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Kimble v. Lexus of New Orleans

United States District Court, E.D. Louisiana

January 11, 2019

RAYMOND H. KIMBLE, III
v.
LEXUS OF NEW ORLEANS ET AL.

         SECTION “S” (2)

          REPORT AND RECOMMENDATION

          JOSEPH C. WILKINSON JR. UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Raymond H. Kimble, III, is a prisoner in the Jefferson Parish Correctional Center (“JPCC”) in Gretna, Louisiana. He filed this complaint pro se and in forma pauperis pursuant to 42 U.S.C. § 1983 ("Section 1983"), originally in the United States District Court for the Middle District of Louisiana ("Middle District"). The original defendants were Lexus of New Orleans ("Lexus"); 19th Judicial District Office of Public Defenders; Brad Scott; Dan Schilling; Delatte, Edward & Marcantel; D. Carson Marcantel; Dickerson, LeBlanc & Woods; Victor J. Woods, Jr.; Jefferson Parish Sheriff's Office; Detective David Deroche; Doug Welborn, Clerk of Court; 24th Judicial District Public Defenders Office. Record Doc. No. 1. Plaintiff's amended complaint brought additional claims against defendants Correct Health Medical and JPCC. Record Doc. No. 8. He seeks injunctive and monetary relief. Record Doc. No. 1 (Complaint at ¶ V).

         On July 18, 2018, the Middle District magistrate judge issued a report recommending that plaintiff's complaint be dismissed. Record Doc. No. 12. The district judge in the Middle District adopted the magistrate judge's report and dismissed all of plaintiff's claims, except his claim that he received inadequate medical care at JPCC. Record Doc. No. 15.

         The case was then transferred to this court on August 20, 2018. Record Doc. Nos. 16, 17. Considering the dismissal order previously issued in the Middle District, the only claim remaining for this court to address is whether plaintiff received inadequate medical care from the remaining defendants while incarcerated at JPCC during August to November 2017. Id. The sole remaining defendants in this matter are Jefferson Parish Sheriff's Office, Correct Health Medical and JPCC. Id.

         On November 13, 2018, I conducted a telephone conference. Participating were plaintiff, pro se; and Kyle Kirsch, counsel for defendants. Plaintiff was sworn and testified for all purposes permitted by Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and its progeny.

         THE RECORD

         In the November 13, 2018 hearing, plaintiff testified that he was then incarcerated at JPCC. He stated that he has criminal charges pending in Jefferson Parish for simple burglary and aggravated flight. Plaintiff testified that he also has an armed robbery charge and two burglary charges pending in East Baton Rouge Parish. Plaintiff said that he has been transferred between the Jefferson and East Baton Rouge Parish jails since April 2016. He stated that he is moved back and forth between the parishes as needed to address his pending criminal charges, but JPCC is his official housing location. Plaintiff stated that he has not yet been convicted of any crime in either parish. Plaintiff affirmed that his one remaining claim in the instant lawsuit is that he received inadequate medical care from the remaining defendants while incarcerated in JPCC during August to November 2017.

         Plaintiff testified that in late July 2017, he was involved in an altercation in East Baton Rouge Parish Prison ("EBRPP"), in which his eye was injured. Plaintiff testified that he received a black eye in the altercation. He said that after the altercation he was seen by medical staff at EBRPP. Plaintiff stated that when medical staff examined him, they observed that his eye was damaged. He testified that medical staff speculated that the interior part of his eye had been scratched during the altercation. Plaintiff said that he was told by an unnamed EBRPP nurse that he may need to see an ophthalmologist for his eye injury.

         Plaintiff testified that on August 2, 2017, approximately three days after the altercation and initial examination by EBRPP medical staff, he was transferred to JPCC. Plaintiff testified that upon entry at JPCC, a screening examination was performed on him by Nurse Griselda Jones, in which his blood pressure and vitals were checked. Plaintiff stated that during the screening process, he informed JPCC medical staff that his eye was injured and that EBRPP medical staff had advised him to see an ophthalmologist. Plaintiff testified that upon entry to JPCC, he had in his possession a gel solution prescribed to him by EBRPP medical staff. He stated that this gel solution was taken from him by JPCC prison staff during the screening process. He testified that he was placed on a "tier" after the screening examination. Plaintiff said that he subsequently filled out a sick call form and informed the staff nurse multiple times that something was wrong with his eye and that he would like to be seen by a nurse.

         Plaintiff stated that on or about August 2, 2017, JPCC staff brought him a cream in a "big, white tube" to soothe his eye, which plaintiff believed to be "something similar to artificial tears." Plaintiff said that he administered the cream to his eye twice that same day, which caused his eye to burn. Plaintiff stated that did not read the directions on the white tube, which stated "not for ophthalmic use, not for use on the eye." He stated that later that night, he informed JPCC Deputy Whitley about his adverse reaction to the cream. Plaintiff stated that Whitley took him off the tier and downstairs to the JPCC medical unit to return the cream to medical staff.

         Kimble testified that on or about August 3, 2017, he called his family to tell them about the burning reaction to the cream. Plaintiff said that his family sent JPCC/Correct Health staff an email describing the type of medication plaintiff had received and that JPCC medical staff had given plaintiff the wrong medication for his eye injury. He stated that prison staff subsequently removed him from the tier and brought him downstairs to the medical unit to see Nurse Skye Noble. Nurse Noble asked plaintiff if he still had the cream that caused the adverse reaction, and plaintiff told her that he had given it to medical staff the previous night.

         Kimble testified that after he returned the cream and spoke to Nurse Noble, he was not seen by medical staff until August 28, 2017. He stated that between the return of the cream and August 28, 2017, he complained numerous times to deputies and nurses that his eye was "bloodshot red." Plaintiff testified that after he turned in two sick call requests, he was told by prison staff that if he continued to make these requests, his medical appointment date would get pushed back with each request filed. Plaintiff said that he made numerous requests of JPCC deputies for an emergency sick call.

         Kimble stated that on the morning of August 28, 2017, he woke up with an "inflamed, swollen, bloodshot-red eye." He stated that his vision in the injured eye was obscured and that he "couldn't even touch it to close it." Plaintiff said that he called his family about his eye condition, and that his family subsequently contacted the prison. Plaintiff stated that he was seen by a physician's assistant, Juanita Alexander-Sallier, on August 28, 2017, at about 1:00 p.m. Plaintiff testified that as soon as Alexander-Sallier saw plaintiff's eye, she advised him that he had developed an eye infection. Kimble stated that Alexander-Sallier gave him antibiotic eye drops, which she told him to administer to his eye for one week, four times a day, every six hours. Plaintiff testified that Alexander-Sallier told him his eye would be soothed almost immediately after administering the eye drops. Kimble said that his eyes became soothed and his eye infection began to disappear after three to four days of use of the eye drops. He testified that Alexander-Sallier told him that she would see him again for a followup appointment one week after August 28, 2017.

         Plaintiff stated that he was not seen by Alexander-Sallier or any medical staff the following week. Plaintiff stated that he discontinued use of the eye drops after one week, in compliance with the instructions Alexander-Sallier gave him on August 28. He testified that on or about September 4, 2017, at 8 or 9 p.m., his eye became inflamed and started burning again. Plaintiff said that he told JPCC prison staff that he wanted to make an emergency sick call to find out what was wrong with his eye. He said that prison staff ...


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