Tolbert v. Gusman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

NATASHA TOLBERT ET AL. CIVIL ACTION

VERSUS NO: 18-8359 C/W 18-10053

MARLIN GUSMAN ET AL. SECTION: “H”(1)

ORDER AND REASONS

Before the Court is Defendants Pammalier Walker, David Oates, Rogelio

Perez, Dolores Thompson, Lisa Pittman, Monique Lawson, and Correct Care

Solutions, LLC’s Motion for Summary Judgment (Doc. 71). For the following

reasons, the Motion is GRANTED IN PART.

BACKGROUND

Plaintiffs Natasha Tolbert, Bridget Armstrong, and India Butler bring

this action on behalf of their minor children for the wrongful death of Narada

Mealey, an inmate at the Orleans Justice Center (“OJC”).1 Plaintiffs allege

that Mealey did not receive proper medical treatment while incarcerated,

resulting in his death. Plaintiffs bring state law medical malpractice claims

1 Case number 18-8359 brought by Tolbert and Armstrong was consolidated with

case number 18-10053 brought by India Butler.

1

and federal law claims under 42 U.S.C. § 1983 against two groups of

defendants: those in law enforcement and those involved in the medical

treatment of Mealey. In this motion, defendants involved in Mealey’s medical

treatment—Pammalier Walker, David Oates, Rogelio Perez, Dolores

Thompson, Lisa Pittman, Monique Lawson, (collectively, “the Individual

Defendants”), and Correct Care Solutions, LLC (“CCS”)—move for summary

judgment on Plaintiffs’ § 1983 claims against them. Plaintiffs oppose.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with affidavits, if

any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”2 A genuine issue

of fact exists only “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.”3

In determining whether the movant is entitled to summary judgment,

the Court views facts in the light most favorable to the non-movant and draws

all reasonable inferences in his favor.4 “If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden

shifts to the non-moving party to produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”5 Summary judgment is

appropriate if the non-movant “fails to make a showing sufficient to establish

2 Sherman v. Hallbauer, 455 F.2d 1236, 1241 (5th Cir. 1972).

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

4 Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 532 (5th Cir. 1997).

5 Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

2

the existence of an element essential to that party’s case.”6 “In response to a

properly supported motion for summary judgment, the non-movant must

identify specific evidence in the record and articulate the manner in which that

evidence supports that party’s claim, and such evidence must be sufficient to

sustain a finding in favor of the non-movant on all issues as to which the non-

movant would bear the burden of proof at trial.”7 “We do not . . . in the absence

of any proof, assume that the nonmoving party could or would prove the

necessary facts.”8 Additionally, “[t]he mere argued existence of a factual

dispute will not defeat an otherwise properly supported motion.”9

LAW AND ANALYSIS

Movants set forth several arguments for judgment in their favor: (1) the

Individual Defendants are entitled to qualified immunity from Plaintiffs’

claims, (2) Plaintiffs cannot show that any of the Individual Defendants were

deliberately indifferent to Mealey’s medical needs; (3) Plaintiffs cannot

establish a § 1983 claim against CCS through vicarious liability or under the

Monell standard; and (4) Plaintiffs are not entitled to punitive damages.

Plaintiffs concede that the § 1983 claims against Defendants Walker,

Oates, Thompson, and Pittman should be dismissed. However, they argue that

summary judgment should be denied as to their claims against Defendants

Perez, Lawson, and CCS. This Court will consider each argument in turn.

6 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

7 John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th

Cir. 2004) (internal citations omitted).

8 Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.

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

9 Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

3

A. Qualified Immunity

Perez and Lawson argue that they are entitled to qualified immunity

from Plaintiff’s claims. “Qualified immunity shields government officials from

civil damages liability unless the official violated a statutory or constitutional

right that was clearly established at the time of the challenged conduct.”10

Although Movants are not government employees, they argue that they are

entitled to qualified immunity because they worked in a public institution

alongside government employees. In so arguing, Movants rely on the Fifth

Circuit’s opinion in Perniciaro v. Lea, 901 F.3d 241 (5th Cir. 2018), in which it

held that two privately employed doctors working at a public prison were

entitled to assert qualified immunity. In response, Plaintiffs contend that the

facts of this case are more in line with the facts of Richardson v. McKnight, 521

U.S. 399 (1997), in which the Supreme Court held that prison guards who were

employees of a private prison management firm were not entitled to assert

qualified immunity.

Whether a private actor may assert qualified immunity depends on two

things: “(1) principles of tort immunities and defenses applicable at common

law around the time of § 1983’s enactment in 1871 and (2) the purposes served

by granting immunity.”11 As to the second factor,

[t]he Supreme Court has identified three purposes served by

qualified immunity: (1) preventing unwarranted timidity in the

exercise of official duties; (2) ensuring that highly skilled and

qualified candidates are not deterred from public service by the

10 Heaney v. Roberts, 846 F.3d 795, 801 (5th Cir. 2017) (quoting Reichle v. Howards,

566 U.S. 658, 664 (2012)).

11 Perniciaro v. Lea, 901 F.3d 241, 251 (5th Cir. 2018) (citing Filarsky v. Delia, 566

U.S. 377, 383–84 (2012); Richardson v. McKnight, 521 U.S. 399, 403–04 (1997)).

4

threat of liability; and (3) protecting public employees—and their

work—from all of the distraction that litigation entails.”12

In Richardson, the Supreme Court considered whether two prison

guards who were employed by a private prison management firm could assert

qualified immunity.13 First, the Court held that history did not reveal a firmly

rooted tradition of immunity applicable to privately employed prison guards.14

Then, it found that the second factor also did not weigh in favor of allowing the

prison guards to assert qualified immunity.15 The Court noted that the prison

firm at issue was “systematically organized to perform a major administrative

task for profit,” and it did so independently and with little government

supervision or direction.16 The Court held that where a private company

subject to ordinary market pressures operates a prison, unwarranted timidity

is less likely present.17 It explained that

marketplace pressures provide the private firm with strong

incentives to avoid overly timid, insufficiently vigorous, unduly

fearful, or “nonarduous” employee job performance. And the

contract’s provisions—including those that might permit employee

indemnification and avoid many civil-service restrictions—grant

this private firm freedom to respond to those market pressures

through rewards and penalties that operate directly upon its

employees.18

12 Id.

13 Richardson, 521 U.S. at 402.

14 Id. at 407.

15 Id. at 412.

16 Id. at 409.

17 Id.

18 Id. at 410.

5

The Court further explained that this privatization helps to “ensure that

talented candidates are not deterred by the threat of damages suits from

entering public service” because comprehensive insurance-coverage

requirements increase “the likelihood of employee indemnification and to that

extent reduce[] the employment-discouraging fear of unwarranted liability

potential applicants face.”19 Finally, the Court held that although lawsuits

may distract employees from their duties, this risk alone did not constitute

sufficient grounds for immunity. The Court concluded that “[t]he

organizational structure [of the private prison management firm was] one

subject to the ordinary competitive pressures that normally help private firms

adjust their behavior in response to the incentives that tort suits provide—

pressures not necessarily present in government departments.”20

In Perniciaro, the private actors were Drs. Thompson and Nicholl,

psychiatrists employed by Tulane University who provided services at Eastern

Louisiana Mental Health System (“ELMHS”) pursuant to a contract between

Tulane and the State.21 As to the first factor, the Fifth Circuit held that the

general principles of immunity at common law supported the right of the

psychiatrists to raise the defense of qualified immunity where they were

private individuals working part-time in a public institution alongside

government employees. The court noted that “it is clear that their public

counterparts would be entitled to assert qualified immunity.”22 As to the

second factor, it held that the purposes of qualified immunity also weighed in

19 Id. at 411.

20 Id. at 412.

21 Perniciaro, 901 F.3d at 246.

22 Id. at 252.

6

favor of permitting Drs. Thompson and Nicholl to assert that defense. In so

holding, the court distinguished the facts before it from those in Richardson.

[T]he market forces assumed in Richardson’s reasoning are much

weaker here. First, the state, not Tulane, oversees the operation of

ELMHS and the services that Drs. Thompson and Nicholl provide

there. ELMHS is a state-run facility, operated pursuant to state

policies and overseen by a state employee. Dr. Thompson reports

directly to [a state employee], not to anyone at Tulane. . . . Whereas

the Supreme Court in Richardson concluded that the private

prison guards there at issue “resemble those of other private firms

and differ from government employees,” here we conclude just the

opposite. When Drs. Thompson and Nicholl go to work at ELMHS,

they act within a government system, not a private one. The

market pressures at play within a purely private firm simply do

not reach them there. Furthermore, their direct employer, Tulane

University, is not “systematically organized” to perform the “major

administrative task” of providing mental-health care at state

facilities.23

The court similarly noted that—unlike the private firm in Richardson that

could offset the risk of litigation with higher pay and better benefits—Drs.

Thompson and Nicholl were precisely the types of highly skilled individuals

who might choose opportunities that carry less risk of liability if not offered

immunity for their work in public service.24 “This is particularly so where, as

here, the private individuals work in close coordination with government

employees who may leave them holding the bag—facing full liability for actions

taken in conjunction with government employees who enjoy immunity for the

same activity.”25 Finally, the court held that “where private individuals work

23 Id. at 253 (internal citation omitted).

24 Id.

25 Id. at 254 (internal quotations omitted).

7

alongside public employees,” the interest in protecting them from “frequent

lawsuits that might distract them from their official duties” is far greater.26

In this case, it is undisputed that CCS contracted with the Orleans

Parish Sheriff’s Office and the City of New Orleans to “administer and manage

health care services and related administrative services” at jails in the

parish.27 The contract between the parties requires CCS to maintain various

types of liability insurance covering its operations and has a two-year term

after which the parties must renew the agreement.

Movants argue that this case is more in line with Perniciaro because they

work within a government system alongside government employees, report to

the state on a quarterly basis, and comply with certain government standards

including those set forth by a federal consent judgment. Unlike in Perniciaro,

however, there is no indication that Defendants Perez and Lawson report

directly to a state employee or work directly with medical professionals

employed by the State. Here, Perez and Lawson work for CCS, and CCS was

“systematically organized to perform a major administrative task for profit”—

that is, the delivery of healthcare to certain detention centers in New Orleans.

CCS is a private firm “subject to the ordinary competitive pressures that

normally help private firms adjust their behavior in response to the incentives

that tort suits provide.”28 Just as in Richardson, the market pressures will

work to thwart the purposes of qualified immunity. Accordingly, the purposes

of qualified immunity would not be served by granting it in this case, and this

26 Id.

27 Doc. 71-8.

28 Richardson, 521 U.S. at 412.

8

Court finds that Defendants Perez and Lawson are not entitled to qualified

immunity.

B. Deliberate Indifference

Next, Movants argue that Plaintiffs cannot show that Perez or Lawson

acted with deliberate indifference toward the medical needs of Mealey to

succeed on a claim under § 1983. At the outset, the parties disagree on the

proper standard for deliberate indifference in this case. Movants argue that a

subjective standard for deliberate indifference applies—that is, that the

defendants knew of and disregarded a substantial risk of harm. Plaintiffs

argue that because Mealey was a pretrial detainee, an objective standard

should apply—that is, that the defendants knew or should have known of the

risk of harm.

In support of its argument that an objective deliberate indifference

standard should apply to their claims, Plaintiffs rely on the Supreme Court’s

opinion in Kingsley v. Hendrickson.29 Kingsley considered the appropriate

standard for a § 1983 claim for excessive force by a pretrial detainee.30 The

Court held that an objective standard applied to the question of whether the

force used against a pretrial detainee was unreasonable.31 The Court stated

that “a pretrial detainee can prevail by providing only objective evidence that

the challenged governmental action is not rationally related to a legitimate

governmental objective or that it is excessive in relation to that purpose.”32

29 Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466 (2015).

30 Id. at 2473.

31 Id.

32 Id. at 2473–74.

9

Plaintiffs argue that the holding in Kingsley applies broadly to any

constitutional claim brought by a pretrial detainee.

This position, however, conflicts with binding Fifth Circuit law. After

Kingsley, the Fifth Circuit applied a subjective deliberate indifference

standard to a § 1983 claim by a pretrial detainee. In Alderson v. Concordia

Parish Correctional Facility, the Fifth Circuit stated that:

Pretrial detainees are protected by the Due Process Clause of the

Fourteenth Amendment. To succeed in a § 1983 action based on

“episodic acts or omissions” in violation of Fourteenth Amendment

rights, a pretrial detainee must show subjective deliberate

indifference by the defendants. That is, the plaintiff must show

that the official knew of and disregarded a substantial risk of

serious harm.33

Accordingly, this Court is bound to apply a subjective standard here.

“A prison official shows deliberate indifference if ‘the official knows of

and disregards an excessive risk to inmate health or safety; the official must

both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.’”34

A plaintiff can show deliberate indifference by showing that an official “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.”35

33 Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419–20 (5th Cir. 2017).

34 Brewster v. Dretke, 587 F.3d 764, 770 (5th Cir. 2009) (quoting Farmer v. Brennan,

511 U.S. 825, 837 (1994)).

35 Alderson, 848 F.3d at 422.

10

Plaintiffs argue that Perez, a registered nurse, and Lawson, a medical

assistant, were deliberately indifferent when they failed to take any action—

such as contacting a qualified medical provider or checking Mealey’s vitals—

between 2:00p.m. (when they were made aware of Mealey’s condition by a

deputy’s emergency alert) and 2:40p.m. (when Mealey went into cardiac

arrest). Plaintiffs allege that Perez and Lawson ignored Mealey’s complaints

despite their awareness that Mealey complained of abdominal pain, collapsed

three times on his way to the medical office, vomited, and was too sick to get

off the floor on his own. They argue that Perez and Lawson failed to take action

in response to an obvious medical emergency.

Movants argue that Mealey’s symptoms were consistent with opiate

withdrawals for which they were treating Mealey and that Mealey reported a

hernia from a few years ago that he thought might have been causing his pain.

Therefore, Movants argue that they had no reason to believe that Mealey was

at risk of serious harm. Movants also point out that Perez palpated Mealey’s

abdomen, found it soft to the touch, and left Mealey in a chair for observation.

This Court finds that there is a material issue of fact as to whether

Lawson and Perez acted with deliberate indifference in response to Mealey’s

medical emergency. Courts have held that when gatekeepers to emergency

care, such as RNs and medical assistants, knowingly disregard a prisoner’s

serious medical complaints, they act with deliberate indifference to that

prisoner’s medical needs.36 Accordingly, summary judgment dismissing

Plaintiffs’ § 1983 claims against Perez and Lawson is inappropriate.

36 See Rodrigue v. Morehouse Det. Ctr., No. 09-985, 2012 WL 4483438, at *6 (W.D. La.

Sept. 28, 2012), aff’d sub nom. Rodrigue v. Grayson, 557 F. App’x 341 (5th Cir. 2014).

11

C. Liability of CCS

Next, Movants argue that CCS cannot be vicariously liable for the

constitutional torts of its employees. In Monell v. Department of Social

Services, the Supreme Court held that the liability of municipalities and other

local governments cannot be predicated on the doctrine of respondeat

superior.37 Several courts have extended this holding to private entities.38

Plaintiffs argue, however, that the Fifth Circuit has never addressed whether

private companies can be liable under a theory of respondeat superior for the

constitutional torts of their employees, and they argue that there are

compelling reasons to hold that they can.

Plaintiffs’ arguments, however, go against the holdings of every circuit

court that has considered the issue.39 Indeed, even the opinion that Plaintiffs

rely on in criticizing the application of Monell to private companies ultimately

concluded that controlling law required it to hold that the Monell standard

extends to private corporations.40 Plaintiffs have not provided this Court with

any case since Monell holding that a private entity can be liable under a

respondaet superior theory. Accordingly, this Court declines Plaintiffs’

37 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978).

38 See e.g., Lyons v. Nat’l Car Rental Sys., Inc. (of Delaware), 30 F.3d 240, 246 (1st Cir.

1994) (“Although the holding in Monell is framed so that it expressly applies only to local

governments, the decision is based generally on the language and legislative history of §

1983, not on principles—such as sovereign or qualified immunity—applicable only to

governmental entities. . . . These justifications are equally applicable to private

corporations.”); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (“[W]e see no

basis in the reasoning underlying Monell to distinguish between municipalities and private

entities acting under color of state law.”).

39 “Every one of our sister circuits to have considered the issue has concluded that

the requirements of Monell do apply to suits against private entities under § 1983.” Tsao,

698 F.3d at 1139 and cases cited therein.

40 See Shields v. Illinois Dep’t of Corrs., 746 F.3d 782, 786 (7th Cir. 2014).

12

invitation to be the first. CCS cannot be vicariously liable for the constitutional

torts of its employees.

Therefore, to succeed in bringing a § 1983 claim against CCS, Plaintiffs

must show “(1) the existence of an official policy or custom, (2) a policymaker’s

actual or constructive knowledge of the policy or custom, and (3) a

constitutional violation where the policy or custom is the ‘moving force.’”41

Movants allege that Plaintiffs cannot make such a showing.

To prove that CCS has a policy that was the moving force behind the

violation of Mealey’s constitutional rights, Plaintiffs present the opinion of

their expert, Celia Noehren R.N. Noehren opines that Mealey’s treatment was

a result of a pattern of constitutionally deficient medical care at the OJC that

has been identified for years by monitors of a federal consent judgment.42 For

example, Noehren opines that CCS has ongoing problems with giving inmates

access to qualified medical professionals, checking vitals in accordance with

the opiate withdrawal protocol, accurate charting, and supervision of medical

staff. Accordingly, Plaintiffs have presented sufficient evidence to create a

material issue of fact as to their § 1983 claim against CCS.

D. Punitive Damages

Finally, Movants move for dismissal of Plaintiffs’ claim for punitive

damages. Punitive damages may be awarded in an action under § 1983 when

“the defendant’s conduct is shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the federally protected

41 Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010).

42 See Jones v. Gusman, E.D. La. 12-cv-859, R. Doc. 81-2.

13

rights of others.”4? Movants argue that Plaintiffs cannot present evidence that

Movants’ conduct rises to this level. Plaintiffs argue that Perez and Lawson

showed reckless or callous indifference when they ignored Mealey’s medical

emergency. This Court finds that Plaintiffs’ have presented sufficient evidence

as discussed above to create a material issue of fact on this claim. Accordingly,

Movants’ request for summary judgment is denied.

CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment is

GRANTED IN PART. Plaintiffs’ claims against Walker, Oates, Thompson, and

Pittman are dismissed.

New Orleans, Louisiana this 16th day of April, 2020.

G TRICHE (Lh

UNITED STATES DISTRICT JUDGE

43 Smith v. Wade, 461 U.S. 30, 56 (1988).

14