The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
AKANDO DUCKSWORTH CIVIL ACTION
VERSUS
HAL MACMURDO, ET AL. NO.: 18-1005-BAJ-RLB
RULING AND ORDER
Before the Court is the Motion to Dismiss (Doe. 16) filed by Defendants Dr.
Hal MacMurdo, Jason Kent, and Cherryl Washington. Plaintiff has filed an
opposition (Doc. 18). For the reasons that follow, the Motion (Doc. 16) is
GRANTED.
I, BACKGROUND
Plaintiff is an inmate incarcerated at the Dixon Correctional Institute. (Doc.
4-1 at p. 3). Plaintiff alleges that he suffers from Recurrent Respiratory
Papillomatosis and Dysphonia, which will result in the permanent loss of his voice if
left untreated. (Doc. 18 at p. 1). Plaintiff alleges that on March 20, 2017, a doctor at
the University Medical Center (UMC) recommended that he receive speech therapy
twice a week. (Doc. 4-1 at p. 3). Plaintiff alleges that he received speech therapy
sessions twice a week from April 2017 to December 2017. (Ud. at p. 5). However, in
December 2017, Plaintiff alleges that UMC cancelled his sessions due to a lack of
improvement in his vocal quality but advised Dr. MacMurdo that it would be willing
to continue the sessions to treat Plaintiffs neck pain. Jd. Plaintiff alleges that Dr.
MacMurdo did not renew the sessions because he did not “see a financial benefit to
the prison.” fd. Plaintiff alleges that since the cancellation of his sessions, he has
been provided with Ibuprofen, muscle relaxers, sore throat lozenges, and neck
exercises. Jd. Plaintiff alleges that on March 21, 2018, he was treated by a doctor at
UMC, Id. Plaintiff requested that his sessions be continued but was informed that
he had a poor pregnosis for recovery and that the sessions therefore would not help.
id. Plaintiff asked the doctor to refer him to a voice specialist but was told that no
specialist would see him. Jd. Plaintiff sued Kent, the Warden of the Dixon
Correctional Institute, Washington, an Administrative Remedy Procedure Screening
Officer, and Dr. MacMurdo under § 1983.
Il. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), a claim is “properly dismissed
for lack of subject-matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the claim.” Jn re FEMA Tratler Formaldehyde
Products Liab. Litig, 668 F.3d 281, 286 (5th Cir. 2012) (quoting Home Builders Ass‘n,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (6th Cir. 1998)). In determining its
jurisdiction, the Court may consider “(1) the complaint alone, (2) the complaint
supplemented by undisputed facts evidenced in the record, or (3) the complaint
supplemented by undisputed facts plus the [C]ourt’s resolution of disputed facts.”
Carroll v. Abide, 788 F.3d 502, 504 (5th Cir. 2015) (citation omitted).
B, Federal Rule of Civil Procedure 12(b)(6)
To overcome Defendants’ motion to dismiss, Plaintiff must plead a plausible
claim for rehef. See Romero v. City of Grapevine, Tex., 888 F.3d 170, 176 (5th Cix.
2018) (citing Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009)). A claim is plausible if it is
pleaded with factual content that allows the Court to reasonably infer that
Defendants are liable for the misconduct alleged. See Kdionwe v. Bailey, 860 F.8d
287, 291 (5th Cir. 2017) (citing Iqbal, 556 U.S. at 678). The Court accepts as true the
well-pleaded facts of Plaintiffs amended complaint and views those facts in the light
most favorable to him. See Midwest Feeders, Inc. v. Bank of Franklin, 886 F.3d 507,
513 6th Cir. 2018).
HI. DISCUSSION
A. Defendants’ Motion Under Rule 12(b)(1)
Defendants assert that Plaintiffs claims against them in their official capacity
must be dismissed due to the Eleventh Amendment. The Eleventh Amendment
immunity defense is a question of subject matter jurisdiction. United States v. Texas
Tech University, 171 F.3d 279, 286 n. 9 (5th Cir. 1999). The Eleventh Amendment
bars a state’s citizens from filing suit against the state or its agencies in federal court.
Cozzo v. Tangipahoa Parish Counsel-President Gov't, 279 F.3d 273, 280 (5th Cir.
2002) (citation omitted). Lawsuits against state officials acting in their official
capacity are generally barred by the Eleventh Amendment. Goins v. State of
Loursiana, 2004 WL 2694899, at *8 (HD. La. Nov. 22, 2004).
Defendants argue that to the extent that Plaintiff seeks monetary damages
against them in their official capacity, those claims must be dismissed. Plaintiff
concedes that the Eleventh Amendment protects state officials sued in their official
capacity. However, the Court construes Plaintiffs complaint as a suit against
Defendants in their personal capacity under 42 U.S.C. § 1983. Accordingly,
Defendants’ Rule 12(b)(1) motion is denied.
B. Defendants’ Motion Under Rule 12(b)(6)
1. Failure to State a Claim with Regard to Kent and Washington
Defendants argue that Plaintiff has failed to state a claim with regard to Kent
and Washington specifically. “Under section 1988, supervisory officials are not liable
for the actions of subordinates on any theory of vicarious liability.” Thompkins v.
Belt, 828 F.2d 298, 303 (5th Cur. 1987). “A supervisory official may be held liable
under section 1983 only if (1) he affirmatively participates in the acts that cause the
constitutional deprivation, or (2) he implements unconstitutional policies that
causally result in the constitutional injury.” Gates v. Tex. Dep't of Protective &
Regulatory Serus., 537 F.3d 404, 435 (6th Cir. 2008).
Kent is the Warden of the Dixon Correctional Institute. Washington is an
Administrative Remedy Procedure Screening Officer. Plaintiff alleges that
Washington ignored a complaint that Plaintiff filed against Dr. MacMurdo. (Doc. 4-
p. 7). Plaintiff also alleges that Kent was made aware of Plaintiffs grievances
against Dr. MacMurdo. Id. The alleged constitutional deprivation or injury at issue
is the failure to renew Plaintiff's sessions. Plaintiff's allegations against Kent and
Washington do not indicate that they affirmatively participated in acts or
implemented unconstitutional policies that caused the cancellation of the treatments,
Indeed, Plaintiff does not address Defendants’ arguments on these grounds in his
opposition to the motion to dismiss. Thus, Defendants’ 12(b)(6) motion to dismiss
with regard to Kent and Washington is granted.
2. Qualified Immunity
Because Dr. MacMurdo asserts qualified immunity, Plaintiff “bears the burden
of pleading facts that demonstrate lability and defeat immunity.” Shaw uv.
Villanueva, 918 F.3d 414, 416 (5th Cir, 2019). Plaintiff must allege facts showing
that C1.) Dr. MacMurdo violated a statutory or constitutional right and (2) the right
was clearly established at the time of his conduct. See id. at 417.
Plaintiff enjoys an Eighth Amendment right to receive adequate medical care.
See Farmer v. Brennan, 511 U.S. 825, 8382 (1994). A prison physician like Dr.
MacMurdo violates that right if his conduct “demonstrates deliberate indifference to
[Plaintiff's] serious medical needs, constituting an unnecessary and wanton infliction
of pain.” Delaughter v. Woodall, 909 F.3d 130, 186 (5th Cir. 2018) (citation omitted).
This is an “extremely high standard to meet.” Domino v. Tex. Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001). To establish that Dr. MacMurdo violated
that standard, Plaintiff must allege facts showing that Dr. MacMurdo (1) knew that
Plaintiff faced a “substantial risk of serious bodily harm” and (2) disregarded that
risk “by failing to take reasonable measures to abate it.” Arenas v. Calhoun, 922 F.3d
616, 620 (5th Cir. 2019) (citation omitted). He fails to do so.
Plaintiff alleges that Dr. MacMurdo should have renewed his treatment
sessions. This grievance does not rise beyond mere “disagreement with medical
treatment.” See Gibson v. Collier, 920 F.3d 212, 220 (5th Cir. 2019) (citation omitted).
Thus, Plaintiff fails to plausibly allege that Dr. MacMurdo violated his Eighth
Amendment rights by acting with deliberate indifference to his serious medical needs.
Because Plaintiff has failed to plausibly allege that Dr. MacMurdo violated his
constitutional rights, Plaintiff cannot overcome Dr. MacMurdo’s qualified-immunity
defense. See Shaw, 918 F.3d at 416.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Dismiss (Doc. 16) is GRANTED.
Plaintiffs claims against Defendants are DISMISSED with prejudice. A final
judgment shall issue in accordance with Federal Rule of Civil Procedure 58.
vciana thie
aton Rouge, Louisiana, this !' day of January, 2020.
Aas
JUDGE BRIA is, ORSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA