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Miller v. Singh

United States District Court, M.D. Louisiana

January 3, 2019

MARK MILLER #473135
v.
DR. PREETY SINGH, ET AL.

         NOTICE

         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

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Motion to Dismiss filed on behalf of defendants James LeBlanc, Tim Hooper, Wanda Dupuy, Dr. Matthew Gamble, Gregory Polozolo, and Dr. Casey McVea (R. Doc. 13). The motion is opposed. See R. Doc. 20.

         The pro se plaintiff, an inmate now confined at Allen Correctional Center (“ACC”), Kinder, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 and the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. (“ ADA”) against Dr. Preety Singh, Warden Tim Hooper, Nurse Wanda Dupuy, Gregory Polozolo, Dr. Raman Singh, Secretary James LeBlanc, Dr. Matthew Gamble, Dr. Bickham, and Dr. Casey McVea complaining that his constitutional rights were violated due to deliberate indifference to his serious medical needs.[1] He prays for monetary and declaratory.

         Defendants Hooper and LeBlanc first seek dismissal on jurisdictional grounds, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, of the plaintiff's § 1983 claims against them in their official capacities. In this regard, the defendants are correct that § 1983 does not provide a federal forum for a litigant who seeks monetary damages against either a state or its officials acting in their official capacities, specifically because these officials are not seen to be “persons” within the meaning of § 1983. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989). In addition, in Hafer v. Melo, 502 U.S. 21 (1991), the United States Supreme Court addressed the distinction between official capacity and individual capacity lawsuits and made clear that a suit against a state official in an official capacity for monetary damages is treated as a suit against the state and is therefore barred by the Eleventh Amendment. Id. at 25.

         Accordingly, the plaintiff's § 1983 claims asserted against the defendants in their official capacities, for monetary damages, are subject to dismissal. In contrast, the plaintiff's claims for monetary damages asserted against the defendants in their individual capacities remain viable because a claim against a state official in an individual capacity, seeking to impose personal liability for actions taken under color of state law, is not treated as a suit against the state. Id. at 29. The plaintiff's claims for declaratory relief asserted against the defendants in their official capacities also remain viable because such a claim is not treated as a claim against the state. Will v. Michigan Department of State Police, supra, 491 U.S. at 71 n.10.

         Turning to the plaintiff's claims that are not subject to dismissal on the basis of Eleventh Amendment immunity, the defendants next assert, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, that the 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 clarified 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). Notwithstanding, 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, the plaintiff alleges that he suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and hearing impairment. On June 19, 2016, the plaintiff submitted a Health Care Request Form requesting treatment for tinnitus in both ears and the inability to hear. The plaintiff's request was not addressed. On August 8, 2016, the plaintiff submitted a Request for Administrative Remedy (“ARP”) to defendant Hooper concerning malicious deprivation of appropriate treatment for his ADHD and hearing impairment, and refusal to provide medically prescribed treatment for neck, shoulder and wrist injuries. On August 30, 2016 the plaintiff's ARP was denied at the first step by defendant Polozolo. On September 4, 2016, defendant Dupuy responded to the plaintiff's ARP stating that the plaintiff's health care request was concerning noisy fans in the plaintiff's housing unit. Defendant Dupuy also stated that an appointment scheduled for August 19, 2016 was cancelled due to major flooding and was rescheduled 72 hours later. On November 4, 2016, the plaintiff's ARP was denied at the second step by defendant LeBlanc.

         Subsequently, defendant Dr. Preety Singh denied the plaintiff adequate assistance with his ADHD by failing to issue the plaintiff a duty status properly identifying medical restrictions necessitated by his special needs. The plaintiff was then subjected to “diesel therapy” and was transferred to another prison facility. Upon his arrival at Dixon Correctional Institute, the plaintiff informed the staff of his medical needs, but experienced difficulty receiving treatment due to the lack of properly issued medical prescriptions. All of the defendants colluded to deprive the plaintiff of adequate medical care by denying him medical attention, treatment, interfering with prescribed treatments and retaliating against him for filing an ARP.

         In order for there to be liability in connection with a claim of deliberate medical indifference, an inmate plaintiff must allege that appropriate medical care has been denied and that the denial has constituted “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976); Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir.1985). Whether the plaintiff has received the treatment or accommodation that he believes he should have is not the issue. Estelle v. Gamble, supra. Nor do negligence, neglect, unsuccessful treatment, or even medical malpractice, give rise to a § 1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991). Rather, “subjective recklessness as used in the criminal law” is the appropriate definition of “deliberate indifference” under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 839-30 (1994). 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.” Id. at 837. The deliberate indifference standard sets a very high bar: the plaintiff must be able to establish that the defendants ‚Äúrefused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton ...


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