Opinion

Ducksworth v. MacMurdo

Court
District Court, M.D. Louisiana
Filed
Jan 21, 2020
Cited by
0 cases
Authority
More cited than 22.5%

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

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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