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Doughty v. LeBlanc

United States District Court, M.D. Louisiana

August 28, 2018

LEVELL H. DOUGHTY DOC # 95150
v.
JAMES LEBLANC, ET AL.

          REPORT AND RECOMMENDATION ON MOTION TO DISMISS

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion to Dismiss[1] filed by defendants, Secretary James LeBlanc, Dr. Raman Singh, Dr. Preety Singh, Nurse Wanda Dupuy, and Nurse Elizabeth Britton (collectively, “Defendants”). Plaintiff, Levell Doughty (“Plaintiff”) has filed an opposition memorandum.[2] For the reasons set forth herein, the undersigned RECOMMENDS[3] that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART.

         Specifically, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to the § 1983 claims against defendants Dr. Preety Singh, Nurse Wanda Dupuy, and Nurse Elizabeth Britton in their individual capacities.

         The undersigned FURTHER RECOMMENDS that the Motion to Dismiss be GRANTED: (1) dismissing all § 1983 claims brought against all defendants in their official capacities with prejudice; and (2) dismissing the § 1983 claims against defendants Dr. Raman Singh and Secretary James LeBlanc in their individual capacities without prejudice.

         The undersigned FURTHER RECOMMENDS that, in the event that this Report and Recommendation is adopted, Plaintiff be granted a period of twenty-one (21) days from the date of such adoption to file a Motion to Amend his Complaint to address the deficiencies noted herein with regard to the individual capacity claims against Dr. Raman Singh and Secretary James LeBlanc.

         I. Background

         On October 24, 2017, Plaintiff, an inmate in the custody of the Louisiana Department of Corrections (“DOC”) filed a Complaint under the Civil Rights Act 42 U.S.C. § 1983 (the “Complaint”).[4] Plaintiff alleges violations of 42 U.S.C. § 1983 and § 1988, as well as state law claims based on Louisiana Civil Code article 2315 (the general negligence provision), [5] on the basis that Plaintiff has been denied adequate medical treatment for Hepatitis C.

         Plaintiff alleges that following his arrival at Elayn Hunt Correctional Center in 2005 and the completion of blood work, he was diagnosed with Hepatitis C.[6] Plaintiff contends that he “was placed on medication [Interferon plus Ribavirin for sixteen (16) weeks. By the 16th week, Plaintiff was taken off these medications/treatment, which was due to the fact that said treatment was ineffective.”[7] Plaintiff contends that “[d]ue to the ineffectiveness of this treatment…Plaintiff's medical situation has been inadequately addressed” and that he currently suffers from “the irritation of peeling skin, ammonia in the blood, weakness, and dizziness.”[8] Plaintiff alleges that he currently is at the “early fourth state of hepatitis C, ”[9] although he does not further indicate what that means.

         Plaintiff asserts that a “new” medication - Harvoni - is available on the open market and that Harvoni is a “cure” for Hepatitis C.[10] Plaintiff alleges that he “wrote the medical director, Preety Singh, requesting that he be considered for this new treatment” but that Dr. Preety Singh “never responded to this request.”[11] Thereafter, Plaintiff alleges that he “spoke with nurse practitioner, Ms. Britton about this new treatment, Ms. Britton's response was that this treatment [Harvoni] cost [sic] too much and that Plaintiff would have to wait for something more affordable.”[12] With respect to defendant Nurse Wanda Dupuy, Plaintiff alleges Nurse Dupuy “is responsible for medically treating Plaintiff”[13] and that she “has yet to schedule the Plaintiff to visit with the hepatologist.”[14] Plaintiff further alleges that, in the context of the prison's administrative remedy procedure, Nurse Dupuy reviewed Plaintiff's record “[a]t the first step response” and “stated that no evidence was shown that the Plaintiff had been denied appropriate treatment or access to treatment.”[15] With respect to defendant Secretary LeBlanc, who is the secretary of the DOC, Plaintiff contends that “the Secretary has allowed the Warden and medical personnel, to use a discriminatory and unwritten selectivity policy to pick and choose whom they will consider for the new treatment for hepatitis C.”[16] Plaintiff further asserts that “[a]ccording to these defendants”[17] the treatment involving Harvoni is “too expensive, ” that Secretary LeBlanc “is responsible for the monetary budget that operates the facility in which Plaintiff is being housed, ” and that Secretary LeBlanc “recently stated that inmates such as Plaintiff was [sic] costing the State too much money for medical care.”[18]

         Defendants seek dismissal of Plaintiff's claims against them in their official capacities pursuant to FRCP 12(b)(1). With respect to the claims brought against them in their individual capacities, Defendants argue that Plaintiff has failed to state a claim upon which relief can be granted such that dismissal is appropriate pursuant to FRCP 12(b)(6) and that they are entitled to qualified immunity for such claims.

         Regarding dismissal pursuant to FRCP 12(b)(1), although Plaintiff alleges in his Complaint that each Defendant “is sued individually in his/her personal and official capacity, ”[19] Plaintiff agrees in his Opposition to the Motion to Dismiss that the claims against the Defendants in their official capacities should be dismissed.[20] As a threshold matter, the undersigned recommends that the Motion to Dismiss be granted in part and that Plaintiff's claims against the Defendants in their official capacities be dismissed with prejudice. Accordingly, the undersigned proceeds with an analysis of whether Plaintiff has stated claims against the Defendants in their individual capacities and whether the Defendants are entitled to assert the defense of qualified immunity.

         II. Law and Analysis

         A. Rule 12(b)(6) Standard and Qualified Immunity

         In conducting a Rule 12(b)(6) analysis, the court accepts “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”[21] In order to survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”[22] “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”[23]While factual assertions are presumed to be true, “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are not enough to withstand a 12(b)(6) motion to dismiss.[24]

         The qualified immunity defense is a familiar one and, employing a two-step process, operates to protect public officials who are performing discretionary tasks.[25] 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.[26] 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.[27] 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.[28]

         B. Deliberate Medical Indifference with Respect to Hepatitis C Treatment

         Throughout his Complaint, Plaintiff alleges that Defendants have displayed “deliberate indifference to [his] serious medical needs” and that such indifference violated “Plaintiff's constitutional rights to be free/protected from cruel and unusual punishment, which is prohibited [by the] 8th Amendment and 14th Amendment, U.S. Constitution.”[29] In order for there to be liability in connection with a claim of deliberate medical indifference, an inmate plaintiff must be able to show that appropriate medical care has been denied and that the denial has constituted “deliberate indifference to serious medical needs.”[30] Whether Plaintiff has received the treatment or accommodation that he believes he should have is not the issue.[31] Nor do negligence, neglect, medical malpractice or unsuccessful medical treatment give rise to a § 1983 cause of action.[32]Rather, “subjective recklessness as used in the criminal law” is the appropriate definition of “deliberate indifference” under the Eighth Amendment.[33] As stated in Farmer, to be liable on a claim of deliberate indifference, an official “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”[34] The deliberate indifference standard sets a very high bar: Plaintiff must be able to establish that a defendant “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.”[35] Further, a mere delay in providing medical treatment does not amount to a constitutional violation without both deliberate indifference and a resulting substantial harm.[36]

         In addition to the foregoing, in order for a prison official to be found liable under § 1983, the official must be shown to have been personally and directly involved in conduct causing an alleged deprivation of an inmate's constitutional rights, or there must be shown to be a causal connection between the actions of the official and the constitutional violation sought to be redressed.[37] Any allegation that a named defendant is responsible for the actions of subordinate officers or co-employees under a theory of vicarious responsibility or respondeat superior alone is insufficient to state a claim under § 1983.[38] Further, in the absence of direct personal participation by a supervisory official in an alleged constitutional violation, an inmate plaintiff must be able to show that the deprivation of his constitutional rights has occurred as a result of a subordinate's implementation of the supervisor's affirmative wrongful policies or as a result of a breach by the supervisor of an affirmative duty specially imposed by state law.[39]

         In Henderson v. Tanner, [40] this Court considered the viability of claims similar to those asserted here.[41] Plaintiff in Henderson, an inmate at Elayn Hunt proceeding pro se, asserted that his constitutional rights had been violated by defendants' deliberate indifference to his serious medical needs. Like Plaintiff here, Mr. Henderson alleged that he had been diagnosed with Hepatitis C and had been previously treated with Interferon and Ribovarin.[42] Mr. Henderson asserted that new medications with very high success rates had been approved (including Harvoni), and that defendants had failed to authorize him to receive the medications, despite his requests, based on cost.[43] Plaintiff sought monetary damages and moved for injunctive relief, specifically, “treatment with medication that will cure Hep C.”[44] In denying defendants' motion to dismiss pursuant to Rule 12(b)(6) (and in the context of the discussion of qualified immunity), this Court explained, “there are numerous reported decisions that have commented upon the potentially curative effects of medications such as Harvoni (which has been specifically requested by Plaintiff), as well as other recently-approved Hepatitis C medication protocols.”[45] “In many of these cases, a judicial resolution of the inmate plaintiffs' claims that they were not being provided with these medications has been based upon an evidentiary showing made in the context of a motion for summary judgment or evidentiary hearing.”[46] “Whereas the Constitution does not mandate that Plaintiff be provided with the best medical care that is available, Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992), the law is clear that ‘[t]he denial or delay of necessary medical treatment for financial or other improper motives not based on medical reasons may constitute an Eighth Amendment violation.'”[47]

         i. Plaintiff Fails to State a Claim Against Dr. Raman Singh

         First, with respect to Dr. Raman Singh, Defendants correctly point out that “plaintiff wholly fails to mention Dr. Raman Singh beyond naming him as a defendant.”[48] Although the caption of Plaintiff's Complaint lists Dr. Raman Singh as a defendant, he is not included as a defendant in the body of the Complaint and there are no allegations in the Complaint directed to him. In opposition to the Motion to Dismiss, Plaintiff asserts that “Dr. Raman Singh…is the medical director for the entire correctional institute for the State of Louisiana” and that in light of his “high” position, he “very likely played a part in the decision-making process of denying Hepatitis C patients the appropriate treatment.”[49] Even if such a conclusory and speculative allegation was contained in the Complaint, it would not be sufficient to state a claim against Dr. Raman Singh. Plaintiff has not alleged any personal involvement by Dr. Raman Singh (or any other involvement at all) in his Complaint; nor has Plaintiff alleged that Dr. Raman Singh implemented any particular policy or breached any specific duty imposed by state law. Therefore the undersigned recommends that Plaintiff's claims against Dr. Raman Singh be dismissed for failure to state a claim.[50]

         ii. Plaintiff Fails to State a Claim Against Secretary LeBlanc

         Plaintiff alleges that Secretary LeBlanc is “legally responsible for the operations of Elayn Hunt Correctional Center” and “for the welfare of all inmates at that facility.”[51] Plaintiff asserts that Secretary LeBlanc “has allowed the Warden and medical personnel, to use a discriminatory and unwritten selectivity policy to pick and choose whom they will consider for the new treatment for hepatitis C” and that Secretary LeBlanc has “stated that inmates such as Plaintiff was [sic] costing the State too much money for medical care.”[52] Because Secretary LeBlanc is “responsible for the monetary budget, ” and in light of Plaintiff's contention that he has been denied adequate medical treatment due to the cost of the “new” medication, Plaintiff contends Secretary LeBlanc “has displayed a deliberate indifference to Plaintiff [sic] serious medical needs [AND] that this deliberate indifferences [sic] was manifested through those under his authority….”[53]

         “Under section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability.”[54] “‘A supervisory official may be held liable ... only if (1) he affirmatively participates in the acts that cause the constitutional deprivation, or (2) he implements unconstitutional policies that causally result in the constitutional injury.'”[55] “‘In order to establish supervisor liability for constitutional violations committed by subordinate employees, plaintiffs must show that the supervisor act[ed], or fail[ed] to act, with deliberate indifference to violations of others' constitutional rights committed by their subordinates.'”[56] “‘[D]eliberate indifference' is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”[57] “[I]n the absence of direct personal participation by a supervisory official in an alleged constitutional violation, an inmate plaintiff must be able to show that the deprivation of his constitutional rights has occurred as a result of a subordinate's implementation of the supervisor's affirmative wrongful policies or as a result of a breach by the supervisor of an affirmative duty specially imposed by state law.”[58] “Supervisory liability can be found to exist if a supervisory official implements a policy so deficient that the policy itself may be seen to be a repudiation of constitutional rights and may be seen to be the moving force behind a constitutional violation.”[59]

         First, the undersigned finds Plaintiff's allegation that the “Warden and medical personnel [use] a discriminatory and unwritten selectivity policy to pick and choose whom they will consider for the new treatment for hepatitis C” to be vague and conclusory.[60] Plaintiff's allegation does not allege any details regarding how the policy was either impermissibly selective or discriminatory (i.e., how, if at all, other inmates were improperly chosen to be considered for treatment with Harvoni).[61] Further, Plaintiff has not alleged Secretary LeBlanc's actual knowledge[62] or personal involvement in Plaintiff's medical care.[63] Nor, assuming arguendo that Plaintiff's allegation regarding the “unwritten selectivity policy” was sufficient, has Plaintiff alleged that Secretary LeBlanc affirmatively participated in such policy or implemented such policy.[64] Even taking Plaintiff's conclusory allegations as true, such allegations are not sufficient to state a claim against Secretary LeBlanc under § 1983.[65]

         iii. Plaintiff States a Claim Against Dr. Preety Singh, Nurse Wanda Dupuy and Nurse Elizabeth Britton

         Plaintiff alleges that Dr. Preety Singh is “medical director at the Elayn Hunt Correctional Center…[and] is responsible for the overall medical care that is provided to all inmates in that facility.”[66] With respect to Elizabeth Britton, Plaintiff alleges that Nurse Britton “is a nurse practitioner, working at Elayn Hunt…assigned to the Hepatitis Clinic and is responsible for medically treating plaintiff.”[67] With regard to Wanda Dupuy, Plaintiff alleges that Nurse Dupuy “is a registered nurse, employed at the Elayn Hunt Correctional Center…and is responsible for medically treating Plaintiff.”[68]

         Plaintiff alleges that he “wrote the medical director, Preety Singh requesting that he be considered for” treatment with Harvoni, and that Dr. Preety Singh “never responded to this request.”[69] Plaintiff contends that Dr. Preety Singh “has shown a deliberate indifference to plaintiff's serious life-threatening medical conditions involving Hepatitis-C, when defendant refused/failed to respond to Plaintiff's letter regarding help to sustain his life.”[70] Plaintiff alleges that he spoke with Nurse Britton about treatment with Harvoni, and that Nurse Britton responded “that this treatment [Harvoni] cost too much and that Plaintiff would have to wait for something more affordable.”[71] With respect to Nurse Britton, Plaintiff contends that she “conspired with the other defendants named in the action, to prolong [sic] treatment to Plaintiff because of the cost of the new treatment pills.”[72] Although Plaintiff's claims against Nurse Dupuy appear to be focused on Nurse Dupuy's first step response to Plaintiff's grievance, [73] Plaintiff has also alleged that Nurse Dupuy is “responsible for medically treating Plaintiff”[74] and that Nurse Dupuy “has yet to schedule the Plaintiff a visit with the hepatologist.”[75]

         Construing the allegations in the Complaint “in a light most favorable to Plaintiff and accepting them as true, ”[76] Plaintiff alleges that he was previously treated with Interferon and Ribavirin for a sixteen week period and that such treatment was ineffective and discontinued. It does not appear that Plaintiff is currently receiving any treatment for Hepatitis C, [77] despite his allegation that he continues to have ongoing symptoms (“the irritation of peeling skin, ammonia in the blood, weakness, and dizziness”).[78] Plaintiff has alleged direct involvement by Nurse Britton, Nurse Dupuy and Dr. Preety Singh in that he alleges that Dr. Preety Singh “refused” to respond to Plaintiff's request to be treated with Harvoni, [79] Nurse Britton denied Plaintiff treatment solely on the basis of cost, and Nurse Dupuy failed to schedule Plaintiff a visit with the hepatologist.

         As noted above, “[w]hether the plaintiff received the treatment he felt he should have is not the issue, ” and “unsuccessful medical treatment does not give rise to a Section 1983 cause of action.”[80] However, “[t]he denial or delay of necessary medical treatment for financial or other improper motives not based on medical reasons may constitute an Eighth Amendment violation.'”[81] Here, given that Plaintiff's Complaint can be fairly read to allege that he is currently receiving no treatment for Hepatitis C, continues to have symptoms, and that the denial of treatment with Harvoni was due to cost, the undersigned finds that Plaintiff has sufficiently alleged claims against Dr. Preety Singh, Nurse Dupuy, and Nurse Britton to withstand scrutiny under Rule 12(b)(6). As explained above, this Court has recently cited multiple cases wherein judicial resolution of an inmate's claim that they were not provided with “new” medications for the treatment of Hepatitis C was made in the context of an evidentiary showing in a motion for summary judgment or evidentiary hearing.[82] The undersigned finds the allegations as set forth in the Complaint are sufficient to withstand Dr. Preety Singh's, Nurse Dupuy's and Nurse Britton's assertions of qualified immunity at the motion to dismiss stage.[83] Accordingly, the undersigned recommends that Defendant's Motion to Dismiss Plaintiff's § 1983 claims against Dr. Preety Singh, Nurse Dupuy and Nurse Britton in their individual capacities be denied.[84]

         C. Leave to Amend

         Under Federal Rule of Civil Procedure 15(a), leave to amend should be “freely give[n] ... when justice so requires.”[85] The Fifth Circuit has stated:

In view of the consequences of dismissal on the complaint alone, and the pull to decide cases on the merits rather than on the sufficiency of pleadings, district courts often afford plaintiffs at least one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will avoid dismissal.[86]

         One district court in Texas articulated the standard as follows:

When a complaint fails to state a claim, the court should generally give the plaintiff at least one chance to amend before dismissing the action with prejudice unless it is clear that the defects in the complaint are incurable. See, Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002); see also, United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 403 (5th Cir. 2004) (“Leave to amend should be freely given, and outright refusal to grant leave to amend without a justification ... is considered an abuse of discretion.”) (internal citation omitted). However, a court may deny leave to amend a complaint if the court determines that “the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face.” 6 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487 (2d ed.1990) (footnote omitted); see also, Martin's Herend Imports, Inc. v. Diamond & Gem Trading United States of Am. Co., 195 F.3d 765, 771 (5th Cir. 1999) (“A district court acts within its discretion when dismissing a motion to amend that is frivolous or futile.”) (footnote omitted).[87]

         Here, although Plaintiff opposed the Motion to Dismiss, Plaintiff has not moved to amend his Complaint. In opposition to the Motion to Dismiss, Plaintiff asserts as to Dr. Raman Singh that his “high position” “very likely played a part in the decision-making process of denying Hepatitis C patients the appropriate treatment.”[88] However, Plaintiff's Complaint contains no allegations regarding Dr. Raman Singh. With regard to Secretary LeBlanc, and as discussed above, Plaintiff must allege something more than the Secretary “allowed” others to use a discriminatory and unwritten selectivity policy. Because Plaintiff has not had an opportunity to amend, the undersigned recommends, in the event this Report and Recommendation is adopted, that Plaintiff be granted a period of twenty-one (21) days in which to cure the deficiencies in the Complaint with regard to the allegations against Dr. Raman Singh and Secretary LeBlanc, if he can do so.

         III. Conclusion

         For the reasons set forth herein, the undersigned RECOMMENDS that the Motion to Dismiss[89] be GRANTED IN PART and DENIED IN PART.

         Specifically, the undersigned RECOMMENDS that the Motion to Dismiss be DENIED as to the ยง 1983 claims against defendants Dr. Preety Singh, Nurse Wanda Dupuy, and ...


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