United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
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.
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.
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).
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).
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.
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.
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
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.
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. ...