# Joiner v. Lewis

> District Court, E.D. Louisiana · May 5, 2025

URL: https://www.frixlaw.com/law-library/cases/10996251

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 5, 2025
- **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/10996251

## How later opinions describe it (automated extraction)

- 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)

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10996251. Public record. Not legal advice.