Joiner v. Lewis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOHN JOINER CIVIL ACTION

VERSUS NO. 23-7144

TAYLOR LEWIS, ET AL. SECTION “R” (4)

ORDER AND REASONS

Before the Court is defendants Samuel Gore and Jose Ham’s opposed1

motion for summary judgment.2 For the following reasons, the Court grants

the motion.

I. BACKGROUND

This case arises out of injuries following an alleged incident after a

traffic stop.3 Plaintiff John Joiner, proceeding pro se, alleges that he was in

an altercation with police that led to a jaw injury.4 He alleges that, during

the course of receiving medical treatment, he was denied follow-up

appointments and refused treatment, resulting in chronic pain.5 Plaintiff

filed a complaint in this Court, alleging violations of his Eighth Amendment

1 R. Doc. 88.

2 R. Doc. 86

3 R. Doc. 1 at 5.

4 Id.

5 Id.

rights under 42 U.S.C. § 1983 against two police officers and physicians, Dr.

Samuel Gore and Dr. Jose Ham.6

Defendants Dr. Gore and Dr. Ham move for summary judgment on

plaintiff’s Section 1983 claim. They argue that plaintiff cannot establish

deliberate indifference.7 Defendants filed this motion before the Court set

discovery deadlines. Plaintiff opposes the motion.8

The Court considers the motion below.

II. LEGAL STANDARD

Courts “liberally construe briefs of pro se litigants and apply less

stringent standards to parties proceeding pro se than to parties represented

by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per curiam).

This does not mean, however, that a court “will invent, out of whole cloth,

novel arguments on behalf of a pro se plaintiff in the absence of meaningful,

albeit imperfect, briefing.” Jones v. Alfred, 353 Fed. Appx. 949, 952 (5th Cir.

2009). Additionally, pro se litigants must abide by the applicable federal

rules. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

6 R. Doc. 1.

7 R. Doc. 86.

8 R. Doc. 88.

Summary judgment is warranted when “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); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a

dispute to any material fact exists, [the Court] consider[s] all of the evidence

in the record but refrain[s] from making credibility determinations or

weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness

Ins., 530 F.3d 395, 398-99 (5th Cir. 2008) (first citing Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and then citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). All

reasonable inferences are drawn in favor of the nonmoving party, but

“unsupported allegations or affidavits setting forth ‘ultimate or conclusory

facts and conclusions of law’ are insufficient to either support or defeat a

motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d

1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little,

37 F.3d at 1075 (noting that the moving party’s “burden is not satisfied with

‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of

evidence” (citations omitted)). “No genuine dispute of fact exists if the

record taken as a whole could not lead a rational trier of fact to find for the

non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir.

2014).

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.

III. DISCUSSION

A. Timing of Defendants’ Motion

Defendants filed this motion before discovery has been scheduled.

While “Rule 56 does not require that any discovery take place before

summary judgment can be granted,” Washington v. Allstate Ins. Co., 901

F.2d 1281, 1285 (5th Cir. 1990), a party must be “given a full and fair

opportunity to discover information essential to its opposition to summary

judgment,” Brown v. Mississippi Valley State Univ., 311 F.3d 328, 333 (5th

Cir. 2002). A party asserting a need for discovery must make a showing

pursuant to Rule 56(d). Baker, 430 F.3d at 756. Under Rule 56(d), the Court

may “defer considering the motion [for summary judgment] or deny it” if a

“nonmovant shows by affidavit or declaration that, for specified reasons, it

cannot present facts essential to justify its opposition.” Fed. R. Civ. P.

56(d)(1). Rule 56(d) motions are “broadly favored and should be liberally

granted,” because the rule is designed to “safeguard non-moving parties

from summary judgment motions they cannot adequately oppose.” Culwell

v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006).

With their motion, defendants filed 156 pages of plaintiff’s medical

records spanning from January 20, 2023, to January 10, 2024.9 Plaintiff

gave no indication that he needed or desired more discovery than these

records. He did not file an affidavit stating that more discovery would be

helpful and made no effort to comply with Rule 56(d). His arguments relied

only on these medical records in attempting to establish that defendants

were deliberately indifferent to his serious medical needs in violation of the

Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).

Defendants argue that the course of conduct outlined in the medical records

9 R. Doc. 86-2.

does not establish deliberate indifference, while plaintiff argues that it does.

Because plaintiff assumed that the evidence in the medical records was

sufficient to oppose summary judgment, and because there appears to be no

genuine issue as to any material fact, the Court holds that plaintiff has had a

full and fair opportunity to discover information essential to his opposition

to summary judgment. The summary judgment record is ripe for

consideration, and there is no reason to delay consideration of the summary

judgment motion pending further discovery.

B. Plaintiff’s Eighth Amendment Claims

Under the Eighth Amendment, “[t]he mere delay of medical care can

. . . constitute an Eighth Amendment violation,” but only if there has been a

deliberate indifference that results in substantial harm. Easter v. Powell,

467 F.3d 459, 463 (5th Cir. 2006). A prison official acts with deliberate

indifference “only if [(A)] he knows that inmates face a substantial risk of

serious bodily harm and [(B)] he disregards that risk by failing to take

reasonable measures to abate it.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th

Cir. 2006) (alteration in original) (quoting Farmer v. Brennan, 511 U.S. 825,

825 (1994)). A plaintiff must show that an official “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.” Domino v. Texas Dep’t of Crim. Just., 239 F.3d 752,

756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985)).

“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. Arguing that the physician did not

provide plaintiff’s desired course of treatment is insufficient because “the

decision whether to provide additional treatment ‘is a classic example of a

matter for medical judgment.’” Id. (quoting Estelle, 429 U.S. at 107).

“Medical records of sick calls, examinations, diagnoses, and medications

may rebut an inmate’s allegations of deliberate indifference.” Banuelos v.

McFarland, 41 F.3d 232, 235 (5th Cir. 1995); see Brauner v. Coody, 793 F.3d

493, 500 (5th Cir. 2015) (“Deliberate indifference is not established when

‘medical records indicate that [the plaintiff] was afforded extensive medical

care by prison officials.’” (alteration in original) (quoting Norton v.

Dimazana, 122 F.3d 286, 292 (5th Cir. 1997)); see also Johnson v. Treen,

759 F.2d 1236, 1238 (5th Cir. 1985) (assertions that the prison’s medical

personnel have incorrectly diagnosed plaintiff’s illness or that their

treatment has been unsuccessful is not sufficient to establish a genuine fact

issue as to whether an Eighth Amendment violation occurred). For these

reasons, “[d]eliberate indifference is an extremely high standard to meet.”

Domino, 239 F.3d at 756.

Plaintiff fails to point to evidence raising a material issue of fact that

defendants Dr. Gore and Dr. Ham were deliberately indifferent to his

medical needs. Plaintiff’s claims rest on his assertion that defendants

intentionally denied him follow-up appointments and refused him treatment

for issues related to his jaw.10 Specifically, plaintiff asserts that defendants

rescheduled his appointments to days in which he could not be evaluated by

a particular specialist and that defendants hampered his surgery in order to

evade the cost to fix his jaw.11 But plaintiff’s medical records demonstrate

that the medical professionals were responsive to plaintiff’s needs and that

he received treatment.

Dr. Samuel Gore served as plaintiff’s treating physician at the jail,12 and

Dr. Jose Ham served as a medical supervisor.13 The record reflects that

plaintiff was seen by a medical professional fifteen times between January

10 R. Doc. 1 at 5.

11 R. Doc. 88 at 7–8.

12 See id. at 25, 59, 65, 74, 105, 113, 115, 126, & 129.

13 R. Doc. 86-1 at 6.

20, 2023, and January 10, 2024.14 Although plaintiff sought medical

treatment for other ailments during the year, eleven of his provider visits

related to his jaw pain.15 Of those, six appointments were with providers

employed by the jail,16 and four were appointments with outside physicians

to which Dr. Gore referred plaintiff.17 He was evaluated by Dr. Gore once, on

January 10, 2024.18 He was never evaluated by Dr. Ham.

The record reflects that Dr. Ham’s involvement in the matter was

minimal. He simply uploaded the medical record from plaintiff’s emergency

room visit following the alleged altercation.19 Under Section 1983,

“supervisory officials are not liable for the actions of subordinates on any

14 He visited a provider on January 20, 2023; January 21, 2023; January

25, 2023; February 7, 2023; February 9, 2023; March 3, 2023; March

8, 2023; April 21, 2023; May 17, 2023; May 22, 2023; August 10, 2023;

September 7, 2023; September 24, 2023; October 11, 2023; and

January 10, 2024. R. Doc. 86-2.

15 The jaw-pain related appointments were on January 20, 2023;

January 21, 2023; January 25, 2023; February 7, 2023; February 9,

2023; March 3, 2023; March 8, 2023; April 21, 2023; May 22, 2023;

August 10, 2023; and January 10, 2024. Id.

16 These appointments were on January 21, 2023; January 25, 2023;

February 9, 2023; March 8, 2023; August 10, 2023; and January 10,

2024. Id.

17 These appointments were on February 7, 2023; March 3, 2023; April

21, 2023; and May 22, 2023. Id. One appointment, on January 20,

2023, was with an emergency room physician immediately following

the alleged altercation. Id.

18 Id. at 25.

19 Id. at 156.

theory of vicarious liability.” Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.

1987). A supervisor may be held liable if (1) he was “personal[ly] involve[d]

in the constitutional deprivation, or (2) [there existed] a sufficient causal

connection between the supervisor’s wrongful conduct and the

constitutional violation.” Id. at 304. Additionally, a supervisor can be held

liable without overt personal participation if he or she “implement[s] a policy

so deficient that the policy ‘itself is a repudiation of constitutional rights’ and

is ‘the moving force of the constitutional violation.’” Id. (quoting Grandstaff

v. City of Borger, 767 F.2d 161, 169, 170 (5th Cir. 1985)). Because Dr. Ham

is a medical supervisor, he is analyzed under this standard. There is no

evidence that Dr. Ham was personally involved in the alleged constitutional

violation of denying plaintiff follow-up appointments and refusing him

treatment; that there is a connection between any of Dr. Ham’s conduct and

the alleged violation; or that Dr. Ham implemented any deficient policy

which led to the alleged violation. Therefore, plaintiff fails to create a

genuine issue of material fact that Dr. Ham violated his constitutional rights.

The Court must grant summary judgment on plaintiff’s claims against Dr.

Ham.

Plaintiff complained that defendants denied him an appointment with

Dr. Andrew Dullnig, a physician at the University Medical Center (“UMC”),

who was supposed to evaluate plaintiff as a candidate for jaw surgery.

Plaintiff bases this complaint on the fact that he had to reschedule his

evaluation three times before he was able to be properly evaluated. Plaintiff

was initially evaluated by Dr. Amir Maki at the UMC Oral Surgery Clinic on

February 7, 2023.20 Dr. Maki referred plaintiff for a follow-up with Dr.

Dullnig.21 The next two times plaintiff attended follow-up appointments at

UMC, March 3 and April 21, Dr. Dullnig was not in the office.22 Dr. Gore

noted on each of the medical follow-up records that plaintiff needs to be

scheduled with Dr. Dullnig on a day when he is in the office.23

Plaintiff was evaluated at UMC as a candidate for jaw surgery on May

22.24 While Dr. Dullnig did not examine plaintiff, another oral surgeon

determined that plaintiff’s jaw was not likely to benefit from surgical

intervention and that he did not need another appointment.25 Even though

20 Id. at 129.

21 Id.

22 Id. at 115, 113.

23 Id. at 130 (On the February 7 record, Dr. Gore circled Dr. Dullnig’s

name along with the desired date and time and wrote “please

schedule.”); id. at 115 (On the March 3 record, Dr. Gore circled Dr.

Dullnig’s name and the desired date and wrote “please schedule

ASAP—on a Monday with this specific MD.”); Id. at 113 (On the April

21 record, Dr. Gore circled the desired date and underlined Dr.

Dullnig’s name and wrote “please reschedule.”).

24 Id. at 105.

25 Id. at 104.

plaintiff had to be rescheduled three times before receiving this evaluation,

the rescheduling resulted in only a two month delay,26 and the physicians at

UMC ultimately determined that plaintiff was not a proper candidate for

surgical intervention.

Mere delay in receiving care is not in and of itself a constitutional

violation; there is a violation only when plaintiff shows that the delay

constituted deliberate indifference to serious medical needs and resulted in

substantial harm. See Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).

Plaintiff failed to make such a showing. Though plaintiff argues that the

medical record demonstrates deliberate indifference because of the delay in

scheduling, it does not establish that the “doctors denied, substantially

delayed, or intentionally interfered with [plaintiff’s] treatment.” Stewart v.

Murphy, 174 F.3d 530, 537 (5th Cir. 1999). Plaintiff’s unsuccessful UMC

appointments were immediately rescheduled for the following month, and

practitioners in the St. Tammany Parish Jail system cared for plaintiff in the

interim. He has had numerous appointments, diagnoses, and up-to-date

medications from a variety of medical professionals.27 See Banuelos v.

26 The two months is between March 3, 2023, the date on which plaintiff

was supposed to see Dr. Dullnig for the first time, and May 22, 2023,

the date on which plaintiff attended a Monday appointment.

27 In addition to the appointments outlined above, plaintiff was

diagnosed with a zygomatic arc fracture on January 20, 2023, and

McFarland, 41 F.3d 232, 235 (5th Cir.1995) (“Medical records of sick calls,

examinations, diagnoses, and medications may rebut an inmate's allegations

of deliberate indifference.”); see also Norton v. Dimazana, 122 F.3d 286,

291–92 (5th Cir. 1997) (finding plaintiff’s “complaints about the treatments

he has received” do not amount of deliberate indifference in light of “[t]he

medical records [that] indicate that [plaintiff] was afforded extensive

medical care by prison officials, who treated him at least once a month”).

Twice failing to schedule an appointment on the correct day, even if

negligent, does not give rise to a constitutional violation. Stewart, 174 F.3d

at 534; see also Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (“It

is clear that negligent medical treatment is not a cognizable basis upon which

to predicate a section 1983 action.”). As demonstrated by the numerous

medical visits and consultations plaintiff had, Dr. Ham and Dr. Gore were

not deliberately indifferent to plaintiff’s serious medical needs.

Finally, though plaintiff may disagree with the recommended

treatment plan the practitioners at UMC and the St. Tammany Parish Jail

February 8, 2023. See id. at 65, 137. Plaintiff was also prescribed 400

mg of ibuprofen on January 22. Id. at 4. On January 25, plaintiff was

prescribed 500 mg of acetaminophen and was placed on a soft food

died. Id. at 70, 3. The 500 mg acetaminophen prescription was re-

prescribed twice within a day of it expiring on April 16, 2023, and

October 6, 2023. Id. at 3.

system ultimately settled on, “the decision whether to provide additional

treatment is a classic example of a matter for medical judgment, which fails

to give rise to a deliberate-indifference claim.” Dyer v. Houston, 964 F.3d

374, 381 (5th Cir. 2020) (internal quotations omitted); see Gros v. Lafourche

Par., 2022 WL 509357, at *6 (E.D. La. Jan. 12, 2022), report and

recommendation adopted, 2022 WL 503770 (E.D. La. Feb. 18, 2022)

(collecting cases) (“An inmate’s claims of negligent care or his mere

disagreement with the speed, quality, or extent of medical treatment

received, however, does not give rise to a § 1983 claim.”); Ducksworth v.

Macmurdo, 809 F. App'x 249, 250 (5th Cir. 2020) (per curiam) (A treating

physician’s decision “not [to] follow the treatment recommendation of

another physician . . . does not establish deliberate indifference.”). Plaintiff

fails to raise an issue of material fact that Dr. Ham and Dr. Gore violated his

Eight Amendment rights and were deliberately indifferent to his medical

needs. The Court therefore grants defendant’s motion for summary

judgment and dismisses plaintiff’s Section 1983 claims against Dr. Ham and

Dr. Gore.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS defendant’s motion for

summary judgment. Plaintiff's Section 1983 claims against Samuel Gore and

Jose Ham are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 5th _ day of May, 2025.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE