Opinion

Mixon v. Pohlmann

Court
District Court, E.D. Louisiana
Filed
Jul 25, 2022
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KAREN ROBERTS MIXON, ET AL., CIVIL ACTION

Plaintiffs

VERSUS NO. 20-1216

JAMES POHLMANN, ET AL., SECTION: “E” (1)

Defendants

ORDER AND REASONS

Before the Court is a motion for summary judgment filed by James Pohlmann

(“Sheriff” or “Defendant”), in his official capacity as the Sheriff of St. Bernard Parish.1

Karen Roberts Mixon and Lindsey Elaina Mixon (collectively, “Plaintiffs”), who are

respectively the surviving spouse and sole heir of Edward Mixon, oppose Defendant’s

motion.2 Defendant filed a reply in support.3

BACKGROUND

The instant action arises from the death of Edward Mixon, pretrial detainee, while

incarcerated in St. Bernard Parish Jail. Plaintiffs sue James Pohlmann in his official

capacity as Sheriff of St. Bernard Parish for compensatory damages under 42 U.S.C. §

1983 for violations of Edward Mixon’s Eighth and Fourteenth Amendment right to

adequate medical care while detained pre-trial.4

1 R. Doc. 91. At the time this motion was filed, the St. Bernard Parish Sheriff’s Office (“SBPSO”) was a

defendant in this lawsuit. Defendant’s motion challenged whether SBPSO was a proper party to the suit. Id.

On July 6, 2022, the Court held a pretrial conference during which Plaintiffs conceded SBPSO cannot be

sued. Accordingly, the Court dismissed SBPSO with prejudice, and the only remaining Defendant is the

Sheriff in his official capacity as the Sheriff of St. Bernard Parish. R. Doc. 106. To the extent Defendant’s

motion for summary judgment is based on SBPSO not being a proper party, that aspect of the motion is

denied as moot. Plaintiffs also have conceded their only remaining claims arise under 42 U.S.C. § 1983. See

R. Doc. 76; see also R. Doc. 106. Thus, to the extent Defendant’s motion for summary judgment is based on

challenges to Plaintiffs’ state law claims, that aspect of the motion also is denied as moot.

2 R. Doc. 94.

3 R. Doc. 101.

4 Id. at ¶¶ 4, 55-71. The U.S. Supreme Court has held punitive damages are not available against a

municipality. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). As explained below, a suit

Plaintiffs initially filed their complaint on April 17, 2020.5 On May 21, 2021, the

Court granted Plaintiffs leave to file their first amended complaint adding CorrectHealth

St. Bernard (“CHSB”) and the Medical Personnel Defendants as Defendants.6 CHSB and

the Medical Personnel Defendants subsequently filed their first motion to dismiss for

failure to state a claim.7 The Court allowed Plaintiffs to file a second amended complaint

to address the arguments made in the first motion to dismiss.8 Plaintiffs filed their second

amended complaint on August 18, 2021,9 and the Court denied the first motion to dismiss

without prejudice on August 24, 2021.10 Thereafter, CHSB and the Medical Personnel

Defendants’ filed a second motion to dismiss,11 which this Court granted on December 23,

2021, thereby dismissing CHSB and the Medical Personnel Defendants with prejudice.12

On March 16, 2022, a status conference was held with the Court, at which time

Plaintiffs represented there are no pending claims against CorrectHealth Lafourche, LLC,

and all claims against that entity were dismissed with prejudice. During the status

conference, the Plaintiffs clarified there are no pending state law claims against any

Defendant in this action, and that their only remaining claims arise under § 1983. Most

recently, on July 6, 2022, during the parties’ pretrial conference, the Court dismissed the

St. Bernard Parish Sheriff’s Office (“SBPSO”) with prejudice when Plaintiffs conceded

SBPSO is not a proper defendant.13 As a result, the only remaining claims in this case arise

brought against Sheriff Pohlmann in his official capacity is treated as a suit against the municipality itself.

Accordingly, Plaintiffs are not entitled to punitive damages in their remaining § 1983 claims against Sheriff

Pohlmann in his official capacity as Sheriff of St. Bernard Parish. See also R. Doc. 68 at p. 36.

5 R. Doc. 1.

6 R. Doc. 20; see also R. Doc. 21 (first amended complaint).

7 R. Doc. 28.

8 R. Doc. 38.

9 R. Doc. 39.

10 R. Doc. 41.

11 R. Doc. 46; see also R. Doc. 47.

12 R. Doc. 68.

13 R. Doc. 106.

under § 1983 against Sheriff James Pohlmann in his official capacity as Sheriff of St.

Bernard Parish.

Under § 1983, a pretrial detainee may bring claims for an episodic act or omission,

a failure to train or supervise, and conditions of confinement.14 “There is no rule barring

a plaintiff from pleading [these] alternative theories, and a court may properly evaluate

each separately.”15 First, Plaintiffs in this case bring an episodic act or omission claim.

Plaintiffs allege (1) Defendant, as well as other defendants, violated Mixon’s clearly

established constitutional rights to be “reasonably safe and secure while in detention,” to

have access to “reasonable and adequate medical care,” to be free from “cruel and unusual

punishment,” and to “due process and equal protection of the laws;”16 (2) that this

violation resulted from a de facto municipal policy;17 and (3) the de facto policy was

maintained with deliberate indifference.18 Second, Plaintiffs bring a failure to train or

supervise claim. They allege (1) Defendant failed to either supervise or train his

subordinate officials as relates to withdrawal monitoring;19 (2) a causal link exists

between the failure to train or supervise and the violation of Mixon’s rights;20 and (3) the

failure to train or supervise amounts to deliberate indifference.21 Finally, Plaintiffs bring

a condition of confinement claim. They allege (1) there is a de facto policy of Sheriff

14 Hare, 74 F.3d at 644-45; see also Elphage v. Gautreaux, 969 F.Supp.2d 493, 511 (M.D. La. 2013) (Dick).

15 Martinez v. City of North Richland Hills, 846 Fed.Appx. 238, 242 (5th Cir. 2021) (citing Shepherd v.

Dall. Cty., 591 F.3d 445, 452 n.1 (5th Cir. 2009); see also Rule 8 of the FED. R. CIV. PRO. (“A pleading . . .

may include relief in the alternative or different types of relief.”).

16 R. Doc. 39 at ¶ 61.

17 See, e.g., id. at ¶ 60. Actions taken by individuals with final policymaking authority constitute a “municipal

policy,” and Plaintiffs contend Sheriff Pohlmann has final policymaking authority over the St. Bernard

Parish Jail. In terms of the de facto policy, Plaintiffs Second Amended Complaint complains of Sheriff

Pohlmann’s policy of failing to provide adequate medical care to pretrial detainees in St. Bernard Parish

Jail. It has become clear the specific inadequacy Plaintiffs’ complain of is a de facto policy of failing to give

detox medication until a pretrial detainee displays withdrawal symptoms.

18 See, e.g., id.

19 See, e.g., id. at ¶ 67.

20 See, e.g., id. at ¶ 70.

21 See, e.g., id.

Pohlmann—the jail policymaker—to fail to provide detox medication until a pretrial

detainee displays withdrawal symptoms;22 (2) there is no legitimate government interest

advanced by the de facto policy,23 and (3) that the de facto policy caused a deprivation of

Mixon’s constitutional rights.24

Defendant argues in his reply memorandum in support of the instant motion that

Plaintiffs have not made a condition of confinement claim because the opposition is the

first time Plaintiffs mentioned they were making such a claim.25 However, as set forth

above, the facts alleged in Plaintiffs’ Second Amended Complaint clearly put Defendant

on notice of a condition of confinement claim—a de facto policy, no legitimate

government interest, and causation.

Under Federal Rule of Civil Procedure 8(e), “[p]leadings must be construed so as

to do justice,” and “particular situations may not require that the specific legal theory be

identified,” provided that “at least some notion of the grounds justifying the remedies

sought in the proceedings . . . appear.”26 The latter requirement that “at least some notion”

of the grounds exists is designed to ensure parties are given notice as to the claims brought

so they may prepare a defense.27

Because Rule 8 is not “simply a precatory statement but reflects one of the basic

philosophies of practice under the federal rules,” federal courts must judge pleadings by

22 See, e.g., id. at ¶¶ 34, 43, 50, 54 (highlighting the jail-wide nature of the policy).

23 Id. at ¶ 50 (Plaintiffs allege the existence of “widespread deficits in the systems implemented to provide

urgent medical services to inmates at St. Bernard Parish Jail facing life-threatening emergencies evidence

a custom and/or practice of withholding medication and medical treatment for serious medical conditions

in order to save money . . . .” (emphasis added)).

24 Id. at ¶ 61.

25 R. Doc. 101.

26 See Ocaso, S.A., Compañia de Seguros y Reaseguros v. P.R. Mar. Shipping Auth., 915 F. Supp. 1244,

1253 (D.P.R. 1996).

27 A. BENJAMIN SPENCER, FED. PRAC. & PRO. § 1286 (4TH ED. WRIGHT & MILLER). For the avoidance of doubt,

the Court is not suggesting that “notice pleading” is sufficient to state a claim upon which relief can be

granted under Rule 12(b)(6). The Court is, however, stating that Plaintiffs sufficiently put Defendant on

notice of their condition of confinement claim, enabling Defendant to prepare a defense.

their substance, not their form.28 Plaintiffs’ Second Amended Complaint alleges, inter

alia, a de facto jail-wide, or systemic, policy at the St. Bernard Parish Jail, which is the

hallmark of a condition of confinement claim.29 As such, judging Plaintiff’s Second

Amended Complaint by its substance, it may be said the pleading “at least implicate[s]” a

conditions of confinement theory.30 Just as Plaintiffs need not say the words “episodic

act” in their Second Amended Complaint to bring an episodic acts claim,31 they need not

say the words “condition of confinement” to bring a condition of confinement claim.

Accordingly, the Court is satisfied that Defendants were sufficiently put on notice that

Plaintiffs were bringing such a claim because Plaintiffs’ Second Amended Complaint

alleges the basic elements of a condition of confinement claim.

Further, in the joint proposed pretrial order, Plaintiffs state “[t]here is a clear

pattern at the St. Bernard Parish Prison of providing grossly inadequate healthcare to

chronically ill inmates. This established custom has existed prior to contracting with . . .

[CHSB] and continues to exist. . . . [T]here is no legitimate government interest for

withholding adequate medical care . . .”32 There was no objection by Defendant that by

including this language Plaintiffs were attempting to expand the pleadings to include a

condition of confinement claim.33

MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

28 Id.

29 See Duvall v. Dallas Cty., TX., 631 F.3d 203, 207.

30 Schott Motorcycle Supply v. Am. Honda Motor Co., 976 F.2d 58, 62 (1st Cir. 1992) (internal quotations

omitted).

31 See generally R. Doc. 39.

32 R. Doc. 96 at p. 3.

33 See R. Doc. 96.

of law.”34 “An issue is material if its resolution could affect the outcome of the action.”35

When assessing whether a material factual dispute exists, the Court considers “all of the

evidence in the record but refrain[s] from making credibility determinations or weighing

the evidence.”36 All reasonable inferences are drawn in favor of the non-moving party.37

While all reasonable inferences must be drawn in favor of the non-moving party, the non-

moving party cannot defeat summary judgment with conclusory allegations,

unsubstantiated assertions or “only a scintilla of evidence.”38 There is no genuine issue of

material fact if, even viewing the evidence in the light most favorable to the non-moving

party, no reasonable trier of fact could find for the non-moving party, thus entitling the

moving party to judgment as a matter of law.39

“Although the substance or content of the evidence submitted to support or dispute

a fact on summary judgment must be admissible . . . the material fact may be presented

in a form that would not, in itself, be admissible at trial.”40

“[A] party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those portions of

[the record] which it believes demonstrate the absence of a genuine issue of material

fact.”41 To satisfy Rule 56’s burden of production, the moving party must do one of two

things: “the moving party may submit affirmative evidence that negates an essential

element of the nonmoving party’s claim” or “the moving party may demonstrate to the

34 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

35 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

36 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see

also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

37 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

38 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (quoting

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).

39 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell

Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).

40 Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

41 Celotex, 477 U.S. at 323.

Court that the nonmoving party’s evidence is insufficient to establish an essential element

of the nonmoving party’s claim.”42 If the moving party fails to carry this burden, the

motion must be denied. If the moving party successfully carries this burden, the burden

of production then shifts to the non-moving party to direct the Court’s attention to

something in the pleadings or other evidence in the record setting forth specific facts

sufficient to establish that a genuine issue of material fact does indeed exist.43

If the dispositive issue is one on which the non-moving party will bear the burden

of persuasion at trial, the moving party may satisfy its burden of production by either (1)

submitting affirmative evidence that negates an essential element of the non-movant’s

claim, or (2) affirmatively demonstrating that there is no evidence in the record to

establish an essential element of the non-movant’s claim.44 If the movant fails to

affirmatively show the absence of evidence in the record, its motion for summary

judgment must be denied.45 Thus, the non-moving party may defeat a motion for

summary judgment by “calling the Court’s attention to supporting evidence already in the

record that was overlooked or ignored by the moving party.”46 “[U]nsubstantiated

assertions are not competent summary judgment evidence. The party opposing summary

judgment is required to identify specific evidence in the record and to articulate the

precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose

42 Id. at 331.

43 Id. at 322–24.

44 Id. at 331–32 (Brennan, J., dissenting).

45 See id. at 332.

46 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the

evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving

party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce

additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit

an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.

upon the district court a duty to sift through the record in search of evidence to support a

party’s opposition to summary judgment.’”47

FACTS

I. Undisputed Facts

The following facts are undisputed. Plaintiffs bring the instant action against

Sheriff James Pohlmann in his official capacity as the Sheriff of St. Bernard Parish.48 St.

Bernard Parish and CHSB are parties to a Health Services Agreement, whereby CHSB—

acting as an independent contractor49—is responsible for providing all professional

medical and mental healthcare to pretrial detainees and inmates.50 The Health Services

Agreement states that St. Bernard Parish is charged by law with the responsibility for

obtaining and providing reasonably necessary medical care for pre-trial detainees and

inmates in the St. Bernard Parish Jail.51 The Agreement delineates in detail the broad

scope of medical services provided by CHSB, including nursing services, provider

services, medication administration, pharmaceuticals, and staff training.52 This

Agreement was in effect at the time of Edward Mixon’s incarceration and ultimate death

in custody.53

47 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d

909, 915–16 & n.7 (5th Cir. 1992)).

48 R. Doc. 91-9 at ¶ 1; see also R. Doc. 94-6 at ¶ 1.

49 R. Doc. 91-9 at ¶ 4; see also R. Doc. 94-6 at ¶ 4.

50 R. Doc. 91-9 at ¶¶ 2-3, 6; see also R. Doc. 94-6 at ¶¶ 2-3, 6.

51 R. Doc. 91-9 at ¶ 5; see also R. Doc. 94-6 at ¶ 5. Plaintiffs do not dispute the Health Services Agreement

includes a provision that St. Bernard Parish is charged by law with the responsibility for obtaining and

providing reasonably necessary medical care to pretrial detainees and inmates in the St. Bernard Parish

Jail. R. Doc. 94-6 at ¶ 5. However, they contend the Sheriff, acting in his official capacity, regardless of the

Parish’s legal requirement to appoint an adequate physician, is still the final policymaker of the jail and has

a duty to manage healthcare within the jail. Id.

52 R. Doc. 91-9 at ¶ 7; see also R. Doc. 94-6 at ¶ 7.

53 R. Doc. 91-9 at ¶ 2; see also R. Doc. 94-6 at ¶ 2.

Upon intake into the St. Bernard Parish Jail, CHSB is responsible for providing a

health screening to detainees.54 This health screening includes inquiry into the detainee’s

current medication regimen, drug and alcohol use, and the possible need for detox

treatment.55 CHSB is responsible for administering pharmaceuticals,56 and for the

staffing, supervision, training, policies, and procedures of its own personnel located at the

St. Bernard Parish Jail.57

II. Disputed Facts

Plaintiffs argue Defendant’s motion for summary judgment should be denied

because there are disputed issues of material facts. First, Plaintiffs contend as a matter of

law58 the Sheriff is the final policymaker when it comes to the management of healthcare

within the jail—CHSB is merely a contracted medical provider.59 Defendant disputes this,

contending CHSB is, in effect, the final policymaker as to the management of healthcare

in St. Bernard Parish Jail.60 Second, Plaintiffs contend the Sheriff retains responsibility

to ensure adequate healthcare is provided to inmates in the jail, i.e., to monitor the

adequacy of the care provided by CHSB.61 Defendant contends CHSB has the sole

responsibility to ensure adequate healthcare is provided to inmates or, in the alternative,

that the Parish has the responsibility for obtaining and providing reasonably necessary

medical care to detainees and inmates.62 Finally, Plaintiffs contend, pursuant to the

Sheriff’s policies and procedures, employees of the Sheriff may monitor and evaluate

54 R. Doc. 91-9 at ¶ 9; see also R. Doc. 94-6 at ¶ 9.

55 Id.

56 R. Doc. 91-9 at ¶ 10; see also R. Doc. 94-6 at ¶ 10.

57 R. Doc. 91-9 at ¶¶ 11, 16; see also R. Doc. 94-6 at ¶¶ 11, 16.

58 Plaintiffs and Defendant pose this as a factual issue. However, as explained below, the determination of

who the final policymaker is as to the provision of healthcare in St. Bernard Parish Jail is a matter of

Louisiana law. Accordingly, it is a legal issue.

59 R. Doc. 94-6 at ¶¶ 5, 15.

60 R. Doc. 91-1 at ¶¶ 11, 12.

61 R. Doc. 94-6 at ¶ 8.

62 R. Doc. 91-1 at ¶¶ 5, 8-15.

pretrial detainees’ medical needs and the delivery of care.63 Defendant contends CHSB

has the sole responsibility for all final medical judgments relating to inmate healthcare in

the jail.64 Plaintiffs argue these disputed facts are material and, thus, sufficient to prevent

summary judgment in Defendant’s favor.

LAW AND ANALYSIS

I. Defendant’s motion for summary judgment as to Plaintiffs’ municipal

liability claims against Sheriff Pohlmann is denied.

“To state a claim under § 1983, a plaintiff must . . . show[] that a person, acting

under color of state law, deprived the plaintiff of a right, privilege or immunity secured by

the Constitution or the laws of the United States.”65 In terms of the rights owed to pretrial

detainees, those rights “flow from both the procedural and substantive due process

guarantees of the Fourteenth Amendment” of the U.S. Constitution.66 “Since the state

does punish convicted prisoners, but cannot punish pretrial detainees, a pretrial

detainee’s due process rights are said to be ‘at least as great as the Eighth Amendment

protections available to a convicted prisoner.’”67 As a result, under the Fourteenth

Amendment, the state owes “pretrial detainees . . . [a duty to provide] basic human needs,

including medical care and protection from harm.”68 The Court determines the legal

standard used to measure the procedural or substantive due process rights of pretrial

detainees based on whether the detainee challenges the constitutionality of a “condition

of confinement,” whether the detainee claims a failure to supervise or train, or whether

63 R. Doc. 94-6 at ¶¶ 12-14.

64 R. Doc. 91-1 at ¶¶ 16.

65 Bryant v. Military Dep’t of Miss., 597 F.3d 678, 686 (5th Cir. 2010).

66 Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (citing Bell v. Wolfish, 441 U.S. 520, 99

S.Ct. 1861, 60 L.Ed.2d 447 (1979)).

67 Id. (quoting City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 (1983)) (emphasis in

original).

68 Hare, 74 F.3d at 650; see U.S. CONST. amend. XIV; City of Revere, 463 U.S. at 244.

the detainee challenges an “episodic act or omission” of an individual government

official.69

When a plaintiff brings an episodic act or omission claim, a condition of

confinement claim, or a failure to train or supervise claim against an official in his or her

official capacity, it is as though the plaintiff is suing the municipality of which the official

is an agent directly.70 This is referred to as municipal liability or a Monell claim. A

municipality is treated as a person that may be held liable under § 1983 when execution

of a government’s policy or custom, whether made by its lawmakers or by those whose

edits or acts may fairly be said to represent official policy, inflicts constitutional injury.71

This means actions taken by individuals with final policymaking authority constitute a

“municipal policy” actionable under § 1983.72 Courts and commentators have observed a

significant overlap between the elements of episodic act or omission, condition of

confinement, failure to train or supervise claims and the elements of municipal liability.73

Municipal liability under § 1983 requires proof of three elements: a policymaker;

an official policy or custom that was the moving force of the pretrial detainee’s

constitutional deprivation; and deliberate indifference.74 These three elements are

consistent with the Fifth Circuit’s added “requirement that a plaintiff [show] either an

unconstitutional official policy or a facially innocuous one ‘promulgated with deliberate

69 Hare, 74 F.3d at 644-45; see also Elphage v. Gautreaux, 969 F.Supp.2d 493, 511 (M.D. La. 2013) (Dick).

70 Elphage, 969 F.Supp.2d at 511.

71 Id.

72 Id.

73 VINCENT R. FONTANA, MUNICIPAL LIABILITY: LAW & PRACTICE (4th ed.).

74 Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). Plaintiffs need not prove deliberate

difference at trial on their condition of confinement claim because a jail official’s intent to subject a pretrial

detainee to inhumane conditions of confinement or abusive jail practices is presumed when he or she

incarcerates the detainee in the face of such known conditions and practices. The Fifth Circuit, sitting en

banc, has adopted the standard set by the United States Supreme Court in Bell v. Wolfish, 441 U.S. 520

(1979). See Hare v. City of Corinth, Miss., 74 F.3d 633 (5th Cir. 1996); see also Duvall v. Dallas Cty., TX.,

631 F.3d 203 (5th Cir. 2011).

indifference to the “known or obvious consequences” that constitutional violations would

result.’”75 “Proof of these three elements is necessary ‘to distinguish individual violations

perpetrated by local government employees from those that can be fairly identified as

actions of the government itself.’”76 Defendant’s instant motion for summary judgment

argues “Plaintiffs have not alleged nor presented sufficient summary judgment evidence

to prove any elements necessary to prevail on a claim against Sheriff Pohlmann, namely,

a policymaker, an official policy and a violation of constitutional rights whose moving

force is the policy or custom.”77 Defendant also argues Plaintiffs are unable to prove

deliberate indifference because “[the] Court has already held that none of th[e] allegations

made by plaintiffs support[] claims of deliberate indifference.”78 At this stage, Plaintiffs

are not required to prove each element of municipal liability, but may instead show facts

are in dispute that would prevent the Court from entering summary judgment.

A. As a matter of law, Sheriff Pohlmann is the final policymaker as

to the provision of medical care in St. Bernard Parish Jail.

To determine whether a municipality may be liable for a policy or custom of a

government official, the Court must, as a threshold matter, determine whether Sheriff

Pohlmann is the policymaker for the municipality in the area at issue.79 The parties

dispute whether Sheriff Pohlmann is the final policymaker as to the provision of medical

care in St. Bernard Parish Jail. The determination of whether the Sheriff is a final

policymaker is a matter of Louisiana state law.80

75 Quatroy v. Jefferson Parish Sheriff’s Office, 2009 WL 1380196 *7 (E.D. La. 2009) (quoting Piotrowski

v. City of Houston, 237 F.3d 567, 579 (5th Cir. 2009)).

76 Id. at *4 (citing Piotrowski, 237 F.3d at 578).

77 R. Doc. 91-1 at p. 12.

78 Id. at p. 11.

79 McMillian v. Monroe County, 520 U.S. 781, 786 (1998) (“[o]ur cases on the liability of local government

under § 1983 instruct us to ask whether government official are final policymakers for the local government

in a particular area, or on a particular issue”).

80 Burge v. Parish of St. Tammany, 187 F.3d 452, 468 (5th Cir. 1999).

Under La. R.S. 15:703, the governing authority of St. Bernard Parish has a legal

duty to either appoint a physician to care for inmates and detainees “confined in [its] jails”

or to enter into a contract with a healthcare provider to “to provide requisite health care

services.”81 St. Bernard Parish’s governing authority opted to fulfill its duty under La. R.S.

15:703 by contracting CHSB to provide requisite health care services to inmates and

detainees as the St. Bernard Parish Jail.82

Separate and apart from the governing authority of St. Bernard Parish’s legal

duties that arise from La. R.S. 15:703 is the Sheriff’s duty—derived from the Louisiana

Constitution—of operating the St. Bernard Parish Jail and ensuring the safety and well-

being of the people they detain.83 After all, Sheriffs are the “keeper[s] of the public jail”

and the managing authority for the functioning of the jail they run, and, “[u]nder

Louisiana law, a sheriff is ‘virtually an autonomous local government official.’”84

Plaintiffs contend Sheriff Pohlmann is the final policymaker as to the provision of

medical care for § 1983 municipal liability purposes. Defendant asserts “Sheriff Pohlmann

is not the policymaker of the St. Bernard Parish Prison as to the provision of medical care

and treatment”—instead, Defendant argues, CHSB is on account of its contractual

relationship with the Parish.85 Defendant points to the Health Services Agreement

between St. Bernard Parish and CHSB, whereby CHSB is contracted by the Parish to

actually render medical and mental health care to inmates and detainees.86

81 LA. R.S. 15:703.

82 R. Doc. 91-9 at ¶ 5 (Defendant’s statement of uncontested material facts); see also R. Doc. 94-6 at ¶ 5

(Plaintiffs’ response).

83 Jones v. St. Tammany Parish Jail, 4 F.Supp.2d 606, 613 (E.D. La. 1998) (citing LA. CONST. art. 5 § 27);

see also Amiss v. Dumas, 411 So.2d 1137, 1441 (La. Ct. App. 1982).

84 Id.

85 R. Doc. 91-1 at p. 5.

86 Id.

It is clear under Louisiana law that the Sheriff is the final policymaker for § 1983

municipal liability purposes. At the heart of Defendant’s argument is an assertion that the

Parish’s fulfillment of its duty under La. R.S. 15:703 (entering into a Health Services

Agreement with CHSB) somehow relieves the Sheriff of his constitutional and statutory

duty to ensure the safety and well-being of inmates and pretrial detainees.87 Defendant

argues the Sheriff shielded himself from § 1983 municipal liability by the contractual

relationship that exists between the Parish and CHSB.88 Defendant’s contention is

supported by neither the relevant caselaw nor Louisiana law.

In Quatroy v. Jefferson Parish Sheriff’s Office, the family of a deceased inmate

brought a § 1983 municipal liability claim against Newell Normand in his official capacity

as the Sheriff of Jefferson Parish.89 The pretrial detainee was a known drug user.90

Despite this knowledge, the pretrial detainee was not provided sufficient medical care,

resulting in his death.91 On the issue of whether Sheriff Normand was a policymaker,

Judge Vance recognized that “Court[s] [must] look to Louisiana law to ascertain the

extent of the Sheriff’s policy-making authority.”92 Faced with an argument by the

defendant that “the Sheriff was not the official source of policies relating to the healthcare

of inmates” because of the Parish’s responsibility to appoint a jail doctor or contract with

a healthcare provider,93 the court parsed through the responsibilities of the Sheriff versus

the parish governing authority. In terms of the Sheriff, under La. R.S. 15:704 and article

5 § 27 of the Louisiana Constitution, the Sheriff is the keeper of the public jail of his or her

87 Id.

88 Id.

89 2009 WL 1380196 *1 (E.D. La. 2009).

90 Id.

91 Id.

92 Id. at * 4.

93 Id.

parish.94 “Courts have recognized . . . sheriffs are the final policymakers when it comes to

the management of jails,” the Sheriff is charged with the jail’s administration, and the

Sheriff has the power to “by all lawful means preserve the peace and apprehend all

disturbers thereof.”95 The parish governing authority, on the other hand, is responsible

for either appointing a jail physician or contracting with a healthcare provider to provide

medical services for detainees and inmates.96 Recognizing the shared responsibility for

the medical treatment of detainees and inmates, the Court held “despite the parish’s

authority to choose the jail’s healthcare provider, the Sheriff is the final policymaker when

it comes to dealing with inmates suffering [from] withdrawal within the jail”97 because

“Louisiana law makes the Sheriff the relevant policymaker in this regard.”98

More recently, in Belcher v. Lopinto, the court was faced with, among other issues,

a § 1983 municipal liability claim against Newell Normand and Joseph Lopinto in their

official capacities as current and former Sheriffs of Jefferson Parish following the suicide

death of a pretrial detainee at the Jefferson Parish Correctional Center.99 In Belcher, the

governing authority of Jefferson Parish satisfied its legal duty under La. R.S. 15:703 by

contracting CorrectHealth Jefferson, LLC to provide medical and mental care to inmates

and detainees.100 Even though this contractual relationship existed, as to the policymaker

element of a municipal liability claim, the Belcher court concluded “Sheriffs Normand

and Lopinto in their official capacities . . . [were] ‘policymakers’ for purposes of § 1983

94 Id. at *5.

95 Id.

96 Id. (“The parish authority is generally not liable for the action or inaction of a physician or healthcare

provider. But the parish authority may be liable if it exercises ‘gross negligence of willful misconduct in the

performance of its duties and obligations imposed by [La. R.S. 15:703]’ and that gross negligence of willful

misconduct is a ‘substantial factor’ in causing a prisoner’s injury.”).

97 Id. (emphasis in original).

98 Id. at *6.

99 492 F.Supp.3d 636, 644 (E.D. La. 2020).

100 Id.

liability” because “Sheriffs are the keepers of parish jails and final policymakers with

respect to jail management” under Louisiana law.101

The Court agrees with the analyses in Quatroy and Belcher and finds Defendant

Sheriff Pohlmann is a relevant policymaker regarding Plaintiffs’ municipal liability

claims. The mere fact that a contractual relationship exists between St. Bernard Parish

and CHSB does not change this legal reality. This result is consistent with Louisiana law,

Quatroy, and Belcher. Accordingly, Defendant has not shown Plaintiffs will be unable to

establish the “policymaker” element of their Monell claim at trial. Rather, the Court has

concluded, as a matter of law, Sheriff Pohlmann is the final policymaker as to the

provision of medical care for § 1983 municipal liability purposes.

At trial, Plaintiffs will be able to establish as a matter of law that Sheriff Pohlmann

was the final policymaker of St. Bernard Parish Jail. Defendant may still prevail on

summary judgment as to this claim if he establishes there is no genuine dispute as to any

material fact and that he is entitled to judgment as a matter of law as to the second and

third elements of municipal liability.

B. A factual dispute exists as to whether there was a policy or

custom of Sheriff Pohlmann that caused Mixon’s constitutional

deprivation.

In terms of the second element, Plaintiffs will have the burden at trial of proving

by a preponderance of the evidence that (1) a policy of Sheriff Pohlmann existed and (2)

that policy was the moving force of Mixon’s constitutional deprivation.102

Plaintiffs contend the Sheriff had a de facto policy, inter alia, of failing to provide

medical treatment to pretrial detainees until they display withdrawal symptoms. In

101 Id. at 658; see La. R.S. 15:704 (“[e]ach sheriff shall be the keeper of the public jail of his parish, and shall

by all lawful means preserve the peace and apprehend all disturbers thereof, and other public offenders.”).

102 Monell, 436 U.S. at 694.

support of summary judgment on the second element of municipal liability, Defendant

argues, in substance, because CHSB is the official policymaker as to the provision of

medical care, the policies Plaintiffs complain of are that of CHSB’s, not the Sheriff’s.103

This basis for summary judgment lacks merit for two reasons. First, the Court has already

held Sheriff Pohlmann is an official policymaker as to the provision of medical care. Given

that Defendant’s ground for summary judgment as to the second element of municipal

liability is predicated on the Court finding the Sheriff is not a policymaker, this argument

fails.

Second, Defendant’s motion overlooks the varying judicially recognized avenues at

Plaintiffs’ disposal to prove that a policy of Sheriff Pohlmann was the moving force

behind, or direct result of, Mixon’s constitutional deprivation. One way to satisfy the

second element of municipal liability is by pointing to actual policy contained in officially

promulgated policy statements, ordinances, or regulations.104 Additionally, and more

commonly, there may be a “custom” that gives rise to a de facto policy of the Sheriff.105 A

custom is a practice that is well-settled and widespread or pervasive.106 Notably, a custom

may develop from the bottom-up, as opposed to top-down.107 That bottom-up custom can

yield a de facto policy of the Sheriff provided he had actual or constructive knowledge of

the custom or practice and he acquiesced in it. 108 A custom also may flow from the top-

down, meaning the Sheriff may establish a de facto policy that permeates throughout the

103 R. Doc. 91-1 at p. 10.

104 Burge, 187 F.3d at 471.

105 Lawson v. Dallas County, 286 F.3d 257, 263 (5th Cir. 2002); see also Quatroy, 2009 WL 1380196 at *6.

106 Lawson, 286 at 263; see also Quatroy, 2009 WL 1380196 at *6.

107 Britton v. Maloney, 901 F. Supp. 444, 450 (D. Mass. 1995).

108 Id.

jail.109 Either way, the element would be satisfied for § 1983 municipal liability purposes.

The de facto policy may fly in the face of official policies “on the books.”

The existence of a policy is an essential element of Plaintiffs’ claim. To satisfy his

summary judgment burden, Defendant could have submitted evidence affirmatively

negating the existence of a bottom-up or top-down de facto policy. Since Defendant did

not submit evidence actually negating this element,110 the only other way he could have

carried his summary judgment burden was by affirmatively showing the absence of

evidence in the record to support Plaintiffs’ contention that there was a de facto policy.

“[An affirmative] ‘showing’ [requires] more than a conclusory allegation.”111 This means

“the party moving for summary judgment cannot sustain its burden . . . merely by

asserting that the nonmovant lacks evidence to support its claim.”112 In the case at bar,

Defendant, citing to nothing, states in the instant motion that “plaintiffs have not

presented evidence of any policy or custom of Sheriff Pohlmann that violated the

constitutional rights of Edward Mixon.”113 That kind of conclusory allegation is the

quintessential example of a moving party failing to meet the “affirmative showing”

requirement of Rule 56.114 Because Defendant did not make his Rule 56 “showing,” the

burden did not shift to Plaintiffs “to call evidence to the attention of the court to dispute”

109 Id.

110 Defendant’s attach as exhibits the Health Services Agreement between St. Bernard Parish, policies of St.

Bernard Parish, and the deposition transcript of a St. Bernard Parish Warden. However, the only exhibit

Defendant cites to in the section of his memorandum titled “PLAINTIFFS HAVE FAILED TO ESTABLISH

ANY POLICY OF SHERIFF POHLMANN THAT WAS THE MOVING FORCE OF A VIOLATION OF

PLAINTIFF’S CONSTITUTIONAL RIGHTS” is the Health Services Agreement between the Parish and

CHSB. R. Doc. 91-1 at p. 10. Defendant cites the Agreement to support the proposition that CHSB is

responsible for providing all professional medical and mental healthcare services to pretrial detainees and

inmates. Id. This fact is uncontested. R. Doc. 91-9 at ¶¶ 2-3, 6; see also R. Doc. 94-6 at ¶¶ 2-3, 6. However,

the Court has already determined this fact does not negate an essential element of Plaintiffs’ claims for

municipal liability.

111 Young v. Universal Services, Inc., 1989 WL 111615 (E.D. La. 1989).

112 A. BENJAMIN SPENCER, FED. PRAC. & PRO. § 2727.1 (4TH ED. WRIGHT & MILLER) (citing cases).

113 R. Doc. 91-1 at p. 10.

114 FED. R. CIV. PRO. 56.

the contention that no evidence exists to establish an element of their claim.115

Accordingly, Defendant has not carried his burden of demonstrating there is no evidence

to support this element of Plaintiffs’ claim.

C. A factual dispute exists as to the third element of municipal

liability: deliberate indifference.

Plaintiffs contend the Sheriff had a de facto policy, inter alia, of failing to provide

medical treatment to pretrial detainees until they display withdrawal symptoms. To

prevail on the third element, at trial Plaintiffs will have the burden of showing Sheriff

Pohlmann maintained his de facto policy with deliberate indifference to the constitutional

rights of Mixon.116 Because Plaintiffs will have the burden at trial of proving Sheriff

Pohlmann maintained a de facto policy with deliberate indifference, Defendant has the

burden on summary judgment of either (1) submitting affirmative evidence that negates

this essential element of the Plaintiff’s claim, or (2) affirmatively demonstrating that there

is no evidence in the record to establish deliberate indifference.117 If Defendant is

successful, it is said “the burden shifts to [the non-moving party] to call evidence to the

attention of the court,” either by pointing to evidence in the record that was ignored or by

submitting new evidence, to dispute the contention that no genuine dispute of material

fact exists.118

Defendant attempts to carry his summary judgment burden by arguing Sheriff

Pohlmann could not be found to be deliberately indifferent because the Court previously

held CHSB and its agents were not deliberately indifferent to Mixon’s medical needs.119

Defendant further agues, with no citation to the record, that “[t]he exact same allegations

115 A. BENJAMIN SPENCER, FED. PRAC. & PRO. § 2727.1 (4TH ED. WRIGHT & MILLER).

116 See Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).

117 Celotex, 477 U.S. at 325; see also Celotex, 477 U.S. at 331–32 (Brennan, J., dissenting).

118 A. BENJAMIN SPENCER, FED. PRAC. & PRO. § 2727.1 (4TH ED. WRIGHT & MILLER).

119 Id. at p. 11.

that plaintiffs had made against CorrectHealth for deliberate indifference to plaintiff’s

serious medical needs have also been made against Sheriff Pohlmann.”120 According to

Defendant, then, “those same allegations cannot support claims of deliberate indifference

on the part of Sheriff Pohlmann.”121 In sum, Defendant Sheriff Pohlmann argues if CHSB

was not deliberately indifferent, he was not either.122 This is the extent of Defendant’s

grounds and explanation as to why Plaintiffs are unable to establish Sheriff Pohlmann

acted with deliberate indifference.

The Court’s December 23, 2021 Order and Reasons dismissing CHSB did not

address whether Sheriff Pohlmann acted with deliberate indifference by maintaining a de

facto policy of failing to provide detox medication to pretrial detainees before they show

withdrawal symptoms.123 Rather, the Court’s Order and Reasons addressed, among other

issues, the individual episodic acts or omissions of CHSB employees.124 The Court went

through each individual defendant’s acts and analyzed whether Plaintiffs had sufficiently

stated a claim of deliberate indifference. Because Sheriff Pohlmann did not move the

Court to dismiss the claims brought against him at the 12(b)(6) stage, the extent to which

the Court mentioned the claims against Sheriff Pohlmann in its Order and Reasons was

limited to an acknowledgment that he also was a Defendant.125 Courts must examine each

defendant individually to determine whether deliberate indifference exists.126

Accordingly, absent something more,127 the Court cannot conclude its finding at the

120 Id.

121 Id.

122 Id.

123 R. Doc. 68.

124 Id.

125 Id.

126 Id. at p. 13 (noting that courts must examine each defendant individually; citing to U.S. Fifth Circuit

precedent).

127 A careful review of Defendant’s statement of uncontested material facts offers the Court no additional

support for Defendant’s contention that there is no genuine dispute as to any material fact because the

document does not even include the words “deliberate indifference.” See R. Doc. 91-9.

12(b)(6) stage as to the deliberate indifference of CHSB employees ipso facto means

Sheriff Pohlmann was not deliberately indifferent in maintaining a de facto policy of

failing to provide detox medications to pretrial detainees who do not display withdrawal

symptoms. These are two separate inquiries.'!28 As a result, Defendant has not carried his

summary judgment burden of showing no factual dispute exists as to the third element of

municipal liability—deliberate indifference—by merely pointing to the Court’s December

23, 2021 Order and Reasons.

CONCLUSION

IT IS ORDERED that Defendant’s motion for summary judgment (R. Doc. 91) is

DENIED.

New Orleans, Louisiana, this 25th day of July, 2022.

Suse M

□□ SUSIE siongGa

UNITED STATES DISTRICT JUDGE

128 R, Doc. 68 at p. 13.

21

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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