United States District Court, E.D. Louisiana
DESMOND C. PARKER
MARLIN N. GUSMAN, ET AL.
ORDER AND REASONS
JANISVAN MEERVELD UNITED STATES MAGISTRATE JUDGE
Desmond C. Parker, a state prisoner, filed this pro
se federal civil rights action asserting various claims
against a number of defendants. Through the course of the
litigation all but one of the claims have been dismissed.
See Parker v. Gusman, Civ. Action No. 16-1609, 2016
WL 7167938 (E.D. La. Nov. 8, 2016), adopted, 2016 WL
7156076 (E.D. La. Dec. 8, 2016); Parker v. Gusman,
Civ. Action No. 16-1609, 2018 WL 279628 (E.D. La. Jan. 2,
2018), appeal dismissed, No. 18-30076, 2018 WL
3414050 (5th Cir. June 21, 2018). The only claim that remains
is plaintiff's claim that Shontrell Cooper was
deliberately indifferent to his need for medical care.
respect to that claim, Cooper has now filed a motion for
summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Plaintiff has opposed that
motion. The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
reviewing a motion for summary judgment, the Court may grant
the motion when no genuine issue of material fact exists and
the mover is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). There is no “genuine issue”
when the record taken as a whole could not lead a rational
trier of fact to find for the nonmovant. Matsushita
Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
the party moving for summary judgment bears the initial
burden of informing the district court of the basis for its
motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of
material fact.” Taita Chemical Co., Ltd. v.
Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir.
2001) (quotation marks and brackets omitted). The party
opposing summary judgment must then “go beyond the
pleadings and by [his] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted);
accord Provident Life and Accident Ins. Co. v. Goel,
274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to
search the record for evidence to support a party's
opposition to summary judgment; rather, “[t]he party
opposing summary judgment is required to identify specific
evidence in the record and to articulate the precise manner
in which the evidence supports his or her claim.”
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998). Conclusory statements, speculation, and
unsubstantiated assertions are not competent summary judgment
evidence and will not suffice to defeat a properly supported
motion for summary judgment. Id.; Douglass v.
United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th
motion, Cooper argues that she is entitled to summary
judgment on the claim against her on two grounds: (1)
plaintiff's allegations, even if true, do not rise to a
level of deliberate indifference to a serious medical need;
and (2) plaintiff failed to exhaust his administrative
remedies by properly completing the jail's grievance
procedure. Because the first ground has merit, the Court need
not reach the second ground.
noted, plaintiff claims that Cooper violated his
constitutional right to medical care. Obviously, all inmates,
regardless of whether they are pretrial detainees or
convicted prisoners, have a right to medical care in jail.
However, that right is a limited one, and an inmate's
constitutional right to medical care is violated only if his
“serious medical needs” are met with
“deliberate indifference” on the part of penal
authorities. See Thompson v. Upshur County, 245 F.3d
447, 457 (5th Cir. 2001); Harris v. Hegmann, 198
F.3d 153, 159 (5th Cir. 1999).
United States Fifth Circuit Court of Appeals has explained
that “[a] serious medical need is one for which
treatment has been recommended or for which the need is so
apparent that even laymen would recognize that care is
required.” Gobert v. Caldwell, 463 F.3d 339,
345 n.12 (5th Cir. 2006). The Fifth Circuit has held that
“non-life-threatening injuries are a serious medical
need where the injuries induced severe pain.”
Thomas v. Carter, 593 Fed.Appx. 338, 342 (5th Cir.
2014). Here, plaintiff alleges that he had a painful ankle
fracture which went without appropriate treatment and, as a
result, he will suffer from arthritis for the rest of his
life. Earlier in this litigation, the Court determined that
plaintiff's fractured ankle was a serious medical need.
Parker v. Gusman, Civ. Action No. 16-1609, 2016 WL
7167938, at *4 (E.D. La. Nov. 8, 2016), adopted,
2016 WL 7156076 (E.D. La. Dec. 8, 2016).
in order to prevail on his claim against Cooper, plaintiff
must additionally show that she was deliberately indifferent
to that serious medical need. The United States Fifth Circuit
Court of Appeals has explained:
Deliberate indifference is an extremely high standard to
meet. It is indisputable that an incorrect diagnosis by
prison medical personnel does not suffice to state a claim
for deliberate indifference. Rather, the plaintiff must show
that the officials refused to treat him, ignored his
complaints, intentionally treated him incorrectly, or engaged
in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs. Furthermore, the
decision whether to provide additional treatment is a classic
example of a matter for medical judgment. And, the failure to
alleviate a significant risk that the official should have
perceived, but did not is insufficient to show deliberate
Domino v. Texas Department of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001) (citations, quotation marks,
and brackets omitted). “Deliberate indifference
encompasses only unnecessary and wanton infliction of pain
repugnant to the conscience of mankind.” McCormick
v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997); see
also Stewart v. Murphy, 174 F.3d 530, 534 (5th
motion, Cooper explains that she was simply a jail assistant
whose role was limited to evaluating and responding to inmate
grievances within the narrow guidelines provided by her
superiors. Specifically, in the affidavit in support of her
motion, she states:
1. I am of legal age and competent to make this Declaration.
2. At the time of the claims involved in this matter, I was a
Medical Assistant working as the Grievance Clerk for the
Orleans Justice Center. I was an employee of Correct Care
Solutions beginning in 2014; and in my position, I
participated in the management of grievances associated with
medical care delivered in the Jail.
3. As a Grievance Clerk, I had on occasion to respond to
certain inmate grievances submitted by Desmond Parker. For
purposes of this Declaration, I have reviewed the grievances
submitted by this inmate. Copies of all grievances to which I
have access in the OJC computer system are attached to this
Affidavit. (Attachment 1)
4. The internal grievance system at the Orleans Justice
Center (“OJC”) allows inmates to submit
grievances through kiosks located on each floor. Based on my
review of the records, Mr. Parker submitted a number of
grievances involving several issues. I was not involved in
all of the grievance responses for Mr. Parker.
5. In preparing the response to any grievance, my role is
limited. Upon receipt of the grievance, I generally review
the inmate's medical record, the status of treatment, and
the medication profile.
6. While grievances take many different forms, the grievances
at issue in this case involve follow up medical appointments,
new requests for treatment, or missed medications. Each issue
is handled based on the inmate's current condition and
7. For example, in those cases where Mr. Parker filed a
grievance related to a follow up appointment, I checked the
medical record and appointment record for an existing
appointment. Once I confirmed a follow up for the issue he
raised, my response to the grievance was limited ...