Walker v. Pohlmann

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ANGELA WALKER, ET AL. CIVIL ACTION

v. NO. 20-3464

JAMES POHLMANN, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is are two motions to dismiss by the

healthcare provider defendants, CorrectHealth, Phillip Nowlin,

Juanita Alexander-Sallier, Donna Baker, Keshonka Rucker, Audrey

Lewis, and Joanna Bartee. For the reasons that follow, the motions

are GRANTED in part as to the federal civil rights claims and

DENIED in part as to the state law claims.

Background

Within days of being arrested and detained in the custody of

St. Bernard Parish Jail -- just after an ambulance arrived to

transport him to the hospital -- Marvin Walker died. This civil

rights lawsuit by his parents followed.

On December 28, 2019, Marvin Walker was arrested and booked

into St. Bernard Parish Jail, which contracts with CorrectHealth

St. Bernard, LLC to provide medical and mental health services to

those incarcerated at the jail. Licensed Practical Nurse Donna

Baker conducted the jail’s medical intake screening process for

Walker. During the 40-minute-long process, Walker reported that

he was addicted to opioids and Benzodiazepines (specifically,

Xanax). Although Baker noted that Walker did not appear to be under

the influence or withdrawing from any drugs or alcohol, she noted

that he indicated that he was a daily IV user of heroin (“2 grams

daily IV”), cocaine (“4 grams daily”), Xanax (2mg once or twice

daily), THC (“5 blunts daily”), and alcohol (“2 pints liquor

daily”). At the conclusion of the medical screening process, LPN

Baker cleared Walker for placement in general population.

That same day, to address drug withdrawal symptoms, Physician

Assistant Juanita Alexander-Sallier prescribed Walker multiple

medications; in particular, records incorporated into the

complaint indicate that Walker was prescribed 0.1 mg Clonidine

HCL, 1-2 mg Lorazepam, 10mg Metoclopramide HLC, Multi-Vit w/

Minerals, and Vitamin B-1 by mouth. This prescription regimen, to

which Ondansteron (Zofran) 4mg tablets twice daily was later added,

was approved by Phillip Nowlin, M.D. on December 30, 2019.

Walker received doses of these medication on December 29, 30,

31, and January 1, administered by Keshonka Rucker, Audrey Lewis,

and Joanna Bartee; all licensed practical nurses. On January 1,

2020 at 8:05 a.m., due to either opioid or benzodiazepine

withdrawal, Walker was given an injection of Promethazine HCL.

Later that day, the other prescribed medications and vitamins were

administered. Walker’s vitals were checked more than once on

December 28, 2019 and then once per day on December 29, 30, and

31.

Walker became unable to keep down his medications. By 4:36

p.m. on December 30, 2019, Walker’s nausea and vomiting symptoms

were reported to LPNs Baker, Lewis, and Rucker. He was escorted

to “medical,” where his vitals were obtained and noted as “WNL”

(within normal limits).1 Walker’s medications were administered

at 5:41 p.m. and then again at 9:16 a.m. and 8:31 p.m. on December

31, 2019; it was at this time that LPN Bartee specifically became

aware of Walker’s vomiting symptoms.

To address Walker’s continued vomiting, he was given one

intramuscular injection of anti-nausea medicine on January 1,

2020.2 This was administered when Walker complained to LPNs Baker

and Rucker of vomiting, diarrhea, and an inability to keep anything

down. There was also green vomit on his cell floor. Walker’s

blood pressure was 118/70 and his heart rate was 90; they failed

1 The allegations in the complaint note that Walker was

“purportedly administered 25mg/ml of [anti-nausea medication]

Phenergan at this point for vomiting but “[t]here is no

corroboration [in the medical records] that this Phenergan was

ever prescribed.”

2 Walker may have been administered 25mg of Phenergan in his right

deltoid on 4:36 p.m. on December 30, 2019; it is alleged that the

medical records are at best inconsistent on this fact.

to document his temperature. Baker and Rucker advised PA

Alexander-Sallier of Walker’s condition, and she ordered Phenergan

50mg IM x 1 dose now and Ondansetron (Zofran) 4mg po BID x 3 days.

No one recommended or referred Walker to the hospital or to a

medical doctor.

Later that night around 10:10 p.m., additional medications

were administered to Walker by LPN Rucker. More than eight hours

later at 6:44 a.m. on January 2, 2020, LPN Rucker was summoned to

Walker‘s cell as his condition worsened: he was reportedly

“dangling at the side of [his] bunk” and he complained of “locking

up.” Walker complained to LPN Rucker of vomiting and diarrhea.

LPN Rucker observed “flexion of inmates distal digits and

extremities” and that his skin was cold and clammy. She advised

PA Alexander-Sallier, who ordered Walker’s immediate transfer to

the hospital. At 6:46 a.m., the ambulance and emergency medical

services arrived. Walker was placed in the ambulance bound for

the St. Bernard Parish Hospital. But it was too late. While in

the ambulance, Walker’s pulse was lost. For 15 to 20 minutes, EMS

performed CPR. Walker was dead upon his arrival to the hospital

at 7:10 a.m.

Believing that Walker’s heart failed as he was being placed

into the ambulance much too late, Walker’s parents, Angela and

Roosevelt Walker, sued the following defendants in their official

and individual capacities: CorrectHealth St. Bernard LLC (CHSB),

Sheriff James Pohlmann, Dr. Phillip Nowlin, and PA Juanita

Alexander-Sallier. Additionally, the Walkers sued LPN Donna

Baker, LPN Audrey Lewis, LPN Keshonka Rucker, LPN Joanna Bartee,

Deputy Scott Vincent, Deputy D’Antoni, Deputy Christopher Hammel,

and Deputy Ashley Blasio, in their individual capacities. Seeking

to recover compensatory and punitive damages along with attorneys’

fees, the plaintiffs present four causes of action. First, the

plaintiffs allege that the defendants acted in concert to deprive

Walker of his constitutional right to a reasonably safe and secure

place of detention, medical care, protection from cruel and unusual

punishment, and due process. Second, the plaintiffs allege that

Pohlmann, CHSB, and Nowlin (with deliberate indifference) created

customs and policies that caused the deprivation of Walker’s

constitutional rights. Third, the plaintiffs allege that CHSB,

Nowlin, and Alexander-Sallier acted with deliberate indifference

by failing to adequately supervise and train LPNs Baker, Lewis,

Rucker, and Bartee. Fourth, the plaintiffs allege that all

defendants acted negligently with respect to Walker throughout the

course of Walker’s time in the jail.

The plaintiffs allege that Walker’s death was preventable.

They allege that Dr. Nowlin and PA Alexander-Sallier failed to

prescribe proper medications to address Xanax withdrawal, which

can be fatal if not properly treated by slowly reducing over time

the patient’s level of benzodiazepine, which was not done here.3

It is further alleged that Walker was given only one injection of

anti-nausea medication, despite the fact that he could not keep

down his orally-administered medications. Walker “was very sick

the last 3 days of his life”: he was showing serious signs of drug

withdrawal at the morning pill call on December 29, 2019 (he was

sick, weak, and could not eat); he was vomiting “all over” on

December 30 at 4:36 p.m. and was purportedly administered anti-

nausea medication, though this was not confirmed; and although LPN

Lewis noted “will continue to monitor,” it is alleged that Walker

was not adequately monitored (he was merely administered his meds

on December 30 and 31 and had his vitals taken on December 31).4

At pill call, it is alleged, Walker was hunched over and requested

to be taken to the hospital. According to the complaint, a witness

observed Walker “at least twice...covered in his own vomit, feces

and urine” and urged that Walker be taken to the hospital but the

deputy and LPN defendants ignored the witness’s requests. Sheriff

Pohlmann and Deputy Ashley Blasio answered the complaint; as have

3 Alternatively, it is alleged that LPN Baker failed to advised

Dr. Nowlin and PA Alexander-Sallier of Walker’s daily Xanax use

and that this failure was deliberately indifferent to Walker’s

serious medical needs.

4 LPN Lewis should have immediately referred Walker to a doctor or

medical care professional, it is alleged. If she did notify Dr.

Nowlin or PA Alexander-Sallier, and they failed to order his

transfer to the hospital for treatment of Xanax withdrawal, then

it is alleged that they were deliberately indifferent to his

serious medical need.

Deputy Paul Dantoni, Deputy Christopher Hammel, and Deputy Scottie

Vinson.

Now the healthcare provider defendants -- CHSB, Nowlin,

Alexander-Sallier, Baker, Lewis, Rucker, and Bartee -- move to

dismiss the plaintiffs’ claims against them 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 plaintiffs.” 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

plaintiffs 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] plaintiffs’ 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.

The healthcare provider defendants, CHSB and its employees

sued in their individual and official capacities, move to dismiss

the plaintiffs’ claims. The plaintiffs allege that CHSB and its

employees violated Walker’s civil rights, specifically, his

Fourteenth Amendment right to medical care and protection from

harm while detained at St. Bernard Parish Jail. The plaintiffs

pursue a Monell claim against CHSB, Nowlin, and Alexander-Sallier,

as well as episodic-act-or-omission (deliberate indifference)

claims against the individual CHSB employee-defendants. In

addition to the federal civil rights claims, the plaintiffs also

seek to recover for intentional torts as well as medical

malpractice (and, as to CHSB, 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.

CHSB and its employees move to dismiss the plaintiffs’ civil

rights claims for failure to state a claim and move to dismiss 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 plaintiffs have 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.

Section 1983 was created to deter state actors from depriving

individuals of their guaranteed rights and to provide an avenue

for relief if the deterrence should fail. Wyatt v. Cole, 504 U.S.

158, 161 (1992). Because § 1983 merely provides a remedy for

designated rights, rather than creating 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

plaintiffs 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.

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 death case, a pretrial detainee’s parents challenge

episodic acts or omissions of both individual defendants and a

“municipal” defendant (the municipality’s contractual medical

service provider).5

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

5 It appears from the complaint’s allegations that Walker was a

pretrial detainee; however, the Court observes that the plaintiffs

in their opposition papers indicate that “[i]t Is not known at

this time whether following this arrest he was rearrested while in

SBPJ for any outstanding warrants based on a prior conviction.

This information would be necessary in order to confirm whether

this is an Eighth or Fourteenth Amendment claim.” The parties

appear to agree that this potential distinction is not material to

resolving the pending motions.

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). “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, 964 F.3d 374, 380

(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. See Garza v. City of Donna,

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

As to the nature of the challenged conduct informing scrutiny

of a § 1983 deliberate indifference claim, “[a] pretrial detainee

may prove a constitutional violation 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, he 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 and 633 n.3 (citations

omitted).

The plaintiffs’ theory here appears limited to challenging

CHSB’s and its employee’s episodic acts or omissions in treating,

medicating, or monitoring Walker and, in doing so (or failing to

do so), failing to provide adequate medical care and failing to

protect him from harm. 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, 964 F.3d at 380. 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).6

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

needs met with deliberate indifference.” Dyer, 964 F.3d at 380.

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

6 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, 964 F.3d at 380; 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).

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, 964 F.3d at 380. It “cannot be inferred

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

substantial risk of serious harm.” Id. at 381 (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, 964 F.3d

at 381 (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 two preliminary issues. The

defendants present two grounds for dismissal, which are

uncontested by the plaintiffs. First, the plaintiffs concede that

the Monell claims against Phillip Nowlin and Juanita Alexander-

Sallier are redundant and should be dismissed. Second, the

plaintiffs concede that there is no vicarious liability under 42

U.S.C. § 1983. Indeed, § 1983 does not create supervisory or

respondeat superior liability. See Oliver v. Scott, 276 F.3d 736,

742 (5th Cir. 2002). Insofar as the plaintiffs seek to hold CHSB

vicariously liable for its employees’ alleged constitutional

violations, it is undisputed that this claim must be dismissed for

failure to state a claim.

B.

The Court addresses the sufficiency of the allegations

regarding the medical defendant officials’ individual liability

before assessing the allegations concerning CHSB’s Monell

liability.7

7 A medical professional who treats a pretrial detainee on behalf

of a governmental entity acts under color of state law for the

purposes of § 1983. See Sanchez v. Oliver, 995 F.3d 461, 466 (5th

Cir. 2021)(citing West v. Atkins, 487 U.S. 42, 55-56 (1988)).

Invoking West v. Atkins, 487 U.S. 42, 55-56 (1988) and Perniciaro

v. Lea, 901 F.3d 241, 251 (5th Cir. 2018), this Court has so

determined. See Phoenix v. Lafourche Parish Government, No. 19-

13004, 2021 WL 184909, at *9 and n.10 (E.D. La. Jan. 19,

2021)(citing Phoenix v. Lafourche Parish Government, No. 19-13004,

2020 WL 3269114, at *8 (E.D. La. June 17, 2020)). Although no

such defense has been asserted, the Court further observes that

the Fifth Circuit recently joined other Circuits to hold that there

is no qualified immunity defense available for healthcare

providers employed by a large, for-profit company contracted by a

government entity to provide care in a correctional setting. See

Sanchez, 995 F.3d at 472.

CHSB employees Phillip Nowlin, Juanita Alexander-Sallier,

Donna Baker, Keshonka Rucker, Audrey Lewis, and Joanna Bartee are

sued in their individual capacities. In moving to dismiss the

plaintiffs’ § 1983 deliberate indifference claims, they advance

two main arguments. First, they contend that plaintiffs’

allegations (which are based on and incorporate Walker’s CHSB

medical records) rebut plaintiffs’ contention of deliberate

indifference and show that Nowlin, Alexander-Sallier, Baker,

Rucker, Lewis, and Bartee treated and monitored Walker and were

attentive to his medical needs. Second, they contend that neither

negligent treatment of Walker nor plaintiffs’ disagreement with

how Walker was treated amount to a constitutional violation. The

plaintiffs counter that the medical records support the

alternative theories advanced in the complaint and that the

plaintiffs sufficiently allege that the individual CHSB defendants

documented Walker’s withdrawal symptoms but failed to treat him.

As previously summarized, pretrial detainees like Walker have

a Fourteenth Amendment right to be protected from impermissible

punishment like denials of, or delays in, providing medical care

for serious medical needs. Thompson, 245 F.3d at 457 (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.”). In considering the

sufficiency of the plaintiffs’ deliberate indifference

allegations, the Court considers whether the plaintiffs have

alleged facts (presumed true) that plausibly establish that (1)

the CHSB employees were “aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists,”

and (2) the CHSB employees actually drew that inference. Domino

v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 755 (5th Cir.

2001) (quoting Farmer, 511 U.S. at 837).8 Mindful that

“[d]eliberate indifference is an extremely high standard to meet,”

id. at 756, the Court considers whether the plaintiffs’ factual

allegations plausibly suggest that the healthcare provider

defendants should have provided additional treatment or rise to a

level beyond negligent or grossly negligent responses to Walker’s

serious medical needs.

If the allegations indicate that the healthcare provider

defendants “refused to treat [Walker], 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[,]’” Arenas, 922 F.3d at 620-21 (citations

omitted), then the plaintiffs may pursue their deliberate

indifference claims. On the other hand, if the alleged facts

indicate a negligent response to Walker’s medical needs, then the

8 A third element -- that the official “subjectively intended that

harm occur” – additionally has been considered by some panels, but

improperly so, according to recent Fifth Circuit authority. See

Dyer v. Houston, 964 F.3d 374, 380 (5th Cir. 2020).

plaintiffs fail to state a plausible deliberate indifference

claim.

As put plainly by the Fifth Circuit Pattern Jury Instructions,

to recover damages for such a violation, the plaintiffs 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 Walker’s withdrawal symptoms as sufficiently

serious based on all alleged circumstances, then the first

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

required to meet the second element: the plaintiffs must prove

that the defendant knew of and disregarded an excessive risk to

Walker’s health due to withdrawal. See id. (noting the two-prong

test plaintiffs 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 plaintiffs 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 v. Hickman, 935 F.3d 302

309 (5th Cir. 2019) (quoting Perniciaro v. Lea, 901 F.3d 241, 258

(5th Cir. 2018)). Each defendant’s alleged conduct is examined

individually. Id. (citation omitted).

Viewing the facts alleged in the complaint in the light most

favorable to the plaintiffs, the plaintiffs alleged facts which,

if proved, indicate that certain individuals were aware that Walker

had serious medical needs and knew that he was experiencing

withdrawal symptoms. Walker presented a serious medical condition

and need for treatment. Walker was a known drug user and began

exhibiting signs of withdrawal while in custody. Indeed, the

plaintiffs’ factual allegations are predicated in part on the CHSB

medical records, which indicate that Walker was exhibiting

withdrawal symptoms including nausea and vomiting. These alleged

facts indicate that Walker had a serious medical condition or

objective exposure to a substantial risk of harm. See Carlucci v.

Chapa, 884 F.3d 534, 538-40 (5th Cir. 2018); Cadena v. El Paso

County, 946 F.3d 717, 727-28 (5th Cir. 2018).

The defendants focus their challenge on whether the

plaintiffs allege a constitutional deprivation under § 1983

indicating that Walker’s serious medical needs were met with

deliberate indifference. Accepting the complaint’s allegations as

true, CHSB personnel screened Walker, provided medical treatment

and medications to assist in alleviating drug withdrawal symptoms,

including Conidine, Lorazepam, Metoclopramide, and Odansetron

(Zofran); his vitals were assessed daily and found to be within

normal limits; and an anti-nausea injection was administered on

January 1. That the medical records anchoring the complaint’s

allegations indicate that Walker received medications and

treatment for withdrawal shows the absence of deliberate

indifference, the defendants contend.9 The Court agrees; the facts

alleged fall short of alleging actionable deliberate indifference

on the part of Phillip Nowlin, Juanita Alexander-Sallier, Donna

Baker, Audrey Lewis, Keshomka Rucker, and Joanna Bartee. For

instance, Nowlin and Alexander-Sallier are alleged to have failed

to give proper medication best suited to handle Xanax withdrawals

and to transfer Walker to the hospital at an appropriate time.

Plaintiffs do not allege that Nowlin and Alexander-Sallier refused

to give Walker medication, or that they ignored him or refused to

treat him. Similarly, plaintiffs claim that Donna Baker, Audrey

Lewis, Keshomka Rucker, and Joanna Bartee failed to adequately

monitor Walker, wrongly allowed him to be placed in general

population, and failed to refer him to a doctor or the hospital

9 Countering the plaintiffs’ theory that no medication administered

addressed Walker’s Xanax withdrawal, the defendants point out that

-- according to the medical records and complaint’s allegations -

- Walker was administered Lorazepam, which like Xanax, is a

Benzodizepine. The plaintiffs do not dispute this; indeed, it is

the plaintiffs whom allege that Lorazepam was administered among

other medications to treat Walker’s withdrawal symptoms.

before his condition became critical. Once again, plaintiffs fail

to allege any facts that would suggest deliberate indifference.

They fail to allege any facts that suggest Baker, Lewis, Rucker,

and Bartee refused to monitor Walker or that they refused to refer

him to a doctor or hospital after they knew his condition had

become critical. Plaintiffs fail to allege any facts that could

trigger the standard of deliberate indifference embraced by the

case literature. Instead, the plaintiffs speculate that facts

indicative of deliberate indifference might exist, and they rely

on facts derived from the medical records; facts that indicate

Walker was treated and monitored for drug withdrawal.10 At best,

the plaintiffs allege that the medical care defendants were

negligent in treating Walker’s acute withdrawal symptoms or in

failing to summon critical care sooner. The allegations simply

fail to support a plausible deliberate indifference theory.

Disagreement as to Walker’s treatment fall short of stating a claim

for deliberate indifference.

The facts alleged do not indicate that the healthcare provider

defendants “refused to treat [Walker], ignored his complaints,

10 Indeed, the facts alleged are based on medical records, which

indicate that multiple medications were administered to Walker,

Walker was monitored, and Walker’s vitals were obtained on December

29, December 30, twice on December 31, and on January 1; and found

to be within normal limits on these occasions. And that anti-

nausea medication was administered in an attempt to address

Walker’s nausea.

intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any

serious medical needs.” See Domino, 239 F.3d at 756 (citation

omitted). Because the plaintiffs fail to allege facts showing

the defendants deliberately disregarded known risks, refused to

treat Walker, ignored his complaints, or engaged in similar conduct

evincing a wanton disregard for Walker’s serious mental health

needs, the plaintiffs’ claims against Phillip Nowlin, Juanita

Alexander-Sallier, Donna Baker, Audrey Lewis, Keshomka Rucker, and

Joanna Bartee must be dismissed.11

C.

CHSB moves to dismiss the plaintiffs’ claim against it as an

entity. Whether the plaintiffs state a plausible § 1983 claim

against CHSB is analyzed in accordance with the Monell framework.

The Court has already observed (and the plaintiffs agree)

that there is no respondeat superior liability under § 1983; no

entity may be liable simply because it employs a person who has

violated the plaintiffs’ rights. As a private entity that acts

11 The defendants also seek to dismiss the plaintiffs’ punitive

damages claims. The plaintiffs have failed to offer legal support

for their request for punitive damages as against CHSB or any

individual medical care defendant; there are no factual

allegations indicating that any defendant was motivated by evil

motive or intent. Nor do the plaintiffs identify any state law

statutes permitting them to recover punitive damages in connection

with the state law negligence claims.

under color of state law in contracting with the municipality to

provide medical services to detainees, CHSB is treated as a

municipality for the purposes of § 1983 claims.12

The test for establishing municipal liability in an episodic-

act-or-omission case is settled:

[A] plaintiffs 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 plaintiffs 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

an official policy or custom and its relationship to the underlying

constitutional violation with specific facts. Balle v. Nueces

Cty., Texas, 952 F.3d 552, 559 (5th Cir. 2017)(quoting Spiller v.

12 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).

Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997)).

Sufficient pleadings include factual allegations that, when

reviewed, allow a court to reasonably conclude that policies or

customs exist and they were the “moving force” behind the

employee’s deliberate indifference. Id. Additionally, isolated

conduct by an entity employee is insufficient; plaintiffs must

allege prior similar incidents indicating a pattern of conduct.

Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001).

CHSB contends that the plaintiffs fail to state a viable

Monell claim because the facts alleged do not establish deliberate

indifference to Walker’s medical needs; the plaintiffs’

allegations regarding failure to monitor, train, or supervise are

merely conclusory; and plaintiffs fail to include any other facts

indicating an official policy or custom. As discussed above, the

Court finds that the plaintiffs failed to allege facts that, if

true, could plausibly state a claim for deliberate indifference.

Absent an underlying constitutional violation, there can be no §

1983 “municipal” or Monell liability against CHSB.

The Court also agrees with the defendants’ position that the

plaintiffs’ allegations regarding failure to monitor, train, or

supervise are merely conclusory; and plaintiffs fail to include

any facts indicating an official policy or custom. The plaintiffs

come closest to alleging a policy when they allege that “it was

common practice at the time of Walkers death for CorrectHealth,

Dr. Nowlin, PA Alexander-Sallier, and the Defendant LPNs to fail

to implement Clinical Opiate Withdrawal Score (COWS) protocol and

other detoxification protocol for drug-addicted inmates” and that

CorrectHealth had deficient policies related to the care and

observation of prisoners in drug withdrawal, specifically Xanax

withdrawal. What is lacking is content, such as allegations

concerning what the COWS protocol requires and its relationship to

the alleged constitutional violation.

Absent an allegation of 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 CHSB policy. To do this, the plaintiffs must

allege in the complaint “sufficiently numerous prior incidents.”

McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir. 1989).

These prior incidents must be sufficiently similar incidents

pointing to the specific violation in question. Id. Additionally,

“prior indications cannot simply be for any and all bad or unwise

acts[.]” See Peterson v. City of Fort Worth, Tex., 588 F.3d 838,

850-51 (5th Cir. 2009)(citation, internal quotations omitted).

The plaintiffs’ allegations that CHSB failed to follow certain

protocols when dealing with Walker’s withdrawal lacks factual

content and do not implicate a custom to ignore those protocols.

Nor do the plaintiffs provide any factual allegations of prior,

sufficiently similar incidents suggesting a failure to follow

withdrawal protocols. Simply saying there is a policy or custom,

without concrete facts in support, does not advance a plausible

Monell claim. Allegations that CHSB had policies of “insufficient

staffing and failure to monitor” are conclusory. Plaintiffs’

theory that CHSB staff allegedly failed to frequently monitor

Walker, therefore CHSB must be understaffed, is speculative absent

supporting factual allegations concerning a systemic issue within

CHSB.

Finally, the plaintiffs’ failure to train theory fails on the

conclusory facts alleged. The plaintiffs fail to identify a

particular deficiency in the training program that is related to

Walker’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 plaintiffs

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)). Here, the

plaintiffs fail to allege how CHSB training was defective, nor do

they allege a pattern of repeat violations.13

IV.

Finally, CHSB and its employees move to dismiss the

plaintiffs’ state-law negligence claims as premature. The

plaintiffs concede that the medical malpractice and vicarious

liability claims require exhaustion before the state medical

review panel, submit that the panel is underway, and request that

the case be stayed pending completion of the medical review panel.

The Court agrees and has consistently stayed civil rights

litigation pending completion of a pending medical review panel.

See Evans v. Lopinto, No. 18-8972, 2019 WL 2995870, at *7 (E.D.

La. July 8, 2019)(Brown, C.J.)(where plaintiffs alleged that

various law enforcement and medical defendants’ deliberate

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

of the entire litigation pending the conclusion of the medical

13 For example, if one is to infer that CHSB personnel were not

trained in drug-withdrawal protocol (or that they were but refused

to follow it), no supporting facts are alleged to permit this

conclusion.

review panel furthered the interest of judicial economy); see also

Phoenix v. Lafourche Parish Government, No. 19-13004, 2021 WL

184909, at *3, *10 (E.D. La. Jan. 19, 2021)(where the plaintiffs

alleged that defendants’ deliberate indifference led to a

detainee’s suicide, this Court found that a stay was appropriate

pending completion of the medical review panel).

So, too, here. Each of the plaintiffs’ claims, including the

state-law medical malpractice claims, arise out of Walker’s death

while he was detained at St. Bernard Parish Jail 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) 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.

***

Opportunities to amend deficient complaints are freely given.

The Court simply cautions counsel that facts must be alleged that

plausibly could indicate that the delay in administering the anti-

nausea injection(s), or the failure to appreciate (or delay in

realizing) that Walker was not metabolizing the medications due to

his untreated nausea, or the delay in summoning critical care, was

deliberate on the part of one or more medical providers; that the

course of treatment alleged evinced a wanton disregard for Walker’s

serious medical needs. In the context of alcohol withdrawal, the

Fifth Circuit has indicated in dicta that “ignoring the dangers of

alcohol withdrawal and waiting for a ‘manifest emergency’” might

constitute deliberate indifference in certain circumstances. See

Thompson v. Upshur Cnty., 245 F.3d 447, 458 (5th Cir. 2001); cf.

Grogan v. Kumar, 873 F.3d 273, 279-80 (5th Cir. 2017)(vacated

summary judgment for defendants where inmate, who had attempted

suicide by overdosing on medication, had lain on the floor for two

days “not able to eat, drink, [or] walk, and barely able to talk”

and had “received no help” but instead was told by a nurse that

she “didn’t care” and another defendant to “sleep it off.”) On

the other hand, “[m]edical records of sick calls, examinations,

diagnoses, and medications may rebut an inmate’s allegations of

deliberate indifference.” Freeland v. Tarrant Cnty., Texas, 789

Fed.Appx. 406, 409 (5th Cir. 2019)(unpublished)(quoting Banuelos

v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995)). Such is the

quandary presented to plaintiffs’ counsel if amendment is pursued.

For the foregoing reasons, IT IS ORDERED: that the medical

defendants’ motions to dismiss are GRANTED in part as to the

federal civil rights claims and DENIED in part as to the state law

claims; the plaintiffs’ federal civil rights claims against

Alexander-Sallier, Baker, CHSB, Lewis, Nowlin, Rucker, and Bartee

are hereby dismissed. IT IS FURTHER ORDERED: that the case is

hereby STAYED and closed administratively, for statistical

purposes, pending the outcome of the Louisiana medical review

panel. The case may be reopened upon a motion by the plaintiffs.

New Orleans, Louisiana, June 23, 2021

MARTIN JL. C. (FELDMAN

UNITED STAWES DISTRICT JUDGE

33