The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL NIXON CIVIL ACTION
VERSUS NUMBER: 16-0821
JERRY LARPENTER, ET AL. O RDER A ND RE ASONSSE CTION: “F”(5)
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
Id.
gangrene and necrotizing fasciitis of the perineum and right buttock. ( ). 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
oIidn.tment and band aids” without an actual physical examination of the site of the infection.
( ). As a result, Plaintiff alleged that his condiItdio. n worsened to point that he was forced to
drain pus from the infection site himself. ( ). Once released from custody, Plaintiff
indicated that he sought treatment from and was ultimately admitted to the Terrebonne
General Medical CenterI d(.“TGMC”) where he underwent several surgical procedures
including a colostomy. ( ). For the alleged failure of the TPCJC staff to acknowledge and
properly treat his medical condition, Plaintiff alleged that the foruers pnoanmdeeda tD seufpeenrdioarnts Iwd.ere
liable to him under both federal and state law under a theory of . ( ).
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 reEmsteedlliee vs. pGraimorb lteo1 filingM suointe, ltlh va. tD hepist .a olfl eSgoact. iSoenrsv .were insufficient to
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establish liability under and , 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).
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Pursuant to the Court’s directive, Plaintiff filed an amended complaint in this matter
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on July 29, 2016. (Rec. doc. 29). 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 tIod .the provision of medical care at TPCJC were inadequate but took
no corrective measures. ( ). For these alleged instances of neglect, Plairnetsifpfo ansdseeartte sdu cpaeurisoers
oIfd a.ction under §1983 as well as state law pursuant to the doctrine of .
( ).
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 ILdM. MA. (Rec. doc. 45). The case
was stayed and administratively closed for that purpose. ( ).
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Although Plaintiff’s amended complaint makes a single reference to his original complaint (recE. daosocn. 2 v9. Hato lpt.
1), because the amended pleadinKgi ndgo evs. Dnoogt asnpecifically adopt or incorporate by reference his initial pleading,
ex parte
On April 9, 2018, Plaintiff filed an 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 isCseuleo teoxf
mCoartpe.r via. Cl afatcrte tetxists and the moving party is entitled to judgment as a matter of law.
, 477 U.S. 317, 106 S.Ct. 2548 (1986). Although all inferences drawn from the
evidence are to be resolved in the noSnp-emllmovaann vt’.s S hfaavlaolra, he may not rest on the mere
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allegations or denials in his pleadings. , 1 F.3d 357, 360 (5 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 Ktoa nsshao Rwe inwsiuthra n“’cseig vn.i fCicoanngt.
pMroorbtagtaigvee ’ Ceovripd.e onfc Tee” xtahsat there exists a triable factual issue. In re: Municipal Bond
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, 20 F.3d 1362, 1371 (5 Cir. 1994)(quoting
Reporting Antitrust Litig.
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, 672 F.2d 436, 440 (5 Cir. 1982)). That burden is not satisfied by
“… ‘some metaphysical doubt as to the material facts,’ … by ‘concluLsitotrley va. lLleiqgautidio Anisr,’ C…o rbpy.
‘unsubstantiated assertions,’ … or by only a ‘scintilla’ of evidence.” ,
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37 F.3d 1069, 1075 (5 Cir. 1994)(en banc)(citations omitted). Rather, the nonmovant “…
must adduce admissible evidence which creates a fact issue concerning the existence of
every esseMntaiattle cro mofp oLnewenistv oilfl teh aPtr oppaertryti’es sc, aIsnec; .naked assertions of an actual dispute will not
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suffice.” , 849 F.2d 946, 950 (5 Cir. 1998). The
insufficiency of the proof must beP shuicllhip tsh Oaitl iCt ow vo. uOlKdC p Croervpe.nt a rational finder of fact from
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cfienrdt.i ndge nfoierd the non-moving party. , 812 F.2d 265, 272-73 (5 Cir.),
, 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
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confined in parish jails whenever they are sick.” (Rec. doc. 61-3). Dr. Haydel discharged
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That statute provides in full as follows:
A. The governing authority of each parish shall appoint annually a physician who shall attend the
prisoners who are confined in parish jails whenever they are sick. His salary shall be fixed by the governing
au thority. Any physician so appointed shall be licensed as provided in R.S. 37:1271 and shall be a qualified
health care provider in accordance with R.S. 40:1231.2.
B. In lieu of appointing a physician, the governing authority of any parish may enter into a contract with
a health care provider, licensed or regulated by the laws of this state, to provide requisite health care
services, as required in this Section. The term “health care provider” as used in this Subsection means a
person, partnership, limited liability partnership, limited liability company, corporation, facility, or
in stitution licensed or regulated by the laws of this state to provide health care services or professional
services as a physician and qualified as such in accordance with R.S. 40:1231.2.
C. When a physician has been appointed or a contract for health care services for prisoners has been
entered into in accordance with this Section, any action by a prisoner or his representative to recover
damages or any other losses, including those for the death of the prisoner, as a result of the actions or
inactions of the physician or health care provider in the performance or nonperformance of health care
his contractual duties to TPCG by conducting “sick call” evaluations of inmates twice weekly
aIndd. by being available to the medical staff 24 hours per day for consultation and referrals.
( ). 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 MedIidc.al
Department at TPCJC, including the scheduling and management of the medical staff. ( ).
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 schedIudl.ed to see Dr. Haydel or another physician
when on their appointed “sick call” rounds. ( ). In addition to the foregoing sick-call
request procedure, inmates also have direct physical contIadc.t with members of the medical
staff twice daily during the dispensing of medication. ( ). The medical staff at TPCJC
consists of an unidentified number of nurses and EMTs, Dr. Haydel and another physician,
all of whom fuIndc.tion pursuant to certain standing orders and Basic Jail Guidelines issued by
the doctors. ( ).
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
D. The sole responsibility of the governing authority of each parish which is mandated by the provisions
of this Section with respect to providing health care services for prisoners shall be the appointment of a
physician and the payment of the salary of that physician or its contractual obligations with a health care
provider selected in accordance with this Section. The parish and its governing authority shall not be liable
for any action arising as a result of the actions or inactions of the physician or health care provider, whether
ex delicto or ex quasi delicto or ex contractu, by a prisoner or his representative to recover damages or any
other losses, including those for the death of the prisoner, unless the governing authority exercises gross
screened at TPCJC, Plaintiff was noted to have an elevated blood sugar level and wIda.s thus
transported to the L.J. Chabert Hospital where he was given a dosage of insulin. ( ). The
TPCJC’s “Medical History and Physical Examination Record” that was generated in
connection with his processing was positive for diabeteIds . and hypertension and past
surgeries involving the lower back, left foot, and right leg. ( ). 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 Ipdh.one calls to local pharmacies to confirm the medications that
Plaintiff was then taking. ( ). 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 Ihdi.s footwear
to accommodate a partial left foot amputation he had undergone previously. ( ). Notably,
the TPCJC mIde.dical screening documents were negative for any boils, rash, discharge, or open
wounds. ( at p. 36).
Notes from the TPCJC Medical Department reflect that on December 18, 2014, a staff
member calledI dD.r. Haydel for consultation on how best to deal with Plaintiff’s elevated blood
sugar levels. ( at p. 28). As a result of that consultation, the dosage of Plaintiff’s MetIfodr.min
was increased and Amaryl was added along with a sliding-scale dosage of Humalog. ( ). 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 Ifdo.r treatment of constipation from which he
alleged to have been suffering for 10 days. ( 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
Id.
inmates for purchase from the jail commissary. ( ). When asked to take the medication
that was being dispensed to him, Plaintiff became “very aggressive,” cursing out Itdh.e
attending health care provider and requesting again to be taken to the hospital. ( ).
Plaintiff was inIfdo.rmed that inmates are simply not sent to the hospital for treatment of
constipation. ( ).
The following day, Plaintiff again complainedI tdo. a member of the Medical Department
that he had not had a bowel movement in 14 days. ( at p. 26). Plaintiff was given a dosage
of magnesium citrate, was instructed to increase hisI dw.ater intake, and was advised to contact
the Medical Department if his problem persisted. ( ). On December 28, 2014, a member of
the Medical Department updated Plaintiff’s file by documentiIndg. that he was to be seen by a
physician to address his elevated blood pressure readings. ( at p. 25). Plaintiff wIads. duly
seen by Dr. Haydel three days later who ordered that he be restarted on Lantus. ( 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 glaIdss.es as well
as the addition of liver to his diet twice per day due to a blood condition. ( at p. 20).
Plaintiff was seen by a member of the medical staff six hours later who advised him to have
a family memIbde.r bring him reading glasses or to purchase them through the TPCJC
commissary. ( )I. d H. e was also referred to the kitchen staff about the reported need for liver
twice per week. ( ). Plaintiff completed his secoIndd. sick-call request form two days later in
which he renewed his need for reading glasses. ( 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
Id.
documentation regarding the location or disposition of the spectacles. ( I)d. . Plaintiff was
again instructed to obtain reading glasses through the prison commissary. ( ).
The next notation to Plaintiff’s TPCJC medical file was not made until February 10,
2015 when Plaintiff completed his third siIcdk.-call request form reporting a bad cold and a
need for medication to control his cough. ( 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 instruIcdt.ed Plaintiff to purchase over-the-counter medications from the
commissary for relief. ( ). Plaintiff was seen again by Dr. Haydel on March 24, 2015 for
monitoring oIfd h. is blood sugar levels which were elevated in the afternoon but lower in the
morning. ( ). The assesIsdm. ent was diabetes mellitus and hypertension; Plaintiff’s
medications were adjusted. ( ). He completed another sick-call rIde.quest form on March 29,
2015, this time complaining of a runny nose and a bad cough. ( at p. 10). Plaintiff was
seen by an EMT later that day who advised him to purchase over-the-counter medicatiIodn.s
for his complaints after noting no symptoms of nasal congestion or cough at that time. ( ).
Plaintiff completed his fifth and final sick-call request form on March 30, 2015, citing
a bad cough and a runnIyd n. ose as well as “… a staff (sic) on my leg by my butt …” that made it
difficult to sit or walk. ( at p. 9). He was seen by an EMT later that same day who dIida.gnosed
Plaintiff with a boil to the buttocks and placed him on a 10-day course of Bactrim. ( ). With
the exception of medication flow sheets which reflect the dispensingi do.f various medications,
including Bactrim, to Plaintiff over the course of the next two days ( 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 indiIcda.tes that the abscess to Plaintiff’s left buttock
had manifested itself only five days earlier. ( 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 Iidn.cluding abscesses of the face and chin, an
epidermoid cyst, and cellulitis of the foot. ( at pp. 207-212). Following his evaluation by
Dr. Brian Roberts, Plaintiff was diagnosed with an abscess and was prescribed a Icdo.urse of
Bactrim, the very same medication he had received at TPCJC prior to his release. ( ).
Plaintiff returned to the TGMC ED on May 2, 2015, this timIde .complaining of symptoms
of an upper respiratory infection of one to two days’ duration. ( Id a.t pp. 250, 215-216, 202-
206). A chest x-ray was taken, which produced normal results. ( at p. 244). Plaintiff was
administered an injection of Decadron and a dosage of Tylenol whIilde. at the ED and was
prescribed Zithromax and cough medicine at the time of discharge. ( ). Plaintiff was seen
again at the ED the very next day, this time for an absceIds.s to the right buttock for the previous
three days which was reported to be draining pus. ( at pp. 249, 213-214, 243, 197-201).
A testicular ultrasound was performed anIdd .was largely unremarkable, except for findings
possibly suggestive of mild epididymitis. ( ). Following the administration of Lidocaine to
the affected areas, incisions and drainage of the abscesses wIda.s performed and Plaintiff was
discharged with prescriptions for Bactrim DS and Lortab. ( ). The diagnosis at the timIed o. f
discharge was a three-centimeter abscess to the right medial buttock and epididymitis. ( ).
On May 5, 2015, PlainIdti.ff again presented to the TGMC ED with complaints of swelling
to the testicles and penis. ( at pp. 2513, 2017-2072, 2073-2074, 2065-2070, 2059-2064,
2054-2058). During the course of triage, Plaintiff recalled havinIgd b. een told at the ED that his
previously-diagnosed abscess was “an infection from a hair.” ( ). The clinical impression
was cellulitis and uncontrolled diabetes and thIed .decision was made to admit Plaintiff to the
hospital for administration of IV antibiotics. ( ). Following consultations with additional
physicians over the next two days, Plaintiff was diagnosed witIhd .a perineal abscess, scrotal
swelling, Fournier’s gangrene, hypertension, and diabetes. ( at pp. 2189-2190, 2191-
2192). On May 7, 2015, Plaintiff underwent extensive debridement of the scrotum and right
buttocks; the post-operative diagnosis was severe necrotiIzdin. g fasciitis of the perineum,
scrotum, and right buttocks typical of Fournier’s gangrene. ( at pp. 2286-2287). A wound
dressing change and further debridement were done on May 9, 2015 and a diverting
cIodl.ostomy and extensive debridement of the perineal wound were performed two days later.
( at pp. 2292, 2288). Additional wound dressing changes and debridements were
performed oIvde.r the succeeding days and a partial closure of the wound site was done on May
20, 2015. ( at pp. 2293, 2297, 2174, 2289, 2187, 2294). On May 22, 201I5d,. the wound
dressing change was performed without the necessity of general anesthesia. ( at p. 2295).
Plaintiff’s condition continuedI dt.o improve and a secondary closure was successfully
performed on May 29, 2I0d1.5. ( at pp. 2049-2053, 2361). Plaintiff was discharged from
TGMC on June 1, 2015. ( at pp. 2049-2053, 2361).
Plaintiff subsequently received post-operative care aIdt .TGMC throughout the month of
June, including the removal of sutures on June 18, 2015. ( at pp. 104-106, 143, 118, 140-
142, 122). Following a wound evaluation on September 1, 2015, Plaintiff underwent a
successful inpatient colonoscopy reversal onI dS.eptember 14, 2015, ultimately being released
from the hospital on September 21, 2015. ( at pp. 547-549, 598-601, 602, 573-575, 557-
558, 554-555, 546).
Having summarized the medical evidence pertaining to Plaintiff’s skin condition, the
Court now turns to the grounds for dismissal raised by Defendants’ motion and the
arguments offered by Plaintiff in opposition. Defendants first argue that Plaintiff has not
provided an adequate basis for holding TPCG liable under §1983 because he has failed to
identify a policy or procedure that was the moving force for the violation of a constitutional
right. (Rec. doc. 61-1, pp. 8-11). TPCG also argues that it is immune from any state-law
claims asserted by Plaintiff under two state statutes, LSA-R.S. 15:703 and 9:2798.1.
TPCG, as a local governing entity, is considered to be a “person” wMitohninel lthe meaning
of §1983 and is therefore subject to suit under that civil rights statute. , 436 U.S. at
692, 98 S.Ct. at 2036. However, a governmentrael sbpoodnyd eliakte s uTpPeCrGio mr ay not be held liable fIodr.
the actions of its employees under a theory of or vicarious liability.
at 691-94, 98 S.Ct. at 2036-38. Rather, such a governmental body may be held liable under
§1983 only “… when execution of a government’s policy or custom …Id .inflicts the injury that
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the government as an entity is responsible [for] under §1983.” Thus, to establish
municipal liability under §1983, a plaintiff must prove three elements: 1) an official policy
or custom, of which 2) a policymaker can be charged with actual or constructivVea kllneo vw. Cleitdyg oef,
aHnodu s3t)o na constitutional violation whose moving foPricnee disa t vh.a Cti tpyo olifc Hy oours ctuonstom.
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, 613 F.3d 536, 541 (5 Cir. 2010)(citing , 291 F.3d 325, 328
Conner v. Travis County
5C / i t y o f C a n t o n v . H a r r i s Breaux v. City oft hGarland
The same is true for supervisory officials. , 209 F.3d 794, 796 (5 Cir. 2000)(citing
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(5 Cir. 2002)). The first element of the three-part municipal liability test may come in the
form of:
1. A policy statement, ordinance, regulation, or decision that is officially
adopted and promulgated by the municipality’s lawmaking officer or by an
official to whom the lawmakers have delegated policymaking authority; or,
2. A persistent, widespread practice of city officials or employees which,
although not authorized by officially adopted and promulgated policy, is so
common and well-settled as to constitute a custom that fairly represents
municipal policy. Actual or constructive knowledge of such custom must
be attributable to the governing body of the municipality or to an official
to whom that body had delegated policymaking authorityJ.o hnson v. Moore
,
958 F.2d 92, 94
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(5 Cir. 1992).
With respect to the second element, a plaintMifaf mlonuest ve.s tCaibtyli sohf tFhoartt t hWeo idrtehn, tTifeiexda spolicy
came from a policymaker of the municipality. , 297
F.Supp.3d 645, 653 (N.D. Tex. 2018). A policy or custom can said to be “official” for purposes
of §1983 when it results from the decision or acquiescence Iodf .the municGiproasl ovf. fCicitiay lo of rG braonddy
wPriathir “iefinal policymaking authority” of the offending policy. (quoting
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, 181 F.3d 613, 615 (5 Cir. 1999)). In situations where the policy results from a
persistent, widespread practice or custom that is so common as to be said to represent
municipaHli cpkosl-iFciye,l dasc tvu. aHla orrri sc oCnoustnrtuyctive knowledge of such practice or custom must be
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shown. , 860 F.3d 803, 808 (5 Cir. 2017). “Actual knowledge
may be shownI db.y such means as discussion at council meetings or receipt of written
information.” Constructive knowledge, on the other hand, may be attributable to the
governing body on the theory that it would have known of the violation had it properly
exercised its responsibilities where, for example, the violations were so persistent and
widespreaIdd .that they were the subject of prolonged public discussion or a high degree of
publicity.
Finally, to establish municipal liability, a plaintiff must demonstrate that the
governing entity, through its deliberate conduct, was the “moving force” behind the injury
alleged; plaintiff must show that the municipal action was taken with the requisite degree of
culpability and must demonstratMe aal odnireect causal link between the municipBaol aprodli coyf aCnodu tnhtey
dCoepmrmiviastsiioonn eorsf offe dBeryraaln rCioguhntst.y , Oklahom, a2 9v.7 B Fro.Swunpp.3d at 655 (quoting
, 520 U.S. 397, 404, 117 S.Ct. 1382, 1388
(1997)). “For a municipailtisteyl fto be liable on account of its policy or custom, the plaintiff must
show that (1) the policy violated federal law or authorized or directed the deprivation
of federal rights, or (2) the policy was adopted or maintained with deliberate indifference as
to the known orI do.bvious consequence that it would result in the violation of someone’s
federal rights.” In the latter situation, a demonstration of at least a pattern of similar
violations of federal rights is generally required as a single, or even handful of violations, will
not be enough for a court to conclude that the municipality mainItda.ined a policy with
deliberate indifference to the rights of persons within its jurisdiction.
Pertinent to the matter at hand are two theories under which the existence of an
official policy might possibly be established. “In limited circumstances, a local government’s
decision not to train certain employees about their legal duty to avoid violating cCiotinznenicsk’
rvi. gThhtosm mpasyo nrise to the level of an official government policy for purposes of §1983.”
, 563 U.S. 51, 61, 131 S.Ct. 1350, 1359 (2011). Nevertheless, the Supreme Court
has emphIads.ized that municipality liability based on a failure-to-train theory is at its most
tenuous. An inadequate training program or a failure to train, if shown to be an official
policy or custom of which a municipality has knowledge, may serve as the basis for §1983
liability only where inadequate training amounts to deCliibtye roaft Cea inntdoinff evr. eHnacrer itso the rights of
the persons with whom authorities come into contact. , 489 U.S. 378,
388, 109 S.Ct. 1197, 1204 (1989). Thus, to hold a municipality liable under §1983 based on
a policy of inadequate training, a plaintiff must demonstrate that: 1) the municipality’s
training policy was inadequate, 2) the municipality was deliberately indifferent in adopting
its trainingK iptochliecny ,v a. nDda l3la)s tChoeu inntaydequate training policy directly caused the constitutional
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violation. , 759 F.3d 468, 484 (5 Cir. 2014). Deliberate indifference
in this context may be shown by demonstrating that a municipality had notice of a pattern of
similar violaMtiaolnosn eand that it failed to change its training methods in the face of such
incidents. , 297 F.Supp.3d at 655-56. Alternatively, a plaintiff may establish
indifference based upon a single incident in the narrow range of circumstances where a
constitutional violation isK iltickheelyn to result as the highly predictable consequence of a
particular failure to train. , 759 F.3d at 484.
The second theory potentially implicated in the instant matterM isa ltohnaet of establishing
a policy or custom of a failure to supervise or inadequate supervision. , 297 F.Supp.3d
at 656. To prevail on a failure-to-supervise theory, a plaintiff must show that: 1) the
supervision policies of the municipality were inadequate, 2) the municipality was
deliberately indifferent in adopting such pIodl.icies, and 3) the inadequate supervision policies
directly caused the plaintiff’s injuries. “Proof that a single constitutional violation
resulted from inadequate supeIdr.vision isT ohrodminpasroinly vi.n Usupfsfhicuire nCto uton thyold a municipality liable
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for inadequate supervision.” (citing , 245 F.3d 447, 459 (5
Cir. 2001)). Typically, the plaintiff must demonstrate a pattern of similar violations to
establish the deliberate indifference required to impose municipal liability for failure to
supervise because only when a failure to train or supervise reflects a “deliberate” Iodr.
“consciCoiutsy” o cfh Coainceto cnan the governmental entity be liable for such a failure under §1983.
(citing , 489 U.S. at 388-89, 109 S.Ct. at 1205). The need for more or different
training or supervision must be so obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of the municipality can reasonably
be said to have been deliberately indifferent to the need, and the failure to provide proper
training or suIpde.rvision may fairly be said to represent a policy for which the municipality is
responsible. (quotations and citations omitted).
With the foregoing standards in mind, the Court must now determine whether the
competent summary judgment establishes municipal liability on the part of TPCG. In his
supplemental and amended complaint, Plaintiff alleged, in a wholly conclusory fashion, that
“[p]olicymaking Defendants Larpenter, Triche, [and] Neal … knew that the policies, practices,
and procedures with respect to medical care at the Terrebonne Parish Criminal Justice
Complex were inadequate and posed a danger of serious bodily injury to detainees there”
and “… took no action to correct these policies, practices, and procedures.” (Rec. doc. 29, p.
6). Plaintiff does not identify precisely what the objectionable policies, practices, or
procedures were or how or when they came into existence, nor does he suggest what action
could have been taken to remedy their supposed infirmity. Unfortunately for Plaintiff,
simply alleging that a policy exists is insufficient to carry the day: “[e]ach and any policy
wPihoitcrho walslkeig evd. lyC ictayu soef dH coounssttoitnutional violations must be specifically identified by a plaintiff.”
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, 237 F.3d 567, 579-80 (5 Cir. 2001). Morever, “[t]he
description of a policy or custom and its relationship to the underlying constitutional
Spiller v. City of Texas City
violation … cannot be conclusory; it Mmeuysetr c ov.n Ctaoifnfe sypecific facts.” ,
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130 F.3d 162, 167 (5 Cir. 1997); , 231 F.Supp.3d 137, 148-49 (N.D. Tex.
2017). The allegations presented in Plaintiff’s amended complaint fall woefully short of that
standard and his memorandum in opposition to Defendants’ motion does not remedy that
shortcoming.
With respect to the second element of municipal liability, the burden remains on
Plaintiff to identify the positive law or evidence of custom demonstrating that Larpenter,
Triche, anMde yNeeral were indeed the final policymakers responsible for the action or inaction
alleged. , 231 F.Supp.3d at 147-48. That showing is not apparent from a review of
Plaintiff’s operative pleading. Although Plaintiff generally alleged, earlier on in his amended
complaint, that Larpenter, Triche, and Neal were responsible for properly hiring, training,
6/
and supervising employees of TPCJC (rec. doc. 29, p. 5), he failed to identify precisely what
those hiring, training, and supervisory practices were and to explain how they were
inadequate. Nor does Plaintiff identify any prior incidents of a similar nature that were
known by the Defendants and were allowed to go uncorrected such that their failure to do
so could be equated with deliberate indifference. Inasmuch as the summary judgment
evidence establishes that Plaintiff did, in fact, receive medical care throughout the duration
of his stay at TPCJC, certainly noC aarrgduenabasle v c. Llaeiem C poruenmtyi,s Teedx uapson a custom of denying medical
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care to inmates would lie here. , 569 Fed.Appx. 252, 255-56 (5
Cir. 2014). More fundamentally, without expert medical testimony to opine on the existence
and cause of any medical condition from which Plaintiff allegedly suffered at TPCJC, no
6 /
As for Sheriff Larpenter, Plaintiff’s factually unsupported allegations went even further: not only was he
rational juror could find that he had a serious medical need while he was hRouutlseeddg teh ve.r Jea, cmksuocnh
less that the Defendants were deliberately indifferent to any such need. ,
No. 06-CV-0064, 2009 WL 311149 at *3-4 (S.D. Miss. Feb. 6, 2009). Even if he had, an expert’s
opinion, standing alone, is generally inTshuofmficpiseonnt vt.o U epssthaubrl iCsohu dnetyli,b TeXrate indifference based
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upon a lackC oof ntrnaeirn vin. Tg roarv sisu pCoeruvnitsyion. , 245 F.3d 447, 459 (5
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Cir. 2001); , 209 F.3d 794, 797-98 (5 Cir. 2000).
In his belated opposition to Defendants’ motion, Plaintiff concedes that TPCG is not
vicariously liable for the actions of the medical care providers at TPCJC. (Rec. doc. 82, p. 3).
Thereafter, he advances for the first time a theory of liability that is found nowhere in his
original or amended complaints: “… that Terrebonne Parish is directly liable under §1983
for hiring CorrectHealth because the parish allegedly knew the company would proIdv.ide
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‘grossly negligent and unconstitutionally infirm’ medical care to inmates at TPCJC.” ( ).
Just like Plaintiff’s allegations regarding the existence of a policy or custom, his equivocal
hiring-related allegations are wholly conclusory and lacking in supporting facts. He provides
the Court with no evidence of prior incidents of a similar nature of which TPCG had
knowledge and ignored so as to amount to deliberate indifference. Plaintiff also fails to
explain how TPCG’s hiring policies were insufficient and he points to no opinions from an
expert in the field of hiring practices setting forth how alternative procedures would have
resulted in a different outcome. Without such expert testimony, Plaintiff is unable to carry
his burden of proving thFeu slmtaenrd va.r Udn oift ecda rSet attoe ws hich he has entitled, breach of that standard
of care, and causation. , No. 17-CV-15943, 2019 WL 1989233 at 5-8
7 /
In addition to the novelty of this theory, this is the first mention of an entity called CorrectHealth in this case.
Rutledge
(E.D. La. May 6, 2019); , 2009 WL 31149 at *4. The two fundamental requirements
for holding a municSipnaylditeyr vli.a Tbrleep faogrn iineradequate hiring – culpability and causation – are
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wholly absent here. , 142 F.3d 791, 795 (5 Cir. 1998).
The second basis for Plaintiff’s opposition to Defendants’ motion is as novel as his
first in terms of its audition in a memorandum rather than in pleadings previously filed in
this case. Plaintiff acknowledges that an entity like TPCG may contractS eaeway the
rsuesppraonsibility for providing medical care to inmates under R.S. 15:703(B). ( note 4,
). Plaintiff focuses in on the following two provisions of the contract between TPCG
and Dr. Haydel which provide that:
9. Inmate health complaints will be collected daily and evaluated the
same day by a nurse under the supervision of the Jail Physician.
10. The doctor will conduct sick call in the jail whenever necessary at the
request of the medical assistant (nurse).
(Rec. doc. 61-3, p. 8).
Plaintiff maintains that the foregoing two contractual provisions are at odds with the
following two sections of the Louisiana Administrative Code:
D. Treatment given by other than a licensed physician shall be made by
trained personnel according to written, standing or direct orders of the
physician in charge.
* * * * * * * * * * * * * * * *
F. Inmates shall have access to routine health care by a physician within
48 hours after making such request.
(Rec. doc. 82-3, p. 1)(citing
Louisiana Administrative Code
Title 22, Part III, §2909(D) and (F)).
Plaintiff argues that an inconsistency exists between the above-cited contractual and
was inconsistent with state law and thus demonstrates that TPCG was “grossly negligent in
contracting for substandard medical care for inmates at the TPCJC.” (Rec. doc. 82, p. 5).
As noted above, withhoeut the opinion from an expert in the field, Plaintiff is unable to
establish that the care that received at TPCJC was substandard in any respect or even that
any medical need that he had while he was housed there was “serious” in a constitutional
sense. What is clear is that the failure of governmental officials to fulfill their duties uPnodnecer
svt. aLtoeu liaswia noar cDoenpttr.a ocft Cdoorerse nctoiot ngsive rise to a federal constitutional claim under §1983.
vacated and remanded , iNn o.p 1a0rt- CoVn- 1o4t7h8e,r 2 0g1ro3u WndLs 3227020 at *2 (W.D. La. Jul. 1,
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2013), Meyers v. Klevenhagen , 590 FReedy.eAsp vp. xH. a4le4 C4o u(5nty JCaiirl.
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2015)(citing , 97 F.3d 91, 94 (5 Cir. 1996)); ,
No. 03-CV-0180, 2003 WL 22670929 at *2 (N.D. Tex. Sept. 16, 2003). A violation of the
Louisiana AdministrativeA lCleond ev . iSst . sTiammpmlya nnyo tP aorfi shconstitutional magnitude so as to be
actionable under §1983. a dopted , No. 17-CV-4091, 2018 WL 558503 at
*3 (E.D. La. Jan. 2, 2018), , 2018 WL 537495 (E.D. La. Jan. 24, 2018).
It is also clear that a claim of negligence or even gross negligDeenlcgea ddoo evs. nUonti tiemdp Slticaatetes
tMhaer Cshoanlstitution and does not provide a basis for a §1983 claim. appeal dis’d
, No. 12-CV-0347, 2014 WL 4387344 at *7 (W.D. La. Sept. 3, 2014), , 618
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Fed.Appx. 236 (5 Cir. 2015). The express wording of R.S. 15:703(D) also renders TPCG
immune from state tort claims as a result of the action or inaction of the contracting health
care provider absent a showing of gross negligence or willful misconduct and proof that “…
sBueclchh gerro vs. sL nopeginlitgoence or willful misconduct was a substantial factor in causing the iBnujusrhy v.”.
LaFourche Parish ,C Nouon. 1ci8l-CV-7368, 2018 WL 5847822 at *3 (E.D. La. Nov. 8, 2018);
, No. 09-CV-3436, 2012 WL 258591 at *2-3 (E.D. La. Jan. 26, 2012).
Without the opinion of an expert, Plaintiff is unable to make that showing. Furthermore, as
Plaintiff advances no challenge to Dr. Haydel’s licensure, or that of any of the other health
care providers at TPCJC, upon contracting with the doctor TPCG fulSfeilrliegdn yi tvs. Lsatafotuurtochrye
oPbalriigsaht Gioonv ’ut nedx erre lR. .RSa. 1n5d:o7l0ph3 and is thus immune from state tort liability.
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, 547 Fed.Appx. 582, 583-85 (5 Cir. 2013).
Plaintiff did not allege in his amended complaint that Neal, Larpenter, and/or Triche
were in any way personally involved in the acts or omissions giving rise to his claims. That
being the case, PlaiSnetrififg nhya vd. LnaoF ovuiarcbhlee P§a1r9is8h3 G colva’itm exs raegl.a Rinasntd othlpohse Defendants in their
individual capacity. , No. 10-CV-3205, 2014
WL 2215744 at *5 (E.D. La. May 28, 2014). Such supervisory officials, as well as TPCG, cannot
be held liable for constitutional violations committed by parishC oanuntheorrities unless those
violations result directly from a municipal custom or policy. , 209 F.3d at 796.
Plaintiff, however, has identified no parish policy, pracMtiocnee, llor cAuustthoemm etnhta t vc. aPuasreidsh t hoef
dTaermreabgoesn nhee claims in the manner contemplated by . adopted
, No. 09-CV-4618, 2010 WL 1930943 at *6 (E.D. La. Mar. 19, 2010), , 2010
WL 1930938 (E.D. La. May 10, 2010). Otherwise, to establish municipality or supervisory
liability in a single-episode case like this one, Plaintiff must demonstrate deliberate
indifference by showing that an official was aware of facts from which an inference of
substantial risk of harm could be drawn, that Tthheo mofpfiscoinal drew that inferenceC, aarndde nthaast the
official subjectively intended that harm occur. , 245 F.3d at 458-59; , 569
Fed.Appx. at 255. That weighty showing has not been made here. TPCG is also entitled to
immunity from Plaintiff’s state law claims under R.S. 15:703. And without an expert to
support his claims and to rebut the opinions of Defendants’ expert, Plaintiff is unable to
establish the standards of care to which he was entitled, a brFeualcmhe orf those standards, and
causatRiount lseod gaes to prevail on any federal or state law claims. , 2019 WL 1989233 at
*7-8; , 2009 WL 311149 at *3-4. The expectedly self-serving nature of the
allegations present in the declarations provided by Plaintiff do not alter the Court’s
conclusionvse la nso tnhe allegations are lacking in corroborating facts and do not speak to the
existence of an unconstitutional policy, practice, or custom. For all these reasons, it
is ordered that Defendants’ motion is granted and that Plaintiff’s suit is dismissed. Judgment
will be entered accordingly. 13th July
New Orleans, Louisiana, this day of , 2019.
MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE