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Johnson v. Larpenter

United States District Court, E.D. Louisiana

December 8, 2018

LEROY JOHNSON, JR.
v.
SHERIFF JERRY LARPENTER, ET AL.

         SECTION: “E” (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Leroy Johnson, Jr., a state pretrial detainee, filed this pro se and in forma pauperis federal civil action pursuant to 42 U.S.C. § 1983. He sued Sheriff Jerry Larpenter, Richard Petie Neal, Warden Claude Triche, and the Terrebonne Parish Consolidated Government. In this lawsuit, plaintiff claims that he was denied adequate medical care while incarcerated at the Terrebonne Parish Criminal Justice Complex.

         Specifically, plaintiff alleges that he is a diabetic who was arrested on February 22, 2018. At the time of his arrest, he was suffering from an infection in his mouth which caused him constant pain, facial swelling, and difficulty eating and swallowing.[1] When he filed a grievance concerning the matter in March, Richard Petie Neal responded, stating that plaintiff could be placed on the waiting list to see the dentist by turning in a dental request form.[2] Plaintiff appealed that response, and, on April 2, Warden Claude Triche responded in writing, stating:

IN REFERENCE TO STEP TWO OF YOUR INMATE GRIEVANCE. I TALK WITH RICHARD “PETIE” NEAL, THE MEDICAL ADMINISTRATOR FOR THIS FACILITY REFERENCE TO YOUR STEP ONE GRIEVANCE. AT THIS TIME I AGREE WITH HIS ADMINISTRATIVE COMMENTS TO YOU. BECAUSE THERE IS A WAITING LIST FOR INMATES TO GO SEE THE DENTIST AND YOU ON IT. ALSO, A FAMILY MEMBER CAN MAKE YOU A PRIVATE APPOINTMENT WITH A DENTIST AND PAY FOR IT. THEN THE DENTIST OFFICE CAN CALL HERE FOR THE MEDICAL DEPARTMENT AND SET THE APPOINTMENT UP.
REFERENCE TO YOU WANTING TO BE SHIPPED TO A D.O.C. FACILITY TO HAVE YOUR MEDICAL ISSUES FIXED. YOU HAVE TO GO TO COURT ON YOUR CHARGES AND BECOME A D.O.C. INMATE FIRST BEFORE YOU CAN GET SHIPPED TO A D.O.C. FACILITY. ALSO, YOU ARE HOUSED HERE IN A MEDICAL DORM - B200 AND YOU ARE GETTING MEDICAL TREATMENT AND SEEING THE DOCTOR. I WAS ALSO ADVISED BY RICHARD ‘PETIE' NEAL YOU WILL BE SHIPPED TO A D.O.C. FACILITY ONCE YOU RECEIVED YOUR TIME AND GET SENTENCE AND APPROVED BY D.O.C. TO BE SHIPPED.[3]

         On May 10, 2018, plaintiff then expressed his concerns in person to Dr. Haydel, the jail's physician. Dr. Haydel asked unidentified members of the jail medical staff what they were doing for plaintiff, and they replied that they were attempting to have him shipped to a different facility.[4]

         On May 16, 2018, plaintiff saw the dentist. Plaintiff alleges that he informed the dentist that there was an infection in one of his teeth; however, the dentist replied that there was no infection and pulled the tooth. Plaintiff alleges that, during the procedure, his “gum line” was ripped and the bone broken, causing his infection to spread. He alleges that he is now being told that all of his teeth will have to be pulled.[5]

         Plaintiff also makes a vague reference to having experienced unresolved numbness and pain in his foot; however, he provides no other details concerning that contention.[6]

         Claims Against Richard Petie Neal and the Terrebonne Parish Consolidated Government

         Richard Petie Neal and the Terrebonne Parish Consolidated Government filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, [7] which plaintiff opposed.[8]

         Rule 12(b)(6) allows a defendant to move for dismissal when a plaintiff fails to state a claim upon which relief can be granted. In ruling on such a motion, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). However, “[t]o survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient facts to state a claim to relief that is plausible on its face. 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).” Id. (citation, footnote, and quotation marks omitted). On that point, the United States Supreme Court has explained:

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. The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted).

         In this lawsuit, plaintiff sued Neal in both his official and individual capacities.[9] However, as the defendants note in their motion, “[o]fficial capacity suits generally represent another way of pleading an action against an entity of which an officer is an agent.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Therefore, any official-capacity claim against Neal is in reality a claim against the local governmental body itself, the Terrebonne Parish Consolidated Government. See Hinojosa v. Larpenter, Civ. Action No. 17-9861, 2018 WL 794390, at *4 (E.D. La. Feb. 8, 2018).

         Accordingly, both plaintiff's official-capacity claim against Neal and the claim directly asserted against the Terrebonne Parish Consolidated Government must be considered in light of the jurisprudence applicable to claims against local government units. Specifically:

In order to hold a municipality or a local government unit liable under Section 1983 for the misconduct of one of its employees, a plaintiff must initially allege that an official policy or custom was a cause in fact of the deprivation of rights inflicted. To satisfy the cause in fact requirement, a plaintiff must allege that the custom or policy served as a moving force behind the constitutional violation at issue or that [his] injuries resulted from the execution of an official policy or custom. The description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts.

Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) (emphasis added; citations, quotation marks, and brackets omitted). Further, “[a] plaintiff may not infer a policy merely because harm resulted from some interaction with a governmental entity.” Colle v. Brazos County, Texas, 981 F.2d 237, 245 (5th Cir. 1993); see also Wetzel v. Penzato, Civ. Action No. 09-7211, 2009 WL 5125465, at *3 (E.D. La. Dec. 23, 2009). Rather, he must identify the policy or custom which allegedly caused the deprivation of his constitutional rights. See, e.g., Murray v. Town of Mansura, 76 Fed. App'x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 Fed. App'x 315, 316 (5th Cir. 2003); Wetzel, 2009 WL 5125465, at *3. In the instant case, plaintiff does not allege that his constitutional rights were violated as a result of a policy or custom, much less identify such a policy or custom. Therefore, he has failed to state a proper claim against either Neal in his official capacity or the Terrebonne Parish Consolidated Government.

         Plaintiff has also asserted a claim against Neal in his individual capacity. “Plaintiffs suing governmental officials in their individual capacities ... must allege specific conduct giving rise to a constitutional violation. This standard requires more than conclusional assertions: The plaintiff must allege specific facts giving rise to the ...


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