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Harris v. Gusman

United States District Court, E.D. Louisiana

December 12, 2019

JOHNNIE HARRIS
v.
SHERIFF MARLIN GUSMAN, ET AL.

          ORDER AND REASONS

          DANA M. DOUGLAS UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Johnnie Harris, a state prisoner, filed this pro se civil action against Orleans Parish Sheriff Marlin Gusman, Director of Medical Services “John Doe, ” and “Inmate Green.” In the original complaint, plaintiff stated his claims as follows:

Inmate Green attacked Johnnie Harris on 7-26-2018 and broke my jaw. Security intervened and escorted Mr. Harris to prison infirmary. Mr. Harris was examined by infirmary personnel and within 3 hours was transported to University Medical Center. I got a CAT-Scan and I was admitted overnight, also preped for operation Friday, July 27, 2018. At or around 3:45 p.m. the nurse informed me that the operation would be that following Monday 7/30/2018. At or around 5:45 p.m. I was discharged back into the custody of O.J.C. with a list of medications and a liquid diet. Upon returning to OJC I sat in medical while the medical staff put the lists into their computers. I was not administered any medication or nothing to eat. I phsycially layed in the rack in severe pain and hunger from 7/27/18 until 8/1/2018 when the operation was performed. I went without any food until 8/3/2018, and no medication until 8/1/2018.[1]

         On October 25, 2018, a Spears hearing was held in this matter by United States Magistrate Judge Daniel E. Knowles, III.[2] Magistrate Judge Knowles also ordered Sheriff Gusman's counsel to produce both to the Court and to plaintiff certified copies of plaintiff's medical records and dietary records from the Orleans Justice Center for the period of July 26, 2018 through September 30, 2018.[3]

         Plaintiff then filed an amended complaint in which he added four new defendants: Dr. Xuong Nguyen; Nurse Practitioner Deborah Gray; Major Nicole Harris; and Kitchen Supervisor Captain Taylor.[4]

         Dr. Nguyen and Nurse Practitioner Gray thereafter filed two motions to dismiss, both of which were denied.[5] However, the Court dismissed plaintiff's claims against Orleans Parish Sheriff Marlin Gusman, Director of Medical Services “John Doe, ” and “Inmate Green” sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).[6]

         Plaintiff then filed the instant motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.[7] All remaining defendants opposed that motion.[8] In addition, Dr. Nguyen and Nurse Practitioner Gray filed a cross motion for summary judgment with respect to the claims against them.[9] Plaintiff was ordered to respond to that cross motion by no later than October 30, 2019;[10] however, he filed no response.

         In reviewing a motion for summary judgment, the Court may grant the motion when no genuine issue of material fact exists and the mover is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). There is no “genuine issue” when the record taken as a whole could not lead a rational trier of fact to find for the nonmovant. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “Procedurally, the party moving for summary judgment bears the initial burden of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.” Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and brackets omitted). The party opposing summary judgment must then “go beyond the pleadings and by [his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted); accord Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001). The Court has no duty to search the record for evidence to support a party's opposition to summary judgment; rather, “[t]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). Conclusory statements, speculation, and unsubstantiated assertions are not competent summary judgment evidence and will not suffice to defeat a properly supported motion for summary judgment. Id.; Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996).

         Claims Against Dr. Nguyen

         Plaintiff states his claims against Dr. Nguyen as follows:

On 7/27/2018 upon my return from U.M.C. to Orleans Justice Center I was escorted to medical where they received and entered my paper-work into their data-base. Doctor Nguyen began to exam and probe my face, mouth, but mainly my jaw. Asked me what was my pain level. I replied not bad at the moment but I know that medication will start to wear off. He told me that he would have the nurse give me something at last med-pass and he sent an urgent memo to the kitchen because I have a full-liquid diet. I received nothing. On the 31st of July I was brought back to medical. Dr. Nguyen again asked me about my pain-level. I informed him when when [sic] my jaw shifts the pain is blinding and it has been that since I last saw you Friday July 27th. After laughing and admitting that he completely forgot about me he gave me 100 mgs of Ibuprofen for a broken jaw. I informed him that I still hadn't eaten since Wednesday [sic] July 26th. He told me I'll survive until I received it. I didn't get my liquid diet until Friday August 3rd, 2018.[11]

         In his motion for summary judgment, plaintiff argues that he is entitled to judgment as a matter of law with respect to those claims. In his opposition and cross motion for summary judgment, Dr. Nguyen argues that plaintiff misstates the underlying facts of the case and that the true facts show that plaintiff's constitutional rights were not violated.

         In support of his opposition and cross motion, Dr. Nguyen has submitted a sworn affidavit. In that affidavit, Dr. Nguyen states that he had already left the jail by the time plaintiff returned from the hospital on evening of July 27, disputing the allegation that he examined plaintiff on that date. However, Dr. Nguyen notes that a liquid diet was ordered for plaintiff on July 28, and he further states:

12. On July 31, 2018, I conducted my first examination of Harris since his return from UMC. Harris was alert with stable vital signs and no fever. I documented Harris had a right mandible fracture with pain and swelling for which a surgery to repair the injury was scheduled for August 2, 2018. I further reviewed Harris' medical record from UMC, ordered to continue his medication, and directed that Harris receive a full liquid, no chew diet.
13. On August 1, 2018, I saw Harris again ahead of his upcoming surgery. I again ordered a full liquid diet for Harris. Additionally, I ordered Harris apply ice to the affected area, adhere to a lifting restriction, and keep the surgical extremity elevated. For pain, I continued ibuprofen 100 mg/5mls and further ordered tramadol 50 mg x 3 days. I also informed Harris he was to follow up with sick call 1 week post surgery and all recommendations received from UMC will be ordered.
14. After my exam of Plaintiff on August 1, 2018, I issued a separate order for a full liquid diet, which was to include a “boost liquid meal replacements” for each meal twice per day. A special diet order form was completed and provided to the kitchen.[12]

         Dr. Nguyen also submitted a copy of plaintiff's medical records. Those records reflect that: (1) on July 28, 2018 plaintiff was prescribed a “Liquid diet for 6 weeks”;[13] (2) on July 31, 2018, Dr. Nguyen again ordered a “FULL liquid, no chew diet” for plaintiff;[14] (3) on August 1, 2018, Dr. Nguyen yet again prescribed a full liquid diet for four to six weeks;[15] (4) on August 1, 2018, Dr. Nguyen also ordered that plaintiff be given Boost liquid meal replacements for two days;[16] and (5) on August 3, 2018, Dr. Nguyen extended the order for the Boost meal replacements for an additional ten days.[17] Plaintiff has not offered any evidence to rebut those medical records.

         Federal law provides that all inmates, regardless of whether they are pretrial detainees or convicted prisoners, have a right to medical care in jail. Specifically, an inmate's constitutional right to medical care is violated if his “serious medical needs” are met with “deliberate indifference” on the part of penal authorities. See Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999).

         The United States Fifth Circuit Court of Appeals has explained that “[a] serious medical need is one for which treatment has been recommended or for which the need is so apparent that even laymen would recognize that care is required.” Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006). “Non-life-threatening injuries are a serious medical need where the injuries induced severe pain.” Oakley v. Hudson, 670 Fed.Appx. 291, 292 (5th Cir. 2016). In the instant case, Dr. Nguyen does not dispute that plaintiff's broken jaw constituted a “serious medical need.”

         However, Dr. Nguyen argues that the claims against him nevertheless fail on the “deliberate indifference” prong of the analysis. Regarding that prong, the United States Fifth Circuit Court of Appeals has explained:

Deliberate indifference is an extremely high standard to meet. … [T]he plaintiff must show that the officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs. Furthermore, the decision whether to provide additional treatment is a classic example of a matter for medical judgment. And, the failure to alleviate a significant risk that the official should have perceived, but did not is insufficient to show deliberate indifference.

Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (citations, quotation marks, and ...


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