# Tolbert v. Gusman

> District Court, E.D. Louisiana · April 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10185434

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** April 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185434. Public record. Not legal advice.