# Fletcher v. Whittington

> District Court, W.D. Louisiana · August 17, 2022

URL: https://www.frixlaw.com/law-library/cases/10195075

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** August 17, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

THOMAS B. FLETCHER, ET AL. CIVIL ACTION NO. 18-1153
VERSUS JUDGE S. MAURICE HICKS, JR.
JULIAN WHITTINGTON, ET AL. JUDGE KAYLA MCCLUSKY
MEMORANDUM RULING
Before the Court is a Motion for Summary Judgment (Record Document 108) filed
by Defendant, the Bossier Parish Police Jury (“the BPPJ”). The BPPJ seeks summary
judgment as to all claims made against it by Plaintiffs Thomas B. Fletcher and Gail A.
Osborne-Fletcher (“Plaintiffs”). Plaintiffs opposed the motion. See Record Document
112. For the reasons set forth below, the Motion for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND1
This is a federal civil rights action (and state law survival action and wrongful death
action) brought by Plaintiffs, who are the parents of the deceased, Collin James Fletcher
(“Fletcher”). See Record Document 217 (Second Amended Complaint). Fletcher was
arrested by the Bossier City Police Department on September 3, 2017. He was thereafter
transported to the Bossier Maximum Security Facility, where he remained until he was
found dead in his cell during the early morning hours of September 8, 2017. The BPPJ
contends the autopsy of Fletcher indicated that his death was caused by a brain bleed
which resulted from a fracture of his skull near the base of the back of the head. See

1Much of the factual background has been drawn from the BPPJ’s Statement of
Uncontested Material Facts (Record Document 108-2) and Plaintiffs’ Response (Record
Document 112-1). Many of the facts relating to the instant motion are undisputed. The
Court will note the disputed facts and, where a dispute exists, provide specific cites to the
summary judgment record.
Record Document 108-2 at ¶ 3. Plaintiffs allege the Autopsy Report provided that the
cause of death was “head and Neck Injuries” and a contributing factor was “Mixed Drug
Interaction.” Record Document 112-1, citing Exhibit 46 (Autopsy Report).
Plaintiffs contend Fletcher fractured his skull during one of his numerous falls while

he was in custody at the Bossier Maximum Security Facility. See id. at 112-1 at ¶ 4. The
BPPJ contends the fracture of Fletcher’s skull occurred when he fell backwards into the
wall. See Record Document 108-2 at ¶ 4. It is alleged that Fletcher experienced one or
more seizures while housed at Bossier Maximum Security Facility. According to Plaintiffs,
Fletcher’s alleged seizures and physical injuries, including his death, were secondary to
benzodiazepine withdrawal syndrome. It is alleged that Fletcher did not receive proper
treatment – i.e., Defendants were deliberately indifferent – for benzodiazepine withdrawal
syndrome while he was housed at the Bossier Maximum Security Facility. See Record
Documents 108-1 at ¶ 4 and 112-1 at ¶4.
Plaintiffs have named fourteen defendants, many of whom are Bossier Sheriff’s

Office employees. Plaintiffs assert numerous claims against the BPPJ, including Count
IV (Fourteenth Amendment-Monell); Count VII (Vicarious Liability); Count VIII
(Indemnification); Count IX (Survival Action); and Count X (Wrongful Death). See Record
Document 217.
LAW AND ANALYSIS
I. Summary Judgment Standard
Summary judgment is proper pursuant to Rule 56 of the Federal Rules of Civil
Procedure when “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Quality Infusion Care, Inc. v. Health Care Serv.
Corp., 628 F.3d 725, 728 (5th Cir.2010). “A genuine issue of material fact exists when
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
See id. “Rule 56[(a)] mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Patrick v. Ridge, 394 F.3d 311, 315 (5th
Cir.2004). If the movant demonstrates the absence of a genuine dispute of material fact,
“the nonmovant must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial.” Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141
(5th Cir.2004). Where critical evidence is so weak or tenuous on an essential fact that it
could not support a judgment in favor of the nonmovant, then summary judgment should
be granted. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005).
II. Indemnification

In Count VIII of the Second Amended Complaint, Plaintiffs allege that “Louisiana
law provides that public entities are directed to pay any tort judgment for compensatory
damages for which employees are liable for actions taken in the discharge of their duties
that are within the scope of their employment activities.” Record Document 217 at 32.
The BPPJ moved for summary judgment on Plaintiffs’ indemnification claim on multiple
grounds, mainly that they had no standing or right of action to bring such a claim. See
Record Document 108-1 at 16. More specifically, the BPPJ argued “such a claim for
indemnity, even if one exists, would be an action personal to the named individual
defendant.” Id.
Plaintiffs only cursorily addressed indemnification in their opposition. See Record
Document 112 at 17. Plaintiffs contend that because the BPPJ did not cite any authority
in support of its argument the Court should not decide the issue. See id.
Here, there is no dispute that Plaintiffs bear the burden of proof on all of their

claims. Thus, at the summary judgment stage, the BPPJ “may merely point to an absence
of evidence, thus shifting to [Plaintiffs] the burden of demonstrating by competent
summary judgment proof that the is an issue of material fact warranting trial.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Thus, summary judgment in
favor of the BPPJ is GRANTED as to any claim for indemnification made by Plaintiffs
against BPPJ.
III. Vicarious Liability
Under Louisiana law, employers are vicariously liable for the torts of their
employees under Louisiana Civil Code Art. 2320, which provides, in part:
Masters and employers are answerable for the damage occasioned by their
servants and overseers, in the exercise of the functions in which they are
employed.

In the above cases, responsibility only attaches, when the masters or
employers . . . might have prevented the act which caused the damage, and
have not done it.

La. C.C. Art. 2320. Although Article 2320 provides that employers are only liable when
they might have prevented the act which caused the damage, the courts of this state have
consistently held that employers are vicariously liable for any torts occasioned by their
employees. See Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990). This judicial
interpretation of Article 2320 has been codified at La. R.S. 9:3921, which provides, in part:
“every master or employer is answerable for the damage occasioned by his servant or
employee in the exercise of the functions in which they are employed.”
In its summary judgment motion, the BPPJ maintains that none of the named
individual defendants are its employees such that vicarious liability would attach.

Plaintiffs do not dispute this argument as to any of the Bossier Sheriff Defendants. See
Record Document 112. Conversely, as to Dr. Russell W. Roberts (“Dr. Roberts”), a
named defendant, Plaintiffs alleged in the Second Amended Complaint that he was
“employed by the Louisiana Department of Public Safety & Corrections, Bossier Parish
Police Jury, Bossier Sheriff’s Office, and/or Bossier Parish, as a physician.” Record
Document 217 at 4. In their opposition to the BPPJ’s summary judgment motion,
Plaintiffs argue that “it is undisputed that the Police Jury negotiated a contract with LSU
to borrow LSU’s employee to provide at least some of the medical services that the Police
Jury had a duty to provide.” Record Document 112 at 16. They contend that LSU was
Dr. Roberts’ general employer, but the BPPJ was his “special employer.” Plaintiffs cite to

Blair v. Tynes, 621 So. 2d 591, 599 (La.), on reh'g, 625 So. 2d 1346 (La. 1993) and
Morgan v. ABC Manufacturer, 97-0956 (La. 5/1/98), 710 So. 2d 1077, and submit that the
BPPJ can be held vicariously liable for Dr. Roberts’ conduct, which allegedly caused
Fletcher’s death. See id. at 16.
Plaintiffs rely on two facts to support their position that the BPPJ was Dr. Roberts’
“special employer”: (1) the existence of a Contract for Professional Services (“the
Contract”) between LSU, the BPPJ, and the Bossier Parish Sheriff (Record Document
112-2); and (2) the Contract’s termination provision (Record Document 112-2 at 4). There
is no dispute that Dr. Roberts was employed by LSU, the physician service provider under
the Contract. The critical issue is whether Dr. Roberts became a “borrowed employee”
of the BPPJ such that the BPPJ can be held vicariously liable for Dr. Roberts’ conduct.
“There is a presumption that the general employer retains control of his employee,
and the party who alleges that an employee has become a borrowed servant bears the

burden of proving by a preponderance of the evidence on that issue.” Brumbaugh v.
Marathon Oil Co., 507 So. 2d 872, 876 (La. Ct. App.), writ denied, 508 So. 2d 824 (La.
1987). The determination of borrowed employee status involves factual inquiries,
including: “(1) who has the right of control over the employee; (2) who selected the
employee; (3) who pays the employee’s wages; (4) who has the right to fire the employee;
(5) who furnished the tools and the place to perform the work; (6) the length of
employment; (7) which employer’s work was being performed at the relevant time; (8)
whether there was an agreement, either implicit or explicit, between the lending and
borrowing employers; and (9) whether the employee acquiesced in the new work
situation.” Vosburg v. City of New Roads, 2019-1292 (La. App. 1 Cir. 5/11/20), writ

denied, 2020-00695 (La. 9/29/20), 301 So. 3d 1193. As a whole, the application of these
factors do not objectively support a finding that Dr. Roberts was the BPPJ’s borrowed
employee. There is no evidence that he ever took orders from or came into contact with
anyone associated with the BPPJ. There is no evidence that Dr. Roberts was performing
the work of the BPPJ, which – as noted infra – was to fund healthcare of inmates at the
Bossier Maximum Security Facility. The Contract made no reference to “borrowed”
employees. There is no evidence that Dr. Roberts ever considered himself to be an
employee of the BPPJ. Again, as noted infra, the Bossier Parish Sheriff and not the BPPJ
operated the Bossier Maximum Security Facility. The BPPJ did not have the right to
discharge or terminate Dr. Roberts and, finally, the BPPJ paid LSU, not Dr. Roberts, under
the Contract. Thus, summary judgment in favor of the BPPJ is GRANTED as to any
vicarious liability claim because Dr. Roberts was not a BPPJ employee such that the
BPPJ could be held vicariously liable for the conduct that allegedly caused Fletcher’s
death.2

III. Survival Action and Wrongful Death
Louisiana Civil Code Articles 2315.1 and 2315.2 provide a cause of action under
Louisiana law for survival action and wrongful death, respectively. Yet, there is no
independent negligence claim under these articles. Rather, the elements of negligence
will constitute the “offense” that Plaintiffs must prove to establish their survival action and
wrongful death action. Here, Plaintiffs have conceded as much, stating in their opposition
they did not assert an independent negligence claim against the BPPJ. See Record
Document 112 at 16.3 Thus, summary judgment in favor of the BPPJ is GRANTED as to
any independent negligence claim against the BPPJ by Plaintiffs.

IV. Section 1983 Fourteenth Amendment/Monell Claim
In Count IV of the Second Amended Complaint, Plaintiffs allege a Fourteenth
Amendment – Monell liability claim pursuant to Section 1983 against the BPPJ and other

2 The Contract further provided:

With respect to all matters pertaining to this contract, it is hereby understood
and specially agreed that the Physician Service Provider shall be deemed
an independent contractor and shall in no event be considered an
employee, servant, agent, partner or joint venturer with or of the Parish.

Record Document 112-2 at 5.
3 In the Second Amended Complaint, there is no direct negligence claim asserted against
the BPPJ. See Record Document 217 at 29.
defendants. See Record Document 217 at ¶¶ 221-226. Plaintiffs contend that the failure
to adopt a policy can be deliberately indifferent when it is obvious that the likely
consequences of not adopting a policy will be a deprivation of constitutional rights. See
id. at ¶ 223. Further, they submit that a policymaker’s failure to staff a jail with persons

who had the authority to transfer a detainee to the hospital and/or monitor the serious
health needs of the detainee could support an inference that unconstitutional policies
were the moving force behind the carelessness that led to the detainee’s death. See id.
at ¶ 224.4 More specifically, as to the BPPJ, Plaintiffs allege that Bossier Max was
underfunded and unable to provide necessary and proper medical care to inmates. See
id. at ¶ 177(a). They contend that as a result of this underfunding, necessary and
appropriate medical care was not provided to inmates. See id. at ¶ 177(c).
Fletcher was a pretrial detainee. Thus, the claim under Section 1983 for deliberate
indifference to Fletcher’s safety and serious medical needs is analyzed under the
Fourteenth Amendment. Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996).

He is pursuing a conditions of confinement claim against the BPPJ. See Record
Document 112 at 13. “To establish municipal liability on a conditions of confinement
claim, a pretrial detainee must show: (1) a condition of confinement; (2) not reasonably
related to a legitimate governmental objective;5 (3) which caused a violation of the
detainee’s constitutional rights.” Hawkins v. Montague Cnty., Texas, No. 7:10-CV-19-O,

4 These Fourteenth Amendment – Monell Liability claims pursuant to Section 1983 were
asserted against the BPPJ and the Bossier Sheriff’s Office. See Record Document 217
at ¶¶ 221-226.
5 The Fifth Circuit has recognized that “the reasonable-relationship test employed in
conditions cases is functionally equivalent to the deliberate indifference standard
employed in episodic cases.” Duvall v. Dallas Cnty., Tex., 631 F.3d 203, 207 (5th Cir.
2011).
2012 WL 13019680, at *1–2 (N.D. Tex. Aug. 1, 2012), citing Duvall v. Dallas Cnty., Tex.,
631 F.3d 203, 207 (5th Cir. 2011). “A condition of confinement may be shown through
an intentionally adopted official policy or an unstated or de facto policy, as evidenced by
a pattern of acts or omissions sufficiently extended or pervasive, or otherwise typical of

extended or pervasive misconduct by [jail] officials, to prove an intended condition or
practice.” Hawkins, 2012 WL 13019680, *1, citing Shepherd v. Dall. Cnty., 591 F.3d 445,
452 (5th Cir. 2009). It is a heavy burden to prove a pattern amounting to an intended
condition or practice and the Fifth Circuit has rarely found such burden satisfied. See
Shepherd, 591 F.3d at 452; Hawkins, 2012 WL 13019680, *1. A condition of confinement
must also be more than a de minimis violation to be actionable. See Duvall, 631 F.3d at
208. In Shepherd, the Fifth Circuit explained:
[I]solated examples of illness, injury, or even death, standing alone, cannot
prove that conditions of confinement are constitutionally inadequate. Nor
can the incidence of diseases or infections, standing alone, imply
unconstitutional confinement conditions, since any densely populated
residence may be subject to outbreaks. Allegations of insufficient funding
are similarly unavailing. Rather, a detainee challenging jail conditions must
demonstrate a pervasive pattern of serious deficiencies in providing for his
basic human needs; any lesser showing cannot prove punishment in
violation of the detainee’s Due process rights.

Shepherd, 591 F.3d at 454.
The BPPJ has now moved for summary judgment as to Plaintiffs’ Fourteenth
Amendment Monell claim. La. R.S. 33:4715 provides that “the police jury of each parish
shall provide . . . a good and sufficient jail.” Likewise, the police jury, as the governing
authority, “shall be responsible for the physical maintenance of all parish jails and
prisons.” La. R.S. 15:702. However, La. R.S. 15:704 provides that “[e]ach sheriff shall
be the keeper of the public jail of his parish.” The Fifth Circuit has recognized this
distinction:
Under Louisiana law, the Police Jury had no responsibility over the daily
operation of the Jail. However, state law does require the Police Jury to
“provide ... a good and sufficient jail,” La.Rev.Stat.Ann. § 33:4715 (West
1966), to be “responsible for the physical maintenance of all parish jails and
prisons,” id. § 15:702 (West 1981), and to pay all expenses incurred in “the
arrest, confinement, maintenance and prosecution of persons accused or
convicted of crimes,” id. § 15:304. . . . Clearly the Police Jury had a duty to
fund and maintain the Jail.

O'Quinn v. Manuel, 773 F.2d 605, 609 (5th Cir. 1985).
In the instant matter, the BPPJ has presented competent summary judgment
evidence as to funding and the operation of the Bossier Maximum Security Facility.
William Altimus (“Altimus”), the Parish Administrator, testified during his deposition:
In 2017, the Bossier Parish Police Jury had no operational duties and
responsibilities related to the care, custody, and control of inmates
incarcerated at the Bossier Max, other than to provide the jail facility, and to
provide for the physical maintenance of the jail.

Record Document 108-4 (Altimus Deposition) at 7. He further explained that the BPPJ
would “fund the request from the Sheriff’s Office to provide that service. We were just –
built the facility, and maintain the facility.” Id. at 9. The BPPJ’s role, according to Altimus,
was funding, more specifically funding the Sheriff’s request to provide medical care. See
id. at 10, 14. Altimus testified that in September of 2017, the BPPJ did not have a duty
to provide medical care to the inmates. See id. at 17. There is also competent summary
judgment evidence that the BPPJ funded whatever request it received from the Sheriff’s
Department. See id. at 20. In his affidavit, Altimus stated:
For the fiscal years 2013, 2014, 2015, 2016 & 2017, the Bossier Parish
Police Jury fully funded all amounts requested by the Bossier Sheriff’s
Office for medical care and treatment for inmates at the Bossier Maximum
Security Facility.
Record Document 108-3 (Altimus Affidavit) at 8. Altimus further states that he was
“unaware of funding ever being an obstacle to providing medical care to inmates at the
Bossier Maximum Security Facility as required by law.” Id. at ¶ 9.
The BPPJ was also not involved in creating the medical policies in effect at the
Bossier Maximum Facility. See Record Document 108-5 (Bossier Sheriff’s Office Video
Deposition) at 91-92. Instead, those policies were created/implemented by the Bossier
Parish Sheriff’s Office. See id. Further, it was not the policy of Bossier Parish Sheriff’s
Office to inform the BPPJ about the medical conditions of inmates, including Fletcher.

See id. at 92.
Here, there is no summary judgment evidence of a pervasive pattern of serious
deficiencies in providing for the basic human needs of detainees at the Bossier Maximum
Security Facility. All funding requests were fulfilled and the BPPJ was not involved in
day-to-day medical care or the creation of medical policies. Moreover, there is no
summary judgment evidence that any “condition of confinement” was the result of
inadequate funding by the BPPJ. Finally, there is simply no showing of deliberate
indifference, that is, no BPPJ official had subjective knowledge of the risk of harm to
Fletcher and subjective intent to cause harm to Fletcher.
In opposing the BPPJ motion, Plaintiffs point to La. R.S. 15:703 and argue the

BPPJ failed to provide the minimum requisite healthcare to detainees. La. R.S. 15:703
provides:
A. The governing authority of each parish shall appoint annually a
physician who shall attend the prisoners who are confined in parish jails
whenever they are sick. His salary shall be fixed by the governing authority.
Any physician so appointed shall be licensed as provided in R.S. 37:1271
and shall be a qualified health care provider in accordance with R.S.
40:1231.2.

B. In lieu of appointing a physician, the governing authority of any parish
may enter into a contract with a health care provider, licensed or regulated
by the laws of this state, to provide requisite health care services, as
required in this Section. The term “health care provider” as used in this
Subsection means a person, partnership, limited liability partnership, limited
liability company, corporation, facility, or institution licensed or regulated by
the laws of this state to provide health care services or professional services
as a physician and qualified as such in accordance with R.S. 40:1231.2.

La. Stat. Ann. § 15:703. This a new theory/claim raised for the first time in response to
BPPJ’s Motion for Summary Judgment. Plaintiffs never alleged in their complaints that
the BPPJ breached a duty to contract for at the “requisite” medical services pursuant to
Section 703(B). “A claim which is not raised in the complaint but, rather, is raised only in
response to a motion for summary judgment is not properly before the court.” Cutrera v.
Bd. of Sup’rs of Louisiana State Univ., 429 F.3d 108, 113 (5th Cir. 2005), citing Fisher v.
Metropolitan Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir.1990). This claim may be
dismissed on this basis alone.
Additionally, Section 703 does not reference “minimum requisite healthcare.”
Instead, such phrase can be found in Louisiana Administrative Code Title 22 § III-2909,
which is a list reasonable guidelines for use by persons responsible for the planning,
administration and construction of parish jails in Louisiana. See Record Documents 113-
1 and 113-2. Such guidelines cannot be grafted into the requirements of Section 703(B).
Likewise, the alleged failure to follow such guidelines cannot necessarily equate to a
constitutionally inadequate medical system. Plaintiffs’ argument based on the Louisiana
Administrative Code Title 22 § III-2909 is misplaced and unconvincing. Accordingly,
summary judgment in favor of the BPPJ is GRANTED as to Plaintiffs’ Section 1983
Fourteenth Amendment/Monell Claim.
CONCLUSION
For the reasons set forth above, the BPPJ’s Motion for Summary Judgment
(Record Document 108) is GRANTED and all of Plaintiffs’ claims against the BPPJ are
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 17th day of August,
2022.
on [pele /
S. MAURICE HICKS, JR., CHIEF JUD
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10195075. Public record. Not legal advice.