Marlowe v. LeBlanc

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CHRISTOPHER MARLOWE CIVIL ACTION

VERSUS

JAMES LEBLANC, ET AL. NO. 18-00063-BAJ-EWD

RULING AND ORDER

On July 5, 2022, the U.S. Court of Appeals for the Fifth Circuit returned this

action to this Court for a second look at whether Plaintiff’s personal-capacity Eighth

Amendment claims survive certain Defendants’ invocation of qualified immunity. In

doing so, the Circuit also instructed the Court to “carefully disaggregate all personal-

capacity claims from official-capacity claims.” (Doc. 148 at p. 8).

Heeding the Fifth Circuit’s call, and with the benefit of the Circuit’s guidance,

the Court now dismisses all Defendants named in Plaintiff’s official-capacity claims

(Counts 1 and 2) except Louisiana Department of Public Safety and Corrections

(DPSC) Secretary James LeBlanc. Additionally, the Court now dismisses certain

Defendants named in Plaintiff’s personal-capacity deliberate indifference claims

(Count 3), and all Defendants named in Plaintiff’s personal-capacity failure to train

and supervise claims (Count 4). As a result if this Order, and the Court’s prior Order

of October 26, 2020 (Doc. 136), Plaintiff’s official-capacity claims (Counts 1 and 2) will

proceed against DPSC Secretary LeBlanc, only; Plaintiff’s personal-capacity

deliberate indifference claims (Count 3) will proceed against Elayn Hunt Correctional

Center (EHCC) EMT Fallon Stewart, EHCC Master Sergeant Angel Horn, EHCC

Master Sergeant Rolanda Palmer, and EHCC Sergeant Chermaine Brown, only; and

Plaintiff’s statutory claims under the Americans with Disabilities Act, Americans

with Disabilities Amendment Act, and Rehabilitation Act (collectively, “ADA”) (Count

5) will proceed against DPSC only. All other Counts and Defendants will be

dismissed.

I. RELEVANT BACKGROUND

The Court has already set forth the relevant allegations and procedural

background, at Sections I and II of its October 26 Order granting in part Defendants’

collective Motion To Dismiss. (Doc. 136 at pp. 2-5). The Court incorporates those

sections by reference, as if fully set forth herein.

To quickly recap, Plaintiff is an inmate in DPSC custody. Until January 2019,

Plaintiff was incarcerated at EHCC. Now he resides at Rayburn Correctional Center.

Plaintiff suffers from diabetes, and contends that the medical treatment and food

options provided to him fall below even the most basic standards required for his

medical condition, violating constitutional, statutory, and state law duties of care.

Plaintiff’s Second Amended Complaint (SAC) names 18 Defendants, ranging from

DPSC at the top, to the Correctional Officers that administered Plaintiff’s daily

insulin and other medications at EHCC “pill call.”

Most recently, this Court granted in part Defendants’ Motion To Dismiss (Doc.

84), dismissing Plaintiff’s state law claims; permitting Plaintiff’s ADA claim to

proceed; and taking a middling path as to Plaintiff’s Eighth Amendment claims,

dismissing some Defendants but allowing Plaintiff’s claims to proceed against others.

(Doc. 136). The Court’s muddled analysis of Plaintiff’s constitutional claims tracked

closely the parties’ presentation in their respective Rule 12 papers, but nonetheless

drew the Fifth Circuit’s reproach after the Defendants not dismissed sought

immediate review of this Court’s denial of qualified immunity.

Consistent with the Circuit’s instructions on remand, the Court now expands

its analysis of Plaintiff’s constitutional claims and Defendants’ qualified immunity

defenses. First, as directed, the Court “disaggregate[s] all personal-capacity claims

from official-capacity claims.” (Doc. 148 at p. 8). Second, for all personal-capacity

claims not previously dismissed,1 the Courts conducts the following qualified

immunity analysis as to each Defendant:

The first question is (a) whether [the Defendant] violated a clearly

established right. In considering that question, the court must (b) frame

the constitutional question with specificity and granularity. With the

question thus framed, the court should (c) inquire whether existing

precedent places the statutory or constitutional question—here,

whether [the Defendant] violated Marlowe’s rights—beyond debate. And

finally, the court should (d) be sure to apply the modified motion-to-

dismiss standard that governs in the context of qualified immunity.

(Id. at pp. 7-8 (quotation marks and citations omitted)).

II. ANALYSIS

A. Standard

At the Rule 12 stage, “[t]he critical issue is whether the complaint contains

‘sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Doe v. Bd. of Supervisors of Univ. of Louisiana Sys., --- F.Supp.3d ----,

1 The Court’s prior Order dismissed Plaintiff’s personal-capacity deliberate indifference

claims (Count 3) against EHCC Medical Director Dr. Preety Singh, EHCC Nurse Practitioner

Polly Smith, EHCC EMT Elizabeth Gauthreaux, and EHCC Pharmacist Jonathan Travis.

(Doc. 136 at pp. 15-16, 17-19, 25). The Fifth Circuit does not take issue with these dismissals,

and the Court does not revisit them here.

2023 WL 143171, at *8 (M.D. La. Jan. 10, 2023) (Jackson, J.) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). “Determining whether a complaint states a plausible

claim for relief [is] . . . a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Ashcroft, 556 U.S. at 679. Facial

plausibility exists “when the plaintiff pleads factual content that allows the court to

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

alleged.” Id. at 678. Hence, the complaint need not set out “detailed factual

allegations,” but something “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action” is required. Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). When conducting its inquiry, the Court accepts all well-

pleaded facts as true and views those facts in the light most favorable to the plaintiff.

Bustos v. Martini Club Inc., 599 F.3d 458, 461 (5th Cir. 2010).

B. Discussion

The Eighth Amendment forbids cruel and unusual punishments. This

prohibition includes “deliberate indifference to serious medical needs of prisoners.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976). The Defendants here do not contest that

diabetes is a serious condition that requires medical attention.

As such, the Court’s analysis of Plaintiff’s Eighth Amendment claims is driven

entirely by whether Defendants’ alleged response(s) to Plaintiff’s diabetes amounted

to “deliberate indifference.” The Fifth Circuit cautions that “deliberate indifference”

is “a demanding standard.” Gibson v. Collier, 920 F.3d 212, 219 (5th Cir. 2019).

Negligence or inadvertence is not enough. A complaint that a physician

has been negligent in diagnosing or treating a medical condition does

not state a valid claim of medical mistreatment under the Eighth

Amendment. An inadvertent failure to provide adequate medical care

cannot be said to constitute an unnecessary and wanton infliction of pain

or to be repugnant to the conscience of mankind.

Rather, the inmate must show that officials acted with malicious

intent—that is, with knowledge that they were withholding medically

necessary care. The plaintiff must show that officials refused to treat

him, ignored his complaints, intentionally treated him incorrectly, or

engaged in any similar conduct that would clearly evince a wanton

disregard for any serious medical needs.

Id. at 219–20.

Still, despite being a high bar, deliberate indifference is not an impossible bar.

To the point, an inmate need not die or even suffer “serious illness” to establish

deliberate indifference. Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004) (“It is also

important to note that the inmate need not show that death or serious illness has

occurred.” (citing Helling v. McKinney, 509 U.S. 25, 32 (1993)).

i. Official-Capacity Claims For Injunctive And Declaratory

Relief (Counts 1 And 2)

As noted, on remand the Fifth Circuit instructs the Court to “disaggregate”

Plaintiff’s official-capacity claims from his personal-capacity claims. (Doc. 148 at p.

8). Point taken. This Court’s prior Order allowed Plaintiff to pursue his official-

capacity claims against multiple Defendants. This muddied the waters by creating

unnecessary redundancy. Official-capacity suits are “really suits against the

governmental entity”—here, DPSC, which is responsible for the conditions of

Plaintiff’s confinement at Rayburn (now) and EHCC (before). Goodman v. Harris

Cnty., 571 F.3d 388, 396 (5th Cir. 2009). DPSC Secretary LeBlanc—who oversees both

Rayburn and EHCC—is the appropriate Defendant to respond to these claims. See

id. Plaintiff’s official-capacity claims against all Defendants except DPSC Secretary

LeBlanc will be dismissed. As a result, all claims against Former DPSC Interim

Medical Director Dr. Pam Heard, current DPSC Medical Director Dr. John Morrison,

EHCC Assistant Warden Morgan LeBlanc, EHCC Assistant Warden Darryl

Campbell, and EHCC Food Manager Gail Levy are now dismissed, and these

Defendant will be dismissed from this action.2

In all other respects, the Court’s analysis of Plaintiff’s official-capacity claims

(Counts 1 and 2) set forth in its October 26 Order remains unchanged. Now aimed at

the proper respondent—DPSC Secretary LeBlanc—these claims will benefit from

discovery.

2 Due to inartful pleading, a short explanation is required. When introducing the Parties, the

operative Second Amended Complaint states that Plaintiff pursues claims against Dr. Pam

Heard and Dr. John Morrison in their official capacities only. (Doc. 64 at ¶ 9). Thereafter,

however, Plaintiff includes Dr. Heard and Dr. Morrison as named Defendants to Count 4,

Plaintiff’s personal-capacity failure to supervise and train claim. (Id. at ¶¶ 92-94). Rather

than addressing this confusion in his Rule 12 briefing, Plaintiff simply omits Dr. Heard and

Dr. Morrison from his personal-capacity claims analysis. (Doc. 92 at pp. 18-23). This Court

has often admonished that it will not speculate on arguments that have not been advanced,

or attempt to develop arguments on a party's behalf. Buchicchio v. LeBlanc, --- F.Supp.3d --

--, 2023 WL 2027809, at *10 n.6 (M.D. La. 2023) (Jackson, J.). Under the Court’s Local Civil

Rules, Plaintiff has abandoned his personal-capacity claims against Dr. Heard and Dr.

Morrison. See id.

The mixed messages continue. In its introduction, the Second Amended Complaint

states that Plaintiff pursues Assistant Warden Morgan LeBlanc, Assistant Warden Darryl

Campbell, and Food Manager Gail Levy in their “official and personal capacities.” (Doc. 64 at

¶ 9). Thereafter, however, Plaintiff lists “Morgan LeBlanc,” “Campbell,” and “Levy” only

among the Defendants to Count 2, Plaintiff’s official-capacity claim challenging the food

options available to diabetics. (Id. at ¶ 84). While the federal notice pleading standard is a

minimal bar, it requires at least that “defendants in all lawsuits must be given notice of the

specific claims against them.” Anderson v. U.S. Dep't of Hous. & Urb. Dev., 554 F.3d 525, 528

(5th Cir. 2008) (citing Fed. R. Civ. P. 8(a)(2)). Plaintiff has failed to provide Defendants

Morgan LeBlanc, Darryl Campbell, and Gail Levy notice of any specific personal-capacity

claim(s) against them, and his prefatory references to these Defendants’ “personal capacities”

will be disregarded. Moreover, Plaintiff’s Rule 12 briefing also omits these Defendants from

its personal-capacity claims analysis, thus abandoning any such claims. Supra, Buchicchio,

2023 WL 2027809, at *10 n.6.

ii. Personal-Capacity Claims For Damages (Counts 3 And 4)

Defendants invoke qualified immunity from Plaintiff’s claims for damages.

(Doc. 84-1 at p. 16-22). Qualified immunity shields a government official from

individual liability for civil damages when the “official’s conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” City of Escondido, Calif. v. Emmons, 139 S. Ct. 500, 503 (2019).

Its purpose is to strike a balance “between the interests in vindication of citizens’

constitutional rights and in public officials’ effective performance of their duties” by

making it possible for government officials to “reasonably anticipate when their

conduct may give rise to liability for damages.” See Anderson v. Creighton, 483 U.S.

635, 639 (1987) (quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). Put differently,

“[q]ualified immunity gives government officials breathing room to make reasonable

but mistaken judgments about open legal questions. When properly applied, it

protects all but the plainly incompetent or those who knowingly violate the law.”

Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quotation marks omitted).

The Fifth Circuit’s two-pronged test for qualified immunity asks (1) “whether

the facts, viewed in the light most favorable to the party asserting the injury, show

that the official’s conduct violated a constitutional right,” and (2) “whether the right

was ‘clearly established.’” Cunningham v. Castloo, 983 F.3d 185, 190-91 (5th Cir.

2020). A court may analyze these prongs in either order, and resolve the case on a

single prong. Id. at 190. Importantly, “[a]lthough nominally an affirmative defense,

the plaintiff has the burden to negate the assertion of qualified immunity once

properly raised.” Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009).

To determine whether a constitutional or statutory right was “clearly

established” at the time of the alleged violation, the Court looks for guidance from

controlling Supreme Court and Fifth Circuit authority. See McClendon v. City of

Columbia, 305 F.3d 314, 329 (5th Cir. 2002). “[I]n the absence of directly controlling

authority, a ‘consensus of cases of persuasive authority’ [from other Circuits] might,

under some circumstances, be sufficient to compel the conclusion that no reasonable

officer could have believed that his or her actions were lawful.” Id. (quoting Wilson

v. Layne, 526 U.S. 603, 604 (1999)). “We do not require a case directly on point, but

existing precedent must have placed the statutory or constitutional question beyond

debate.” al-Kidd, 563 U.S. at 741. Nonetheless, “[a] right is ‘clearly established’ only

if it is sufficiently clear that every reasonable official would have understood that

what he is doing violates that right.” Cunningham, 983 F.3d at 191 (quotation marks

omitted).

a. Deliberate Indifference (Count 3)

Consistent with the Fifth Circuit’s remand instructions, the Court re-evaluates

Plaintiff’s claims of deliberate indifference to his serious medical need (diabetes)

against Defendants EHCC EMT Fallon Stewart, EHCC Master Sergeant Angel Horn,

EHCC Master Sergeant Rolanda Palmer, EHCC Sergeant Chermaine Brown, and

EHCC Sergeant Chameka Johnson.

1. EHCC EMT Fallon Stewart

Plaintiff alleges that beginning in August 2016, he repeatedly reported

textbook symptoms of undiagnosed diabetes to “EMTs handling the sick call station

at EHCC,” including to EMT Fallon Stewart. Specifically, Plaintiff complained of

tingling, pain, numbness and cracking skin on his feet; blurred vision; shakiness,

frequent urination; extreme thirst and fatigue; and rapid weight loss (sixty pounds

in just three months). (Doc. 64 at ¶¶ 22-25). Finally, on November 10, 2016, EHCC

medical personnel tested Plaintiff’s blood-glucose, which showed that his glucose had

risen to an eye-popping and “life-threatening level of nearly 900 mg/dl.” (Id. at ¶ 32).

The next day, EHCC medical personnel ordered EMT Stewart to deliver Plaintiff “to

the acute treatment unit to undergo immediate treatment” for diabetic ketoacidosis.

(Id. at ¶ 33). Inexplicably, EMT Stewart ignored this command, “and left [Plaintiff]

untreated and unaware of his potentially fatal condition.” (Id. at ¶ 34). Four days

later, EHCC personnel “finally transported [Plaintiff] via ambulance to University

Hospital in New Orleans to receive emergency treatment and to prevent him from

slipping into a diabetic coma.” (Id.at ¶ 34). “University doctors diagnosed [Plaintiff]

with diabetes and told him he should have been dead in light of his extremely high

glucose and A1C levels.” (Id. at ¶ 35).

First, did EMT Stewart violate a clearly established right? Yes. The Eighth

Amendment protects prisoners from “deliberate indifference to serious medical

needs.” Estelle, 429 U.S. at 104. Defendants concede that diabetes is a serious medical

need, and challenge only whether Plaintiff’s allegations establish deliberate

indifference. Albeit a “demanding standard,” deliberate indifference is satisfied upon

a showing “that officials acted with malicious intent—that is, with knowledge that

they were withholding medically necessary care,” by, for example, refusing treatment

or ignoring a prisoner’s complaints. Gibson, 920 F.3d at 219-220. Plaintiff contends

that for months EMT Stewart knew of his reported complaints indicating

undiagnosed diabetes, and that on November 11, specifically, EMT Stewart knew

that Plaintiff’s blood-glucose had risen to a life-threatening level. Still, EMT Stewart

deliberately ignored a direct order to deliver Plaintiff to EHCC’s critical care unit,

leaving Plaintiff untreated for four days. Viewed in Plaintiff’s favor, these allegations

and the reasonable inferences drawn from them establish that EMT Stewart knew of

Plaintiff’s acute life-threatening condition—diabetic ketoacidosis—and intentionally

withheld medically necessary care, thus meeting the “deliberate indifference”

standard. Cf. Easter v. Powell, 467 F.3d 459, 464 & n.25 (5th Cir. 2006) (“deliberate

indifference” satisfied based on prison nurse’s four-hour failure to treat inmate

complaining of severe chest pain despite knowing that inmate “had a history of

cardiac problems” (collecting cases)); accord Lewis v. Cain, No. 15-cv-318, 2021 WL

1219988, at *42 (M.D. La. Mar. 31, 2021) (Dick, C.J.) (“The Fifth Circuit holds that,

when a gatekeeper to emergency care knowingly disregards a prisoner's complaints,

he acts with deliberate indifference to that [prisoner's] medical needs.” (citing

authorities)).

Second, did existing precedent place the constitutional question beyond

debate? Again, yes. True, Plaintiff fails to direct the Court to controlling authority

stating squarely that a prison official’s intentional failure to respond to an inmate’s

diabetic ketoacidosis establishes an actionable Eighth Amendment medical

indifference claim. But “a case directly on point” is not required. al-Kidd, 563 U.S. at

741. The real question is whether any reasonable official in EMT Stewart’s position

would know that deliberately withholding critical care in the face of an acute life-

threatening condition—be it diabetic ketoacidosis, heart attack, stroke, heat

exhaustion, a stab wound, or any of the myriad acute life-threatening conditions that

may arise in the prison context on any given day—violates the Eighth Amendment’s

prohibition against cruel and unusual punishment. The Fifth Circuit has long warned

that a prison official withholding care in such situations will be open to personal

liability for damages. See, e.g., Easter, 467 F.3d at 464, n.25. Closer to the point, the

Fifth Circuit and an overwhelming consensus of other Circuits have also held that

withholding care to an inmate suffering from diabetes—even undiagnosed diabetes—

will result in an actionable claim for damages under the Eighth Amendment. E.g.,

Slay v. Alabama, 636 F.2d 1045, 1046 (5th Cir. Unit B Feb. 1981); see also, e.g., Scinto

v. Stansberry, 841 F.3d 219, 230 (4th Cir. 2016); Sours v. Big Sandy Reg'l Jail Auth.,

593 F. App'x 478, 486 (6th Cir. 2014); Lolli v. Cnty. of Orange, 351 F.3d 410, 420 (9th

Cir. 2003); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582–83 (3d Cir.

2003); Egebergh v. Nicholson, 272 F.3d 925, 927–28 (7th Cir. 2001); Hunt v. Uphoff,

199 F.3d 1220, 1223–24 (10th Cir. 1999); Roberson v. Bradshaw, 198 F.3d 645, 648

(8th Cir. 1999); Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996); Carswell v. Bay

Cnty., 854 F.2d 454, 457 (11th Cir. 1988).

In short, EMT Stewart’s alleged deliberate withholding of medical treatment

in the face of Plaintiff’s diabetic ketoacidosis made it patently foreseeable that his

“conduct may give rise to liability for damages.” See Anderson, 483 U.S. at 639.

Plaintiff’s allegations overcome EMT Stewart’s qualified immunity defense.

2. EHCC Master Sergeant Angel Horn

Plaintiff’s allegations against Master Sergeant Angel Horn amount to the

following: after being diagnosed with diabetes, Plaintiff received his insulin and other

medication at EHCC “pill call.” Pill calls do not occur at regular times, and prisoners

are often “forced to stand in line for extended periods of time, including outdoors and

under harsh conditions,” making it all but impossible to “adhere to regular

medication regimens.” (Doc. 64 at ¶ 58). Master Sergeant Angel Horn is one of four

staff members that “manage” pill call, but she does not assist Plaintiff in determining

when to refill his prescriptions, which “causes lapses” in Plaintiff’s medication. (Id.

at ¶¶ 59-60). Master Sergeant Horn has ignored Plaintiff’s repeated complaints

regarding expired insulin. (Id. at ¶ 64). Going one step further, Master Sergeant Horn

has once “refused” to give Plaintiff insulin at pill call, and on several other occasions

has provided Plaintiff “the wrong medication.” (Id. at ¶¶ 64-66).

Here, again, did Master Sergeant Horn violate a clearly established right? Yes.

While failing to conduct pill calls at regular hours, failing to assist Plaintiff’s

medication management, and even providing Plaintiff “the wrong medication” may

be attributed to mere “negligence”—falling short of actionable deliberate

indifference—outright refusal to treat a known serious medical need establishes

“malicious intent” capable of sustaining an Eighth Amendment claim. Gibson, 920

F.3d at 219-20. Construing the allegations and inferences in Plaintiff’s favor, at least

once Sergeant Horn refused to provide him insulin despite knowing that he suffers

from diabetes. Plaintiff’s allegations establish a clear constitutional violation. Id.

And again, did existing precedent place the constitutional question beyond

debate? Yes, indeed. Here, in fact, the answer is abundantly clear. As indicated above,

for forty years the Fifth Circuit has held that deliberately withholding a diabetic

inmate’s insulin sufficiently states an actionable claim for “personal medical

mistreatment” under the Eighth Amendment. See Slay, 636 F.2d at 1046. And, of

course, this view has been echoed by a resounding chorus of Circuits in the decades

since. See, e.g., Scinto, 841 F.3d at 230; Sours, 593 F. App'x at 486; Lolli, 351 F.3d at

420; Natale, 318 F.3d at 582–83; Egebergh, 272 F.3d at 927–28; Hunt, 199 F.3d at

1223–24; Roberson, 198 F.3d at 648; Weyant, 101 F.3d at 857; Carswell, 854 F.2d at

457.

In sum, Master Sergeant Horn’s alleged deliberate refusal to provide

Plaintiff insulin to treat his diabetes made it patently foreseeable that her conduct

may give rise to liability for damages. Plaintiff’s allegations are sufficient to overcome

Master Sergeant Horn’s qualified immunity defense.

3. EHCC Master Sergeant Rolanda Palmer and

Sergeant Chermaine Brown

Plaintiff’s allegations against Master Sergeant Rolanda Palmer and Sergeant

Chermaine Brown are indistinguishable from Plaintiff’s allegations against Master

Sergeant Horn, to the letter. (See Doc. 64 at ¶¶ 58-60, 64-66). Most relevant, Plaintiff

alleges that Master Sergeant Rolanda Palmer and Sergeant Chermaine Brown also

once “refused” to give Plaintiff insulin at pill call. (Id. at ¶ 65). Thus, the same

analysis and result applies here: by allegedly refusing Plaintiff his insulin, Master

Sergeant Palmer and Sergeant Brown exhibited malicious intent sufficient to

establish deliberate indifference to Plaintiff’s diabetes, making it patently foreseeable

that their conduct may give rise to liability for damages, thereby scuttling their

qualified immunity defense at this stage.3

4. EHCC Sergeant Chameka Johnson

Finally, Sergeant Chameka Johnson. The allegations against Sergeant

Johnson are the same as those against Master Sergeant Horn, Master Sergeant

Palmer, and Sergeant Brown. (See Doc. 64 at ¶¶ 58-60, 64-66). But the same result

does not follow here. Why? Because as noted in Defendants’ Motion To Dismiss,

Sergeant Johnson is not listed among the named Defendants in the SAC. (Doc. 84 at

p. 1, n.1; see Doc. 64 at ¶ 9). Somehow, Plaintiff’s opposition blithely ignores this

deficiency, and even since filing his opposition Plaintiff has made no attempt to

correct it. The Fifth Circuit holds that “[a]n amended complaint supersedes the

original complaint and renders it of no legal effect unless the amended complaint

specifically refers to and adopts or incorporates by reference the earlier pleading.”

King v. Dogan, 31 F.3d 344 (5th Cir. 1994). Here, Plaintiff’s SAC did not incorporate

his earlier pleading(s), and so the SAC terminated Sergeant Johnson as a Defendant.

See, e.g., Damond v. LeBlanc, No. 12-cv-564, 2013 WL 3490734, at *1 n.2 (M.D. La.

July 9, 2013) (Brady, J), aff'd, 552 F. App'x 353 (5th Cir. 2014). Thus, Sergeant

Johnson must be dismissed.

3 It is of no concern at this stage that the same operative allegation—Defendants’ refusal to

give Plaintiff his insulin at pill call—sustains Plaintiff’s claims against Master Sergeant

Horn, Master Sergeant Palmer, and Sergeant Brown. For now, the Court’s analysis is cabined

by the allegations of the SAC, and, in the light most favorable to Plaintiff, the SAC alleges

that on at least one occasion each of these Defendants “refused to give him insulin.” (Doc. 64

at ¶ 65). Discovery will flesh out the extent to which each or all of these Defendants withheld

Plaintiff’s insulin. Of course, depending on what evidence turns up in discovery, these

Defendants may seek dismissal of Plaintiff’s claims again at summary judgment.

b. Failure To Supervise And Train (Count 4)

Consistent with the Fifth Circuit’s instructions, the Court also re-evaluates

Plaintiff’s “failure to supervise and train” claims (Count 4). Plaintiff pursues these

claims against Defendants DPSC Secretary James LeBlanc, former DPSC Medical

Director Dr. Raman Singh, EHCC Warden Timothy Hooper, EHCC Deputy Warden

Stephanie Michel, and EHCC Medical Director Dr. Preety Singh.4

A supervisory official who is not directly involved in a constitutional violation

may nonetheless be liable for his failure to adequately train or supervise his

subordinates, if such failures causally result in a constitutional injury. Buchicchio,

2023 WL 2027809, at *13-14. A failure to supervise and train claim requires the

plaintiff to show:

(1) the supervisor either failed to supervise or train the subordinate

official; (2) a causal link exists between the failure to train or supervise

and the violation of the plaintiff’s rights; and (3) the failure to train or

supervise amounts to deliberate indifference.

Goodman v. Harris Cty., 571 F.3d 388, 395 (5th Cir. 2009). In this context, “deliberate

indifference” means “a disregard for a known or obvious consequence of his actions.”

Crittindon v. LeBlanc, 37 F.4th 177, 186 (5th Cir. 2022)). This typically requires

showing a pattern of similar constitutional violations, permitting the inference that

the supervisory official deliberately chose policies causing violations of constitutional

rights. Id.

Importantly, “[a] failure to train action requires an underlying constitutional

4 As explained, supra n.2, the SAC also includes former DPSC Medical Directors Dr. Heard

and Dr. Morrison as Defendants to Count 4, but Plaintiff omits these Defendants from his

personal-capacity claims analysis, thus abandoning any such claims.

violation.” Graham v. Hodge, 619 F. App'x 394, 395 (5th Cir. 2015) (citing Kitchen v.

Dallas County, Tex., 759 F.3d 468, 483 (5th Cir. 2014)). Here, as set forth above, the

only remaining actionable and relevant underlying constitutional violations are those

alleged against Defendant EMT Stewart (for having deliberately withheld critical

acute care), and Defendants Master Sergeant Horn, Master Sergeant Palmer, and

Sergeant Brown (for having refused to administer Plaintiff’s insulin at pill call).

Accordingly, the Court references these underlying violations only when assessing

Plaintiff’s failure to train and supervise claims.

1. DPSC Secretary James LeBlanc

Starting at the top, with DPSC Secretary LeBlanc. Did Secretary LeBlanc

personally violate a clearly established constitutional right, opening the door to

individual liability for damages? Not here. Why? Because implicit to the first element

of an actionable failure to supervise and train claim is that the alleged supervisor

actually supervised or trained the offending subordinate. See Goodman, 571 F.3d at

395. But Plaintiff does not allege that Secretary LeBlanc is involved in the day-to-

day supervision and training of EMT Stewart, Master Sergeant Horn, Master

Sergeant Palmer, or Sergeant Brown. And common sense dictates that Plaintiff

cannot allege the Secretary’s involvement at EHCC at such a granular level, where

the Secretary’s actual role requires him to administer a Department that oversees

dozens of facilities, thousands of employees, and tens of thousands of inmates.

Plaintiff’s personal-capacity claim against Secretary LeBlanc must be dismissed at

the first prong of the Fifth Circuit’s qualified immunity analysis—for failure to allege

that Secretary LeBlanc violated a clearly established right—without need to consider

whether existing precedent placed the constitutional question beyond debate.5

2. Former DPSC Medical Director Dr. Raman

Singh

The same goes for former DPSC Medical Director Dr. Raman Singh. Here,

again, Plaintiff does not allege that Dr. Singh was involved in the day-to-day training

and supervision of EMT Stewart, Master Sergeant Horn, Master Sergeant Palmer,

or Sergeant Brown, and common sense dictates that he was not, given his elevated

role at DPSC. Plaintiff’s personal-capacity claim against Dr. Singh must be dismissed

at the first prong of the Fifth Circuit’s qualified immunity analysis, and Dr. Singh

must be dismissed from this action.

3. EHCC Warden Timothy Hooper

EHCC Warden Timothy Hooper is certainly closer to the action—within the

same facility anyway. As such, Plaintiff’s allegation that Warden Hooper “failed to

properly train and supervise” EMT Stewart, Master Sergeant Horn, Master Sergeant

Palmer, and Sergeant Brown is at least plausible. (Doc. 64 at ¶¶ 40, 93-94). Still,

however, Plaintiff has not alleged a viable failure to supervise and train claim

because there is nothing in the SAC to establish a pattern of similar constitutional

5 The Court’s dismissal of Plaintiff’s personal-capacity failure to train and supervise claim

against Secretary LeBlanc should not be confused with its analysis of Plaintiff’s official

capacity claims against Secretary LeBlanc, which allege unconstitutional policies and

practices resulting in the delay and denial of insulin and other medications, and

inappropriate food options for diabetics. First, “an unconstitutional failure to train is not the

same as an unconstitutional failure to adopt policies; each is a distinct theory of Monell

liability.” Buchicchio, 2023 WL 2027809, at *14 (citing authorities). Second, Secretary

LeBlanc’s personal involvement obviously is not required for Plaintiff to prevail in his official

capacity claims for injunctive and declaratory relief, which are, in fact, claims against DPSC.

Goodman, 571 F.3d at 396. Third, the qualified immunity analysis does not apply to

Plaintiff’s official capacity claims. See Owen v. City of Indep., Mo., 445 U.S. 622, 657 (1980).

violations involving EMT Stewart (or the others) that would permit the inference that

Warden Hooper deliberately chose policies causing violations of Plaintiff’s

constitutional rights. Crittindon, 37 F.4th at 186. In this regard, even Plaintiff’s

invocation of the litigation in Lewis et al. v. Cain et al., No. 15-cv-318 (M.D. La.) to

establish a “pattern, practice and/or custom” of indifference to serious medical needs

is unavailing because that litigation focused on medical treatment provided at the

Louisiana State Penitentiary, not EHCC. See Lewis v. Cain, No. 3:15-CV-318, 2021

WL 1219988 (M.D. La. Mar. 31, 2021) (Dick, J.). The same is essentially true of Van

Nortrick v. Lavespere, No. 18-cv-0534, 2019 WL 852121 (M.D. La. Feb. 22, 2019) and

Banks v. LeBlanc, No. 16-cv-649, 2019 WL 4315018 (M.D. La. Aug. 27, 2019), the

additional litigation identified and noticed in the Court’s prior Order.

Thus, again Plaintiff’s personal-capacity claim against Warden Hooper must

be dismissed at the first prong of the qualified immunity analysis, and Warden

Hooper must be dismissed from this action.

4. EHCC Deputy Warden Stephanie Michel and

EHCC Medical Director Dr. Preety Singh

Finally, EHCC Deputy Warden of Medical Care Stephanie Michel and EHCC

Medical Director Dr. Preety Singh. These Defendants’ titles permit a plausible

inference that they supervise and train EMT Stewart, Master Sergeant Horn, Master

Sergeant Palmer, and Sergeant Brown. And, as above, Plaintiff alleges that these

Defendants “failed to properly train and supervise” EMT Stewart, Master Sergeant

Horn, Master Sergeant Palmer, and Sergeant Brown. (Doc. 64 at ¶¶ 40, 93-94). But,

again, the SAC contains nothing to establish a pattern of similar constitutional

violations, thereby permitting the inference that Deputy Warden Michel and Dr.

Singh deliberately chose policies causing violations of Plaintiff’s constitutional rights.

Plaintiff’s personal-capacity failure to train and supervise claims against Deputy

Warden Michel and Dr. Singh must also be dismissed at the first prong of the

qualified immunity analysis, and these Defendants must be dismissed from this

action.

C. Amendment

As set forth in this Court’s prior Order, Plaintiff has already amended his

complaint twice, and there is nothing in the record to indicate that amending a third

time would sufficiently address the additional deficiencies identified herein. As such,

the Court will dismiss the additional Counts and Defendants identified herein

without permitting Plaintiff the opportunity to amend again.

III. CONCLUSION

In sum, as a result of the Court’s original Order (Doc. 136), and this Order

under the Fifth Circuit’s guidance on remand,

IT IS ORDERED that Defendants’ collective Motion to Dismiss (Doc. 84)

is GRANTED IN PART.

IT IS FURTHER ORDERED that Plaintiff’s official-capacity constitutional

claims (Counts 1 and 2) be and are hereby DISMISSED IN PART. Counts 1 and 2

may proceed against Defendant DPSC Secretary LeBlanc, only.

IT IS FURTHER ORDERED that Plaintiff’s personal-capacity constitutional

claims alleging deliberate indifference (Count 3) be and are hereby DISMISSED IN

PART. Count 3 may proceed against Defendants EMT Stewart, Master Sergeant

Horn, Master Sergeant Palmer, and Sergeant Brown, only.

IT IS FURTHER ORDERED that Plaintiff’s personal-capacity constitutional

claims alleging failure to train and supervise (Count 4) be and are hereby

DISMISSED.

IT IS FURTHER ORDERED that Plaintiff’s state law claims (Counts 6, 7,

and 8) be and are hereby DISMISSED.

IT IS FURTHER ORDERED that the following Defendants be and are

hereby DISMISSED from this action: Dr. Raman Singh; Dr. Pam Heard; Dr.

John Morrison; Warden Timothy Hooper; Deputy Warden Stephanie Michel;

Assistant Warden Morgan LeBlanc; Assistant Warden Darryl Campbell; Dr.

Preety Singh; Gail Levy; Polly Smith; Elizabeth Gauthreaux; Jonathan

Travis; and Sergeant Chameka Johnson.

IT IS FURTHER ORDERED that, in all other respects, Defendants’ Motion

To Dismiss (Doc. 84) be and is hereby DENIED. In sum, the following Counts against

the following Defendants remain:

 Counts 1 and 2, alleging official-capacity Eighth Amendment claims

against Defendant DPSC Secretary James LeBlanc;

 Count 3, alleging personal-capacity Eighth Amendment claims against

Defendants EMT Fallon Stewart, Master Sergeant Angel Horn, Master

Sergeant Rolanda Palmer, and Sergeant Chermaine Brown; and

 Count 5, alleging violations of the Americans with Disabilities Act,

Americans with Disabilities Amendment Act, and Rehabilitation Act

Additionally, against Defendant DPSC.

IT IS FURTHER ORDERED that this action be and is hereby referred to the

Magistrate Judge for selection of a new trial date and, as necessary, entry of a revised

scheduling order.

Baton Rouge, Louisiana, this 13th day of April, 2023

_______________________________________

JUDGE BRIAN A. JACKSON

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA