United States District Court, M.D. Louisiana
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is Defendants' Motion to Dismiss (R. Doc. 7).
This Motion is opposed.
se Plaintiff, an inmate incarcerated at the Louisiana
State Penitentiary (''LSP''), Angola,
Louisiana, filed this action pursuant to 42 U.S.C. §
1983 against Warden Darrel Vannoy, Ass't Warden Tracy
Falgout and Dr. Randy Lavespere, complaining that Defendants
have violated his constitutional rights by exhibiting
deliberate indifference to his serious medical needs.
instant Motion, Defendants first seek dismissal on
jurisdictional grounds, pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure, of Plaintiff's claim
asserted against them in their official capacities for
monetary damages. In this regard, Defendants are correct
that § 1983 does not provide a federal forum for a
litigant who seeks monetary damages against either a state or
its officials acting in their official capacities,
specifically because these officials are not seen to be
“persons” within the meaning of § 1983.
Will v. Michigan Department of State Police, 491
U.S. 58, 71 (1989). In addition, in Hafer v. Melo,
502 U.S. 21 (1991), the United States Supreme Court addressed
the distinction between official capacity and individual
capacity lawsuits and made clear that a suit against a state
official in an official capacity for monetary damages is
treated as a suit against the state and is therefore barred
by the Eleventh Amendment. Id. at 25. Accordingly,
Plaintiff's claim asserted against Defendants in their
official capacity for monetary damages is subject to
dismissal. In contrast, Plaintiff's claim for monetary
damages asserted against Defendants in their individual
capacities remains theoretically viable because a claim
against a state official in an individual capacity, seeking
to impose personal liability for actions taken under color of
state law, is not treated as a suit against the state.
Id. at 29. In addition, a claim for injunctive
relief asserted against state officials in their official
capacities is not barred by the Eleventh Amendment because
such a claim is also not seen to be a claim asserted against
the state. See Will v. Michigan Department of State
Police, supra, 491 U.S. at 71 n. 10; 15 Am. Jur. 2d
Civil Rights § 101.
to Plaintiff's claims that are not subject to dismissal
on the basis of Eleventh Amendment immunity, Defendants next
assert, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, that Plaintiff has failed to state a claim
upon which relief may be granted. In Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Supreme Court addressed
the standard of pleading that a plaintiff must meet in order
to survive a motion to dismiss pursuant to Rule 12(b)(6).
Specifically, “[f]actual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, supra, at 555.
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, supra, 556 U.S.
at 678, quoting Bell Atlantic Corp. v. Twombly,
supra. “A claim has facial plausibility 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. It follows
that, “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not
‘show[n]' - ‘that the pleader is entitled to
relief.'” Id. at 679. “Where 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. at 678
(internal quotation marks omitted).
motion to dismiss for failure to state a claim under Rule
12(b)(6), the Court “must accept as true all of the
factual allegations contained in the Complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further,
“[a] document filed pro se is ‘to be
liberally construed' ... and ‘a pro se
Complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.'” Id. (citation omitted). Even a
pro se complainant, however, must plead
“factual matter” that permits the court to infer
“more than the mere possibility of misconduct.”
Ashcroft v. Iqbal, supra, 556 U.S. at 678. The court
need not accept “a legal conclusion couched as a
factual allegation, ” Papasan v. Allain, 478
U.S. 265, 286 (1986), or “naked assertions [of unlawful
conduct] devoid of further factual enhancement.”
Ashcroft v. Iqbal, supra, 556 U.S. at 678 (internal
quotation marks omitted).
Complaint, and by reference to documentation attached
thereto, it appears that Plaintiff has suffered with bladder
and bowel deficiencies since birth. As a result, he is
required to wear adult diapers at all times, and he allegedly
experiences severe constipation, skin rashes and acid reflux.
He acknowledges that he has been seen and treated by
physicians at LSP, and he has apparently been followed by the
gastroenterology clinic at the LSU medical facility in New
Orleans, Louisiana. He complains, however, that whereas he
has been provided with diapers, with self-administered
disposable enemas, and with laxatives and skin creams, the
treatment and supplies are not adequate to address his
condition and complications. Specifically, he asserts that
the harshness of the prescribed laxatives and enemas has
caused him to suffer with ulcerative colitis and that the
brand of diapers provided does not adequately protect him
from leakage and severe diaper rash. He asserts that a
different brand of diapers, a milder form of enema, and a
private room at the prison medical facility should be
provided. He further asserts that he should be provided with
baby oil and baby wipes for his skin and with a
“nursing bottle” to help him with nightly acid
reflux. Finally, he complains that leakage from his diapers
has caused him to be subjected to un-hygienic conditions. He
prays for compensatory damages and to be provided with the
medical care and supplies that he believes to be warranted.
response to Plaintiff's allegations, Defendants assert
that they are entitled to qualified immunity in connection
with Plaintiff's claims. Specifically, Defendants contend
that Plaintiff's allegations are insufficient to
establish that any of them has participated in a violation of
Plaintiff's constitutional rights.
qualified immunity defense is a familiar one and, employing a
two-step process, operates to protect public officials who
are performing discretionary tasks. Huff v. Crites,
473 Fed.Appx. 398 (5th Cir. 2012). Taking the facts as
alleged in the light most favorable to Plaintiff, the Court
considers whether Defendants' conduct violated
Plaintiff's constitutional rights and whether the rights
allegedly violated were clearly established at the time that
the violation occurred. See Pearson v. Callahan, 555
U.S. 223, 236 (2009) (concluding that the rigid protocol
mandated in Saucier v. Katz, 533 U.S. 194 (2001) B
that called for consideration of the two-pronged analysis in
a particular order B should not be ''regarded as an
inflexible requirement''). Under Pearson v.
Callahan, courts have discretion to decide which of the
two prongs of the analysis to address first. This inquiry,
the Court stated, is undertaken in light of the specific
context of the case, not as a broad, general proposition.
Saucier v. Katz, supra, 194 U.S. at 201. The
relevant, dispositive inquiry in determining whether a
constitutional right was clearly established is whether it
would have been clear to a reasonable state official that his
conduct was unlawful in the situation that he confronted.
Id. at 202.
the qualified immunity analysis with respect to
Plaintiff's claims, the Court concludes that
Defendants' Motion to Dismiss should be granted. In this
regard, it is well-settled that to prevail on an Eighth
Amendment claim for the deprivation of medical care, a
prisoner must be able to show that appropriate care has been
denied and that the denial has constituted
''deliberate indifference to serious medical
needs.'' Thomas v. Carter, 593 Fed.Appx.
338, 342 (5th Cir. 2014), citing Estelle v. Gamble,
429 U.S. 97 (1976). Whether Plaintiff has received the
treatment or accommodation that he believes he should have is
not the issue because a prisoner's mere disagreement with
his medical treatment, absent exceptional circumstances, does
not support a claim of deliberate medical indifference.
Gobert v. Caldwell,463 F.3d 339, 346 (5th Cir.
2006). Nor do negligence, neglect, medical
malpractice, misdiagnosis or unsuccessful medical treatment
give rise to a ' 1983 cause of action. See
Zaunbrecher v. Gaudin,641 Fed.Appx. 340 (5th Cir.
2016). Rather, ''subjective recklessness as used in
the criminal law'' is the appropriate definition of
''deliberate indifference'' under the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825, 839-30
(1994). A prison official acts with deliberate indifference
only if the official (1) ''knows that inmates face a
substantial risk of serious bodily harm, '' and (2)
''disregards that risk by failing to take reasonable
measures to abate it.'' Gobert v. Caldwell,
supra, 463 F.3d at 346, quoting Farmer v.
Brennan, supra, 511 U.S. at 847. The deliberate indifference
standard sets a very high bar. Plaintiff must be able to
establish that Defendants Arefused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged
in any similar ...