United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
the standardized form that is provided to state prisoners for
filing suit pursuant to 42 U.S.C. §1983, the
above-captioned matter was filed in forma pauperis
by pro se Plaintiff, Larry Everette Bourque, against
the following Defendants: the Lady of the Sea Hospital
(“Lady of the Sea”) in Cutoff, Louisiana; Dr. Guy
Lefort of Lady of the Sea; Doctor Jackson of Lady of the Sea;
Pharmacist Tim Callais of the Golden Meadow Clinic Drug
Store; Dr. William Crenshaw of Lady of the Sea; Dr. J. Vega
of Lady of the Sea; the Samart-Mothe Funeral Home in Cutoff;
and Dr. Camille Pitre of Lady of the Sea. (Rec. doc. 7, pp. 1,
Bourque is an inmate of the Concordia Parish Correctional
Facility in Ferriday, Louisiana, who was previously confined
at the Lafourche Parish Detention Center in Thibodaux,
Louisiana. (Rec. docs. 4; 7, pp. 2, 3; 1, p. 5). The subject
matter of Plaintiff's complaint, however, is unrelated to
either of those correctional facilities. Rather, Plaintiff
complains of the quality of the medical care that was
administered to his wife by the named Defendant health care
providers prior to her unfortunate death in August of 2017
and of the subsequent handling of his wife's remains by
the Samart-Mothe Funeral Home. (Rec. doc. 7, pp. 4-15).
Plaintiff indicates that he brought the circumstances
surrounding the treatment of his late wife to the attention
of the Louisiana State Medical Board and the Louisiana
Department of Health and despite having been offered $270,
000.00 in compensation, he seeks to have this Court determine
the damages to which he is entitled. Id. at pp. 4,
noted above, Plaintiff has initiated this suit in forma
pauperis pursuant to 28 U.S.C. §1915. (Rec. doc.
8). A proceeding brought in forma pauperis may be
dismissed as frivolous under §1915(e)(2)(B)(i) if the
claim alleged therein has no arguable basis in law or fact,
Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993), or if
it fails to state a claim upon which relief can be granted.
28 U.S.C. §1915(e)(2)(B)(ii); see also 28
U.S.C. §1915A(b), 42 U.S.C. §1997e(c). Giving the
instant complaint a liberal reading, it is the recommendation
of the undersigned Magistrate Judge that this matter be
dismissed as frivolous and for failing to state a claim upon
which relief can be granted.
first Defendant named by Plaintiff in this matter is the Lady
of the Sea Hospital in Cutoff, Louisiana. Plaintiff also
names as additional Defendants five physicians in Lady of the
Sea's employ. Lady of the Sea's proper name is the
Hospital District No. 1 of the Parish of Lafourche, d/b/a Our
Lady of the Sea General Hospital. See,
e.g., Hartman v. Lafourche Parish Hosp.,
262 F.Supp.3d 391, 394 (E.D. La. 2017); Hosp. Serv. Dist.
No. 1 of the Parish of Lafourche v. Thompson, 343
F.Supp.2d 518, 522 (E.D. La. 2004). Such hospital service
districts are considered to be political subdivisions of the
State. Le v. Unum Ins. Co. of America, No.
17-CV-0833, 2018 WL 3999730 at *9-11 (E.D. La. Aug. 21,
2018)(Brown, J.); Andrus v. Unum Life Ins. Co. of
America, No. 16-CV-1112, 2017 WL 2364247 at *3-6 (E.D.
La. May 31, 2017)(Morgan, J.); Bertrand v. Sandoz,
260 La. 239, 255 So.2d 754, 758-59 (La. 1971). Political
subdivisions of a state, however, as well as the
subdivision's officials acting in their official
capacity, are not considered to be “persons”
within the meaning of §1983. Will v. Michigan Dept.
of State Police, 491 U.S. 58, 109 S.Ct. 2304 (1989);
Anderson v. Phelps, 655 F.Supp. 560, 563-64 (M.D.
La. 1985). In addition, the Eleventh Amendment bars
citizens' suits in federal court against states, their
alter egos, and state officials acting in their official
capacity. Champagne v. Jefferson Parish Sheriff's
Office, 188 F.3d 312, 313-14 (5th Cir.
1999)(citing Voisin's Oyster House v. Guidry,
799 F.2d 183, 185 (5th Cir. 1986)). In light of
these authorities, Plaintiff's §1983 claims against
Lady of the Sea and Doctors Lefort, Jackson, Crenshaw, Vega,
and Pitre should be dismissed pursuant to
§1915(e)(2)(B)(i) and (ii). Stewart v. Warner,
No. 13-CV-4759, 2014 WL 3498165 at *3 (E.D. La. Jul. 15,
remaining two Defendants in this matter are Pharmacist Tim
Callais of the Golden Meadow Clinic Drug Store and the
Samart-Mothe Funeral Home. As noted, in order to set forth a
cognizable claim under §1983, an aggrieved party must
allege that the defendant, a “person” acting
under color of state law in accordance with an established
state procedure, deprived him of the rights, privileges, or
immunities secured by the Constitution or laws of the United
States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.
1908 (1981), overruled in part on other grounds,
Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct.
662, 664 (1986). As a general rule, private pharmacists and
funeral homes do not act under color of state law for
purposes of §1983 liability. Guilliam v. Wal-Mart
Pharmacy, No. 09-CV-0015, 2009 WL 1009879 at *2 (N.D.
Tex. Apr. 14, 2009)(pharmacist); Smith v. Fulton,
No. 02-CV-2300, 2002 WL 31906380 at *2 (N.D. Tex. Dec. 26,
2002)(funeral home). Accordingly, Plaintiff's purported
§1983 claims against Callais and Samart-Mothe should
also be dismissed with prejudice as frivolous.
Smith, 2002 WL 31906380 at *2. And to the extent
that Plaintiff's complaint can be read as naming Chad
Vining as an additional Defendant (see note 1,
supra), no actionable §1983 claim against him
lies here for the following reason. Plaintiff's
allegations against Vining are that he conducted only a
three-hour investigation into the circumstances surrounding
the death of Plaintiff's wife before concluding that
there was no foul play and declining to preserve the
deceased's remains for further study. (Rec. doc. 7, p.
14). Private citizens like Plaintiff, however, have no
constitutional right to have their complaints investigated by
federal or local officials, much less a right to have those
complaints resolved to their satisfaction. Hall v.
Peck, No. 16-CV-13527, 2017 WL 745729 at *2 (E.D. La.
Jan. 11, 2017), adopted, 2017 WL 788354 (E.D. La.
Feb. 23, 2017)(citing Bartholomew v. Ladreyt, No.
14-CV-1468, 2015 WL 365525 at *4 (E.D. La. Jan. 27, 2015));
Lovoi v. Federal Bureau of Investigation, No.
99-CV-3563, 2000 WL 33671769 at *2 n. 4 (E.D. La. Mar. 31,
2000). Stripped to essentials, the primary thrust of
Plaintiff's complaint sounds in the nature of medical
malpractice which is a state-law matter that does not give
rise to a §1983 cause of action. Brooks v. Miller,
No. 15-CV-5419, 2016 WL 144889 at *6 (E.D. La. Apr. 13,
foregoing reasons, it is recommended that Plaintiff's
complaint be dismissed with prejudice pursuant to 28 U.S.C.
§1915(e)(2)(B)(i) and (ii).
partys failure to file written objections to the proposed
findings, conclusions, and recommendation contained in a
magistrate judges report and recommendation within 14 days
after being served with a copy shall bar that party, except
upon grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions
accepted by the district court, provided that the party has
been served with notice that such consequences will result
from a failure to object. Douglass v. United States Auto.
Assoc, 79 F.3d 1415 (5th Cir. 1996)(en banc).
In the self-styled complaint
that he originally submitted for filing, Bourque included
Investigator Chad Vining of the Lafourche Parish
Coroner's Office as an additional Defendant. (Rec. doc.
1, pp. 1, 8, 17). When directed by the Clerk's Office to
re-submit his complaint on the standardized §1983 form,
Bourque made the conscious decision to drop Vining as a
Defendant, scratching his name off of the list of named
Defendants in the caption of his complaint and omitting
Vining from the roll of named Defendants ...