Phoenix v. Lafourche Parish Government

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DEANNA PHOENIX, on behalf of CIVIL ACTION

her minor daughter, S.W.

v. NO. 19-13004

LAFOURCHE PARISH GOVERNMENT, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is a motion to dismiss by CorrectHealth

Lafource, LLC, David Jennings, Kendra Patrick, Patricia Guidry,

Katasha Morris, Aysa Every, Shanta Sherman, Sara Armond, and

Chelsea Nolan. For the reasons that follow, the motion is GRANTED

in part and DENIED in part.

Background

This civil rights lawsuit arises from a mentally ill pretrial

detainee’s suicide by hanging in his jail cell days after being

removed from suicide watch.

Sometime between 12:37 a.m. and 4:30 a.m. on October 7, 2018,

36-year-old Samuel June Williams hanged himself in a jail cell in

the E Block at the Lafourche Parish Detention Center. Nineteen

days after he told a correctional officer he was suicidal and five

days after being removed from suicide watch. This civil rights

litigation on behalf of his minor daughter followed.

The Court takes as true the allegations in the complaint.

Samuel Williams suffered from schizophrenia and bipolar

disorder. Arrested on unspecified charges, on September 15, 2018,

Williams was transported to the Lafourche Parish Detention Center,

which is operated and administered by Lafourche Parish Sheriff’s

Office. Sheriff Craig Webre is a policymaker for the LPSO and

detention center; he was responsible for staffing the detention

center and contracting with medical providers. Major Jeremy

Graniere and Captain Cortell Davis were Corrections Directors of

the LPSO; both were policymakers responsible for training and

supervising staff that supervised the detainees in LPSO custody.

The LPSO contracted with CorrectHealth Lafourche LLC (CHL) to

provide and manage medical and mental health services for detainees

in LPSO custody at LPDC; CHL provided staff, training, and policies

for all medical and mental health personnel it employed at LPDC,

including David Jennings (a social worker), Kendra Patrick (a nurse

practitioner), and a number of licensed practical nurses, Patricia

Guidry, Katasha Morris, Aysa Every, Shanta Sherman, Sarah Armond,

and Chelsea Nolan.

Detainees are screened on arrival at LPDC. In the intake

screening form for Williams, CHL nurse Aysa Every indicated that

Williams denied thoughts of self-harm, denied mental health

history, and denied a history of suicide attempts or ideation.

From a holding cell, Williams was placed in F Block; the next day

he was transferred to G Block. That same day, Williams informed

a correctional officer that he was suicidal.1 By 8:05 a.m. on

September 18, 2018, Williams was placed on suicide watch and

watched by CHL licensed practical nurses Patricia Guidry or Shanta

Sherman.

Williams remained on suicide watch from September 18 until

12:14 p.m. on October 2, 2018. During the two-week suicide watch

period, the Custom Flow Chart kept by the CHL medical providers

indicates that the following individuals monitored Williams: David

Jennings (social worker); Kendra Patrick (nurse practitioner); and

Patricia Guidry, Aysa Every, Shanta Sherman, Sarah Armond, Chelsea

Nolan, and Katasha Morris (licensed practical nurses).

Seven days after being placed on suicide watch, Williams was

interviewed about his suicidal ideations; he informed either

Armond or Jennings that he felt depressed and suicidal, that he

had mental health history of bipolar and schizophrenia diagnoses,

and that he had been prescribed medications to treat his mental

illnesses. The mental health note (taken by either Armond or

Jennings) on September 25, 2018 recommends “continue on suicide

watch, verify meds, psych appointment upon verification.” That

same day, Williams signed a release authorizing JeffCare (of

1 A Chart Note by Shanta Sherman at 6:27 a.m. on September 18, 2018

states, “Nurse on duty advised by Lt. Jones inmate told security

personnel that he wanted to kill himself inmate placed on suicide

watch per protocol.”

Jefferson Parish Human Services Authority) to release his mental

health records to LPDC; Williams had been treated at JeffCare since

September 2017. Williams’s JeffCare records were either received

that same day, or CHL failed to obtain them.2 The JeffCare records

essentially confirmed with more specificity what Williams reported

to CHL. The records indicate that Williams had been diagnosed

with schizophrenia and bipolar disorder and that his treatment

regimen in January 2018 at JeffCare included three medications: a

mood stabilizer, to be taken twice daily; a schizoaffective/

schizophrenia medication to be taken once each month; and an anti-

depressive to be taken once daily. CHL did not provide Williams

with these or any medications. Nor did CHL schedule an appointment

for a psychiatrist or psychologist to examine Williams.

Two days later on September 27, 2018, in the Subjective

Interview Form in CHL’s record, Patrick noted that Williams was on

suicide watch (but erroneously noted the suicide watch time period

spanned three, rather than nine, days), that Williams had reported

that he was diagnosed with bipolar disorder and schizophrenia a

few months ago, that Williams “states he is not taking medication,”

and that he reports depression and suicidal thoughts. Patrick

2 It is alleged, the medical records were received by CHL and saved

by Nolan It is alternatively alleged that CHL failed to obtain the

records.

also noted “keep on suicide watch obtain records from Jeff Carrol

rtc 1 week.”

Five days later on October 2, 2018, Williams was examined by

Jennings, CHL social worker, who noted in the Subjective Interview

Form that Williams

said he is feeling ‘good.’ He denied [suicidal

ideation]. He denied past attempts at suicide.

[Williams] said he was getting Invega shot from

JeffCare...up till a couple months ago.... He

verbalized having support from family and hope for his

future. He was definitive in his denial of [suicidal

ideation] or wanting to hurt himself.

Jennings discontinued Williams’s suicide watch: in a mental health

note and provider order that same day, Jennings stated “Discontinue

suicide watch, house per security, verify meds, psych appointment,

f/u in one week by social worker.” In accordance with Jennings’s

order, Williams was removed from suicide watch on October 2 and

placed on D Block. After a problem with another inmate a few days

later, Williams was moved to E Block.

The same day he was moved to E Block, the Exam Forms portion

of the CHL record reflects that Nolan noted: “Appointment with

Appt: MenHlth SickCall-Prov for 10-09-2018: f/u social worker in

one week Appointment with Appt: Mental Health Provider (NP_PA) for

10-11-18: VERIFY MEDS. PSYCH APPOINTMENT UPON VERIFICATION.”

Whether Nolan examined or spoke to Williams, or ascertained whether

he was experiencing suicidal ideation, is not reflected in the

note. “Although Williams advised all the CorrectHealth Lafourche

defendant employees that he had been receiving medications for his

schizophrenia and bipolar disorder, and the JPSHA records verified

as much,” it is alleged, Williams “was never prescribed any

medications by [CHL] or examined by a psychiatrist.”

Nineteen days after threatening suicide -- unmedicated and

before being examined or treated by a psychiatrist or physician -

- on October 7, 2018, Williams hanged himself in his cell. He was

last seen alive at 12:36 a.m.; his body was found at 4:30 a.m.

His medical “treatment” at the jail consisted of being placed on

suicide watch for 14 days, one visit with a nurse practitioner,

and one or two visits with a social worker.

On October 7, 2019, Deanna Phoenix, on behalf of Phoenix’s

(and Williams’s) minor daughter, S.W., sued Lafourche Parish

Government, Sheriff Craig Webre (in his individual and official

capacity as the Sheriff of Lafourche Parish), Major Jeremy Graniere

(in his individual and official capacity as the Corrections

Director of LPSO), Lieutenant Craig Denison (“in his individual

capacity as Shift Supervisor at the LPSO”), Deputy Stephen Waldrop

(in his individual capacity), Deputy Sal Marcello (in his

individual capacity), CorrectHealth Lafourche LLC, and CHL

employees David Jennings, Kendra Patrick, Patricia Guidry, Katasha

Morris, Aysa Every, Shanta Sherman, Sarah Armond, and Chelsea Nolan

(each in their individual capacities). The plaintiff dismissed

her claims against Lafourche Parish.

The plaintiff alleges seven claims. In Count 1, the plaintiff

alleges 42 U.S.C. § 1983 official capacity claims against the law

enforcement and corrections officer defendants, Webre, Davis, and

Graniere; the plaintiff alleges due process, equal protection, and

freedom from cruel and unusual punishment violations based on a

system in which prisoners are denied appropriate protection from

harm due to inappropriate supervision, contracting with CHL for

inadequate medical health care resulting in deliberate

indifference to prisoners’ mental health conditions. In Count 2,

the plaintiff alleges § 1983 individual and official capacity

claims, specifically based on certain defendants’ (Webre, Davis,

Graniere, and CHL’s) failure to supervise and train other

defendants to ensure patients received appropriate care and

supervision to protect patients from harm; by failing to train or

supervise their employees (who failed to monitor Williams or refer

him for treatment), she alleges that the defendants deliberately

disregarded her father’s serious medical needs. The plaintiff

alleges that her father’s death would have been prevented with

appropriate patient monitoring and supervision. In Count 3, the

plaintiff alleges § 1983 claims for violations of Williams’s right

to due process, equal protection, and freedom from cruel and

unusual punishment based on deliberate indifference to Williams’s

constitutional right to protection from harm; the plaintiff names

as defendants Webre, Davis, Graniere, CHL, Lt. Denison, Deputies

Waldrop and Marchello, Jennings, Patrick, Guidry, Morris, Every,

Sherman, Armond, and Nolan. In Count 4, the plaintiff alleges

that Sheriff Webre violated the Americans with Disabilities Act

and Section 504 of the Rehabilitation Act by discriminating against

and failing to accommodate Williams’s disabilities of

schizophrenia and bipolar disorder. In Count 5, the plaintiff

alleges a § 1983 Monell violation based on defendants Webre, Davis,

Graniere, and CHL, in their official capacities, maintaining

policies that denied access to appropriate medical care and

prevention from harm, which the defendants knew would deprive

detainees with serious mental health disorders of treatment. In

Count 6, the plaintiff alleges medical malpractice by CHL and CHL

employees Jennings, Patrick, Guidry, Morris, Every, Sherman,

Armond, and Nolan. In Count 7, the plaintiff alleges state law

torts of negligent or intentional conduct (including negligent

retention of unqualified employees, negligent supervision and

training) resulting in injury against all defendants. The

plaintiff seeks compensatory and punitive damages as well as

attorney’s fees and costs. The law enforcement and corrections

officer defendants answered the complaint, invoked qualified

immunity, and asserted various defenses.

Focusing on the allegations directed to the health care

provider defendants, the plaintiff alleges that Lafourche Parish

contracted with CorrectHealth Lafourche (CHL) to provide medical

and mental health care services, that constitutionally inadequate

care was provided, and that CHL is liable directly and under the

doctrine of respondeat superior for the constitutional torts of

its employees. The medical care provider defendants (CHL and its

employees) failed to review Williams’s medical records despite

receiving them on September 25, 2018 and they failed to verify,

obtain, or administer Williams’s medications. Notwithstanding

Sheriff Webre’s policy requiring inmates suspected of suicide

ideation to be screened by on-duty medical personal and referred

for a psychiatric evaluation after necessary interventions, it is

alleged, the medical care defendants failed to follow this policy.

Alternatively, the plaintiff alleges, there was no such policy.

The plaintiff also alleges that the medical provider defendants

were deliberately indifferent:

•

By failing to refer Williams to the emergency room, a

physician, or psychiatrist after he presented with suicidal

ideation on September 18 and after receiving his medical

records on September 25;

•

By deciding to remove Williams from suicide watch on October

2, given that Williams had previously misrepresented to

Intake that he had no history of mental health issues; Patrick

had ordered him to be on suicide watch; and Jennings was

ignorant of the contents of Williams’s mental health records;

•

By failing to read the JeffCare records reflecting Williams’s

mental health and medication history;

•

Alternatively, by failing to obtain the JeffCare records

after they learned from Williams that he had been diagnosed

as schizophrenic and bipolar;

•

By conducting only two mental health examinations (one by

Patrick and one by Jennings) between the date Williams

expressed suicidal ideations and the date of his suicide;

•

By failing to have a policy in place for monitoring inmates

removed from suicide watch;

•

By failing to instruct the LPSO to place Williams on regular

monitoring (observation) or in a two-person cell given his

mental health history;

•

By failing to follow protocols set out in the NCCHC Standards

of Health Services in Jails 2018 and Standards for Mental

Health Services in Correctional Facilities 2015 and 2018

Standards for Health Services in Jails;

•

By failing to place Williams on the medications he had been

prescribed at JPHSA, given the severity of his condition;

•

By failing to prescribe medications;

•

By failing to closely monitor Williams after he was removed

from suicide watch given his earlier suicidal ideation and

his mental health history; and

•

By failing to verify Williams’s medications and prior mental

health treatment and failing to have in place safeguards to

ensure that the mental health experts (Patrick and Jennings)

were aware of the contents of the JPHSA records.

The plaintiff also alleges that CHL was deliberately indifferent

given its policy of failing to adequately monitor, train, and

supervise its employees, especially Jennings, to review outside

mental health records, to discuss patient care, or to create a

system to monitor daily inmates expressing suicidal ideation or

inmates recently removed from suicide watch. The absence of these

policies, the plaintiff alleges, reflects CHL’s deliberate

indifference to the medical care and needs of inmates under their

care and has led to self-harm or suicide of multiple inmates

including: (1) An inmate under Jennings’s care at a different

institution, JPCC, in 2016; the inmate had previously attempted to

gouge out his own eyes, was placed on suicide watch but Jennings

failed to prescribed a particular medication to the inmate despite

prior medical records available to Jennings indicating that the

inmate must be kept on the medication; as a result, the inmate

gouged his eye. (2) Another inmate under Jennings’s care at JPCC,

J.B., who expressed suicidal ideations; Jennings cleared him from

suicide watch and, two days later, J.B. hanged himself. (3) In

September 2018, Jennings placed inmate J.E. on suicide watch at

JPCC; 21 days after Jennings removed J.E. from suicide watch, J.E.

hanged himself at JPCC. Although CHL and CorrectHealth Jefferson

are different entities, it is alleged that Jennings was working

for both entities in 2017 and 2018, both were aware of Jennings’s

involvement in the self-harm and suicide cases at JPCC, and both

had identical policies on monitoring, training, and supervising

employees like Jennings as it relates to suicidal prisoners. CHL

failed to staff the LPDC with sufficient mental health care

providers: no psychiatrists were employed there and Williams was

only seen once by a nurse practitioner and twice by a social

worker; this policy of inadequate staffing, which allowed Jennings

to remove Williams from suicide watch without consulting with

others, reflects deliberate indifference.

The medical care provider defendants (CHL and its employees)

now move to dismiss the plaintiff’s claims for failure to state a

claim.

I.

Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a party to move for dismissal of a complaint for failure to state

a claim upon which relief can be granted. Such a motion is rarely

granted because it is viewed with disfavor. See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser

Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d

1045, 1050 (5th Cir. 1982)).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,

a pleading must contain a "short and plain statement of the claim

showing that the pleader is entitled to relief." Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).

"[T]he pleading standard Rule 8 announces does not require

'detailed factual allegations,' but it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at

678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

In considering a Rule 12(b)(6) motion, the Court “accept[s]

all well-pleaded facts as true and view[s] all facts in the light

most favorable to the plaintiff.” See Thompson v. City of Waco,

Texas, 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)). But, in deciding whether dismissal is

warranted, the Court will not accept conclusory allegations in the

complaint as true. Id. at 502-03 (citing Iqbal, 556 U.S. at 678).

To survive dismissal, “‘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)(internal quotation

marks omitted). “Factual allegations must be enough to raise a

right to relief above the speculative level, on the assumption

that all the allegations in the complaint are true (even if

doubtful in fact).” Twombly, 550 U.S. at 555 (citations and

footnote omitted). “A claim has facial plausibility when the

plaintiff pleads 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 (“The plausibility

standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted

unlawfully.”). This is a “context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Id. at 679. “Where a complaint pleads facts that are

merely consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of entitlement to

relief.” Id. at 678 (internal quotations omitted) (citing Twombly,

550 U.S. at 557). “[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more

than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).

Finally, “[w]hen reviewing a motion to dismiss, a district

court ‘must consider the complaint in its entirety, as well as

other sources ordinarily examined when ruling on Rule 12(b)(6)

motions to dismiss, in particular, documents incorporated into the

complaint by reference, and matters of which a court may take

judicial notice.” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th

Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 308, 322 (2007)). If the Court considers materials

outside of the pleadings, the motion to dismiss must be treated as

a motion for summary judgment under Rule 56. See Causey v. Sewell

Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004); see

also Fed. R. Civ. P. 12(d).

II.

Only the healthcare provider defendants, CHL and its

employees sued in their individual capacities, move to dismiss the

plaintiff’s claims at this time. The plaintiff alleges that CHL

and its employees violated Williams’s Eighth and Fourteenth

Amendment right to medical care and protection from harm while he

was detained at Lafourche Parish Detention Center. The plaintiff

pursues a Monell claim against CHL and episodic-act (deliberate

indifference) claims against the individual CHL employee-

defendants. In addition to the federal civil rights claims, the

plaintiff also seeks to recover for intentional torts as well as

medical malpractice (and, as to CHL, vicarious liability) under

state law; the medical malpractice claims, which arise from the

same factual predicate underlying the federal civil rights claims,

have been submitted to a state medical review panel, as state law

requires.

CHL and its employees move to dismiss the plaintiff’s civil

rights claims for failure to state a claim and move to dismiss

without prejudice the medical malpractice claims pending

exhaustion by the state medical panel review. The Court summarizes

the applicable federal civil rights law to determine whether the

plaintiff has stated civil rights claims against the healthcare

defendants before turning to address the defendants’ (undisputed)

contention that the state law medical malpractice claims are

premature.

A.

Title 42, United States Code, Section 1983 creates a damages

remedy for the violation of federal constitutional or statutory

rights under color of state law; it provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any . . . person

within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured.

“The purpose of § 1983 is to deter state actors from using

their badge of authority to deprive individuals of their federally

guaranteed rights and to provide relief to victims if such

deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

Because § 1983 merely provides a remedy for designated rights,

rather than creating any substantive rights, “an underlying

constitutional or statutory violation is a predicate to

liability.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.

1997)(citation omitted). To establish § 1983 liability, the

plaintiff must satisfy three elements:

(1) deprivation of a right secured by the U.S.

Constitution or federal law,

(2) that occurred under color of state law, and

(3) was caused by a state actor.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)

(citation omitted).

B.

Navigating the § 1983 legal framework applicable to a

plaintiff’s allegations that custodial medical officials failed to

render medical care or provide protection from harm is dictated by

the nature of the complainant (convicted prisoner or pretrial

detainee?), the nature of the challenged conduct (condition-of-

confinement or episodic-act-or-omission?), and the sort of

defendant sued (individual official or municipality?). In this

custodial suicide case, a pretrial detainee’s daughter challenges

episodic acts or omissions of both individual defendants and a

“municipal” defendant (the municipality’s contractual medical

service provider).

The Eighth Amendment’s prohibition against cruel and unusual

punishment is the constitutional source of liability where an

official demonstrates deliberate indifference to a convicted

prisoner’s serious medical needs, whereas pretrial detainees whom

have not yet been convicted of a crime and therefore may not be

punished “look to the procedural and substantive due process

guarantees of the Fourteenth Amendment to ensure provision of these

same basic needs.” See Jacobs v. West Feliciana Sheriff’s Dep’t,

228 F.3d 388, 393 (5th Cir. 2000); see also Baughman v. Hickman,

935 F.3d 302, 306 (5th Cir. 2019)(“the Fourteenth Amendment case

law concerning pretrial detainees [is based] on the Supreme Court’s

Eighth Amendment precedent concerning prisoners.”); Cadena v. El

Paso County, 946 F.3d 717, 727 (5th Cir. 2020)(noting that “[t]he

standard is the same as that for a prisoner under the Eighth

Amendment”); Bell v. Wolfish, 441 U.S. 520, 535 (1979)(observing

that pretrial detainees have not been convicted of a crime such

that no punishment of any kind is permitted).3 “The Fourteenth

Amendment guarantees pretrial detainees a right ‘not to have their

serious medical needs met with deliberate indifference on the part

of the confining officials.’” Dyer v. Houston, 955 F.3d 501, 506

(5th Cir. 2020)(quoting Thompson v. Upshur Cty., Tex., 245 F.3d

447, 457 (5th Cir. 2001)). Among the Fourteenth Amendment rights

guaranteed to pretrial detainees are the right to medical care and

the right to protection from harm, including medical care for and

protection from known suicidal tendencies. See Garza v. City of

Donna, 922 F.3d 626, 632 (5th Cir. 2019)(citations omitted);

Partridge v. Two Unknown Police Officers of City of Houston, Tex.,

791 F.2d 1182, 1187 (5th Cir. 1986)(“A serious medical need may

exist for psychological or psychiatric treatment, just as it may

exist for physical ills. A psychological or psychiatric condition

can be as serious as any physical pathology or injury, especially

when it results in suicidal tendencies.”).

As to the second classification (the nature of the challenged

conduct) dictating how to analyze a § 1983 deliberate indifference

claim, “[a] pretrial detainee may prove a constitutional violation

3 That the plaintiff alleges Eighth Amendment violations and the

parties brief the applicability of the Eighth Amendment is of no

moment, considering that the plaintiff also correctly invokes the

Fourteenth Amendment and the Fourteenth Amendment case literature

concerning pretrial detainees is based on the Supreme Court’s

Eighth Amendment precedent concerning prisoners. Any § 1983 claims

based on the Eighth Amendment must be dismissed.

either by demonstrating an unconstitutional condition of

confinement or by demonstrating an unconstitutional episodic act

or omission.” Cadena, 946 F.3d at 727 (citation omitted). When

a plaintiff pursues an episodic-acts-or-omissions theory, she

seeks to redress harms arising from “the particular act or omission

of one or more officials,” rather than conditions-of-confinement

harms, which result directly from an institution’s pervasive

unconstitutional policy or practice (such as overcrowding,

excessive heat, the use of disciplinary segregation). See Garza,

922 F.3d at 632 (citations omitted). Most frequently, jail suicide

cases proceed on an episodic-act, rather than conditions-of-

confinement, theory; however, custodial-suicide plaintiffs may

pursue both as alternative theories. See id. at 633 and n.3.

The plaintiff’s theory here appears limited to challenging

CHL’s and its employee’s episodic act or omission in treating (or

failing to treat) Williams’s mental health and their failure to

protect him from the harm presented by his suicidal ideation. In

considering such a theory, the Court must “employ different

standards depending on whether the liability of the individual

defendant or the municipal defendant is at issue.” Baughman, 935

F.3d at 307 (citation omitted). Regardless of whether municipal

or individual liability is at stake, the plaintiff must show that

officials acted with deliberate indifference; “an extremely high

standard to meet.” Id. (citation omitted). This “wanton” or

“recklessness” showing requires that “(1) the official must both

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

substantial risk of serious harm exists, and (2) he must also draw

the inference.” Id. (citations omitted); Dyer, 955 F.3d at 506.

Municipal “as opposed to individual liability has the additional

requirement that the ‘violation resulted from a [municipal] policy

or custom adopted and maintained with objective deliberate

indifference.’” Baughman, 935 F.3d at 307 (quoting Garza, 922

F.3d at 634).4

As for the “substantial risk of serious harm” component of

the first element, the Fourteenth Amendment guarantees that

pretrial detainees have a right “not to have their serious medical

4 Although there is some confusion in the case literature, the

Fifth Circuit has recently clarified that -- no matter whether

official or municipal liability is at issue -- there is no third

requirement that the official subjectively intend the particular

harm to occur. Dyer, 955 F.3d at 507; Garza, 922 F.3d at 635-36.

The Court observes that there is another area of disagreement or

confusion concerning the standard for deliberate indifference of

pretrial detainees: whether the standard is subjective (the

defendants knew of and disregarded a substantial risk of harm) or

objective (the defendants knew or should have known of the risk of

harm). Compare Alderson v. Concordia Parish Correctional

Facility, 848 F.3d 415, 419-20 (5th Cir. 2017)(pretrial detainees

must show subjective deliberate indifference) with Kingsley v.

Hendrickson, 576 U.S. 389 (2015)(holding that an objective

standard applied to whether force used against a pretrial detainee

was excessive). The Court is bound to follow Alderson and other

recent Fifth Circuit case literature specific to the serious

medical needs context. See, e.g., Baughman, 935 F.3d at 307

(applying subjective deliberate indifference test to pretrial

detainee’s claim that certain medical and other officials acted

with deliberate indifference towards his serious medical needs).

needs met with deliberate indifference.” Dyer, 955 F.3d at 506.

A serious medical condition or need is equivalent to objective

exposure to a substantial risk of harm; such a condition or need

is “one for which treatment has been recommended or for which the

need is so apparent that even laymen would recognize that care is

required.” Carlucci v. Chapa, 884 F.3d 534, 538-40 (5th Cir.

2018)(quoting Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir.

2006)); Cadena, 946 F.3d at 727-28. “Medical treatment that is

merely unsuccessful or negligent does not constitute deliberate

indifference, ‘nor does a prisoner’s disagreement with his medical

treatment, absent exceptional circumstances.’” See Arenas v.

Calhoun, 922 F.3d 616, 620 (5th Cir. 2019)(citations

omitted)(analogous Eighth Amendment convicted prisoner context).

Thus, a plaintiff “must show that the officials 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.’” See

id. at 620-21 (citations omitted). To be sure, “[p]rison officials

who actually knew of a substantial risk to inmate health or safety

may be found free from liability if they responded reasonably to

the risk, even if the harm ultimately was not averted.” Farmer v.

Brennan, 511 U.S. 825, 844 (1994)(considering analogous Eighth

Amendment context).

As to the defendant’s challenged conduct, it must be

egregious: “[d]eliberate indifference is an extremely high

standard to meet.” Dyer, 955 F.3d at 506. It “cannot be inferred

merely from a negligent or even a grossly negligent response to a

substantial risk of serious harm.” Id. (citations omitted).

Deliberate indifference “requires that the defendant act with

‘something more than negligence’ but ‘less than acts or omissions

for the very purpose of causing harm or with knowledge that harm

will result.’” Cadena, 946 F.3d at 728 (citation omitted). For

example, “the decision whether to provide additional treatment ‘is

a classic example of a matter for medical judgment,’ which fails

to give rise to a deliberate-indifference claim.” Dyer, 955 F.3d

at 507 (citation omitted). Similarly, “mere disagreement with

one’s medical treatment” and “[u]nsuccessful medical treatment,

acts of negligence, or medical malpractice” fall short of

deliberate indifference. See id. To act with deliberate

indifference, an official must “know[] of and disregard an

excessive risk to inmate safety.” Garza, 922 F.3d at 635 (“It is,

indeed, fair to say that acting or failing to act with deliberate

indifference to a substantial risk of serious harm to a prisoner

is the equivalent of recklessly disregarding that risk.”)

(citations omitted).

III.

A.

Before reaching the substantive heart of the defendants’

motion to dismiss, the Court takes up several preliminary issues.

First, the parties appear to concede that the state action and

under color of law elements of the plaintiff’s § 1983 claim are

sufficiently alleged. That is, notwithstanding their ostensible

private actor status, the parties agree that CHL and CHL employees

are potentially liable for their own acts and omissions as state

actors under color of state law by reason of CHL’s contract with

the LPDC. The Court foregoes a public-function analysis to resolve

the state-actor inquiry because there is no dispute that the

plaintiff plausibly alleges that the state (through the LPSO or

LPDC) must provide adequate medical care to pretrial detainees and

that function was delegated to CHL and its employees, which assumed

the LPDC’s obligation by contract. In other words, if the

plaintiff alleges a constitutional deprivation by the private

medical care defendants, the deprivation occurred at the hands of

state actors under color of state law because CHL’s policies and

its employees’ actions are fairly attributable to the state. It

is settled that “[p]rivate actors may, under some circumstances,

be liable under § 1983[.]” Perniciaro v. Lea, 901 F.3d 241, 251

(5th Cir. 2018)(citing West v. Atkins, 487 U.S. 42, 54 (1988)(“We

now make explicit what was implicit in our holding in Estelle: ...

a physician employed by [the state] to provide medical services to

state prison inmates, act[s] under color of state law for purposes

of § 1983 when undertaking his duties in treating [a state

inmate’s] injury. Such conduct is fairly attributable to the

State.”)). When a state or municipality contracts with a private

party to administer healthcare to inmates or detainees, the private

party and its employees administer the medical services under color

of state law (because they perform a public function by providing

medical care to individuals in state custody) and therefore may be

sued as state actors. See West, 487 U.S. at 55-56. These

principles apply to CHL and its employees. For these reasons, the

CHL defendants do not appear to dispute that the state action and

under color of law requirements are not a basis for dismissal.

Second, the plaintiff concedes in her opposition papers that

there is no vicarious liability under 42 U.S.C. § 1983. Indeed,

§ 1983 does not create supervisory or respondeat superior

liability. See Connick v. Thompson, 536 U.S. 51, 60 (2011); Monell

v. New York City Dept. of Social Services, 436 U.S. 658, 691, 692-

94 (1978). Insofar as the plaintiff attempts to hold CHL

vicariously liable for its employees’ alleged constitutional

violations, as alleged as part of Count 3 of the complaint, any

such claim must be dismissed for failure to state a claim.5

5 The parties agree that Monell liability may be extended to private

entities acting under color of state law. Assuming it may, see,

Third, the plaintiff concedes that the defendants’ motion to

dismiss should be granted as to Aysa Every. Accordingly, the Court

need not independently examine the sufficiency of the plaintiff’s

allegations against this defendant; the defendants’ motion is

granted as unopposed as to Aysa Every.

Finally, the defendants urge the Court to consider Williams’s

medical records in determining whether the plaintiff states a

claim. Even assuming that the Court may consider the contents of

the medical records as “central to the plaintiff’s claims” without

converting the motion to dismiss to one for summary judgment, the

Court declines the defendants’ invitation to resolve certain

alleged ambiguities in the records in favor of the defendants.

That the defendants invoke cases resolving deliberate indifference

claims on summary judgment are not helpful to the Court’s task

here. Now is not the time to resolve factual disputes; the test

at the pleadings stage juncture is whether a claim has been stated,

not proved.

e.g., Shields v. Illinois Dep’t of Corrs., 746 F.3d 782, 786 (7th

Cir. 2014), Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th

Cir. 2012), and Lyons v. Nat’l Car Rental Sys., Inc., 30 F.3d 240,

246 (1st Cir. 1994), the Court considers below whether the

plaintiff states a plausible Monell claim against CHL.

B.

The Court addresses the sufficiency of the allegations of the

medical defendant officials’ individual liability before assessing

the allegations concerning CHL’s Monell liability.

CHL employees David Jennings, Kendra Patrick, Patricia

Guidry, Katasha Morris, Shanta Sherman, Sarah Armond, and Chelsea

Nolan are sued in their individual capacities. In moving to

dismiss the plaintiff’s deliberate indifference claims, they

advance three main arguments. First, the defendants contend that

conclusory collective pleading fails to state any claim as to each

individual defendant. Second, they contend that certain

allegations are contradicted by the medical records. And, third,

they contend that they provided care to Williams and the plaintiff

simply disagrees over the type of care provided. The plaintiff

counters that the complaint adequately individualizes claims

against each defendant, the medical records support the

alternatively theories advanced in the complaint, and the

plaintiff sufficiently alleges that the individual CHL defendants

documented Williams’s mental health status, but failed to treat

him.

As previously summarized, pretrial detainees like Williams

have a Fourteenth Amendment right to be protected from

impermissible punishment like denials of, or delays in, providing

medical care for serious medical needs. As put plainly by the

Fifth Circuit Pattern Jury Instructions, to recover damages for

such a violation, the plaintiff must prove by a preponderance of

the evidence that: (1) the plaintiff was exposed to a substantial

risk of serious harm; (2) the defendant displayed deliberate

indifference to that risk; and (3) the deliberate indifference

harmed the plaintiff. If a reasonable person would view Williams’s

alleged mental illnesses and suicidal ideation as sufficiently

serious based on all of the alleged circumstances, then the first

requirement is met. See id. Proof of egregious conduct is

required to meet the second element: the plaintiff must prove

that the defendant knew of and disregarded an excessive risk to

Williams’s mental health or safety (risk of self-harm from

suicide). See id. (noting the two-prong test plaintiff must

prove: (1) the defendant was aware of facts from which the

inference could be drawn that a substantial risk of serious harm

existed; and (2) the defendant actually drew that inference). Mere

disagreement with the type, amount, or timing of medical treatment

is insufficient. Id. For an episodic-act-or-omission claim

“relying on an alleged denial or delay of medical care,” the

plaintiff may prove “deliberate indifference by demonstrating that

an official ‘refused to treat him, ignored his complaints,

intentionally treated him incorrectly, or engaged in similar

conduct that would clearly evince a wanton disregard for any

serious medical needs.’” Baughman, 935 F.3d at 309 (quoting

Perniciaro v. Lea, 901 F.3d 241, 258 (5th Cir. 2018)). Each

defendant’s alleged conduct is examined individually. Id.

(citation omitted).

“Suicide is an objectively serious harm implicating the

state’s duty to provide adequate medical care” and protection from

harm. See Arenas v. Calhoun, 922 F.3d 616, 621 (5th Cir.

2019)(citation omitted). Although it is established that “jailers

must take measures to prevent inmate suicides once they know of

the risk,” the Fifth Circuit has observed that there is a lack of

“clarity as to what those measures must be.” See Hyatt v. Thomas,

843 F.3d 172, 177-78 (5th Cir. 2016). If an officer or medical

provider responds without the due care a reasonable person would

use, the officer acted merely negligently and no liability

attaches. See id. Given that “suicide is inherently difficult

... to predict, particularly in the depressing prison setting[,]

an incorrect diagnosis regarding the genuineness of a suicide

threat does not amount to deliberate indifference.” Young v.

McCain, 760 Fed.Appx. 251, 256 (5th Cir. 2019)(citing Domino v.

Texas Dep’t of Criminal Justice, 239 F.2d 752, 756 (5th Cir.

2001)).

The defendants do not appear to dispute that the plaintiff

alleges facts that, if proved, indicate that certain individuals

were aware that Williams had serious medical needs (insofar as he

indicated to some that he suffered from mental illness and as

manifested in suicide risk and express suicidal ideation) and knew

that he was a known suicide risk. Certain allegations

differentiate individual CHL defendants: it is alleged that either

Sherman or Guidry originally placed Williams on suicide watch on

September 18, 2018 because he stated he wanted to kill himself.

Seven days later, Williams was interviewed by Armond or Jennings

at which time he reported feeling suicidal, depressed, hopeless,

having been diagnosed with bipolar disorder and schizophrenia, and

having previously been prescribed medications to treat his mental

health issues. It is alleged that that same day (September 25)

Nolan either requested (with Williams’s authorization) or

alternatively requested and also received Williams’s prior mental

health treatment records from a facility where Williams had been

treated, which confirmed his mental health history, diagnoses,

treatment, and medications. Two days later, it is alleged that

Patrick noted that Williams -- who had by then been on suicide

watch for 9 days -- reports being depressed and suicidal as well

as bipolar and schizophrenic and unmedicated; Patrick made a Mental

Health Note to “keep [Williams] on suicide watch obtain records

from Jeff Carrol [sic] rtc 1 week.” Five days later on the morning

of October 2, Williams was examined by Jennings, who noted in the

interview form that Williams “was definitive in his denial of

[suicide ideation] or wanting to hurt himself,” that Williams

reported his diagnostic history of bipolar disorder and

schizophrenia and that he was receiving an Invega shot until a few

months ago, and that Williams stated that he had “support from

family and hope for his future.” Jennings made the decision to

discontinue suicide watch; he made a Mental Health Note and

Provider Order stating “[d]iscontinue suicide watch, house per

security, verify meds, psych appointment, f/u in one week by social

worker[.]” Williams was removed from suicide watch and placed in

D Block then moved to E Block on October 5 after a problem with

another inmate. In the afternoon of October 5, Nolan indicated

“SUICIDAL IDEATIONS MENTAL HEALTH” in Williams’s chart next to

“Medical Problems,” including “current,” “extended,” and “all”

medical problems. Nolan also indicated “NONE” for medications and

as to “Outstanding Appts[,]” she indicated “Appointment with Appt:

MenHlth Sick Call-Prov for 10-09-2018: f/u social worker in one

week Appointment with Appt: Mental Health Provider (NP_PA) for 10-

11-2018: VERIFY MEDS, PSYCH APPOINTMENT UPON VERIFICATION.” But

none of the defendants verified Williams’s medications or stated

diagnoses, prescribed or administered medications he had

previously received, and no psychologist or psychiatrist ever

evaluated Williams before he killed himself on October 7, 2018.

Viewing the allegations in the light most favorable to the

plaintiff, Williams presented a serious mental health need and

need for protection from self-harm. Satisfying the plausibility

standard as to the first element. Williams reported to more than

one CHL defendant (Sherman, Guidry, Armond, Jennings, and Patrick)

that he was bipolar and schizophrenic, off his meds, depressed,

and suicidal. Whether because treatment was previously

recommended for Williams (as he indicated to some CHL medical

staff, even if they failed to confirm it) or because even laymen

would recognize mental health care was indicated, the plaintiff

has alleged facts indicating that Williams had a serious medical

condition or objective exposure to a substantial risk of harm.

See Carlucci, 884 F.3d at 538-40; Cadena, 946 F.3d at 727-28.

The plaintiff alleges a constitutional deprivation under §

1983 if facts are alleged indicating that Williams’s serious

medical needs were met with deliberate indifference. With the

exception of Jennings, the defendants contend that the plaintiff

fails to allege facts attributing deliberately indifferent conduct

to specific defendants. Jennings contends that the plaintiff’s

deliberate indifference allegations concerning his conduct sound

merely in negligence. The Court agrees that the plaintiff fails

to allege facts indicating deliberate indifference on the part of

Kendra Patrick, Patricia Guidry, Katasha Morris, Shanta Sherman,

Sarah Armond, and Chelsea Nolan. But the Court disagrees that the

plaintiff alleges merely unactionable negligence against Jennings.

Most of the plaintiff’s allegations improperly lump the

defendants together and fail to allege which defendants knew of

the substantial risk to Williams and which defendants failed to

take reasonable measures to respond to the substantial risk of

suicide. For example, as to Morris, the plaintiff merely alleges

that she was one of several CHL employees charged with observing

Williams while he was on suicide watch. What’s missing are facts

specific to Morris as to how she exhibited deliberate indifference

to Williams. Similarly, the plaintiff’s allegations as to the

other CHL individual defendants fail to offer an alleged factual

predicate of deliberately indifferent conduct. Shanta Sherman is

alleged to have placed Williams on suicide watch; Kendra Patrick

is alleged to have kept Williams on suicide watch after Williams

stated he was still suicidal and she also noted the need to obtain

mental health records; Patricia Guidry is alleged to have placed

Williams on suicide watch; Sarah Armond is alleged to have

interviewed Williams about suicidal ideation; and Chelsea Nolan is

alleged to have originally requested JeffCare records and, after

suicide watch was discontinued, she allegedly noted outstanding

appointments and mental health issues in chart. Without concrete

facts indicating how each exhibited deliberate indifferene to

Williams, these allegations are merely part of the chronology

contextualizing Jennings’s alleged constitutional violation. The

plaintiff concludes that the defendants “documented Williams’s

mental status but didn’t treat him.” But the plaintiff fails to

allege facts indicating how each of the CHL defendants (except

Jennings) recklessly disregarded Williams’s suicide risk or

recklessly failed to treat his serious mental health issues.

Allegations that the defendants (collectively) should have

obtained his mental health history records, should have had

Williams evaluated by a mental health professional such as a

psychologist or psychiatrist, should have administered prescribed

medications are conclusory group allegations, which fail to state

plausible individual capacity claims.

In spite of Williams’s self-reported mental health issues,

plaintiff alleges that the CHL defendants either confirmed or

failed to confirm his diagnoses by promptly obtaining his medical

records; failed to have him promptly examined by a mental health

expert such as a psychologist or psychiatrist; failed to have his

medication evaluated; and took an unmedicated mentally ill

pretrial detainee’s word for it when he stated (after weeks of

depression and suicidal ideation) that he was no longer

contemplating suicide. This, the plaintiff contends, constitutes

a failure to treat known mental health issues. To be sure, “just

as a failure to act to save a detainee from suffering from gangrene

might violate the duty to provide reasonable medical care ...

failure to take any steps to save a suicidal detainee from injuring

himself may also [violate] due process[.]” Partridge v. Two

Unknown Police Officers of City of Houston, Tex., 791 F.2d 1182,

1187 (5th Cir. 1986). If some individuals denied or delayed a

psychological or psychiatric evaluation or delayed in confirming

Williams’s diagnoses, or delayed in providing him with treatment

(including prescription medications previously prescribed to

ameliorate his bipolar and schizophrenic symptoms) such conduct

may constitute deliberate indifference. Carlucci, 884 F.3d at 538

(“A delay in medical treatment that results in substantial harm

[may] constitute deliberate indifference.”). However, because

the plaintiff fails to allege which CHL individuals disregarded

known risks, refused to treat him, ignored his complaints, or

engaged in similar conduct evincing a wanton disregard for

Williams’s serious mental health needs, the plaintiff’s claims

against Kendra Patrick, Patricia Guidry, Katasha Morris, Shanta

Sherman, Sarah Armond, and Chelsea Nolan must be dismissed; the

Court will permit an amendment to the complaint within fourteen

days if the plaintiff in good faith believes that it is possible

to cure the pleading deficiencies as to these defendants.

The plaintiff’s allegations pertaining to Jennings are the

exception; his alleged deliberate indifference is specific to his

cumulative knowledge and conduct. By discontinuing suicide watch

for Williams, notwithstanding the circumstances indicating a

suicide threat, it is alleged that he was deliberately indifferent

to Williams’s serious medical need. Jennings frames his conduct

in a limited fashion: making one decision concerning Williams’s

mental health treatment. But the plaintiff’s narrative sweeps

more broadly, framing Jennings’s conduct as a culmination of

failures in the context of Jennings’s specific knowledge regarding

Williams’s mental illness and vulnerability to suicide. Viewed

collectively, and in the light most favorable to the plaintiff,

the plaintiff alleges that Jennings disregarded a known risk and

was deliberately indifferent to Williams’s serious medical needs.6

It is alleged that Jennings knew that Williams self-reported

as schizophrenic, bipolar, depressed, suicidal, and being off his

medications (after he self-reported as not being suicidal and

6 Jennings contends that he did not know that Williams posed a

substantial risk of suicide because Williams told Jennings he was

no longer suicidal. Again, the Court reminds the defendants that

this is the pleadings stage: it suffices that the plaintiff alleges

circumstantial facts that permit an inference of subjective

knowledge; here, the plaintiff alleges that Jennings knew that

Williams had reported feeling suicidal and depressed (indeed, it

is alleged Williams so reported to Jennings), that Williams was

unmedicated, had not been evaluated by a mental health professional

for weeks while on suicide watch at LPDC, and that he reported

having a mental health history including diagnoses of bipolar

disorder and schizophrenia. These allegations indicate that

Jennings knew that Williams indeed posed a substantial risk of

suicide even if Williams equivocated as to suicidal ideation and

ultimately told Jennings he felt hopeful. The defendants’ singular

focus on Jennings’s decision and their characterization that a

wrong decision may merely be negligent disregards the plaintiff’s

other allegations indicating (Jennings’s specific knowledge

regarding) an absence (or denial) of treatment or reasoned

evaluation of Williams’s suicide risk: the plaintiff alleges that

Jennings merely spoke briefly with Williams and cleared him of

suicidal ideation based on Williams’s self-serving statement that

he was no longer feeling suicidal, without corroborative

information or investigation; that is, it is alleged, Jennings

failed to confirm his serious mental health diagnoses, failed to

confirm (let alone prescribe) medications taken for mood disorder

and schizophrenia, and knew that Williams was unmedicated and had

not been seen by a mental health professional like a psychologist.

having no mental health history on intake). In spite of this

alleged knowledge and the knowledge that Williams had not yet been

examined by a mental health professional despite being on suicide

watch for weeks, had not had his alleged serious mental health

diagnoses confirmed by a prior facility, had not been prescribed

mood stabilizing or other medication since arriving at LPDC,

Jennings elected to discontinue suicide watch based solely on

Williams’s indication that he was no longer suicidal. Cumulating

the plaintiff’s factual allegations and considering the

chronology, this was not merely a medical professional wrongly

accepting the genuineness of Williams’s suicidal ideation; rather,

it is an allegation that Jennings acted with deliberate

indifference to the substantial risk of suicide posed by Williams.

The Court recognizes that the plaintiff’s complaint is far

from exemplary, and at times provides conclusory statements or

invokes the technically incorrect governing constitutional law

(Eighth Amendment versus Fourteenth Amendment). However, given

the alleged facts, taken as true, which plausibly indicate that

Williams was essentially untreated in spite of the serious risk of

self-harm this lack of treatment posed to an unmedicated person

suffering from bipolar disorder and schizophrenia, the

determination of whether the defendants acted with deliberate

indifference is a factual matter best assessed when the parties

have had the opportunity to develop their claims and submit

evidence. Cf. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.

1995)(citation omitted)(“Medical records of sick calls,

examinations, diagnoses, and medications may rebut an inmate’s

allegations of deliberate indifference.”). The Court is satisfied

that the plaintiff has sufficiently alleged facts that state a

plausible claim to survive this motion to dismiss as to Jennings

and that an opportunity for the plaintiff to timely amend the

complaint is warranted as to other CHL defendants.

C.

CHL moves to dismiss the plaintiff’s claim against it as an

entity. Whether the plaintiff states a § 1983 claim against CHL

is analyzed in accordance with the Monell framework.

The Court has already observed (and the plaintiff does not

dispute) that there is no respondeat superior liability under §

1983; no entity may be liable simply because it employs a person

who has violated the plaintiff’s rights. As a private entity that

acts under color of state law in contracting with the municipality

to provide medical services to detainees, CHL is treated as a

municipality for the purposes of § 1983 claims.7

7 The Circuits to have considered the issue agree that, where

private entities act in the place of a municipality, Monell

applies. See, e.g., Shields v. Illinois Dep’t of Corrs., 746 F.3d

782, 786 (7th Cir. 2014); Tsao v. Desert Palace, Inc., 698 F.3d

1128, 1139 (9th Cir. 2012); Lyons v. Nat’l Car Rental Sys., Inc.,

30 F.3d 240, 246 (1st Cir. 1994); Buckner v. Toro, 116 F.3d 450,

452 (11th Cir. 1997).

Municipalities (or private entities acting in their places)

are “persons” for purposes of § 1983 and may be liable where “the

action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s officers.”

Monell v. Department of Social Servs. of New York, 436 U.S. 658,

663, 690 (1978). Imposition of § 1983 liability against a

municipality under Monell is appropriate in the limited

circumstance of when a constitutional tort is caused through the

execution of a policy or custom of the municipality. See Bowen v.

Watkins, 669 F.2d 979, 989 (5th Cir. 1982)(citation omitted).

Municipalities or such private entities may also be sued for

“constitutional deprivations visited pursuant to governmental

‘custom’ even though such a custom has not received formal approval

through the body’s official decisionmaking channels.” Monell, 436

U.S. at 690-91. A municipality is not liable for injuries

“inflicted solely by its employees or agents[; rather] it is 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 that the government

as an entity is responsible under § 1983.” Id. at 694.

The test for establishing municipal liability in an episodic-

act-or-omission case is settled:

[A] plaintiff must show (1) that the municipal employee

violated [the pretrial detainee’s] clearly established

constitutional rights with subjective deliberate

indifference; ... (2) that this violation resulted from

a municipal policy or custom adopted and maintained with

objective deliberate indifference[; and (3)] either

written policy statements, ordinances, or regulations or

a widespread practice that is so...well-settled as

to...fairly represent[] municipal policy that was the

moving force behind the violation.

Cadena, 946 F.3d at 727 (citations, internal quotations omitted);

Garza, 922 F.3d at 637 (“[T]o establish municipal liability based

on an employee’s episodic act or omission, a plaintiff must show

the violation ‘resulted from a municipal policy or custom adopted

and maintained with objective deliberate indifference.’”).

To survive a motion to dismiss, the complaint must describe

the policy and its relationship to the underlying constitutional

violation with specific facts. Balle v. Nueces County, 952

Fed.Appx. 552, 559 (5th Cir. 2017)(unpublished)(quoting Spiller v.

City of Tex. City, Police Dep’t., 130 F.3d 162, 167 (5th Cir.

1997). “Thus, pleadings are sufficient when they make specific

factual allegations that allow a court to reasonably infer that

a policy or practice exists and that the alleged policy or

practice was the moving force behind municipal employees'

deliberate indifference to an inmate's serious medical needs.”

Id.8

8 The Fifth Circuit does not necessarily require a complaint to

state an unconstitutional policy. The court has found a complaint

sufficient if it identifies a rule requiring the jails to provide

CHL contends that the plaintiff’s Monell claim fails to state

a claim because the plaintiff cannot establish deliberate

indifference to Williams’s medical needs; the plaintiff’s

allegations regarding failure to monitor, train, or supervise are

merely conclusory; and alleged incidents at other jails have no

bearing on CHL’s Monell liability in this case. The Court agrees

that the plaintiff’s failure to train allegations fall short of

the substantive legal requirements and that the plaintiff’s

efficient medical treatment and describes a pattern of behavior

where the reasonable inference is that the municipality violated

that rule. For example, in Balle, the Fifth Circuit held that the

plaintiff’s § 1983 complaint sufficiently pled facts supporting a

municipality liability claim. Id. at 559-60. The plaintiff was

injured by an officer during arrest, and during his six-day

detention received little medical attention despite his multiple

requests for medical treatment, his apparent inability to control

his bodily functions, and frequent muscle spasms. Id. at 560. After

he was finally transported to the hospital, he was diagnosed with

various back injuries, underwent surgery, but was still unable to

walk. Id. The plaintiff alleged that the county had failed to

enforce jailing policies mandated by a Texas Commission that

requires jails to implement procedures for prompt and efficient

care in acute situations. Id. at 559. The complaint alleged that

when the plaintiff soiled himself from not being able to control

his bodily functions the staff cleaned him and gave him a change

of clothes without providing him medical attention. Id. at 560.

Similarly, when he complained that he was paralyzed and could not

walk, he was not given medical attention until the following day

and even then, he was cleared with little follow-up. Id. The Fifth

Circuit held that these incidences evidence a “pattern of failure

[that] defied state law requiring that [the] county implement

procedures to efficiently and promptly treat inmates.” Id. From

the complaint’s allegations of consistent wrongdoing, the court

determined that “[r]easonable inferences can be drawn that [the]

county had an unwritten policy . . . that fairly represents

municipal policy of consistent noncompliance with required state

medical standards and that this policy or practice of noncompliance

was the moving force behind the constitutional injuries[.]” Id.

reliance on other private entities’ actions at other detention

facilities does not assist the plaintiff in attempting to state a

Monell claim. However, the Court has already rejected the

defendants’ argument that the plaintiff fails to state a predicate

individual deliberate indifference claim. The plaintiff has

stated a deliberate indifference claim against Jennings and the

plaintiff will be afforded the opportunity to repair the

deficiencies as to the other CHL individual defendants. The

plaintiff shall have the same opportunity to state a plausible

Monell claim against CHL.

The plaintiff contends that the Monell claim is sufficiently

pled; the plaintiff has alleged facts showing a pattern of sloppy,

deliberately indifferent treatment of Williams by all of the CHL

defendants. The deliberately indifferent conduct began as soon as

Williams advised that he was suicidal. CHL failed to obtain his

prior medical records, failed to follow jail protocol to have

Williams examined by a psychiatrist after he advised that he was

suicidal, limited his exam to one interview by a nurse practitioner

before his interview by social worker Jennings, failed to medicate

Williams, failed to refer him back to suicide watch, failed to

refer him to a psychiatrist or the ER on October 5 when he

reiterated his suicidal ideation, and there is a lack of post-

suicide-watch monitoring and insufficient staffing. These

deficiencies, the plaintiff contends, demonstrate CHL’s

unconstitutional policies related to training, supervision,

staffing, and monitoring.

To assess the sufficiency of the plaintiff’s Monell claim,

the Court considers the plaintiff’s allegations pertaining to

Monell liability. The plaintiff alleges that the following

“policies and practices” were established and maintained knowing

they would deprive Williams of treatment for his serious mental

health disorders: “failing to provide a qualified mental health

staff; failing to provide a sufficient number of qualified mental

health providers; failing to ensure that psychiatrists cleared

patients off of suicide watch; failing to properly supervise and

train its employees; failing to provide supportive therapy and

interaction to patients on suicide watch; failing to provide

appropriate suicide step-down and follow up plans; failing to have

a policy in place to monitor its staff to ensure quality control

and ensure prior health care records are shared and read on a daily

basis to ensure that the staff knows a patient’s prior mental

health history and medication needs.”

Because the plaintiff fails to allege a formal policy

statement announced by a policymaker, any Monell liability must be

anchored to a persistent widespread practice so common and well-

settled that it fairly represents CHL policy. Given that the prior

incidents the plaintiff invokes in the complaint to indicate CHL

policy did not occur on CHL’s watch at LPDC, the plaintiff is left

with conclusory allegations of a policy based solely on Williams’s

experience with CHL. This undermines the plaintiff’s ability to

allege a pattern, which not only requires “sufficiently numerous

prior incidents[,]” McConney v. City of Houston, 863 F.2d 1180,

1184 (5th Cir. 1989), but also “requires similarity; prior

indications cannot simply be for any and all bad or unwise acts,

but rather must point to the specific violation in question.” See

Peterson v. City of Fort Worth, 588 F.3d 838, 850-51 (5th Cir.

2009)(citation, internal quotations omitted). Similarly, the

plaintiff’s allegations that CHL failed to adopt certain policies,

without concrete facts in support, are insufficient to indicate

the plausibility of the plaintiff’s claim that CHL failed to adopt

the needed policy or that it did so with deliberate indifference.

Finally, the plaintiff’s failure to train theory fails the

plausibility test where, as here, the plaintiff fails to identify

a particular deficiency in the training program that is related to

Williams’s constitutional injury. “In limited circumstances, a

local government’s decision not to train certain employees about

their legal duty to avoid violating citizens’ rights may rise to

the level of an official government policy[.]” Connick v. Thompson,

563 U.S. 51, 61 (2011). But, “[a] municipality’s culpability for

a deprivation of rights is at its most tenuous where a claim turns

on a failure to train.” Id. (citation omitted). The plaintiff

must allege a pattern of violations in addition to how a particular

training program is defective. See Estate of Davis v. City of N.

Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005). Absent notice

that a training course is insufficient, it cannot be said that an

entity has deliberately chosen a particular training program;

thus, it is the entity’s “policy of inaction in light of notice

that its program will cause constitutional violations [that] is

the functional equivalent of a decision by the city itself to

violate the constitution.” Connick, 563 U.S. at 61-62 (citing

City of Canton v. Harris, 489 U.S. 378, 395 (1989)).

To be sure, the plaintiff’s allegations imply that cumulative

errors and failures contributed to Williams’s suicide and evince

a concern that CHL may escape liability by diffusing responsibility

across its employees. Because the plaintiff alleges that at least

one CHL employee was deliberately indifferent to Williams’s

serious medical needs and the plaintiff further alleges (albeit

broadly) that systemic deficits and inadequate training in CHL’s

mental healthcare treatment program harmed Williams’s mental

health and led to his death, the plaintiff will have the

opportunity to amend its deficient policy-or-custom allegations.

IV.

Finally, CHL and its employees move to dismiss without

prejudice the plaintiff’s state-law negligence claims.

Alternatively, they seek to stay this case pending the outcome of

the medical review panel currently pending in the state agency.

The plaintiff concedes that the medical malpractice and vicarious

liability claims (Counts 6 and 7) require exhaustion before the

state medical review panel; a process that is underway but not

final. The plaintiff also concedes that the medical malpractice

claims arise from the same set of facts giving rise to the

plaintiff’s constitutional claims. Nevertheless, the plaintiff

worries that dismissal of only the medical malpractice claims would

result in two suits in two courts regarding the same underlying

facts. The plaintiff urges the Court to either (a) stay only the

medical malpractice portion of the case pending completion of the

medical review panel or (b) dismiss without prejudice to allow for

the rejoinder of the medical malpractice claims after completion

of the medical review panel. Only a partial stay is warranted

here, the plaintiff suggests, because a complete stay would

prejudice the parties by impeding discovery and timely resolution

of the claims.

In Evans v. Lopinto, No. 18-8972, the plaintiffs allege that

various law enforcement and medical defendants’ deliberate

indifference led to a pretrial detainee’s death by suicide. There,

another Section of Court determined that a stay of the entire

litigation pending the conclusion of the medical review panel

furthered the interest of judicial economy. See 2019 WL 2995870,

at * (E.D. La. July 8, 2019)(Brown, C.J.). So, too, here.

Each of the plaintiff’s claims, including the state-law

medical malpractice claims, arise out of Williams’s suicide while

he was detained at LPDC under the defendants’ supervision and in

the defendants’ care. Discovery will apply to all interrelated

claims. Additionally, the medical review panel’s determination

may be admissible (though not conclusive) evidence at any trial of

this matter. See Seoane v. Ortho Pharmaceuticals, Inc., 660 F.2d

146, 149 (5th Cir. 1981). A stay of this case pending the outcome

of the medical review panel is warranted. However, the Court shall

entertain the implementation of the stay pending timely submission

of any amended complaint and completion of the pleadings stage.

***

Accordingly, for the foregoing reasons, IT IS ORDERED: that

the medical defendants’ motion to dismiss is GRANTED in part (the

plaintiff’s § 1983 claims based on the Eighth Amendment are

dismissed; the plaintiff’s § 1983 claim against Aysa Every is

dismissed; the plaintiff’s claim that CHL is vicariously liable

under § 1983 is dismissed; the plaintiff’s § 1983 claims against

Kendra Patrick, Patricia Guidry, Katasha Morris, Shanta Sherman,

Sara Armond, and Chelsea Nolan are dismissed without prejudice to

the plaintiff’s effort to timely cure the pleading deficiencies;

the plaintiffs Monell claim against CHL is dismissed without

prejudice to the plaintiff’s effort to timely cure the pleading

deficiencies) and DENIED in part (the plaintiff’s § 1983 claim

against David Jennings in his individual capacity remains

pending). IT IS FURTHER ORDERED: that, within 14 days, the

plaintiff shall have the opportunity to file an amended complaint

to address the pleading deficiencies identified in this Order and

Reasons, if it can be done in good faith.

New Orleans, Louisiana, June 17, 2020

MARTIN . C. ELDMAN

UNITED STAKES DISTRICT JUDGE

47