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Harris v. Gusman

United States District Court, E.D. Louisiana

February 20, 2019


         SECTION: “A” (3)



         Plaintiff, Johnnie Harris, a state prisoner, filed this pro se civil action against Orleans Parish Sheriff Marlin Gusman, Director of Medical Services “John Doe, ” and “Inmate Green.” Plaintiff brought this action pursuant to 42 U.S.C. § 1983, which provides in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ….

42 U.S.C. § 1983.

         In his original complaint, plaintiff stated his claims as follows (without any alterations to grammar or spelling):

Inmate Green attacked Johnnie Harris on 7-26-2018 and broke my jaw. Security intervened and escorted Mr. Harris to prison infirmary. Mr. Harris was examined by infirmary personnel and within 3 hours was transported to University Medical Center. I got a CAT-Scan and I was admitted overnight, also preped for operation Friday, July 27, 2018. At or around 3:45 p.m. the nurse informed me that the operation would be that following Monday 7/30/2018. At or around 5:45 p.m. I was discharged back into the custody of O.J.C. with a list of medications and a liquid diet. Upon returning to OJC I sat in medical while the medical staff put the lists into their computers. I was not administered any medication or nothing to eat. I phsycially layed in the rack in severe pain and hunger from 7/27/18 until 8/1/2018 when the operation was performed. I went without any food until 8/3/2018, and no medication until 8/1/2018.[1]

         On October 25, 2018, a Spears hearing was held in this matter by United States Magistrate Judge Daniel E. Knowles, III. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). “[T]he Spears procedure affords the plaintiff an opportunity to verbalize his complaints, in a manner of communication more comfortable to many prisoners.” Davis v. Scott, 157 F.3d 1003, 1005-06 (5th Cir. 1998). The United States Fifth Circuit Court of Appeals has observed that a Spears hearing is in the nature of a Fed.R.Civ.P. 12(e) motion for more definite statement. Eason v. Holt, 73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony becomes a part of the total filing by the pro se applicant. Id.

         At that hearing, plaintiff reiterated the allegations of his complaint. Further, when he was asked why he named Sheriff Gusman as a defendant, plaintiff testified that he sued Gusman simply because he is “the head of the jail”; however, plaintiff conceded that Gusman was not personally involved in the denial of medication or food. When plaintiff was asked why he sued the unidentified Director of Medical Services, plaintiff similarly explained that the medical director was sued based on his supervisory position, again conceding that the medical director was not personally involved in the denial of medication or food.

         After the Spears hearing, Magistrate Judge Knowles issued a minute entry which, in pertinent part, stated:

Plaintiff testified that neither Sheriff Gusman nor the Orleans Justice Center Medical Director were personally involved in denying plaintiff medication or food during the referenced period. Accordingly, if plaintiff wishes to file an amended complaint to assert claims against the individuals who personally denied him medication and food, the Court hereby grants him leave to do. Any amended complaint must be filed with the Court on or before December 7, 2018, and it must include the following information: (1) the name of each person plaintiff seeks to add as a defendant; (2) a proper service address for each such person; and (3) a short and plain statement of each claim plaintiff wishes to assert against each such person.[2]

         Magistrate Judge Knowles also ordered Sheriff Gusman's counsel to produce both to the Court and to plaintiff certified copies of plaintiff's medical records and dietary records from the Orleans Justice Center for the period of July 26, 2018 through September 30, 2018.[3] Those records were subsequently received and filed into this federal record.[4]

         In accordance with the minute entry, plaintiff did in fact file an amended complaint in which he added four new defendants: Dr. Xuong Nguyen; Nurse Practitioner Deborah Gray; Major Nicole Harris; and Kitchen Supervisor Captain Taylor.[5]

As to Dr. Nguyen, plaintiff alleged:
On 7/27/2018 upon my return from U.M.C. to Orleans Justice Center I was escorted to medical where they received and entered my paper-work into their data-base. Doctor Nguyen began to exam and probe my face, mouth, but mainly my jaw. Asked me what was my pain level. I replied not bad at the moment but I know that medication will start to wear off. He told me that he would have the nurse give me something at last med-pass and he sent an urgent memo to the kitchen because I have a full-liquid diet. I received nothing. On the 31st of July I was brought back to medical. Dr. Nguyen again asked me about my pain-level. I informed him when when my jaw shifts the pain is blinding and it has been that since I last saw you Friday July 27th. After laughing and admitting that he completely forgot about me he gave me 100 mgs of Ibuprofen for a broken jaw. I informed him that I still hadn't eaten since Wednesday July 26th. He told me I'll survive until I received it. I didn't get my liquid diet until Friday August 3rd, 2018.[6]
As to Nurse Practitioner Gray, plaintiff alleged:
Monday July 30th while I was outside of the 1st Floor triage Nurse Gray asked me how I was feeling. I told her I was in a lot of pain and asked her could she please give me something because I have not been given anything for my pain. She told me that she could not give me anything without seeing my chart. I asked her could she check it for me please. She blatantly told me, no.[7]
As to Major Nicole Harris, plaintiff alleged:
Monday July 30th I stopped Major Harris while was making rounds and I expressed to her my injury and I was not receiving no kind of medicine or had not eaten since Thursday July 26th 2018. She asked me what exactly did I wanted her to do about it? I asked could she just look into it for me. She told me that she has nothing to do with medical. I said alright well could you see why I haven't my liquid diet yet since you're over security. She told me to just write Captain Taylor that's her department.[8]
As to Captain Taylor, plaintiff alleged:
I wrote and complained to Captain Taylor since 7/30/2018 that I had not received my full liquid diet. I personally watched a nurse enter my paper-work into the computer system and for me not to be able to eat until 8/3/2018 there's no excuse. Captain Taylor never responded to me personally. Somebody told me that they were just informed of my diet and they sent a form for me to sign for my diet (5) days after it was ordered and it still took (2) more days just to receive my first meal since 7/26/2018.[9]

         Upon Magistrate Judge Knowles' retirement, this matter was reassigned to the undersigned United States Magistrate Judge.[10]

         I. Motion to Dismiss

         Dr. Nguyen and Nurse Practitioner Gray have now filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.[11] Plaintiff opposes that motion.[12]

         Rule 12(b)(6) allows a defendant to move for dismissal when a plaintiff fails to state a claim upon which relief can be granted. In ruling on such a motion, “[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). However, “[t]o survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the ...

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