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Moore v. Singh

United States District Court, M.D. Louisiana

August 30, 2018

THEODORE MOORE (#211716)
v.
RAMAN SINGH, ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In 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.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         This matter comes before the Court on the Motion to Dismiss of Defendants Raman Singh and Randy Lavespere (R. Doc. 17). This Motion is opposed.

         Pro se Plaintiff, an inmate confined at the Louisiana State Penitentiary (''LSP''), Angola, Louisiana, brought this proceeding pursuant to 42 U.S.C. § 1983 against Dr. Raman Singh, Dr. Randy Lavespere, Warden Darrell Vannoy, Medical Warden Tracy Falgout, and Secretary James LeBlanc, complaining that Defendants have violated his constitutional rights by exhibiting deliberate indifference to his serious medical needs, specifically by implementing an alleged unconstitutional policy and by failing to provide appropriate treatment and accommodation for his inguinal hernia.

         In response to Plaintiff's allegations, the moving Defendants 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).

         On a 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).

         In his Complaint, Plaintiff alleges that he has been diagnosed with a left inguinal hernia and has been made to suffer for an unreasonable period of time without surgical intervention that he asserts is necessary for his condition. He asserts that the hernia is large and causes intense daily pain. He alleges that the hernia interferes with and limits all of his daily activities and is tolerable only when he is lying down and immobile. He alleges that the hernia causes loops of his intestines to descend into his scrotum which causes intense pain. He asserts that the hernia has been diagnosed as being “reducible, ” meaning that it can be physically manipulated such that any protrusion can be pushed back into his body. Notwithstanding, when his intestines are pushed back into his stomach, they are often twisted or strangulated, such that he must endure substantial pain until gas or the passage of food causes the intestines to become untwisted. He further asserts that this is a dangerous practice and creates a dangerous situation that not only enlarges the hernia over time but can result in strangulation of the blood supply to the intestines such that an emergency life-threatening situation can develop very quickly. Finally, he asserts that whereas he has been seen and evaluated by physicians at LSP, they have refused to recommend surgery solely because the hernia is reducible, and they have failed to refer him for a consultation with a surgeon to evaluate the need for surgical intervention.

         In addition to the foregoing, Plaintiff asserts that in 2013, Defendant Raman Singh instituted a new written policy addressing the care and treatment of inmates suffering with hernias who are confined at institutions governed by the Louisiana Department of Public Safety and Corrections. According to Plaintiff, this policy denies surgical intervention to all inmates with reducible hernias and also denies even referrals for surgical evaluation for such inmates. Plaintiff asserts that the reason for this policy is solely because of the cost and expense of surgical intervention were all hernias potentially subject to surgical repair. Plaintiff further asserts that surgical consults are avoided because Defendants have explicitly recognized that once a surgeon has documented the need for surgical intervention, “it is hard to overrule this decision.” See R. Doc. 1 at p. 7. As a result, the policy separates inmates diagnosed with hernias into two categories, with the first being “Reducible Hernia - to be managed non-operatively by primary care physician at prison, ” and the second being “Non-reducible Hernia - MD will refer to General Surgery.” See Id. at p. 8. Finally, Plaintiff asserts that even obtaining a necessary surgical referral from an LSP staff physician is obstructed by the policy because “[a] request for permission to send a surgical referral from LSP staff physicians to [Department] Headquarters must first be approved by LSP Medical Director (Defendant Randy Lavespere) who then sends the request for surgical referral to [Department] Headquarters where Defendant Raman Singh must then approve the request to submit a surgical referral to the outside facility.” See Id. at p. 11. According to Plaintiff, Defendants utilize this procedure to unreasonably delay authorizations for needed surgery consultations. In addition, Plaintiff asserts that Defendant Singh has established generally four tiers of priority for all specialist, surgery and diagnostic consultation requests, i.e., Level 1 - low; Level 2 - routine; Level 3 - urgent; and Level 4 - emergent, and Plaintiff complains that Defendants utilize these priority levels to further delay the process of obtaining surgical consultations by failing to properly prioritize the need. See Id. at p. 14. Plaintiff asserts that he meets the guideline for a specialty care referral, including the large size of his hernia and the daily pain and limitations that he suffers. Plaintiff further asserts that he has been informed by LSP medical personnel that a request for a surgical consultation has been made and has been sent to Department Headquarters and to the LSU General Surgery Clinic. See id. at p. 12. See also R. Doc. 1-1. Notwithstanding, Plaintiff states that he is not convinced of the truth of this representation, and he alleges, “for purposes of this Complaint, ” that no surgical consult has been approved or requested by Defendants See id. at p. 13.[1]

         In response to Plaintiff's allegations, Defendants Singh and Lavespere assert that they are entitled to qualified immunity in connection with Plaintiff's claims. Specifically, these Defendants contend that Plaintiff's allegations are insufficient to establish that they have participated in any violation of Plaintiff's constitutional rights.

         The 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. When a defendant invokes qualified immunity, the burden shifts to the plaintiff to demonstrate the inapplicability of the defense. See Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir. 2009), citing McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).

         Undertaking the qualified immunity analysis with respect to Plaintiff's claims, the Court concludes, although the issue is a close one, that Defendants' ...


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