United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE
ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE
the Court is a motion for summary judgment on the medical
malpractice claim urged by Plaintiff Archie Poe
(“Poe”) against Drs. Bruce Fuller
(“Fuller”) and Pamela Hearn (“Hearn”)
(collectively, “Defendants”) regarding the care
that they provided him at David Wade Correctional Center
(“DWCC”). [Record Document 78]. Because it lacks
subject-matter jurisdiction, this Court is unable to rule on
the motion's merits. Poe's medical malpractice claim
seeks a money judgment which, under the applicable statute,
must be rendered against the State of Louisiana rather than
against Defendants. La. Stat. Ann. § 40:1237.1(A)(8);
Detiller v. Kenner Reg'l Med. Ctr., 2003-3259,
p. 16 (La. 7/6/04); 877 So.2d 100, 111. This requirement
makes the State of Louisiana a necessary party to this
proceeding. Joinder of the State on a claim for money damages
would violate the Eleventh Amendment, and so this Court
cannot join the State. Because Poe has no remedy in the
State's absence, the claim against Defendants for their
role at DWCC is DISMISSED WITHOUT PREJUDICE.
Defendants' motion for summary judgment [Record Document
78] and Poe's motion to strike [Record Document 82] are
DENIED AS MOOT. Hearn's motion for
summary judgment on claims related to her work at the Lincoln
Parish Detention Center (“LPDC”) [Record Document
75] will be addressed in a separate ruling.
Court has fully discussed the factual background of this case
in its prior ruling, [Record Document 57 at 1-5], so will
recap only the most salient facts here. Poe needed a total
hip replacement revision. [Id. at 1]. He was
incarcerated before he could have the surgery. [Id.
at 2]. He was initially housed at LPDC, where he was treated
by Hearn. [Id.]. He was later transferred to Elayn
Hunt Correctional Center, to DWCC, and ultimately to the
Louisiana State Penitentiary (“LSP”).
[Id. at 3, 5]. Hearn and Fuller both provided
medical care to Poe while he was at DWCC, but he did not have
the surgery until after his transfer to LSP. [Id. at
with his care at DWCC, Poe filed an Administrative Remedy
Procedure (“ARP”) request. [Record Document 37-6
at 4, 7]. Following completion of the ARP process,
Poe filed the instant suit, alleging that Defendants'
treatment of him constituted cruel and unusual punishment in
violation of the Eighth Amendment and negligence under
Article 2315 of the Louisiana Civil Code. [Record Document 1
at 7-9]. After appropriate discovery, this Court granted
summary judgment on the Eighth Amendment claim arising from
Defendants' treatment of Poe at DWCC. [Record Document
57]. Because the factual record was insufficient to support
summary judgment as to the care Hearn provided at LPDC, the
Court denied the motion as to that claim. [Id. at
10-12]. The Court also declined to grant summary judgment on
Poe's negligence claims because Defendants' motion
did not address them. [Id. at 15].
have filed a second summary judgment motion in which they
argue that they were not negligent when treating Poe at DWCC.
[Record Document 78]. They support their motion by pointing
to evidence that they did not deliberately refuse to provide
Poe with some treatment while he was at DWCC. [Record
Document 78-1 at 8-9]. They also challenge the admissibility
of the testimony of Poe's medical experts. [Id.
at 9-11]. Poe's opposition emphasizes his belief that his
claims sound in general negligence rather than medical
malpractice. [Record Document 83 at 12-15]. In support, he
points to opinions from two medical experts that
Defendants' treatment of him exacerbated his pain and
worsened his injuries. [Id. at 12-13]. He also
relates the allegedly deficient medical care Defendants
provided to seven other DWCC inmates. [Id. at
Summary Judgment Standard
Rule of Civil Procedure 56(a) directs a court to “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Summary judgment is
appropriate when the pleadings, answers to interrogatories,
admissions, depositions, and affidavits on file indicate that
there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
When the burden at trial will rest on the non-moving party,
the moving party need not produce evidence to negate the
elements of the non-moving party's case; rather, it need
only point out the absence of supporting evidence. See
Id. at 322-23.
movant satisfies its initial burden of showing that there is
no genuine dispute of material fact, the nonmovant must
demonstrate that there is, in fact, a genuine issue for trial
by going “beyond the pleadings” and
“designat[ing] specific facts” for support.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (citing Celotex, 477 U.S. at 325).
“This burden is not satisfied with some metaphysical
doubt as to the material facts, ” by conclusory or
unsubstantiated allegations, or by a mere “scintilla of
evidence.” Id. (internal quotation marks and
citations omitted). However, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1985) (citing
Adickes v. S. H. Kress & Co., 398 U.S. 144,
158-59 (1970)). While not weighing the evidence or evaluating
the credibility of witnesses, courts should grant summary
judgment where the critical evidence in support of the
nonmovant is so “weak or tenuous” that it could
not support a judgment in the nonmovant's favor.
Armstrong v. City of Dall., 997 F.2d 62, 67 (5th
Local Rule 56.1 requires the movant to file a statement of
material facts as to which it “contends there is no
genuine issue to be tried.” The opposing party must
then set forth a “short and concise statement of the
material facts as to which there exists a genuine issue to be
tried.” W.D. La. R. 56.2. All material facts set forth
in the movant's statement “will be deemed admitted,
for purposes of the motion, unless controverted as required
by this rule.” Id.
Law and Analysis
evaluating the merits of Defendants' motion, this Court
must assure itself of its jurisdiction over the claim at
issue. See Torres v. S. Peru Copper Corp., 113 F.3d
540, 542 (5th Cir. 1997) (citing Trizec Props., Inc. v.
U.S. Mineral Prods. Co., 974 F.2d 602 (5th Cir. 1992);
MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170
(5th Cir. 1990); Save the Bay, Inc. v. U.S. Army,
639 F.2d 1100 (5th Cir. 1981)) (“We repeatedly have
instructed that before proceeding with a case, federal trial
and appellate courts have the duty to examine the basis for
their subject matter jurisdiction, doing so on their own
motion if necessary.”).
The Classification of Poe's Negligence
claim arises under state law, federal courts must apply that
state's substantive law as interpreted by that
state's courts. Keen v. Miller Envt'l Grp.,
Inc., 702 F.3d 239, 243 (5th Cir. 2012) (citing
Mid-Continent Cas. Co. v. Swift Energy Co., 206 F.3d
487, 491 (5th Cir. 2000)). In Louisiana, medical malpractice
claims are controlled by two statutory schemes: the Medical
Malpractice Act (“MMA”) and the Malpractice
Liability for State Services Act (“MLSSA”). La.
Stat. Ann. §§ 40:1231.1-.10, 40:1237.1-.4; see
Spradlin v. Acadia-St. Landry Med. Found., 1998-1977, p.
6 n.5 (La. 2/29/00); 758 So.2d 116, 120 n.5. The MLSSA
controls malpractice claims against “state health care
providers, ” while the MMA applies to all other health
care providers, Vanderhoff v. Beary, 2003-0912, p.
3 (La.App. 4 Cir. 8/20/03); 853 So.2d 752, 754 (citing La.
Stat. Ann. § 40:1299.39(A) (recodified at La. Stat. Ann.
§ 40:1237.1(A)); La. Stat. Ann. § 40:1299.41(A)
(recodified at La. Stat. Ann. § 40:1231.1(A)). Under the
MLSSA, malpractice claims against state health care providers
must pass through an administrative review process before
suit can be brought (unless the State waives that procedure),
and recovery is limited to $500, 000 exclusive of costs of
future medical care. La. Stat. Ann. § 40:1237.1(E)-(F).
“[B]ecause the MLSSA limits the liability of certain
health care providers in derogation of the general rights of
tort victims, any ambiguities in the Act should be strictly
construed against coverage.” Ruiz v. Oniate,
97-2412, p. 4 (La. 6/19/98); 713 So.2d 442, 444 (citing
Kelty v. Brumfield, 93-1142, p. 9 (La. 2/25/94); 633
So.2d 1210, 1216; Hutchinson v. Patel, 93-2156, p. 5
(La. 5/23/94); 637 So.2d 415, 420), called into question
on other grounds by Batson v. S. La. Med. Ctr.,
2002-2381 (La.App. 1 Cir. 6/27/03); 858 So.2d 653.
MLSSA applies to medical malpractice only. La. Stat. Ann.
§ 40:1237.1(D)(1); see Herrin v. East Baton
Rouge Sheriff's Office, No. CV 15-00082-SDD-EWD,
2016 WL 4408999, at *6 (M.D. La. July 6, 2016), report
and recommendation adopted, 2016 WL 4432698 (M.D. La.
Aug. 17, 2016). The statute defines malpractice as “the
failure to exercise the reasonable standard of care . . . in
the provision of health care, when such failure proximately
causes injury to a patient . . . .” La. Stat. Ann.
§ 40:1237.1(A)(4). In Coleman v. Deno, the
Louisiana Supreme Court adopted a six-factor test for
determining whether a claim falls under the MMA:
 whether the particular wrong is ‘treatment
related' or caused by a dereliction of professional
 whether the wrong requires expert medical evidence to
determine whether the appropriate standard of care was
 whether the pertinent act or omission involved assessment
of the patient's condition. . . . .
 whether an incident occurred in the context of a
physician-patient relationship, or was within the scope of
activities which a hospital is licensed to perform,
 whether the injury would have occurred if the patient had
not sought treatment, and
 whether the tort alleged was intentional.
Coleman v. Deno, 2001-1517, pp. 14-15 (La. 1/25/02);
813 So.2d 303, 315-16 (internal quotation marks omitted)
(first quoting Sewell v. Doctors Hosp., 600 So.2d
577, 579 n.3 (La. 1992); then quoting Holly P. Rockwell,
Annotation, What Patient Claims Against Doctor,
Hospital, or Similar Health Care Provider Are Not
Subject to Statutes Specifically Governing Actions and
Damages for Medical Malpractice, 89 A.L.R.4th
887, 898 (1991)). Louisiana courts apply these factors by
analogy to MLSSA cases. See, e.g., Crum v.
State, 41, 059, p. 8 (La.App. 2 Cir. 5/17/06); 931 So.2d
argues that his claim sounds in general negligence rather
than medical malpractice. [Record Document 83 at 12-15].
However, he fails to even address the factors identified by
the Louisiana Supreme Court. Instead he points to a set of
mostly irrelevant caselaw. In Bedingfield ex rel.
Bedingfield v. Deen, 487 Fed.Appx. 219 (5th Cir. 2012),
Robinson v. Stalder, 98-0558 (La.App. 1 Cir.
4/1/99); 734 So.2d 810, and the relevant portion of
Authement v. Par. of Terrebonne, No. CIV.A.
09-4618, 2010 WL 5093866, at *10-12 (E.D. La. Dec. 8, 2010),
the defendants were not health care providers but rather were
prison officials. The negligence of a prison official who is
not a health care provider is not an issue in this case as
Poe has only sued his doctors. Admittedly, one of the
defendants in Jackson v. Bailey was a nurse and in
that case the court did apply the duty-risk analysis
appropriate for general negligence claims in Louisiana.
Jackson v. Bailey, No. CIVA 06-1083, 2008 WL 652136,
at *3 (W.D. La. Mar. 11, 2008), aff'd, 305
Fed.Appx. 246 (5th Cir. 2008). Nevertheless, it is not clear
that the nurse in Jackson asked the court to treat
the claim as one for medical malpractice, and when dismissing
the negligence claim, the court only considered the duty owed
by “prison authorities” and did not separately
analyze the nurse's duty as a health care provider.
Id. Poe has not sued any prison authority; he has
sued two physicians regarding their medical decisions.
Moreover, the MLSSA has specific provisions for the
“medical malpractice claims of prisoners related to
health care rendered in a correctional facility, ” La.
Stat. Ann. § 40:1237.1(E)(1), thereby indicating that
Louisiana law recognizes claims against prison doctors as
medical malpractice claims. As Poe has failed to apply the
correct factors and failed to point this Court towards
authority convincingly demonstrating that his claim regarding
Defendants' allegedly inappropriate care does not sound
in medical malpractice, this Court concludes that his claim
is a medical malpractice claim.
Defendants' Status as State ...