Rodgers v. Gusman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

LATASHA RODGERS CIVIL ACTION

VERSUS CASE NO. 16-16303

MARLIN GUSMAN, et al. SECTION: “G” (3)

ORDER AND REASONS

In this litigation, Plaintiff Latasha Rodgers, Tutrix (“Plaintiff”), on behalf of her minor

child CJTJ, alleges that Defendants Orleans Parish Prison, Orleans Parish Sheriff Marlin Gusman

(“Gusman”), the City of New Orleans (the “City”), Mayor Mitch Landrieu, the New Orleans City

Council, Correct Care Solutions, LLC (“CCS”) and certain unidentified parties acting under the

authority of the Orleans Parish Prison, subjected CJTJ’s father (“Decedent”), a pretrial detainee at

the Orleans Parish Prison, to excessive force, assaulted and battered Decedent, and acted with

deliberate indifference to his medical needs, resulting in Decedent’s death, in violation of his and

Plaintiff’s constitutional rights under the Fourth, Eighth, and Fourteenth Amendments, and

Louisiana law.1 Pending before the Court is Gusman’s second “Motion for Summary Judgment.”2

Having considered the motion, the memoranda in support and opposition, the record, and the

applicable law, the Court will grant the motion in part and deny it in part.

1 Rec. Doc. 143 at 1–4.

2 Rec. Doc. 167.

1

I. Background

A. Factual Background

In the second amended complaint, Plaintiff avers that on September 24, 2015, Decedent

was a pretrial detainee at the Orleans Parish Prison (“OPP”).3 Plaintiff additionally avers that

Decedent had been diagnosed with Sickle Cell Disease and Hepatitis C, which was “verified by

OPP medical intake form.”4 Plaintiff alleges that since October 2015, Decedent had experienced

leg pain and medical complications in the chest and abdomen.5 According to Plaintiff, however,

OPP failed to provide Decedent with his medication or take him to the hospital.6 In addition,

Plaintiff alleges that on October 3, 2015, Decedent was attacked and stabbed in the arm by an

inmate, and on another unidentified occasion, Decedent was choked by a security guard.7 Plaintiff

avers that Decedent was not taken to the hospital on either occasion.8

According to Plaintiff, Decedent experienced a severe sickle cell pain crisis in his abdomen

and lower extremity, chest, back, and left leg on November 11, 2015, but was not taken to the

hospital until the next day on November 12, 2015.9 While Decedent was at University Medical

Center, Plaintiff avers, his condition worsened—he became diaphoretic and unresponsive, had

3 Rec. Doc. 143 at 4.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

2

problems breathing, and on November 15, 2015, he died.10 Plaintiff alleges that Defendants’

conduct demonstrates a “wanton disregard” for Decedent’s “serious medical needs.”11

B. Procedural Background

Plaintiff filed a complaint on November 10, 2016.12 On December 12, 2016, Defendant

Marlin Gusman filed an answer to the complaint.13 On February 6, 2017, the Court granted

Defendant Orleans Parish Sheriff Office’s motion to dismiss.14 On March 27, 2017, Defendants

Mayor Mitch Landrieu and the New Orleans City Council filed a motion to dismiss.15 On October

16, 2017, the Court denied the motion to dismiss without prejudice and granted Plaintiff leave to

amend the complaint to address the deficiencies noted therein.16

On November 17, 2017, Plaintiff filed an amended complaint.17 On July 18, 2018, the

Court denied CCS’s motion to dismiss without prejudice and granted Plaintiff leave to amend the

complaint to address the deficiencies noted therein.18 On July 18, 2018, the Court also denied

Gusman’s motion for judgment on the pleadings without prejudice and granted Plaintiff leave to

amend the complaint to address the deficiencies noted therein.19 Also on July 18, 2018, the Court

10 Id.

11 Id.

12 Rec. Doc. 1.

13 Rec. Doc. 4.

14 Rec. Doc. 5.

15 Rec. Doc. 12.

16 Rec. Doc. 31.

17 Rec. Doc. 45.

18 Rec. Doc. 110.

19 Rec. Doc. 111.

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dismissed both CCS and Gusman’s motions for summary judgment without prejudice, with leave

to refile if necessary.20

On December 26, 2018, Plaintiff filed a second amended complaint.21 In the second

amended complaint, Plaintiff brings the following claims: (1) a wrongful death claim under 42

U.S.C. § 1983; (2) a survival claim under 42 U.S.C. § 1983; (3) a claim for deliberate indifference

under 42 U.S.C. § 1983; (4) a negligence claim under Louisiana law; and (5) an assault and battery

claim under Louisiana law.22

On January 9, 2019, CCS filed a motion to dismiss the second amended complaint.23 On

April 29, 2019, the Court granted the motion in part and dismissed the Section 1983 claims pending

against CCS.24 The Court denied the motion to the extent it sought dismissal of Plaintiff’s

negligence claims pending against CCS.25

On May 7, 2019, Gusman filed a second motion for judgment on the pleadings.26 On June

17, 2019, the Court denied the motion and granted Plaintiff leave to file an amended complaint to

include allegations regarding alleged aggravated assault and battery, which were raised in

20 Rec. Doc. 112.

21 Rec. Doc. 143.

22 Id. at 11–16.

23 Rec. Doc. 146.

24 Rec. Doc. 163 at 23.

25 Id.

26 Rec. Doc. 165.

4

opposition to the motion for judgment on the pleadings but not in the pleadings, and would not be

barred by the statute of limitations.27 On June 24, 2019, Plaintiff filed a third amended complaint.28

On May 20, 2019, Gusman filed a “Motion to Exclude Testimony of Plaintiff’s Expert

Lloyd Grafton.”29 On July 24, 2019, the Court granted the “Motion to Exclude Testimony of

Plaintiff’s Expert Lloyd Grafton” for Plaintiff’s failure to comply with Federal Rule of Civil

Procedure 26(a)(2)(B).30 On June 3, 2019, CCS filed a “Motion to Exclude or Limit the Testimony

of William Anderson,” Plaintiff’s medical expert.31 On July 17, 2019, the Court denied the Motion

to Exclude or Limit the Testimony of William Anderson.32

On May 7, 2019, Gusman filed the instant Motion for Summary Judgment.33 On May 28,

2019, Plaintiff filed an opposition to the motion.34 On June 4, 2019, with leave of Court, Gusman

filed a reply brief in further support of the motion.35

II. Parties’ Arguments

A. Gusman’s Arguments in Support of the Motion for Summary Judgment

In the instant motion for summary judgment, Gusman seeks dismissal of Plaintiff’s Section

1983 claim related to alleged deliberate indifference to Decedent’s medical condition, and

27 Rec. Doc. 201.

28 Rec. Doc. 210.

29 Rec. Doc. 169.

30 Rec. Doc. 253.

31 Rec. Doc. 180.

32 Rec. Doc. 249.

33 Rec. Doc. 167.

34 Rec. Doc. 177.

35 Rec. Doc. 185.

5

Plaintiff’s state law negligence claim for the alleged failure to provide adequate medical treatment

to Decedent.36 Gusman asserts that summary judgment is appropriate because there are no material

facts in dispute as to the care Decedent received while he was housed at OPP, Plaintiff’s claims do

not rise to a level of deliberate indifference, and Plaintiff has failed to show a breach of any duty

by Gusman.37

In support, Gusman cites the opinions of Defendants’ expert, Dr. Richard Inglese that: (1)

CCS and its correctional medical staff fully complied with the applicable standards of care in

connection with the treatment of Decedent and (2) OPSO correctional staff fulfilled their duties as

they related to Decedent’s medical care.38 According to Gusman, Plaintiff’s expert, Lloyd Grafton,

has not provided an opposing position, stating that he was unable to form any conclusive opinion

to the treatment or mistreatment of Decedent.39

Additionally, Gusman contends that the expert report of Plaintiff’s expert, Dr. William R.

Anderson, is insufficient to carry Plaintiff’s burden.40 Gusman asserts that Dr. Anderson’s opinion

that there were no “objective medical data results, specifically laboratory studies, prior to transfer

out of the facility, indicating that no monitoring of the patient’s condition was being carried out,”

is contradicted by the record.41 Gusman notes that the medical records indicate that a CBC was

conducted on October 3, Decedent attended the hematology clinic at University Medical Center

36 Rec. Doc. 167-1 at 1. The instant motion is not directed at Plaintiff’s claim related to the assault and battery.

37 Id.

38 Id. at 8.

39 Id. at 8–9.

40 Id. at 9–10.

41 Id. at 9.

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on October 29, and OPSO staff had blood drawn and lab work run on November 6, which showed

no exacerbation of sickle cell.42 Gusman asserts that Dr. Anderson’s statement that there was a

“delay in addressing acute medical issues” is unsupported because Decedent did not submit a

single medical request, sick call, or grievance from November 1 until November 12, the date he

was sent to University Medical Center.43

Gusman argues that Plaintiff’s claim related to the medical care received by Decedent does

not rise to the level of deliberate indifference.44 Furthermore, Gusman asserts that Plaintiff cannot

meet the high burden under Monell to recover against the sheriff in his official capacity.45 Gusman

contends that Plaintiff is unable to produce any evidence of a single incident putting OPSO on

notice that it should modify its policies, procedures, and practices to avoid the alleged

constitutional violation that led to Decedent’s death.46 Therefore, Gusman argues that there are no

material facts in dispute and the Court should grant summary judgment as to Plaintiff’s Section

1983 claim regarding deliberate indifference to Decedent’s medical condition.47

Finally, Gusman asserts that Plaintiff’s state law negligence claim should be dismissed.48

Gusman contends that Plaintiff has no evidence of specific conduct of Gusman or his staff which

supports an intentional act or breach of a duty owed to Decedent.49 Absent any proof that Gusman

42 Id.

43 Id. at 9–10.

44 Id. at 11.

45 Id. at 12.

46 Id. at 14.

47 Id. at 15.

48 Id.

49 Id.

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or his staff violated the applicable standards of medical care for an inmate in a correctional facility,

Gusman contends that the negligence claim must be dismissed.50

B. Plaintiff’s Arguments in Opposition to Gusman’s Motion for Summary Judgment

In response to Gusman’s motion, Plaintiff asserts summary judgment is not appropriate

because there are material facts in dispute concerning the medical care of Decedent.51 Plaintiff

contends that the linchpin of Gusman’s motion is that CCS rendered appropriate and sufficient

medical services to Decedent.52 However, Plaintiff asserts that Defendants delayed in rendering

medical care to Decedent up until November 12, 2015, and the medical records reflect that

Decedent was being treated for psychiatric problems, not sickle cell disease.53 According to

Plaintiff, sickle cell disease is only mentioned in the medical records when Decedent complained

of pain.54

Plaintiff argues that she has raised a genuine issue of material fact that is in dispute as to

the deliberate indifference claim.55 Plaintiff contends that Decedent complained of sickle cell pain

from the moment he entered OPP, but CCS did nothing to treat the condition before transferring

Decedent to the hospital on November 12, 2015.56 Plaintiff asserts that officials were fully aware

of Decedent’s condition, but failed to treat it.57 Furthermore, Plaintiff notes that there is no

50 Id.

51 Rec. Doc. 177-1 at 3.

52 Id. at 5.

53 Id.

54 Id. at 5–8.

55 Id. at 8.

56 Id.

57 Id.

8

evidence that officials requested Decedent’s prior medical records during his incarceration.58

Given that Decedent’s last sickle cell crisis happened 19 days before his incarceration, Plaintiff

contends that the officials’ inactions reflect a conscious disregard of Decedent’s serious medical

needs.59

Plaintiff also argues that she has met her burden under Monell of establishing a pattern or

practice.60 According to Plaintiff, CCS had a policy of creating a written treatment plan for

individuals with chronic diseases, including sickle cell disease.61 However, Plaintiff contends that

Gusman never created a chronic treatment plan for Decedent.62 Plaintiff notes that several

depositions were taken on May 13, 2019, but she has not received the transcripts.63 Plaintiff states

that she cannot complete this section of her brief until the transcripts are received.64

Finally, Plaintiff argues that summary judgment is not appropriate on her negligence

claim.65 Plaintiff asserts that Gusman clearly owed a duty to Decedent, and breached that duty by

ignoring and not properly treating Decedent’s medical condition.66 Furthermore, Plaintiff contends

that this breach caused Decedent’s death because he was not sent to the hospital until it was too

58 Id.

59 Id. at 8–9.

60 Id. at 9.

61 Id. at 9–10.

62 Id. at 10.

63 Id.

64 Id.

65 Id. at 11.

66 Id.

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late.67 Plaintiff asserts that the risk of harm, namely Decedent’s death, was within the scope of the

protection of the duty breached.68 Therefore, Plaintiff contends that the negligence claim should

not be dismissed.69

C. Gusman’s Arguments in Further Support of the Motion for Summary Judgment

In the reply brief, Gusman argues that Plaintiff has not produced any evidence of

wrongdoing by Gusman or the OPSO.70 Gusman asserts that he cannot be held liable for an alleged

breach of CCS’ policy.71 In support, Gusman cites a Fifth Circuit case holding that a municipal

actor cannot be held liable for a contractor’s failure to follow a policy.72 Gusman asserts that

Plaintiff has not produced a single other instance of harm sufficient to establish the persistent,

widespread custom as required by Monell, nor has she produced evidence that Gusman was aware

of any incident with CCS’ policy.73 Therefore, for the same reasons that this Court dismissed all

Section 1983 claims against CCS, Gusman asserts that the Section 1983 deliberate indifference

claims against Gusman in his official capacity should also be dismissed.74

67 Id.

68 Id.

69 Id. at 9.

70 Rec. Doc. 185 at 1.

71 Id.

72 Id. at 3 (citing Doe v. United States, 831 F.3d 309, 318–19 (5th Cir. 2016)).

73 Id.

74 Id.

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III. Legal Standard

A. Legal Standard on a Motion for Summary Judgment

Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.”75 When assessing whether a dispute as to any material fact exists, the court

considers “all of the evidence in the record but refrains from making credibility determinations or

weighing the evidence.”76 All reasonable inferences are drawn in favor of the nonmoving party,

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”77

If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”

then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of

law.78

“[A] nonmoving party is not entitled to rest on his pleadings, but must carry his burden of

providing evidence of a genuine issue of material fact.”79 “That burden can be met by depositions,

answers to interrogatories and admissions on file and affidavits.”80 The Fifth Circuit has

“repeatedly held that self-serving affidavits, without more, will not defeat a motion for summary

75 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

76 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

77 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

78 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

79 King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992) (citing Reese v. Anderson, 926 F.2d 494, 499 (5th Cir.

1991)); see also Celotex, 477 U.S. at 325; see also Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.

1998).

80 Id. (citing Fed. R. Civ. P. 56(c)).

11

judgment.”81 However, a nonmovant’s deposition testimony is often considered by a court in

recognizing that a genuine issue of material fact exists, which precludes summary judgment.82

The party seeking summary judgment always bears the initial responsibility of informing

the Court of the basis for its motion and identifying those portions of the record that it believes

demonstrate the absence of a genuine issue of material fact.83 Thereafter, the nonmoving party

should “identify specific evidence in the record, and articulate” precisely how that evidence

supports his claims.84 To withstand a motion for summary judgment, the nonmoving party must

show that there is a genuine issue for trial by presenting evidence of specific facts.85 The

nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by

creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by

“unsubstantiated assertions,” or “by only a scintilla of evidence.”86 Rather, a factual dispute

precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable

trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot

be presented in a form that would be admissible in evidence at trial do not qualify as competent

opposing evidence.87

81 Tyler v. Cedar Hill Indep. Sch. Dist., 426 Fed.Appx. 306, 307 (5th Cir. 2011) (per curiam) (citing

DirectTV, Inc. v. Budden, 420 F.3d 521, 531 (5th Cir. 2005); United State v. Lawrence, 276 F.3d 193, 197 (5th Cir.

2001)).

82 See, e.g., Vetter v. Frosch, 599 F.2d 630 (5th Cir. 1979); see also, e.g., King, 974 F.2d at 656 (5th Cir.

1992).

83 Celotex, 477 U.S. at 323.

84 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).

85 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248–49 (1996)).

86 Little, 37 F.3d at 1075.

87 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

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B. Supervisory Liability Under 42 U.S.C. § 1983

42 U.S.C. § 1983 provides that every “person” who, under color of any statute, ordinance,

regulation, custom, or usage of any State subjects, or “causes to be subjected,” any person to the

deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the

injured party. Plaintiff brings claims against Gusman in his official capacity as the Sheriff of

Orleans Parish.88 “Claims against the Sheriff in his official capacity are treated as claims against

the municipal entity he represents.”89

With respect to a Section 1983 claim against a municipality, no liability exists for

governmental entities based on vicarious liability or respondeat superior.90 However, the United

States Supreme Court held in Monell v. Department of Social Services of City of New York that

“when execution of a government’s policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . the

government as an entity is responsible under § 1983.”91 Moreover, “[a] § 1983 plaintiff . . . may

be able to recover from a municipality without adducing evidence of an affirmative decision by

policymakers if able to prove that the challenged action was pursuant to a state ‘custom or

usage.’”92 In order to establish a Section 1983 claim against a municipality, the official policy must

88 Rec. Doc. 1 at 2–3; Rec. Doc. 210 at 2–3. Plaintiff does not bring a claim against Gusman in his individual

capacity.

89 Bellard v. Gautreaux, 675 F.3d 454, 462 (5th Cir. 2012)

90 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 693 (1978)).

91 Id. at 694.

92 Pembaur v. City of Cincinnati, 475 U.S. 469, 481, n.10 (1986).

13

be the cause and moving force of the constitutional violation.93 Additionally, the “policymaker

must have either actual or constructive knowledge of the alleged policy.”94

A pattern can be considered tantamount to an official policy if the pattern is “so common

and well-settled as to constitute a custom that fairly represents municipal policy.”95 The incidents

relied upon must have occurred prior to the alleged misconduct and “must have occurred for so

long or so frequently that the course of conduct warrants the attribution to the governing body of

knowledge that the objectionable conduct is the expected, accepted practice of city employees.”96

The prior incidents must point to the specific violation alleged in the case at bar.97

Finally, liability may also exist where the action of the policymaker violated a

constitutional right or the policymaker failed to act to control its agents when it was “so obvious,

and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights,

that the policymake[r] ... can reasonably be said to have been deliberately indifferent to the need.”98

“Deliberate indifference of this sort is a stringent test, and ‘a showing of simple or even heightened

93 Monell, 436 U.S. at 694.

94 Cox v. City of Dallas, 430 F.3d 734, 748–49 (5th Cir. 2005) (citing Piotrowski v. City of Houston, 237

F.3d 567, 579 (5th Cir. 2001)).

95 Peterson v. City of Fort Worth, Tex., 588 F.3d 838, 850 (5th Cir. 2009) (quoting Piotrowski, 237 F.3d at

578).

96 Webster v. City of Houston, 735 F.2d 838, 842 (5th Cir.1984) (en banc).

97 Peterson, 588 F.3d at 851 (citing Estate of Davis ex rel. McCully v. City of North Richland Hills, 406

F.3d 375, 383 (5th Cir.2005)).

98 Burge v. Par. of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (quoting City of Canton v. Harris, 489

U.S. 378, 390 (1989)).

14

negligence will not suffice’ to prove municipal culpability.”99 The single incident exception is a

very narrow one that the Fifth Circuit has been reluctant to expand.100

C. Deliberate Indifference

The Eighth Amendment protects the right to be free from cruel and unusual punishment.101

“The Cruel and Unusual Punishment Clause allows an inmate to obtain relief after being denied

medical care if he provides there was a ‘deliberate indifference to his serious medical needs.’”102

“Deliberate indifference is an extremely high standard to meet.”103 “Deliberate indifference

requires that the official have subjective knowledge of the risk of harm.”104 “To show subjective

deliberate indifference, a plaintiff must present evidence: (i) that each defendant had subjective

knowledge of facts from which an inference of substantial risk of serious harm could be drawn;

(ii) that each defendant actually drew that inference; and (iii) that each defendant’s response to the

risk indicates that the defendant subjectively intended that harm to occur.”105

D. Negligence Under Louisiana Law

Plaintiff also asserts that Gusman was negligent under Louisiana law. Article 2315 states,

“Every act whatever of man that causes damage to another obliges him by whose fault it happened

99 Piotrowski, 237 F.3d at 579 (citing Bryan County v. Brown, 520 U.S. 397, 407 (1997)).

100 See Pineda v. City of Houston, 291 F.3d 325, 334–35 (5th Cir. 2002) ("Charged to administer a regime

without respondeat superior, we necessarily have been wary of finding municipal liability on the basis of [the single-

incident] exception for a failure to train claim.").

101 U.S. Const. Amend. VIII.

102 Bias v. Woods, 288 F. App’x 158, 162 (2008) (citing Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.

1995); Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

103 Blank v. Eavenson, 530 F. App’x 364, 368 (5th Cir. 2013) (citing Domino v. Tex. Dep’t of Criminal

Justice, 239 F.3d 752, 756 (5th Cir. 2001)).

104 Id.

105 Id. (citing Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009)).

15

to repair it,” and that “[d]amages may include loss of consortium, service, and society, and shall

be recoverable by the same respective categories of persons who would have had a cause of action

for wrongful death of an injured person.” Louisiana courts use the duty-risk analysis to determine

recovery under Article 2315.106 “For liability to attach under the duty-risk analysis, the plaintiff

must prove that the conduct in question was a cause-in-fact of the resulting harm or damages, the

defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant,

and the risk of harm was within the scope of protection afforded by the duty breached.”107

IV. Analysis

In the instant motion for summary judgment, Gusman seeks dismissal of Plaintiff’s Section

1983 claims related to alleged deliberate indifference to Decedent’s medical condition and state

law negligence for the alleged failure to provide adequate medical treatment to Decedent.108

Gusman asserts that summary judgment is appropriate because there are no material facts in

dispute as to the care Decedent received while he was housed at OPP, Plaintiff’s claims do not rise

to a level of deliberate indifference, and Plaintiff has failed to show a breach of any duty by

Gusman.109 Accordingly, the Court addresses each of these issues in turn.

106 Brown v. City of Monroe, 48,764 (La. App. 2 Cir. 2/26/14); 135 So. 3d 792, 796 (citing Barrino v. East

Baton Rouge Parish School Bd., 96–1824 (La. App. 1 Cir. 06/20/97); 697 So. 2d 27)).

107 Dennis v. Wiley, 09–236 (La. App. 2 Cir. 9/11/09); 22 So. 2d 189 Hardy v. Bowie, 98–2821 (La. 9/8/99),

744 So.2d 606, 613.

108 Rec. Doc. 167-1 at 1.

109 Id.

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A. Section 1983 Claim for Alleged Deliberate Indifference to Decedent’s Medical Condition

In the motion, Gusman argues that Plaintiff’s claim related to the medical care received by

Decedent does not rise to the level of deliberate indifference.110 Furthermore, Gusman asserts that

Plaintiff cannot meet the high burden under Monell because she is unable to produce any evidence

of a single incident putting OPSO on notice that it should modify its policies, procedures, and

practices to avoid the alleged constitutional violation that led to Decedent’s death.111

In opposition, Plaintiff argues that there are genuine issue of material fact in dispute as to

the deliberate indifference claim because officials were fully aware of Decedent’s condition but

failed to treat it.112 Plaintiff also argues that she has met her burden under Monell of establishing

a pattern or practice.113 According to Plaintiff, CCS had a policy of creating a written treatment

plan for individuals with chronic diseases, including sickle cell disease, but Gusman never created

a chronic treatment plan for Decedent.114

A plaintiff may establish a “policy or custom” under the Monell standard by showing “(1)

[an] express policy of violating the Constitution, (2) a widespread practice or custom—even if that

custom has not received formal approval by an official decision-making body—or (3) a decision

by an individual with express policy-making authority.”115 Here, Plaintiff clearly does not present

any evidence to establish that Gusman had an express policy of failing to provide medical

110 Id. at 11.

111 Id. at 14.

112 Rec. Doc. 177-1 at 8.

113 Id. at 9.

114 Id. at 9–10.

115 Cardenas v. Lee Cnty., Tex., 569 F. App’x 252, 255 (5th Cir. 2014) (citing Monell, 436 U.S. at 690–91).

17

treatment. In fact, Plaintiff alleges the opposite when she cites language from CCS’ policies on

intake screening, health assessments, and chronic disease treatment. Plaintiff likewise fails to

present evidence to establish a specific decision by Gusman to deny medical care to Decedent.

Therefore, Plaintiff has not established that the alleged constitutional violation was caused by an

official with policy-making authority.116 Thus, the Court must determine whether Plaintiff has

presented evidence to show that Gusman’s alleged failure to provide medical care was a

widespread practice or custom.

Under Fifth Circuit precedent, a custom may be evidenced by “a persistent, widespread

practice of [] 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 ... Actions of officers or employees of a municipality do not render the

municipality liable under section 1983 unless they execute official policy as above defined.”117

This standard requires that “[the] actions must have occurred for so long or so frequently that the

course of conduct warrants the attribution to the governing body of knowledge that the

objectionable conduct is the expected, accepted practice of city employees.”118 “Isolated

unconstitutional actions by municipal employees will almost never trigger liability,”119 and “[a]

customary municipal policy cannot ordinarily be inferred from single constitutional violations.”120

116 Id. at 256.

117 Piotrowski, 237 F.3d at 579 (quoting Webster, 735 F.2d at 842).

118 Webster, 735 F.2d at 842.

119 Piotrowski, 237 F.3d at 578 (citing Bennett v. City of Slidell, 728 F.2d 762, 768 n. 3 (5th Cir. 1984)).

120 Id. at 581.

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Plaintiff only presents evidence to establish a failure to provide treatment in regard to one

person—Decedent. Plaintiff has not pointed to any facts to establish a persistent or widespread

failure by Gusman to provide medical treatment. Plaintiff includes zero allegations or evidence to

show that Gusman engaged in this behavior before or that Gusman failed to provide treatment to

other inmates. Thus, Plaintiff only presents facts to establish one isolated violation. The Fifth

Circuit has repeatedly held that “[i]solated violations are not the persistent, often repeated, constant

violations, that constitute custom and policy as required for municipal section 1983 liability.”121

Therefore, there are no genuine issues of material fact in dispute and Gusman is entitled to

summary judgment on Plaintiff’s Section 1983 claim regarding the alleged failure to provide

medical care and deliberate indifference to Decedent’s medical condition.

B. Negligence Claim

Finally, Gusman asserts that Plaintiff’s state law negligence claim should be dismissed

because Plaintiff lacks proof that Gusman or his staff violated the applicable standards of medical

care for an inmate in a correctional facility.122 In opposition, Plaintiff asserts that Gusman clearly

owed a duty to Decedent, and breached that duty by ignoring and not properly treating Decedent’s

medical condition.123 Furthermore, Plaintiff contends that this breach caused Decedent’s death

121 Piotrowski, 237 F.3d at 581 (quoting Bennett, 728 F.2d at 768 n. 3; see also Gates v. Texas Dep't of

Protective & Regulatory Servs., 537 F.3d 404, 437 (5th Cir. 2008) (finding two instances of unconstitutional conduct

insufficient to evince a policy or custom); Cardenas, 569 F. App'x at 256 (“These two isolated failures in judgment

cannot, however, establish a custom or policy of denying medical care to inmates.”); Arshad ex rel. Arshad v.

Congemi, No. 08-30061, 2009 WL 585633, at *8 (5th Cir. Mar. 9, 2009) (dismissing Monell claim for failure to show

a “custom” where plaintiffs “point to only one similar previous incident”).

122 Rec. Doc. 167-1 at 15.

123 Rec. Doc. 177-1 at 11.

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because he was not sent to the hospital until it was too late.124 Plaintiff asserts that the risk of harm,

namely Decedent’s death, was within the scope of the protection of the duty breached.125

Louisiana Revised Statute § 15:760 provides that “[w]here large numbers of prisoners are

confined, the proper authorities in charge shall provide hospital quarters with necessary

arrangement, conveniences, and attendance, etc.” Louisiana courts have recognized a duty of all

jailers to provide reasonable medical care to prisoners.126 “This duty to provide reasonable medical

care for prisoners does not require the maintenance of a full hospital at the site of each prison in

order to protect an inmate against every medical risk, but does encompass the risk that an inmate

will become sick or be injured and require life-saving medical attention.”127

The Louisiana First Circuit Court of Appeal’s decision in Elsey v. Sheriff of the Parish of

East Baton Rouge is instructive here.128 There, the plaintiff brought suit against the sheriff after

her son died of an asthmatic attack, claiming that the sheriff breached a duty to provide adequate

medical treatment to the decedent.129 During the trial, three inmates testified that the decedent

requested medication numerous times and that he was having difficulty breathing for 15 hours

before medical assistance was given.130 To the contrary, three sheriff’s deputies testified that the

124 Id.

125 Id.

126 Elsey v. Sheriff of Par. of E. Baton Rouge, 435 So. 2d 1104, 1106 (La. App. 1st Cir.), writ denied Elsey v.

Sheriff of E. Baton Rouge Par., 440 So. 2d 762 (La. 1983)).

127 Id. (citing Moreau v. State, Department of Corrections, 333 So.2d 281 (La. App. 1st Cir. 1976)).

128 Id.

129 Id. at

130 Id. at 1105.

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decedent did not make any such requests for medication.131 The trial court found that the testimony

of the sheriff’s deputies was more credible than the testimony of the inmates, and entered judgment

in favor of the sheriff.132 On appeal, the Louisiana First Circuit held that the trial court did not err

in deciding that the sheriff did not breach the duty owed to the decedent.133

As discussed in the Court’s Order denying CCS’ Motion for Summary Judgment, there are

issues of material fact in dispute as to whether there was a delay in treatment and whether the delay

contributed to Decedent’s death. Gusman, as the Sheriff of Orleans Parish, owed a duty to provide

Decedent with reasonable medical care. The issue of whether there was a delay in providing

Decedent with medical care for his sickle cell crisis, and whether such a delay contributed to

Decedent’s death is a factual issue that must be left to the jury. Accordingly, the Court finds that

Gusman is not entitled to summary judgment on Plaintiff’s negligence claim.

V. Conclusion

Based on the foregoing, the Court finds there are no genuine issues of material fact in

dispute and Gusman is entitled to summary judgment on Plaintiff’s Section 1983 claim regarding

the alleged failure to provide medical care and deliberate indifference to Decedent’s medical

condition. Plaintiff has not pointed to any facts to establish a persistent or widespread failure by

Gusman to provide medical treatment, as is required to establish supervisory liability under

Monell.

131 Id.

132 Id. at 1107.

133 Id.

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However, there are issues of material fact in dispute as to whether there was a delay in

treatment and whether the delay contributed to Decedent’s death. Therefore, Gusman is not entitled

to summary judgment on Plaintiff's negligence claim.

Accordingly,

IT IS HEREBY ORDERED that Gusman’s second “Motion for Summary Judgment.”!**

is GRANTED IN PART. Plaintiff’s claim that Gusman denied Decedent medical care and acted

with deliberate indifference to Decedent’s medical condition under 42 U.S.C. § 1983 is

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the motion is DENIED with respect to Plaintiff's state

law negligence claim.

NEW ORLEANS, LOUISIANA, this 24th | day of July, 2019.

D "\eceeht J □□□ BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

'34 Rec. Doc. 167.

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