United States District Court, E.D. Louisiana
KAREN WELLS ROBY, Magistrate Judge.
Before the Court is a Motion for Leave to File First Supplemental and Amending Petition (R. Doc. 9) filed by the Plaintiffs, Jerry Joseph and Merline Joseph. The Plaintiffs seek leave of court to file their First Amended and Supplemental Petition to (1) specify their ranking as beneficiaries of the deceased; (2) remove the Defendant Tangipahoa Parish Sheriff's Office; (3) add a new Defendant, Tangipahoa Parish Government; and (4) add new causes of action under La. R.S. §§ 15:702, 15:703, 15:704, and 15:705. The Plaintiffs indicate in their LR 7.6 Certificate that the Defendants do not consent to the proposed amended complaint, however, the Defendants did not file a formal opposition to the motion.
This action arises out of the death of Keith Joseph while he was in the custody of Tangipahoa Parish Prison. Plaintiffs allege that the decedent suffered from various health conditions, including blood clots surrounding his lungs and a severe heart condition that causes intolerable chest pains when left untreated. See R. Doc. 1, at 5. Plaintiffs allege that on March 3, 2014, the decedent complained of severe chest pains to Defendant, Officer Brock. Plaintiffs also allege that over the period of one week the decedent continuously asked for his medication, which was in the control of the prison. Id.
Plaintiffs allege that on March 11, 2014, after a week of complaining of severe chest pains, he was seen by the on-duty nurse who took his vital signs and returned him to his cell. Id. Plaintiffs allege that shortly after being returned to his cell the decedent collapsed after pleading for medical treatment. Id. at 6. Plaintiffs allege that the decedent was not administered Cardiopulmonary Resuscitation until thirty minutes after he collapsed. Id. The decedent passed away that same day, on March 11, 2014. Id.
The Plaintiffs, decedent's parents, initiated this suit on March 9, 2015 against the Louisiana Department of Corrections, Officer Brock, Columbia Casualty Company, Sheriff Daniel Edwards, Schirra Finn, Brandon Pinon, Tangipahoa Parish Sheriff's Office, and Alison Thornhill. The Plaintiffs seek compensatory and nominal damages, as well as declaratory judgment under 42 U.S.C. § 1983, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and state law tort claims under La. Rev. Stat. §§ 2315, 2315.1, and 2315.2.
On April 14, 2015, a Motion to Dismiss (R. Doc. 7) was filed on behalf of seven of the eight Defendants arguing that (1) the Plaintiffs did not establish standing; (2) the Sheriff's Office is not a proper party and not the proper agent of prison medical services; (3) Defendants Pinon and Finn should be dismissed; and (4) the Plaintiffs failed to state a claim under the Fourth Amendment, Equal Protection Clause, and the Rehabilitation Act. Seven days later, on April 21, 2015, the Plaintiffs filed the subject motion for leave to file an amended complaint to address some of the issues presented in the motion to dismiss.
II. Standard of Review
Federal Rule of Civil Procedure 15(a)(1)(B) provides that "[a] party may amend its pleading once as a matter of course within... 21 days after service of a motion under 12(b)." However, "a district court may deny motions to amend, even when such amendment would be as a matter of course, ' when the amendment would be futile." United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009) (citing Johnson v. Dunbar, No. 92-09536, 1994 WL 35605 at *4 (5th Cir. Jan. 27, 1994); Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991)). A court may deny a motion for leave to amend where "the proposed amendment would be futile because it could not survive a motion to dismiss." Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010) (emphasis added).
The Plaintiffs filed the subject motion seven days after the Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). Accordingly, Plaintiffs' motion is within the 21 day period to file an amended complaint as a matter of course. Nonetheless, the amendment would not be allowed if it is futile. Having duly considered the Plaintiffs' proposed amendments, the Court finds that the amendment is futile as to the Plaintiffs' addition of the Tangipahoa Parish Government as a new defendant and addition of La. R.S. §§ 15:702, 15:703, 15:704, and 15:705.
A. Addition of Tangipahoa Parish Government as a Defendant is Futile
The Plaintiffs seek to add Tangipahoa Parish Government as a new defendant to this action. Vicarious liability is not a basis for municipality liability under § 1983, rather the Plaintiffs must allege a claim pursuant to Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-91 (1978). To allege a Monell claim holding the Tangipahoa Parish Government liable under § 1983,
[A] plaintiff must initially allege that an official policy or custom was a cause in fact for the deprivation of the rights inflicted. To satisfy the cause in fact requirement, a plaintiff must allege that the custom or policy served as the moving force behind the constitutional violation at issue or that [his] injuries resulted from the execution of the official policy or custom. The description of a policy or custom and its ...