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Washington v. Lavespere

United States District Court, M.D. Louisiana

February 15, 2019




         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.



         This matter comes before the Court on Motion to Dismiss filed on behalf of defendant Dr. Randy Lavespere (R. Doc. 13). The motion is opposed. See R. Doc. 17.

         The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary (“LSP”), Angola, Louisiana, filed this proceeding pursuant to 42 U.S.C. § 1983 Dr. Randy Lavespere and Dr. Cynthia Park complaining that his constitutional rights were violated due to deliberate indifference to his serious medical needs. He prays for declaratory and monetary relief.

         The defendant asserts, 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).

         With regards to Dr. Lavespere, in his Complaint as amended, the plaintiff alleges that prior to his incarceration he sustained a gun shot wound to his right leg. In the latter part of 2016, the plaintiff began to experience complications with his wound and was seen by Dr. Lavespere. Dr. Lavespere transferred the plaintiff to an outside hospital for surgery. Following the surgery, the plaintiff was returned to LSP and the plaintiff informed Dr. Lavespere that he was experiencing a lot of pain and requested medication for the same. After reviewing the plaintiff's medical file, Dr. Lavespere decided to prescribe Neurontin which had worked well in the past for the plaintiff's leg pain.

         After a couple days the plaintiff spoke to Dr. Lavespere because he was still experiencing leg pain and he had not received the Neurontin. Dr. Lavespere informed the plaintiff that he would not be prescribing Neurontin because he had spoken with Dr. Park who informed Dr. Lavespere that the plaintiff had either sold or given away this medication in the past. The plaintiff denied the same, but questioned what allegations from six months prior had to do with Dr. Lavespere now prescribing Neurontin. Dr. Lavespere left the room.

         The plaintiff requested that, per prison protocol, Dr. Lavespere prescribe Neurontin and have a nurse or guard observe him while he took the medication, but Dr. Lavespere rejected this alternative approach. Dr. Lavespere provided a substitute pain medication, but the substitute medication was ineffective.

         Defendant Dr. Lavespere first asserts that he is entitled to qualified immunity in connection with the plaintiff's claims. The qualified immunity defense is a familiar one and, employing a two-step process, operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473 Fed.Appx. 398 (5th Cir. 2012). As enunciated in Saucier v. Katz, 533 U.S. 194 (2001), the first step in the analysis is to consider whether, taking the facts as alleged in the light most favorable to the plaintiff, the defendant's conduct violated the plaintiff's constitutional rights. Id. at 201. Second, the district court looks to whether the rights allegedly violated were clearly established. Id. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as a broad, general proposition. Id. The relevant, dispositive inquiry in determining whether a constitutional right was clearly established is whether it would have been clear to a reasonable state official that his conduct was unlawful in the situation which he confronted. Id.

         Undertaking the qualified immunity analysis, the Court finds that the defendant's motion should be granted. Specifically, the Court concludes that the plaintiff has failed to state a claim against Dr. ...

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