Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brewer v. Ard

United States District Court, M.D. Louisiana

January 14, 2015



JAMES J. BRADY, District Judge.

Defendants, Jason Ard and Major Perry Rushing, move for this Court to dismiss all claims asserted against them under 42 U.S.C. § 1983 by Plaintiff, Robert Charles Brewer, Jr. (doc. 1). All responsive briefs were considered for purposes of this ruling.


"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading is plausible when the plaintiff pleads "factual content" that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id . at 663. When a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id . (quoting Twombly, U.S. at 557 (2007)). "In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff." Davis v. Bellsouth Telecomm., 2012 WL 2064699, at *1 (M.D. La. June 7, 2012) (citing Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996)).


Plaintiff was detained, awaiting trial, from July 3 to December 27, 2013 (doc. 1, at 3).[1] On April 12, 2013, prior to his detention at Livingston Parish Detention Center, Plaintiff was severely injured when he, as a bystander, was shot. When Plaintiff was arrested his jaw was wired with various plates and hardware. Plaintiff had a feeding tube in his stomach, a brace on and other various hardware in his knee, a tracheostomy stoma in his throat, and he was only ambulatory with the aid of a walker. Plaintiff was taking pain relief medicine and antibiotics. Plaintiff presented paperwork to the detention center showing he had appointments scheduled at LSU Medical Center for follow-up care. Plaintiff alleges that he missed medical appointments and received lax medical care. These actions and inactions allegedly caused Plaintiff to suffer improper healing, irreversible and painful damage, and infection, as well as, mental anguish (doc. 1, at 4-5).

Plaintiff asserts claims under 42 U.S.C. § 1983 against various Defendants. As to Major Perry Rushing, John Doe Deputies, and John Doe Healthcare Providers, Plaintiff alleges that these Defendants had actual notice of Plaintiff's injuries and acted with deliberate indifference to his rights, health, and safety (doc. 1, at 5). Plaintiff argues that his constitutional right to adequate medical care during the course and scope of his detention was violated. Plaintiff also asserts claims under 42 U.S.C. § 1983 against Major Perry Rushing and Jason Ard, who, during the relevant times, served as Warden and duly elected Sheriff of Livingston Parish, respectively. It is Plaintiff's argument that the policies implemented explicitly or implicitly by these two Defendants resulted in the failure to provide Plaintiff with reasonable medical care (doc. 1, at 5). Plaintiff claims that at the relevant times, Major Perry Rushing, John Doe Deputies, and John Doe Healthcare Providers were employees and/or acting under the direction and supervision of employees; thus, their actions and unlawful conduct are imputed to the Parish of Livingston and the Livingston Sheriff Department under the doctrine of respondeat superior (doc. 1, at 6).

Defendants, Ard and Rushing, consider these allegations as stated in the Plaintiff's complaint and urge that they are nothing more than conclusory allegations, insufficient to state a cause of action against these Defendants. Accordingly, Defendants urge that Plaintiff's claims should be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.


i. Official Capacity: Sheriff Ard and Major Rushing

Defendants claim Plaintiff failed to state a claim against Sheriff Ard and Major Rushing in each Defendant's official capacity (doc. 10-2, at 7 and 15). The United States Supreme Court has made clear that "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity...[thus, ] a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself" (doc. 10-2, at 7-8 citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)). It is undisputed that in order for Plaintiff to establish liability based on Defendants' official capacity, there are three elements that must be established: "a policy maker; an official policy; and a violation of constitutional rights whose moving force is the policy or custom" (doc. 10-2, at 8 citing Zarnow v. City of Wichita Falls, TX, 614 F.3d 161 (5th Cir. 2010), citing Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)).

It is undisputed that the first element is established in that Sheriff Ard was a policymaker for the Livingston Parish Sheriff's Office. Major Rushing, however, is merely an employee of the municipality (doc. 10-2, at 15). Major Rushing was Warden of the Livingston Parish Detention Center at the time of Plaintiff's detention, but there are no factual allegations suggesting that this position made Major Rushing a policymaker for the Livingston Parish Sheriff's Office (doc. 10-2, at 15). Plaintiff's Opposition concludes that Major Rushing is "plausibly more of a policymaker than Sheriff Ard...addressing the individual medical needs of a detainee, coordinating transportation to and from medical appointments on behalf of prisoners, and distribution of pharmaceuticals to detention center residents" (doc. 16, at 18). Plaintiff attempts to support his conclusion by citing a United States Supreme Court decision that merely provides an example of when someone other than the Sheriff can be considered the policymaker for the Sheriff's Office. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483, n.12 (1986). Pembaur illustrates an important distinction between decision-making and policy-making authority. Major Rushing may have had decision-making authority as the Warden, but that does not grant him the authority to establish policies within the Livingston Parish Sheriff's Office (doc. 19, at 13).

Defendants argue that the second element is not satisfied because Plaintiff must show the existence of one of the following in order to establish the existence of an official policy:

1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.