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Harris v. Gusman

United States District Court, E.D. Louisiana

May 28, 2019

JOHNNIE HARRIS
v.
SHERIFF MARLIN GUSMAN, ET AL.

         SECTION: “A” (3)

          PARTIAL REPORT AND RECOMMENDATION

          DANA M. DOUGLAS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Johnnie Harris, a state prisoner, filed this pro se civil action pursuant to 42 U.S.C. § 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.

         This is 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).[1] 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, 2019).[2]

         Nguyen and Gray have now filed yet another motion to dismiss.[3] Plaintiff opposed that motion, [4] and Nguyen and Gray filed a sur-reply.[5] Once again, the undersigned finds that the defendants' motion to dismiss is meritless and should therefore be denied.

         In the 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.

         However, 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.[6] 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. 1993).

         RECOMMENDATION

         It is therefore RECOMMENDED that the motion to dismiss filed by Dr. Xuong Nguyen and Nurse Practitioner Deborah Gray, Rec. Doc. 32, be DENIED.

         A 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 banc).

---------

Notes:

[1] Rec. Doc. 25.

[2] Rec. Doc. 26.


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