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Nixon v. Larpenter

United States District Court, E.D. Louisiana

July 13, 2019

MICHAEL NIXON
v.
JERRY LARPENTER, ET AL.

         SECTION: “F” (5)

          ORDER AND REASONS

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.

         Before the Court is the motion for summary judgment of Defendants, the Terrebonne Parish Consolidated Government (“TPCG”), Richard Neal (“Neal”), Terrebonne Parish Sheriff Jerry J. Larpenter (“Larpenter”), and Claude Triche (“Triche”), former Warden of the Terrebonne Parish Criminal Justice Complex (“TPCJC”). (Rec. docs. 61. 76). Also before the Court are Plaintiff's memorandum in opposition to the motion as well as Defendants' reply. (Rec. docs. 82, 85). Despite scheduling oral argument on Defendants' motion for May 1, 2019 at 11:00 a.m. (rec. doc. 66) and subsequently continuing the hearing until June 5, 2019 at 11:00 a.m. (rec. doc. 77), no one on Plaintiff's behalf appeared on the latter date and time to argue the matter, so the matter is being decided on the briefs. (Rec. doc. 86). For the reasons that follow, it is ordered that Defendants' motion is granted and that Plaintiff's suit is dismissed.

         The above-captioned matter had its genesis on January 29, 2016 when Plaintiff, Michael Nixon, through counsel, filed a complaint against Larpenter, Triche, Neal, Dr. Richard Haydel, the Medical Director at TPCJC, the TPCG, and other unnamed individuals and insurance companies, asserting claims under 42 US.C. §1983 and “like claims” arising under state law. (Rec. doc. 1). Plaintiff alleged that “… on or about [the] end of January or beginning of February [of] 2015, ” after being arrested and incarcerated at TPCJC since December of 2014, he began experiencing symptoms of what would later be diagnosed as Fournier's gangrene and necrotizing fasciitis of the perineum and right buttock. (Id.). Plaintiff stated that he requested medical care “repeatedly” from three “John Doe” Defendants, to no avail, and that when he finally received “medical treatment” from a fourth “John Doe, ” a member of the medical staff at TPCJC, it came only in the form of “small portions of inadequate topical ointment and band aids” without an actual physical examination of the site of the infection. (Id.). As a result, Plaintiff alleged that his condition worsened to point that he was forced to drain pus from the infection site himself. (Id.). Once released from custody, Plaintiff indicated that he sought treatment from and was ultimately admitted to the Terrebonne General Medical Center (“TGMC”) where he underwent several surgical procedures including a colostomy. (Id.). For the alleged failure of the TPCJC staff to acknowledge and properly treat his medical condition, Plaintiff alleged that the four named Defendants were liable to him under both federal and state law under a theory of respondeat superior. (Id.).

         In response to Plaintiff's original complaint, Defendants Haydel and Neal filed a combined motion under Rules 12(b)(6)/56/12(e), arguing that Plaintiff had failed to exhaust prison administrative remedies prior to filing suit, that his allegations were insufficient to establish liability under Estelle v. Gamble[1] and Monell v. Dept. of Soc. Serv., [2] and, as to Haydel, that Plaintiff's claims were premature in that a Medical Review Panel had not been convened under the Louisiana Medical Malpractice Act (“LMMA”). (Rec. doc. 16). That motion was opposed by Plaintiff and subsequently supported by Defendants via a reply memo. (Rec. docs. 21, 24). Following a formal hearing on July 13, 2016, Defendants' motion was denied in part and granted in part and Plaintiff was ordered to amend his complaint. (Rec. doc. 25).

         Pursuant to the Court's directive, Plaintiff filed an amended complaint in this matter on July 29, 2016. (Rec. doc. 29).[3] In that pleading, which named the same Defendants as the original complaint, Plaintiff presented essentially the same factual allegations as were set forth in his initial pleading, following which he alleged that Larpenter and Triche acted with deliberate indifference to his medical needs despite knowing or being in a position to have known about the risk of serious bodily harm to him; that, by virtue of the supervisory positions that they held, Larpenter, Triche, Neal, and Haydel, were responsible for the hiring, training, and supervision of those employees who were tasked with providing care to him; and that those four “[p]olicymaking Defendants” knew that the policies, practices, and procedures with respect to the provision of medical care at TPCJC were inadequate but took no corrective measures. (Id.). For these alleged instances of neglect, Plaintiff asserted causes of action under §1983 as well as state law pursuant to the doctrine of respondeat superior. (Id.).

         Plaintiff's amended complaint prompted the filing of a second Rule 12(b)(6) motion by Defendants, Haydel and Neal, which was formally opposed by Plaintiff and was later supported by a reply memorandum. (Rec. docs. 30, 41, 44). Following a hearing on October 26, 2016, the Court dismissed Plaintiff's federal claims against Haydel and Neal with prejudice as having been insufficiently pled and dismissed Plaintiff's state-law claim against Haydel without prejudice pending proceedings under the LMMA. (Rec. doc. 45). The case was stayed and administratively closed for that purpose. (Id.).

         On April 9, 2018, Plaintiff filed an ex parte motion to dismiss his remaining state-law claim against Haydel with prejudice and to lift the stay in this matter and return it to the Court's active docket. (Rec. doc. 46). That motion was granted on April 12, 2018 and the case as to the four remaining Defendants was reopened. (Rec. doc. 47). In due course, TPCG and Neal filed the present motion, which was later joined in by the other two Defendants, Larpenter and Triche. (Rec. docs. 61, 65). The motion was ultimately scheduled for hearing on June 5, 2019 at 11:00 a.m. and was taken under advisement after Plaintiff was granted an extension of time within which to file an opposition memorandum, which has since been responded to by Defendants, as well as a witness and exhibit list which he had earlier neglected to file. (Rec. docs. 66, 77, 82, 85, 86).

         Defendants now move for summary judgment as to all of Plaintiff's claims under Rule 56, asserting various grounds in support. Before turning to those grounds, the Court will recall the legal standards governing summary judgment followed by a discussion of the evidence established by Defendants' motion.

         Summary judgment is appropriate under Rule 56(c) when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Although all inferences drawn from the evidence are to be resolved in the non-movant's favor, he may not rest on the mere allegations or denials in his pleadings. Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Rather, once a properly supported motion for summary judgment is made, the burden shifts to the non-movant, who bears the burden of proof at trial to show with “'significant probative' evidence” that there exists a triable factual issue. Kansa Reinsurance v. Cong. Mortgage Corp. of Texas, 20 F.3d 1362, 1371 (5th Cir. 1994)(quoting In re: Municipal Bond Reporting Antitrust Litig., 672 F.2d 436, 440 (5th Cir. 1982)). That burden is not satisfied by “… ‘some metaphysical doubt as to the material facts,' … by ‘conclusory allegations,' … by ‘unsubstantiated assertions,' … or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(citations omitted). Rather, the nonmovant “… must adduce admissible evidence which creates a fact issue concerning the existence of every essential component of that party's case; naked assertions of an actual dispute will not suffice.” Matter of Lewisville Properties, Inc., 849 F.2d 946, 950 (5th Cir. 1998). The insufficiency of the proof must be such that it would prevent a rational finder of fact from finding for the non-moving party. Phillips Oil Co v. OKC Corp., 812 F.2d 265, 272-73 (5th Cir.), cert. denied, 484 U.S. 851, 108 S.Ct. 152 (1987).

         The competent summary judgment evidence before the Court indicates that Dr. Haydel was appointed by TPCG to be its Medical Director at TPCJC in connection with a “Contract for Professional Services” that was entered into between it and the doctor to satisfy the former's statutory duty under LSA-R.S. 15:703 to “… attend the prisoners who are confined in parish jails whenever they are sick.”[4] (Rec. doc. 61-3). Dr. Haydel discharged his contractual duties to TPCG by conducting “sick call” evaluations of inmates twice weekly and by being available to the medical staff 24 hours per day for consultation and referrals. (Id.). In addition to its contractual relationship with Dr. Haydel, at all pertinent times TPCG also employed Neal, a licensed EMT, to serve as the Medical Administrator of the Medical Department at TPCJC, including the scheduling and management of the medical staff. (Id.). According to Neal's declaration, which was made under penalty of perjury pursuant to 28 U.S.C. §1746, in order to access medical care at TPCJC, an inmate is required to submit a sick-call request to the medical staff, which is either handled by an EMT or one of the members of the nursing staff. The inmate may also be scheduled to see Dr. Haydel or another physician when on their appointed “sick call” rounds. (Id.). In addition to the foregoing sick-call request procedure, inmates also have direct physical contact with members of the medical staff twice daily during the dispensing of medication. (Id.). The medical staff at TPCJC consists of an unidentified number of nurses and EMTs, Dr. Haydel and another physician, all of whom function pursuant to certain standing orders and Basic Jail Guidelines issued by the doctors. (Id.).

         The summary judgment evidence further indicates that Plaintiff was arrested and processed into TPCJC on December 16, 2014 on charges of aggravated kidnapping and aggravated assault with a firearm. (Rec. doc. 61-8, pp. 29-47). Upon being medically screened at TPCJC, Plaintiff was noted to have an elevated blood sugar level and was thus transported to the L.J. Chabert Hospital where he was given a dosage of insulin. (Id.). The TPCJC's “Medical History and Physical Examination Record” that was generated in connection with his processing was positive for diabetes and hypertension and past surgeries involving the lower back, left foot, and right leg. (Id.). Plaintiff was on Lantus and Lasix at the time and the screening documents indicate that members of the TPCJC Medical Department made a series of phone calls to local pharmacies to confirm the medications that Plaintiff was then taking. (Id.). As part of the medical screening process, Plaintiff was administered a TB test, was prescribed a 2000-calorie diabetic diet that included reduced salt intake, fresh fruit, and an evening snack, and modifications were made to his footwear to accommodate a partial left foot amputation he had undergone previously. (Id.). Notably, the TPCJC medical screening documents were negative for any boils, rash, discharge, or open wounds. (Id. at p. 36).

         Notes from the TPCJC Medical Department reflect that on December 18, 2014, a staff member called Dr. Haydel for consultation on how best to deal with Plaintiff's elevated blood sugar levels. (Id. at p. 28). As a result of that consultation, the dosage of Plaintiff's Metformin was increased and Amaryl was added along with a sliding-scale dosage of Humalog. (Id.). In a subsequent note dated December 25, 2015, a member of the Medical Department documented that Plaintiff was very aggravated during the morning medication pass that day, requesting that he be taken to the hospital for treatment of constipation from which he alleged to have been suffering for 10 days. (Id. at p. 27). The reporting official noted that Plaintiff had only brought this complaint to the attention of the Medical Department the previous day and he was advised to use over-the-counter laxatives that were available to inmates for purchase from the jail commissary. (Id.). When asked to take the medication that was being dispensed to him, Plaintiff became “very aggressive, ” cursing out the attending health care provider and requesting again to be taken to the hospital. (Id.). Plaintiff was informed that inmates are simply not sent to the hospital for treatment of constipation. (Id.).

         The following day, Plaintiff again complained to a member of the Medical Department that he had not had a bowel movement in 14 days. (Id. at p. 26). Plaintiff was given a dosage of magnesium citrate, was instructed to increase his water intake, and was advised to contact the Medical Department if his problem persisted. (Id.). On December 28, 2014, a member of the Medical Department updated Plaintiff's file by documenting that he was to be seen by a physician to address his elevated blood pressure readings. (Id. at p. 25). Plaintiff was duly seen by Dr. Haydel three days later who ordered that he be restarted on Lantus. (Id. at p. 24).

         On January 25, 2015 at 10:00 a.m. Plaintiff completed his first “Request for Medical Attention Form” (“sick call form”) in which he expressed a need for reading glasses as well as the addition of liver to his diet twice per day due to a blood condition. (Id. at p. 20). Plaintiff was seen by a member of the medical staff six hours later who advised him to have a family member bring him reading glasses or to purchase them through the TPCJC commissary. (Id.). He was also referred to the kitchen staff about the reported need for liver twice per week. (Id.). Plaintiff completed his second sick-call request form two days later in which he renewed his need for reading glasses. (Id. at p. 19). He was seen by a member of the medical staff on January 9, 2015 who investigated the matter and determined that although Plaintiff was in possession of eyeglasses upon his admission to TPCJC, there was no documentation regarding the location or disposition of the spectacles. (Id.). Plaintiff was again instructed to obtain reading glasses through the prison commissary. (Id.).

         The next notation to Plaintiff's TPCJC medical file was not made until February 10, 2015 when Plaintiff completed his third sick-call request form reporting a bad cold and a need for medication to control his cough. (Id. at p. 16). Plaintiff was evaluated by a member of the Medical Department later that same day who observed no signs of nasal congestion at the time and thus instructed Plaintiff to purchase over-the-counter medications from the commissary for relief. (Id.). Plaintiff was seen again by Dr. Haydel on March 24, 2015 for monitoring of his blood sugar levels which were elevated in the afternoon but lower in the morning. (Id.). The assessment was diabetes mellitus and hypertension; Plaintiff's medications were adjusted. (Id.). He completed another sick-call request form on March 29, 2015, this time complaining of a runny nose and a bad cough. (Id. at p. 10). Plaintiff was seen by an EMT later that day who advised him to purchase over-the-counter medications for his complaints after noting no symptoms of nasal congestion or cough at that time. (Id.).

         Plaintiff completed his fifth and final sick-call request form on March 30, 2015, citing a bad cough and a runny nose as well as “… a staff (sic) on my leg by my butt …” that made it difficult to sit or walk. (Id. at p. 9). He was seen by an EMT later that same day who diagnosed Plaintiff with a boil to the buttocks and placed him on a 10-day course of Bactrim. (Id.). With the exception of medication flow sheets which reflect the dispensing of various medications, including Bactrim, to Plaintiff over the course of the next two days (id. at pp. 4-6), the TPCJC records provided to the Court contain no further documentation respecting the provision of medical care to Plaintiff. He was released from TPCJC on April 1, 2015. (Rec. doc. 61-2, p. 3). Eight days after his release Plaintiff presented to the Terrebonne General Medical Center (“TGMC”) Emergency Department (“ED”) complaining of a boil on his left leg. Although a “Sign-In Form” included in the mass of TGMC records that have been provided to the Court contains a notation that the problem had started two weeks earlier (Ex. C, p. 251), the attending physician's two-page note indicates that the abscess to Plaintiff's left buttock had manifested itself only five days earlier. (Id. at pp. 217-218). The more detailed, six-page “Emergency Department Chart” of that date contains a listing of medical problems from which Plaintiff had suffered in the past including abscesses of the face and chin, an epidermoid cyst, and cellulitis of the foot. (Id. at pp. 207-212). Following his evaluation by Dr. Brian Roberts, Plaintiff was diagnosed with an abscess and was prescribed a course of Bactrim, the very same medication he had received at TPCJC prior to his release. (Id.).

         Plaintiff returned to the TGMC ED on May 2, 2015, this time complaining of symptoms of an upper respiratory infection of one to two days' duration. (Id. at pp. 250, 215-216, 202-206). A chest x-ray was taken, which produced normal results. (Id. at p. 244). Plaintiff was administered an injection of Decadron and a dosage of Tylenol while at the ED and was prescribed Zithromax and cough medicine at the time of discharge. (Id.). Plaintiff was seen again at the ED the very next day, this time for an abscess to the right buttock for the previous three days which was reported to be draining pus. (Id. at pp. 249, 213-214, 243, 197-201). A testicular ultrasound was performed and was largely unremarkable, except for findings possibly suggestive of mild epididymitis. (Id.). Following the administration of Lidocaine to the affected areas, incisions and drainage of the ...


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