Frye v. Gusman et al
ORDERED that the defendants' 22 Motion for Summary Judgment is GRANTED and that the claims against them are DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Sally Shushan. (gec, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHERIFF MARLIN GUSMAN, ET AL.
ORDER AND REASONS
Plaintiff, Bernado Frye, filed this civil action pursuant to 42 U.S.C. § 1983 against Orleans
Parish Sheriff Marlin Gusman and Dr. Samuel Gore. In this lawsuit, plaintiff claims that he was
denied adequate medical care for a fractured hand while incarcerated within the Orleans Parish
Prison system. Specifically, he states his claim as follows:
On or about March 23, 2012, I was arrested and confined in Orleans Parish Prison
with no personal injuries. On or about March 25, 2012, as I was exiting my bed, I
slipped and fractured my left hand. At time I didn't know of fracture but I endured
a lot of pain. I filled out various sick call forms and grievances pertaining to the pain
and injury. Finally after so many sick calls I saw a nurse practitioner and I was
placed on list to receive an x-ray. On or about May 24, 2012, several x-rays of my
hand and wrist were taken. On or about July 11, 2012, I was finally transported to
University Medical Center for further treatment. There I received a full arm cast.
For about 4 mos. I endured a lot of pain and suffering, without being treated.1
The defendants filed a motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.2 Plaintiff was ordered to file an opposition to that motion by July 31,
Rec. Doc. 1, pp. 4-5.
Rec. Doc. 22.
2013;3 however, no such opposition was filed.4 The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge.5
The principal purpose of Rule 56 is to isolate and dispose of factually unsupported claims.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In reviewing a motion for summary
judgment, the Court may grant the motion when no genuine issue of material fact exists and the
mover is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). There is no “genuine issue”
when the record taken as a whole could not lead a rational trier of fact to find for the nonmovant.
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Procedurally, the party moving for summary judgment bears the initial burden of informing
the district court of the basis for its motion, and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact.” Taita Chemical Co., Ltd. v.
Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001) (quotation marks and brackets omitted).
The party opposing summary judgment must then “go beyond the pleadings and by [his] own
affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp., 477 U.S. at 324
(quoting Fed.R.Civ.P. 56); see also Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 991
(5th Cir. 2001). The Court has no duty to search the record for evidence to support a party’s
Rec. Doc. 24.
Plaintiff instead filed a motion for appointment of counsel, Rec. Doc. 26, which was denied,
Rec. Doc. 27.
Rec. Doc. 18.
opposition to summary judgment; rather, “[t]he party opposing summary judgment is required to
identify specific evidence in the record and to articulate the precise manner in which the evidence
supports his or her claim.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Conclusory statements, speculation, and unsubstantiated assertions are not competent summary
judgment evidence and will not suffice to defeat a properly supported motion for summary
judgment. Id.; Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).
The defendants first argue that plaintiff has failed to state a proper official-capacity claim
against them. They are correct. “Official capacity suits generally represent another way of pleading
an action against an entity of which an officer is an agent.” Burge v. Parish of St. Tammany, 187
F.3d 452, 466 (5th Cir. 1999). Accordingly, an official-capacity claim against the defendants would
in reality be a claim against the local governmental entity they serve. However, as the United States
Fifth Circuit Court of Appeals has explained:
In order to hold a municipality or a local government unit liable under
Section 1983 for the misconduct of one of its employees, a plaintiff must initially
allege that an official policy or custom was a cause in fact of the deprivation of rights
inflicted. To satisfy the cause in fact requirement, a plaintiff must allege that the
custom or policy served as a moving force behind the constitutional violation at issue
or that [his] injuries resulted from the execution of an official policy or custom. The
description of a policy or custom and its relationship to the underlying constitutional
violation, moreover, cannot be conclusory; it must contain specific facts.
Spiller v. City of Texas City, Police Department, 130 F.3d 162, 167 (5th Cir. 1997) (quotation
marks, brackets, and citations omitted). Further, “[a] plaintiff may not infer a policy merely because
harm resulted from some interaction with a governmental entity.” Colle v. Brazos County, Texas,
981 F.2d 237, 245 (5th Cir. 1993); see also Wetzel v. Penzato, Civ. Action No. 09-7211, 2009 WL
5125465, at *3 (E.D. La. Dec. 23, 2009). Rather, he must identify the policy or custom which
allegedly caused the deprivation of his constitutional rights. See, e.g., Murray v. Town of Mansura,
76 Fed. App’x 547, 549 (5th Cir. 2003); Treece v. Louisiana, 74 Fed. App’x 315, 316 (5th Cir.
2003); Wetzel, 2009 WL 5125465, at *3.
In the instant case, plaintiff does not even allege that his constitutional rights were violated
as a result of a policy or custom, much less identify such a policy or custom. Accordingly, he has
failed to state a proper official-capacity claim against the defendants.
The defendants next argue that plaintiff has failed to state a proper individual-capacity claim
against them. Again, they are correct. “Plaintiffs suing governmental officials in their individual
capacities ... must allege specific conduct giving rise to a constitutional violation. This standard
requires more than conclusional assertions: The plaintiff must allege specific facts giving rise to the
constitutional claims.” Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (citation omitted).
Additionally, “[p]ersonal involvement is an essential element of a civil rights cause of action.”
Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983). Here, plaintiff neither makes any factual
allegations against the defendants nor alleges that they were in any way personally involved in the
events giving rise to plaintiff’s claims. Although Sheriff Gusman is the head of the prison system
and Dr. Gore is the head of the jail's medical department, they cannot be held vicariously liable for
the actions of their subordinates pursuant to 42 U.S.C. § 1983. Thompkins v. Belt, 828 F.2d 298,
303 (5th Cir. 1987); see also Oliver, 276 F.3d at 742 (“Section 1983 does not create supervisory or
respondeat superior liability.”).
Lastly, even if Sheriff Gusman and Dr. Gore were otherwise proper defendants, the claims
against them would still fail because plaintiff's underlying claim has no merit for the following reasons.
As noted, plaintiff is alleging that he was not provided with adequate medical care for a
fractured hand. However, it is important to note that an inmate’s constitutional right to medical care
is extremely limited. Indeed, the federal constitutional rights of an incarcerated person, regardless
of whether he is a pretrial detainee or a convicted prisoner, are violated only if his serious medical
needs are met with deliberate indifference on the part of penal authorities. See Thompson v. Upshur
County, Texas, 245 F.3d 447, 457 (5th Cir. 2001); Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir.
1999).6 The United States Fifth Circuit Court of Appeals has observed:
Deliberate indifference is an extremely high standard to meet. It is
indisputable that an incorrect diagnosis by prison medical personnel does not suffice
to state a claim for deliberate indifference. Rather, the plaintiff must show 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. Furthermore, the decision whether to
provide additional treatment is a classic example of a matter for medical judgment.
And, the failure to alleviate a significant risk that the official should have perceived,
but did not is insufficient to show deliberate indifference.
Domino v. Texas Department of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quotation
marks, brackets, and citations omitted). “Deliberate indifference encompasses only unnecessary and
wanton infliction of pain repugnant to the conscience of mankind.” McCormick v. Stalder, 105 F.3d
1059, 1061 (5th Cir. 1997); see also Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
The United States Fifth Circuit Court of Appeals has explained that “[a] serious medical need
is one for which treatment has been recommended or for which the need is so apparent that even
laymen would recognize that care is required.” Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir.
2006). Defendants do not dispute that plaintiff’s medical needs were serious.
As defendants correctly argue, plaintiff’s allegations of deliberate indifference are clearly
rebutted by his medical records. See Banuelos v. 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.”). Those records, which have been filed into this federal
record, include the following documents regarding plaintiff's hand injury:
On April 18, 2012, plaintiff submitted a grievance requesting medical
treatment for "some discomforts." On May 1, 2012, he received a response
stating: "If you are seeking medical care, you must complete a sick call
request form and provide it to the nurse for triage."7
On May 2, 2012, plaintiff submitted another grievance complaining that he
had not received medical care. On May 10, 2012, he received a response
stating: "Your sick call request was triaged by the nurse and you are
currently waiting to see a medical provider."8
While that grievance was still pending, plaintiff submitted another grievance
on May 9, 2012, complaining that he had not received medical care. On May
14, 2012, he received a response stating: "Your sick call request was triaged
by the nurse and you are currently waiting to see a medical provider. Please
Rec. Doc. 19-1, pp. 3-4.
Rec. Doc. 19-1, pp. 5-6.
remember a sick call request form is the appropriate mechanism to access
On May 17, 2012, plaintiff was seen in the medical department, prescribed
Ibuprofen, treated for various conditions, and an x-ray was ordered for his
hand.10 That x-ray was subsequently taken and revealed a fractured wrist.11
On June 1, 2012, plaintiff was seen in the medical department, received
treatment for various conditions, and was referred to an orthopedic
On June 12, 2012, plaintiff submitted a sick call request, stating: "I have a
fractured wrist, and I'm in a lot of pain. Can you please treat me for the
pain." On that same date, the nurse responded that plaintiff already had a
pending sick call for his wrist fracture and that no apparent distress was
On June 20, 2012, plaintiff submitted a sick call request, stating: "I have a
fractured wrist. I'm in a lot of pain and I need medical treatment. It is
Rec. Doc. 19-1, pp. 9-10.
Rec. Doc. 19-1, p. 113.
Rec. Doc. 19-1, pp. 114-15.
Rec. Doc. 19-1, p. 112.
Rec. Doc. 19-1, p. 95.
already in my file." On that same date, the nurse responded that plaintiff
already had a sick call follow-up and an orthopedics follow-up pending.14
On July 6, 2012, plaintiff submitted a grievance, stating: "I have a fractured
wrist in which I am in constant pain and have yet to receive treatment since
4-12." On that same date, he was seen in the medical department, prescribed
pain relievers, and referred to an orthopedic specialist.15 On July 23, 2012,
he then received a response to his grievance stating: "Note that you did not
disclose any medical problems during your initial medical screening
completed upon being booked into this facility.
It was due to your
completion of a sick call request form that you were triaged by the nurse and
referred to see a medical provider. After your clinical encounter with the
provider, medications and X rays test were ordered. Also note that you were
referred to see the specialist at MCLNO, and seen by the specialist.
Currently, you have a follow-up appointment scheduled. Should you need
medical care again before is due, please complete a sick call request form and
provide it to the nurse for triage."16
While the foregoing grievance was pending, plaintiff was indeed seen at the
LSU orthopedic department on July 11, 2012. His hand and arm were placed
Rec. Doc. 19-1, p. 94.
Rec. Doc. 19-1, p. 111.
Rec. Doc. 19-1, pp. 29-30.
in a cast, it was recommended that he be prescribed Tramadol and Tylenol
to relieve pain, and he was advised to return for further x-rays and evaluation
in three weeks.17 On that same date, he was also seen in the jail medical
department, and he was prescribed Tramadol and Tylenol as recommended.18
The following day, July 12, 2012, plaintiff submitted another grievance
complaining about a lack of medical treatment. While that grievance was
pending, he was seen in the medical department on July 25, 2012, and
prescribed a nonsteroidal anti-inflammatory drug (Indocin).19 Then, on
August 6, 2012, he received a response to the grievance stating: "You have
been evaluated and treated by MCLNO specialists and have a follow-up
appointment scheduled and pending. Should you need medical care again
before is due, please complete a sick call request form."20
While that grievance was still pending, plaintiff submitted a sick call request
on August 1, 2012, stating: "This cast is bothering me. Could you please
readjust it?" He was examined that same day by a nurse, who noted: "Full
ROM [range of motion]. Capillary refill brisk. NADN [no apparent distress
Rec. Doc. 19-1, p. 118.
Rec. Doc. 19-1, p. 110.
Rec. Doc. 19-1, p. 109.
Rec. Doc. 19-1, pp. 35-36.
noted]." However, the nurse referred plaintiff to the jail physician for
On September 6, 2012, plaintiff submitted a sick call request, stating: "My
hand still hurts, please re-evaluate my status. When will the cast be
removed? What can I receive for the pain?"
He was examined that same
day by a nurse, who noted: "Cast to (L) hand/arm intact. Full ROM noted
to fingers. No swelling noted. Cap refills brisk. No discoloration noted."
It was also noted that he had medical appointments pending.22
On September 12, 2012, plaintiff was again seen at the LSU orthopedic
department, at which time his cast was apparently removed.23
On September 19, 2012, plaintiff submitted a sick call request, stating: "I
need some pain meds (ultram) for my hand. It was broken & I'm still in
constant pain. Something is not right – Every movement hurts – Hurts bad."
He was examined that same day by a nurse, who noted: "NADN. 9 ROM +
reports pain [with] movements. Cast removed last week. No swelling,
redness, deformity, or discoloration. CRT [capillary refill time] < 3 sec."
Plaintiff was referred to the physician.24 He was seen that same day, again
Rec. Doc. 19-1, p. 90.
Rec. Doc. 19-1, p. 93.
Rec. Doc. 19-1, p. 116.
Rec. Doc. 19-1, p. 92.
prescribed Indocin, and it was noted that he had an appointment pending with
an outside specialist.25
On October 8, 2012, plaintiff submitted a sick call request, stating: "I had a
broken hand (left). I was in a cast for two months. The cast is off, & I still
fill [sic] sharp pains & my 'range of motion' is limited. Something is wrong,
& I hurt." He was examined that same day by a nurse, who noted: "NADN.
AAO [awake, alert, and oriented] x 3. Pt [patient] is able to move left hand."
She referred plaintiff to the jail physician.26 He was in fact seen on October
22 and again prescribed Tramadol and Tylenol. It was also noted that he had
an appointment pending with an outside specialist.27
On November 7, 2012, plaintiff was released from jail.28
In light of the foregoing, it is apparent that jail officials did not refuse to treat plaintiff, ignore
his complaints, intentionally treat him incorrectly, or engage in any similar conduct evincing a
wanton disregard for his medical condition. Far from ignoring plaintiff’s condition or denying him
care, they even arranged for him to receive evaluation and treatment from an outside specialist.
That, of course, is not to say that plaintiff's care was optimal or that all of his concerns were
resolved to his satisfaction. However, that simply was not required. The fact that an inmate’s
Rec. Doc. 19-1, p. 108.
Rec. Doc. 19-1, p. 91.
Rec. Doc. 19-1, p. 107.
See, e.g., Rec. Doc. 19-1, p. 65.
medical treatment “may not have been the best money could buy” is insufficient to establish a
federal violation. Mayweather v. Foti, 958 F.2d 91 (5th Cir. 1992); see also Gobert v. Caldwell, 463
F.3d 339, 349 (5th Cir. 2006) (“[D]eliberate indifference exists wholly independent of an optimal
standard of care.”); McMahon v. Beard, 583 F.2d 172, 174 (5th Cir. 1978). Therefore, if an inmate
in fact received medical treatment, federal constitutional protections were not violated just because
that treatment was unsuccessful or because pain persisted despite the treatment. Gobert, 463 F.3d
at 346; Williams v. Chief of Medical Operations, Tarrant County Jail, No. 94-10115, 1994 WL
733493, at *2 (5th Cir. Dec. 27, 1994); Kron v. Tanner, Civ. Action No. 10-518, 2010 WL 3199854,
at *7 (E.D. La. May 19, 2010), adopted, 2010 WL 3171040 (E.D. La. Aug. 6, 2010). Moreover, the
federal constitution does not require even that an inmate’s medical care have been free from
negligence or medical malpractice. Hall v. Thomas, 190 F.3d 693, 697-98 (5th Cir. 1999); see also
Kelly v. Gusman, Civ. Action No. 07-611, 2007 WL 2007992, at *4 (E.D. La. July 5, 2007); Cerna
v. Texas Tech Medical Staff, No. 2:03-CV-0322, 2004 WL 42602, at *2 (N.D. Tex. Jan. 7, 2004).
Rather, claims of negligence or malpractice present issues of state law for state courts, not federal
constitutional issues for a federal court. See Estelle v. Gamble, 429 U.S. 97, 107 (1976); Cerna,
2004 WL 42602, at *2.
The fact that plaintiff apparently believes that jail officials could have done more is of no
moment. Absent exceptional circumstances, a prisoner’s disagreement with his medical treatment
simply does not constitute deliberate indifference. Gobert, 463 F.3d at 346. For example, “the
question of whether ... additional ... forms of treatment is indicated is a classic example of a matter
for medical judgment.” Estelle, 429 U.S. at 107. Generally, such matters of professional medical
judgment are better left to the medical expertise of physicians rather than to the legal expertise of
judges. Federal courts are therefore loath to second-guess such medical decisions in federal civil
rights actions. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976) (“Where a prisoner has
received some medical attention and the dispute is over the adequacy of the treatment, federal courts
are generally reluctant to second guess medical judgments and to constitutionalize claims which
sound in state tort law.”); Castro v. Louisiana, Civ. Action No. 08-4248, 2008 WL 5169401, at *4
(E.D. La. Dec. 8, 2008) (“[M]edical judgments are not to be lightly second-guessed in a federal civil
rights action.”). There is simply no basis whatsoever to engage in such second-guessing here.
In summary, the determinative issue before the Court is not whether the medical treatment
plaintiff received was subpar in some respect, whether his medical problem persisted despite
treatment, or whether he was dissatisfied with his care; rather, it is only whether his serious medical
needs were met with deliberate indifference. As noted, it is evident here that there was no deliberate
indifference. Because no genuine issue of material fact remains in dispute with respect to that issue,
the defendants are entitled to judgment as a matter of law.
Accordingly, for all of the foregoing reasons,
IT IS ORDERED that the defendants' motion for summary judgment, Rec. Doc. 22, is
GRANTED and that the claims against them are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this twentieth day of August, 2013.
UNITED STATES MAGISTRATE JUDGE
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