Pierce v. Peterson

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WESLEY DEWAYNE PIERCE CIVIL ACTION

VERSUS NO. 22-5274

DEPUTY G. PETERSON, ET AL. SECTION: “J”(1)

O R D E R

Plaintiff has filed motions for leave to amend the complaint to add two new defendants:

CorrectHealth St. Tammany, LCC (“CorrectHealth”)1 and Global Diagnostic Services (“GDS”).

Rec. Docs. 38 and 43. Because he is no longer entitled to amend his complaint as a matter of

course, he may amend the complaint “only with the opposing party’s written consent or the court’s

leave.” See Fed. R. Civ. P. 15(a)(1)-(2). Here, there has been no written consent to the

amendments. Further, for the following reasons, leave of court will not be granted.

“Though Rule 15(a)’s mandate that leave to amend must be ‘freely give[n] ... when justice

so requires’ significantly limits a district court’s discretion, a district court still acts within its

bounds when it denies leave because amendment would be futile.” Ariyan, Inc. v. Sewage &

Water Board of New Orleans, 29 F.4th 226, 232 (5th Cir. 2022), cert. denied, 143 S. Ct. 353

(2022). “Amendments are futile where the proposed amendment fails to state a claim, and courts

review them under the same standard of legal sufficiency as applies under Rule 12(b)(6).” Nix v.

Major League Baseball, 62 F.4th 920, 935-36 (5th Cir. 2023) (quotation marks omitted).

In his original complaint, plaintiff alleged that he was punched in the face by Deputy

Gabriel Peterson. After the altercation, plaintiff’s face was x-rayed. The x-rays were taken by

GDS and evaluated by Dr. Robert (Ben) Roach. Dr. Roach concluded that there was “[n]o

1 This entity is incorrectly identified in the motion as “Correct Health - St. Tammany.”

radiographic evidence of an acute fracture” but cautioned: “Plain film radiographs are not sensitive

for traumatic maxillofacial injuries. If a radiographically occult facial fracture is clinically

suspected, thin-section maxillofacial CT scanning is a more sensitive study for evaluation of

maxillofacial trauma.”2 Dr. Jose Ham, a CorrectHealth physician at the jail, reported the x-ray

results to plaintiff but did not order a CT scan or other diagnostic procedures. Plaintiff alleges that

months later it was determined that his cheekbone was in fact broken. With respect to his medical

claim, plaintiff originally sued only Dr. Ham. He now seeks to amend his complaint to add

CorrectHealth and GDS as defendants.

As to CorrectHealth, plaintiff alleges: “Correct Health - St. Tammany used x-rays from a

machine that was not designed to properly determine the extent of my injuries.”3 For the following

reasons, that allegation fails to state a claim against CorrectHealth.

A private company, such as CorrectHealth, which has been hired to run the medical

department at a parish jail is treated as a municipal or local governmental entity for the purposes

of § 1983, and, therefore, claims against such a company are analyzed as Monell claims. In a

lawsuit in which a similar corporation, i.e. CorrectHealth Jefferson, LLC, had been named as a

defendant, United States District Judge Mary Ann Vial Lemmon explained:

“The test to determine liability for a private prison-management corporation under

§ 1983 is more or less identical to the test employed to determine municipal or local

government liability.” Alfred v. Corr. Corp., 2009 WL 789649, at *2, n.1 (W.D.

La. Mar. 24, 2009) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)

(other citations omitted)). Thus, to establish CorrectHealth’s liability under § 1983,

[the plaintiff] must prove the existence of a policymaker, an official policy, and a

violation of the plaintiff’s constitutional rights for which the moving force was the

policy or custom. See Duvall v. Dall. Cnty., Tex., 631 F.3d 203, 209 (5th Cir.

2011); Piotrowski v. City of Hous., 237 F.3d 567, 578 (5th Cir. 2001). The

requirement of a policymaker, an official policy, and the ‘moving force’ of the

policy, serve to distinguish individual violations by government healthcare

2 Rec. Doc. 21-2, p. 1-2.

3 Rec. Doc. 38, p. 1.

contractor employees from those that can be fairly considered actions of the

government health contractor itself. Piotrowski, 237 F.3d at 578.

Woodward v. Lopinto, Civ. Action No. 18-4236, 2021 WL 1969446, at *5 (E.D. La. May 17,

2021); accord Guillotte v. Knowlin, Civ. Action No. 21-1422, 2021 WL 7632004, at *2-3 (E.D.

La. Dec. 7, 2021) (treating a claim against CorrectHealth Lafourche, LLC, as a Monell claim),

adopted, 2022 WL 355509 (E.D. La. Feb. 7, 2022); Carter v. Gautreaux, Civ. Action No. 19-105,

2020 WL 6251186, at *2 (M.D. La. Oct. 22, 2020) (treating a claim against CorrectHealth East

Baton Rouge, LLC, as a Monell claim); Richardson Plaquemines Parish Detention Center, Civ.

Action No. 19-10926, 2020 WL 5217017, at *5 (E.D. La. Aug. 12, 2020) (treating a claim against

CorrectHealth Plaquemines, LLC, as a Monell claim), adopted, 2020 WL 5209302 (E.D. La. Sept.

1, 2020).

Regarding Monell claims, the United States Fifth Circuit Court of Appeals has explained:

In order to hold a municipality or a local government unit liable under

Section 1983 for the misconduct of one of its employees, a plaintiff must initially

allege that an official policy or custom was a cause in fact of the deprivation of

rights inflicted. To satisfy the cause in fact requirement, a plaintiff must allege

that the custom or policy served as a moving force behind the constitutional

violation at issue or that [his] injuries resulted from the execution of an official

policy or custom. The description of a policy or custom and its relationship to the

underlying constitutional violation, moreover, cannot be conclusory; it must

contain specific facts.

Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) (emphasis

added; citations, quotation marks, and brackets omitted). Further, “[a] plaintiff may not infer a

policy merely because harm resulted from some interaction with a governmental entity.” Colle v.

Brazos County, 981 F.2d 237, 245 (5th Cir. 1993); see also Wetzel v. Penzato, Civ. Action No.

09-7211, 2009 WL 5125465, at *3 (E.D. La. Dec. 23, 2009).

In the instant case, plaintiff does not allege that his constitutional rights were violated as a

result of a policy or custom of CorrectHealth, much less identify such a policy or custom.

Specifically, for example, he does not allege that any CorrectHealth policy or custom prohibited

Dr. Ham or any of its other employees from ordering a CT scan or other diagnostic procedures if

it was determined that additional testing was medically necessary. Therefore, without more,

plaintiff has failed to state a proper Monell claim against CorrectHealth, and so that proposed

amendment is futile.

As to GDS, plaintiff alleges:

Global Diagnostic Services is the x-ray imaging provider for the St. Tammany

Parish jail. Under the “Recommendations” part of Exhibit “A” in Dr. Hams

evidence, it is noted that “Plain film radiographs are not sensitive for traumatic

maxillofacial injuries”. So if a radiographically occult facial fracture was obvious,

or even suspected, then plain film radiographs should not have been used to

determine a diagnoses of my injury. Given that they know this but still made a

“Finding” using inadequate equipment constitutes deliberate indifference. And

because of that deliberate indifference, I was subjected to cruel and unusual

punishment because my injuries were not properly diagnosed and therefore I could

not receive adequate treatment, which is a violation of my eigth amendmant. And

because I was “pre-trial”, that punishment violated my fifth and fourteenth

amendments of right to due process.4

For the following reasons, that proposed amendment is likewise futile.

First, there is no allegation that GDS is a state actor.5 That posed no problem with respect

to CorrectHealth because, despite its being a private corporation, it qualifies as a state actor due to

its contractual arrangement with the local government. Specifically, the local government has a

constitutional duty to provide inmates in its custody with medical care, and, here, it contractually

delegated the performance of that duty to CorrectHealth. As a result, CorrectHealth is a state actor

for purposes of § 1983. Phoenix ex rel. S.W. v. Lafourche Parish Government, Civ. Action No.

19-13004, 2020 WL 3269114, at *8 (E.D. La. June 17, 2020) (“When a state or municipality

4 Rec. Doc. 43.

5 Because plaintiff brought this lawsuit pursuant to 42 U.S.C. § 1983, he “must allege the violation of a right secured

by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a

person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added).

contracts with a private party to administer healthcare to inmates or detainees, the private party

and its employees administer the medical services under color of state law (because they perform

a public function by providing medical care to individuals in state custody) and therefore may be

sued as state actors.”); see also Shadrick v. Hopkins County, 805 F.3d 724, 736 (6th Cir. 2015)

(“[P]rivate corporations performing traditional state functions, such as the provision of medical

services to prison inmates, act under color of state law for purposes of § 1983.”). There is no

suggestion that a similar delegation has occurred with respect to GDS.

Second, in any event, even if a similar relationship exists and GDS could qualify as a state

actor, then, as with CorrectHealth, the claim against GDS would be a Monell claim and would

have to be pled as such. Because, again, plaintiff has not alleged that his constitutional rights were

violated as a result of a policy or custom, he has not properly stated a Monell claim against GDS.

Therefore, that proposed amendment is likewise futile.

Accordingly, plaintiffs motions for leave to amend the complaint, Rec. Docs. 38 and 43,

are DENIED.

New Orleans, Louisiana, this 22nd day of August, 2023.

were _vew Moore

JANIS \VAN MEERVELD

UNITED STATES MAGISTRATE JUDGE