Althouse v. Roe (542 F. Supp. 2d 543, 2008)

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

LEONARD DAVIS, District Judge.

The Plaintiff Kevin Athouse, proceeding pro se, filed this lawsuit complaining of alleged violations of his constitutional rights. This Court ordered that the matter be referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

Athouse complained generally about the medical care which he received, largely revolving around his claim that he suffers from Attention Deficit Hyperactivity Disorder (ADHD). The Magistrate Judge conducted a lengthy evidentiary hearing and received and reviewed copies of At-house’s medical and grievance records, which are extensive.

Ater review of the pleadings, testimony, and records in the case, the Magistrate Judge issued a Report on January 30, 2008, recommending that the lawsuit be dismissed. The Magistrate Judge first concluded that Athouse has filed at least three lawsuits or appeals which have been dismissed as frivolous or for failure to state a claim upon which relief may be granted, and so he is subject to the three-strikes bar of 28 U.S.C. § 1915(g). In this connection, the Magistrate Judge stated that Athouse did not pay the filing fee and did not show that he is in imminent danger of serious physical injury, rejecting At-house’s claims to the contrary.

The Magistrate Judge then went on to review the merits of Althouse’s claims. In so doing, the Magistrate Judge first observed that Althouse’s medical records show that he is receiving a significant amount of care, and that Althouse’s disagreement with the quality of this care does not rise to a constitutional level. The Magistrate Judge specifically noted that Althouse’s prison records do not contain a diagnosis of ADHD, and that the standard treatment for ADHD, consisting of amphetamine-based medications, is not available within TDCJ. Instead, Althouse was given a medication called Tegretol, one of the purposes of which is to treat persons with impaired judgment, which is the harm which Althouse cites as a result of ADHD. The Magistrate Judge stated that “the fact that Althouse did not receive the medication which he would have preferred, or that the medication which he received was not as effective as he would have liked, is not proof of deliberate indifference to a serious medical need.”

The Magistrate Judge also recommended dismissal of Althouse’s claims under the Americans with Disabilities Act. Althouse specifically alleged that he was denied access to recreation because of the lack of closed captioning on the televisions in the dayroom, but the Magistrate Judge determined that this claim failed to show a violation of the ADA.

Althouse complained that a letter which his father sent, showing that he suffered from ADHD, had been lost, and that he did not receive appropriate responses to his grievance, but the Magistrate Judge determined that this contentions did not set out constitutional violations. He also complained about his work restrictions and again asserts that the medical care which he received has been deficient, but the Magistrate Judge concluded that Althouse failed to show that he had been the victim of deliberate indifference. The Magistrate Judge therefore recommended that Alt-house’s lawsuit be dismissed.

Althouse filed objections to this Report on March 20, 2008, and supplemental objections on March 24. In his first set of objections, Althouse begins by complaining that the Magistrate Judge said that he has no diagnosis of ADHD, whereas in fact he does have such a diagnosis. He points to a number of exhibits which he submitted with his supplemental complaint, but only two of these exhibits, an affidavit from his father and a letter from a retired elementary school principal, make reference to a diagnosis for ADHD. Other diagnoses given to Althouse, as reflected in these exhibits, include: personality trait disturbance, passive-aggressive personality, anti-social personality, schizophrenia, and bi-polar disorder. The affidavit from his father indicates that Althouse was diagnosed with ADHD at the Family Guidance Center in Reading, Pennsylvania, through the use of Ritalin, apparently in childhood. However, the Ritalin had to be discontinued because of the side effects, including listlessness and substantial weight gain. A psychiatric note from the Reading Hospital and Medical Center, from Althouse’s early adulthood, says that Althouse’s psy-chomotor activity is normal, there is no evidence of any thought disorder, that he is not psychotic, and that he has a character disorder in that he has no capacity to delay gratification. None of the medical records in Althouse’s exhibits make any reference to a diagnosis of ADHD.

In any event, the Magistrate Judge did not say that Althouse had never been diagnosed as suffering from ADHD, as Alt-house asserts, but rather that TDCJ’s records did not reflect a diagnosis of ADHD. Althouse says that on February 26, 2003, a TDCJ physician named Dr. Limsiaco diagnosed him with ADHD, but the medical record he attaches as an exhibit does not support this conclusion; this record (pp. 62 and 63 of the exhibits attached to the supplemental complaint) shows that Alt-house told Dr. Limsiaco that he had a history of ADHD, but the actual diagnosis made by the doctor was “depressive disorder.”

Althouse also refers to an order from the federal district court in Dallas County, appointing him counsel in a civil case, in part because of Althouse’s representation of his mental condition to that court. The fact that the court in Dallas determined that Althouse’s representations concerning his mental status warranted appointment of counsel in another civil case does not show that TDCJ personnel acted with deliberate indifference to him, nor that he is in imminent danger of serious physical injury.

In effect, Althouse asserts that the fact that he suffers from ADHD, by itself, is sufficient to show that he is in imminent danger of serious physical injury. He says that because of his ADHD condition, he is in constant danger because he might at any time act on impulse and thereby place himself in peril. By contrast, in Ciarpagli-ni v. Saini, 352 F.3d 328, 330 (7th Cir. 2003), the only circuit court decision to hold that allegations of discontinuation of medication for ADHD and panic disorder could satisfy the imminent danger prong, the plaintiff alleged that his panic attacks caused him to suffer heart palpitations, chest pains, labored breathing, choking sensations, and paralysis in his legs and back. These allegations are specific assertions of concrete harm, unlike Althouse’s generalized speculation that he might act on impulse and thereby place himself in danger. No court has held that the simple fact of ADHD by itself is sufficient to satisfy the imminent danger prong, as Alt-house contends. See also Desroche v. Strain, 507 F.Supp.2d 571, 583 (E.D.La. 2007).

In a similar vein, Althouse complains that the Magistrate Judge observed that he was being treated with Tegretol for impulsivity, but points out that Tegretol is not a treatment for ADHD and that it was not effective. Whether or not Tegretol is a treatment for ADHD, it is a recognized treatment for impulsivity, as the Magistrate Judge observed, which is the symptom which Althouse complains is placing him in danger. The fact that the medication was not as effective as Althouse may have wished does not show that the prison officials were deliberately indifferent to his medical needs.

Next, Althouse complains that Ronnie Hill, a named defendant in the lawsuit, was present at the Spears hearing, over his objections. He says that the Magistrate Judge “allowed him [Hill] to make an observation on the merits of Plaintiffs assertion that he suffers ADHD and in her report she is again relying upon his judgment regarding the merits.”

At the hearing, Hill testified that it is difficult to diagnose adult ADHD and that the treatment for ADHD involves amphetamine-based medications which are not available in prison. He noted that the prison medical records contain no diagnosis for ADHD and that Althouse’s demean- or at the hearing was not consistent with ADHD, in that Althouse was able to recall dates of past events without difficulty and to remain calm and focused during the hearing.

Althouse has not shown that any of this testimony was objectionable or should have been excluded. The fact that Alt-house’s prison medical records contain no diagnosis for ADHD was confirmed by the Court’s own perusal of these records, and Althouse’s demeanor at the hearing was clearly visible and apparent. Hill did not comment directly on the merits of Alt-house’s claims. Althouse’s objection on this point is without merit.

Althouse points to a grievance which he filed in which he was told that the current treatment for ADHD is with medications not available within TDCJ. He says that this shows that the prison officials are “intentionally refusing to treat his condition.” The fact that prison officials do not make amphetamine-based medications available to prisoners is not proof of deliberate indifference, particularly in light of the fact that Althouse’s impulsivity was treated with Tegretol. Althouse’s complaints regarding the relative efficacy of Tegretol do not show that a constitutional violation occurred. His claim on this point is without merit.

Althouse next turns to the Americans with Disabilities Act, arguing that he is “disabled” within the meaning of the term. To the extent that Althouse seeks to bring his claims for inadequate medical care under the ADA, this request is misplaced. The courts have held that a lawsuit under the Rehabilitation Act or the Americans with Disabilities Act cannot be based on medical treatment decisions. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir.2005); Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1144 (10th Cir.2005); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (ADA does not create a remedy for medical malpractice).

Althouse also complains that he has a right to participate in the “recreational activity” of watching television, but that he is easily distracted, so when he is in a crowded dayroom with two television sets, each tuned to a different station, his impairment prevents him from being able to understand the program he is watching without closed captioning. As the Magistrate Judge stated, no case in any jurisdiction, state or federal, has found the provision of closed-captioned television for persons suffering from ADHD to be mandated under the Americans with Disabilities Act; furthermore, Althouse has not shown that he has been discriminated against because of his disability. This contention is without merit. Althouse also says that the medical condition of his jaw is fragile and that he was assaulted by other inmates when he complained about the lack of closed-captioning. This does not make the failure to turn on closed-captioning an actionable claim under Section 1983 or the Americans with Disabilities Act.

In the next section of his objections, Althouse says that the State of Texas has created a liberty interest to the effect that a prisoner completes required programs, maintains a clear conduct record, and addresses the problems which brought him to prison, parole “should follow as a matter of course.” He cites Tex. Gov.Code art. 508.144, but this statute requires the Parole Board to develop guidelines that are the basic criteria on which a parole decision is made, base these guidelines on the seriousness of the offense and the likelihood of a favorable parole outcome, and ensure that the guidelines require consideration of an inmate’s progress in any programs in which the inmate participated during his term of confinement. Nothing in the statute creates a liberty interest which accrues to inmates or ensures that parole shall “follow as a matter of course.” To the extent that Althouse contends that this statute creates a liberty interest which must be enforced through an order giving him the treatment he believes appropriate, his claim is without merit.

Althouse asserts that the failure to perform surgery on his broken collarbone amounts to deliberate indifference to his serious medical needs. He was scheduled for surgery at one time, but this had to be postponed because of his collapsed lung. As the Magistrate Judge observed, surgery is often not done at all on broken collarbones because they heal without it. Although Althouse says that his need for surgery is a serious medical need, the medical records show that he has advised the nursing staff on at least one occasion, after suffering the broken collarbone, that he was able to do sit-ups, push-ups, and lift weights. Althouse has not shown a constitutional violation in the treatment of his broken collarbone.

Althouse further argues that Nurse Bobby Burns should be liable because in January of 2004, he told Burns that he was having chest pains, and Burns said that it was a strained diaphragm muscle and that if he stopped exercising for a few days, the pain would go away. Althouse followed this advice and the pain did go away. Almost two years later, he says, he again experienced chest pains, and did not seek medical care because of Burns’ advice, but this time the chest pain turned out to be a collapsed lung. Althouse’s notion that the apparently accurate advice given in January of 2004 renders Burns liable for an incident which occurred in December of 2005 is plainly without merit. He asserts that Burns “misdiagnosed his collapsed lung” but offers nothing to show that it was in fact a collapsed lung which he had in January of 2004. Finally, Althouse takes issue with the Magistrate Judge’s statement that he is receiving medical care for his condition, but simply disagrees with this care; a review of Althouse’s extensive medical records shows that he has in fact received a considerable quantum of medical care. His objection on this point is without merit.

Althouse also filed a set of supplemental objections, consisting of additional exhibits. The first of these is a letter from his father, Lawrence Althouse, dated January 14, 2008, addressed to the District Attorney’s Conviction Integrity Unit in Dallas. This letter asserts that Althouse was diagnosed at age five with ADHD, and that as a result, Althouse has very little impulse control, acting impulsively rather than after due thought; in other words, thoughts are immediately translated into actions, instead of first going through “the filter of reason determining right and wrong.” He complains about Althouse’s court-appointed attorney and asks that his conviction be re-examined. Attached to this is a copy of the affidavit from Lawrence Althouse which has been discussed above.

The next item is a letter from an individual named Kermit Bartholomew, a retired principal from Reading, Pennsylvania. Bartholomew says that he knew Althouse from early elementary school days, and says that if Althouse was in public school today, he would be diagnosed with ADD or ADHD or SED (serious emotional disturbance), and the school system would work with them. At that time, however, they simply did not know how to diagnose and treat the problem.

Next, Althouse attaches a copy of his grievance in which he complains that he is being denied treatment for ADHD, which causes him to be at risk to himself because he does not have the biological filter to screen impulses, but instead acts off of thought. He says that he cannot focus attention, has limited insight, is easily distracted, and has a disregard for dangerous situations. For example, he cites his rushing out of the shower in October of 2004, resulting in a broken collarbone, walking around for three days with a collapsed lung, the fact that he cannot understand what is on TV, and is having a hard time learning in the vocational course he is taking. The response to this grievance was that his report of depression is being treated with a mood stabilizer called earba-mazepine [Tegretol] and eitalopram, that he was scheduled to see the provider again on October 18, 2006, and that the current treatment for ADHD is with medications not available to prescribe in TDCJ. This grievance was discussed by the Magistrate Judge in her Report. The fact that Alt-house was being treated with medications which he did not believe were appropriate, and that the treatment he wanted was with medications not available within the prison because of them amphetamine base, does not show a constitutional violation. Furthermore, although Althouse says that the standard ADHD treatment is with Ritalin, the affidavit from his father says that Ritalin therapy had to be discontinued because of the side effects.

Next, Althouse furnishes an information sheet from several Internet websites, including http://www.webmd.com, http:// www.add-adhd.com, and http://www. adultadd.com. discussing adult ADHD. One of these sheets, labeled “ADD/ADHD, Vision, and Learning,” appears to indicate that ADHD has been over-diagnosed and that some children who have been diagnosed as ADHD may in fact have a vision impairment rather than the disorder; it quotes an individual named Dr. Edward Hallowell as saying that “many people in today’s hurried world may look like they had ADD when they really don’t.”

Althouse goes to include a self-assessment test and treatment possibilities from http://www.adultadd.com, a definition of ADHD from the DSM-IV psychiatric manual, and an article from Goodhealth Magazine about attention deficit disorder. None of this information indicates that the Magistrate Judge was in error. Althouse’s objections are without merit.

The Court has conducted a careful de novo review of the pleadings, records and testimony in this cause, as well as the Report of the Magistrate Judge and the Plaintiffs objections thereto. Upon such de novo review, the Court has concluded that the Report of the Magistrate Judge is correct and that the Plaintiffs objections are without merit. It is accordingly

ORDERED that the Plaintiffs objections are overruled and the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. It is further

ORDERED that the Plaintiffs informa pauperis status is REVOKED and that the above-styled civil action be and hereby is DISMISSED with prejudice as frivolous and as barred by 28 U.S.C. § 1915(g). Finally, it is

ORDERED that any and all motions which may be pending in this action are hereby DENIED.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JUDITH K. GUTHRIE, United States Magistrate Judge.

The Plaintiff Kevin Althouse, an inmate currently confined in the Texas Department of Criminal Justice, Correctional Institutions Division proceeding pro se, filed this civil action complaining of alleged violations of his constitutional rights. The lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. Alt-house named a large number of defendants in his lawsuit.

Althouse’s complaint generally revolves around the medical care which he had received. An evidentiary hearing was conducted on July 31, 2007, pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). At this hearing, Althouse testified about his claims against each of the Defendants whom he sued. These will be set off individually.

I. Dr. Richard Roe

Althouse said that Dr. Roe had been a physician at the Michael Unit, although he is now in Galveston. Althouse stated that in October of 2004, he fell and broke his collarbone, and was taken to Palestine Memorial Hospital. The doctor there returned him to the prison with orders that he be seen in the orthopedic clinic within two weeks. An appointment was made for Althouse in the clinic in Galveston, but Dr. Roe cancelled it, saying that he could treat Althouse at the unit. However, Althouse says, he did not see Dr. Roe until December 8, 2004; at that time, Dr. Roe said that the bones would “fuse themselves back together.”

II. Suzanne Fleming, N.P.

Althouse said that in 2006, he had work restrictions, but these were taken away and he was made to work despite the broken collarbone as well as back problems. He said that he was given a job working in the kitchen scullery, where he had to bend over and lift trays as well as engage in prolonged standing. The Court noted that when Althouse filed a grievance about this, the response was that Alt-house’s only work restriction was no lifting over 20 pounds, and the response said that his job was within that restriction. Alt-house stated that this was because all of his other restrictions had been lifted. He said that he could not do the job because of an injury to the L^l and L-5 discs in his lower back.

In May of 2005, Althouse said, he was medically unassigned from work. He went to another unit in November of 2005, and when he returned to the Michael Unit in December of that year, his restrictions were lifted. However, he was kept medically unassigned because he was scheduled for surgery on his collarbone in January of 2006. In late December of 2005, he suffered a collapsed lung and was taken to the hospital, and so the planned surgery could not be done. During the spring of 2006, Althouse said that he tried to get his restrictions back, but without success. His medical unassignment expired that June, and he was sent to work in the kitchen.

Althouse indicated that Fleming had “full knowledge of his condition,” but then said that Dr. Roe had stated that he could work. He conceded that Fleming wanted to keep him unassigned until August, when he could be seen by the orthopedic department, but that Dr. Roe said no. He explained that Fleming did not actually remove his restrictions, but refused to reinstate them.

III. Jeanie Allison

Althouse said that Allison was an assistant administrator at the University of Texas Medical Branch hospital in Galveston. He stated that he sent “several communications” to her regarding his restrictions, but these were denied.

IV. Christy Atwood

Althouse said that he also sent complaints about his restrictions to Atwood, a practice manager at the Michael Unit. When asked by the Court if he thought that Atwood could override a doctor’s instructions, Althouse said that his father had complained to the TDCJ ombudsman, and Atwood responded that no medical restrictions were being violated and that Althouse could work.

V. Dr. Ken Kuykendall

Althouse said that he requested a “medical shirt,” with buttons, so that he would not have to pull the jumper-type shirt over his head, which he said hurt him by making him raise his arm, but that Dr. Kuyk-endall refused.

VI. Bobby Bums, R.N.

Althouse said that in January of 2004, he was working in the Officer’s Dining Room when Nurse Burns came in. He told Burns that he was having some chest pain, and Burns said that it was a sprained diaphragm muscle, there was nothing that the medical department could do for it, and that Althouse should just stop working out for a few days. Althouse took this advice and the pain did go away.

In September of 2005, he said, he woke up with the same symptoms. Relying on Burns’ judgment from over a year and a half earlier, Althouse said that he did not seek medical care.

After another two months went by, Alt-house said that he woke up again with chest pain. He said that he filled out a sick call request just so that he could get out of his cell for a few hours and away from his cellmate. He thought that it was a sprained muscle again but in fact it was a collapsed lung, and he was rushed to the hospital for surgery.

Althouse testified that he believes that he is in danger because “Burns’ judgment can’t be trusted.” He conceded that he was blaming Burns for advice given in January of 2004, almost two years before his lung collapsed, but explained that because of the lack of judgment resulting from attention-deficit hyperactivity disorder (ADHD), he did not realize how serious his condition was until he was in the ambulance.

VII. Nancy Davenport

Althouse said that he was on a medication called Wellbutrin, an anti-depressant. He said that Wellbutrin was a “heat potentiator,” apparently meaning that he should not be exposed to heat while taking it; he had a restriction not to work in heat. However, Althouse said, he was taken off of the Wellbutrin and put on a medication called Celexa, another anti-depressant, but this did not work. He was then put on a third medication called Nortriptyline, a tricyclic antidepressant.

Althouse complained that Davenport would not increase his doses of the medication, but acknowledged that he stopped taking them because of side effects. He said that in April of 2006, Davenport took away his restriction against working in excessive heat, and would not give it back.

VIII. Ronnie Hill

Althouse said that he had been seen for ADHD, but that he was not treated because the treatment involved amphetamine-based medications. He filed a grievance, and the warden’s response to the grievance quoted Hill (who was present at the Spears hearing) as saying that amphetamine-based medications could not be given out in prison.

IX. Gary Kincade

Althouse said that he was taking a horticulture class, but he could not keep up because his ADHD caused him to have trouble learning. The instructor talked to the principal, who talked to the psych department. Kincade, a psychotherapist, said that they could not help Althouse because they did not give that type of medication (i.e. the amphetamine-based medications used to treat ADHD).

X and XI. Cynthia Allen and Mack Hughes

Althouse said that his claims against Allen, a dental assistant, and Hughes, a dentist, had been resolved, and he wanted to dismiss these persons from his lawsuit.

XII. Gail Karriker

Althouse said that Karriker was the chief classification officer at the Michael Unit. He said that she assigned him work which conflicted with his medical condition, and that he notified her of physical conditions which would preclude work assignments. The Court asked if the medical department did the exam and gave the restrictions, and then the classification department assigned jobs based on these restrictions, and Althouse acknowledged that this was the case; however, he said, he told Karriker about medical conditions for which he was being denied restrictions. He argued that once she was aware of these facts, she should have investigated; he pointed out that the system was not perfect and that sometimes information “fell through the cracks,” and that he had documentation for what he was telling her.

XIII. Major Jimmy Bowman

Althouse complained that Major Bowman responded to some of his grievances, but that this was improper because only a warden or assistant warden could respond. He also complained that Bowman was deliberately indifferent to him by denying his grievances. Chip Satterwhite, a TDCJ Regional Grievance Coordinator who was present at the hearing, stated that the major can serve as acting warden, and can respond to grievances in this capacity.

XIV and XV. Sharon Dijferent and Angela Digger

Althouse stated that Different and Digger were grievance investigators. He stated that there was several kinds of grievances, and that only one regular grievance could be filed in a seven-day period, but that there are exceptions, such as if a grievance is an emergency or is filed concerning medical care. He said that Different and Digger refused some of his grievances as exceeding the one-in-seven limit, but that they should not have done so because the grievances concerned medical issues.

XVI. Michael Berry

Althouse said that Berry was a regional recreation coordinator. He said that one form of recreation provided in TDCJ was watching television, but that because of his ADHD, he cannot focus attention on the television or retain things in his memory. He also stated that he could not understand the television unless there was closed-captioning because of the noise in the dayroom. Last June, he said, the prison switched to digital cable, but only three of the channels had closed captioning.

Althouse also said that he got into a fight with another inmate because the closed captioning was on and the other inmate asked the guard to turn it off. Althouse said that Berry came to see him, and that he, Althouse, asked that closed captioning be made mandatory and available on all channels. He contended that the denial of closed captioning denied him access to that recreational activity, which he said is “one of the few” which is open to him.

XVII. Dr. Monte Smith

Dr. Smith is the Regional Medical Director. Althouse says that he wrote to Dr. Smith complaining about his restrictions being lifted and about injuring his back, and Dr. Smith told Dr. Thompson to review the situation. He explained that he sued Dr. Smith as a “mere formality,” saying that he had heard that the Court would dismiss lawsuits if the right people were not sued. Althouse said that he really did not want to sue Dr. Smith but thought that he had to.

XVIII. Dr. Shelton

Similarly, Althouse said that he named Dr. Shelton as a “mere formality” and that he really did not want to sue Dr. Shelton. He agreed that both Dr. Smith and Dr. Shelton could be dismissed.

XIX.Linda McKnight, R.N.

Althouse said that in November of 2006, he came back from surgery with orders to get two Tylenol 3’s four times a day. When he arrived, he was interviewed by Hill around noon. An hour later, an officer called the infirmary because Althouse’s jaw was swollen, but the nursing personnel said not to bring him in. Some six hours later, around 7:00 or 7:30 p.m., an officer took Althouse to the infirmary, but McKnight “chased him away.” Althouse said that he was in transient status so he had to be escorted when he came to the infirmary.

About an hour later, another call was put in to the infirmary, and he got pain medications and a dressing change. Alt-house said that he also got a pass to come to the infirmary three times a day for medications, but McKnight put a stop to that; instead, she had the pill window aide take his medications to him. Althouse said that this “allowed an unauthorized person to dispense narcotics.”

He also complained that he was supposed to receive antibiotics, but some of the doses were missed. He said that he did not receive his medications on November 16, and on November 17, he was sent back to the hospital in Galveston. He returned around November 20 or 21, and a couple of days later (November 22 or 23), McKnight refused to issue his medications and told the pill window nurse to take them to his cell. On another occasion, Althouse said, another medication was substituted for the one he was supposed to take, and he complained about this, but nothing was done.

XX. Patricia Ledbetter

On November 16, 2006, Althouse says that he exited his cell and went to the desk for an escort to the infirmary. Sgt. Led-better was standing at the desk and said that just because Althouse had a pass did not mean that he would be taken to the infirmary. She told Officer Gill to return Althouse to his cell, and Althouse did not get to go to the infirmary for another four hours. He said that TDCJ policy prohibited officers from interfering with inmates’ medical care, and that he was supposed to get his medication at 10:30 a.m. but was not taken to the infirmary until around 4:00 p.m.

XXI. Vickie Allen

Althouse said that Vickie Allen is a chain officer, who greets the transportation buses (known as “chain buses”), brings the inmates into the building, and helps assign them to cells. When Althouse arrived at the Michael Unit, he told her that he was in pain and that he was on a clear liquid diet. He was taken to 8 Building, where he told Allen that he needed to go to the infirmary, but nothing was done. Later, she brought him a tray of solid food, and he reminded her that he could not eat it because he had a splint wired into his jaw, but she replied “that’s what they sent, that’s what you get.”

XXII and XXIII. Anthony Holmes and Keisha Stott

Althouse said that his father wrote a letter to Warden Alford back in 1999 concerning Althouse’s history of treatment for ADHD. However, he said, this letter has apparently disappeared from the TDCJ files. His father sent a money order for $1.00 to the law library for a copy of the letter under the Open Records Act, and Stott reviewed the files but could not find the letter. Althouse filed a grievance and Holmes responded, saying that it was not a classification issue and that the letter should be with the medical file; however, Althouse says that he has looked in his medical file and the letter is not there. He asserted at the Spears hearing that Holmes should have looked in the medical file before giving him this response.

Althouse said that the letter was important because the prison health authorities were saying that there was no documentation of his ADHD, but that in fact he has a mental health history going back to 1958. He said that the letter included a list of doctors whom Althouse has seen since the 1960s.

XIV.Karen Johnson, LVN.

Althouse says that on November 16, 2006, he went to the infirmary, but did not get the antibiotic that he was ordered. As a result, he said, an infection set in to his jaw, which was seen the next day by the dentist, who promptly put him on “something like penicillin.” Althouse conceded that he received antibiotics three times a day, but said that he was supposed to get them four times a day, and this caused the infection to set in. He said that the dentist was concerned enough to give him a dose of antibiotics immediately.

XV. Michael Unit Medical Department

Althouse testified that he named the unit medical department as a “general catch-all.” He also named the medical department in Galveston and the Wynd-ham School District as catch-alls.

XVI. Guy Smith

Althouse said that Smith was the Region 2 director, and answered several of his Step Two grievances. Smith said that there was no documentation in the medical file that Althouse suffered from ADHD, and so Althouse wrote Smith to say that the letter from his father was in his classification file. He says that he put Smith on notice of an existing problem, and nothing was done, and so Smith was deliberately indifferent.

XVII. Vickie Barrow

Althouse said that Barrow was in charge of access to courts. He filed a Step Two grievance about Stott, and the response from Barrow was that state law prohibited him from receiving that information because requests from inmates are exempt under the Texas Open Records Act. Alt-house did not dispute that this was in fact an accurate statement of the law, but complained that his attempts to get a copy of the letter had gone “round and round in circles” — he was told that it should be in his classification file, in his medical file, and that he could not get it at all.

XVIII. C. West

Althouse said that West was a nurse manager at the Michael Unit. He filed a grievance against McKnight and Johnson, and the warden responded to his Step One grievance by quoting West in saying that there was no order for antibiotics when in fact there was. The response to the Step Two grievance acknowledged that the Step One response was wrong in saying that Althouse only had an order for Tylenol 3 (and not antibiotics), but that Althouse did get three doses of an antibiotic called clin-damycin that day and two doses the next day. Althouse testified that his complaint against West was that she had “given false information” to the warden, which prevented a “proper investigation” of his grievance.

Other Testimony at the Hearing

Warden Pratt confirmed that inmates in transient status must be escorted to the infirmary. Nurse Kathy Grey said that she was not really familiar with treatment given for inmates with ADHD, and deferred to Ronnie Hill, from the psych department.

Hill stated that it is very difficult to diagnose adult ADHD and that the standard treatment for ADHD involves amphetamine-based drugs such as Ritalin or Adderol, and these are not allowed in the prison. There is a new medication, which is not amphetamine-based, but this is not available in the prison. Behavior therapy is also used, but Hill said that this was of little utility in the prison because of the lack of reinforcement.

Hill stated that even if Althouse suffered from ADHD as a child, this does not necessarily carry over into adulthood. He said that the diagnosis of adult ADHD is based on present impressions and not just childhood history, even though childhood history does play a role.

Hill noted that Althouse has been seen many times by mental health providers, with no report of ADHD. He stated that persons suffered from ADHD would have a very difficult time in recalling dates from several years back or remaining seated and calm for an hour and a half, both of which Althouse did, with no apparent difficulty, during the course of the hearing. He reiterated that a letter concerning a childhood diagnosis was “moot” with regard to a present diagnosis of adult ADHD.

Nurse Grey said that Althouse’s medical records were “pretty extensive.” She said that Althouse had a record of a “non-union break” in his collarbone and that he was referred for surgery in June of 2007, but apparently was not scheduled. She said that the treatment of a broken collarbone depends on the circumstances.

With regard to Althouse’s restrictions, Nurse Gray said that after the injury in November of 2005, Althouse had a number of restrictions, including limited standing, no walking over 800 yards, no bending at the waist, no climbing, no reaching over his shoulder, and lower bunk only. Warden Pratt said that based on these restrictions, Althouse would normally be assigned to a medical squad; he said that a buttoned shirt would have to be approved by the medical department because the prison officers do not have buttoned shirts for inmates.

Althouse replied that in 2003, he was diagnosed as never having outgrown childhood ADHD. He said that he is now assigned to work in the kitchen, doing lifting, and Warden Pratt said that he would check on Althouse’s current job assignment.

On December 28, 2005, Nurse Gray said that Althouse’s medical records show that he complained of tightness in his chest, and was referred to a provider. He was seen at 3:00 p.m. and an X-ray showed that he had a collapsed lung, and was taken to the hospital in Galveston. This was diagnosed as a “spontaneous pneumothorax” (i.e. a collapsed lung without apparent cause) and he was taken to the hospital in Galveston, where he received a chest tube and surgery.

Althouse argued that when he broke his collarbone, he exited the shower “on impulse, with no regard for the consequences,” and slipped on the floor. He postulated that had he been diagnosed and treated for ADHD, he might not have been so impulsive, and so he would have dried off his feet before stepping out of the shower. Satterwhite noted that Althouse had been transported off of his unit of assignment some 36 times for medical treatment at a hospital or another unit.

The Allegations of Althouse’s Complaint

In his original and supplemental complaints, Althouse says that he came into the system in 1999. He told a doctor that he had been treated for a lower back condition and had an MRI less than one year old. His treating physician wrote to the prison and sent copies of the MRI. X-rays were taken of his mouth and the dentist told him that the five remaining teeth in the lower part of his mouth should remain so that there would be something to anchor a future denture. He had no upper teeth. The dentist told him that he did not need these bottom teeth extracted. Althouse got a lower bunk pass.

On June 28, 1999, a psychiatric exam was done at the Goree Unit. This exam concluded that Althouse had limited attention span and limited insight.

In July of 1999, at the Eastham Unit, Althouse says that he sent in a sick call request about getting dentures. Dr. Fromby insisted on extracting his five lower teeth, but while doing so, he “busted up” Althouse’s lower ridge bone. Another dentist, Dr. Nichols, got a grinder and ground Althouse’s lower ridge bone to “nothing.”

The doctor at the Eastham Unit gave Althouse a permanent bottom bunk restriction and work restrictions including limited standing' and no lifting greater than 25 pounds. Althouse’s father wrote a letter in August or September of 1999 telling the warden about Althouse’s problems with attention deficit hyperactivity disorder (ADHD). The warden wrote a response saying that the information had been passed on to the psychologist, Dr. Sloan, but there is no mention of this in the medical records, nor was Althouse ever contacted by Sloan.

On August 11, 1999, Althouse says, his psychiatric medications were discontinued because they had no effect on him. He was sent to the Gurney Unit in December of 1999, and between December 1999 and June 2000, he made repeated requests to the unit psychologist, Dr. Bass, for mental problems, but was denied.

In April of 2000, Althouse says that he received a full set of dentures. He has continuously complained that the lower denture does not fit correctly, and he has been treated for sore spots in his mouth. This is caused by the denture moving around, since he has no ridge bone.

In August of 2000, Althouse was sent back to the Eastham Unit. He sought mental health treatment there, but was denied. He finally filed a grievance, and was seen by a psychiatrist, Dr. Limsiaco, in February of 2003. The psychiatrist told him that he suffered from ADHD, and that the doctor who had examined him for his trial, as well as every other doctor who had ever seen him, had mis-diagnosed him. The psychiatrist ordered treatment with a medication called Wellbutrin, an anti-depressant.

On August 29, 2003, Althouse says that he was sent to the Michael Unit. On January 24, 2004, he awoke and did 50 pushups, but then could not get any breath so he filed a sick call request. The following day, he again did 50 push-ups, in the officer’s dining room where he was working, and again could not breathe. Another inmate became concerned and asked Nurse Bobby Burns about it, and the nurse said that Althouse had a sprained diaphragm muscle and he should stop working out for a few days and it would go away, which it did. Consequently, Althouse did not go to his scheduled sick call appointment.

In August of 2004, Althouse began taking a medication called Doxazosin, for an enlarged prostate. In September of 2004, he began taking a fiber supplement.

On October 24, 2004, while Althouse was in the shower, Officer Jennings announced an in count. Althouse, acting on impulse, panicked and thought he had to get to his cell before count. He says that he “disregarded the danger” and left the shower without drying off; as a result, he fell when he stepped out on the run and broke his collarbone and rib. He was taken to the hospital in Palestine and seen by a doctor, who ordered that he be returned to the unit and seen by an orthopedic doctor in two weeks.

The next day, Jeanie Allison, associate administrator of the medical department, emailed a physician’s assistant named Nolan about the need for an orthopedic appointment. Nolan responded on October 26 with the message that he had consulted with Dr. Roe, the Michael Unit doctor, and Dr. Roe told him (Nolan) to cancel the referral and that he, Dr. Roe, would treat Althouse on the unit. However, Althouse says, he did not see Dr. Roe until 43 days later.

Between October 26 and December 8, Althouse says that he submitted several sick call requests about his left shoulder blade hurting. A nurse kept responding that Althouse had an appointment scheduled with the doctor, and would not schedule him to be seen at sick call.

On December 8, 2004, Dr. Roe saw Alt-house and told him that the bones would fuse themselves back together. He also discovered that Althouse had broken his rib in two places when he fell. Dr. Roe said that Althouse could work, but gave him additional restrictions of no bending at the waist and no reaching over the shoulders.

On December 27, 2004, Althouse was seen by Nurse Miller after filing a sick call request saying that the bones were not fusing themselves back together. Miller said that this had gone on too long and that it was time to send him to the orthopedic clinic in Galveston.

On January 5, 2005, Althouse again saw Dr. Roe, whom he says was “mad” that Althouse had been scheduled to see him again. However, Dr. Roe X-rayed the collarbone and told Althouse that he was going to send him to the hospital in Galveston.

From December 27, 2004, until February 9, 2005, Althouse received lay-ins from work. On February 9, 2005, he was transferred to the Powledge Unit, because he had signed up for an auto body course the year before. When he got to Powledge, Warden Hodge would not let him enroll in the auto body course because of his work restrictions, but instead assigned him to work in the kitchen.

On May 9, 2005, Althouse had a video tele-med conference with a doctor in Galveston, who said that Althouse would be brought to Galveston so they could evaluate him for surgery. An X-ray taken that day showed the fracture to be worse at that time than it was on January 9, 2005.

However, on June 10, 2005, Althouse says that he refused to go on the bus to Galveston because he was taking Wellbut-rin, which is a “heat potentiator” and he feared that his life would be in danger from riding on a hot bus. He says that inmates have died on prison buses from the heat, and that prison policy says that inmates on psychiatric medications are not supposed to be transported on buses in the summer, but that this policy is not followed.

Althouse states that he submitted a sick call request on June 27, 2005, complaining about dizziness as a result of the doxazosin lowering his blood pressure and his working at night in the dish room in the Officers’ Dining Room, so he was medically unassigned until July 6, 2005. He was called to the infirmary every night and his blood pressure checked when he sat and then when he stood up.

On July 29, 2005, Althouse was examined by Dr. Thompson at the Powledge Unit. The doctor reduced Althouse’s lifting restriction to no more than 10 pounds and added a restriction for sedentary work only. The next day, he was assigned to the utility squad, which Althouse says works “maybe twice a year.”

On August 16, however, Althouse says that he was sent back to the Michael Unit. He was assigned to Medical Squad No. 3 by Major Cook. Althouse’s father complained to the TDCJ-CID Ombudsman’s Office about his being sent back to Michael, where Dr. Roe had “botched” treating him earlier.

On September 9, 2005, Althouse was scheduled to see Dr. Kuykendall, but he sat waiting for two and a half hours, and the doctor was not even on the unit property, so Althouse says that he signed a refusal-of-treatment form. Later that month, Althouse again experienced breathing difficulties, but he did not seek medical care and it went away on its own.

On November 17, 2005, Althouse was sent to the Pack Unit, but his father complained and he was returned to the Michael Unit. On December 5, 2005, the a physician’s assistant at the Michael Unit at the Michael Unit discontinued all of his restrictions except for no lifting over 10 pounds, which he changed to 20 pounds.

One week later, on December 12, 2005, Althouse was seen at the orthopedic clinic in Galveston and he was scheduled for surgery on January 20, 2006. On December 15, Suzanne Fleming, the nurse practitioner, medically unassigned him until June 12, 2006.

On December 26, 2005, Althouse says that he woke up with chest pains and was unable to breathe properly. He filed a sick call request that evening, “only because we were locked down and I wanted to get out of my cell for a while.” On December 28, 2005, he saw Nurse Sweet, who gave him a pass to return when the doctor was still there. However, Sweet did not listen to his breathing; had she done so, Althouse says, she would have discovered that there were no sounds coming from his right lung. That same day, Althouse saw the doctor, and it was learned that his right lung had collapsed. He was taken to the hospital by ambulance, where a chest tube was inserted and he was taken to Galveston by ambulance.

En route to Galveston, Althouse says, the ambulance stopped in Conroe, where the officer and ambulance attendants took a 30-minute break. During this time, Alt-house was given nothing for his pain. While trying to run an IV, he says, the attendant “blew the vein” which the nurse in Palestine had prepared. The attendant ran the IV by inserting a “butterfly,” but when they got to Galveston, it was discovered that the attendant had missed the vein entirely.

On December 29, 2005, a CAT scan revealed blisters on Althouse’s lungs. Surgery was done on January 3, 2006, to remove part of the right lung which was not functioning. One week later, on January 6, 2006, an X-ray was taken of his stomach because he was suffering from incontinence. He was given a series of enemas, and was discharged to the Estelle Unit on January 9, 2006. Althouse says that he had been told- to drink a lot of water, but his cell at Estelle was without water for several days; he complained of this to the guards, but nothing was done. He was sent to the Michael Unit on January 17, 2006.

Althouse says that he suffers from severe chronic hard stools and receives a fiber laxative. He had previously been treated for hemorrhoids in 1987 and 1992. When he returned to the Michael Unit, he did not get his usual supply. He experienced rectal bleeding, and Nurse Sweet gave him some ointment.

On January 11, 2006, Althouse filed a complaint saying that his life was in danger, in reference to the incident in the Officers’ Dining Room two years earlier where Nurse Burns told him that he had a strained diaphragm muscle and that he should rest it for a few days, and the pain would go away. On January 30, 2006, he filed a complaint about Nurse Sweet not listening to his lungs on December 28, 2005. Althouse also submitted inmate request form about the lack of a laxative on February 1, 2006, and filed complaints about this on February 2, 6, and 9, 2006.

Althouse says that he was scheduled to go to Galveston for surgery on February 10, but refused, because the problem with his laxative, a medication called Konsyl-D, had not been resolved. However, on February 15, he saw the surgeon, who ordered foui1 packets of laxative daily plus another laxative.

On February 17, Althouse sent another complaint about not receiving the Konsyl-D, and on February 20, they were reordered, but the prescription was changed from four packets daily to two. Althouse left the Michael Unit on February 24 to go to Galveston, and stopped at the Diagnostic Unit in Huntsville. He received enough laxative packets for three weeks there, and a doctor renewed his prescription for four packets daily until February of 2007.

When he got to Galveston on February 27, 2006, Althouse says that he was seen at the orthopedic clinic, and the doctors decided that if a blister on his lung burst during surgery, he would die. The collarbone surgery was postponed pending surgery on the lungs. The doctors also ordered that he do no lifting and not push anything like a broom. However, he says, when he returned to the Michael Unit, these restrictions were ignored.

On February 24, 2006, Althouse’s father called the Michael Unit to make sure that Althouse would be on the unit the next day for a visit. They told him that Althouse was on the unit, but he was not.

On March 15, 2006, Althouse refused to go to Galveston to see the doctor about lung surgery because he was working on a legal ease and was trying to be seen in the dental clinic because his lower denture was broken. On March 23, 2006, Althouse filed two complaints about his restrictions, but he says that medical personnel deny ever receiving these complaints.

On April 3 and May 15, 2006, Althouse says that impressions were taken and his lower dentures were sent out to be repaired, but when he got them back, he could not chew with them. On May 10, 2006, he submitted a request for a slow eater’s pass, but this was denied. He sent a complaint to the medical grievance coordinator, but no action was taken. A request for work restrictions was also ignored.

On May 16, 2006, Althouse says, he was seen by Fleming, the nurse practitioner, because his pain medications had expired. Fleming said that she would renew it, and that she would renew his medical unas-signment until August, when he was supposed to go back to Galveston. She ordered X-rays taken of his back.

Two days later, Althouse filed a sick call request because his pain medications had not been renewed and his back was hurting. The request was returned to him with a note saying that no medications had been ordered. He filed another sick call request on May 19 saying that he had been seen by Fleming on the 16th and told to continue his previous medications. Alt-house filed another sick call request on May 23, and was told that the provider did not order any pain medications and on review of the chart did not feel that it was warranted.

On May 28, 2006, Althouse filed a complaint about the medications not being renewed and about Fleming having lied to him. The response, dated May 30, was that Althouse had been seen by Fleming on May 30 and the request for restrictions had been denied.

Althouse acknowledges that he did see Fleming on May 30, and she did renew his pain medications at that time. She also told him that she had consulted with Dr. Roe about his work restrictions and he told her not to renew them because in December of 2005, while being transported to the hospital, Althouse had told the ambulance attendants that he had used the weight machine on Christmas Eve and he had reported doing push-ups in the past. Althouse filed a complaint about this, saying that the refusal to issue him work restrictions placed his life in danger, but the response was that he had been judged capable of work. Althouse says that he then sent a complaint to the unit risk manager, claiming that he was disabled, and she sent his complaint to the medical department. The reply was that Alt-house’s restrictions were appropriate.

Althouse next says that on June 2, 2006, while “acting on impulse,” he threw some pecan bits from his cell and hit some black inmates in the head. As a result, he was told to move off the pod or he would be jumped on. Sgt. Cooper refused to help him, so he filed a grievance saying that his life was in danger. He was then moved to another cell.

On June 5, 2006, Althouse filed a complaint saying that he did not have appropriate work restrictions for the Celexa (an anti-depressant) and Tegretol (an anti-seizure medication) he was taking. On June 7, 2006, his request for restrictions was denied. The next day, he complained to the chief classification officer for the Michael Unit, Gayle Karriker, about the lack of restrictions, and then filed a grievance. This grievance was investigated by a major, not the warden (in violation of prison policy, Althouse says) and his Step One and Step Two grievances were denied.

On June 16, 2006, Althouse says that he filed a sick call request about the medications he was taking for his prostate. He said that there was a warning in the Physician’s Desk reference not to operate heavy machinery or engage in activity requiring full mental alertness, and said that he had in the past experienced dizziness and that the heat in the kitchen dish room was bothering him. A response said that it had been sent to the provider, but nothing was ever done. That same day, June 16, he was assigned to work in the kitchen.

On June 19, Althouse was seen in the dental clinic for an adjustment and the dentist told him to “invest in a blender” when he got out. That same day, he filed a grievance about his work restrictions.

On June 21, Althouse was seen by Nurse Janie Hill for a series of complaints, including athlete’s foot, lower back pain from working in the kitchen, and shoulder pain. Hill said that she would pass along the complaint about work restrictions to the provider and if this did not work, Althouse should submit a request to Ms. Atwood, the practice manager. Hill also suggested that Althouse send her an inmate request form and she would have him scheduled to see Dr. Kuykendall.

That same day, Althouse’s father emailed a complaint to the Office of the Ombudsman. Eloise Warzecha, administrative assistant, forwarded a copy of the complaint to the Office of Professional Standards, and Althouse’s father was advised that he would get an initial response in 10 days and a final response in 30 days. However, there was no response until August 4, and then only because Althouse’s father wrote complaint letters to some state representatives and to Jeanie Allison.

Meanwhile, on June 25, 2006, Althouse sent an inmate request form to Atwood, the practice manager at the Michael Unit, explaining his situation. He received a response the next day saying that Fleming had stated in his chart that there was no medical indication to unassign him. On June 29, after submitting a dental sick call request saying that he could not chew with his bottom dentures, Althouse was seen by a dentist, Dr. Eliasson, who told him that there was nothing he could do.

On July 5, 2006, Althouse was again seen by Nurse Hill, who said that she would put in for him to be seen by a different provider. However, Althouse says, he was not seen by anyone. Four days later, Althouse requested a “medical shirt” because it hurt him to raise his arm to put on a non-buttoned shirt. He was told that the request had been referred to a provider, but nothing was done.

On July 16 and 17, Althouse says, he submitted complaints and grievances about his dentures. On July 18, he submitted a sick call request about wanting a medical shirt. This request was denied. He also complained that bending at the waist was aggravating his back.

On July 20, 2006, Althouse was seen by a different dentist, Dr. Hughes, who said that there was nothing he could do about the problem with his lower denture. Alt-house asked about a referral to Galveston, and Dr. Hughes said that Galveston was for medical, not dental, problems.

The next day, Althouse was seen by Nurse Karen Johnson, who found on the computer where the orthopedic clinic in Galveston had recommended no lifting and no pushing anything. She suggested that Althouse talk to someone about this when he went to Galveston for his appointment with the thoracic surgeon.

On July 28, 2006, Althouse says that he was seen by Gary Kincade, a psychologist, in response to complaints that his medication was not effective, that he could not hold anything in his memory, and that he could not handle working in the kitchen because it caused agitation and anger. Kincade said that there was nothing he could do for Althouse.

On August 2, 2006, Althouse received a letter from the Northwest District Dental Director, Dr. Collins, recommending that an oral surgeon examine his lower ridge to see if there could be implants of bone or titanium. A copy of this letter was sent to the dentist at the Michael Unit.

That same day, Althouse says that he was seen by a doctor in Galveston, who said that they would not remove the blisters on his lung, but that it was okay for the orthopedic department to operate on his collarbone. Althouse returned to the M