United States District Court, E.D. Louisiana
PARTIAL REPORT AND RECOMMENDATION
M. DOUGLAS, UNITED STATES MAGISTRATE JUDGE
Johnnie Harris, a state prisoner, filed this pro se civil
action pursuant to 42 U.S.C. Â§ 1983 alleging that, after his
jaw was broken at the Orleans Justice Center, he was denied
pain medication and a liquid diet. Currently pending before
the Court is a motion to dismiss filed by Dr. Xuong Nguyen
and Nurse Practitioner Deborah Gray.
the second such motion filed by Nguyen and Gray. In their
first motion, they argued that plaintiff failed to exhaust
his administrative remedies and, alternatively, failed to
state facially plausible claims against them. In a prior
Partial Report and Recommendation, the undersigned United
States Magistrate Judge recommended that their motion be
denied. Harris v. Gusman, Civ. Action No. 18-7685, 2019 WL
1177730 (E.D. La. Feb. 20, 2019). They filed no objections,
and the United States District Judge adopted that Partial
Report and Recommendation. Harris v. Gusman, Civ. Action No.
18-7685, 2019 WL 1168432 (E.D. La. Mar. 20,
and Gray have now filed yet another motion to
dismiss. Plaintiff opposed that motion,
Nguyen and Gray filed a sur-reply. Once again, the undersigned
finds that the defendants' motion to dismiss is meritless
and should therefore be denied.
instant motion, the defendants argue that plaintiff is
asserting state medical malpractice claims against them and
that those claims should be dismissed as premature because he
has not yet complied with a state law requiring that such
claims first be presented to a Medical Review Panel. La. Rev.
Stat. Ann. § 40:1231.8.
contrary to the defendants' argument, plaintiff is
not asserting state medical malpractice
claims. As was already determined in the prior rulings
in this case, plaintiff alleges intentional acts of
mistreatment and states facially plausible federal
constitutional claims under 42 U.S.C. §
1983. A plaintiff asserting such federal §
1983 claims has no obligation to comply with the state law
requirements applicable to state medical malpractice claims.
See, e.g., Adams v. Foti, Civ. Action No.
02-1059, 2004 WL 241859, at *4 (E.D. La. Feb. 5, 2004)
(Zainey, J.) (“[A]n inmate's complaint of
intentional failure to respond to his medical needs is not
governed by the [Louisiana Medical Malpractice Act] which
covers only unintentional acts. [Plaintiff] was therefore not
required to present his federal civil rights claim to a
Louisiana medical review panel.” (citation omitted));
accord Colbert v. City of Baton Rouge/Parish of East
Baton Rouge, Civ. Action No. 17-00028, 2018 WL 344966,
at *7 (M.D. La. Jan. 9, 2018); Shorts v. Oubre, Civ.
Action No. 15-3047, 2016 WL 1294409, at *4 (E.D. La. Jan. 19,
2016), adopted, 2016 WL 1268345 (E.D. La. Mar. 31,
2016); Bailey v. E.B.R. Parish Prison, Civ. Action
No. 12-224, 2015 WL 545706, at *3 (M.D. La. Feb. 9, 2015);
Thomas v. James, 809 F.Supp. 448, 449 (W.D. La.
therefore RECOMMENDED that the motion to
dismiss filed by Dr. Xuong Nguyen and Nurse Practitioner
Deborah Gray, Rec. Doc. 32, be DENIED.
party's failure to file written objections to the
proposed findings, conclusions, and recommendation in a
magistrate judge's report and recommendation within
fourteen (14) days after being served with a copy shall bar
that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to object.
28 U.S.C. § 636(b)(1); Douglass v. United Services
Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en
 Rec. Doc. 25.
 Rec. Doc. 26.