# Abshire v. Livingston Parish

> District Court, M.D. Louisiana · March 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10192614

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** March 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10192614

## How later opinions describe it (automated extraction)

- finding no abuse of discretion “in excluding . . . exhibits, even though some were referenced in [plaintiff’s] pleading”
- describing this as one of the “principal purposes” of the Federal PLRA (citing Johnson and Porter)
- reversing dismissal of suit filed by mother and administratrix of prisoner’s estate and finding that she did not have to exhaust remedies under the Federal PLRA

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TAYLOR ABSHIRE, INDIVIDUALLY
AND ON BEHALF OF THE UNOPENED
SUCCESSION OF RICHARD ABSHIRE,
ET AL.
CIVIL ACTION
VERSUS
NO. 22-548-JWD-SDJ
LIVINGSTON PARISH, ET AL.

RULING AND ORDER
I. INTRODUCTION
Before the Court is the Motion to Dismiss, Pursuant to FRCP Rules 12(b)(6) and 12(b)(1),
for Failure to State a Claim Upon Which Relief Can Be Granted and Lack of Subject Matter
Jurisdiction (“Motion to Dismiss”), (Doc. 5), filed by Defendant Livingston Parish (“Livingston”
or the “Parish”). Plaintiffs Taylor Abshire, Kaysi Abshire, and Lindsey Johnson, all individually
and on behalf of the unopened succession of Richard Abshire, and Lindsey Johnson as next of
friend of E.A. and A.A., (collectively, “Plaintiffs”), oppose the motion, (Doc. 10). Livingston has
filed a reply, (Doc. 16). Oral argument is not necessary.
On August 11, 2022, Plaintiffs, daughters of Robert Abshire, filed suit against the Parish,
Sheriff Jason Ard, and Dr. James Taylor (collectively, “Defendants”) following Mr. Abshire’s
tragic death while in Livingston Parish Detention Center (“LPDC”). In sum, Plaintiffs allege that
Mr. Abshire was denied a life-saving medical device—an Optune—which his family tried to
provide to Defendants, and which would have reduced the risk of his dying of cancer. Plaintiffs
assert the following causes of action: (1) Negligence, Wrongful Death, and Survival (as to
Livingston and Sheriff Ard); (2) violations of the Louisiana Human Rights Act, La. Rev. Stat. §
51:2231 et seq. (“LHRA”) (as to Livingston); and (3) deliberate indifference and denial of medical
care in violation of the Fourteenth Amendment under 42 U.S.C § 1983 (as to Dr. Taylor). (See
Complaint, Doc. 1.)
Each defendant seeks dismissal of Plaintiffs’ claims,1 but this Motion to Dismiss involves

only the Parish’s. In sum, Livingston’s motion rests on two grounds: (1) that Plaintiffs have failed
to exhaust their administrative remedies under the Louisiana Prison Litigation Reform Act, La.
Rev. Stat. § 15:1181 et seq. (“Louisiana PLRA”); and (2) that, even if they had, Plaintiffs have
failed to state viable claims under the LHRA.
Plaintiffs oppose dismissal. First, Plaintiffs assert that, by its plain language, the Louisiana
PLRA applies only to prisoners, not to survivors and wrongful death beneficiaries like Plaintiffs.
Second, Plaintiffs maintain that the Court should look to the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., (“ADA”) for guidance in interpreting the LHRA, and, in doing so, the
Court should find that Plaintiffs have sufficiently pled (1) a disability—i.e., cancer; and (2) that
Mr. Abshire was denied a reasonable modification for that disability—i.e., his Optune Device.

After carefully considering the law, the allegations of the Complaint (Doc. 1), and the
arguments of the parties, the Court finds that Plaintiffs have the better arguments. In short,
Plaintiffs as non-prisoner survivors and beneficiaries did not need to exhaust administrative
remedies under the Louisiana PLRA, and they stated cognizable claims under the LHRA.
Consequently, the Motion to Dismiss will be denied.

1 Specifically, aside from the instant motion, Dr. Taylor has filed a separate motion to dismiss, (Doc. 14), and Sheriff
Ard has filed a motion for summary judgment, (Doc. 23).
II. RELEVANT FACTUAL BACKGROUND
A. Mr. Abshire’s Medical Condition and Needed Device
In October 2019, Mr. Abshire was diagnosed with a glioblastoma multiforme tumor, a
cancer that invades nearby brain tissue but generally does not spread to distant organs. (Doc. 1 at

¶¶ 22–24.) By 2021, Mr. Abshire, a domiciliary of Livingston Parish, had received treatment, and
his cancer was in remission. (Id. at ¶¶ 21, 24.)
Mr. Abshire’s oncologist’s prescribed Mr. Abshire an Optune, an FDA-approved medical
devices which, prior to incarceration, Mr. Abshire was using. (Id. at ¶ 25.) An Optune Device
“delivers a dose of radiation to the head and is used in combination with the medication
Temozolomide” and is “260% more effective than monotherapy.” (Id. at ¶¶ 26, 28.) As Plaintiffs
allege in their Complaint,
The significant benefit conferred by the Optune Device is
established via a statistically valid clinical study. Individuals with
cancer that used TMZ medication alone only had a 5% chance of 5-
year survival. In contrast, individuals who were a part of the Optune
Device arm of the study had a documented 13% chance of 5-year
survival.

(Id. at ¶ 27.)
B. Mr. Abshire’s Arrival at LPDC and Defendants’ Knowledge of His Medical
Condition

Mr. Abshire arrived at LPDC on or about July 21, 2021, as a pretrial detainee. (Id. at ¶ 32.)
Under La. Rev. Stat. § 15:703(A), LPDC must have a physician who “shall attend [to] the prisoners
who are confined in parish jails whenever they are sick.” (Id. at ¶ 31.) Livingston Parish contracted
Dr. James Taylor to be LPDC’s physician who would provide medical care to the inmates
“whenever they are sick.” (Id. at ¶¶ 29–30.)
Upon his arrival to LPDC, Mr. Abshire relayed to medical staff that he needed an Optune
Device because of his cancer diagnosis. (Id. at ¶ 33.) In a form he filled out on July 20, 2021, Mr.
Abshire, in fear for his life, explained the following:
I would like to find out if I’m eligible for compassionate Medical
release. I understand it has to go through the warden[,] but I have a
terminal illness, lucky to still be alive[,] and do not think I should
pay for my actions with my life as I am undergoing periodic MRIs
and CT scans. Thank you.

(Id. at ¶ 34.) Dr. Taylor spoke with Mr. Abshire’s oncologist from Tulane that same day and
thereafter recorded the following message in Mr. Abshire’s medical records:
Dr. Taylor spoke with Dr. Trevino (neuro-oncologist) today
regarding inmate’s medical condition. He reported that inmate needs
his Optune Device on at least 15 hours a day. This device delivers
radiation to the brain tumor. Inmate’s head needs to be shaved every
2-3 days in order for the adhesive waivers to stick to his head.
Inmate reported during the noon pill call that his daughter, Taylor[,]
could bring his Optune Device up here for him to begin using. Called
inmate’s daughter who reported that she would bring it up here
sometime today or tomorrow. When the device is received he will
need to be rehoused in a holding cell in booking. Inmate will also
need to shave his head as it hasn’t been shaved in several weeks.

(Id. at ¶ 35.) Since this message was recorded in Mr. Abshire’s medical records, the note was
available to all prison medical personal who interacted with Mr. Abshire. (Id. at ¶ 36.) Thus,
Plaintiffs allege that “by July 20, 2021, defendant [Dr. Taylor] and the medical department knew
that Mr. Abshire had cancer, needed the Optune Device, knew the duration that the device should
be used each day, and knew the method of administration.” (Id. at ¶ 37.) Despite this knowledge,
Dr. Taylor did not provide Mr. Abshire with an Optune Device. (Id. at ¶ 38.)
Six days after Dr. Taylor communicated with Mr. Abshire’s oncologist from Tulane, Ms.
Courtney Chaney gave a “staff response” to Mr. Abshire on July 26, 2021, in which she
acknowledged the potential need to transfer him to a facility better equipped to treat his condition:
There is no such thing as a compassionate medical release. But as
we receive more of your medical records, we will possibly be able
to see about getting you transferred to another facility that is better
able to treat you from a medical standpoint. But that is down the
line.

(Id. at ¶ 39.) Mr. Abshire’s daughter brought her father his Optune Device to LPDC on July 30,
2021; however, LPDC did not give Mr. Abshire the device. (Id. at ¶¶ 40–41.) Mr. Abshire then
expressed the following in an August 17, 2021, medical form:
I was told over 2 weeks ago that my Dr. wanted me to have my
Optune device while incarcerated. I have not heard another word
about this and am worried about my brain tumor returning. I have
had in creasing [sic] worse headaches and feel I am being ignored
and that your medical staff does not care about my health. My family
has gone through a lot to get a new device ordered, and I need to
have it. I hope your team knows how serious a glioblastoma
multiforme tumor is. Thank you, Richard Abshire.

(Id. at ¶ 42.) Despite this request, Defendants did not give Mr. Abshire his Optune Device nor was
there evidence that they assessed his vitals. (Id. at ¶¶ 43–44.)
Mr. Abshire’s family called LPDC on a daily basis requesting that the Optune Device be
made available to Mr. Abshire but was told (1) that the device was not made available to Mr.
Abshire because LPDC “didn’t know how to use it” despite having an instruction manual; and (2)
that a pregnant nurse at the facility could not be around the device. (Id. at ¶¶ 45–46.)
C. Mr. Abshire’s Deteriorating Condition
On August 24, 2021, other inmates alerted medical staff that Mr. Abshire “was dizzy and
going to pass out.” (Id. at ¶ 47.) Despite this, medical staff did not give Mr. Abshire the Optune
Device nor assess his vitals. (Id. at ¶¶ 48–49.)
The following day on August 25, 2021, Mr. Abshire requested medical assistance. (Id. at
¶ 50.) When Ms. Joye Kohler, LPN, arrived in his cell, Mr. Abshire alerted her that “something
[was] seriously wrong,” namely that (1) “he needed to see his doctor or go to the emergency room”;
(2) “he hadn’t slept in two days”; and (3) “he had painful headaches.” (Id.) Ms. Kohler and Mr.
Abshire then had a verbal altercation regarding Mr. Abshire’s headaches and whether he had been
sleeping. (Id. at ¶¶ 50–51.) During this altercation, Mr. Abshire expressed concern that he was
going to die while at LPDC. (Id. at ¶ 51.) There is no indication that Ms. Kohler assessed Mr.

Abshire’s vitals while at his cell or that she reported Mr. Abshire’s concerns about dying to Dr.
Taylor. (Id. at ¶¶ 52–53.)
Later that day, Mr. Abshire pressed the emergency call button complaining of severe
headaches and confusion. (Id. at ¶ 54.) However, skeptical of Mr. Abshire’s report of confusion,
medical staff noted that “inmate was not noted to be disoriented at either pill call today,” and Mr.
Abshire’s vitals were not assessed. (Id. at ¶¶ 54–55.)
Following this incident, on August 28, 2021, Mr. Abshire further inquired into why he did
not have access to his Optune Device, and LPDC expressed in a note that “[due to] the pandemic,
we are unable to bring anyone in the facility to set it up for him.” (Id. at ¶ 56 (alteration in original).)
On September 7, 2021, medical staff, specifically Ms. Lacy Shelton, began documenting

the deterioration of Mr. Abshire’s condition:
Inmate’s movement has been noticeable [sic] slow during pill call.
He sits on the bed and shares [sic] for about a minute or two before
attempting to get up. He appears to be confused and has an unsteady
gait, using the bed and wall to ambulate.

(Id. at ¶ 57.) Following Ms. Shelton’s note, nothing indicates that Mr. Abshire’s vitals were
assessed or that Defendants provided him the Optune Device, took him to a hospital, or transferred
him to another facility. (Id. at ¶¶ 58–59.)
D. Mr. Abshire’s Death
On September 11, 2021, at 8:55 p.m., medical staff was alerted that Mr. Abshire urinated
himself. (Id. at ¶ 60.) However, Mr. Abshire was not taken to the hospital or assessed by a doctor.
(Id. at ¶ 61.) Soon thereafter, he was found to be “passed out on the floor.” (Id. at ¶ 62.) Footage
from LPDC reveals that “Mr. Abshire collapsed while walking to obtain a food tray.” (Id.) It was
not until then that medical staff assessed Mr. Abshire’s vitals to discover that he had an irregular
and highly erratic pulse. (Id. at ¶ 63.) Further, he could not complete a pupil test, and he would

respond in an inappropriate fashion to questions posed of him. (Id.) At that point, LPDC’s medical
staff ordered that Mr. Abshire be taken to the hospital. (Id. at ¶ 64.)
Sheriff personnel transported Mr. Abshire to Our Lady of the Lake Hospital, and upon
arrival to the hospital “when police transfer crew opened the van door, [Mr. Abshire] rolled out of
the vehicle and fell hitting his head on the ground.” (Id. at ¶¶ 65–66.) Medical staff at Our Lady
of the Lake contacted LPDC’s medical unit, and after doing so, Our Lady of the Lake noted in Mr.
Abshire’s medical file “that he is supposed to be wearing a radiation helmet. However, they have
not been able to provide help with this since he has been in jail (since July).” (Id. at ¶ 67.) Mr.
Abshire was transferred to Tulane Hospital, but his condition failed to improve. (Id. at ¶¶ 68–69.)
He died on November 28, 2021. (Id. at ¶ 70.)

III. MOTION TO DISMISS: FAILURE TO EXHAUST
A. Rule 12(b)(1) Standard
In a Rule 12(b)(1) motion, a party may raise the defense of lack of subject matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Under Rule 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.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286
(5th Cir. 2012) (quoting Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998)).
“The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing McDaniel v.
United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995)). “Accordingly, the plaintiff constantly
bears the burden of proof that jurisdiction does in fact exist.” Id. (citing Menchaca v. Chrysler

Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)). But, “[a] motion under 12(b)(1) should be
granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his
claim that would entitle him to relief.” Home Builders Ass’n of Miss., Inc., 143 F.3d at 1010; see
also Ramming, 281 F.3d at 161 (citing Home Builders Ass’n of Miss., Inc. with approval).
“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court
should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”
Ramming, 281 F.3d at 161. “Moreover, when a complaint could be dismissed for both lack of
jurisdiction and failure to state a claim, ‘the court should dismiss only on the jurisdictional ground
under [Rule] 12(b)(1), without reaching the question of failure to state a claim under [Rule]
12(b)(6).’ ” Crenshaw-Logal v. City of Abilene, 436 F. App’x 306, 308 (5th Cir. 2011) (alterations

in original) (quoting Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam)).
“This practice prevents courts from issuing advisory opinions.” Id. (citing Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 101 (1998)). “This requirement [also] prevents a court without
jurisdiction from prematurely dismissing a case with prejudice.” Ramming, 281 F.3d at 161 (citing
Hitt, 561 F.2d at 608).
There are two forms of Rule 12(b)(1) challenges to subject matter jurisdiction: “facial
attacks” and “factual attacks.” See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). “A
facial attack consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence that
challenges the court’s jurisdiction based solely on the pleadings.” Harmouche v. Consulate
General of the State of Qatar, 313 F. Supp. 3d 815, 819 (S.D. T2018) (citing Paterson, 644 F.2d
at 523). In considering a “facial attack,” the court “is required merely to look to the sufficiency of
the allegations in the complaint because they are presumed to be true. If those jurisdictional
allegations are sufficient the complaint stands.” Paterson, 644 F.2d at 523. Whereas, “[a] factual

attack challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings,
and matters outside the pleadings—such as testimony and affidavits—may be considered.”
Harmouche, 313 F. Supp. 3d at 819 (citing Paterson, 644 F.2d at 523). The “court is free to weigh
the evidence and satisfy itself as to the existence of its power to hear the case.” Williamson v.
Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (citation omitted). “[N]o presumptive truthfulness
attaches to the plaintiff’s allegations, and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the merits of jurisdictional claims.” Id. When a factual
attack is made, the plaintiff, as the party seeking to invoke jurisdiction, must “submit facts through
some evidentiary method and . . . prov[e] by a preponderance of the evidence that the trial court
does have subject matter jurisdiction.” Paterson, 644 F.2d at 523.

B. Parties’ Arguments
1. Livingston’s Original Memorandum (Doc. 5-1)
The Parish argues that the damages Plaintiffs seek from their causes of action are
essentially survival action damages. (Doc. 5-1 at 1.) Likewise, Plaintiffs’ claims are Louisiana
state law claims. (Id.) Thus, under the Louisiana PLRA, Mr. Abshire and/or Plaintiffs must exhaust
all administrative remedies prior to filing suit in this Court. (Id. at 1–2.) Livingston contends that
Mr. Abshire failed to do so and asserts that Plaintiffs made no such allegations that Mr. Abshire
exhausted administrative remedies. (Id.) Therefore, says Livingston, since Mr. Abshire and
Plaintiffs failed to exhaust all administrative remedies before filing in this Court, this Court should
dismiss Plaintiffs’ claims. (Id.)
The Parish explains how the Louisiana PLRA is modeled after the Federal Prison Litigation
Reform Act, 42 U.S.C § 1997 et seq. (“Federal PLRA”). (Id. at 2.) The Federal PLRA “prohibits

any court from entertaining any action brought under § 1983, or any other federal law, until
administrative remedies are exhausted.” (Id.) Further, administrative exhaustion under the Federal
PLRA is mandatory and cannot be circumvented even if administrative remedies cannot provide
the relief requested. (Id.) The Parish contends that these requirements under the Federal PLRA are
“nearly identical” to those of the Louisiana PLRA. (Id.) Under the Louisiana PLRA, exhaustion
of administrative remedies is mandatory before filing suit in a trial court, and “survival and
wrongful death claims constitute civil actions with respect to prisons conditions under La. R.S.
15:1181 (2) of the Prison Litigation Reform Act.” (Id. at 3 (internal quotations omitted) (citing
Kent v. State Through Dep’t of Pub. Safety & Corr., 2014-1010 (La. App. 1 Cir. 9/23/14), 2014
WL 12569755, at *1, writ denied, 2014-2221 (La. 1/9/15), 157 So. 3d 1107)).) Further, failure to

exhaust administrative remedies deprives a trial court of subject matter jurisdiction. (Id.) Thus,
under the Louisiana PLRA, a trial court must dismiss a plaintiff’s suit if that plaintiff failed to
exhaust all administrative remedies before filing suit. (Id.)
The Parish further asserts that LPDC does not qualify as a Louisiana Department of
Corrections facility. (Id. at 4.) Louisiana Department of Corrections facilities are subject to the
administrative procedures set forth in La. Admin. Code tit. 22, pt. I, § 325. (Id.) Since LPDC is a
parish facility rather than a Louisiana Department of Corrections facility, it is statutorily allowed
to set its own procedures for receiving, disposing, and hearing adult or juvenile offenders’
grievances and complaints. (Id.) Therefore, Plaintiffs’ claims are subject to LPDC’s own three-
step administrative grievance process set forth in Policy No. F-160 of LPDC’s Policies and
Procedures Manual. (Id. at 4–5.) When arrestees are booked into LPDC, they are given an Inmate
Handbook that details LPDC’s Inmate Grievance Process. (Id. at 5.) Pursuant to this process,
inmates must first file an Inmate Grievance Form or other written complaint to the facility that a

First Respondent then reviews. (Id.) Inmates not satisfied with the First Respondent’s response
may seek a second level of review of their grievance from the Warden. (Id.) If not satisfied with
the Warden’s response, inmates may seek a third level of review from the Sheriff. (Id.)
The Parish contends that strict compliance with these administrative procedures is required,
and, thus, Mr. Abshire’s concerns he filled out on one of his medical forms is not a sufficient
exhaustion of administrative remedies. (Id. at 5–6.) While Mr. Abshire did receive a “staff
response” to the concerns he filled out on one his medical forms, he did not proceed to Step Two
and get review from the Warden and to Step Three and get review from the Sheriff. (Id.)
Livingston argues that it is not until Steps Two and Three are taken that administrative remedies
can be exhausted (Id. at 6.) Therefore, since Mr. Abshire failed to exhaust the proper administrative

remedies, this Court lacks subject matter jurisdiction over the matter and must dismiss Plaintiffs’
claims without prejudice. (Id. at 8.)
2. Plaintiffs’ Opposition (Doc. 10)
Plaintiffs respond that this Court should not dismiss their claims because they are not
“prisoners” subject to the Louisiana PLRA’s administrative-exhaustion requirement. (Doc. 10 at
1–2.) Under the Louisiana PLRA, “administrative remedies are written policies for ‘receiving,
addressing, and resolving claims by prisoners.’ ” (Id. at 4 (quoting La. Rev. Stat. §
15:1184(A)(1)(a)).) Further, the Louisiana PLRA defines “prisoner” as “an individual who is
incarcerated, [detained], or admitted ‘to any prison who is accused of, convicted of, sentenced for,
or adjudicated delinquent for a violation of criminal law or the terms or conditions of parole,
probation, pretrial release, or a diversionary program.’ ” (Id. (quoting La. Rev. Stat. § 15:1181(6)).)
As per Louisiana statutory interpretation, a plain reading of the Louisiana PLRA provides that
Plaintiffs do not meet the Louisiana PLRA’s definition of prisoner. (Id. at 5.) Thus, they were not

required under the Louisiana PLRA to exhaust administrative remedies before filing suit in this
Court. (Id.)
To further support their assertion that they are not “prisoners” under the Louisiana PLRA
subject to the Act’s administrative-exhaustion requirement, Plaintiffs note how survival and
wrongful death causes of action are wholly created by the legislature, and a wrongful death cause
of action is a survivor’s personal action distinct from the primary victim’s injuries, which arises at
the time of the death of the decedent. (Id. at 5–6.) Likewise, a decedent’s survivors do not
constitute “prisoners” under the Federal PLRA, and there are no Louisiana PLRA cases holding
that a decedent’s survivors constitute “prisoners” for purposes of the Act’s administrative-
exhaustion requirement. (Id. at 6–7.) Rather, Defendants can only point to an unpublished opinion

which states that wrongful death and survival actions are “civil actions with respect to prison
conditions.” (Id. at 7 (citing Kent, 2014 WL 12569755, at *1 (internal quotations omitted)).)
Plaintiffs maintain that for practical reasons, a decedent’s survivors cannot be required to partake
in administrative-exhaustion requirements because, since they were never imprisoned, they would
not know the proper administrative processes to go through. (Id. at 6.)
3.The Parish’s Reply Memorandum (Doc. 16)
In response to Plaintiffs’ arguments, Livingston contends that despite federal authority
saying that a decedent’s survivors are not “prisoners” under the Federal PLRA, Louisiana courts
have made clear that “survival and wrongful death claims constitute civil actions with respect to
prison conditions, under La. R.S. [15:1184(F)] . . . .” (Doc. 16 at 2 (internal quotations omitted)
(citing Williams v. LaSalle Corr. Ctr. L.L.C., 51,260 (La. App. 2 Cir. 4/5/17), 217 So. 3d 1219,
1226; Kent, 2014 WL 12569755, at *1).) Further, the Louisiana Second Circuit Court of Appeal
has applied the Louisiana PLRA when a decedent’s survivors brought wrongful death and survival

actions. (Id.) Although there are federal cases to the contrary as it relates to the Federal PLRA, this
Court is bound to follow Louisiana jurisprudence on this issue as to whether the Louisiana PLRA
applies to a decedent’s descendants bringing forth wrongful death and survival claims. (Id.)
C. Law and Analysis
“When adjudicating claims for which state law provides the rules of decision, we are bound
to apply the law as interpreted by the state’s highest court.” Barfield v. Madison Cnty., Miss., 212
F.3d 269, 271–72 (5th Cir. 2000) (citing Transcontinental Gas v. Transportation Ins. Co., 953
F.2d 985, 988 (5th Cir. 1992)). “If the state’s highest court has not spoken on the particular issue,
‘it is the duty of the federal court to determine as best it can, what the highest court of the state
would decide.’ ” Id. (quoting Transcontinental Gas, 953 F.2d at 988). Thus, “[o]ur task is to

determine as best we can how the Louisiana Supreme Court would decide it.” Jorge-Chavelas v.
La. Farm Bureau Cas. Ins. Co., 917 F.3d 847, 850 (5th Cir. 2019) (cleaned up).
As Plaintiffs have correctly noted in their opposition, there are no Louisiana Supreme Court
cases directly addressing the issue of whether the Louisiana PLRA’s exhaustion requirement
applies to a decedent’s descendants who bring wrongful death and survival claims. (Doc. 10 at 7.)
Thus, the Court must address this issue of first impression. To do so, the Court will begin by
providing an overview of the rules for interpreting Louisiana laws generally before applying those
methods to the statutes at issue. When that analysis is performed, the answer becomes clear: there
is no exhaustion requirement under the Louisiana PLRA for descendants like Plaintiffs.
1. Louisiana Law Generally
Because of Louisiana’s civilian tradition, “Louisiana’s ‘Constitution, codes, and statutes’
are of paramount importance to its judges.” Jorge-Chavelas, 917 F.3d at 851 (quoting Am. Int’l
Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003)).

Unlike stare decisis, which can flow from one decision, in the civil
system numerous court decisions must agree on a legal issue to
establish jurisprudence constante (French for constant
jurisprudence). And even when that consensus exists in the caselaw,
it remains only persuasive authority for the Erie guess; “we are not
strictly bound” by the decisions of Louisiana’s intermediate courts.

Id.
In Pierce Foundations, Inc. v. Jaroy Construction, Inc., 2015-0785 (La. 5/3/16), 190 So.
3d 298, the Louisiana Supreme Court summarized its own case law and the relevant statutes
governing interpretation of Louisiana laws as follows:
Legislation is the solemn expression of the legislative will; thus, the
interpretation of legislation is primarily the search for the legislative
intent. When a law is clear and unambiguous, and its application
does not lead to absurd consequences, it shall be applied as written,
with no further interpretation made in search of the legislative
intent. The starting point for interpretation of any statute is the
language of the statute itself. Additionally, all laws pertaining to the
same subject matter must be interpreted in pari materia, or in
reference to each other. When, on the other hand, a statute is not
clear and unambiguous, or its application leads to absurd
consequences, we rely on secondary rules of statutory interpretation
to discern the meaning of the statute at issue. In such cases, the
statute must be interpreted as having the meaning that best conforms
to the purpose of the law. Moreover, when the words of a law are
ambiguous, their meaning must be sought by examining the context
in which they occur and the text of the law as a whole.

Id. at 303 (cleaned up).
2. The Louisiana PLRA Is Clear and Unambiguous
Under the Louisiana PLRA, “No 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.” La. Rev. Stat.

§ 15:1184(A)(2) (emphasis added). The Louisiana PLRA defines “[c]ivil action with respect to
prison conditions” or “prisoner suit” as:
[A]ny civil proceeding with respect to the conditions of confinement
or the effects of actions by government officials on the lives of
persons confined in prison, but does not include post conviction
relief or habeas corpus proceedings challenging the fact or duration
of confinement in prison.

Id. § 15:1181(2). Additionally, the Louisiana PLRA defines “prisoner” as:
[A]ny person subject to incarceration, detention, or admission to any
prison who is accused of, convicted of, sentenced for, or adjudicated
delinquent for a violation of criminal law or the terms or conditions
of parole, probation, pretrial release, or a diversionary program.
Status 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.

Id. § 15:1181(6).
The Court finds that this language is clear and unambiguous: the Louisiana PLRA applies
to “prisoner suits” and “prisoners,” not to those like Plaintiffs bringing a survival action or
wrongful death action on a prisoner’s behalf. There is nothing in La. Rev. Stat. § 15:1181(2) or
§ 15:1181(6) to suggest that anyone other than a prisoner can bring a prisoner suit. Thus, under
the plain language of the statute, Plaintiffs have the better argument.
Further, the definition of “prisoner” does not warrant a different conclusion. The latter half
of La. Rev. Stat. § 15:1181(6) provides that “[s]tatus as a ‘prisoner’ is determined as of the time
the cause of action arises,” and some could argue, as Livingston does, that this has to be construed
to encompass a survival action, which arises “simultaneously with the existence of the tort and is
transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages
suffered by the victim from the time of injury to the moment of death.” Taylor v. Giddens, 618 So.
2d 834, 840 (La. 1993). The Louisiana PLRA further provides that “[s]ubsequent events, including

post trial judicial action or release from custody, shall not affect such status[,]” so, the argument
would go, the death of a prisoner does not affect his status, even in an action brought by a survivor
or beneficiary. See La. Rev. Stat. § 15:1181(6).
But such an interpretation would contravene the other plain language of the Louisiana
PLRA for three reasons. First, both of these sentences must be read in conjunction with the other
parts of La. Rev. Stat. § 15:1181, which unambiguously refers to “prisoners” and “prisoner suits,”
not survivors and beneficiaries. With the text clear, no further interpretation can be made in search
of the legislative intent. See Pierce Founds., 190 So. 3d at 303.
Second, the phrase “[s]ubsequent events” must be read in the context of its illustrative
examples, “post trial judicial action and release from custody.” Both refer to changes in legal

status or confinement, not to the natural death or health of a prisoner. Again, the meaning is plain.
And third, and perhaps most convincing, even if La. Rev. Stat. § 15:1181(6) could be read
to include a survival action, such an interpretation would lead to absurd results. Unlike a survival
claim, a wrongful death claim arises at the death of the decedent, as it “compensates the
beneficiaries for their own injuries which they suffer from the moment of the victim’s death and
thereafter.” Taylor, 618 So. 2d at 840. Thus, the terms “prisoner” and “prisoner suits” could in no
way be read to include wrongful death actions. Any interpretation of the Louisiana PLRA that
would apply one standard for survival actions and a different one for wrongful death actions would
be overly formalistic and nonsensical.
Further, as Livingston contends in its original memorandum, the Parish is entitled by law
to craft its own rules and administrative grievance policies, and LPDC’s is Policy No. F-160. (Doc.
5-1 at 4–5.) This policy is found in LPDC’s Policies and Procedures Manual, and the policy is also
detailed in the Inmate Handbook that inmates receive upon arrival to LPDC. (Id. at 5.) Although

the Parish’s brief suggests that this policy is readily available to inmates, this policy is not readily
available to the public. After diligent research, this Court could not find Policy No. F-160 in the
public domain. And since each parish can create its own rules, there is no central repository (public
or otherwise) for the exhaustion rules for Louisiana’s jails for survivors to search. Given the fact
that this policy is not readily available to the public, if subject to the Louisiana PLRA’s
administrative-exhaustion requirement, Mr. Abshire’s daughters would have no way of knowing
that administrative-grievance procedures exist or how to comply with these procedures.
Subjecting a decedent’s survivors like Mr. Abshire’s daughters to an administrative process about
which they have neither knowledge of nor access to would lead to unfair and absurd results
contrary to the plain language of the Louisiana PLRA.

In short, “prisoners” means prisoners, not survivors or beneficiaries, and the only
reasonable interpretation of the plain language of the Louisiana PLRA is that the latter do not have
to exhaust a decedent prisoner’s administrative remedies. On this ground alone, the Parish’s
motion could be denied.
3. Even if Ambiguous, the Purpose of the Law and Other Similar Laws
Support the Court’s Conclusion

Even if the Louisiana PLRA was ambiguous, the “statute must be interpreted as having the
meaning that best conforms to the purpose of the law,” Pierce Founds., 190 So. 3d at 303, and
such an analysis leads to the unmistakable conclusion that Plaintiffs need not exhaust Mr.
Abshire’s administrative remedies. In the legislative document enacting Louisiana PLRA, the
Louisiana Legislature made clear that the purpose of enacting the Louisiana PLRA was “to enact
Part XVI of Chapter 7 of Title 15 of the Louisiana Revised Statutes of 1950, to be comprised of
R.S. 15:1181 through 1190, relative to suits by prisoners . . . .” See Act No. 731, 1997 La. Acts.
No where did the legislature make a carve out for “suits by wrongful death and survival claimants.”

Further, Livingston concedes that the Louisiana PLRA was modeled on the Federal PLRA,
(Doc. 5-1 at 2), and this fact further undercuts the Parish’s position. The Federal PLRA has a
similar definition to the Louisiana 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.” 42 U.S.C § 1997e(h). Likewise, the Federal PLRA has an administrative-
exhaustion requirement similar to that of the Louisiana PLRA:
The court shall on its own motion or on the motion of a party dismiss
any action 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 if the court is satisfied
that the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief.

Id. § 1997e(c)(1). Yet, federal courts have interpreted the Federal PLRA’s administrative-
exhaustion requirement to only apply to prisoners, not a decedent’s survivors or beneficiaries. See
Greer v Tran, No. 02-3145, 2003 WL 21467558, at *2 (E.D. La. June 23, 2003); Netters v. Tenn.
Dep’t of Corr., No. 04-2396, 2005 WL 2113587, at *3 n.3 (W.D. Tenn. Aug. 30, 2005); Simmons
ex rel. Estate of Simmons v. Johnson, No. 7:05-00053, 2005 WL 2671537, at *2 (Oct. 20, 2005);
Bogus v. Ala. Dep’t of Corr., No. 7:06-1667, 2008 WL 11379957, at *29–30 (N.D. Ala. Sept. 22,
2008); Tretter v. Pa. Dep’t of Corr., 558 F. App’x 155, 157–58 (3d Cir. 2014) (reversing dismissal
of suit filed by mother and administratrix of prisoner’s estate and finding that she did not have to
exhaust remedies under the Federal PLRA); see also Dunn v. Dunn, 219 F. Supp. 3d 1163, 1176
(M.D. Ala. 2016) (“This accords with the sensible conclusions reached by a number of other courts
that the estates and guardians of prisoners are not ‘prisoners’ and are therefore not subject to the
PLRA’s exhaustion requirement.” (collecting cases, including Tretter)). Thus, when looking to

the Federal PLRA by analogy, this Court’s conclusion holds true.
Additionally, the intent behind the Federal PLRA also supports the Court’s conclusion that
Louisiana’s PLRA does not apply to survivor and wrongful death actions. As the Fifth Circuit has
recognized, one of the purposes of that federal law is “the goal of giving officials ‘time and
opportunity to address complaints internally,’ ” Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir.
2004) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)); see also Johnson v. Guillot, No. 22-
584, 2022 WL 19039742, at *2 (M.D. La. Dec. 16, 2022) (describing this as one of the “principal
purposes” of the Federal PLRA (citing Johnson and Porter)), report and recommendation adopted,
No. 22-584, 2023 WL 2531478 (M.D. La. Mar. 15, 2023. However, this purpose is not served in
survival and wrongful death actions, where all of the damages have been sustained, and there is no

corrective action that could possibly take place. For this additional reason, the Federal PLRA
supports this Court’s decision.
Even putting this aside, “all laws pertaining to the same subject matter must be interpreted
in pari materia, or in reference to each other,” Pierce Founds., 190 So. 3d 298 at 303, and
comparing the Louisiana PLRA to other Louisiana laws involving exhaustion strengthens this
Court’s conclusion. For example, unlike the Louisiana PLRA, the Louisiana Legislature explicitly
provided for a decedent’s descendants needing to exhaust administrative remedies in the Louisiana
Medical Malpractice Act (“LMMA”). In drafting the LMMA, the Louisiana Legislature
specifically provided that a request for a medical review panel must include “[t]he name of only
one patient for whom, or on whose behalf, the request for review is being filed . . . .” La. Rev. Stat.
§ 1231.8(A)(b)(ii) (emphasis added). As evidenced by Louisiana jurisprudence, La. Rev. Stat. §
1231.8(A)(b)(ii) requires a decedent’s descendant to first go through a medical review panel before
bringing forth a decedent’s medical malpractice claim in court. See, e.g., Medical Review

Complaint by Downing, 2018-1027 (La. App. 4d Cir. 5/8/19), 272 So. 3d 55 (in which a decedent’s
estate first filed its medical malpractice wrongful death and survival claims with the medical
review panel). That the Louisiana Legislature could have included in the PLRA a specific
requirement that a prisoner’s survivors exhaust remedies before filing suit (as it did with LMMA)
but did not, supports this Court’s conclusion.
4. Livingston’s Interpretation is Faulty
Indeed, the Parish’s entire argument rests on two Louisiana appellate decisions—Williams
v. LaSalle Corr. Ctr. L.L.C., 51,260 (La. App. 2 Cir. 4/5/17), 217 So. 3d 1219, and Kent v. State
Through Dep’t of Pub. Safety & Corr., 2014-1010 (La. App 1 Cir. 9/23/14), 2014 WL 12569755,
writ denied, 2014-2221 (La. 1/9/15), 157 So. 3d 1107. These cases have found that “survival and

wrongful death claims constitute ‘civil actions with respect to prison conditions,’ under La. R.S.
15:1181(2) of the Prison Litigation Reform Act . . . .” Kent, 2014 WL 12569755, at *1; see also
Williams, 217 So. 3d 1219, 1226. Under the logic of Williams and Kent, since “civil action with
respect to prison conditions” has the same definition as “prisoner suit,” and since “[n]o prisoner
suit shall assert a claim under state law until such administrative remedies as are available are
exhausted[,]” La. Rev. Stat. § 15:1184(A)(2), then, Livingston argues, survivors and wrongful
death beneficiaries bringing “prisoner suits” must exhaust administrative remedies.
But, there are several problems with Livingston’s position and with these cases. First, the
issue before the Williams and Kent courts was whether a wrongful death and survival action is
subject to the Louisiana PLRA’s venue requirements. See Williams, 217 So. 3d 1219; Kent, 2014
WL 12569755. Louisiana Revised Statutes § 15:1184(F) provides:
The exclusive venue for delictual actions for injury or damages shall
be the parish where the prison is situated to which the prisoner was
assigned when the cause of action arose. Upon consent of all parties,
the court may transfer the suit to a parish in which venue would
otherwise be proper.

La. Rev. Stat. § 15:1184(F) (emphasis added). Since the issue before this Court deals with
exhausting administrative remedies under the Louisiana PLRA rather than the statute’s venue
requirements, Williams and Kent are distinguishable. Because both of these cases dealt with the
venue issue only, neither decision was required to confront the issue of requiring the survivors of
a prisoner who dies in prison to comply with exhaustion requirements about which they are
unaware and which are not publicly available to them.
More fundamentally, as the Fifth Circuit has recognized, “[t]hree [court of appeal]
decisions do not jurisprudence constante make.” Jorge-Chavelas, 917 F.3d at 853. Even if
Williams and Kent directly support Livingston’s position, that alone is not enough under
Louisiana’s civilian tradition to trump either the clear and unambiguous language of the statute or
Louisiana law’s other methods of statutory interpretation used above.
5. Summary of Louisiana PLRA Ruling
In sum, the plain language of the Louisiana PLRA provides that it applies to only “prisoner
suits”—i.e., suits involving prisoners. Moreover, this interpretation best conforms both to the
legislative intent and to other similar laws involving exhaustion. Livingston’s interpretation to the
contrary is misguided; not only does it conflict with the plain language of the statute, but it also
leads to absurd results. Consequently, this Courts holds that Plaintiffs are not subject to the
Louisiana PLRA’s administrative-exhaustion requirement. Livingston’s Motion to Dismiss on this
issue is thus denied.
IV. MOTION TO DISMISS: FAILURE TO STATE A CLAIM
A. Rule 12(b)(6) Standard

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’ ” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(quoting Fed. R. Civ. P. 8(a)(2)). “Specific facts are not necessary; the statement need only ‘ “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” ’ ” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Federal pleading rules . . . do
not countenance dismissal of a complaint for imperfect statement of the legal theory supporting
the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (citation omitted).
Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has
explained:
The complaint (1) on its face (2) must contain enough factual matter
(taken as true) (3) to raise a reasonable hope or expectation (4) that
discovery will reveal relevant evidence of each element of a claim.
“Asking for [such] plausible grounds to infer [the element of a
claim] does not impose a probability requirement at the pleading
stage; it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal [that the elements of the claim
existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (alterations in original)
(footnotes omitted) (quoting Twombly, 550 U.S. at 556).
Later, in In re Great Lakes Dredge & Dock Co. LLC., 624 F.3d 201 (5th Cir. 2010), the
Fifth Circuit explained:
To avoid dismissal [under Fed. R. Civ. P. 12(b)(6)], “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662 [ ] (2009) (quoting [Twombly, 550 U.S. at 570]). To be
plausible, the complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 . . . . In deciding whether the complaint states a valid
claim for relief, we accept all well-pleaded facts as true and construe
the complaint in the light most favorable to the plaintiff. [Doe v.
Myspace, 528 F.3d 413, 418 (5th Cir. 2008)] (citing [Hughes v.
Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001)]). We do not
accept as true “conclusory allegations, unwarranted factual
inferences, or legal conclusions.” Ferrer v. Chevron Corp., 484 F.3d
776, 780 (5th Cir. 2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d
690, 696 (5th Cir. 2005)); see also Iqbal, [556 U.S. at 664] (“While
legal conclusions can provide the complaint’s framework, they must
be supported by factual allegations.”).

Id. at 210.

Applying the above case law, our brother in the Western District of Louisiana has stated:

Therefore, while the court is not to give the “assumption of truth” to
conclusions, factual allegations remain so entitled. Once those
factual allegations are identified, drawing on the court’s judicial
experience and common sense, the analysis is whether those facts,
which need not be detailed or specific, allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” [Iqbal, 556 U.S. at 678]; Twombly, 55[0] U.S. at 556 [.]
This analysis is not substantively different from that set forth
in Lormand, supra, nor does this jurisprudence foreclose the option
that discovery must be undertaken in order to raise relevant
information to support an element of the claim. The standard, under
the specific language of Fed. R. Civ. P. 8(a)(2), remains that the
defendant be given adequate notice of the claim and the grounds
upon which it is based. This standard is met by the “reasonable
inference” the court must make that, with or without discovery, the
facts set forth a plausible claim for relief under a particular theory
of law provided that there is a “reasonable expectation” that
“discovery will reveal relevant evidence of each element of the
claim.” Lormand, 565 F.3d at 257; Twombly, 55[0] U.S. at 556 [.]

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3
(W.D. La. Feb. 9, 2011) (citation omitted).
Afterward, in Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787 (5th Cir. 2011),
the Fifth Circuit explained:
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” A claim for relief is plausible on its face
“when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.” A claim for relief is implausible on its face
when “the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct.”

Id. at 796 (internal citations omitted).
Finally, in Thompson v. City of Waco, Texas, 764 F.3d 500 (5th Cir. 2014), the Fifth Circuit
recently summarized the Rule 12(b)(6) standard as thus:
We accept all well-pleaded facts as true and view all facts in the
light most favorable to the plaintiff. We need not, however, accept
the plaintiff’s legal conclusions as true. To survive dismissal, a
plaintiff must plead enough facts to state a claim to relief that is
plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged. Our task, then, is to determine whether the plaintiff stated
a legally cognizable claim that is plausible, not to evaluate the
plaintiff’s likelihood of success.

Id. at 502–03 (internal citations and quotations omitted).
Additionally, “[i]n determining whether a plaintiff’s claims survive a Rule 12(b)(6) motion
to dismiss, the factual information to which the court addresses its inquiry is limited to (1) the facts
set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which
judicial notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc.
v. Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019) (citations omitted). However, “[a]lthough
a ‘court may also consider documents attached to either a motion to dismiss or an opposition to
that motion when the documents are referred to in the pleadings and are central to a plaintiff's
claims,’ . . . the court need not do so.” Brackens v. Stericycle, Inc., 829 F. App’x 17, 23 (5th Cir.
2020) (per curiam) (quoting Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d
631, 635 (5th Cir. 2014)). See also id. (finding no abuse of discretion “in excluding . . . exhibits,
even though some were referenced in [plaintiff’s] pleading”) (citing Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 338 (5th Cir. 2008) (“using permissive language regarding a court’s ability to
rely on documents incorporated into the complaint by reference”)).

B. Parties’ Arguments
In the event that this Court does find that it has subject matter jurisdiction over Plaintiffs’
claims, Livingston argues that Plaintiffs are not entitled to attorney’s fees and damages under the
LHRA. (Doc. 5-1 at 8.) The Parish contends that under this statute, “only the rights of access to
goods and services are protected, not the content of the goods and services.” (Id. at 9.) Rather than
alleging that Mr. Abshire did not receive medical services at LPDC, Plaintiffs instead disagree
with the type of medical treatment that Mr. Abshire received. (Id.) Therefore, Plaintiffs have not
stated a claim for which relief can be granted under the LHRA. (Id.) Likewise, Plaintiffs failed to
establish that Mr. Abshire was “disabled,” as is required to receive damages under this statute. (Id.
at 9–10.) To qualify as “disabled,” Mr. Abshire would have had to “experience[] substantial

limitations to several major life activities.” (Id. at 10 (citation omitted).) Livingston argues that
Plaintiffs have not alleged facts in their Complaint to support such an assertion; thus, dismissal
under Federal Rule of Civil Procedure 12(b)(6) is proper. (Id.)
Plaintiffs respond that they alleged a disability to sustain their claim under the LHRA
because Mr. Abshire’s cancer qualifies as a per se disability. (Doc. 10 at 8.) Louisiana Revised
Statute § 51:2232(3)(a) and the ADA, 42 U.S.C. § 12102(1), as Plaintiffs assert, share almost
verbatim definitions for the term “disability.” (Id.) Since cancer qualifies as a per se disability
under the ADA and the LHRA similarly defines disabilities, Plaintiffs have alleged a sufficient
disability under the LHRA through alleging that Mr. Abshire had cancer. (Id. at 8–9.)
Plaintiffs also argue that they alleged adequate facts to support their claim that Mr. Abshire
experienced discrimination, as there is case law to suggest that LPDC’s failure to provide Mr.
Abshire a necessary medical device related to his disability constitutes discrimination. (Id. at 9–
12.) Thus, Plaintiffs have alleged sufficient facts to withstand their claim under the LHRA, that

Mr. Abshire was discriminated against due to his disability in violation of the ADA, and by
extension the LHRA. (Id. at 9.)
In reply, Defendants argue that under the LHRA “only the rights of access to goods and
services are protected, not the content of the goods and services.” (Doc. 16 at 3.) Further, the
LHRA is less expansive than the ADA. (Id.) While an allegation of dissatisfaction of medical
services may be enough to sustain an ADA claim, it is not enough to support a claim under the
less-expansive LHRA. (Id.) Therefore, Plaintiffs have failed to state a valid claim under the LHRA
to be entitled to attorney’s fees under the Act. (Id. at 3–4.)
C. Law and Analysis
1. The LHRA Generally

Under the LHRA:
Any person deeming himself injured by any alleged violation of the
provisions of [this Act] shall have a civil cause of action in district
court to enjoin further violations and to recover the actual damages
sustained by him, together with the costs of court and a reasonable
fee for his attorney of record, all of which shall be in addition to any
other remedies contained in this [Act].

La. Rev. Stat. § 51:2264. The Act further provides:

[I]t is a discriminatory practice for a person to deny an individual
the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, and accommodations of a place of public
accommodation, resort, or amusement, as defined in this Chapter,
on the grounds of race, creed, color, religion, sex, age, disability, as
defined in R.S. 51:2232, or national origin.
Id. § 51:2247 (emphasis added). Louisiana courts can look to the ADA for guidance when
interpreting the LHRA. See, e.g., Cougle v. Berkshire Life Ins. Co. of Am., 429 F. Supp. 3d 208,
217–18 (E.D. La. 2019).
2. Mr. Abshire’s Cancer is a “Disability” Under the LHRA

For their LHRA claim to survive a motion to dismiss, Plaintiffs need to have alleged a
disability, as defined by that law, in their Complaint. Louisiana Revised Statutes § 51:2232 defines
“disability” as follows:

“Disability” means a physical or mental impairment that
substantially limits one or more of the major life activities of the
individual, a record of such impairment, or being regarded as having
such an impairment. For purposes of all laws which incorporate by
reference, apply to, or rely for meaning upon the term disability as
defined herein, the terms used in this definition have the following
meanings:

(i) “Major life activities” includes functions such as
caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing,
learning, and working.

(ii) “Mental impairment” means any mental or
psychological disorder, such as intellectual
disability, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.

(iii) “Physical impairment” means any physiological
disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the
following body systems: neurological,
musculoskeletal, special sense organs, respiratory,
including speech organs, cardiovascular,
reproductive, digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine.

La. Rev. Stat. § 51: 2232(3).
Louisiana Revised Statutes § 51:2232’s definition of “disability” is almost verbatim the
ADA’s definition of “disability.” See 42 U.S.C. § 12102. Cancer is a per se disability under the
ADA. 28 C.F.R. § 35.108 (“Disability means, with respect to an individual: [a] physical or mental
impairment that substantially limits one or more of the major life activities . . . . Physical or mental

impairment means . . . cancer . . . . The [following] types of impairments described in this
paragraph may substantially limit additional major life activities[:] . . . Cancer . . . .”).
Here, Plaintiffs clearly allege that Mr. Abshire had cancer, (Doc. 1 at ¶¶ 22–24). Given the
facts that (1) there is a lack of Louisiana jurisprudence on whether cancer is a disability under the
LHRA; (2) that the LHRA and the ADA share an almost verbatim definition of “disability;” and
(3) that cancer is a per se disability under the ADA, the Court finds that Plaintiffs have adequately
pled a disability for purposes of the LHRA. Accordingly, Livingston’s Motion to Dismiss will be
denied on this issue.
3. Mr. Abshire’s Requested Accommodation Was Reasonable
a. Applicable Law

While Plaintiffs have alleged a disability under the LHRA, for their claims under La. Rev.
Stat. § 51:2264 for damages, attorney’s fees, and court costs to survive a motion to dismiss,
Plaintiffs must sufficiently allege that LPDC denied Mr. Abshire “the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, and accommodations” of its services. La.
Rev. Stat. § 51:2247 (emphasis added). “Because no Louisiana court has applied the LHRA in this
context, the Court again turns to the ADA and its caselaw as a reference.” Cougle, 429 F. Supp.
3d at 217.
As explained above, “Title II of the ADA provides: ‘[N]o qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.’ ” Cadena v. El Paso Cnty., 946 F.3d 717, 723 (5th Cir. 2020) (alteration in
original) (quoting 42 U.S.C. § 12132). Under the ADA, “prisons are public entities that may not
exclude disabled individuals from participation in or deny them the benefits of their services,

programs, or activities.” Id. (citing Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210
(1998)).
In Cadena, the Fifth Circuit laid out the appropriate standard to apply for ADA claims of
this nature:
To make out a prima facie case under Title II or the Rehabilitation
Act, a plaintiff must show “(1) that he is a qualified individual within
the meaning of the ADA; (2) that he is being excluded from
participation in, or being denied benefits of, services, programs, or
activities for which the public entity is responsible, or is otherwise
being discriminated against by the public entity; and (3) that such
exclusion, denial of benefits, or discrimination is by reason of his
disability.” Melton v. [Dall.] Area Rapid Transit, 391 F.3d 669,
671–72 (5th Cir. 2004). “In addition to their respective prohibitions
of disability-based discrimination, both the ADA and the
Rehabilitation Act impose upon public entities an affirmative
obligation to make reasonable accommodations for disabled
individuals.” Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,
454 (5th Cir. 2005)[.] . . . For this type of claim, a plaintiff must
show that the entity knew of the disability and its consequential
limitations, either because the plaintiff requested an accommodation
or because the nature of the limitation was open and obvious.
Windham [v. Harris Cty., 875 F.3d 229, 236–37 (5th Cir. 2017)]
(citing Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164 (5th Cir.
1996)). A plaintiff’s requested accommodation must also be
“reasonable,” meaning that it does not impose undue financial or
administrative burdens or “fundamentally alter the nature of the
service, program, or activity.” 28 C.F.R. § 35.130(b)(7); see also
Frame v. City of Arlington, 657 F.3d 215, 232 (5th Cir. 2011) (en
banc).

Cadena, 946 F.3d at 723–24.
Lastly, if a plaintiff seeks compensatory damages, he must demonstrate that the
“discrimination was intentional.” Id. at 724 (citing Delano-Pyle v. Victoria Cnty., 302 F.3d 567,
574 (5th Cir. 2002)). While not precisely defined, “the cases to have touched on the issue require
‘something more than “deliberate indifference,” ’ despite most other circuits defining the

requirement as equivalent to deliberate indifference.” Id. (quoting Miraglia v. Bd. of Supervisors
of La. State Museum, 901 F.3d 565, 575 (5th Cir. 2018) (quoting Delano-Pyle, 302 F.3d at 575)).
The Fifth Circuit has illustrated this point with the following examples:
In practice, this court has affirmed a finding of intentional
discrimination when a county deputy knew that a hearing-impaired
suspect could not understand him, rendering his chosen method of
communication ineffective, and the deputy made no attempt to
adapt. Delano-Pyle, 302 F.3d at 575–76. The court has also found
that a plaintiff created a genuine dispute as to intentional
discrimination when the evidence indicated that “on several
occasions, an interpreter was requested but not provided,” and one
of the forms of communication that a hospital used to speak with a
hearing-impaired patient was often ineffective. Perez v. [Drs.] Hosp.
at Renaissance, Ltd., 624 F. App’x 180, 185 (5th Cir. 2015).

Id. at 724.
Several Fifth Circuit cases have held that a reasonable juror could find an ADA violation
when the evidence, viewed in a light most favorable to the plaintiff, suggested that a prison failed
to provide inmates with medical equipment or devices, thus denying the inmate a reasonable
accommodation. See id. at 725 (denying a motion for summary judgment under the ADA when
there were genuine issues of material fact as to defendant-prison’s failure to provide a prisoner
various forms of medical care, modified food delivery, and a wheelchair); Mealy v. Gautreaux,
No. 16-716, 2020 WL 515853, at *10–11 (M.D. La. Jan. 31, 2020) (deGravelles, J.) (denying a
motion for summary judgment under the ADA when there were genuine issues of material fact as
to defendant-prison’s failure to provide a prisoner a wheelchair; accessible shower chair; and
access to a regular supply of adult diapers, catheters, and suppositories.). These cases are
consistent with ADA regulatory guidance:
The Department wishes to emphasize that detention and correctional
facilities are unique facilities under title II. Inmates cannot leave the
facilities and must have their needs met by the corrections system,
including needs relating to a disability. If the detention and
correctional facilities fail to accommodate prisoners with
disabilities, these individuals have little recourse, particularly when
the need is great (e.g., an accessible toilet; adequate catheters; or a
shower chair). It is essential that corrections systems fulfill their
nondiscrimination and program access obligations by adequately
addressing the needs of prisoners with disabilities, which include,
but are not limited to, proper medication and medical treatment,
accessible toilet and shower facilities, devices such as a bed transfer
or a shower chair, and assistance with hygiene methods for prisoners
with physical disabilities.

28 C.F.R. Pt. 35, App. A, Title II Regulations 2010 Guidance and Section-by-Section Analysis,
Effective March 15, 2011.
b. Analysis
Considering this analogous standard, the Court finds that Plaintiffs stated a viable claim
under the LHRA. As Plaintiffs have alleged in their Complaint, Mr. Abshire requested his Optune
Device, his daughters provided LPDC the device, but LPDC never gave Mr. Abshire the device.
(Doc. 1 at ¶¶ 40–41, 104.) Livingston cannot seriously dispute that it did not know of Mr.
Abshire’s disability or the limitations imposed by it, (see id. at ¶¶ 33–37), and its failure to provide
the device despite full knowledge of the harm that it could and did impose on Mr. Abshire amounts
to more than deliberate indifference under the above authorities. Thus, LPDC denied Mr. Abshire
“the full and equal enjoyment” of its medical services by denying him his Optune Device, an
accommodation which, again, his daughters provided to LPDC.
Nor can Livingston seriously argue that Mr. Abshire’s requested accommodation
“impose[d] undue financial or administrative burdens or fundamentally alter[ed] the nature of the
service, program, or activity.” Cadena, 946 F.3d at 723–24 (cleaned up). Preliminarily, this is an
affirmative defense, see Greer v. Richardson Indep. Sch. Dist., 472 F. App’x 287, 292 (5th Cir.
2012), so this defense must “appear[ ] on the face of the pleadings” for “dismissal under Rule
12(b)(6) [to] be appropriate,” Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 726 (5th

Cir. 2013) (citations omitted); see also 5B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (3d ed. 2022) (“As the case law makes clear, the complaint also is
subject to dismissal under Rule 12(b)(6) when its allegations indicate the existence of an
affirmative defense that will bar the award of any remedy; but for this to occur, the applicability
of the defense has to be clearly indicated and must appear on the face of the pleading to be used as
the basis for the motion.”).
Here, the only thing remotely touching on this defense on the face of the pleading is the
Parish’s ignorance of how to operate the device (despite having an instruction manual) and the
presence of a pregnant employee at the facility. (Doc. 1 at ¶¶ 45–46.) The Parish makes no effort
to explain how this might constitute an undue burden or to argue this issue at all. Thus, any such

defense is waived for the present motion. See, e.g., Payton v. Town of Maringouin, No. 18-563,
2021 WL 2544416, at *26 (M.D. La. June 21, 2021) (deGravelles, J.) (collecting authorities on
waiver).
Finally, Livingston Parish’s assertion that the LHRA only applies to access rather than
content of goods and services is without merit. The Parish bases its entire argument on a single
Eastern District of Louisiana decision, Cougle, but this position is misplaced for several reasons.
First, Cougle is distinguishable. Cougle involved the LHRA and life insurance benefits,
not reasonable modifications in prisons. Cougle, 429 F. Supp. 3d 208.
Second, Livingston argues, based on Cougle, that the LHRA is narrower than the ADA,
but, for purposes of this issue, the Court disagrees. In Cougle, Plaintiff argued that the LHRA was
“necessarily broader than the ADA, and therefore the ADA [was] of limited value in this context.”
Id. at 218. The Court rejected that argument, saying “The LHRA provides that disabled individuals

are entitled to ‘equal enjoyment’ of goods and services in places of public accommodation. This
language is perhaps even less expansive than that of the ‘full and equal enjoyment’ language of
the ADA . . . .” Id. at 218–19 (citing 42 U.S.C. § 12182(a)). But Cougle’s assessment that the
statute was “perhaps even less expansive” is hardly definitive guidance on the issue, particularly
in light of the following.
Third, Cougle in fact strengthens Plaintiffs’ position; just as Cougle looked to Fifth Circuit
law interpreting the ADA with respect to insurance policies, so too should, here, the Court look to
the ADA in the context of prisons and reasonable modifications. See id. at 217 (“Because no
Louisiana court has applied the LHRA in this context, the Court again turns to the ADA and its
caselaw as a reference.”).

Is sum, Cougle is distinguishable and equivocal on the main issue Livingston relies upon
and ultimately favorable to Plaintiff. For all these reasons, and the reasons detailed above, the
Court finds that Plaintiffs have adequately pled that Livingston denied Mr. Abshire “the full and
equal enjoyment” of its medical services by denying him his Optune Device.
4. Summary of LHRA Ruling
In sum, Plaintiffs have stated cognizable claims under the LHRA. First, since cancer is a
per se disability under the ADA and, by extension, the LHRA, Plaintiffs sufficiently alleged a
disability under the LHRA by alleging Mr. Abshire had cancer. Second, Plaintiffs have adequately
pled that LPDC discriminated against Mr. Abshire by not allowing him to have access to his
Optune Device that his daughters provided to LPDC, which was a reasonable accommodation for
his condition. Further, Livingston knew of Mr. Abshire’s condition and his resulting limitations,
knew of the necessity of the device, and yet, according to the well pleaded allegations, acted with
“something more than deliberate indifference” to that need, according to the above authorities.

Therefore, the Motion to Dismiss the LHRA claim will be denied.
V. CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Dismiss, (Doc. 5), filed by Defendant Livingston
Parish is DENIED.
Signed in Baton Rouge, Louisiana, on March 30, 2023.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192614. Public record. Not legal advice.