# Brown v. LeBlanc

> District Court, E.D. Louisiana · August 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10185835

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** August 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10185835. Public record. Not legal advice.