United States District Court, W.D. Louisiana, Monroe Division
A. DOUGHTY JUDGE
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
the undersigned Magistrate Judge, on reference from the
District Court, is a motion to dismiss for failure to state a
claim upon which relief can be granted, [doc. # 17], filed by
defendants Pamela Hearn and Elijah Bouthe (incorrectly named
in the complaint as “Elijah Bootat”). For reasons
set forth below, it is recommended that the motion be
January 18, 2018, Telvin Henyard, a former inmate, filed the
instant civil rights complaint pursuant to 42 U.S.C. §
1983, together with associated state law tort claims, against
various officials and medical providers at the Richwood
Correctional Center (“RCC”) and the Madison
Parish Correctional Center (“MPCC”). Plaintiff
alleges that on June 19, 2017, he was an inmate at the RCC
when a light fixture fell from the ceiling and landed on his
shoulder, fracturing his clavicle. RCC officers transported
Henyard to the hospital where his bone was set and fixed in a
brace. The hospital released Henyard with instructions to be
seen by an orthopedic doctor for further treatment, including
surgery, if needed. RCC officials and medical providers never
arranged for Henyard to receive the follow-up care as
instructed by the hospital.
of the untreated clavicle, Henyard developed gastrointestinal
problems. Drs. Boa and/or Ross prescribed Amoxicillin even
though his charts indicated that he was allergic to this
antibiotic. As a result, Henyard suffered a serious reaction,
including elevated heart rate and a 30 pound weight loss.
Although RCC officers eventually transported Henyard to the
hospital on account of his allergic reaction, RCC officials
and doctors failed to assure that Henyard received
appropriate follow-up care for his gastrointestinal issues.
unspecified date, Henyard was transferred from the RCC to the
MPCC. Again, however, MPCC officials and medical providers
(Dr. Hearn and LPN Boothe) failed to arrange necessary
follow-up care for Henyard's broken clavicle and
October 16, 2017, Henyard was released from custody,
whereupon he learned that the bones in his arm and clavicle
did not heal properly because he failed to receive requisite
follow-up care and/or surgery. His right arm and shoulder are
now permanently disfigured and disabled. Henyard contends
that defendants' failure to arrange necessary follow-up
care violated his due process and equal protection rights
under the Fourteenth and Eighth Amendments to the U.S.
Constitution. He further asserts unspecified state law tort
claims against defendants, including a claim that the medical
provider defendants breached the applicable standard of care
as professional healthcare providers. Plaintiff seeks
compensatory and punitive damages against defendants, plus
attorney's fees and costs.
April 11, 2018, defendants, Pamela Hearn and Elijah Boothe,
filed the instant motion to dismiss for failure to state a
claim upon which relief can be granted. Movants contend that
they are “qualified health care providers” under
the Louisiana Medical Malpractice Act (“LMMA”),
and, as such, no malpractice action may be brought against
them before the claimant's proposed complaint first has
been presented to a medical review panel. La. R.S.
40:1231.8(B)(1)(a)(i). Movants assert that no medical review
panel has been initiated, and thus, the instant suit against
them is premature and subject to dismissal on that basis.
2, 2018, plaintiff filed a response to the motion to dismiss
in which he agreed that his medical malpractice/negligence
claim against movants is premature and subject to dismissal,
without prejudice, or alternatively, stayed, until such time
as the medical review panel process is completed. [doc. #
19]. Plaintiff further stated, however, that discovery should
be permitted to proceed as to his § 1983 claims against
all defendants, including Dr. Hearn and LPN Bouthe.
9, 2018, movants filed a reply brief, whereby they urged
dismissal of the state law claims, in lieu of a stay.
Furthermore, they expanded the scope of their original motion
to include dismissal of plaintiff's § 1983 claims
against them because plaintiff did not set forth any facts to
plausibly support that movants were deliberately indifferent
to plaintiff's medical conditions.
Standard of Review
Federal Rules of Civil Procedure sanction dismissal where the
plaintiff fails “to state a claim upon which relief can
be granted.” Fed.R.Civ.P. 12(b)(6). A pleading states a
claim for relief, inter alia, when it contains a
“short and plain statement . . . showing that the
pleader is entitled to relief . . .” Fed.R.Civ.P.