Brown v. LeBlanc

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TORREY BROWN CIVIL ACTION

VERSUS NO. 19-12641

JAMES LEBLANC, ET AL. SECTION: “B”(5)

ORDER AND REASONS

Before the Court are plaintiff Torrey Brown’s objections to

the Magistrate Judge’s Report and Recommendation (Rec. Doc. 20),

the Magistrate Judge’s Report and Recommendation (Rec. Doc. 17),

and defendants’ motions to dismiss plaintiff’s complaint (Rec.

Doc. 12, 13, and 14. Accordingly,

IT IS ORDERED that plaintiff’s objections are OVERRULED and

the Magistrate Judge’s Report and Recommendation is ADOPTED as the

Court’s opinion, dismissing the instant action;

IT IS FURTHER ORDERED that plaintiff’s motion for physical

examinations (Rec. Doc. 21) is hereby DISMISSED AS MOOT, thereby

vacating the order for a response to that motion (Rec. Doc. 22).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Torrey Brown is in inmate at Rayburn Correctional

Center (“RCC”). Plaintiff was convicted of two counts of first-

degree robbery, one count of simple robbery, and one count of

carjacking in the 24th Judicial District Court for the Parish of

Jefferson. Brown v. Tanner, No. 15-CV-7038 “G”(5). This issue

stems from a disagreement between plaintiff and the named

defendants regarding whether plaintiff has hepatitis B and C.

In September 2018, plaintiff attended an appointment with

Dr. Cleveland to review blood test results after plaintiff

requested he be treated for hepatitis “B” and “C.” Rec. Doc. 4-

1 at 2. At the appointment, Dr. Cleveland notified plaintiff that

the blood test was negative for both viruses and contrary to the

positive diagnoses plaintiff received in 2012 and 2018. Id.

Plaintiff asked to be tested again, and Dr. Cleveland advised

plaintiff that his body had cured itself of the disease; however,

Dr. Cleveland ordered blood tests to monitor the progression of

the disease. Id.

Plaintiff thereafter filed a Step 1 grievance under the

Prisoner Administrative Remedy Procedure (“ARP”), where he argued

that he had several symptoms related to hepatitis B and C. Id.

at 3. Warden Tanner responded to plaintiff’s Step 1 grievance,

which was rejected. Plaintiff thereafter submitted a Step 2

grievance, “ . . . arguing that [the] 2018 lab results which Dr.

Cleveland had related a misdiagnosis of HBV and HBC totally

contradicted Warden Tanner’s [S]tep 1 response.” Id. Secretary

LeBlanc subsequently denied plaintiff’s Step 2 grievance.

Plaintiff thereafter asserts that in early 2019 he attended

another appointment with Dr. Cleveland where “the lab results

further contradict the defendants’ previous findings that

[p]laintiff’s body defense mechanism overcame HCV and HBV

exposure.” Id. at 3. Plaintiff claims that he did not receive

any treatment for symptoms related to hepatitis B and C and was

only provided Pepto-Bismol and Ibuprofen. Id. At a later

appointment in 2019 with Dr. Cleveland, plaintiff was again

tested for hepatitis B and C, and was awaiting his results at

the time he filed his complaint. Id.

Defendants filed three separate motions to dismiss. Rec.

Docs. 12, 13, 14. The Magistrate Judge (“MJ”) recommends that

the motions to dismiss be granted, and that plaintiff’s claims

against all named defendants be dismissed. Rec. Doc. 17.

Plaintiff filed objections to the MJ’s Report and Recommendation.

Rec. Doc. 20. Plaintiffs stated objection is essentially that

the motions to dismiss filed by defendant and the MJ’s report

and recommendations “undermine[] the urgency and significance

of the petition [filed by plaintiff].” Rec. Doc. 20 at 1.

Plaintiff also contends that the motions “contradict[] the

relevance of all issues presented” and that Secretary LeBlanc

violated the MJ’s March 27, 2020 order to furnish a verified copy

of plaintiff’s complete medical record. Id. at 2. Plaintiff

claims that because the documents were from 2017 until 2019, the

submission “totally contradicts the judge’s order.” Id. Plaintiff

further avers that his original “Administrative Remedy Procedure”

was specifically in regard to “ a pattern of medical

indifferences and disturbing labs and diagnoses stemming back to

2010.” Id.

Law and Analysis

The MJ noted, correctly, that “the law is well settled that

in order to set forth a cognizable claim under § 1983, an

aggrieved party must allege that the defendant, a person acting

under the color of state law and in accordance with an established

state procedure, deprived him of his rights, privileges, or

immunities secured by the Constitution or laws of the United

States.” Rec. Doc. 17 at 4 (citing Parratt v. Taylor, 451 U.S.

527 (1981), overruled in part on other grounds, Daniels v.

Williams, 474 U.S. 327 (1986)). Correctional facilities are not

persons for purposes of § 1983 claims. Plaintiff’s claims

against RCC are frivolous and fail to state a claim under §

1915(e) and Rule 12(b)(6).

Plaintiff’s complaints against the individual defendants in

their offical capacities are also dismissed. As employees of the

state, suit against them is barred by the Eleventh Amendment.

Champagne v. Jefferson Parish Sheriff’s Office, 188 F.3d 312,

313-14 (5th Cir. 1999)). Because the sovereign immunity bestowed

by the Eleventh Amendment deprives a court of jurisdiction, the

claims so barred are properly dismissed without prejudice.

Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996);

Kervin v. City of New Orleans, No. 06-CV-3231, 2006 WL 2849861

at *2-4 (E.D. La. Sept. 28, 2006).

In their individual capacities, defendants LeBlanc, Tanner,

nor Kennedy were involved in the provision of medical care to

plaintiff. However, LeBlanc and Tanner only passed on ARP

grievances and Kennedy’s role was limited to responding to a

letter plaintiff wrote regarding the effectiveness of Dr.

Cleveland’s treatment. The MJ correctly noted that “[i]nmates

like [p]laintiff . . . have no constitutional right to an adequate

and effective grievance procedure or to have their complaints

investigated and resolved to their satisfaction.” Rec. Doc. 17

at 5 (emphasis added)(citing Propes v. Mays, 169 Fed. Appx. 183,

184-85 (5th Cir. 2006); Geiger v. Jowers, 404 F.3d 371, 373-74

(5th Cir. 2005); Lewis, 2019 WL 5430650 at *4; Tyson v. Tanner,

No. 08-CV-4599, 2009 WL 2883056 at *5 (E.D. La. Aug. 25, 2009)).

Thusly, plaintiff’s § 1983 claims against LeBlanc, Tanner, and

Kennedy in their individual capacities are dismissed as frivolous

and for failure to state a claim under § 1915(e) and Rule

12(b)(6).

The record and law also support the MJ’s treatment of

plaintiff’s remaining claims against Dr. Cleveland. The record

contains relevant medical procedures that plaintiff underwent at

RCC. This Court will not recite those procedures in complete

detail, but plaintiff has undergone (1) consultations with

neurology; (2) seen an Ear Nose and Throat Physician; (3) Urology

clinics; (4) physical therapy; (5) surgical intervention; (6)

audible testing; (7) and a colonoscopy, during his time at RCC.

Rec. Doc. 17 at 6. Plaintiff’s medical records from RCC exceed

200 pages of material.

Regarding plaintiff’s claims regarding his medical

treatment at RCC, the MJ aptly reasoned with record support:

Applying these authorities to the matter at hand, no

colorable claim of deliberate indifference on the part

of Dr. Cleveland is apparent here. “It has been

consistently held that an inmate who has been examined

by medical personnel fails to set forth a valid showing

of deliberate indifference to serious medical needs.”

Gillis v. Goodwin, No. 13-CV-2506, 2015 WL 3622675 at *3

(W.D. La. Jun. 9, 2015). Moreover, “… disagreement with

the diagnostic measures or methods of treatment afforded

by prison officials does not state a claim for Eighth

Amendment indifference to medical needs.” Id. at *2

(citing Norton, 122 F.3d at 292). Pertinent to this

matter, “… the decision whether to provide additional

treatment ‘is a example of a matter for medical

judgment.’” Domino, 239 F.3d at 756 (quoting Estelle,

429 U.S. at 107, 97 S.Ct. at 293). The voluminous records

provided to the Court demonstrate that jail officials

were attentive to Plaintiff’s medical needs, treating

him for a variety of conditions at RCC and referring him

to outside specialists as necessary. There is no showing

that Dr. Cleveland “ʻ… 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.’” Id.

(quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985)). Even the “ʻfailure to alleviate a significant

risk that [the official] should have perceived, but did

not’ is insufficient to show deliberate indifference.”

Id. (quoting Farmer v. Brennan, 511 U.S. 825, 838, 114

S.Ct. 1970, 1979 (1994)). Where an inmate like Plaintiff

has admittedly been examined on numerous occasions, the

Court is hardly in a position to second-guess the

decisions of professional medical personnel,

particularly as to whether a specific symptom that he

suffered was attributable to hepatitis “C” as opposed to

his long-standing GERD or H. pylori. Spears v. McCotter,

766 F.2d 179, 181 (5th Cir. 1985). Plaintiff’s

allegations regarding his medical care amount to a

disagreement with the treatment provided and are

insufficient to show a constitutional violation.

Grumbles v. Livingston, 706 Fed.Appx. 818, 820 (5th Cir.

2017)(failure to provide inmate with medications that

could cure hepatitis “C” not a constitutional

violation); Hendrix v. Lloyd Aschberger, P.A., 689

Fed.Appx. 250 (5th Cir. 2017); Randall v. Behrns, 141

Fed.Appx. 307, 309 (5th Cir. 2005), cert. denied, 547

U.S. 1100, 126 S.Ct. 1885 (2006); Ferguson v. Arce, 101

Fed.Appx. 980, 981 (5th Cir. 2004)(disagreement with

treatment for hepatitis “C” insufficient to establish

deliberate indifference); Davidson v. Texas Dept. of

Crim. Jus., Inst. Div., 91 Fed.Appx. 963, 964-65 (5th

Cir.), cert. denied, 543 U.S. 864, 125 S.Ct. 543 (2004).

Rec. Doc. 17 at 14-15 (emphasis added).

The record does not support plaintiff’s two-page conclusory

objections. Plaintiff’s request that Secretary LeBlanc be held in

contempt for not submitting medical records for the past ten years

is also meritless. Secretary LeBlanc provided plaintiff’s medical

records from the relevant time period of plaintiff’s claims. The

claims and objections fail.

New Orleans, Louisiana, this 31st day of August 2020.

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE