# Abraugh v. Altimus

> District Court, W.D. Louisiana · September 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10195795

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** September 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10195795

## How later opinions describe it (automated extraction)

- holding that “the deprivation alleged must be, objectively, ‘sufficiently serious’”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
KAREN ABRAUGH CIVIL ACTION NO. 20-252
VERSUS JUDGE ELIZABETH E. FOOTE
BILL ALTIMUS, ET AL. MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court are ten motions to dismiss.1 Together, they seek dismissal of all
claims stemming from the death of Randall Abraugh (“Abraugh”) while detained at
Bossier Maximum Security Facility (“BPMS”). Plaintiff Kelsey Abraugh has filed a
consolidated response.2 The motions are ripe and ready for review.

BACKGROUND
Authorities booked Randall Abraugh into the BPMS as a pretrial detainee.3 He had
a history of mental health treatment and was both medicated and intoxicated at intake.4
This was acknowledged, at least in part, during Abraugh’s booking process.5 Medical
staff identified Abraugh as “a detainee who should be followed for alcohol withdrawal
syndrome and possible delirium tremens.”6 Despite that identification, the complaint

says prison officials placed Abraugh in a cell without an operable water source and failed
to monitor him or provide any medication or liquids.7 The next day, officials found him

1 Record Documents 108, 123, 124, 125, 126, 127, 128, 129, 130 & 131.
2 Record Document 136.
3 Record Document 44 at 7.
4
5
6
7
hanging from his bedsheets.8 After emergency medical personnel restored Abraugh’s
cardiac function, he was transported to a hospital, where he eventually died from

“untreated symptoms of alcohol and benzodiazepine [Xanax] withdrawal and delirium
tremens.”9 Abraugh’s mother, Karen Abraugh (“Karen”), filed a complaint individually
and on behalf of Abraugh’s estate. She brought claims against several BPMS and Bossier
Parish officials for civil rights violations under 42 U.S.C. § 1983 and Louisiana’s
survivorship statutes.
Karen, however, was not Abraugh’s only surviving family member. When Abraugh
died, he left behind other relatives, including a minor child, M.A., and a wife, Kelsey

Abraugh (“Kelsey”). This was important because children and spouses are in a higher
class of survivors than parents under Louisiana’s survivorship provisions. La. Civ. Code
arts. 2315.1(A) & 2315.2(A). That meant M.A. and Kelsey, rather than Karen, had the
legal authority to bring this lawsuit on Abraugh’s behalf. Though Karen later amended
the complaint to add the proper plaintiffs, she did so after the statute of limitations had
run. Recognizing this, Defendants moved to dismiss Karen’s lawsuit, arguing that Karen

was the wrong plaintiff from the outset and lacked standing to amend her complaint.10
The Court agreed and dismissed Karen’s complaint for lack of Article III standing;
it reasoned that Karen could not cure the original jurisdictional defect by adding M.A.
and Kelsey as parties to this action.11 But on appeal, the Fifth Circuit concluded
otherwise, holding instead that Karen lacked “prudential standing” rather than Article III

8 at 8.
9 at 9.
10 Record Document 89 at 3–4.
11 at 15.
standing. , 26 F.4th 298, 304 (5th Cir. 2022). The distinction proved
consequential as prudential standing does not present a jurisdictional question. .

at 304. In other words, while Karen lacked the statutory authority to recover under state
law, she maintained the constitutional standing to be heard in federal court.
The Fifth Circuit remanded the case to consider two questions in the “first
instance.” at 305. The first issue was whether the claims of the statutorily authorized
plaintiffs—M.A. and Kelsey—related back to Karen’s original complaint. But that issue
is now moot: The parties dismissed M.A. from this action and stipulated that Kelsey’s
claims related back to Karen’s original complaint.12 The second question was whether

the “State Defendants”—Board of Supervisors of Louisiana State University Agricultural
and Mechanical College (“LSU Board”), State of Louisiana Office of Risk Management
(“ORM”)—are protected under the sovereign immunity doctrine. at 306. On that
basis, the Court will proceed with the sovereign immunity inquiry below.
LAW & ANALYSIS
I. Sovereign Immunity

The State Defendants seek dismissal of all claims against them under Federal
Rule of Civil Procedure 12(b)(1).13 A case is properly dismissed under this Rule “when
the court lacks the statutory or constitutional power to adjudicate the case.”
, 143 F.3d 1006, 1010 (5th Cir. 1998)
(quoting , 81 F.3d 1182, 1187 (2d Cir. 1996)).

12 Record Document 121.
13 Record Documents 108 & 129.
The relevant question raised in these motions is whether the Court can exercise
jurisdiction over the State Defendants.

The answer is no. “States’ immunity from suit is a fundamental aspect of the
sovereignty which the States enjoyed before the ratification of the Constitution.”
, 527 U.S. 706, 713 (1999). This principle is made explicit in the Eleventh
Amendment, which bars suits brought by a citizen against a state in federal court unless
that state consents to the suit or Congress says otherwise. U.S. Const. amend. XI;
, 294 F.3d 684, 688 (5th Cir. 2002). Here,
Louisiana has not given its consent to be sued in federal courts. It has, on the contrary,

refused to waive its Eleventh Amendment immunity by statute. La. Rev. Stat.
§ 13:5106(A) (“No suit against the state or a state agency or political subdivision shall
be instituted in any court other than a Louisiana state court.”).
That protection from suit, or “sovereign immunity,” also extends to lawsuits against
Louisiana’s “agenc[ies] or other political entit[ies] . . . deemed the ‘alter ego’ or an ‘arm’
of the State.”14 , 294 F.3d at 688–89 (citing , 519

U.S. 425, 429 (1997)). As pertinent here, courts have established that the LSU Board
and the ORM are “arms of the state” entitled to sovereign immunity.15
, Nos. 99-30317 & 99-31146, 2001 WL 85921, at *2 (5th Cir. Jan. 26, 2001) (per
curiam); , No. 14-0407, 2015 WL 419715, at *2 (E.D. La.

14 Nor is the state or its officials “persons” under § 1983.
, 491 U.S. 58, 71 (1989).
15 The official capacity claim against Dr. Russell Roberts, an employee of the LSU Board,
must also be dismissed because official capacity suits are not suits against officials, but
suits against the official’s state office.
Jan. 30, 2015). For these reasons, the State Defendants’ motion is GRANTED. All claims
against the LSU Board and ORM are dismissed without prejudice for lack of subject-

matter jurisdiction.
II. Failure to State a Claim
Having resolved the sovereign immunity issue “in the first instance,” , 26

F.4th at 306, the Court will next address the pending motions filed by the remaining
Defendants. The Bossier Parish Police Jury; Bossier Parish, Louisiana; Bill Altimus; James
Cochran; Sherriff Julian Whittington; and Warden Rodney Boyer move to dismiss
Kelsey’s federal and state claims under Federal Rule of Civil Procedure 12(b)(6). These
Defendants all argue that Kelsey’s pleadings fail to state a viable claim for relief.
Defendants Dr. Susan Tucker, Dr. Anita Flye, Dr. Russell Roberts in his individual

capacity, Nurse Farrington, and Nurse Cynthia Holley have also filed motions to dismiss
this case for similar reasons. Yet these Defendants also contend dismissal is appropriate
for Kelsey’s medical negligence claims under Louisiana law; they argue that she failed to
complete a state-mandated process before filing suit. The Court will address these
arguments below.

A. Legal Standard
To survive a motion to dismiss brought under Rule 12(b)(6), a plaintiff must
“state a claim to relief that is plausible on its face.” , 556 U.S. 662, 678

(2009) (quoting , 550 U.S. 544, 570 (2007)). “Federal Rule
of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing
that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” , 550 U.S. at 555

(internal citations omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” , 556 U.S. at 678. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”
A court must accept as true all of the factual allegations in the complaint in
determining whether a plaintiff has stated a plausible claim. , 550 U.S.

at 555; , 495 F.3d 191, 205 (5th Cir. 2007). However,
a court is “not bound to accept as true a legal conclusion couched as a factual
allegation.” , 478 U.S. 265, 286 (1986).
If a complaint cannot meet this standard, it may be dismissed for failure to state
a claim upon which relief can be granted. , 556 U.S. at 678−79. A court may
dismiss an otherwise well-pleaded claim if it is premised upon an invalid legal theory.

, 490 U.S. 319, 327 (1989). If a complaint cannot meet this standard,
it may be dismissed for failure to state a claim upon which relief can be granted. ,
556 U.S. at 678−79. A court does not evaluate a plaintiff’s likelihood for success but
instead determines whether a plaintiff has pleaded a legally cognizable claim.
, 355 F.3d 370, 376 (5th Cir. 2004).
B. Section 1983

Kelsey’s complaint challenges Defendants’ allegedly unconstitutional conduct
under 42 U.S.C. § 1983. That statute provides a cause of action against anyone acting
under the color of state law who “subjects” a person or “causes [a person] to be
subjected . . . to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983.16 Since Congress adopted § 1983, it has
become the primary civil remedy for enforcing federal constitutional and statutory rights.

Ronald D. Rotunda & John E. Nowak,
§ 19:13 (May 2021).
In some circumstances, however, state actors are immune from § 1983 lawsuits
and other legal challenges under the doctrine of qualified immunity. Qualified immunity
shields government officials from liability for claims against them in their individual
capacities “insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”
, 457 U.S. 800, 818 (1982). Though all officials here raise qualified immunity in
their motions to dismiss, addressing that defense at the outset may prove premature. As
a threshold matter, courts must first “determine whether the plaintiff has ‘filed a short
and plain statement of his complaint, a statement that rests on more than conclusions
alone.’” , 879 F.3d 613, 618 (5th Cir. 2018) (quoting

, 845 F.3d 580, 589–90 (5th Cir. 2016)). “Only after the regular

16 Except for the State Defendants dismissed from this lawsuit above, the remaining
Defendants do not dispute whether they were “acting under the color of state law” when
the incidents that form the basis of this lawsuit transpired.
pleading requirement is satisfied” should courts proceed with the qualified immunity
analysis.

With that principle in mind, the Court will first consider whether Kelsey’s
complaint states a plausible claim for relief against individual Defendants. Because
Abraugh was a pretrial detainee when Defendants allegedly violated his constitutional
rights, Kelsey’s lawsuit invokes the Fourteenth Amendment. This Amendment secures a
pretrial detainee’s right to be protected from impermissible punishment like denials of, or
delays in, providing medical care. In this case, Kelsey alleges that BPMS officials
disregarded Abraugh’s serious medical needs after identifying him as suffering from

severe withdrawal symptoms. Such an omission, Kelsey contends, was condoned by a
Parish and Sherriff that endorsed or acquiesced to unconstitutional conduct.
Constitutional challenges raised by pretrial detainees can take one of two tracks,
and how the challenge is classified determines its analysis. , 114 F.3d 51,
54 (5th Cir. 1997). One acceptable theory of recovery is based on “conditions of
confinement.” A condition of confinement claim arises when “a pretrial detainee attacks

general conditions, practices, rules, or restrictions of pretrial confinement.”
, 74 F.3d 633, 643 (5th Cir. 1996). Such a claim may result, for instance, when
the sanitation of a building is inadequate or the food or heating creates miserable
conditions. , 114 F.3d at 53. Put simply, a viable condition of a confinement case
must rely upon a systemwide defect causing a plaintiff harm.
But systemwide defects are not the sole source of Fourteenth Amendment

violations. Sometimes, the fault stems from jail employees whose actions or omissions
cause harm. Cases raising such issues fall into the second category of Fourteenth
Amendment cases: those based on “episodic-acts-or-omissions.” Under this category

of Fourteenth Amendment lawsuits, “an actor” is typically “interposed between the
detainee and the municipality, such that the detainee complains first of a particular act
of, or omission by, the actor and then points derivatively to a policy, custom, or rule (or
lack thereof) of the municipality that permitted or caused the act or omission.”
Kelsey does not explicitly identify which of those two tracks she intends to
pursue. Yet, in distilling her claims against Defendants, Kelsey explained that she bases
this lawsuit “upon Defendants either ignoring Randall Abraugh or abdicating a duty that

led to his death.”17 Because, in Kelsey’s words, this case turns on Defendants’ “personal
actions and omissions,”18 her Fourteenth Amendment lawsuit is appropriately classified
as one challenging episodic acts or omissions rather than conditions of confinement.

The relevant inquiry, then, is whether an official breached his or her constitutional
duty to tend to the basic human needs of the persons in his or her charge. A plaintiff

must prove three elements for an official to be held liable for their episodic act or
omission. , 74 F.3d at 645. First, the plaintiff must show that the pretrial detainee
was exposed to a substantial risk of serious harm. Second, she must prove that the
defendant displayed deliberate indifference to that risk. And third, she must prove that
such deliberate indifference harmed the pretrial detainee.

17 Record Document 136-1 at 14.
18
The first element asks whether a reasonable person would view the detainee’s
illness or injury as sufficiently serious based on the circumstances. This inquiry does not

consider a defendant’s state of mind but rather what a reasonable person would
conclude. , 511 U.S. 825, 834 (1994); ,
452 U.S. 337, 347 (1981) (holding that “the deprivation alleged must be, objectively,
‘sufficiently serious’”).
Kelsey’s complaint here alleges that Abraugh appeared intoxicated at the BPMS
with a long history of mental health issues.19 As he was booked, medical staff identified
Abraugh as an individual undergoing substance withdrawal and possible “delirium

tremens.”20 “Delirium tremens, or the ‘DTs,’ affects roughly 5 percent of alcoholics in the
withdrawal stage . . . . The standard signs of delirium tremens include agitation, fever,
sweating, tachycardia and tremor.” , 245 F.3d 447, 453 n.2
(5th Cir. 2001) (quoting 9 P 59A.22(2) (Gray & Gordy,
eds., 3rd ed. 2000)). The condition also causes disorientation so severe that patients “do
not know what time it is or where they are.” Patients may also experience “memory

lapses” and “visual hallucinations.” In Kelsey’s telling, at least one other inmate
observed Abraugh experiencing severe withdrawal symptoms after his booking.21 Taking
these claims as true, Abraugh’s condition was sufficiently serious, and Kelsey meets the
first element of this episodic act or omission inquiry. , 245 F.3d at 457

19 Record Document 44 at 7.
20
21
(5th Cir. 2001) (“ and establish that delirium tremens is a serious
medical need.”).

Having done so, Kelsey must next adequately plead deliberate indifference. To
meet that standard, she must allege that the official(s) knew of and disregarded a
substantial risk of serious harm. , 848 F.3d 415,
420 (5th Cir. 2017) (per curiam). This is a challenging undertaking, and pleading
negligence or gross negligence will not suffice. , 245 F.3d at 459. Nor can a
plaintiff make this showing based on a mere disagreement with the type, amount, or
timing of a detainee’s medical treatment. , 920 F.3d 212, 216 (5th Cir.

2019).
She must instead show that an official “refused to treat [the detainee], 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.”
, 239 F.3d 752, 756 (5th Cir. 2001) (quoting
759 F.2d 1236, 1238 (5th Cir. 1985)). Even when such a showing is made, the plaintiff

must then prove that the defendant’s deliberate indifference caused the detainee harm.
, 243 F. App’x 792, 794 (5th Cir. 2007).
Kelsey alleges that several Defendants were deliberately indifferent to Abraugh’s
medical needs; the Court will address the allegations against each Defendant below.

The Court begins its deliberate indifference analysis with the only individual
Kelsey alleges had direct contact with Abraugh. According to the complaint, Nurse Holley
was a registered nurse for BPMS. Her duties included medical screening, follow-up
treatment, and referring detainees to physicians or other medical professionals.22

The day Abraugh entered BPMS, Kelsey alleges he was “medicated, intoxicated,
confused and removed from reality.”23 The complaint claims that Nurse Holley
recognized Abraugh’s concerning state; she identified him as a detainee who should be
followed for alcohol withdrawal syndrome and possible delirium tremens.24 After
identifying him as such, Kelsey asserts that Nurse Holley failed to notify the medical or
mental health staff, investigate Abraugh’s mental health history, establish an alcohol or
Xanax detoxification plan, or otherwise make any effort to address Abraugh’s medical

needs.25 Instead, Kelsey says Nurse Holley sent Abraugh to a general cell without access
to water or treatment.26 Several hours later, he was found hanging by his neck from bed
sheets; he died soon after from the “untreated symptoms of alcohol and benzodiazepine
withdrawal and delirium tremens experienced.”27 Kelsey contends that Nurse Holley’s
failure to provide Abraugh the minimum care required under the Constitution resulted in
Abraugh’s death.

Because Kelsey has alleged facts showing Nurse Holley knew of Abraugh’s serious
risk of harm yet maintained a wanton or reckless disregard for that risk, she has pled a
viable Fourteenth Amendment claim that survives the pleading stage.

22 at 5.
23
24
25
26 at 7.
27 at 9.
Kelsey next alleges that the remaining Defendants Altimus, Cochran, Sheriff
Whittington, Warden Boyer, Dr. Tucker, Nurse Farrington, Dr. Flye, and Dr. Roberts
violated Abraugh’s Fourteenth Amendment rights.28 She claims that these Defendants

are liable for their role as supervisors at BPMS.
Under § 1983, supervisory officials are not vicariously liable for the conduct of
those under their supervision. , 977 F.2d 924, 929 (5th Cir.
1992). They are, however, accountable for their own acts of deliberate indifference and
for implementing unconstitutional policies that causally injure the plaintiff. Therefore,
to hold any supervisor defendants liable under § 1983, Kelsey must allege “either that

they participated in acts that caused [Abraugh’s] constitutional deprivation or that they
implemented unconstitutional policies causally related to his injuries.” , 848 F.3d
at 421.
As a threshold matter, Kelsey pleads no facts alleging any of these remaining
individual Defendants had direct contact with Abraugh or were personally aware of his
serious medical needs. She concedes as much in her response to Defendants’ motions to

dismiss. Consequently, Kelsey has not pled a claim plausibly linking these Defendants
with any wrongdoing based on their “direct participation.” , 866
F.3d 274, 281 (5th Cir. 2017).

28 Kelsey also brings a claim against Sergeant Bradley Vassar, who she says was
employed by the Sherriff and responsible for protecting the BPMS detainees. But
Sergeant Vassar was not a party expressly identified or analyzed in the Sherriff’s motion
to dismiss. As a result, the Court will preserve Kelsey’s claims against him in his
individual capacity.
Still, as mentioned, supervisors may be liable for a constitutional violation absent
overt participation. This occurs when a supervisor “implements unconstitutional policies

that causally result in the constitutional injury.”
, 537 F.3d 404, 435 (5th Cir. 2008). This is a policy-focused inquiry that
often requires a plaintiff to show a “‘pattern of similar violations,’” proving the supervisor
acted, or failed to act, with to violations of others’ constitutional
rights committed by their subordinates. , 937 F.3d 514, 523 (5th Cir.
2019) (quoting 444 F.3d 417, 427 (5th Cir. 2006)). Where prior
incidents are used to prove a pattern, they “must have occurred for so long or so

frequently that the course of conduct warrants the attribution to the governing body of
knowledge that the objectionable conduct is the expected, accepted practice of [the]
employees.” , 588 F.3d 838, 850 (5th Cir. 2009) (quoting
735 F.2d 838, 842 (5th Cir. 1984) (en banc)).
. First, Kelsey alleges that Altimus, as Administrator
of the Bossier Parish Government, and Cochran, as President of the Bossier Parish Police

Jury, entered contracts with healthcare providers and personally established funding
policies for the Parish that led to understaffing.29 How Kelsey seeks to establish
supervisor liability against these Defendants is unclear. She does not allege that these
individuals supervised BPMS’s medical staff. Nor does she attempt to link these
Defendants’ “understaffing” or “underfunding” policies with Abraugh’s denial of medical
care at BPMS. For these reasons, Kelsey’s pleadings fall far short of stating a viable

29 at 10.
cause of action against these Parish officials as supervisors; the claims against Altimus
and Cochran are therefore dismissed with prejudice.

. Kelsey next challenges the conduct of several medical officials
at BPMS: Nurse Farrington, Dr. Tucker, Dr. Flye, and Dr. Roberts. As with her claims
against the Parish officials, however, the pleadings against these Defendants are also
inadequate. According to her complaint, Kelsey says these officials developed mental
and medical care policies. Yet she provides little detail on which of their policies directly
affected screening or monitoring procedures. Most importantly, while Kelsey says these
Defendants served as supervisors, Kelsey never explains which individual oversaw Nurse

Holley or BPMS’s intake, screening, or monitoring procedures. As it stands, Kelsey has
provided a confusing web of alleged liability and scattershot allegations. For that
reason, the extent of these medical officials’ alleged wrongdoing is unclear.
In her response to Defendants’ motion to dismiss, however, Kelsey references
several facts concerning these Defendants not contained in her original complaint. For
instance, Kelsey mentions that Karen contacted BPMS the day Abraugh died to warn

medical staff of Abraugh’s past overdoses and mental health issues. That such warnings
went disregarded, Kelsey claims, was a feature of BPMS’s inadequate mental health and
medical care policies. Kelsey also discusses medical charts referencing Nurse Farrington’s
involvement in BPMS’s immediate response after Abraugh was found hanging in his cell.
Considering Kelsey’s lawsuit rests on inadequate medical care, the Court will allow
Kelsey to amend her complaint to reassert claims against Nurse Farrington, Dr. Tucker,

Dr. Flye, and Dr. Roberts. It may be possible for Kelsey to plead more facts that
plausibly link these Defendants’ alleged unconstitutional conduct with Abraugh’s
inadequate medical treatment.30 At this time, however, Kelsey has failed to state a

supervisory liability claim.
. Kelsey finally attempts to hold Sherriff Whittington
and Warden Boyer liable in their individual capacity as supervisors. At the outset, Kelsey
fails to offer facts that could plausibly link Warden Boyer to any unconstitutional
conduct. As with the Bossier Parish and medical officials, she fails to explain whether
Warden Boyer exercised supervisory control over Holley as a subordinate. Yet unlike the
medical Defendants, Kelsey does not contend in her complaint or response that Warden

Boyer created policies or failed to create policies that could be causally related to
Abraugh’s inadequate medical care. Lacking such a connection, the complaint does not
explain how he might be legally accountable in a supervisory role for Abraugh’s
constitutional violation. Her claims against Warden Boyer are, therefore, dismissed with
prejudice.
That said, Kelsey makes a better case for holding Sherriff Whittington liable as a

supervisor. In contrast to Warden Boyer, Kelsey has alleged that Sherriff Whittington

30 The Court acknowledges that Kelsey has had opportunities to amend her complaint in
response to motions to dismiss; it further notes that the procedural history of this case
has been extensive and unwieldy. Still, this Court has not yet addressed the plausibility
of Kelsey’s pleadings with any scrutiny until this ruling. Additionally, Kelsey says facts
were recently uncovered through the discovery obtained when addressing the relation-
back issue on remand. Record Document 136-1 at 11–13. Though ideally, the Court
seeks to avoid a merry-go-round of dispositive motion filing, the Court concludes Kelsey
has not yet pled her “best case.” , 188 F.3d 322, 327 (5th Cir.
1999).
possessed direct “control” over all BPMS staff members as the “commanding officer.”31
In that capacity, Kelsey asserts that the Sheriff established or condoned inadequate

medical procedures and customs. Under Sherriff Whittington’s watch, Kelsey contends
detainees with medical needs were placed in general population without appropriate
monitoring or attention. Such a custom, Kelsey argues, materialized in the
constitutionally deficient treatment of detainees like Abraugh.
In her response to Defendants’ motion to dismiss, Kelsey points to
, No. 18-1153, 2022 WL 3579616, at *1 (W.D. La. Aug. 19, 2022).32
concerned an incident occurring before Abraugh’s death where a pretrial detainee

underwent withdrawal and died from alleged inadequate medical care. Kelsey says
is sufficiently like Abraugh’s case and should have placed the Sheriff on notice
of BPMS’s deficient policies. Even so, Kelsey asserts that Sherriff Whittington continued
disregarding pretrial detainees’ constitutional rights rather than acting or adopting any
measures to abate any withdrawal-related medical risks. ,
286 F. App’x 850, 861 (5th Cir. 2008). She argues that such a pattern of mistreatment

was the moving force behind Abraugh’s death.
Because several of Kelsey’s allegations are not contained in her complaint, the
Court will also grant Kelsey leave to amend her claims against Sherriff Whittington. In
doing so, Kelsey should include more facts detailing pertinent incidents outlined in her
response and greater detail on the “pattern” of the unconstitutional conduct she is
attempting to establish.

31 Record Document 44 at 3–4.
32 Record Document 136-1 at 13, 24.
All Defendants raise the qualified immunity defense in their motions to dismiss. As
noted above, “[t]he doctrine of qualified immunity protects government officials from
civil damages liability when their actions could reasonably have been believed to be
legal.” , 659 F.3d 359, 370 (5th Cir. 2011). Analyzing whether the
doctrine applies involves a two-step process. First, a court must determine whether “the
facts alleged show the officer’s conduct violated a constitutional right.” ,

533 U.S. 194, 201 (2001). Second, if a violation has been established, a court must
determine “whether the defendant’s actions were objectively unreasonable in light of
clearly established law at the time of the conduct in question.” , 483
F.3d 404, 411 (5th Cir. 2007).
The Court will not address the qualified immunity defense raised by several
Defendants as it has granted leave for Kelsey to amend her complaint against Sherriff

Whittington, Nurse Farrington, Dr. Tucker, Dr. Flye, and Dr. Roberts. But the Court has
concluded that Kelsey has pled a viable Fourteenth Amendment claim against Nurse
Holley. Thus, only one step remains in addressing Nurse Holley’s qualified immunity
defense: determining whether the law at the time of her violation was so “clearly defined
that ‘a reasonable official would understand that what [s]he is doing violates that right.’”
405 F.3d 278, 289 (5th Cir. 2005) (quoting 483

U.S. 635, 640 (1987)).
At this stage in the litigation, the Court concludes that qualified immunity does
not bar Kelsey’s § 1983 claim against Nurse Holley. Before the events at issue, it was
clearly established that officials would be liable for violating “a detainee’s clearly
established constitutional rights if they ‘had subjective knowledge of a substantial risk of

serious harm to a pretrial detainee but responded with deliberate indifference to that
risk.’” 228 F.3d 388, 393–94 (5th Cir.
2000) (quoting 74 F.3d at 650).
As noted above, the Fifth Circuit has established delirium tremens as a serious
medical risk. , 245 F.3d at 457. Kelsey has pled facts that plausibly allege that
Nurse Holley was aware that Abraugh was suffering from withdrawal and possible
delirium tremens but disregarded that risk in violation of the law. Abraugh attempted to

hang himself several hours later and allegedly died from untreated withdrawal symptoms
and delirium tremens. Accordingly, if Kelsey’s claims are true, Holley was “on notice”
that denying Abraugh medical care violated his due process rights.

Having analyzed Kelsey’s claims against individual actors, the Court next considers
whether Kelsey has pled a claim against “Municipal Defendants,” Bossier Parish Police
Jury and the Sheriff’s Office.33 In an episodic act or omission case, a municipal entity can
be held accountable for an employee’s constitutional violation if (1) an employee was

deliberately indifferent, and (2) the employee’s act resulted from a municipal
policy or custom adopted or maintained with deliberate indifference to the

33 Kelsey has sued each individual Defendant in their official capacities. Because all these
Defendants (except for Dr. Roberts) work for either Bossier Parish or the Sherriff’s
Office, Kelsey’s official capacity claims are duplicative. , 491 U.S. at 71.
Additionally, the Court treats Bossier Parish and the Bossier Parish Police Jury as the
same entity. Record Document 128-1 at 1.
plaintiff’s constitutional rights. , 185 F.3d 521, 526
(5th Cir. 1999). “A [municipality] acts with objective deliberate indifference if it

promulgates (or fails to promulgate) a policy or custom despite ‘the “known or obvious
consequences” that constitutional violations would result.’” , 286 F. App’x
at 861 (quoting 237 F.3d 567, 579 (5th Cir. 2001)). Yet a
city cannot be liable for an unwritten custom unless “‘actual or constructive knowledge
of such custom’” is attributable to a city policymaker. , 860
F.3d 803, 808 (5th Cir. 2017) (quoting 735 F.2d. at 841).
Kelsey contends that the Municipal Defendants consistently failed to monitor and

screen detainees with severe medical needs, like delirium tremens. Above, Kelsey has
satisfied step one of this liability inquiry by pleading facts showing that Nurse Holley was
subjectively deliberately indifferent to Abraugh’s medical needs. In an attempt to satisfy
step two, Kelsey claims that at least one BPMS policy maker, Sheriff Whittington, had
constructive knowledge that Abraugh was denied medical care, couching her municipal
liability allegations into three categories: failure to screen, monitor, and train.34

To prove constructive knowledge, a plaintiff must show that the defendant’s
custom was “so persistent and widespread as to practically have the force of
law.” , 563 U.S. 51, 61 (2011). In her response, Kelsey again
points to the death of another pretrial detainee undergoing Xanax withdrawal, who, like

34 As noted above, Kelsey also contends that Municipal Defendants, through Altimus and
Cochran, failed to staff or fund BPMS adequately. This claim serves as another basis for
Kelsey’s municipal liability claims. But as mentioned above, Kelsey does not plead facts
that could plausibly link understaffing or insufficient funding with Abraugh’s alleged
inadequate medical care. Nor does she elaborate on these theories in her response to
Defendants’ motions to dismiss.
Abraugh, allegedly died after Municipal Defendants failed to provide adequate screening
or monitoring. Kelsey alleges that the widespread lack of screening and monitoring was

linked to a policy that resulted in Abraugh being denied attention and proper care. But
as mentioned above, Kelsey does not include any past incidents of similar violations in
her complaint but instead raises at least one in her response. The Court thus grants
Kelsey leave to amend her complaint against Municipal Defendants for failing to monitor
and screen detainees.
Kelsey also contends that the Municipal Defendants failed to train and supervise
their subordinates. In limited circumstances, a local government’s decision not to train

certain employees about their legal duty to avoid violating citizens’ rights may rise to the
level of an official government policy for purposes of § 1983. , 563 U.S. at 61. To
support liability under this theory, a municipality’s decision not to adopt or promulgate a
policy must “amount to an intentional choice, not merely an unintentionally negligent
oversight.” , 973 F.2d 386, 392 (5th Cir. 1992). Making such
a showing generally requires a plaintiff to prove “notice of a pattern of similar violations

at the time the plaintiff’s own rights were violated.” , 797 F. App’x
821, 833–34 (5th Cir. 2019). Again, Kelsey points to the detainee’s death in and
offers factual allegations in her response not included in her complaint. As with her
failure to monitor and screen claims, Kelsey is granted leave to amend this allegation
against the Municipal Defendants.
That said, the Court acknowledges that pointing to a pattern of violations is not

mandatory to hold a municipality liable for its failure to train. When a plaintiff cannot
establish a pattern of similar offenses, the Fifth Circuit has recognized a “narrow
exception” to establish such liability. , 879 F.3d at 624. But that exception only

applies when a constitutional violation is the “highly predictable consequence” of a
municipality’s failure to properly hire, train, supervise, or discipline.
, 994 F.3d 477, 482 (5th Cir. 2021). A violation is “highly predictable” when the
municipality fails “to train its employees concerning a clear constitutional duty implicated
in recurrent situations that a particular employee is certain to face.” at 482-83
(quoting , 894 F.3d 616, 624 (5th Cir. 2018)). The
Court will refrain from addressing whether Kelsey’s complaint meets this “especially

difficult” standard, , 637 F. App’x 127, 134 (5th Cir. 2016),
without the benefit of her amended complaint. Still, the Court notes that “[a]
municipality’s culpability for a deprivation of rights is at its most tenuous where a claim
turns on a failure to train.” , 563 U.S. at 61. And basing a failure to train case on
a single incident “is only appropriate in the most egregiously apparent cases.”
, 569 F. App’x 252, 258 (5th Cir. 2014).

C. State-Law Claims
Finally, all Defendants challenge the adequacy of Kelsey’s state law allegations

including negligence, indemnification, vicarious liability, survival, and wrongful death. Yet
addressing most of these claims would be premature: Kelsey has not exhausted her
medical negligence claims before the state medical review panel. Though the process is
underway, it is not yet final. Kelsey does not dispute the necessity of the panel but urges
the Court to stay the case pending the completion of the panel’s review rather than
dismiss her claims outright.

Under the Louisiana Medical Malpractice Act, “[n]o action against a health care
provider . . . may be commenced in any court before the claimant’s proposed complaint
has been presented to a medical review panel.” La. R.S. § 40:1231.8. This process
applies to state-law medical malpractice claims filed in federal court.
, 660 F.2d 146 (5th Cir. 1981). On that basis, Kelsey’s negligence
claims cannot proceed until the medical review panel has issued its decision.
Federal district courts in Louisiana faced with similar situations have determined

that stays are warranted in the interest of judicial economy. ,
, No. 19-13004, 2021 WL 184909, at *3, *10 (E.D. La. Jan. 19,
2021) (holding that a stay was appropriate pending completion of the medical review
panel in a case where the plaintiffs alleged that defendants’ deliberate indifference led to
a detainee’s suicide); , No. 18-8972, 2019 WL 2995870, at *6 (E.D. La.
July 8, 2019) (same).

Here, Kelsey’s claims arise from Abraugh’s death while he was detained at BPMS
under the Defendants’ supervision and in Defendants’ care. “Discovery will [thus] apply
to all interrelated claims. Additionally, the medical review panel’s determination may be
admissible (though not conclusive) at any trial of this matter.” , 2021 WL 184909
at *16 (citing , 660 F.2d at 149). Consequently, the Court finds a stay is
warranted here pending the medical panel’s review. Kelsey’s remaining state-law claims

largely depend on the alleged medical negligence, so the Court will refrain from
addressing those claims at this time.35 Pending the lifting of the stay, all motions to
dismiss any state claims are denied with the right to re-urge.

CONCLUSION
For the reasons outlined above,
IT IS ORDERED that the motions to dismiss filed by the Louisiana Office of Risk
Management, the LSU Board of Supervisors, and Dr. Russell Roberts in his official
capacity [Record Documents 108 & 129] are GRANTED to the extent that the claims
against these Defendants are DISMISSED without prejudice for lack of subject-
matter jurisdiction.

IT IS FURTHER ORDERED that the motion to dismiss filed by Cynthia Holley
[Record Document 123] is DENIED.
IT IS FURTHER ORDERED that the motion to dismiss filed by Dr. Susan
Tucker, Dr. Anita Flye, and Dr. Russell Roberts in his official capacity [Record Document
124] is DENIED with the right to re-urge. Kelsey may amend her pleadings against
these Defendants to state a plausible claim for relief by October 12, 2023.

IT IS FURTHER ORDERED that the motion to dismiss filed by Bill Altimus
[Record Document 125] is GRANTED. All claims against Altimus are DISMISSED with
prejudice.
IT IS FURTHER ORDERED that the motion to dismiss filed by James Cochran
[Record Document 126] is GRANTED. All claims against Cochran are DISMISSED
with prejudice.

35 The Court has also allowed Kelsey to amend her pleadings against several Defendants
to add facts that plausibly establish their alleged misconduct.
IT IS FURTHER ORDERED that Jessica Farrington’s motion to dismiss [Record
Document 127] is DENIED with the right to re-urge. Kelsey may amend her

pleadings against this Defendant to state a plausible claim for relief by October 12,
2023.
IT IS FURTHER ORDERED that the motion to dismiss filed by the Bossier Parish
Police Jury and Bossier Parish [Record Document 128] is DENIED with the right to
re-urge. Kelsey may amend her pleadings against the Bossier Parish Police Jury to state
a plausible claim for relief by October 12, 2023.
IT IS FURTHER ORDERED that the motions to dismiss filed by Sherriff

Whittington and Rodney Boyer [Record Documents 130 & 131] are GRANTED in part
and DENIED in part with the right to re-urge. The motions are GRANTED to the
extent that all claims against Boyer are DISMISSED with prejudice. The motion is
DENIED with the right to re-urge to the extent that Kelsey may amend her
pleadings to assert more factual details concerning Sherriff Whittington’s alleged
misconduct in his personal and official capacities by October 12, 2023.

IT IS FURTHER ORDERED that Defendants’ motion to strike [Record Document
137] Kelsey’s response for pleading factual details not found in her complaint is
DENIED as moot.
Finally, considering that the medical state-law medical malpractice claims, which
arise from the same factual predicate underlying the federal civil rights claims, have
been submitted to a state medical review panel,
IT IS ORDERED that the case is hereby STAYED until December 1, 2023,
pending the outcome of the Louisiana medical review panel. On December 1, 2023,

the parties shall file a joint notice notifying the Court about the status of the medical
panel’s review. At that time, the Court will determine whether to extend the stay or set a
deadline for Plaintiff to file her amended complaint. If the panel’s review is complete
before December 1, 2023, the parties shall notify the Court as soon as possible.
Pending the lifting of the stay, all motions to dismiss any state claims are denied with
the right to re-urge.
14th
THUS DONE AND SIGNED this _____ day of September, 2023.

ELIZABETH ERNY FOOTE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10195795. Public record. Not legal advice.