# Funes v. Hooper

> District Court, M.D. Louisiana · May 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10192648

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** May 11, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MARIO FUNES (#4574671) CIVIL ACTION
VERSUS
TIMOTHY HOOPER, ET AL. NO. 21-00689-BAJ-RLB
RULING AND ORDER
Plaintiff, a prisoner detained at the Louisiana State Penitentiary (LSP) in
Angola, Louisiana, pursues claims of deliberate indifference to his serious medical
needs based on prison officials’ alleged failure to remove “a foreign object” embedded
in his leg. (Doc. 5 at pp. 4-5). Plaintiff alleges that in 2017, after making “multiple
requests for sick call’ due to “intense pain in my leg of an unknown origin,” an
unnamed X-Ray Technician “took an X-ray,” “discovered ... a foreign object imbedded
[sic] inside my leg,” and shared the results with an unnamed Doctor. (/d. at p. 4).
Rather than treating Plaintiff, however, the Doctor “received the X-ray, looked at it,
but acted as if nothing was wrong.” (Id. at pp. 4-5). The Doctor failed even to inform
Plaintiff “about the presence of the foreign object.” (Ud. at p. 5). Untreated, “the foreign
object” continued to cause Plaintiff “intense pain,” affected his “walking and standing
abilities,” and “eventually caused a blood clot ..., medically recognized as Deep Vein
Thrombosis.” (/d.).
Three years later, in October 2020, a different unnamed Doctor allegedly
informed Plaintiff “that a foreign object was in [his] leg and this was causing intense
pain,” and scheduled Plaintiff for surgery. (/d.). “[O]n November 24, 2020, the foreign

object was surgically removed,” but not before Plaintiff suffered “unnecessary
infliction of pain which was easily corrected through routine surgery.” (/d.). Plaintiff
alleges that the three-year delay between the X-Ray Technician’s 2017 discovery of
“the foreign object” in his leg and its 2020 removal “result[ed] from an ‘administrative
practice’ of delaying treatment for costs.” Ud. at pp. 5-6).
Plaintiff initiated this action in November 2021, pursuing Eighth Amendment
deliberate indifference claims against LSP Warden Hooper, and multiple LSP doctors
and nurses identified only as “John or Jane Doe.” (Doc. 1). Plaintiff timely submitted
an Amended Complaint in February 2022, which addressed various clerical
deficiencies in his original pleading, but did not add any allegations, or identify the
“John or Jane Doe” Defendants. (Docs. 3, 5). Plaintiff has served his operative
Amended Complaint on Warden Hooper, but his attempts to serve the “John or Jane
Doe” Defendants have been returned “unexecuted.” (Docs. 11, 12, 18, 14, 15).
Now before the Court is Warden Hooper’s Motion To Dismiss Pursuant To
Rule 12(b)(1) And 12(b)(6) (Doc. 19), which argues: (1) Plaintiffs official capacity
claim seeking money damages is obviously barred; (2) Plaintiffs official capacity
claim for declarative or injunctive relief fail because Plaintiffs medical condition has
been treated and there is no “ongoing violation of federal law” to be remedied; and (8)
Plaintiffs individual capacity claim cannot overcome qualified immunity. Plaintiff
opposes Warden Hooper’s motion. (Doc. 22).
The Magistrate Judge has now issued a Report and Recommendation

(Doc. 27, “R&R”), recommending that Warden Hooper’s Motion be granted, and that
Plaintiffs claims against Warden Hooper be dismissed with prejudice. The R&R
further recommends that Plaintiffs claims against the “John or Jane Doe”
Defendants be dismissed sua sponte, without prejudice, due to Plaintiffs failure to
timely identify and serve these Defendants. Plaintiff objects to the R&R, and requests
“an opportunity to amend his complaint to clarify ... the dates and events of the
actions or inactions of each defendant.” (Doc. 28).
Upon de novo review, and having carefully considered Plaintiffs Amended
Complaint, Warden Hooper’s Motion to Dismiss, Plaintiffs objections, and related
filings, the Court agrees with the R&R’s assessment that Plaintiffs allegations fail to
state an actionable official capacity claim against Warden Hooper. The Eleventh
Amendment bars all suits for money damages against Warden Hooper in his official
capacity as LSP Warden, Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002), and limits
suits for injunctive or declaratory relief to situations involving ongoing constitutional
violations. Williams On Behalf of J.E. v. Reeves, 954 F.3d 729, 736 (5th Cir. 2020)
(explaining that an official capacity claim must seek prospective declaratory or
injunctive relief to redress ongoing unconstitutional conduct). Plaintiff expressly
alleges that he underwent surgery to remove “the foreign object” in November 2020,
and does not otherwise allege ongoing unconstitutional conduct. Plaintiffs official
capacity claim must be dismissed.
Further, the Court agrees that Plaintiffs allegations currently fall short of an

actionable individual capacity claim. There are two paths to establish individual
capacity liability for a constitutional violation against a supervisory official such as
Warden Hooper. First, and most obvious, the supervisory official may be liable if he
was “personally involved in the acts causing the deprivation of a person's
constitutional rights.” Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). Here,
Plaintiff does not allege Warden Hooper’s personal involvement in the failure to
remove “the foreign object” from his leg. As such, this path is a dead end.
Alternatively, a supervisory official who is not directly involved in a
constitutional violation may nonetheless be liable for his “failure to adopt policies if
that failure causally results in a constitutional injury.” Buchicchio v. LeBlanc, ---
F.Supp.3d ----, 2023 WL 2027809, at *13 (M.D. La. 2023) (Jackson, J.) (quoting
Crittindon v. LeBlanc, 37 F.4th 177, 186 (5th Cir. 2022)).
A plaintiff asserts a viable “failure to adopt policies” claim when the
allegations plausibly establish that the supervisory official acted, or
failed to act, with deliberate indifference, that is, a disregard for a
known or obvious consequence of his actions. Further, the plaintiff must
plausibly allege that the supervisory official had actual or constructive
notice that his failure to adopt policies would result in the alleged
constitutional violation. This typically requires showing notice of
a pattern of similar constitutional violations’ due to deficient
policies, permitting the inference that the defendant
deliberately chose policies causing violations of constitutional
rights.
Id. (emphasis added; quotation marks, alterations, and citations omitted).
Here, Plaintiff comes close to stating a viable “failure to adopt policies” claim
against Warden Hooper. Certainly, Plaintiff has alleged an underlying Eighth

Amendment injury capable of overcoming Warden Hooper’s qualified immunity
defense. The Eighth Amendment's prohibition against cruel and unusual punishment
is violated when prison officials “deliberately withhold] critical care in the face of an
acute life-threatening condition.” Marlowe v. LeBlanc, No. 18-cv-00063, 2023 WL
2957810, at *5 (M.D. La. Apr. 14, 2023) (Jackson, J.) (citing authorities). This is
exactly what Plaintiff contends happened here: in 2017, an unnamed LSP Doctor
reviewed an X-ray showing a “foreign object” in Plaintiffs leg, but deliberately
withheld critical care due to an “administrative practice’ of delaying treatment for
costs.” (Doc. 5 at p. 5). “[OJutright refusal to treat a known serious medical need
establishes ‘malicious intent’ capable of sustaining an EKighth Amendment claim.”
Marlowe, 2023 WL 2957810, at *6.
Plaintiff falls short at the next step, however, because he does not sufficiently
show a causal connection between the unnamed Doctor’s failure to provide treatment,
and Warden Hooper’s policies and practices. Instead, Plaintiff asserts without
elaboration that the unnamed Doctor’s refusal to provide treatment resulted from “an
‘administrative practice’ of delaying treatments for costs,” and implies that Warden
Hooper knew of and approved this practice. (Doc. 5 at pp. 5-6). These allegations,
standing alone, are too speculative to support a plausible “failure to adopt policies”
claim because they are not accompanied by allegations establishing a pattern of
similar instances when LSP medical personnel refused treatment to inmates in order
to save money. See Buchicchio, 2023 WL 2027809, at *13. Absent “a pattern of similar

constitutional violations’ due to deficient policies,” the Court cannot draw “the
inference that [Warden Hooper] deliberately chose policies causing violations of
constitutional rights.” See id. Thus, Plaintiffs “failure to adopt policies” claim against
Warden Hooper must also be dismissed.
Federal Rule of Civil Procedure 15(a) dictates that the Court should generally
allow amendment before dismissing a claim with prejudice, unless amendment
clearly would be futile. See Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.8d 305, 329 (5th Cir. 2002) (“district courts often afford plaintiffs at least
one opportunity to cure pleading deficiencies before dismissing a case, unless it is
clear that the defects are incurable”). Plaintiff requests the opportunity to amend to
clarify “the dates and events of the actions or inactions of each defendant.” (Doc. 28).
There are no additional facts consistent with Plaintiffs current allegations that
would resuscitate Plaintiffs official capacity claim against Warden Hooper. As such,
this claim will be dismissed with prejudice, as recommended in the R&R.
Plaintiffs individual capacity claim, however, is a different matter. Given
Plaintiffs allegations of outright refusal to provide critical medical care, and
Plaintiffs assertion that this refusal resulted from an “administrative practice’ of
delaying treatment for costs,” it 1s possible that Plaintiff may yet state a viable
“failure to adopt policies” claim. Accordingly, the Court will allow Plaintiff one
opportunity to amend his complaint to clarify his allegations, and to establish Warden
Hooper’s actual or constructive notice that his failure to adopt policies would result

in the alleged constitutional violation by adding specific allegations of similar
instances when LSP medical personnel refused treatment to inmates to save money.
Of course, any such allegations—to the extent they exist—must be supported by a
good faith basis in fact.
Further, consistent with the Court’s ruling allowing amendment against
Warden Hooper, the Court will defer dismissal of the “John or Jane Doe” Defendants
for lack of timely service, and will instead allow Plaintiff to identify and name the
“John or Jane Doe” Defendants in his forthcoming amended complaint, so that they
may be properly served.
In sum, the Court APPROVES IN PART the R&R’s analysis of Plaintiffs
claims against Warden Hooper. Specifically, the Court APPROVES and ADOPTS
the R&R’s analysis of Plaintiffs official capacity claim, as supplemented herein, and
will dismiss this claim with prejudice. Further, the Court APPROVES and ADOPTS
the R&R’s initial analysis of Plaintiff's individual capacity claim against Warden
Hooper, but will allow Plaintiff one opportunity to amend his complaint to
supplement his allegations of an unconstitutional “failure to adopt policies” claim.
Finally, the Court will defer dismissal of the “John or Jane Doe” Defendants, and
allow Plaintiff the opportunity to identify and name these Defendants in his
forthcoming amended complaint. Accordingly,
IT IS ORDERED that Warden Hooper’s Motion To Dismiss Pursuant To
Rule 12(b)(1) And 12(b)(6) (Doc. 19), be and is hereby GRANTED.

IT IS FURTHER ORDERED and that Plaintiffs official capacity claim
against Warden Hooper be and is hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED and that Plaintiffs individual capacity claim
against Warden Hooper be and is hereby DISMISSED, WITHOUT PREJUDICE
to Plaintiffs right to file an amended complaint within 45 days of the date of this
Order, addressing the deficiencies identified herein.
IT IS FURTHER ORDERED that Warden Hooper’s response to Plaintiff's
amended complaint (if any) shall be submitted within 14 days of service of the same.
Fed. R. Civ. P. 15(a)(8).
IT IS FURTHER ORDERED that the “John or Jane Doe” Defendants
response(s) to Plaintiffs amended complaint (if any) shall be submitted within 21
days of citation and service of the same. Fed. R. Civ. P. 12(a)(1)(A)(ji).
IT IS FURTHER ORDERED that Plaintiffs failure to timely submit an
amended complaint will result in a judgment dismissing with prejudice all claims
against Warden Hooper, and dismissing without prejudice of all claims against the
unnamed “John or Jane Doe” for failure to affect timely service.
Baton Rouge, Louisiana, thig of May, 20238

'
(A
JUDGE BRIAN 1 G]CRBON
UNITED STATES BISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10192648. Public record. Not legal advice.