Morales v. McCulloh

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CYNTHIA MORALES CIVIL ACTION

VERSUS 18-808-SDD-RLB

DR. STEPHEN MCCULLOH,

CHERYL SMITH, LAUREN MILTON

KARLIE VIKOWSKI, OTHER UNKOWN

LIVINGSTON PARISH PERSONNEL, AND

LIVINGSTON PARISH

RULING

This matter is before the Court on the Motion to Dismiss for Failure to State a

Claim1 filed by Lauren Milton, Parish of Livingston, Cheryl Smith, and Karlie Vikowski

(“Defendants”). Plaintiff, Cynthia Morales (“Morales”), filed a Memorandum in Opposition

to Motion to Dismiss for Failure to State a Claim,2 to which Defendants filed a Reply,3 and

Morales filed a Surreply.4 For the following reasons, the Court finds that the Motion to

Dismiss filed by Defendants should be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

This matter arises out of the alleged medical mistreatment of Morales while she

was detained at the Livingston Parish Detention Center (“LPDC”) from August 6 to August

10, 2017.5 Morales alleges that, from the time of her arrest until she was bonded out of

1 Rec. Doc. 7.

2 Rec. Doc. 15.

3 Rec. Doc. 19.

4 Rec. Doc. 30.

5 Rec. Doc. 27, p. 1. (Morales’ Complaint uses both August 6 and August 7 as the first day of her

incarceration).

52004

Page 1 of 11

LPDC, she presented “obvious symptoms of a serious eye infection.”6 Specifically,

Morales alleges that she repeatedly informed her custodians that she is a carrier of the

Methicillin-resistant Staphylococcus aureus (“MRSA”) virus.7 Morales alleges that she

made “sick calls” and complained about her eye at least once a day while incarcerated

and requested that she go to the hospital. Despite allegedly knowing that Morales is a

carrier of the MRSA virus, Defendants did not arrange for a provider to prescribe

antibiotics to Morales. On August 7, 2017, the first day of Morales’ incarceration, her eye

infection continued to worsen, and “[s]he became light sensitive and experienced

significant physical pain.”8 Also on August 7, 2017, Morales allegedly received

erythromycin, an antibiotic ointment, that is “known to not treat MSRA-related infections.”9

Morales alleges that Defendant Milton’s administration of the antibiotic ointment without

her first being seen by a medical provider amounts to deliberate indifference to Morales’

medical need.10 The next day, on August 8, 2017, Morales alleges that Defendant Wilder

prescribed her two antibiotics – ceftriaxone and dicloxacillin - which also allegedly “do not

treat MRSA-related infections.”11

Based on the above allegations, Morales brings the instant action asserting claims

under the Eighth Amendment, Fourteenth Amendment, 42 U.S.C. § 1983, and Louisiana

law.12 Specifically, Morales alleges that Defendant Livingston Parish and Defendant

6 Id.

7 Id.

8 Id. at 8.

9 Id. at 9 (emphasis in original).

10 Id.

11 Id. at pp. 11-12 (emphasis in original).

12 Id. at 16.

52004

Page 2 of 11

Cheryl Smith13 contracted with a physician assistant rather than a qualified health care

provider in violation of Louisiana law.14 Morales alleges that the “willful violation of state

law by Defendants Parish and Smith directly impacted” Morales’ constitutional rights to

be free from cruel and unusual punishment and the right to due process as a pre-trial

detainee.15 Defendants now move to dismiss this action for failure to exhaust

administrative remedies and for failure to state a claim upon which relief can be granted.

II. LAW AND ANALYSIS

A. Motion to Dismiss Under Rule 12(b)(6)

When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”16 The

Court may consider “the complaint, its proper attachments, documents incorporated into

the complaint by reference, and matters of which a court may take judicial notice.”17 “To

survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state

a claim to relief that is plausible on its face.’”18 In Twombly, the United States Supreme

Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)

motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation

13 Cheryl Smith is the medical director at the LPDC.

14 Rec. Doc. 27, pp. 5-6.

15 Id. at 6.

16 In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.

Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).

17 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).

18 In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas

Area Rapid Transit, 369 F.3d at 467).

52004

Page 3 of 11

of the elements of a cause of action will not do.”19 A complaint is also insufficient if it

merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”20 However,

“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.”21 In order to satisfy the plausibility standard, the plaintiff must show “more than

a sheer possibility that the defendant has acted unlawfully.”22 “Furthermore, while the

court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

to the plaintiff.’”23 On a motion to dismiss, courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.”24 On a Motion to Dismiss, the inquiry is

whether the allegations in the Complaint plausibly state a claim for relief.

B. Federal and State Exhaustion

Defendants contend that this case should be dismissed because Morales failed to

exhaust her administrative remedies before filing suit.25 The Federal Prison Litigation

Reform Act (“PLRA”) provides:

No action shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as

are available are exhausted.26

19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations and brackets

omitted)(hereinafter “Twombly”).

20 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(internal citations

omitted)(hereinafter “Iqbal”).

21 Twombly, 550 U.S. at 570.

22 Iqbal, 556 U.S. at 678.

23 Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire

Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).

24 Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

25 Rec. Doc. 7-1, p. 1.

26 42 U.S.C. § 1997e(a).

52004

Page 4 of 11

Under the PLRA, “the term ‘prisoner’ means any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,

violations of criminal law or the terms and conditions of parole, probation, pretrial release,

or diversionary program.”27 If the PLRA applies, exhaustion is mandatory.28

Morales argues that neither the federal nor state PLRA applies to her because she

was not incarcerated at the time she filed this suit.29 In Caddell v. Livingston, the Southern

District of Texas found the following:

Every circuit court to consider this issue has held that the [Federal] PLRA's

exhaustion provision does not apply to individuals who had already been

released at the time of filing.30 Further, although the Fifth Circuit has yet to

rule on the applicability of the exhaustion provision in particular, it has held

that that the PLRA's attorney's fees cap does not apply to individuals who

were not incarcerated at the time of filing.31 Like the exhaustion provision,

the attorney's fees cap pertains to any action brought by “a prisoner who is

confined to any jail, prison, or other correctional facility.”32 A single definition

of “prisoner” applies to both the attorney's fees provision and the exhaustion

requirement. Accordingly, both provisions bind only currently incarcerated

or detained individuals.33

Considering the plain language of the Federal PLRA and the persuasive authority cited

above, which Defendants have failed to address in their Reply, the Court finds that, as

27 42 U.S.C. § 1997e(h).

28 Jones v. Bock, 549 U.S. 199, 211 (2007).

29 Rec. Doc. 15, p. 5.

30 See Lesene v. Doe, 712 F.3d 584 (D.C. Cir. 2013); Talamantes v. Leyva, 575 F.3d 1021 (9th Cir. 2009);

Cofield v. Bowser, 247 F. App'x. 412 (4th Cir. 2007); Norton [v. City of Marietta, OK,] 432 F.3d 1145 (10th

Cir. 2005); Nerness v. Johnson, 401 F.3d 874 (8th Cir. 2005); Ahmed v. Dragovich, 297 F.3d 201 (3rd Cir.

2002); Greig v. Goord, 169 F.3d 165 (2nd Cir. 1999).

31 Janes v. Hernandez, 215 F.3d 541, 543 (5th Cir. 2000) (“We agree with the Eighth and Seventh Circuits

which have held that this Act applies to only those suits filed by prisoners.”).

32 42 U.S.C. § 1997e(d).

33 Caddell v. Livingston, No. 4:14-CV-3323, 2015 WL 1247003, at *2 (S.D. Tex. Mar. 17, 2015) (See also

Charleston v. Richardson, No. 5:18-0839, 2018 WL 6072020 (W.D. La. Nov. 20, 2018)).

52004

Page 5 of 11

Morales was not a prisoner at the time she filed suit, the exhaustion requirements of the

PLRA do not apply to her federal claims.

Like the Federal PLRA, for state law claims, the Louisiana Prison Litigation Reform

Act (“LPLRA”) requires that “[n]o prisoner suit shall assert a claim under state law until

such administrative remedies as are available are exhausted. If a prisoner suit is filed in

contravention of this Paragraph, the court shall dismiss the suit without prejudice.”34

However, the LPLRA also states, inter alia, that “[s]tatus as a ‘prisoner’ is determined as

of the time the cause of action arises. Subsequent events, including post trial judicial

action or release from custody, shall not affect such status.”35 Accordingly, courts in

Louisiana have consistently found that the LPLRA applies to former inmates’ claims

arising under inadequate medical care while in custody.36

The Court finds that the provisions of the Louisiana PLRA apply to Morales’ state

law claims because her claims arose while she was incarcerated. Morales does not allege

in her Complaint or Amended Complaint, that she exhausted any administrative

procedures. Accordingly, the Court hereby dismisses Morales’ state law claims without

prejudice for failure to exhaust administrative remedies.37

34 La. R.S. 15:1184(A)(2).

35 La. R.S. 15:1181(6).

36 Duhe v. St. John the Baptist Par. Sheriff's Dep't, 17-599 (La. App. 5 Cir. 4/11/18), 245 So. 3d 1244, 1246-

47, writ denied, 2018-0764 (La. 9/21/18), 252 So. 3d 898 (“In the present case, the record reveals that Mr.

Duhe was an inmate at the St. John Parish Jail at the time that his claims arose, and that he meets the

definitions of both ‘offender’ under CARP and ‘prisoner’ under the PLRA”); Dailey v. Travis, 2004-0744 (La.

1/19/05), 892 So. 2d 17, 20 (“The fact that Dailey is no longer incarcerated has no effect on this matter.”);

37 The state law claims are dismissed without prejudice. In the event that Morales sought leave to amend

her state law claims, the Court would decline to exercise supplemental jurisdiction over those claims in light

of the dismissal of the federal claims, infra.

52004

Page 6 of 11

C. Federal claims under 42 U.S.C. § 1983

The Civil Rights Act of 1964, 42 U.S.C. § 1983, creates a private right of action for

redressing the violation of federal law by those acting under color of state law.38 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

citizen of the United States or other 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.39

“Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method

for vindicating federal rights elsewhere conferred.’”40 To prevail on a Section 1983 claim,

a plaintiff must prove that a person acting under the color of state law deprived him of a

right secured by the Constitution or laws of the United States.41 A Section 1983

complainant must support his claim with specific facts demonstrating a constitutional

deprivation and may not simply rely on conclusory allegations.42

D. Claims Based on Deliberate Indifference

In order to state a cognizable claim under the Eighth Amendment, “a prisoner must

allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious

38 See Migra v. Warren City School District Board of Educ., 465 U.S. 75, 82 (1984); Middlesex County

Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 19 (1981).

39 42 U.S.C. § 1983.

40 Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, (1979));

accord Graham v. Connor, 490 U.S. 386, 393–94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808,

816 (1985); Jackson v. City of Atlanta, TX, 73 F.3d 60, 63 (5th Cir.), cert. denied, 519 U.S. 818 (1996);

Young v. City of Killeen, 775 F.2d 1349, 1352 (5th Cir. 1985).

41 See Blessing v. Freestone, 520 U.S. 329, 340 (1997); Daniels v. Williams, 474 U.S. 327, 330 (1986);

Augustine v. Doe, 740 F.2d 322, 324–25 (5th Cir. 1984).

42 See Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995); Fee v. Herndon, 900 F.2d 804, 807 (5th Cir.),

cert. denied, 498 U.S. 908 (1990); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986); Angel v. City

of Fairfield, 793 F.2d 737, 739 (5th Cir. 1986).

52004

Page 7 of 11

medical needs.”43 Deliberate indifference is a high standard and requires actual

knowledge and conscious disregard of a serious medical need of the plaintiff.44 Whether

the plaintiff received his preferred treatment is not the issue.45 Additionally, unsuccessful

treatment does not provide a basis for a claim under Section 1983 for violation of a

constitutional right.46 “Negligence, neglect or medical malpractice does not rise to the

level of a constitutional violation.”47

Here, Morales alleges that the medical staff knew that she carried MRSA, “yet

made no arrangements for a provider with the authority to prescribe antibiotics to examine

her,”48 did not arrange for her to go to a hospital, and provided her “with a prescription

antibiotic cream” without proper authority.49 In Munoz v. Khashdel, a case involving a

prisoner with MRSA and an infected eye, the court found that, although “[t]he nurse may

have erred in not giving [the plaintiff] other medications or treatment, or in not sending

him to a doctor sooner,” the error was negligence or gross negligence, not deliberate

indifference.50 The court found the fact that the plaintiff “received eye drops and antibiotics

shows the absence of deliberate indifference.”51

Similarly, Morales alleges that she received antibiotic ointment on August 7, 2018,

the first day of her incarceration.52 Although the antibiotic ointment is alleged to not treat

43 Estelle v. Gamble, 429 U.S. 97, 106 (1976).

44 Collins v. LeBlanc, 2013 WL 4766791 (M.D. La. 2013).

45 Davis v. Roundtree, 2014 WL 4627199 (M.D. La. 2014) (citing Estelle, 429 U.S. 97 (1976)).

46 Id. (citing Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).

47 Id. (citing Varnado, supra).

48 Rec. Doc. 15, pp. 2-3.

49 Id. at 4 (emphasis in original).

50 Munoz v. Khashdel, 2010 WL 272197 at *4 (S.D. Tex. 2010) (citing Hare v. City of Corinth, MS., 74 F.3d

633 (5th Cir. 1996).

51 Id.

52 Rec. Doc. 27, pp. 8-9.

52004

Page 8 of 11

MRSA-related infections, Morales also had an examination on the following day, August

8, 2017. On that day, to the best of Morales’ knowledge, Defendant Alonzo Wilder

(“Wilder”) prescribed two more antibiotics, also alleged to not treat MRSA-related

infections.53 Finally, on August 10, 2017, the final day of Morales’ incarceration, Wilder is

alleged to have given Morales another examination. Taking the Complaint as true,

Morales’ own allegations undermine her assertion that Defendants “willfully ignored Ms.

Morales.”54 Considering Morales’ allegations that she received medical attention on three

out of her four days of incarceration, it cannot be said that the medical personnel “refused

to treat [her], ignored [her] complaints, intentionally treated [her] incorrectly, or engaged

in any similar conduct that would clearly evince a wanton disregard for any serious

medical needs.”55 “It has been consistently held that an inmate who has been examined

by medical personnel fails to set forth a valid showing of deliberate indifference to serious

medical needs.”56

In Mickens v. Stalder, a prisoner with MRSA-like symptoms alleged that he was

denied three requests for a blood test for MRSA, not examined for a knee injury for 12

days following a request, and received antibiotics for an infection.57 The Mickens plaintiff

alleged, inter alia, that the antibiotics were prescribed without proper diagnosis and that

his untreated MRSA could lead to complications. The court noted, as in the present case,

53 Id. at 11-12.

54 Rec. Doc. 15, p. 2.

55 Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.2001).

56 Mickens v. Stalder, 2008 WL 544240, at *2 (W.D. La. 2008) (citing Norton v. Dimazana, 122 F.2d 286,

292 (5th Cir. 1997); Callaway v. Smith County, 991 F.Supp. 801, 809 (E.D. Tex. 1998); Spears v. McCotter,

766 F.2d 179 (5th Cir. 1985); Maywhether v. Foti, 958 F.2d 91 (5th Cir. 1992).

57 Id. at *2.

52004

Page 9 of 11

that the plaintiff admitted to being seen by medical staff and prescribed medication.

Although the plaintiff in Mickens “disagree[d] with the medical treatment he received,” his

complaint did not contain allegations “that would tend to show Defendants acted with a

culpable state of mind or that their actions were ‘unnecessary and wanton.’”58

Like Munoz and Mickens, the fact that Morales received antibiotics and medical

attention for her eye on three out of the four days of incarceration shows the absence of

deliberate indifference. “[D]isagreement with the diagnostic measures or methods of

treatment afforded by prison officials does not state a claim for Eighth Amendment

indifference to medical needs.”59 For these reasons, Count 2, claims based on deliberate

indifference to the constitutional right to appropriate medical care against Livingston

Parish, Smith, Dr. McCulloch, Milton, Wilder, and Vikowski are dismissed.

E. Monell60 Claims against Cheryl Smith and Livingston Parish

Because the Court finds, based on Morales’ own allegations, that her medical

treatment did not rise to the level of a constitutional violation, there can be no Section

1983 municipal liability. Therefore, Morales’ Monell claims against Cheryl Smith and

Livingston Parish are hereby dismissed with prejudice.61

58 Id.

59 Id.

60 Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Under

Monell, municipal liability for constitutional torts arises when the execution of an official policy causes the

plaintiff’s injury.

61 Whitley v. Hanna, 726 F.3d 631 (5th Cir. 2013) (“All of [Plaintiff]’s inadequate supervision, failure to train,

and policy, practice, or custom claims fail without an underlying constitutional violation”); Self v. City of

Mansfield, Texas, 369 F.Supp.3d 684, 699 (N.D. Tex. 2019)(“Because the plaintiffs have not proved that

jail employees acted with deliberate indifference, there is no underlying constitutional violation.”); See also

Bustos v. Martini Club, Inc., 599 F.3d 458, 467 (5th Cir. 2010).

52004

Page 10 of 11

III. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss62 is hereby

GRANTED. The Court also finds that granting leave to amend would be futile.63 Morales’

state law claims are hereby dismissed without prejudice and Morales’ claims arising under

federal law are hereby dismissed with prejudice.

IT IS SO ORDERED.

Signed in Baton Rouge, Louisiana on July 2, 2019.

S

____________________________________

SHELLY D. DICK, CHIEF DISTRICT JUDGE

MIDDLE DISTRICT OF LOUISIANA

62 Rec. Doc. 7.

63 Foman v. Davis, 371 U.S. 178, 83 (1962); There is no indication to this Court that Morales will be able to

allege that her medical treatment was the result of deliberate indifference.

52004

Page 11 of 11