Abshire v. Livingston Parish

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

TAYLOR ABSHIRE, INDIVIDUALLY

AND ON BEHALF OF THE UNOPENED

SUCCESSION OF RICHARD ABSHIRE,

ET AL.

CIVIL ACTION

VERSUS

NO. 22-548-JWD-SDJ

LIVINGSTON PARISH, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment (Doc. 57) filed

by Defendant Dr. James Taylor (“Dr. Taylor”). Plaintiffs Taylor Abshire, Kaysi Abshire, and

Lindsey Johnson, all individually and on behalf of the unopened succession of Richard Abshire,

and Lindsey Johnson as next of friend of E.A. and A.A. (collectively, “Plaintiffs”) oppose the

motion (Doc. 66). Dr. Taylor has filed a reply (Doc. 75). Oral argument is not necessary. The Court

has carefully considered the law, the facts in the record, and the arguments and submissions of the

parties and is prepared to rule. For the following reasons, the Motion for Summary Judgment is

granted.

I. RELEVANT FACTUAL BACKGROUND1

Richard Abshire became Dr. Christopher Trevino’s patient at Tulane Medical Center in

October 2019 to treat his newly diagnosed glioblastoma brain cancer. (PSUMF, Doc. 66-1 at 9, ¶

1.) Glioblastoma is an aggressive form of brain cancer associated with a very short lifespan if the

1 Unless otherwise indicated, when the Court cites to Plaintiff’s Statement of Undisputed Material Facts (“PSUMF”)

or Taylor’s Statement of Material Facts (“TSMF”) in support of a fact, that fact has been admitted by the opposing

party. See M.D. La. Civ. R. 56(f)

patient is untreated. (Id. at 10, ¶ 2.) Dr. Trevino performed surgery on Mr. Abshire and ordered

chemotherapy and an Optune to be worn 18 hours a day. (Id. at ¶ 3.)

The Optune is an FDA approved device, made by Novocure, designed to deliver continuous

therapy for glioblastoma patients, which can result in a five-year survival rate increase from 5%

to 13% when worn for the recommended amount of time. (Id. at ¶ 4; Response to Plaintiffs’

Statement of Undisputed Material Facts (RPSUMF), Doc. 75-1 at 1, ¶ 4.) Mr. Abshire used his

Optune for the 15 months prior to his incarceration, with usage above 75% for the first two months

and below 75% the remaining months. (TSMF, Doc. 57-2 at 9, ¶ 57; RPSUMF, Doc. 75-1 at 1, ¶

4.) Dr. Trevino planned to monitor Mr. Abshire through surveillance MRIs. (PSUMF, Doc. 66-1

at 10, ¶ 7.)

Mr. Abshire was incarcerated at the Livingston Parish Detention Center (“LPDC”) on July

11, 2021. (Id. at 11, ¶ 11.) The next day, he told medical staff at the LPDC that he had been

diagnosed with brain cancer, and LPDC staff requested his medical records from Tulane Oncology.

(Id. at ¶ 13.) While Mr. Abshire was a pre-trial detainee, Dr. James Taylor, the Medical Director

at LPDC, was physically within the LPDC two days a week. (TSMF, Doc. 57-2 at 2, ¶¶ 3–4.) After

first seeing Mr. Abshire on July 15, 2021, Dr. Taylor told him that any medical treatment or testing

would be performed at University Medical Center, New Orleans. (Id. at 3–4, ¶¶ 15–16.) Dr. Taylor

continued the medications that Mr. Abshire had previously been on and increased his prescription

for Buspar to 10 milligrams three times a day for three months. (Id. at 4, ¶ 17.) Dr. Taylor noted

that if Mr. Abshire’s neurological status declined, he would need an MRI. (Id. at ¶ 20.)

LPDC received Mr. Abshire’s records from Tulane on July 19, 2021. (PSUMF, Doc. 66-1

at 11, ¶ 14.) Dr. Taylor spoke with Dr. Trevino about Mr. Abshire, his need for the Optune, the

recommended 18 hours a day usage, and Mr. Abshire’s MRI appointment. (Id. at 12, ¶¶ 21–22;

TSMF, Doc. 57-2 at 4, ¶¶ 21–22.) Soon after this conversation, Dr. Taylor indicated to Nursing

Supervisor Courtney Chaney that they needed to “see about getting [Mr. Abshire’s] device.”

(TSMF, Doc, 57-2 at 4, ¶ 23; Dr. Taylor Dep., Doc. 47-10 at 79:4–9.)

During Mr. Abshire’s incarceration, Taylor Abshire—Mr. Abshire’s daughter and a

plaintiff in this case—attempted to get Mr. Abshire’s Optune from his home, but the device was

damaged by Mr. Abshire’s fiancé throwing it down the stairs. (PSUMF, Doc. 66-1 at 11, ¶ 15.)

The family was concerned that the Optune was broken, and a piece was missing, so a new device

was ordered. (Id. at ¶ 16.) The new Optune was delivered to the LPDC on July 30, 2021. (Id. at

12, ¶ 17.) The new Optune was placed in Ms. Chaney’s office that day but was not opened until

August 12, 2021. (Id. at 14, ¶¶ 30–31.)2

On August 2, 2021, Dr. Taylor referred Mr. Abshire to hematology/oncology through the

Livingston Parish Detention Center Doctor Call. (TSMF, Doc. 57-2 at 5, ¶ 28.) The same day,

LPDC contacted the Department of Corrections (“DOC”) and requested an oncology appointment

with imaging, which was scheduled for August 31, 2021. (Id. at ¶ 29.) The appointment was

cancelled because of Hurricane Ida. (Id.)

On August 24, 2021, Dr. Taylor visited Mr. Abshire, had his vitals taken, and obtained a

history from him. (Id. at 7, ¶ 40.) At this visit, Mr. Abshire reported an increase in headaches and

trouble sleeping. (Id. at ¶ 40.) On September 9, 2021, Dr. Taylor saw Mr. Abshire in response to

his complaints of confusion, and “advised that his referral for Hematology/Oncology was back in

the system.” (Id. at ¶ 44.) Two days later, Mr. Abshire passed out and was transferred to Our Lady

2 The Court notes that PSUMF states the date as August 12, 2022, but given that Plaintiffs admit to TSMF ¶ 30,

stating the date as August 12, 2021, and that Mr. Abshire passed away in November 2021, the discrepancy seems to

be a mere typographical error.

of the Lake, which Dr. Taylor did not need to approve because Mr. Abshire’s situation was

emergent. (Id. at ¶¶ 46–47.)

Mr. Abshire was released on his own recognizance and went for treatment by Dr. Trevino

at Tulane Medical Center. (PSUMF, Doc. 66-1 at 23, ¶ 97; TSMF, Doc. 57-2 at 8, ¶ 52.) An MRI

revealed that a tumor had developed in the back left part of Mr. Abshire’s brain, away from his

original tumor site, which was on the front right. (TSMF, Doc. 57-2 at 8, ¶¶ 49–52.) Dr. Trevino

performed surgery to address the tumor, but Mr. Abshire passed away on November 28, 2021, due

to complications from the surgery. (Id. at ¶ 54.)

II. RULE 56 STANDARD

“The court shall 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.” Fed. R.

Civ. P. 56(a). “The movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’ ”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

However, “the movant ‘need not negate the elements of the nonmovant’s case.’ ” Id.

(quoting Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005) (quoting Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc))). That is, “[a] movant for summary

judgment need not set forth evidence when the nonmovant bears the burden of persuasion at trial.”

Wease v. Ocwen Loan Servicing, L.L.C., 915 F.3d 987, 997 (5th Cir. 2019) (citing Celotex, 477

U.S. at 323 (“we find no express or implied requirement in Rule 56 that the moving party support

its motion with affidavits or other similar materials negating the opponent’s claim.”) (emphasis in

original)). “The moving party may meet its burden to demonstrate the absence of a genuine issue

of material fact by pointing out that the record contains no support for the non-moving party’s

claim.” Id. (citing Stahl v. Novartis Pharm. Corp., 283 F.3d 254, 263 (5th Cir. 2002)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material facts. . .

. [T]he nonmoving party must come forward with ‘specific facts showing that there is a genuine

issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986)

(internal citations omitted). The non-mover’s burden is not satisfied by “conclusory allegations,

by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted).

Ultimately, “where the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the credibility of

the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in favor

of the nonmoving party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations omitted).

III. DISCUSSION

a. Parties’ Arguments

i. Motion for Summary Judgment (Doc. 57)

1. Deliberate Indifference

Dr. Taylor first argues that he was not deliberately indifferent to Mr. Abshire’s serious

medical needs. (Doc. 57-1 at 9.) He looks to Fifth Circuit precedent that says “deliberate

indifference ‘is an extremely high standard to meet.’ ” (Id. (quoting Gobert v. Caldwell, 463 F.3d

339, 346 (5th Cir. 2006) (quoting Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756

(5th Cir. 2001))).) “Deliberate indifference encompasses only unnecessary and wanton infliction

of pain repugnant to the conscience of mankind.” (Id. (citing Estelle v. Gamble, 429 U.S. 97, 105–

06 (1976)).) Dr. Taylor argues that even negligence, gross negligence, malpractice, or unsuccessful

treatment do not rise to the level of deliberate indifference. (Id. at 10 (quoting Gobert, 463 F.3d at

346).) He says that mere dissatisfaction with the medical treatment does not constitute deliberate

indifference. (Id.)

Dr. Taylor asserts that “Plaintiffs have no evidence sufficient to support a possible finding

of deliberate indifference on the part of Dr. Taylor to Mr. Abshire’s medical needs, an essential

element of a Section 1983 claim for damages.” (Id. at 12.) He argues that he saw Mr. Abshire three

times in response to sick call requests, reviewed his records, continued medications, ordered an

MRI if there was a decline in neurological status, referred Mr. Abshire for an oncology

appointment, and attempted to have the Optune set up. (Id.) Like Ms. Chaney, Dr. Taylor believed

that the Optune had to be set up, in person, by a Novocure Representative. (Id. at 12–13.) Dr.

Taylor argues that all of these actions show that he did not breach the standard of care and was

thus not deliberately indifferent to Mr. Abshire’s medical needs. (Id. at 13.)

2. Causation

Next, Dr. Taylor argues that, if the Court does find that he was deliberately indifferent,

Plaintiffs cannot prove that he caused the recurrence of the glioblastoma tumor. (Id.) He says that

glioblastoma “is regarded as an incurable cancer that will almost inevitably recur but does respond

to treatment. The nature of the glioblastoma is such that tumor recurrence is virtually inevitable

and is fatal.” (Id. at 14.) The Optune is a device that slows progression of glioblastoma but cannot

reverse tumor growth. (Id. at 15.)

Dr. Taylor points the Court to evidence that shows Mr. Abshire did not use the Optune

optimally in the time before he was incarcerated, and argues that even if Mr. Abshire had the

Optune while in the LPDC, it would have been focused on the front right part of his brain, the site

of the original tumor resection. (Id. at 15.) He also points out that the MRI performed on Mr.

Abshire in September 2021 showed no growth at the previous site but did show a new tumor in

the back left portion of his brain, away from where the arrays of the Optune would have been

focused. (Id. at 15–16.) Joint defense expert Dr. Jon Olson opined that the Optune would not have

stopped this tumor from developing. (Id. at 16.) Dr. Taylor also says that, given Dr. Trevino’s

testimony that the new tumor had probably only existed for a few weeks and that there was no way

to know if the growth of the tumor was affected by the lack of the Optune, there is no expert

medical evidence to show that Dr. Taylor’s actions caused Mr. Abshire’s tumor to return, causing

his death. (Id. at 16–17.)

3. Qualified Immunity

Finally, Dr. Taylor argues that he is entitled to qualified immunity because Plaintiffs cannot

prove a constitutional violation. (Id. at 17–18.) He says that he “appropriately and adequately cared

for Mr. Abshire while he was a pre-trial detainee at the LPDC.” (Id. at 18.)

Even if the Court finds a constitutional violation, Dr. Taylor avers that his actions were

objectively reasonable, as he attempted to get Mr. Abshire specialty care and the Optune, but

Hurricane Ida, DOC’s referral procedures, and the COVID protocols of the LPDC prevented Mr.

Abshire from receiving this care. (Id. at 19–20.) He finally repeats his argument that there is no

evidence of causation and therefore he is entitled to qualified immunity. (Id. at 20.)

ii. Opposition (Doc. 66)

1. Deliberate Indifference

Plaintiffs respond to Dr. Taylor’s argument that he was not deliberately indifferent by

citing to this Court’s ruling on Dr. Taylor’s Motion to Dismiss, which said that the refusal to

provide the Optune despite knowledge that Mr. Abshire needed it was deliberate indifference and

every reasonable officer would know that. (Doc. 66 at 3 (quoting Abshire v. Livingston Par., No.

CV 22-548-JWD-SDJ, 2023 WL 3589657, at *9 (M.D. La. May 22, 2023).) They argue that the

facts produced in discovery further support their claim for deliberate indifference. (Id.) Plaintiffs

say that Dr. Taylor “failed to attend to Mr. Abshire’s serious medical needs,” and lacked diligence

in not providing the Optune or a visit to the oncologist. (Id.) They claim that Dr. Taylor’s deliberate

indifference was a violation of the Eighth Amendment right to be free of unnecessary and wanton

infliction of pain. (Id. at 3–4.)

Plaintiffs argue that “[a] non-medical reason for delay in treatment constitutes deliberate

indifference.” (Id. at 4 (citing Delaughter v. Woodall, 909 F.3d 130, 138 (5th Cir. 2018)).) They

say that the delay in Mr. Abshire getting the Optune was not due to “medically-based decision-

making,” rather it was based on indifference and apathy. (Id. at 4.) They look to Dr. Taylor’s

inaction surrounding the Optune, saying that he did not attempt to figure out how it works or

attempt to set it up. (Id. at 5.) The actions that Dr. Taylor did take, like telling Ms. Chaney to “get

with Ben” regarding the request that Warden Benjamin Ballard allow a Novocure Representative

come into the LPDC, were not enough to “rise to the level of ‘medical care’ . . . .” (Id. at 5–6.)

“Dr. Taylor had a non-delegable duty to provide medical care to Mr. Abshire.” (Id. at 6.)

Plaintiffs argue that this duty arises from a Supreme Court decision, West v. Atkins, which said

that “[c]ontracting out prison medical care does not relieve the State of its constitutional duty to

provide adequate medical treatment to those in its custody, and it does not deprive the State’s

prisoners of the means to vindicate their Eighth Amendment rights.” (Id. (quoting West v. Atkins,

487 U.S. 42, 56 (1988)) (internal quotation marks omitted).) They argue that Dr. Taylor cannot

shift the responsibility of medical care onto Ms. Chaney, a nurse. (Id.)

Further, Plaintiffs contend that withholding necessary treatment can constitute deliberate

indifference, and Dr. Taylor withheld necessary treatment from Mr. Abshire for two months. (Id.

at 7.) They aver that Dr. Taylor knew that Mr. Abshire needed the Optune and “did not take easily

available steps to make the device available, such [as] reading the instruction manual, calling the

company, or sending them an email asking for help.” (Id.) Plaintiffs say that Dr. Taylor also did

not allow Mr. Abshire to go to his MRI appointment with Dr. Trevino because of his understanding

of a DOC rule. (Id. at 7–8.) More specifically, Dr. Taylor did not try to transfer Mr. Abshire

because he thought that the DOC had a rule requiring that all specialty medical services be

performed by University Medical Center or Lallie Kemp Hospital. (Id.) However, Louisiana

Revised Statutes § 15:831, the law requiring that inmates be treated within the charity hospital

system, does not apply to pre-trial detainees like Mr. Abshire. (Id. at 9.) Plaintiffs argue that Dr.

Taylor should have investigated the DOC rule to see if it applied to Mr. Abshire. (Id.)

Plaintiffs next argue that Dr. Taylor should have requested a compassionate release for Mr.

Abshire because he knew,

(1) the LPDC did not have the facilities necessary to care for a cancer patient like

Mr. Abshire; (2) Mr. Abshire was not getting access to his Optune at the LPDC; (3)

Mr. Abshire needed to see an oncologist; (4) Mr. Abshire did not see an oncologist

at any during his incarceration; and (5) knew that compassionate releases were

available at the LPDC.

(Id. at 9–10.) They argue that Dr. Taylor knew that compassionate releases were available but

failed to familiarize himself with the process to request a release. (Id. at 10.) Warden Ballard had

been involved in many compassionate releases, but he was not contacted by Dr. Taylor or Ms.

Chaney. (Id.) Plaintiffs maintain that since there were ways for Mr. Abshire to receive his care and

Dr. Taylor failed to provide that care, a reasonable jury could find that Dr. Taylor was deliberately

indifferent toward Mr. Abshire. (Id.)

In response to Dr. Taylor’s alleged justifications, Plaintiffs say that these are “several

exaggerations and excuses[.]” (Id. at 11.) They point out that Dr. Taylor did not attempt to get the

Optune set up, he simply told Ms. Chaney to contact the warden. (Id.) Further, they repeat the

argument that the Optune may be used right out of the box, but Dr. Taylor did not attempt to make

it available to Mr. Abshire. (Id.) Plaintiffs also argue that, according to Warden Ballard, the LPDC

did not have a policy in 2021 that prohibited outside vendors from entering the facility. (Id. at 12.)

Additionally, Plaintiffs say that if Dr. Taylor had looked into the DOC rule about specialist care,

Mr. Abshire would have been able to go to his appointment on August 19, 2021, avoiding the

cancelled appointment because of Hurricane Ida. (Id. at 12–13.)

2. Causation

Plaintiffs concede that they do not have medical evidence to prove that Dr. Taylor caused

Mr. Abshire’s death. (Id. at 13.) However, they are still pursuing damages for emotional distress,

pain and suffering, and humiliation caused by Dr. Taylor not providing his Optune, not letting him

see an oncologist, and giving minimally necessary care. (Id.) Plaintiffs are asserting that Mr.

Abshire experienced mental and emotional distress while and because his treatment was delayed

and that these damages are compensable under § 1983. (Id.)

Plaintiffs argue that they do not need an expert to testify on the causation of Mr. Abshire’s

damages because it is within the common sense of a lay person that someone with cancer not

receiving needed treatment would be in mental distress. (Id. at 13–16.) They cite to Mr. Abshire’s

numerous Viapath messages to his family where he told them how distressed and in pain he was.

(Id. at 16–17.)

3. Qualified Immunity

Finally, Plaintiffs argue that Dr. Taylor is not entitled to qualified immunity because the

right of pre-trial detainees to necessary medical care is a clearly established Fourteenth

Amendment right. (Id. at 18.) They cite to this Court’s previous ruling stating that every reasonable

officer would know that Dr. Taylor’s conduct was deliberately indifferent. (Id. at 18.)

Plaintiffs re-urge their argument that the doctrine of qualified immunity is unsound. (Id.

18–19.)

iii. Reply (Doc. 75)

1. Deliberate Indifference

In response, Dr. Taylor argues that “Plaintiffs have presented no competent evidence that

Dr. Taylor refused to treat Mr. Abshire, ignored his complaints, or intentionally treated him

incorrectly.” (Doc. 75 at 4.) He says that Plaintiffs have not offered any evidence to contradict Dr.

Olson’s opinion that Dr. Taylor acted appropriately. (Id.)

Dr. Taylor addresses Delaughter, cited by Plaintiffs, by saying that it actually supports his

position that summary judgment should be granted. (Id.) He argues that the court in Delaughter

affirmed the granting of summary judgment because the doctor did not have the “authority to

authorize, schedule, or pay for Delaughter’s surgery.” (Id. at 5 (quoting Delaughter, 909 F.3d at

136).) Dr. Taylor says that the same is true here, he “did not have the requisite personal

involvement to be liable to Plaintiffs for medical indifference.” (Id.) He also argues that

Novocure’s Representative cannot give expert opinion testimony regarding the Optune that rebuts

Drs. Taylor and Olson’s testimony that the Dr. Taylor and Livingston Parish appropriately sought

training and that the Optune should not be used by someone who has not been trained on it. (Id. at

6.)

Dr. Taylor insists that he “did not ignore, refuse to treat, or refuse to refer Mr. Abshire out

for treatment.” (Id. at 8.) He looks to his deposition testimony, where he said that he does not know

how the transport and referral process would have gone if the DOC referral rule had not been in

place because there are several factors to consider. (Id.) Further, he says that there is no evidence

that Dr. Taylor and Ms. Chaney were wrong in believing they did not have the authority to request

a compassionate medical release. (Id. at 8–9.) Dr. Taylor once again argues that Plaintiffs have not

produced evidence to rebut Dr. Olson’s opinion that the Optune required set up by the

manufacturer. (Id.)

2. Causation

Dr. Taylor first argues that Plaintiffs cannot seek emotional damages because the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(e) does not allow for mental or emotional damages

without a showing of physical injury. (Id. at 10.) He says that Plaintiffs have not alleged that Mr.

Abshire suffered any physical injury and cannot prove that any injury was caused by Dr. Taylor.

(Id. at 10–11.) Plaintiffs have conceded that they lack evidence to show that Mr. Abshire’s death

was caused or hastened by Dr. Taylor. (Id. at 11.) Dr. Taylor argues that Plaintiffs do need expert

testimony to rebut defense expert testimony that the lack of the Optune did not cause Mr. Abshire’s

tumor recurrence. (Id.)

Dr. Taylor objects to the Viapath messages from Mr. Abshire on the grounds that they “do

not establish a disputed issue of fact.” (Id. at 12.) Just because Mr. Abshire spoke about his care

does not mean his statements are accurate. (Id.) He also argues that the messages would not be

able to be presented in an admissible form at trial because they are not verified or certified and “it

is unlikely that there are any witnesses to attest to the accuracy of the statements contained

therein.” (Id.)

3. Qualified Immunity

Dr. Taylor contends that the cases cited by Plaintiffs are not applicable to this case because

they are factually distinguishable. (Id. at 13.)

b. Law and Analysis

i. Introduction

In summary, the Court will grant the Motion for Summary Judgment. Although there are

genuine issues of material fact regarding the actions that Dr. Taylor took while Mr. Abshire was

incarcerated, Plaintiffs have failed to raise a genuine issue of material fact as to whether Dr. Taylor

was deliberately indifferent to Mr. Abshire. Because Dr. Taylor provided care to Mr. Abshire

which was, at worst, negligent or even grossly negligent, he did not exhibit a wanton disregard for

Mr. Abshire’s serious medical needs. Therefore, Plaintiffs cannot meet their burden to prove that

there was a constitutional violation and thus Dr. Taylor is entitled to qualified immunity.

“Qualified immunity provides government officials performing discretionary functions

with a shield against civil damages liability, so long as their actions could reasonably have been

thought consistent with the rights they are alleged to have violated.” Gobert v. Caldwell, 463 F.3d

339, 345 (5th Cir. 2006) (citing Anderson v. Creighton, 483 U.S. 635, 638 (1987)). “Qualified

immunity involves answering two questions: (1) whether the officer violated a constitutional right,

and (2) whether the right at issue was clearly established at the time of the alleged misconduct.”

Parker v. LeBlanc, 73 F.4th 400, 406 (5th Cir. 2023) (quoting Morrow v. Meachum, 917 F.3d 870,

874 (5th Cir. 2019) (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009))) (cleaned up). Courts

are “permitted to exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances in the particular

case at hand.” Pearson, 555 U.S. at 236.

ii. Constitutional Violation

“The constitutional rights of a pretrial detainee . . . flow from both the procedural and

substantive due process guarantees of the Fourteenth Amendment.” Hare v. City of Corinth, 74

F.3d 633, 639 (5th Cir. 1996) (en banc). The Fifth Circuit recognizes “that there is no significant

distinction between pretrial detainees and convicted inmates concerning basic human needs such

as medical care.” Gibbs v. Grimmette, 254 F.3d 545, 548 (5th Cir. 2001) (citing Hare, 74 F.3d at

643). Whether the inmate is a pretrial detainee or a state inmate, “the question is whether the state

official acted with deliberate indifference to the inmate’s constitutional rights . . . .” Id. As will be

explored in more detail below:

[D]eliberate indifference is “an extremely high standard.” The prisoner “must first

prove objective exposure to a substantial risk of serious harm”—in other words, the

prisoner must prove a serious medical need. Second, the prisoner must prove the

officials’ subjective knowledge of this substantial risk. Third, the prisoner must

prove that the officials, despite their actual knowledge of the substantial risk, denied

or delayed the prisoner’s medical treatment. Finally, the prisoner must prove that

the delay in or denial of medical treatment resulted in substantial harm, such as

suffering additional pain. Importantly, “disagreement about the recommended

medical treatment is generally not sufficient to show deliberate indifference.”

Petzold v. Rostollan, 946 F.3d 242, 248–49 (5th Cir. 2019) (internal footnotes omitted).

Here, Dr. Taylor argues that he was not deliberately indifferent because, although he did

not provide the Optune to Mr. Abshire, he did respond to his medical needs through visits,

continuing medication, and referring him for an MRI. (Doc. 57-1 at 12.)

The first element of a deliberate indifference claim is that Plaintiffs must establish there

was a substantial risk of serious harm to Mr. Abshire, in other words, a serious medical need. “A

serious medical need is one that has been diagnosed by a physician as mandating treatment or one

that is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Mounce v. Doe, No. 12-669, 2014 WL 2587698, at *23 (E.D. La. June 10, 2014). Both

parties agree that Mr. Abshire had been diagnosed with glioblastoma brain cancer, which is a

particularly aggressive form of cancer. (PSUMF, Doc. 66-1 at 9–10, ¶¶ 1–2; RPSUMF, Doc. 75-1

at 1, ¶¶ 1–2.) The parties do not dispute that Mr. Abshire had been prescribed the Optune to prevent

tumor regrowth. This cancer posed a serious threat to Mr. Abshire’s life and the Optune was

intended to decrease that threat. Therefore, Plaintiffs can prove the first element of the deliberate

indifference claim.

Next, Plaintiffs must prove that Dr. Taylor knew of this substantial risk. Dr. Taylor admits

that he spoke to Dr. Trevino about Mr. Abshire’s diagnosis and the need for the Optune. (Doc. 57-

2 at 4, ¶¶ 21–22.) Thus, the second element is met.

Next, Plaintiffs must prove that Dr. Taylor was deliberately indifferent in denying or

delaying Mr. Abshire’s care, despite knowledge that he needed it. “Unsuccessful medical

treatment, acts of negligence, or medical malpractice do not constitute deliberate indifference, nor

does a prisoner’s disagreement with his medical treatment, absent exceptional circumstances.”

Gobert, 463 F.3d at 346 (citations omitted). “He must allege that officials ‘refused to treat him,

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.’ ” Stevenson v. Tocé,

113 F.4th 494, 502 (5th Cir. 2024) (quoting Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006)).

Moreover, “ ‘[m]edical records of sick calls, examinations, diagnoses, and medications may rebut

an inmate's allegations of deliberate indifference.’ ” Gobert, 463 F.3d at 346 n.24 (quoting

Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995)). Again, “[d]eliberate indifference ‘is an

extremely high standard to meet.’” Id. (quoting Domino, 239 F.3d at 756).

Even looking at the evidence in the light most favorable to Plaintiffs, Dr. Taylor’s actions

were not deliberately indifferent.

The parties agree that Dr. Taylor did visit Mr. Abshire while he was incarcerated and

continued his prescription medications. (TSMF, Doc. 57-2 at 4, ¶¶ 17–18.) Dr. Taylor even

increased one of Mr. Abshire’s prescriptions. (Id.) He made a note in Mr. Abshire’s chart that he

would need an MRI if his neurological status declined and worked with DOC to schedule a

specialist appointment. (Id. at ¶¶ 20, 29.) These actions show that Dr. Taylor was not ignoring Mr.

Abshire or refusing to treat him; rather, his care to Mr. Abshire amounted to negligent or even

grossly negligent conduct, which is insufficient to establish deliberate indifference.

Examples of the Fifth’s Circuit’s application of this standard abound. In Zaunbrecher v.

Gaudin, Zaunbrecher was an inmate at the Ascension Parish jail for approximately seven weeks

before his death. 641 Fed. App’x 340, 341 (5th Cir. 2016). When he was admitted into the jail, he

told jail officials about some of his pre-existing medical conditions but did not inform them that

he suffered from diverticulitis. Id. While at the jail, Zaunbrecher complained of severe back pain

and requested refills on his Ibuprofen. Id. at 341–42. The nursing staff did not examine

Zaunbrecher until three days after his initial medical request, where he complained of constipation

and back pain. Id. at 341. During this examination, the nurse offered Zaunbrecher Tylenol for his

pain, and noted that he had decreased bowel sounds. Id. The nurse offered Zaunbrecher a laxative,

but the next day Zaunbrecher submitted a medical form complaining that the laxative had not

worked. Id. Another nurse examined Zaunbrecher that day, determined that the stimulant laxative

did not work, and prescribed a more powerful one. Id. at 343. Over the next few days, Zaunbrecher

began vomiting and the nursing staff only advised to take additional measures if his condition

worsened. Id. Zaunbrecher did worsen, and jail staff was ordered by the nursing staff to get him to

a hospital, but that they did not need an ambulance. Id. It took 45 minutes to transport him to a

hospital that was 15 minutes away from the jail. Id. Zaunbrecher died on the way to the hospital,

as a result of “acute peritonitis due to narrowing of the bowel and bowel obstruction due to

diverticulitis.” Id. at 343–344 (internal quotation marks omitted).

The Fifth Circuit held that even though the nursing staff’s misdiagnosis of Zaunbrecher

may have led to his death, their actions did not rise to the level of deliberate indifference. Id. at

346.

A trier of fact might find that several of Richard’s actions—e.g., her failure to read

Zaunbrecher’s medical request forms before treating him, her failure to follow-up

with Zaunbrecher, her failure to instruct to Jail’s guards to monitor him, or her

failure to notify Gautreau of Zaunbrecher’s symptoms—could amount to ill-

advised decisions not to provide additional treatment or a failure to adhere to an

appropriate standard of care. Yet, such acts are not the type of “egregious

intentional conduct” that rises to the level of deliberate indifference.

Id. The nurses were granted qualified immunity. Id. at 349.

In Thomas v. Carter, an inmate requested follow-up appointments with a specialist to have

hip replacement surgery, but no appointment was scheduled. 593 Fed. App’x 338, 340–42 (5th

Cir. 2014) (per curiam). The Court said that “[w]hile the intentional failure to schedule an

appointment with a medical specialist may amount to deliberate indifference when it causes

substantial harm, the negligent failure to schedule an appointment does not.” Id. at 344 (citing

Carrothers v. Kelly, 312 Fed. App’x 600, 602–03 (5th Cir. 2009)). The Fifth Circuit applied this

same standard in Stewart v. Murphy, where a doctor did not discover a decubitus ulcer on an

inmate’s back after treating him for five days, then ordered that the ulcer be cleaned and treated

with antibiotics and be treated with follow-up care. 174 F.3d 530, 534 (5th Cir. 1999). The Court

held that the doctor was not deliberately indifferent because the care was “far more than

‘rudimentary’ medical care.” Id.

The same is true here. Plaintiffs have raised issues of fact as to whether Dr. Taylor could

have done more for Mr. Abshire and whether Taylor’s treatment met the standard of care or was

negligent. His failures to have Mr. Abshire seen by a specialist, arrange for timely additional

testing, or get Mr. Abshire compassionate release may have been due to a misunderstanding of the

applicable policies. But the standard for establishing deliberate indifference is not negligence or

even gross negligence. Henderson v. LeBlanc, No. 16-265, 2018 WL 2050149, at *6 (M.D. La.

May 2, 2018) (deGravelles, J.) (quoting Estate of Davis ex rel. McCully v. City of North Richland

Hills, 406 F.3d 375, 381 (5th Cir. 2005).

Here, there is no question that Dr. Taylor provided care to Mr. Abshire. He did not ignore

Mr. Abshire’s complaints and made efforts to have Mr. Abshire seen by a specialist. While these

efforts may have been suboptimal or even negligent, they do not “evince a wanton disregard for

any serious medical needs.” Stevenson, 113 F.4th at 502 (internal quotation marks omitted).

Therefore, even when looking at the evidence in a light most favorable to Plaintiffs, it is clear

under the prevailing standard that they will not be able to prove a constitutional violation.3

Because Plaintiffs cannot prove a constitutional violation, they will not be able to overcome

Dr. Taylor’s qualified immunity. The Court need not reach the issue of whether the right was

clearly established or whether the alleged denial of or delay in treatment resulted in substantial

harm. Dr. Taylor is immune from suit and is entitled to summary judgment. Plaintiffs’ claim

against Dr. Taylor will be dismissed.

The Court finds that, even when looking at the evidence in a light most favorable to the

non-movant, Plaintiffs will not be able to prove a constitutional violation because Dr. Taylor’s

3 The Court notes that, at the motion to dismiss stage, it held that Plaintiffs had overcome qualified immunity. The

Complaint does not mention any other care that Mr. Abshire received while incarcerated. (Doc. 1.) The facts

revealed in the Motion for Summary Judgment detail the care that Dr. Taylor gave Mr. Abshire that was not included

in the Complaint, and support a finding of qualified immunity here.

actions did not rise to deliberate indifference. Therefore, the Dr. Taylor is entitled to qualified

immunity and the Motion for Summary Judgment will be granted.

The Court notes Plaintiffs’ renewed objection to the doctrine of qualified immunity, but as

explained more fully in this Court’s ruling on Dr. Taylor’s Motion to Dismiss, it must follow

Supreme Court and Fifth Circuit precedent that recognizes qualified immunity and reject

Plaintiffs’ argument. No. 22-548, 2023 WL 3589657, at *9–10 (M.D. La. May 22, 2023)

(deGravelles, J.).

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment (Doc. 57) filed by Defendant

Dr. James Taylor is GRANTED, and all claims by Plaintiffs against Dr. James Taylor will be

DISMISSED WITH PREJUDICE.

Signed in Baton Rouge, Louisiana, on February 6, 2025.

S

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA