real party in interest.”).

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                                    No. 10-40378

reasonable person would have known.” Longoria v. Texas, 473 F.3d 586, 592
(5th Cir. 2006). It is clearly established that “state prisoners are entitled to
reasonably adequate food.” Cooper v. Sheriff, Lubbock County, 929 F.2d 1078,
1084 (5th Cir. 1991). The Eighth Amendment is violated if the denial of food
constitutes a denial of “the ‘minimal civilized measure of life’s necessities.”Talib
v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998). Indeed, we have held that
“[b]ecause depriving a prisoner of adequate food is a form of corporal
punishment, the [E]ighth [A]mendment imposes limits on prison officials’ power
to so deprive a prisoner.” Cooper, 929 F.2d at 1083.
        Accepting Marquez’s competent summary judgment evidence as true, as
we must at this stage, Lemaster’s actions clearly violated the Eighth
Amendment because she refused to provide Marquez with a soft food despite the
fact that a doctor prescribed him such a diet. It would be difficult to argue that
Marquez did not need to eat soft food when it is apparent that Marquez has no
teeth and when Marquez presented a prescription for a soft food diet to Lemaster
which indicated that such a diet was medically necessary. We therefore reject
Lemaster’s qualified immunity defense at this stage based on the competent
summary judgment evidence before this court, recognizing that the facts actually
proven may be different from those sworn to by Marquez.
C.      Did the district court erroneously dismiss Marquez’s claims against
        Thaler?
        Marquez contends that the district court erred in dismissing his claim for
prospective relief against Thaler.      The district court dismissed Marquez’s
complaint against Thaler because the doctrine of respondeat superior does not
apply to suits under 42 U.S.C. § 1983, and Thaler was not personally involved
in the alleged violation of Marquez’s constitutional rights. We review dismissal
of a complaint under 28 U.S.C. § 1915A de novo. Geiger v. Jowers, 404 F.3d 371,
373 (5th Cir. 2005) (per curiam).


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       A plaintiff may not sue a state officer in her official capacity for damages
because the official is entitled to Eleventh Amendment immunity. United States
ex rel. Barron, 381 F.3d at 443. “[H]owever, the Eleventh Amendment permits
suits for prospective injunctive relief against state officials acting in violation of
federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). An official
cannot be held liable under § 1983 based solely on the theory of respondeat
superior. See City of Canton v. Harris, 489 U.S. 378, 385 (1989). “The individual
officials may be liable only for implementing a policy that is ‘itself [] a
repudiation of constitutional rights’ and ‘the moving force of the constitutional
violation.’” Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (quoting Grandstaff
v. City of Borger, 767 F.2d 161, 169, 170 (5th Cir. 1985)).
       Here, Marquez’s complaint specifically alleges that Thaler was
“[r]esponsible for implimentation [sic] of TDCJ policy denying plaintiff dentures
and a soft diet in lieu of dentures.” The magistrate judge erroneously concluded
that Marquez was suing Thaler solely because of his supervisory role, ignoring
the fact that Thaler may be held liable if he implemented a policy that itself
causes a constitutional violation. See Oliver, 276 F.3d at 742. Additionally,
Thaler would not be entitled to qualified immunity for Marquez’s claim for
prospective injunctive relief under § 1983, as qualified immunity does not extend
to suits for prospective relief. See Orellana v. Kyle, 65 F.3d 29, 33 (5th Cir. 1995)
(per curiam).      The magistrate judge thus erroneously dismissed Thaler’s
complaint without considering whether Thaler implemented or had the authority
to modify or contravene the policy on dentures and whether such policy in fact
resulted in a violation of Marquez’s Eighth Amendment rights. For this reason,
we reverse the dismissal of Marquez’s claim for injunctive relief against Thaler
and remand for consideration of these issues in the first instance.10

       10
         Although Marquez originally sought injunctive and monetary relief from Thaler, his
brief requests only that this court “restore Defendant [Thaler] for th[e] limited purpose” of

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       D.     Is Local Rule CV-3 unconstitutional?
       Although Marquez raises the constitutionality of Local Rule CV-3 as an
issue before this court,11 he failed to raise it below, and his brief contains no
further factual or legal discussion of his contention that Local Rule CV-3 is
unfair or unconstitutional. As such, he has waived this issue. See Condrey v.
SunTrust Bank of Ga., 429 F.3d 556, 571 (5th Cir. 2005) (arguments not
presented to the district court are waived); Douglas W. ex rel. Jason D.W. v.
Houston Indep. Sch. Dist., 158 F.3d 205, 210–11 n.4 (5th Cir. 1998) (per curiam)
(“[F]ailure to provide any legal or factual analysis of an issue on appeal waives
that issue.”).




providing injunctive relief. Marquez therefore abandoned his claim for damages against
Thaler.
       Marquez also requests that this court allow him to amend his complaint to add Dr.
Billy Horton, DDS, Director of the UTMB – Correctional Managed Care, as a defendant.
Marquez did not seek to amend his complaint to add Horton in the district court; therefore,
we do not consider the issue at this time. On remand, the district court may address whether
Marquez should be permitted to amend his complaint. See Chancery Clerk of Chikasaw
County, Miss. v. Wallace, 646 F.2d 151, 160 (5th Cir. 1981) (noting that plaintiffs had the
opportunity on remand to correct an error by substituting as defendants those with the
responsibility for challenged action).
       11
           Local Rule CV-3 is an admittedly unusual rule that treats pro se litigants differently
from those represented by counsel for purposes of determining how many pages of evidence
each may submit. See E.D. TEX. R. CV-3(b). The record also indicates that Federal Rule of
Civil Procedure 5(d)(4) was not followed in this case, as the clerk refused to accept Marquez’s
response. See FED. R. CIV. P. 5(d)(4) (“The clerk must not refuse to file a paper solely because
it is not in the form prescribed by these rules or by a local rule or practice.”). Nonetheless,
Marquez has not shown that this failure harmed him, as he did not bring forward on appeal
the evidence that he would have included in his response but was prevented from filing.
Indeed, the magistrate judge had before her a great deal of evidence in the form of the medical
records and grievances filed in the record by the defendants (as to whom there was no page
restriction) as well as Marquez’s sworn pleadings, all of which the magistrate judge
considered. Finally, he did respond to Dr. Woody’s motion for summary judgment, and that
response was filed and not stricken such that the evidence presented there was also before the
court.

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                                  No. 10-40378

      E.    Did the district court err in denying Marquez’s motion for
            appointment of counsel?
      Marquez contends that the magistrate judge erroneously denied his
motion for appointment of counsel. By statute, the court has discretion to
appoint counsel in a civil case, see 28 U.S.C. § 1915(e)(1); however, “there is no
automatic right to appointment of counsel in a civil rights case . . . .” Romero v.
Becken, 256 F.3d 349, 353-54 (5th Cir. 2001). A court has no obligation to
appoint counsel for an individual raising a claim under 42 U.S.C. § 1983 “unless
the case presents exceptional circumstances.” Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). In deciding whether to appoint counsel, the court
should consider “the type and complexity of the case, the litigant’s ability to
investigate and present the case, and the level of skill required to present the
evidence.” Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). “The district
court should also consider whether the appointment of counsel would be a
service to [the plaintiff] and, perhaps, the court and defendant as well, by
sharpening the issues in the case, shaping the examination of witnesses, and
thus shortening the trial and assisting in a just determination.” Ulmer, 691 F.2d
at 213.
      We find no error in the decision not to appoint counsel with respect to the
claims against the defendants other than Lemaster and Thaler. The magistrate
judge viewed Marquez’s claims as being “not unduly complicated” and denied
counsel on that basis. In light of our decision that Marquez has raised a fact
issue as to Lemaster’s deliberate indifference and that the magistrate judge
prematurely dismissed Marquez’s claim against Thaler for prospective injunctive
relief, we leave it to the magistrate judge to consider on remand whether
appointment of counsel would now be appropriate.




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                                   No. 10-40378

                               IV. CONCLUSION
      In conclusion, we AFFIRM the magistrate judge’s decision granting
summary judgment to Holliday, Williams, Wallace, and Woody, REVERSE the
grant of summary judgment to Lemaster in her individual capacity, and
REVERSE dismissal of Marquez’s claim for prospective relief against Thaler.
We leave the question of counsel on the surviving claims on remand to the
district court’s discretion in the first instance.




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