# Johnson v. Gusman

> District Court, E.D. Louisiana · May 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10185510

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10185510

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

QUANEECHA JOHNSON, ET AL. CIVIL ACTION
v. NO. 19-13949

MARLIN GUSMAN, ET AL. SECTION “F”

ORDER AND REASONS
Before the Court is Sheriff Marlin Gusman’s motion to dismiss
the federal claims brought against him. For the reasons that
follow, the motion is DENIED.

Background
This conditions-of-confinement case arises from a pretrial
detainee’s overdose on fentanyl inside Orleans Parish Prison.
Members of the pretrial detainee’s family sued Sheriff Marlin
Gusman, the statutory “keeper” of the prison, under Louisiana law
and 42 U.S.C. § 1983. They say that Sheriff Gusman put into place
policies of inadequate staffing and monitoring‒—policies that
permitted someone to smuggle into the prison the drugs that killed
their loved one. The well-pleaded allegations of their complaint,
accepted as true and viewed in their favor, follow.
Edward Patterson was arrested and booked into Orleans Parish
Prison in January 2015. Fast forward nearly four years, to late
November 2018. Patterson remained imprisoned awaiting trial.

Someone saw him smoking an “unknown substance” and “displaying
abnormal behavior.” Suspecting an overdose, prison officials
rushed him to the hospital, which eventually released him.
After this overdose scare, Patterson returned to the Orleans
Parish Prison. Officials placed him in the same tier, with the
same inmates and staff. That tier suffered from “severe staffing
shortages and a lack of supervision.” Worse, officials knew that
“drugs and other contraband were routinely present” on the tier,
but they did nothing to solve the problem.

Patterson overdosed five days later. Someone——a guard, an
inmate, or a member of prison medical staff——smuggled fentanyl-
laced drugs into the tier. When an inmate saw Patterson “collapsed
and unconscious” in his cell, he alerted the guards. But the guards
did not call emergency services immediately; they instead
administered CPR and naproxen. When those efforts failed, nearly
30 minutes later, the guards finally called emergency services. It
was too late. Patterson died of a fentanyl overdose at University
Medical Center at 7:43 P.M. that night.

Patterson had three minor children: T.P., N.P., and E.P.
Almost a year after their father’s death, their mothers——Quaneecha
Johnson, Waynekka Randle, and Jasmene Ruffin——brought this 42
U.S.C. § 1983 action on their behalf. They sued those involved in
prison management: the Sheriff of Orleans Parish, Marlin Gusman;

the Compliance Director for the Orleans Parish Prison, Gary
Maynard; and the outside healthcare provider for the Orleans Parish
Prison, Wellpath, LLC. They also sued, as John Doe defendants, the
guards assigned to Patterson’s tier and the medical staffers who
treated Patterson. They say that Patterson’s death resulted from
a “pattern of dereliction and neglect” by Orleans Parish Prison
officials.
This “pattern” was “documented” in “lawsuits,” including
Eastern District of Louisiana Civil Action No. 12-859, LaShawn
Jones v. Marlin Gusman.1 That was a civil-rights action brought by

inmates aiming to expose unconstitutional conditions at the
Orleans Parish Prison. They succeeded. For the action attracted
the attention of the Department of Justice and culminated in a
2013 consent judgment, which required Sheriff Gusman to “implement
systemic and durable reforms to address pervasive and longstanding
problems” at the prison. But reforms did not follow——at least not

1 Sheriff Gusman asks the Court to judicially notice the order
appointing the Compliance Director, and the plaintiffs do not
oppose. Because the fact of the Jones litigation and related
filings “can be accurately and readily determined from” orders of
this Court, a source “whose accuracy cannot reasonably be
questioned,” judicial notice is appropriate. FED. R. EVID.
201(b)(2).
as quickly as the Jones plaintiffs would have liked. So, in April
2016, the Jones plaintiffs moved the Court to hold Sheriff Gusman
in contempt and to appoint a receiver to implement the consent

judgment. Before the Court could resolve the motion, however, the
parties stipulated to the entry of an order appointing a
“Compliance Director” for the Orleans Parish Prison.
Under the stipulated order, the Compliance Director has
“final authority to operate the [Orleans Parish Prison] and all
jail facilities, including authority over the entire prisoner
population in the custody of the Orleans Parish Sheriff’s
Office[.]” But before the Compliance Director can make a decision
“that materially impact[s] compliance with the consent judgment,”

he must “seek advice and/or approval from the Sheriff,” unless
doing so would cause “unreasonable delay.”
Now, Sheriff Gusman invokes the stipulated order and moves to
dismiss the federal claims against him for failure to state a
claim. See FED. R. CIV. P. 12(b)(6). He says he cannot have official-
capacity liability as a “final policymaker” for the Orleans Parish
Prison because, under the terms of the stipulated order, the
Compliance Director has all policymaking power. And the
plaintiffs’ individual-capacity claims fail, Gusman adds, because

the facts alleged do not establish his “involvement” in Patterson’s
death.
I.
A complaint must contain a short and plain statement of the

claim showing that the pleader is entitled to relief. FED. R. CIV.
P. 8(a)(2). A party may move to dismiss a complaint that fails
this requirement. See FED. R. CIV. P. 12(b)(6).
In considering a Rule 12(b)(6) motion, the Court accepts all
well-pleaded facts as true and views those facts in the light most
favorable to the plaintiff. Thompson v. City of Waco, Tex., 764
F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee v.
Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012) (en banc)). Conclusory allegations are not well pleaded

and thus are not accepted as true. See Thompson, 764 F.3d at 502-
03 (citing Iqbal, 556 U.S. at 678).
To overcome a Rule 12(b)(6) motion, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). A claim
is facially plausible if it contains “factual content that allows
the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“A complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations[.]” Twombly, 550 U.S.
at 555. But it must contain “more than labels and conclusions, and
a formulaic recitation of a cause of action’s elements will not
do.” Id. at 555. Ultimately, the Court’s task is “to determine
whether the plaintiff stated a legally cognizable claim that is

plausible, not to evaluate the plaintiff’s likelihood of success.”
Thompson, 764 F.3d at 503 (citation omitted).
II.

Sheriff Gusman contends the plaintiffs fail to state
official-capacity federal claims against him. He invokes the
stipulated order appointing the Orleans Parish Prison Compliance
Director and says the document proves he is not a “final
policymaker” as a matter of law. The plaintiffs respond with two
arguments. First, Sheriff Gusman is a “final policymaker” because
the stipulated order gives him the power to supervise the
Compliance Director in some respects. Second, Sheriff Gusman’s
deficient policies survived the appointment of a Compliance
Director and caused Patterson’s death. The Court considers each
argument in turn.

A.
Claims against Sheriff Gusman in his official capacity are
treated as claims against the entity he represents. See Bellard v.
Gautreaux, 675 F.3d 454, 462 (5th Cir. 2012). To state § 1983

claims against that entity, the plaintiffs must plead facts that
plausibly establish (1) a policymaker, (2) an official policy, and
(3) a violation of constitutional rights whose “moving force” is
the policy or custom. Ratliff v. Aransas Cnty., Tex., 948 F.3d
281, 285 (5th Cir. 2020) (citing Piotrowski v. City of Houston,

237 F.3d 567, 578 (5th Cir. 2001)). Only the policymaker element
is at issue here.
State law governs whether an official is a “policymaker.”
Webb v. Town of Saint Joseph, 925 F.3d 209, 215 (5th Cir. 2019).
To identify the “policymaker,” the Court looks to “‘state and local
positive law, as well as custom or usage having the force of law.’”
Id. at 216 (quoting Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701,
737 (1989)). Louisiana law instructs that the sheriff is the “final
policymaker” for the public jail of his parish. See LA. REV. STAT.

§§ 15:704, 13:5539(C); Thompkins v. Belt, 828 F.2d 298, 304 n.8
(5th Cir. 1987). Accordingly, because Sheriff Gusman is the Sheriff
of Orleans Parish, he is the “final policymaker” for the Orleans
Parish Prison. See LA. REV. STAT. §§ 15:704, 13:5539(C).
Overlooking these authorities, Sheriff Gusman says he is not
the “final policymaker” because the stipulated order appointing
the Orleans Parish Prison Compliance Director stripped him of
policymaking power and created a receivership. He says the language
of the stipulated order, standing alone, proves that the Compliance

Director is the “final policymaker” for the Orleans Parish Prison.
The Court disagrees.2 To begin, the stipulated order is not
“state law” and is therefore irrelevant to the policymaker
analysis. See Webb, 925 F.3d at 216. But even if the order were

relevant, Sheriff Gusman misreads it. His argument relies on an
interpretation of it that is objectively wrong——an interpretation
that exaggerates the order’s effect on his power to make prison
policy. The stipulated order did not strip Sheriff Gusman of all
policymaking power; a quasi-veto power remained intact: the
stipulated order bars the Compliance Director from making a
“decision[] that materially impact[s] compliance with the consent
judgment” without first “seek[ing]” Sheriff Gusman’s “advice
and/or approval.” That Sheriff Gusman retains such supervisory
powers suggests that he remains the “final policymaker” for the
Orleans Parish Prison. See, e.g., Adv. Tech. Bldg. Solutions v.
City of Jackson, Miss., 817 F.3d 163, 167 (5th Cir. 2016) (holding

2 Sheriff Gusman fails to invoke any opinion accepting his
novel policymaker argument. He instead seeks refuge in the
unremarkable proposition that the Compliance Director resembles a
receiver in some respects. And from there he reasons that, because
the Orleans Parish Prison is under a quasi-receivership, it cannot
have official-capacity liability. But Sheriff Gusman’s argument
misapprehends the scope of the Compliance Director’s authority.
That authority——to implement the consent judgment through actions
subject to Sheriff Gusman’s “advice and/or approval”——is nothing
like the expansive powers exercised by receivers over
municipalities in the opinions Sheriff Gusman invokes to support
his policymaker argument. See Canney v. City of Chelsea, 925 F.
Supp. 58, 67-68 (D. Mass. 1996); Fantasia v. Office of Receiver of
Comm’n on Mental Health Servs., No. 01-1079-LFO, 2001 WL 34800013,
at *5-6 (D.D.C. Dec. 21, 2001).
that the entity with the “right of final review” is the final
policymaker); Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir. 1984) (en banc) (noting that policymakers are supervised only

“as to the totality of their performance”). So, contrary to Sheriff
Gusman’s argument, the language of the stipulated order is not
dispositive. And on this record, viewing only the language of that
order and the factual allegations of the plaintiffs’ complaint,
the Court cannot conclude that the Compliance Director——rather
than Sheriff Gusman——is the “final policymaker” for the Orleans
Parish Prison.
Besides, Sheriff Gusman’s position clashes with the case
literature: the only courts to consider his policymaker argument

have rejected it. See Oliver v. Gusman, No. 18-7845, 2020 WL
1303493, at *9-10 (E.D. La. Mar. 19, 2020); Crittindon v. Gusman,
No. 17-512, 2020 WL 377016, at *2 (M.D. La. Jan. 23, 2020). And

for good reason; the argument is not just contrary to law it is
bad policy. Recall that the consent judgment and stipulated order
were entered because of “pervasive and longstanding problems” at
the Orleans Parish Prison under Sheriff Gusman’s leadership.
Through his policymaker argument, Sheriff Gusman invites the Court
 
to reward him through a grant of official-capacity immunity for
creating the “pervasive and longstanding problems” that required
the consent judgment and stipulated order in the first place. The
Court declines the invitation.

Even if the Court accepted Sheriff Gusman’s policymaker
argument, however, dismissal of the plaintiffs’ official-capacity

claims would be unwarranted. The plaintiffs allege facts taken as

true and viewed in their favor sufficient to show that Patterson’s
death was caused by Gusman-made policies that survived the
appointment of the Orleans Parish Prison Compliance Director. The
Court therefore denies Sheriff Gusman’s motion to dismiss the
plaintiffs’ official-capacity federal claims and turns to the
plaintiffs’ individual-capacity federal claims.
III.
Sheriff Gusman next contends that the plaintiffs fail to state
individual-capacity federal claims against him because they do not
allege his “involvement” in Patterson’s death and so cannot
overcome his qualified-immunity defense.
A.

Qualified immunity protects government officials from civil
liability so long as their conduct “‘does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). Because the focus is on whether the official had “fair
notice” that his conduct was unlawful, “reasonableness is judged
against the backdrop of the law at the time of the

conduct.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per
curiam).
A right is not “clearly established” unless precedent places
the “‘constitutional question beyond debate.’” Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct.
548, 551 (2017)). Courts may not “define clearly established law
at a high level of generality.” City and Cnty. of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1775-76 (2015) (citation omitted). They
must instead locate a controlling case that “squarely governs the

specific facts at issue.” City of Escondido v. Emmons, 139 S. Ct.
500, 503 (2019) (per curiam).
When a defendant invokes qualified immunity at the pleadings
stage, as Sheriff Gusman has here, the plaintiffs “bear the burden
of pleading facts that demonstrate liability and defeat
immunity.” Shaw v. Villanueva, 918 F.3d 414, 417 (5th Cir. 2019).
To meet that burden, the plaintiffs must allege facts sufficient
to satisfy both prongs of the qualified-immunity analysis: (1)
that Sheriff Gusman violated a statutory or constitutional right,

and (2) that the right was clearly established at the time of the
challenged conduct. Id. at 417 (citing Whitley v. Hanna, 726 F.3d
631, 638 (5th Cir. 2013)). The Court considers each prong in turn.

1.
The first prong requires the plaintiffs to allege facts
showing that Sheriff Gusman violated a statutory or constitutional
right. Shaw, 918 F.3d at 417. Because Patterson was a pretrial
detainee at the time of his death, his constitutional rights “flow
from both the procedural and substantive due process guarantees of
the Fourteenth Amendment.” Hare v. City of Corinth, Miss., 74 F.3d
633, 639 (5th Cir. 1996) (en banc). Patterson’s due process
protections as a pretrial detainee are “‘at least as great as the

Eighth Amendment protections available to a convicted prisoner.’”
Id. at 639 (quoting City of Revere v. Massachusetts Gen. Hosp.,
463 U.S. 239, 244 (1983)).
To state a § 1983 claim against Sheriff Gusman for violating
Patterson’s Fourteenth Amendment rights, the plaintiffs must
allege facts establishing “subjective deliberate indifference” by
Sheriff Gusman. Alderson v. Concordia Parish Corr. Facility, 848
F.3d 415, 419 (5th Cir. 2017) (per curiam) (citing Hare, 74 F.3d

at 643). This standard requires a showing that Sheriff Gusman “knew
of and disregarded a substantial risk of serious harm.” Alderson,
848 F.3d at 420. To constitute deliberate indifference, the
“official conduct must be ‘wanton,’ which is defined to mean
‘reckless.’” Id. at 420 (quoting Johnson v. Treen, 759 F.2d 1236,
1238 (5th Cir. 1985)). Of course, supervisory officials like
Sheriff Gusman are not vicariously liable for the conduct of those

they supervise. Alderson, 848 F.3d at 420. But they are
“accountable for their own acts of deliberate indifference and for
implementing unconstitutional policies that causally result in
injury to the plaintiff.” Id.
Here, the plaintiffs allege that Sheriff Gusman violated
Patterson’s Fourteenth Amendment rights by implementing
“unconstitutional policies and practices” at the prison,
including: “inadequate staffing,” failing to “adequately monitor
and supervise inmates,” and failing to “provide adequate medical

attention.” The plaintiffs allege that Sheriff Gusman knew about
these conditions, appreciated the risk of harm they created, and
did nothing about them. They adequately allege that Sheriff Gusman
implemented unconstitutional policies that resulted in Patterson’s
death. See Alderson, 848 F.3d at 420. Accordingly, the plaintiffs
have alleged a Fourteenth Amendment violation. Having resolved the
first qualified-immunity prong in the plaintiffs’ favor, the Court
turns to the second.
2.

The second prong requires the plaintiffs to show that
Patterson’s Fourteenth Amendment rights were clearly established
at the time of Sheriff Gusman’s alleged misconduct, in November
and December of 2018. See Shaw, 918 F.3d at 417. That showing is
easily made.

For 30 years, it has been clearly established that a prison
official will be liable for acts resulting in the violation of a
pretrial detainee’s constitutional rights, provided the official
acts with “subjective deliberate indifference.” Jacobs v. West
Feliciana Sheriff’s Dep’t, 228 F.3d 388, 394 (5th Cir. 2000)
(citing Hare, 74 F.3d at 650).

* * *
The plaintiffs have pleaded facts sufficient to satisfy both
prongs of the qualified-immunity analysis. Because the plaintiffs
have met their “burden of pleading facts that demonstrate liability
and defeat immunity,” Shaw, 918 F.3d at 417, the Court denies
Sheriff Gusman’s motion to dismiss the plaintiffs’ individual-
capacity federal claims.
IV.
The plaintiffs have stated plausible federal claims against
Sheriff Gusman. Accordingly, IT IS ORDERED: that Sheriff Gusman’s
motion to dismiss is DENIED.

New Orleans, Louisiana, May 13, 2020

MARTIN . C. ELDMAN
UNITED STATHS DISTRICT JUDGE

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185510. Public record. Not legal advice.