United States District Court, E.D. Louisiana
ORDER AND REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE.
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.
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
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 and Monell v. Dept. of Soc.
Serv.,  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.
to the Court's directive, Plaintiff filed an amended
complaint in this matter on July 29, 2016. (Rec. doc.
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.).
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
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).
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'
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).
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.” (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.).
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).
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.).
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).
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.).
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.
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.).
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 ...