United States District Court, M.D. Louisiana
HOSEY COLBERT, ET AL.
CITY OF BATON ROUGE/ PARISH OF EAST BATON ROUGE, ET AL.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT.
the Court is the second Motion to Dismiss All
Remaining Claims (Doc. 89) filed by Defendant, Dr.
Robert Blanche ("Dr. Blanche") seeking dismissal,
under Federal Rule of Civil Procedure 12(b)(6), of all
remaining claims against him that were asserted in the First
Amended Complaint (Doc. 23). The Court granted in part and
denied in part Dr. Blanche's first Motion to Dismiss.
(Doc 68). Thus, the only claims by Plaintiffs, Hosey Colbert
and Shantita Colbert, remaining against Dr. Blanche are the
claims asserted against Dr. Blanche in his alleged official
capacity (Monell liability) and the claims alleging
his failure to supervise or train prison medical staff.
Plaintiffs filed an Opposition to the second motion. (Doc.
93). For the reasons explained herein, the Motion to
Dismiss All Remaining Claims (Doc. 89) is
before the Court is the Motion to Reconsider (Doc.
92) filed by Plaintiffs, seeking
reconsideration of the Court's Ruling and Order, which
dismissed Defendants, Dr. Charlie H, Bridges ("Dr.
Bridges") and Dr. Blanche without prejudice. (Doc. 88).
Plaintiffs assert that the Ruling and Order conflicts with a
prior decision in this case, and overlooks the law on the
constitutional standard of health care. (Doc. 92-1 at p. 1).
The motion is unopposed. For the reasons explained herein,
the Motion to Reconsider (Doc. 92) is
GRANTED IN PART and DENIED IN PART.
MOTION TO DISMISS
threshold matter, the Court notes that Dr. Blanche's
motion is procedurally improper under Fed.R.Civ.P. 12(g).
Federal Rule of Civil Procedure 12(g)(2) provides:
"[e]xcept as provided in Rule 12(h)(2) or (3), a party
that makes a motion under this rule must not make another
motion under this rule raising a defense or objection that
was available to the party but omitted from its earlier
motion." Rule 12(h)(1) provides that the defenses listed
in Rule 12(b)(2)-(5) are waived if not raised in its first
motion under Rule 12 or its responsive pleading. However,
Rule 12(h)(2) provides that the defense afforded by 12(b)(6),
failure to state a claim upon which relief can be granted,
can be raised in any pleading allowed or ordered under Rule
7(a), by a Rule 12(c) motion for judgment on the pleadings,
or at trial.
Dr. Blanche filed his first Rule 12(b)(6) motion on November
13, 2017, in response to the First Amended Complaint. (Doc.
68). Notably, his objections to the claims asserted against
him in his alleged official capacity (Monell
liability) and the claims alleging his failure to supervise
or train prison medical staff were available to him, but
omitted from his first motion. (See Doc. 40 at p. 24 and
¶ 77; Doc. 68).
Rule 12(h)(2) preserves Rule 12(b)(6) in certain instances,
this case is not one of those instances. The second Motion to
Dismiss is not in response to any pleading allowed or ordered
under Rule 7(a); rather, it is in response to the
Court's Ruling and Order granting in part and denying in
part Dr. Blanche's first motion to dismiss. Additionally,
the second Motion to Dismiss is not raised by a Rule 12(c)
motion for judgment on the pleadings, and it is not being
raised at trial. See Fed. R. Civ. P. 12(h)(2).
Therefore, Dr. Blanche is not permitted to make another Rule
12(b)(6) motion raising his defenses or objections because
they were readily available to him, but omitted from his
first motion. For this reason, the second motion is denied.
MOTION FOR RECONSIDERATION
request that the Court reconsider three specific issues
relating to Dr. Blanche and Dr. Bridges: (1) Plaintiffs
Monell and (2) conditions of confinement claims, and
(3) the finding that Dr. Blanche was "quite
attentive" to Colbert's medical needs (Doc. 88 at p.
18). (Doc. 92-1 at p. 2 n.7). The Plaintiffs further request
that the Court render a ruling that is consistent with its
prior January 9, 2018 Ruling and Order ("January
Order") (Doc. 82) on the Motions to Dismiss (Docs. 43,
61) filed by Defendants, City of Baton Rouge/Parish of East
Baton Rouge, Prison Medical Services, Rintha Simpson; and
Defendants, Sheriff Sid J. Gautreaux, III, and Warden Dennis
Grimes. (Doc. 92-1 at p. 4). Specifically, the January Order
denied each motion to dismiss with respect to the
Motiell claims, Monell v. Dep't. of Soc.
Servs. of City of New York, 436 U.S. 658 (1978), brought
against the Defendants; and it denied the motions to dismiss
the claims raised under a "conditions of
confinement" theory of liability, Shepherd v. Dallas
County, 591 F.3d 445 (5th Cir. 2009), brought against
the Defendants. (Doc. 82).
Court agrees that the rulings are inconsistent. Pursuant to
Federal Rule of Civil Procedure 54(b) "any order or
other decision . . . that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of
a judgment adjudicating all the claims and all the
parties' rights and liabilities."
Dr. Bridges and Dr. Blanche have been sued in their official
capacities as medical personnel at EBRPP. (Doc. 40 at
¶¶ 8-9). The jurisprudence is very clear that when
a claimed government official is sued in his official
capacity, it is the same as a suit against the government
entity of which he is claimed to be an agent. Burge v.
Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)
(citing Monell, 436 U.S. at 691 n. 55). Accordingly,
to proceed against Dr. Bridges and Dr. Blanche in their
alleged official capacities, is the same as proceeding
against the municipality for which they supplied medical
services, that is, the City of Baton Rouge/Parish of East
Baton Rouge. Therefore, for the reasons explained in the
January Order (Doc. 82), the Monell liability and
conditions of confinement claims alleged against Dr. Bridges
and Dr. Blanche, to the extent they were dismissed, are
IT IS ORDERED that Dr. Blanche's
Motion to Dismiss All Remaining Claims (Doc.
89) is DENIED, The following claims
against Dr. Blanche remain in this matter: the official
capacity claim and the failure to supervise or train claim.
IS FURTHER ORDERED that Plaintiffs'
Motion to Reconsider (Doc. 92) is
GRANTED IN PART and DENIED IN PART. The
Monell liabdity and conditions of confinement claims
brought by Plaintiffs against Dr. Bridges and Dr. ...