Fletcher v. Whittington

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 139) filed

by Defendant, Dr. Russell Roberts (“Dr. Roberts”). Dr. Roberts seeks summary judgment

as to all claims made against him by Plaintiffs Thomas B. Fletcher and Gail A. Osborne-

Fletcher (“Plaintiffs”). Defendant the Bossier Parish Police Jury (“the BPPJ”), the Bossier

Sheriff’s Office Defendants (“the BSO Defendants”), and Plaintiffs opposed the motion.

See Record Documents 191, 193, 198, & 201. Dr. Roberts replied to all opposition briefs.

See Record Documents 205-207. For the reasons set forth below, the Motion for

Summary Judgment is GRANTED IN PART AND DENIED IN PART.

FACTUAL AND PROCEDURAL BACKGROUND

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. At the time of his

arrest, he was found to be in possession of approximately 202 Xanax bars. See id. at ¶

23. Fletcher 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. See id. at ¶¶ 165-172.

On September 3, 2017, Fletcher completed an initial Corrections Division Medical

Screening form and stated that he took 100 mg of Zoloft daily and Xanax nightly. See

Record Document 146-14 at 1. He answered in the affirmative that he currently used

benzodiazepines and that he had recently been under a doctor’s care for “psychiatric

anxiety.” Id. at 1-2. On September 4, 2017, Fletcher completed an Intake Medical

Screening Questionnaire with Nurse Katrina Chandler, RN (“Chandler”).1 See Record

Document 146-5. The questionnaire listed Fletcher’s current medications as Zoloft and

Xanax; noted he had a seizure disorder one year ago; and listed depression and anxiety

as his current mental health complaints/symptoms. See id. Chandler testified in her

deposition that during the intake screening, Fletcher told her he took “a lot” of Xanax and

that his past seizure was “probably” related to withdrawal. Record Document 146-18

(Chandler Deposition) at 25-26. Chandler put Fletcher on the mental health list to be

seen by psychologist, Dr. Anita Flye (“Dr. Flye”). See id. at 40-41.

In September 2017, a “Contract for Professional Services” between the BPPJ, the

BSO, and Louisiana State University Health Science Center (“LSUHSC-S”) was in place.

See Record Document 112-2 (Contract). Under the Contract, LSUHSC-S agreed to,

among other things, provide outpatient medical care at the Bossier Correctional Facilities;

provide clinical services at the Bossier Correctional Facilities; evaluate and treat inmates

for medical problems during clinic hours; provide medical services during clinic hours; and

assist in the review and update of policies and procedures for the Health Services Staff.

See Record Document 112-2 at 1-2. Pursuant to the Contract, Dr. Roberts – an employee

of LSUHSC-S – was providing on-site clinic service at the Bossier Maximum Security

1 Chandler is a BSO Defendant.

Facility, two days per week, half a day each day. See id.; Record Document 139-4 (Dr.

Roberts’ Affidavit).

There is a factual dispute as to whether Fletcher was Dr. Roberts’ patient. During

Fletcher’s incarceration, Dr. Roberts was on site for clinic services on the mornings of

September 5, 2017 and September 7, 2017. See Record Document 139-20. Dr. Roberts

contends that on September 5, 2017, he did not evaluate Fletcher and was not made

aware of his presence at the facility. See Record Document 139-4.

During the morning of September 5, 2017, Fletcher suffered an apparent seizure.

See Record Document 217 at ¶¶ 56-72. The Clinic Notes reflect the seizure, that Fletcher

was transferred to medical for observation for two hours, started on benzodiazepine

withdrawal protocol (hydroxyzine), and then released on 30 minute medical watch. See

Record Document 146-6 (Clinic Notes) at 1. Chandler and Nurse Katie Rachal2 both

stated in their depositions that Fletcher hit his head during the seizure. See Record

Document 146-18 (Chandler Deposition) at 48-49; Record Document 146-21 (Rachal

Deposition) at 30-35. Fletcher’s erratic behavior continued on September 5, 2017. See

Record Document 217 at ¶¶ 92-110.

On September 7, Chandler, Rachal, and Dr. Flye returned to Fletcher’s cell so Dr.

Flye could meet with him. See Record Document 146-18 at 92-93. Dr. Flye met with

Fletcher and requested the M.D. consider stat dose of Haloperidol (Haldol) and

Benzotropine and also consider starting Sertraline, the generic form of Zoloft. See

Record Document 146-28 (Flye Deposition) at 39. It appears that at least the Haloperidol

and Benzotropine were administered. See Record Document 146-18 at 92-93. Fletcher’s

2 Rachal is a BSO Defendant.

erratic behavior continued on September 7, 2017. Dr. Flye recalled “withdrawal

symptoms i.e. psychosis” hearing things, seeing things ‘paranoia’ he was very skittish

about people being around him and why they were there.” Record Document 146-28 at

38. She further noted confusion and depression. See id. at 39.

There are many factual disputes and discrepancies surrounding Dr. Roberts’

treatment of Fletcher, his knowledge of Fletcher’s medical history, and his knowledge of

Fletcher’s current medical condition on September 7, 2017. Dr. Roberts contends that

he was not made aware that Fletcher was an inmate until September 7, 2017, when

Chandler asked him to go see an inmate that had been placed on medical watch; had

undergone evaluation; was under the care of the mental health department. See Record

Document 139-4. On that same day, Dr. Roberts attempted to evaluate Fletcher, but

claims he was unable to do so. See id. Fletcher was never brought to clinic, but Dr.

Roberts attempted to go see Fletcher to do an evaluation. See id. Dr. Roberts claims

this was not achieved. See id. Dr. Roberts further contends that he did not authorize or

sign the hydroxyzine or haloperidol orders for Fletcher. See id.

Dr. Roberts submits that when he left Bossier Maximum Security Facility on

September 7, 2017, he was not under any belief or assumption that Fletcher was in a life-

threatening condition. See Record Document 139-4. Dr. Roberts stated in his affidavit

that when he left the facility on September 7, 2017, and until Fletcher’s death, he never

received any calls from Bossier Maximum Security Facility about Fletcher. See id. Dr.

Roberts stated that he found out about Fletcher’s death when he returned to the facility

for his next clinic the following week. See id.

Plaintiffs assert claims of constitutional violations against Dr. Roberts for deliberate

indifference pertaining to inadequate medical care of Fletcher, supervisory liability, duty

to intervene, and state law negligence claims. See Record Document 217. In June 2019,

this Court dismissed without prejudice Plaintiffs’ state law negligence claim against Dr.

Roberts, leaving only the constitutional claims. See Record Document 49. Dr. Roberts

now files the instant Motion for Summary Judgment and asserts he is entitled to dismissal

of the remaining Section 1983 claims as a matter of law. See Record Document 139.

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. Section 1983 Fourteenth Amendment Inadequate Medical Care Claim

In Count I of the Second Amended Complaint, Plaintiffs allege a Fourteenth

Amendment Due Process claim against Dr. Roberts. See Record Document 217 at 21-

25. More specifically, they allege Dr. Roberts provided inadequate medical care and was

deliberately indifferent to the serious medical needs of Fletcher. See id.

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. See Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir.

1996). “The episodic act or omission of a state jail official does not violate a pretrial

detainee’s constitutional right to be secure in his basic human needs, such as medical

care and safety, unless the detainee demonstrates that the official acted or failed to act

with deliberate indifference to the detainee’s needs.” Id. at 647–48. “Inadequate medical

care by a prison doctor can result in a constitutional violation for purposes of a § 1983

claim when that conduct amounts to deliberate indifference to the prisoner’s serious

medical needs, constituting the unnecessary and wanton infliction of pain.” Stewart v.

Murphy, 174 F.3d 530, 533 (5th Cir. 1999) (internal quotations and citations omitted).

Under the deliberate indifference standard, a prison official is not liable unless he knows

of and disregards an excessive risk to inmate health or safety. See id. at 534. Malpractice

or negligent care does not rise to the level of deliberate indifference. See id. “Deliberate

indifference encompasses only the unnecessary and wanton infliction of pain repugnant

to the conscience of mankind.” Id.

Dr. Roberts moves for summary judgment on the inadequate medical care claim

on two grounds: (1) Fletcher was never his patient; thus, no patient-physician relationship

was established and there can be no claim against Dr. Roberts for inadequate medical

care; and (2) Dr. Roberts was not deliberately indifferent to the medical care of Fletcher.

As to the existence of a physician-patient relationship, the Court finds genuine disputes

of material fact that prevent resolution of the issue.3 At the outset, the Court notes that a

physician-patient relationship is not a necessary element to a federal constitutional claim

for deliberate indifference. See Rogers v. Hierholzer, No. SA-16-CV-01171-FB, 2018 WL

6933282, at *3 (W.D. Tex. Dec. 28, 2018) (“As this case involves an alleged violation of

Rogers’s Eight Amendment right to adequate medical care, rather than medical

negligence on the part of Dr. Smith, it is unclear to the undersigned why at trial Dr.

Mathis’s opinion with respect to the existence of a physician-patient relationship would be

relevant or assist the trier of fact.”). However, evidence regarding the creation/existence

of a physician-patient relationship is relevant to the highly disputed factual underpinnings

3 Dr. Roberts contends there was no physician-patient relationship because there was no

physical examination and no consensual transaction because Fletcher refused to see Dr.

Roberts. Dr. Roberts also contends he did not prescribe medication to Fletcher.

Conversely, the BPPJ notes that Dr. Roberts previously invoked the protections of the

Louisiana Medical Malpractice for State Services Act in this case, which requires a

physician-patient relationship. See Record Documents 29, 36, & 41. Moreover, Dr.

Roberts was the only doctor who saw patients at Bossier Maximum Security Facility’s

medical clinic. The BPPJ points to Dr. Roberts’ deposition testimony that he reviewed

Fletcher’s chart. See Record Document 132-3, Exhibit 68 at 3. Dr. Roberts admitted in

his deposition that Dr. Anita Flye could not prescribe medications and he “would have to

be the one to issue that.” Id. at 93. Here, there is no dispute that Fletcher was given

prescription medications, namely hydroxyzine, and haloperidol. Plaintiffs also point to

Fletcher’s signature on the Screening Form in which he authorized “the responsible

corrections physician (or his designee) to administer such medical examination or

treatment as necessary while I am incarcerated in this facility.” See Record Document

146-14 (Corrections Division Medical Screening).

of this case regarding medical treatment, including Dr. Roberts’ subjective knowledge and

intent, and is also necessary to determine if indemnification is proper under the “Contract

for Professional Services.”

The Court likewise finds summary judgment is inappropriate on the issue of

deliberate indifference. There are genuine disputes of material fact regarding Dr. Roberts’

knowledge of Fletcher’s serious medical needs, namely if Dr. Roberts knew of and

disregarded an excessive risk to Fletcher’s health. While not an exclusive list, there is

conflicting summary judgment evidence on the following issues:

• Did Rachel call Dr. Roberts to discuss her conversation with Fletcher’s

father and Fletcher’s apparent addiction to Xanax, such that Dr. Roberts

knew he had a patient who might be experiencing Xanax withdrawal;4

• Did Dr. Roberts review Fletcher’s medical chart;

• Did Dr. Roberts know that Fletcher had been taking Xanax and Zoloft and

had a history of psychiatric problems, anxiety, and depression;

• Did Dr. Roberts have knowledge of or believe that Fletcher had a seizure

on the morning of September 5, 2017;

• Did Dr. Roberts know that Fletcher was on a withdrawal protocol;

• Did Dr. Roberts authorize or sign off on prescription medications, such as

hydroxyzine, sertraline, and haloperidol, to be administered to Fletcher;

• Did Dr. Roberts conduct a neurological examination by speaking to Fletcher

for a minute or two while Fletcher was in a holding cell;

• Did Dr. Roberts observe erratic behavior or a medical emergency when he

saw Fletcher in the holding cell; and

• What did Dr. Roberts believe Fletcher’s medical condition to be when he

left Bossier Maximum Security Facility on September 7, 2017.

4 Rachal recalls that sometime after Fletcher’s reported seizure on September 5, 2017

and Dr. Flye’s evaluation on September 7, 2017, she received a call from Fletcher’s

father. See Record Document 146-21 at 80. The father informed Rachal that Fletcher

had issues with Xanax previously and had suffered from depression. See id. at 80-81.

All of these factual disputes go to whether Dr. Roberts gained actual knowledge of the

substantial medical risk of harm to Fletcher and disregarded that risk, that is, responded

with deliberate indifference. The credibility of Dr. Roberts is also at issue. Thus, summary

judgment is DENIED as to the Fourteenth Amendment inadequate medical care claim.5

III. Section 1983 Fourteenth Amendment Supervisory Liability Claim

In Count II of the Second Amended Complaint, Plaintiffs assert a Fourteenth

Amendment supervisory liability claim against Dr. Roberts. See Record Document 217

at 25-26. Dr. Roberts has moved for summary judgment on such claim. Under Section

1983, an official cannot be held vicariously liable for the conduct of those under his

supervision. See Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420. A

supervisory official is only accountable for his own acts of deliberate indifference and for

implementing unconstitutional policies that causally result in the alleged injury to the

plaintiff. See id. A supervisor’s deliberate indifference generally requires a plaintiff to

allege at least a pattern of similar violations. See Rios v. City of Del Rio Texas, 444 F.3d

417, 427 (5th Cir. 2006) (citations omitted).

Here, Plaintiffs have offered no summary judgment evidence of a pattern of similar

violations. Moreover, “in order to establish supervisor liability for constitutional violations

committed by subordinate employees, plaintiffs must show that the supervisor act[ed], or

fail[ed] to act, with deliberate indifference to violations of others’ constitutional rights

committed by their subordinates.” Pena v. City of Rio Grande City, 879 F.3d 613, 620

5 In his motion, Dr. Roberts raises qualified immunity once: “prison officials are protected

by qualified immunity for medical treatment decisions, unless . . . .” Record Document

139-2 at 13. Without more, this Court will not address the applicability and/or availability

of the qualified immunity defense.

(5th Cir. 2018) (emphasis added), citing Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011)

(internal quotation marks and citation omitted, alterations and emphasis in original). As

argued by Dr. Roberts in his motion, he was not the employer of any of the staff at the

Bossier Maximum Security Facility. See Record Document 139-2 at 18. All of the

correctional officers and nurses involved in the events surrounding Fletcher’s death were

employed by the Bossier Parish Sheriff’s Office. See id. Plaintiffs have simply failed to

offer any competent summary judgment evidence to establish a supervisory claim against

Dr. Roberts. Therefore, summary judgment in favor of Dr. Roberts is GRANTED as to

the Fourteenth Amendment supervisory liability claim.

IV. Section 1983 Fourteenth Amendment Duty to Intervene Claim

In Count III of the Second Amended Complaint, Plaintiffs allege a Fourteenth

Amendment duty to intervene claim against Dr. Roberts. See Record Document 217 at

26. Dr. Roberts has moved for summary judgment on such claim. First, the Court notes

that Plaintiffs did not present argument or evidence on the failure to intervene claim in

their opposition to Dr. Roberts’ motion. Their failure to raise an argument in opposition to

summary judgment on this claim equates to waiver. See Indep. Coca–Cola Employees’

Union of Lake Charles, No. 1060 v. Coca–Cola Bottling Co. United, Inc., 114 F. App’x

137, 143-44 (5th Cir. 2004) (unpublished) (holding that party’s failure to raise an argument

in opposition to summary judgment waived the argument). Moreover, the failure to

intervene claim against Dr. Roberts fails as a matter of law. In a prison setting, the duty

to intervene encompasses a prison guard or correctional official’s duty to intervene and

attempt to end an assault on an inmate. See Coleman v. LeBlanc, No. CV 19-395-JWD-

SDJ, 2020 WL 4679545, at *5 (M.D. La. July 28, 2020), report and recommendation

adopted, No. CV 19-395-JWD-SDJ, 2020 WL 4680145 (M.D. La. Aug. 12, 2020). Such

a duty does not extend to medical officials in the prison setting. See Smith v. Donate, No.

4:10-CV-2133, 2012 WL 1899323, at *6 (M.D. Pa. Apr. 5, 2012), report and

recommendation adopted, No. CIV. 4:10-2133, 2012 WL 1899318 (M.D. Pa. May 24,

2012).6 Summary judgment in favor of Dr. Roberts is GRANTED as to the Fourteenth

Amendment duty to intervene claim.

V. State Law Negligence Claim

Dr. Roberts did not address state law negligence in his Motion for Summary

Judgment. However, the Court notes that in Count VI of the Second Amended Complaint,

Plaintiffs purport to assert a Louisiana state law negligence claim against Dr. Roberts.

See Record Document 217 at 29-31. However, as stated by Dr. Roberts in his motion,

Plaintiffs’ state law negligence claim against Dr. Roberts was dismissed without prejudice

on June 17, 2019, leaving only the constitutional claims. See Record Document 139-2 at

7; see also Record Document 49.7 Thus, to the extent necessary, the Court reiterates its

6 In Smith, the court held:

Here, it is undisputed that Dr. Zaloga is not an employee or correctional

official at this county prison. Rather, he simply is an independent private

contractor who provides medical services to inmates. As a private

contractor, Dr. Zaloga has no law enforcement or corrections standing,

status, responsibilities, duties, or training, and Dr. Zaloga is not authorized

by the warden to intervene in correctional matters such as cell extractions.

Given these undisputed facts, Smith’s failure to intervene claim against Dr.

Zaloga cannot prevail because the first essential element of that claim, a

legal duty to intervene, is simply absent. Therefore, this claim should be

dismissed with respect to Dr. Zaloga.

Smith, 2012 WL 1899323, at *6.

7The Court noted “the parties do not dispute that Fletcher’s state law negligence claim

against Roberts is covered by the LMMA [Louisiana Medical Malpractice Act].” Record

Document 41 at 4. Thus, finding that the Fletchers had failed to exhaust the procedural

prior ruling dismissing without prejudice Plaintiffs’ state law negligence claim against Dr.

Roberts.

CONCLUSION

For the reasons set forth above, Dr. Roberts’ Motion for Summary Judgment is

GRANTED IN PART AND DENIED IN PART. The motion is GRANTED as to the

Fourteenth Amendment supervisory liability claim and the Fourteenth Amendment duty

to intervene claim. The motion is DENIED as to the Fourteenth Amendment inadequate

medical care claim. Plaintiffs’ state law negligence claim against Dr. Roberts was

previously dismissed without prejudice.

IT 1S SO ORDERED.

THUS DONE AND SIGNED, in Shreveport, Louisiana, this 19th day of August,

2022.

S. MAURICE HICKS, JR., CHIEF JUDGE

UNITED STATES DISTRICT COURT

requirements of the LMMA before filing suit, the Court held that the state law negligence

claim against Dr. Roberts was premature and dismissed such claim without prejudice.

See id.

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