United States District Court, Eastern District of Louisiana
ERNEST BILLIZONE. SR.
JEFFERSON PARISH CORRECTIONAL CENTER, ET AL.
ORDER AND REASONS
SALLY SHUSHAN UNITED STATES MAGISTRATE JUDGE
Plaintiff, Ernest Billizone, Sr., filed this civil action pursuant to 42 U.S.C. § 1983 against several defendants. In this lawsuit, he asserts various claims arising from his confinement at the Jefferson Parish Correctional Center. All parties have consented to the jurisdiction of the undersigned United States Magistrate Judge.
One of the defendants, Jean Llovet, filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Because she presented matters outside of the complaint for the Court's consideration, her motion was converted into one for summary judgment. See Fed.R.Civ.P. 12(d). Plaintiff opposed that motion,  and Llovet filed a sur-reply.
In reviewing a motion for summary judgment, the Court may grant the motion when no genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). There is no "genuine issue" when the record taken as a whole could not lead a rational trier of fact to find for the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
"Procedurally, the party moving for summary judgment bears the initial burden of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and brackets omitted). The party opposing summary judgment must then "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56); see also Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to search the record for evidence to support a party's opposition to summary judgment; rather, "[t]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Conclusory statements, speculation, and unsubstantiated assertions are not competent summary judgment evidence and will not suffice to defeat a properly supported motion for summary judgment. Id.; Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).
In his original complaint, plaintiff stated his claim against Llovet as follows:
I've been in severe pain, as upon my initial examination of Medical on my arrival in intake booking I informed them that I was diagnosed with disc erosion in my lower lumbar and I am usually given Naprosyn and 800 mg Motrin, but I have been given nothing and I also have a rotor cuff strain in my right shoulder. No meds administered and I've told medical and sent in a medical request to no avail. One nurse has really been trying to help me but she can't administer meds and this is what I need for my condition, in violation to my 8th Amendment, cruel and unusual punishment, deliberate indifference, failure to act and provide prompt or proper medical treatment, failure to supervise on Jean Lovett [sic].
In his amended complaint, he further alleged:
Here at Jefferson Parish Correctional Center Ms. Jean Lovett [sic] is failing to properly train or supervise some of her staff doctors and nurses that come to see you on the tiers and the ones in the infirmary. Their attitudes towards the inmates are nasty and unethical and very unprofessional. I myself was made to suffer unduly by not providing me with prompt nor proper medical attention. I was not given any meds for my chronic back pain and these medical problems are logged in their records and has been documented for years. Usually when you come in for intake booking on your initial exam they set everything up, and I made sure I told them yet, I was ignored and made to suffer and had to write up a sick call to get charged an additional five dollars to walk down to medical to give them the same information I gave initially. I was in severe pain for over a month before they decided to give me any medication for pain then they only gave me Motrin which did not alleviate the pain so I continue to suffer. I informed them I was taking Flexeril and Naprosen and she told me I wasn't getting that here. All in violation to my 8th and 14th Amendment to U.S. Constitution, cruel and unusual punishment, deliberate indifference, and due process and equal protection of the law.
In her motion, defendant Llovet argues that there has been no underlying constitutional violation in this case. As she notes in the motion, an inmate's right to medical care under the United States Constitution is extremely limited. Specifically, regardless of whether an inmate is a pretrial detainee or a convicted prisoner, his constitutional right to medical care is violated only if his serious medical needs are met with deliberate indifference on the part of penal authorities. See Thompson v. Upshur County, Texas, 245 F.3d 447, 457 (5th Cir. 2001); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). Llovet argues that plaintiff has shown neither a "serious medical need" nor "deliberate indifference." She is correct.
The United States Fifth Circuit Court of Appeals has explained that "[a] serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required." Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006). Although unpleasant, plaintiff's back pain and shoulder pain simply do not rise to the level of "serious medical needs." See, e.g., Claudet v. Jones, Civ. Action No. 10-87, 2010 WL 4365512, at *4 (E.D. La. Oct. 27, 2010) (Zainey, J.) ("Several courts also have found that neck and back pain are not serious medical needs.").
Further, even if plaintiff's back pain and shoulder pain were found to constitute "serious medical needs, " those needs were not met with "deliberate indifference." Regarding the "deliberate difference" requirement, the United States Fifth Circuit Court of Appeals has explained:
Deliberate indifference is an extremely high standard to meet. It is indisputable that an incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference. Rather, the plaintiff must show that officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs. Furthermore, the decision whether to provide additional treatment is a classic example of a matter for medical judgment. And, the failure to alleviate a significant risk that the official should have perceived, but did not is insufficient to show deliberate indifference.
Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quotation marks, brackets, and citations omitted). "Deliberate indifference encompasses only unnecessary and wanton infliction of pain repugnant to the conscience of mankind." McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. ...