UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
MICHAEL NIXON CIVIL ACTION
VERSUS NUMBER: 16-0821
JERRY LARPENTER, ET AL. O RDER A ND RE ASONSSE CTION: “F”(5)
Before the Court is the motion for summary judgment of Defendants, the Terrebonne Parish Consolidated Government (“TPCG”), Richard Neal (“Neal”), Terrebonne Parish Sheriff Jerry J. Larpenter (“Larpenter”), and Claude Triche (“Triche”), former Warden of the Terrebonne Parish Criminal Justice Complex (“TPCJC”). (Rec. docs. 61. 76). Also before the Court are Plaintiff’s memorandum in opposition to the motion as well as Defendants’ reply. (Rec. docs. 82, 85). Despite scheduling oral argument on Defendants’ motion for May 1, 2019 at 11:00 a.m. (rec. doc. 66) and subsequently continuing the hearing until June 5, 2019 at 11:00 a.m. (rec. doc. 77), no one on Plaintiff’s behalf appeared on the latter date and time to argue the matter, so the matter is being decided on the briefs. (Rec. doc. 86). For the reasons that follow, it is ordered that Defendants’ motion is granted and that Plaintiff’s suit is dismissed. The above-captioned matter had its genesis on January 29, 2016 when Plaintiff, Michael Nixon, through counsel, filed a complaint against Larpenter, Triche, Neal, Dr. Richard Haydel, the Medical Director at TPCJC, the TPCG, and other unnamed individuals and insurance companies, asserting claims under 42 US.C. §1983 and “like claims” arising under state law. (Rec. doc. 1). Plaintiff alleged that “… on or about [the] end of January or beginning of February [of] 2015,” after being arrested and incarcerated at TPCJC since December of Id. gangrene and necrotizing fasciitis of the perineum and right buttock. ( ). Plaintiff stated that he requested medical care “repeatedly” from three “John Doe” Defendants, to no avail, and that when he finally received “medical treatment” from a fourth “John Doe,” a member
of the medical staff at TPCJC, it came only in the form of “small portions of inadequate topical oIidn.tment and band aids” without an actual physical examination of the site of the infection. ( ). As a result, Plaintiff alleged that his condiItdio. n worsened to point that he was forced to drain pus from the infection site himself. ( ). Once released from custody, Plaintiff indicated that he sought treatment from and was ultimately admitted to the Terrebonne General Medical CenterI d(.“TGMC”) where he underwent several surgical procedures including a colostomy. ( ). For the alleged failure of the TPCJC staff to acknowledge and properly treat his medical condition, Plaintiff alleged that the foruers pnoanmdeeda tD seufpeenrdioarnts Iwd.ere
liable to him under both federal and state law under a theory of . ( ). In response to Plaintiff’s original complaint, Defendants Haydel and Neal filed a combined motion under Rules 12(b)(6)/56/12(e), arguing that Plaintiff had failed to exhaust prison administrative reEmsteedlliee vs. pGraimorb lteo1 filingM suointe, ltlh va. tD hepist .a olfl eSgoact. iSoenrsv .were insufficient to / 2/ establish liability under and , and, as to Haydel, that Plaintiff’s claims were premature in that a Medical Review Panel had not been convened under the Louisiana Medical Malpractice Act (“LMMA”). (Rec. doc. 16). That motion was opposed by Plaintiff and subsequently supported by Defendants via a reply memo. (Rec. docs. 21, 24). Following a formal hearing on July 13, 2016, Defendants’ motion was denied in part and granted in part and Plaintiff was ordered to amend his complaint. (Rec. doc. 25).
1 / Pursuant to the Court’s directive, Plaintiff filed an amended complaint in this matter 3/ on July 29, 2016. (Rec. doc. 29). In that pleading, which named the same Defendants as the original complaint, Plaintiff presented essentially the same factual allegations as were set forth in his initial pleading, following which he alleged that Larpenter and Triche acted with deliberate indifference to his medical needs despite knowing or being in a position to have known about the risk of serious bodily harm to him; that, by virtue of the supervisory positions that they held, Larpenter, Triche, Neal, and Haydel, were responsible for the hiring, training, and supervision of those employees who were tasked with providing care to him; and that those four “[p]olicymaking Defendants” knew that the policies, practices, and procedures with respect tIod .the provision of medical care at TPCJC were inadequate but took no corrective measures. ( ). For these alleged instances of neglect, Plairnetsifpfo ansdseeartte sdu cpaeurisoers
oIfd a.ction under §1983 as well as state law pursuant to the doctrine of . ( ). Plaintiff’s amended complaint prompted the filing of a second Rule 12(b)(6) motion by Defendants, Haydel and Neal, which was formally opposed by Plaintiff and was later supported by a reply memorandum. (Rec. docs. 30, 41, 44). Following a hearing on October 26, 2016, the Court dismissed Plaintiff’s federal claims against Haydel and Neal with prejudice as having been insufficiently pled and dismissed Plaintiff’s state-law claim against Haydel without prejudice pending proceedings under the ILdM. MA. (Rec. doc. 45). The case
was stayed and administratively closed for that purpose. ( ).
3 / Although Plaintiff’s amended complaint makes a single reference to his original complaint (recE. daosocn. 2 v9. Hato lpt. 1), because the amended pleadinKgi ndgo evs. Dnoogt asnpecifically adopt or incorporate by reference his initial pleading, ex parte On April 9, 2018, Plaintiff filed an motion to dismiss his remaining state-law claim against Haydel with prejudice and to lift the stay in this matter and return it to the Court’s active docket. (Rec. doc. 46). That motion was granted on April 12, 2018 and the
case as to the four remaining Defendants was reopened. (Rec. doc. 47). In due course, TPCG and Neal filed the present motion, which was later joined in by the other two Defendants, Larpenter and Triche. (Rec. docs. 61, 65). The motion was ultimately scheduled for hearing on June 5, 2019 at 11:00 a.m. and was taken under advisement after Plaintiff was granted an extension of time within which to file an opposition memorandum, which has since been responded to by Defendants, as well as a witness and exhibit list which he had earlier neglected to file. (Rec. docs. 66, 77, 82, 85, 86). Defendants now move for summary judgment as to all of Plaintiff’s claims under Rule
56, asserting various grounds in support. Before turning to those grounds, the Court will recall the legal standards governing summary judgment followed by a discussion of the evidence established by Defendants’ motion. Summary judgment is appropriate under Rule 56(c) when no genuine isCseuleo teoxf mCoartpe.r via. Cl afatcrte tetxists and the moving party is entitled to judgment as a matter of law. , 477 U.S. 317, 106 S.Ct. 2548 (1986). Although all inferences drawn from the evidence are to be resolved in the noSnp-emllmovaann vt’.s S hfaavlaolra, he may not rest on the mere th allegations or denials in his pleadings. , 1 F.3d 357, 360 (5 Cir. 1993). Rather, once a properly supported motion for summary judgment is made, the burden shifts to the non-movant, who bears the burden of proof at trial Ktoa nsshao Rwe inwsiuthra n“’cseig vn.i fCicoanngt. pMroorbtagtaigvee ’ Ceovripd.e onfc Tee” xtahsat there exists a triable factual issue. In re: Municipal Bond th , 20 F.3d 1362, 1371 (5 Cir. 1994)(quoting Reporting Antitrust Litig. th , 672 F.2d 436, 440 (5 Cir. 1982)). That burden is not satisfied by “… ‘some metaphysical doubt as to the material facts,’ … by ‘concluLsitotrley va. lLleiqgautidio Anisr,’ C…o rbpy. ‘unsubstantiated assertions,’ … or by only a ‘scintilla’ of evidence.” , th 37 F.3d 1069, 1075 (5 Cir. 1994)(en banc)(citations omitted). Rather, the nonmovant “… must adduce admissible evidence which creates a fact issue concerning the existence of every esseMntaiattle cro mofp oLnewenistv oilfl teh aPtr oppaertryti’es sc, aIsnec; .naked assertions of an actual dispute will not th suffice.” , 849 F.2d 946, 950 (5 Cir. 1998). The insufficiency of the proof must beP shuicllhip tsh Oaitl iCt ow vo. uOlKdC p Croervpe.nt a rational finder of fact from th cfienrdt.i ndge nfoierd the non-moving party. , 812 F.2d 265, 272-73 (5 Cir.), , 484 U.S. 851, 108 S.Ct. 152 (1987). The competent summary judgment evidence before the Court indicates that Dr. Haydel was appointed by TPCG to be its Medical Director at TPCJC in connection with a “Contract for Professional Services” that was entered into between it and the doctor to satisfy the former’s statutory duty under LSA-R.S. 15:703 to “… attend the prisoners who are 4/ confined in parish jails whenever they are sick.” (Rec. doc. 61-3). Dr. Haydel discharged 4 / That statute provides in full as follows: A. The governing authority of each parish shall appoint annually a physician who shall attend the prisoners who are confined in parish jails whenever they are sick. His salary shall be fixed by the governing au thority. Any physician so appointed shall be licensed as provided in R.S. 37:1271 and shall be a qualified health care provider in accordance with R.S. 40:1231.2. B. In lieu of appointing a physician, the governing authority of any parish may enter into a contract with a health care provider, licensed or regulated by the laws of this state, to provide requisite health care services, as required in this Section. The term “health care provider” as used in this Subsection means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or in stitution licensed or regulated by the laws of this state to provide health care services or professional services as a physician and qualified as such in accordance with R.S. 40:1231.2. C. When a physician has been appointed or a contract for health care services for prisoners has been entered into in accordance with this Section, any action by a prisoner or his representative to recover damages or any other losses, including those for the death of the prisoner, as a result of the actions or inactions of the physician or health care provider in the performance or nonperformance of health care his contractual duties to TPCG by conducting “sick call” evaluations of inmates twice weekly aIndd. by being available to the medical staff 24 hours per day for consultation and referrals. ( ). In addition to its contractual relationship with Dr. Haydel, at all pertinent times TPCG
also employed Neal, a licensed EMT, to serve as the Medical Administrator of the MedIidc.al Department at TPCJC, including the scheduling and management of the medical staff. ( ). According to Neal’s declaration, which was made under penalty of perjury pursuant to 28 U.S.C. §1746, in order to access medical care at TPCJC, an inmate is required to submit a sick- call request to the medical staff, which is either handled by an EMT or one of the members of the nursing staff. The inmate may also be schedIudl.ed to see Dr. Haydel or another physician when on their appointed “sick call” rounds. ( ). In addition to the foregoing sick-call request procedure, inmates also have direct physical contIadc.t with members of the medical
staff twice daily during the dispensing of medication. ( ). The medical staff at TPCJC consists of an unidentified number of nurses and EMTs, Dr. Haydel and another physician, all of whom fuIndc.tion pursuant to certain standing orders and Basic Jail Guidelines issued by the doctors. ( ). The summary judgment evidence further indicates that Plaintiff was arrested and processed into TPCJC on December 16, 2014 on charges of aggravated kidnapping and aggravated assault with a firearm. (Rec. doc. 61-8, pp. 29-47). Upon being medically
D. The sole responsibility of the governing authority of each parish which is mandated by the provisions of this Section with respect to providing health care services for prisoners shall be the appointment of a physician and the payment of the salary of that physician or its contractual obligations with a health care provider selected in accordance with this Section. The parish and its governing authority shall not be liable for any action arising as a result of the actions or inactions of the physician or health care provider, whether ex delicto or ex quasi delicto or ex contractu, by a prisoner or his representative to recover damages or any other losses, including those for the death of the prisoner, unless the governing authority exercises gross screened at TPCJC, Plaintiff was noted to have an elevated blood sugar level and wIda.s thus transported to the L.J. Chabert Hospital where he was given a dosage of insulin. ( ). The TPCJC’s “Medical History and Physical Examination Record” that was generated in
connection with his processing was positive for diabeteIds . and hypertension and past surgeries involving the lower back, left foot, and right leg. ( ). Plaintiff was on Lantus and Lasix at the time and the screening documents indicate that members of the TPCJC Medical Department made a series of Ipdh.one calls to local pharmacies to confirm the medications that Plaintiff was then taking. ( ). As part of the medical screening process, Plaintiff was administered a TB test, was prescribed a 2000-calorie diabetic diet that included reduced salt intake, fresh fruit, and an evening snack, and modifications were made to Ihdi.s footwear to accommodate a partial left foot amputation he had undergone previously. ( ). Notably,
the TPCJC mIde.dical screening documents were negative for any boils, rash, discharge, or open wounds. ( at p. 36). Notes from the TPCJC Medical Department reflect that on December 18, 2014, a staff member calledI dD.r. Haydel for consultation on how best to deal with Plaintiff’s elevated blood sugar levels. ( at p. 28). As a result of that consultation, the dosage of Plaintiff’s MetIfodr.min was increased and Amaryl was added along with a sliding-scale dosage of Humalog. ( ). In a subsequent note dated December 25, 2015, a member of the Medical Department documented that Plaintiff was very aggravated during the morning medication pass that day,
requesting that he be taken to the hospital Ifdo.r treatment of constipation from which he alleged to have been suffering for 10 days. ( at p. 27). The reporting official noted that Plaintiff had only brought this complaint to the attention of the Medical Department the previous day and he was advised to use over-the-counter laxatives that were available to Id. inmates for purchase from the jail commissary. ( ). When asked to take the medication that was being dispensed to him, Plaintiff became “very aggressive,” cursing out Itdh.e attending health care provider and requesting again to be taken to the hospital. ( ).
Plaintiff was inIfdo.rmed that inmates are simply not sent to the hospital for treatment of constipation. ( ). The following day, Plaintiff again complainedI tdo. a member of the Medical Department that he had not had a bowel movement in 14 days. ( at p. 26). Plaintiff was given a dosage of magnesium citrate, was instructed to increase hisI dw.ater intake, and was advised to contact the Medical Department if his problem persisted. ( ). On December 28, 2014, a member of the Medical Department updated Plaintiff’s file by documentiIndg. that he was to be seen by a physician to address his elevated blood pressure readings. ( at p. 25). Plaintiff wIads. duly
seen by Dr. Haydel three days later who ordered that he be restarted on Lantus. ( at p. 24). On January 25, 2015 at 10:00 a.m. Plaintiff completed his first “Request for Medical Attention Form” (“sick call form”) in which he expressed a need for reading glaIdss.es as well as the addition of liver to his diet twice per day due to a blood condition. ( at p. 20). Plaintiff was seen by a member of the medical staff six hours later who advised him to have a family memIbde.r bring him reading glasses or to purchase them through the TPCJC commissary. ( )I. d H. e was also referred to the kitchen staff about the reported need for liver
twice per week. ( ). Plaintiff completed his secoIndd. sick-call request form two days later in which he renewed his need for reading glasses. ( at p. 19). He was seen by a member of the medical staff on January 9, 2015 who investigated the matter and determined that although Plaintiff was in possession of eyeglasses upon his admission to TPCJC, there was no Id. documentation regarding the location or disposition of the spectacles. ( I)d. . Plaintiff was again instructed to obtain reading glasses through the prison commissary. ( ). The next notation to Plaintiff’s TPCJC medical file was not made until February 10,
2015 when Plaintiff completed his third siIcdk.-call request form reporting a bad cold and a need for medication to control his cough. ( at p. 16). Plaintiff was evaluated by a member of the Medical Department later that same day who observed no signs of nasal congestion at the time and thus instruIcdt.ed Plaintiff to purchase over-the-counter medications from the commissary for relief. ( ). Plaintiff was seen again by Dr. Haydel on March 24, 2015 for monitoring oIfd h. is blood sugar levels which were elevated in the afternoon but lower in the morning. ( ). The assesIsdm. ent was diabetes mellitus and hypertension; Plaintiff’s medications were adjusted. ( ). He completed another sick-call rIde.quest form on March 29,
2015, this time complaining of a runny nose and a bad cough. ( at p. 10). Plaintiff was seen by an EMT later that day who advised him to purchase over-the-counter medicatiIodn.s for his complaints after noting no symptoms of nasal congestion or cough at that time. ( ). Plaintiff completed his fifth and final sick-call request form on March 30, 2015, citing a bad cough and a runnIyd n. ose as well as “… a staff (sic) on my leg by my butt …” that made it difficult to sit or walk. ( at p. 9). He was seen by an EMT later that same day who dIida.gnosed Plaintiff with a boil to the buttocks and placed him on a 10-day course of Bactrim. ( ). With the exception of medication flow sheets which reflect the dispensingi do.f various medications,
including Bactrim, to Plaintiff over the course of the next two days ( at pp. 4-6), the TPCJC records provided to the Court contain no further documentation respecting the provision of medical care to Plaintiff. He was released from TPCJC on April 1, 2015. (Rec. doc. 61-2, p. 3). Eight days after his release Plaintiff presented to the Terrebonne General Medical Center (“TGMC”) Emergency Department (“ED”) complaining of a boil on his left leg. Although a “Sign-In Form” included in the mass of TGMC records that have been provided to
the Court contains a notation that the problem had started two weeks earlier (Ex. C, p. 251), the attending physician’s two-page note indiIcda.tes that the abscess to Plaintiff’s left buttock had manifested itself only five days earlier. ( at pp. 217-218). The more detailed, six-page “Emergency Department Chart” of that date contains a listing of medical problems from which Plaintiff had suffered in the past Iidn.cluding abscesses of the face and chin, an epidermoid cyst, and cellulitis of the foot. ( at pp. 207-212). Following his evaluation by Dr. Brian Roberts, Plaintiff was diagnosed with an abscess and was prescribed a Icdo.urse of Bactrim, the very same medication he had received at TPCJC prior to his release. ( ).
Plaintiff returned to the TGMC ED on May 2, 2015, this timIde .complaining of symptoms of an upper respiratory infection of one to two days’ duration. ( Id a.t pp. 250, 215-216, 202- 206). A chest x-ray was taken, which produced normal results. ( at p. 244). Plaintiff was administered an injection of Decadron and a dosage of Tylenol whIilde. at the ED and was prescribed Zithromax and cough medicine at the time of discharge. ( ). Plaintiff was seen again at the ED the very next day, this time for an absceIds.s to the right buttock for the previous three days which was reported to be draining pus. ( at pp. 249, 213-214, 243, 197-201). A testicular ultrasound was performed anIdd .was largely unremarkable, except for findings
possibly suggestive of mild epididymitis. ( ). Following the administration of Lidocaine to the affected areas, incisions and drainage of the abscesses wIda.s performed and Plaintiff was discharged with prescriptions for Bactrim DS and Lortab. ( ). The diagnosis at the timIed o. f discharge was a three-centimeter abscess to the right medial buttock and epididymitis. ( ). On May 5, 2015, PlainIdti.ff again presented to the TGMC ED with complaints of swelling to the testicles and penis. ( at pp. 2513, 2017-2072, 2073-2074, 2065-2070, 2059-2064, 2054-2058). During the course of triage, Plaintiff recalled havinIgd b. een told at the ED that his
previously-diagnosed abscess was “an infection from a hair.” ( ). The clinical impression was cellulitis and uncontrolled diabetes and thIed .decision was made to admit Plaintiff to the hospital for administration of IV antibiotics. ( ). Following consultations with additional physicians over the next two days, Plaintiff was diagnosed witIhd .a perineal abscess, scrotal swelling, Fournier’s gangrene, hypertension, and diabetes. ( at pp. 2189-2190, 2191- 2192). On May 7, 2015, Plaintiff underwent extensive debridement of the scrotum and right buttocks; the post-operative diagnosis was severe necrotiIzdin. g fasciitis of the perineum, scrotum, and right buttocks typical of Fournier’s gangrene. ( at pp. 2286-2287). A wound
dressing change and further debridement were done on May 9, 2015 and a diverting cIodl.ostomy and extensive debridement of the perineal wound were performed two days later. ( at pp. 2292, 2288). Additional wound dressing changes and debridements were performed oIvde.r the succeeding days and a partial closure of the wound site was done on May 20, 2015. ( at pp. 2293, 2297, 2174, 2289, 2187, 2294). On May 22, 201I5d,. the wound dressing change was performed without the necessity of general anesthesia. ( at p. 2295). Plaintiff’s condition continuedI dt.o improve and a secondary closure was successfully performed on May 29, 2I0d1.5. ( at pp. 2049-2053, 2361). Plaintiff was discharged from
TGMC on June 1, 2015. ( at pp. 2049-2053, 2361). Plaintiff subsequently received post-operative care aIdt .TGMC throughout the month of June, including the removal of sutures on June 18, 2015. ( at pp. 104-106, 143, 118, 140- 142, 122). Following a wound evaluation on September 1, 2015, Plaintiff underwent a successful inpatient colonoscopy reversal onI dS.eptember 14, 2015, ultimately being released from the hospital on September 21, 2015. ( at pp. 547-549, 598-601, 602, 573-575, 557- 558, 554-555, 546).
Having summarized the medical evidence pertaining to Plaintiff’s skin condition, the Court now turns to the grounds for dismissal raised by Defendants’ motion and the arguments offered by Plaintiff in opposition. Defendants first argue that Plaintiff has not provided an adequate basis for holding TPCG liable under §1983 because he has failed to identify a policy or procedure that was the moving force for the violation of a constitutional right. (Rec. doc. 61-1, pp. 8-11). TPCG also argues that it is immune from any state-law claims asserted by Plaintiff under two state statutes, LSA-R.S. 15:703 and 9:2798.1. TPCG, as a local governing entity, is considered to be a “person” wMitohninel lthe meaning
of §1983 and is therefore subject to suit under that civil rights statute. , 436 U.S. at 692, 98 S.Ct. at 2036. However, a governmentrael sbpoodnyd eliakte s uTpPeCrGio mr ay not be held liable fIodr. the actions of its employees under a theory of or vicarious liability. at 691-94, 98 S.Ct. at 2036-38. Rather, such a governmental body may be held liable under §1983 only “… when execution of a government’s policy or custom …Id .inflicts the injury that 5/ the government as an entity is responsible [for] under §1983.” Thus, to establish municipal liability under §1983, a plaintiff must prove three elements: 1) an official policy or custom, of which 2) a policymaker can be charged with actual or constructivVea kllneo vw. Cleitdyg oef, aHnodu s3t)o na constitutional violation whose moving foPricnee disa t vh.a Cti tpyo olifc Hy oours ctuonstom. th , 613 F.3d 536, 541 (5 Cir. 2010)(citing , 291 F.3d 325, 328 Conner v. Travis County 5C / i t y o f C a n t o n v . H a r r i s Breaux v. City oft hGarland The same is true for supervisory officials. , 209 F.3d 794, 796 (5 Cir. 2000)(citing th (5 Cir. 2002)). The first element of the three-part municipal liability test may come in the form of: 1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officer or by an official to whom the lawmakers have delegated policymaking authority; or,
2. A persistent, widespread practice of city officials or employees which, although not authorized by officially adopted and promulgated policy, is so common and well-settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policymaking authorityJ.o hnson v. Moore
, 958 F.2d 92, 94 th (5 Cir. 1992).
With respect to the second element, a plaintMifaf mlonuest ve.s tCaibtyli sohf tFhoartt t hWeo idrtehn, tTifeiexda spolicy came from a policymaker of the municipality. , 297 F.Supp.3d 645, 653 (N.D. Tex. 2018). A policy or custom can said to be “official” for purposes of §1983 when it results from the decision or acquiescence Iodf .the municGiproasl ovf. fCicitiay lo of rG braonddy wPriathir “iefinal policymaking authority” of the offending policy. (quoting th , 181 F.3d 613, 615 (5 Cir. 1999)). In situations where the policy results from a persistent, widespread practice or custom that is so common as to be said to represent municipaHli cpkosl-iFciye,l dasc tvu. aHla orrri sc oCnoustnrtuyctive knowledge of such practice or custom must be th shown. , 860 F.3d 803, 808 (5 Cir. 2017). “Actual knowledge may be shownI db.y such means as discussion at council meetings or receipt of written information.” Constructive knowledge, on the other hand, may be attributable to the governing body on the theory that it would have known of the violation had it properly exercised its responsibilities where, for example, the violations were so persistent and widespreaIdd .that they were the subject of prolonged public discussion or a high degree of publicity. Finally, to establish municipal liability, a plaintiff must demonstrate that the
governing entity, through its deliberate conduct, was the “moving force” behind the injury alleged; plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstratMe aal odnireect causal link between the municipBaol aprodli coyf aCnodu tnhtey dCoepmrmiviastsiioonn eorsf offe dBeryraaln rCioguhntst.y , Oklahom, a2 9v.7 B Fro.Swunpp.3d at 655 (quoting , 520 U.S. 397, 404, 117 S.Ct. 1382, 1388 (1997)). “For a municipailtisteyl fto be liable on account of its policy or custom, the plaintiff must show that (1) the policy violated federal law or authorized or directed the deprivation of federal rights, or (2) the policy was adopted or maintained with deliberate indifference as
to the known orI do.bvious consequence that it would result in the violation of someone’s federal rights.” In the latter situation, a demonstration of at least a pattern of similar violations of federal rights is generally required as a single, or even handful of violations, will not be enough for a court to conclude that the municipality mainItda.ined a policy with deliberate indifference to the rights of persons within its jurisdiction. Pertinent to the matter at hand are two theories under which the existence of an official policy might possibly be established. “In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating cCiotinznenicsk’
rvi. gThhtosm mpasyo nrise to the level of an official government policy for purposes of §1983.” , 563 U.S. 51, 61, 131 S.Ct. 1350, 1359 (2011). Nevertheless, the Supreme Court has emphIads.ized that municipality liability based on a failure-to-train theory is at its most tenuous. An inadequate training program or a failure to train, if shown to be an official policy or custom of which a municipality has knowledge, may serve as the basis for §1983 liability only where inadequate training amounts to deCliibtye roaft Cea inntdoinff evr. eHnacrer itso the rights of the persons with whom authorities come into contact. , 489 U.S. 378,
388, 109 S.Ct. 1197, 1204 (1989). Thus, to hold a municipality liable under §1983 based on a policy of inadequate training, a plaintiff must demonstrate that: 1) the municipality’s training policy was inadequate, 2) the municipality was deliberately indifferent in adopting its trainingK iptochliecny ,v a. nDda l3la)s tChoeu inntaydequate training policy directly caused the constitutional th violation. , 759 F.3d 468, 484 (5 Cir. 2014). Deliberate indifference in this context may be shown by demonstrating that a municipality had notice of a pattern of similar violaMtiaolnosn eand that it failed to change its training methods in the face of such incidents. , 297 F.Supp.3d at 655-56. Alternatively, a plaintiff may establish indifference based upon a single incident in the narrow range of circumstances where a constitutional violation isK iltickheelyn to result as the highly predictable consequence of a particular failure to train. , 759 F.3d at 484. The second theory potentially implicated in the instant matterM isa ltohnaet of establishing a policy or custom of a failure to supervise or inadequate supervision. , 297 F.Supp.3d at 656. To prevail on a failure-to-supervise theory, a plaintiff must show that: 1) the supervision policies of the municipality were inadequate, 2) the municipality was deliberately indifferent in adopting such pIodl.icies, and 3) the inadequate supervision policies
directly caused the plaintiff’s injuries. “Proof that a single constitutional violation resulted from inadequate supeIdr.vision isT ohrodminpasroinly vi.n Usupfsfhicuire nCto uton thyold a municipality liable th for inadequate supervision.” (citing , 245 F.3d 447, 459 (5 Cir. 2001)). Typically, the plaintiff must demonstrate a pattern of similar violations to establish the deliberate indifference required to impose municipal liability for failure to supervise because only when a failure to train or supervise reflects a “deliberate” Iodr. “consciCoiutsy” o cfh Coainceto cnan the governmental entity be liable for such a failure under §1983.
(citing , 489 U.S. at 388-89, 109 S.Ct. at 1205). The need for more or different training or supervision must be so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the municipality can reasonably be said to have been deliberately indifferent to the need, and the failure to provide proper training or suIpde.rvision may fairly be said to represent a policy for which the municipality is responsible. (quotations and citations omitted). With the foregoing standards in mind, the Court must now determine whether the competent summary judgment establishes municipal liability on the part of TPCG. In his
supplemental and amended complaint, Plaintiff alleged, in a wholly conclusory fashion, that “[p]olicymaking Defendants Larpenter, Triche, [and] Neal … knew that the policies, practices, and procedures with respect to medical care at the Terrebonne Parish Criminal Justice Complex were inadequate and posed a danger of serious bodily injury to detainees there” and “… took no action to correct these policies, practices, and procedures.” (Rec. doc. 29, p. 6). Plaintiff does not identify precisely what the objectionable policies, practices, or procedures were or how or when they came into existence, nor does he suggest what action could have been taken to remedy their supposed infirmity. Unfortunately for Plaintiff,
simply alleging that a policy exists is insufficient to carry the day: “[e]ach and any policy wPihoitcrho walslkeig evd. lyC ictayu soef dH coounssttoitnutional violations must be specifically identified by a plaintiff.” th , 237 F.3d 567, 579-80 (5 Cir. 2001). Morever, “[t]he description of a policy or custom and its relationship to the underlying constitutional Spiller v. City of Texas City violation … cannot be conclusory; it Mmeuysetr c ov.n Ctaoifnfe sypecific facts.” , th 130 F.3d 162, 167 (5 Cir. 1997); , 231 F.Supp.3d 137, 148-49 (N.D. Tex. 2017). The allegations presented in Plaintiff’s amended complaint fall woefully short of that standard and his memorandum in opposition to Defendants’ motion does not remedy that shortcoming. With respect to the second element of municipal liability, the burden remains on Plaintiff to identify the positive law or evidence of custom demonstrating that Larpenter, Triche, anMde yNeeral were indeed the final policymakers responsible for the action or inaction alleged. , 231 F.Supp.3d at 147-48. That showing is not apparent from a review of Plaintiff’s operative pleading. Although Plaintiff generally alleged, earlier on in his amended complaint, that Larpenter, Triche, and Neal were responsible for properly hiring, training, 6/ and supervising employees of TPCJC (rec. doc. 29, p. 5), he failed to identify precisely what those hiring, training, and supervisory practices were and to explain how they were inadequate. Nor does Plaintiff identify any prior incidents of a similar nature that were known by the Defendants and were allowed to go uncorrected such that their failure to do so could be equated with deliberate indifference. Inasmuch as the summary judgment evidence establishes that Plaintiff did, in fact, receive medical care throughout the duration of his stay at TPCJC, certainly noC aarrgduenabasle v c. Llaeiem C poruenmtyi,s Teedx uapson a custom of denying medical th care to inmates would lie here. , 569 Fed.Appx. 252, 255-56 (5 Cir. 2014). More fundamentally, without expert medical testimony to opine on the existence and cause of any medical condition from which Plaintiff allegedly suffered at TPCJC, no 6 / As for Sheriff Larpenter, Plaintiff’s factually unsupported allegations went even further: not only was he rational juror could find that he had a serious medical need while he was hRouutlseeddg teh ve.r Jea, cmksuocnh less that the Defendants were deliberately indifferent to any such need. , No. 06-CV-0064, 2009 WL 311149 at *3-4 (S.D. Miss. Feb. 6, 2009). Even if he had, an expert’s
opinion, standing alone, is generally inTshuofmficpiseonnt vt.o U epssthaubrl iCsohu dnetyli,b TeXrate indifference based th upon a lackC oof ntrnaeirn vin. Tg roarv sisu pCoeruvnitsyion. , 245 F.3d 447, 459 (5 th Cir. 2001); , 209 F.3d 794, 797-98 (5 Cir. 2000). In his belated opposition to Defendants’ motion, Plaintiff concedes that TPCG is not vicariously liable for the actions of the medical care providers at TPCJC. (Rec. doc. 82, p. 3). Thereafter, he advances for the first time a theory of liability that is found nowhere in his original or amended complaints: “… that Terrebonne Parish is directly liable under §1983 for hiring CorrectHealth because the parish allegedly knew the company would proIdv.ide 7/ ‘grossly negligent and unconstitutionally infirm’ medical care to inmates at TPCJC.” ( ). Just like Plaintiff’s allegations regarding the existence of a policy or custom, his equivocal hiring-related allegations are wholly conclusory and lacking in supporting facts. He provides the Court with no evidence of prior incidents of a similar nature of which TPCG had knowledge and ignored so as to amount to deliberate indifference. Plaintiff also fails to explain how TPCG’s hiring policies were insufficient and he points to no opinions from an expert in the field of hiring practices setting forth how alternative procedures would have resulted in a different outcome. Without such expert testimony, Plaintiff is unable to carry his burden of proving thFeu slmtaenrd va.r Udn oift ecda rSet attoe ws hich he has entitled, breach of that standard of care, and causation. , No. 17-CV-15943, 2019 WL 1989233 at 5-8 7 / In addition to the novelty of this theory, this is the first mention of an entity called CorrectHealth in this case. Rutledge (E.D. La. May 6, 2019); , 2009 WL 31149 at *4. The two fundamental requirements for holding a municSipnaylditeyr vli.a Tbrleep faogrn iineradequate hiring – culpability and causation – are th wholly absent here. , 142 F.3d 791, 795 (5 Cir. 1998). The second basis for Plaintiff’s opposition to Defendants’ motion is as novel as his first in terms of its audition in a memorandum rather than in pleadings previously filed in this case. Plaintiff acknowledges that an entity like TPCG may contractS eaeway the rsuesppraonsibility for providing medical care to inmates under R.S. 15:703(B). ( note 4, ). Plaintiff focuses in on the following two provisions of the contract between TPCG and Dr. Haydel which provide that: 9. Inmate health complaints will be collected daily and evaluated the same day by a nurse under the supervision of the Jail Physician.
10. The doctor will conduct sick call in the jail whenever necessary at the request of the medical assistant (nurse).
(Rec. doc. 61-3, p. 8).
Plaintiff maintains that the foregoing two contractual provisions are at odds with the following two sections of the Louisiana Administrative Code: D. Treatment given by other than a licensed physician shall be made by trained personnel according to written, standing or direct orders of the physician in charge.
* * * * * * * * * * * * * * * *
F. Inmates shall have access to routine health care by a physician within 48 hours after making such request.
(Rec. doc. 82-3, p. 1)(citing Louisiana Administrative Code Title 22, Part III, §2909(D) and (F)).
Plaintiff argues that an inconsistency exists between the above-cited contractual and was inconsistent with state law and thus demonstrates that TPCG was “grossly negligent in contracting for substandard medical care for inmates at the TPCJC.” (Rec. doc. 82, p. 5). As noted above, withhoeut the opinion from an expert in the field, Plaintiff is unable to
establish that the care that received at TPCJC was substandard in any respect or even that any medical need that he had while he was housed there was “serious” in a constitutional sense. What is clear is that the failure of governmental officials to fulfill their duties uPnodnecer svt. aLtoeu liaswia noar cDoenpttr.a ocft Cdoorerse nctoiot ngsive rise to a federal constitutional claim under §1983. vacated and remanded , iNn o.p 1a0rt- CoVn- 1o4t7h8e,r 2 0g1ro3u WndLs 3227020 at *2 (W.D. La. Jul. 1, th 2013), Meyers v. Klevenhagen , 590 FReedy.eAsp vp. xH. a4le4 C4o u(5nty JCaiirl. th 2015)(citing , 97 F.3d 91, 94 (5 Cir. 1996)); , No. 03-CV-0180, 2003 WL 22670929 at *2 (N.D. Tex. Sept. 16, 2003). A violation of the Louisiana AdministrativeA lCleond ev . iSst . sTiammpmlya nnyo tP aorfi shconstitutional magnitude so as to be actionable under §1983. a dopted , No. 17-CV-4091, 2018 WL 558503 at *3 (E.D. La. Jan. 2, 2018), , 2018 WL 537495 (E.D. La. Jan. 24, 2018). It is also clear that a claim of negligence or even gross negligDeenlcgea ddoo evs. nUonti tiemdp Slticaatetes tMhaer Cshoanlstitution and does not provide a basis for a §1983 claim. appeal dis’d , No. 12-CV-0347, 2014 WL 4387344 at *7 (W.D. La. Sept. 3, 2014), , 618 th Fed.Appx. 236 (5 Cir. 2015). The express wording of R.S. 15:703(D) also renders TPCG immune from state tort claims as a result of the action or inaction of the contracting health care provider absent a showing of gross negligence or willful misconduct and proof that “… sBueclchh gerro vs. sL nopeginlitgoence or willful misconduct was a substantial factor in causing the iBnujusrhy v.”. LaFourche Parish ,C Nouon. 1ci8l-CV-7368, 2018 WL 5847822 at *3 (E.D. La. Nov. 8, 2018); , No. 09-CV-3436, 2012 WL 258591 at *2-3 (E.D. La. Jan. 26, 2012). Without the opinion of an expert, Plaintiff is unable to make that showing. Furthermore, as Plaintiff advances no challenge to Dr. Haydel’s licensure, or that of any of the other health care providers at TPCJC, upon contracting with the doctor TPCG fulSfeilrliegdn yi tvs. Lsatafotuurtochrye
oPbalriigsaht Gioonv ’ut nedx erre lR. .RSa. 1n5d:o7l0ph3 and is thus immune from state tort liability. th , 547 Fed.Appx. 582, 583-85 (5 Cir. 2013). Plaintiff did not allege in his amended complaint that Neal, Larpenter, and/or Triche were in any way personally involved in the acts or omissions giving rise to his claims. That being the case, PlaiSnetrififg nhya vd. LnaoF ovuiarcbhlee P§a1r9is8h3 G colva’itm exs raegl.a Rinasntd othlpohse Defendants in their individual capacity. , No. 10-CV-3205, 2014 WL 2215744 at *5 (E.D. La. May 28, 2014). Such supervisory officials, as well as TPCG, cannot be held liable for constitutional violations committed by parishC oanuntheorrities unless those violations result directly from a municipal custom or policy. , 209 F.3d at 796. Plaintiff, however, has identified no parish policy, pracMtiocnee, llor cAuustthoemm etnhta t vc. aPuasreidsh t hoef dTaermreabgoesn nhee claims in the manner contemplated by . adopted , No. 09-CV-4618, 2010 WL 1930943 at *6 (E.D. La. Mar. 19, 2010), , 2010 WL 1930938 (E.D. La. May 10, 2010). Otherwise, to establish municipality or supervisory liability in a single-episode case like this one, Plaintiff must demonstrate deliberate indifference by showing that an official was aware of facts from which an inference of substantial risk of harm could be drawn, that Tthheo mofpfiscoinal drew that inferenceC, aarndde nthaast the
official subjectively intended that harm occur. , 245 F.3d at 458-59; , 569 Fed.Appx. at 255. That weighty showing has not been made here. TPCG is also entitled to immunity from Plaintiff’s state law claims under R.S. 15:703. And without an expert to support his claims and to rebut the opinions of Defendants’ expert, Plaintiff is unable to establish the standards of care to which he was entitled, a brFeualcmhe orf those standards, and causatRiount lseod gaes to prevail on any federal or state law claims. , 2019 WL 1989233 at *7-8; , 2009 WL 311149 at *3-4. The expectedly self-serving nature of the
allegations present in the declarations provided by Plaintiff do not alter the Court’s conclusionvse la nso tnhe allegations are lacking in corroborating facts and do not speak to the existence of an unconstitutional policy, practice, or custom. For all these reasons, it is ordered that Defendants’ motion is granted and that Plaintiff’s suit is dismissed. Judgment will be entered accordingly. 13th July New Orleans, Louisiana, this day of , 2019.
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE