United States District Court, W.D. Louisiana, Monroe Division
G. JAMES UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Partial Summary Judgment [Doc. No.
7] filed by Defendant Sarah Lee, M.D. Plaintiff Nancy
Mitchell does not oppose the motion. [Doc. Nos. 9, 11]. For
reasons set forth below, the motion is GRANTED.
filed suit on May 25, 2017, alleging that, on June 5, 2016,
when she was a pretrial detainee at the Tensas Parish
Detention Center (“TPDC”) she fell while exiting
a shower and broke her right arm and wrist. [Doc. No. 1, p.
3]. While she did receive treatment at Riverland Medical
Center, she claims that Defendant failed to arrange
“follow-up care.” Id.
result, she alleges that her arm and wrist healed improperly
and are now permanently disfigured and disabled. Id.
at 4. She asserts several constitutional claims under 42
U.S.C. § 1983 and, of import here, a medical malpractice
claim under Louisiana law. Id. at 6-7.
filed the instant motion on July 25, 2017. Seeking dismissal
without prejudice, Defendant argues that Plaintiff's
state law medical malpractice claim is premature because a
medical review panel has not rendered an opinion on the
merits of the claim.[1" name="FN1" id=
"FN1">1] [Doc. No. 7].
Plaintiff filed a response to the motion on August 15, 2017,
she does not oppose it. [Doc. Nos. 9, 11]. Rather, Plaintiff
offers an alternative to dismissal without prejudice:
“a partial stay of the medical negligence
action.” Id. at 1. Defendant replied to
Plaintiff's response on August 16, 2017. The matter is
now before the Court.
Law and Analysis
Standard of Review
Federal Rule of Civil Procedure 56(a), “[a] party may
move for summary judgment, identifying each claim or
defense--or the part of each claim or defense--on which
summary judgment is sought. The court shall grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party bears
the initial burden of informing the court of the basis for
its motion by identifying portions of the record which
highlight the absence of genuine issues of material fact.
Topalian v. Ehrmann, 1125');">954 F.2d 1125, 1132 (5th Cir.
1992); see also Fed.R.Civ.P. 56(c)(1) (“A party
asserting that a fact cannot be . . . disputed must support
the assertion by . . . citing to particular parts of
materials in the record . . . .”). A fact is
“material” if proof of its existence or
nonexistence would affect the outcome of the lawsuit under
applicable law in the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a
material fact is “genuine” if the evidence is
such that a reasonable fact finder could render a verdict for
the nonmoving party. Id.
the moving party meets its initial burden, the Court may not
grant a motion for summary judgment even if the motion is
unopposed. Hetzel v. Bethlehem Steel Corp., 50 F.3d
360, 362 (5th Cir. 1995). Here, however, since Plaintiff does
not set forth any material facts as to which there exists a
genuine issue to be tried, the uncontested material facts
listed in Defendant's Statement of Uncontested Material
Facts [Doc. No. 7-1] are deemed admitted. LR 56.2 (“All
material facts set forth in the statement required to be
served by the moving party will be deemed admitted, for
purposes of the motion, unless controverted as required by
The Louisiana Medical Malpractice Act
Louisiana Medical Malpractice Act (“LMMA”)
provides that “[n]o action against a health care
provider . . . may be commenced in any court before the
claimant's proposed complaint has been presented to a
medical review panel . . . .” La. Rev. Stat. §
40:1231.8(B)(1)(a)(I). “The Supreme Court of Louisiana
has interpreted this provision to not only require the
plaintiff to present the claim to a medical review panel, but
also to wait until ‘the panel has rendered its
expert opinion on the merits of the complaint'
before filing suit.” Flagg v. Stryker Corp.,
19 F.3d 132');">819 F.3d 132, 137-38 (5th Cir. 2016) (quoting Delcambre