Dixon v. Barr

oe “RECESaH LGUISTANA

JAN T i 2022

rony wofrte overex UNITED STATES DISTRICT COURT

By af WESTERN DISTRICT OF LOUISIANA

DEPUTY ALEXANDRIA DIVISION

DAVID DIXON CASE NO. 19-cv-1471

“vs JUDGE DRELL

JOSEPH BARR ET AL MAGISTRATE JUDGE PEREZ-MONTES

RULING AND ORDER

Before the Court is a Motion to Dismiss, (Doc. 55), and a Motion for Summary

Judgment, (Doe. 63), filed by the Defendants. After thoroughly reviewing the record

and the law, the Motion to Dismiss is MOOT and the Motion for Summary Judgment

is MOOT in part, GRANTED in part, and DENIED in part.

I. Background

Plaintiff David Dixon (“Dixon”) was incarcerated at the Raymond Laborde

Correctional Center (““RLCC”) on November 29, 2018. Around 9pm on that date,

Dixon’s presence was requested because an individual was interested in purchasing

a purse Dixon previously made. While Dixon was waiting for an escort, Dixon alleges

that Officer Joseph Barr (“Barr”) rushed past Dixon “maliciously and intentionally”

knocking Dixon to the ground of the jail. (Doc. 47, 6). Dixon reached for a nearby

door frame to stop his fall. However, that door frame supported a hydraulic door, and

the door malfunctioned resulting in the traumatic amputation of the tip of Dixon’s

middle finger.

Dixon alleges that the hydraulic door had been malfunctioning for a

substantial period of time and has injured other inmates. This fact forms the basis

of Dixon’s claims against Warden W.S. “Sandy” McCain (‘Warden McCain”) as

custodian.

After Dixon’s finger was traumatically amputated, Dixon alleges that he was

returned to his cell to wait for approval for an emergency trip to Rapides Regional

Hospital and that while waiting for approval he was denied medical support from the

medical staff working at RLCC, namely Kathy Gremillion, LPN (“Gremillion”) and

Heather Cormier, NPC! (“Cormier”). He further claims that because the wound had

_ not been cleaned by either Gremillion or Cormier, the surgical doctor had no choice

but to amputate Dixon’s finger to the knuckle.

After returning from the hospital, Dixon further alleges that he was denied

medical support from Gremillion, Cormier, and Capt. Stephen Coody (“Coody”).

Specifically, he claims that he was denied pain relief as prescribed by Doctor McCabe

of Rapides Regional. He also claims that his amputation was not cleaned in

accordance with the instructions of Dr. McCabe and was handled roughly.

As it pertains to pain management, Dixon was administered Morphine at the

hospital prior to his return to RLCC at 5 P.M. on November 80, 2018. (Doc. 63-15,

Exhibit M). His discharge paperwork included a prescription for 600 mg of Ibuprofen

every four hours as needed and 50 mg of Tramadol every five hours. (Doc. 63-14,

1 Non-Physician Clinician, also referred to as Nurse Practitioners and Physician

Assistants,

Exhibit L). However, RLCC physicians are not obligated to follow the

recommendations or instructions of outside providers according to Regulation B-06-

001 of the Louisiana Department of Corrections Health Care Manual. (Doc. 63-16,

Exhibit N). With this authority, Cormier, an NPC, ordered the discontinuation of

Tramadol upon Dixon’s return to the RLCC. Id. The following day Cormier altered

Dixon’s Ibuprofen regiment from 600 mg every four hours as needed (600mg x 24/4 =

3600 mg/day) to 800 mg three times a day (800x3 = 2400 mg/day) and administered

one 60 mg dose of Toradol. (Doc. 63-17, Exhibit O). The defendants have not provided

any medical notes or changes for December 2, 2018, thus we assume Dixon was

allotted 800 mg of Ibuprofen three time a day. The following day, the RLCC doctor?

prescribed the narcotic pain medication Norco three times a day. (Doc. 63-19, Exhibit

Dixon received Norco three times on December 3 and 4, and four times on

December 5. (Doc. 63-20, Exhibit R).

As it pertains to the cleaning and handling of Dixon’s amputated finger, Dixon

further claims that one of either Cormier, Gremillion, or Coody expressed a disregard

for the medical recommendations or instructions of Dr. McCabe and stabbed the

amputated finger with a pair of scissors while changing Dixon’s bandages.

Subsequent to these events, Dixon filed suit pursuant to 42 U.S.C § 1983 and

various Louisiana torts naming Barr and Warden McCain, seeking special, general

and punitive damages. (Doc. 1). Barr and Warden McCain filed a motion to dismiss.

2 The name of the RLCC doctor is not provided by either party, and the supporting

document, Doc. 63-19 Exhibit Q, does not present a legible signature. However, it

does not match the signature of Cormier found on Doc. 63-16 Exhibit N.

(Doc. 27, 30). However, Warden McCain passed away and was replaced by Warden

Marcus Meyers (“Warden Meyers”). We denied the motion to dismiss as to Barr and

granted with prejudice the motion to dismiss as to Warden Meyers. (Doc. 45, 52).

Dixon then moved to amend his complaint to (1) replace Warden McCain with

Warden Meyers, and to (2) include as a defendant the State of Louisiana through the

Department of Public Safety and Corrections (“LA DPSC”). (Doc. 41). Dixon’s motion

to amend to replace Warden McCain with Warden Meyers was mistakenly granted

as Warden Meyers had already been dismissed with prejudice. (Doc. 46). The court

further denied the inclusion of the LA DPSC on Eleventh Amendment grounds.

The proposed amended complaint was unfortunately allowed to be filed

without redaction of the claims against the State of Louisiana, which had been denied

in the order. (Doc. 47). In response, LA DPSC and Warden Meyers in his official

capacity filed a separate and renewed motion to dismiss pursuant to Rule 12(b)(1),

and Warden Meyers in his individual capacity filed a motion to dismiss pursuant to

Rule 12(b){6). (Doe. 55). In addition, all defendants, including LA DPSC and Warden

Meyers, filed a motion for summary judgment. (Doc. 63). Considering the confusion

in the record, the motion for dismissal (Doc. 55) and the motion for summary

judgment as it pertains to LA DPSC and Warden Meyers (Doc. 63) were undoubtedly

filed by these parties out of an abundance of precaution. Nonetheless, we observe the

motions to be MOOT. LA PDSC is NOT a party and Warden Meyers has already

been dismissed with prejudice. This leaves only the claims against Barr, Coody,

Cormier, and Gremillion.

IT. Standards of Review

a. Motion for Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant

summary judgment “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Paragraph

(e) of Rule 56 also provides the following:

Ifa party fails to properly support an assertion of fact or fails to properly

address another party's assertion of fact as required by Rule 56(c), the

court may:

(1) give an opportunity to properly support or address the fact:

(2) consider the fact undisputed for purposes of the motion}

(3) grant summary judgment if the motion and supporting

materials--including the facts considered undisputed--show that

the movant is entitled to it: or

(4) issue any other appropriate order.

“A genuine dispute of material fact exists ‘if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Hefren v. McDermott, Inc., 820

F.3d 767, 771 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). In deciding a motion for summary judgment, a court must construe all

facts and draw all inferences in the light most favorable to the non-movant. See

Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010). However, a mere scintilla of

evidence is insufficient to defeat a motion for summary judgment. See Stewart v.

Murphy, 174 F.3d 530, 538 (5th Cir. 1999).

TI. Law and Analysis

a. Barr

Dixon alleges that Officer Barr rushed past Dixon “maliciously and

intentionally” knocking Dixon to jail floor. (Doc. 47, (6). Dixon then describes

yeflexively grabbing the hydraulic door frame as the hydraulic door was closing.

Defendants moves for summary judgment claiming Barr cannot be liable because he

was not there at the time of the incident.2 Defendants further claim that even if Barr

were present, it is not plausible for him to have the knowledge or foresight that Dixon

would reach for or grab the door and that the door would malfunction.

To raise such a claim under § 1983, first, the constitutional deprivation must

be, objectively, sufficiently serious, and second, the defendant prison official must

have allegedly acted with “deliberate indifference to inmate health or safety.” Farmer

v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference requires a showing that

the defendant government “official knlew] of and disregarded] an excessive risk to

inmate health or safety; the official must both [have been] aware of facts from which

the inference could [have been] drawn that a substantial risk of serious harm exists,

and he must [have] also draw the inference.” Id. at 837.

We agree Barr could not have foreseen Dixon’s future actions to reach for or

grab the door frame. Even if Bar could have foreseen Dixon’s future actions, Barr

could not have foreseen that the door would malfunction because, as the Defendants

have shown undisputed, the door was without defect or malfunction for at least five

years prior to Dixon’s accident. (Doc. 63-7 Exhibit E). As a result, we cannot say that

Barr knew Dixon faced a substantial risk of serious harm. At most Dixon’s claim

3 Barr claims that he was not present, and that Dixon has mistaken someone else

for him. However, the affidavit of Lt, Stephen Perry suggest Dixon may not be

mistaken. (Doc. 63, Exhibit B). Thus, whether Barr was present or not is unclear

from the record.

against Barr is for negligence, and negligence does not satisfy the deliberate

indifference standard under § 1983. See Hare, 74 F.3d at 649-650.

Negligence may satisfy a state tort law claim against Barr, but against the

undisputed record that the door in question did not malfunction for years prior to the

incident, Dixon cannot even claim that Barr could have foreseen the risk imposed by

the door. [fa risk is not foreseeable, then there is no duty imposed to prevent harm

arising from the risk. Accordingly, the federal and state law claims against Barr will

be dismissed.

b. Coody

Dixon implicates Coody as liable for the denial of post amputation treatment,

the denial of prescribed pain medication, and purposely stabbing Dixon’s finger while

changing medical bandages. (Doc. 47, {{{ 18-14, 16, 18-20). The Defendants argue

that Coody is a guard without authority to provide any medical services and cannot

be liable for damages resulting from any alleged denial of pain medication or handling

of Dixon’s finger. Again, without opposition as to why Coody should be hable for the

denial of pain medication or the medical handling of Dixon’s finger, we agree with the

Defendants. By virtue of his position and without more from Dixon as to why Coody

should be liable, the federal and state law claims against Coody will be dismissed.

c. Cormier and Gremillion

Along with Coody, Dixon also implicates Cormier and Gremillion for the denial

of post amputation treatment, the denial of prescribed pain medication, and for

purposely stabbing Dixon’s finger while changing medical bandages.

In response to the alleged denial of post amputation treatment, Defendants

have shown that Dixon was sent to the infirmary immediately after his injury, that

the wound was cleaned and dressed with a pressure bandage, and that Dixon was

given a tetanus shot, antibiotics, Bactrim, and an ice pack. (Doc. 63-10, 11, 12,

Exhibits H, I, J). In the absence of any opposition to Defendants’ motion, we will

dismiss Dixon’s claim against Cormier and Gremillion as it pertains the alleged

denial of post amputation treatment. In response to the alleged stabbing of Dixon’s

finger, they have shown that neither changed Dixon’s bandages or stabbed his finger

and have shown that it was the prison doctor who was changing Dixon’s bandages at

the time Dixon alleges that his finger was stabbed. In the absence of any opposition

to Defendants’ motion, we will also dismiss all of Dixon’s claim against Cormier and

Gremillion for the alleged finger stab. Dixon’s claim that adequate pain medication

was denied is another matter,

The Eighth Amendment obligates the government “to provide medical care” to

inmates in its custody. Estelle v. Gamble, 429 U.S. 97, 108 (1976). The “denial of

medical care may result in pain and suffering which no one suggests would serve any

penological purpose.” Id. To raise such a claim, “[flirst, the deprivation alleged must

be, objectively, sufficiently serious,” and second, the defendant prison official must

have allegedly acted with “deliberate indifference to inmate health or safety”. Farmer

v, Brennan, 511 U.S. 825, 834 (1994) (quotation omitted). This of course is balanced

by an understanding that deliberate indifference “is a stringent standard of fault.”

Connick v, Thompson, 563 U.S. 51, 61, (2011) Gnternal quotation marks and citation

omitted). “Mere negligence in diagnosing or treating a medical condition does not

amount to deliberate indifference.” Campbell v. Brown, 756 F. App'x 386, 389 (5th

Cir. 2018). “Nor does a prisoner’s disagreement with a particular course of treatment

or a doctor’s professional decision not to pursue additional treatment options.”

Defendants do not argue that Dixon’s claim for the denial of pain medication

fails to present a sufficiently serious deprivation, and Fifth Circuit precedent

supports the proposition generally. See, e.g., Easter v. Powell, 467 F.3d 459, 464 (5th

Cir, 2006) (finding defendant presented a viable Eighth Amendment claim for the

denial of prescribed medication to alleviate pain when the defendant was aware that

such a denial would result in a substantial risk of harm to inmate’s health).

Instead, Defendants claim to have provided Dixon with adequate pain

medication. In other words, we read Defendant’s position to be that Defendants did

not act with deliberate indifference. Deliberate indifference requires a showing that

the defendant prison “official knlew] of and disregardled] an excessive risk to inmate

health or safety; the official must both [have been] aware of facts from which the

inference could [have been] drawn that a substantial risk of serious harm exists, and

he must [have] also draw the inference.” Id. at 837. “Whether a prison official had

the requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial evidence,

and a factfinder may conclude that a prison official knew of a substantial risk from

the very fact that the risk was obvious.” Gates v. Cook, 376 F.3d 323, 333 (5th Cir.

2004) (citing Framer at 842).

To this Court’s knowledge, the Fifth Circuit has not fully defined what

constitutes a “substantial risk of serious harm.” Id. Notably, the pain Dixon suffered

was not a symptom of a declining medical condition that needed attention.

Nonetheless, the pain caused anguish and the Fifth Circuit recognizes that “mental

health needs are no less serious than physical needs.” Gates v. Cook, 376 F.3d 323,

348 (5th Cir. 2004) (affirming a district court finding that Death Row inmates were

subject substantial risk of serious harm based on mental health condition on Death

Row}. “[Clonditions of inadequate mental health care... do present a risk of serious

harm to the inmates mental and physical health.” Id. See also Harper v. Showers,

174 F.3d 716, 720 (5th Cir.1999) (holding that an inmate stated a nonfrivolous claim

under § 1983 in complaining that he was placed in cells next to psychiatric patients

who scream, beat on metal toilets, short out the power, flood the cells, throw feces,

and light fires, resulting in his loss of sleep for days at a time); Partridge v. Two

Unknown Police Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (th

Cir.1986) (“A serious medical need may exist for psychological or psychiatric

treatment, just as it may exist for physical ills.”) (compiling cases from the 5th, 3rd,

4th, and 10th Circuits). Accordingly, we find that Fifth Circuit precedent supports a

finding that severe pain, even if defined only as a psychological ill affecting mental

health, can constitute a substantial risk of serious harm.

Although not binding, we find support for this conclusion from the Ninth

Circuit.

A serious medical need exists if the failure to treat a prisoner's condition

could result in further significant injury or the unnecessary and wanton

10

infliction of pain. Either result is not the type of routine discomfort that

is part of the penalty that criminal offenders pay for their offenses

against society, The existence of an injury that a reasonable doctor or

patient would find important and worthy of comment or treatment; the

presence of a medical condition that significantly affects an individual's

daily activities; or the existence of chronic and substantial pain are

examples of indications that a prisoner has a serious need for medical

treatment.

MeGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other

grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1183 (9th Cir. 1997) (quotation

marks and citations omitted) (adopted by Gutierrez v. Peters, 111 F.3d 1364, 1373

(7th Cir. 1997); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); Riddle v.

Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Sarah v. Thompson, 109 F. App'x

770, 771 (6th Cir, 2004)).

Considering the facts in the light most favorable to the nonmoving party, we

find that Defendants knew Dixon (1) received Morphine for pain while at the Rapides

Regional and (2) was prescribed by the treating physician 600 mg of Ibuprofen every

four hours as needed and 50 mg of Tramadol every five hours. It is also generally

understood that [Ibuprofen treats mild to moderate pain whereas Tramadol is used

for higher levels of pain. See, e.g., Tramadol HCL — Uses, Side Effects, and More,

https://www.webmd.com/drugs/2/drug-4398-5239/Tramadol-oral/Tramadol-

oral/details, last viewed Nov. 9, 2021. It can be inferred from this that the Defendants

were subjectively aware of the potential for severe pain. See Easter v. Powell, 467

F.3d 459, 463 (5th Cir. 2006).

Although aware of the potential for severe pain, Cormier discontinued the

Tramadol and altered Dixon’s allotted Ibuprofen prescription to 800 mg three times

11

a day or every eight hours. This is of course not an outright denial of pain medication.

Easter v. Powell, 467 F.3d 459, 464 (5th Cir.2006). At the same time, this is clearly

not a reasonable substitution for the treatment of severe pain.

The following day December 1, Dixon received in addition to the new Ibuprofen

regimen a single injection of Toradol after lunch. It is generaily understood that

Toradol, like Tramadol, is a short-term treatment for pain. See, e.g., Toradol Tablet

- Uses, Side Effects, and More, □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ drug-

57954/Toradol-oral/details, last viewed Nov. 9, 2021. No additional Toradol was

administered that day or the following. The single administration of a short-term

pain management solution is not a substitution for the continuing administration of

another short-term pain management option. Thus, it can be inferred that

Defendants were subjectively aware of the continuing potential for severe pain after

the benefit of Toradol diminished. On December 3, the prison doctor, presumably

over Cormier who is only a NPC, authorized the administration of Norco three times

a day for three days. It is generally understood that Norco is used to treat severe

pain and, therefore, provides a reasonable alternative to Tramadol. See, e.g., Norco:

Uses, Side Effects, and More, □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□

oral/details, last viewed Nov. 9, 2021.

Although mere disagreement with treatment is insufficient and although

medical professionals disagree among themselves, Dixon is not alleging a mere

disagreement with the course of treatment provided. Rather, Dixon alleges that the

Defendants failed to follow a prescribed course of treatment or to follow a reasonable

12

substitution of that prescribed course of treatment. See Estelle, 429 U.S. 97, 104-05,

(1976) (noting that deliberate indifference can be “manifested by prison doctors in

their response to the prisoner's needs or by prison guards in intentionally denying or

delaying access to medical care or intentionally interfering with the treatment once

prescribed”); see also Stewart v. Murphy, 174 F.8d 530, 535, 537 (5th Cir. 1999)

(finding no deliberate indifference when a prison doctor refused a recommendation to

transfer inmate to another facility for physical therapy and wound care because the

prison doctor ordered routine physical therapy and wound care in the alternative).

According to Dixon’s allegations, Defendants refused to provide prescribed

medication to, further refused to provide a reasonable alternative medication to,

ignored the complaints of, intentionally mistreated, and engaged in a wanton

disregard for a patient within custody. Domino v. Texas Dep't of Crim. Just,, 239

F.3d 752, 756 (5th Cir. 2001). Defendants’ alleged conduct may meet the deliberate

‘indifference threshold.

However, we also note that the Defendant's motion is notably void of any

rationale supporting (1) Cormieyr’s decision (or authority as a NPC under Louisiana

law) to discontinue Tramadol and to effectively reduce Ibuprofen as prescribed by an

outside physician, (2) Cormier’s decision to administration of a single dose of Toradol

as an alternative to the outside physician’s prescribed treatment plan, (8) either

Cormier or Gremillion’s decision to not administer additional pain medication of any

type, or (4) the physician’s decision prescribe Norco. Evidence and arguments along

these lines may serve to rebut Dixon’s claim that the Defendants failed to follow a

13

reasonable substitution of Dixon’s proscribed treatment plan. Considering the

breadth of this motion to dismiss and the number of defendants included, we will

presently deny the motion as it pertains to Dixon’s medical treatment claims against

Cormier and Gremillion alleging a denial of reasonable pain medication and

treatment because the factual record is incomplete to support granting the motion on

this limited basis. Defendants are not precluded from filing another motion to

summary judgment with further evidence and arguments pertaining to this

remaining claim.

IV. Conclusion

For the reasons explained above, it is hereby ORDERED that the Motion to

Dismiss, (Doc. 55), is MOOT as it pertains to the State of Louisiana and Warden

Meyers in his individual capacity. It 1s further

ORDERED that the Motion to Dismiss, (Doc. 55), is GRANTED as it pertains

to Dixon’s claims against Warden Meyers in his official capacity. It is further

ORDERED that the Motion for Summary Judgment, (Doc. 63), is MOOT as it

pertains to the State of Louisiana and Warden Meyers. It is further

ORDERED that the Motion for Summary Judgment, (Doc. 63), is GRANTED

as it pertains to Dixon’s claims against Officer Barr and Officer Coody. It is further

ORDERED that the Motion for Summary Judgment, (Doc. 63), is GRANTED

as it pertains to Dixon’s claims against Cormier and Gremillion alleging a denial of

post amputation care and stabbing Dixon’s finger while changing bandages. It is

further

14

ORDERED that the Motion for Summary Judgment, (Doc. 63), is DENIED,

without prejudice, as it pertains to Dixon’s claims against Cormier and Gremillion

alleging a denial of reasonable pain medication and treatment. ay

as

THUS DONE AND SIGNED at Alexandria, Louisiana this /— day of January

2022.

a Se ;

DEE D. DRELL, JUDGE

UNITED STATES DISTRICT COURT

15

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

DAVID DIXON CASE NO. 19-ev- 147 1

“vs" JUDGE DRELL

JOSEPH BARR ET AL MAGISTRATE JUDGE PEREZ-MONTES

JUDGMENT

For the reasons expressed in the court’s memorandum ruling, also issued this

day, it is hereby

ORDERED that the Motion to Dismiss, (Doc. 55), is GRANTED as it pertains

to Dixon’s claims against Warden Meyers in his official capacity. It is further

ORDERED that the Motion for Summary Judgment, (Doc. 63), is MOOT as it

pertains to the State of Louisiana and Warden Meyers. It is further

. ORDERED that the Motion for Summary Judgment, (Doc. 63), is GRANTED

as it pertains to Dixon’s claims against Officer Barr and Officer Coody. It is further

ORDERED that the Motion for Summary Judgment, (Doc. 63), is GRANTED

as it pertains to Dixon’s claims against Cormier and Gremillion alleging a denial of

post amputation care and stabbing Dixon’s finger while changing bandages. It is

further

ORDERED that the Motion for Summary Judgment, (Doc. 63), is DENIED,

without prejudice, as it pertains to Dixon’s claims against Cormier and Gremillion

alleging a denial of reasonable pain medication and treatment.

>=

THUS DONE AND SIGNED at Alexandria, Louisiana this ‘> day of January

2022.

SSS ee.

=

DEE D, DRELL, JUDGE

UNITED STATES DISTRICT COURT